Ethical Lawyering Outline – Fall 2010
 When you receive a doc and know or reasonably should know that it was inadvertently sent,
you shall promptly notify the sender (MR – no CA rule)
Making decisions for client – like conservatorship
 MR – activist view – atty independent moral actor - can substitute your judgment for clients
 CA rule – conservative rule – permits lawyer to seek a guardian for a client when the lawyer
reasonably believes the client cant act in his best interest (CA more protective)
3 key principles
 1. Honesty
 2. Loyalty - You’re an agent to your client
 3. Confidentiality - Duty not to disclose but have to be a judicial officer
Lawyers Primary functions
 1. Representative of client
 2. Officer of legal system
 3. Public citizen w/ special responsibilities
Primary Duties
 Competence - Diligence - Promptness
 Communicating with your client
 Confidentiality
 Self-governing profession



M.R– lawyer cant tell a client to engage or assist client when lawyer knows what he is doing is
criminal or fraudulent – but a lawyer can discuss the consequences of any proposed course
CA has similar rule
Cant produce false documents – cannot mislead
Discipline
 Ca bar disciplines lawyers- do it through proceeding
 When applying- lawyer has the burden of proof
 For disciplinary proceeding, bar has the initial burden
 Apply for reinstatements, burden falls back to you
 If you have been disciplined, you have to tell your clients, courts, opposing counsel
Requirements for admission to the bar
 18
 Good moral character
 2 yrs of college or equivalent
 Register w/ committee of bar examiners
 Complete legal education
 Pass bar and MPRE
1
Good Moral character
 Honesty – Fairness - Candor
 Observance of laws - Respect rts of others and judicial process
- Kwasnik – he was in an accident a long time ago, someone died, ca still admitted him
- Mountain – taking money from another co for adoption and told one family that the adoption
didn’t work out bc atty was making more money from another family – bar disbarred him
- Drociak – atty signed and sent in verifications when his client wouldn’t respond – turns out his
client was dead – bar suspended his license
Misc





If you are convicted of a crime, doesn’t mean you lost your license automatically
You have the burden of showing good moral character
Political beliefs or civil disobedience doesn’t matter – you can still be part of the bar
If as an atty you are asked to support one’s application, and you know that person doesn’t
have good moral character, you cant support that person
You must join the CA bar but you don’t have to join associations like ABA
Having Licenses before federal court
 Some require you to be a member for x years - Some require sponsorship
 9th cir – have to be a member of the bar in any state
 USSC – 2 ppl who are barred in USSC have to sponsor you
 If disbarred from state doesn’t automatically disbar you from fed ct
 Fed ct can discipline you even if state ct hasn’t
Practicing where you are not licensed
 Basic rule – practice only where licensed
 MR – if you are not admitted in that state,1. cant establish an office there or 2. hold out that
you are admitted to practice, 3. cant establish systematic and continuous presence
 CA – cant practice in CA unless member
 You are not required to become a resident of any other state to be licensed there
 MR – if licensed in another state, you can provide on temporary basis – if associated w/
another atty who is licensed and related to potential pending matter/adr than atty can appear
Practicing in States
Practicing in CA but not a member
 Must have an office in another US state – make clear that not a member of CA
 Already be retained by the client or give advice to a potential client
 be an active member in good standing in another state
Permissible Activities
 formal legal proceeding that is pending in another jur and where atty is authorized to appear
 2. formal legal proceeding that is anticipated but is not yet pending (or in another jur)
 Attys’ supervisor is authorized to appear or reasonably expects to be authorized – so you are
an associate and your partner is going to get the pro hac
2
Restrictions
 Holding yourself out to the public
 Maintaining an office
 Resident of ca
 Regularly employed in CA
 Regularly engaged in substantial business/professional activities
 Cant be disbarred or suspended in that other jurisdiction
Outside CA attys engaging in arbitration
 Allows outside attys to deal with arbitration if for temporary basis
 Fill out certificate and follow guidelines
 Cts want to encourage adr
Misc



If CA atty and get in trouble in another state, that other state and CA can discipline you
MR 7.5b – can have multiple offices in difft states but letterhead has to indicate what attys are
licensed in what states
CA– cant make untrue, false or deceptive statements including firm names
Misconduct
MR
 misconduct if
o Commit a criminal act that reflects adversely on the attys honesty, trustworthiness or
fitness as a lawyer in other respects
o engage in conduct involving dishonesty, fraud, deceit or misrepresentation
 atty knows another atty has committed a violation of rules of prof conduct that raises a
substantial question to his honesty, trustworthiness or fitness - atty shall inform the
appropriate professional authority
o Doesn’t have to report it if subject to atty-client privilege
CA – misconduct if
 conviction of a felony or misd involving moral turpitude
 commission of any act involving moral turpitude, dishonesty or corruption
 have to self report if:
o file 3 or more lawsuits against atty for malpractice, prof wrongful conduct in 1 yr
o Entry of judgment in civil case against atty for fraud, misrepresentation, breach of
fiduciary duty or gross negligence
o Judicial sanctions against atty of 1k or more
o Indictment or information of a felony against atty
o Any conviction, guilty plea of misd
o Discipline by prof or occupational disciplinary agency
3
Representation - Duty to Accept
 MR – lawyer’s rep of client doesnt constitute an endorsement of the client’s political,
economic, social or moral views or activities
 atty doesn’t have to accept every case – not public utiliy
 atty cant avoid appointment by tribunal unless
o Representing client will likely result in violating rules of prof conduct
o Unreasonable financial burden on the lawyer
o Client or case is so repugnant to the lawyer that its likely to impair the client-lawyer
relationship or lawyers ability to rep client
 If appointment by judge and want to resign, have to show a good faith basis why
CA or MR
 illustrations when lawyer would be subject to discipline for accepting or continuing
o Will violate rules - Mental/physical condition impairs effectiveness
o Frivolous position - Not able to pursue with diligence and promptness
o No probable cause and to harass/maliciously injure
CA Rules re accepting cases
 cant discriminate in accepting/terminating based on race, sex, ect
 cant for “personal considerations” reject the cause of defenseless or oppressed
 must follow court orders
Withdrawals
Mandatory Withdrawal
 Mandatory withdrawal– MR
o rep will result in violation of the rules of prof conduct
o mental/physical condition materially impairs ability to represent client
 Mandatory – CA – must withdraw if
o Client bringing action w/o probablw cause and for purpose of harassing/maliciously
injuring a person
o Member knows/should know employment will result in violation rules or of state bar rules
o Attys mental/physical condition renders it “unreasonably difficult” to carry out
employment effectively [in CA – not materially impairs but “unreasonably difficult” ]
Permissive Withdrawal
MR – Permissive Withdrawal
 withdrawal can be accomplished w/o material adverse effect on interests of client
o Client persists criminal or fraudulent conduct involving attys services
o Client has used lawyers services to perpetrate a crime or fraud
o Client’s objective is repugnant to attys beliefs or has a fundamental disagreement
o Client fails to fulfill obligation to the lawyer re lawyers services and has been given
reasonable warning that lawyer will w/draw if obligation not fulfilled
o Rep will result in unreasonable financial burden on lawyer
o render unreasonably difficult by client
o catch-all: Other good cause for withdrawal exists
4
CA Rules – Permissive Withdrawal
 Client insists upon claim/defense not warranted under existing law AND no good faith
argument for extension, modification, or reversal
 Client seeks to pursue an illegal course of conduct – tells atty to do so
 Client renders it unreasonably difficult to carry out employment effectively
 Client insists, in matter not pending before tribunal, that lawyer engage in conduct contrary to
lawyer’s judgment and advice, but not prohibited under rules
 Client breaches an agreement/obligation re fees/expenses
 Continued employment is likely to result in violation of rules or State Bar Act
 Inability to work with co-counsel indicates best interests of client likely served by w/drawal
 Lawyer’s mental/physical condition renders it difficult to carry out employment effectively
 Limited catch-all – lawyer believes in good faith, in a proceeding before a tribunal, that
tribunal will find existence of other good cause
Client’s Right to Discharge
 Discharge = mandatory withdrawal
 Client’s rt not absolute – ct can refuse to dismiss atty to avoid prejudice
Client’s Liability to Atty upon Discharge
 Attys entitlement to quantum meruit recovery limited to max fee set in k
 In contingency fee case, atty’s claim for fee doesn’t accrue until occurrence of contingency
 MR – you will get paid according to k – so if your minimum is 5k and you spent 1k on expenses,
you will get paid 6k
Avoiding Prejudice upon Withdrawal
 MR 1.16d – when w/draw – have to protect interests of client
o Avoid reasonably foreseeable prejudice
o Provide client w/ reasonable notice/time to retain counsel
o Promptly release client papers and property
 Still owe a duty of confidentially
 The less a court will let you w/draw if you knew about the financial situation
Holmes – client verbally abusive and owes money and wont pay – ct accept attys motion to withdraw
Kriegsman – very close to trial, atty knew of financial hardship of client – ct dismisses motion to
withdraw
Rosenburg – in CA – paid what is on the contract and only after contingency paid
Implied atty-client relationship
 Atty-client relationship can be implied if you talk to a prospective client
 Questions to ask:
o Did you volunteer your services or agree to investigate
o Did person ask for legal advice and you gave it - Was confidential info disclosed
o Did you listen to his whole story
5

To avoid an implied relationship
o Don’t provide services w/o an express retainer agreement limiting rep
o If you are consulted in a non-office setting, immediately suggest an appt
o Don’t leave a client dangling - Write a non-engagement letter
Competence
 2 factors: 1. Requisite ability and 2. Requisite care
o Need the knowledge/skill – need thoroughness/representation
 MR Rules: competence requires: legal knowledge – skill – thoroughness - preparation reasonable
necessary for representation
 CA Rules: competence requires: diligence - learning and skill – mental, emotional, and physical
ability reasonably necessary for performance of legal service
 CA v. MR
o CA – member shall not intentionally, recklessly or repeatedly fail to perform legal services
w/ competence
o MR – atty shall provide competent representation to client
Diligence:
 MR:
o Shall act w/ reasonable diligence and promptness
o Should pursue a matter despite opposition, obstruction or personal inconvenience
o Act w/ zeal in advocacy
o Control workload to handle w/ matter competently - Don’t procrastinate
 CA – competence means to apply diligence
Communication – Promptness is Key
 MR:
o Promptly inform of any decision/circumstances when informed consent is required
o Reasonably consult about means by which objectives are to be accomplished
o Keep client reasonably informed about status
o Promptly comply w/ reasonable requests for info
o Explain matter reasonably necessary for client to make decision
o Promptly communicate settlement offers
o Must explain actions if couldn’t consult w/ client
 CA:
o Much less specific – no discipline for failing to communicate insignificant info
o Keep client reasonably informed re significant developments including promptly
complying w/ reasonable requests for info and copies of significant docs
 CA does have obligations re settlement
o Promptly communicate all offers made in criminal matters
o Promptly communicate written offers in other matters
o All offers must be communicated (difft than MR)
o Even oral offers in civil offers should be communicated if significant
6
Malpractice Theories
 Intentional tort - Breach of fiduciary duty (ex – confidences)
 Breach of k - Negligence
Malpractice Ins
 Attys don’t have to have malpractice ins
 CA – if anticipate that work will exceed 4 hours and don’t have malpractice ins – have to tell your
client in writing
Misc
 Attys have a duty to supervise
o CA – competence include supervision
 Cant give % of contingency fee to non-attys if they bring in clients
Multi-Disciplinary Practice
 Ex: attys, accountants, engineers and economists creating a common firm
 Cant share fees w/ non-attys
 Cant create partnerships btwn attys and non-attys
Confidentiality
MR
 Cant use confidential info to disadvantage of the client
 Duties to former client
o Cant represent another client that is adverse
o Cant use the confidential info to hurt the former client
 Truthfulness in statement or others – cant make false statement
CA
 May not reveal confidential info of a client or former client
 Trial conduct – cannot lie to the tribunal
 Deceit or collusion w/ intent to deceive ct – misd
Revealing Info
MR – shall not reveal info relating to rep unless: 1. Client gives informed consent, or 2. Disclosure is
impliedly authorizes or 3. Exception applies
 Exceptions
o prevent death/bodily harm to another
o prevent crime/fraud involving atty’s services
o if in dispute w/ the client – establish claim/defense
o comply w/ other law or court order
CA – shall not reveal info w/o informed consent of client except:
 atty reasonably believes it necessary to prevent death/substantial bodily harm to an individual
 Member can try to convince client not to commit act
o Difft than MR bc exception includes financial harm and to have a defense – not in CA
7
Washington v. Olwell – client in criminal case gave his atty the weapon – atty refused to turn it over
due to atty-client privilege – ct said that this is a criminal case – public concern – atty has to turn over
the weapon to the prosecution bc it is crucial evidence – but prosecution shouldn’t tell jury how they
got the weapon
People v. Meredith – murder case – investigator took the wallet of the deceased from the trashcan
behind client’s house – ct rules that bc investigator removed the wallet and prosecutors could never
find it now, they can use the location as evidence in trial
INTERVIEWING
Decision Making Models
 Lawyer-Centered
o Very little client input – role of client is passive
o Lawyer has primary responsibility for problem-solving and decision-making
 Client-Centered
o Client calls all the shots – client dominant
o Premium on autonomy, intelligence, dignity and basic morality of individual client
 Collaborative
o Client controls decisions but atty structures process and provides advise
o Promotes rapport btwn atty and client - Atty regularly solicits client input
o Atty proposes options and solutions based on client input
o “Professional friend”
Interviewing and Counseling Check List
 1. Establish a professional and interpersonal relationship w/ your client
 2. Obtain info relevant to your client’s situation in an effective way
o Understand facts - Be empathetic and understand concerns
 3. Prepare yourself to discuss situation in terms of the applicable law
 4. Identify and analyze potential courses of action and evaluation benefits, risks and costs
 5. Advise client of potential course of action including benefits, risks, costs
 6. Decide w/ your client on the course of action to be taken
 7. Implement problem resolution strategy explaining your role and client’s role – dates/deadlines
 8. If you don’t take case – prepare non-engagement letter
During the interview
 Avoid interrupting client – take notes for follow-up
 Encourage client to share underlying interests, needs, feelings and concerns
 Hear what client has to say w/o passing judgment
 Need to understand client objectives
 Giving preliminary advice
o 1. Protective advice: Don’t talk to others about case – preserves docs
o 2. General overview of relevant legal considerations
 Elements of claim - sol
o 3. Overview of potential options or courses of action
8
Post meeting
 After initial meeting, if you agree to represent them – specify next steps and when accomplished
 Then establish fee agreement and send in reasonable time
 Make plan for next meeting, get all contact info, write memo to file and docket all key dates
 Can limit scope of atty’s role
Factors that encourage or discourage ppl from willingly providing info
 facilitators
o empathetic understanding – don’t interrupt, eye contact - active listening
o encourage communication – convey expectation and recognition
o keep open mind about what is relevant
 inhibitors
o ego threat – fear of embarrassment; case threat – fear of hurting case
o anxiety, tension and trauma - etiquette or cultural barriers
o role expectations or perceived irrelevancy - greater need - body language
Types of Questions to ask client
 open – like direct examination
 follow up – for clarification
 closed – clarifying details
 leading- like cross examination
 summary
Info Gathering Technique
 timeline
 strategic use of silence
 failed memory probes
 use writings/demonstrations to recreate events
Ethical Limits re interviewing witnesses
 shall not communicate about subject of representation w/ a person you know is represented
 shall not knowingly make a false statement of material fact/law to a third person
 shall not engage in conduct involving dishonesty, fraud deceit or misrep
 shall not state or imply to an unrepresented person that you are disinterested or give legal advice
if you know or reasonably should know of a reasonable possibility of a conflict
 shall not request that a person other than a client refrain from voluntarily giving relevant info to
another party unless
o 1. Person is a relative, employee or agent of client
o 2. Atty reasonably believes that person’s interests will not be adversely affected by
refraining from giving such info
 Shall not falsify evidence, counsel or assist a witness to testify falsely – or induce to do same
Cautions
 Don’t solicit privileged info from former employee
9
Attorney-Work Product
 CA – writing that reflects atty’s impressions, conc, opinions or research is not discoverable in any
circumstances - Absolute protection
 Work product of atty not discoverable unless ct determines denial will unfairly prejudice the party
seeking disc in preparing for defense/claim - Qualified protection
 Protected Material
o Derivative/ interpretative – brain work – created by atty for client that reflects atty’s
evaluation or interpretation of law/facts
o Charts/diagrams prepared for trial
o Audit reports or compilations of entries in docs
o Appraisals, opinions or reports of consulting experts
 Not Protected
o Nonderiviative/evidentiary:
o Identity/location of physical evidence or witness
o Statements independently prepared by witness
o Above doesn’t become work product simply by sending to atty
 Why do we protect work product
o Preserve rt of atty to prepare cases – look at unfavorable parts of the case too
o Prevents attys from taking undue advantage of opposing counsel’s work
Coito
 Witness to a drowning – atty records those statements and opposing counsel wants copies
 Issue: “[W]hether the statement of a witness, taken in writing or otherwise recorded verbatim, by
an attorney, is entitled to the protection of the California work-product privilege.”
o Trial ct: such statements are qualified work product; absolute protection; but if witness
was deposed then statement must be produced
o Appellate ct: statements are not protected and discoverable; list of witnesses not
protected
- Safety net would be to do a in camera review
o Going to the CA supreme court
 Case now sets forth caution – hold off written/recorded statements – limit detail of notes
AVENUES TO TAKE IN CASE
 Criminal - Plea, no contest, plea bargain, trial
 Civil - Negotiation, mediation, arbitration, settle, litigation
 For settlement – should know client’s target and resistance points
ADR - arbitrations/mediations can be voluntary or court ordered
 advantages:
o potential to save money/time - increased flexibility/control – confidentiality
o chance to tell story - potentially reduced stress and increased satisfaction
 disadvantages
o fewer evidentiary/procedural protections - limited recourse – no legal precedent
o generally less discovery - evidence/strategy may be revealed
10
Fee Agreements
 in CA – requires written agmts where “reasonably foreseeable” that total expense over 1k
 MR – recommends but doesn’t require written fee agmts – but necessary for contingency fees
 Cant have unreasonable fee or unconscionable fee
 MR looks at
o Time/labor required
o Fee customarily charged for similar legal services in local areas
o Amt involved and results obtained - Time limitations
o Nature/length of professional relationship w/ client
 CA does look at fee customarily charged in the community – but does look at
o Amt of fee in proportion to value of services
o Relative sophistication of atty/client
o Novelty/difficult of questions raised and requisite skill required
o Client’s informed consent
 In CA – have special rules for contingency fees
o Must state in writing that fee is negotiable btwn atty and client
o Failure to comply renders agmt voidable at option of pltf
 Both CA and MR –allow fee amount to be more if amt in controversy is more
Trust Accounts and Client Prop
o Atty has to keep funds in separate acct
o Other prop shall be identified and safeguarded
o If client asks you to hold prop – should hold it w/ care of “professional fiduciary”
o Promptly notify client when receive funds or prop
o When atty and another claim interest in prop possessed by atty, that prop should be kept
separate until dispute resolved
o When funds belong in part to client and atty, atty must withdraw funds at earliest
reasonable time after attys’ interests become fixed – disputed portion cant be withdrawn
until issue resolved
Misc
 Atty cant represent client on contingency fee if atty gets % of prop settlement
o MR – no rule in CA but caselaw – cant have contingency fee which promotes divorce – it
sets forth a conflict of interest
 Atty advancing costs
o Atty may advance ct costs/expenses in litigation – repayment can be dependent on
outcome of the case
o CA – atty may advance reasonable costs of litigation/preparation or providing any kind of
legal fees and repayment may be contingent on results
 Can atty lend money to client to make ends meet
o MR – prohibited in connection w/ pending or contemplated litigation
o CA – atty can do this if
 After atty is retained - Client agrees in writing to repay loan
 Conforms w/ other rules such as full disclosure
11
CONFLICTS
Model Rules
 Conflict = representation of one client will be directly adverse to another client
 Significant risk that the representation of one or more clients will be materially limited by
o Lawyer’s responsibility to: 1. Another client, 2. Former client, 3. 3rd person
o Or by personal interest of the lawyer
 Lawyer can still represent client despite conflicts if the following are satisfied
o Atty reasonably believes will be able to competently and diligently represent client
o Representation is not prohibited by law
o Representation doesn’t involve asserting a claim by one client against another
represented by the atty in the same litigation (or proceeding before ct)
o e/ client gives informed written consent
 follows a reasonable lawyer standard
o would a reasonable atty looking at facts conclude that client’s interests would be
adequately protected in light of conflicts? if not – conflict is unconsentable
 no such thing in CA
 informed consent in MR = agmt by a person to a proposed course of conduct after the atty has
communicated adequate info re material risks of and available alternatives
California
 if any conflict arises – writen disclosure is necessary and informed written consent required
 written disclosure required if
o atty has legal, business, financial, professional or personal relationship w/ a party or a
witness in the same matter
o atty knows or reasonably should know that
 he previously had a legal, business, financial, profession relationship w/ a party or
witness in the same matter and
 that relationship would substantially affect her representation
o atty has or had a legal, business, financial, professional or personal relationship w/
another person or entity the atty knows or reasonably should know would be affected
substantially by resolution of this matter
o atty has or had legal, business, financial, professional interest in the subject matter of
representation
 disclosure means informing the client or former client
o the relevant circumstances
o actual or reasonably foreseeable adverse consequences
 informed written consent required when
o atty has multiple clients in a matter w/ actual or potentially conflicting interests
o atty represents clients in difft matters where clients’ interests are directly adverse
o atty representing 2 or more clients enters into an aggregate settlement of the claims of or
against the clients
o atty wants to accept new employment adverse to former client if she has confidential info
material to the employment
 informed written consent means:
o client’s or former clients’ written agmt to the representation following written disclosure
12
Interference w/ third parties
 atty behavior involved: loyalty, confidentiality, competence, independent judgment
 Payment to Atty by third party
o MR - Atty shall not accept compensation from 3rd party unless
 Client gives informed consent
 No interference w/ atty’s independence of professional judgment or w/
client-atty relationship, and
 Confidential info protected
o California - Atty shall not accept compensation from 3rd party unless
 Written consent required
 Not intended to abrogate existing relationships btwn insurers and insureds
whereby insurer has contractual rt to unilaterally select counsel for insured,
where there is no conflict of interest
Corporations
 Client is the corporation, not the officers, directors or shareholders
 SOX – attys working on securities matters for public companies must report evidence of a
material violation up the chain
o Dealing w/ sec and securities litigation
o Security attys must report credible evidence that client is violating federal or state
securities laws to the board, audit committee, or outside directors if chief legal officer or
ceo doesn’t achieve an appropriate response during investigation of potential violations
 Atty should explain to organization’s officers when atty knows or reasonably should know that the
organization’s interests are adverse to those of the org’s w/ whom atty is dealing
 If doesn’t agree w/ what a member of the org is doing, should go to the board or higher authority
 If member of org asks atty to conduct improper act, atty MAY reveal info whether or not MR
permits such disclosure, but only to the extent atty reasonably believes necessary to prevent
substantial injury to the organization
o Atty may resign here
o If highest authority also asks for improper behavior, atty may resign
o But atty still cant reveal confidential info
CONFLICTS BTWN ATTY’S INTERESTS AND CLIENT’S INTERESTS
 Significant risk that the representation of one or more clients will be materially limited by
o Personal interest of lawyer
Model Rules – CA rules are similar
 MR – atty cant get into business w/ client or have interest adverse to business of client unless
o Transaction/terms the atty gets into w/ client are fair and reasonable
o Fully disclosed in writing and client gives informed written consent
o Client is given reasonably opportunity to see independent counsel on the transaction
 Atty cant use info re representing client to disadvantage him unless client gives informed consent
 Atty cant solicit gift from client unless client is related to the donee
 Atty cant make media rts based on info relating to representation of client
13



Atty prohibited from acquiring a financial interest in the subject matter of the litigation that atty
conducts on behalf of client
o CA – doesn’t explicitly prohibit this if there is written consent
Contingency fee is one of the exceptions to the rule prohibiting the acquisition of a financial
interest in the subject matter of a litigation
o So atty can get 30% interest in land if client wins the land – this is ok
Atty as executor - MR/CA – atty not prohibited from seeking to have atty or partner/associate in
firm named as executor of client’s estate
Preparing Docs
 MR – atty cant prepare real estate docs or a will that give atty the property or a gift
 CA – prohibits inducing the client to make the gift, the dangers of fairness and undue influence
caution against such gift
Sex/Relations
 MR – prohibits sexual relations w/ client unless relationship predated the representation
 CA – atty shall not continue representation of a client w/ whom the atty has sexual relations if
that intimacy causes the atty to perform incompetently
o Bans sex w/ client when it’s demanded as condition of employment
 Such sexual activities by atty shall be a cause for imposition of discipline
o Makes exception when the sex is btwn an atty and his/her spouse or where there is an
ongoing consensual relationship predating the atty-client privilege
 CA – if opposing counsel is atty’s spouse, parent, child or sibling – atty cant represent client unless
atty informed client in writing of relationship [Doesn’t relate to the whole firm]
ATTY AS WITNESS
 Model Rules
o Cant be atty at trial if atty is likely to be a necessary witness unless
 Testimony relates to an uncontested issue
 Testimony related to the nature and value of legal services rendered in case
 disqualification of atty would work substantial hardship on client
o atty may act as an advocate in a trial in which another atty in the atty’s firm is likely to be
called as a witness
o if atty’s testimony would harm client, then atty should tell client not to use her as an atty
anymore bc her testimony will harm her
 such disqualification would also include disqualification of other attys in the firm
unless they have written consent from client
 but if there is financial hardship, then maybe partner in other firm would be able to
represent client
 California
o Rule only applies to testimony before a jury
o Cant act as atty if testify before jury unless
 Testimony relates to uncontested matter
 Testimony relates to nature/value of legal services
 Atty has informed, written consent of the client
14
Conflicts with Former Clients
 Model Rules
o cant represent client whose interests are materially adverse to a former client in the same
or substantially related matter unless the former client gives informed written consent
o Shall not knowingly represent a person in the same or substantially related matter in
which a firm w/ which atty formerly was associated had previously represented a client
 Where former client’s interests are materially adverse to the person
 Atty got confidential info about the former client that is material to the matter
 Unless former client provides informed written consent
o Atty 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
 Use info relating to the representation to the disadvantage of former client except
when the info has become generally known
 Reveal info re the representation except as rules would permit
 Unless former client provides informed written consent
 California
o Atty shall not accept employment adverse to a former client where atty has obtained
confidential info unless former client provides informed written consent

General Principles re conflicts amongst clients
o MR – cant take on a client if
 Representation of one client will be directly adverse to another client or
 Significant risk that the rep of one or more clients will be materially limited by
 Atty’s responsibilities to
o 1.another client
o 2. A former client
o CA – identifies a number of situations where clients’ interests conflict
 Atty has multiple clients in a matter w/ actual or potentially conflicting interests
 Atty represents clients in difft matters where clients’ interests are directly adverse
 Atty representing 2 or more clients enters into an aggregate settlement of claims
of or against the clients
 Atty wants to accept new employment adverse to a former client if she has
confidential info material to the employment
Example:
 Model Rules – what if atty presented with a new client whose interests conflict or potentially
conflict w/ the interests of another client
o Determine whether atty reasonably believes rep will be adversely affected by duties to
another client
o Unless atty can reasonably conclude that there will be no adverse effect on relationship to
the other client, atty must decline employment
 CA – same issue – but in CA doesn’t require atty’s independent assessment in this matter
15
Example
 If atty concludes that there will be no adverse effect on rep of either client,
o MR – atty should consult w/ e/ client and obtain the informed written consent of e/
 Consultation includes adequate info and explanation re material risks of
reasonably available alternatives to the proposed course of conduct
 All facts and circumstances giving rise to conflict or potential conflict
 Description of actual and reasonable foreseeable adverse consequences to
the client
o CA – also requires informed written consent
 In ca –consultation includes relevant circumstances and actual and reasonably
foreseeable adverse consequences

Clients can provide written consent to future conflicts
o Atty may properly request that a client waive conflicts that might arise in the future if
 It is reasonable to do so – client is fully informed
 Client reasonably understands the material risk that waiver entails
o Factors considered in determine enforceability
 Temporal scope of waiver - specificity of waiver – interests of justice
 Quality of the conflicts discussion btwn client and atty
 Sophistication of client
IMPUTED CONFLICTS
Model Rule
 No atty in a firm shall knowingly represent a client when any one of them practicing alone would
be prohibited from doing so
 Exceptions to the rule:
o Conflict based on
 1. Personal interest of disqualified atty and doesn’t present a significant risk of
materially limiting representation of client by the remaining attys in the firm
 2. Law firm may accept representation if
 Conflict based on duties owed to former clients
 Conflict arises out of the disqualified atty’s association w/ prior firm
 Disqualified atty is timely screened
 Disqualified atty is apportioned no fee from the matter
 Prompt written notice is given to any affected former client stating
o Screening procedures - Firm’s and atty’s compliance
o Review before a tribunal may be available
o Firm’s agreement to respond promptly to written inquiries
 firm provide former client w/ proof of compliance w/ screen procedures at
reasonable times upon written request and upon termination of screen
o Screen mechanisms include:
 Isolation of atty from any participation in matter
 Timely imposition of procedures w/in a firm
 Reasonably adequate to protect info
16




3. Atty is no longer w/ firm, it is not prohibited from later representing a person w/
interests materially adverse to those of a client represented by that atty and not
currently represented by the firm unless
 Matter is same or substantially related to that in which atty represented
the client
 Any atty remaining in firm has info protected that is material to the matter
4. Waiver by client under certain conditions
 Atty determines representation not prohibited
 e/ affected client gives informed written consent
5. Person prohibited from involvement is a nonatty
 Person must be screened but no imputation
6. Atty is prohibited based on events before he became an atty, such as law
student
 Atty must be screened but no imputation
California
 No rule but caselaw
 Kirk - Vicarious disqualification is the general rule
o Cts presume knowledge is imputed to all members of a tainted atty’s law firm
o In proper circumstances, presumption is rebuttable, and can be refuted by evidence that
ethical screening will effectively present sharing of confidential info
o 2 necessary elements of effective screen
 1. Timely imposed, 2. Preventative measures so info wont be conveyed
o Additional elements of screening include
 Physical, geographic and departmental separation of attys
 Prohibitions against and sanctions for discussing confidential matters
 Established rules/procedures prevent access to confidential info
 Procedures preventing disqualified atty from sharing in profits from representation
 Continuing education in professional responsibility
ATTY ACTING AS GOVT OFFICERS AND EMPLOYEES
 Former govt atty must not represent a client in a matter in which the atty participated personally
and substantially – unless govt agency gives informed written consent
o Matter is narrow – involves specific parties
 No CA rule dealing directly w/ govt officers – but same conflict rules apply
LAWYERS IN LAWL FIRMS AND SPECIALIZED AREAS OF PRACTICE
 Model Rules
o Supervisory lawyers should make reasonable efforts that other attys following ethical rules
o Supervisory atty is responsible if he orders another atty to violate ethical codes
o An atty is bound by ethical rules even though he acted under supervision of another atty
o If it is an arguable question of professional duty and the subordinate atty acted under a
supervisory atty, then the subordinate atty would not have violated any duty
17


CA
o Associations subjected to discipline for breach of rules
o Prohibits attys from knowingly assisting in, soliciting or inducing any violation of rules
o Duty of competence includes the duty to supervise the work of subordinate attys
For ethical violations, no rules in CA/MR that suggest the law firm as a whole should be penalized
o But firm can be liable for malpractice or rule 11 sanctions
May an atty provide a third party w/ an evaluation of client’s affairs at client’s request
 MR – permits such evaluation if
o Atty reasonably believes that making the evaluation is compatible w/ other aspects of
atty’s relationship w/ client
o But if atty knows or reasonably should know it is likely to affect client’s interests materially
and adversely, then they need informed consent
 No CA rules
ATTORNEY ACTING AS JUDGE
 CA – attys acting as judges, mediators, will be disqualified as atty in the same matter and
disqualification will be imputed to the firm if judge received confidential info
o No imputed disqualification if former judge was not privy to confidences revealed by the
opposing party and appropriate screening procedures are established
Model Rules
 Cannot represent anyone in connection to where atty participated personally and substantially as
a judge or mediator – unless parties give informed written consent
 he must make clear to those parties that he is not their atty – and if they don’t understand, clearly
explain the role of an atty v mediator
Misc
 If you work on a matter as a clerk in the courthouse
o You cant work on it as an atty in a firm unless all parties give informed written consent
 If atty leaves firm while representing a client
o He must communicate w/ the client that he is leaving the firm
o The clients can come w/ the atty and leave the firm – up to the clients
 Cant make agreements w/ attys leaving a firm that they have to practice x miles far, etc – those
kinds of agreements are prohibited - It restricts atty’s rt to practice
CANDOR IN LITIGATION
Regarding Caselaw or Statutes or Facts
Model Rules
 You should not knowingly fail to disclose to the tribunal
o legal authority
 From controlling jurisdiction
 That is directly adverse to the client’s position
 And not disclosed by opposing counsel
18
o But you have no obligation to let tribunal know about cases that are not in the controlling
jurisdiction (ex – like a state authority from a difft state)
o Cant make false statements of fact or law to a tribunal or 3rd person
o offer false evidence
o Cant obstruct another party’s access to evidence – including disc, omitting names
CA







Shall not mislead ct w/ a false statement of fact or law
Shall not intentionally misquote the language of a case or statute
Shall not knowingly cite as authority a case/statute that has been overruled/repealed
shall employ means only as are consistent w/ the truth
shall not seek to mislead the judge or jury by an artifice or false statement of fact or law
cant suppress any evidence that you or your client has a legal obligation to reveal or produce
must not fail to make a reasonably diligent effort to comply w/ a proper discovery request
o This includes in a disc resp, omitted names of witness
o Misd for atty to use deceit or collusion to deceive ct or any party
Regarding Witness/Facts
 Don’t have a duty to disclose a key witness if other side did not find witness
o Assuming you have carried out duties to make initial disclosures or responded to disc
 No rules that say you have to volunteer harmful facts when you are in an adversary context
During Ex Parte
 MR – if in ex parte, you have a duty to disclose all material facts that will enable the tribunal to
make an informed decision, whether or not the facts are adverse
 CA – no rules re exparte
3 hors of Trilemma
 1. Attys are supposed to gain client’s trust and learn everything the client knows about case
 2. Attys are told to preserve client’s confidences, except in rare situations
 3. Attys are told to act w/ candor, refrain from presenting false evidence and in some situations to
reveal client’s fraud
When your client is lying or get evidence against your client
Model Rule and CA
 Resolve doubts in favor of the client, but cant ignore obvious falsehood
 If you know your client will lie on the stand
o Advise client of consequences of lying, including impact on your role as an atty
o Criminal ds have a const rt to take the stand, but not to commit perjury
o If witnesses take the stand
 Tell client that if friends insist on lying on the stand, cant call them as witnesses
 You may call a witness to testify to that part of story which you know is true
o If client takes the stand and you know he is going to lie
 If client agrees not to lie, you don’t have to w/draw unless the issue has created
such a gulf btwn you that you cant competently defend client
 Must threaten to w/draw to force him to change his mind
19




If he doesn’t change his mind, then move to w/draw
Require w/drawal to avoid violating a disciplinary rule
Must seek permission w/ ct to w/draw if required by tribunal
If you cant withdraw – under MR – you can call your client as a witness on subjects
that would not result in false testimony
 If you client wants to testify to subjects more than the ones he will testify truthfully
to, you must reveal the situation to the judge as reasonably necessary to remedy
the problem, even if it involves disclosing confi info
 Some jur have required counsel to present accused as a witness to give a narrative
statement if the accused so desires, even if counsel knows testimony will be false
 CA– allows narrative – but atty cant facilitate false testimony - Johnson
 If during the trial, you get evidence that is adverse to your client
o In practice – you should:
 Ask for a recess
 If get the recess, decide how credible evidence is
 If evidence is credible, counsel client
 If client still wants to testify and lie – then you must w/draw
the 4 Rs
 Recess - Ask ct to consult w/ client
 Remonstrate - Urge client to recant perjury and set record straight
 Resign - If client refuses to recant, seek permission to withdraw
 Reveal
o MR – if not permitted to withdraw or withdrawing will undo the effect of the false
evidence, you must disclose to the tribunal as reasonably necessary to remedy the
situation, even if you have to reveal conf info
o CA – you cant reveal confidences here
 Try to get your client to not lie on the stand, if you cant then try to withdraw, and if
you are not allowed to withdraw, you CANT reveal any confidential info and cant
rely on ds perjury statement in your closing statement
Your client is acquitted, then you find out info that he was guilty
 Duty of candor ends at the conclusion of proceeding
 proceeding ends when final judgment is affirmed on appeal or the time for review has passed
 In CA – you cant reveal any confidential info
 If you have any doubt (whether during trial or after of evidence or testimony) but don’t know that
evidence is false or of perjury, duties above do not arise – mere suspicion is not enough
All the rules above apply to depositions
FAIRNESS
Seeking Info from Jurors
Model rules
 Atty cant use means w/ no purpose except to embarrass, delay or burden a third person
 Atty cannot
o Seek to influence juror by means prohibited by law
o Communicate ex parte with juror except as permitted by law
20

An atty who knows that another atty has committed a violation of the rules raising a question as
to atty’s honesty, trustworthiness or fitness as an atty shall inform the appropriate authority
California
 No out of ct investigation of potential jurors that is likely to influence juror’s state of mind in
connection w/ present or future jury service
 During trial, an atty connected w/ the case shall not communicate directly or indirectly w/ a juror
– or jury pool who might be part of the jury
 Even an atty not connected w/ the case is prohibited from communicating directly or indirectly
concerning the case w/ anyone the atty knows is a juror in the case
 Atty shall promptly reveal to the ct any known improper conduct by juror or by another toward a
juror (even if other person is not an atty)
Communicating w/ Jury after discharge
 MR – cant communicate w/ juror after discharge if
o Prohibited by law or ct order
o Juror has made known to the atty no desire to communicate
o Communication involves misrepresentation, coercion, duress or harassment
 CA – allows atty to talk w/ a juror after the case if questions are not intended to
o Harass or embarrass the juror
o Influence the juror’s actions in future jury service
You want to find out if evidence were given to jurors:
 MR – can communicate if it is w/in specified limits
 CA – permits certain questioning provided not intended to harass or embarrass or influence
juror’s actions in future jury service
o Lind –some contact ok if for determining if verdict possibly subject to challenge
 FRE – if a jury verdict is questioned, jurors wont be permitted to testify about any statements
made during the jury deliberations, or mental processes or influences on decision
o Jurors cant testify about extraneous prejudicial info improperly brought to jury’s attn and
any outside influence improperly brought to bear on any juror
___________________________________________________________________________
Interviewing Employees of Defendant
 First have to determine whether these employees were represented by counsel
 Model Rule
o In representing a client, atty shall not communicate about the subject of representation
w/ person the atty knows to be represented by another atty in the matter, unless he has
consent of other atty or is authorized to do so by law or ct order
o Atty must have actual knowledge of the rep but can be inferred from circumstances
o Rule applies even if represented person initiates or consents to the communication
o Must immediately terminate comm if atty learns that person is one w/ whom comm is
prohibited
o Applies to any person represented by counsel re matter to which communication relates,
even if non party
o comm w/ a former constituent of the org don’t require consent of the org’s atty
21




Model Rules re unrepresented ppl
o Atty shall not state or imply disinterested
o If atty knows or reasonably should know unrepresented person misunderstands role, atty
shall make reasonable efforts to correct the misunderstanding
o Atty shall not give legal advice to unrepresented person, if interests of that unrepresented
person conflict w/ atty’s clients
If organization, atty shall not communicate with a person
o Who supervises, directs or regularly consults w/ org’s atty re the matter
o Who has authority to obligate the org w/ respect to the matter
CA rules re contact w/ represented ppl
o When rep a client, atty shall not comm directly/indirectly about the subject of rep w/ a
party atty knows to be represented by another atty in the matter w/o consent of atty
 Actual knowledge is required, but may be established w/ circumstantial evidence
 Party =
 officer, director or managing agent of a corp, and a partner or managing
agent of a partnership
 an employee of a corp, assoc or partnership
o if the subject of comm. is any act or omission of such person in
connection w/ the matter which may be binding upon or imputed to
the org for purposes of civil or criminal liability or
o whose statement may constitute an admission on the part of org
CA – contacting former employees
o Prohibition on communication is not intended to apply to comm. w/ persons no longer
holding office or employed by a corporate party
Expert v Lay
 MR – may compensate an expert witness for prof services rendered in preparing to testify and in
giving testimony, if fee is not contingent on outcome or on the content of the testimony
 CA – may pay a reasonable fee for professional services of an expert witness, but may not directly
or indirectly pay contingent fee upon content of testimony or outcome of case
 MR and CA – can pay for expenses for lay person to testify, but cant give them a fee
o Can also pay for reasonably compensation to lay person
Bad Conduct such as purposely producing light documents
MR
 prohibits unlawfully obstructing access to evidence or assisting another person to do so
 provides that an atty shall not fail to make reasonably diligent effort to comply w/ disc
CA
 prohibits atty from continuing employment if objective is to assert a position in litigation w/o
probable cause and to harass
 prohibits atty from suppressing any evidence that the atty or client has a legal obligation to reveal
or produce
 makes it a misd if an atty is guilty of any deceit or collusion w/ intent to deceive any party
22
Want to Tell Judge about New Caselaw
 MR – no ex parte comm. w/ judge except as permitted by law or ct order
 CA – atty shall not communication directly/indirectly w/ or argue to judge as to merits of
contested matter except
o In open ct
o w/ consent of all other counsel in matter
o in presence of all other counsel in matter
o in writing – w/ copy to other counsel
o in ex parte matters
Communicating w/ Media
 CA and MR – prohibits an atty involved in litigation from making prejudicial statements
 MR and CA - atty shall not make an extrajudicial statement that atty knows or reasonably should
know will be disseminated by means of public comm. and will have a substantial likelihood of
materially prejudicing a proceeding in the matter
 Atty can make a statement that reasonably atty would believe is required to protect client from
undue prejudicial effect of recent publicity not initiated by atty or client
o Limited to info necessary to mitigate the recent adverse publicity
Prosecutor Responsibilities
 MR – cant stay quiet after receiving new, credible and material evidence that creates a
reasonable likelihood that d was convicted in error
 Must promptly disclose evidence to appropriate ct/authority
 If conviction in prosecutor’s jurisdiction
o Disclose evidence to d
o Undertake investigation to determine whether d convicted of an offense he didn’t
committ
 If d convicted of crime he didn’t commit, prosecutor shall seek to remedy the conviction
 No such rules in CA
o Only rule – if pros tries to cover up an unjustified conviction = act of moral turpitude
ADVERTISING
 Advertising:
o General comm. w/ the public at large or w/ segment of the public
o Includes tv, radio, newspapers, billboards, website, firm stationary, cards
 Solicitation:
o Personal contact w/ layperson designed to entice to hire atty – atty motive is pecuniary
gain
o Includes face-to-face and telephone
 MR also includes “real-time electronic contact” like chat room
MR
 Cant make false or misleading comm. re atty or atty’s services
 False if: misrepresentation of fact/law – omits facts to make it misleading
23






CA







Rules then split up more specifically in advertising v solicitation
Advertising
o Any add must include name/office address of at least one atty
o Ad cant create unjustified conclusions with no reasonable factual foundation
o Ad Cant create unjustified expectation
o Can have disclaimers to avoid the above
Solicitation
o Cannot solicit unless person is atty, family, close personal or prior prof relationship
o Even if they are this person – still cant solicit if they have told you they don’t want you to
solicit them, or such solicitation includes coercion, duress or harassment
o When contacting other attys, not solicitation
o If atty initiates personal contact w/ an audience member for purpose of hustling feepaying business, atty is soliciting
If you do any solicitation, have to have the words “advertising material” on the solicitation
May be in a prepaid or group legal service program – like white pages
Cannot compensation atty for referring clients to you
Cant solicit client if not a family member or you don’t have some prior prof relationship
Solicitation to former/present client is not prohibited
If ad questionable – atty carries burden of proving that ad was not misleading
Communication/solicitation shall not
o Contain any untrue statement
o Contain false, deceptive ad, or which tends to confuse, deceive or mislead public
o Omit facts to make it misleading
o Fail to include the notion that it is an ad/solicitation
o Includes intrusion, coercion, duress, compulsion, intimidation, threats
o State that they are certified specialist unless they have the certification (also in MR)
Can compensate atty for referring clients to you but client has to consent to it in writing after full
disclosure AND total fee not increased and not unconscionable
Gift to referring atty ok if not promised in advance
Cant have ad if:
o Guarantees, warranties or predicts a result
o Has testimonials unless disclaimer that it is not a guaranty
o Communication delivered at scene of accident or en route to hospital
o Ad sent by mail that doesn’t expressly state its an ad
o Ad fails to identify at least one atty responsible for ad
o Comm. includes a dramatization unless theres a disclaimer which says “this is a
dramatization”
o Ad states or implies no fee w/ recovery unless specific explains whether client is liable for
costs
o No use of statements/symbols that promise quick settlement or immediate cash
o No impersonations of atty
24
Misc
 MR and CA - Can give seminar on subject of law if not soliciting clients
 MR and CA – can list your name w/ ct as someone willing to take ct-appointed cases
 MR – cant “pay-to-play” – ie contribute to a campaign for specific purpose of garnering legal work
in exchange
o CA – no specific rule but no act of corruption
 Ok to list your name in atty referral services
 Bates – 1st am commercial speech doctrine applies to attys truthfully advertising
 Can publish brochure that describes your law practice, statues kinds of matters you handle and
gives you fees
o But cant set forth fee than charge a higher rate
o Can publish brochure in a website
 MR/CA – can state you are a specialist as long as it is not misleading and you have such
certification
 Can send general letters to ppl re law firm but have to mark it as an ad – can also email
 Cant solicit via phone
o Can do recorded message solicitation under MR but not CA
o Cant call ppl – even hire ppl to call for you
 Cant hand out pamphlets advertising your firm
 Can initiate representing someone if you will do it for free – but if motive is for gain than cant do
it
25