Summer 2008 Prof.

Pouncy Professional Responsibility Outline
Rule 1.1: Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Rule 1.6 Confidentiality of Information (a)A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b.)A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1.) to prevent reasonably certain death or substantial bodily harm; (2.) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in 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 interest 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; (4.) to secure legal advice about the lawyer’s compliance with these Rules; (5.) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or (6.) to comply with other law or a court order Rule 4.3: Dealing With Unrepresented Person In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interest of such a person are or have a reasonable possibility of being in conflict with the interest of the client. Rule 5.2: Responsibilities of a Subordinate Lawyer (a.) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. (b.) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty. Rule 8.3: Reporting Professional Misconduct (a.) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. (b.) 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. (c.) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyer’s assistance program. Rule 8.4: Misconduct It is professional misconduct for a lawyer to: (a.) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another; (b.)commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c.) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d.) engage in conduct that is prejudicial to the administration of justice; (e.) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f.) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or to other law.

Chapter 1: Introduction to Professional Responsibility I. The Foundations of Professional Responsibility a. The Lawyer as a Fiduciary i. Preamble to the American Bar Association’s Model Rules of Professional Conduct: 1. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living ii. Fiduciaries 1. Have a special obligation to care for and to protect the interest of their beneficiaries iii. Duties owed by attorneys to client, as fiduciaries: 1. Duty of Competence a. R 1.1 2. Duty of Loyalty a. R 1.7 b. R 1.9 c. R 1.8(a) 3. Duty of Confidentiality a. R 1.6 b. The Lawyer as an Officer of the Court Functioning in an Adversarial System of Justice

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i. A lawyer is an officer of the court functioning in an adversarial system of justice ii. Components of an Adversarial System of Justice 1. A neutral decisionmaker 2. Competent advocates zealously presenting the positions of each of the interested parties, and 3. Rules of procedure fairly designed to allow the presentation of relevant evidence to the decisionmaker iii. Duty to the judicial system iv. Sworn to uphold the rules of professional conduct v. Duty to behave as professionals vi. Other Roles of Lawyers 1. Lawyer as a counselor a. Lawyer listens and counsels 2. Lawyer as an advocate a. Not impartial b. Zealously present the position of client i. Advocating for the best solution possible under the circumstances 3. Lawyer as Adversary a. Judicial Proceedings b. Presents issues of other side c. Within context of learned profession The Lawyer as a Person with Personal and Financial Interest i. Lawyer is a person with personal and financial interest 1. Physical, emotional and financial needs 2. Values and beliefs 3. Strengths and weaknesses ii. Effective lawyer only if mindful of all roles and design a method for balancing or harmonizing the roles iii. In re Pautler (p. 5) 1. R 4.3 2. R 8.4 3. Criminal defendant negotiating with police, DA steps in to impersonate PD 4. R. 4.3 Dealing with an unrepresented person a. An attorney must not imply or state that he is disinterested i. Pautler implied that he was not in an adverse position b. A lawyer shall make reasonable efforts to correct the misunderstanding i. Pautler did not take reasonable efforts, or any efforts, to correct the misunderstanding c. A lawyer shall not give legal advice to an unrepresented person other then the advice to secure counsel 5. An attorney must not give legal advice to those we do not represent 6. If you give legal advice, you represent them, you become liable for any bad advice 7. Pautler made gross misrepresentations of: a. Who he is b. What he is, and c. His relationship to the client 8. R 8.4 Misconduct: a. Misconduct to violate or attempt to violate a rule of professional conduct or held someone violate or get someone else to do something that would be a violation if you had done it 9. STANDARD FROM THE CASE: Strict Compliance with the Rules of Professional Responsibility 10. Pautler argues his motive (to prevent eminent public harm) constitutes justification for violation of the rules a. Court rejects the arguments i. STRUCTURALLY 1. Motive is irrelevant to the determination of whether a rule has been violated, it may be relevant as a matter of mitigation 2. Individual opinions are irrelevant if rules give a solution to the problem ii. DOCTRINAL 1. There was no eminent danger to any specified person

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II. Resolving Tensions in the Lawyer’s Role: Complying with Rules and Standard of Professional Conduct and the Law Governing Lawyers a. Professional Rules and Standards: ABA Codes of Ethics, Ethics Advisory Opinions, Specialized Codes, and Practice Norms i. Sources of Lawyers Obligations 1. Professional Standards a. Model Rules of Professional Conduct i. Tested in this class and MPRE b. Rules Regulating the Florida Bar c. Code of Professional Responsibility i. Fuzzy, outdated d. Restatement of the Law Governing Lawyers i. Not the law anywhere 2. General Legal Principles a. Rules of Practice and Procedure i. Meritorious Claim in Civil Procedure ii. Work-Product Doctrine b. Laws of Evidence i. Attorney Client Privilege c. Tort Law i. Malpractice 3. Special Standards a. ABA- The Prosecution Function and the Defense Function b. American Academy of Matrimonial Lawyers c. Lawyers creed of professionalism d. American College of Trust and Estate Counsel 4. Morality ii. The Model Rules are grouped into eight sections 1. Client-Lawyer Relationship 2. Counselor 3. Advocate 4. Transactions with persons other than clients 5. Law firms and associations 6. Public Service 7. Information about legal services 8. Maintaining the integrity of the profession III. Going Beyond the Rules: Client-Centered Lawyering, Moral Values, Principles of Professionalism, and Other Sources of Guidance for Lawyers a. Philosophy of lawyering: i. A general approach for dealing with difficult questions that lawyers face in the practice of law 1. Develops consistent behavior b. Client-centered philosophy: i. Lawyer acts as zealous partisans on behalf of their clients, doing everything possible to enable their client to prevail in litigation or to obtain their clients’ objectives in nonlitigation matters, except to the extent that clear rules of professional conduct or legal principles prohibit the lawyer from acting 1. Resolve conflicts in favor of client ii. Lawyer’s “Principle of Nonaccountability” 1. Lawyers are not legally or morally accountable for their actions c. Philosophy of Social Values (Officer of the Court) i. Fiduciary for the system ii. Resolve doubts in favor of the values associated with the legal profession d. Personal Morality i. Does representation conflict with personal morals (can I sleep at night?) ii. Will take action the lawyer believes to be indicated by the principles of morality even if this action was not necessarily in the client’s interest e. Defensive Lawyering i. Avoiding liability f. PROBLEM 1.1 (p. 26) i. R 1.2(b) ii. R 6.2(c) iii. Do lawyers have a moral responsibility?

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Yes, but no responsibility for choosing cases or clients and no responsibility for the outcome of cases 2. Lawyers are responsible for choosing their area of practice and engaging in moral dialogue with their clients 3. Lawyers should practice moral activism in representation 4. Work to preserve just legal institutions; reforming deficient legal institutions IV. Issues Facing the Profession: Methods of Regulating Attorney Conduct: a. Admission to Practice b. The Disciplinary System i. PROBLEM 1.2 – 1. Reporting Attorney Misconduct a. R 8.3 Reporting Misconduct i. Required to report if we know of a professional responsibility violation that raises a substantial question as to the lawyer’s fitness to practice 1. Informing a client is not a substitute for the duty to report 2. Not under a duty to report yourself b. R 1.0(f) Definition of Knowledge: i. Knowledge is actual knowledge of the facts in question or knowledge inferred from the circumstances 1. Suspicions do not equal knowledge c. R 8.4 – Misconduct i. Violating rules ii. Criminal acts iii. Dishonesty iv. Conduct prejudicial to the administration of justice 1. “Catch-all” v. Implying the ability to influence an official vi. Assisting somebody in prohibited conduct d. R 5.2 – Responsibilities of a Subordinate i. There must be an arguable question of professional conduct 1. If it is arguable question, is the response by the supervisor reasonable? ii. Wieder v. Skala (p. 38) 1. Employment relationship between lawyers and a firm is based on the assumption that law will be practiced based upon ethical standards of the profession; therefore, the employment at-will doctrine will not insulate firing decision from scrutiny 2. Breach of contract is recognized for attorney fired to whistleblowing iii. Bohatch v. Butler & Binion (p. 39) 1. Partners owe a fiduciary duty to each other 2. Firm did not breach its fiduciary duty to Bohatch, but is liable for breaching the partnership agreement 3. Firing for reporting a violation of the rules will be viewed as a wrongful termination iv. Why do we require lawyers to report misconduct? 1. We are a self-regulated profession a. All the people participating in the regulation of lawyers are lawyers 2. Lawyers are in the best position to find out (Superior knowledge) 3. Bolsters public trust v. Exceptions to the Duty to Report R 8.3(c) 1. Does not require disclosure of confidential information without client’s consent 2. Does not require disclosure of information obtained in representation of a lawyer a. Where a lawyer is retained to represent a lawyer whose professional conduct is in question 3. Does not require disclosure of information obtained while participating in an approved lawyer assistance program 4. Lorna Lawyer was a solo practitioner until she hired you as an associate about four months ago. While filing research memos you came across a closing statement for a personal injury case. The statement signed by the Client showed a structured settlement in which $100,000 was paid immediately and $25,000 was payable over each of the next six years. The firm’s fee was paid fully out of the initial $100,000. You believe the case had been settled for a lump sum and you have found a letter from the insurance company indicating that it was enclosing its draft for

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The next week you viewed a crime show on TV in which the issue of jurors contact was addressed and you realized that the contact you had authorized with the jurors was improper. i. b. She tells you to destroy the contents of the box.500. i. CORRECT b. c. Still have to report for yourself c. i. Are or are not required c. A mistrial was declared after five jurors contracted viral pneumonia. (c) You may rely on Lorna’s resolution of the matter. Disregarding duty to report (R 8. it’s against the law d. You should find another job and take no further action on the information discovered. You told Cary about the closing statement and she was adamant that she never signed it and knew nothing about a structured settlement. If she is senile none of the previous should have happened d. but you must conduct a discreet investigation to obtain more information. Yesterday you received a call from Cary Client while Lorna was out of town.5(c)] a. Not reporting. Immediately before the trial of a personal injury matter in which you and Lorna represented the defendant. (a) You must report the matter to the appropriate attorney disciplinary authority in your jurisdiction.000 as a lump sum settlement of the case.000 was payable over each of the next six years. R 5. [see R. (d) You should report Lorna Lawyer to the appropriate disciplinary authority. Extortion d. i. The Plaintiffs have requested the production of any complaints the company received from residents concerning the water supply. which would result in the loss of 200 jobs. You should report the matter to the Model State Bar Association. Cary told you that she did not understand why her settlement check was so small. (b) You are not required to report the matter. The flyers stated that if the defendant lost this case he would be forced to close his manufacturing facility. (d) You may not report the matter because the information is confidential. i. 7. a.3. There is nothing she can say about it. (b) You should advise the Client to file a malpractice action against Lorna Lawyer. You reviewed the file and found the closing statement for Cary’s personal injury case. You phoned Lorna and she told you that Cary is senile.14) b. On May 1. you should ignore her. supervising attorney said something inconsistent with the duty under rules (R 1. The statement. 6. although the case settled for $250. 5 . would violate R 8. Lorna told you to have the office’s private investigator drop a flyer in the mail boxes of prospective jurors.3 You are an associate in a law firm representing a Company being sued for polluting the local water supply. When you ask Lorna about the discrepancy she fires you.2 Lorna Lawyer was a solo practitioner until she hired you as an associate about four months ago. i. You should tell Lorna what you have learned and rely on her determination of how you should proceed.” You show the box to your supervising partner in the firm and ask her what to do.3) b.3 c. Exception would say unless you have informed consent Lorna Lawyer was a solo practitioner until she hired you as an associate about four months ago.5.1(c). a. i. i. i. which was signed by Cary. i. CORRECT.000 Cary received a check for $17. The firm’s fee was paid fully out of the initial $100. 2007 you find a box of complaints from residents concerning the water but the box was labeled. would violate R 8. i. “DESTROY THE CONTENTS OF THIS BOX ON JANUARY 1. d. showed a structured settlement in which $100.000 was paid immediately and $25. (c) You should tell Lorna Lawyer that you have retained a copy of the client’s file and suggest she reconsider her decision to fire you. Not reporting. and you assured her it was because Lorna asked you to do it. and she [Lorna] would handle the matter when she returned to town. i. CORRECT R 5. (a) You should find another job and take no further action on the information discovered. 2007 PURSUANT TO THE COMPANY’S DOCUMENT RETENTION POLICY. The investigator asked you if this was legal. You should write a memo to the file documenting that you undertook the action at Lorna’s direction. a. $250.000.

(c) You may destroy the contents of the box because you have been directed to do so by a supervisor. (c.)A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1. or (6. thoroughness and preparation reasonably necessary for the representation.4.a. then the lawyer must obtain or transmit it within a reasonable time thereafter. as required by Rule 1. A legislative body. (e. i. skill. typewriting. mitigate or rectify substantial injury to the financial interest 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. (k. or a member of an association authorized to practice law. (a) You may destroy the contents of the box because your supervisor has made a reasonable resolution of an arguable question of professional responsibility. scope. (m. Cannot destroy d. c. or lawyers employed in a legal services organization or the legal department of a corporation. Cannot destroy Rule 1.) to secure legal advice about the lawyer’s compliance with these Rules. (n. including representation by appointment. administrative agency or other body acting in an adjudicative capacity. (c. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.) “Knowingly.” “know”. after the presentation of evidence or legal argument by a party or parties. whether to waive jury trial and whether the client will testify. Rule 1.) A lawyer’s representation of a client. denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent.) “Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question. or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.) “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. (4. (5.0: Terminology (a. professional corporation.) “Partner” denotes a member of a partnership. (h. (i. to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved. will render a binding legal judgment directly affecting a party’s interest in a particular matter.) A lawyer shall not counsel a client to engage.) “Writing” or “written” denotes a tangible or electronic record of a communication or representation. social or moral views or activities. (b) If you destroy the contents of the box you have engaged in misconduct.) “Firm” or “law firm” denotes a lawyer or lawyers in a law partnership. (3. does not constitute an endorsement of the client’s political. an arbitrator in a binding arbitration proceeding or a legislative body.) “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer. meaning or application of the law. (b.) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. A lawyer shall abide by a client’s decision whether to settle a matter. photography.) “Confirmed in writing. after consultation with the lawyer.) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.) “Tribunal” denotes a court.) “Screened” denotes the 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 obligated to protect under these Rules or other laws. printing. symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing. Rule 1.) to comply with other law or a court order 6 . (b. A “signed” writing includes an electronic sound. including handwriting.” If it is not feasible to obtain or transmit the writing at the time the person gives informed consent.) “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance.6 Confidentiality of Information (a)A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.2: Scope of Representation and Allocation of Authority Between Client and Lawyer (a. administrative agency or other body acts in an adjudicative capacity when a neutral official.) “Belief” or “believes” denotes that the person involved actually supposed the fact in question to be true. the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (d. economic. audio or video recording and e-mail. (b. (d.1: Competence A lawyer shall provide competent representation to a client. (g.) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client. See paragraph (e) for the definition of “informed consent. (l. but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity. in conduct that the lawyer knows is criminal or fraudulent. (f.) to prevent reasonably certain death or substantial bodily harm. In a criminal case.) Subject to paragraphs (c) and (d).) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used or is using the lawyer’s services. i. as to a plea to be entered. photostating. sole proprietorship or other association authorized to practice law. Cannot destroy b. or assist a client.” when used in reference to the informed consent of a person. A person’s belief may be inferred from circumstances. Competent representation requires the legal knowledge.) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. a lawyer shall abide by a client’s decisions concerning the objectives of representation and. (j. shall consult with the client as to the means by which they are to be pursued. (d) If you destroy the contents of the box your supervisor has engaged in misconduct but you have not. a shareholder in a law firm organized as a professional corporation. the lawyer shall abide by the client’s decision. or “knows” denotes actual knowledge of the fact in question. Rule 1. i. (2.) to prevent. A person’s knowledge may be inferred from circumstances.

(3. Rule 1. (3. but only to the extent reasonably necessary to protect the client’s interest. shall withdraw from the representation of a client if: (1. confirmed in writing. if necessary.16: Declining or Terminating Representation (a.1: Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding. (b. unless there is a basis in law and fact for doing so that is not frivolous. or the respondent in a proceeding that could result in incarceration.) the lawyer is discharged (b. Rule 3.) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer. a lawyer shall continue representation notwithstanding good cause for terminating the representation. the lawyer is impliedly authorized under Rule 1.) in pretrial procedure. (4. Rule 1. A concurrent conflict of interest exists if: (1. When taking protective action pursuant to paragraph (b). a lawyer may represent a client if: (1. modification or reversal of existing law. except for an open refusal based on an assertion that no valid obligation exists.6. may nevertheless so defend the proceeding as to require that every element of the case be established. in appropriate cases. (2. the lawyer may take reasonably necessary protective action. disclosure to the tribunal.) the person is a relative or an employee or other agent of a client. a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. the culpability of a civil litigant or the guilt or innocence of an accused. or (3. or assert or controvert an issue therein. a lawyer shall not represent a client or.) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. maintain a normal client-lawyer relationship with the client.) the representation is not prohibited by law. and (4.) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished.14: Client with Diminished Capacity (a. including consulting with individuals or entities that have the ability to take action to protect the client and. where representation has commenced.) Except as stated in paragraph (c). disclosure to the tribunal. (d.7: Conflict of Interest: Current Clients (a. the lawyer shall. the lawyer’s client. is at risk of substantial physical. (2. whether or not the facts are adverse.) each affected client gives informed consent. mental impairments or for some other reason. (c. whether because of minority.3: Candor Toward the Tribunal (a. (d. (b. (c.) In an ex parte proceeding. (2.) Except as stated in paragraph (c). a former client or a third person or by a personal interest of the lawyer. including.) A lawyer shall not knowingly: (1. if necessary.) the representation of one client will be directly adverse to another client. is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures.) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.) When the lawyer reasonably believes that the client has diminished capacity. or (3.) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1.) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a). a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests. (c.) Upon termination of representation. or state a personal opinion as to the justness of a cause. and apply even if compliance requires disclosure of information otherwise protected by Rule 1. (b. (b. make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party. (2. or offer an inducement to a witness that is prohibited by law. as far as reasonably possible. has offered material evidence and the lawyer comes to know of its falsity.) other good cause for withdrawal exists (c. conservator or guardian. that the lawyer reasonably believes is false.) the client insist upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement. or a witness called by the lawyer. Rule 3. the lawyer shall take reasonable remedial measures.4: Fairness to Opposing Party and Counsel A lawyer shall not: (a.) unlawfully obstruct another party’s access to evidence or unlawfully alter. or (7. which includes a good faith argument for an extension. If a lawyer. allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage.) withdrawal can be accomplished without material adverse effect on the interest of the client. destroy or conceal a document or other material having potential evidentiary value. assert personal knowledge of facts in issue except when testifying as a witness. financial or other harm unless action is taken and cannot adequately act in the client’s own interest.) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.6.) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation.6(a) to reveal information about the client. Rule 3. (d. The lawyer may retain papers relating to the client to the extent permitted by other law. A lawyer shall not counsel or assist another person to do any such act.) the client has used the lawyer’s services to perpetrate a crime or fraud. including. A lawyer may refuse to offer evidence. employment of other counsel. (5. a lawyer may withdraw from representing a client if: (1.) 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. the credibility of a witness.) 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. other than the testimony of a defendant in a criminal matter. A lawyer for the defendant in a criminal proceeding.) knowingly disobey an obligation under the rules of a tribunal. seeking the appointment of a guardian ad litem. or (f.) Information relating to the representation of a client with diminished capacity is protected by Rule 1.) falsify evidence. counsel or assist a witness to testify falsely.) offer evidence that the lawyer knows to be false. a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision. When ordered to do so by a tribunal.) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client. (6. or (2. (e.) in trial. and 7 .Rule 1. surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred.) Except as provided in paragraph (b).) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding.) the representation will result in a violation of the rules of professional conduct or other law.

coercion. Rule 3.8: Special Responsibilities of a Prosecutor The prosecutor in a criminal case shall: (a.2: Communication with Person Represented by Counsel In representing a client. time and place of arrest.)commit a criminal act that reflects adversely on the lawyer’s honesty. Rule 8.) violate or attempt to violate the Rules of Professional Conduct. in addition to subparagraphs (1) through (6): (i. (2.6: Trial Publicity (a.4: Respect for Rights of Third Persons (a. trustworthiness or fitness as a lawyer in other respects. a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. and.) not seek to obtain from an unrepresented accused a waiver of important pretrial rights.) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution. (c.(2. Rule 3. such as the right to a preliminary hearing. offense or defense involved and. juror.) refrain from prosecuting a charge the prosecutor knows is not supported by probable cause. or use methods of obtaining evidence that violate the legal rights of such a person. (d. or (f. (6.) engage in conduct intended to disrupt a tribunal.) the identity. the identity of the persons involved.) In representing a client. (4.) engage in conduct that is prejudicial to the administration of justice. Rule 3. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (b.) the scheduling or result of any step in litigation (5. Rule 4.) in a criminal case. except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. Rule 4. law enforcement personnel.) seek to influence a judge. or (3.) the information sought is not protected from disclosure by any applicable privilege. prospective juror or other official by means prohibited by law.4: Misconduct It is professional misconduct for a lawyer to: (a. (2. or (d. a lawyer shall not use means that have no substantial purpose other than to embarrass. (b.) engage in conduct involving dishonesty. unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.) the fact. refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators. (e.) information contained in a public record (3. a lawyer may state: (1.) the communication is prohibited by law or court order. (c. occupation and family status of the accused (ii. knowingly assist or induce another to do so or do so through the acts of another. 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. except when prohibited by law.) if the accused has not been apprehended.) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law. a lawyer may make a statement that a reasonable lawyer would believe is required to protect. 61) I. (c.) Notwithstanding paragraph (a). when there is a reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest. disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order.) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1. (f.) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b. (d.) the identity of investigating and arresting officers or agencies and length of the investigation. duress or harassment. (e.) there is no other feasible alternative to obtain the information.) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).) A lawyer who receives a document relating to the representation of the lawyer’s client and knows of reasonably should know that the document was inadvertently sent shall promptly notify the sender.) make timely disclosures 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. deceit or misrepresentation.) a request for assistance in obtaining evidence and information necessary thereto. employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3. and (iv. and (3.) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or to other law.5: Impartiality and Decorum of the Tribunal A lawyer shall not: (a.) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose. (2.) than an investigation of a matter is in progress. delay.) the communication involves misrepresentation.6 or this rule.) make reasonable efforts to assure that the accused has been advised of the right to.) the claim.) the lawyer reasonably believes that the person’s interest will not be adversely affected by refraining from giving such information.) Notwithstanding paragraph (a). (c. counsel and has been given reasonable opportunity to obtain counsel.) the juror has made known to the lawyer a desire not to communicate.) a warning of danger concerning the behavior of a person involved. (b. or burden a third person. Chapter 2: Defense and Prosecution of Criminal Cases (p. and the procedure for obtaining. (d. residence. in connection with sentencing. fraud. (iii. information necessary to aid in the apprehension of that person. The Client-Lawyer Relationship 8 . and (7.) communicate with a juror or prospective juror after discharge of the jury if: (1. (b.

Barry Winston. and Strategy not undertaken because of the conflict. The Conflict yields an actual lapse in representation when 1. File a grievance b.2. the flipped car 3. convicted. 217 people exonerated 4. Constitutional doctrine protected by the 6th Amendment 2. Actual Conflict of Interest a. Did not ask question to key witness b.1 Competence 1. In this problem. 262) i. met him one week before trial 3. It’s fun a. There is an actual conflict between the lawyer and client when during the course of the representation the attorney’s and defendant’s interest diverge with respect to a material fact or issue or to a course of action. Preparation 2. Skill c.) Plausible defense strategy not undertaken by counsel.) Trial Court knew of the conflict and did nothing to address it or defense counsel actively represented conflicting interest 2. Thrill rush Problem 2-2 (p. Thoroughness d. Moral teaching to the defendants 6. What is ineffective assistance of counsel 1. Spent less than an hour with the client. Reasonable probability that but for the counsel’s errors result would have been different in a way favorable for the client ii. attorney that represented him did a bad job. Why should we defend the guilty? 1. Counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution i.75) a.a. R 1. “Reasonably effective assistance”. Legal knowledge i. Defendant must show that counsel’s performance fell below an objective standard of “reasonably effective assistance” i. a case for post conviction relief? ii. Facts: Donald accused of robbing store. Stranger than True: a. STRICKLAND TEST: (p. Ex. New trial iv.: Denial of Constitutional Rights 9 . Horror of prison 7. Presumption of innocence until trial a. Problem 2-1 (p. If incompetence rises to the level of ineffective assistance of counsel i. Ineffective Assistance of Counsel violated Due Process iii. Guilt is not a fact b. Structural Errors that go to the accuracy and reliability of the trial process a. Have it or the ability to obtain it in a reasonable time b. Told him he couldn’t testify c. b. probably lacking a. Guilt is a conclusion made by trier of fact 2. System is not perfect. Competent Representation: a. Safeguarding the System 5. 77-78) 1.What most attorneys would have done in the situation b. i. Violation of Rule of Professional Responsibility i. METHODS OF RECOURSE: a. WHERE PREJUDICE IS ASSUMED (p. 72) i. Innocence Project a.

2(a) Scope i. No evidence 4. a 70 year old with poor vision who claimed to be able to identify Donald based on Donald’s voice alone.: Defense counsel concedes defendant’s guilt without permission or Defense counsel sleeps during substantial portions of the trial 3. a. Counsel entirely fails to subject the prosecutions’ case to meaningful adversarial testing b. However. Cronic Exception a. Williams v. the girlfriend does not remember the video they watched or the video store from which it was rented. Donald has never been arrested before. claiming they rented and watched videotape that evening. Should Donald’s conviction be set aside because his counsel did not cross-examine witnesses a. Same as A. Whether to waive jury trial 3. Taylor. However. Must be filed within applicable statute of limitations. Donald wanted to take the stand at trial to testify that he was with his girlfriend at the time of the robbery. Tactical. a. (a) Yes because she refused to call Donald’s girlfriend to testify. 10 . (d) Yes because of the Cronic exception. Donald’s girlfriend corroborated Donald’s story. Has Lois Lawyer failed to provide effective assistance of counsel? 1.c. Lois Lawyer also failed to cross-examine the sole witness. a. Wiggins v. Whether the Criminal Defendant Client will testify 4. Donald’s girlfriend is a former nun who works at a hospice providing care to the terminally ill. like P 2-2 3. after serving in the Peace Corps and was planning to enroll in Yale’s Divinity School next year. Client decisions 1. a 70 year old with poor hearing and who wore thick glasses. even if post conviction relief hasn’t been obtained vi. She also refused to call the girlfriend to provide an alibi defense. Donald’s girlfriend corroborated Donald’s story. b) Yes because most attorneys would have called Donald’s girlfriend as a witness. Standard is a little lower in capital cases to reach ineffective assistance of counsel v. Donald Defendant was charged with armed robbery. a. Lois Lawyer told Donald that she would not call him to testify because she believes it is always a bad idea for a criminal defendant to take the stand. (a) No because the attorney is responsible for determining trial strategy. lawyer decides techniques to achieve goals iii. Donald had recently returned to the U.S. the girlfriend does not remember the video they watched or the video store from which it was rented. Has Lois Lawyer failed to provide effective assistance of counsel? 1. Ex. Defendant has to meet a higher standard. True. (c) Yes because she prevented Donald from exercising his constitutional rights. a. (b) Yes because she failed to confront the eyewitness. typically defendant must prove actual innocence by obtaining a reversal of his conviction b. CORRECT: Constitutional violation  Presumption of prejudice (structural errors) 4. R 1. doesn’t help us with our prongs Problem 2-2(b): Fees in Criminal Context 3. Lois Lawyer also failed to cross-examine the sole witness. no evidence testimony would be unreliable 3. Donald was convicted. a. left to attorneys. Court gives more consideration to defense counsel actions in capital cases b. but has nothing to do with effective or ineffective 2. a. could be reasonable to not crossexamine in certain situations ii. Could Donald bring a claim for malpractice? a. Cannot say the attorney entirely failed vii. Smith (p. 76) a. claiming they rented and watched a videotape that evening. Tactical decision. (c) No because she remained awake for the entire trial. Attorney Malpractice 1. Donald Defendant was charged with armed robbery. Whether to accept a settlement offer 2. Donald wanted to take the stand at trial to testify that he was with his girlfriend at the time of the robbery. Donald was convicted. This is a tactical decision. a. (d) Yes because Donald specifically asked that his girlfriend be called as a witness. Lois Lawyer told Donald that she would not call the girlfriend to provide an alibi defense because Lois did not believe her story. gaps in her memory may speak to credibility (objective/might not be prejudicial) 2. Client sets goals. CORRECT.

Contingency Fees: a. Bad incentives b. Earned when services are performed ii. Her husband died is his sleep as the result of a massive heart attack. i. Referral fees are illegal if not doing anything but referring 3. Earned when received ii. Rule 1. guaranteed payment c. (c) The fee is permissible if it is stated in writing and if Mamie Jones was given an opportunity to consult with other counsel before accepting it. Total fee must be reasonable Client Trust Accounts i. Clearly excessive b. Basis and rate must be communicated to the client iv. Media rights as payment are prohibited a. Consulting? d. Client must consent in writing 4. General Retainer: a. In proportion to services actually performed 2. Fee must be reasonable ii. i. Rule is silent as to security interest a. Special Retainer: a. Non-refundable special retainers in criminal cases are unethical and void 3.3% contingency fee. Payment of a fixed amount for specific services 4. what work is he doing? He is not taking any risk.d. Types of Fees: 1. 11 . Rule 1. Prevents lawyers from having a financial interest that may interfere with their professional judgment 3. i.5(a) Fees 1. Client may never get the money i. Pursuant to a joint representation agreement a. i. e. A payment to the lawyer for agreeing to take the case or for agreeing to be available to handle legal matters for the client for a specified period of time i. Duty not to commingle funds ii. Duty to notify promptly iv. Duty to give an accounting Problem 2-2(c) – Conflict of Interest i. Expense Deposits: a. May the lawyers accept a security interest in the client’s media proceeds? ii. An advanced payment for the client of fees for services to be rendered in the future i. Flat Fees: a. NOT ALLOWED IN CRIMINAL ACTIONS OR DOMESTIC RELATIONS i. Fee Duties 1. (b) The fee is clearly excessive. Mamie Jones has asked you to represent her in the collection of life insurance proceeds for a policy on her late husband. You have agreed to accept the representation and Mamie Jones has agreed to pay a 33. CORRECT. (d) Unless the fee is approved by the Court it is clearly excessive. Duty to deliver promptly v. Deposited into general revenue 2. Son of Sam Laws 4.8(d) 1. Initially deposited into a trust account b. Fee Divisions between lawyers in different firms 1. Reasonable 2. (a) The fee is permissible if not clearly excessive. Amount paid to the firm to be applied to future expenses in the client’s case iii. Would go against the spirit of the rule i. a. Rule 1. Media rights as payments vs. Duty to maintain records iii. security interest to secure payment 2.8(d)(2) 5.

Past Crime vs. NEVER prevents court from getting evidence 3. You have agreed to do so and Mamie Jones has agreed to pay to a 33. Courts don’t usually get involved II. relatively weak. Purcell v.6 ii. Prevent reasonably certain death or substantial bodily harm 2. i. If assisting client in wrongful conduct crime-fraud exception is met a. CAN be forced to reveal confidential information b. i. do you have a duty to tell the authorities the defendant has killed the missing woman? 1. Counsel (i. CANNOT be forced to reveal privileged information iv. When can we reveal? a. Attorney-Client Privilege a. Risk may not get paid b. FRCP 26(b)(3) b. Client 2.2(d): Crime Fraud Exception 1. RULE 1. a lot of exceptions d. i. bail = goal 2.6: i. (c) The fee is permissible if the insurance company consents. Not a party to representative d. cant counsel client to engage in crime 3. District Attorney for Suffolk District (p. Problem 2-3 i. Counsel (i. 85) a.5. Law of Evidence b. Confidentiality (p. 86): 12 . Assume there is no chance for bail to be granted. legal advice) v. No duty to disclose any past conduct b. Attorney Work Product a. i. If assisting client in rightful conduct that might have bad consequences it does not meet the crimefraud exception 4. Confidentially with 4. Rule 1. A lawyer may not assist client in criminal or fraudulent conduct 2. Three different types 1.e. (d) Unless the fee is approved by the Court it is clearly excessive. Exceptions – serious crime.2(a) i. Rule 1.6 1. cant assist client in committing a crime ii. Issue: Confidentiality iii. Primarily applies to documents b.6 b. may not be privileged a. Courts don’t approve fees Mamie Jones has asked you to represent her in the collection of life insurance proceeds for a policy on her late husband who disappeared two years ago in the Bermuda Triangle. (b) The fee is clearly excessive. Future Crime distinction a.3% contingency fee. lawyer or its agents) to obtain 5. R 1. Have to abide by the client’s determination of the goals of representation 1. i. CORRECT. to prevent serious bodily injury or death c. (a) The fee is permissible. Most instances no duty to disclose future conduct i. No. a. Very narrow 2. NO. When does the attorney client confidentiality attach 1. A client’s communications are not privileged when a client is seeking legal advice to enable or assist the client in committing crime fraud 3. Ethical Duty c.e. Client Confidentiality a. Communicates 3. Confidentiality is very broad. lawyer doing substantial work with substantial risk c. R 1. RULE 1. Applies to everything.

Does he have the capacity to do this? ii. attorney claims privilege. liable? 1. (d) You should have a veterinarian visit the farm and euthanize the dogs. Not mandatory R 1. Was the attorney’s advice sought in furtherance of a crime? 1. d. Client calls Lawyer at home in the middle of the night and tells Lawyer that she has just shot her landlord in the foot. Lawyer CANNOT be compelled to testify because the information is privileged vi. May the lawyer reveal the information under R 1. g. 1. i. You must apply for bail or withdraw. Regents of the Universtiy of California p. defendant tries to escape. 1. Client decides course of action (R 1.6 ii. YES.6(b)(6) 1. 1. Thompson 1. a felony. Lawyer does nothing. 93) Debbie Defendant is in custody after being charged with aggravated animal cruelty in the death of three dogs. Debbie has asked you to apply for bail so she can “make sure that Jerry loses his memory. Ability to prevent harm.” Assuming you have no obligations under the Tarasoff doctrine: i.6? i. a guard is killed. Must analyze under Rule 1. Dogs are not humans. CORRECT. Must you disclose under other law? PROBLEM: i. Is he liable? a. certainty is not required viii. v. e. Lawyer tells Client to call for an ambulance but Client refuses. NO iv. Why? Client determines objectives Lawyer represents client in a harassment action involving Client’s landlord. Debbie Defendant is in custody after being charged with aggravated animal cruelty in the death of three dogs. Does the crime-fraud exception apply 1. ii. Jerry Jones was the eyewitness who reported Debbie to the authorities.2). confidential information iv. DISTINGUISH THIS PROBLEM FROM McClure v. (a) You must inform the animal protection authorities about the dogs that have been locked in the barn. Client made threats to burn down apartment. Why treat the Attorney-Client Privilege and R 1. not responsible 2. b. If the victim is identifiable he could be liable under tort law (Tarasoff v. 1. You may not apply for bail. 13 . Is he serious? b. Is the lawyer responsible. During the meeting with the client the lawyer notices that the client is carrying a book entitled “Arson for Fun and Profit” and the lawyer can see that the client’s shopping bag contains several cans of lighter fluid. Attorney had reasonable belief children were alive. NO. a felony.d. You may not warn Jerry. (b) You may inform the animal protection authorities about the dogs that have been locked in the barn 1. while preserving the attorney client relationship vii. a.6 Different? 1. Never mandatory ii. a number of lamp wicks and a number of boxes of matches. Defendant tells you that he plans to escape from jail. Question about bail iii. i. Prosecutor subpoenas attorney to testify. During your interview with Debbie you learn that she has an additional six dogs locked in a barn on a secluded farm outside of town and that the dogs are either dead or starving to death. could reveal if they were children. (c) You may not inform the animal protection authorities about the dogs that have been locked in the barn. client arrested.” a. What are your ethical responsibilities? 1. 2. c. f. Rule did not contemplate anything other than death or severe bodily harm iii. CORRECT. Ask questions to form a reasonable belief a. You must warn Jerry or withdraw. NO v. Can the attorney be made to testify about that conversation? iii. PURCELL HYPO: 1. 1. right act with a wrongful consequence iv. The client tells the lawyer “they will get theirs. 1. attorney tells police. there is a basis to reasonably believe. I: Whether the defendant’s conversation with counsel is privileged.

HYPO: a.2(d) Problem 2-4 (p. (4) You should advise Doris to have her mother carpet the attic. (3) You should tell Doris’ mother that she needs an attorney. (4) You should tell Doris’ mother to take the jewelry to the police. (c) If Lawyer call for an ambulance for Client's landlord. and Instrumentalities of Crimes i. and Instrumentalities of the crime i. 1. (b) Lawyer may call for an ambulance for Client’s landlord.4 1. (1) You should do nothing with regard to this information. lawyer has an obligation to provide the evidence to the authorities without changing its character. Doris told you that she has hidden the jewelry under the floorboards in her mother’s attic. Never mandatory ii. (d) If Lawyer does not call for an ambulance for Client's landlord and the landlord dies as result of the gunshot. No. not duty disclose under R 1. Rule 3.4 5. 100) 1. 4. Do you have an obligation to tell the client to turn the money over to the authorities? a. but then required to turn it in after a reasonable time for inspection 6.1 state we must advise the client to comply with the law 1. iv. If tort charges brought  Wait until requested 14 . Lawyer has violated Client’s confidentiality and will be subject to discipline. Yes. Fruit.3 Dealing with an Unrepresented Person 1. Depends on your philosophy of lawyering 4. Before you have an opportunity to make a decision with respect to the information in the previous question Doris’ mother visits your office with a shopping bag filled with the stolen jewelry. 3.2(d). Ask why the client has brought them to you b.h. A bridge she designed and constructed collapses. (1) You should say. What will you do? a. No conspiracy under R 1. Defendant’s girlfriend shows up at your office with the money. may be privileged 3. Lawyer has violated R. R 4.” 2. 4. Fruits. 1. i.1. It is an abuse of a lawyer’s professional responsibility knowingly to take possession of and secrete the fruits and instrumentalities of a crime. If the lawyer takes possession of evidence in a criminal.2(d) and R 2. (a) Lawyer must call for an ambulance for Client’s landlord. Tell her to get an attorney Physical Evidence. May iii. HYPO: 1. Cannot advise client to move the money a. I’m sorry. Tell her they may not be protected c. “I can’t answer that question. there is exception to prevent [further] serious bodily injury iv. Doris’ mother asks you what she should do with the Jewelry. 1. Doris Defendant is in custody having been charged with the robbery of a jewelry store. (2) You should take possession of the jewelry and tell Doris’ mother not to tell anyone about it. 1. i. CORRECT. 99): Dealing with Physical Evidence. while atty has violated confidentiality. 3. In re Rider (p. after he has had a reasonable opportunity to inspect it iii. Advise client to comply with the law i. (2) You should advise Doris to have the jewelry moved to a more secure location. As officers of the court attorneys must preserve and give evidence to the appropriate authorities 2. R 1. Client refuses then what? a. 1. Would violate R 3. 1. If a criminal proceedings brought  Obligation to turn over d. v. NO.6. I: Do you have to reveal that you know where the money is? ii. The next day she brings all of her records concerning the construction of the bridge to your office for “safekeeping”. Your client is an engineer. what will you do? i. ii. Can you take possession of money? a. (3) You should go to the mother’s home and take possession of the jewelry until the proceedings against Doris have concluded. 2. Do we have a duty to tell the authorities where the money is? a.

Self Incrimination: i. R 3. a. a. Not mandatory 2. a. 1. (c) You must discretely arrange to have the video camera removed. shall not disclose PROBLEM 2-5 False Testimony in Criminal Cases (p.2(a)) a. a. Are these documents self-incriminating? 1. and that they are authentic. a. that they are in his possession. Defendant has absolute right to testify b. (a) If Delroy is arrested you should inform the police of the location of the ATM. iv. a. NO. 109) i.3 Candor towards the tribunal 1. The video camera is connected to a computer which has been programmed to broadcast images from the Landlord’s bedroom every night between the hours of 8:00 pm and 8:00 am. the court held that the Government had not made such a showing. When can the attorney assert attorney-client privilege as to the documents provided to the attorney by the client? 1. What arguments would allow you to retain and prevent investigators from obtaining? i. k. a. no exception met. No exception R 1. (b) If you inform the police of the location of the ATM you have violated your duty of confidentiality to Delroy. R 3. (d) You must treat the information as confidential even if it means you’re your client will be charged with an additional crime. You accepted Delroy as a client and you send your investigator to the garbage dump to see if the ATM is there. not communication ii. While doing so she slips and falls and as a result of the fall the ATM is covered with additional garbage and is concealed. No basis for disclosure 2. would break law 4. During your interview with Debbie you learn that she has hidden a video camera in her landlord’s bedroom. Are they testimonial? a.” 1. Are docs incriminating? 3. Delroy also tells you that he left the ATM in a garbage dump outside of town. CORRECT. Don’t let him testify. but there are 5th Amendment issues 15 .3 Comment 9 i.6(b) would permit disclosure 3. The investigator sees the ATM and takes photographs of it. RULE 1. I: Perjury ii. CORRECT. Debbie tells you “just wait until the world sees what he and the preacher’s wife are up to almost every night. Attorney can assert the privilege if client would be able to assert the privilege against selfincrimination had the client retained possession of the document 2. Not mandatory. Debbie Defendant is in custody after being charged with assaulting her landlord. Attorney-Client: 1. 106)) 1. As your investigator is leaving the garbage dump a dump truck arrives and deposits approximately two tons on garbage over the area in which the ATM is located. a.e. (d) If Delroy is arrested you must provide the photographs of the ATM to the police. True but not best response 3. Are docs testimonial? If doc makes statement that would be admissible in proceeding iii. Confidential information. The court found that the act of production would compel respondent to "admit that the records exist. j. Conflict of Interest  Concealing evidence = witness 4. Doe (p. (a) You must inform the landlord of the existence of the video camera. While not ruling out the possibility that the Government could devise a way to ensure that the act of turning over the documents would not incriminate respondent. Act of Production Doctrine (United States v. Defendant’s right to testify (R 1." Ibid. Is the information such that it would make statements about issues being determined by the proceeding? b. Candor v. Photos are not the evidence v. (c) If Delroy is arrested you should withdraw and advise him to seek other counsel. Delroy visits you at your offices and tells you that he expects to be arrested for stealing an ATM from a strip mall.2(a) i. Protects persons from being compelled to give incriminating testimony ii. (b) You may inform the landlord of the existence of the video camera.

still don’t call a. it is discretionary depending on whether it is helpful to the client viii. Forming knowledge beyond a reasonable doubt vii. i. What can the client do if the attorney refuses to call his g/f? 1.3 Comment 10) d. iii. If convicted the judge can take perjury into account when setting your sentence iv. do nothing 2. Avoidance of knowledge 6. Rule 1. Lawyers physical or mental condition materially impairs his ability to represent c. Independent verification i. Therefore no right impeded – therefore no violation of 5th Amendment or ineffective assistance of counsel v. Counsel client against committing perjury 2.2 Tactical Decision ix. Do nothing 2.2(d) exception ii. 120) 1. If the client insists. Lawyer incompetence i. Disclose to the Court 3. Termination 16 . The Court said this is ok. Elicit Narrative Testimony 5. Declare a mistrial b. If yes to both. Would the client be able to assert the privilege against self incrimination? 1. Judges options: a. State’s case is weak you might get off without testifying 5. Judge would have to withdraw from the case xi. When do we know that our client intends to commit perjury? 1. Lawyer convinces client not to perjure themselves through a threat to tell the court and/or withdraw 2. Fire the attorney x. what does the defendant do afterwards? 1. NO. Don’t call them if you reasonably believe false. Approaches when the defendant still wants to testify 1. 1. Defendant argues lawyer has violated his privilege against self incrimination a. If bench trial: a. Do we have a duty to investigate? 1.e. Your testimony may present inconsistencies with other testimony that might lead the jury to believe that you are lying a. Nix v. NO. Rule 3. Whiteside (p. Fisher Standard: i. R 1. Information subject to Attorney-Client Privilege 1. Mandatory Withdrawal a. what do you do? 1. You must testify truthfully 3. Don’t ask client Qs that will cause him to commit perjury 4. Withdrawal without disclosure 4. Full Representation. Give a jury instruction (R 3. because there is no right to commit perjury a. Direct defense counsel to use the narrative e. then there is ineffective assistance of counsel Withdrawal i. Remonstrate w/ client vi.3(a)(3) 2. she is not a client a. Firm factual basis 3. Client demands you call his girlfriend as an alibi witness.l.16 1. If we decide to disclose: 1. lawyer discloses. When the representation will result in the violation of the Rules of Professional Conduct or other law b. Clearly stated intentions 2. What will you do? 1. Defendant insist on testifying. Warn defendant that perjury is a crime c.

under R 3. felt possessed and heard the details of her life broadcast on the television Larry must allow Dora to testify even if he reasonably believes her testimony to be false. Rule 1.14 1. ABA Mental Health Standards – Counsel must seek competency hearing (it is not a model rule) vi. Attorney is not looking at goals of client. Client’s ability to articulate reasons for their decision 2. a. When a client is unable to make decisions that serve their interest 2. and all of the television shows she watched were relating the details of her life. Dora tells Larry that she had been feeling ill in the days immediately before the incident. a. Defendant is incompetent if he lacks capacity to understand the proceedings against him or to assist in his own defense a. doesn’t “know” that didn’t happen 3. Is client impaired or incompetent? 2. Ability to appreciate consequences of a decision 3. (d) Larry is developing an alternative theory of the case and his advice is proper. If competent then need to follow client’s goals (Rule 1. (a) Dora has diminished capacity. Not developing an alternative theory III. (c) Defense counsel are provided with wide latitude in representing the criminal defendant. Is the client’s decision “knowing and intelligent?” 2. Larry has to let her. educating the client as to the legal significance of facts i. If diminished capacity still maintain a normal relationship as long as they’re not incompetent v. 17 . If creating false testimony 1.Permissive Withdrawal a. she was feeling as if she were possessed. she was hearing voices that told her to hurt herself and other people. Encouraging the client to remember the facts in a way that supports a particular legal argument instead of remembering the facts in the way they actually occurred 2.14 i. Are the able to communicate. NO. Larry’s advice is proper. (b) If Dora wants to testify that she heard voices. Problem 2-6 (p. Anatomy of a Murder i. a. Not criminally responsible iii. Determining capacity 1. Variability of state of mind 4. Lacks a substantial capacity to appreciate the criminality of her conduct or to conform her conduct to the requirements of the law 2. 121) i. understand and deliberate? iv. 4. Fairness of the decision 5. instead. Assessing Client Capacity: 1. Is the lecture permissible? a.4(b) ii. She hasn’t said anything to conclude that 2. CORRECT. If incompetent it is an unavoidable difficult position 1. Creating false testimony v.2) ii. Conflict of Interest a. What is diminished capacity? 1. Consistency of decision with clients known commitments and values vii. isn’t it? 1. Good cause (R 1. Larry should seek the appointment of a guardian before he provides Dora with any advice. Can client adequately act in client’s own interest? 3.16(b)(1) – (b)(7) m. Insanity: 1. Rule 1. Is allowed ii. “The Lecture” 1.3 and R 3. Can the client make legally binding decisions? 4. “that is the way you were feeling. Educating a client 1. If Impaired1. but the decision process used to reach that goal b. Larry told Dora that she wasn’t feeling ill. Larry Lawyer has been assigned to represent Dora Defendant who has been accused a bludgeoning her husband and his girlfriend to death in the girlfriend’s bedroom. He concluded with.

The attorney tells Stanley that if she makes the argument she can almost guarantee that Stanley will not receive the death penalty. (c) If Stanley is competent. Is client’s assistance necessary at trial? ix. This limits the attorneys availability of arguments to raise b. if she is not permitted to make the argument. 139) i. the lawyer may disregard Stanley’s instructions and make the mitigating argument. Options for the attorney 1. Concurrent Conflict 1.16(b)(4) 2. Shall not represent if: i. Also could raise ineffective assistance of counsel. a. Arguments are within the scope of the lawyer’s conduct 4. Next of Kin as Proxy Decision maker 4. the lawyer must follow Stanley's instructions.7 a. Material ability to represent one limited by representation of the other b. Seek a Guardian 3.c. R 1. Representation of one client is directly adverse to the other client ii. she can almost guarantee that Stanley will receive the death penalty. Attempt to maintain normal attorney client relationship 2. the lawyer may follow Stanley’s instructions. client instructs attorney not to offer evidence in mitigation. Client decision xiii. a. Comment 3 a. he instructs his attorney not to file any appeals on his behalf even though the attorney believes that several instances of reversible error took place during trial. she wants to enter a guilty plea. Not permitted by the rules (R 1. I: Conflict of interest 1. 1. Direct adversity 1. viii. Stanley also instructs his attorney to make no arguments at the sentencing hearing even though the attorney believes that she can construct a good argument based on Stanley’s recent return from combat. After Stanley is convicted of murder. Rule 1. what do you do? 1. a. Standard Representation 2. Direct adversity. Types of Conflicts: i. (b) If Stanley is not criminally responsible.2) 5. Make a record that the plea is contrary to your advice xi. However. Lawyer may take reasonable protective action to protect the client’s personal financial or other interest 3. or 2. Persuade Client to Lawyer’s View of Client’s Best Interests 6. Material limitation 1. Material limitation ii. Only with respect to goals 2. Stanley instructs the attorney to make no arguments at the sentencing hearing. Having family members or others participate in the lawyer’s decisions with the client will not destroy attorney client privilege xiv. Client instructs you not to file an appeal. Act as De Facto Guardian a. post conviction 2. Withdraw x. Argument is up to the lawyer Problem 2-7: Multiple Representation of Codefendants (p. Gary Gilmore Case (p.2 goals vs. (a) If Stanley is competent. Consentable Conflicts 18 . what do you do? 1. Rule 1. you may follow? Makes no sense 3. Arguments at sentencing is strategy xii. Fired lawyer cannot file an appeal xv. (d) If the lawyer fails to follow Stanley’s instructions and makes the argument she will be committing misconduct. strategies a. 138) 1. a. Move to withdraw under R 1.14 1. Court accepts plea. Client found competent. If Incompetent1. what do you do? 1. Because both are charged with the same crime and may not share equal criminality a. If he’s insane. CORRECT.

United front ii. What happens upon conviction in multiple representation cases? a.Witness Conflict 5. Prohibited by law 2. Actual conflicts may arise 2. 1. Ex. In writing b. if there are only potential conflicts. Adverse Claims ii. 2. Efficiency 4. If there is a conflict. Conditional waiver regarding cross-examination e. No Attorney-Client privilege if disputes develop between jointly represented parties iii. Permits withdrawal i. He didn’t understand risks 19 . Alternatives 1. What risks are presented 1. Prerequisites to Multiple Representation a. Types of Conflicts: 1. Multiple Representation of clients in a single matter 3. Multiple Representation: 1. Judge must first inquire as to whether a conflict exist 2. the representation may be proper. Know what other defendant is doing 2. No attorney client privilege between the clients themselves v. Client vs. 3. 2. Multiple Representation was inappropriate because: 1. then multiple representation is probably inappropriate. Disadvantages 1. Defendants lose representation if conflict arises 2. Once this occurs cross-examination can occur 3.1. If yes. Lawyer’s Reasonable Belief 2. Full Disclosure i. and the clients provide informed consent after full disclosure.: Joint Defense Agreement a. What is defendants hire an attorney together? 1. Methodology a. Is there an actual conflict? i. Advocate . State no attorney-client relationship with codefendants d. United front = harder job for the prosecutor iv. All clients give informed consent iii. Check and control on each other 4. Court approval c. Judges can reject defendants’ waivers of conflict 2. Why do defendants want multiple representation? 1. Lawyer’s personal interests iii. The standard is the lawyer’s reasonable belief that she will be able to provide competent and diligent representation to each client. Adverse Representation against a Current Clients 2. Cheaper 3. and lawyer reasonably believes that she will be able to provide competent and diligent representation to each client. Representation against a Former Clients 4. Fee reduction 2. Defendant will argue ineffective assistance of counsel i. Advantages 1. the second prong of Strckland is presumed to have been met vi. Nonconsentable Conflicts 1. If not. Attorney must withdraw 3. ii. May a federal judge appoint one counsel for multiple defendants? 1. Expense sharing 3. Defendants must prove an actual conflict existed to later make a claim of ineffective assistance of counsel vii.

(b) The representation is proper if counsel believes she can provide competent and diligent representation to each client and each client gives his informed consent in writing. Attorney was appointed to represent a murder who murdered one of the attorneys assigned clients ii. Jack and John are identical twin brothers who have been charged with credit card fraud. Jack and John are identical twin brothers who were injured in an automobile accident.7(b) c. i. Vague.0(e) Informed Consent: a. Rule 1. 2. That’s why informed consent is important: 1. full standard of R 1. (d) The representation is not proper because Jack and John are identical twins. Jack and John are identical twin brothers who are accused of robbing a fast food store. a. CORRECT. Sitting there does not equal contributory negligence d. Not in the same position. B is more complete b. Cocaine doesn’t contribute. (d) The representation is not proper because Jack and John are identical twins. (a) The representation is proper because there is no serious conflict of interest. b. No indication of potential conflict d. i. lawyer has to argue one or the other did it 1. Hospital records indicate that John had been using cocaine immediately before the accident. witness can’t decide. Taylor (p. (a) The representation is proper because there is no serious conflict of interest. CORRECT. 147) i. I: Did the appeals court err in holding that a defendant must show an actual conflict of interest and an adverse effect in order to establish a 6th Amendment violation where a trial court fails to inquire into a potential conflict of interest about which it reasonably should have known? Is prejudice assumed. i. i. Department of Motor Vehicle records indicate that Jack’s driver’s license was suspended at the time of the accident. During the robbery they are alleged to have worn identical clothing and one is alleged to have pistol whipped the store’s manager. i. i. i. Strickland Test: 1. Informed consent denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct 4.d. yielding an automatic reversal? iii. (a) The representation is proper because there is no serious conflict of interest. i. Interest are not adverse 5. Second Prong can be established by: a. Jack was driving and John was the passenger. (d) The representation is not proper because Jack and John’s interests are adverse. There were conflicts ii. (b) The representation is proper if counsel believes she can provide competent and diligent representation to each client and each client gives his informed consent in writing. a. Jack and John each have one prior conviction for credit card fraud. one did something the other didn’t Mickens v. c. Jack and John have asked you to defend both of them of the charge of aggravated robbery. (b) The representation is proper if counsel believes she can provide competent and diligent representation to each client and each client gives his informed consent in writing. Reasonably effective assistance 2. b. a. two identical people. (c) The representation is not proper because there is an actual conflict of interest. CORRECT c. situations where it could be proper d. Jack and John have asked you to represent both of them and file a negligence action against the SUV driver who rear-ended them while they were stopped at a stop light waiting for the light to change. (c) The representation is not proper because an actual conflict of interest may develop. Extreme denial of counsel (Cronic) 20 . Jack and John have asked you to represent both of them on current credit card fraud charge. (c) The representation is not proper because this is a criminal prosecution. 6.

Is the Gag order valid? a. No broader than necessary to protect the integrity of the judicial system and the defendant's right to a fair trial ii. gag order. 1.6 4. Don’t have to. Explore other available remedies (least restrictive means) 2.2: Judicial and Legal Officials a. (b) You may only rebut the prosecutor’s statements if they were made in bad faith. Because defense counsel did not object. first & THEN prosecutor’s violation thereof) 2. 2..g. CORRECT. Nevada (p. You represent Martha and believe that Martha’s niece actually saw Martha extending the oar to her husband in an attempt to rescue him. (d) The prosecutor’s actions are improper because they are vindictive. What should we do about the prosecutor’s ethical violations (none of these very helpful) 1. credibility. N/a – vindictive goes to why bringing action vii.6 to the Prosecutors agents (which includes the police) vi. a tactical decision 2. test results. physical evidence. 156) 1. Limitations on Litigation Tactics by the Prosecution and by the Defense a. R 1. What is my client’s interest? Need to respond? How should we respond? When? ii.6(c) – Right to reply i. the prosecutor gives a press conference in which she reports that Martha’s 8-year-old niece saw Martha hit her husband with an oar before he sunk under the water. R 8. Applies 3. confessions. Instruct the jury to ignore the pre-trial publicity v. a. Prohibits statements that have a substantial likelihood of materially prejudicing and adjudicative proceeding in the matter b. R 3. Gentile v. Should the defense counsel consult with the client before making a response? 1. (c) The prosecutor’s actions are improper as they are likely to prejudice Martha’s ability to get a fair trial. criminal record. File disciplinary complaint (but. But probably should talk to client because it could damage the attorney-client relationship iii. reputation. Overly detailed response iv. not going to help client) 4. Problem 2-8 (b) 1. refusals to make statements. What factors should be taken into consideration? 1. An attorney can respond if the other attorney’s statement has had a prejudicial statement ii. plea negotiations. Contempt (would req ct order. After Martha’s arrest for the drowning death of her husband.6 a. Problem 2-8: Trial Publicity i. e.i. (a) You must immediately call a new conference to rebut the prosecutor’s story. Reversal if the conflict actually effected the adequacy of the representation c. a. Never must 2. a. Standard (US v. Actual prejudice iv. Ethical Considerations – R 3. Criticizing judges 21 . the fact that the defendant has been charged without a statement of the presumption of innocence. Nothing about bad faith 3. Character. Duke Lacrosse Case: 1. a. opinion as to guilt or innocence. Rule 3. Tactical Considerations a. R 3. Comment 5 is the standard for material prejudice 1. inadmissible information. defendant must show the conflict actually effected the representation IV.8(f) a. SCOTUS holds automatic reversal only becomes available when defense counsel objects to the representation and the judge fails to inquire into the objection v. Prejudice is presumed and reversal is automatic b. Move to dismiss 3.2 a. Salameh): i.

(c) – disclosure to prevent fraud 3. Interviews may be improper. Directly adverse ii. Can engage in proceedings unlikely to come to a jurors attention ii.3(b) Jury Misconduct a. If so. c.4(b). Case must be: 1. No. May not allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence ii. R 3. If the strategy is permissible must the defense counsel use it? 1. because it is likely someone would convey that information to the juror iv. strike someone based on race. Prosecution finds a case Olden. Improper to communicate ex parte with a juror or potential juror 4. where defendant's 6th amendment rights were found to be violated when the victim could not be questioned about her cohabitation.3(b) – duty to disclose to remedy perjury 6. Does the defense have a duty to disclose that the juror is employed by a subsidiary of McSwain Enterprises? 1. Strickland i. a. HYPO: 1. Is the purpose of calling the witnesses just to embarrass or burden b. Must defense reveal? 1. R 3. R 3. and 2.3(a)(2) i. Is lawyer generated theory proper under R 3. No. did the attorney deny effective assistance of counsel a. If not. R 3. R 8. Can the defense pursue a defense based on a manufactured theory? a. Does prosecution have to reveal? i. In criminal cases a VICTIM is a THIRD PARTY iv. R 3.4(d) – discovery rules 2. Is it ok to place b/f and frat bros on the witness list? 1. Case law seems to support in criminal cases to test whether there is a reasonable doubt 2. Rule 4. In criminal cases yes.3(d) – disclosure in ex parte proceedings Problem 2. R 3. “Set-up” theory 1. No duty to reveal adverse fact. gender or ethnicity v. they violated the rule Problem 2-9: Limitation on Trial Tactics i. Improper to influence a juror or prospective juror 3. Were the statements false or made with a reckless disregard to their truthfulness? 1.4(a) Respect for Third Parties a.b.3(a)(2) – adverse law 4. Would attorneys in jurisdiction engage in this activity ii. Does the defense counsel have discretion to disclose? 22 . not directly adverse 3. civil cases probably not (FRCP 11) v.9: Is the investigation of potential jurors proper? i. Would the outcome likely be different iii.5 1. Prohibits vexatious or harassing conduct 2. R 3. Batson Test 2.4(e) a. Controlling. Whether testimony of the b/f and frat brothers about credibility is inadmissible because of rape shield law 1.3(a)(3) – disclosure of false statement of material fact to tribunal to prevent perjury 5. After defense files its motion under the rape shield law 7th Circuit holds that the rape shield law does not violate the Confrontation Clause. R 3. Credit reports and drive by not improper iii. but must reveal authority vi. Discriminatory Preemptive Challenges 1. Duty to Disclose: 1. federal courts not controlling we are in State Court (unless it’s a SCOTUS case) 2.4(e) a. R 3. i. a.

Higher standard than the ethical rule vi. questioning could raise questions or raise question of credibility c. Prosecutorial Discretion 4. a. a passerby stopped and asked if she could help. Trial Conduct ii. a. Lisa was on her way to the courthouse when her car broke down. The suppression by the prosecution of evidence favorable to the accused violates due process where the evidence is material to either guilt or punishment 2.8 (Ethical Duty) 2. It is a separate constitutional body not subject to plenary judicial supervision. No knowledge requirement 3. Yes.” 3. R 3. Is there a duty for the prosecutor to turn over information about defendant misidentification to the grand jury 1. Brady v.8(d)) 1. Trial results in a hung jury can defense interview former jurors? 1. duty to disclose information that tends to negate guilt or mitigate the offense iv. Rule 3. under R 1. Judy. R 4. (d) Even though Lisa and Judy did not discuss the case Lisa’s conduct was improper. Williams (p. Should because of proof beyond a reasonable doubt. Is there a duty post indictment? 1. v. Ethical Duty (R 3. It wasn’t until Lisa was in the courtroom that she realized that Judy was one of the jurors hearing the case against Ruiz.2(a) it’s a strategic action vi. doesn’t matter if they divide 4. Brady Material (Constitutional Duty) 3. they have substantial evidentiary value Witness Examination i. Lisa Lawyer is assisting you in defending Ruiz. Ex parte contacts with defendants 5. No. does not however apply to grand jury proceedings. Prosecutor should use the “tends to” standard viii. Lisa said she was in hurry to get to the courthouse and Judy said she was going that way and agreed to drive Lisa. as long as juror consents and not prohibited by law vii. e. because a lawyer engaging has a substantial purpose other than harming the interest. Doesn’t matter. Using R 3. Materiality is the standard by which a court determines if a defendant has been harmed by a nondisclosure ix. Maryland (Constitutional Duty) 1. making the prosecutor prove his case beyond a reasonable doubt b. P only need disclose to D the weaknesses in IDs iii. How should the defense frame a request for exculpatory evidence 1. Different if you are prosecutor Problem 2-10: Special Duties of Prosecutors i. “Prosecutors duty to disclose exculpatory evidence. Yes. Doesn’t matter 2. lawyers represent client. Permits. 1. CORRECT d. it’s a professional responsibility rule v.S. You are defending Robert Ruiz against an embezzlement charge. 23 .5a. Your determination of whether witness in truthful doesn’t matter i.4(a) a.i. (b) Lisa was not aware that Judy was a juror in the case so Lisa’s conduct was not improper. If there are proceedings or future proceedings where the documents would be relevant you cannot destroy them. R 3. a. Yes. Should think about how you do it ii. it’s a matter of discretion. Nothing. (a) Lisa and Judy did not discuss the case so Lisa’s conduct was not improper. To do justice!!!! 1. 181) 2. U. Yesterday. (c) If Lisa had been the lead attorney instead of an assisting attorney her conduct would have been improper.8(d). a. Brady Rule does not provide to grand jury proceedings (grand jury not part of judicial process) 4. Document Retention i. What if prosecutor doesn’t disclose and defendant latter finds out? 1. Should you cross examine a truthful witness? 1.8(d) f. Requires disclosure of all information that tends to negate guilt or mitigate the offense vii.

Insures client autonomy by providing the client with all the information necessary to understand the benefits and risks associated with the decision she must make.1 – Lawyer as counselor a. Modern view – Court should examine all facts and circumstances to determine if a pre-indictment communication is authorized by law a.2 Comment 5 1. Law practice – 3rd party (other side’s atty) may reasonably believe that atty has authority over strategic 24 . h. I. Is perjury or obstruction involved iv.000 and is derived from specified unlawful activity ii. breaching the attorney-client privilege? Ex parte communication with a party represented by counsel 1.2. Does the multiple representation create an actual conflict v. Actual authority – principal has provided agent w/ power to make (certain) decisions in her interest ii. Is it permissible to file charges against the mother if the father and son don’t take the plea 1. Has the government engaged in misconduct 4. i. therefore.0(e) – Informed Consent a. i. Does not apply to plea bargaining. If principal contributed to 3rd parties’ belief then principal may be bound by estoppel iii. Money Laundering 1. 185) i. Can we talk to Norwood? ii. lawyer must obtain verification that money is not tainted iii. NO. Tax Reporting 1. Is communication authorized by law? Talao factors a. Vindictiveness a. Knowingly engage or attempt to engage in a monetary transaction in criminally derived property that is of a value greater than $10. Independent professional judgment b.2 Comment 5 1. A state supreme court interpretation of R. Receipt of cash [a cashier’s check but not a personal check] of $10. Authorized by law 2. Who initiated the contact iii.000 or more must be reported to the IRS iv. Should not be guided by personal considerations c. Factors: i. R 1. Money derived from illegal activity subject to forfeiture. Problem 2-10(b) i. Lawyer has duty to know where all funds come from and a duty to investigate the source of all funds v. Apparent authority – third person believes agent has authority to bind principal when in fact agent does not. McDade Act a. it’s acceptable c. Probably it is iii. Civil Forfeiture 1.Has the prosecutor violated R 4.2 exception allowed by law ii. Has an adversarial posture developed ii. falls within the R 4. R 4. Based on the client’s ability to comprehend 2. because they are give and take negotiations. United States v. Communications between a target and prosecutor are authorized by law if they do not violate the defendant’s 6th Amendment right to counsel (traditional) 3. R 4. Agency principles i. Talao (p. Objective evidence that the prosecutor acted to punish the defendant for standing on his legal rights (punishing the defendant for something he has a right to do) b. Did government advise the witness of a right to independent counsel vi.g. R 2.4. Who’s in charge? 1.2 will be binding on both state and federal prosecutors. NOTE: vindictiveness is usually not the right answer on the bar exam Problem 2-11 Fee Forfeiture and Lawyer Subpoenas i.

meaning or application of the law. sole proprietorship or other association authorized to practice law.) the time and labor required.) the experience.4: Communication (a. as to a plea to be entered. A person’s knowledge may be inferred from circumstances. (bb. (w. whether to waive jury trial and whether the client will testify. then the lawyer must obtain or transmit it within a reasonable time thereafter.) “Knowingly.) “Writing” or “written” denotes a tangible or electronic record of a communication or representation. after consultation with the lawyer. (d. A lawyer shall abide by a client’s decision whether to settle a matter. (4. denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. social or moral views or activities. (p.) whether the fee is fixed or contingent 25 . 5. photostating. a shareholder in a law firm organized as a professional corporation. administrative agency or other body acts in an adjudicative capacity when a neutral official. Rule 1. A legislative body.) “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer. or a member of an association authorized to practice law.) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. administrative agency or other body acting in an adjudicative capacity.3. R 1. audio or video recording and e-mail. including representation by appointment.” “know”.) promptly comply with reasonable request for information. but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity. (z.” If it is not feasible to obtain or transmit the writing at the time the person gives informed consent. if apparent to the client.) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.) keep the client reasonably informed about the status of the matter. See paragraph (e) for the definition of “informed consent. is required by these Rules. reputation. (aa.) “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.) A lawyer shall not counsel a client to engage. will render a binding legal judgment directly affecting a party’s interest in a particular matter. or assist a client. economic.0(e). (5. does not constitute an endorsement of the client’s political. Rule 1.4 – Client Communications 4. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. (r. the novelty and difficulty or the questions involved. A “signed” writing includes an electronic sound. professional corporation. and ability of the lawyer or lawyers performing the services.14 – Dealing with clients with diminished capacity (paternalism) R 1.4. typewriting.) the time limitations imposed by the client or by the circumstances. a lawyer shall abide by a client’s decisions concerning the objectives of representation and. (c. (s. Rule 1.) reasonably consult with the client about the means by which the client’s objectives are to be accomplished. an arbitrator in a binding arbitration proceeding or a legislative body. including handwriting. that the acceptance of the particular employment will preclude other employment by the lawyer.) “Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.) the fee customarily charged in the locality for similar legal services. photography. Largest source of grievances R 1. (v. the lawyer shall abide by the client’s decision. and (5. shall consult with the client as to the means by which they are to be pursued. (y.) the likelihood. (t. In a criminal case. (2.) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent. (q.) the nature and length of the professional relationship with the client. The factors to be considered in determining the reasonableness of the fee include the following: (1. in conduct that the lawyer knows is criminal or fraudulent. symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.0: Terminology (o. (b.) A lawyer shall not make an agreement for. scope. a.) “Firm” or “law firm” denotes a lawyer or lawyers in a law partnership. (x.) the amount involved and the results obtained.” when used in reference to the informed consent of a person. (4.) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. printing.) “Tribunal” denotes a court. (u.) “Belief” or “believes” denotes that the person involved actually supposed the fact in question to be true. A person’s belief may be inferred from circumstances. charge. and the skill requisite to perform the legal service properly (2.) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.) “Screened” denotes the 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 obligated to protect under these Rules or other laws. (b.2 (paternalism) Rule 1. (3. after the presentation of evidence or legal argument by a party or parties.2: Scope of Representation and Allocation of Authority Between Client and Lawyer (a.) “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance. or “knows” denotes actual knowledge of the fact in question. as defined by Rule 1.) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. as required by Rule 1.5: Fees (a. or lawyers employed in a legal services organization or the legal department of a corporation.) A lawyer’s representation of a client. or collect an unreasonable fee or an unreasonable amount for expenses. and (8. (6.) Subject to paragraphs (c) and (d).) “Confirmed in writing.) A lawyer shall: (1. (3.) “Partner” denotes a member of a partnership. (7.

and (2. (2.) the total fee is reasonable.) 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. (b.) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship. (5. or property settlement in lieu thereof. parent.) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a). except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. (c. and (3.) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership. Upon conclusion of a contingent fee matter. or collect: (1.) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used or is using the lawyer’s services.)A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1. except when the lawyer will charge a regularly represented client on the same basis or rate. (f. the lawyer shall provide the client with a written statement stating the outcome of the matter and.) any fee in a domestic relations matter.) Except as provided in paragraph (b). trial or appeal. or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. (2.) the client gives informed consent. security or other pecuniary interest adverse to a client unless: (1. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined. showing the remittance to the client and the method of its determination. except that: (1. (2) the client agrees to the arrangement. or (2. (3. possessory.) A fee may be contingent on the outcome of the matter for which the service is rendered. or other relative or individual with whom the lawyer or the client maintains a close.6 26 . or to respond to allegations in any proceeding concerning the lawyer’s representation of the client. or (6.) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client. (2. to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved. to the essential terms of the transaction. including the share each lawyer will receive.) to secure legal advice about the lawyer’s compliance with these Rules. in a writing signed by the client.) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client.) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction.) a lawyer representing an indigent client may pay court costs and expenses on behalf of the client.) information relating to representation of a client is protected as required by Rule 1. litigation and other expenses to be deducted from the recovery. the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support.) to prevent. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. For purposes of this paragraph.) A lawyer shall not accept compensation for representing a client for one other than the client unless: (1. or (2.7: Conflict of Interest: Current Clients (a.) A lawyer shall not enter into an arrangement for. familial relationship. and (3. (e.) a contingent fee for representing a defendant in a criminal case (e. and whether such expenses are to be deducted before or after the contingent fee is calculated. grandchild. child. the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).8: Conflict of Interest: Current Clients: Specific Rules (a.(b.) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent. 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.) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client. including a testamentary gift.) A lawyer shall not solicit any substantial gift from a client. and (4.) A lawyer shall not provide financial assistance to a client in connection with the pending or contemplated litigation.) to comply with other law or a court order Rule 1. confirmed in writing. (d. a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. including the percentage or percentages that shall accrue to the lawyer in the event of settlement. (b. (4.) a lawyer may advance court costs and expenses of litigation.6 Confidentiality of Information (a)A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. (d.) the client gives informed consent (2. grandparent. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (b. if there is a recovery.) the representation of one client will be directly adverse to another client.) 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.) to prevent reasonably certain death or substantial bodily harm. Rule 1.) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation. except as permitted or required by these Rules. charge. (c.) the representation is not prohibited by law. Rule 1.) A division of a fee between lawyers who are not in the same firm may be made only if: (1. and the agreement is confirmed in writing. (3. mitigate or rectify substantial injury to the financial interest 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. before or within a reasonable time after commencing the representation. related persons include a spouse. preferably in writing.) Prior to the conclusion of representation of a client. including whether the lawyer is representing the client in the transaction. a former client or a third person or by a personal interest of the lawyer. the repayment of which may be contingent on the outcome of the matter. and (3. a lawyer may represent a client if: (1.) each affected client gives informed consent. A concurrent conflict of interest exists if: (1.

) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1. to the highest authority that can act on behalf of the organization as determined by applicable law.) Settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas. and that is likely to result in substantial injury to the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so.) whose interest are materially adverse to that person.7 or 1. then the lawyer may reveal information relating to the representation whether or not Rule 1. (c. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement (h. and (2.7.9(c) that is material to the matter. if warranted by the circumstances.) acquire a lien authorized by law to secure the lawyer’s fee or expenses.13: Organization as Client (a. unless: (1.7. (b. financial or other harm unless action is taken and cannot adequately act in the client’s own interest.6 permits such disclosure. confirmed in writing. the consent shall be given by an appropriate official of the organization other than the individual who is to be represented.) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (c. is at risk of substantial physical.6 and 1. the lawyer shall refer the matter to higher authority in the organization.14: Client with Diminished Capacity (a. the lawyer may take reasonably necessary protective action. and (2. whether because of minority.) While lawyers are associated in a firm.) Information relating to the representation of a client with diminished capacity is protected by Rule 1. (e.) about whom the lawyer had acquired information protected by Rule 1. unless the former client gives informed consent.) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients.) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.9: Duties to Former Clients (a. officers.) any lawyer remaining in the firm has information protected by Rules 1. in a writing signed by the client. and (2. if (1.10 Imputation of Conflicts of Interest: General Rule (a. and (2. (c.) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently responsible in making the agreement.) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client. but only to the extent reasonably necessary to protect the client’s interest. officers. shareholders or other constituents. shall proceed as the lawyer reasonably believes necessary to assure that the organization’s highest authority is informed of the lawyer’s discharge or withdrawal. the lawyer shall. (d. including consulting with individuals or entities that have the ability to take action to protect the client and. then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. or (2. intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization. Rule 1. the lawyer is impliedly authorized under Rule 1.) Paragraph (c) shall not apply with respect to information relating to a lawyer’s representation of an organization to investigate an alleged violation of law. maintain a normal client-lawyer relationship with the client.) A lawyer who reasonably believes that he or she has been discharged because of the lawyer’s actions taken pursuant to paragraphs (b) and (c). a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interest are adverse to those of the constituents with whom the lawyer is dealing. (g.7. unless each client gives informed consent. (f. mental impairments or for some other reason.) While lawyers are associated in a firm.) Except as provided in paragraph (d). conservator or guardian. unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.) contract with a client for a reasonable contingent fee in a civil case.) When the lawyer reasonably believes that the client has diminished capacity. confirmed in writing. but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization (d. the firm is not prohibited from thereafter representing a person with interest materially adverse to those of a client represented by the firm. Rule 1.) When a lawyer has terminated an association with a firm.6 and 1. as far as reasonably possible. (b.) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client.6(a) to reveal information about the client. that is clearly a violation of law.) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interest are materially adverse to the interest of the former client unless the former client gives informed consent. or a violation of a law that reasonably might be imputed to the organization. or by the shareholders. (c. employees. seeking the appointment of a guardian ad litem.) A lawyer representing an organization may also represent any of its directors. a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them. except that a lawyer may: (1. employee or other constituent associated with the organization against a claim arising out of an alleged violation of law. subject to the provisions of Rule 1.9.) If a lawyer for an organization knows that an officer.11 Rule 1. or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs. shareholders or other constituents.15: Safekeeping Property (a) A lawyer shall hold property of clients or third persons that is in the lawyer’s possession in connection with a representation separate from the lawyer’s own 27 . or to defend the organization or an officer. (b. employee or other person associated with the organization is engaged in action.) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client.(g. employees. members.) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished. none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.) 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. in appropriate cases.) A lawyer shall not have sexual relations with a client unless.) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1. or (2.9(c) that is material to the matter.) A lawyer shall not: (1. If the organization’s consent to the dual representation is required by Rule 1. Rule 1.) In dealing with an organization’s directors. a consensual sexual relationship existed between them when the client-lawyer relationship commenced (k. or when the information has become generally known.6.) reveal information relating to the representation except as these Rules would permit with respect to a client. (i. including.) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization. When taking protective action pursuant to paragraph (b). Rule 1. members.) despite the lawyer’s efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insist upon or fails to address in a timely and appropriate manner an action or a refusal to act. (b. shall apply to all of them. (j.

economic. make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party. or the respondent in a proceeding that could result in incarceration. the credibility of a witness.) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.2: Communication with Person Represented by Counsel In representing a client. (d. a lawyer shall continue representation notwithstanding good cause for terminating the representation.) A lawyer may deposit the lawyer’s own funds in a client trust account for the sole purpose of paying bank service charges on that account. which includes a good faith argument for an extension. assert personal knowledge of facts in issue except when testifying as a witness. Rule 2.) the lawyer is discharged (b. A lawyer shall not counsel or assist another person to do any such act.1: Advisor In representing a client a lawyer shall exercise independent professional judgment and render candid advice.) the person is a relative or an employee or other agent of a client. (c.) the representation will result in a violation of the rules of professional conduct or other law. Except as stated in this rule or otherwise permitted by law or by agreement with the client. Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.16: Declining or Terminating Representation (a.property.) other good cause for withdrawal exists (c. but only in an amount necessary for that purpose.) unlawfully obstruct another party’s access to evidence or unlawfully alter. a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests. Rule 3.) withdrawal can be accomplished without material adverse effect on the interest of the client. When ordered to do so by a tribunal. social and political factors. may nevertheless so defend the proceeding as to require that every element of the case be established.) the testimony relates to an uncontested issue. 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. or (7. surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. (b.) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement. (6. (d. or (3. unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1. Rule 4.2.) falsify evidence. (3. (2.) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests. a lawyer shall promptly notify the client or third person. allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence. or elsewhere with the consent of the client or third person. a lawyer may withdraw from representing a client if: (1.) Upon termination of representation.1: Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding. (d. A lawyer for the defendant in a criminal proceeding. or assert or controvert an issue therein. a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and.) the lawyer reasonably believes that the person’s interest will not be adversely affected by refraining from giving such information. that may be relevant to the client’s situation. and (2.) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.7 or Rule 1. a lawyer may refer not only to law but to other considerations such as moral.3: Dealing With Unrepresented Person 28 . or (3. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of representation.9.7: Lawyer as Witness (a. modification or reversal of existing law. (2. upon request by the client or third person.) Upon receiving funds or other property in which a client or third person has an interest. Rule 3. (5.) in pretrial procedure. (c. Rule 1. (4. or (f.) in trial. to be withdrawn by the lawyer only as fees are earned or expenses incurred. Rule 3. The lawyer may retain papers relating to the client to the extent permitted by other law.) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1. where representation has commenced. (e. Expediting Litigation A lawyer shall make reasonable efforts to expedite litigation consistent with the interest of the client. shall promptly render a full accounting regarding such property. Rule 4. a lawyer shall not represent a client or. the property shall be kept separate by the lawyer until the dispute is resolved. (b.) disqualification of the lawyer would work substantial hardship on the client.) knowingly disobey an obligation under the rules of a tribunal.) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation.) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent. shall withdraw from the representation of a client if: (1. destroy or conceal a document or other material having potential evidentiary value.) Except as stated in paragraph (c). (2. except for an open refusal based on an assertion that no valid obligation exists. In rendering advice.) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance. unless there is a basis in law and fact for doing so that is not frivolous.) the testimony related to the nature and value of legal services rendered in the case. or state a personal opinion as to the justness of a cause.) the client has used the lawyer’s services to perpetrate a crime or fraud. Other property shall be identified as such and appropriately safeguarded. the culpability of a civil litigant or the guilt or innocence of an accused. (e.4: Fairness to Opposing Party and Counsel A lawyer shall not: (a. counsel or assist a witness to testify falsely.) Except as stated in paragraph (c). Rule 3. or offer an inducement to a witness that is prohibited by law.) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. (b. employment of other counsel.

Must specify whether expenses are to be deducted before or after the contingent fee is calculated c. or ii. HYPO: a.5(c) a. In proportion to services performed. R 1. Client should seek another lawyer ASAP 2. Suit for damages c. the lawyer shall make reasonable efforts to correct the misunderstanding. Fact witnesses can have their expenses reimbursed 5. other than the advice to secure counsel. Attorney negligence or BoK iii. Miller & Keefe (p. Elements of malpractice: i. Did not provide client with means to protect their interest c.In dealing on behalf of a client with a person who is not represented by counsel. Confidentiality. Chapter 3: Ethical Issus in Civil Litigation: The Client-Lawyer Relationship. Not permissible R 1. Grievance b. custom.5(a) i. Togstad v. The Client-Lawyer Relationship a. Lawyer’s duty to report misconduct 9. if the lawyer knows or reasonably should know that the interest of such a person are or have a reasonable possibility of being in conflict with the interest of the client. R 1. R 1. To let client know we do not have a lawyer-client relationship b. Gave client advice iii. While Harriet’s case was awaiting trial her house was struck by lighting and burned down. Lawyer must clearly notify the client for any expenses for which the client will be liable b. Didn’t look into the claim or consult an expert ii. a lawyer shall not state or imply that the lawyer is disinterested. labor required. time limitations. i. When does an attorney-client relationship exist? a. Purpose: a.231) a. with client consent 8. Problem 3-1: Contingent Fees. Look at the local practice i. Reasonableness i. R 1. I. Time. They both agreed that the funds would be repaid from a settlement or judgment on the malpractice action.5 a. Can a firm create malpractice liability for itself by turning down a case? 1. Way to avoid liability i. Expenses. and Fee Splitting i.Was the contingent fee reasonable? 1. Liable in this case i. the attorney must advise them to seek other counsel and advise statute of limitations 2. Client’s recourse in fee disputes a. preclusion of other work 2. Nonegagement Letter 1. The lawyer shall not give legal advice to an unrepresented person. General overhead can only be charged to the client with their consent 6. novelty.5(e) – Fee Divisions must be: a. But for the defendant’s conduct plaintiff would have prevailed b.8 (e) – Conflict – Personal interest in the claim b. And. and Conflicts of Interest I. Yes. Otto. When the client believes one exist 29 . Established attorney-client relationship ii. Vesely. Attorney can vary fees or charge a flat rate or a percentage depending on where in the stage of litigation they are 3. Her lawyer advanced her enough money to find an apartment and to pay her rent until she received a settlement from her homeowner’s insurance. Problem 3-2 Engagement and Nonengagement Agreements: i. Upon conclusion of a contingent fee lawyer must provide with a settlement statement 7.4 Comment 3) 4. Negligence was the proximate cause of plaintiff’s damages iv. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter. results. Pursuant to joint representation b. Expert’s fee cannot be a contingent fee (R 3. Some jurisdictions bars/courts have established b.

Declination of representation b. Educate client -. Security of various forms of communication b. Lawyer (Defensive) b. How do rules construct a client? a. Process a. P 3-3(a) Communication types 1. formal) 6. Must state the parties ii. Go through it point by point with the client to make sure they agree 3. Protect the attorney -. Cannot be presented as a take it or leave it order c. The point of the nonengagement letter is to make this unreasonable Must include: a. Scope of representation 1. Form: a.i. Letters should not provide reasons why the attorney declines the representation d. Goals of client 2. Confidentiality ii. Recognizes mutuality and bargaining 7. Seek advice of other attorney c. In the state of mind that permits bargaining 4. Termination 5. Protection of client’s information from use by another client of the firm in a substantially related matter ii. Informed Consent a. Requirements: i. How do you present it to the client? a. Protect: a. The client is represented by the firm not a particular attorney v. multiple representation and waivable conflicts) iii.Educational b. R 1. 30 . Achieved when the client can explain the engagement agreement in their own words Problem 3-3 Confidentiality i. Protect Client’s claim 2. Efforts 1. STANDARD: i. Depends on the client (friendly v. should be negotiated b. c. Fee Arrangement vii. As able to understand and negotiate a contract b. Must comply with duty of care 1. Contain any consents needed or required (i. Purpose a.e. Advise of any procedural deadlines 4. What policies should be adopted i. Client (Educational) 5. Develop based on potential consequences ii. Varies depending on the client and firm b. Both the attorney and client will use their best efforts vi. How long the representation will last iv. Tone: a. Billing viii.18 Duties to Prospective Clients i. R 1. It’s a contract. Engagement Letters 1. Firm representation 1. Negligence standard 3.6 Confidentiality a.Defensive c. Appeals ix. Whether the technology provides a reasonable expectation of privacy c.

[AMJUR Depositions sec. Can be waived inadvertently by client or counsel 1. Leroy Lawyer is a mechanical engineer and a member of the bar of Model State. He chairs the design and drafting department at Model State Motors. Disclosure by the plaintiff to a third party 3. Control Group b. Is an agent of the organization such that: 1. Two exceptions to the attorney-client privilege i. Should be included in the engagement agreement ECPA i. Opinion Work Product 1. Counsel would be liable to client ii. or 2. The privilege belongs to the client i. however. Upjohn Test. Subject Matter. Inc. indemnitor. directs or consults with organization’s lawyer. The material was prepared by or for a party or a party’s representative. To qualify: i. Substantial need and inability to get information absent undue hardship 2. Following a series of accidents involving Model State Motors automobiles. The drawing appearing below was prepared three years before Plaintiff’s accident for a talk Leroy gave for senior Model State 31 . The Client is someone who Supervises. Agreement 2. 47] iv. i.2 COMMENT 7 i. Crime Fraud Exception applies 3. R 4. Ordinary: Standard a. insurer or agent iii. Attorney Work Product a. surety. Her or his statements will bind the organization.d. consultant. work product immunity requires a more immediate showing than the remote possibility of litigation. Waiver ii.e. Who is the client? – Corporate Client a. or ii. P 3-3(b) 1. The test is not whether litigation actually has begun. or at least litigation must reasonably be anticipated … Thus. iii. Failure to object 4. Opinion: Standard a. Are the documents subject to attorney-client privilege a. Plaintiffs sue and move to compel production of technical drawings prepared by Leroy concerning the safety of Model State Motors’ automobiles. Disclaimer 5. Crime fraud exception b. and regularly has discussions with the company’s general counsel. including a party’s lawyer. Makes interception of communications a crime and inadmissible in court ii.. Can be waived through: 1. Extraordinary Circumstances b. advising a client about matters which may ultimately come to litigation is insufficient for such advice to be considered to have been rendered in anticipation of litigation. In suits against the attorney or based on ineffective assistance of counsel 2. Although almost all of the work which attorneys do and the advice which they dispense may be viewed as being in anticipation of litigation or its avoidance. There must be a substantial probability that litigation will occur and that commencement of such litigation is imminent. Her or his acts or omissions will be attributed to the organization 4. The material records or reflects litigation investigation or analysis ii. Ordinary Work Product v. The material was prepared in anticipation of litigation. the threat of litigation must be more real and imminent than that. litigation in progress or prospective litigation 1.

i. Might be 4. a. The document is not privileged because it neither provides nor requests legal advice. No indication that it was going to legal counsel 3. no legal advice. i. The document is not privileged because Leroy is not the client. a. Anticipation of litigation b. The document will have to be produced because Leroy is not the client. The document is not privileged because it is a drawing. The document will not have to be produced because the document is privileged.Motors staff entitled. after the accident it was done = anticipation of litigation 2. c. iii. The document will not have to be produced because the document was prepared in anticipation of litigation. a. See Question above. Will Model State Motors have to produce this document to the Plaintiffs? 1. a.” It has been identified as being responsive to the production request. CORRECT. a. The document will have to be produced because it is not confidential. “Designing Better Cars. CORRECT. Don’t know that 32 . After Plaintiff’s accident the president of Model State Motors asked Leroy to prepare the document appearing below. The document is not privileged because Leroy was not acting as a lawyer when he drafted it. document doesn’t say anything d.

Leroy may be informally interviewed by Plaintiff’s attorney because he is not the client. Material Limitation ii. c. Concurrent Conflicts: 1. 4. Prohibited by law [buyer & seller. Attorney’s reasonable belief he can provide competent and diligent representation. Nonconsentable Conflicts 1. 1. 2. a. Representation against a Former Clients iv. Who is a client? R 1. Direct adversity would exist if both current clients. Leroy may not be informally interviewed by Plaintiff’s attorney because Leroy is an attorney. Adverse Representation against a Current Clients ii. Rottner: (p. and 2. See Questions above. Direct Adversity. R 1.g. Fiduciary relationship requires a duty of loyalty from attorney to the client b. Client vs. or 2. Lawyer’s personal interests Problem 3-4 i. Multiple Representation of clients in a single matter iii.7 i. Directly adverse claims Types of Conflicts i. “When a client engages the services of a lawyer in a given piece of business he is entitled to feel that. Advocate . Leroy may not be informally interviewed by Plaintiff’s attorney unless Model State Motor’s attorney consents. Leroy is the client so he can consent to be informally interviewed by Plaintiff’s attorney. he has the undivided loyalty of the one upon whom he looks as his advocate and his champion.7(b) may allow with informed consent 3. e.iv.2 II. CORRECT R 4. Plaintiff’s lawyers wish to informally interview Leroy about the frequent conversations he has had with Model State Motor’s general counsel over the last two years. 264) a. Conflicts: a..7 Comment 2: Current Client v. if not R 1. Grievance Committee v. municipalities Comment 16] 2. clients w/o ability to provide informed consent. All parties consent iii. R 1.13 (Entity) b. 33 . multiple criminal defendants. Consentable Conflicts 1.” 2. Former Client 1.Witness Conflict v. 3. until that business is finally disposed of in some manner.

He acquired your services. it’s a payment for availability (current client).4(c) 34 .2 Comment 7? b. e. If yes. Attorney must act when constituents are not working in organizations best interest or violating the law c. Attorney must explain he represent the corporation when he knows or reasonable should know the constituents interest is adverse g. Has the member personally paid fees i.7(b) followed. R 1. if you are hired to investigate wrongdoing.16 ii. but risky Problem 3. (c) – Discretion to disclose i. Are they represented by independent counsel or had the opportunity to be iii. (d) limits (c). Specialized representation 1. (f) – Conflicts i. What might establish a relationship with an individual partner a. Elements of: i. R 1. Attorney represents the entity not its components 1.9 does not require informing former clients if matters are not substantially related If there is a small matter with VS can the firm withdrawal from VS to accept GC in a more lucrative matter? a. If long history of representation shouldn’t drop them ii. 5. If purely financial shouldn’t Prospective waivers of conflicts a. “Hot potato” i. Exception to R 1.16(b)(1) i. Can represent an individual within the organization subject to R 1. If elements are not present  probably not enforceable a. you aren’t under obligation to report that e. Compatible with Rule 4. I: Who is the client? a. Has he met with the individual member and provided advice b. If fired or withdraw because of action still have discretion to alert the highest authority f. Can withdrawal be accomplished without a material adverse effect on the client? b. The partnership is the client. (d) – Investigation exception i.13 Representing a partnership 1. Exception to R 1. Can he get informed consent from each If VS is a former client what are your responsibilities? a. (e) – Termination exception i. Significant risk of material limitation ii.7 What is VS paid a general retainer? a. Is the member independently represented c. does the attorney have a reasonable belief iii. 8. Firm could represent both if R 1. (b) – Duty to inquire/report i. d. R 1. Otherwise probably not enforceable c. (a) – Organization is client i. Usually good only with sophisticated clients b. Problem 3-4 (b) i. 6. Avoid by clearly stating who you represent in your engagement letter 3. not the individual partners 2.6 if the activity is illegal or fraudulent and there is a reasonable certainty of substantial injury d. Run through R1. (g) – Multiple Representation i. 7. Informed consent iv.4.7 Analysis i. Sophisticated client ii. can’t represent GC If it is unclear and want to take on representation a.

Wyeth-Ayerst International Inc. 269) 1. Is it permissible to represent Clawson against former employer when the former employer is a member of an association that K&M represents? ii. means representation of all. Court looks at factors: i. ABA c. The association is the client.com in the 6th Circuit if it is advocating contrary positions for its other clients in District Court? a. Can the firm represent Disco against WAII. defendant fails to meet the burden of proof 3.4(d) i. firm want to make arguments at appellate level 1. Firm represents compuserve in the 6th circuit on FLSA. Is the firm disqualified from representing comperservices. This is a potential positional conflict i. Same or Overlapping ii. b. Facts & Circumstances Test i. Trademarks. Per se rule. Very important because of the confidentiality issue v. Restatement sec. v. Firm is not disqualified because there is only a potential conflict i. The standard expression of the showing one must make to prevail on alter ego claim is that “(1) there is such a unity of interest that the separate personalities of the corporations no longer exist. letterheads d. Officers iv. the member is not a. If the firm held itself out as independent counsel to individual members. and informed consent would be needed ii. Stratagem [p. Firm would be disqualified from representing adverse interest Problem 3. (p. Modern test: 1. The attorney seeking to represent an adverse interest has the burden of demonstrating no actual or apparent conflict or no diminution of vigor in representation c. Distinguish between potential and actual conflicts 1. Is a Per se rule the best approach? a. Burden of Proof: i. the firm represents other clients at DC level. Systems. Can bring an action iii. I: Who is the client? 1. Contra – alter ego test i. support vi. Potential – All right ethically 35 . email. 26 d. g. There is a duty of undivided loyalty b. communicates directly with the members. May the firm represent ACC in an action against Wilson Disk. Legal Department 1. when WAII’s sister corporation is a current client? a. If it were in the same court or in a court of equal authority in another jurisdiction there is an actual conflict. a client of the firm? a. a conflict with any member of a corporate group is a conflict with each member c.f. A firm taking opposing legal positions on behalf of different clients in different courts. and (2) inequitable results will follow if the corporate separateness is respected 4. McCourt [p. Discotrade Ltd. Court held that companies are so closely related that the representation of one. Westinghouse Exception (p. 268) 1. computer. a sibling corporation of Johnson Control. client’s” reasonable expectations Problem 3.273]. ABA Formal Opinion 95-390 b. I: Is the firm violating undivided loyalty to the client? 2. Board iii. i.4(e) i.273] b. promised the members confidentiality then if a reasonable belief in the members is created an attorney-client privilege exists a.

Firms cannot screen new attorneys to avoid this conflict v. or (b) the information is of such character that it would not have been unusual for it to have been discussed between lawyer and client during their relationship. j.18 36 . 2.5 i. Ask: a. i.1.9 i. or b. d. To determine whether a lawyer might have acquired relevant confidences. Former government attorney ii. Are the interest materially adverse to the previous client? b. Has the attorney acquired information protected by R 1.6 or R 1. a court should consider whether. f. e. R 1. R.1.9(b) 1. Confidentiality of information 2. Moving lawyer 2. (2) Restricting circulation of sensitive documents. (5) Implementation of screen before conflicted lawyer begins service at new firm or before firm accepted case creating the conflict.9(c) that is material to the matter iii.6 Imputation of Disqualification i. Screening allowed d. When can we assume that the lawyer received confidential information? 1. A lawyer’s disqualification from handling a matter is imputed to all the members of her firm. keys. ii. Rule 1. access codes. (3) Restricting access to files. Imputed Disqualification a. Same transaction or legal dispute. Are they substantially related? c.1.9(c) 1. R. Rule 1. The problem of the moving lawyer 2.10 i.0(k) a. Substantial risk that information from former representation would help the current client ii.. Effective screen: R 1. Written instructions to all employees: b.h. Information of a former client shall not be used to the disadvantage of the former client in the current matter 3.9(b) – informed consent [for screening] 2.9(a) 1.” iv.9 Comment 3 a.10(a) iii. Are the substantially related ii. including affidavits of compliance and sanctions for breach. Lawyers in the same firm have access to confidential information and share common financial interests c. Without informed consent cannot represent another person in the same or substantially related matter in which the matters are materially adverse 2. Are they materially adverse positions? b. “substantially related?” 1. Rule 1. Lawyer shall not reveal information relating to the representation except as the rules permit Problem 3. R. (1) Prohibiting of the discussion of sensitive matters. Actual Conflicts – Need informed consent RULE 1. “(a) the lawyer and the client ought to have talked about particular facts during the course of the representation. R.1. c. Firm – R. Firms can screen paralegals 1. etc.11 i.9(b) 1. Assume Reynor actively worked on matters in which new firm represented adverse parties— 1. Did she receive confidential information at the old firm relating to this representation? ii. g. R 1. Ask first: a. They are substantially related in this problem  Representation inappropriate Problem 3. Attorney would be disqualified and the firm would be under R 1. (4) Strong firm policy against breach.0(c) b.1.

Problem 3. However. Screening allowed 3. Favorable – attorney disqualified ii. Assuming informed consent and waived claims. Would fail R 1. Even if yes to just i. is representation appropriate? 1. Only adverse if arguing about something iii. Received confidential information related to the matter ii. Now with no-fault divorce this may not apply 1. Problem 3. Under common law divorce was adversarial therefore no multiple representation allowed ii. R. Lawyer cannot advocate unless 1. Most states view the insured as the client. Cannot be direct adversity (can’t have claims against each other) 2. HYPO: i. Do the parties have emotional independence 37 . Attorney is disqualified if: i. The testimony related o the nature and value of legal services 3. Question: 1. Matters are substantially related b.9 Insurance Defense Practice i. the lawyer may time the disclosure to minimize that possibility c. the lawyer may not withhold information to protect the lawyers interests or the interests of others m. Pursuant to Court order 3. If just paying there is confidentiality between the attorney and insured (R 1. not the company ii.i.7(b) n. Factors to consider in a divorce i. Additional obligations on insurance lawyer to protect 2. Do the clients understand and have they resolved potential competing claims ii. No. R3. Prospective clients ii.8 Representation of Multiple Plaintiffs in Tort Case i. Is the partner’s testimony necessary.9(c) k. Attorney’s reasonable belief that multiple representation is appropriate a. Judge has no obligation to inquire in a civil case ii.1. Insurance attorneys will separate issues into those which they can handle and those in which other counsel should be or is needed iii. Multiple representation requires full disclosure o.10 Family Practice i. The testimony relates to an uncontested issue 2. Whether the company is represented or just paying a. Disqualification of the lawyer would work substantial hardship on the client b. The Need for Independent Counsel 1. would probably be inappropriate under R 1. Attorney engaged in R 1. brother could sue for contributory negligence and brother cannot waive the insurance company’s claims a. Is the testimony helpful or prejudice? i. Will the firm be disqualified because a partner is on the list of witness 1.8 applies) iv.7 a. Changing Firms a.7 – Advocate – Witness Conflict i. The Need for Advocacy 1. Problem 3. Comment 7 a. Problem 3. A lawyer may withhold this information when: b.7(a)? i. Prejudicial – Firm and attorney disqualified l.4 . Does the firm have a duty to inform the client of the potential malpractice? 1.7(b) analysis to determine if he can represent husband and wife 1. Who is the client? 1.Communications 2. When the client may respond imprudently. R 3. If represented no confidentiality between attorney and insured b.

Alternative Dispute Resolution. knowingly assist or induce another to do so or do so through the acts of another. (c.1: Advisor In representing a client. Rule 2. CHAPTER 4: Ethical Issues in Civil Litigation: Limitation on Zealous Representation.1 Meritorious Claims i. Attorney’s responsibility a.) in pretrial procedure. Rule 3. assert personal knowledge of facts in issue except when testifying as a witness. except for an open refusal based on an assertion that no valid obligation exists. may nevertheless so defend the proceeding as to require that every element of the case be established. (b. In rendering advice. R 3.) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or to other law. economic.) unlawfully obstruct another party’s access to evidence or unlawfully alter. (c. 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.) make a false statement of material fact or law to a third person. that may be relevant to the client’s situation. A frivolous position is one that cannot be supported by good faith factual and/or legal arguments. FRCP 11 1. (e.) the person is a relative or an employee or other agent of a client. Claims being brought must not be frivolous 1.) engage in conduct involving dishonesty. a lawyer may refer not only to law but to other considerations such as moral. or (f.)commit a criminal act that reflects adversely on the lawyer’s honesty.) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law. (e. (b. and (2. deceit or misrepresentation. trustworthiness or fitness as a lawyer in other respects. A lawyer shall not counsel or assist another person to do any such act. counsel or assist a witness to testify falsely. (d. unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. A lawyer for the defendant in a criminal proceeding.1: Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding. [Restatement] c. or assert or controvert an issue therein.6 Rule 4.iii. The lawyers ability to be neutral Rule 1.) the lawyer reasonably believes that the person’s interest will not be adversely affected by refraining from giving such information.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client.) knowingly disobey an obligation under the rules of a tribunal. b.) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1. A frivolous position is one that a lawyer of ordinary competence would recognize as so lacking in merit that there is no substantial possibility that the tribunal would accept it. modification or reversal of existing law. allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.1: Truthfulness in Statement to Others In the course of representing a client a lawyer shall not knowingly: (a. the credibility of a witness. social and political factors. or (b. Rule 3. (d. unless there is a basis in law and fact for doing so that is not frivolous. the culpability of a civil litigant or the guilt or innocence of an accused.) violate or attempt to violate the Rules of Professional Conduct. Intro: a. or offer an inducement to a witness that is prohibited by law. Rule 8. Facts – 38 . destroy or conceal a document or other material having potential evidentiary value.) engage in conduct that is prejudicial to the administration of justice.) falsify evidence. which includes a good faith argument for an extension. unless disclosure is prohibit by Rule 1.4: Fairness to Opposing Party and Counsel A lawyer shall not: (a. and Delivery of Legal Services I.) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party. Frivolous Claim: a. or (f.) in trial.4: Misconduct It is professional misconduct for a lawyer to: (a. An action is not frivolous even though the lawyer believes the client’s position will ultimately fail. or state a personal opinion as to the justness of a cause.2: Communication with Person Represented by Counsel In representing a client. or the respondent in a proceeding that could result in incarceration. ii. fraud. a lawyer shall exercise independent professional’s judgment and render candid advice. Rule 4.

4.1 Frivolous Claims a.b. only the hotel’s attorney 1.801] iii. Was it proper for the hotel attorney to order the employees to not talk to anyone about the case? 1. If primarily results in the imposition of cost on the defendant. Probably cannot talk to kitchen employees because statements may be imputed to the hotel. Attorney files complaint alleging plaintiff was injured by the type of music that was played during her surgery. R 1. Conduct an investigation to determine if evidence and facts support 1. Is there evidentiary support for contentions or evidence (or for denying adversaries contentions)? ii. What if the hotel sent a letter to the employees telling them to not talk to anyone outside. What can the attorney who wants to advocate a novel theory do to minimize the risk of sanctions for filing a frivolous action? i. then proper 2. Is the employee authorized to speak on behalf of the organization [State Law] 3. rules do not apply to hotel managers v. What if client insists on brining this claim? III.1(a) i. Problem 4-2 a. Requires a good faith basis 2. i. must determine if there is evidence to support the matters to be alleged in the complaint or if evidentiary support is likely to be identified in discovery. Improper to order. Is the statement about a matter within the scope of the employee's duties [Federal Law R. Will it result in a vindication of the client’s rights? 1. R 8. the surgeon played heavy metal music and that damaged the nerves of her back and prevented complete recovery. may constitute an admission ii. must determine if legal contentions are warranted by existing law or by non frivolous arguments for change.1(b) i. Attorneys can talk to former employees unless seeking to obtain privileged information (R 4. could request iv. a. Even if the claim has a good faith basis. R 3. R 4. HYPO: 1. What if the hotel’s attorney advised the hotel to send the letter? 1.4(f) a. II.1: Communications Concerning a Lawyer’s Services 39 .e. must conduct a reasonable inquiry to make sure that the action is not being filed for an improper purpose [harass. R 2. Managerial employees 2. Suggest counseling 2. 4. Problem 4. “You want to go to Virginia and fight in the MMA?”) b. Analysis: i. Memorialize in Pre filing research memorandum b. but the clients interest is to embarrass (FRCP 11 still requires that claims be brought for a proper purpose a. Active listening (i. …or simply burden the other side? ii. improper ii.4) *** ADVERTISING Rule 7.4(a) prohibits.1 Counseling 1.3 1. Are the legal contentions warranted? 3. Was it proper for the investigator to attempt to interview hotel employees i. Duties prior to commencing civil litigation 1. R 3. cause unnecessary delay] Law – i. Is the document frivolous? 2.2 Comment 7 1. attorneys cannot get someone else to do something they cannot do vi. c. I: Are the employees represented? 2. Evidence – i. Convince client to not bring frivolous claim by counseling a. Whose statements will constitute an admission of the organization? 1.4(f) does not apply. If yes.

d. or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. Anyone you have a close relationship with xii. Rule 7. unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2). except as permitted or required by these Rules. if (i. (e. 40 . recorded 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 shall include the words “Advertising Material” on the outside of the envelope. (c.2(b) 1. Are the images they convey good for the profession? Is the information useful in helping consumers find an attorney or does it disparage a particular group R 7. and (ii. if: (1.) the client gives informed consent.) Every written.17. 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. or omits a fact necessary to make the statement considered as a whole not materially misleading Rule 7. (b.) the reciprocal referral agreement is not exclusive.) Prior to the conclusion of representation of a client. R 7. R 7.) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client.3(a) 1.) Subject to the requirements of Rules 7.) A lawyer shall not solicit professional employment from a prospective client by written. parent.) A lawyer shall not by in-person.) has a family. familial relationship.) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer. Non-solicitation a.8: Conflict of Interest: Current Clients: Specific Rules (a.) A lawyer shall not solicit any substantial gift from a client.) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer client or customer to the lawyer. telephone or realtime electronic contact even when not otherwise prohibited by paragraph (a). b. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority.) Notwithstanding the prohibitions in paragraph (a). close personal. For purposes of this paragraph. (3.) is a lawyer. grandparent.) A lawyer shall not provide financial assistance to a client in connection with the pending or contemplated litigation. or prior professional relationship with the lawyer (b.) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content. if any.) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership. (d. Is the information truthful? viii. including a testamentary gift. and (4. security or other pecuniary interest adverse to a client unless: (1.) the client is informed of the existence and nature of the agreement (c. and (3.A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.) a lawyer representing an indigent client may pay court costs and expenses on behalf of the client.) the solicitation involves coercion. and (2.1 vii. recorded or electronic communication or by in-person.) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction.) pay for a law practice in accordance with Rule 1. Mail and electronic advertisements must be labeled “advertisement” Rule 1.) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent. duress or harassment (c.3 xi. (b. including whether the lawyer is representing the client in the transaction. (d. A communication is false or misleading if it contains material misrepresentation of fact or law. BUT. Friends iii. or other relative or individual with whom the lawyer or the client maintains a close.) a lawyer may advance court costs and expenses of litigation.) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service.) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may (1.3: Direct Contact with Prospective Clients (a. R 7. Are they misleading? ix. grandchild.3. a. lawyers may have mutual referral agreements (but need to inform the client of the reciprocal agreement) R 7. Lawyer may not give anything of value to a person for recommending the lawyers services a. R 7.2 x. or (2. in a writing signed by the client. Exceptions: i.1 and 7. possessory.) pay the reasonable costs of advertisements or communications permitted by thus Rule. child. (2. and at the beginning and ending of any recording or electronic communication. unless the person contact: (1. c. except that: (1. the repayment of which may be contingent on the outcome of the matter. live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so it the lawyer’s pecuniary gain.3(c) 1. a lawyer may advertise services through written. Family ii. related persons include a spouse.2: Advertising (a. (2. a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit membership or subscription for the plan from persons who are not known to need legal services in a particular matter covered by the plan. to the essential terms of the transaction. or (2. recorded or electronic communication including public media.

1.6 (g.) contract with a client for a reasonable contingent fee in a civil case. Attorney persuades Investor to let Attorney purchase $150. Investor is the president and sole shareholder of Sundown.8. b. R. After the commencement of the representation Larry purchases 100 share of WWA Associates stock from Marvin.) the client gives informed consent (2.) While lawyers are associated in a firm.000 to complete the construction of a parking lot.8 deal with the categories of conflicting interests that are prohibited irrespective of the analyses we might perform pursuant to Rules 1. b. [Business relationships other than an attorney-client relationship] iii. The transaction is fair and reasonable.) Settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. Maintain an appropriate balance of power between the lawyer and the client. The rules should be interpreted with these policies in mind. shall apply to all of them. i. there is full disclosure. Inc. RULE 1. (c) Attorney’s conduct is proper unless Attorney represents Sundown in the stock purchase transaction.) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client. in a writing signed by the client. CORRECT b.. RULE 1.) information relating to representation of a client is protected as required by Rule 1. and (3. R. Protect clients during periods of vulnerability. Larry Lawyer represents Clara Client in Clara’s efforts to purchase the WaterWorld Amusement Park from WWA Associates. Business relationships [any business interest or transaction] with clients are prohibited unless: ii. except that a lawyer may: (1. insure that the lawyer is always acting in a fiduciary capacity with respect to the clients interests. and (2. unless each client gives informed consent. the ones that are not considered “personal” conflicts. (j.) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship.8(b) – Using client information to client’s disadvantage i. The terms are fair and reasonable. Rule 1.) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients. a member of Larry’s bowling league.000 at the current normal rate of interest.) A lawyer shall not: (1. QUESTION: 1. a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them.8(a) – Business transactions with clients i.10 Imputation. Sundown has run out of funds and needs $150. III. i. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement (h.) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently responsible in making the agreement.) acquire a lien authorized by law to secure the lawyer’s fee or expenses. generally. Investor has asked Attorney to lend Sundown $150. IV. Instead. and the client fully understands the terms of the transaction iv.) A lawyer shall not accept compensation for representing a client for one other than the client unless: (1. d. or (2.(f. 41 . (b) Attorney’s conduct is proper because Attorney has not acquired a proprietary interest in Sundown’s claims. a. c. The client has been advised in writing to seek independent counsel v. (d) Attorney’s conduct is proper if Attorney advises Sundown in writing to seek the advice of independent counsel on the transaction.9 and 1. a consensual sexual relationship existed between them when the client-lawyer relationship commenced (k. Protect the integrity of the lawyer-client relationship. (a) Larry’s behavior is permissible under the Bioron exception.8: a. (a) Attorney’s conduct is proper because the Rules of Professional Conduct do not govern a lawyer’s business activities.8 I. The client provides informed consent vi. (i. everything is in writing. One year ago at the request of Investor. a corporation organized for the purpose of developing a shopping mall. Some of these conflicts will also be subject to Rule 1.000 worth of stock in Sundown. that the lawyer never engages in activities that would encourage the lawyer to place her interests above the clients. The purpose of these rules is to: a.) A lawyer shall not have sexual relations with a client unless.e.1. Attorney is Sundown’s counsel of record. d. 1. c. Attorney incorporated Sundown. Inc. II. or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas.

8(e) – Financial assistance to clients i. 4. Other than advancing court costs and litigation expenses. (c) Counsel may not prepare the revised will but a member of his firm may do so.1. 1. 1. (c) Lois may not enter into the contract with Fox News because it would constitute ineffective assistance of counsel. a. Lawyer prepares an instrument for a family member ii. a.8(i) – Proprietary interests in client claims i. Recently Sylvia asked Counsel to revise her will and to include a substantial bequest to Counsel’s daughter to further her education. creating a concurrent conflict between himself and the client. 4. A lawyer may not prepare any document which provides a gift or bequest to the lawyer or to a person related to the lawyer 1. 42 . (a) Lois may enter into the contract with Fox News. (b) Larry’s behavior is permissible if Larry does not believe that there is any material limitation on his ability to represent Clara.8(k) – Imputation of prohibition iii. Literary and Media Rights [prior to the conclusion of representation] 1. Clifton Counsel has represented Sylvia Stone.8(h) – Prospective limitations of malpractice liability i. 3. Prohibited ii. 4. the lawyers interest in the matter would enable her to participate in establishing the goals of the representation iii.1. R. CORRECT R.8(g) – Aggregate settlements i. Confidentiality is maintained R. (c) Larry’s behavior is not permissible because Marvin has not provided his informed consent.1.1. d. Wanda has provided her informed consent to this agreement. e. h.g. Lois Lawyer is defending Wanda in a trial for the murder of Wanda’s ex-husband. Exceptions a. (b) Counsel may prepare Sylvia’s revised will to provide the bequest. f. his father’s second wife for many years. 3. R. (d) Counsel may prepare the will only if it includes an insignificant bequest to his daughter. Client gives informed consent ii. Exception a. Your long standing client wants to remember you in her will. (d) Larry’s behavior is not permissible.8(c) – Client gifts to lawyers i. Arbitration agreements R. The lawyer may not accept an settlement on behalf of multiple clients unless each is fully informed of the terms and agrees. a. an attorney may not subsidize a client’s living expenses R. Difficulty in firing the attorney if the lawyer owns part of the claim 2.. Client [sophisticated] independently represented by counsel b. The judge has denied the Media’s request that the trial be televised. (b) Lois may only enter into the contract with Fox News if Wanda receives 33% of the fee. the transcript of which will not be released until the trial has concluded. giving informed consent in writing. Creates conflicts of interest between with lawyer and the client.8(f) – Payment of fees by non client i.1. i.8(d) – Literary or media rights i. e. 2.1.1. Prospective limitations of Malpractice liability. Fox News has offered Lois a substantial sum if she will wear a concealed microphone to the proceedings.c. [Larry has used confidential information for his personal benefit and has become a potential seller of the shares that his client is attempting to acquire. Proprietary interests in claims or litigation ii. 2. R. settling malpractice claims of unrepresented client or former client [must advise in writing of the desirability of seeking counsel] 1. (d) Lois may not enter into the contract with Fox News because it creates a concurrent conflict.1. Paying party does not interfere with lawyer’s profession judgment or with the lawyer-client relationship iii. CORRECT 3. (a) Counsel may not allow Sylvia to make a substantial bequest to his daughter. g.] R. can another member of your firm prepare it? 1.

Liens .8(j) is personal and is not imputed to other lawyers in the firm 1. a multi millionaire rock star and film idol. 43 .which give the attorney a right to payment from the proceeds of the client’s claim b. (c) Jackie may not have a sexual relationship with Walt. all R. (d) Jackie may begin a sexual relationship with Walt if she provides notice to her firm and the opposing party. CORRECT 4. (a) Jackie may not have a sexual relationship with Walt until Walt’s divorce is final. Generally.8 conflicts will be imputed to members of the lawyer’s firm or practice group. Imputation of Prohibitions ii. Prohibited unless the relationship predates the representation.j. 3.1. has fallen in love with Jackie. 1. Jackie Juarez is a divorce attorney. (b) Jackie may begin a sexual relationship with Walt as long as there is no interference with her professional judgment and as long as she keeps the client’s information confidential. R. Contingent fees R. k. 2.1.8(k) – Imputation of Prohibitions i. a.1. Exceptions a. R. ii. One of her clients. 1.8(j) – Sexual relations with clients i. Walt Waters. Exception 2. 1.