PROFESSIONAL RESPONSIBILITY ncbex.org (practice exam) --> MPRE flabar.

org --> Rules Regulating the Florida Bar --> Chapter 4 Rules of Professional Conduct (mirror Model Rules, except for advertising and confidentiality); ethics hotline No Florida rules on final

I. The Legal Profession--Background and Fundamental Issues A. Development of the Legal Profession B. Development of Standards of Professional Conduct The earliest standards were statements of moral principles that had no legal effect. The ABA adopted the Model Code of Professional Responsibility in 1969. ABA Model Rules have only the status of proposed law. The ABA must lobby state and federal courts to enact these Rules for them to become positive law. None of the ABA documents is legally binding on anyone. They are models that must be adopted or rejected by individual state supreme courts before they have an legal effect. Four sources of authority and advice important to analysis of legal ethics issues: 1) Cases 2) ABA and state and local bar associations' ethics opinions (advisory opinions that respond to a specific question or an assumed state of facts) 3) ALI's Restatement Third, The Law Governing Lawyers 4) Federal agencies' regulations that regulate the work of lawyers who appear before them ABA Canons 1908 --> ABA Model Code of PR--> ABA Model Rules (Pre-2002) --> * ABA Model Rules (2002-2003) *

C. Some Contributions from Moral Philosophy to the Study of Legal Ethics 1. the ethics of duty versus the ethics of aspiration Morality of aspiration is the morality of good life, excellence, the fullest realization of human powers. Morality of duty lays down the basic rules w/o which an ordered society is impossible; it starts at the bottom of human achievement. It condemns for failing to respect the basic requirements of social living. The ABA was designed as an attempt to create propositions based on the morality of duty. Aspirational rules are rare in the Model Code. Note: just b/c you violate an ethical rule does not necessarily mean you are an immoral person!

2. Moral people versus moral actions Professional ethics are not synonymous w/moral conduct.

The source of good decisions in settings in which a lawyer is unlikely to get caught for a bad decision is usually called a person's "character." Kohlberg's Six Stages of Moral Development: 1) Adherence to rules imposed b/c of understanding that wrongdoing is associated w/punishment 2) "I will be good to you if you are good to me" 3) Conforming behavior to something actor thinks others will approve of 4) Conforming acts to what is required by the social order; requires respect for authority (in legal ethics, respect for courts and other legal institutions) 5) Conforming acts to what is required by the social contract; recognizes greater possibilities of change in the social order and is identified as official morality of democracy 6) Person looks to universal ethical principles; must be self-chosen, but must appeal to logical comprehensiveness, universality, and consistency Lawyers must conform their behavior to rules applicable to their conduct.

3. Role ethics versus Common ethical standards Role-differentiated behavior The professional has a client whose interests must be represented or looked after by the professional, which means that the role of the professional is to prefer, in a variety of ways, the interests of the client over those of individuals generally.

4. Consequential versus deontological standards Consequentialism asks whether the ethical analysis is based on achieving a good result (e.g. utilitarianism), and deontology asks whether the analysis focuses on absolute values. Two categories of utilitarianism: act utilitarianism and rule utilitarianism. Act asks which behavior will lead to more happiness or well being in a particular situation. Rule takes the view that there is value in establishing appropriate standards of behavior for particular classes of cases. Deontological approaches can also be divided into two categories. 1) based on duty, says that there are particular general principles of moral responsibility that can be derived logically and applied universally (e.g. do unto others as you would have done to yourself). 2) based on rights; individuals have certain human rights that lawyers should help preserve and protect. deontological: having to do with moral obligation

5. The Ethic of Care This view disagrees with Kohlberg. Stresses enhancing the quality of the relationship b/t the lawyer and all those affected by a given situation, not on analyzing the inherent propriety of particular conduct of the lawyer. Suggests that neutrality and objectivity are not possible for lawyers and clients. Basic focus of ethic of care is on lawyer's acting as a healer who takes a comprehensive view of her situation and seeks to make everyone better off.

6. Personal versus Social Ethics D. The Matter of Professionalism Risk of labeling the practice of law as a profession is that the label is then used to justify restraints of trade that would otherwise not be accepted. Society plays a dual role on lawyers; citizens want lawyers to be understanding and socially responsible, but when they have a problem, they want a lawyer that will play hardball. Evidence shows that the primary way some people learn about lawyers is through watching fictionalized portrayals of lawyers (Law & Order). Rules of professional conduct attempt to accommodate at least five interests: those of 1) the lawyers of individuals, 2) lawyers in their relationships w/each other, 3) lawyers' clients, 4) nonclients w/whom the lawyers deal, and 5) institutions of the legal system through which the lawyers work.

E. Introductory Problem Page 26 Lawyer knows client is innocent of murder w/which he is charged, but knows prosecutor has convincing eyewitness who will testify that saw client commit crime. Lawyer knows can obtain forged hotel register from city far way that will "prove" that client was in other city at time of event; lawyer firmly believes will not be caught if engages in this fraud. What do you do if you are the lawyer? If I was the lawyer, I would be facing competing duties: first, the duty to zealously represent my client, and second, my duty to be candid toward the tribunal. I would uphold my duty to the tribunal first. Even though I know my client is not guilty, I can't procure false evidence to get him off. I could get disbarred for that. Instead, I would do my best to create the best defense possible for my client, and work extra hard at impeaching the state's "eyewitness," either intrinsically or extrinsically. If my client is convicted, I will appeal. 1) 2) How would a utilitarian respond? a. An act utilitarian might argue to forge the document to achieve the greater good (i.e. allowing an innocent man to escape incarceration). b. A rule utilitarian, on the other hand, says that we have established appropriate standards and they should be followed. 3) 4) What if client's alibi is embarrassing to the client and was told you in confidence so that the information is legally protected. Do you tell the prosecutor the information if it will exonerate your client? Should not do anything that effects your client w/o asking first. Perhaps should have client evaluated for competency if chooses death over telling where she was and risking embarrassment, b/c not a rational choice. 6) What does the concept of professionalism add to your analysis?

fraud. a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. b) Smith's drug conviction is not conclusive evidence of a lack of character and fitness.4(c) is very vague. Regulation of the Legal Profession Entry into the legal profession and the conduct of lawyers once admitted are regulated by the highest court of each state. 8. and ideally we want lawyers to be honest with their clients and with the court. but are less forgiving with those who later lie about those mistakes when asked about them. II. may indicate he has a disregard for the law. they can do serious damage (financially or otherwise) to their clients' lives.4. if you're lying to us now. A. Character and Fitness for Admission to the Bar 1) The point of the requirement that lawyers have the necessary character and fitness to practice law is that lawyers owe fiduciary duties to their clients. Cheating is an act of dishonesty. will they find out later and disbar him? (Remember: there is no statute of limitations!) What are the dean's obligations? A. however. but lying about it is not to learn from it. Problem 1 Admission to the Bar (Page 32) Issues Will the bar refuse to admit him? If they admit him.Professionalism is an attempt by bar associations to improving the image of the lawyer among society. so if Smith were a lawyer. or misrepresentation. Everyone makes mistakes in college. Smith has to be honest about it to keep within rule 8. it appears that on that ground he would have violated rule 8.4 applies to lawyers. breach of trust.4. or serious interference with the administration of justice are in that category. [but I don't think it's conclusive]. and makes it a violation to engage in conduct involving dishonesty. especially if it was only once.2. If Smith had been convicted of a drug-related felony. However. still not sure that should prevent him from admission to the bar. a) We should be more concerned that Smith tried to cover up the fact that he cheated than we should be about the mere fact that he cheated. However. you're going to lie as a lawyer. however. as long as he is truthful (forthcoming) about it. The mentality is. Bar organizations typically admit people who have made dishonest mistakes. Rule 8. cheating does involve dishonesty. it is an automatic violation of 8. With regard to whether . and often their clients are depending upon them (their clients usually trust them may even be vulnerable to them and their knowledge to get them through a serious problem). so perhaps he did not technically violate the rules. Under rule 8. dishonesty. c) (Note: when you violate a rule. 2) Gerald Smith's cheating in law school may demonstrate that he lacks good moral character. If has repeated convictions. and Smith is not technically a lawyer. deceit. Offenses involving violence.4 as well). If a lawyer does not possess the proper character. Everyone makes mistakes.

S. it may mean they have some kind of dependency problem. it's whether you tell the truth about what you have done.e." B. (Smith cheating on his test is not covered by 1. Mustafa The bar is very hard on people who cannot handle money. but if is forthcoming about it on application and does not appear to have a habit of getting arrested for possession (i. or fitness as a lawyer in other respects: it only reflects on their honesty and trustworthiness if they lie about it. especially taking into account that most people do stupid things when they are minors and/or in college. so he will probably not be caught if he does not disclose it on his application. He would only really be required to disclose any kind of procedure (i. d) Does not necessarily have to be admitted. a) It should make a difference that some of Smith's problems occurred when he was a freshman in college. Smith should not have a problem. on the other hand. we do have a lot of terrorists running around and we do not want any of them every coming into any kind of power.e.6. and any disagreement w/that law is no excuse w/regard to criminal liability). Mere membership does not necessarily mean active participation. but if does not adversely affect work product. However. b) I would never admit an admitted white supremacist to the bar. Candor in the Bar Application Process 1) Bar applicants must be completely honest in the application process. 4) There should definitely be a statute of limitations on how long prior incidents can affect current bar admission. It's not what you have done.e.1: an applicant shall not knowingly make a false statement of material fact. if applicant lies on his application. b/c reflects on person's trustworthiness. a) An applicant is more likely to be denied admission for covering up his past than for what that past contains. . may mean lawyer has a disregard for the law (since marijuana possession is illegal. If person was dishonest one time in an emergency situation and is forthcoming and honest about it. as long as his behavior since then has been more responsible (i. this may be enough to defeat a person's bar admission. Rule 8. he will probably lie during his career as an attorney. government. If occurs often.marijuana possession reflects adversely on a lawyer's honesty. 3) If a person has repeatedly been dishonest in the handling of money. and then admitted that he had intended to steal on his application was not admitted was that the latter person tried to cover it up at first. got an F in the course. he seems to have been "rehabilitated"). and the dean decided not to press charges against Smith. e) Reason the person who cheated and admitted it. justice could seriously be interfered with for many defendants who aren't "white. perhaps should still be admitted. rule does not require disclosure of information otherwise protected by rule 1. or fail to disclose a fact necessary to correct a misapprehension. Lawyers must be trustworthy. while person who got off for shoplifting by denying he intended to steal. Bar application does not ask whether an applicant has ever cheated. and does not occur often. has not shown blatant disregard for legal obligation). and then was candid about it on his bar application was admitted. b) This approach by the bar examiners (denial of admission for lack of candor) does seem reasonable. honor court) against him if the Dean had decided to press charges. especially those who will be handling their clients' funds. may not necessarily mean lawyer is unfit. with regard to fitness.6). That would allow him to one day pursue a position as a judge. 5) Perhaps there is some risk today of misuse of the requirement that people disclose as a matter of character and fitness whether they have ever been members of groups whose purpose is to overthrow the U. Similar to impeachment. Might have a problem here since he's in his last semester of law school and decided to cheat on an exam and then lie about it. trustworthiness. and if he were to gain that position.

include committing criminal acts. 8. Under the ABA. you are a lawyer.3. Rules of Professional Conduct. second. etc.4(b)-(f) are the catch all provisions. B. to see what can justify professional discipline. 5) Obligation of law schools and their deans in cooperating with investigations conducted by admission officials: a) Under rule 8. Here. 6) Requirement of taking and passing the bar: c) Should there be a limit on how many times an applicant may take the bar? Might indicate low level of competency. Chemical dependency problems: New for the ABA C. comment 1: The duty imposed by this rule extends to lawyers. a lawyer in connection with an applicant's bar application must not fail to disclose a fact necessary to correct a misapprehension known by the lawyer to have arisen in the matter. bottom line is.4.g. Conduct) Lawyer Discipline and the Disabled Lawyer (Page 46) Once a lawyer is a member of the bar.5. and therefore attorney-client privilege attaches. might not. under 8. . it is an automatic violation of 8. Does not seem to be a high correlation between a person's ethics and whether they can pass the bar or the MPRE on the first. the court retains jurisdiction to sanction that lawyer for violations of the court's rules of professional conduct. we would need to know how much the Dean knew about Smith cheating (and whether the dean is himself a lawyer) before we know if he violated 8. With regard to whether the law school has a duty to report to the bar. through its honor court).1.3.1.6 protection a) Even if Smith talks to you as his friend who is a lawyer.(Rules. professional discipline is imposed for violating rule 8. and if a lawyer violates any of the ABA model rules. However. remember that the school has a strong interest in taking care of these matters on their own (e. Smith is not a lawyer. Thus. is governed by the rules applicable to the client-lawyer relationship including 1. Should not be a bar to admission. or third try. A. 8. Problem 2. cannot allow your client to commit perjury). while the other takes on too many cases (more than he can handle) and may also be ineffectively assisting his clients.3. and lawyer is bound by confidentiality under 1. a lawyer looks to the Rules Regulating the Florida Bar. the dean only has to report offenses of another lawyer and must himself be a lawyer to be within the rule.6 and in some cases 3. engaging in any conduct involving dishonesty.4. a. In Florida. 8.4) Rule 8.3 (duty to disclose to tribunal. 1. Issues: one lawyer is alcoholic and is ineffectively assisting his clients. 1.1. 8. b. 2. Conduct that can Subject a Lawyer to Professional Discipline 1. *Lying to court lose 1. Educational and Knowledge Standards for Admission to the Bar 5) Whether the taking of particular law school courses should be a prerequisite to becoming a lawyer: c) Do not think that lawyers who have not taken PR in law school are any less apt or ethical.1. or representing a lawyer who is the subject of a disciplinary inquiry or proceeding.4(a).6.15 code of Jud. Comment 3: A lawyer representing an applicant for admission to the bar.

A lawyer shall act with reasonable diligence and promptness in representing a client. trustworthiness. The effectiveness of deterrence might depend on the likelihood of getting caught. but rule 1. on the one hand. Thus. Rule 1. They will only come after him if one of his clients complains to the bar.1: Competence. if Andrews' clients happen to be satisfied with his work. By biting off more than he can chew. Does using the discipline process to pursue Andrews and Black seem desirable? a. I think that whether "killers" should be allowed to practice law depends on the circumstances surrounding the killing.3: Diligence.2." Opinion 1273 is a much higher standard than 1. thoroughness and preparation reasonably necessary for the representation. I don't think that allowing that person to practice law would undermine public confidence in the bar. Comment 2 to rule 1. We do not have evidence that Andrews has neglected his clients. skill. Andrews is in a difficult position: not wanting to turn away any clients. c. on the other hand.3 4. the bar is never going to discipline him for violating these rules. and will not be deterred by fear of punishment from breaking breaking them.4. . along w/Black's spiteful opinion that Andrews is always juggling too much and asking for continuances. and seems to punish for negligence instead of requiring a "conscious disregard. then no. Rule 1. and (3) to maintain a level of response to deviance sufficient to forestall public dissatisfaction (the public image function). he/she automatically violates 8. lying. he is unable to adequately prepare himself for what is required of him for each client's case.3 is inconsistent w/Opinion 1273 b/c it seems to hold that one instance of an act or omission (such as overlooking a statute of limitations) is enough to violate the rule. it is doubtful that he is able to dedicate himself to the interests of his clients with the zeal required in Comment 1 of 1. Violent 3. However.3 expressly states that a lawyer's work load must be controlled so that each matter can be handled competently. Also. and not being able to devote the requisite amount of time to each client b/c he takes on too many. Criminal acts that should be held to reflect adversely on the lawyer's honesty. A lawyer shall provide competent representation to a client. these rules are the least enforced. Here. (2) to deter normative deviance and maximize compliance with norms among attorneys (the deterrence function). The reason we have rules of professional conduct at all is in large part to improve the public's image of lawyers. Competent representation requires the legal knowledge. I think that perhaps it is.1. Discipline process has three functions: (1) to identify and remove from the profession all seriously deviant members (the "cleansing" function). Note also that if a lawyer violates these rules. State supreme courts might sanction lawyer misconduct even when the lawyer was not acting as a lawyer at the time b/c a. and 1. but note also that 1. embezzlement. or fitness as a lawyer in other respects include theft. Andrews and Black are not necessarily "bad" people. only his thoughts that he takes on too much. b/c of Andrews' workload. and may also include drug and alcohol abuse (b/c if a lawyer is under the influence of mindaltering substances they likely are not "fit" to advocate for the needs/rights of their clients).1 he must be adequately prepared to handle his clients' legal needs. b/c if lawyers did not believe that they could be caught (i. c.e. bribery.3 are the least enforced rules. If a person kills her husband b/c he abused her.3.3. Andrews has violated the competence rule b/c under 1. 5. With regard to whether the bar's public image is a sufficient concern to keep an otherwise qualified person from practicing. With regard to diligence. Not sure that Opinion 1273 has necessarily been overruled by rule 1. it appears that Andrews has violated 1.3. if the bar did not make examples out of some lawyers). b. then they might be inclined to believe that the bar rules are not enforced.

but it is beneficial to him as well and recognizes that his conduct may the result of a disease over which he may lack control. With regard to whether the lawyer actually has to listen to the CLE speaker at the seminar. this may reflect poorly on the profession when the damage to the client is the same as to a client whose lawyer simply did not have time to show up. e.crimes reflect adversely on our profession. and shows that the lawyer is willing to lie and alter documents. I think it would be hard to prove that the lawyer did or did not. ABA has a rule that provides for placing lawyers on an indefinite period of disability inactive status in case of their mental or physical incapacity. Yes.rule 5. e. but are to be confidential. fraudulent. perpetrating fraud on the court (e.5. C. a blatant violation of rule 8.4(d) prohibition of conduct that is prejudicial to the administration of justice includes bribery of judges. d. Black's alcoholism should be a factor that affects the nature of his discipline. c. Telling gross lies on your resume or stealing another student's academic identity is certainly grounds for a lawyer losing his license. therefore. Each jurisdiction applies its own standards to evaluate the conduct if a lawyer is 1. 2. Perhaps Black should not be disciplined so much as he should have to undergo mandatory rehabilitation. Yes. buying the child pornography reflects on the lawyer's trustworthiness because it shows his willingness to break the law. On the other hand. See rule 8. you showed up near the end shows lawyers that the bar has zero tolerance for any kind of lie whatsoever. or whether you are in the jurisdiction in which you are licensed! This is reciprocal jurisdiction. regardless of where the lawyer's conduct occurs. Does not matter where you commit the violation. congressmen. sanctions for saying you attended a CLE seminar when in fact. Aggravating and Mitigating Factors in Discipline Cases. 3. Proceedings are to be conducted in the manner of a discipline case. it's punishment in the sense that it is involuntary.3. Under rule 8. That way. It's completely dishonest. Even a state to which a lawyer travels for temporary practice may try the lawyer for conduct that occurs there. Problem of Alcohol and Drug Abuse Drug and alcohol abuse problems among lawyers: b. b.4. Yes.g. This could be indicative of his willingness to break the law in other areas. short of testing him. 6. if we do not punish Black or punish him less b/c he is an alcoholic. This is a strong argument for punishing Black and Andrews to the same degree. other kinds of mental disease should affect a lawyer's level of discipline. plagiarizing work submitted and then refusing to tell court where information came from). . Conduct sufficient to violate the rule 8.g. Yes.5: Interstate Discipline: Jurisdictions that May Sanction and the Law They Apply. B. a lawyer may be subject to the disciplinary authority of two jurisdictions. 2. a lawyer admitted to practice in a certain jurisdiction is subject to the disciplinary authority of that jurisdiction.(c): the rule requiring lawyers to report professional misconduct of other lawyers does not require disclosure of information gained by a lawyer or judge while participating in an approved lawyers assistance program. CHOICE OF LAW 8.5 (can work in a different state) prohov vj?? 1. if a lawyer is addicted to gambling and misuses client or firm funds.

he should disclose. Yes. which will occur in NJ). or make a deal with another lawyer w/regard to reporting them. and there should be no proceedings at all if the two jurisdictions have inconsistent rules w/each other. limits the reporting obligation to those offenses that raise substantial questions as to the other lawyer's fitness (substantial = seriousness of offense. ("Predominant effect" means the place in which your transaction has meaning. and in all cases should avoid proceedings against a lawyer based on two inconsistent rules. c. the lawyer must follow the New Jersey rules governing disclosure. such a case would be determined under the rules of the jurisdiction the conduct occurred in. c. b/c the predominant effect of the conduct is in NJ.3 mandate that Andrews and Black report each other? Yes. Thus. a. however. but cannot be subject to discipline under 8. He will not be subject to discipline under 8. The effect of lawyer discipline in one state should have the affect on a lawyer's status in other states where the lawyer is admitted to practice law of a. If you do not report. if we negotiate the contract in FL. 3.licensed in one state and conduct occurs in another. a. not the quantum of evidence of which the lawyer is aware).is the matter pending before a tribunal Step2. this is also one of the least enforced rules. unless standards of another state with regard to the lawyer's conduct there relieve the lawyer of the risk of being disciplined.5(b) if his conduct conforms to the rules of NJ. and he reasonably believes the predominant effect of his conduct will occur there. Rule 8.Where did the conduct occur? Where is the impact most raised? (predominate effect rule) Safe harbor – possible out for the lawyer here D.5(b)(2). but it is for a sale in NJ. If there is a civil or criminal action pending involving the same conduct. Same disciplinary measures don’t have to be impose. On the other hand. can’t turn your head Substantial= material matter of clear and weighty (even if you don’t have a quantum of evidence) 2.3.3. disciplinary authorities often prefer that the lawyer wait until that action is completed. E. Rule 8. comment 3.3 requires simply that the lawyer have some evidence of a substantial offense. The two jurisdictions should seek to apply the same rule to the lawyer's conduct. the sanction imposed by the first state to try the lawyer should be binding on the other states. and expressly states that "substantial" does not refer to the amount of evidence of which the lawyer is aware.g. Does rule 8. Possible to violate your state's rule and not violate another state's rule. and the comment acknowledges that such a requirement would be unenforceable. Andrews cannot avoid reporting Black simply because his client does not . Thus. a lawyer is not obliged to report every violation of the Rules. The lawyer must make a report against a fellow lawyer as soon as he/she can be relatively sure that the lawyer committed some kind of violation of the rules. per NJ law. Step 1. that his client lied about certain important facts in the commercial transaction. the predominant effect is the sale. Under rule 8. Under rule 8. Under rule 8. The Duty to Report Another Lawyer's Misconduct: The Discipline Process Itself 1. Knowledge/knows= actual knowledge.5(b)(2). you then become the regulator of the conduct instead of the bar being the regulator. 3. b/c both jurisdictions should agree that the same rule applies.5(b)(2) if lawyer's conduct conforms to rules of a jurisdiction in which lawyer reasonably believes predominant effect of lawyer's conduct will occur.

then perhaps resigning can be like pleading no contest in criminal law. or a substantial likelihood should take appropriate action Judge has to turn in a judge and a lawyer should turn in a judge Pg. e. unless the information the client told Andrews is privileged. 574  2. in some way. C. b. Sanctions on the entire law firm seems unfair. A lawyer should be permitted to resign for any reason he chooses.6 is much broader than the attorney-client privilege. 5. it does not appear from rule 1. In this case. A presidential pardon might not even be enough to eliminate a lawyer's exposure to professional discipline.6 that it was intended to protect information such as that the client won b/c the lawyer for the other side is an alcoholic. the bar makes it very easy for clients to complain about their lawyer). 7. A judge having knowledge. as long as he wraps up any pending legal matters for his clients first. 4. and he will simply have to do something to. whatever its source. under Canon 3D(2) of the code of judicial conduct. operating under the authority of the jurisdiction's highest court and to which complaint about a lawyer can be made. it is certainly helpful to know how easy it is for an attorney who has resigned to apply for readmission to the bar. make the victim whole. A lawyer can be disciplined based on testimony given under a grant of immunity from criminal prosecution. perhaps the concept of confidentiality should be read narrowly for this purpose. b/c while it would certainly be a better incentive for firms to police their own policies and the practices of their individual members. when you get down to it. Witnessing Black's impaired state or Andrews' inability to keep up with his caseload would constitute knowledge w/in the meaning of the canon. 6. Note that only five percent of complaints have any merit at all. e.want him to. is required to evaluate all complaints filed by clients or others about a lawyer. and only half of those result in any sanctions. A state's disciplinary counsel. and there is only so much the firm can truly control w/regard to those actions. must report attorney misconduct of which he has knowledge. Some say lawyer discipline should not be considered the equivalent of a criminal sanction and lawyers should therefore not be entitled to the constitutional guarantees inherent in a criminal process. (In Florida. each lawyer is responsible for his/her individual actions. See comment 3: the confidentiality rule applies not only in matters communicated in confidence by the client but also to all information relating to the representation. If he has been charged with a violation of the professional conduct rules. Problem 3 Regulating Lawyers Outside of the Formal Disciplinary System Page 63 Actions for professional malpractice may seek damages against a lawyer for wrongs . d. Although the fact that Andrews won b/c of Black's alcoholism certainly relates to Andrews' representation of his client. Remember that 1.15(d) A judge. d. In making these decisions. a.

comment 1 (expertise in a particular field of law may be required in some circumstances). (have to prove that had she done what she was supposed to do. Reason for treating criminal and civil clients differently w/regard to attorney malpractice is that it might be harder to find lawyers willing to act as criminal defense counsel if the law permitted more suits against criminal defense attorneys by their clients who have been convicted.1. Field should have been obliged to refer the tax case to a specialist under rule 1. that rule does not protect a lawyer's decision not to interview a potentially material witness. Law Governing Lawyers. That is a violation of rule 1. Essential elements of a cause of action for professional negligence are: 1) the employment of the attorney or other basis for imposing a duty. Field should not be liable to the criminal defendant whose defense she handled badly: a. § 51: Duty of Care to Certain Nonclients.we know the lawyer fell below the ordinary skill and knowledge Proximate cause and damage d. Liability may be found in four situations: b. 3. If she was going to take on the tax case. e. Liability for professional malpractice to persons other than clients: a. 2) the failure of the attorney to exercise ordinary skill and knowledge.characterized as 1) a tort committed by the lawyer against the client. therefore recommending an inadequate settlement can sometimes constitute malpractice. 5. or if the lawyer fails to tell the prospective client that the statute of . The Standard of Care and Conduct in a Malpractice Case 1. However. Also see comment 2: A lawyer can provide adequate representation in a wholly novel field through necessary study. 2) a breach of the contract the client made for the lawyer's services. Should Field be liable for not referring the tax case to an expert in tax law who could have ensured that the trusts would not be subject to taxes? 3. 2. The majority rule is that one of the elements of a suit for lawyer malpractice is that a convicted criminal defendant must prove himself actually innocent of the charges against him. 4. Field committed malpractice by recommending the inadequate settlement to the victim of medical malpractice b/c she made the recommendation without exercising the diligence that was necessary for her to discover that the victim was entitled to much more damages. 1) to a prospective client for revealing confidential information communicated to the lawyer. a. Law Governing Lawyers. Restatement 3d. and 3) that such negligence was the proximate cause of damage to the plaintiff. or 3) a breach of fiduciary duties that the lawyer owes to the client. the client would have gotten more money/ the client must be aware of this at the time) . Restatement 3d. she should have brought herself up to speed on that area of the law. Should Field be liable for not interviewing important witness who could have verified that client had valid claim for higher settlement? 2. There is no malpractice liability for an honest exercise of professional judgment such as whether to call a particular person as a witness. Standards upon which lawyers should be judged in malpractice cases: a. Should Field be liable for her criminal client's sentence to imprisonment? A.1. Issues 1. b. § 52(1): a lawyer who owes a duty of care must exercise the competence and diligence normally exercised by lawyers in similar circumstances. Clients tend to follow their lawyers' advice and do not have independent bases on which to evaluate a settlement.

a. Expert testimony not necessary if issue simple enough or lack of skill obvious enough as to be w/in range of ordinary experience of lay people. How trier of fact should know what skill and knowledge a lawyer would ordinarily employ in these circumstances: a. C. 3. b. f.8(h)(1). the court will excuse the client from paying all or part of the lawyer's fee even if the client can show no actual damages (remedy called forfeiture of fees). most courts allow a violation of the rules in as some evidence of a lawyer's professional duties. Rules have disclaimer (page 9. due to lawyer's negligence. Adding clause to standard retainer agreement pursuant to which the client waives any malpractice claims against attorney for purpose of reducing malpractice liability: a.limitations on his claim will soon run out. 2) to beneficiaries named in a client's will if. Proving a Malpractice Case 1. The rules of professional conduct should not be treated as per se rules with regard to negligence or malpractice. Under rule 1.g. suit-within-a-suit: traditional requirement of proof of what a non-negligent lawyer would have obtained for the client if that lawyer had represented the client instead c. Plaintiff must ordinarily present expert testimony a/b the duty of care in a suit for professional malpractice in both jury and bench trials b/c must be on the record and not left to subjective standard of the judge. Malpractice Remedies. Range of possible remedies is substantial depending on injury. not reading document drafted by lawyer before signing b/c lawyer represents to you what is in the document). and that they are not designed to be a basis for civil liability. Advance Waivers of a Lawyer's Malpractice 1. will does not carry out testator's intention. b. With regard to causation. but may be considered as an aid in understanding and applying applicable standard of care or conduct). Restatement 3d. Courts generally do not allow attorney to claim client was contributorily negligent when attorney's negligence harms plaintiff (e. we mean that they are one more piece of information to consider with regard to whether the preponderance of the evidence standard has been met. However. and may be held contributorily negligent. c. then the lawyer was not even the but-for cause. B. and e. 2. d. If client would have lost anyway. however. d. a lawyer is prohibited from doing this unless the . Whether state's rules of professional conduct be determinative of the standards of care and conduct: b. § 52 (proof of a violation of a rule or statute regulating conduct of lawyers does not give rise to implied cause of action for professional negligence or breach of fiduciary duty. Remedies that should be available to redress Field's professional malpractice: a. Sophisticated clients with experience in the type of transaction are treated differently. Sometimes in cases of breach of fiduciary duty. When we say they should be considered by the trier of fact. and the disclaimer does acknowledge that a lawyer's violation may be evidence of a breach of the applicable standard of conduct. 3) to a non-client to whom the lawyer expressly assumes an obligation to investigate facts and accurately report them to the non-client (example: insurance company). 4) a lwyer who aides a trustee-like fiduciary to breach an obligation to the intended beneficiary of the fiduciary's duty may be liable to that beneficiary. 3. 2. paragraph 20) that says the rules should not be treated as the standard of care for lawyers. Lawyers can be subject to punitive damages for malpractice. client should not be able to recover damages if the client would have lost the case no matter what the lawyer had done.

S. Sure. Supreme Court): to justify an issuance of a write of habeas corpus. Whether a lawyer has the duty to tell a client about the lawyer's own malpractice in the client's case: a. it is ok for a lawyer to require arbitration of all claims against the lawyer as long as client receives proper notice of scope and effect of the agreement and if the law of the jurisdiction allow such agreements to be enforceable. Note that rule 1.cheaper and quicker…less time 4. D. Rule on ineffective assistance of council from Strickland (U. Most courts require lawyer to give client notice in writing that client must obtain independent representation with regard to whether they should/will sue lawyer for malpractice. It would be very rare. and a lawyer has a fiduciary duty to protect his/her client. Under Restatement 3d. 3. 5. – give them the amount of time to find a lawyer and if they don’t find one then you become their lawyer again d. lawyer has a duty to either bring him/herself up to speed on that area of the law. however. d. Disqualification of the lawyer from participation in the case b. and/or fined. comment 14. Representing client with zeal required by 1. d. if they are formed as a LLC or LLP. Whether law firms should be permitted to shield each of the lawyers from vicarious liability for malpractice of other lawyers in the firm: a. Under rule 1.8. b.8(h)(1) does not address vicarious liability. a lawyer cannot settle a claim for liability w/an unrepresented or former client unless that person is advised in writing of the desirability of seeking and is given reasonable opportunity to seek advice of independent legal counsel in connection w/that lawyer's liability to the client. 2.client is represented separately at the time he/she makes the agreement. but also that the ineffectiveness caused actual prejudice. but on the other hand. It is also ok under rule 1. Other Significant Consequences of Negligence or Misconduct by Lawyers 1. he cannot engage in dishonest or fraudulent conduct. 5. and no other model rule requires a lawyer to be liable for his or her partner's malpractice. or else refer the client to someone with expertise in that area. Court may void transactions made in violation of the lawyer's professional obligations . Other kinds of remedies and sanctions for improper conduct: a. Lawyers can be criminally charged as accomplices of their clients: B. It is ineffective assistance of council to fail to tell a criminal client about a plea offer from the prosecutor and to fail to give client the right to decide whether to accept it. On the one hand. client may be "assuming the risk" b/c the attorney is being honest and forthcoming about her inexperience in that area of law. for any attorney to advise a client to waive their malpractice rights. Although Field cannot successfully be sued for malpractice.1. Lawyers can be sanctioned by the federal Fair Debt Collection Act for engaging in abusive and unfair practices for sending threatening letters/messages to a debtor of the lawyer's client or failure to pay money owed to the lawyer's client. c.. While an attorney must do the best job he can for his client. as long as you advise the client exactly of what arbitration is and what its effects are. § 54. for missing the first date in the criminal case Field might expect to be held in contempt by the court. Whether the criminal defendant should be able to cite Field's poor representation as a basis of reversing the conviction: a.3 is not an excuse for breaking the law to help your client. not endanger the client. Under rule 1.8(h)(2). the client's interests are still at risk. 4. b. court must find that lawyer's acts or omissions were not only outside the wide range of professionally competent assistance.

a lawyer assumes duties not easily shed. . . You do the conflicts check.No Rule 1.18 paragraph c There is not significantly harmful information exchanged between The client and the lawyer so there is no prohibition) .what does this suggest about how a lawyer should proceed (should Initially inquire the last amount of information.Variation one question 4 Cannell tells you(i) the name of the broker and (ii) his interest in suing.18 (d)(2)(i) you must be screened (must prevent the lawyer who spoke with cannell . The Lawyer's Duties to a Prospective Client . Separate the issues into those regarding informed consent of the client and those which require a more absolute and general prohibition. A. (ii) could have stopped him but (iii) wanted to get rich.e.Variation two: Before you have a conflicts check.Can your partner represent the broker in a subsequent lawsuit by Cannell to recover his investment losses? Yes (1. to do a conflicts Check before you go forward) . You do a conflicts check and learn that one of your partners represents the broker and inform Cannell you can't proceed.18 Paragraph allows Because there is not significant harmful information) . Problem 4 Undertaking to Represent a Client Page 84 Once representation begins. Cannell blurts out that he (i) knew what the broker was doing. learn that your partner represents the broker and inform Cannell you can't proceed.III.Can your partner represent the broker in a subsequent lawsuit by Cannell to recover his investment losses? . the retainer) like any other service contract.Is Cannell a "prospective client"? Yes . Some elements of the relationship are subject of a contract b/t lawyer and client (i. Fundamentals of the Lawyer-Client Relationship The lawyer-client relationship is based on law.what must happen? . with the threat of the statute of limitations hanging over the client's head to force him into a decision? Whether it was ethical for you to accept the client's broker's offer of settlement without first discussing it with your client? A.can you assist your partner in this lawsuit? Yes (1. Issues Whether your client's interest in you not showing any "mercy" to the client's broker is an actual duty that you must uphold? Whether it was ethical for you to refuse to bring suit against the client's broker in any way but your own way. and other obligations are inherent in the status of a lawyer as a fiduciary and are not entirely subject to amendment by lawyer and client.

You do the conflicts check.either _provide notice to Cannell that a screen has been established or not share any income from the fee income generated by representation of the broker. Variation 4: Cannell blurts out the same things and.18(d)(1) with the consent of Cannell which is highly unlikely can someone represent the Broker. Until Model Rule 1. and for the purposes of rule 1.18(d)(2) the alwyer did not take reasonable measures to avoid exposure to more significantly harmful information. has been clear on the following: (page 86) 1. but no one in the firm can either. learn that your partner represents the broker and tell Cannell you can't proceed. • Can your partner represent the broker in a subsequent lawsuit by Cannell to recover his investment losses? • What must happen? • Only: No since the lawyer didnt stop. . The Law Governing Lawyers. Communications from a prospective client are legally privileged and protected by the lawyer’s duty of confidentiality as if they were communications from an actual client. learn that your partner represents the broker and tell Cannell you can't proceed. the lawyer must protect those items as if they were documents or property of a client.only yes: Consent Mr. and in variation 3 we were talking about the same matter. • Can your partner represent the broker in a subsequent lawsuit by Cannell to recover for his injuries in an automobile accident with the broker? • Yes: 1. 2. You do the conflicts check. • Why the different between variation 4 and variation 3? • The matter in variation 4 is not substantially related.What must happen? .18 analysis that makes all the difference. If the lawyer takes possession of documents or other property of a prospective client.From having access to the brokers file. and . under rule 1. again. and the Lawyers in the firm and the original lawyer who Spoke with Cannell from speaking about the case) .Variation 3: Cannell blurts out the same things but this time you ask detailed follow-up questions and elicit detailed answers about each of the admissions. you ask detailed follow up questions and elicit detailed ansers about each of the admissions.18 was adopted. than was reasonably necessary to see if he could take the case. Since the lawyer illicited more harmful information he prevents himself from representing the broker. • Only under 1.Can you assist your partner in this lawsuit? . Cannell must give his Consent .18(c) allows becasue the information has to be material to the lawsuit at hand and if nothing which was learned earlier affects the new case then it can proceed • Can you assist your partner in this lawsuit? • Yes: the two matters are not substantially related (rule 1.18(c). and asked detailed questions and illicited harmful information.18(d)(1) with consent of Cannell which is unlikely • Can you assist your partner in this lawsuit? • What must happen? • Only under 1.

CONFIDENTIALITY SAFEGUARDING .9 and 1. comment 1 to provide advice to Cannell w/o usual conflicts review.10. the firm would not be able to represent Mr.18: duty of . and 3) if the lawyer gives advice to a prospective client with regard to the validity of a prospective client's claim. 3. § 15: 1) Communications from a prospective client are legally privileged and protected by the lawyer's duty of confidentiality as if they were communications from an actual client. You are permitted under rule 6.1 with regard to advice on the merits of the prospective client's claim. Rule 1.8 . the fact that a lawyer has learned confidential information from an actual client typically means that neither the lawyer nor anyone else in the lawyer's firm may oppose that client in the same or a substantially related matter. If you found out later that your firm represents the broker. 2. b/c it is not feasible for a lawyer to systematically screen for conflicts of interest in that setting.(h)(2) – settlement of RULE 1.5. Cannell at all. Cannell is an actual client. Under 1. Cannell was not a stranger before you agreed to represent him: a. Mr. "Screened" means isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obliged to protect. just wanted basic advice on how to file the claim himself. 2) if the lawyer takes possession of documents or other property of a prospective client. Under rules 1. b. If the lawyer gives advice to a prospective client. that lawyer may be responsible for malpractice if that advice is wrong. a lawyer-client relationship has formed.PROVIDING GOOD ADVICE 1.18. a. Restatement 3d. Under comment 9. Under comment 8 to rule 1. . b. b/c he is only a prospective client and his interests conflict with an actual client's. the lawyer may be responsible to the prospective client for malpractice if that advice is wrong. a lawyer is subject to the competency requirements of rule 1. c.3.18: a person who discusses w/a lawyer the possibility of forming a client-lawyer relationship w/respect to a matter is a prospective comment.7.5. the lawyer must protect those items as if they were documents or property of a client. Legally. Under rule 1. because under comment 1 to rule 6. e. Mr. d.18(d)(2)(i). your firm is not disqualified from continuing that representation b/c you had no way of knowing when you gave Cannell the advice that the person Cannell wants to sue had retained your firm as his defense council. Rule 1. a.18(c). notice that the lawyer has been screened must be given to the prospective client as soon after the need for screening becomes apparent as is practicable. needs individual representation .(h)(1) – more stringent. Under rule 1. who did not want to hire. the lawyer must be timely screened from participation in the case of the actual client whose interests are adverse to the prospective client the lawyer interviewed. The lawyer's knowledge of a conflict becomes disqualifying when the lawyer undertakes to represent the prospective client he met at the legal aid place. a lawyer cannot represent a client with interests materially adverse to those of a prospective client in the same/substantially related matter if the lawyer received information from the prospective client that could be harmful to that person in the matter. If in legal services setting and met Cannell.

2. 4. or b) the lawyer fails to manifest lack of consent. Whether online chat rooms or the internet are "safe" places to try to get clients: a. including representation by appointment.2 b. 3. or whether it is frivolous and merely aimed at revenge against the adversary (i. According to Restatement 3d. Consent required for limits on the scope of representation: a. in this case). but he should not lightly decline proffered employment. social or moral views or activities. closest is w/regard to court appointments to represent indigent clients. a lawyer cannot file a claim on behalf of a client that is frivolous and not in good faith. does not constitute an endorsement of the client's political.16 allows a lawyer to withdrawl from the case if he is opposed to representing the client on basis of disagreement. When a lawyer takes on a case.4. A lawyer who fails to get such consent may later be accused of malpractice. the broker.yes case is good -no he is angry. no men). Whether you should give weight to your client's anger toward his adversary in deciding whether to take a case: under rule 3.1. economic. Using a web site to invite communications with the firm does not constitute an invitation to burden the firm with confidential information from a prospective client. B. the firm must treat the information from the prospective client as confidential and not use it to advantage the firm's client who may be in dispute with the prospective client.1. Note rule 1. Lawyers bear the risk of ambiguity about whether the lawyer-client relation has been formed. Lawyers must inform themselves of the facts of their clients' cases and the applicable law and determine whether they can made good faith arguments in support of their . Documenting the Decision to Undertake a Representation 1. b. the lawyer must consider whether the action is meritorious. A lawyer's absolute right to decline a case for any or no reason ended with the Massachusetts Commission Against Discrimination's decision Stropnicky in 1997 (firm would represent only women. 1. and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services. (Model Code of PR) 6. 3. 2. and it is the lawyer's duty to bring these actions as well or advise the client that he may get other counsel to do so. No such rule in the Model Rules. § 14. Chat room conversations between lawyers and prospective clients are ok as long as the clients know from the beginning that the lawyer is only giving legal information. The Decision to Represent a Client 1. C. and not legal advice.e. the client may not know the range of remedies that is possible. Under rule 3. -take him on as your client. b. Whether you had an obligation to accept Cannell as your client: a. Whether there should be legal limits on the gourds a lawyer may rely upon to reject a case: a. However.2(b) states that a lawyer's representation of a client. A lawyer is not obligated to act as advocate for every person who wishes to become his client. a prospective client becomes an actual client when: a person manifests to a lawyer the person's intent that the lawyer provide legal services for that person and either: a) the lawyer manifests to the person consent to do so.

3) scope of representation (what the lawyer agrees to do or not do) under rules 1.5(b) 4) conflicts of interest lawyer may have and time w/in which client must give informed consent if willing to waive conflicts. Comment 2 makes clear that in some situations you might have to consult with your client prior to taking action. technical. most likely the best way to handle it is to put in writing that you wanted to make the argument and that the client forbade it. Under comment 7. and tells you he does not want you to make the argument that he is unsophisticated in stock transactions. If you want to make the argument that your client has a lack of sophistication when it comes to these kind of things (in this case.2(a). 4. you may do so if offered a settlement that meets that criteria without consulting the client again. However. Client has the authority to decide whether or not to settle a civil case under rule 1. (Think of 1. do you have to get his permission first? Under rule 1. Comment 2.2 and 1. 5) departures from usual assumptions a/b handling confidential information. skill. thoroughness. a client has the exclusive authority to decide what plea to enter Matters to address in any engagement letter with client: a. so you should get your client's consent (sit down with him and explain to him that the argument is part of your strategy). Engagement letter is prepared by lawyer and counter-signed by client. 2) the fee for representation and outline of expenses for which client will be responsible (when bills will be rendered. under rule 1. should send client a letter to that effect so can document that fact and avoid claims later by client that client reasonably believed lawyer was working on client's case. and tactical matters are left to the lawyer to determine. a lawyer may limit the scope of representation of a client if the client gives informed consent. and then proceed the best you can w/o it.2. normally. under (a)(2). Under rule 1. Comment [blank] states that if the client gives you permission to settle for a certain amount. Under rule 1.2(c) and 1. b. If lawyer decides not represent a client. Decision-making During Representation--Issues the Lawyer is To Decide and Issues Reserved to the Client 1. reasonably consult w/the client about the means by which the client's objectives are to be accomplished. and preparation to be considered competent under 1. a lawyer must. and it does not seem to fall w/in the confidential information relating to the representation that rule 1. the argument may embarrass the client.4 as working together). and 6) undertakings the client will be asked to make in connection w/the representation (such as candor). which is the communication rule. the exigency of the situation may require the lawyer to act w/o prior consultation.clients' positions. and is a factor to be considered when determining whether the lawyer has the legal knowledge. whether interest will be charged). Under rule 1. stocks).2(a). 3.6 seeks to protect. you are impliedly authorized to make this argument. that you believe the case is weaker without that argument. Under rule 1. 4. A claim is not frivolous even though the lawyer believes that the client's position ultimately will not prevail.2(c). lawyer may have liability to third persons for unauthorized conduct on behalf of a client.2(a). comment 2. Under Restatement 3d. D. § 30(3). If the client disagrees. legal. You can w/draw if you have a fundamental disagreement (or the client may fire you). However. you cannot make the argument. . 2. when they must be paid.4.6.1. the limitation must be reasonable under the circumstances. and that at others. to take the case. containing: 1) who is or is not the client.

diligent 5. In a lawyer's role as an advisor. the expenses charged by a lawyer must be made part of the fee agreement. Who controls the litigation: c.5 to create an hourly billing agreement that was not reduced to writing. communicate 6. A lawyer cannot make decisions for his or her clients. § 23 identifies only two matters that are beyond the reach of client control: (1) the decision of the lawyer to refuse to act in a way that the lawyer reasonably believes to be unlawful. it would not be a violation of 1. If the lawyer knowingly accepts a direction the client does not have the legal authority to give. Whether a lawyer's fee must be in writing: a. Remember that there is a fine line between advising and deciding. it is ok for a client to choose the death penalty over life in prison and the lawyer will be absolved of liability if the client later changes his mind. Thus. but the client must make the ultimate decision.5(a). duty of loyalty/conflicts A. Bottom line: A client's authority to direct a lawyer depends in part on restrictions the law imposes on the client's conduct.5(b) only states that it is preferable to have any other kind of retainer agreement in writing. Restatement 3d. the lawyer may be liable to the party to whom the client owed duties. Just make sure that you put your advice in writing and that the client signs that they are making their decision against your advice. contingent fee agreements must be in writing and signed by the client. like FL. Under rule 1. 5. advocate’s duty 8. limit the fee a lawyer can collect in contingency fee cases) Does the client have the option to pay by the hour instead of on a contingent fee basis? MUST BE REASONABLE! Duties of Attorney 1. A lawyer shall not charge or collect an unreasonable fee or an unreasonable amount . Novak would not be wise to rely on an oral argument to be paid an hourly fee. because it would be hard to prove the terms of the agreement if a dispute arose. Under rule 1. and (2) the lawyer's decision to take actions that the lawyer reasonably believes to be required by law or an order of a tribunal. competence 4. confidentiality 2. 2. a lawyer can certainly give the client his/her opinion about what to do. Thus. Problem 5 Billing for Legal Services Page 99 Issues When must a fee agreement be reached? What limit does the law impose on the size of a lawyer's fee? (Some states.in a criminal case.5(c). especially if the lawyer advised against the death penalty to begin with. The Fee Agreement Between Lawyer and Client 1. duty as an advisor 3. c. reasonable fee 7. B. Rule 1.

It depends on the understanding of a reasonable client under the circumstances.5(a). especially where the client is sophisticated and the law firm has performed properly. the firm must bill only what it actually paid for the contract lawyer's services. if the lawyer really is better than most. the amount that the lawyer charges the client has to be the amount actually incurred by the lawyer. 4. Most importantly. A client can terminate the relationship at any time. Whether a lawyer may increase her fees during the course of representation: a. non-refundable retainers are ok. b. the client has to agree to pay expenses in advance. 3. a lawyer is supposed to act as the client's fiduciary. (Remember that true contingency fees are only for the fee. On the other hand. Under rule 1. If the contract lawyer is billed as just another lawyer whose work makes up the fee for the matter. Plus. you may be able to collect from the client on a quantum meruit theory. b. the firm may bill any reasonable rate for the services just as it does for one of its associates. Thus. considering that by his own admission most lawyers charge only 33%. It is likewise unreasonable for the lawyer to charge over $1000 for a first class airline ticket when the coach ticket probably costs less than $250.for expenses.5. Novak's proposed fee of 44% seems very unreasonable.10 at the grocery store. a $1 per page of photocopying is not reasonable when it costs $0. comment 1. To determine if a fee is reasonable look at the factors in 1. d. if the form treats work by a contract attorney as an expense item (over and above its fee).5. 1. B. A lawyer may be able to justify the non-refundable retainer under 1. and that amount has to be reasonable. he just might have to forfeit the retainer fee. With regard to whether the expense/charge is reasonable. Restatement 3d. the lawyer forwent making money from another client and should therefore be able to keep the retainer as an opportunity cost. . Whether a lawyer may charge a non-refundable retainer: c. 2. Make sure that you keep track of the amount you work on a contingency fee case. perhaps he will be able to get the client a larger recovery and then his 44% contingent fee may not be so exorbitant. Some courts say it's ok. but the client still has to pay for all of the expenses). The Requirement That a Lawyer Charge Only a "Reasonable" Fee 1. Some courts say that a lawyer is entitled to a fee only after doing the work to earn it. because if the client fires you. usually in family matters: if its reasonable and it must be in writing The money should be put into his account if it’s a true refundable retainer.5(a)(2): consider precluding other employment cmt 4: may require advance payment but must return unearned portion In FL you can. When the fee agreement is proposed by the client. § 18(1)(a). and that "engagement retainers" maybe justified if the lawyer turns down other work or otherwise benefits the client. ABA Formal Opinion: absent a separate agreement. A lawyer and client may revise their agreement as to scope of work and fees after the representation has begun. 1. and limitations on the freedom to contract with the client helps to ensure that the lawyer will not charge the client for unreasonable expenses (such as the fact that the lawyer does not have an assistant and must do all the clerical work on the case himself). as long as the lawyer gives the client notice. One reason for limiting the freedom of contract between a lawyer and client is that the lawyer is to avoid a negative image of lawyers in the public eye. (Non-refundable retainers are often charged in the area of family law to deter litigants from lawyer-shopping). or if the lawyer is able to show that by taking this client's case.5(a)(1) through (8) are factors to consider. but at that point the lawyer assumes a greater burden of showing the agreement to be fair and reasonable.

if the lawyer fully discloses to the client that the case may be worth more. the judge will sometimes reduce it 7.3.g. C. charge. The size of the verdict is determined by the nature and extent of the plaintiff's injury and resulting damages. with getting the divorce decree). b. sometimes if the fee ends up being excessive.5(d)(1): A lawyer shall not enter into an arrangement for. The lawyer is still subject to 1. Cases in which a contingent fee should not be proper: a. it seemed to say that a lawyer does not have to offer the client an alternative between a contingent fee and a non-contingent fee. On the flip side. as the lawyer is unlikely to have done more than 15 hours of work.1. Rule 1. The Supreme Court has also held that it is illegal to agree to maximum fees. This is because of the major policy concerns involved (see comment 6) (e. may be breaching his or her fiduciary obligations to the client. and that with trial awards. Whether the lawyer may properly consider the client's ability to pay in setting a "reasonable" fee: b. 6. It is not proper to raise your rates just b/c the client is wealthy. Prohibition of contingent fees in other kinds of cases: . A lawyer who insisted on contingent fees. 4. and can always leave and find a lawyer who charges an hourly fee. that would be ok. On the other hand. however. or collect a contingent fee for representing a defendant in a criminal case. if any relationship between the efforts of the lawyer and the size of the verdict. which may include reconciling the marriage. there is little. 3.2(a) the lawyer would have to abide by the clients decision on settlement offers. but that it may take longer to get more and the client then agrees to settle. Underlying public policy is to protect and promote marriage. encouraging couples to reconcile). The lawyer must.c. or collect any fee in a domestic relations matter. Reasonableness is accessed at the time the K is made.e. However.1 and 1. not by the brilliance of the lawyer. b/c he knows that the case is worth more than the settlement offer.5. comment 5: "it is proper to define the extent of services in light of client's ability to pay. the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support. Rule 1.3 (competency and diligence). The Supreme Court has held that it is a violation of antitrust law for a local bar association to adopt a schedule of fees that lawyers would be required to charge for particular services. The rationale that a lawyer should be entitled to collect his/her third in all cases that win to make up for the ones that lose is also unethical. comment 5. a. Trial judges are not permitted to raise sua sponte whether an excessive fee is being charged by counsel. because he is putting his own financial well-being before the client's. Rule 1. When the ABA changed rule 1. 5. Whether a lawyer may charge a contingent fee based on a settlement award if the case is settled before the lawyer even begins work: fiduciary problem b/c lawyer is putting his own financial interests before the client's.5(d)(2): A lawyer shall not enter into an arrangement for. however. or property settlement in lieu thereof. and if lawyers take contingency fees in domestic relations cases they will be concerned with getting their fees (i. always put the client's needs before his own needs." This comment should be read in light of rule 1. A purely advisory fee schedule issued to provide guidelines would be ok.5. even if they are not in their client's best interest. Contingency fees in criminal cases might deter attorneys from taking many cases. Some argue that collecting contingent fees in settlement cases is unethical. (diligence). Rule 1. b. the client does have a choice. Special Rules Applicable to Contingent Fees 1. but it seems to be ok to charge a poor client less than your normal fee. charge. not with protecting the clients' best interests. 2. the lawyer could take the case for nothing (pro bono) b/c the client is indigent. b/c one client cannot be properly surcharged to compensate for deficiencies in another client's case.

so if something takes you half an hour. 2.5(b) Scope of representation and basis of rate shall be communicated to the client. doing more research.5 Attorney’s fees and expenses must be reasonable 1.5(e) • Fee split in relation to work performed by each lawyer • Proportionate to services rendered . before or with a reasonable time after representation. but are a guideline Lawyers may be reimburse for copies etc but it must be reasonable Rule 1.5© must be in writing and other requirements · Desirable to furnish client with memorandum explaining fees (cmt 2) · If a regularly represented client. You are only supposed to bill what you actually do. etc.5(a)(1)-(8) factors are not exclusive factors. b. even if what you did took you five hours the very first time you did it. signed by a client · Fully explained. including expenses · Upon conclusion of matter. 1. lawyer must provide client w. The Alternative of the Hourly-Rate Fee 1. contingent on securing divorce or amount of alimony and support or property settlement · Criminal cases. written statement stating outcome.5(e) A division of a fee between lawyers who are not in the same firm may be made: • Encourages lawyers to refer clients to more competent lawyers • Tax lawyer. ordinarily fees are understood if under same rate and basis (cmt 2) 1. Still subject to some abuses. Also. than would be done in a contingent fee case. going to more hearings. you cannot bill two clients for the same hour (i.e. you should only bill half an hour.5 (d) Contingent fees are prohibited in: · Domestic relations matters. Preferably in writing. go to 1. such as filing as many motions as possible. Gives a statement of client rights. Collateral effects on the lawyers of requiring them to bill a certain amount of hours? Florida Bar Rules Contingency fee agreements are governed by 4-1. and remittance if recovery and method of determination. · Must be reasonable · Must be in writing. when defending a criminal defendant 1. with client who suffers personal injury. fees. can refer client to plaintiff's lawyer and still receive "a piece of the action" • Encourages lawyers to associate with more experiences lawyers • Two scenarios Envisioned in Rule 1.5. one hour is one hour. · For cont.D. Hourly billing rates: a. Slide show RULE 1. not two!).5 (c) Contingency Fees Lawyer receieves a fee only if matter is resolved in client’s favor. Most often expressed as a percentage of the recovery.

trial= 60% • Client agrees to arrangement 1. motions =40% • Lawyer B= Mediation.5(b) says there must be written notice to a client but it is not expressly prohibited. o a person can increase the hourly rate during the course of representation but rule 1. 114) Fixed Fees o 1.5(a)(7) is most helpful in figuring out what is appropriate and reasonable.0(b) • Total fee is reasonable • Scenario two: Disproportionate Division • Lawyers agree to divide fee not in proportion to services rendered • Lawyer A= 100% of the work =75% of the fee • Lawyer B= 0% of the work =25% of the fee • Each lawyer assumes"joint responsibility" for representation • Meaning=joint liability for any malpractice and ethical violations • Lawyers treated as if they were partners with duty to oversee one another ad obligations to accept responsibility if something goes wrong • Better ensures that referring lawyer will make a good referral • Client agrees to the arrangement • Participation of each lawyer • Share that each lawyer will receive • Client's agreement "confirmed by writing" • Document signed by client OR • Document prepared by lawyer and forwarded to client memorializing clients prior oral consent • Total fee is reasonable • Reminds working lawyer not to increase contingency fee to offset amount paid to non-working lawyer • Types of fee arrangements Hourly-may only bill for actual hours o ABA Formal Opinion 93-379 (pg.5(e)(2) • Participation of each lawyer • Share that will be received by each lawyer • Client's agreement must be "confirmed in writing" • Document signed by client OR • Document prepared by lawyer and forwarded to client memorializing client's prior oral agreement RPC 1. discovery.50% of work = 50% of fee • Fee split not in relation to work performed by each lawyer • Disproportionate to services rendered • Lawyer A = 100% or work = 75% of fee • Lawyer B =0% or work = 25% of fee • ("pure referral fees are permissable") • Scenario one: Proportinate Division • Lawyers agree to divide fee in proportion to services they will render • Lawyer A = pleadings. .· · • Lawyer A= 50% of work = 50% of fee • Lawyer B . trial prep.5(b) says it is preferred to have hourly rates memorialized in writing but is not required o for an hourly rate Rule 1.

Undisputed portion must be promptly distributed (1. b. the trustworthy management of a client's property is one of the most fundamental duties of a lawyer.000 to client · 25. .15(e). Problem 6 Handling Client Property and Withdrawing from Representation Page 117 Issues What is the lawyer's duty to protect and account for a client's property? How should lawyers deal with clients who fail to pay the lawyer's fee? What possible rights does a lawyer have to a lien on client property and papers? A.15(e) and cmt 3&4) ****Distribution of disputed amounts · 100. o If no recovery is garnered then the attorney receives no compensation. Why lawyers must pay attention to their handling of client property: a.15: Yes. it is b/c proof of a violation of accounting rules is typically much more straightforward than proof of failing to be forthcoming in disclosure of information.· · Contingent fees o Fee earned only when a particular outcome/recovery is achieved normally it is a percentage. in part b/c it constitutes the serious offense of stealing from a client. A lawyer has a fiduciary relationship with a client. o must be memorialized in writing Refundable v. the lawyer must promptly distribute all portions of the property as to which the interests are not in dispute. lawyer must promptly notify the client or third person and deliver the funds and provide a full accounting 1. Violation of fiduciary standards w/respect to client property is a definite way for a lawyer to be disbarred. She only has an interest in the punitive damages award.000 (to lawyer)+ 60. non-refundable retainers o Lawyers may require advance payment of a fee.000 (to client)+ 15. Jackson must at least give her client the ring. thus.15(d) · If there is a disputed portion must be kept in trust account.000 · Not disputed= 85% · 25% to lawyer (client agrees)= 25. but must return any unearned portion (cmt 4) · Trust accounts 1.000 recovery for pun. Handling Client Property 1. even where property in which both the lawyer and the client have an interest is in dispute. b/c Jackson has no interest in the ring.15(d) Safekeeping Property.000 · 85-25=60%= 60.disputed amounts · Upon receiving funds that client or third party has an interest. 2. Damages · Fee K.Lawyers get 40% · Client wants to pay lawyer 25% · In dispute 40-25= 15%= 15.15 (a) 1.000 C.000 (to trust account)= 100. under 1. Thus. In another part. Whether depositing a client's settlement check into the lawyer's trust account is a violation of Rule 1.

15(d) and (a) Under 1.15(d) by keeping the entire $100. (See (a) above). A lawyer may sign the lawyer's own name on a settlement check made out to the lawyer. However.. if client had given the ring to Jackson to safeguard it. W/o such authority. the $60. A lawyer who pays settlement proceeds over to the client in knowing disregard of a creditor’s lie may become directly liable to the lien holder & basically required to pay twice.15(e). Lee Bailey] 1. $15. and the attorney is entitled to at least $25. $25. Thus.000 should stay in the trust account.e. and only the $15. the amount of the fee that remains in dispute must be kept separate by the lawyer.OK to deposit in client's trust account. 7. then the lawyer should dispurse the entitled amount to the client and the attorney’s fees to herself.3. Traditionally there can be no audit unless there is probable cause to believe the accounts have not been properly maintained. d. 5. and then again when you return money to the account.000 should stay in the trust account. Must protect client property while in lawyer's possession. ci. cii. Under 1.000). a lawyer can only deposit the lawyer's own funds in a client trust account to pay bank service charges on that account and only in the amount necessary for that purpose. a lawyer must promptly deliver to the client any funds or other property that the client is entitled to receive. but the lawyer may sign a client's name on a settlement check only if she has the actual authority to do so. Not proper for Jackson to wear the client's ring while it was in her possession. and upon the client's request shall render a full accounting regarding such property. 6.15(e).000 now. Restatement third section 44 comment(e) says Jackson would have to take reasonable measures for safe keeping of objects such as keeping the ring in a safe deposit box. Under 1.000 in the trust account is actually a commingling of attorney and client money. In 1992 ABA delegates voted and approved proposals calling for random audits however states have yet to adopt these rules. . Rule 1. b/c the client only wants to give the attorney $25K. By wearing the ring jackson violates 1.000 under the agreement (and the difference is $15. comment e. There are two violations of rule 1. b. attorney can only withdrawal money when a check clears and there are actual funds in the account. Whether Jackson was required to give the client the full amount that the client thought was due: a. The client is entitled to the $60. Jackson is violating 1. See Restatement 3d.15(a). c.000 now.000 that is not in dispute should be distributed to the client. § 44. that Jackson does not need to create a million different accounts for all her clients. 4. and the attorney believes she should get $40. one cannot take money out of an account (i. the attorney must disburse what is not in dispute! Plus. So Jackson would have to keep her portion of the award in a different account.15(a) b. which is against the rules! [Think F. however. signing the client's name on a check may also constitute the crime of conversion. and advance) even if a check has yet to clear. Note. 1.15(b). a.000 in the trust account. a lawyer shall hold property of clients that is in a lawyer's possession in connection w/a representation separate from the lawyer's own property.15(a) a comingling of accounts first when you take money out of the account. she can keep all client money in one account as long as she records each sum as belonging to a certain client. Thus. The bar will subject a lawyer to discipline for the dishonesty of the lawyer's office staff or associated lawyers under rule 5.000 should go to Jackson.15(d) states that except as permitted by agreement with the client.when Jackson takes the check to the bank attorney should deposit the check in the Client’s trust account. c. keeping the entire $100. She is not allowed to wear the ring! a.

1. 1. 3. Jackson cannot withdraw from representing the difficult client under (a). as long as the client pays for work the lawyer has done to that time. disbarment of the lawyer may follow. but 1. . 2. and can only withdraw under (b) if she complies with (b)(1) (no material effect on the interests of the client) or (b)(7) ("other good cause for w/drawal exists"). 4. a. d. In 1.16(b)(3). The later in the representation that the lawyer w/draws. [Also. Withdrawal When the Client Becomes Too Difficult 1.16(b)(4) whenever client insists on taking action w/which lawyer has fundamental disagreement: yes a lawyer may withdrawal if there is fundamental disagreement however that standard is a rather high standard. a lawyer must withdraw if (1) continuing to represent the client would violate another model rule. the more likely the client will be adversely affected. or a client who may be difficult to work with. If the matter for which the lawyer is trying to withdrawal from is already pending before a tribunal the rules of that tribunal will ordinarily require the tribunals permission to withdrawal under rule 1.15(a)(1) where continued representation will violate another rule. Where the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client. but most dont do it because a client is likely to countersue for legal malpractice.16(b)(2)-(6) requires good cause from the lawyer but it doesnt matter if it adversely affects the client. Where the audit determines a lawyer has stolen from his/her own law firm and not a client. Rule 1. The client under 1. Ability of lawyer to terminate representation over client's objection: a.16(c) tells lawyers sometimes they may have good reason for withdrawal but must still obtain permission from the trial judge and if the trial judge says no then you must continue to represent the client.g.16(c). rule 1.C. What role courts should play in reviewing attempted withdrawal. or if (3) the lawyer is fired.2(a) has the authority to define the objectives of representation. B. a. or lawyer has fundamental disagreement) is a high standard. and the lawyer may only resign if the high standard is met. e. conflicts of interest. b.16(b)(5) allows a lawyer to withdrawal if the client fails substanitally to fulfill an obligation to the lawyer regarding the lawyer’s services after giving the client notice and provide a client an opportunity to cure the defect. b. Under rule 1. and cannot be used merely to escape a high maintenance client. if representation results in unreasonable financial burden. and a client may also resign at any point therefore the relationship is mutual in respect to withdrawal. a client may discharge the lawyer at any time and for any reason. b. (E. In this case. a. or situations involving uncorrected client fraud). It is not meant to excuse lawyers who simply do not like their clients. (duh)]. When a lawyer should be required to terminate a representation: a. Under rule 1. there is nothing in the RPC which prohibits a lawyer from suing a former client for unpaid fees. Whether lawyer should be permitted wo w/draw from a case that has become financially unprofitable for lawyer to pursue: a. b. Note (b)(4) (repugnant to the lawyer. c. Whether lawyer should be permitted to w/draw under 1. ONLY HAVE TO REVEAL INFORMATION ABOUT CLIENT THAT IS NECESSARY 5.16(a)(2) makes withdrawal mandatory. lawyer can w/draw.16(b)(6). Withdrawal is also required by rule 1. Imprudent conduct is a much lower standard than conduct to which a lawyer is in fundamental disagreement with.16(b)(1) authorizes a lawyer to w/draw from representation at any time for any reason if the w/drawal affects no material interests of the client adversely.16(b)(1) a lawyer may withdrawal for any cause as long as it doesnt adversely affect a client.

(b) court in Illinois said that a law firm charging a client 1% of its fee interest for late payment plus additional attorneys fees if the fee had to be collected in court was not allowed as it put the firm in a position of prosecuting its own client. but no results yet achieved.8(i) says that a lawyer may not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client. but without enthusiasm.8(h) but the attorney would still under 1. (California would allow it.4(b) need to advise his/her client of the benefits.8(h) forbids limiting the lawyer's liability for malpractice or settling a claim for malpractice without advising his client for the need of independent counsel. ABA's formal opinion 250 upheld suits against clients. however rule 1.. Limitations on a Lawyer's Efforts to Collect a Fee 1.6 comment 4. You can according to the ABA (ABA Formal opinion 338) charge interest and accept credit cards (and let the credit card company deal with not getting paid) or charge interest for late payments. Whether a lawyer should be bound by and obligation to preserve client confidence and secrets in establishing the elements of the lawyer's claim: yes most of the time. except that (a) the lawyer may acquire a lien authorized by law to secure the lawyer's fee. only if plaintiff ultimately wins the case) 7. ABA formal opinion said an arbitration clause does not violate 1. Whether a lawyers engagement letter can specify non-fee complaints must be submitted to arbitration as well: rule 1. he/she would be more like a coparty to the lawsuit. 4. Once notice is given. Cannot threaten to reveal more client confidences than necessary to force clients to pay outstanding fees. 2. Retaining lien gives the lawyer a possessory interest in the papers and documents in the client's position (but does not apply to property left in the attorney's possession for safekeeping). The ABA does not like this b/c it fears that the lawyer will sway the litigation . however under strict scrutiny. and adverse consequences that may arise from execution of such agreement. D. § 42(1) allows suits by lawyers against clients to collect legal fees under a breach of contract theory. [Florida recognizes both types of liens]. (i. Whether a lawyer should be permitted to sue a client to collect a fee: b. 6. 2. Attorneys' Liens and Other Security Interests 1. but they could be used to "silence a client" who wanted to protest an improper fee. See rule 1. In absence of agreement. 3. Rule 1.C. person paying the judgement or settlement is liable for the attorney's fee if that person pays the entire judgment or settlement directly to the attorney's client. the first lawyer can usually recover only if the second lawyer wins the case. A contingency fee is not a security or proprietary interest b/c the ABA gives the client the right to fire you. The attorney must give notice to the person paying the judgement or settlement. lawyer has the right to collect from client under quantum meruit when the client terminates the relationship under circumstances where significant time has been invested.6(b)(5) allows information which is reasonably necessary to defend or represent the lawyer in a dispute to be revealed about the client which might otherwise be prohibited from being revealed. Charging lien gives the lawyer a right to have the recovery in a case applied to payment of his or her fees. 5. If the lawyer had a true proprietary interest. In the case of a contingent fee.e. Whether a fee dispute between client and lawyer is subject to mandatory arbitration: Some states do require that but not all. Sometimes judges force attorneys to turn over papers if they determine that the client really needs them and cannot possibly pay the lawyer's fee. Restatement 3d. Lawyer can also put in fee agreement that the client will be subject to arbitration for fee disputes. 3. (c) even where original agreement made no provision for interest on past due fees if a client is late on payment an interest fee may be charged.

8(a).8(a). 5. The exceptions are liens and true contingent fee agreements. Purpose of attorney -client privilege is to allow the client to speak freely to his/her lawyer. 6. the client fires her and hires another lawyer to handle the case through trial. The difference between the two rules is that if you have a proprietary interest in the proceeds of the litigation (i. Lawyer cannot reveal any information that relates to the representation (unless the lawyer is impliedly authorized to do so). to get an ownership interest in filing a patent agreement. however.e. (Note.8(i) only applies to a litigation lawyer not a transactional one.g. which the ABA does not want (e. Problem 7 The Duty of Confidentiality Page 133 The lawyer's confidentiality obligation is made up of three different bodies of law: The attorney-client privilege. for example. See comment 3). so the lawyer is not entitled to any attorney fee even under Quantam Meruit until the D. The professional duty of confidentiality (obligations of fiduciaries). When Carter told attorney that he lied to the buyer about the basement flooding. the way he/she wants it b/c he/she has an interest in the outcome. under rule 1. Will not protect notes from an interview in which you discover from someone other than the client the confidential information. The other rule governing the lawyer taking an interest in the client's property is rule 1.e. the client/prospective client. 4) for the purposes of obtaining or providing legal assistance for the client. (all 4 elements must exist for there to be attorney client privilege) (There can be other conversations about nay number of topics but as long as it doesnt relate to legal advice then it is not ocvered by the attorney client privilege) Note that Rule 1. but not the fact that attorney and client spoke about a certain subject. Will not protect unfavorable rumors others told 1) 2) 3) . Rule 1. which comes from the law of evidence. the lawyer. (1. you are like a co-party. The fact that the client committed a fraud is not material to the privilege.8(i) only applies in a litigation context and therefore if a person hires jackson and is short changed then Jackson may accept a 5% profit of a persons net income for his services of helping prepare articles of incorporation for a company.4. whatever its source (i. Work product immunity (discovery and civil procedure). that conversation would not be privileged). Information Protected by the Attorney-Client Privilege 1. that conversation was protected by the attorney-client privilege since it is a confidential communication made b/t lawyer and client for the purposes of obtaining legal assistance. Attorney-client privilege will protect the content of a conversation b/t attorney and client.5 still applies regardless however as the fee must always be reasonable. However. do not want you to prevent settlement b/c you are an owner of the outcome of the lawsuit). 2) made b/t privileged persons (i. The attorney-client privilege protects 1) a communication (written or oral). 3. b/c the fraud was committed in the past.e.6 is very broad. the information does not have to come from the client. that if the client had told the lawyer that he was going to commit a fraud. A. the subject matter of the litigation). Jackson represents the plaintiff in a personal injury action on a 33% contingency fee basis. under 1. and agents of both in facilitating the communication b/t them). 3) in confidence. After jackson works hard on the case for six months. it is ok. At this point Jackson has no complaint as she took the case on a contingency fee basis.

Carter tells you he spoke with a lawyer before the sale attorney client privilege is there to protect the client. however. w/o undue hardship. Variation two: The buyer sues carter for fraud. at least with regard to the underlying facts (not the mental impressions of the attorney). SUBJECT MATTER WAIVER: is the consequence for making a selective decision to disclose some conversations. Opinion work product consists of the opinions or mental impressions of the lawyer. mitigate. Information Protected by Work Product Immunity 1. 5. or disclosure is impliedly authorized. C. so in the end you may end up waiving attorney client privilege for other conversations as well. Except for material which by applicable law is not so protected. The notes the attorney took w/regard to his interview with the previous owner are protected by work product immunity. or rectify substantial injury to the financial interests or property of another of which the client has used the lawyer's services. or 6) to comply with other law or a court order. protected by Rule 1. so once the client injects a privleged communication to someone new. Thus. to obtain the substantial equivalent of the material by other means. 1. 26(b)(3): a party seeking discovery may show it has substantial need of the materials in preparation of the party's case and that the party is unable. Opinion work product is never discoverable.6(b)(5)says when a lawyer is sued by a client a lawyer may disclose information relating to the client even if it is normally protected by attorney client privilege. if disclosure is necessary: 1) to prevent death or bodily harm. opposing counsel may be able to show a substantial need for those notes. 4) to secure legal advice about the lawyer's compliance with the Rules. Civ. the attorney-client privilege does not protect the conversation the attorney had with the previous owner. Does not however waive confidentiality on subsequent conversations relating to different subjects however with a new lawyer. 4. Work product consists of tangible material or its intangible equivalent in unwritten or oral form. 3. prepared by a lawyer for litigation then in progress or in reasonable anticipation of future litigation. any information relating to the representation of a client is protected unless: the client gives the lawyer informed consent to disclose the information. 2) to prevent client from committing a crime or fraud.s former lawyer: Under RPC 1. since the previous owner died. 5) to establish a claim or defense on behalf of the lawyer in a controversy b/t the lawyer and the client. at the lawyer's discretion. other than underlying facts. if a client injects a prior communication the element which no longer exists is the confidentiality on a voluntarily and volitional basis.6.6 b: An attorney may reveal confidential information. But cannot disclose something unless it is reasonably necessary.6. P. however. Privilege does not protect underlying facts. b/c the previous owner is not the client! it is. so if opposing counsel takes the client's deposition and asks about such a fact he must answer truthfully at the risk of perjuring himself. R. 3) to prevent. 2. all other work product is ordinary work product. With regard to rule 1. B. the client can no longer rely on the privelege. unless extraordinary circumstances justify disclosure. 4. 3. The Lawyer's Profession Obligation of Confidentiality . work product is immune from discovery or other compelled disclosure. you assert a third party claim for contribution against Carter.you about your client.

however.. under rule 1. Rule 4. or lawyer's duty of confidentiality (under 1.6(a).4(b) puts the obligation on the recipient to promptly notify the sender that he/she has received documents relating to the representation of the lawyer's client and knows that they were inadvertently sent to the recipient. the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. which treats all such situations as waivers. Under rule 1. What should happen if a lawyer or client inadvertently reveals confidential client information (e.6(b)(6) an attorney may disclose information to comply with other law or a court order. when transmitting a communication that includes information relating to the representation of a client.. 6. (So regular emails are ok. 9/20/10 • • Variation three: you interview the prior owner who confirms that he told carter the basement floods after a heavy rain. How much affirmative effort must a lawyer undertake to preserve the confidentiality of communications w/clients and others (e.: . require that lawyer use special security measures if the method of communication affords a reasonable expectation of privacy.6: yes. the lawyer cannot reveal information relating to the representation of a client (unless the client gives informed consent).6. 2) the "strict accountability" rule. Duty does not. (see slides) • What is the diference between “fact” work product and “opinion” product? • Fact: notes. Under rule 1. and the interests of fairness in the situation.6) should be lost by the passage of time or by the client's death: No. secretary faxes confidential document to opposing counsel instead of to client): Three ways that courts can look at this situation. the fact that client may be broke relates to the representation with regard to the client's ability as a defendant to make a settlement offer. You take verbatim written notes of what he says and include a statement regarding your impression of the former owner . or the information given by the client to the attorney might not have been accurate. Whether a lawyer can get ethics advice about his representation of a client from another lawyer in a different firm. The attorney-client privilege continues even after death. scope of the production. A lawyer may be required to testified about information that is protected only by the obligation of confidentiality.g. time taken to discover the error. w/o violating rule 1. 1) The "never waived" rule. they do not have to be encypted!) 5. a lawyers summary of testimony. 2.g. Whether attorney-client privilege. Here. which requires giving the documents back. How Legal Protection Against Disclosure Can Be Lost 3. D. and discuss the client's case with that lawyer.1. The principle behind allowing the privilege to continue is b/c there may be ramifications post-death. Comment 13 also states that a lawyer may be ordered to reveal information relating to the representation of a client by a court. 4. and legal theories • Variation 3 Contd. and 3) a middle ground that looks at reasonableness of precautions taken. with emails): Under comment 17 to rule 1.6(4) ("to secure legal advice about the lawyer's compliance with the Rules"). conclusions. extent of the disclosure. connecting documents and testimony • Opinion: the lawyers impressions. work product immunity. as opposed to information that is privileged.

(only discoverable under exceptional or extrodinary circumstances) Variation four: While you are at a party a banker mentions Carter is having financial problems and is behind on several of his loans.6(a) there could be implied consent and a lawyer can disclose information via informed consent.6(a) cover carters statement? • yes does the attorney client privilege cover carters statement? • • yes • Does the fact that you learned the same information from the banker at an earlier affect whether the attorney-client privilege does or does not attach to this communication • no it is still privileged variation four (contd: you are at another party and a friend tells you she heard that Carter is having financial problems and asks whether the rumor is true . • does RPC 1. for discovery purposes between your notes of what the former owner said and your impressions of him? • what is the standard for discovering another party’s “fact” work product? • substantial need so it would probably be discoverable because the former owner is now dead.• • • • • The former owner dies before the buyer’s lawyer interviews him. or implied consent you speak with carter and he confirms that he is struggling financially. • • how might your answer change if Carter previously told you to “do whatever it takes to get his case settled”? • pursuant to 1. it is a communication between lawyer and non client would you be required to obtain Carter’s permission prior to disclosing this • information during settlement negotiations. and therefore the lawyer has no way of interviewing and getting or recreating a similar work product. You make a mental note of this information because it could be helpful in settlement negotiations. • what is the standard for discovering another party’s “opinion” work product? • opinion work product is almost always insulated and protected under almost any circumstance.6(a) cover the bankers statement? • yes • Does the attorney client privilege cover the bankers statement • no. this information is not protected by attorney client privilege but by the work product doctrine • can you draw a distinction. The buyer’s lawyer learns that you have notes of an interview and she serves you with a subpoena duces tecum. • Does RPC 1. • what is the likelihood that you will be able to avoid producing the notes altogether? • not very good.

Rejects the "control group" theory. Ordinarily defendants w/a common interest may hold joint discussions at which . after Upjohn. so you are in a court setting. • does carters death have any affect on your professional duty of confidentiality? • no. it continues to block an attorney from sharing information relating to the client attorney relationship. Extrapolate from these answers and fill in the blanks: • • the attorney client privilege applies only in a litigation setting in which a lawyer/client has been asked what did client say to you or lawyer say to you. • does his death have any affect on the application of the attorney-client privilege? • no. Whether the results of internal investigation will be protected by the attorneyclient privilege or work product immunity: Upjohn is the leading case. The Common Interest Privilege Among Multiple Organizations 1. confidential information given to the attorneys by regular employees is protected by the attorney-client privilege. 6.6(a) is carried forward into rules 1. (problem set 2) E. which stated that attorney-client privilege only applied to persons who controlled the corporation or organization. duty of confidentiality survives a clients death 1. Therefore. B. • the professional duty of confidentiality applies in a non litigation setting (all other settings) Variation five: Carter dies unexpectedly while the lawsuit is pending. Problem 8 Confidentiality and the Organization as a Client Page 141 A. the policy underlying this is that a client has the confidence in talking to an attorney candidly and do so without fear that what they share will not come back to bite them down the road. Privilege and Confidentiality Rules When the Client Is an Organization 1. Whether the former managers of a corporation can control whether the attorney turns over a report to new management: basic rule is that neither the privilege nor the duty of confidentiality prevents successor corporate management from learning the content of discussions of former management with corporate counsel.9(c) in regard to former clients.• • • • which of the following would be more appropriate response in this context: • I can’t disclose information relating to the representation of a client OR • I cant disclose information covered by the attorney-client privilege (only applies in a courtroom and here this is a party and there is no courtroom) How would your answer change if you were being deposed and asked the • same question about carters financial situation? • this time the second answer rather than the first would be more appropriate.

So if the lawyer does not turn over the memo to the EPA. and one wants to waive attorney-client privilege 3. will be privileged in a controversy of either or both of the clients w/the outside world. though know to each other. A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (1) to serve the client's interest unless it is information the client specifically requires not to be disclosed. not only the client.they and the various lawyers talk freely w/each other about matters relevant to their common interest. Confidentiality and Risks to Public Health and Safety 1. Here.6 states that a lawyer who knows that a client has accidentally discharged toxic waste into a town's water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a lifethreatening or debilitating disease and the lawyer's disclosure is necessary to eliminate the threat or reduction of the number of victims. Any client who is part of that discussion or similar information exchange may assert the privilege just as it could if the client had been talking to its lawyer alone. nothing will happen to him as far as disciplinary action for violating the rules. C. the clients have a "falling out" and go against each other. Difference b/t the old rule 1. The privilege continues to apply to what the attorney and the client said. b) When Lawyer Must Reveal Information. or (5) to comply with the Rules of Professional Conduct (allows a lawyer to reveal confidential information if doing so would keep the lawyer from violating another rule. .6 (4-1.6): much stricter than the ABA rules with regard to what a lawyer must disclose. It protects anyone. however. who is at risk of certain death or substantial bodily harm. When two or more persons. each having an interest in some problem or situation. the privilege is lost. it is discretionary. Remember. Florida's Rule 1. their confidential communications w/the attorney. (3) to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved. (4) to respond to allegations in any proceeding concerning the lawyer's representation of the client. If. A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary: (1) to prevent a client from committing a crime.6(b)(1) is that the new rule is broader. If there are two clients with a common interest. jointly consult an attorney. If the lawyer was going to turn over the memo. Comment 6 to rule 1. and that it would be ethical for the lawyer to turn the memo over to the EPA and reveal the risk.6(b)(1) and new rule 1. 2. (c) When Lawyer May Reveal Information.6(b)(1) is not a mandatory rule. very broad). he would have to be reasonably certain that someone was going to die. (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client. it seems that the 5 per cent increase in the risk of cancer would result in at least one person dying. or (2) to prevent a death or substantial bodily harm to another. rule 1. McCormick: information is privileged when the two clients have a common interest and are on the same side of the litigation.

Wilson while having his law partner represent Mrs. OR 2) there is significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client. The Requirement of Informed Consent In most states.Conflicts of Interest Family 1. Requirement of Loyalty to the Client • A. Waiver of a Conflict of Interest. to secure a divorce. and therefore they will be deemed as adverse to each other.e. each might be better aware of what each is entitled to (e. Is screening available IV. Whether the attorney should be able to avoid the conflict problem by representing Mr. Problem 9 Representing Multiple Parties Dealing With Each Other Page 159 A. Plus. if each was represented by a separate lawyer. Plus.9 Former Clients 1.Prospective Client 1.10 treats the law firm as one unit. Such a conflict exists if 1) the representation of one client will be directly adverse to another client. if one attorney in the firm is representing one side.11 Gov Conflicts 1. therefore. then joint representation of those clients is non-consentable. We must be competent as attorneys and inform each client of what they are entitled to. Does Conflict exist 3. confirmed in writing 5. no other attorney in the firm may represent the other side. Comment 18 to rule 1. B.7 states that informed consent requires each affected client be . we cannot be loyal to both sides. The attorney has to be an advisor.g. Arbitrator 1.8 Specific Conflicts 1.12 Judge. even if that agreement might not be the best for one of the parties). two current clients who have a conflict). If your state categorizes divorce as an adversarial proceeding. the parties do have to go to court. Is it consentable 4. the lawyer just wants them to come to an agreement. Whether simultaneous representation of both Wilsons involves their attorney in a conflict of interest: Comment 6 says that . Can obtain informed consent.18. Rule 1. Is it imputed to firm 6. I. We worry about loyalty.D Conflicts 2.7: a lawyer may not represent a client if the representation involves a concurrent conflict of interest (i.7 Current Clients 1. which will be a problem for an attorney who represents both of the Wilsons.10 Imputed Disq Conflicts 1. and confidences. whereas if they have the same lawyer. joint representation of spouses in a dissolution action is treated as a nonconsentable conflict in all instances. Wilson: Rule 1. Determining Whether a Lawyer Has a Conflict of Interest 1. communication. perhaps if the wife had her own lawyer. 3. he would push for her to receive more in child support each month.

[A client can always fire a lawyer]. Under comment 22. including the nature of the conflict. continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation.0(b) defines "confirmed in writing. • both can get the lawyer they want. like any other client. They agree between themselves on custody and support and then ask green top represent them. if they must have separate lawyers then one person will not get the lawyer of their choosing. Note that there is no requirement that the confirmation be signed. The lawyer should.0(e)). (Informed consent is also defined in rule 1. The requirement of informed consent prevents many waivers. Under comment 31. Better to not represent a client than to represent them and then withdraw. It depends on the circumstances. advise each client that information wil be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In any case. It cannot be boilerplate language or leave open-ended the conflicts that the client has consented to waive." and states that when used in reference to the informed consent of a person. Whether a client should be able to revoke consent and then require that the lawyer not represent either of the clients: comment 21 to 1. however. the lawyer must cease to represent both. 5. However. • what are the potential advantages to the Wilsons from having one lawyer represent them both.7 states that a conflict may arise in estate planning and estate administration. whether the client revoked consent b/c of a material change Generally. To comply w/conflict of interests rules.7(b). if client 1 revokes consent. • if things don't work out as contemplated.aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. The problem arises when revoking consent may unduly burden the other client that the lawyer was jointly representing. • Variation One: Advantages and Disadvantages • the Wilsons want a divorce. 3. • both will save money and costs by only needing one lawyer • what are the potential disadvantages to the Wilsons from having one lawyer represent both of them. C. • if there is a separate lawyer then there may be unnecessary conflict by bringing in a second lawyer.7(a)(2) whereby the attorney may be materially limited in representing both spouses. Conflicts for Which Consent Is Not Effective 5. b/c otherwise that lawyer will have an unfair advantage in representing client 2 (who did not revoke consent) against client 1 and client 1's new lawyer. a lawyer can require waiver of future conflicts if the waiver is very specific. Whether the model rules should require that any client consent to a conflict be in writing: rule 1. advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict non-consentable under 1. may terminate the lawyer's representation at any time. and then they must both hire separate attorney’s . there may be a potential conflict under 1. Comment 27 to rule 1. at the outset of the common representation and as part of the process of obtaining each client's informed consent. b/c it is unlikely that the client will have understood the material risks involved in the waiver. the lawyer should make clear the lawyer's relationship to the parties involved. denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person to the person confirming an oral informed consent.7 states that a client who has given consent to a conflict may revoke the consent and. Whether a lawyer may represent both husband and wife for estate planning advice: yes. the lawyer must withdrawal from each.

7(a)(2) question . WIlson) be directly adverse to another client (Mrs. WIlson only? • he would raise the issue and tell her that she is entitled to more money • since he represented them both then he can not raise either issue. • what happens if green concludes that Mr. • difficult if not impossible to be independent professional judgment to both parties Green agrees to represent the Wilsons with respect to their divorce. Wilson) • Direct adversity = one client will benefit at the other clients expense • 1. WIlson can sell the house at any time and receive the million dollars but Mr. and Mrs.7(a)(2)-is there a significant risk that the representation of one client (Mr.7(b) tells lawyers they can represent clients notwithstanding a current conflict of interest so long as 4 conditions are satisfied • lawyer reasonably believes he/she will be able to provide competent and diligent representation to each affected client • whether the particular representation is not prohibited by law . and the attorneys normal duty of confidentiality is not there. WIlson) will be materially limited by the lawyers responsibilities to another client (Mrs. Wilson should pay more for child support because Mr.7(a)(2) • 1.will lawyer be tempted to pull her punches when representing one lcient to avoid hurting the other client • Significance of risk = intensity of temptation • practical question (always ask when deciding a 1. and the Attorney must share all information with each party. • What would green do if he represented Mrs. Wilson) • Material representation. Mrs. WIlson can only get his 1 million dollar 40-1(k) at the time of his retirement in the future at some point.• • Attorney client privilege is not in effect. • What critical issue have the Wilsons completely missed? • how the property/assets should be divided. • Will the joint representation of Mr. and Mrs.is the other client the “preferred” client? • length of relationship with other client • frequency of representation of other client • amount of fee income generated by other client • Can green represent Mr. However because this is unequal Green cannot point this fact out because he would jepordize his independent professional representation. WIlson involves a “concurrent conflict of interest” Under RPC 1. Wilson gets his 401(k) retirement account comprised of securities worth 1 million at todays prices • this in not an equal trade. • What should green do? • he should go to the Wilsons and tell them to talk between themselves and see if they can work out a property agreement. • Mr. Wilson gets their house worth 1 million dollars in this market. • What should green do if the Wilsons agree as follows • Mrs. Wilson • What would Green do if he represented Mr.7(a)(1)-will the representation of one client (Mr. WIlson notwithstanding the presence of a concurrent conflict of interest? • yes 1.7(a)(1) and/or 1. Wilson makes substantially more than Mrs. WIlson Only? • he would not say anything and remain silent in the hopes that the other side would not raise the issue.

on the outside looking in. WIlson result in Green representing the plaintiff and the defendant. • Has green obtained Mr.7(b)(3) exists to continue the adversarial practice and allows each side to be as forceful as possible to ensure a judge/jury makes the correct ruling under the law. Wilson’s informed consent.7(a)(1) covers this situation and it also covers the additional situation in which focuses on clients who interest are directly adverse but it does not matter if it has to do with the same litigation. Rule 1.. • does it matter whether the lawyer believes he can do a good job for each client? • does it matter. in the same lawsuit? RPC 1. at the same time.7(b)(4) • what is the definition of informed consent? • 1.lawyer must law out for the client all the material risks in a course of action as well as the reasonably available alternatives to that course of action so the client may make an informed choice of whether the lawyers choice is the one in which she will agree . and Mrs.7(b)(3) • what is the difference between 1.7(a)(1) in the litigation context? • 1. and Mrs.0(i) • lawyer believes the matter in question RPC 1..0(a) (subjective belief) • circumstances are such that the belief is reasonable RPC 1. 1.7(b)(3) covers the situation in which a lawyer wishes to represent a plaintiff and defendant in the same litigation at the same time (client + matter focused) • 1.0(i) How do we get this definition? • • reasonably believes. • Would the representation of Mr. Wilson’s and Mrs.0(h) (objective belief) • Practical definition of reasonable belief for conflicts purposes • lawyer actually believes he/she can do a good job for each client • disinterested lawyer.7(b)(1) • What is a reasonable belief? • it is both a subjective and objective belief the lawyer can provide reasonable and diligent advice to the clients. confirmed in writing? 1. it focuses on the clients interest period without regard to whether it is in the same litigation (client focused) • Why can’t the same lawyer represent the plaintiff and the defendant at trial? • does it matter whether the lawyer believes he can do a good job for each client? • does it matter that the clients are willing to proceed with the same lawyer? • there is an institutional interest that each sides presentation is as forceful as possible because that is the premise of our adversarial legal system.is defined in RPC 1. Wilson in the divorce proceeding prohibited by law? • how does comment [16] explain representations that are “prohibited by law” • in many states it is prohibited by law for a lawyers to represent multiple defendants in a capital case • also prevents a former high ranking government official who then leaves and represents a client in a matter involving an issue to which the official was previously involved.• 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 • each affected client gives informed consent. confirmed in writing • Can green reasonably believe that he can provide competent and diligent representation to Mr. Wilson? RPC 1.7(b)(3) and 1. and Mrs. would agree with this assessment • Is the represntation of Mr.0(e) defines this term .

• the material risks of joint representation are : loyalty. the client can also ask follow up questions to which the lawyer can answer. and the consequence of green having to withdrawal and both having to hire separate and new representation • what is a reasonably available alternative to joint representation? • the Wilson’s could get separate counsel • potential benefits would be: each is impartial and can exercise independent professional judgment. each consent is a minimum requirement and in its absence the other client will never have adequate representation to give informed consent. confidentiality.7(b). they have already told the lawyer that they do not want their lawyer to represent the company that is foreclosing on them. confirmed in writing.7(a)(2). The attorney may be able to get around 1. 1. Whether a client has a legal right to keep you from representing another client whose interests are directly adverse to the client's: Rule 1. 2. "each affected client gives informed consent. 3. Taking a Case Against a Current Client 1. . Problem 10 The Duty of Loyalty Page 171 A. It is an issue of loyalty. • How might Rule 1. • what are the two “consents” that the lawyer must obtain from each client? • consent to release information about that client to the other • consent to joint representation • what happens if the lawyer can’t get a client’s consent to disclose? • then you are done. However.7(b)(4). (preferred) obtain the clients signature on a piece of paper.7 comment 6. breach of duty of loyalty. even when the matters are wholly unrelated. the materially limited rule. This does not appear to be an issue of confidences." International Bolts will never consent. or obtaining oral consent and then memorializing the oral consent on a piece of paper or writing and then delivered to the client.7(a) if he can fit into an exception in 1. absent consent a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter. The president has even stated that he would be offended if the lawyer represented the other company. allows the lawyer to gage the client and the client understands exactly what is going on before giving her informed consent.6(a) get in the way of obtaining another client’s informed consent to waive conflict of interest: May limit the extent to which the layer may speak to the other client in an attempt to get the consent of the existing client to bring on conflicting new representation. Whether there should be a concern that the lawyer might represent one client less vigorously so as to not offend another. It seems as well that this raises a conflict of interest under 1. This also raises issues of loyalty. the attorney is never going to fit into the fourth exception. This is b/c the client to whom the representation is directly adverse is likely to feel betrayed. • What is the definition of “confirmed in writing”? • can be accomplished in either of 2 ways. • does comment [20] contemplate that the lawyer will speak with the clients in person about risks and alternative? tells lawyer in affect the lawyer should speak in person to the client about all material risks and reasonably available alternatives. and then the consent given will be as informed as possible. and each will gain the confidence of confidentiality. B.

The pattern of repeated retainers could be a factor. the lawyer must refuse one of the representations. who wants prepayment penalties to be declared illegal. the lawyer may not be as vigorous in representing the neighbor. Why courts consider it important that criminal defendants be warned about possible conflicts of interest: . for example. or w/draw from one or both matters. no jail and he will drop case against Bitter Creek. Ascertaining Who Is a Current Client The rules for former clients are more flexible than those for current clients. She then writes an article called "There's Nothing I won't do to see that at least one of my clients goes Free. have an adverse impact on the legal position of another client. The Problem of Positional Conflicts 1. and the clients' reasonable expectations in retaining a lawyer. then absent informed consent of the affected clients. because he does not want to make First National angry. The lawyer's neighbor who wants him to sue Second National Bank does not pose a 1. D. C.B. Bentley tells them to take the deal. He may have a 1.S. Limits on One Lawyer's Representing Co-defendants In a Criminal Case 1. who worked for Bitter Creek's main competitor Carson asked Bentley to represent him and Mary. This situation most overtly arises when the same lawyer is arguing antagonistic positions in litigation simultaneously conducted on behalf of two different clients. attorney wanting to run for governor will do anything to obtain conviction so makes deal with Bentley: if Carson and Mary plead guilty. if successful. If there is significant risk of material limitation. Whether a client is a current client is a case-by-case determination.7(a)(1) problem. Chuck Carson is manager of widget division at Bitter Creek and conspired with Mary. because the lawyer's client is First National Bank. not Second National Bank. Positional conflicts: A positional conflict occurs when a lawyer takes a position in litigation on behalf of one client which could. Factors to consider when deciding whether to client needs to be advised of the risk: where the cases are pending. the temporal relationship b/t the matters.7(a)(2) problem because First National Bank (a current client) does not want him to file the suit b/c it is afraid of the possible ruling that could come out of it. U. when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client." A. Therefore. a corporate-D charged with price fixing. Comment 24 to rule 1. significance of the issue to the immediate and long-term interests of the clients involved. whether the issue is substantive or procedural.7 states that a conflict of interest exists if there is a significant risk that a lawyer's action on behalf of one will materially limit the lawyer's effectiveness in representing another client in a different case. Problem 11 Conflicts of Interest in Criminal Litigation Page 189 Facts Barbara Bentley represents Bitter Creek.

D. plus. two (Mary and Carson) for the benefit of one (Bitter Creek). After representation. Conflicts of Interest of Defense Counsel.13 governs organizations as clients. Thus. representation of co-defendants presents a rule 1. (Might be ok in civil cases.7. including separate representation.7. 1. Comment 23 states that such conflicts often arise in criminal cases. There is no waiver exception written into rule 1. he may be violating his duties as a prosecutor. Whether a client should be able to waive the protection of rule 1. The public has an interest in seeing defendants receive a fair trial. 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. because the ABA does not want the client to be able to simply allow his lawyer to start writing a book or making a movie about the representation. Under 1.8(d) seems to allow lawyers to write books and make movies. 2.a.8 (which governs the special responsibilities of a prosecutor).13(g) states that a lawyer representing an organization can also represent any of its employees or shareholders. the jury may need to be sequestered if there is info about the case flying around in the media. Reading: 166-179 Rules: 1. because the lawyer is materially limited in representing one client for the benefit of another (or in this case. Conflicts of Interest Faced by Prosecutors 1. [This is generally a defense counsel rule.7(a)(2). and subsection (g) is subject to rule 1. Additionally. the government. and that the potential for conflicts of interest in representing multiple defendants in criminal case is so grave that ordinarily a lawyer should decline to represent more than one defendant. 1. Prosecutor is highly motivated to get convictions that will tend to further his political ambitions (he is running for governor). he does not care who takes the fall as long as he gets a conviction. if the lawyer gets informed consent from all affected parties). This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Rule 1.7(a)(2) conflict. the prosecutor has a conflict of interest because he is materially limited from representing his client (in his case. Federal rules of criminal procedure requires a judge to "promptly" inquire about joint representation of two or more clients and must personally advise each defendant of his right to the effective assistance of counsel. Comment 9 states that an agreement by which a lawyer acquires literacy or media rights concerning the conduct of the representation creates a conflict between the interests of the client and the personal interests of the lawyer. Whether a defense attorney may personally and financially benefit from the publicity surrounding a major trial: Rule 1. However.8(d) states that prior to the conclusion of representation of a client. There is a conflict of interest with his duties as a public prosecutor under rule 3. C. in this case at least the prosecutor has probable cause to go after conviction of Carson and Mary. Comment 1 states that a prosecutor has the responsibility of a minister of justice and not simply that of an advocate. because the attorney certainly knows confidential information relating to representation of the client.8(d): generally. even after the representation has ended. Publication Rights and Social Entanglements 1. no. If consent is required by the organization under 1. Not to mention the public interest: it is not good for the criminal justice system.7 .8(a) states that a prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause. consent can be given by the appropriate official. but they may also have an issue with confidentiality. Thus.8(d). the state) by his personal interest of becoming governor. because prosecutors do not technically have clients]. 3.

• the representation is not prohibited by law.7 → Conflict of Interest (a) Except as provided in paragraph (b). and (4) each affected client gives informed consent. • 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. a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client. (2) the representation is not prohibited by law. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client. A concurrent conflict of interest exists if: • the representation of one client will be directly adverse to another client. or • 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.7 166-179 Rule 1. or (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. confirmed in writing. a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. a lawyer may represent a client if: • the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client. a former client or a third person or by a personal interest of the lawyer. and (b) . Notwithstanding the existence of a concurrent conflict of interest under paragraph (a).7 → Conflict of Interest (a) Except as provided in paragraph (b).Rule 1. a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. Notwithstanding the existence of a concurrent conflict of interest under paragraph (a). (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. a former client or a third person or by a personal interest of the lawyer. (b) PROFESSIONAL RESPONSIBILITY 9/22/10 Reading: Rules: 1.

7(a)(1)? 1.7(a) Analysis • Green represents Dan in a boundary dispute w/ Sarah. confirmed in writing.7(a)(2)? YES NO (Maybe) o Dan 1.7(a)(2)? YES YES 1. Variation 1: INSERT NOTES FROM MONDAY Variation 2: RPC 1. Polly thereafter asks Green to represent her in a lawsuit against Dan who broad-sided her car at an intersection.7(a)(1) issue? YES  Why might Dan feel betrayed if Green represents Polly in car accident?  If client who has been represented by attorney for a while & trust will feel betrayed if gets a summons from his attorney in another case. o Existing Representation of Dan = boundary dispute Dan (EC)(Green) → boundary dispute → Sarah (other lawyer) o Potential New Representation of Polly = Negligence Action Polly (PC)(Green) → Negligence → Dan (EC)(?) • Will Green’s representation of Polly involve a concurrent conflict of interest? o What does it mean to represent a client who is directly adverse to another client?  1 client benefits at the other client’s expense o What does it mean to represent a client under the circumstances in which the lawyer’s efforts that the client might be materially limited by her responsibilities to another client?  The lawyer will be tempted to pull his punches with representation of 1 client to another Polly (PC)(Green) → Negligence → Dan (EC)(?) 1.  Because of betrayal → Dan may not be as forth coming w/ info to Green .7(a)(1)? 1.(4) each affected client gives informed consent.

7(a)(2) issue? NO (Maybe)  Focusing just on (a)(2) → the EC will rarely have any concern that representation of the new client will have any effect on the lawyer’s representation of him in existing matter  NOTE: Theoretically possible that there can be an (a)(2) EC when the nature of the allegations in the lawsuit b/t EC & NC that cast the EC in such a light that it may erode the lawyer’s ability to represent the EC in an existing matter EX: Polly sues Dan for sexually abusing her son o Polly 1.o Polly 1.7(a)(1) conflict more significantly than Polly b/c he is already an existing client (EC feels the betrayal) o Dan 1.7 (b)(1) Analysis • Does Green reasonably believe that he can provide competent & diligent representation to Polly in the PI action & also to Dan in the boundary dispute? What should Green take into consideration? o Representation of Polly in negligence action → Any potential competence or diligence problems?  Green should decide → whether or not he would be able to do a good job for Polly OR whether his work for Polly will be adversely effected by his representation of Dan ** Would Green Pull any Punches representing Polly?  Things that might affect Green’s ability to represent Polly: • length of his relationship w/ Dan .7(a)(1) issue? YES  From a textual perspective → if she becomes a client then her interests are directly adverse to another client (Dan)  BUT → Dan feels 1.7(a)(2) issue? YES  Feel that her representation will be limited in a material way b/c Dan already client of Green & be concerned that Green will not aggressively represent her against Dan b/c doesn’t want to chap off Dan Variation 1: RPC 1.

• • •   # of times he has represented Dan in past Amount of fee income Dan has generated in past Amount of fee income Dan may generate in future If Dan was 1 time representation → then Green will probably have NO problem representing Polly BUT if Dan is a constant client (cash cow) → then Green probably would not want to upset Dan & would be likely to pull his punches representing Polly (THUS: adversely affecting his representation of Polly) o Representation of Dan in boundary dispute → Any potential competence or diligence problems?  Not really.7(b)(2) Analysis • Is Green’s representation of Polly prohibited by law given that he already represents Dan in an unrelated matter? NO → (b)(2) is NOT an issue o EX: (b)(2) prohibited representations Cannot represent multiple ∆s in a capital criminal case Federal Gov’t employees are prohibited in representing clients in agency matters after they leave agency employment Variation 1: RPC 1.0(e) → Must lay out all the risks & all the alternatives .7(b)(4) Analysis • Has Green obtained Polly’s & Dan’s informed consent. b/c boundary dispute is completely unrelated matter! Green has no reason to quit representing Dan aggressively in boundary dispute Variation 1: RPC 1. confirmed in writing? o Informed Consent 1.7(b)(3) Analysis • Would Green’s representation of Polly result in Green representing the ∏ & ∆ at the same time & in the same litigation matter? NO o NO → b/c 2 matters are wholly unrelated Variation 1: RPC 1.

o Confirmed in Writing 1. .0(b) → Document actually signed by client & letter memorializes a previous oral agreement in a letter/memo to the client o What should Green talk about w/ Polly?  Need to discuss reasonable available alternatives → IE: hire another lawyer w/ no conflict  Need to discuss risks of conflicted representation o What would you want to know if you were in Polly’s position?  The extent that Green is connected to Dan • Is Dan a cash-cow client? • Length of Green’s representation of Dan • How aggressive will Green be in representing her? • Assurance of confidentiality in info she shares w/ Green  NOTE: Before Green has conversation w/ Polly about his relationship w/ Dan → Green must get Dan’s consent to share the info re: Green’s representation of Dan 1.6(a) → must obtain existing client’s informed consent If Dan says NO → Green CANNOT share the info w/ Polly & Green will have to decline Polly’s representation!! o What should Green talk about w/ Dan?  o What would you want to know if you were in Dan’s position?  Reassurance of confidentiality → that info shared in past/future of representation will NOT be shared w/ Polly  Reassurance of continued aggressive representation in existing representation - Reasonableness of the hourly rate and the reasonableness of the hours worked The attorney client privilege does not exist when the attorney represents 2 parties in joint representation.

. etc. relating to properties or specific conditions of the mind as distinguished from general or universal experience. 7. 2. 3.• Rule 1. as a person or a book. of or pertaining to something that can be known. existing in the mind.7(b)(1) Analysis: Adversely effects representation subjective –adjective 1.7 Analysis: Lawyer’s believe = Subjective & Objective o Lawyer must believe that he can represent competently & diligently AND Lawyer looking in must believe that Lawyer can represent competently & diligently!!! • Rule 1. interpretations. You represent FNB in all of its commercial lending work & have represented IB in labor . or to something that is an object or a part of an object. placing excessive emphasis on one's own moods. pertaining to the subject or substance in which attributes inhere. opinions. belonging to the thinking subject rather than to the object of thought (opposed to objective ). –adjective 5. 6. 4. pertaining to or characteristic of an individual. essential. being the object of perception or thought. • Once clients ask for “that protection” (privacy protection of specific information from the other co-client) there is probably some reason for them to have separate representation. 8. purpose. unbiased: an objective opinion.9(a) • In any joint presentation. Philosophy. target: the objective of a military attack. existing independent of thought or an observer as part of reality. personal. belonging to the object of thought rather than to the thinking subject (opposed to subjective ). based on facts. relating to or of the nature of an object as it is known in the mind as distinct from a thing in itself. objective –noun 1. the attorney may not be able to keep all information confidential. attitudes. Problem 10: Variation 1: International Bolt & FNB • FNB asks you to sue IB to foreclose a loan. unduly egocentric.7 1. the objective of a fund-raising drive. 6. Reading: 180-198 Rules: 1. intent upon or dealing with things external to the mind rather than with thoughts or feelings. 5. individual: a subjective evaluation. or prejudice. something that one's efforts or actions are intended to attain or accomplish. goal. not influenced by personal feelings.

You are not doing work for IB at current time.9(a) → same or substantially related matter  If an entity is characterized as a former client → 1.7 Com.16 Com. 1 → Whenever a lawyer does piece work for a client (ex: labor law advice) when the work is done the representation ceases  If IB came to you like clock-work every year to do a labor law issue would IB be more like a current client? Probably yes o Why would you prefer to characterize IB as a former client? Why would IB prefer to characterize itself as a current client?  If IB is former client → Gives you more leeway in representing potential adverse parties  1. 4 & 1.3 Com.law matters from time to time.9 you do NOT need IB’s consent to represent BUT if IB a current client → under 1. 22 → usually NOT valid or enforceable BUT sometimes maybe valid & enforceable only if 3 conditions met: .7 you need to get IB’s consent o What can a lawyer do to avoid these sorts of problems?  Send disengagement letters OR Ask for advance waivers of future conflicts o “Disengagement Letters” → INSERT o Why do you suppose lawyers typically do NOT send disengagement letters?  Bad marketing!! If send that letter then lawyer is putting in client’s mind that they do not want any more business o Advance waivers of future conflicts → Ask client to waive conflicts of interests in advance that may arise in the future  1.9 contains lawyer’s obligations  If entity characterized as current client → 1.7 contains lawyer’s obligations  If IB a former client → under 1. o Is IB a current or former client?  1.

o Is there a Rule 1.16(b)(1) (lawyer can withdrawal from representing a client as long as there is no adverse affect to the client)? Yes a lawyer under 1.9 and must .  More frequently → clients almost NEVER want to sign the waivers!!! • Same facts but assume IB is a former client so its consent is NOT required. IB o Can you terminate your attorney client relationship with IB and this transform IB into a former client?  The Hot Potato Doctrine (lawyer cant drop a client just to take on a more lucrative client)  Consistent with RPC 1.7(a)(2) conflict lurking in the facts that might require you to obtain FNB’s informed consent? YES o Whose interest creates the conflict problem in this circumstance → FNB/IB/You? You  Your personal interest in making $$ in future off representing IB so creates conflict w/ FNB b/c you might pull your punches representing FNB to curry favor w/ IB to get future business o What should you think about for purposes of determining whether there is a “significant risk” that you will pull your punches in connection w/ the representation of FNB? • Assume IB is a current client so the foreclosure action is FNB vs.16(b)(1) can drop a client but that act per the hot potato doctrine would preclude the attorney from treating the dropped client for conflicts purposes as a “Former Client” under RPC 1.• • • Client giving waiver is a sophisticated purchaser of legal services – IE: recidivist litigator Sophisticated “legal” client giving waiver has independent representation in looking at issue of waiver Potential future conflicts must be able to be identifiable in advance what those consequences are at time client is asked to waive conflicts o Why do you suppose lawyers CANNOT typically get advance waivers?  B/c generally not feasible that all 3 conditions are met to allow waiver to be valid & enforceable.

continue to treat the dropped client as a current client in regards to conflicts purposes. o What are the RPC 1.7(a) issues that must be taken into consideration…  On the FNB side? • Hint- FNB occupies the role of Polly (conflicted client/new kid on the block) in this context and its issues are primarily (a)(2) issues (significant risk that the representation would be materially limited by the lawyers responsibility to the other client) but there is a technical (a)(1) issue as well (the clients would be directly adverse to each other)  On the IB side? • Hint- IB occupies the role of Dan (Conflicting client, old kid on the block) in this context and its issues are nearly always (a)(1) issues only (its interest are directly adverse to those of another clients of a lawyer). (have to make sure they don’t feel betrayed). o What are the RPC 1.7(b)(1) (lawyer must reasonably believe they can provide competent and diligent representation) issues that must be taken into consideration…  Hint- the (b)(1) issues on FNB’s side are nearly always the same as the (a)(2) issues. (because if there is a significant risk that the lawyers ability to representation of the new client will inhibit his ability to represent the old client there is a serious issue as to whether the lawyer can reasonably believe he can provide competent and diligent representation) • Why- because these are the issues a neutral and detached lawyer would focus on (look at the economic issues- to verify the lawyer really can do a good job for FNB)  Hint- the (b)(1) issues on IB’s side are rarely a problem assuming the work for IB is truly unrelated to the work the lawyer wants to do for FNB. (correct because there are no overlapping issues and therefore the lawyer would have no reason to represent the client just as well and just as zealously as the lawyer would have in the absence of the new relationship) • Assume the load was made ot national Bolts, a wholly-owned subsidiary of IB. You have never done any work for NB but you are currently representing IB in a labor law matter.

o Is NB deemed to be a client for conflicts purposes simply because it is a wholly-owned subsidiary of your client, IB?  Just because it is a subsidiary for conflicts purposes it is not deemed a client.  (regarding corporate families) 2 things to consider for purposes of determining whether IB is deemed “client” for conflicts purposes • (1) ABA suggest lawyers consider whether lawyer in advance has agreed to treat all members of the corporate family as 1 for conflicts purposes. • (2) whether or not as a practical matter looking in it appears that these two entities appear to be separate and distinct (separate employees, directors, officers, employees, etc.) • whether the parent and subsidiary are represented as a single entity or separate entity. • 2 entities may be recognized under the law to represent separate entities, may seem as 1 and are allowed to share the same office, board of directors, employee’s etc.) o Assume you determine that NB is a “deemed client” for conflicts purposes.  Are the RPC 1.7(a) and RPC1.7(b) issues exactly the same for FNB and NB/IB as they are whenever a lawyer finds herself representing one client against another? If they are one entity you have to use the same analysis under 1.7(a) with FNB and NM/IB. they can be characterized them as either the new kid on the block, or the old kid on the block. o Assume you determine that NB is not a client for conflicts purposes.  Is there a RPC1.7(a)(1) issue because a judgment against NB would affect IB’s economic interests, thus requiring IB’s informed consent and FNB’s informed consent? (It would be a indirect affect, so they would only be indirectly adverse (ABA says this is not the type of direct adverse affect and therefore no direct conflict)  Is there a RPC(a)(2) issue that may nevertheless require you to obtain FNB’s informed consent. (Yes, the lawyers interest himself creates the conflict in this instance (bank v. Subsidiary) because the lawyer is connected to the parent company and the the lawyer may pull his punches in representing the bank as not to alienate the parent company) • Variation 3

• Your neighbor asks you to seek a declaratory judgment that the prepayment penalty in her home mortgage loan from Second National Bank is unenforceable. You have never represented SNB. o On these limited fact without assuming any others, do you have a 1.7(a) analysis? No • The president of FNB calls and tells you she is concerned about the potentioal for an adverse decision regarding prepayment penalties and asks you to withdrawl from the neighbor’s case. She concedes, however, that FNB’s loans do not have prepayment penalties. o On these changed facts is there a RPC 1.7(a)(2) issue that should at least be considered. Yes, the lawyer’s personal interest  What risk do you run if you do not ask the neighbor for her informed consent? (you run the risk of malpractice, that you will lose both clients, disciplined by Bar association, and losing the fee’s) RPC 1.7(a)(2) says when there is a significant risk that the lawyers rep of one or more clients will be materially affected then there is a concurrent client, on these facts there is not a significant risk because the bank has no prepayment penalties.  What risk do you run if you ask the neighbor for her informed consent? (and the client says no) then the lawyer cant represent her in the lawsuitif you were not required to obtain your neighbors consent in the first places, and out of a an abundance of caution you do so anyways then the client says no, then there is no practical way to represent the neighbor, because you essentially toled her you need her consent to proceed and she said no, so you must get the 1.7(a) analysis correct in the first instance becaasue if informed consent is required then you want to get it, and if you don’t need informed consent then you don’t want to ask for it. • You receive a second phone call from the president of FNB. She tells you if you win the declaratory judgment action, FNB will pull all of its existing work and not refer any further work to you. FNB’s work has represented 15% of you annual revenue, on average, for each of the last 10 years. o On these changed facts is there a RPC 1.7(a)(2) issues that must be taken into consideration? Yes there is a personal interest  Whose interest creates the problem? o How does this new information affect the RPB1.7(b)(1) analysis?  Is this conflict waivable or not waivable? This issue is not consentable because the lawyer cannot reasonably believe he can provide competent and professional representation. • Variation 4

7(b)(4) analysis. Whether the law prohibits lawyers from taking all or part of their fee in the form of stock in the client's business: comment 1 to rule 1. stocks) or other non-monetary property as payment of all or part of a fee. comment 4 states that a lawyer may accept property in payment for services. Johnson wants to thank Doe for all that she did so he gives her his Mercedes.5.5. However. Then they fall in love and they are together when the aren't at work. on Doe's suggestion. as long as doing so does not create an . Accepting Payment in the Form of Stock. o Is there anything in the RPC that prohibits you from representing both plaintiffs and defendants in title VII cases? NO  When does a positional conflict exist? Comment 24:  There is a significant risk  That the lawyer’s litigation position for one client  Will materially limit the lawyers ability to effectively litigate another matter for another client. business Transactions With a Client 1. if any are missing then there probably is not a positional conflict. if the lawyer gets through that analysis then he must go through a 1. must go through the very same 1.• You are one of the nation’s leading employment lawyers. A. o How must the lawyer proceed if a positional conflict exist? No different then any other conflict of interest.8(a) does not apply to ordinary fee arrangements b/t client and lawyer. Johnson does not have a lot of money.e.5 must be met when the lawyer accepts an interest in the client's business (i. But instead. and the lawyer must confirm the clients informed consent in writing. • D. Johnson agreed to Doe taking a 10% interest in the company in which Doe sets up.7(b) analysis. o What should a lawyer look for in particular?  Both litigation matters involves the same issue of substantive law  Both litigation matters are pending in the same jurisdiction  Both litigation matters are pending at the same time. which are governed by rule 1. Problem 12 Conflicts Between Client Interests and the Lawyer's Personal Interest Page 203 Facts Attorney Doe went to high school with Johnson. Rule 1. • If all 3 factors are present then there is probably a positional conflict. 1. Doe's knows business is doing well and that Johnson will be purchasing plant in area which will increase in property value. but asked Doe to help set up his business and see if he could pay over time. so Doe buys land there.8(a) states that rule 1. You represent both plaintiffs and defendants in title VII actions.

4. Here.8(a) does not apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others (e. the fee must be reasonable under 1.8(c) does not prohibit the lawyer from accepting a substantial gift. or getting a meal at the client's restaurant). b/c the lawyer is just setting up the articles of incorporation. The attorney should put everything in writing. 4. The "payment" must be valued at that time so that it can be measured to determine whether it is a reasonable fee. In this case. but it might be voidable by the client b/c of undue influence. may invest in a parcel of land near the industrial park: Rule 1. Comment 1 states that rule 1. and advise the client to get assistance of outside counsel with regard to whether the fee is reasonable. However. The rule does not prohibit uses that do not disadvantage the client. However.8 does not prohibit a lawyer from seeking to have the lawyer named as executor of the client's estate or to another potentially lucrative fiduciary position. and the restrictions in the rule are unnecessary and impracticable. because the transfer of stocks in exchange for the legal services is certainly a business transaction.8. that is always going to be ok.8(b) says that a lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent. B. Comment 6 says that 1.8(i) is not going to be a problem here. There is a family exception b/c the rules realize that most family members of lawyers would want to use their family member b/c they trust them and it will save them money. In such transactions. 1.8(c): Comment 8 states that 1. However. professor says that this does not count as a business transaction. Rule 1. Whether lawyer. Such transactions seem to potentially present ethical problems if the client gives the lawyer the product or service for considerably less.8(a) is definitely involved. C. Comment 5 states that if a lawyer learns that a client intends to purchase and develop several parcels of land. comment 4 to rule 1. buying a car from the client's dealership.8(c) states that a lawyer shall not solicit any substantial gift from a client. except as permitted or required by the Rules. perhaps in exchange for future legal services.ownership/proprietary interest in the litigation for the lawyer in violation of Rule 1. Accepting Unsolicited Gifts from Happy Clients 1. if the lawyer draws up the papers giving herself the Mercedes it will look suspect because the client is not related to the lawyer. the lawyer has no advantage in dealing with the client.7 when there is a significant risk that the lawyer's interest in obtaining the appointment will materially limit the lawyer's independent profession judgment in advising the client concerning the choice of executor or other fiduciary. these appointments will be subject to the general conflict of interest provisions in rule 1.5 also states that the payment may be subject to rule 1.8(a).8(i). w/o client's consent. but the lawyer still might as well get the client's consent. there is no litigation involved. However. Using Confidential Client Information to Make Private Investments 1. Whether the lawyer may follow the client's direction to prepare the documents necessary to give herself title to the Mercedes Benz: lawyers are allowed to receive gifts from their clients. rule 1. . If the gift is a "token" gift. Whether lawyer's appointment as a compensate executor of a client's estate (or a similar fiduciary position) is a gift from the client w/in the meaning of 1. The doctrine of undue influence treats gifts from clients as presumptively fraudulent. however. and the lawyer is the beneficiary of the document.g. or prepare on behalf of a client an instrument giving the lawyer (or person related to the lawyer) any substantial gift unless the lawyer or other recipient of the fits is related to the client. the lawyer may not use that information to purchase on of the parcels in competition w/the client or to recommend that another client makes such a person. However.5. Compare to agency law. it is merely a fee and is therefore not subject to 1. investing in the parcel of land near the park would not disadvantage the client.

5(a) • When a lawyer is paid in money. 1. and regardless of the absence of prejudice to the client. Intimate Relationships Between Lawyers and Clients 1. However.This hits the divorce lawyers. Comment 17 says that the relationship b/t the lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence. if the stock appreciates in value substantially.7.8(k) states that rules (a) through (i) apply to all the lawyers in the firm (i.7(a)(2)(b). The rule prohibits the lawyer from having sex with a client regardless of whether the relationship is consensual. [Florida's rule is 4-8.  Which RPC’s are implicated by this simple fact pattern of stock for services? 1.5. the lawyer must satisfy the requirements of 1.Thus.look at rules. it seems that the only way that the attorney could act as executor is if she receives consent from the client while the client is alive. Note that 1. Doe counters by asking for a 10% stake in the company. which leads to the inference that if one lawyer in the firm is having sex with a client.8(a) • When a lawyer is paid in stock. under this rule. if one lawyer cannot do (a). (j) is not included. Whether the lawyer's license to practice should be put at risk if the lawyer and client enter into a consensual relationship involving physical intimacy: Rule 1.5(a) • When a lawyer is paid in property other than money. If there is an issue later when the will is to be probated.5(a) and 1.8 Variation 1 o Johnson askss doe to set up a corporation for him. D. the lawyer and client did not start having sex with each other until after the lawyer-client relationship started. under 1. their sexual relationship is per se unethical and it is unprofessional for the lawyer to continue in it. the laywer must satisfy the requirements of both 1. . If the client consents before he/she dies. client doesnt have to pay cash up front  Why would lawyers like Doe prefer stock rather than cash? • There is a substantial potential for upside gain over and above what the lawyer would have made if she had taken an hourly rate wage or contingency fee.4(i)]. . the probate court will deal with it. 1.Personal interests + interests of client issue • • Variation on Problem 12 (RPC 1. The relationship is almost always unequal. . and will provide legal services to the entity that issued the stock. then the lawyer must .7(b).e. then no other lawyer in the firm can either). the lawyer has complied with the ethical rules.  Why would clients prefer to pay with stock rather than cash • Inexpensive way to secure legal service. 1.8(a). Thus.8(j) states that a lawyer shall not have sexual relations with a client unless the consensual sexual relationship already existed between when the client-lawyer relationship commenced. and at the time the document is created.Can’t have sex with your client unless you were having sex before there was an atty/client relationship…. another lawyer in the firm can represent that client without a problem. Johnson explains he does not have sufficient cash and would like to pay over time. In this case. 1.

Doe will receive 10% of the comapny’s stock in exchange for (i) preparing articles.  How must Doe proceed if she wishes to comply with rule 1. the lawyers involvement in the transaction. most of the time but in 1.7(b)(4)? Under 1.7(b)(4) requires lawyer to acquire clients informed consent (which can be made orally) confirmed in writing and 1.8(a)? o Yes. is the transaction fair and reasonable under RPC1.  Is the stock a reasonable frr for these reasonable services? It is unclear to say whether or not the fee is reasonable.7(b)? consider whether there is a significant risk if her ability to do good work for the client will be compromised by her interest in the entity. If you accurately value what the lawyer gets for the servides provided and that deal is reasonable then one could say almost reflexively that the deal is fair and reasonable under 1.7(a)(2) and 1.8(a)(3) and RPC 1.o additionally satisfy 1.8(a))  What three things must Doe do to satisfy RPC1. and whether the lawyer represented the client in this transaction (must memorialize the deal) o What is the difference about documenting consent in RPC 1.5(a) should adress the other 1. • Doe must: advise the client in writing of the desriability of securing independent legal counsel regarding the transasction and provide the client a reasonable amount of time to secure outside counsel.8(a) assuming the transaction is fair and reasonable to the client? • Doe must: Disclose in writing the terms of the transaction. and how the lawyer will secure his/her interest in language that the client can understand. (same alaysis that adresses one rule(1. • Doe must: Client must give informed consent in writing and this wriiting must disclose the essential terms of the transaction. Under (b) if there is significant risk the lawyer then must get .5(a).8(a).7(a)(2) o This additional rule is implicated because the lawyer has a greater personal interest.8(a)(3) it is not permissable because the only way a lawyer can obtain informed consent in a writing by the client. and a shareholders agreement and (ii) preforming whatever additional work may be needed during the entity’s first year.8(a) there is an additional word fairness. by-laws. which is not included in 1. • At what point in time do we value the stock for purposes of making this determination?  Is the stock-services exchange fair and reasonable transaction from the client’s persepctive? Again it is unclear from the facts provided • If the fee satisfies RPC 1.5(a) and therefore textually alone there is a difference.

6(a) if she purchased an adjacent parcel but did not say anything about her property? No. • • Variation 2 Doe larns that Johnson’s company is secretly contemplating the construction of a new plant. and the lawyer cannot prepare a document conveying a gift from the lcient to the lawyer unless they are related  Can doe prepare the documents? No.7(a)(2)  What must doe do at this point if she wishes to comply with the RPC’s to the fullest extent possible? • She would have to obtain informed consent and disclose to the client that she has made the purchase of the adjacent parcel.7(b)(4) discussion different from the RPC 1. She knows where the plant will be located and anticipates that adjacent property values will increase once the company’s plans are disclosed.8(b) differ from RPC 1.8(a)? Variation 2 contd. o Which RPC is implicated in this circumstance? 1. Variation 3 Johnson is pleased with does work and wishes to give her a Mercedes-Benz as a gift. She purchases and adjacent property after concluding the client will not need it.8(b)? no because it only prohbits things which will disadvantage the client and if the company doesnt need the adjacent property then there will not be a disadvantage to the client then Doe is free to purchase the proerty.6 prohibits the lawyer from revealing information relating to the representation of a client.informed consent from the client. Johnson asks Doe to perpare the documents necessary to make the transfer.8 prohibits the lawyer from using the information to the disadvantage. so long as she purchases the property without revealing or saying why the lawyer is purchasing the property  What principle of agency law might create a problem for Doe even if her purchase does not violate RPC 1. Doe secretly purchases an adjacent parcel and then Johnson calls a meeting and asks Doe to attend. and 1. He announces he has located another piece of property for the plant on the other side of town and want input from those in attendance about which site they prefer o Which RPC is implicated when Johnson asks Doe for her opinion about the better site? Rule 1. the analysis of informed consent does double duty because the same analysis can be used for both rules.8(c) tells lawyers they cannot solicit substantila giflts from a client unless the lawyer and lcient are related.  How does RPC 1.8(c) says doe cannot prepare documents conveying a gift to the lawyer from the • • • • .6(a)? 1. o Does the purchase violate RPC 1. • Is “using” information different from “revealing” information? No • Would doe violate RPC 1. because 1. • Is the RPC 1.8(a) (3) discussion? No.

8(c) which prohibits solicitation of gifts from unrelated persons but does not preclude solicitation of gifts from lineal ancestors. and what is not. or prepare the documents  Can does law partner prepare the documents? No • Which additional portion of RPB 1. assuming she wished to comply with the RPC’s? continue to do legal work with Johnson and not have an intimate relationship with him. no other lawyer in that lawyers firm cant do it Variation 3 (contd) Johnson instead gives Doe a suitcase filled with 75. therefore this is allowed.8(a) tells lawyers with one limited exception if the lawyer cant do it becasue of something in 1.000 in cash. Doe is a huge baseball fan and has repeatedly asked Johnson to give it to her.. doe still cannot ask for it.client Would your answer change if Johnson was willing to give informed consent? No. or a token of appreciation) (term substantial is not expressly defined) o How might your RPC 1.8(c) assuming she and Johnsons are unrelated? No  What else might we want to know before answering this question? The worth of the baseball to determine if the gift is usbstantial or an insubstantial gift.  Child and Parent? This is an exception to 1. 1. o Is there anything in the RPC that would preclude Doe from accepting the cash? No.8 merely states a lawyer may not solicit but does not prevent a lawyer from accepting a gift.8 is implicated in this cirumstance? 1..8(c) draws a distinction between gifts made through an instrument and gifts not made through and instrument? Variation 3 (contd. and decendents.) Johnson has a baseball autographed by nearly every player who has hit 500 or more home runs during his career. there is nothing that precludes the lawyer from accepting a gift. Variation 4 Johnson and doe become involved at a personal level and are headed toward an intimate relationship.8 (a)(b)(c) etc. o Has doe acted consistently with RPC 1.  Does comment [6] provide any help regarding what is. or discontinue legal work and she may have • • • • • • • . o Why do you suppose RPC 1. and spouses.  Brother and Sister? May be related or may be unrealted depends on whether these non linear related persons continue to have a close familiar relationship with the lawyer and if so they are deemed related as per the rule. o What are Doe’s two options in this circumstance.8(c) analysis change is Doe and Johnson are. a “substantial gift”? the second and thrird sentences provide insight as to what is an insubstantial gift (a simple gift as would be given at a holiday.

for permission to include information aboiut the representation in his book? No.  Does your answer change if we identify the client as the company rather that as Johnson? RPC1.  Is there another portion of rule 1.  Does your answer change if Johnson is willing to give his informed consent to Doe’s continued service as his lawyer? No because rule 1. and could possibly influence the lawyers decision in regards to the client in litigation.8 that tex would have to satisfy if he . prior to the conclusion of this particular representation tex cannot ask for permission to include information about this representation in his book 1.8(e) only specifically names lawyers in a litigation standpoint therefore a transactional.  Does this difference make sense to you? Yes because the litigator would have to much of a stake in the litigation. at this point in time.8(j) does not indicate that conflcit cannot be cured by consent o If Doe decides to have an intimate relationship with Johnson.  (lawyers book/movie rights would have the greatest value if the case goes to trial. The client asks for a $5000 loan so that she can pay rent until her case is resolved? o Can tex make the loan consistently with the RPCs? 1.8 Comment 19 says if the individual either direct or supervises the lawyers work on beahlf of the client or someone who the lawyer regualrly consults then the individual becomes someone the lawyer may not have an intimate relationship with unless the lawyers stops representing the client. 3 o What do you suppose is the rationale for this rule? rationale in the absence of an outright prohibition.• • • • an intimate relationship with him. o How might/would your answer change if Tex were helping the client set up a corporation rather than handling a personal injury matter? It would change because the rule (1. or other kinds of non litigation attorney could make a loan to a client.8(d) par.8(k) typically refers to all the other lawyers in the firm with the exception of 1. a conflict of the lawyers interest and the clients interest may arise.8(e) says there are only two instances when a lawyer can provide financial assistance to a client.8(j) therfore allowing a person in the firm to represent the client Variation Five Tex is one of the nation’s leading criminal defense lawyers. can she ask one of her law partners to handle his legal work? Yes o Why isnt’ the conflict imputed to her partners in this circumstance? 1. In contrast that conflict is not necessarily present in the transactional context. and if the client pled out then the book/movie rights would be significantly reduced)  1. He is writing a book about his exploits and wants to include a chapter about his current representation of a professional athlete accused of using performance enhancing drugs.8(d) does not allow for informed consent for the conflict of interest Variation 6 Tex is handeling a personal injury matter for a client who is struggling financially. real estate.  Can tex ask the client.

When a transactional lawyer wants to give a loan a lawyer must comply with all the requirements of 1.4(4)  Tex must abide by their decision regarding settlement pursuant to . • transaction. • What is the “independence of professional judgment” problem in the insurance defense context? o How might the interest of the insurer differ from the interest of the insured with respect to the amount of effort the lawyer puts in defending the case? o Tex must information regarding to the representation to the client must be protected.8 is uniquely applicable in this circumstance? 1. • informed consent must be in a writing signed by a client • • Variation 7 Tex is defending a motorist in an automobile negligence case. o Can tex immediately accept the offer if he thinks it reflects a good settlement? No 1.wished to make a loan to this client? Rule 1.8(g)  Tex must speak with his clients about the offer pursuant to RPC 1.8?  Tex must Obtain the clients informed consent (doesnt have to be in writing therefore it can be Oral informed consent)  Tex must ensure during the course of the representaion there is no interference with his professional judgment because he is being payed by someone other than the injured client and ensure there is no interference with his attorney client privilege since he is being payed by someone other thatn the client... in words the client can understand) • tex must advise client in writing of the desireability of seeking independent legal counsel and provide the client a reasonable amount of time to secure the legal counsel.6(a) protects the information regarding the client from the insurance company. o What portion of 1. therefore he must look at the requirements of (a) 1-3 • transaction/terms on which the lawyer makes the loan to the client must be fair and reasonable from the clients perspective..8(a). 1.. and the terms which the lawyer acquires the interest must be fully disclosed (in writing.8(a) deals with lawyers entering into a loan outside litigation.The motorist’s insurance company hired Tex to defend the motorist and is paying ..(cannot reveal information relating to the representation of a client. VaRIATION 8 Tex rep. but can in 2 circumstances  (1) when the client gives informed consent  • • (2) the disclosure is impliedly authorized by the nature of the representation.8(f)  What must Tex do to ensure that he complies with this portion of Rule 1.

policy requires the insured to cooperate with All Mutual in the defense. In this case.8(g) (multiple parties in a civil action and those parties make or intend to make a settlement offer. Tenant later sued his landlord father-in-law for 175K All Mutual requires notice of accident (failure means waiver).6. Henderson hasn't told All Mutual any of this. All Mutual hired Henderson to defend Landlord. E.8 is also applicable? 1. and information relating to representation is protected as required under rule 1.8(f) states that a lawyer shall not accept compensation for representing a client from on other than the client unless the client gives informed consent. Henderson also thinks Landlord isn't cooperating since Landlord thinks fondly of Tenant. Larry saw and ran to him to help and Terry said he was all right so Larry didn't report the accident to All-Mutual.  How would you summarize the requirements of this rule? • Tex must obtain • In this context. Henderson is suspicious of Tenant's stories. the insured is the client. nor is oral consent confirmed in writing) o A discussion of the nature and basis of each claim o Client agreement to overall settlement amount and to what amount each client will receive  What happens if either client rfuses to give informed consent to either of these things? If these are not reached then a settlement cannot be reached. each client essentailly can veto either the big number or their individual number. Landlord wants All Mutual to agree rather than go to trial and put Landlord at risk for the 75 K in excess of his policy coverage. Henderson believes Landlord should be denied coverage for failing to promptly notify. informed consent requires: a writing signed by each client (oral informed consent is not enough. All Mutual has asked Henderson's advice on whether they should agree to the settlement. it will provide the lawyer to defend the insured. Problem 13 Representing the Insured and the Insurer Page 215 Facts Terry Tennant son in law of Larry Landlord rented an apt where he slipped on ice. A. Tenant has offered to settle for 50k. A Lawyer's Client When Retained by an Insurer to Represent an Insured 1. (Remember: this rule applies with any person other than . Rule 1. there is no interference with the lawyer's independence of professional judgment or w/the client-lawyer relationship.2(a) Because the offer covers the cliams of both plaintiffs what protion of RPC 1.o RPC 1.

 How might your answer change if the disqualifies lawyer trained an promoted all the other lawyers in the firm and. the lawyer may have to refrain from telling the insurance company under 1. o Can the lawyer represent the foster parent assuming he does not subjectively believe he can provie competent and diligent representation? No there is a conflict between the lwyers own personal interest and the person he is wishing to represent. It may be fraudulent for the lawyer not to say anything to the insurance company at the request of the insured. However. • • Variation 3 W & X represents World Wide in a lawsuit against National Gasket.. (concurrent conflict of interest)  Which RPC precludes the lawuyer from handeling this case? 1..10(a)(1) says in general a personal interest conflit of one lawyer are not imputed to the other lawyers in the firm.6 and 1.7(a)(2) o Would other lawyers in the same firm likely be precluded from representing the foster parent? No 1. The case involved the smae facts • Can Xeres represent World Wide consistently with RPC 1. • Variation 4 • A lawyer was sexually abused by a foster parent while in a foster home as a child. especially if their goals are not aligned with the insured's. they owe their professional status to him? They will probably not be able to provide competent and professional representation to the client. as a result. Under 1. the lawyer may have to withdraw.6 b/c the information is confidential and relates to the representation of the client. . unless (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client.7(a)(2) with the insurance company. B. a lawyer may reveal information to prevent the client from committing a fraud. then they have their own personal interest conflict by way of their loyalty to the lawyer who trained them. Willis is the only lawyers working on the case Xerex handled a case for NG while he was a solo practitioner.6(b)(2).9*c) this is material to the client. If there is a conflict b/t insured and insurer. A Lawyer's Obligation to Protect Confidential Information of the Insured 3.10(B) work? When a lawyer is terminated (leaves the firm) the firm is not prohibites from representing a person with interests materially adverse to those of the client represented by the formally assoiated lawyer and not currently represented by the firm. because of their own personal interest to the lawyer who trained them. therefore. however. Conflict can be waived.. there is no evidence that the client conspired with someone to arrange the slip and fall. if client gives informed consent. this can cause a conflict under 1. unless informed consent in writing is given • Can Willis represent World Wide Consistently with RPC 1. under the Florida rules.the client who pays for the client's legal services.10(a) • What can W & X do that would allow Willis to representWorld Wide even though Xeres cannot represent World Wide? • How would your answer change if Xeres represented.. However. • How might your answeeer change is Xeres represented National Gasket Whle he was a partner at W&X but left the firm of W&X before woirl wide approached W ad asked for his help? Gerrys departure takes with him the taint of national gasket o How does RPC 1.9(a) Yes. including parents). and (2) any awyer remaining in that firm has information protected by rule 1.

9(a) problem--even though the lawyer cannot reveal it or use it. The concern is that you have confidential information that may be harmful to people. F. However 5 years earlier. Whether a lawyer owes the same duty of loyalty to a former client as to a current one. You can't really monitor people using the confidential information. You look at the facts of the cases and extent of the lawyer's involvement. Even though 1.9(a) also says that they must be substantially related. you can reveal it. Doctor is pissed and moved to disqualify Heath as counsel for Parker Rule 1. the conflict check would make it difficult to take cases. however. legal issues might be the same.9 shows that matter covers more than lawsuits.9(c) stops a lawyer from using this confidential information. . that is not enough to say that we won't have a 1. what standards define when a lawyer may undertake a matter that is contrary to the interest of a former client: According to Judge Weinfield. Should the current med-mal practice case and the former adoption proceedings be held to be substantially related matters? Comment 3 (pg 45) states that matters are substantially related if they involve the same transaction or legal dispute. Same or Substantially Related Matter (comment 3 and 2) 2.9 were very strict. If you are revealing it you make it known. because the representation of the foster parent ay alienate the lawyer so much that their own economic interest may be affected. Is it possible that a loyalty argument is enough to disqualify the attorney? No. Former client informed consent A. In this case the client is making a loyalty argument. Rule 1. Interest are materially adverse 3. Abraham. former client must show that the matters in the pending suit are substantially related to the previous representation. OR a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. case on page 235 where the court held that the cases were substantially related]. Matters as to Which Disqualification Is Required 1. 2. General Motors Corp. Heath represented doctor in the routine adoption of his wife's children. you must conduct a loyalty test and confidentiality. if you can use it for strategy such as in settlement (if they are going to run out of money) and it is for the betterment of lawyer's current client.9(a) 1. Whether the term "matter" refers to only litigated cases: Matters are not limited to causes of action. Determining When Matters Are the "Same or Substantially Related" 2. Matter is not just limited to litigated cases. Comment 2 of rule 1. To decide if the matter is the same or substantially related. Problem 14 The Lawyer and Her Former Client Page 230 Facts Heath (well known attorney) has been retained by Linda Parker with a claim against Dr. If rule 1. B. The facts in this case are not the same. [Professor mentions Cardona v. Comments say that it also applies to transactions. How might your answer change if the disqualified lawyer has unilateral control over the compensation received bu all the other lawyers in the firm? Then the remaining have an even bigger personal interest congflict. Even in factually dissimilar cases.

9(b) and 1. Chugach case says yes. Are co-defendant's materially adverse? Most of the time you are going to have a loyalty issue. In order to make a disqualification claim the client does not have to reveal it to everyone. Suppose you are a law student who worked on case for Firm A b/t summers and then work for Firm B in the next summer? 1.3.10 comment 4 says that secretaries and law students are . Does it matter if it is a different part of the body? Professor mentions the lemon law case on page 235 Cardona. it is that lawyer's non-lawyer assist (secretary) who does? Comment 4 in 1. You have to get consent from the former client. This discusses the personality and the insight you gain in representing a former client (i. it wasn't enough-court said law firm didn't have specific information that would let it prevail. The rules try to make it easy for secretary and law clerks to move around. It says that you need consent from each affected client (but not current client). But in Jelco. Other Situations in which Model Rule 1.10(b) are to be taken together (note. Why would this lawyer even do this? What does materially adverse mean? It is not really defined anywhere. Abraham operates while intoxicated).10 comment [4] says that it really applies to the lawyer and not to the secretary or law student. that this is not relevant to this particular problem). They throw this question into this problem but it really goes to 1.9 May Require Disqualification 4.7(b)(4). Under 1.10 refers you to 1. Suppose that instead of a lawyer who has represented the  changing firms. knowledge of specific facts gained in a prior representation that are relevant to the matter will. but just know that it has to contain some kind of adversity. They will think it hurts their case and that is adverse. only the former client. Professor says that they don't appear to be materially adverse here b/c the matters are not substantially related. have a bad temper).9(a) Comment [3]." Rule 1. Go back to rule 1. You don't need consent from both parties. court said question not just whether he was connected to former client. just gained general information about Jelco's attitudes towards negotiation and settlement. but she does have general impressions of Abraham's personality and specific knowledge of his financial situation. Can you do it if you get consetn? You don't need consent from your current client (Parker) b/c it would benefit her. Rule 1. but whether he was in the position to acquire knowledge casting light on the purpose of later acts and agreements (he left a company as general counsel when the majority was taken out by minority and then later sued company representing a new client). "A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.10-if someone in my firm worked on this case. However in Jelco they said it was not enough. What if you were defended doctor in malpractice case 5 years ago and now you have been hired by one of his patients suing same doctor.lawyer was disqualified. however. Suppose attorney knows no crucial secrets (like Dr. They are aligned adverse here b/c they have been represented by the same attorney. 5.e. then no one else in my firm can. They still want to screen them from working on the case. provided that you detail how you are going about the screening procedures when arguing the motion. the lawyer should be disqualified. C. The question asked is could the lawyer presumed to have learned something in the previous case. general knowledge of the client's policies and practices will not preclude a subsequent representation. Could than make the cases "substantially related"? Chugach.0(k) ("screened. On the other hand. they like to settle." denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures w/in a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect). Even though they are to different body parts you still know a lot about the doctor.

ordinarily analyzed by what information client would have given to old representation Same transasaction or legal dispute A substantial risk exists that  Is the client required to disclose what she told her lawyer for the purposes of demonstrating the two matters are related? No comment 3 says the client is not required to disclose what she shared with her former lawyer.9(c)(1) a lawyer is .8(b) a lawyer is precluded to the representation to the client to the disadvanteage of the client. • • Can heath help defend Abraham assuming parker would not give informed consent? 1. Abraham case. who did not have anything to do with the parker v. • • Variation 1 Heath represents Parker in a medical malpractice action against Abraham. If the client is not required to disclose.6 or 1. the issues are different.9 The information is not material to the representation • How does RPC 1. departed Heath’s firm and joined Black’s firm? Comment 5 says if they have not aquired any information then there is no conflict o 1.7 situation or an RPC 1. and we presume the information has passed. or o o  Is the adoption matter substantially related to the malpractice matter? No.9 How do we determine whether two matters are “substantially related”? comment 3 if they involve the same transaction or legal dispute. focusing on comment 3 these two matters do not involve the same transaction/legal dispute.9(b): A lawyer who leaves one firm and joins another firm cannot thereafter representa a person whose interest are materially adverse to those of a current or former client of the prior firm in the same or a substantially related matter when:   The lawyer posses information protected by 1. Heath assisted Abraham five years ago with the routine adoption of his wife’s children but has not spoken to him since. • • Is this the same transaction or legal dispute? Is there a substantial risk that Heath learned something about Abraham in the adoption matter that will give Parker an advantage in the malpractice matter? Probably not.okay so long as they are screened.9 situation? 1. a lawyer would probably not bring up the subject of medical malpractice if an attorney is representing a adoption case. how does the court determone whener there is a potential for unfair advantage? Assumption is made given the issues involved in the earlier representation. •  How can the passage of time potentially affect the analysis? The issues may now be obsolete.9(a) and (b) issue How would your answer change is an associate.9(c)(1) differ from RPC 1. 1. o o Does this look like a RPC 1.

you can approach the person who may be the source of the problem.6(a)? (Class Notes from Zena Week 10) Variation Two • You decide to speak with the vice president responsible for the manufacture and sale of children’s pajamas to learn more about the situation. if warranted by the circumstances. including. o Is the vice president violating a duty to the organization. economic. or a law. social and political factors.1: ADVISOR . and to correct it.1 allow you to have a broader discussion with the vice president?  No. Second sentence of (b) “Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so. Comment [3]  Has the vice president missed a significant type of potential injury to the organization? • Damage to the corporation because of the representation  Has the vice president received a reasonable assessment of recoverable damages? o Are you limited to giving the vice president legal advice about the scope and effect of the regulation or does RPC 2. controls the attorney-client privilege If the vice-president agrees there is a problem with the pajamas. or perhaps both?  Both. • then is there any obligation to do anything else under RPC 1.13(b) permit you to approach the person • who may be the source of the problem or does it require you to approach a higher authority in the first instance? • Yes.000 children will suffer burns.13(f) and Comment 10 suggest how you should begin your • discussion with the vice president? • I represent the organization and not the individual • You may want to get his/her own independent representation (counsel) • The organization. From a textual perspective. does RPC 1.precluded o • Why do we need RPC1. that annual profit is $1M even after payment of $1M in civil damages each year.13(b) o Are you required to accept the vice president’s representation at face value?  Not required to accept his representations. and disclosure might impact his chances of succeeding the president. to the highest authority that can act on behalf of the organization as determined by applicable law” Comment 4 Does RPC 1. He tells you experts believe only 1 in 50. that management consultants calculate likely damages at $250K per burn victim.9(c)(1) given that we have RPC 1.other considerations such as moral.13(b)? • No Variation Three • The vice president tells you he does not believe regulators will recognize the problem.9(c)(2) given that we have RPC 1. and not you. that may be relevant to the client’s situation o Do you believe you should report what you have learned to a higher authority in the organization?  Yes but not required to do so Rule 2. Rule 1. the lawyer shall refer the matter to highest authority in the organization.8(b)? Why do we need RPC 1.

a lawyer shall exercise independent professional judgment and render candid advice. She tells you the vice president is the smartest person in the organization and would never second-guess one of the vice president’s decisions. In rendering advice. o Can you disclose what you know to an appropriate authority pursuant to Rule 1. after you receive the board’s response?  You may. social. but are not required. Variation Four • You take the issue to the president. Variation Five • You take the issue to the board of directors. only make the disclose to an appropriate authority who can protect the organization from itself. o What do you do. As such you cannot say that the sale of the children’s pjs constituted a clear violation of law. and political factors. She also tells you she wants the vice president to succeed her and disclosing these matters would kill the vice president’s chances. if anything. Variation Seven • You rethink your position.better interest of the organization. You accept the expert’s conclusion that four children might be severely injured each year but you conclude that the applicable regulations are unclear. economic. o What do you do. to report outside the organization Variation Six • You consider going public with what you know o Are you required to rethink your position or is your earlier analysis sufficient to support a decision to go public?  Analysis changes.is there a difference between the conditions that must exist for you to report up than the ones that must exist for you to report out? • Violation versus clear violation of law • Likely to result in versus reasonable certain to result in o Is there any limitation on what you can say (or to whom you can say it)?  Protect the organization from injury. a lawyer may refer not only to law but to other considerations such as moral.In representing a client.13(c)? . if anything. that may be relevant to the client’s situation. They listen to you and then side with the vice-president and president.reasonable certain injury to the organization  HINT. after you receive the president’s response?  Go to the board.

cannot make outward disclose under RPC 1.absence of a clear violation of law Is there another rule that you might invoke if you felt strongly about disclosing what you know to an appropriate authority?  Rule 1.1: TRUTHFULNESS IN STATEMENTS TO OTHERS In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person.6 (b)(1)-(3) • Lawyer hired to defend organization or constituent.13(c) Variations on Problem 19 RPC 4.6(b). or (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.6.2: COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL .allows a lawyer to make disclosures which are adverse to the interest of the client  Rule 1.1.13(c) ≠ RPC 1. or to conduct an internal investigation of wrongdoing. unless disclosure is prohibited by Rule 1. 4. You know about the pajama problem and you take the issue to the corporation’s president. reasonably certain to result in substantial injury • RPC 1.” o What does Rule 1.2.13(e) require you to do in this circumstance?  Obligated to inform the board of directors of your termination and include a description of the circumstances leading to your termination Testing Traps for the Unwary • Client is organization not constituents but o Communication between the organization’s lawyer and a constituent are protected from discovery by attorney-client privilege but o Organization controls privilege and can waive it without regard to whether constituent agrees • Obligation to make upward report attaches only when misconduct is related to representation • Conditions for upward report less stringent than conditions for outward disclosure o Violation of law vs.o  No. Much to your surprise. she fires you for “rocking the boat. Rule 4.6(b)(1) Variation Eight • Assume an altogether different scenario. clear violation of law o Likely to result in substantial injury vs.3 Rule 4. 4.

not all subjects o Does RPC 4. a lawyer shall not state or imply that the lawyer is disinterested. a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter. When the lawyer knows or reasonably should know that the unrepresented person misunderstands that lawyer’s role in the matter. during negotiations? o No.4(c) – applies in these two circumstances • Does RPC 4. RPC 4.1(a) prohibit a lawyer from telling a lie to her client? No o Does RPC 4.one exception exists when the client dies during the course of the representation • Does RPC 4.In representing a client.2 prohibit ex parte communication with respect to all subjects or some subjects?  Only to subject of the representation.1(a) RPC 4.2 prohibit ex parte communication with represented persons or represented parties?  Represented persons o Does RPC 4.1(a) Questions • What is the basic obligation imposed by RPC 4. Rule 4. Comment [1] o True or false. The lawyer shall not give legal advice to an unrepresented person.1(a) require a lawyer to disclose facts about which she is aware but which her adversary appears to be unaware? o No affirmative obligation to disclose what you know.2 Questions • What is the basic obligation imposed by RPC 4. unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.2? o Cannot have ex parte communications o Does RPC 4.Comment [2] not a material fact for the purposes of Rule 4.3: DEALING WITH UNDERREPRESENTED PERSON In dealing on behalf of a client with a person who is not represented by counsel. the lawyer shall make reasonably efforts to correct the misunderstanding.1(a) prohibit a lawyer from telling a lie to a friend at a social function? No  Rule 8.1(a) prohibit a lawyer from puffing and posturing about a client’s willingness to settle. or the amount at which she is willing to settle. 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.2 prohibit ex parte communication with persons who are represented by another lawyer or person who are represented in the matter by another lawyer?  Represented in the matter by another lawyer .1(a)? o Be truthful o Does RPC 4. other than the advice to secure counsel.

supervise. 10/20/10 Variation One • A pedestrian is stuck by a Speedy Corp delivery truck.a lawyer must always tell an unrepresented person that she is lawyer before she can interact with the unrepresented person? • True or false. Rule 11 (rule of civil procedure)  Why would a lawyer like Shabazz prefer to interview witnesses even after initiating litigation? • Determine if they would be good for trial. o Why would a lawyer like Shabazz want to interview witnesses before initiating litigation?  To determine if there is a cause of action (COA) RPC 3.• Who is off limited when the represented person is a corporation? o Comment [7] o Current employees who are either  Individuals who direct.a lawyer must always identify her client before she can interact with an unrepresented person? • What must a layer do and what must a lawyer not do when interacting with an unrepresented person? o The lawyer must not state or imply that she is disinterested in the matter o The lawyer must correct misunderstanding about the lawyer’s interest in the matter o The lawyer must not give legal advice. except for “you should get a lawyer. less expensive then deposing a witness. The pedestrian thereafter retains Shabazz to represent him in a negligence action.” when 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.1.3 Questions • True or false. . a Speedy Corp accountant. and the truck driver about the accident. or regularly consults with lawyer about the matter  Individuals who have the authority to bind the organization with respect to the matter  Individuals whose acts/omissions in connection with the matter may be imputed to the organization for purposes of civil or criminal liability o Why are former employees typically not off limits?  Former not current. Shabazz interviews Barry Winters. do not do anything that the current employees do RPC 4.

. He cannot talk to the truck driver.7(a)(2) conflict between the interests of Speedy Corp and the truck driver? • Significant risk that the representation of one or more clients will be materially limited by the layer’s responsibilities to another client • Which fact would Speedy Corp presumably want to emphasize to minimize its overall exposure given? o Only liable because of the negligent actions of one of the employees that happened during the scope of employment. vicarious liability. o Pin all responsibility on the employee to preserve its right of indemnification.because there is no concurrent conflict of interest  Why is there an RPC 1. because Barry Winters is not one of the 3 categorizes of employees under Comment [7] Can Shabazz properly interview the truck driver assuming Shabazz does not know that Bentley represented Speedy Corp in the matter?  Yes. Variation Two • Shabazz commences a negligence action and names Speedy Corp and the truck driver as defendants.can recover back each and every dollar from the employee. o Can Bentley represent both Speedy Corp and the truck driver in this matter?  Yes.o o Can Shabazz properly interview Barry Winters assuming Shabazz does not know that Bentley represent Speedy Corp in the matter?  Yes. it’s the policy’s fault not the driving that is the proximate cause of the pedestrian’s injuries. RPC 4. Other ∆ is solely liable for the accident. Indemnification. • Which fact would the truck driver presumably want emphasize to minimize his overall exposure? o Take the position with purposes of complying with the policy. he is the employee whose negligent actions will be imputed to the organization for the purposes of fixed liability in this case. because he has no knowledge of the representation. he does not know that there is a lawyer representing the Speedy Corp in this matter  Would your answer be any different if Shabazz knew that Bentley represents Speedy Corp in the matter? • Yes.2  Would your answer be any different if Shabazz knew that Bentley represents Speedy Corp in the matter? • No.

3 • The lawyer must not state or imply that she is disinterested in the matter • The lawyer must correct misunderstanding about the lawyer’s interest in the matter • The lawyer must not give legal advice. . except for “you should get a lawyer. confirmed in writing? • No.7 to determine whether there is a concurrent conflict and if it can be waived Variation Four • Bentley decides not to represent the former employees but she wants to speak with them about the impact the one-hour delivery policy has had on safety issues? o Which RPC should Bentley be mindful of when she speaks with the former employees?  RPC 4. o Can Shabazz avoid knowledge about Bentley’s involvement in the case simply by refusing the read the notice of appearance?  Knowledge would be inferred in this situation.7(a) violation look to (b)(1) and therefore cannot ask for consent under (b)(4). because they do not fall into one of the three categories under Comment [7] of RPC 4.2 purposes  What might Bentley consider doing to ensure that Shabazz cannot interview the former employees on an ex parte basis? • Represent them  What rule might prevent Bentley from implementing this strategy? • RPC 1.1.by virtue of receipt o Does Bentley’s notice of appearance prevent Shabazz from conducting interviews of former employees of Speedy Corp regarding the effect of the one-hour delivery policy on safety issues?  No.if there is a 1.” when 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. Is this a concurrent conflict that can be waived so long as both clients provide informed consent. Variation Three • Bentley serves and files a notice of appearance stating that she will be representing Speedy Corp and the truck driver. Reasonably believe that they can provide competent and diligent representation to both clients.0(f).

o

o

What must Bentley do if one of the former employees says that he read about the accident and is thankful to have her as his lawyer?  Tell the former employee No, that he represents the Speedy Corp. What must Bentley do if one of the former employees asks her whether he is exposed to any claims as a result of the accident?  Run through the analysis; Cannot give advice- be in conflict with the client’s interest

Variation Five • One month after Shabazz commences a lawsuit Mary Speedy decides to telephone the plaintiff directly and offer to settle the case. o Can Mary speak with the plaintiff consistently with RPC 4.2?  Yes, RPC only applies to lawyers, nothing prohibits client to client communication o Can Bentley give Mary advice about what to say during the conversation with the plaintiff?  Nothing impermissible in advance of a client to client communication o How might your answer change if Bentley came up with the idea of having Mary speak directly to the plaintiff?  Take into consideration of whether Mary is an alter-ego of Bentley. RPC 8.4(a) clause 3- Bentley cannot ask Mary to have that conversation- Violate or attempt to violate the RPC or do so through the acts of another Variation Six • Mary Speedy telephones Shabazz to speak with him about settling the case. o Can Shabazz speak with Mary because she initiated the call?  No- RPC 4.2  Would your answer change if Shabazz said he cannot talk to her but she replied that she can fend for herself? • No- there are no exceptions  Would your answer change if Shabazz said he cannot talk to her but she replied that she just fired Bentley and is therefore underrepresented? • Yes- can have a conversation with her Variation Seven • Shabazz telephones Mary Speedy to talk about the budget for a homeless shelter for which they both serve on the board of directors. o Is this communication prohibited by RPC 4.2?  Only prohibits ex parte communications that relate to the subject of the representation Testing Traps for the Unwary

• • • • •

There is no general duty to disclose facts about which an adversary is unaware A lawyer can puff and posture during settlement negotiations The no contact rule applies to represented persons not just represented parties The no contact rule applies only to communications regarding the subject of the representation not all subjects The prohibition on giving legal advice to an unrepresented person, other than “you should get a lawyer,” applies only when there is a reasonable possibility of a conflict between the interests of the client and the interests of the unrepresented person

Variations on Problem 22 RPC 1.2, 1.6, 2.3 Rule 2.3: Evaluation for Use by Third Persons (a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client. (b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent. (c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6. Evaluations for Use by Third Persons • How would you summarize RPC 2.3(a)? o Whenever there is a client need, to share information about the client to a third person it is okay to do so, so long as reasonable belief is compatible with aspect of relationship to the client. o Who is the intended beneficiary of the evaluation?  Third person  Does a lawyer who provides an evaluation assume any tort duties to the recipient? • Yes- Duty to be honest with the third party  Does a lawyer who provides an evaluation owe any ethical duties to the client? • Yes- compatible with the representation of the client • RPC 2.3(b)- knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely. • RPC 2.3(c)- information is still protected by RPC 1.6 o Is an opinion letter a type of evaluation for use by a third person?

Yes- lawyer’s opinion about some matter (can be positive or negative)  Client is selling real property wants to give the buyer an opinion letter from her lawyer stating that client has good title and that there are no competing claims of ownership  Auditor of client’s financial condition wants opinion from client’s lawyer that client is not involved in litigation and that lawyer is unaware of any facts that could give rise to a claim. How does RPC 2.3(c) affect the way a lawyer proceeds when preparing an evaluation, such as an opinion letter? o Retain the client’s confidences unless he has informed consentRPC 1.6(a) that will be contained; disclose information- informed consent/permission and so long as disclosure is impliedly authorized. o Does the lawyer typically need the client’s informed consent to make disclosure when preparing an evaluation?  Yes/No depends on the situation  If the client asks the lawyer to prepare the evaluation, then the lawyer is impliedly to make disclosure in order to carry out the representation.  But, RPC 2.3(b) will still require the lawyer to consider whether the information would have a material or adverse affect on the client’s interest. 

Rule 1.6: CONFIDENTIALITY OF INFORMATION (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (2) 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 in the furtherance of which the client has used or is using the lawyer’s services; (3) 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; Permission to Disclose • How would you summarize RPC 1.6(b)(2)? o Does (b)(2) apply to situations in which the fraud is on-going or completed?  On-going; proactive disclosure to protect the client from committing the crime or fraud o Does (b)(2) permit disclosure if the fraud is unrelated to the work the lawyer is doing for the client?  No- Lawyer is not permitted; Must have assisted the client in things that are setting up the fraud; advancing the client’s fraudulent intent o What is the purpose of disclosure in this context?

9 (a). National Gasket has sought to disqualify C & B and W & X from acting as World Wide's lawyers b/c Xeres (while he had been a solo practitioner before forming W & X) had represented National Gasket in various product liability matters arising out of the same facts that led to the present suit.13(c). Case is to be tried in New Orleans and C & B is cooperating with Willis & Xeres. Under rule 1. the law firm that World Wide uses as local counsel in New Orleans.6(b)(2) and (3). His only role is to file papers. and other pleadings forwarded to him by C & B. Whether Willis may continue to act as local counsel for World Wide: We know that Xeres is disqualified under rule 1. thus including Willis under 1. trying to protect victim from the fraud How would you summarize RPC 1. Xeres' disqualification under 1.13(c) differ from RPC 1. Comment [2] says that it only applies to lawyers who practice in a law firm. motions. Willis of W & X is only lawyer in that firm working on the case. .protect the client who is the victim  1.10(a).victim o The person whose injury is to be avoided or reduced?  1.6(b)(2) and (3). Since he is disqualified under 1. big wall street firm. Imputation of Conflict Throughout a Law Firm 1.6(b)(2) and (3) with respect to o The intended beneficiary of the disclosure?  1. Problem 15 Imputed Disqualification (Page 244) Facts Charles and Burls. then so is W. against Worldwide for contribution in a products liability case.13(c).9(a) imputes to the whole firm. Comment 1 to 1. A. Xeres learned confidential information that if disclosed would be useful to World Wide's defense in the present suit.9(a) b/c National Gasket was a former client.6(b)(3)? o Focused on completed fraud.10 says that a firm is essentially one lawyer.protect the victim’s financial interest and property  G.client  1.10(a). C & B has never represented National Gasket.• • Prevent the use of legal services to carry out fraud. it does not that he is not doing anything in this case. disclosure is intended to mitigate the damages of the client’s fraudulent acts o Does (b)(3) apply to situations in which the fraud is on-going or completed?  Completed o Does (b)(3) permit disclosure if the fraud is unrelated to the work the lawyer is doing for the client?  Only when the lawyer’s services have been used to further the crime or fraud o What is the purpose of disclosure in this context?  Protecting the victim from the client’s fraudulent crime and activities How does RPC 1. in many matters one of which is a suit by National Gasket Co. C & B. If X is disqualified. represents national cliental including Worldwide Containers Corp.

When we have a lawyer that moves around we don't have 1.9(b) say whether her new firm will also be disqualified? According to comment 5 of rule 1. what does Model Rule 1.9. This rule allows this b/c don't want to make it difficult for others to move around.0(c)). If the court disqualifies the firm of W & X and all of its partners and associates.. If Xeres' confidential knowledge about National Gasket is imputed to Sandra Jones. it is going to be ok. an associate of W & X. 1. Rule 1. neither the lawyer individually nor the second firm is disqualified. they are just filing the papers. and 2. any lawyer remaining in the firm has protected information.10(b)-when a lawyer has terminated an association with the firm. or lawyers employed in a legal services org.10)? . If Jones is disqualified.9 conflicts (i. Now suppose Xeres resigns from the firm of w & X. then yes. and C&B may not be imputed by X of W&X. professional corporation.9). your personal belief is that everyone involved in corporate wrongdoing is horrible). matter is same or substantially related. 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. About whom the lawyer had acquired confidential information? [Does not appear that she has any confidential information based on the facts we know]. Professor says that they don't appear to be holding themselves out to be one firm.7 and 1.9(b) is to allow a lawyer to be able to move around and switch firms.If this is a personal conflict as opposed to the 1. then it will impute the whole firm.9(b). The premise of 1. B. It is World Wide's local counsel and C&B has their local firm. or other association authorized to practice law. or other organization.10 says that when X leaves he takes this taint with him and unless W has confidential information. To determine if they hold themselves out to the public as one firm: Have to determine if they are affiliated with each other by looking at if they have a close and regular continuing and semi-permanent relationship (p249). A person's knowledge may be inferred from circumstances. and then Jones leaves to join a 2nd firm.9(a) but 1. Are her interest materially adverse? [Yes] 2. or the legal department of a corporation.10(b) says it depends on whether W has any confidential information. and that lawyer later joined another firm. Persons and Firms to Which Imputation Will Extend 1. The test is: 1. Under 1. Comment [2] says that if they hold themselves out to the public as one firm. may C & B simply get new local counsel? Will the disqualification of W & X required that C & B be disqualified? Comment 1 says that "firm" means lawyers in a law partnership. W is not doing the research.9(b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge of information protected by rules 1.0(f) "knowingly" means actual knowledge of the fact in question. (This is the flip side to rule 1.9(b) deals w/ where someone was in a firm formerly associated with that client.6 and 1. 2. Comment [5] to rule 1. They do not seem to hold themselves out as one firm. (See 1. you do not have to be involved in the litigation but someone else in your firm can. 3.9(c). What can the firm do? Rule 1. Will W still be disqualified? 1.e. Where the lawyer has acquired no knowledge or information relating to a particular client of the firm. sole proprietorship.9(b)). Look at the lawyer who is leaving: are we inquiring what the lawyer can do who leaves and goes to a new firm (1. Would there be any harm in picking a different local counsel then W&X? No. or are we inquiring as to what the law firm the lawyer left behind can do (1. since W is working on the case. Jones must have actual knowledge. Personal conflicts are not subject to this rule.

However.10 recognize the availability of screening to avoid imputation in the case of lawyers like X who have moved from one private firm to another? Rule 1.11(d)(2)(ii) Government Lawyer negotiate for job 4.11(a)(b)(c) and 1. the lawyer who received confidential information. Problem 16 Special Problems of Government Lawyers (Page 260) Rule 1. Both the effective client and prospective client give informed consent in writing. Paragraph D allows you to do something different.11 Government ---> Private Private ----> Government 1.D. IF u can not get informed consent. The Use of "Screening" To Avoid Imputation 1. Lawyer shall clarify his role if lawyer believes unrepresented person misunderstands his role - - - - . lawyer shall not state or imply he is disinterested. unless other lawyer consents or is authorzed by law or a court order. that screening of lawyers is permissible. rule 1. 2. H. Rule 1. Does Rule 1.11 (d)(2)(i) and 1.10 does not provide for screening in the private firm setting. Protects person who has chosen to be represented (see comment 1) Applies even if represented person initiates or consents to the contact (see comment 3) Lawter may communicate with person represented w/matters outside scope of representation 4.10 (comment 7) 1. in dictum or otherwise.10 (comment 7) 1.2 Represented Persons Lawyer shall not communicate with person lawyer knows is represented.18 IF the client left confidential information with you.0(k) states that "screened" denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures w/in a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect. A number of cases have now said.3 Unrepresented Persons If lawyer knows person is unrepresented.

generally should be given as soon as practicable after the need for screening becomes apparent. However. no lawyer in a firm w/which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom. which states that when a lawyer is disqualified from representation under (a). unless the appropriate government agency gives its informed consent.9 only prohibits representation that is materially adverse to the former client. Rule 1. Comment 7 to rule 1.10 specifically states that where a lawyer has joined a private firm after having represented the government. however. non-governmental employment. states that a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer A way around this is to screen the lawyer and have someone else in the firm do it.9 A. but only after the lawyer has notified the judge or other adjudicative officer). Is rule 1. Thus.(b) and (c). or in another government agency. unless the appropriate government agency gives its informed consent. and now Smithers cannot do anything to help Quick.10. may negotiate for private employment as permitted by 1. a lawyer is not prohibited from receiving a salary or partnership share established by prior independent agreement. and thus 1. and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with this rule. Smithers needs the informed consent of the FTC to be able to work on the Quick case. under comment 6. imputation is governed by 11. Is Smithers barred from all activity w/in his own law firm in the case involving Quick? Can he talk to Quick about what the FTC is likely to do? Rule 1. Remember in this case.9(c) (cannot reveal confidential information).S. 1. Comment 7 states that notice.12(b) states that a lawyer serving as a law clerk to a judge may negotiate for employment w/a party or lawyer involved in a matter in which the clerk is participating personally and substantially.11(c). 4.11(a) states that except as law may otherwise expressly permit. Under 1. confirmed in writing. not 1.7/1.12(b). . a lawyer who has formerly served as a public officer or employee of the government: (1) is subject to rule 1. Note that (a) and (b) do not prohibit representation based on adverse interests. It is likely that the FTC will not consent. and (2) shall not otherwise represent a client in connection w/a matter (see rule 1. however.11(d)(i) The Rules Applicable to Former Government Lawyers 3.11(d).1(d)(2)(i) states that a lawyer currently serving as a public officer or employee shall not participate in a matter in which the lawyer participated personally and substantially while in private practice or non-governmental employment. to the representation (except that a lawyer serving as a law clerk to a judge. 1. but he can be cordial and say hello when he sees Quick in the firm. confirmed in writing.11(b) kicks in. Can Smithers at least take Quick out to lunch? Probably not. that Quick only came to the firm because of Smithers.11 so limited? How about 18 U. where a lawyer represents the government after having served clients in private practice. but that lawyer may not receive compensation directly relating the lawyer's compensation to the fee in the matter in which the lawyer is disqualified. former-client conflicts are not imputed to government lawyers associated w/the individually disqualified lawyer (if it were then the IRS could never get any work done).C. it is a criminal statute that sets forth the periods of time during which a government official cannot reveal any information). Rule 11. § 207? (Rule 207 just limits the amount of information that a government official can reveal. other adjudicative officer or arbitrator. Rule 1. including a description of the screened lawyer's prior representation and of the screening procedures employed.11(e) as to definition of "matter") in which the lawyer participated personally and substantially as a public officer or employee.Government Lawyer subject to 1.

B. Under 1. and any other matter covered by the conflict of interest rules of the appropriate government agency. Mary said mom sometimes hit them and sent them to bed hungry. In rendering advice. accusation. client. charge. Anderson says husband John is abusive and she often leaves home in fear of her life. Limits on the Advice a Lawyer May Give 1. economic. or application of the law. malnourishment. scope.11(d)(2)(ii) states that a lawyer currently serving as a public officer or employee shall not 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. b/c the lawyer's business will suffer. or assist a client. However. a lawyer is not expected to give advice until asked by the client. Comment 9 states that this prohibition does not preclude a lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct. controversy.1 states that in representing a client. a lawyer may refer to other considerations such as moral. or is she seeking experience and judgment about how to deal with her situation? Rule 2. Whether Smithers did anything wrong when he was negotiating for employment prior to his retirement from the FTC: Rule 1. arrest or other particular matter involving a specific party or parties.C. and Billy. Anderson. request for a ruling or other determination. and abuse on two kids. Advising Clients A. investigation. we must decide Smithers' involvement and whether he improperly negotiated for a private job in violation of rule 1. but that is not always the best solution. nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself . The Difference Between Advice and Advocacy 1. Whether the lawyer's job is only to return the client's children. in conduct that the lawyer knows is criminal or fraudulent. Here. application. when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client. Negotiating for Post-Government Employment While Still in Government 1. a lawyer shall exercise independent professional judgment and render candid advice. V. you could withdraw. contract. (Remember. "matter" can relate to either litigation or transactional).11(d)(2)(ii). 7. Mary.16. but a lawyer may discuss the legal consequences of any proposed course of conduct w/a client and may counsel or assist a client to make a good faith effort to determine the validity. Investigation shows neglect.2(d) states that a lawyer shall not counsel a client to engage. comes to you and complains welfare dept has taken her children away.11(e) defines "matter" as any judicial or other proceeding. John has job but is paid in cash and so cannot be reliable. She also left them for hours with no adults to care for them. the lawyer's duty to the client under 1.4 may require that the lawyer offer advice if the client's course of action is related to the representation. Mrs. and political factors. Rule 1. Social workers at school became suspicious with Mary's bruises and malnourishment after several days of absence. Problem 17 The Lawyer For an Individual Client (page 276) Facts Mrs. social. She wants her mother to live with her but husband says no and gets violent. meaning. Comment 5 says that in general. Rule 1. A. 3. claim.

Comment 6 states that in determining the extent of the client's diminished capacity. If. may be able to tell the client which countries do not have extradition treaties with the U. mental impairment. If she were to become ill.6. the lawyer recommends a particular country to the client.6 – you may reveal info when you are impliedly authorized. or guardian. It might actually be beneficial b/c the lawyer might be able to talk the client out of that course of action. Thus. variability of state of mind and ability to appreciate consequences of a decision. whether b/c of minority. Anderson to avoid Medicaid being able to take it? If it is a crime to do this. under subsection (b) seek to take action to protect the client. These rules make a huge distinction between past conduct and present or ongoing conduct. Note that under subsection (c). as far as reasonably possible. 1. Anderson regain custody of her children? Well. the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision.S. but only to the extent reasonably necessary to protect the client's interests. she may have crossed the line.6(a) to reveal information about the client. would it be criminal or fraudulent for the attorney to help Mrs. maintain a normal client-lawyer relationship with the client. can she reveal that her client abuses her children? 2. the lawyer shall. Problem 18 Advising the Business Corporation (Page 289) . 3. and the consistency of a decision w/the known long-term commitments and values of a client. then the lawyer might have a 1. even though the client can move to Florida anytime he wants. the lawyer is impliedly authorized under 1. about helping a wealthy client buy an expensive house in Florida or set up a trust in the Islands that would exempt those assets from being seized by creditors if the client ever went bankrupt? The purpose is important here. under comment 9. information relating to the representation of a client w/diminished capacity is protected by 1. Rule 1. Under 1. or less.2(d) problem. What if a client charged with murder asks you which South American countries have no extradition treaties with the United States? The lawyer.  Take protective action. Would it be wrong for the attorney to encourage Mrs. such as by seeking appointment of a guardian ad litem. If his purpose is to evade creditors.6. May not be able to get consent to reveal confidential information because of their diminished capacity. conservator. Anderson's mother owns her own house and a few stocks but has no other source of income. there exists a duty to report when child abuse is present. we may have a 1. The lawyer may also. Is it obvious what it means to "counsel or assist" wrongdoing? Under comment 9. the laws in Florida were expressly set up to protect a person's homestead from creditors.14 states that when a client's capacity to make adequately considered decisions in connection w/a representation is diminished. she cannot assist her by fighting for her to get custody. the house could be seized to reimburse Medicaid for her care. Would you be more uncomfortable. substantive fairness of a decision. but on the other hand. because she is affirmatively assisting the client in fraud. B. 4. on the other hand. C. Anderson's mother to give the house to Mrs. What if Mrs. or for some other reason. The Client Suffering from Diminished Capacity 1. If it’s a tax planning thing and it is a loophole but still legal – it’s ok. When taking protective action.2(d) problem. there is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.make a lawyer a party to the course of action. If the attorney believes that the client is committing the crime of child abuse.

13. The lawyer may reveal such information only where the organization's highest authority insists upon or fails to address threatened or ongoing action that is clearly a violation of law (which appears to be the case here w/the VP). the responsibility in the organization and the apparent motivation of the person involved.1. the lawyer should continue above the VP to other authorities that can act. which states that a organizational client is a legal entity. who has refused to take action.13 are concurrent w/the authority and responsibility provided in other rules.1. no duty to investigate affairs but do it when it best interest of client. Additionally. or refusal to act must be (1) a violation of a legal obligation to the organization.16. Exception in 1. Thus. Although the VP is an officer of the corporation and therefore the corporation acts through him (see comment 1 to 1. etc. the policies of the organization concerning such maters. and (2) likely to result in substantial injury to the organization. You haven't been asked for advice on whether to keep marketing them and VP is angry that you know and has threatened your job. and the VP has told him to butt out. or a violation of law that reasonably might be imputed to the organization. including. if he wants to take a course of action that is not in the best interest of the corporation. intention to act. The Client to Whom a Corporate Lawyer Owes Primary Loyalty 1. if warranted by the circumstances. not the corporation's VP. Any measures should be taken to the extent practicable to minimize the risk of revealing information relating to the representation to persons outside the organization.000 per victim. 1. 3.13(c) supplements 1.) Rule 1. this rule is trying to protect the lawyer who learns something just because he is a friend (like lawyer and VP on golf course when lawyer isn't representing co.3.). it will be necessary for the lawyer to take steps to have the matter reviewed by a higher authority in the organization. and then only to the extent the lawyer reasonably believes necessary to prevent reasonably certain substantial injury to the organization. The client here is the corporation. A. B. Otherwise. At that point. etc. Thus. If a constituent persist in conduct contrary to the lawyer's advice. Comment 4 states that the lawyer should give due consideration to the seriousness of the violation and its consequences. . the attorney's duty is to the corporation. (Similar to Sarbanes Oxley) Here. Reporting Corporate Misconduct Within and Outside the Client Organization 1.13(b) is a two part test: the officer's engagement in action. comment 6 to rule 1.13(b): the lawyer does not have to proceed if the lawyer reasonably believes that it is not necessary in the best interest to do so. Management consulting firm said civil damages couldn't exceed 250. VP says experts say that only 1/50K children would hold the matches to the PJs for a fire to start.Facts Outside counsel to Sleepwear that makes children's pj's which are flammable and VP is aware of this. 1. It is more profitable to sell the pajamas and pay for any damages than not to sell them. What steps are you required to take in this situation? When does a lawyer's obligation shift from taking orders to taking action? The attorney here is representing the corporation in an unrelated matter.13 states that the authority and responsibility provided in rule 1. or 4. b/c the lawyer's representation is unrelated to the pajamas).6(b) by providing an additional basis upon which the lawyer may reveal information relating to the representation.8. this rule does not limit or expand the lawyer's responsibility under rules 1. but it cannot act except through its officers. but it is required that the matter be related to the lawyer's representation of the organization. to the highest authority that can act on behalf of the organization as determined by applicable law. the lawyer has tried to speak to the VP. There is a broad scope of lawyer's employment. Should he just butt out? Rule 2. the lawyer shall refer the matter to a higher authority in the organization. This is a "scope" issue. comment 5 states that a lawyer is not expected to give advice unless asked for it. It is not necessary that the lawyer's services be used in furtherance of the violation (which it is not here. the lawyer shall proceed as is reasonably necessary in the best interest of the organization. not to him.

whether or not 1. 1.13(d) states that the foregoing shall not apply w/respect to info relating to a lawyer's representation of an organization to investigate an alleged violation of law. or other constituent associated w/the organization against a claim arising out of an alleged violation of law. partners)  Lawyer may separately or additionally represent a constituent (such as an officer or an employee) but doing so may raise RPC 1. shareholders.13(a)  Applies to all organizations (corporations. etc. despite the lawyer's efforts. employees.) • See comment [1]s reference to unincorporated associations • See comment [9]s reference to governmental organizations o Who is the client and the consequences of who is the client  Client is organization and not its constituients (such as officers. because the rule is discretionary (uses the word "may"). a client is entitled to a defense w/o their confidential information being "spilled. then the lawyer may reveal information relation to the representation. and the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization.13(b)  If • A lawyer knows that a • Person associated with the organization • Is engaged in action. or refuses to act in a • Matter related to the representation • That is either o A violation of a legal obligation to the organization OR o A violation of law that might reaonably be imputed to the organization • And that is likely to result in substantial injury to the organization  Then . but only if and to the extent the lawyer reasonably believes necessary to prevent sub stantial injury to the organization. governmental agencies. or to defend the organization or an officer. Cannot reveal information relating specifically to what the lawyer was hired to do. C. that is clearly in violation of law.6 permits such disclosure. there is really no excuse for not doing so. Lawyer Liability for Failure To Take Appropriate Action Since rule 1. labor unions. intendeds to act. employee.13(c) states that if.13 o Application to lawyers and to organizations  Applies to outside counsel and in house counsel • See RPC 1.13(c) states that a lawyer may reveal information relating to the representation of the corporation.7 issues  Lawyer must explain that client is organization and not constituent when speaking with constituent if she knows or reasonably should know that organiation and constituent have adverse interest o Obligation to upwardly report – RPC 1. he will not be disciplined under these rules. the highest authority that can act on behalf of the organization insists upon or fails to address an action or a refusal to act." Comment 7 states that this rule is necessary to allow organizational clients to enjoy the full benefits of legal counsel in conducting an investigation or defending against a claim. If the lawyer does not reveal information.1. • Overview of Rule 1. partnerships.

o Can a lawyer make an upward report when the lawyer knows of wrongdoing that is unrelated to the work she is doig for the organization? Nothing in the rule that specifically tells you that you cant make the upward report of misbehavior which • . o Why is obligation to make an upward report limited to situations in which the wrong doing is related to the work the lawyer is doing for the organization? No reason to report personal mibehavior which has nothing to do with the organization.• • The lawyer shall proceed as is reasonably necessary in the best interest of the organization o Speak with misbehaving person if this is reasonable o Speak with person at next level of organizations hierarchy if necessary o Speak with person or group at highest level of organization’s hierarchy if necessary.6(b)(1)-(3) are separate. We limit a lawyers obligation report misbehavior to the matters which he is working on because he is uniquely knowledgeable in that are and b/c he is a credibe person to come forward in that matter.6(B0(1)-(3) o Difference in application  RPC 1. and who will take action to resolve it. A borard will normally not have any stake in the wrongdoing.13(C) and 1. • Information can be revealed under o Difference in Intended beneficiary  An RPC 1.13(c)  If • The highest authority in an organiation • Insists upon or fails to address in a timely and appropriate manner • A perons’s action or refusal to act • That is clearly s violation of law and • That is reasonably certain to result in a substantial injuury to the organization  Then • The lawyer may reveal information relating to the representation of the organization to an outsider o Only so long as the lawyer reasonably believes doing so is necessary to prevent substantial injury to the organization o And then only to the extent the lawyer reasonably believes necessary to prevent injury to the organization Rules 1.13(c) and RPC 1. stand-alone rules that must be viewed as such  Lawyer may reveal information when the requirements of one rule are satisfied without regard to whether the requirement of the other rule are also satisfied. or (b)(3) disclosure seeks to protect a third person from a misbehaving client o Similarity in non-obligation  RPC Big picture questions o What is the assumption underlying upward reporting? Eventually the higher you go there is someone who does not have a stake in the misbehavior.13(c) disclosure seeks to protect the client from misbehaving constituents  An RPC 1. o Discretion to ouwarly Report – RPC 1. (b)(2).6(b)(1).

.13(b) permit you to approach the person who may be the source of the problem or does it require you to approach a higher authority in the first instance? You can go to the person who may be the source of the problem in the first instance RPC 1. or a law. o Does the absence of an obligation preclude you from taking action? You can still make a report if you think appropriate but you are not required to make that report. (if you can fix the problem by going to the source of the problem first and it is reasonable then you can do that) o Does RPC 1. 10/18/10 • • Variation 3 The vice president tells you he does not believe regulators will recognize the problem.13(b)? no. You know that federal regualtions prohibit the sale of products known to cause burns to children. • Variation 1 • While working on an unrelated matter.13(b)(2nd sentence) and [Comment 4] can be properly constued in this fashion because it says unless the lawyer believes it is not in the best interest in the organization to do so. • Variation 2 • You decide to speak with the vice president responsible for the manufacture and sale of childrens pajamas to learn more about the situation.  I represent the organization and not the individual  You may want to get their own outside counsel  The organization. and not you. controls the attorney/client privelege o If the vice president agrees there is a problem with the pajamas and to correct it. and as the organizations lawyer you should begin the discussion by disclosing 3 things (1) you represent the organization not the individual. He tells you experts believe only 1 in 50. o Why is outward reporting limited to situations in which there is a clear violation of law? b/c of the damage to the organization an internal report can be handled by insiders once there is an outside report the information is out in the public. So you can use your discretion if ou want to. you learn that sleepware tests confirm that its children’s pajamas can ignite when matches are held against them for a few seconds. (2) tell the individual he/she may want to get their own outside counsel. then is there any obligation to do anything under RPC 1.13(b)? there is no obligation under (b) because the fact pattern says you are not working on this matter but on a unrelated one.occurs in area unrelated to the work she is doing for the organization. that management consultants calculate likely damages at 250. and disclosure might impact his chances of succeeding the president. the vice president placing his interest ahead of the organizations better interest is violating the fiduciary duty of loyalty of the organization. there is a regualtion which may prohibit the sale of pajamas which are not fire retardent and if the vice president keeps selling them there could be a violation of the law. that annual profit is $1 million even after payment of $1 million in civil damages each year. 000 children will suffer burns. (3) tell the individual the organization controls the attorney/client privilege. if you correct the problem there is no need to go any higher. o From a textual persepective does RPC 1. o Does thsi variation contain a fact that eliminates any obligation to do anything under RPC 1. o Is the Vice President violating a duty to the organization. or perhaps both? Both.000 per burn victim.13(F) and comment [10] suggest how you should begin your discussion with the vice president? In this circumstance you necessarily know the source of the problem may have interest diverse from the organization of the enitity.

You accept the expert’s conclusion that four children might be severley injured each year but you conclude that the applicable regulations are unclear.13(b) you are required to do so. Comment 3 says normally it is not your job to second guess the vice president or the client in regards to business risks. then the President may place more interest in seeing the vice president in succeed her then the very best interest in the organization so since there is no reasonable response by the president you must work your way higher up in authority. if anything after your receive the boards answer?  You can consdier going public to protect the corporation from itself.• • • • • • • Are you required to accept the vice president’s representations at face value? No you do not have to accept them. because the president would like the vice president to succeed her. o Can you disclose what you know to an appropriate authoirty pursuant to rule 1. o Are you required ti rethink your positiong or is your earlier analysis sufficient to support a decisions to go public? Yes  Is there is a difference between the conditions that must exist for you to report up that there ones that must exist for you to report out. o Is there another rule that you might invoke if you felt strongly about disclosing what you know to an apporpriate authority? 1. If the president looks past the issue and doesnt want you to say anything. Variation 5 You take the issue to the board of directors. and political factors that may be relevant to the client’s situation.6(b) specifically (1) Variation 8 o . As such you cannot say that the sale of the clildren’s pjamas consititutes a clear violation of law. yes • There must be a clear violationg of law • That is reasonably certain to reult in injury to the corporation (as opposed to inward reporting needing only “likely to reult in harm”)  Is there any limitation on what you can say (or to whom you can say it?) can only disclose if and then only to the extent you reasonably believe necessary to protect the organization from substantial injury either in whole or in part. economic.1 allow you to have a broader discussion with the vice president? There is nothing that prohibits the lawyer from discussing all of the relevant factors. o Are you limited to giving the vice president legal advice about the scope and effect of the regulation or does RPC 2. social. They listen to you and then side with the vice-president and president. Variation 7 You rethink your position.13(c)? no because there is no clear violation of law.  Has the vice president missed a significant type of potential injury to the organization? Yes. o What do you do. under 1.1 also says a lawyer can weigh in on moral. damage to the organization/companys reputation  Has the vice president received a reasonable assessment of recoverable damages? No a lawyer is more knowledgeable and more uniquely qualified to judge damages in this kind of matter than would be a management consultant since this is what lawyers do for a living. o Do you believe you should report what you have learned to a higher authority in the organization? Yes. Variation 6 You consider going public with what you know. but this is different because this is not just business risks. RPC 2.

If a client dies then the lawyer must get a new client in order continue. during negotiations? No. clear violation of law  Likely to result in substantial injury vs. So if a client dies then the lawyer must inform the adversary. cannot make outward disclosure under RPC 1.6(b)(1)-(3) (must take each rule into consideration separately) o Lawyer hired to defend organization or constituent.13(c) RPC 4.• • Assume an altogether different scenario.1(a) require a lawyer to disclose facts about which she is aware but which her adversary appears to be unaware? No there is no affirmative obligation (may be a discovery obligation but ethically speaking there is no obligation see comment 1 RPC 4.13(c) is not equal to RPC 1. and therfore the opposing counsel should be informed. Testing traps for the unwary o Client is organization and not the constituents but  Communications between the organization’s lawyer and a constituent are protects from discovery by attorney-client privilege but  Organization controls privilege and can waive it without regard to whether constituent agrees o Obligation/duty to make upward report attaches only when the misconduct is related to representation.  Violation of law vs.2 prohibit ex parte communication with respect to all subjects or .” o What does rule 1.2 prohibit ex parte communication with represented persons or represented parties? Persons o Does RPC 4.1(a) Questions • What is the basic obligation imposed by RPC 4. o Conditions for upward report less stringent than conditions for outward disclosure. o Does RPC 4.1(a).1(a) prohibit a lawyer from puffing and posturing about a client’s willingness to settle. RPC 4. Much to your suprise she fires you for “rocking the boat.13(e) require you to do in this circumstance? If you reasoanbly beleive you have been terminated for the representation because of you wanting to report upward. or the amount at which she is willing to settle.2? when representing a cleint in a matter they cannot have ex parte discussions with persons represented in the matter by some other lawyer. [comment 2] is not a material fact for 4.1(a) prohibit a lawyer from telling a lie to her client? No (doesnt apply to a client. You know about the pajama problem and you take the issue to the corporation’s president.1(a)? o Does RPC 4.2 Questions • What is the basic obligation imposed by RPC 4. only applies to 3rd parties) o Does it prohibit a lawyer from telling a lie to a friend at a social function? No it doesnt apply to a lawyers personal life (applies only when in representing a client) • Does RPC 4.1) o True or false – one exception exists when the client dies during the course of the representation ex. reasonably certain to result in substantial injury o RPC 1. if a lawyer represents a client in a personal injury action the lawyer must inform the adversary. • Does RPC 4. your are required to inform the highre up (the board) of your firing. or to conduct an internal investigation or wrongdoing.

except for “you should get a lawyer. President Mary stood with accountant Barry Winters when Speedy Truck hit a pedestrian elderly man causing severe injuries. not all subjects. o The lawyer must not give legal advice. RPC 4. Problem 19 Contact With Represented and Unrepresented Persons (Page 302) Lawyers frequently contact others on behalf of clients. (1)-(3). however. These contacts are regulated. the contacts are to obtain or deliver information.some subjects? Just the subject of the representation.” when there is a reasonable possibility of conflict bewtween the interests of the client and the interest of the unrepresented client and the lawyers o C. there is nothing in the rules that say you must do this. Facts Speedy Corp. (the person within the scope of their employment which may have been wrongful) (actions or inactions which expose the organizations liability) o Why are former employees typically not off limits?  Because they will typically not be people who fulfill any of the three things above. Employees of the company witnessed the . due to concerns that lawyers might mislead an opposing party or interfere w/that party's relationship w/its own lawyer.  A lawyer must always identify her client before she can interact with an unrepresented person? No not always  What must a lawyer do and what must a lawyer not do when interacting with an unrepresented person? o The lawyer must not state or imply that she is disinterested o The lawyer must correct misunderstadnings about the lawyers role in the situation the lawyer must take reasonable steps in correcting the misunderstanding in the role the lawyer plays. Does RPC 4. (typically the president or someone who can say yes we will settle and if yes. supervise. or regualrly communicate with the organizations lawyer about the matter.  (2) Those individuals who have the authority to bind the organization with respect to the matter. how much we will settle for.2 prohibit ex parte communication with persons who are represented by another lawyer or persons who are represented in the matter by another lawyer? Those who are represented in the matter.)  (3) Individuals whose acts or ommissions may be imputed to the organization for the purposes of establishing the organiations liability in the matter. promises to deliver packages within an hour which makes drivers take dangerous chances.3 Questions  A lawyer must always tell an unrepresented person that she is a lawyer before she can interact with the unrepresented person? No. Typically. • Who is off limits when the represented person is a corporation? [comment 7] o Current employees who are either:  (1) Consituents/individuals who direct.

4(a). Restatement third § 100(2) is very similar to the model rule. representing the elderly man. Thus. Comment 4 also states that a lawyer may not make a communication prohibited by this rule through the acts of another under rule 8. However. This rule protects one's client. b/c she supervises. the lawyer must communicate with the opposing party's attorney. b/c his acts could impute criminal or civil liability to the corporation. Here. Contact With a Represented Opponent In General 1. So. the lawyer cannot get his secretary to communicate w/opposing counsel's client at his direction and then report back to the attorney w/regard to what the other client said. Shabazz then contacted Mary for an interview and Barbara told Mary to decline unless in formal deposition. This rule eliminates those concerns. but such actual knowledge may be inferred from the circumstances. 3. directs. directs. we have the company accountant. Comment 8 states that the prohibition on communications w/a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter discussed. Under comment 4. would have the effect of binding the organization w/respect to proof of the matter. With regard to the accountant.2 states that a lawyer shall not communicate about the subject of the representation w/a person the lawyer knows to be represented by another lawyer in the matter. May represented clients talk to each other w/o going through their lawyers? Yes. for example. parties to a matter may communicate directly w/each other. etc. and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Thus. this rule prohibits communications w/a constituent of the organization who supervises. or regularly consults w/the lawyer concerning the matter or if the agent has power to compromise or settle the matter.accident. interviewed Barry and truck driver without telling Speedy's lawyer Barbara. b/c an attorney can never be sure of what his/her client will say to opposing counsel. it is obvious that the lawyer cannot speak to Speedy (the president of the corporation). Attorney Shabazz. A. there may be corporate counsel. and the president of the corporation. Comment 7 states that in the case of a represented organization. Note also that under 4. the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious. Special Issues When Dealing w/Officers and Employees of an Organization 1. Barbra wants to investigate to find out if Speedy would be criminally negligent and Shabazz of course would like to talk to the same people. unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. b/c it is possible for the lawyer to circumvent the rule by "speaking" to the other client through his own client. or (c) if a statement of the employee or other agent. Rule 4. . the truck driver. Thus. or regularly consults w/the organization's lawyer concerning the matter of has authority to obligate the organization w/respect to the matter or whose act or omission in connection w/the matter may be imputed to the organization for purposes of civil or criminal liability. under applicable rules of evidence. It says that opposing counsel may not contact current corporate employees and agents without the other lawyer's permission in three situations: (a) if the employee or other agent supervises. Whether lawyer has a right to interview the employees of company responsible for the accident: In this case. He cannot use methods that violate the legal rights of the organization under rule 4. (b) if the acts or omissions of the employee or other agent may be imputed tot he organization for purposes of civil or criminal liability in the matter. B. a lawyer is prohibited from interacting with persons who are not represented at all.3. The lawyer also cannot speak to the truck driver. Must be actual knowledge. it seems that the lawyer can speak to him.4. but is limited by comment 7 in methods of obtaining evidence. 4. and thus contact w/him would not be proper under comment 7 either. this may potentially be problematic. directs.

Authority to Participate in and Consummate Negotiations 1. Interviewing Client Employees and Other Unrepresented Persons 2. and that such person may whish to obtain independent representation.2. It states that a lawyer shall abide by a client's decisions . If the former constituent is not represented. the consent by that counsel to a communication will be sufficient. was at fault in a car accident with a person who suffered 25K in injuries and damages. If a constituent is represented in the matter by his/her own counsel. and its best defense might be to dump the liability on the truck driver and blame him for speeding. must recommend separate counsel. Should the defense attorney (for the corporation) take a "we're all in this together" approach? She could. the consent shall be given by an appropriate official of the organization other than the individual who is to be represented. If the organization's consent to the dual representation is required by 1. There is no rule directly on point about negotiation.7 from both affected parties to represent them both. The lawyer will need to get informed consent under 1. b/c the lawyer is limited on communicating with a person who is unrepresented. it is unprofessional for opposing counsel to take witnesses to lunch who are employed by the opposing party. Whether there are limits on how opposing counsel may conduct his interviews of the eyewitness. the truck driver). 19. A. This rule applies most directly to actual bribes. rule 1. Here. It doesn't look right. that the lawyer cannot represent such constituent. however. Problem 20 The Ethics of Negotiation (Page 318) Facts Young. comment 10 points out that there are times when the organization's interest may be or become adverse to those of one or more of its constituents. or by the shareholders. 4. then 4. Young lied to cop and said he didn't drink but really had 3. The closest rule is 3. (G) states that a lawyer representing an organization may also represent any of its directors. etc.2(a) gives an attorney the authority to do so. employees. Under (f). and if the lawyer does not get it. D. You have plea negotiations with the prosecutor and settlement discussions for potential criminal and civil claims which Young hasn't discussed with you but insurance company gave you authority to settle for 20K in civil damages. especially if the other constituent would otherwise be unrepresented. a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents w/whom the lawyer is dealing. etc. whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest. Whether the prohibition against contacting corporate employees should apply to former employees: comment 7 states that consent of the organization's lawyer is not required for communication w/a former constituent. but it also is not prohibited by law. which it does not appear is the case here. In this case. officers. who are neither represented nor treated as represented by corporate counsel: Can he take them to lunch? It depends. the lawyer should advise any constituent (here. However.7 (conflicts of interest). which states that a lawyer shall not counsel or assist a witness to testify falsely or offer an inducement to a witness that is prohibited by law. However.. C.3 will kick in. in dealing w/an organization's directors. Speedy is worried about defending the speeding policy to make its deliveries on time.13(f) and (g). Still. under rule 1.4(b).

concerning the objectives of representation, and under 1.4(b), a lawyer shall consult w/the client as to the means by which they are pursued. 4. Whether a lawyer should be required to tell the client about all settlement offers received from the other side: Yes! Rule 1.4, comment 2 states that a lawyer must promptly consult with and secure the client's consent prior to taking action unless prior discussion w/the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable, or has authorized the lawyer to accept or to reject the offer. 5. Whether the client should be bound by a settlement that the lawyer was not authorized by the client to make (i.e. whether a lawyer may assume that the lawyer for the other side has authority to make the settlement being proposed): NO. This goes back to agency law. The client is not going to be bound, and the lawyer may face malpractice. Additionally, a lawyer who affirmatively misrepresents his or her settlement authority is subject to liability for this misrepresentation. B. The Duty of Honesty in Negotiations Note: Rule 4.1 is tied to Rule 8.4(c) 1. Whether the attorney may assert that his client had nothing alcoholic to drink on the day of the accident: no. This question is narrow and specific. To state that the client had nothing alcoholic at all to drink would be a lie. [Remember from evidence, however, that statements made during negotiations or in a negotiation setting is inadmissible in court. This is to encourage negotiation and the settlement of cases]. If the negotiations were to fail and the issue was to go to trial, the lawyer could not then continue the lie and encourage the client to testify in depositions and at trial that he had nothing at all to drink. Such would be a blatant violation of the rules 4.1 and 8.4, b/c it would be a material misrepresentation of fact. The best answer at negotiations would perhaps be a question, "What proof do you have that my client was drinking?" Comment 2 to Rule 4.1 states that under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a claim (e.g. "My client won't take a dime under $5000!" when the lawyer knows that the client would take $4000) are ordinarily in this category, and so is the existence of an undisclosed principal except where non-disclosure of the principal would constitute fraud. Comment 1 also states, however, that a lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. 2. Are all lies created equal? No. Some lies will be tolerated (see comment 2 above), while others are forbidden. It is ok, for example, to fake anger at a negotiation, mostly b/c it would be impossible to monitor and sanction that type of behavior. C. The Duty to Volunteer Information or Correct a Misapprehension 1. Whether a lawyer should ever be required to disclose facts affirmatively in a negotiation: No. See comment 1 to rule 4.1. That does not mean, however, that a misrepresentation cannot occur for which the lawyer may be disciplined. (E.g. A lawyer cannot fail to disclose to the opposing party that his client is no longer living. Even though comment 1 states that a lawyer does not have an affirmative duty to disclose relevant facts to the opposing party, in this case, failing to do so constituted a misrepresentation of material fact and the lawyer was held in violation of 4.1). 4. Whether the rules about negotiation should be different in criminal cases: criminal law

is different because the defendant's liberty is at stake. How candid should a prosecutor have to be about the strength of the evidence? Rule 3.8 governs the special responsibilities of a prosecutor, and subsection (d) states that the prosecutor shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. 5. Whether in the plea-bargaining negotiations w/the prosecutor, a criminal defense counsel may assert that he/she "knows" the client is innocent: technically, rule 4.1 does not make exceptions based on the motivation for lying. However, there is a justification for it because the defendant's liberty is at stake. There seems to be a difference between lying to deceive someone into changing their position and lying to see how they would honestly react to a set of facts. However, some courts state that there are no exceptions to rule [4.1] against misrepresentations and that the prohibition applies to all lawyers in all cases. D. Possible Limits on the Results that Can Be Reached in Negotiations 1. May a lawyer agree that in exchange for a generous financial payment to the lawyer's client, neither the lawyer nor the client will file criminal charges against the opposing lawyer for conduct would justify the charges? The Model Rules are silent; however, the ABA issued a formal opinion (page 332) stating that a lawyer may use the possibility of bringing criminal charges in negotiations in a civil case if both the civil case and criminal violation are well-founded in fact and law, the lawyer does not suggest improper influence over the criminal process, and the threat would not constitute extortion under the law. The lawyer may even agree not to file criminal charges as an element of settling a civil claim if that agreement would not violate a provision of law that required reporting of crimes. Thus, the formal opinion answers the question with "maybe," as long as doing so would not hinder the criminal process. Does it follow that a lawyer should be permitted to agree not to file disciplinary charges against an opposing lawyer to induce settlement of a civil case? No! The ABA states that a lawyer may not agree to fail to report any mater the lawyer is required to report under 8.3(a). That rule states that a lawyer who knows that another lawyer has committed a violation of the Rules of PR 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. 2.The Model Rules do not permit an attorney to settle a matter for his client by agreeing, for example, never to defend another drunk driving case. Rule 5.6(b) states that a lawyer shall not participate in offering or making an agreement in which a restriction on the lawyer's practice is part of the settlement of a client controversy. This is b/c if you as a lawyer agree not to accept a certain type of case, it denies the public access to your services for that type of case, and limits the freedom of clients to choose a lawyer.

E. Problem 21 The Lawyer as Evaluator Rule 2.3 Evaluation for Use by Third Persons Lawyer hired by a client to do an evaluation on the client that will be used by a third party in a transaction affecting the client

F. Problem 22 Rules: Assisting client in fraud, crime 1.6(b)(2)(3)

4.1(b) 1.2(d) 1.16 1.13(b)(c) - may Obligations When the Client May be Engaged in Fraud Facts International Energy, publicly traded company on NYSE, is about to issue new securities. Strength of company based on reputation for research which is making patents for energy saving devices. Company's auditors have declared International Energy to be in outstanding financial health. Director of research, who is a friend of yours, told you at lunch one day that devise hasn't been sufficiently tested. Engineer told you that the production facility for the devise was purchased by a shell corporation owned by company's new president (who is shady). He said price paid was way high. Auditors didn't catch the problem and didn't footnote that purchase was from company officer. So balance sheet of the corporation looks better than it would if the facility were carried at its true value. You have been hired to write a favorable opinion letter for the company about these devices. A. Disclosure of a Client's Intended Crime or Fraud 1. How sure are you that what your friend has told you is true (i.e. do you really know that your client's new product is unreliable)? Under rule 1.13(b), if a lawyer for an organization knows that an officer, employee, or other person associated w/the organization . . . intends 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. Rule 1.13 requires you to ascertain that this information is accurate, and then to report it to someone "higher up" in the company. However, this information is certainly confidential, and the company will not want it exposed to the public, which gives rise to a 1.6 problem as well. 3. Other obligations the attorney has under the Model Rules that must be taken into account: Rule 1.2(d) states that a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent. Rule 4.1(b) states that 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. Could the lawyer simply withdraw and not take any action? What consequence would the opinion letter then have? Everyone (the public, for example) could rely on the information in that letter, and the lawyer has the duty to minimize the harm that the opinion letter could case b/c he/she knows the information is false or inaccurate. This would be a misrepresentation of fact under 4.1. Additionally, comment 10 to rule 1.2 states that a lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of w/drawal and to disaffirm any opinion, document, affirmation, or the like (see 4.1). Comment 6 to rule 1.13 states that the authority and responsibility provided in rule 1.13 are concurrent w/the authority and responsibility provided in other rules. In particular, this rule does not limit or expand the lawyer's responsibility under rules 1.8, 1.16, 3.3, or 4.1. Rule 1.13 states that the lawyer "may reveal." Does 1.6 require the lawyer to reveal? 1.6(b)(2)-(3) comment 8 says it may and not shall reveal. (b)(3) allows you to rectify the situation assuming you had no idea there was misrepresentation or fraud. It allows the lawyer to reveal the information that before they would not be allowed to reveal. Therefore if the corporation is not

or who w/draws under circumstances that require or permit the lawyer to take action under either of those paragraphs.16(b)(2)?  1. However. C.2(d) → Lawyer must know 1. Specific ABA and SEC Responses to a Series of Corporate Failures 3." or "knows" denotes actual knowledge of the fact in question --.A .2(d) & 1. does require the lawyer to report "up" the corporate ladder. What if the attorney is fired b/c the client sees that he is reporting the fraud "up the ladder?" Under 1. Sarbanes-Oxley: does not require the lawyer to reveal confidential information protected by 1.16(a)(1)? Lawyers cannot take representation when doing so violates RPC & once realize the representation violates RPC then lawyer must withdraw o Which rule tells a lawyer that she cannot counsel a client to engage in or assist a client in conduct the lawyer knows is fraudulent?  1.13(e).going to do anything about it a lawyer may act.16(a)(1)?  If lawyer finds herself counseling a client doing fraud → lawyer must withdraw  If lawyer undertakes representation of legit client but comes to learn that her representation being used to further a fraud → lawyer duty bound to withdraw because continuing representation of client would be furthering the fraud  No discretion → lawyer must withdraw • How would you summarize 1. Class notes 10/25/10 Withdrawal Due to Client Fraud • How would you summarize 1.16(b)(2)? A lawyer may withdraw when lawyer reasonably believes is criminal or fraudulent o What is different about the extent to which the lawyer recognizes the client’s misconduct in 1. a lawyer who reasonably believes that he/she has been discharged b/c of the lawyer's actions taken pursuant subsections (b) or (c). shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or w/drawal.2(d) → lawyer cannot counsel to engage in or assist in conduct lawyer knows is fraudulent o How does this rule relate to the lawyer’s obligation to withdraw under 1." "known.0(f) → "Knowingly.6.

• How would you summarize 1.16(b)(2) or 1.16(b)(2) → Lawyer reasonably believes Reasonably Believes = subjective belief from 1.4(a) (5) . • A lawyer who withdraws from the representation of a client in transactional context → the lawyer does not “quietly” w/o giving notice to anyone but the client • A lawyer who withdraws from the representation of a client due to a client fraud or crime must consider whether more is required. .16(b)(3)?  1. . person's knowledge may be inferred circumstances 1. 1.16(b)(3)? A lawyer may withdraw when client used lawyer’s services to perpetuate crime/fraud o What should we be looking for in a fact pattern to determine whether the lawyer’s situation is governed by 1.16 (b)(2) → conduct ongoing  1.Lawyer should sit down w/ client & tell client to change course or lawyer must walk away → 1.0(i) → "Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.0(h) → "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer. o What must the lawyer do if she previously provided an opinion letter or other document to the person who is the target of the client’s fraud?  If lawyer does not do anything → lawyer assisting the ongoing fraud  1st .16 (b)(3) → conduct has already happened o Why difference w/ (b)(3)?  B/c Lawyer needs to separate herself from situation even though conduct already occurred  Used often when client used lawyer’s services for fraud in past & now wants to use lawyer’s services again → protects lawyer from being used again Withdrawal Plus.

6(b) because disclosure is not reasonably necessary .If client does not want to come clean or change course of action → lawyer must withdraw 3rd .6(b) → lawyer needs to do what lawyer believes is reasonably necessary  THUS → if revoking opinion letter halts fraud then lawyer is CANNOT disclose under 1.1(b) → must decide whether is permitted under 1.6(b) or 4.THUS → lawyer must disaffirm/disavow/revoke her opinion letter Lawyer must contact target of the opinion letter & say that she is walking away from the opinion letter o What do you suppose will happen when the person who is the target of the client’s fraud receives word that the lawyer is withdrawing and/or is disaffirming her earlier work?  Sends red-flag to target that something is not right & should start investigating o Why do you suppose the comments imply that this sort of “noisy” withdrawal is preferable to disclosing information relating to the representation of the client?  Allows target of the fraud to investigate & gather info on its own & protects lawyer-client relationship → lawyer does not have to breach client’s confidentiality unless absolutely necessary o What must the lawyer also consider if she or the client made a material misstatement or omission to the person who is the target of the client’s fraud?  Under 4.   2nd .1(b)?  Must do the least intrusive thing to bring fraud to halt  If revoking opinion letter brings fraud to halt → then not required to go any farther  1.6(b)  If yes → then must disclose  If no → cannot disclose o If a noisy withdrawal is sufficient to bring the fraud to a stop – can the lawyer still make a disclosure under 1.

its reliability overstated & client overpaid for a new production facility & its value on the balance sheet is overstated. Letter states: I do not know of any material facts inconsistent w/ my client’s positive statements to you regarding the prospects for this product or the company’s overall financial health.1 → Cannot make misstatement of material fact o Can you revise the opinion letter & send it to the bank w/o obtaining the client’s consent? NO .o What does the last sentence of Comment 3 to 4. o Can you sign & provide the opinion letter to the bank as it is currently written? NO  4.” The director of R&D tells you the product has not been sufficiently tested.1 suggest about the propriety of disclosure if there is a less invasive way to avoid assisting the client’s crime or fraud?  Drafters of the Rules figured a tiered approach for withdrawal: • 1st Silent withdraw → Give notice to client but no one else & often this is sufficient EX: when lawyer not had any communication w/ others or target of fraud prior to lawyer’s discovery of client’s conduct • 2nd Noisy Withdraw → alerting target of withdraw EX: disaffirm/disavow/revoke any docs lawyer has assisted in providing to target (this may be enough) • 3rd Very noisy withdraw & Disclosure of fraud to target EX: disaffirm/disavow/revoke is not sufficient to correct fraud → sometimes need further disclosure must be made  NOTE: Only use withdrawal tier for what lawyer believes reasonably necessary to distance herself from the client’s fraud Variation 1: • You prepare a draft opinion letter that your client intends to submit to a bank for purposes of obtaining a loan to finance the manufacture of new product.

    Lawyer CANNOT unilaterally change opinion letter w/o your client’s informed consent 2.3(b) → if lawyer prepares an evaluation for a client & the evaluation will have a material or adverse affect on the client then lawyer cannot provide the evaluation without the client’s informed consent If you were to change the opinion letter to include the statements of the R&D director → then client not likely to get the loan THUS → if sent revised opinion letter have material adverse affect on client o Are you required or permitted to withdraw in this circumstance?  YES → you are permitted to withdraw & may even be required to withdraw o Does 1. then should you withdraw quietly or noisily if you have not had any direct or indirect contact w/ the bank?  Quietly → so far all dealing w/ is a DRAFT opinion letter & not had any contact/communication w/ the bank so noisy withdraw is NOT reasonably necessary  Noisily → if draft opinion letter has been delivered to the bank or the lawyer has been communicating w/ the bank for loan purposes then lawyer needs to withdraw noisily Variation 2: • Assume the same facts except you speak w/ director of R&D after you sign the opinion letter & after it is submitted to the bank but before the bank disburses any funds.4(a)(5) suggest how you should proceed in the 1st instance?  Tell lawyer that when they find themselves in a predicament w/ a crime → lawyer MUST speak w/ client before withdraw o If you cannot convince your client to come clean. o Are you required or permitted to withdraw in this circumstance? o Is there a 4.1 issue that should still consider before pulling trigger & walk away? .

1(b) require a lawyer to correct her own material misstatements or omissions to avoid assisting a fraudulent act? yes Does RPC 4.1(b)? • Step one requires the lawyer to analyze whether the prior .2(d) → Must not assist client in engaging in criminal/fraudulent act  1.1(b)?   Does RPC 4.6 o How does RPC 1.  o Can you also share what you know w/ the bank? NO  Financing has not occurred → so no actual damage to bank yet IE: Fraud not completed until company receives financing from bank  Need to notify bank that you disaffirm/disavow/revoke your opinion letter & let bank investigate why o Which rules are applicable to your analysis?  o How does the bank’s reaction to your withdrawal potentially affect your ability to share what you know?  o What does the last sentence of Comment 3 of 4.6 prohibits the disclosure there is not requirement to disclose. October 25.YES → still obligation to communicate w/ client to convince client to come clean o If you cannot convince client to come client then should you withdraw quietly or noisy? Noisy  1.6 there is a mandatory obligation to disclose under 4.  What are the analytical steps a lawyer must follow for purposes of determining whether she must make a disclosure under RPC 4.1 tell us about the drafter’s perception regarding withdrawal in the context of client fraud.1(b)? unless the disclosure is prohibited by RPC 1. 2010 • Obligation to disclose o How would you summarize RPC 4.1(b) require a lawyer to correct the clients material misstatements or omissions to avoid assisting a fraudulent act? Yes so long as disclosure is not prohibited by RPC 1.16 → Must withdraw b/c otherwise your opinion letter (thus you) are assisting a client’s criminal/fraudulent act.1(b) and if 1.6 affect the lawyers obligations under RPC 4.

16(b)(2)? A lawyer may withdraw when the clients persistent in course of action using the lawyers services and the lawyer reasonably believes what the client is doing is criminal or fradulent.misstatement or omission constitutes fraud under the governing substantive law. What should we be looking for in a fact pattern to determine whether the lawyer’s situation is governed by RPC 1.1(b) Withdrawal due to client fraud o How would you summarize RPC 1.16(b)(2) says the lawyer just must reasonably believe (subjective belief which is objectively reasonable).16(b)(2) 1.2(d) and RPC 1..  What is different about the extent wo which the lawyer recognizes the client’s misconduct in RPC 1.16(a)(a) How would you summarize RPC 1. How would you summarize RPC 1.1(b) RPC 1.16(b)(3)? if the criminal activity or fraud that is not yet completed (b)(2) if the criminal activity or fraud is already completed focus on (b)(3)   • Withdrawal plus. A lawyer who withdrawals from the representation of a client due to a client fraud or crime must consider whether more is required  What must the lawyer do if she previously provided an opinion letter or other document to the person who is the target of the client’s fraud? You must say something so it is not ktaken as you facillitating your clients fraud or crime Under 4.16(a)(1)?   o Which rule tells a lawyer that she cannot counsel a client to engage in or assist a client in ocnduct the lawyer knows is fradulent? How does this rule relate to the lawyer’s obigation to withdraw under RPC 1. (b)(2) the client is following a path to the crime of fraud (3) the client has used therefore the crime or fraud has already happened. •  • • • Step two requires the lawyer to analyze This analysis results in two outcomes RPC 1.6(b) permits lawyer to make disclosure and therefore lawyer make disclosure under RPC 4.6(b) does not permit lawyer to make disclosure and therefore lawyer make disclosure under RPC 4.16(b)(2) or 1.2(d) states the lawyer must know (actual knowledge of the fact in question) the various things described in (d) but in 1.16(b)(3)? Lawyer may withdraw when the client has used the lawyers services to perpetuate a crime or fraud. o o A lawyer who withdrawals frim the representation of a client in the transactional context typically does so quietly without giving notice to anyone but hte client.1(a)(5) talk to your client and revoke/disaffirm your opinion letter by letter or phone • What will happen when the person who is the target of the client’s fraud receives word that the lawyer is withdrawing and/or is disaffirming her earlier work? Send a message to the recipient that here is something wrong and they should therefore start ..

” The director or R&D tells you the product has not been sufficiently tested. (2) noisy withdrawl (3) disclosure •   • Variation One o You prepare a a draft opinion letter that your client intends to submit to a bank for purposes of obtaining a laon to finance the manufacturer of a new product.2(d) and 1. What does the last sentence of comment [3] to RPC 4.16(a)(1) and also consider whether you have any documents out there and inform the people with those documents you are withdrawling and then there is mandatory disclosure o A tiered approach to withdrawling form a representing a lawyer  (1) withdrawl silently (give notice to the client you are walking away) the silent withdrawl may sometimes be adequate even in regard to fraud etc.  Can you sign and provide the opinion letter to thebank as it is currently written? No not as it is currently written RPC 4.6 says he can only disclose what is reasonably necessary.1(b)? No you must do the most least intrusive thing to bring the fraud to a halt.1(b) • If a noisy withdrawal is suffieicent to bring the fraud to a stop. can the lawyer still make a disclosure under RPC 1. its reliability overstated and that the client overpaid for a new production facility and that its value on the balance sheet is overstated.asking some questions. The opinion letter states “ I do not know of any material facts inconsistent with my client’s positive statements to you regarding the prospects for this product of the company’s overall financial health.6(b) or 4. If the revocation of the opinion letter is enough to bring the fraud to a halt then you cant do anything further.1(a) (false statement of material fact) Can you revise the opinion letter and send it to the bank iwhtout obtaining the client’s consent? Unless your impliedly authorized you cannot unilaterally revise the letter without your clients consent RPC 2. • Why do you suppose the comments imply that this sort of “noisy” withdrawal is preferable to disclosing information relating to the representation of the client?  What must the lawyer also consider if she or the client made a material misstatement or omission to the person who is the target of the client’s fraud? 4. if not then you subtly withdrawal and are walking away under 1. because RPC 1.3(b) because including these additional statements will necessarily  .1 suggest about the propriety of disclosure if there is a less invasive way to avoid assisting the clients crime or fraud? If you can tell the client to solve the problem and they do then that is good and you can continue to represent the client.

 Are you required or permitted to withdraw in this circumstance? He is permitted to withdral and may even be reqired to withdrawl 1. In this circumstance it owuld be quiet and not be noisy.4 issue that you should still consider before pulling the trigger and walking away? Yes. after it is submitted to the bank and after the bank dispurses funds. Withdraw noisily.  Can you share what you know with the bank? Yes • • Why isnt noisy withdraw at this point likely to be sufficient? The bank has already been harmed Is RPC 4.1(b) triggered in this circumstance? Yes because you .6(2)(d) requires you to get out.influence the banks decision of whether to lend and on what terms. but not required because you still have an opportunity to correct the statement • Is there an RPC 1.4(a)(5) suggest how you should proceed in this first instance? If you cannot convince your client to come clean. •  Can you also share what you know with the bank? no • • Which rules are applicable to your analysis? How does the bank’s reaction o your withdrawal potentially afect your ability to share what you know? o What does the last sentence of RPC 4.4(a)(5) • • Does RPC 1. 1.1 comment [3] tell us what about the drafters perception regarding withdrawal in the context of client fraud?  “If the lawyer can avoid assisting a client’s crime of fraud only by disclosing” • Variation 3 o Assume the same facts except you learn the truth after you sign the opinion letter. If you cannot convince your client to come clean. but not share specifically the details regarding the unreliability of the product. The lawyers would have to withdrawl nosily if the lawyer sent the letter to the bank or has spoken with the bank regarding same. You are permitted. you will be assisting your client in the crime or fraud. then should you withdraw quietly or noisily g you have not had any direct or indirect contact with the bank? Withdrawl quietly because it is only a draft opinion which has not yet been shared with the bank. talk to the client and see if you can correct the problem. then should you withdraw quietly or noisly? Now you are required to withdraw because if you do not withdraw. • Variation 2 o Assume the same facts except you speak with the director of R&D after you sign the opinion letter and after it is submitted to the bank but before the bank dispurses any funds.  Are you required or permitted to withdraw in this circumstance.

• Testing tips for the unwary o o o RPC 1. Also. circuit court upheld the law against a similar constitutional attack.6 to see if you can make the disclosure.16(b) are aplicable in this circumstance? Rule 1. Ethical Problems in Litigation A. FDA had Delaney Amendment which determines that any substance consumed by any amount by man or animal causing cancer must be banned. then you are required to disclose to the bank under 4. matters you are handling for this client? Yes.1 comment [3] implies that disclosure is a last resort  Three tiers of withdrawal and withdrawal “plus” • • •  Silent Noisy Disclosure of information relating to the representation Don’t pursue a higher tier when a lower tier is sufficient to allow you to avoid assisting the client’s crime or fraud VI. Ethical Standards Governing the Filing of a Civil Action .6(b)(2) situation or is this an RPC 1.1(b) o  Is this an RPC 1.6(b)(2) and (b)(3) permit disclosure only when the lawyer’s services havebeem or are being used to further the client’s crime or fraud RPC 4.16(b)(1) because it allows the lawyer to walk away for a good reason.6(b)(3) because it has already happened Are you permitted to withdraw from other. 1. bad reason or no reason at all as long as doing so will not prejudice the client. Problem 23 The Decision to File a Civil Suit Facts Client produces wines which have a short bottle life so to travel better and maintain quality of life for longer period of time client puts chemical substance which causes cancer in rats. Client will go bankrupt and FDA doesn't provide compensation for him and changes of Congress passing a private bill for client is remote. Attorney plans to file suit attacking factual basis for the FDA order and the constitutionality of the Amendment. New wines don't have the substance. Reputable scientists support Amendment and others do not. the lawyer may withdraaw from the representation.6(b) permits disclosure RPC 4. Shelf life for the wine is less than 6 months so 95% of what he has shipped will be sold to consumers. 1.6(b) (3) situation.1(b) requires disclosure only when RPC 1. Attorney knows court dockets are so crowded likely to delay the effectiveness of the FDA's order banning the wines.16 • Which two portions of RPC 1.16(b)(3) because the client has used the lawyer’s services to perpetrate a crime or fraud. A. entirely legitimate.have t o refer back to 1. pursuant to rule 1. Several years ago.

2. Nor will failure to expedite be reasonable if done for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose. while not life-threatening nor terribly painful. The lawyer shall not bring or defend a proceeding that is frivolous. However. B. Here. such as to cause unnecessary delay. comment 2 also states that the lawyer 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 client's positions. the witness is an employee of the client. On the other. Are the same answers about what is frivolous appropriate when one is selecting issues to raise on appeal. Comment 1 does state that in determining the proper scope of advocacy. and not a plethora of motions on his part. Rule 8. destroy. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Rule 3. If the FDA filed a motion to compel. On the other hand. account must be taken of the law's ambiguities and potential for change. or conceal a document or other material having potential evidentiary value. On one hand. which governs expediting litigation. There may be a problem here with the good faith requirement. however. states that by presenting to the court a pleading. because it does not seem that the lawyer cares if he wins or loses. The Ethical Status of Delay as a Litigation Tactic 2. Rule 3. Rule 11 of the Fed. it may be that the lawyer is relying on the dockets of the courts to be what cause the delay. as long as he can obtain that delay. 2. states that a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.4(f) states that a lawyer shall not request a person other than the client to refrain from voluntarily giving relevant information to another party unless the person is a relative or an employee of the client. A lawyer shall not counsel or assist another person to do any such act. modification.4(f) permits a lawyer to advise employees of a client to refrain from giving info to another party. may nevertheless defend the proceeding as to require that every element of the case is established. the judge could require the wtiness to testify. R. written motion or other paper. comment 1 also states that it is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the advocates. An action is frivolous if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument extension. or reversal of existing law.1 requires that there be a basis in law and fact which includes a good faith argument. limits his workday: Rule 3. however. it is not being presented for any improper purpose. considering that the delay obtained by such a suit might serve to save the client from bankruptcy: Rule 3. Civ. however. comment 2 states that an action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. Comment 4 states that 3. However. It is not a justification that similar conduct is often tolerated by the bench and bar. Comment 1 states that realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.4(a) states that a lawyer shall not unlawfully obstruct another party's access to evidence of unlawfully alter. b/c the lawyer is not always clear and never is static. that it is profession misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. Proc. The courts have many remedies to stop this kind of conduct on the part of lawyers. rule 3. an attorney or unrepresented party is certifying that to the best of the person's knowledge.4(d) states. for the employees may identify their interests w/those of the client. Whether it would be proper for the lawyer to recommend that the opposing party's key witness be hospitalized for possible surgery for an injury that. and should it matter whether the appeal is of a criminal conviction instead of a verdict in a civil case? Yes. or the respondent in a proceeding that could result in incarceration. Comment 2 seems to pertain mostly to documentary evidence. . Whether it is proper to file suit in this case.1 states that a lawyer for the defendant in a criminal proceeding. 4.1. Whether this would rise to the level of prejudicing the administration of justice would be for the court/judge to decide.

this is for the judge to control. When.C. to dress appropriately for court. Subsection (c) states that if a lawyer is disqualified by (a). religion. B. if ever. If a lawyer has been a third-party neutral in a matter. Should the attorney be subject to criticism for wearing different clothes in court than he wears to the office? There is no ABA rule on point. Why are there special rules restricting lawyers who act as third party neutrals that do not apply to non-lawyers who occupy the same role? Rule 2. age. He justifies his tricks to counteract with what he calls the unfair advantage of the plaintiff's lawyer in winning verdicts because of the sympathy and other reasons not connected with the merits in the case. jurors. Problem 24 Litigation Tactics Facts Rich lawyer Martin dresses shabby in court to get jury sympathy while helping insurance companies avoid large tort judgments. A third-party neutral is a person who acts as a mediator.1 states that when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client. Thus. does a lawyer have a duty to the justice system to pick only jurors who will be fair to both sides? Rule 8. Here. unless all parties to the proceeding give informed consent. manifests by words or conduct. disability.4(d) and comment 3 state that the lawyer who. confirmed in writing. A. national origin. The rules want to promote mobility of lawyers and enable them to be able to represent new clients. most courts have their own local rules that require attorneys. under rule 1.]. The Ambiguous Line Between Creative Lawyering and Deception 1. no lawyer in the firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom. 4. bias or prejudice based on race. sexual orientation. and (2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance w/the provisions of this rule. conciliator or evaluator to assist two or more persons who are not the lawyer's clients. He tells his associates not to pick young jurors because of their social worker mentality. However. arbitrator. in the course of representing a client. Again.4 governs lawyers serving as thirdparty neutrals. Consideration of ADR Alternatives 1. However. Comment 5 to rule 2. 2. etc. legitimate advocacy .4 when the matter is likely to involve litigation may require that the lawyer inform the client of forms of alternate dispute resolution that might constitute reasonable alternatives to litigation [mediation.12(a). sex. it is clear that the lawyer is dressing shabbily is to send a message to the jury that the company could only afford a lawyer from a small law firm and that it cannot afford a large damage award against them. negotiation. 2. Get a diverse jury of races and classes because disunified grants small awards. or socioeconomic status violates (d) when such actions are prejudicial to the administration of justice. if the judge finds his attire improper. etc. the lawyer's duty to the client under rule 1. may that lawyer or one of his partners later represent a client in a related matter? No. he will demand that he dresses better.

according to the Supreme Court. even if he wasn't the one who ultimately made the communication. it is dicta and is analogous. juror. In another case. but then hours earlier find dicta that is adverse to your client which would make judge rule against you. When you are unsure whether a case is directly adverse to your case. However. even moreso than confidentiality. if any. Rule 8. so it is not directly adverse. he is ok. Candor About Adverse Legal Authority 1. Rule 4.4(a) states that in representing a client. When an attorney cross-examines a truthful witness. Comment 4 states that it constitutes dishonesty to the tribunal. The duty of the court to make an informed duty.3(a)(1) states that a lawyer shall not knowingly 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 of the lawyer. A trial judge's finding that peremptory challenges were exercised on a discretionary basis does not alone establish a violation of this rule.5(a) states that a lawyer shall not seek to influence a judge. In this case. You know of a witness whose facts will also be adverse to your client and you know opposing counsel doesn't know of his existence. You then read deposition where you see a witness testified about a fact in a false manner. 4. Honesty to tribunal is highest duty in these rules.respecting the foregoing factors does not violate (d). whether the lawyer has violated 8. so it may not apply here. or use methods of obtaining evidence that violate the legal rights of such a person. delay. states that it is professional misconduct for a lawyer to violate or attempt to violate the rules. The authority/case has to be from controlling jurisdiction and be directly adverse. so just disclose it and distinguish it. as long as the attorney is not badgering the witness or making false statements to the tribunal.4(a). b/c it was the secretary who patted the defendant on the head. you should disclose it to the court because opposing counsel or the judge can always claim it is directly adverse. 2. Rule 3. or burden a third person. however. Whether there are ethical problems in putting the attractive secretary up to acting like she was the defendant's new wife: Rule 3.4(d) depends upon whether his jury selection tactics are prejudicial to the administration of justice. In this case. even those not favorable to your position? What are the limits. It may is unconstitutional.3(a)(2) states that a lawyer shall not knowingly fail to disclose to the tribunal legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel. (This is known as the "badgering" rule). knowingly assist or induce another to do so. client is about to be sentenced and court has no record of prior criminal records on client so judge says he will just get probation but you know he does have criminal record and judge asks you "Anything to add counsel" A. on that obligation? 3. C. prospective juror or other official by means prohibited by law.4 your duty to the court at times is greater than the duty to your client. however. Must you cite all relevant cases to the court. or do so through the acts of another. This rule seems to speak more to bribery. It has to be a controlling jurisdiction in order for it to . may he properly try to get that witness to express uncertainty about something that the lawyer knows is true? Rule 3. by putting the secretary up to it. a lawyer shall not use means that have no substantial purpose other than to embarrass. Problem 25 Disclosure of Law or Facts Favorable to the Other Side Facts You are sure you will win your case on motion for SJ. A lawyer is allowed to test the knowledge of witnesses on cross. In this problem. his intent was to communicate to the jury that the secretary was the defendant's new wife. 3.

i. What should a lawyer do if. Rule 3. Typically in interrogatories they ask you to make a list of the witnesses that have information about the case so you would have to disclose but in the problem you were never asked. Playboy in problem p. as in this Problem. does the attorney have a duty to disclose? If the court asked the lawyer.3(d) comment 14 states that in ex parte proceeding no opposing advocates so of course has to argue both sides here when there is opposing counsel not bringing it up is not lying unless court asks if there are any other witnesses that would know of this. if the court doesn't rely on him and the client doesn't lie then the attorney most likely doesn't have to disclose. she discovers that the client of a material witness has given false testimony in a deposition? Rule 3. Candor About Adverse Facts 1.6 (confidentiality). They have not made a clear decision on this. D.e. You have to determine whether the court will benefit from hearing a case. Clinton had given evasive answer for the obstructions of justice. but when court asks if you have anything to add then you must be honest. Comment 1 states that it also applies to depositions. Clinton.1 problem because he is not competent and if you say that you didn't know about the case on the other side then you also run a problem with 1. If you can distinguish the case from yours then you should disclose and distinguish it.3(b) is in effect during depositions. the attorney for Clinton later told court when he found out that Clinton lied during deposition he told the court.apply. 2. Candor About Incomplete or Inaccurate Discovery Responses 1. Is this the third item not disclosed to the court in the Problem-the prior criminal record of your client-a factual matter or as legal matter. Since only one side is present it is important for everything to be disclosed. the lawyer should say that they should be excused from answering. client has died-Toledo because then you no longer have the agency relationship C. it doesn't matter whether the witness is physically in court. if lawyer knows of its falsity he/she must take remedial measures-disclosure to the court when you have come to learn you have submitted false information even if it requires breaking confidentiality.1. Do the Rules treat disclosure of the newly discovered witness differently form the disclosure of adverse legal authority? Why? Rule 3. This is not the same as disclosing legal authority because court concern for establishing bad law. Candor as to Factual Matters That Are Not Easily Verifiable 1. the court will likely impose sanctions for this conduct and these rules also say that you have to comply with these discovery request. B. Being honest could break rule 1. The best way is to get client to correct it. The witness cannot make a false statement. ABA formal opinion 287 says you should shows gray area not clear answer-says lawyer should reveal to the court about prior criminal record to the court if the lawyer believes the court relies on him as corroborating the correctness of client's statement-lawyer's duty of candor to the court requires him to disclose to the court . Clinton had said that he was never alone with Monica and that he never had sex with her. is it more analogous to the situation in Part A or Part B of the Problem? Is silence a false statement? No. if the court does rely on him then the lawyer must disclose. 412. Duty of candor to the court is higher than the duty of confidentiality. If the Judge wouldn't have asked the attorney do you have anything to add. The lawyer that doesn't find the case has a 1.4 is concerned with your fairness to the opposing side in Penthouse v. In Jones v. When should a court conclude that a lawyer deceived it by not volunteering factual information? Gives cases where it says you get in trouble for not doing what the prior question says you don't have to-you should when for ex.

A. the lawyer may reveal confidential information relating to the representation of the client.t that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. the lawyer should assert on behalf of the client all non-frivolous claims that the order is not authorized by other law. Attorney-client privilege does not apply to physical evidence. Cook.D. don't give the information up freely.4(a) states that a lawyer shall not unlawfully obstruct another party's access to evidence or unlawfully alter. Rule 3. Comment 2 states that the right of the opposing party. Wallace. Holding: 4th Cir said not attorney client privilege. Client identity is not normally confidential. comes into office and puts gun and money on your desk telling you he just robbed a bank and killed a guard in the process and wants your help. The attorney should not be a depository for criminal evidence. B. The traditional rule is that no privilege attaches either to the fact that someone has consulted a lawyer or to the general subject of the representation. then the client's name will probably be protected.6? Yes. Problem 26 Handling Physical Evidence Facts Hammer. Taking Possession of Physical Evidence for Testing of Safekeeping 1. to obtain . If the name is the missing link in making the case against the client. Ryder conferred with bar association who told him to take the money and give it back to authorities while letting Cook know what you are doing. rented safety box and was later interviewed by FBI found with money that had same markings from earlier robbery. Police contact you about reports that man seen with gun has walked into your office. However. In re Ryder. Might be different if the fact that a person consulted a lawyer is in itself incriminating or embarrassing. absent informed consent of hte client to do otherwise. if the lawyer must defend him or herself in a controversy b/t the lawyer and the client. The general evidentiary rule is that the identity of the client. Is there an exception to rule 1. This is known as the "missing link" theory. Ryder instead created a power of attorney signed by Cook letting Ryder take the money and give it back without telling him. A lawyer shall not counsel or assist another person to do any such act. 1. amount of the fee. (In other words. Confidentiality of a Client's Identity 1. identification of payment by case file name. including the government. man you have never represented before. 4th cir 1967-Aug 1966 man robbed bank. Ryder initiated the actions. FBI took Ryder's box. and the general purpose of the work performed are not usually protected from disclosure by the attorney-client privilege.00 to open a safety deposit box. He was holding stolen property and had possession of a gun with the intent of protecting criminal from consequence of the crime. Comment 13 states a lawyer may be ordered to reveal information relating to representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel disclosure. Cook asked attorney Ryder what he should do and Ryder told him to tell the truth. Another man. If the court orders an attorney to reveal his/her client's name or else go to jail. fight for your client's right under attorney-client privilege first). Ryder took the money and gun used in robbery and conferred with t a judge who said not violating ethical conduct. b/c such information ordinarily reveals no confidential professional communications b/t attorney and client. destroy. Also. 3. which in itself has little if any material value for the purposes of aiding counsel in the preparation of the defense of his client's case.6(b)(6) states that the attorney may reveal it (or other information relating to the representation of the client) to comply with other law or a court order. Cook said he got it from the robber who offered him 500. or conceal a document or other material having potential evidentiary value. man being investigated for price fixing asks got your help to prepare for interview with reporter and gives you secret tapes of conversations over the last 3 years.

Remember also that the lawyer is prohibited from altering evidence under 3. The exercise of that right can be frustrated if relevant material is altered. It is an offense in most jurisdictions to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Therefore. 2010: • Variations on Problem 26: o Variation One: Neil Hammer comes to your office with a gun and a bag of money and tells you he robbed a bank and shot a guard. In this case. Nondisclosure of Evidence 2.4(a). He asks for help about what to do so he won’t get caught. under 1. However. Comment 2 also states that applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence.6.evidence through discovery or subpoena is an important procedural right. Under this comment. Physical or Documentary Evidence 2. or Failing to Retain. but he cannot touch her. . concealed. May he tell the police her location? Yes. To prevent this situation entirely (so that the attorney never sees evidence of the crime). However. the attorney cannot touch any of the bodies or help the client bury any of them. D.  Can you advise Hammer about what to do so that he won’t get caught? • No under Rule 1. he finds out that one of the victims is not yet dead.4(a) applies to computerized information. especially since comment 2 states that it is an offense in most jurisdictions to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Here.2(d) also prohibits aiding or counseling the client in committing criminal or fraudulent activity. whatever the client says about the physical evidence (e. the proceeding can be foreseen. if the attorney even takes the gun from the client he/she is altering it [fingerprints]. etc. The lawyer can seek assistance for the victim if one of the victims is still alive (see 1.6. perhaps the lawyer could turn the gun in for his client w/o revealing the client's name. C. the lawyer can tell the client up front that he/she will not hold or examine any physical evidence. Destroying.2(d)  Cannot assist him in covering up the criminal activity. or destroyed. 1.g. 3.6(b)(1): 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. October 27.6(b)(1)). "I just used this gun to kill a man) is confidential and protected by attorney-client privilege and rule 1. Cannot advise the client to destroy them under 3. Class Notes. with regard to past crimes. but when lawyer checks out his story. but the lawyer does have a duty to tell him the legal consequences of the incriminitating/damaging evidence. the lawyer is prohibited from revealing the information b/c it is protected by attorney-client privilege and rule 1.4(a). Client tells you he killed certain people and that he buried their bodies.

getting away completely. o Variation Two: The police see their suspect enter your office and then flee. The name of the client is the last link that law enforcement needs to link the client to the commission of the crime.o You would be characterized as an accomplice if you assist him.  What is the general rule regarding what lawyers should do when they find themselves in possession of the fruits or instrumentalities of a crime? . (it is normally not considered confidential) o What is the exception to the discoverability of client identity that may be applicable in this circumstance?  Sometimes the very identification of a client would disclose a privileged communication Last Link doctrine  applicable in rare situations.  • o Variation Three: Hammer flees your office but leaves the gun and the money behind. • Extends the protection of the attorney-client privilege to nonprivileged information.  What is the general rule regarding the applicability of the attorney-client privilege to questions regarding a client’s identity? • General rule  cannot invoke the attorney-client privilege to preclude disclosure of the client’s identity.. Then the lawyer may assert the privilege to hide the identity of the client.

 Assume you decide to turn the money and the gun over to the police. If you obtained the gun and money from one of hammers friends your answer would be different because the duty of confidentiality would not extend to that friend. .  You can invoke Attorney. Can tell the police you cannot disclose that information.4 comment [2] Yes so long as you can do so without unlawfully altering or concealing the evidence. • Are you required to explain to police how you obtained the gun and money in this particular circumstance? o Not if it will incriminate your client If you focus on the attorney’s duty of confidentiality  lawyer would not have to disclose this information.client privilege. o Can you perform tests on physical evidence that is in your possession?  Under RPC 3. but then the lawyer must turn the evidence over to law enforcement or at the minimum alter law enforcement after a reasonable time has expired. in the context of receiving evidence from a non-client you can tell the police where you received the evidence. You cant perform test which have the affect of altering the evidence.• General Rule  Restatement third §119/ comment 2 to RPC 3. o However.4The lawyer may retain those items for a reasonable amount of time to examine them and sometimes test them.

Merely turning over evidence. or take it to his possession  he does not have to disclose to law enforcement. Was not in the course of representation. You must disclose information about the evidence if asked. The privilege never attaches.  If you take possession of the gun and money. o Variation four: Hammer does not leave the gun or money in your office but tells you where he hid them. you drive to the location and see the gun and money but do not touch either. And the lawyer would have to disclose where he received the evidence from.  Do you have an obligation to share the location of the gun and money with law enforcement? • If he merely observes it.4(a)  A lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alters. destroy or conceal evidence. o He must turn it over and disclose to law enforcement where he got it and what it looked liked in its natural state. Because by . • There is no attorney-client privilege. does not touch it. then do your obligations change in any way? • • You must turn in each of the two items after a reasonable time. and it is still available to law enforcement in its natural state. He has not touched or changed anything and therefore has not affected law enforcement in any way. o Rule 3.

so that law enforcement would have information to the evidence in its natural state. which they would have had access to if the lawyer would have left it untouched.picking it up and taking it back to his office has obstructed the natural state. . you can in order to prevent substantial harm. o But rely on 1.  Do the answers to these various questions make sense to you in relation to the text of RPC 3. o Variation Five: hammer shoots a person dumps the body in a dumpster. He tells you the location of the dumpster and you go there and see that the vistim is alive but barely breathing.  Why do you suppose the criminal defense bar concluded that lawyers should not disclose in this circumstance? • That the lawyer should not disclose and is ethically prohibited from disclosing. o RPC simply says you MAY reveal information relating to a person who is reasonably certain to suffer severe injury or death. emergency personnel may be able to save the victim and then the victim will be able to identify your client.  it would be adverse to representation.  Do the RPCs require you to disclose the location of the victim to police? • By telling the police.4(a)? • Yes.6 (b)(1) may reveal but imposes no obligation on the lawyer to disclose this information. (not required but are permitted) o But if you wanted to disclose. because you would be harming the client because of the victims subsequent identification.

You want to call a fact witness to testify on his behalf bu the witness lives in another state and does not have enough money to pay for travel.4(a)  first clause defines professional misconduct. 8.4(b) Obstructing evidence/being an accomplice is a criminal act and it reflects on his “honesty.  Can you advise him to wipe the fingerprints off the gun then dispose it? • • • • Which of the following rules are implicated in this situation? All of them 1. . Because he has already violated other rules (Second clause (Not applicable) says you cannot knowingly assist or induce someone but only applies to other lawyers not to nonlawyers. • • o Variation Seven: Hammer is arrested and you represent him at trial.o Variation Six: hammer shows you the gun that he used in connection with the robbery.4(d) by tampering with evidence.4(c) by concealing evidence it is deceitful. trustworthiness and fitness as a lawyer in other respects” 8. o “… Or to do so through the acts of another.) Third clause says if you cant do it then you cant avoid the rules by getting someone else to do it on your behalf (Engage in professional misconduct). “ • 8. it is prejudicial to the administration of justice.4(a)  you cannot counsel another person to unlawfully obstruct alter or conceal (2nd sentence) 8.2(d)  you would be assisting/counseling a client in the crime… cannot tell him to do this 3.

 Can you pay for any of the following? • The amount necessary to reimburse the witness for a train or bus ticket so that she can travel to the courthouse? o Yes. RPC 3. . • The amount for food and lodging while at trial? o Yes • The amount for lost wages? o Yes • An additional $1.000 in the event hammer is acquitted? o No. attempting to induce testimony in your favor.4(b) and comment [3] o Variation Eight: You also want to call an expert witness to testify on Hammer’s behalf. But cannot pay any amount that would induce the witness to sway one way or another. 3.  How would you articulate a general rule based upon your answers? o Always permissible for a lawyer to reimburse a witness for expenses.4 Comment [3]  Nothing inappropriate to pay train ticket. formulating her opinions and preparing to testify? o Yes.  Can you pay the following? • Reimburse for time she spends investigation the case.

Doesn’t say you cannot alter or obstruct evidence in some cases. 3.4(a)? • Do not have an issue unless it is unlawful to destroy the evidence. but he has audio recordings of all the conversations he has had in his office for the last three years.4 comment [3] says it is not improper to compensate an expert witness on terms permitted by law.  How would you articulate a general rule based upon your answers? o Always permissible to reimburse for expenses.• The amount necessary for out-of-pocket expenses? o Yes • An additional $1. it states simply that you cannot do so “Unlawfully” . He does not know which companies are involved. o Variation Nine: JB Wallace tells you that certain companies in the industry may be under investigation for price fixing in violation of federal antitrust laws.  What is the significance of the word “unlawfully” in RPC 3. He asks whether he should keep or destroy the recordings.4(a) First in foremost need to determine if it is “unlawful” to destroy these recordings.  What are the various considerations that should go into your analysis? • Under 3. but is impermissible to pay an expert witness a contingent fee.000 in the event hammer is acquitted? o No. or whether his company is among them. But cannot pay any amount that would induce the witness to sway one way or another.

o From a practical sense  inform client not to destroy the evidence.o What if there is not a federal law prohibiting the destruction of evidence prior to commencement of a formal investigation or judicial proceeding?  He can destroy them. From the perspective of the law or ethics there would be no consequence.  What does this suggest about the propriety of document retention policies in which documents are routinely shredded when no longer needed by an organization? • Document retention policy  minimize the amount of paperwork kept in storage help keep documents out of the wrong hands. • What is the practical consequence of destroying the recordings even if not unlawful? o It looks like you have something to hide. And if you destroy the tapes you may have destroyed things which may be helpful to you and/or your client. briefs or supporting memoranda. if there is not a body of law that prohibits the destruction at the time the client asks the question. But from a practical consequence  everyone on the other side they will squawk on the cover up. . then it is not unlawful or unethical from telling the client to destroy the tape recordings. o Variation Ten: A district court rule says that unpublished opinions do not have precedential value and therefore cannot be cited in motions. o Notwithstanding the document retention policy. if a subpoena is issued  the papers cannot be destroyed.

4(c)  it is not an open refusal (it is knowingly disobeying a rule imposed by this tribunal) • o Variation Twelve: The plaintiff’s lawyer states during closing argument that her client is the most honest.  Would a lawyer violate RPC 3.  Which two portions of 3. Would a lawyer violate 3.  Which portion of 3. 3. o Variation Thirteen: The P’s lawyer instead states during closing argument: “I know the defendant caused the accident.4(e) guilt or innocence of an accused/allude to a matter that the lawyer does not reasonably believe is relevant. so by challenging this rule you are asserting no valid obligation exists.4 are implicated? • 3.4 if she cited an unpublished opinion in a motion or brief in that district court? • Yes she would violate 3.4 is she cited an unpublished opinion in a motion or brief for purposes of challenging the validity of the district court rule? • No 3. I saw the position of the two cars right after the accident.” . o Variation Eleven: A district court rule prohibits defense lawyers from asking plaintiffs in wrongful death actions whether they have remarried.4 would the plaintiff’s lawyer violate if she made this statement? • 3. trustworthy and credible witness she has encountered in thirty years of practice.4(c).4(c) says that there is an exception for open refusal based on an assertion that no valid obligation exists.4(e)  lawyer is stating a personal opinion/will not be supported by admissible evidence/and it is in regard to the credibility of a witness.

in an antitrust action brought by the US govt. was represented by Hawley. the lawyer cannot assist or counsel the client to commit perjury.0) is false. The Decision to Call a Witness Who May Testify Falsely . Problem 27 The Client Who Intends to Commit Perjury * THE DUTY OF CANDOR TO THE COURT IS HIGHER THAN THE DUTY OF CONFIDENTIALITY TO YOUR CLIENT! * Facts Smith. B.4(f)(1) and comment [4] allows lawyers to ask organizational clients employees to not voluntarily share information with adverse parties outside the lawyers presence.4(f)(2) Must have to reasonably believe that their non-cooperation with the govt on a voluntary bases will not be adverse • E. The lawyer cannot elicit testimony from the client that the lawyer knows (under 1. however. Which portion of 3.3. in robbery prosecution.  What can she do consistently with RPC 3.4 would be implicated if the P’s lawyer actually made that statement? • 3. Under 1. the lawyer must honor the client's wish to testify. Bentley does not want any of the company’s current employees to speak with lawyers for the DOJ outside her presence. A. however.2(d). Knowing When a Lawyer Knows Something 2. Under 3. comment 9. Hawley said he couldn't let him perjure himself and so Smith promised not to but did anyway.4(e)  cannot say this if there has not been evidence presented to support these facts. 3. D. Smith said he wanted to take the stand and testify that he was at girlfriend's house during robbery which was a lie. (cant say it unless It will be supported by admissible evidence) o Variation Fourteen: Barbara Bentley represents Speedy Corp.4 to accomplish this result even assuming the employees are not deemed to be her clients? • • 3.

Comment 13 states that the duration of the lawyer's obligation to be truthful to the tribunal is a practical time limit and that the conclusion of the proceeding is a reasonably definite point for the termination of the obligation. comment 10. but the lawyer has an argument that the factual misrepresentation is not material? Material that can be used for impeachment is material! C. the lawyer must only reasonably believe that the testimony will be false]. 3. with any other witness. the lawyer must honor the client's decision to testify.3(a)(1)? • A lawyer cannot knowingly make a false statement of fact or law to a tribunal. What if the lawyer discovers that his witness lied under oath. Must the lawyer refuse to call Smith's girlfriend if he knows she will commit perjury on his client's behalf? Yes. then the lawyer will]. The argument that the lawyer counseled the client to testify truthfully and that doing so was ineffective assistance of counsel will fail as well. but then the client gets on the stand and lies. Once the lawyer feels that he/she has talked his/her client out of perjuring himself. and may withdraw under 1. Under 1. the lawyer must know the evidence is false to refuse it. this is b/c of the special protections historically provided to criminal defendants. If only a portion of the witness's testimony will be false. However. [One way is to ask for recess and take the client aside and tell him that if he is not allowed to perjure himself. and 3. If the persuasion is ineffective and the lawyer continues to represent the client. however.3 states that if a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence. the lawyer should seek to persuade the client that the evidence should not be offered. According to comment 9. .3(a)(1)  What is the basic obligation imposed by RPC 3. 3. counsel is precluded from from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law. other than the testimony of a defendant in a criminal matter. This includes disclosure to the tribunal. Comment 6 to 3. the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false. The Decision to Call the Defendant Who May Commit Perjury 2. the lawyer will reveal that his client lied.3. he should try to dissuade his client.16. What to do When the Client Does Give False Testimony • Variations on Problem 27 o Overview of RPC 3.3(c) states that this duty to disclose includes confidential information. the lawyer must take remedial measures under 3. [Note the difference: with the criminal defendant. and that if he does not correct himself. Whether a lawyer must sit by and do nothing if the criminal defendant wants to testify falsely: Supreme Court stated in Nix that although counsel must take all reasonable lawful means to attain the objectives of the client. that the lawyer reasonably believes is false.2(a). D. If that is not successful. AND must correct a false statement of material fact made previously to the tribunal.3 takes precedent over 1. Before the lawyer does this. the lawyer must refuse to offer the false evidence.1.6 in this situation. the client has the right to make the decision to testify. unless the lawyer knows that the testimony will be false. Under 3.3(a)(3) the lawyer may refuse to offer evidence. the right to testify does not extend to perjured testimony.

But you cannot knowingly make a false statement of any sort.3(a)(1) if you believed your client is head to SF but learn afterward that she is actually headed to SD.  Are you required to go back and tell the court where your client is going? • No you do not have to. .  Are you required to go back and tell the court where your client is going? • • No. why do you think the rule is written this way? o If it wouldn’t have made a difference to the decision maker. cannot knowingly speak inaccurately. • Would you be violating 3. Would you be in violation of RPC 3.  You ask the court to reschedule your client’s deposition b/c she will be on vacation in san Francisco. because this is immaterial to the case. then there should not be an obligation to report it. no correction needs to be made. o No. you only have to correct statements that are material after the fact. it was an innocent mistake of fact.3(a)(1) if you knew at the time of the motion that your client is actually headed to SD rather than SF? o Yes. because it is not material. Is the obligation to speak accurately the same as the obligation to correct mistakes? • • No. • In terms of policy. In the absence of this “material” statement.

in the first instance.o Higher std. (any authority) o Does the rule limit the obligation to disclose to “controlling” legal authority?  Legal authority in this rule means rules from controlling jurisdiction… does not have to be binding.3(a)(2)? • Have an obligation to tell authority even if it is disadvantageous to your client. It is any law that would be controlling in that jurisdiction o A civil action pending in state court alleging a violation of the state’s law?  State law o A civil action is pending in federal court alleging violation of federal law?  Federal Law w/in that Circuit. controlling authority. statutes.  When the rule refers to the “controlling jurisdiction” to what is it referring? • Refers to the substantive rule that provides the rule. o A civil action pending in federal court alleging a violation of some state’s law?  That particular state’s law will be controlling. but a much lower std in the second instance. . etc. o Overview of RPC 3.  What does “legal authority” refer to? • Regulations.3(a)(2)  How would you summarize RPC 3.

• Consequences are… o She must tell the truth o She will commit perjury and can be prosecuted under criminal law) o Obligation on lawyer to tell the tribunal. .3(a)(3)? • A lawyer shall not offer evidence he knows is false.16 o 1. o Lawyer may withdraw pursuant to 1.3(a)(3)  How would you summarize the first sentence of RPC 3. What is the point in time by which you must disclose directly adverse authority to comply with the rule… • If you are the moving party? o If and when it is not disclosed by opposing counsel • If you are the opposing party? o Anytime o Overview of RPC 3. o How should you proceed if your client tells you well before trial that she intends to testify falsely?  Sit down with the client and explain the consequences of the false testimony.16(c)  must ask the court for withdrawal.

and will not ask her the questions that the lawyer will know will have false responses.  How would you summarize the second sentence of RPC 3. but if client refuses. or witness gives a false statement of material evidence.o Tell client that you cannot offer false evidence. It is not as easy to withdraw at this time as in the earlier hypo.3(a)(3)? • Lawyer. o How should you proceed if your client tells you during trial that she intends to testify falsely?  The analysis is exactly the same.3(a)(3)? • Lawyer has discretion to offer evidence the lawyer reasonable believes is false. try and get client to come clean. the lawyer must take reasonable steps to correct it. then the lawyer realizes it is false. o Are your obligations the same or different if the client’s false testimony comes out on cross examination rather than on direct?   They are the same. the lawyer is duty bound to disclose to the court. How would you summarize the third sentence of RPC 3. client. o How would you proceed if our client tells you after testifying that she answered several important questions falsely?  First instance. .

3(b) • Lawyer representing a client in an adjudicative proceeding who knows their client intends. (its their constitutional right) o Overview of RPC 3.  • Bribery • Whose criminal or fraudulent conduct forms the basis for the obligation? o Any person. even if you know that she will testify falsely. or has engaged in criminal or fraudulent behavior has to take reaspnable remedial measures including if necessary disclosure to the tribunal.3(b)  How would you summarize RPC 3. it doesn’t matter who is doing the act. What sorts of criminal of fraudulent conduct is this portion of the rule getting at? o Focuses on all the various criminal and fraudulent activity that can happen in trial except for those relating to evidence. • How does it apply in the criminal defense context? o Cannot deny the accused of the ability to testify. • If a lawyer knows that a person has engaged in witness intimidation in a lawsuit in which she is not involved is she required to do anything? .  But must look at the information and come up with the decision after giving it much thought. is.o You can offer evidence that you reasonably believe that is false but that you do not know is false.

3(c)  How would you summarize RPC 3.3 will override 1. (it is more important for a person to be honest and truthful to a tribunal than to protect some statements made by a client. o For the duty to be imposed. the lawyer has to be related to the case. o She may disclose. 2010 o Overview of RPC 3.)  Which of the following is the “conclusion of the proceeding” for purposes of this rule: • Jury verdict o No • Entry of judgment o No • Expiration of the time for making post –trial motions o Yes • Decision by court of appeals if an appeal is taken o No if the ruling is remanded. but she cannot be held professionally responsible for failing to do so. Yes if the ruling is affirmed . because the lawyer does not represent anyone in the case.o No.3 analysis and you encounter a 1.3(c) also states that this rule trumps anything that may be barred by rule 1.6 problem RPC 3. November 3.6 therefore if you do a RPC 3. There is no duty.3(C)? • Duties of (a) and (b) continue to the conclusion of the proceeding. RPC 3.6.

in an ex parte proceeding.   • Overview RPC 3. • Variation One: o Smith is the defendant in a criminal matter. Smith tells his lawyer he wants to testify and also wants a friend to testify in . • What is an ex parte proceeding? o Proceeding in which only one party to the lawsuit is represented • Why do you suppose the duty of candor is so broad in the context of ex parte proceedings? o Because the other party is not there to represent the other side.3(d) o How would you summarize RPC 3.  Conclusion of the proceeding is when the moment in time when further procedural litigation is barred by time. Because they are the only ones speaking to the court.3(d)?  The duty to represent their client and disclose facts.• Decision by supreme court if further review is permitted o Yes as long as the judgment is affirmed. whether or not the facts are adverse. The case is over when there is nothing more you can do based on procedural rules. Comment [13] states “a proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.

support of an alibi defense. The lawyer has the discretion to not call a witness unless he is the accused in the case. but it can be inferred.  How does Smith’s right to testify affect the lawyer’s obligation to call smith if… • The lawyer has a reasonable belief that the alibi defense is fabricated? o Must try to talk him out of it.  What inference can be drawn from the fact that Smith has not brought up before? • • IT is fabricated “does he have a reasonable belief” that the defense is fabricated? o Yes the alibi would have been brought up before. o First clause of 3. The lawyer then becomes duty bound. The lawyer points out that Smith has never raised the possibility of an alibi defense before. . • Does he “know” that it is fabricated? o Has to have actual knowledge.3(a)(3) – cannot offer evidence that the lawyer knows is false. • The lawyer knows that the alibi defense is fabricated but there are other issues about which Smith’s testimony is relevant and about which he will testify truthfully? o He can only ask about the information that he knows the witness will testify truthfully. He is entitled to call Smith except precluded from asking questions that he knows are fabricated. So he cannot illicit testimony that is false.

o The lawyer shall not offer testimony that she knows is false.• The lawyer knows that the alibi defense is fabricated but there are no other issues about which smith’s testimony is relevant? o Smith will not be able to testify at all. if at all. when we consider the friend’s potential testimony if… • The lawyer has a reasonable belief that the alibi defense is fabricated? o The lawyer has a duty to not aid and abet perjury.3(a)(3) – first clause  not knowingly offer evidence that he know is false. It is not unconstitutional to not allow the defendant from testifying falsely. • Variation Two o Smith convinces the lawyer that he will testify truthfully but. He does not have the obligation to call the friend. • The lawyer knows it is fabricated? o Cannot call the friend. unfortunately. o A criminal defense lawyer cannot call a criminal defendant if the lawyer knows the defendant will testify falsely. testifies falsely on several important points. o RPC 3. o But the lawyer has discretion to call the alibi witness. .  How does the analysis change. o The accused has the right to testify but does not have the right to testify falsely.

the lawyer would have to disclose the information to the tribunal. the lawyers client. • Must take reasonable remedial measures to correct misrepresentation that are material. IT IS HARD TO CONVINCE A TRIAL JUDGE TO LET YOU WITHDRAW. o The lawyer has to remonstrate confidentiality with the client and try and convince the client to come clean. (must requests are denied) o The court can suppress the testimony. even if he is not required to withdraw. o Order a mistrial o Or a court can do nothing.• RPC 3. • What are the courts options? o IN THE CONTEXT OF TRIAL. obligation only attaches when the lawyer comes to know the lawyer. . May be subject to criminal prosecution for perjury.  Have to disclose to the court that the client testified falsely.  How should the lawyer proceed.  If the client does not come clean. or the lawyers witness has given false testimony of importance.  If it would not change the outcome of the trial.  o The lawyer cannot convince Smith to come clean and so disclose the false testimony to the court.3(a)(3) says there must be false testimony about an important point and not an unimportant point.

3(a)(3)?  One possible answer may be if you have not asked a precise questions which elicits false testimony.  . o How is the narrative form harmonized with the text of RPC 3. The case is pending in a jurisdiction that permits a criminal defendant to testify by way or narration. Then the lawyer brings up the open-ended question which elicits a narrative story.S. How does comment [7] resolve the conflict between the use of the narrative form and the first sentence of RPC 3.3(a)(1)? • In certain jurisdictions The U. o What is the narrative form of testimony?  A narration of events spoken by the witness in response to open ended questions. then you have not really elicited false testimony.o Would your analysis of the lawyers obligations be any different if the false testimony came out at a deposition rather than at trial?   It operates the same. o How would the lawyer go about questions Smith?  Lawyer can still ask questions in the normal manner up until the point of the lie.) see comments 1 and 10 • Variation three o Smith acknowledges. They are equal in the eyes of this rule. constitution trumps RPC and the Constitution allows a person to testify on ones own behalf even if the lawyer knows the testimony is false. in advance that he will lie to save his skin. (must take reasonable remedial measures. Lawyer asks open ended questions and the witness tells the story (witness tells the entire story without asking any more questions).

coercion/intimidation No ex parte communications absent authorization • • Temporary restraining orders okay Scheduling matters okay  No post.1 operate when a lawyer represents the defendant in a criminal case? • Even though the lawyer knows that his client is guilty.5 preservees level playing field during trial and ensures fair treatment of jurors after trial  No attempts to influence through unlawful means •  Bribery.discharge communication with jurors/prospective jurors when… • • Communication is prohibited by law or court order Juror tells lawyer to leave her alone . • Overview of RPC 3.5 o RPC 3. you are still required to represent your criminal defense client zealously.  Given that the lawyer knows the client committed the crime.• Variation Four o A lawyer is appointed to represent the defendant in a criminal matter. The defendant tells the lawyer that he committed the crime for which he is charged. can the lawyer… • • • Make a motion to suppress the evidence? Yes Cross examine the prosecution’s witnesses? Yes Argue during closing that the prosecution has not satisfied its burden of proof? Yes  How does RPC 3.

coercion.6 o RPC 3.6 fosters decision-making based solely on the evidence • • • • • • The general prohibition ()sweeps broadly) Lawyer who is or who has been involved in investigation or litigation of matter Cannot make a statement outside court That she knows reasonably should know Will de disseminated by means of public communication Will have a substantial likelihood of materially prejudicing an adjudicatory proceeding in the matter  The safe harbor • Lawyer can say enumerated things with complete impunity and without regard to consequences  The “fighting fire with fire” exception • Lawyer can make statement prohibited by (a) and not permitted by (b) when necessary to o Protect client from substantial prejudicial effect o Recent publicity initiated by someone other than lawyer or client  • The Imputation rule Overview of RPC 3.• Communication involves misrepresentation. duress or harassment  • No conduct intended to disrupt a tribunal Overview of RPC 3.7 .

She moved for a new trial.o RPC 3.9 may preclude others in firm from representing client o Here’s a question for all of you professionally responsible kids – is the language following “unless” really necessary?  It is there only to remind a lawyer about conflict of interests. For Monday. Talley asked one juror what happened and juror said all were in favor of Δ but one juror made them all turn the other way and they later found out this juror was paid by competitor of Δ to do so.7 and RPC 1. if they do not remember the rules. Problem 28 The Verdict that May Be Tainted Facts: Talley represented Δ in products liability case which ended up in huge verdict against Δ. The lawyer should be able to know that there might be a conflict and the language is not necessary. what might be a RPC 1.7 concurrent conflict of interest if the lawyer is a witness and advocate at trial. . But from a drafting there was no need to put this language in it. Juror didn't want to testify so Talley recorded conversation secretly and also watched the pay off but she was the only witness.   F.7 attempts to eliminates potential about the role of lawyer (witness advocate rule)  Lawyer cannot be advocate and witness at trial unless… • • • Uncontested issues Nature and value of legal services in case Disqualification would work substantial hardship on client  No imputation within firm • RPC 1.

Other states you can do both. COMPENSATION OF A WITNESS 1. State laws may vary but some states allow what is called consensual recordings (1 party to the conversation knows it is being recorded). the lawyer should have told the judge b/c he/she tried to get the juror to come forward (and the juror will not). The lawyer has a special obligation b/c it would undermine the integrity of the system. 3. . Was it professionally responsible for Talley to tape record when it became clear that the juror would not commit his testimony to paper or repeat it to any other person? It is not a violation of federal law.5(a) you cannot influence a prospective juror. CONTACTING JURORS BEFORE TRIAL. You can never being paying someone and suggesting that you are paying them for what they are saying.The Ethics of Contacting Jurors After Trial 1. 3. 2. SECRET TAPE RECORDING 1.4(b) and comment [3] a lawyer cannot pay a witness for the content of his or her testimony. 3. C. or the juror doesn't want to speak to the attorney. traveling for being the witness but not if you testify I will pay you. (Florida requires an attorney to file a notice of intention to talk to jurors). The attorney's obligation ends once he/she reveals it to the court. there is still a duty to report. How would a lawyer know if you are paying for the content of the testimony if you pay for their expenses and time? You have to see if it is reasonable i.A. even if it is not a lawyer influencing jury. Page 457 3(b) of text talks about whether we should be concerned about lawyer's intruding into the juror's personal lives (as they did in the OJ Simpson case with these long questionnaires).e. The duty stated here is higher than the duty of confidentiality. In Florida. Experts get paid and this is okay so long as not a contingency fee. You can't give the expert an incentive to testify based on whether your side wins. It is routine for experts to be paid based on time they spend preparing and testifying in a case. after the case is over an attorney can't talk if: prohibited by court order or law. You are paying them for the value of their time. it is coercion. what should she do? Under 3. it is in the judge's hands. 3. duress. He/she must take some remedial measures. or harassment. The attorney would not be able to talk to the judge alone anyway b/c that would be ex parte contact. eyewitnesses cannot be paid because would be paying for them to say certain things. time not at job. follow them outside of the court room. Once the attorney has disclosed it to the judge. Prof says it might be a more efficient use of time to do this in terms of worrying about the prospective contact with the juror. if an attorney knows a jury was bribed.3(b). 3.5(b) talks about during the proceeding you cannot communicate ex parte unless the judge allows you to. no matter what the source--meaning. Many states require the attorney to file a notice of intention. Was it proper for Talley to talk to the juror and investigate the jury's deliberatively process? It is okay. 1 million for a 10 minute testimony is unreasonable.3(b) requires the attorney to make remedial measures by pulling in the other side and the judge and making the report. however under rule 3. If there is to be prohibition on pre-trial communication or contact with jurors.5(c) does allow you to talk to jurors after the trial unless there is a court order. lawyer can pay reasonable expenses for loss of compensation for preparing for. B. In Florida you can video tape without consent but not use an audio tape. Given this. Now that Talley believes that a juror violated his oath.3(b) and comment 12 states that the attorney must tell the tribunal. However. 4. how broadly should the rule be stated? Picking jurors are complicated matters so it would be somewhat intrusive in voir dire process so allows information to be obtained but cannot for ex. 3. That is the only way they will ever be able to figure this out. Would it be improper for Talley's opponent to try to bribe one or more of the jurors before trial? Yes (obviously).5(c)(1). Is it proper to pay a witness for the time it takes to prepare and give testimony? Under rule 3.

The lawyers testimony might be in conflict with the client's testimony if it is adverse to the client.7 or 1." and the client says he didn't.7. it is no longer inherently deceitful to tape record.2. The general rule is that an attorney cannot be a lawyer and a witness. "he ran the red light. "can you be my lawyer?" you can't represent that person b/c you are a material witness.4(b). In this case. or use methods of obtaining evidence that violate the legal rights of such person. would her conduct also make her subject to professional discipline or other remedies? If it is violating state law then it violates many rules including rule 4. It raises problems and is not okay unless substantial hardship for party but other person in firm can represent him unless there is a 1. 4. (E. this rule has a problem with her violating state law . There might be a violation of rule 8. • Variation One o Marian Talley asks a juror to come to her office to discuss the verdict in a product liability case that went badly for her. The reason for the rule is because it could cause some confusion. 2. If Tally's tape recordings did violate state law. the conflict will be imputed to the firm unless you get consent from the client. Also under 8.7 or 1. it is not a problem for her to be a witness. If you say nothing then it is fine however if you say "this conversation is between you and me" then you might be violating rule 8. someone else from your firm can unless it would give rise to a 1.4(c) whether or not a crime has been committed.. someone from your firm can). or misrepresentation. under rule 4. Should a party be able to "waive" the protections of Model Rule 3.4(b) says commit a criminal act that reflects adversely on the lawyer's honesty. 8.9 conflict. 8.5(c)? • Whether the juror consented to the meeting • Variation Two .she can do it if it is going to break the law.4(c) says engage in conduct involving dishonesty. deceit. D. there will be a conflict). Is this secret tape recording a violation of these rules? Even though the outcome is good the process by how she went about to get it is not. There are exceptions under rule 3.. The juror agrees  What additional piece of information would we need to know before deciding whether Talley is acting consistently with RPC 3. Page 461 (e) of the text says that if it is not a violation of state law. However.9 conflict.7? No. Is any ethical problem presented if Tally testifies at the hearing on her motion for a new trial? Under rule 3.4(a) and 8. even though you can't be the witness. Not even if client says okay-there is no waiving! Of course.4(b). a lawyer cannot testify as a witness only with exceptions like lawyer sees a car accident and ends up representing the injured. or burden a third person. a lawyer shall not use means that have no substantial purpose other than to embarrass .4(c). However.7. fraud.4(a) says that in representing a client. THE LAWYER AS A WITNESS AT THE CLIENT'S TRIAL 1.4(a) anti-harassing rule.g. if it is going to be a conflict (for example. if circumstances indicate the lawyer deceived the person into believing there would be no taping. Say I witness a car accident and the client says. if you say.

3(b) at the conclusion of this conversation? Variation Three o The juror won’t agree to sign an affidavit testifying to all of this so Talley goes over the juror’s story a second time while secretly recording it.o The juror says that another juror brought everyone around to his way of thinking but apparently. Jury will not understand what is happening. She can only do so under the state statute. She will use the affidavit to support a motion for a new trial.  The ABA’s current position about recording conversations…every state has a statute stating one of the following • § Lawyer can record so long as doing so is consistent with state law o Ø Single consent versus dual consent jurisdictions • § Lawyer cannot state that the conversation is not being recorded o Ø Lawyer can do it secretly just can’t say its not being done • § Lawyer should not record a conversation with a client absent the client’s consent. can she represent the client . this juror works for a competitor of Talley’s client and will be paid handsomely for causing the jury to return a substantial verdict against Talley’s client. If it is a bench trial then the judge would know who is a witness and who and advocate is. o If Talley’s motion is successful.7(b) and have another lawyer in the firm represent the client.  § What can Talley do to eliminate any possible problem if the judge is unusually persnickety? Invoke rule 3. Variation Four o Tally sees the corrupt juror paid for her work and intends to prepare an affidavit about what the other juror told her and what she saw.  • Does Talley have any obligations under RPC 3. o Is Talley precluded from making the argument for a new trial given her testimony is key to the motion? If looking at the rule then you cannot say that witness and advocate can be the lawyer and the witness.

If publicity will help the legislator beat the charge.8(f) imposes rules on the prosecutor.6 comment 4 and 5 says that these are likely to prejudice this process. then it would be problematic. "We have just indicted Kyle the Killer. 6. 4..000 bribe to kill a bill. "The judge's actions show that he is soft on public corruption.6(d) states that if he stated something specific. May White respond truthfully that the commentator is simply repeating a false charge that one of the suspects has made several times? Rule 3. may the legislator's lawyer advise him of that? Does it make any difference whether the state legislator is a lawyer? The state can prosecute something that they usually do not prosecute. Clean Gene found out one legislator had a marijuana joint and decided to prosecute him for it.8 is worried about (whether or not there is pc). 3. MEDIA RELATIONS IN MODERN LITIGATION 1. rule 3. what Gene spoke about has not occurred and is not in the public record. Here. STANDARDS GOVERNING A PROSECUTOR'S DECISION WHETHER AND WHAT TO CHARGE . If he says something that is reckless and if its unsubstantiated he will have a problem with rule 3.at the second trial or does RPC 3. The general rule is that..7 get in the way? Yes because if she is successful in the the testimony on jury temporing. Problem 29 (didnt cover in class) The Crusading Prosecutor Facts: "Clean Gene. He denounces the rumor mill . Talks about the motion and what was stated in the motion. Although it is not normal to prosecute for small amounts of marijuana. B. there is no longer relevant to the new matter." Rule 3. If they have pc then they are not stopped from doing this." a prosecutor for county where state legislature started special prosecutors branch which looks for misdeeds of state legislatures. With regard to the reports on indictments. Lawyers should be very careful. except for information purposes. the lawyer shall not make a statement the lawyer knows to be false or have reckless disregard as to its falsity concerning the . He holds weekly press conferences to tell reporters of his findings and answers questions. The lawyer may make a statement that he feels is required to protect client from the substantial or undue prejudicial effect. which prevents the filing of a frivolous motion or legal argument. which Gene claims no knowledge of. (d).8(a) says that you can't prosecute unless you have probable cause. who calls himself "Kyle the Killer. Suppose White prosecutes the state legislator with a marijuana cigarette in his car. This is not to have any material prejudice. failure to report a sale of race track stock on legislator's ethics form. A.6(c) is the fairness provision of this rule.6(b)(2) says that an attorney may state things that are in the public record.6(b)(5) and (b)(7) states that this is normally done to warn the public. However.1. There is a good purpose in disseminating information to catch someone. G. Special unit is working to: 46 unpaid parking tickets by chairman of DMV. It is a possibility therefore that it is not good.6 when he said there were a lot of skeletons under the bed of some state legislators? Rule 3. a prosecutor cannot make statements that will be prejudicial to the accused or poison the jury. house chairman for taking 5. Did "Clean Gene" White violate rule 3. What limits do the model rules place on White's use of press conference and other public statements to tell the public about his office's work? Rule 3. However. integrity of a judge. Rule 3.2(a). This is only what 3. can't do this. Newspapers are reporting rumors of those legislators likely to be indicated. rule 3." According to rule 8.if there were leaks in his office that would be problematic.6(a) says that a lawyer may not make judicial statements.

Rule 1. but Brooks is not his client (the insurer is) and he does not know how to proceed. York. had corroborating alibi but jury went with her testimony and he was sentenced to life.8(e) says that a prosecutor shall not subpoena a lawyer unless the prosecutor believes there is no other feasible alternative. The general rule is that a prosecutor does not subpoena a lawyers records. Should a prosecutor be permitted to subpoena office records of lawyers known to do criminal defense work? Rule 3. Might the attorney have a duty to the rape victim not to make her psychiatric studies . However. and it does not matter what the source of the information is. unless the insurer gives informed consent. This all came from psychiatric records which were only available to settle civil claim. Brooks. Problem 30 (Didint cover in class) The Duty to See Justice Done (page 486) Facts Attorney York represented insurance co. in workman's comp for lady who said she was sexually assaulted by a black man in the course of her work duties.6(b).6(a) imposes a duty of confidentiality on him b/c the information about the victim and her probably inaccurate i. She was scared of all black men after this and couldn't tell one from another. This relates to 3. May the government seize the fees of privately retained defense counsel? The IRS is trying to track the source of the money.6(b)(1) speaks to). after hearing about the psychologist reports in the course of the workers' comp claim.C.6(b)(1) exception here b/c the man who was wrongly convicted and was sent to prison for life will probably suffer serious bodily harm (although this is not usually the situation that 1. Duties of a Lawyer Who Learns an Injustice May Have Been Done 1. If I am paid a fee. A. This attorney has information that may prevent a man from suffering substantial bodily harm in prison. believes that an innocent man may be in prison for the rest of his life unless he acts. the attorney may reveal those things listed under the exceptions in rule 1. the attorney cannot reveal any information relating to the representation. FOCUSING ON THE FEES OF CRIMINAL DEFENSE COUNSEL 1.8 b/c the IRS requires the attorney to report it. I can get in trouble w/ the law if I know that the money is coming from an illegal act. or when the information has become generally known. 2.d. or (2) reveal info relating to the representation except as the rules would permit or require w/respect to a client. York undoubtedly owes a duty of confidentiality and a duty of loyalty. H. identified by her in line up. Therefore. However there are exceptions (payments from client to lawyer in excess of $10k).9(c) states that 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 info relating to the representation to the disadvantage of the former client except as these rules would permit or require w/respect to a client. We may have a 1. To whom does the workers' compensation attorney owe duties in this situation? To the insurance carrier and the hotel. [Note: we said before the rules are at the lowest level of conduct you must achieve and here this is saying a higher standard to reach]. relates to his representation of the insurer in the workers' comp claim. Rule 1. LIMITS ON PROSECUTORS INVESTIGATING DEFENSE ATTORNEYS 1. Defense lawyers are trying to say that this is a violation of an ethics rule since they could not get around it as a rule of procedure. D.

however. then his duties continue because he is still considered as representing the defendant. This shows rules really are at the low standard (attorneys and judges see these rules as floors not ceilings). What if no one listened to York? Should he try to interest "60 Minutes?" Oprah? Geraldo? The news media's ability to raise questions and stimulate changes has made it a serious venue for many accused and convicted people. Comment 12 states that lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process. If not exhausted. or burden a third person. Thus. But say that the client gives informed consent and allows the attorney to reveal this information to the defense attorney so that the innocent man can be exonerated. Plus. these reports were already furnished during discovery for the purpose of settling the workers' comp suit.public? Rule 4. Concerns About the Reliability of Results in Our Legal System 1. The Delivery of Legal Services . and defense attorney. C. disclosure to the tribunal. including. to Respond to Concerns About an Injustice 1. Prosecutor (rule 3.6(b)(1) exception. DNA has helped to exonerate the innocent.3(a) does not apply b/c the attorney was not involved in the criminal proceeding. VII. Reinforces that they see the rules as floors and not ceilings]. and states that a lawyer shall not use means that have no substantial purpose other than to embarrass. Post-conviction remedies. if necessary. However. or to the man he believes is wrongly convicted? Rule 3. delay. today. There is a reasonable time limit after which the defense attorney's duty or obligation to rectify false evidence or false statements of law and fact expires. The news media has often become the "court of last resort" in the U. 2. he has the right to reveal this information. if any. and none of them did anything. Does anyone have an obligation to listen to York? Would the former prosecutor or defense counsel have such an obligation. or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures. The flip-side of that .3(b) states that a lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage. B.1? Maybe. is engaging. The Obligation. If the attorney has a 1. or use methods of obtaining evidence that violate the legal rights of such person. the attorney did go the judge. In real case based on this all 3 of them said they didn't feel they had a duty and were not supposed to do something and were not punished for inaction. 3. Here. for example? How about the trial judge? Start with the judge (see cannon 1 on page 586) to maintain the integrity of the judiciary he should do something. is he incompetent under 1. 3. may be an obligation in that regard. York knows that Brooks has engaged in conduct that was fraudulent. If the defense attorney does nothing. the situations this comment speaks to (bribery. Does the attorney have any duty to the court that tried the case. [In real life. However.8 and page 507): seek justice not merely to convict-he or she when he finds out of things should seek remedies for. prosecutor.4 governs respect for rights of third persons.S. however. is that Brooks may not have intended to commit a fraud--she truly convinced herself that the man on trial was the man who raped her. however. destroying or concealing documents/evidence) do not seem to apply here. the question is whether revealing the psychiatric studies violates the victim's legal rights. The defense lawyer (assume the appeal have been exhausted). she revealed that information for the limited purpose of settling.

A. rather than direct inperson. Rule 7. in violation of . The argument against advertising was that it was considered undignified. There is a difference between solicitation and advertising. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications. recorded. Problem 31 Marketing Professional Services (page 496) Generally: The Model Rules provisions can be understood as following the Supreme Court's lead in distinguishing advertising from solicitation.e. The Constitutional Context of the Regulation of Lawyer Marketing 1. chat rooms.3(a) states that a lawyer shall not by in-person. The contents of advertisements and communications permitted under rule 7. or electronic communications to transmit information from lawyer to prospective client. or real-time electronic contact. close personal. What makes the state-regulated lawyer advertising a matter for the federal courts? The first amendment. Comment 2 states that truthful statements that are misleading are also prohibited. or 2) has a family. [Note: these exceptions allow attorneys to contact past clients to solicit business]. However. However. the ABA also limits advertising in the public media.A.2 can be permanently recorded so that it cannot be disputed and may be shared with others who know the lawyer. live telephone (as opposed to audio-dial). freedom of speech. or prior professional relationship with the lawyer. or real-time electronic contact (i. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustifiable expectations or otherwise mislead a prospective client." which means such a disclaimer might not always be enough to cure a misleading advertisement). Bates v. Comment 3 states that an advertisement that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters w/o reference to the specific factual and legal circumstances of each client's case. Comment 3 states that the use of general advertising and written. or omits a fact necessary to make the statement considered as a whole not materially misleading. deceptive. A truthful statement is also misleading if there is a substantial likelihood that it will lead to a reasonable person to formulate a specific conclusion a/b the lawyer or the lawyer's services for which there is no reasonable foundation. A truthful statement is misleading if it omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading. live telephone. advertising that is false. Careful reading of the case law has prompted the ABA to use the concept of "direct contact" to indicate the area in which regulation is most stringent. The important thing to note is that just b/c a statement is truthful does not mean it is not misleading. will help to assure that the information flows cleanly as well as freely.1 states that a lawyer shall not make a false or misleading communication a/b the lawyer or the lawyer's fees. When Lawyer Advertising Becomes In-Person Solicitation 1. place. (Note use of the word "may. Arizona: The court found the postulated connection b/t advertising and the erosion of true professionalism to be severely strained. A communication is false or misleading if it contains a material misrepresentation of fact or law. but emails are ok) solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The problem with disclaimers is that average members of the public B. Rule 7. and manner may also be restricted as it is w/other types of speech. The court disagreed and found a legitimate reason for allowing advertising w/regard to legal services. or misleading of course is subject to restraint. Time. unless the person contacted: 1) is a lawyer.

However. If the attorney is invited. or electronic communication. What might be said during solicitation often is not recorded in any way and cannot be proven. Do Jerry Harold's phone calls proposing a "legal checkup" present issue under Rule 7. May lawyer hold seminars or make public speeches a/b the law and legal problems? May a lawyer represent a person who comes for advice after attending one of these programs? Would you be troubled if the lawyer distributed his/her business card at the events? There is nothing wrong with this under comment 4. after sending a letter or other communication to a client as permitted by 7.1. no issues. Note. sending a client 250 gazillion emails). including changes in personnel or office location. or trade organizations whose purposes include providing or recommending legal services to its members or beneficiaries.g. however.3(b). and at the beginning and ending of any recorded or electronic communication (unless one of the exceptions in 7. rule 7. "Please see me after the meeting if you have any questions. recorded. fraternal. In re Primus: Comment 4 to 7. or 2) the solicitation involves coercion.3(b). if he does not get a response. Plus. b/c 7. or bona fide social or civic organizations.3(a)? No. any further effort to communicate w/the respective client may violate 7.3(a) apply). or real-time electronic contact even when not otherwise prohibited by 7.g.3(a) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal-service organizations or bona fide political. or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter (e. which states that a lawyer may participate in activities of public organizations.3(a) states allows an attorney to solicit business from current or former clients. the client does not have to affirmatively tell the attorney not to solicit him/her. do not constitute communications soliciting professional employment from a client known to be in need of legal services w/in the meaning of rule 7. [Thus.2 the lawyer receives no response. when you get traffic ticket and then get tons of ads in the mail for attorneys who can get you out of it w/o points on your license) shall include the words "Advertising Material" on the outside of the envelope. he is not soliciting business. Comment 7 states that certain communications to be marked "Advertising Material" does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors. civic. telephone. It is ok to disseminate information. [So just b/c the attorney is ok under 7. in-person solicitation may exert pressure and often demands an immediate response." because it leaves the prospective client free to leave. not responding to an initial solicitation is enough to imply that the lawyer should discontinue solicitation]. employee.3(c) states that every written. 2. b. recorded.3(b) too!] Comment 5 goes so far as to say if. c. which simply provides information and leaves the recipient free to act upon it or not. Is it proper for a lawyer to print color brochures extolling the law firm's virtues? Is there any question the lawyer's motive would be to bring more business to the law firm? Do the words "Advertising Material" have to appear on the brochure itself? Rule 7. he cannot continue to solicit those clients.3 states that 7.3(a) does not mean he can solicit! Must be ok under 7. or harassment (e. . duress.3(a) if: 1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer. Ohralik: Unlike a public advertisement. AARP invited the attorney to come to their meetings and speak about wills. which states that a lawyer shall not solicit professional employment from a prospective client by written. social. or by inperson. General announcements by lawyers. in the hypo the Professor gave." while solicitation cannot.3. This is the difference between advertising and solicitation: advertising can be "checked. They will not feel forced to come up to the lawyer. It is also ok for the lawyer to leave his business cards by the door so that people may take them. if any. It is also ok for the attorney to say.rule 7.

.Does television advertising justify special regulation? D. letterhead.1. etc. Continuing Issues of In-Person Solicitation by Lawyers 1. administrative fees. then courts may hold that the client does not have to pay anything if he/she loses at trial. that information is misleading if the attorney has never done a jury trial.com?" Rule 7. and under comment 3. then the attorney cannot contact them. you don't have to pay me anything. as long as it is marked "Advertising Material. this is okay so long as it is not misleading. Sharpero: targeted mail (like the traffic ticket example)." 5. 7. 6. Florida prohibited lawyers for potential plaintiffs from sending any targeted direct mail w/in 30 days of an accident. or other professional designation that violates rule 7. "If you lose.1. Should a lawyer be entitled to make claims as to her quality? Her won-lost record? How about publishing client testimonials? Under rule 7. May a lawyer use a memorable trade name or internet web address such as "The Winning Team" or "suethebums. Continuing Issues in the Field of Lawyer Advertising 2. Model rules do not require a waiting period. at that point it would be improper for Jerry to "follow up.5(a) states that a lawyer shall not use a firm name.3(b). 4." The prospective client is free to throw the letter away and not respond. it would seem that a lawyer may use a web address such as "suethebums. 3. but under 7. the information cannot be misleading. In requiring attorneys who advertise their willingness to represent clients on a contingent-fee basis to state that a client may have to bear certain expenses even if he loses. if the person does not respond." b/c it is not false or misleading. Should a state be able to require lawyers to tell clients they will have to pay litigation costs even if they lose their case? Zauder: There are material differences b/t disclosure requirements and outright prohibitions on speech. So. while it might be true that an attorney has never lost a jury trial. it is just distasteful. A trade name may be used by a lawyer in private practice if it does not imply a connection w/a government agency or w/a public or charitable legal services organization and is not otherwise in violation of 7. if the person doesn't want to be contacted.e. Illustrations are protected speech. Is the personal note from Jerry ok? Yes. Thus. it cannot be false or misleading). cannot mislead affirmatively or by withholding pertinent information." b/c doing so would be akin to in-person solicitation.1 (i. Professor says that if the attorney does not put in a disclaimer making clear the difference b/t attorney's fees and the ordinary costs associated with filing a lawsuit (filing fees. information is misleading if it creates in a reasonable person an unjustified expectation that the same results could be obtained for other clients in similar matters w/o reference to the specific factual and legal circumstances of each client's case. Do illustrations in a lawyer's advertisement have the same constitutional protection as the text message? Zauder: Yes.com. states have required them to provide somewhat more information than they might otherwise be inclined to present.1? establishes a general proposition that lawyers are required to follow when talking about themselves or their services… cannot make false or misleading statements.).C. b/c a reasonable person would have derived that to be the agreement from an advertisement that says. However. PROBLEM 31 Overview of RPC 7.1 o How would you describe the basic obligation imposed by RPC 7. "Winning Team" might be misleading.

Something must be said that individual results will vary.1 prohibits lawyers from making a statement that requires the disclosure of some additional fact that is necessary to make the statement.1 interact with RPC 7. even if the lawyer really did secure the two largest jury verdicts in state history? Problem is not that it is untruthful. not misleading o Assume a lawyer handles 25 straight uncontested divorces. considered as a while. o RPC 7.2 through 7.3(a).1 sound an awful lot like RPC 3.  § Assume a lawyer puts an advertisement in the local paper and truthfully states that she obtained the two largest jury verdicts in state history 0 one for $40 million and the other for $35million. the lawyer is conveying the wrong message to the client. RPC 4.Does Rule 7. Must speak truthfully.1 and RPC 8.1? similar but different. o Comment (3) says that an unsubstantiated comparison of one lawyer’s services and another lawyer’s services is misleading when a reasonable person would conclude that the comparison can be substantiated. • Ø Can the lawyer put an advertisement in the local paper in which she states that she is the best personal injury lawyer in town? No because there is no objective standard to be rated. so it is not misleading. o . • Ø Can lawyer who wants to make a claim about her two jury verdicts cure the problem by stating “individual results may vary”? If you include a disclaimer then it would be ok. o How does RPC 7. • Ø What is the potential problem with this advertisement. • Ø Can the lawyer put an advertisement in the local paper in which she states that she is the only personal injury lawyer in town rated “superb” by the lawyer rating service AVVO? Yes because you can go to the AVVO website and substantiate the fact.5? it is an introduction to the other rules. o Comment (3) says that truthful statements about lawyer’s achievements can be misleading because they can create an unjustified expectation that the prior achievements can be replicated. If the lawyer did it for someone else they could do it for me.  Assume a lawyer handles personal injury cases.

2(b)? can pay for reasonable costs. o Assume a lawyer pays an ambulance driver $100 for ever auto accident victim who becomes a client as a result of a referral by the ambulance driver? Yes because he is giving something of value to someone for recommending his services.§ Can the lawyer put an advertisement in the local paper in which she claims to have won her last 25 cases? No.3(a)? a lawyer shall not by in-person. o Why do you suppose lawyers can solicit work from these folks? Comment (4) says lawyer will not be overreaching o . o Which of the following qualify as a formal in which lawyer advertising can appear? o Television and radio? Yes o Newspapers? Yes o Mass mailings? Yes o Pre-recorded telephone messages? Yes o E-mail? Yes o How would you describe the basic obligation of Rule 7. family members. o lawyer can “pay for a referral in certain situations o Payments for advertising o Payments for participating in a lawyer referral service o Payments for all or part of another lawyer’s practice o Reciprocal referral agreements o Can be lawyer to lawyer to non-lawyer professional o Trusts and estates lawyer to accountant (a vice versa) o Personal injury lawyer to corporate lawyer (and vice versa) o Cannot be exclusive o Client must informed about existence and nature of agreement Overview of RPC 7. including public media. Victory is assured because the matter is uncontested. o What four categories of individuals can a lawyer properly solicit? Lawyer. recorded or electronic communication.2(a)? a lawyer may advertise services through written. live telephone or realtime electronic contact solicit professional employment form a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. but cannot pay for recommending services. Overview of RPC 7. someone who is a close personal friend. someone with whom you have a prior relationship. o Has the lawyer violated RPC 7.3 o How would you describe the basic obligation imposed by RPC 7.2(b)? Yes.2 o How would you summarize RPC 7.

because the lawyer has prior professional relationship with them.3(c) apply to untargeted mailings? No because it is not targeted to a specific class that is in need of legal services in a particular matter. but only specified as a certified specialist if you are in fact certified. They could be protecting current and former clients if the law should change and effect the client. duress or harassment. not just people in 7. Do not have to include advertising material is (a)(1) or (a)(2).4(d) allows lawyers to do? A lawyer can say they are certified as a specialist in a particular field of law only if the lawyer has been certified by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association and the name of the certification is clearly identified. Overview of RPC 7. o Does RPC 7. The client will be expecting a higher quality of . they must include “advertising material”. this rule takes away that solicitation right is the client has made know to the lawyer a desire not to be contacted or the solicitation involves coercion.(pressuring clients to hire the lawyer) or burden the client. o To whom is the rule referring when it talks about persons with whom the lawyer has a “prior professional relationship”? Both current and former clients. o What does RPC 7.3(c) apply to targeted mailings? Yes whenever a lawyer knows that they are in need of professional services.4 prohibit a lawyer from characterizing herself as a specialist in a particular area of practice? You can say that you are a specialist.3(b)? with respect to individuals that lawyer may properly engage in solicitation. o How would you describe the basic obligation imposed by RPC 7.  What risk does a lawyer run if she characterizes herself as a specialist but has not received a certification from an approved or accredited organization? Imposes a high standard on herself.4 o What does RPC 7. (Includes everyone. o Does RPC 7. o You can’t advertise or solicit when the target has said he wants to be left alone o You can’t advertise or solicit when your efforts o How would you describe the basic obligation imposed by RPC 7.3(b)).3(c)? lawyer must include “advertising material” (in written. recorded or electronic communications) when soliciting a client in need of legal services in a particular matter. o Does RPC 7.4(a) allow lawyers to do? A lawyer may communicate the fact that the lawyer does not does not practice in particular fields of law.

Overview of RPC 7.5(c)? if someone in a law firm whose name is part of the firm name is elected to public office there are some instances where the law firm cannot use that name while they are in office.1 may create a problem because you have to be truthful in advertising (may challenge the claim). o Assume Smith and Jones form a firm and call the firm “Smith & Jones” .service. but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.  Can they call the firm “Berger & Frankfurter” because these are the two former justices that they most respect? No because comment 1 says you can include current or former lawyers.  Can Smith and Jones form a law firm and call their firm Smith & Jones in both states? Yes but they must say where they are admitted to practice law. the public officials name must be removed during any substantial period of time during which the lawyer is not actively and regularly practicing law.5 (contd. Nothing wrong on its face.5(b)? a law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction.1 and you cannot prove this. o How would you describe the basic obligation imposed by Rule 7.  What must Smith and Jones say on the firm’s stationary and on any other listing of the lawyers in the firm to ensure compliance with Rule 7.) • How would you describe the basic obligation imposed by RPC 7. o Assume Smith is admitted to practice in Florida and Jones is admitted to practice in Georgia.  Can they call the firm Smith & Jones? Yes so long as they are practicing together.5 o How would you describe the basic obligation imposed by Rule 7. but Rule 7. but you cannot put others in the firm name.  Can Smith continue to call the firm Smith & Jones even after Jones even after Jones’ death? Yes because comment one. After death of partner you can.5(a)? o Assume Smith and Jones form a law firm.  Can they call the firm “Best Damn Firm Ever”? No because they are subject to Rule 7.5(b)? Overview of RPC 7.

• His clients have found that his $95 per hour fee  . (would be different if he served on the city council of a small town and would probably not be a full time job)  What can they do if Jones is not re-elected and returns to practice with Smith? They could return to using the name Smith & Jones if he leaves the senate and returns to practicing law.S. Conveying that he is the only lawyer in the state that charges a single rate for anything.• Can smith continue to practice as “Smith & Jones” after Jones is elected to the U. but when he says he is not the “best” lawyer he is implying that he may be cloise to the best lawyer. • He does not claim to be the best lawyer in the state but some of his former clients have agreed to serve as references? There is nothing that prohibits former clients from providing references. See comment [30 of 7. Senate? Probably not because Jones’ obligation as a senator would restrict his ability to actively and regularly practice law while simultaneously serving as a US Senator. And there is no way to prove the lawyers assertion. Can do a review to determine whether this is a true assertion. Variation One o Jerry Harold has just moved to a new community and so he places the advertisement on page 514 in a local paper  Did jerry create a potential problem by stating that… • He is a “doctor of law” or that his “doctor’s degree in law is the… degree a lawyer normally earns”? this statement on its face is technically true. and the probability is that there may be other lawyer who charge one hourly rate for all their work so it is very likely a false assertion. But there are other degrees someone could get and therefore it is not technically and thoroughly true. • He is “Unusual in one respect” because he charges a single hourly rate for all matters.1 • He served his country for three years as a “Judge advocate in the Army”? a phrase that non lawyers might consider to mean that he was an actual judge as it implies he is not only a lawyer but a judge as well. But if true then this would be a true assertion because it can be proven.

3(b)(1) limits there ability to solicit even former or current clients if they say they dont want their services then the lawyer may not continue to solicit that business.1. In regards to real estate and probate matter it is difficult to say it is a great deal because not eery real estate and probate matter is the same.  Is Jerry required to leave these folks alone if they tell him they are not interested in any additional services? Under 7.2.  Is Jerry at risk of violating aby RPC if he sends the note? • Are any of the following RPC’s implicated. particularly in routinematters like real estate and probate.3(a). as if the clients went with a lawyer who did the work faster but for a lower price. It may. Some are more complicated than others.7. 7. A lawyer who charges a low hourly rate but if the lawyer makes up the difference by billing a larger number of hours then the clients would be in the same economic position.3(c)) (it would be different if you are directing the advertisement at people you know will need your legal services)  Was Jerry required to include his office address in the advertisement? Variation 2 o Jerry Telephones each of his former clients who is over the age of 50 te inquire whether they are in need of a review of their  Has Jerry Violated any RPC by making the call? Whenever jerry is communicating with a former or current client even if soliciting new business he is not prohibited by 7. it could be misleading. because he is directing this at people he doesnt know and who may or may not even need his legal help (see RPC 7.  Was Jerry required t include a legend indicating that the advertisement is “advertising material”? in a newspaper No. 7.3? yes all of them would be implicated . Variation 3 o Jerry learns of an airplance crash and decides to send a note to the victims or their survivors expressing his personal sympathy for what the airline’s possible negligence has forced them ot bear.• • saves them “a great deal in legal fees.

7.3(a). because it is directed to a person that the lawyer knows is in need of legal services. The client is never confronted with a lawyer pressured to sign up with a prospective lawyer. but if you do.1 applies but he has not said anything false or misleading.3(a) solicit employment in person because none of these people qualify for any exceptions to the no face to face solicitation rule. And since he is not doing it in these modes 7. because it can be infered that the reason for the communication is for business and thereforem akes it an advertisement.3(b) cant solicit in person if it involves coercion. or harrassment.2 applies because this is a written communication but he has not problems so therefore 7. You drive by a multi-car accident. 7. 7.3(a) only applies face to face. o Have you violated any RPC? While it is in bad taste No RPC 7. There is blood and gore everywhere (and lots of prospective clients as well). duress. 7. Ill be here for you” • Is jerry at risk of violating any RPC if hemeets with the victims or their survivors? Yes.3(C) violation so it would probably be allowed since the lawyer didnt hand them to each person personally there was no pressure or anything on the victim to accept since they can merely throw them away. 7. Jerry cant even have this encounter under 7. and a person can pick up your card . Someone could maybeattemptt oclaim that 7. over the phone. Jerry also plans to follow up with a personal visit to the victim or survivor.3(b) might apply.3(a) doesnt apply.3(c) he would have to comply with advertising material. letting the wind do the rest. Variation 4 • You are a new lawyer. during which he plans to say “its up to you to decide whether to retain me. or instant chat. over the phone. • Is Jerry required to place the legend “advertising material” on the outside envelope? Yes. Your firm gives you a box of business cards that you have with you in your car.3 might apply but it is not an issue because it is not face to face. You grab a fist full of business cards and fling them out the window. If Jerry proceeds without prompting by the victims he would violate 7. or real time electronic chat.

the required proficiency is that of a general practitioner.and discard it.2(b) means that a lawyer cannot be paid for finding a case and "dumping" it on another lawyer. 1.4(d) states that a lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law.4(a) Facts Ramirez has represented Peron family for several years.5(e). certification signifies that an objective entity has recognized an advanced degree of knowledge and experience in the specialty area grater than is suggested by general licensure to practice law (this is the difference between saying. Professor says that the reason for subsection (1) is so that each lawyer will be held liable for his/her own malpractice. B. Under comment 3. (2) the client agrees tot eh agreement. The reason for this rule is b/c "specialist" implicates a higher level of competence.1. skill. Does Ramirez have an ethical obligation not to handle this case entirely by himself? Rule 1. and preparation reasonably necessary for the representation.2(b) states that a lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may (1) pay the reasonable costs of advertisements or communications permitted by 7. Comment 7 states that joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership. When lawyers make these agreements. thoroughness. B. they are agreeing to substitute their own lawyering abilities for the other lawyer's. unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the ABA. Calling a Lawyer a "Specialist" In One or More Fields of Practice 1. and (3) the total fee is reasonable.1 states that a lawyer shall provide competent representation to a client. Straight finders' fees are invalid! Lawyers may have reciprocal agreements (in which lawyers exchange referrals) as long as the client knows about the agreement. Problem 32 (did not cover in class) The Ethics of Referral to A Specialist (Page 517) Anytime you think of a referral. 7. "Specialist" and "Practice Limited to [area of . Should the law be concerned a/b lawyers calling themselves specialists? Rule 7.2. and (2) the name of the certifying organization is clearly identified in the communication. 1.2(b) v. including the share each lawyer will receive.5(e) speaks about a division of fees. (2) pay for 7. Comment 1 states that in many instances. and states that a division of fee b/t lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation. Peron's son was injured in car accident and family wants to sue but Ramirez isn't familiar with PI work worked out deal with other attorney to take 1/3 of the settlement from this attorney's rep or 10K whichever is less as the finders' fee. Competent representation requires the legal knowledge. and the agreement is confirmed in writing. you must think of it in conjunction with rules 7. 7. Expertise in a particular field of law may be required in some circumstances. v.2(b)(4) + 5. A. A Lawyer's Duty When a Matter Requires New Skills or Raises Unfamiliar Issues 1. A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter under 1.

Should sharing legal fees w/a recognized lawyer referral service be similarly prohibited? Rule 5. 1. A. Is there any doubt that Able would be subject to discipline for billing hours he had never worked? Of course not! Rule 1. Sara is managing partner and associate Able. charge.4(a) Question 3) What is the problem with sharing a fee with a non lawyer? – it may disturb the lawyer’s independent and professional judgment as to what to do for this case and client. except that a lawyer may share court-awarded legal fees w/a nonprofit organization that employed.1(a) states that a partner in a law firm.5(e)] v. 7. It is unreasonable to bill for hours that were never worked! Additionally. D. identify dates by which actions must be taken in pending .4(a) Rule 5.  Could interfere with the professional relationship.2(b) – no straight referral fees 1. Rule 5. 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. or collect an unreasonable fee or an unreasonable amount for expenses." practices a "specialty." or "specializes" in particular fields.1(a) requires lawyers w/managerial authority w/in a firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct. or misrepresentation. Such policies and procedures include those designed to detect and resolve conflicts of interest. and a lawyer who individually or together w/other lawyers possesses comparable managerial authority in a law firm. 2. Comment 2 states that 5. It is certainly dishonest to bill a client for hours never worked. What responsibility did Smart have to assure that Able did not engage in such dishonest billing? Rule 5. which states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty. Under comment 1. Alternatives to Referral Fees Designed to Achieve Similar Benefits 4.4(c). you have [7.4(a) kicks in when you see a non lawyer Problem 33: Roles and Responsibilities in a Modern Law Firm (page 530) Facts Large firm-managing partner knows of one associate who lies about hours he is billing but since client isn't complaining either is she. a lawyer is generally permitted to state that the lawyer is a "specialist.2(b)(4) + 5. and subsection (a)(4) states that a lawyer or firm shall not share legal fees with a non-lawyer. but such communications are subject to the "false and misleading" standard applied in rule 7. he violated rule 8.2(b) v.1 to communications concerning the lawyer's services.law]). fraud. Sharing Legal Fees  In 1.5(a) states that a lawyer shall not make an agreement for.5(e) you can do this but then each lawyer assume joint-responsibility of the representation (if you want a division of fees) 7. deceit. retained. The Obligations of Supervisory Lawyer and Those They Supervise 1.5(e) When you see someone trying to split a fee with another lawyer. or recommended employment of the lawyer in the matter.4 governs professional independence of a lawyer.

w/knowledge of the specific conduct. However. However.Is Andy Howe. if most associates worked an average of 2500 billable hours and Able worked 3500. it would only be virtue of 5. and a subordinate may be guided accordingly. 5. if the question is reasonably arguable. or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices. Would Able's liability be different if over-billing was not his idea. If a lawyer refuses a direction to do something illegal.a. the supervisor may assume responsibility for making the judgment.matters.g. equally responsible for Able's over-billing? If Howe is responsible. and ensure that inexperienced lawyers are properly supervised. but does that mean she is off the hook? No.e. In re Wallman: other partner is converting funds. 5. should Smart & Howe be subject to professional discipline as a law firm for the conduct of Able? NY is the first jurisdiction to make a law firm itself subject to professional discipline. On the other hand. Under 5. That authority ordinarily reposes in the supervisor. b/c he is a managing partner and therefore is responsible for whether the firm had some policy or procedure in place to catch this type of conduct. Smart's co-managing partner. because under 5. the duty of both lawyers is clear and they are equally responsible for fulfilling it. etc. or has direct supervisory authority over the other lawyer. a named-partner cannot be expected to know about what every associate does and what goes into every client's bill. b. Perhaps they could have had some kind of internal auditing system (e.1(c) she found out that the associate was over-billing and did not take reasonable remedial measures.1(a). Regardless of individual discipline that it might be imposed. a red flag would go up).3 governs non-lawyer conduct (such as that of law student clerks). Smart did not "order" the over-billing or even "ratify" it. ratifies the conduct involved. The Rights of a Lawyer Who Refuses to Violate the Law 1. Basically. Comment 2 states that when lawyers in a supervisor-subordinate relationship encounter a matter involving professional judgment as to ethical duty.2(a) states that a lawyer is bound by the Rules notwithstanding that the lawyer acted at the direction of another provision. Rule 5. someone has to decide upon the course of action. She could have corrected the bill. he was just following orders? Probably not. talked to the client. Some jurisdictions have held that there is no cause of action. a lawyer shall be responsible for another lawyer's violation of the Rules if: (1) the lawyer orders or. retaliatory discharge. while others have held that there is. As far as we know. Thus. If the question can reasonably be answered only in one way. the firm must have rules in place w/which to "check" their employees. it seems that the only way to "get" him for misconduct is to point out what he did not do. Similarly. c. She should be on the hook. B. Would it be enough for Howe to show that the firm's orientation video contains a two minute section in which Howe tells the new lawyers that the firm expects them to bill honestly? 4. Doubts About Life in the Modern Large Law Firm . account for client funds and property. and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial measures.1 imposes an obligation to know. There is no "good soldier" defense to commands by partners that can only be answered one way (i. does that lawyer have any protection against being fired for his/her courage? This type of firing is a.1(c). D. court suspended the other partner for failing to catch and correct the problem. 3. 5. the only way to comply is to blatantly violate the rules). subsection (b) states that a subordinate lawyer does not violate the rules of professional conduct if that lawyer acts in accordance w/a supervisory lawyer's reasonable resolution of an arguable question of professional duty.k.

Should there be any limits on the departing lawyers' contacts with firm clients to seek to persuade them to follow the lawyers to the new firm? If the clients are the firm's clients. A. However. The Law and Ethics of Departing from a Law Firm 1. Women also want to contact the union members of a union which one of the women was a part of prior to the firm to offer estate planning services. or the entire area of practice. It is also subject to 7. including good will. this letter is subject to 7. or other similar type of agreement that restrict the right of a lawyer to practice after termination of the relationship. if four conditions are satisfied. The reason for this under comment 1 is that an agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer. To whom do a law firm's clients belong? What rights should departing partners and associates have to try to cause clients to consult them at their new firm? Comment 1 to 1. operating. or in the area of practice that has been sold. Also. they are not the attorneys. . Clients are not commodities that can be purchased and sold at will. 3.3(a) problem if he/she tries to call those clients (prohibited solicitation). might a law firm simply put a covenant not to compete in its partnership and employment agreement that requires former partners and associates not to practice law in competition w/the firm for a period of three years after leaving? No. The men were angry but instead of suit offered to give them estate part for a price.17 governs the sale of a law practice. in the geographic area or in the jurisdiction in which the practice has been conducted. the entire practice. Buying a Lawyer's or Law Firm's Practice 1. or harassment. not merely a business. duress.3(b)(2) and cannot involve coercion. Rule 5. Efforts by Law Firms to Inhibit Their Lawyers' Ability to Leave 1. The seller must give written notice to each of the seller's clients. or (b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy. What duties do law firm partners owe to each other? Partners traditionally are said to owe each other the fiduciary duties of loyalty and care. then under 7. (Comment 2 states that the seller must make a good faith effort to cease practicing). employment.17 (which governs the sale of law practice) states that the practice of law is a profession. must be sold to one or more lawyers or law firms. Rather than relying on a suit for breach of fiduciary duty to inhibit departures. One such condition is that the seller ceases to engage in the private practice of law. and for 7.3 purposes. and states that a lawyer or a law firm may sell or purchase a law practice. if they are the attorney's clients. shareholders. Problem 34 Leaving One Law Firm and Forming Another (Page 545) Facts Eight women in big man firm feel not being treated fairly so want to leave and take with them the estate part of the practice which they ran. they are prospective clients.3 the attorney is permitted to write letters to those w/whom they have or had a professional relationship. 4. How should lawyers proceed when leaving a law firm? B. Thus.6 states that a lawyer shall not participate in offering or making: (a) a partnership. or an area of law practice. What about confidential information? Comment 7 states that negotiations b/t seller and prospective purchaser prior to Seller must get informed consent from client to disclose any confidential information. the attorney may have a 7. C. 2. Of course.D.1 and cannot be false or misleading. Would any ethical problem have been presented if the women associates had bought their portion of the law practice from Bright & Learned? Rule 1.

3(b)(2) states that a lawyer shall not give anything of value to a person recommending the lawyer's services except that a lawyer may pay the usual charges of a legal service plan or a non-profit or qualified lawyer referral service (i.6(a) • What is the basic obligation imposed by rule 5. disabled or disappeared lawyer following the purchase of that lawyers law practice. no live contact.. a lawyer may participate w/a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscription for the plan from persons who are not known to need legal services in a particular matter covered by the plan. o Payments to non-lawyer staff to compensate them for their services o Payments of court-awarded fees to pro-bono organizations • No partnerships with non-lawyers when any of the activities consist of the practice of law.2. • No influence over professional judgment by third-party who pays lawyer for representation of client client • No non-lawyer owner. a referral service approved by the local bar association). officer or director of professional corportation that is authorized to practice law for profit.  Is this provision enforceable? No because it limits the attorney ability to practice alw after disassociation (5. May a lawyer properly recommend that his/her clients retain a the lawyer who has bought the practice? Rule 7. The lawyer must be aware of 7.5(e) states that the forwarding lawyer has to remain liable for the new lawyer's malpractice. etc. Comment 8 states that the organization must not be owned by or directed by any lawyer or law firm that participates in the plan. D.4 • No fee sharing with non-lawyers except for. Establishing a Group Legal Services Plan as Part of a Law Firm 1.3(d).. if they choose.e.6(a)? o Assume a law firm’s partnership agreement provides that a partner who leaves the firm cannot provide legal services within the state for a two-year period. unless they each want to split the work and be responsible for their own malpractice.e.6(a) o Assume a law firms partnership agreement provised that partners . o Payments to the prepresentitive of a deveased. It is not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members.). Rule 1. become prospective clients of the lawyer.2(b)(3) seems to imply that such a recommendation is possible. Overview of RPC 5.s operating or partnership agreement. Rule 7. o Payments to the estate or beneficiary of a deceased lawyer pursuant to th terms of a firm. which states that notwithstanding the prohibitions in (a) (i. It states that a lawyer shall not give anything of value to a person recommending the lawyer's services except that a lawyer may pay for a law practice in accordance with 1. Comment 6 states that the rule is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may.17. Overview of RPC 5.

The lawyer is retiring and that decision already prohibits the public form hiring that lawyer so the public is not disadvantaged.17(a) and (b) o What does Rule 1. . o Does RPC 5.  How can GM accomplish the same result of “blacking out” the lawyer entirely properly. • Which RPC would rear its ugly head? 1. then the lawyer would no longer be able to take any more cases against them. o How would you describe what the seller must stop doing for the sale to satisfy the requirements of Rule 1.17(a)?  Must stop private practice or in the area of practice the lawyer has sold. Lawyer figures out that the car’s design is defective.  What do you suppose is justification for this rule? Prevents conflicts between the lawyer and the client • What would happen at mediation if these sorts of offers were permissible and Gm made one? Client would want to settle. but the lawyer wants to be able to represent other clients so the lawyer will not want to take it so he can continue to represent other clients.6(b)? o Assume Lawyer sues GM for injuries suffered by Client in auto accident. GM offers to pay $5 million to settle so long as lawyer agrees not to take another case against GM?  Can GM’s lawyer make the offer? No it would restrict the lawyer from taking any other cases.17 allow lawyers to do?  Buy and sell law practices. What is the basic obligation imposed by rule 5.based upon what we have learned this semester? GM could ask the lawyer to represent them too. Overview of RPC 1.6(A) apply to restrictions on the right to practice arising out of the sale of a law practice? Yes  What does comment [3] say about this? That language does not apply to the sale of a law practice and the purchaser can seek to restrict that persons ability to do so.• • who “retire” (defined as those who will discontinues practicing law in the jurisdiction) will receive a retirement bonus pf 1% of the firms net income for the preceding 24 months  Is this provision enforceable? Yes because this deals with benefits concerning retirement.7 (a)(2) concurrent conflict problem between the lawyer who wants to represent other clients and the client who want the money.

 Can she sell the pi practice and continue to represent her estate planning clients? • Yes. • It does not effect the sale of the practice. just as long as the entire practice or entire area is sold. Overview of RPC 1. o Assume selling lawyer has a personal injury practice.17(b)?  The sale must cover the entire practice.7 or 1.  The purchaser is obligated to the agreement the selling lawyer had with the client. the purchasing lawyer cannot represent that client.  What happens if one of the seller’s client’s does not want to be represented by the buyer? • The transaction continues. o How would you describe the obligation under 1. o Assume the lawyer has a personal injury practice and an estate planning practice. she is just precluded from practicing PI.  Can she put an advertisement in the newspaper for more PI clients? • No. o How does the purchaser determine whether the seller’s practice is worth buying giving the constraints imposed by 1.17(c) and (d) o How would you describe RPC 1. The client will have to go find new representation.• o How would you describe what the seller must do under 1. If consent could not be obtained.  But the seller cannot give any information precluded by .6(a)?  The seller can disclose information to the purchaser to do a conflicts check in order to see if this is a viable purchase. and their consent will be presumed if they do not respond in 90 days. she sells everything to another lawyer.17(a)).  Can she sell half to one and half to another? • Yes. or the entire area of practice and can be sold to one or more lawyers of a firm. she must discontinue practice of PI.17(d)?  The fees should not be increased by reason of the sale.9 is implicated. but the seller cannot transfer that client’s file.  What happens if one of the seller’s clients creates a conflict with one of the buyer’s existing or former clients? • 1. (1. the client does not have to be part of the transaction or can take their file.  Can she sell all of the practice to another lawyer? • Yes.17(c)? The seller must give written notice of the proposed sale.

o What if anything. determining a firm name and the like?  Can do anything that would allow them to leave the firm on Friday at 5pm. But the selling lawyer cannot provide it to them. They ask you what they can permissibly do to set up their own practice prior to leaving their current firm.6(a).  You have no right to solicit them before you leave the firm. can they do prior to departure with respect to things in contacting the clients with whom they have not worked with for purposes of soliciting their business going forward?  Cannot contact them if you have not done work with them in the past. So that the other lawyers can solicit the clients as well. What can you do after you leave the firm?  Can solicit and advertise with respect to 7. Variation One Lawyers in a trust and estate group decide to leave and they would like to take as many clients with them as possible.  Tell the other lawyers of the firm that they are leaving with timely notice.2. obtaining a line of credit. o Can you take the good clients and leave behind the bad ones?  No have to take all or nothing. o What if anything.3 and 7. o What if anything. Variation Two The Trusts and estates department leaves the firm and they convince several of their clients to go with them. o Does comment [7] give an explanation?  The purchaser is deemed to have access to the client’s information after 90 days and can see if they want to go forward with the purchase. The remaining lawyers ask you whether they can sue the departed lawyers for tortuous interference with the firm’s relationship with these . can they do prior to departure with respect to things like locating office space. and show up at a fully functional office on Monday at 9am.• • • • • 1.  A purchaser will want this information to see how well they stand in current cases. can they do prior to departure with respect to things in contacting the clients with whom they are working for purposes of soliciting their business going forward?  They cannot bad mouth their current firm.

What is the authorized practice of law? o Practicing in a jurisdiction in which you are not authorized to. o The practice of law at its foundation is IRAC. they consider offering to sell the estate planning practice to the departed lawyers. and the client ultimately has the power to terminate the relationship at any time for a good reason.5  cannot engage in the unauthorized area of law. (not formally admitted to practice law) o A non lawyer can engage in the unauthorized practice of law o 5. Doing so would preclude them from practicing in this area under RPC 1. would only make sense if they would be willing to cease practicing law in this area anymore because. o Would you advise the remaining lawyers to make such an offer? • If the surviving lawyers decided to sell. Unauthorized Practice of law What is the practice of law? o Giving advice or counsel to persons as to their legal rights and responsibilities or to others o Selecting. They do not need to purchase this right.17  Hint – what is the downside? • They could not practice in this area anymore and would lose the income from such area. preparing or filing documents or conducting discovery o Negotiating legal rights or responsibilities on behalf of a person. o What do you tell them?  Clients are not constant. drafting or completing legal documents or agreements that affect the legal rights of a person o Representing a person before an adjudicative body. including but not limited to. bad reason or no reason at all. o Would you advise the departing lawyers to accept such an offer?  They would be paying for the right to solicit clients that they already have the right to solicit already. Variation Three The remaining lawyers don’t want a public fight.• • • • • • clients. As such. My mother advises me that I cannot lawfully advertise my services as a lawyer to consumers in Florida .

 Can provide this information because she is representing herself. she cannot tell you what your rights are. o Does it matter if her advice is correct?  No it is still a violation (maybe criminal) o Has she violated the RPCs?  No because she is a nonlawyer o My mother is stopped for speeding. o Assume that a lawyer is admitted to practice in Fl only  Can he practice in the other 49 states? • The general rule is that the lawyer can only practice in Florida. And therefore the lawyer is not assisting in the unauthorized practice of law.5(b) How would you describe the basic prohibition imposed by rule 5. Overview of RPC 5. She subpoenas the officer and represents herself in traffic court. She receives a call call from a friend in GA who is not a lawyer but who has a friend in Georgia who has a legal problem.• • • • • o Has my mother engaged in the unauthorized practice of law?  Yes.5(a) How would you describe the prohibition imposed on lawyers by RPC 5. How would you describe the basic prohibition imposed by rule 5.  Can the lawyer give the friend advice? • Last clause of paragraph (a)  cannot help others in the unauthorized practice of law. and you cannot have a systematic and continuous presence (anything more than temporary) for the practice of law in that jurisdiction. She lives in Washington and I am still admitted to practice there. (makes all the difference in a 5.5(b)(2)? You cannot convey the impression in that other . (unless another rule allows)  Assume that the lawyer is admitted in Florida only. She is participating in an authorized practice of law.5(b)(1)? Cannot establish an office in a jurisdiction in which the lawyer is not authorized to practice. o Has she engaged in the unauthorized practice of law?  No she has the right to represent herself on a pro se basis.5(a) analysis) Overview of RPC 5.5(a)? you lawyer engaged in the unauthorized practice of law when you purport to provide legal services in a place where you are not licensed or authorized to do so. o Assume my mother asks for my advice about what to do when appearing in court to contest her traffic ticket.

 Which rule is implicated in this circumstance? • Yes RPC 7.5(b)(2) Overview of RPC 5.• • • jurisdiction that you are authorized to practice in that jurisdiction if the lawyer is not authorized to practice there. It would be misleading. Provides litigators with two key advantages (1) lawyers in one state can handle matters in another state as long as they comply with out of state rules(2) when handeling cases at home they can croos state lines for the purpose of litigation things.5(c) How would you describe the basic opportunity provided by Rule 5.5(c)(1)? As long as the lawyer is admitted to practice in the US and is not prohibited in any jurisdiction from the practice of law. they can associate themselves with another lawyer from another state where they are not formally admitted who is formally admitted in that state so long as that lawyer is associated with the case. How would you describe the opportunity provided by rule 5. and 5. o What does it mean for a lawyer to be admitted in a jurisdiction on a pro hac vice basis? Universal way in both federal and state courts. notwithstanding the fact that the lawyer is not permitted to practice in that jurisdiction as long as they comply with local rules in that jurisdiction applying to lawyers not admitted to practice in that state on a temporary basis. (can handle one specific case but not others) o Assume a lawyer is admitted to practice in Florida but has client who must bring suit in Georgia because the Florida courts cannot exercise in personam jurisdiction over the defendant.  Can the lawyer advertise in savannah for purposes of providing services in the area without specifying where she is admitted to practice? • No.2. Most people would assume and conclude that the person running the ad is licensed to practice in Georgia or else he wouldn’t be running the advertisement.1. a lawyer from one state is given permission in another state to practice (including trial) in another state on a temporary basis. o Assume a lawyer is admitted to practice in Fl only  Can the lawyer set up an office in Savannah.5(c) (2)? Applies only to litigators and tells litigators that they are allowed to litigate away from home. Georgia for the practice of law? • No.  Will the Florida lawyer eventually have to be admitted in Georgia on a pro hac hice basis if she . and also 7.

5(c) (3)? A litigation oriented rule and says they can go to other jurisdictions and participate in alternative dispute resolutions.5(c)(2) (lawyer needs to cross a state line regarding an at home litigation matter) How would you describe the opportunity provided by rule 5.5(c)(2)) you don’t have to wait for your formal admission as long as you have a reasonable belief you will eventually be admitted on a pro hac vice basis.5(c)(4) is the transactional lawyer’s best friend because it effectively allows the lawyer to provide services everywhere so .  Can the Florida lawyer take the deposition in Georgia? The lawyer can take the deposition because this is envisioned by 5. He travels from his home in Honolulu for one week each month to conduct mediations from an office in San Francisco. o Assume Tony Piazza is the nation’s best mediator.• • wishes to handle the case? Yes  Can the Florida lawyer perform pre-litigation activities in Georgia before she is admitted pro hac vice? Yes (last clause of 5. without worry as long as ADR proceeding is in regards to a matter in the lawyers home state.  What is the last clause.” getting at? Drafters way of telling lawyers before travelling to another state check the rules of that jurisdiction to be sure that jurisdiction does not require admission pro hac vice to do the ADR (no state has this rule yet. and who are handling a case in Florida. travel to Tony’s office in San Francisco to mediate their dispute? Yes because the mediation in California is related to the issue in Florida.  To whom does the clause “or a person the lawyer is assisting” refer to? Other lawyers who are assisting the lawyer who herself has been admitted on a pro hac vice basis or reasonably believes they will be admitted (junior associates who will provide assistance to those senior attorneys) (subordinate lawyer who is assisting a lawyer who has been or reasonably will be admitted on a pro hac vice basis) o Assume a lawyer is admitted to practice in Florida and has a case that is pending in the Florida courts. The lawyer would like to depose a witness in Georgia. Rule 5. beginning with “and are not services.  Can lawyers admitted in Florida. but at some point they might) so it is advised to be sure to be safe and avoid any quirky rules.

because this is the situation 5.• • long as she does not violate rule 5.5(b)(1) no. Overview of RPC 5.5(d)(1) is looking at.  Lawyer in state X advised corporation in state Y about federal securities laws o Client’s business activities are connected to lawyer’s home state.5(d) (1)? Normally talking about in house lawyers whose only legal services are provided to the entity which hires the individual. (lawyer cannot go to court) (he needs to be admitted to that state bar or be admitted pro hac . • Is this consistent with rule 5. And they can stay in this jurisdiction perpetually as long as they are providing services to the corporation which employs them. New York.5(b).5(d)(1) authorizes this. but this says unless otherwise authorized and 5.  Would your answer be any different if the IBM lawyer opened an office where she does her work continued to work there for twenty years while emploed by IBM? No as long as she is still working for IBM. o Assume a lawyer is admitted to practice in New York and is employed by IBM at its corporate headquarters in Armonk. California.5(d) How would you describe the opportunity provided by rule 5. o Assume the IBM lawyer is admitted in New York but is working for the company in San Jose. he is doing work in that jurisdiction for that corporate employer. at least in part  Lawyer in state X advises corporation doing business in states X and state Y about problem in state Y. o Clients legal problems are governed by federal law and client wants a lawyer uniquely qualified and experienced in federal law.  Would the lawyer be required to gain admission to practice in California if IBM sent the lawyer to work at one of its facilities in san jose? No corporations can send those lawyers wherever they are needed without having to gain admission to the California bar as a condition on assisting the corporation in this other jurisdiction. o Client contacted lawyer in lawyer’s home state  Lawyer in state X receives inquiry from corporation in state Y about regulatory obligations in state Y.  Can the lawyer draft a contract for a transaction between IBM and a California corporation? Yes.

• • • • vice. No.5(d)(2) allows lawyers to handle cases in a U. o What are examples that “might reasonably be performed along with legal services” but can “properly be performed by non-lawyers”?  Tax advice(L) + tax return preparation (LRS) or accounting services (LRS) (see comment 9) How would you describe the obligation imposed by RULE 5.7(a) will likely make the RPC’s applicable to the lawyer is she prepares a tax return for a client  Which portion of rule 5.7 (a)(2)? A lawyer would want to get away from the RPC’s let your client know that it is not covered under the client/lawyer privilege. You have to specifically tell the client that is you were to make the clients tax returns you have to say you are doing this outside the attorney/client privilege and that you are not acting as a lawyer etc. Overview of RPC 5. District Court so long as the admission requirements of the district court do not require prior admission in the forum state. he is only allowed to work there as a transactional lawyer not a litigator)  Can the lawyer draft a contract for a transaction between an IBM employee in her individual capacity and a California corporation. because the special consideration is given to the corporation and not the individual employee.7(a) (1) ad 5. Overview of rPC 5.7(a) will likely make the RPC’s applicable to the lawyer if she prepares a tax return for a non-client? • What must the lawyer do to avoid application .7 How would you summarize the definition of law-related services in rule 5.S. o Assume a tax lawyer wishes to make some extra money preparing tax returns.5(d)(2) o Rule 5.7(b)? like legalservices but are things a non lawyer could do without violating RPC.5(d)(2) allows to practice in jurisdictions in which hthey are not formally admitted so long as the practice is limited to…  Bankruptcy  Immigration  Patent  Federal income taxation o Rule 5.  Which portion of rule 5. The client is the corporation and the employee is not the client.

that will work out of his office and provide legal services as well as financial planning and insurance services.1 and 7.  What might Dowd try to do if he wishes to avid the application of the RPC’s to the provision of financial or insurance services to individuals who want those services along with legal services? *** Final exam 1 essay (60-70% of exam score) and 8-15 multiple choice*** • • • . o How would you describe the current state of the law regarding the extent to which the do it yourself kits do or do not constitute the unauthorized practice of law? Appears that a lawyer can do that without problem but in general there is nothing wrong with preparing these kits. in which he will have a controlling interest.2 if the lawyer purports to answer specific questions it is impermissible Variation two Dowd wishes to set up a subsidiary.of the RPC’s to the provision of legal services? • • Variation one Victor Dowd intends to create do-it-yourself estate planning and administration kits that he intends to sell in states in which the contents of the kits are fully consistent with state law. o Will dowd be required to comply with the RPC’s with respect to any legal services he provides? Yes o Will dowd be required to comply with the RPC’s with respect to the financial planning and insurance services he provides? Depends entirel on the extent he can forcefit his situation into (a)(1) and (a)(2)  Why is it important that the facts indicate that Dowd will have a “controlling interest” in the subsidiary? The lawyer must at some level control the entity before you worry abot (a)(1) or (a)(2)  What might Dowd do if he wishes to avoid the application for the RPC’s to the provision of financial or insurance services to individuals who want those services only. o What additional activity would assuredly cause Dowd to engage in the unauthorized practice of law even if the sale of the kits does not? If he is advertising there he may be liable under RPR 7.

yet according to Comment 4 of rule 6. Lawyer’s Receipt of fee award • Novak takes a civil rights case on a pro bono basis and is successful. b/c . Novak can still consider this as pro bono. failure to perform pro bono is not an offense that is punishable. Comment 12 states. not all lawyers are on the same playing field when it comes to pro bono work. Problem 35 The Duty to Work for No Compensation Bro Bono (page 562) Rule 6. but you should consider but are not required to donate the fee reward to a charity or donate it to a cause for people with little or lesser means. Wright appointed by state for D in murder case when D refused public defendant. A. Plus. however.000 to Novak for his time on the case pursuant to a statute authorizing fee shifting. The Model Rules seem to require it under rule 6. Allows a lawyer who is to busy to do actual pro bono work to make a contribution to a legal service in exchange. Lawyer’s failure to perform pro bono • under comment 12 even when a lawyer never does pro bono.E. Do lawyers have any moral obligation to provide free or reduced price legal services? Maybe. Thus. He knows he is guilty but D said innocent and required 300 hours his time so he sued the state for 30K sine his fee is normally $100. and according to comment 4 tells lawyers there is nothing wrong with claiming pro bono in certain contexts even if you get paid.00/hr.00. that the responsibility set forth in this rule is not intended to be enforced through disciplinary process. The Moral Obligation to Provide Pro Bono Legal Services 1. • Facts State bar of GA give min hours 100 hrs per year in uncompensated legal services. The rule states every lawyer has a professional responsibility to provide legal services to those unable to pay. this is an aspirational rule.1(a) (1)(2) under comment 9 provide pro bono service through financial services to the exclusion of actual legal services. Statutory compensation is max of 750.1 he cannot consider this pro bono. The client does not pay Novak’s bill.1 Voluntary Pro Bono Publico Service Lawyer’s expectation to Earn a Fee Novak represents a client on an hourly rate basis.1. The rule then states that a lawyer should (as opposed to "shall") aspire to render at least 50 hours of pro bono work per year. Lawyer’s financial Contribution • Novak can fulfill under 6. The court awards 50.

Rule 1. C.2 and 7. This can be burdensome.1. which is probably why many lawyers might not do pro bono work. F. under 1. in writing signed by the client. but he cannot just stop representing the client in the matter. pro bono makes lawyers "look" good to society. Problem 36 Problems in Class Action Representation (Page 578) Class actions generally must meet requirements of FRCP 23. record-keeping. This requirement has been upheld by the 11th Circuit. however. of the distinction b/t the "should do pro bono service" in 6.8(e) states that a lawyer shall not provide financial assistance to a client in connection w/pending or contemplated litigation. except that: (1) a lawyer may advance court costs/expenses of litigation. the prepayment of which may be contingent on the outcome of the matter. Remember. such a lawyer would be required to bring him/herself up to speed. and even though client consent is rarely required or sought. and states that a lawyer who represents two or more clients hall not participate in making an aggregate settlement of the claims of or against the clients. lawyers may incur other costs in attempting to place clients' funds at interest. D. It would seem that the client should be entitled to the interest. b/c this may encourage out of town prospective plaintiffs to file the . There is no disciplinary consequence for reporting that the lawyer did nothing. A lawyer should not. Is there a shortage of available legal help such that part of it must be allocated to poor people as one might allocate food after a severe hurricane? Is there a market failure in the provision of legal services? [Why don't we have a legal system akin to the Medicaid system in the medical field?] Law is much different from medicine. which is one of the reasons it is so strongly encouraged. In Florida.4 with regard to advertising (and remember that target advertising is ok!). ever offer to pay such expenses such as living expenses.lawyers do not all make the same amount of money the way doctors tend to. See also 7. Rule 1. Nothing prohibits a lawyer from placing clients' funds in an interest-bearing account. and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. Not every lawyer is qualified to do the work a pro bono case requires (e. Everyone will need a doctor in their lives.g.1 and the "shall accept court appointments" in rule 6. 2. and accounting. The Tradition of Accepting Court Appointment in a Criminal Case 1. IOLTA (Interest on Lawyer Trust Accounts) programs are in existence in most jurisdiction today. the ABA has said that lawyers may properly participate in such programs. if any. paid the money. or to pay $350 to a legal aid organization.2? If the lawyer is not getting paid enough. B. however. all attorneys are "encouraged" to complete either 20 hours of pro bono work. a patent attorney might know nothing of criminal trial work). it is a violation not to report. All attorneys are also required to report whether they did the work. or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas. unless each client gives informed consent. or did nothing. Efforts to Translate a Moral Obligation into a Legal Requirement 2. however. while some people may go their entire lives w/o ever needing a lawyer. Sources of Possible Other Funding for Legal Services to the Poor 3.8(g) ensures that settlements are for the entire class. What is the basis. the ABA has upheld allowing lawyers to take the interest b/c the expenses incurred in creating notification. however. he can petition the state for more money.

Court said it cannot be claimed that the publication of a legal text which purports to say what the law is amounts to legal practice. However. The Unauthorized Practice of Law 1. The mere fact that the principles or rules stated in the text may be accepted by a particular reader does not effect his. Nationwide insurance company likes this and has offered to refer its customers to him. and it enjoined the sale of the software. Clients could come from various states where Dowd will draft documents for them. G. Now Dowd wants to create a planning subsidiary that will offer service to 10 states and he is only licensed to practice in 1 of them.lawsuit (class action) just to get a free stay. no matter what type of specialty is involved. 5. including but not limited to. (2) selecting. see an attorney"). They will all be billed a single hourly rate. court did say that the prohibition in that case did not burden commercial speech more than was necessary (addressing the First Amendment issue).5 comment 2 states that the definition of the practice of law is established by law and varies from one jurisdiction to another. Should Dowd's proposed sale of do-it-yourself kits constitute the unauthorized practice of law. Quicken: computer program containing over 100 legal forms that were represented to be valid in 49 states. preparing or filing documents or conducting discovery. A. It is a first degree misdemeanor to practice law without a license. or completing legal documents or agreements that affect the legal rights of a person. Problem 37 The Future of the Practice of Law (Page 595) Facts Dowd wants to advice clients about more effective estate planning by publishing do-it yourself kits which he plans to sell in states which have been verified to legal accuracy. Rule 5. the product is a "package" deal by which the consumer may draft his/her own will. 3. Court held that both the preparation of legal forms and the selection of which form to use constitutes the practice of law in TX. NY County Lawyers' Assoc. 5. limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. and Nationwide proposes to advertise the service by putting ads on TV called. even though Dowd is the only person actually doing the legal work that goes into the product. drafting. Does the insurance company w/which Dowd works involve him in assisting the unauthorized practice of law? To the consumer. Fee will be paid by the insurance company. "We've all go to go sometime. This takes away .4(a) states that a lawyer or law firm shall not share legal fees w/a non-lawyer. The disclaimer on the product is not a substitute for the advice of an attorney. Disclaimers all over the product certainly help (i. Contained disclaimer stating that ti did not provide specific information for the consumer's exact situation. Florida says the definition can vary. This is the essential of a legal practice--the representation and the advising of a particular person in a particular situation. (3) representing a person before an adjudicative body. "For your particular problem. The ABA task force tried to refine the definition by suggesting that a person is presumed to be practicing law when engaging in any of the following conduct on behalf of another: (1) giving advice or counsel to persons as to their legal rights or responsibilities or to those of others. v." Note: This is about practicing in one jurisdiction where you are not licensed whether you are litigating in this jurisdiction or contacting clients in these jurisdictions. Comment 2 states that whatever the definition.e. Might as well do it right. Dacey: book advised people on how to avoid probate by advising people to put all of their property in trusts. or (4) negotiating legal rights or responsibilities on behalf of a person.

accountants. it is permissible for an attorney to associate w/attorneys from other states in which he/she is not licensed. Lawyers also may assist independent non-lawyers. Superior Court: Comment 16 to 5.5 states that lawyers not admitted to practice generally in a jurisdiction may be authorized by law or order of a tribunal or an administrative agency to appear before the tribunal or agency. Comment 13 states that 5. Comment 3 to 5. but Florida does not. May a person represent herself in court? Of course. Why do we let people act pro se if unauthorized practice rules are so important? B/c unauthorized practice.5(c)(4) permits a lawyer admitted in another jurisdiction to provide certain legal services on a temporary basis in this jurisdiction that arise out of or are reasonably related tot he lawyer's practice in a jurisdiction in which the lawyer is admitted but are not w/in paragraphs (c)(2) or (c)(3). Some states have reciprocity agreements w/other states. That is what 5. May she act as her own lawyer in negotiating a contract? Yes. This paragraph applies to in-house corporate lawyers. and persons employed in government agencies. If an attorney has a continued presence in a state in which he/she is not licensed. . employees of financial or commercial institutions. The Multi-Jurisdictional Practice of Law 1.5 states that 5. it does not. Think of real estate closings. However. however. a lawyer may counsel non-lawyers who wish to proceed pro se. only in the state in which that person took and passed the bar. In what jurisdictions may a licensed lawyer regularly practice? Generally. Beach: Beach had contract with paralegal company who prepared and sold legal documents for consumers. and holds him or herself out as an attorney licensed to practice in that state. B. In addition. Should transactional lawyers have a similar way to follow their clients to other jurisdictions? Birbrower v. this reasonable expectation usually must be based on work the lawyer is conducting in a jurisdiction in which he is licensed (e. These services include both legal services and services that non-lawyers may perform but that are considered the practice of law when performed by lawyers. and who met w/clients but told clients there was no attorney/client relationship. 4. 3. This paragraph doe snot authorize the provision of personal legal services to the employer's officers or employees.Florida Bar v. [In criminal law. An officer of a corporation cannot represent the corporation.5 states that a lawyer may provide professional advice and instruction to non-lawyers whose employment requires knowledge of the law. a lawyer rendering services in this jurisdiction on a temporary basis does not violate 5.5 is meant to enforce. but attorney met with paralegal to discuss clients.g. involves assisting another w/a legal matter. a defendant has a constitutional right to represent him or herself].5(d)(1) applies to a lawyer who is employed by a client to provide legal services to the client or its organizational affiliates. 6. government lawyers. Should filling in the blanks on prepared forms constitute the practice of law? In many states. who are authorized by the law of a jurisdiction to provide particular law-related services. b/c it would be a conflict of interest. and others who are employed to render legal services to the employer. for example. social workers. not handling a matter for one's self. in short. The court suspended Beach for 90 days for assisting company to do legal work while unlicensed. pending litigation in his state that is connected to legislation in another state in which the lawyer is not licensed). under 5. However.5(c)(2). According to comment 10. he/she is committing the unlicensed practice of law. This authority may be granted pursuant to formal rules governing admission pro hac vice or pursuant to informal practice of the tribunal or agency. such as paraprofessionals. claims adjusters.5 when the lawyer engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law or in which the lawyer reasonably expects to be admitted pro hac vice. Comment 9 to 5.

VIII. Ethical Conduct of Judges A. Problem 38 Judges' Disqualifying Conflicts of Interest (Page 618) Facts Judge Baxter got personal loan for down payment of house from lawyer who he knows that represents the bank that gave the mortgage. She is representing the bank over lien priorities. Judge told both sides of his potential conflict. Also, has niece who invests in company that D is in for the lien case. Also, he was on committee for assessment policy where he is overseeing a case on taxpayer who is challenging his assessments.

A.

Financial Interests That May Create Disqualifying Bias 1. Was it improper of Anderson to lend money to Judge Baxter to help him buy a house, or for Judge Baxter to accept the loan? Yes, it was improper. Canon 4(D)(1)(b) states that a judge shall not engage in financial and business dealings that involve the judge in frequent transactions or continuing business relationships w/those lawyers or other persons likely to come before the court on which the judge serves. Canon 4(D)(5)(f) states that a judge shall not accept, and shall urge members of the judge's household not to accept, a gift, bequest, favor, or loan from anyone, except for a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges. Comment 1 on page 606 states that 4D(5)(h) prohibits judges from accepting gifts, favors, bequests, or loans from lawyers or their firms if they have come or are likely to come before the judge; it also prohibits gifts, favors, bequests or loans from clients of lawyers or their firms when the clients' interests have come or are likely to come before the judge. As for the attorney, she will be subject to discipline under 3.5(a), which states that a lawyer shall not seek to influence a judge by means prohibited by law (i.e. bribery), and 8.4(f), which states that it is professional misconduct for a lawyer to knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. 3. Under canon 3E(1) a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality (denotes absence of bias or prejudice in favor of or against a particular party or class of parties, as well as maintaining an open mind in considering issues that may come before the judge) might reasonably be questioned [and gives specific instances in which a judge should disqualify him or herself]. Comment 1 states that a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in 3E(1) apply. Comment 2 states that a judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. Canon 3F allows a party and his/her attorney to remit (i.e. waive) disqualification. Under 3F a judge disqualified under 3E may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, out oft he presence of the judge, whether to waive the disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyer, w/o participation by the judge, all agree that the judge should not be disqualified and the judge is then willing to participate, the judge may participate in the proceeding.

B.

Financial Interests of the Judge's Family 1. What obligation does Judge Baxter have to know his niece's financial holdings? Canon 3E(1)(3) states that a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, such as when the judge knows (denotes actual knowledge of the fact in question; knowledge can be inferred from circumstances) that he/she, individually or as a fiduciary, or the judge's spouse, parent, or child wherever residing, or any other member of the judge's family residing in the judge's household (denotes any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge's family, who resides in the judge's household), or has an economic interest (see page 589) in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest (denotes an insignificant interest that could not raise reasonable question as to a judge's impartiality) that could be substantially affected by the proceeding. Here, Judge Baxter does not know of his niece's finances. However, he does not have a duty to know under the Code. He would only have such a duty of knowledge w/regard to his spouse and minor children. See 3E(2), which states that a judge shall keep informed about the judge's personal and fiduciary economic interests, and make a reasonable effort to keep informed about the economic interests of the judge's spouse and minor children residing in the judge's household. Judge Baxter's niece, while a member of his household, is not a minor child-she's 19. Thus, the next inquiry is whether Judge Baxter's niece has a de minimis interest in the insurance company that is the defendant in the lien priorities case before him. She owns 10 shares, a 1/100,00 interest. Whether this is de minimis depends upon what kind of impact his ruling against the insurance company (in which she owns 10 shares) would have on his niece's finances. 3. If Judge Baxter had a daughter who practices federal tax law in a local firm, must he recuse himself whenever his daughter's firm enters an appearance in a case? If the judge's daughter appears before the judge, he must recuse himself. Canon 3E(1)(d) states that a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, such as when the judge or the judge's spouse, or a person w/in the third degree of relationship (great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece) to either of them, or the spouse of such a person is . . . acting as a lawyer in the proceeding. However, he will not be obligated to recuse himself if the law firm entered an appearance. The commentary on page 600 states that the fact that a lawyer in a proceeding is affiliated w/a law firm w/which a relative of the judge is affiliated does not of itself disqualify the judge. 4. Should a judge be disqualified when someone from the judge's former firm (or the judge's former law clerk) appears before the judge? Yes. Canon 3E(1)(b) states that a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, such as when the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter. Plus, 1.12(a) states that a lawyer shall not represent anyone in connection w/a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person. This rule paralles rule 1.11. C. Bias Arising From Personal Views Rather than Financial Interest 1. Does Judge Baxter's prior involvement in the Committee for Responsible Assessment Policy require his recusal from the case challenging the plaintiff's assessment? Not necessarily. Canon 2B states that a judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgement. Canon 3E would also govern in this situation with regard to whether a judge should disqualify him or herself. [Note: Canon

4C(3) states that a judge may serve as an officer, director, trustee, or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice or of an educational, religious, charitable, fraternal, or civic organization not conducted for profit]. Two things the judge must ask himself: 1) Should the judge disqualify himself, and 2) must he disclose that he was involved in the committee that was involved in assessment policy? (Remember, he is no longer a member). Even though the judge is no longer a member of the committee, comment 2 states that a judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.

B. Problem 39 The Judge as a Political Candidate and Public Figure (page 635) Facts A. The Content of Judicial Campaign Speech and Activities 1. What does the Model Code of Judicial Conduct say about Kraft's advertisement in his campaign to become a state judge? Should it matter that Kraft was not yet a judge at the time the advertisement was run? 8.2(b) states that a lawyer who is a candidate for judicial office shall comply w/the applicable provisions of the Code of Judicial Conduct. Canon 5A(3)(a) states that a candidate for judicial office shall maintain the dignity appropriate to judicial office and act in a manner consistent w/the impartiality, integrity, and independence of the judiciary, and shall encourage members of the candidate's family to adhere to the same standards of political conduct in support of the candidate as apply to the other candidate. Canon 5A(3)(d) states that a candidate for judicial office shall not: (i) with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent w/impartial performance of the adjudicative duties of the office; or (ii) knowingly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent. Remember that the judge cannot mislead or be untruthful in his ad campaigns, even though they are not ads to solicit business. These requirements are all encompassed by Canon 5. 4. What other limits are there on other political activities in which a judge may engage? Canon 5A(1)(b) states that except as authorized in 5B(2), 5C(1) and (3), a judge or candidate for election or appointment to judicial office shall not publicly endorse or publicly oppose another candidate for public office. Exceptions: 5C--judge or candidate subject to public election () is allowed to buy tickets for and attend political gatherings, contribute to a political organization, distribute pamphlets supporting his/her candidacy. B. Judges Soliciting and Receiving Campaign Contributions 2. J.R. Kraft accepted campaign contributions pressed into his hand? Was it proper for him to do so? No. Canon 5C(2) states that a candidate shall not personally solicit or accept campaign contributions or personally solicit publicly stated support. However, a candidate may establish committees of responsible persons to conduct campaigns for the candidate by means not prohibited by law. Such committees may solicit and accept reasonable campaign contributions. Such committees are allowed to solicit and accept reasonable campaign contributions and public support from lawyers. A candidate's committees may solicit contributions and public support for the candidate's campaign no earlier than one year before an election and no later than 90 days after the last election in which the candidate participates during the election

The Judge Rewarding His Friends 1. A judge may. would do in the same or similar circumstances. Commentary 5 on page 592 states that a judge may not testify voluntarily as a character witness b/c to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies. and allowing them to accept contributions after the election will help them to alleviate some of this debt]. Lawyer Criticism of Judges 1.year. Judge Kraft told his friend to subpoena him. 4. considered in light of all his professional functions. May Judge Kraft testify as a character witness on behalf of his friend? Canon 2B. or the lawyer who represents such parties. D. This is among the reasons that merit selection of judges is a preferable manner in which to select the judiciary. Sandlin case: refused to read an "actual malice" standard into the "reckless disregard as to its truth or falsity" language of rule 8. or of a candidate for election or appointment to a judicial or legal office. a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge. when a judge testifies as a witness. 4. Would the state attorney be subject to any different form of discipline if she made her remarks about Judge Kraft to his face or in a letter to him? The judge has his own remedies for misconduct in his courtroom. 2. However. b/c the judge wants to testify for his friends. The test should be what the reasonable attorney. as most character witnesses do. . C. Would a merit system of judicial selection (appointing judges) remove all ethical issues from the selection process? Commentary 1 on page 613 states that there is legitimate concern about a judge's impartiality when parties whose interests may come before a judge. Here. which states that a judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities. the subpoena is just a sham. are known to have made contributions to the election campaigns of judicial candidates.2(a). See Williams v. If another judge believed that the state attorney's charges against Judge Kraft were true. would that judge have an obligation to report Judge Kraft? Rule 8.2(a) states that a lawyer shall not make a statement that the lawyer knows to be false or w/reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge. we can only sanction for reckless or false statements. Williams: lawyer told on other lawyer for saying bad words about judge then judge held him in contempt but the appellate court said it wasn't a significant disruption. A judge having knowledge that another judge has committed a violation of the code that raises a substantial question as to the other judge's fitness for office shall inform the appropriate authority. A judge should discourage the party from calling the judge as a character witness under commentary 5. Note that judges are much less likely to report lawyer misconduct than lawyers are to report judicial misconduct. however. [Professor states this is b/c the candidate will likely be in debt from the campaign. precludes the judge from testifying voluntarily as a character witness. Plus. adjudicatory officer or public legal officer. testify when properly summoned.2(b) states that a lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority. Should the state attorney be subject to discipline for making critical remarks about Judge Kraft at her press conference? Rule 8. Canon 3D(1) states that a judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code should take appropriate action. We cannot shield judges from all criticism.

Here. his extra judicial activities include running a homeless shelter and teaching at law school where he plans to ask professors to write drafts of opinions in cases ha has before him. Subsection (4) states that a judge shall be patient. religious.C. it will be ok that he is an officer. and others) as prejudicial. or except when acting pro se in a matter involving the judge or the judge's interests. court officials and others subject to the judge's direction and control. caught drunk driving with stripper in the car coming home from Athletic Club that accepts white members only. or non-legal advisor it if is likely that the organization will be engaged in proceedings that would ordinarily come before the judge. However. Also. but shall not personally solicit funds unless from other judges over whom the judge does not exercise supervisory or appellate authority. With regard to raising money. Note. and shall require similar conduct of lawyers. as long as the organization does not frequently come before the Judge. A. the media. by words or conduct manifest bias or prejudice. Canon 3B(5) states that a judge shall not perform judicial duties w/o bias or prejudice. 4C(3)(b) states that a judge may assist in planning a fundraiser. Problem 40 The Active Federal Judge (Page 651) Facts The way judge manages his court room is interjecting himself into trials by always questioning witness himself and being sexist towards female lawyers. The judge can make recommendations to public and private fund-granting organizations on projects and programs concerning the law. 2. A judge must be alert to avoid behavior that may perceived (by jurors. but shall not personally participate in membership solicitation if it might reasonably be perceived as coercive. witnesses. 2. and courteous to litigants. B. Commentary 2 states that this includes facial expression and body language. lawyers. that the rule does not preclude the judge from being a member of such an organization. or of an educational. an executive or legislative body or official except on matters concerning the law. trustee. and of staff. fraternal or civic organization not conducted for profit. in the performance of his judicial duties. May Judge Richardson seek to raise money to help the homeless? May he testify before a public body about the need for more public funds to provide homeless shelters around the state? Canon 4C(1) precludes a judge from appearing at a public hearing before. court officials. director. and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply tot he judge and to refrain from manifesting bias or prejudice in the performance of their official duties. jurors. and others w/whom the judge deals in an official capacity. Canon 3C(2) mandates a judge to require staff. A Judge's Participation in Non-Judicial Activities 1. A Judge's Performance of Official Duties 1. or otherwise consult w/. Is it proper for Judge Richardson to be an officer of a civic organization that serves the homeless in his community? Canon 4C(3) states that a judge may serve as an officer. Are Judge Richardson's sexist remarks a particular cause for concern? Yes. director. How much should Judge Richardson insert himself into a trial? Canon 3B(3) requires a judge to require order and decorum in proceedings before the judge. charitable. dignified. Also. however. or non-legal advisor of an organization or governmental agency devoted to the improvement of the law. A judge shall not. trustee. A judge also shall not sue or permit the use of the prestige of judicial office for . under subsection (a) a judge shall not serve as an officer.

or national origin. court rules or other specific provisions of this Code. 1.e. 2. C. and enforcing high standards of conduct. teach and participate in other extra-judicial activities concerning the law.throw book at him. maintaining. 3. Here. impartiality and competence is impaired. The stripper thing and the fact that he is married probably is private.S. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities w/integrity. W/regard to Judge Richardson's plan to ask outside experts to write drafts of his opinions: Canon 3B(7)(b) allows a judge to obtain the advice of a disinterested expert on the law applicable to a proceeding before a judge if the judge gives notice to the parties of the person consulted and the substance of the advice. lecture. sex.4 3. tie up bank account Limit scope of representation= Engagement letter Accept settlement on the spot .2 (a)(b)(c) 1. Canon 2A states that a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. cannot be the guest of honor at a fundraising event).1 Cannell-client Broker churned account. May Judge Richardson work as a part-time law professor? Yes. However. this is subject to Canon 4G. 4. religion. The U. Should Judge Richardson's arrest for drunk driving and the fact that a young dancer was in the car at the time be considered bases for judicial discipline? Canon 1 (which is difficult to enforce b/c it is aspirational) states that a judge should participate in establishing. Commentary 4 states that an appropriate and often desirable procedure for a court to obtain the advise of a disinterested expert on legal issues is to invite the expert to file a brief amicus curiae. Is it proper for Judge Richardson to belong to a private club that only admits white males to membership? 2C prohibits a judge from holding membership in any organization that practices invidious discrimination on the bases of race. Senate has passed a non-binding resolution declaring that is is inappropriate for nominees to the federal bench to belong to such clubs. and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. get liscence suspenced. Canon 4B allows a judge to speak. and therefore it is ok for them to write opinions for the judge. What about opinions written by the judge's clerk? Canon 3B(7)(c) allows a judge to consult w/court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or w/other judges. which states that a judge shall not practice law. and affords the parties reasonable opportunity to respond. However. Commentary 2 states that actual improprieties under this standard include violations of law. write. A Judge's Obligation to Model Proper Behavior 1. the fact that the judge broke the law is significant and is not merely a part of his private life.fundraising or membership solicitation (i.18 (into) 1. Discrimination is invidious if it is arbitrary against a certain group. A judge's clerk is certainly court personnel.

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