The Legal Profession Outline
Fall 2010 – Smith
(Model Answers online)
I.
Introduction
A. What are the reasons for these rules?
1. Keeps lawyers out of trouble
2. Helps lawyers to evaluate the behavior of other lawyers so they can take protective measures
B. Distinction between morals and ethics
1. Members of a “profession” typically must adhere to a code of ethics. Traditional professions
include doctors, lawyers and ministers.
2. Morals concern one’s personal philosophy of right and wrong.
3. It’s not unusual that a rule of ethics might be in conflict with a rule of morals.
C. The ABA model rules are not the law. They must first be adopted by a state’s supreme court,
although states usually don’t alter the model rules. Be sure to know any differences, if any, between the
state and model rules. In LA we have adopted the Model Rules but not the comments.
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II.
The Regulation of Lawyers
A. Institutions that Regulate Lawyers
1. The highest state courts
a) The responsibility of self-regulation: The legal profession is largely self-regulated,
and in most states, it is the highest court of the state rather than the legislature that is
responsible for adopting the rules of professional conduct. Most of those involved in
writing the ethical rules are licensed lawyers. As a result, the rules governing lawyers are
more protective of lawyers and impose less regulatory constraint than they would if state
legislatures wrote them. A lawyer who practices in two states is expected to know the
rules of both jurisdictions.
b) The inherent powers doctrine: Unlike typical law, courts make the ethical and
procedural rules, implement them, interpret them, enforce them and hear challenges to
the validity of them. In some states, the state constitution expressly assigns the courts
authority to regulate the conduct of lawyers. In others, courts apply the inherent powers
doctrine to say that regulating the conduct of lawyers is a matter of inherent authority
because the courts need the authority to govern the conduct of those appearing before
them. In some states, courts can actually strike down legislation that conflicts with
professional rules (this exclusive authority to govern the conduct of lawyers is called the
negative inherent powers doctrine).
2. State and local bar associations
a) Usually organized as a private nonprofit organization
b) May have some governmental functions as delegated from the state’s highest court –
a state bar that accepts these functions is called an integrated or unified bar rather than a
voluntary bar. In unified state bars, membership is mandatory.
c) In addition to state bar organizations, most states have a variety of other voluntary bar
associations that lawyers are not required to join.
3. Lawyer disciplinary agencies
a) In La., this is called the Office of the Disciplinary Counsel. They investigate and
prosecute misconduct that violates the state ethics code.
b) Usually run by the highest state court, the state bar association or by both.
c) The body of published opinions in disciplinary cases is helpful to interpreting and
applying the ethics codes.
4. The American Bar Association
a) State bar associations are independent of, and not subordinate to, the ABA, although a
majority of the ABA House of Delegates is selected by state and local bar associations.
b) Although the ABA is the primary drafter of lawyer ethics codes, the ABA has only
limited governmental authority. The Model Rules of Professional Conduct have no legal
force unless adopted by the state’s highest court.
c) State courts are under no duty to consider a rule just because it was proposed by the
ABA or analyzed by a state bar association.
d) Note: The ABA adopted its first set of Canons of Ethics in 1908, that was largely
based on the Alabama ethics code derived from lectures by Sharswood. The adoption of
the model code didn’t happen until the 1960’s, and then the current model rules were
adopted in 1983.
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5. Federal and state trial courts
a) These courts play an important role by:
(1) Setting rules for the conduct of lawyers in litigation;
(2) Sanctioning lawyers that violate these rules; and,
(3) Hearing/deciding motions to disqualify lawyers with conflicts of interest that
preclude their representation of particular clients.
b) If a judge becomes aware of lawyer misconduct in a matter before the court, the judge
can impose sanctions under federal/state civil procedure rules.
c) Judges must report the misconduct to the lawyer disciplinary agency if it violates an
ethical rule that raises a substantial question as to that lawyer’s honesty, trustworthiness
or fitness as a lawyer in other respects.
d) Some federal courts adopt their own ethical rules, but most adopt the same rules that
are in force in the states where they sit.
6. Legislatures
a) Through other kinds of legislation (criminal, banking, securities, etc.), Congress and
state legislatures govern lawyers.
b) Most states have statutes that make it a misdemeanor to engage in the unauthorized
practice of laws.
7. Administrative agencies
a) Many administrative agencies impose additional ethical or procedural rules on
lawyers who appear before them.
b) Lawyers who engage in misconduct in practice before these agencies may be subject
to civil or criminal penalties.
8. Prosecutors
a) Prosecutors have enormous discretion as to whether to file charges against particular
D’s, and an increasing number of lawyers are indicted and prosecuted for crimes, some of
which were committed during the practice of law.
b) Events such as Watergate and the banking crisis in the 80s shattered public
assumptions that lawyers would never be involved in criminal activity – this made any
hesitation prosecutors had about going after lawyers vanish.
9. Malpractice insurers
a) The conditions for providing insurance set a body of private law that governs lawyers
who contract with these companies.
b) Loss prevention structures: Insurers may required to prevent the firm from being held
liable.
c) The guidance to and supervision of law firms by insurers is an important, though
nongovernmental, form of regulation.
10. Law firms and other employers
a) Many employers have their own additional rules of practice. Larger firms usually set
up an ethical infrastructure to provide training, offer advice and prevent conflicts of
interest.
b) Many firms will designate lawyers to be ethics counsel or loss prevention counsel.
Others will form ethics committees.
c) This is also a type of “private” law to govern lawyers’ conduct, and will often times
be more strict than the state rules.
11. Clients
a) Large corporations and government agencies are major consumers of legal services
and have a great deal of bargaining power.
b) Law firms that work for these large institutions must usually agree to comply with
certain policies on billing and other things as a condition of employment.
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B. The Law Governing Lawyers
1. State Ethics Codes: Through the state’s adoption (and modification of) the Model Rules
2. Legal Malpractice, Breach of K and Breach of Fiduciary Duty
a) The tort of legal malpractice may involve either a claim of negligence or intentional
misconduct. This may be brought by either a client or a non-client third party.
b) Under the Restatement, the elements include:
(1) The lawyer owed a duty to the P,
(2) The lawyer failed to exercise the competence and diligence normally exercised
by lawyers in similar circumstances, and
(3) The breach of duty caused harm to the P.
c) A lawyer can be disciplined, sued for malpractice and criminally prosecuted all for
one act of misconduct.
d) A claim for breach of fiduciary duty is different from a malpractice claim in that it is
a separate cause of action grounded in the common law of fiduciary duty, which applies
to many other persons than just lawyers. A malpractice claim usually includes a claim for
breach of fiduciary duty.
3. Motions to Disqualify for Conflicts of Interest: Judicial opinions resulting from motions by
opposing counsel to disqualify lawyers because of conflicts of interests form a substantial body
of lawyer law. Many courts follow their own CML standards, which may not comport with the
ethics rules, when determining disqualification issues.
4. Contract Law: This usually comes up in cases where courts nullify K’s that lawyers were
parties to or contracts negotiated by lawyers.
5. Advisory Ethics Opinions: Written by committees (of lawyers and non-lawyers) formed by
the ABA, state bar associations, etc. These committees are separate from the Office of
Disciplinary Counsel.
C. Application to the Bar and Admission to Practice
1. In general
a) In most states, the rules for admission to the bar are established by the highest court
of each state.
b) The basic requirements for admission to the bar include:
(1) Graduation from an accredited undergraduate college;
(2) Graduation from a law school that meets the state’s educations standards
(usually ABA-accredited);
(3) Submission of an application for admission to the bar;
(4) Obtaining a passing score on the bar exam administered by the state; and
(5) A finding that the applicant is of good moral character and is fit for the practice
of law.
2. Character and Fitness Inquiry
a) In general
(1) The basic point of this is to assess whether the applicant will practice law in an
honest and competent manner. An application that raises significant problems of
moral character may lead to an investigation by the bar and a formal hearing on the
applicant’s qualifications for admission. In most states there is no published list of
what conduct gives rise to an inquiry and no consistency in practice.
(2) Bar admissions committees, courts and the Model Rules say to be scrupulously
honest in everything you say, even if your disclosures could delay or prevent your
admission to the bar. Lying or concealing information are usually grounds for
denial of admission. Just tell the truth and then it’s just your burden to prove
good character. (if there is an investigation).
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(3) The information you disclose on your bar application must be consistent with
the information you disclosed on your law school application. If your information
is incomplete on the law school application, consider making a belated disclosure
to the law school of this information in addition to adding it to your bar
application. If the information is serious (homicide conviction), then the law
school may take disciplinary action.
Rule 8.1 Bar Admission and Disciplinary Matters
An applicant for admission to the bar, or a lawyer in connection with a bar admission application
or in connection with a disciplinary matter, shall not:
(a) Knowingly make a false statement of material fact; or
(b) Fail to disclose a fact necessary to correct a misapprehension known by the person to have
arisen in the matter, or knowingly fail to respond to a lawful demand for information from an
admissions or disciplinary authority, except that this rule does not require disclosure of
information otherwise protected by Rule 1.6. (1.6 is confidentiality rule).
b) The rule seems to impose a duty to respond to inquiries from the bar regarding an
investigation. The only exception is communications that are protected by the
attorney/client privilege. The client may sue his attorney in tort if the attorney
breaches his duty to him.
c) It may be better to respond truthfully to questions than to try to cover them up. There
is an obligation to answer the questions truthfully and let the committee make their
determinations.
d) Notice it reaches the person who was not yet admitted in the bar
e) They can go after you for failure to satisfy the requirements in the past!
f) 1-1: Pot
(1) Applicant to the bar had smoked pot on and off for the last 3 years. Should the
applicant disclose this on the bar application, if the question asks: Does the
applicant currently, or has been in the last 3 years, engage(d) in the illegal use of
drugs?
(2) While the question could be manipulated so one could say no, it would most
likely be dishonest not to disclose the truth.
(3) See Rule 8.1 (in connection with 1.6) This rule does not reach people unless
admitted to the bar but one admitted it can reach out to the time you lied when not
yet admitted.
(4) An applicant for admission to the bar, or a lawyer in connection with a bar
admission application or in connection with a disciplinary matter, shall not:
(a) Knowingly make a false statement of a material fact; or
(b) Fail to disclose a fact necessary to correct a misapprehension known
by the person to have arisen in the matter, or knowingly fail to respond to
a lawful demand for information from an admissions or disciplinary
authority, except that this rule does not require disclosure of information
otherwise protected by Rule 1.6
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(5) Other options for this applicant:
(a) Plead the 5th, but this would probably raise more suspicions than
necessary. The bar admissions committee is most likely to investigate it on
their own.
(b) Sue the committee
(c) Get advice from counsel as to how to respond to this question
(i)
Suppose the applicant discloses everything to an attorney,
and the attorney responds that the use is relevant to the bar
application, and if it isn’t disclosed, then there is a huge risk if it is
discovered the applicant was lying. The applicant rejects the
advice, and lies on the application. Does the lawyer have an
obligation to inform the committee that the applicant was lying?
(ii)
The lawyer need not disclose the information if it would
violate Rule 1.6 – confidentiality of information disclosed to an
attorney. The duty under 1.6 to keep the information confidential
would probably prevent the disclosure to the committee. The
committee would ask the client to waive.
(6) Drug use at the time of reading the questions OR habitual OR just anytime in
the last three years?
(7) No statute of limitations on these things (application to law school or the bar)
(8) Lies on your character and fitness application to the bar is a slam dunk! No
admission or gets revoked!
(9) If you had a question who would you ask?
(a) Attorney- privileged information
(b) The board
(c) Find someone who has never touched marijuana to sue for you
g) Mental health
(1) The concern in asking to disclose this information is that perhaps some people
who suffer from serious mental illness would disserve their clients because of it or
pose a danger to others.
(2) Recall the story of Rose Gower and the repeated harassment by the committee
regarding her depression and medical treatment that had been sought 7 years
before she applied to the bar. It delayed her bar application for a year!
(a) Mental health issues
(b) Stress and strain b/c close people died and raped
(c) Sought counseling but no medicine currently
(d) She still goes to therapy  ongoing problems? Better to suspend
therapy?
(e) Current job and been promoted. Did very well in law school.
(f) Her application was on ice for a year as they continued to ask more
and more mental questions.
(3) While it’s probably reasonable for the committee to get more information
regarding the mental illness to ensure that she is fit to practice law, this tends to
come down on people that honestly disclose their mental status. However, if the
applicant were to lie about this, it would be really easy to prove and he would
likely be denied admission. The bar was aggressive an unnecessarily harsh with
Rose.
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h) Indiscretions and misconduct in law school
(1) In re Mustafa
(a) Facts: Took money from moot court account for personal reasons.
Before he got in severe trouble, he confessed what he had done, and said
he intended to pay the money back. He did repay the loan.
(i)
The school took some disciplinary action, but only put
something on his permanent record.
(ii)
The hearing committee recommended that he be
admitted to the bar.
(iii)
The court denied him admission. (DC bar didn’t think
he upheld his burden to prove good character and fitness.)
(b) He eventually became a lawyer in another state, and it turned out that
he was running around with clients’ money. Also failed to show up for
client meetings and failed to answer/return phone calls.
(2) 1-2 The Doctored Resume
(a) Immigrant girl lied on her resume, even though she knew it was
wrong. Another student had given her the idea.
(i)
Lied on her resume
(ii)
Advice from another student
(iii)
She is foreign and claims to believe this is custom
(iv)
Desperate
(v)
The law school is the one investigating
(vi)
Should the law school have the ability to discipline you?
(a) Yes and most of them do
(b) Does this violate R. 8.1? Even though this was not related to admission
to the bar, it may still compromise the integrity of the profession and
thereby cause her to be denied. Lying is a matter of how serious it is –
social lies are customary, but lying on a resume is more egregious.
(c) The integrity issue is important for bar admission, and for job
searching – no one’s going to hire a liar. Once you lie how do you prove
good character.
i) Louisiana law
(1) In re Rojas (La.) [permanent non admittance to the bar]
(a) Facts: Bar applicant talked during the bar exam, and it was determined
that she either cheated or attempted to cheat.
(b) Held: Permanent denial of admission into bar. When you sit for the
bar exam, you don’t talk.
(c) Note the commissioner’s observations: The communication that she
engaged in had to be cheating because there was no other reasonable
explanation for the talking. The court does not question the conclusive
nature of the commissioner’s statement. The commissioner’s report did
not disclose what the applicant was talking about: it could have been to
cheat, but she may have also just needed a pen.
(d) This shows how serious the bar authorities treat cheating.
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(2) In re Kelle Hinson-Lyles (La.) [could apply again but how show rehabilitation any more]
(a) Facts: Applicant had been a high school teacher, and during this
career, she had engaged in sexual relations with a minor student (14 years
old). The student’s father found out about the relationship, called the
police, and the police found the boy hiding in her closet.
(b) Criminal sanctions: She was charged with carnal knowledge of a
juvenile (not statutory rape). A felony.
(c) In this instance, three years had passed since the incident, and she
admitted everything freely. The committee let her take the bar exam, she
passed, and then the court denied her admission to the bar.
(i)
Why did they let her take the exam before they knew
whether they would let her in? Was that really a favor?
(ii)
If she had flunked the bar exam, then the committee
wouldn’t have had to look at the character and fitness stuff.
(d) The applicant has the burden of showing good character. The court
gives us a hint as to what good character might be: “The primary
purpose of character and fitness screening is to assure the protection
of the public and to safeguard the administration of justice. The term
good morla character includes, but is not limited to, the qualities of
honesty, fairness, candor, trustworthiness, observance of fiduciary
responsibility and of the laws of the state of La. and the U.S., and a
respect for the rights of other persons.” Decide based on totality of
circumstances just because committed felony does not in and of itself
keep you from admittance to the bar.
(e) The justices were split as to what her sanction should be. She did not
get admitted to the bar at that time, but the court did not say when or if
she might be able to be admitted. What more could she have proven.
The court majority had a problem with her abusing a position of trust
by knowingly and intentionally breaching the trust to gratify her own
needs.
(i) One of the justices said that she engaged in reprehensible conduct
and should never be admitted. (Knoll)
(ii) Another said she had been rehabilitated and they should let her in.
(Kimball)
(iii)Another said they shouldn’t have let her sit for the bar in the first
place.
(iv) This shows how your result may differ depending on what judge you
get.
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D. Professional Discipline and the Disciplinary System
1. In general
a) In most states, the highest court runs the disciplinary system. An independent office
set up by the court uses paid staff attorneys to investigate and prosecute charges. Some of
these offices are part of the state bar associations, but most are independent of them.
b) The disciplinary system is not perfect, as the offices dismiss many meritorious
complaints and most aggrieved clients don’t know anything about it. Also, it can take
years to get through the lawyer disciplinary system.
c) Grounds for discipline? A lawyer may be disciplined for conduct that has nothing to
do with the practice of law. It does not matter whether the violation of the ethics code
occurred in course of law practice or not. Many lawyers who have held high public office
have been disciplined for misconduct that related to their performance of their duties as
public servants (i.e. Nixon) – agencies tend to be vigilant in prosecuting misconduct by
lawyers in highly visible positions of public trust.
d) What about committing a crime? A lawyer may be disciplined for the commission
of any criminal act that violates an ethical rule or that reflects dishonesty,
untrustworthiness or lack of fitness to practice. The predicate for discipline is the
commission, not charge or conviction, of a criminal act.
e) Vicarious discipline? Lawyers may be disciplined for violating a rule by inducing or
assisting another person (or employee) to do something that violates the rules if done by a
lawyer.
f) What about interstate violations? A lawyer may be disciplined for violation of the
rules regardless of whether the violation occurs in the state in which the lawyer is
admitted. While most ethics codes subject only lawyers admitted to practice in that state
to discipline for violation of the rules, some states allow discipline of any lawyer who
violates a rule of the jurisdiction. If discipline is imposed in one state, and the lawyer has
been admitted in various states, then the lawyer must report this to the other states – a
lawyer sanctioned in one jurisdiction often receives the same sanction in any other
jurisdictions where the lawyer is admitted.
2. La.’s Disciplinary Procedure
a) La.’s disciplinary procedures are very similar to that of other states.
b) The reading would suggest that it is not likely that someone who engages in egregious
behavior will necessarily get caught. This may not be true in La.
c) Office of Disciplinary Counsel: La. has a whole office of staff attorneys who
investigate and prosecute La. lawyers.
(1) [the hearing committee first level of trouble is made up of two attorneys
and one public member]
(a) 2 members of bar and one non lawyer
(b) Why the non lawyer? Do not want all lawyers to regulate themselves.
Might be too generous to the lawyers.
(2) Complaint is filed, the office will screen it to determine if it should be
investigated. Many cases are screened out this way.
(3) If not screened out, the ODC will send a letter to the lawyer, stating that the
complaint states a claim and that the ODC requires a response.
(4) If the lawyer does not respond, the allegations will be treated as true.
(hearing)
(5) If the ODC is not satisfied with the response (hearing), then there will be a
hearing. It is not a good idea to be your own lawyer in this instance. Also good
idea to show up.
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(6) A decision will come out of the hearing (no jury and prosecutors is part of
judiciary), and discipline will be recommended. If don’t like it appeal to
Disciplinary board.
(7) You will go to the disciplinary board, who will then review what happened and
recommend what else to do they wull issue an opinion and if further appeals it will
then go to the LASC.
(8) At the LASC level, there will be oral argument just like for any typical
litigation.
d) La. is 4th in the country as far as lawyers that get disbarred through this disciplinary
system.
e) Possible sanctions in La.: (Know the names of them and the order they come).
Section 10 (A) of Rule 19 in LA.
(1) Permanent disbarment (only in La.)
(2) Disbarment (can reapply after 5 years and have burden to prove character
seems easier than Rojas b/c at least once in you can re-apply after 5 years)
(3) Suspension by the LASC (max. 3 years - key can’t practice)
(4) Probation (not disbarred, but just monitored for max 2 years and get
public reprimand – key is can still practice)
(5) Public reprimand (opinion published)
(6) Private admonition (warning – nothing public)
Section 10 (B) of Rule 19 in LA.
- Informal disciplinary measures – Written Conditions can be
attached to an admonition or a reprimand. Failure to comply with
the conditions shall be grounds for reconsideration of the matter
and prosecution of formal charges against respondent.
(a) Deal or plea bargain to resolve
(b) May impose some conditions on the sanction (fine, AA, etc.).
f) Factors to consider in imposing sanctions Section 10 (C) of Rule 19
(1) Whether the lawyer has violated a duty owed to a client, to the public, to the
legal system, or to the profession;
(2) Whether the lawyer acted intentionally, knowingly, or negligently
(3) The amount of the actual or potential injury caused by the lawyer’s
misconduct; and
(4) The existence of any aggravating or mitigating factors.
g) Rule 19: Rules for Lawyer Disciplinary Enforcement (La.) ==> This is a very
long rule that covers the ins and outs of the La. disciplinary system.
(1) Appointments: To disciplinary counsel (Plattsmire). Also to hearing
committees (2 bar members and one public member).
(2) Periodic assessment of lawyers: Lawyers must pay a fee to help fund this office
($200/yr).
(3) Grounds for discipline Section 9 of the LA Rule 19:
(a) Violation or attempt to violate one of the rules
(b) Violation of the rules of another jurisdiction
(c) Willfully violating a valid order of the court or the board imposing
discipline. (can’t ignore the ODC)
(4) It is important to note that a lawyer can be punished for conduct that has no
direct bearing on the practice of law, if the misconduct raises character issues that
compromise the integrity of the profession.
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(5) The people who file these complaints are given immunity. So can’t sue sister
because when she files the complaint she now has immunity. (if violate usually
public reprimand)
(a) So can’t sue for defamation to the person who brings the complaints
(b) So if you sue the defamation than you have violated the rule and are
now subject to discipline!!!!
(c) Sec 12
h) Dumaine case: (p.11): court focuses more on the alcohol problem. “The evil has
become ascendant.” The LASC court created a committee on alcohol and substance
abuse. Dumaine remands for some reconsideration of issues. Dumaine fires a gun across
Old Hammond Hwy, but if he can show he was drunk (an alcoholic) he may get a lesser
penalty if he can prove he’s taken steps to remedy the problem.
(1) These are considered mitigating circumstances that would help his cause.
(2) OUTCOME: LAP (lawyers assistance program) if you or your partner are on
the sauce you can call and get help. Separate from the ODC [privacy concerns you
can tell the LAP people and they are not going to rat you out to the ODC]. The
court does say alcohol and drug abuse can be mitigating circumstances. It will
lessen the blow of discipline. If you do something (like fire a gun) but you were
using alcohol which caused the misconduct AND show you have taken steps to
overcome alcohol problem and show extent that you are successful [potential to
repeat is low] and if it can be shown you have come to grips with problem hammer
won’t fall so hard.
(3) Model Rule 8.4(b) professional misconduct to commit criminal act which
reflects adversely… fitness as a lawyer
(4) Flasher case  Sex addiction but never does anything to overcome so the court
does not mitigate it. Disbarred.
(5) Groper  Drunk and gropes and there are criminal sanctions and then goes 72
days for rehab and then moves to new city and new practice. Admits he did and is
sorry and says he is in AA plus rehab and the court only have him one year
probation.
Factors considered in Aggravation [get worse penalty]
1.) Discipline History
2.) Motive of dishonest or selfish
3.) Multiple offenses
4.) Obstruction of the disciplinary process
5.) Present false evidence
6.) Was the victim vulnerable
7.) Refuse to acknowledge wrongful nature
8.) Experience in the practice of the law
Mitigation
1.) Physical disability
2.) Free disclosure to board; you are cooperative
3.) Absence of past discipline
4.) Absence of dishonest or selfish motive
5.) Emotional problems
6.) Good faith efforts to engage in restitution to fix problems
7.) Small amount of practice time (exception for the lying weasel)
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3. Rule 8.4
a) Model rule
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; (plagiarism, changing teacher
evaluations)
(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 other
law.
What they cover:
(a) Covers all of the Rules – a blanket prohibition.
(c) Covers a very broad range of misdeeds
(d) Is a very vague standard
(f) Is referring to the Rules of Judicial Conduct (we won’t cover in this class).
E. Differences with the La. Rule
1. Everything is mostly the same, except it makes it professional misconduct for a lawyer to:
2. Compare (b) and (g) from the LA rule
(b) Commit a criminal act, especially one that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a
lawyer in other respects.
(g) Threaten to present criminal or disciplinary charges solely to obtain an advantage in a civil matter.
3. (b) is different in that it is a broader rule that will punish lawyers for “smaller” crimes.
4. The ABA doesn’t list (g), because (b) already prohibits criminal acts. The LASC felt that it was
important to highlight criminal extortion. Note that it mentions both criminal and disciplinary charges.
5. In re Peters (Minn. 1988)
a) Facts: Law school dean sexually harassed student workers and secretaries in his office. He
didn’t rape them, just inappropriately touched their ribs, hair and hips. The victims responded by
trying to avoid the situations.
b) What part of 8.4 did he violate? It is hard to find a good match, and we must use a stretched
argument to make it fit. Part (a) could be violated if we can find another rule that could be
engaged by this behavior.
c) The sanction in this case was a public reprimand, which seems a little light. This was
probably due to the fact that he was the dean rather than a fellow student. Fear of the students
getting expelled because this man was the dean.
d) Questionable conduct by law professors: [even if not practicing]
(1) Sexual harassment
(2) Plagiarism (of the writing of their research assistants)
(3) Neglect of teaching responsibilities (not performing in class while collecting fees for
consulting on the side)
(4) Manipulation of grades or teacher evaluations (punish/reward certain students)
(a) One teacher engaged in this behavior and remember the ODC can prosecute
you for a violation even if the school does nothing. In ODC world this would fall
under 8.4(c). Engaging in dishonest, fraud, deceit and misrepresentation.
(5) Aggressive or discriminatory behavior
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F. Reporting Misconduct by Other Lawyers (Whistle Blowing or the Snitch Rule)
1. A cornerstone of the disciplinary system is the duty of lawyers to report serious misconduct
by other lawyers. This section looks at the legal protection available to subordinate lawyers who
refuse to commit misconduct or who complain of the misconduct of others. If you take the
reporting duty seriously, its likely that you will face some retaliation.
2. In most states, lawyers are obliged to report other lawyers’ misconduct to the disciplinary
authorities. See Rule 8.3.
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 lawyers assistance program.
a) Exceptions to the reporting duty: Differences in the LA rules.
(1) Insubstantial misconduct: Only those raising a “substantial question” of the
lawyer’s honesty, trustworthiness or fitness need reporting. LA is more broad not
requiring a “substantial” question.
(2) Info protected by 1.6: A report need not be made if it would reveal information
required to be kept in confidence under Rule 1.6. Cmt. 2 says that a lawyer should
encourage a client to waive confidentiality and permit reporting if that would not
substantially prejudice the client.
(3) Treatment program: A lawyer assisting a lawyer who is in an “approved
lawyers assistance program” LAP is not required to report information learned in
the course of this service, under cmt. 5. [LA adds the ethics advisory board beside
LAP who can’t tell].
b) Note that this reporting duty is mandatory in most states.
c) This duty is triggered by a lawyer’s “knowledge” of another lawyer’s misconduct and
the standard for assessing knowledge is objective (more than a mere suspicion that
misconduct has occurred). The question becomes whether a reasonable lawyer in the
circumstances would have a firm opinion that the conduct in question more likely than
not occurred (Restatement standard).
d) The reporting duty applies whether the lawyer committing the misconduct is an
adversary, partner, boss, etc. A lawyer can’t get off the hook by informing senior lawyers
in a firm about the misconduct of another lawyer.
e) The rule does NOT require that a lawyer get client approval before reporting
misconduct of another lawyer. Nor does it allow a client to veto a lawyer’s reporting of
misconduct.
f) If a lawyer learns of misconduct during an adversary proceeding, the lawyer may
defer reporting the misconduct until the proceeding has concluded, if deferral is
necessary to protect a client’s interest.
g) The reporting duty has been used as a weapon against rival lawyers – a pretense of
reporting unethical behavior just to trash another partner and take over their business.
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3. In re Himmel (IL 1988)
a) Facts: Himmel learned of lawyer misconduct through a client. Himmel sues the
lawyer that withheld the client’s money. They enter a settlement agreement – will not
report if a certain amount is paid.
b) Held: Himmel suspended for not reporting the misconduct of another lawyer.
c) Himmel’s first defense: He didn’t report the other lawyer because his client told him
not to.
(1) It’s good leverage to say that if you don’t pay your client, then you’ll be
reported. R. 8.4(g) in La. prohibits doing this: “It is professional misconduct for a
lawyer to: (g) Threaten to present criminal or disciplinary charges solely to obtain
an advantage in a civil matter.”
(2) The court rejected this defense. Himmel should have known better than to
listen to his client.
d) Himmel’s second defense (also rejected): Attorney – client privilege. However, the
privilege was abrogated as Himmel discussed the misconduct with too many other
people, including the client’s own mother. When the offending lawyer signed a
settlement K admitting his wrongdoing, this also broke any existing attorney-client
privilege.
e) Most state courts have indicated reluctance to follow the Himmel lead, although NY
has adopted a “law firm rule,” which is an attempt to hold an entire law firm responsible
for lawyer misconduct, even when an individual culprit cannot be identified.
4. In re Michael G. Riehlmann (La.): Leading case on R. 8.3 issues
a) Facts: Fellow attorney friend (and former assistant DA) who was dying of cancer
revealed to Riehlmann that he concealed evidence that could have exculpated a former
defendant. At the time R was having personal and family issues. R disclosed the
information 5 years later when he discovered the former defendant was on death row. If
R had not come forward with the information, the guy would have been put to death.
b) This is serious enough that it would have to be reported under 8.3.
c) Because he didn’t withhold the information maliciously, R was just publicly
reprimanded. Was this too light or too heavy? Does this penalty make it seem like the
LASC doesn’t take 8.3 too seriously?
d) Brady Material: information that could shed light on the defendant’s penalty or
prosecution must be brought forward by the prosecution. They have to come forward
with exculpatory evidence.
e) What is “knowledge” under R. 8.3?
(1) “A lawyer will be found to have knowledge of reportable misconduct, and
thus reporting is required, where the supporting evidence is such that a
reasonable lawyer under the circumstances would form a firm belief that the
conduct in question had more likely than not occurred.”
(2) Thus, absolute certainty is not required, but there must be more than a mere
suspicion.
(3) A “reasonable time under the circumstances” is interpreted as “promptly.” 5
years was not “prompt” under the circumstances. [he waited too long]
(4) The obligation to report is satisfied when, in La., you have reported to the
Office of Disciplinary Counsel. If you report to anyone else, it won’t count!
[didn’t report to correct person]
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5. Mitigating Circumstances? Lawyer says the reason he didn’t report it was due to his mental
instability (family member’s heart surgery, depression, marriage collapsed, etc.) Even if these
were mitigating, seems unlikely these mental conditions would last for 5 years.
6. Reporting another lawyer’s misconduct to disciplinary authorities is an important duty of
every lawyer. Lawyers are in the best position to observe professional misconduct and to assist
the profession in sanctioning it. While a Louisiana lawyer is subject to discipline for not
reporting misconduct it is our hope is that lawyers will comply with their reporting obligation
primarily because they are ethical people who want to serve their clients and the public well.
Moreover, the lawyer’s duty to report professional misconduct is the foundation for the claim
that we can be trusted to regulate ourselves as a profession. If we fail our duty, we forfeit that
trust and have no right to enjoy the privilege of self-regulation or the confidence and respect of
the public.
7. The Exception for R. 1.6: 1.6 usually Trumps all other rules, it has a crushing effect.
a) How broad is this exception? R. 1.6 requires lawyers to keep confidential all matters
relating to the representation of a client.
b) Some think that R. 1.6 swallows the reporting rule. Most of the information lawyers
receive comes in connection with the representation of a client!
c) This was one of the defenses Himmel tried to raise. It failed there, but that doesn’t
mean that it might not be successful somewhere else.
8. The Responsibility for Ethical Misconduct by Colleagues and Superiors
a) Notes that the rules that follow do not impose firm-wide responsibility, although
some states do embrace the “law firm rule.” You will generally only be responsible for
the conduct of another lawyer where you supervise them or are in a managerial capacity.
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b) See Rule 5.1:
Rule 5.1 Responsibilities Of Partners, Managers, and Supervisory Lawyers
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable
managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect
measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional
Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to
ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other
lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct
at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial
action.
(1) If the associate reported the solo practitioner (her supervisor), would she also
have to report her own incompetence [1.1]?
(2) The LASC has said that there is a duty to supervise staff (paralegals,
secretaries), and to make sure that they don’t engage in the unauthorized
practice of law.
(3) Notice that in R. 5.1, any lawyer can be held responsible for the violation of
the rules by some other lawyers. This sounds a lot like agency liability.
(4) In small firms of experienced lawyers, informal supervision and periodic
review may suffice, while more elaborate measures may be needed in large firms.
(5) Keep in mind that “law firm” is a broad concept, that includes all kinds of legal
organizations.
(6) A supervising lawyer will not be responsible for a subordinate lawyer’s
violation if the supervisor did not direct or know about it.
(7) Under (c)(2), any partner in the firm who knows of the improper conduct and
fails to take action to reduce or prevent the harm also commits a violation. In
organizations without partners, other lawyers with comparable managerial
authority are equally responsible.
(8) The firm should have systems in place to make sure every lawyer is competent
to do their work
(9) Responsible for others in certain situations
(10)
Remember Castro  fudge med records guy  his supervisor got
disbarred as well
(11)
Rule 5.3 is same thing but for non-lawyer assistants (paralegals)
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c) Rule 5.2 (escape clause) explains when a subordinate lawyer is responsible for her
own conduct, and under what circumstances she may follow orders without fear of
discipline.
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.
(1) Lawyers cannot avoid responsibility for “following orders.” However, where
the supervisor directed the action, the subordinate lawyer may be able to prove that
she did not actually know that he action was improper.
(2) (b) creates a safe harbor for junior lawyers who defer to the judgment of
their superiors on questions that have more than one reasonable answer.
(3) Under (b), the supervisor may be disciplined where he turns out to be wrong. If
the supervisor was so wrong that his belief that the action was proper was
unreasonable, the subordinate may also be disciplined.
(4) (b) might have the unintended effect of counseling associates to follow orders
and not ask too many questions.
d) Rule 5.3 explains the responsibilities of lawyers who supervise nonlawyers
employees for ensuring that the employees comply with the rules of professional conduct,
and explains when a lawyer may be subject to discipline based on the conduct of a
nonlawyer employee.
Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial
authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving
reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that
the person's conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of
Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is
employed, or has direct supervisory authority over the person, and knows of the conduct at a time when
its consequences can be avoided or mitigated but fails to take reasonable remedial action.
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9. 1-3 The Little Hearing
a) Recent law school graduate working with solo immigration law practitioner. He
assigns the new lawyer to represent a client in a hearing, but she isn’t prepared at all. All
he does it hands her a treatise.
b) See Rule 1.1 and the requirement of competent representation: A lawyer shall
provide competent representation to a client. Competent representation requires the legal
knowledge, skill, thoroughness and preparation reasonably necessary for the
representation.
c) What happens if you don’t satisfy the obligations of R. 1.1? Would the sanction have
been different if she had been practicing more than 2 days?
d) Under rules 5.1 and 5.3
e) Back to R. 8.3: Did the other lawyer observing the associate have a duty to report her
incompetence? Note that incompetence may fit into the phrase “fitness in other respects”
in R. 8.3.
f) Under R. 8.3, do you have to report yourself?
(1) The phrase, “a lawyer who knows that another lawyer...” implies that you
don’t have to report yourself.
(2) The LASC has implied that reporting yourself to the ODC is a good thing – the
court regards the reporting duty as applying to yourself. However, this is
inconsistent with the plain meaning of the rule.
(3) While there may be no affirmative duty to report yourself, if you do, it might
be a mitigating factor considered by the court.
10. Protections for Lawyers that Blow the Whistle
a) Typically, if you complain to the disciplinary authorities about your supervisor, then
you’re likely to get fired under the employment at will theory. Law firms, fearing the loss
of clients, bad publicity or higher malpractice insurance premiums, have often been hard
on any whistle-blowers.
b) A lawyer who is told to do something that the lawyer thinks is unethical has several
options:
(1) Accept the directions of the superior
(2) Argue with the superior
(3) Discuss the problem with another superior
(4) Do more research or investigation to try to clarify the problem
(5) Ask to be relieved from work on the matter
(6) Resign (or be fired) from employment
c) Wieder v. Skala (NY 1992)
(1) The associate blew the whistle on a partner at his firm.
(2) Rule: Retaliatory discharge for reporting a violation of the Rules is not
allowed. When a firm discharges a lawyer for making such a report, the discharged
lawyer can sue for breach of K. It is an implied term of the employment K that you
won’t be discharged for following the Rules. This is an exception to employment
at will.
(3) Jacobson (IL) declined to follow the NY court.
(4) While this protection seems like a good thing, it may still not help in re: to
employment opportunities.
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d) Kelly v. Hunton & Williams (Wolas case) (E.D.N.Y. 1999)
(1) Facts: Kelly and 2 other associates realized that Wolas was billing for hours
that he wasn’t working (i.e. committing fraud). Instead of working, he was
defrauding investors and clients. Some of the partners the associates went to at the
firm were investing in this fraudulent scheme. There was a “hearing” within the
firm, and Wolas was found not guilty – the associates were told that they had no
obligation to take their allegations any further. Kelly was forced to resign
(allegedly for “poor performance”), and this action was brought against his former
employer, alleging that the firm breached implied contractual obligations owed to
him when it terminated his employment with the firm. Because Kelly was not
admitted to the bar at the time of the occurrences, H&W argued that Kelly was
essentially a clerk, not bound by the disciplinary rules.
(2) Wolas’ behavior clearly violated R. 8.4(c): Conduct involving fraud, etc. Kelly
had a duty to report this.
(3) Court’s response:
(a) “While associates not yet admitted to the bar are not officially
attorneys, it would be anomalous to permit these associates to ignore
unethical behavior that admitted associates are required to report.”
(b) Court relied on Weider as an exception to the employment-at-will
doctrine
(c) “If a law firm fires an associate in retaliation for reporting a lawyer’s
misconduct to the firm, its action is inherently coercive and necessarily
implies an effort to impede post-termination reporting to the Disciplinary
Committee. Thus, a cause of action is available under Wieder.”
(d) The court recognized that Wieder was a narrow exception to at-will
employment, but that it was not going to give it a crabbed construction.
(e) Summary judgment was denied for H&W, and if the jury resolved the
disputed issues of fact in Kelly’s favor, it may properly conclude that
H&W breached its employment K with him.
(f) The 8.3 duty is part of the employment agreement, therefore you
can’t fire someone for blowing the whistle.
(4) La. law on this public policy exception to the employment at will: See R.S.
23:967 ==> Some protection from retaliatory discharge for providing information
about a violation of state law (the issue then becomes whether the ethical rules are
“state law”).
(a) So there’s a whistleblower protection in LA
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Mal Practice in General:
Negligence
Duty: Duty to the client: (attorney client privilege). In order to get malpractice need the
attorney/client relationship and need duty of care associated with it. Lawyer failed to exercise
“the competence and diligence normally exercised by lawyers in similar circumstances.” We
don’t care how long you have been in practice Location we normally don’t take into account
wither but in LA we look at the standard of care for a lawyer in the “locality” involved.
- What if pro-bono: standard of care is the same.
- What if a wealthy classmate client wants to pay attorney a lot per hour:
the cleanest way to do it is to refer the client to another attorney
(avoiding malpractice issue). [or get help from co-counsel or learn it]
Breach: With breach if criminal need to prove innocent; civil is “case within a case” need to
prove you would have won but for the attorney.
 Legal mal-practice
 Lawyer owes a duty to ∏
 That the lawyer failed to exercise “the competence and diligence normally
exercised by lawyers in similar circumstances”
 That the breach of duty caused harm to the ∏
Causation
Damages
Breach of Contract
Breach of fiduciary
o Note that a criminal ∆ has to prove their innocence to sue for mal-practice
o Civil side  case within a case idea. You have to prove you would have won but for the malpractice.
o The duty has to come from the attorney- client relationship. What about 3rd parties? Normally the
answer is no because we no privity. But there are some circumstances. Think about if lawyer
messes up will, then the heirs could sue.
o 66% of claims brought against lawyers working for 10 years
o 80% of claims brought against small firms. But really big payouts are for the bug firms typically.
o Oregon only place which requires mal-practice insurance. Lot of others states make lawyer
reveal if has or not and let marketplace decide. LA does not do this.
A lawyer can be liable to a 3rd party who is not his client: Among the 3rd parties to whom a lawyer owes
duties are prospective clients and people who are intended beneficiaries of the lawyers work for a client,
such as those who will inherit assets under a will drafted by the lawyer. Opinion letter ensuring finance
security of corporation and then go under.
Malpractice Insurance:
Most state (not LA) lawyers are required to tell clients if they have malpractice insurance or not it’s the
idea of let the market decide if they want lawyers with mal practice insurance so it does not become
another regulation for lawyers. Actions for legal malpractice… p.20 in supp. Our LA statute is very
lawyer friendly 9:5605. We have a prescriptive component and a peremptive component. You are
barred within 3 years total from the alleged mal practice but you have prescription of 1 year from time
of malpractice OR if didn’t know when you knew or should have known. Don’t count the day the
incident happened. Also, exception for fraud.
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
La. Rev. Stat. 9:5605. Actions for legal malpractice
o Jan 5 2008
 What happened on this day what a real estate closing and there was a defect in the act
of sale and now it’s invalid.
o Sept 20 2008
 Client learns of this
o When is the latest the client can sue?
 (A) One year from the date of the act or from discovery
 Sept 21 2009
o What if the date changes to Sep 10 2010 when client finds out
 The preemptive period cuts it off at Jan 6 2011 (as opposed to Sep 11 2011)
o There is a 3 year preemptive period and 1 year prescriptive period
o Exception for fraud
Client Protection Funds
This is a fund in each state for which money is set aside to help clients recover if their lawyers steal their
money. Mal practice does not help you for intentional acts OR theft. We have on in LA to help but
likely not that helpful. There is a 25,000 cap.
Discussion of Ethics vs. Mal practice
The scope of the model rules states “Violation of a Rule should not itself give rise to a cause of action
against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.
In addition, violation of a Rule does not necessarily warrant any other non-disciplinary remedy, such as
disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to
lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not
designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when
they are invoked by opposing parties as procedural weapon. The fact that a Rule is a just basis of a
lawyer’s self-assessment, or for sanctioning a lawyers under the administration for a disciplinary
authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek
enforcement for the Rule. Nonetheless, since the Rules do established standards of conduct by lawyers, a
lawyer’s violation of a rule may be evidence of a breach of the applicable standard of conduct.” Last
sentence takes away that separation of ethics and mal practice.
- Many people would expect the ethics requirements to be higher in
standard than mal practice if not it makes for a not friendly working
environment fro lawyers always after one another. Nevertheless it
seems ethics rules can be sued as a breach for mal practice.
- LA took out the aspirational reach of any ethical rules. History of the
DC (rules which help punishment) and the EC (ethical rules for feel
good but could not be punished well people were being punished for
violating the EC’s).
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The Duty to Protect Client Confidences
G. Introduction: Attorney-Client Privilege v. Duty of Confidentiality
1. Judges will use the word “privilege” to describe “confidentiality” and vice versa. THESE
THINGS ARE DIFFERENT!!!
2. Confidentiality comes from ethics. The attorney-client privilege comes from evidence law –
it is not a duty, but a shield to protect confidential information from compelled disclosures
(where there is some legal compulsion or power of the court behind the command).
Confidentiality is not a shield, but a duty to keep quiet. Privilege is a shield, to protect from
questions. Confidentiality is an element of both, though.
3. There are certain elements required to even evoke the attorney-client privilege; however, the
scope of the duty of confidentiality is unclear. There are exceptions to both, and they are not the
same.
H. The Basic Principle of Confidentiality
1. Protection of “information relating to the representation of a “client”
a) Rule 1.6
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 interests 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 interests or property of another that is
reasonably certain to result or has resulted from the client's commission of a crime or fraud in
furtherance of which the client has used the lawyer's services;
(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.
(1) This rule requires lawyers to protect as confidential all information relating to
the representation of a client. The information need not be received from the
client in order for it to fall under the confidentiality duty.
(2) Part (a) describes the basic duty of confidentiality. There are exceptions
already built into the basic rule:
(a) Informed consent by the client
(b) Impliedly authorized disclosure necessary to carry out the
representation.
(3) Part (b) lays out the exceptions. There are other exceptions that are not put in
the rule.
(4) Note the scope of the duty: It covers information relating to the representation
of a client (all information – this is huge!).
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(5) Cmt. 4: The prohibition in para (a) also applies to disclosures by a lawyer that
do not in themselves reveal protected information, but could reasonably lead to the
discovery of such information by a third person. The use of a hypo is to discuss
issues is permissible, as long as there is no reasonable likelihood that the listener
will be able to ascertain the identity of the client.
(6) Information that is “generally known” will not fall under the confidentiality
duty. Perhaps a lawyer may even reveal confidences if the layer keeps the identity
of the client sufficiently hidden, as long as no harm could result from telling the
story – the rule doesn’t say this, but that’s how its understood. Generally, most
important details about a client’s representation cannot be divulged, even years
after the representation has terminated.
(7) Note that information acquired before the representation begins and after the
representation terminates is protected by this duty.
(8) Restatement – more forgiving stating that so long as disclosure if reasonable
prospect will adversely affect client.
(9) Authors of the text stick with anonymity and if there is a marginal call air on
the side of caution and don’t speak.
b) What could happen if a lawyer fails to protect confidences? A number of things:
the client might fire the lawyer or refuse to pay the fee, professional disciplinary action,
liability in tort or K, disqualification from representation, or an injunction from further
revelation.
c) What is the policy behind the confidentiality rule? The purpose is to facilitate
open communication between lawyers and clients.
d) Is the fact that a lawyer is representing a particular client confidential? Maybe.
If a lawyer, with the client’s permission, reveals that she is representing a particular
client, she must then avoid disclosing confidential information about the client’s matter.
In cases where the client doesn’t want anyone knowing that they have consulted an
attorney, the fact of consultation or representation will be confidential.
e) 2-1: Your Dinner with Anna, Scene 1 (p. 155)
(1) A non-lawyer friend asks what you have done at your new job. What can you
tell her? Most courts say that as long as you don’t give identifying specifics about
your client (names, dates, etc.), then you won’t breach the duty. Under rule 1.6.
(2) The purpose behind this confidentiality rule could be to avoid embarrassment,
and to encourage truth telling from client to lawyer.
This is similar to doctor-patient confidentiality, it aids to encourage truth-telling
from the patient/client.
(3) What if you swore her to secrecy? This is probably not a good idea, as Anna
may prove to be unreliable. There is also the risk of telling her this stuff in a public
place – a third person might overhear. You probably need to be more cautious in
smaller towns.
(4) It is also dangerous to breach client confidences just because of the reputation
you would develop (economic consequences as well as disciplinary).
(5) There’s not much in this conversation, about Joey’s story, that should be
shared.
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2. Protection of information if there is a reasonable prospect of harm to the client’s
interests
a) Restatement of the Law Governing Lawyers
(1) The rule prohibits revelation of such information only if there is a reasonable
prospect that doing so will adversely affect a material interest of the client or if
the client has instructed the lawyer not to use or disclose such information.
(2) “Adverse effects” include frustration of client’s objectives, material
misfortune, disadvantage or other prejudice, financial or physical harm to the
client, or personal embarrassment.
(3) This rule is considerably narrower than R. 1.6 – there is a lower standard of
secrecy and not as much will fall under “confidential client information.” It allows
lawyers to expose much more information.
(4) 1.6 versus Restatement
(a) 1.6: Bright line approach
(b) Restatement: Distinguishes between information that could harm the
client and that that wouldn’t.
(5) Despite this rule, the LASC seems to follow R. 1.6, just the way it is written in
the model rules.
(6) How do you know if there is a reasonable prospect of harm to a client’s
interests? This depends on whether a lawyer of reasonable caution, considering
only the client’s objectives, would regard use or disclosure in the circumstances as
creating an unreasonable risk of adverse effect either to those objectives or to
other interests of the client. This is basically a judgment call.
3. Misc. stuff
a) Doctors and other professionals are subject to a duty of confidentiality as well.
b) This duty will apply whether you are talking to a friend, your spouse or other
attorneys that have no involvement in the case.
c) The confidentiality duty lasts forever, not just when the case is resolved.
d) The policy behind R. 1.6: To allow the free flow of information between attorney and
client, so that the client can get the best representation possible. The administration of
justice is the societal interest that is furthered, and this is also so that citizens are better
served by the legal profession.
e) Notice that there is no exception to R. 1.6 for information within the public domain!!
Louisiana is a bit softer about information in public domain meaning if in public domain
then not confidential under 1.6 but need to be sure understand no exception if it is in the
public domain.
4. Bottom line: There is none! 1.6 doesn’t really take into account the fact that lawyers are
humans that talk to family and friends. Although 1.6 doesn’t mention a reasonable prospect of
harm test, cmt. 4 acknowledges that at least in some circumstances, a lawyer may talk
hypothetically about a case as long as the identity of the client is protected. Keep in mind that La.
has not adopted the comments! In general, try to resolve the gray issues in favor of
nondisclosure.
The Legal Profession – Smith
Spring 2008
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I. Exceptions to the Duty to Protect Confidences
1. In general
a) A lawyer cannot reveal confidences unless:
(1) The client gives informed consent;
(2) The disclosure is impliedly authorized in order to carry out the representation;
OR
(3) It is permitted by paragraph (b)
b) 1.6(b) provides a list of permissive excepted circumstances in which the lawyer may
reveal client confidences, to the extent the lawyer reasonably believes necessary (narrow
the content as much as you can and only tell as many people as you need to). However,
before making a disclosure under (b), you should try to persuade your client to take
action that will obviate the need for disclosure.
c) List of exceptions:
(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 financial interests 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 interests or
property of another that is reasonably certain to result or has resulted from the
client’s commission of a crime or fraud in furtherance of which the client has used
the lawyer’s services.
(a) This addresses the situation where the lawyer doesn’t learn about the
crime/fraud until after its been committed.
(b) This does not apply when a person who has committed a crime or
fraud thereafter employs a lawyer for representation concerning the
offense.
(4) To secure legal advice about the lawyer’s compliance with the ethical 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 on conduct that lawyer was involved in, or to
respond to allegations in any proceeding concerning the lawyer’s representation of
the client.
(6) To comply with other law or a court order.
The Legal Profession – Smith
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2. Revelation of past criminal conduct
a) There is a broad consensus in the legal profession that information about most PAST
criminal activity by clients should be kept confidential. The lawyer in this instance can no
longer prevent the crime from happening by revealing the information, and society
benefits by the fair administration of justice and by clients having unobstructed access to
counsel.
b) 3-3 The Missing Persons, Scene 1 (Belge case)
(1) Facts: Garrow admits to you that he committed the murder he’s being
prosecuted for. He also confesses that he killed some other kids, and told you
where he hid the bodies.
(2) The actual attorneys in the case went out and found the bodies, to verify
Garrow’s story. Knowing the location of the bodies gave Garrow’s attorneys
leverage in the plea bargain. Garrow later sued his attorneys alleging ineffective
assistance of counsel – the court held in favor of the attorneys, on grounds of
privileged communication
(3) What if Garrow had wished to keep the location of the bodies secret? R. 1.6
may provide an exception to disclosure. Just because the information was going to
be used as leverage in a plea bargain does not mean that it was impliedly
authorized by the client.
(4) What is “informed consent”? See R. 1.0(e): 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.
(5) The rule permits disclosure of client confidences to save a life or prevent
substantial bodily harm. However, you are not compelled to do so – there is no
obligation to disclose.
c) 2-4 The Missing Persons, Scene 2
(1) What if the parents of the missing kids come to your office, asking if you know
whether their kids are alive or dead?
(2) Remember that you are permitted to disclose to prevent harm or death. If the
harm/death has already happened, then there is nothing left to prevent, and
therefore, you cannot reveal anything under 1.6.
d) 2-5 The Missing Persons, Scene 3
(1) What if, at trial, Garrow basically admits he had been stalking co-counsel’s
daughter, he is convicted and put in jail, and then later escapes? As his former
counsel, you know where he hides when he escapes.
(2) Revelation of confidences might be appropriate in this case to prevent future
bodily harm. You know this guy likes to kill kids – substantial bodily harm is
likely to result unless you tell the police where he’s hiding. In the actual case,
counsel told the police where Garrow had hidden in the past and the police found
him in that same spot.
(3) LA rule used to be consistent with the ABA rule. The old rule said you could
make the disclosure to prevent a criminal act that could likely result substantial
bodily harm or death.
The Legal Profession – Smith
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3. The risk of future injury or death
a) Under this exception, it does not matter whether the possible harm will be perpetrated
by the client or another person – what matters is the magnitude of the harm and the
probability that it will happen.
b) Cmt. 6: Harm will be reasonably certain to occur if:
(1) It will be suffered imminently or
(2) If there is a present and substantial threat that a person will suffer the harm at
a later date if the attorney doesn’t make the disclosure.
c) The contemplated harm need not be criminal in order to fall under this exception.
d) Spaulding v. Zimmerman (Minn. 1962)
(1) Facts: There was a car crash at an intersection with no stop signs. Spaulding
was riding in the Zimmerman car, and was severely injured. Spaulding’s Dr.
performed an evaluation on him, and said he’d be ok. The Zimmerman’s Dr. also
performed an evaluation, and the Dr. found an aorta aneurism.
(2) Issue: Does the D’s dr. disclose this to the victim?
(3) The lawyers in this case decided not to divulge the information out of fear that
the settlement amount would increase. The surgery that Spaulding eventually had
to have costed more than what he was paid in settlement.
(4) Here, the court threw out the settlement. While there was no requirement to
disclose the aneurism, the settlement obviously did not take this fact into account.
(5) The earlier version of 1.6 would not have permitted disclosure, so
(6) The lawyers here could have disclosed this information even if the D’s had
forbade it, since it would have been to save a life.
(a) 1.6 didn’t include the exceptions we have now. 1st ask client’s
permission then if they say no use the exception. But remember even in
LA this is a MAY under 1.6 but need to read with 4.1 b/c that is a MUST.
(7) Suppose clients didn’t want you to disclose it (even if they knew the severity of
the medical condition)? Now, 1.6b2 lets us do it, but without that rule,
e) 2-6: Your Dinner with Anna, Scene 3
(1) Facts: You’re working on a case for Diet Kola, and tests have shown that it
causes birth defects. You have a friend that only drinks Diet Kola and milk
because she’s pregnant. Do you tell your friend?
(2) It’s a stretch, but is may fall into the preventing harm/death exception to
confidentiality in R. 1.6. However, if the tests are speculative, then this might not
be enough under 1.6(b)(1).
(3) While you might want to violate the rule to help your friend and her unborn
child, this information likely would not fall into an exception of R. 1.6.
(4) Under the Restatement standard, it is possible that you could discuss the case
with your friend if you didn’t reveal any information from which the client’s
identity could be ascertained. Even if the identity could be ascertained, the
information could be revealed if there was no “reasonable prospect” that the
discussion would adversely affect the client’s interests.
(a) Under 1.6 we don’t care where she got the information from if it’s an
article even if you didn’t find out from the client themselves but that does
not matter because its “anything that pertains to the representation”
regardless where you got the information from. If see article can’t give it
to her if adversary.
(b) What could you do? This is 1.6 information and can’t reveal it. This
is a lot like Spaulding because do you help friend and break rule or don’t
help like Spaulding and let her take the risk.
The Legal Profession – Smith
27
Spring 2008
4. Client frauds and crimes that cause financial harm
a) Lawyers are not permitted to assist clients in committing criminal or fraudulent acts,
but sometimes lawyers help clients file papers that include false information without
realizing that the information is false. What are the lawyer’s obligations to his client
and/or the harmed party?
b) Enron and the Sarbanes-Oxley Act
(1) After Enron, which involved massive corporate fraud committed by
accountants and lawyers, Congress passed SOX to prevent further episodes like
this.
(2) SEC rule: Lawyers who practice before the Commission or who advice
companies regulated by the Comm. are required to report any information about
securities fraud to the highest official to the corporation. It requires the lawyer to
take action if within scope he must go up corporate chain to get is resolved. This
reach is narrow. Blow whistle up corporate later. Does not require lawyer to go
outside.
(3) The SEC only refrained from imposing more stringent reporting obligations on
lawyers because the ABA amended its model rules to permit lawyers to blow the
whistle on their clients’ frauds.
(4) Under rule 1.13, there is a circumstance that a lawyer could be required to go
outside the corporation to report a violation…more later…
c) The ethical rules on revelation of client crimes and frauds
(1) Before Enron, the model rules gave lawyers no discretion to reveal confidential
information to prevent or mitigate the harm from client fraud.
(2) The initial proposal was to make disclosure of client crime and fraud
mandatory, but this was withdrawn. In substitution, lawyers were allowed
discretion to decide whether to reveal those crimes and frauds. These exceptions
are now contained in (b)(2) and (3). B2 and B3 are the only provisions under 1.6
that have to deal with the lawyer’s “services”
(3) These exceptions look very similar but there are subtle distinctions:
(a) (b)(2): Applies to situations where the client plans to commit or is
committing the crime or fraud.
(b) (b)(3): Applies to the situations of past crime or fraud.
(c) (b)(4): it’s OK to get advice (best phrased as a hypothetical)
(d) (b)(5):
(4) Under these two rules, a lawyer may reveal client criminal or fraudulent
conduct whether it is past, ongoing or future if:
(a) There is reasonable certainty that the client’s conduct will result in financial
injury or injury to the property of another person;
(b) The client is using or has used the lawyer’s services in committing the act(s);
and,
(c) The purpose of revealing the confidences is to prevent the criminal of
fraudulent act OR to prevent, mitigate, or rectify the harm resulting from the
act(s).
(5) Physical versus financial harm
(a) Physical: The rules focus on whether the harm was in the past or the future,
and on the severity of the harm caused.
(b) Financial: It’s much less clear whether the act that caused the harm was in
the past or the future. A lie told last year about the financial status of the
company may be relied upon next month by a stock purchaser. Therefore the
rules allow revelation of confidences about past, present OR future client fraud
that has caused financial harm.
The Legal Profession – Smith
Spring 2008
28
(6) The lawyer can ONLY reveal such information if the lawyer’s services were
used in perpetration of the criminal or fraudulent act. Note that where the lawyer’s
services were used to commit the act, disclosure in these instances is permissive.
(7) Aside from 1.6(b)(2)&(3), there are many other provisions dealing with fraud
in the model rules:
(a) See R. 1.2(d) (explained further below): A lawyer shall not counsel a
client to engage, or assist a client, in conduct that the lawyer knows is
criminal or fraudulent, 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, scope, meaning
or application of the law.
(b) So now we know they are we assisting in a criminal or fraudulent act.
Put together 1.6 and 4.1 so now we can take action when we find out we
have become involved. Client comes to you for criminal defense case – he
said he killed her but he wants your defense but he also has fraudulent
scheme to rip off senior citizens but go back to murder case.
(i)
Can you disclose plans to engage in fraud? Can’t use 1.6
because not using 1.6. 4.1 seems to urge duty to disclose [could be
a stretch]
(c) Coming you to fraud but says he is going to kill someone? Well that is
exception to 1.6 to prevent reasonably certain death. This is clear.
(d) In either case is it related to representation? No, neither are related to
the representation. If it is its covered by 1.6 but what if its not then no
duty to not reveal. If it’s not 1.6 don’t have duty of confidence. Kill
someone in lawsuit he asks to defend. This is hard if unrelated.
(e) See R. 4.1…
Rule 4.1 Truthfulness In Statements To Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule
1.6.
…this one isn’t likely to come up in a whole lot of cases, but it does come up.
- You know the how deal is a scam [Reese’s leases] do you now have a
duty? Yes, but 1.6 cuts off the duty BUT under 1.6 its permissible
(B)(2-3) so its not prohibited.
- You CAN under 1.6(B)(2)
- Also have a DUTY under 4.1
(i)
Note that whereas 1.6(b)2&3 revelation is permissive,
revelation under 4.1 is MANDATORY, unless prohibited by 1.6.
(ii)
This means that in any situation in which a lawyer’s failure
to reveal would constitute “assisting a criminal or fraudulent act,”
4.1 requires a lawyer to reveal the information. This is clearly a
little inconsistent with 1.6 – the lawyer’s discretion to reveal
information in 1.6 is totally restricted by 4.1. We’re not sure why
this is the case. It probably has to do with the timing of
amendments and the failure to make all the rules consistent.
The Legal Profession – Smith
Spring 2008
29
(iii)
Cmt. 3 to R. 4.1or the Noisy Withdrawal: This does not
require that you have to disclose all the facts of the fraud, but you
have the option of disaffirming the documents and withdrawing
from representation. The injured third party may inquire further
about the fraudulent conduct, but you don’t have to do anything
else.
(a) Why isn’t this in the rule? There was a big fight when
the noisy withdrawal provision was included in the rule.
Putting it in a comment was a compromise.
(b) There has been revision since the rule was promulgated,
and yet this still remains in the comment. We’re not sure
where the LASC stands on this.
(1) The bank is considering the loan and now you know it’s a scam
(a) Just looking at Rule 4.1 do you have a DUTY to blow the whistle to
the bank??????
(b) Material fact  phony leases that loan based on
(c) You could tell the bank about that. Yes because Rule 1.6(b)2 or (b)3
(d) So permission and a duty.
(2) Hypo  Client comes to you help for defense of murder. Admits to the murder.
Also wants to defraud old people and tells you about the scheme. Then goes back to
talking about the murder. Can you disclose the scheme for fraud?
(a) Under Rule 4.1 do you need to disclose to not assist in the fraud?
(b) Does it have anything to do with the representation? If so that under Rule
1.6. If not then there is no duty not to disclose.
(3) Hypo Suppose representing a client sued for fraud. Sick and tired of person
involved in the fraud and he wants to murder him right away. Can you call and warn
him?
(a) If you really think he means it than an exception to Rule 1.6 and therefore
you can warn the guy
b) Fraud by a client, not assisted by a lawyer
(1) What if the client tells her lawyer in confidence about a crime/fraud that she
has committed or is contemplating, and the lawyer has nothing to do with it?
(2) Rule 1.6 does NOT allow a lawyer who has not assisted in the bad act to make
a disclosure to protect another person from injury. In this instance, the lawyer may
only make a disclosure to prevent reasonably certain death or substantial bodily
harm (since that exception does not require the lawyer to be involved in the bad
act).
c) Fraud by a client, assisted by a lawyer
(1) In this instance, the lawyer may be criminally charged with abetting the client’s
fraud, and will also violate rule 1.2(d): A lawyer shall not counsel a client to engage,
or assist a client, in conduct that the lawyer knows is criminal or fraudulent.
(2) What if the lawyer assists the client without knowledge that she’s helping to
commit the fraud? The lawyer may make a disclosure to prevent the fraud, or to
mitigate/rectify the harm. However, the lawyer will not violate 1.2(d), as the lawyer
did not knowingly commit conduct that she thought was criminal or fraudulent.
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d) What is fraud? A primer
(1) To comply with all these rules, it is necessary that a lawyer be able to
determine what is fraudulent conduct and what isn’t.
(2) In general, the term refers to deliberate deception, but the term may be defined
differently in criminal, tort, contract and legal ethics rules.
(3) Rule 1.0(d) defines fraud for purposes of the model rules: Conduct that is
fraudulent under the substantive or procedural law of the applicable jurisdiction
and has a purpose to deceive. This definition of fraud may not clarify the meaning
of the term, since there are so many different standards for conduct to be
considered “fraudulent.” Note that different standards may or may not require that
the conduct be intentionally deceptive.
(4) Fraud does not include merely negligent misrepresentation or negligent failure
to disclosure material information. For purposes of these rules it is not necessary
that anyone has suffered damages or relied on the misrepresentation or failure to
inform.
(5) In certain contexts, omissions and half-truths as well as false representations
can be fraud.
(6) How can a lawyer know whether he is assisting in client fraud? It depends on
the context . . .
(a) Before a tribunal: If the lawyer has offered false testimony, failure to
disclose that fact to the court would constitute assisting fraud. The
language in 3.3, “assisting a criminal or fraudulent act by the client” is not
limited to the criminal law concepts of aiding and abetting or
subordination.
(b) In dealing with a third party: 1.2 bars only assisting a client in conduct
that the lawyer knows is fraudulent. However, note that actual knowledge
is not necessarily the standard – disciplinary authorities may infer from the
circumstances that a lawyer did know that the legal assistance would be
used for fraudulent purposes.
(7) A red flag should go up any time a client’s past or contemplated conduct
appears to involve an intentional or knowing misrepresentation to another person.
(8) While the ethics rules give lawyers discretion to reveal client fraud, they will
not be protected from civil or criminal liability if they elect not to reveal the fraud.
The ethics rules do not set standards for civil or criminal liability – just discipline.
(9) What if the lawyer who assists in committing the fraud does not reveal the
information – what other obligations are there? If the lawyer decides not to
disclose the specifics of the fraud, she must nevertheless withdraw from the
representation. This is required by both 1.2(d) and 1.16(a)(1). In the course of
withdrawing, the lawyer may, short of actually revealing the fraud, simply
“disaffirm” the document prepared that contains fraudulent content. This is
referred to as a noisy withdrawal.
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(10)
2-7: Reese’s Leases (based on OPM Leasing)
(a) Facts: Your client was forging documents that said that his business
was making more money than it actually was, in order to get bigger loans
from the bank. You put together the original documents, but did not play
any role in the forgery. Your client told you what was going on when you
asked, but said the fraud operation was over. What do you do when you
hear about the fraud? Phony lease and opinion letter and they both go to
bank and opinion letter says they own this car and that is true. Are you
involved in fraud? Yes you are involved in the fraud.
(b) 102(d): she hasn’t violated it by “innocently” being involved in the
operation. Once you know, you should not continue to write leases for
them. 1.2(d)
(c) Historical “noisy withdrawals” - If the lawyer dissafirms this, then he
disassociates himself from the fraud. Bank would say something is wrong
but huge red flag to the bank “noisy withdrawal” historical. Really a 1.6 [I
am no longer lawyer and disaffirming] this was comment to the rules (rule
4.1) but were never adopted in LA so it was not clear in LA but 1.6 B2-3
open broad avenues to disclosure.
 Look at 1.6(b)(2) [prevent fraud] and 1.6(b)(3) [prevent injury]: you
may do these. These are new to the ethics rules. They are present in
LA.
 Permissive but good to do because you can be insulated from the
harm.






The Legal Profession – Smith
Spring 2008
Fake leases to create higher profits
Forging signatures
Sarbanes-Oxley
 Does it reach bank loans?
 Maybe not. But if it does what should he do?
 Report them to SEC or not?
 Who is hurt here from there scam? The bank. So you would
disclose to the bank?
LA Rule 1.6
 We have the newer exceptions!
Comment after rule 4.1 (page 201)
 Noisy withdrawal
 Can disaffirm an opinion or document
 So you could say that you disaffirm all the opinion letters
you have for the bank. Now they will dig and investigate.
 Some people think that this is really Rule1.6 disclosure that
is just not in the rule.
This is based on real story. Lawyers did not do anything about the
fraud. The lawyers had to pay 20 million dollars in civil liability when
fraud collapsed.
32
2. Revealing confidences to obtain advice about legal ethics
a) A lawyer may invoke this exception to consult another lawyer for advice. The other
lawyer may be in another firm, a law professor, or a bar official.
b) Compliance with the rules is more important than protecting client confidences.
3. Using a client’s confidential information to protect the lawyer’s interests
a) R. 1.6 provides yet another exception:
(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;
b) Cmt.: A lawyer can disclose information in response to an allegation/assertion that
he’s engaged in fraud. In this instance, the lawyer will not have to wait until suit is filed
to make the disclosure.
c) There are two main instances where this would be used:
(1) To defend against allegations of misconduct (malpractice, disciplinary or
criminal proceedings). He has to defend himself.
(2) To collect a fee. You can say I will sue you and in that suit I will lay out what
I did for you. OR Do you remember you told me about your affairs – do you want
me to reveal these…pay me.
(a) What I did – yes as to say why I should be paid
(b) Affair – no
d) No more than necessary may be revealed. In these instances, the lawyer must still
take steps to narrow the amount revealed – the disclosure should be no greater than the
lawyer reasonably believes necessary to accomplish the purpose.
e) The lawyer should notify the client before using confidential information in selfdefense and should seek solutions that do not require the disclosure. The lawyer may,
however use the information even where the client does not consent.
f) The lawyer’s right to respond (and thus disclose confidences) arises when an
assertion of such complicity in wrongdoing has been made, rather than when the
complaint is filed. The lawyer does not need to await the commencement of an action or
proceeding before this right is triggered.
g) A lawyer may reveal confidences even if the allegation is made by an injured third
party rather than by a client, and even if the lawyer is not the primary target of the
allegation.
(6) to comply with other law or a court order.
h) Some consider these Rules to fall within “other law.”
i) Recall that many of the rules prohibit an attorney from assisting a client in
committing fraudulent or criminal acts.
j) It may be possible that in order to comply with these fraud provisions, that disclosure
would not only be permitted, but would be mandatory for you to avoid assisting in the
fraud or crime.
k) It is supported by solid commentary that it is an exception to the 1.6 duty where a
failure to disclose would result in a lawyer assisting a client in fraud.
l) Whether a law really requires such reporting by lawyers is a matter of interpretation
of that other law, not of the rules of professional conduct.
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B. Use or Disclosure of Confidential Information for Personal Gain or to Benefit Another Client
1. See R. 1.8(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, except as permitted or
required by these Rules.
a) This rule applies when the information is used to benefit with the lawyer or a third
person.
b) The rule does NOT prohibit use of information that does not disadvantage the client.
Even where use might disadvantage the client, the information may still be used if the
client gives informed consent.
2. Restatement: Prohibits the use of confidences “if there is a reasonable prospect that the use
will adversely affect a material interest of a client or if the client has instructed the lawyer not to
use or disclose such information.”
3. 3-8 An Investment Project
a) Suppose you purchase a piece of property with knowledge that your client plans to
build a shopping center on the parcel next to it. You would violate 1.8(b) if you are doing
this to stiff your client, since the client has an interest in this property. Sometimes, mere
disclosure isn’t considered use. “insider trading” for example is use. If it’s not to the
client’s disadvantage, then it doesn’t violate 1.8b. Although the ethics rules might not
apply, other rules might.
b) What if you tell another client to buy the property? Here, you’re not only using the
information for the benefit of another, but it’s also a disclosure prohibited by R. 1.6.
Purchasing the property yourself, you would not violate 1.6.
c) What if the client has no interest in the nearby parcel? In this instance, you are using
the confidential information provided by your client to your advantage, but not to your
client’s disadvantage, since the client doesn’t care about this piece of land.
d) Rule 1.8 Conflicts of Interest: Current Clients: Specific Rules
(1) (b)
(2) Cannot do anything against your client’s interests
(3) If you have their consent prob ok  but what if they don’t?
(a) You only need consent if the rule engages
(4) If they do not want the property than the rule probably does not engage.
e) Agent using information for the benefit of the agent without harming the principle.
(1) General rule is that the agent has a duty to account for the profits made to the
principle.
f) Use the information v. disclosing the information
g) What if you know about the advantage and you know that one of your other clients is
looking for real estate investments. You also know that the original client does not want to
buy it. So can you go to the investor client and tip them off?
(1) What is the problem?
(2) You are not using the information of your benefit OR the disadvantage of the
client
(3) So the rule does not engage.
(4) What about Rule 1.6? You are disclosing the original client’s information and
there is no exception. This is a disclosure and not a use.
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34
4. A lawyer is an agent for his client, who is the principal. There is a concept that says that if
you use information that you received from your principal that causes an economic benefit to the
agent, then the proceeds must go back to the principal [agency/principle rule but professions
rule]. Does it hold true in this instance?
5. Disclose
6. OR USE – engages to client’s disadvantage. You know advantage (A) and you know one of
your other client’s are looking for real estate (B) so you tell (B) hey I know of a good deal and
buy it b/c prices are going to go up b/c (A) is developing. You are not using for your benefit OR
disadvantage but this would be disclosure not use. Can’t do it b/c revealing 1.6 information.
Make sure know difference between the two [disclosure or use].
C. A Concluding Problem: 3-9: Rat Poison
1. Client operates extermination business, and accidentally placed industrial strength rat poison
in a home. A little kid ate it and died. Client has been charged with involuntary manslaughter.
The client admits that he also put the poison in many other homes. You instruct client to go clean
up these houses so nothing else happens, but months pass and the client keeps promising he’ll
get to it.
2. Exception to nondisclosure under R. 1.6b1: To prevent reasonably certain death or
substantial bodily harm. Is the harm in this instance reasonably certain?
Are you assisting the client if you don’t disclose?
3. Would R. 4.1(b) require disclosure here, to avoid a crime (state statute makes it a
misdemeanor to recklessly engage in conduct that creates a substantial risk of death)?
4. Could you withdraw to solve the problem?
The duty of confidentiality continues after the attorney client relationship, however, an exception
under the mitigation 1.6(3) could apply. If the attorney’s services have not been involved in the
fraud, then it might not fall under 1.6 at all.
Hypo: Your rep a client sue for fraud, but he hates one of the investors who sued him, he plans to
kill him… can you call the intended victim and inform him? You can disclose to the victim
under 1.6b1.
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II.
The Attorney Client Privilege and the Work Product Doctrine
A. Confidentiality and attorney-client privilege, compared
1. Need communication, in confidence, between privileged persons, for legal services/advice.
2. The privilege falls within the broad scope of the duty of confidentiality. It is possible that
some subject matters of the privilege may fall outside the scope of the 1.6 duty, like when
lawyer-client communications fall within an exception to 1.6.
3. Difference in source: Recall that the duty to protect confidences is imposed by ethical rules,
violation of which can result in discipline, while privilege is a matter of evidence law, which
governs what kinds of evidence can be admitted in court and can be used as a shield to prevent
evidence from coming in.
4. Under the privilege, generally, neither lawyer nor client may be compelled to testify in court
about protected communications, and neither can be penalized for noncompliance with an order
to reveal information. In instances where a court order might override the duty of confidentiality
(1.6(b)(6)), the attorney-client privilege can be invoked to crush the court order. If privileged
information is sought, the lawyer claiming the privilege might quash a subpoena or object to
compliance with a discovery request.
5. Scope
a) The confidentiality duty is very broad, covering all information related to the
representation.
b) The privilege however covers only a relatively small part of information – the part
involving communications between lawyer and client in which the client is seeking legal
advice or other legal services. The privilege can only be claimed as to the parts of a
communication that are privileged.
6. Chart: Differences between Confidentiality and Privilege
Source
Scope
Ethical duty to protect
confidences
Ethical duty, R. 1.6
Information relating to the
representation of a client
(obtained from any source)
Method of enforcement
Professional discipline
Attorney-client privileges
Common law evidence rule
Narrower scope:
confidential communication
between a lawyer and a
client for the purpose of
obtaining legal advice
Quash subpoena or
otherwise exclude the
revelation from evidence
a) Recall that the duty of confidentiality is a duty to keep your lip buttoned, but the
privilege is a shield to resist disclosure where it applies.
b) “Common law evidence rule” is not technically correct for La. La.’s Code of
Evidence provides a sophisticated provision on the privilege – it is not a common law
rule here.
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B. The Elements of the Attorney-Client Privilege
1. The following elements must be present for the privilege to be evoked:
a) “Communication”
b) between Privileged Persons
c) Communication in confidence (the client must reasonably believe that the
communication is confidential)
d) Communication for the purpose of seeking legal assistance
2. Communication
a) “Communication” basically encompasses any mode of exchanging information
between attorney and client.
b) The privilege only protects against disclosure of the information itself, not against
disclosure of the underlying facts that might have been communicated.
c) Note that communications with a prospective client or lawyer are also privileged.
d) Last link doctrine
e) Privilege protects the communication not the underlying facts.
(1) Did he kill wife? That is fact but the answer is protected if he told lawyer and
also 5th amendment.
(2) What did you talk about? Objection.
(3) Objection noted but still answer? No don’t need to answer and tell client not to
answer.
(4) Now you tell him again no to answer but he wants to answer. Tell them its
over
3. Privileged persons
a) Communications will only be protected if between lawyers and clients. However, this
includes communications with agents of a lawyer.
b) While a lawyer should not casually allow a third person to be present during a
confidential communication (might be a waiver of the privilege), what other persons
might be covered by the privilege anyway?
(1) Interpreters
(2) Persons to enable or facilitate communication or to provide psychological
support during a lawyer-client interview (like a client’s psychologist)
(3) Parents of a minor child client
(4) Guardians of incompetent persons
4. Communications in confidence
a) The client must reasonably believe that the communication is confidential.
b) No privilege will attach to communication that occurs in the presence of other people.
c) If the lawyer reveals privileged information to a friend, then this will waive the
privilege, regardless of whether the conversation took place in private or public. It is the
disclosure itself that waives the privilege.
d) Ease dropper. Usual standard of reasonable expectation of privacy so don’t think
ease dropper you don’t have threats of privilege. Lose privilege if client tells and if it’s
discussed in public. Plant watering people and listening to conversation then blown the
privilege b/c don’t have expectation. Fair number of cases with the cell phone. These
conversations can be intercepted so no reasonable expectation of privacy so don’t discuss
on phone b/c privilege will be defeated. Now technology is so advanced and area
problematic and no recent cases.
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5. Communication for the purpose of seeking legal assistance
a) The communication will only be privileged if the purpose for seeking it was for legal
advice.
b) If the client is asking for business advice, the conversion is not privileged. If a
conversation contains elements of both legal and some other kind of advice, then only the
part relating to the legal advice will be privileged. This usually comes up in the context of
in house counsel.
c) A promise or exchange of money isn’t necessary to create a lawyer-client
relationship, so the communication can be for the purpose of seeking legal advice even if
the lawyer isn’t billing the time.
d) Note that the privilege protects not only what the client says to the lawyer, but also
what the lawyer says to the client. Some cases have held that lawyer communication is
protected only if it includes information about client communications. The Restatement,
however, favors a broader coverage of confidential communication by lawyers.
e) If a client tells a lawyer some factual information during a privileged conversation,
the client is NOT protected from being compelled to testify about these facts. Only the
communication is protected.
f) The privilege will protect documents as well as conversations, as long as the lawyerclient communications are for the purpose of obtaining legal advice.
6. Murder for Hire (4-1): another prisoner overhears a prisoner’s confession about something.
Does privilege apply in a case where a prisoner was shouting and another prisoner overheard? So
it was probably not “in confidence.” Lawyer should ask for a private room, and tell the people
listening that they cannot listen. What if there was no private room? Just find the most private
spot. So when an attorney is speaking with the client, the attorney should make sure no one else
is in the room or within earshot. If there is a reasonable expectation of privacy, then that should
be OK.
a) Communication – yes
b) Confidential – ? Practical consequences of this situation. If attorney/client privilege
does not apply then the prosecutor can say “When you and lawyer were talking what did
you tell her?” Respond with attorney client privilege but if it was not confidence then
huge problem. We want to avoid discovery.
c) Between privileged persons – yes
d) Legal services/advice – yes
7. The Clandestine Videotape
a) Client rents out tables and chairs for parties. At a party, a chair breaks and a guest
alleges she is permanently hurt. Guest sues client for failing to inspect chairs. Client hears
that guest was not as hurt as she alleged, and you hire a private investigator to secretly
videotape her. She realizes she is being videotaped, and her attorney asks you for the
tape.
b) R. 1.6 cannot be used here as a shield against this evidentiary issue. We want to assert
the attorney client privilege.
c) The real question here is whether the video tape is “communication” for purposes of
the privilege. It appears that the communication is between the opponent and the lawyer’s
agent. However, it could be argued that the agent is just communicating what he saw to
the lawyer through the videotape. If he were to detail what he saw in a letter, it would be
privileged, so why not a videotape? S doesn’t think the videotape itself was subject to the
privilege, as he doesn’t buy that it was a communication.
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d) Would a conversation between a lawyer and his investigator be privileged? YES –
communications between a lawyer and his agent will be privileged. Privileged persons is
a broader category than just attorney and client – the scope of the privilege widens when
we start talking about all the persons that can be subject to it.
e) What if the lawyer has a conversation with his client, and the lawyer has been bugged
because he’s gotten in trouble with the feds? This would probably not defeat the
privilege, as long as the parties had a reasonable expectation of confidentiality. This
might be problematic where it was the lawyer that installed the listening device.
f) What if the client is asked about a privileged discussion by opposing counsel, but the
client wants to answer the question? The client is always free to waive the privilege, but
you should probably speak with him privately in the hall about keeping his mouth shut.
The opposing counsel should give you this courtesy.
C. Client Identity
1. In general, the identity of a client is NOT privileged, but the law is not entirely settled.
2. In a few cases, client identity is held to be privileged only where it represents the last link in
a chain that shows that the client had committed a criminal offense.
3. Then prosecutors have sought to learn the clients’ identities and the lawyers invoke the
privilege, judges have sometimes required disclosure while other times the privilege has been
upheld.
4. The Restatement takes the view that identity should be privileged when revelation of identity
would reveal the content of lawyer-client communications.
5. Example: Hit and Run: Do you have to tell the name the prosecutor wants to know? Her
name would be confidential (duty not to tell) under 1.6 because it deals with representation. Am
I ok under attorney-client privilege? Can you assert the privilege dealing with the identity.
Generally it’s not privilege but if it will incriminate them its called last link. Last link for the
persecutor, meaning he has all, but the name.
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D. The Privilege for Corporations
1. In general
a) While corporate clients may invoke the privilege just like individual clients, the scope
of the privilege in this context has been controversial.
b) For a long time, only communications between the lawyer and the “control group”
(upper management) were privileged. This was changed in Upjohn.
2. Upjohn Co. v. United States (1981)
a) Members of the Upjohn Corp. were bribing foreign officials. The company set up an
internal investigation (questionnaires).
b) Who has the attorney-client privilege where the client is the corporate entity? The
corporation has the privilege, and the employees and officers theoretically do not.
c) Before this case, the control group test was used, where the people who have control
over the corporation will fall within the scope of the privilege. This only included fairly
high level corporate officers.
d) This case adopts the subject matter test, where the privilege is extended to
communications with any employee or agent, so long as the communication related to the
subject matter of the representation.
e) Federal common law used “subject matter test” but not for the states. So now
we do have protection to Employee if he is giving information to the corporation.
Notwithstanding it can still be waived if the corporation waive the privilege it will
expose employee to the bribery claim.
(1) So the attorney client privilege is for the corporation but the tests
determines whos conversations are privileged.
f) The “privileged persons” aspect of atty-client privilege elements.
g) Held: In federal proceedings applying federal law, corporate entities could claim
attorney-client privilege, and the scope of the privilege should depend on the subject
matter of the communication, not on who was doing the communicating. The
corporate attorney-client privilege in federal proceedings was expenses to
communications between lawyers and low-level employees, as long as the purpose of the
communication is for the company’s legal affairs.
h) What about in state courts? They are not bound by this decision. As of 1997, 14 states
had adopted Upjohn or some variant of it. 8 states still had the control group test, and 28
states had not decided.
i) What about other business forms? The Restatement urges that neither logic nor
principle supports limiting the organizational privilege to the corporate form.
(1) Also the government does not care if the government would be more
convinced by taking the firm’s work. It would discourage firms from policing
themselves.


What if the gov is trying to get the corporation to give result to the internal investigation?
Gov wants to compel them to turn it over. If the attorney- client privilege than it would
stay privileged.
 What policy downside is this for doing this? It would prevent corporations from
conducting investigations.
 Upside  saving money
Most people believe the privilege is dead in corporation context
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3. 3-2 Worldwide Bribery
a) First, as a matter of public policy, should we allow communications regarding bribery
to be privileged? Yes, because if we didn’t protect the communication, this would
discourage corporations from voluntarily looking at their own behavior. The attorneyclient privilege always comes at a price, since it restricts the free flow of information.
b) In this instance, the officers of Horizon Corporation were engaged in rampant bribery,
and as general counsel, you have interviewed employees of the corporation to verify the
story. You and the president of the corporation agree to contact the US attorney, admit to
the bribery in general terms and offer to pay a civil fine. The US attorney responded that
federal prosecutors are willing to cut a deal with you after you turn over evidence of the
bribery. It seems reasonable that prosecutors would want to know all the facts before
making a deal. The US attorney threatens that if you don’t cooperate, then they will come
after the corporation themselves, since they now know that the corporation broke the law.
c) The bad part? The employees that disclosed information to attorneys are being hung
out to dry, since their information is being handed over to prosecutors. The corporation as
a whole is helped by the deal, but at the expense of the employees that shared
information.
d) The people that get shafted here were those that the SC tried to help in Upjohn with
the subject matter test.
e) The corporation might just want to tell the government to shove off. The government
usually won’t be able to get their act together to come after the corporation within the
statute of limitations, so they might back down.
(1) McNulty policy – US attorney office offers cooperation to reduce sentences.
Corporation might be disinclined to hand over information it waives the privilege.
Giving us the information you will waive the privilege but prosecutes will be
nice to you. WAIVE. Story – firm didn’t give the information and the
government was not quick enough and so didn’t charge the firm. Need to make
your own decision.
(2) With Upjohn is it the employees privilege or the corporation’s privilege. If
it’s the corporations privilege they get to waive the attorney/client privilege. It is
not the employee’s privilege to assert so if the corporation waives the employees
are exposed and have no privilege to assert.
E. The Crime-Fraud Exception
1. No privilege if a client seeks assistance with a crime or fraud
a) Even if the lawyer-client communication satisfies all the elements for privilege, no
privilege attaches if the client consults a lawyer for assistance (in furtherance) in
committing a crime or fraud. Also, there is no privilege for a conversation if the client
later uses the lawyer’s advice or services to commit a crime or fraud.
b) Note that the client’s intention in fact to perform a criminal or fraudulent act
triggers the crime-fraud exception. It will not matter whether the client knows the act is
criminal or fraudulent.
(1) What if a client asks a lawyer for advice, learns that the planned conduct is criminal,
and doesn’t commit the crime? The conversation should be privileged. One purpose of the
privilege is to enable clients to get sound advice from lawyers and avoid committing
criminal acts – if the privilege were to apply here, that would further this policy.
(2) What if a client consults a lawyer about a plan he knows involves a crime or fraud, but
conceals facts from the lawyer that would reveal the illegality of the scheme? The
lawyer’s knowledge or intentions are irrelevant. Only the client’s intentions are relevant –
no privilege in this case. HOWEVER, if it is the lawyer with the criminal intent and the
client is pure, then the conversation will be privileged. WEIRD.
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c) What if a client asks for advice about a crime he plans to commit, but does not ask the
lawyer to give advice that assists him in the act? There is a distinction drawn in this case.
A request for advice about whether a certain act is permitted under the law will be
privileged in most states.
d) In addition, a communication where a client asks his lawyer for advice about a
past act that was criminal or fraudulent will be privileged, as long as the past act is
really in the past. No privilege will attach if the bad act is continuing.
e) The crime/fraud (exception) applies to ongoing crime or fraud. Assistance only goes
so far we can assist them to the murder case these are privileged even though criminal.
Client comes in and admits to civil fraud so it’s not even criminal. All privileged – past.
But when on-going crime or fraud will not be covered by attorney client privilege. What
if you talk him out of it? Tell him not to do it but leaves and gets another lawyer to
engage in fraud risk the information is blown because on-going deal. IF you talk him out
of it – he does not do it privileged. Come to us for legal advice for investment scheme
and give advice to set it up and phony but we (lawyer) don’t know – not privileged.
Clients intent controls so if he wants honest scheme but lawyer gives dirty advice and
client does not know the privilege applies.
(1) He wants help with employment but also going to kill employee. Can’t
disclose about employment but tell him killing is bad idea (could tell about killing
b/c 1.6 exception) but does the privilege apply? One question could be does it fit
definition “legal assistance” he just tells you he is angry is that communication for
the purpose of legal assistance the privilege won’t apply.
(2) Judge example case - Think 2 part process 1.) tell under 1.6 but 2.) now go
after attorney tell us what he said but judge said it was covered by attorney/client
privilege. We think (so does smith) b/c it was not in legal services not privileged
OR use the fraud/crime exception. Court said attorney/client privilege protected so
said it was covered.
f) Hypo’s from class:
(1) What if your client comes to you in a confidential setting and says that he
committed murder and would like for you to represent him? The crime-fraud
exception would not apply here, since this was a past crime.
(2) The privilege will be broken if the client asks you to participate in the illegal
act – the crime has not yet been committed yet and you are precluded from helping
your client commit a crime.
(3) What happens where the client discloses his criminal plan, asks for your help,
but you decline and advise him against it too? It is not settled whether the
communication would be privileged here, but the Restatement says it would be.
(4) The crime-fraud exception will apply where you help your client commit
crime/fraud, but you’re not aware that it’s fraudulent. Look to the client’s
intentions.
(5) What if the lawyer, in carrying out his representation, commits a crime/fraud?
The exception would not apply – we don’t care if the lawyer has an evil motive. S
isn’t sure that this should be protected by the privilege.
(6) What if the client mentions committing a crime and you don’t do anything
about it? Can opposing counsel seek compelled disclosure of the statement from
you? Future crimes and fraud are the essence of the exception. The privilege would
probably not apply here at all, since the client wasn’t even seeking legal advice in
connection with the crime.
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(7) What if client tells you that he’s pissed at the judge and “intends to beat him up?”
Would that be privileged? We are not trying to raise an evidentiary shield here, but can the
lawyer do something, can he warn the judge under 1.6.? and would any exception allow
this disclosure (death or substantial bodily harm).
(a) Under 1.6b1, the lawyer could warn the judge.
(b) The prosecutors are then warned that a threat has been made to him and his
family. They bring the defendant’s lawyer in before the grand jury to testify. Can
the shield be raised? Court said it would be privileged unless the crime fraud
exception applied (which didn’t apply). Court said that client was probably not
contacting atty about a future crime/fraud. Policy says we want client to be open
with attorney, especially when it’s about potentially killing a person because the
atty can then either talk him out of it, or try to prevent the act. We want to keep
that communication privileged. The prosecutors good (but failing) argument was
that the client wasn’t contacting the atty for legal advice so it should not be
privileged. The lawyer both raised the shield, and told the judge about the threats.
g) 3-3 The Fatal Bus Crash
(1) A man was injured in a bus crash that had bought a life insurance policy previously.
The insurance company refused to pay the claim because the man died from “being taken
off life support” rather than directly from the bus crash. The P’s lawyer suspects that the
insurance company is guilty of fraud. Are communications between the insurance co.
protecting the fraud privileged?
(2) While all the elements of the attorney client privilege may be met in this case, the
privilege will be defeated where the client is using the attorney’s assistance to cover up
fraud.
2. Procedure for challenging the privilege on the basis of the exception
a) The opposing lawyer must request documents based on guesses about what might
exist or what the documents might contain.
b) He might argue for an in camera inspection of the correspondence (judge reviews the
documents privately to decide whether they are privileged).
F. The Death of the Client
1. Introduction
a) 3-4: The Dead Murderer
(1) There was a man dying of cancer on death row. He confesses to you that he committed
another murder that is being prosecuted now. Someone else is the D in that case, even
though this man was the real killer. He asks whether he would be prosecuted for
confessing to the crime. The attorney knows that there is another guy that may be
prosecuted for a crime that he didn’t commit.
(2) Since the client is asking for legal advice, this would definitely be subject the
confidentiality rule in 1.6. This might fall into an exception under 1.6: if someone is being
prosecuted for a capital offense, there is a chance they would be sentenced to death upon
conviction, and therefore disclosure may be needed to prevent substantial harm or death.
Even if they just got sentenced to life in prison, that might constitute substantial harm.
(3) The man that confessed to the murder is now dead. Does the duty of confidentiality go
away once the client dies? A comment to 1.6 says that the duty continues, even after the
attorney-client relationship is terminated.
(4) Could the information be “used to the clients disadvantage?” maybe embarrassment to
his family or to his estate.
(5) What is the harm if the lawyer makes the disclosure anyway? The decedent’s
survivors may be embarrassed and it would tarnish the reputation of the decedent
(although he was already on death row).
The Attorney-Client privilege also continues after death…EXCEPT California they do not allow
attorney/client privilege to continue after death of the individual in question.
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G. Waiver
1. Hypo: You client confesses that she stole money from her ER and then lost it all at a casino.
You give her advice for when she is contacted by the police. This would probably be protected
by the privilege, since the wrongdoing has already occurred. What if she gets so excited about
the conversation she had with you that she tells her friend all about it? Has she waived the
privilege? Perhaps – the privilege will be waived if the client (or the lawyer) reveals the
privileged information to a nonprivileged person.
a) Facts are not protected, but the communication is. So if opposing counsel asked my
client if he ripped off a bunch of senior citizens, then that is not a privileged question,
they are facts.
2. Express waiver by client
a) The attorney-client privilege can be expressly waived by the client.
b) May also be waived by the client’s lawyer if the waiver has been authorized by the
client.
c) Waiver requires a voluntary act by the client or by an authorized agent of the client.
d) You should likely tell the client everything is confidential. So they understand.
3. Waiver by inaction
a) What if a lawyer does not realize that a question calls for privileged information, he
does not object, and the client answers?
b) This will be a waiver by inaction and no appeal will be able to reverse the process.
c) It’s the clients privilege. Document production and responds to discovery request
and in the documents produced there are letters between the lawyer and client by mistake.
The letters are about representation and subject to the attorney/client privilege. This is
mal practice (you assert privilege in discovery we don’t care if they are relevant). Should
it be waived – it’s the clients privilege but sometimes with discovery they balance to see
if waive. Here it was the lawyers conduct.
(1) If at cocktail party lawyer isn’t going to waive attorney client privilege – client
likely didn’t give the “authority” to the lawyer to discus as party. Also not his
agent at the party.
(2) Deposition – waived by client because he said it and that is bad get mal
practice ready.
(3) Discovery – balance test.
4. Waiver by revealing privileged communication to a nonprivileged person
a) The privilege will be waived if the client or the lawyer reveals the privileged
information to a non-privileged person (lawyer would need the authority from the client).
The privilege belongs to the client’s so unless the lawyer has express, implied or apparent
authority to reveal the information this revelation would not effect a waiver of the
privilege.
b) What if a lawyer represents two clients jointly? Both clients are privileged, and
therefore communication with one joint client in front of the other joint client will not
waive the privilege. If these two clients hire the layer separately and the lawyer would
like to privilege to apply to conversations where both are present the lawyer should
obtain their agreement to participate in a “common” representation in which confidential
information is shared among the three of them. That will preserve the privilege.
5. Waiver by putting privileged communication into issue
a) The privilege will be waived where the client puts the privileged communication into
issue in a case.
b) For example, if a client sues a lawyer for malpractice and asserts that the lawyer gave
her certain incorrect advice, the lawyer may reveal the details of the relevant
conversations for the purpose of self-defense.
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Spring 2008
6. Waiver as to a conversation by disclosure of part of it
a) A partial disclosure of privileged information may be a waiver of the privilege as to
the part of the conversation that relates to the subject matter on which the client
volunteered testimony.
7. Compliance with court orders
a) If a judge decides that the communication is not privileged and orders it to be turned
over, this will not waive the privilege.
b) Turning over information in response to a court order does not waive the issue for
purposes of appeal or of other litigation.
8. Big concern
9. This is a fairly big deal
10. One way it can be waived  client tells someone what you talked about and the advice you
gave
11. What if you accidentally send some privileged info to the other lawyer
a) Client did not waive
b) Attorney actions
c) Some say it is the client’s privilege and therefore not waived, but other cases the
attorney’s conduct can waive it.
12. When there is an ongoing fraud than attorney’s privilege is going to been blown
13. What if after your tell him the consequences and don’t do it and so he says ima get another
lawyer to help me. Is it still privileged? Probably not, maybe if it convinces him not too.
14. Client comes in for advice on legit scheme and lawyer gives wicked advice and client does
not its illegal. Client’s intent is what controls. Privilege still applies if the client meant well and
lawyer doesn’t and never tells client
15. What about if client comes in with dirty scheme that attorney thinks is ok. This time the
privilege falls.
16. Attorney representing father and juvenile. Dad is upset about judge’s decision and leaves 6
messages on attorney’s answering machine. They are violent and irrational. Says he knows
where judge lives and how many children he has and prejudices should be exterminated.
Attorney erased them. Can he tell the judge? If you think there is a reasonable prospect that this
will be carried out than you can warn the judge. Prosecutor comes after lawyer and says tell us
what he said because it’s a crime. Lawyer claims attorney client privilege. This was not for
getting legal services according to prosecutors. The court found that it was! The prosecutor
didn’t carry the burden. Worth preserving here for policy reasons.
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H. The Work Product Doctrine
1. Work product prepared in anticipation of litigation
a) This is related to, but separate from, the attorney-client privilege. This doctrine
protects notes and other material that a lawyer prepares “in anticipation of
litigation” from discovery in pretrial civil proceedings.
b) This applies to documents that a lawyer prepares or collects while working on
pending litigation or on a matter in which the lawyer knows that a lawsuit is about to be
filed.
c) This may protect some documents that are not covered by the attorney-client privilege
because they do not relate to communications between a lawyer and his client.
d) Protection of work-product is not absolute, but will probably apply in cases where the
document reflects the lawyer’s strategic thinking.
e) Hypo: You’re working on an auto accident case where there are witnesses that saw
the accident. You go talk with them and take down notes about their statements.
(1) Do the statements fall under the attorney-client privilege? No, because the
communication was not “between privileged persons.”
(2) The work-product doctrine might protect the notes – it protects all material that
the lawyer prepares in anticipation of litigation.
(3) What is the point of this doctrine?
(a) To protect the lawyer’s mental impressions.
(b) To prevent opposing counsel from freeloading.
So if we got a hypo like that on exam, analyze that it may fall under atty-client
privilege and work-product doctrine
You can defeat discovery with the privilege doctrine


Evidentiary privilege
Shield
2. Origins of the work product rule
a) This was first recognized in Hickman v. Taylor (1947). It is a relatively new CML
rule that protects from compelled disclosure a lawyer’s private notes and mental
impressions.
3. Materials not created or collected in anticipation of litigation
a) In order to be protected, the materials created or collected must be done so in
preparation for litigation. It is only the lawyer’s need to use the information in litigation
that creates a degree of protection.
b) If certain information would have been collected routinely, but was also collected
because litigation was anticipated, most courts will deny protection to the information.
c) Restatement: The work product doctrine applies in rulemaking proceedings as well as
in litigation as long as the rulemaking is sufficiently adversarial.
d) What if a client gives a lawyer a set of documents relevant to impending litigation?
These documents will usually not be protected, unless the lawyer can demonstrate that
their selection and compilation of the documents reflects their litigation strategy.
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4. A qualified protection
a) A judge can still order disclosure of documents falling under this protective rule if
the opposing party can show:
(1) “Substantial need” for the material, and
(2) That it is unable “without undue hardship” to obtain the substantial
equivalent of the material by other means.
b) This is a vague standard, and usually lawyers don’t know when their documents will
be protected by the doctrine and when they won’t.
c) Note that an exception like this does not exist for the attorney-client privilege.
d) This showing of substantial need can trump the work product doctrine only for
Ordinary work product – compiled by the lawyer but does not contain the lawyer’s
“mental impressions.”
(1) Substantial hardship will get you the text of the accident transcript but you are
not going to get the mental impressions.
(2) Not sure what extraordinary need would never get to the metal impressions.

You are paying for litigation in auto accident case. You interview witness and take notes
and keep in file. Witness dies before trial occurs. Are the notes work product? If it is
there is a substantial hardship for adversary than there is access. Probably can show this
is there is a dead person.
5. Protection of lawyer’s “mental impressions”
a) The doctrine gives stronger protection to work product that reveals the lawyer’s
thoughts, strategies or mental impressions.
b) This would include the lawyer’s Opinion work product: own notes of his opinions,
theories, observations or feelings.
c) Some courts have held that even these documents can be obtained by a showing
of “extraordinary circumstances.” This is a much greater standard than undue hardship
– the opposing counsel would have to demonstrate an extreme need for it, but S doesn’t
know what kind of showing they would have to make.
6. Protection of work product, not underlying information
a) The information contained in the protected documents can usually be obtained from
the original witnesses or sources.
b) The doctrine prevents freeloading on an opponent’s work, but it does not enable the
opponent to close off a lawyer’s sources of information by getting there first.
7. If information is protected by both the attorney-client privilege and the work-product
doctrine, then pick the shield that will give you the most protection. Note that there are
exceptions for each, and these exceptions are different.
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III.
Relationships Between Lawyers and Clients
A. Formation of the lawyer-client relationship
1. Choosing clients
a) Is a lawyer permitted to accept work that requires knowledge of an area of the law in
which the lawyer has no experience?
(1) YES, if the lawyer compensates for the inexperience through study or
affiliation with another lawyer.
(2) The rules require lawyers to provide competent representation. See Rule 1.1:
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.
(3) The question becomes whether a lawyer who has never handled a particular
type of matter can fulfill this duty.
(4) Cmt. 2: This is fine under rule 1.1, as long as the lawyer has the time and
resources to get up to speed.
b) May a lawyer turn down a request for legal assistance if he lacks time, expertise, or
interest in the matter?
(1) In general, lawyers are allowed to pick and choose the matters they work on.
(2) They don’t have to accept any particular clients, with three exceptions:
(a) Rule 6.1 addresses the lawyers’ duty to provide legal assistance to
those who cannot afford it (encourages 50 hours a year of pro bono work).
(b) A court may assign a lawyer to represent an indigent criminal D, even
if the court does not have the resources to pay the lawyer for the work.
Rule 6.2 requires lawyers to accept the assignment, except for good cause.
(c) A lawyer may not discriminate on the basis of race, religion,
nationality, sex, age, disability, or other protected category in her
decisions about which clients to represent.
2. Offering advice as the basis for a lawyer-client relationship
a) The lawyer-client relationship can be formed without an agreement being signed and
without a fee being paid. A lawyer should be very careful about what casual advice or
assistance you provide to others.
b) Togstad v. Vesely, Otto, Miller & Keefe (Minn. 1980)
(1) Clamp placed in Mr. Togstad with an aneurism in his artery that probably
caused him to have a stroke and become wheelchair bound.
(2) Mrs. T and her husband’s boss go to talk with a lawyer about a possible med
mal case. The lawyer said that he didn’t think they had a case, although he never
conferred with his partner before making this decision. Mrs. T was not billed for
the interview. Because she didn’t think she had a claim, the statute of limitations
runs.
(3) Held: The lawyer was negligent in providing legal services, and held the firm
liable for over $640K. The lawyer, while he did not consider himself to be Mrs.
T’s lawyer, should have informed Mrs. T that there was no lawyer-client
relationship.
(4) Advice was given to Mrs. T here, so that was enough to establish the
lawyer-client relationship. A retainer agreement is not necessary to commence
the relationship.
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(5) S thinks the standard for determining whether there is a lawyer-client
relationship is whether the client reasonably believed that you are his attorney.
(6) Note that the court here held the lawyer to not only be Mrs. T’s lawyer, but
also Mr. T’s lawyer, even though he wasn’t there (he was still in the hospital at the
time of the interview).
(7) In this case, it seems like the lawyer just wasn’t sure whether he wanted to take
the case or not. If that was the situation, then the lawyer should have been
completely honest with his client, and told her thank you and that he’ll get back
with her.
(8) Remember that informal chats on the street can give risk to an attorney-client
relationship, so be careful! The client reasonableness.
(9) The LASC has even more frightening formulations of this relationship: The
client’s subjective belief will largely determine the existence of the relationship.
Some recent cases have suggested an objective standard, while others suggest both
a subjective and objective prong. When the Supreme Court hammers them out it
looks to the reasonableness.
c) See 1.18.
Rule 1.18 Duties To Prospective Client
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to
a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client
shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect
to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a
prospective client in the same or a substantially related matter if the lawyer received information from the
prospective client that could be significantly harmful to that person in the matter, except as provided in
paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with
which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as
provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is
permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing,
or:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more
disqualifying information than was reasonably necessary to determine whether to represent the
prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
(1) La. has also adopted this relatively new rule.
(2) Note that there is a duty of confidentiality for information learned from a
prospective client.
(3) Another major duty is to avoid conflicts of interests between the prospective
client and present clients.
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B. Lawyer’ Responsibilities as Agents
1. Under agency principles, one can become the agent of another through:
a) Express authority: Clear relationship of agency.
b) Implied authority: It is the agent’s belief that they have authority.
c) Apparent authority: It is the third party’s belief that the agent has authority based on
manifestations by the principal.
2. Two forms of actual authority: Express and implied authority
a) Express authority is where the client gives the lawyer explicit instructions to act on
the client’s behalf.
b) By asking a lawyer to represent him or her in a matter, a client impliedly authorizes
the lawyer to take action that is reasonable and calculated to advance the client’s
interest.
3. Apparent authority
a) If the agent has neither express nor implied authority, she may nevertheless have
apparent authority.
b) When a client tells a third party that the client’s lawyer has the authority to settle a
claim on his behalf, the third party may rely on the lawyer’s subsequent actions, even if
the client did not actually authorize them.
c) Apparent authority will be found if a principal places an agent in a position that
causes a third person reasonably to believe that the principal had given the agent express
authority.
d) Note that the lawyer’s statements to a third party that she is authorized to act does
NOT constitute apparent authority. Only the acts or statements of a client can establish
apparent authority.
e) These questions of authority usually come up in settlement of a case. Most states
require express authority for a lawyer to settle a case for a client, while for others, merely
hiring a lawyer to represent them in litigation will authorize their lawyers to settle cases.
4. 4-2: The Fired Guard
a) The issue was whether the lawyer for the prison guard was able to enter into a settlement for
the guard.
b) Would the lawyer showing up at a settlement conference cause someone to believe that the
lawyer has authority? To the third parties’ credit, he did behave as though he had authority, from
talking on the phone and other communications with his client.
c) Case law says that lawyers do not have implied authority to enter into settlements without the
client’s knowledge. The lawyer must have express authority from his client in order to settle
without the client being there. The question is still open in regard to apparent authority.
d) Rule 1.2 (below) discusses the matters that a client is entitled to decide, and one of these
includes the decision to settle.
(1) Something the lawyer decides and some the client decides. Settlement with civil case
it’s the client’s decision. Comment 3 to the rule says need express authority to settle.
e) If a court were to conclude that the lawyer had apparent authority to settle, and enforced the
settlement, then the client could come back and sue the lawyer for malpractice. Lawyers MUST
abide by their client’s decision whether to settle.
f) 1.8(k) in the LA rules…even if you get power of attorney [lawyer] you need to get express
permission to settle. Likely people were abusing this privilege. This rule is in the ethics rules not
statute.
g) At one time, the La. civil code did not recognize the theory of apparent authority, but now has
a provision that seems to recognize it. See La. CC art. 2995. Another article, however, requires
express authority in order to enter into a “compromise.” Is a compromise the same thing as a
settlement? S thinks so, but we’re not sure what effect the different terms might have. Need
express authority to enter a compromise and includes settlement of litigation in encompassed in
the compromise. Most jurisdictions go with express authority to enter settlements.
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C. Lawyers’ Duties of Competence, Honesty, Communication and Diligence
1. Competence
a) Recall rule 1.1, which requires legal knowledge, skill, thoroughness and reasonably
necessary preparation for competent representation. Cmt. 2 says that the most
fundamental legal skill consists of determining what kinds of legal problems a situation
may involve.
b) The comments identify various other features of competent lawyering:
(1) Lawyers without experience in an area must get training or assistance to
perform competently. If the work is complex or technical, the amount of study or
supervision will be greater.
(2) Competent performance requires diligence and thoroughness. A lawyer must
inquire into and analyze the factual and legal elements of the problem.
c) The “MacCrate Report” by the ABA task force expands on this, listing the top ten
lawyering skills and four lawyering values.
d) Bottom line: All the basic skills that people need to do good work are essential to
good lawyering also.
e) Matter of Neal (N.M. 2001)
(1) This was the case where a statute provided for an automatic appeal in a murder
case, so after his client was convicted, the lawyer didn’t do anything.
(2) Research, analysis and timeliness are fundamental in the legal profession. No
lawyer should approach any task without knowledge of the applicable statutes,
court rules, and case law, especially in matters with which one is not intimately
familiar.
(3) The lawyer offered up for mitigation the fact that at the time, he was diagnosed
with depression. The court doesn’t seem to care though.
(4) Other cases with mitigation factors:
(a) La. case about alcoholism:
(i)
There was a LASC case where a lawyer fired a gun out on
Airline Hwy while he was drunk. He was a diagnosed alcoholic.
The court held that alcohol can be a mitigating factor IF:
(a) The alcoholism caused the conduct and
(b) Since the time of the incident, the lawyer has taken real,
concrete steps to overcome the problem.
(ii)
The court in that case noted that the evil of alcohol abuse
had become “ascendant” in the legal profession – huge numbers of
lawyers have this problem.
(iii)
In response, the state bar set up the Lawyer’s Assistance
Program (LAP) to help alcoholic lawyers.
(b) Ohio case about sex addition:
(i)
The lawyer was kicked out of the practice.
(ii)
The court said that he hadn’t taken any steps to mitigate the
addition, and was only using his condition as leverage in the
disciplinary proceeding.
(iii)
In a similar case, where a lawyer was groping women in
bars, he went to AA and moved to a city. In that instance, the court
only put him on probation.
(5) The lawyer also argues that he wasn’t paid much of a fee, so not as much work
was required. This is no excuse to be incompetent. A pro bono lawyer is held to the
same standard of competency as a paid lawyer.
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f) 4-3: The Washing Machine
(1) Guy buys a washing machine who is the coach of your daughter’s soccer team. He
doesn’t have much money and is having trouble making the payments on the machine, so
you try to work out a deal with the appliance store to get a him lower payments.
(2) Would it be competent to immediately accept an offer without doing any research to
determine whether the seller was trying to gouge this guy?
(a) Duty: you need to pass the offer to the principle. Pass along offer. Now
client says should I take it? So he takes it and fulfills terms of agreement.
Anything more you should do?
(b) A counter offer would probably be a good idea.
(3) If you had gotten a case like this, then you would want to look at consumer protection
law. In the actual case that this was based on, the lawyer found a law against creditor
harassment, and after confronting the creditor about excessive phone calls made to his
client, the client got to keep the washing machine at no cost.
2. Competence in criminal trials
a) Denial of effective assistance of counsel: Dissatisfied clients seek redress in a number of
ways, but when a criminal D has been convicted, he will sometimes file an appeal urging that the
conviction should be reversed because the trial lawyer was incompetent.
b) Criminal D’s have a constitutional right to effective assistance of counsel. State law may
provide even greater protection to criminal D’s.
c) Most judges are very reluctant to overturn a criminal conviction because a different lawyer
might have done a better job for a D – the lawyer’s performance must have been really awful to
overturn a conviction.
d) A D appealing a conviction must prove that:
(1) The assistance was unusually poor and that
(2) Better representation would have made a difference.
e) Strickland v. Washington (1984)
(1) Lawyer didn’t ask for character references and criminal D ended up being
convicted of murder and sentenced to death. The client sues his lawyer alleging
ineffective assistance of counsel under the 6th amendment – the D is just trying to
lessen his sentence from death to life in prison.
(2) Standard: “A convicted D’s claim that counsel’s assistance was so defective as to
require reversal of a conviction or death sentence has two components:
(a) Counsel’s performance was (1)deficient, or in other words, counsel made
errors so serious that counsel was not functioning as the “counsel” guaranteed
the D by the 6th amendment; and
(b) The deficient performance(2)prejudiced the defense, or in other words,
that counsel’s errors were so serious as to deprive the D of a fair trial.”
(3) What if the client meets this standard? Then he will get a rehearing – you redo
what was screwed up the first time. Note that this is not a malpractice suit or a
discipline proceeding. This is just another kind of claim to look at the same problem.
(4) Note that under this standard, the lawyer only gets punished where his
incompetency has harmed the client in some way.
(a) He didn’t interview the family
(b) He didn’t interview acquaintances
(c) He didn’t get psych evaluation
(5) We should be highly deferential in reviewing the performance of an attorney.
Hindsight is 20/20. Note J. Marshall’s dissent, that says we should not be so
deferential to the judgment of lawyers. The statistics after the case suggest that we
shouldn’t defer to attorneys.
(6) LASC - All criminal defenses in Orleans parish is defective and there has to be a
showing that it’s not… basically call to Congress to allocate more money. This was
about 10 years ago
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3. Candor and communication
a) Is it ever okay to lie?
(1) There are many different lies that a lawyer could tell:
(a) White lies, to avoid embarrassment or to avoid hurting another
person’s feelings
(b) Lies to protect people
(c) Lies to protect your own privacy
(2) The immorality of lying is largely left up to individual standards, but here are a
few questions to assess whether the lie is justifiable:
(a) Is the subject matter of the lie trivial or private?
(b) Is anyone harmed by the lie?
(c) Is the purpose of the lie to protect someone?
(d) Does the person lied to have a right to know (or a strong interest in
knowing the truth)?
(e) If there is a reason to tell a lie, can the problem be solved without
lying?
(f) If you tell this lie, will you need to tell other lies to cover up the first
one?
b) Lying versus deception: Is there a moral distinction?
(1) In evaluating the morality of a statement, is the important question whether it is
a false statement, or that the speaker intends to deceive?
(2) What if the deceiving party merely remains silent – is the withholding of
information immoral?
(3) Like lies, some deceptions may be justifiable, but this largely depends on the
circumstances. Many lawyers believe that deception is only problematic if it is
accomplished by making a false statement.
c) Truth versus truthfulness
(1) Is it dishonest to make a false statement that you believe to be true? Probably
not.
(2) If a lawyer is diligent and honest with her client about what she learns in
researching the issue, then she is being truthful even if she makes a mistake.
d) Honesty and communication under the ethics rules
(1) 3.3(a) specifically directs lawyers not to lie to tribunals or to persons other than
clients.
(2) Strangely enough, the portion of the rules dealing with the Client-Lawyer
Relationship does not explicitly require lawyers to be honest with their clients. The
reason is probably because lawyers are assumed to be truthful with their clients,
and would probably rather lie to someone else on their client’s behalf.
(3) The drafters make it clear that lawyers should generally be truthful, and this
intention extends to clients as well as others.
(4) Recall rule 8.4(c) that prohibits lawyers from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation. Lies may not be fraud, depending
on the state law applied, but it may amount to deceit or misrepresentation, such
that it could be disciplined under 8.4(c).
(5) Rule 1.4 requires that a lawyer shall provide information to a client about:
(a) Matters that require informed consent,
(b) Matters which a client must make a decision,
(c) The status of a matter, and
(d) Matters on which the client has requested information.
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Rule 1.4 Communication
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's
informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be
accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) 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.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation.
(6) Cmt. 1: Reasonable communication between the lawyer and the client is
necessary for the client effectively to participate in the representation.
(7) This rule does not require lawyers to communicate every minor event that
occurs in the course of a representation with the client. He must only give the
client enough information so that he can participate intelligently in decisions about
objectives and means.
(8) It’s unclear whether 1.4 prohibits lying to clients, but it certainly does require
the lawyer to inform clients about important developments in their cases.
(9) Under (a)(2), the lawyer must consult with clients about the means to carry out
the client’s objectives. However, rule 1.2 gives the lawyer some discretion about
the means used to carry out the representation.
(10)
Status = significant developments affecting the timing or substance of the
representation
(11)
If a lawyer cannot respond promptly to a request for information, then he
should explain when a response may be expected. In addition, client telephone
calls should be promptly returned or acknowledged.
e) Civil liability for dishonesty to clients
(1) A dissatisfied client may sue the lawyer in tort for fraud or for breach of
fiduciary duties.
(2) To fulfill fiduciary duties, under the Restatement, a lawyer must: “comply with
obligations concerning the client’s confidences and property, avoid impermissible
conflicting interests, deal honestly with the client, and not employ advantages
arising from the client-lawyer relationship in a manner adverse to the client.”
(3) This duty will be breached where the lawyer fails to act consistently with the
trust that a client reposes in a lawyer because the lawyer has special skills and
knowledge.
(4) Most cases of breach of fiduciary duty arise from disloyalty, or in other words,
undisclosed conflicts of interest. This is treated as a constructive fraud, but the
breach can arise from actual fraud as well.
(5) An attorney who “willfully and deliberately lied to, misled, and stole from his
clients,” could be sued for punitive as well as compensatory damages, although
punitive damages are not available for negligence-based malpractice claims.
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(6) 4-4 Lying to Clients
(a) Explains many different situations where a lawyer would have the
opportunity to lie or tell a half-truth to his client. Are any of them ever ok?
(b) Exaggerating expertise? This is better characterized as
misrepresentation rather than lying. This would be a clear cut violation of
1.4.
(c) “I never reviewed the document.” If this is an outright lie, then it
would also violate 1.4.
(d) What if a lawyer misses a filing deadline, remedies the situation, and
didn’t report to the client? There may be no duty to disclose the error here,
since it didn’t cause any harm to the client. This might, however, fall
under a violation of the duty of competence – depends on how quickly you
discover and remedy the error.
(e) What if a client is sent a document that is meant for someone else and
you blame your secretary? The client may never know the difference, but
if it gets back to your client, she’ll make your life miserable.
4. Diligence
a) A fundamental duty of lawyers to clients is to do the work they’ve been hired to do,
and do it without undue delay. This is a distinct duty from competency.
b) See rule 1.3: A lawyer shall act with reasonable diligence and promptness in
representing a client.
c) Cmt. 1: A lawyer should pursue a matter for a client despite opposition or personal
inconvenience and take whatever measures are required to vindicate a client’s cause. The
lawyer must act with zeal in advocacy upon the client’s behalf. However, a lawyer is not
bound to press for every advantage that might be realized. The rule does not require the
use of offensive tactics or preclude a lawyer from treating all persons with courtesy and
respect. To be good, you don’t have to be mean.
d) Cmt. 3: Perhaps no professional shortcoming is more widely resented than
procrastination. The opposite of diligent representation is total neglect of clients’ cases.
You should take care that your reputation is protected, since your professional life is
going to suck if everyone thinks you’re a jerk.
e) The old requirement of “zealous advocacy” should not be used to justify pursuing
every possible argument or advantage in litigation, no matter how unethical.
“Zealousness” was replaced with “diligence” to avoid this unethical behavior.
5. Contractual duties
a) In addition to the duties imposed by law, lawyers may sometimes undertake
contractual duties that are more stringent.
b) If a lawyer violates duties that are imposed only by K, the lawyer may be subject to
discipline for those contractual violations (under the Restatement).
Torture: post 9-11, the CIA caught a terrorist and wanted permission to waterboard him. What
kind of legal advice must we give? Under 2.1> “candid advice”…
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D. Who Calls the Shots?
1. The competent adult client
a) Which decisions may a lawyer make without consulting his client, and which require
client consultation? Keep in mind that small decisions may have substantial
consequences on a case, so there is not always a clear answer to this question.
b) Although some might argue that as the agent for his client, an attorney should consult
his client about every decision, since agency law imputes lawyers’ decisions to clients.
This is impractical however.
c) Rule 1.2 offers guidance:
Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of
representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be
pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the
representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer
shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive
jury trial and whether the client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not constitute an
endorsement of the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the
client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or
fraudulent, 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, scope, meaning or application of
the law.
(1) Clients decide the objectives of the representation, and the lawyer must consult the
client as to the means used to pursue objectives. This line between objectives and means
may not always be very clear.
(2) Big decisions that the client has the explicit right to make:
(a) Civil: Client decides whether to settle. A lawyer cannot decide against the
client’s instructions to settle.
(b) Criminal: Client decides whether to:
(i)
Plead guilty;
(ii)
Waive jury trial;
(iii)
Testify.
(3) Objective or means?
(a) The decision to file a lawsuit: This appears to be a means to get relief. Does a
lawyer have implied authority to file a lawsuit?
(b) Decision to send out a set of interrogatories: Means.
(c) Take a deposition: Means.
(d) Object to a particular piece of evidence: Means.
(e) To offer a settlement: This is unclear. The rules treat it as an objective, but
isn’t it just a means to receive the client’s objective (like filing a lawsuit)?
(4) One way lawyers deal with this tension is to visit with the client, tell them what they
would like to do, and then ask the client if they are comfortable with the plan. This is good
for a first time, unsophisticated client.
(5) A lawyer and client may agree that the lawyer will provide less than the full range of
services. The client may prefer this arrangement to reduce costs or for other reasons.
(6) We’ve seen 1.2(d) before: Recall that it bars lawyers from advising or assisting clients
in illegal or fraudulent activity.
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d) Recall that the lawyer can take all actions that are impliedly authorized, although
we’re not really sure what these actions are. Cmt. 2 says that clients normally defer to the
special knowledge and skill of their lawyer with respect to the means to be used to
accomplish their objectives, particularly with respect to technical, legal, and tactical
matters. Lawyers will usually defer to clients with respect to questions such as the
expense to be incurred and concern for third persons who might be adversely affected.
e) What happens if lawyer and client disagree as to the means to be employed? The
Restatement states that except for decisions reserved for clients and in the absence of an
agreement on these matters, a lawyer may take “any lawful measure within the scope of
representation that is reasonably calculated to advance a client’s objective.” The
Restatement suggests that unless a lawyer and client have agreed otherwise, the lawyer,
not the client, should make decisions that “involve technical legal and strategic
considerations difficult for a client to assess.”
(1) Hypo: What if your client refuses to give consent to an extension for your
opponent whose mother just died? You’re reputation is on the line now, so do you
still listen to your client? Under the Restatement standard, the lawyer would be
able to consent to the extension regardless of what the client said.
f) Jones v. Barnes (1983)
(1) The client had a lot of points that he wanted raised at trial, and the lawyer used
discretion to discard some of them. The lawyer didn’t raise two nonfrivolous
claims that the client wanted him to.
(2) Issue: Does defense counsel assigned to prosecute an appeal from a criminal
conviction have a constitutional duty to raise every nonfrivolous issue requested by
the D?
(3) Held: The attorney in this dispute supported his client’s appeal to the best of
his ability. He satisfied his duty to take professional responsibility for the conduct
of the case after consulting with the client. Lawyers do not have a constitutional
duty to raise every argument that the client suggests.
(4) Under principal-agency law, this is the client’s case. The constitution says we
provide “assistance of counsel” backing up this idea that the client makes the calls.
However, the client may not have the overall strategic sense of what to do in an
oral argument. The more arguments you have, the more the silly arguments will
detract from the strength of your best arguments. This is consistent with rule 1.2
(5) You can reject what your client senses if you have a decent reason for it.
(6) Justice Brennan and Marshall’s dissent: Since client’s bear the consequences of
lawyers’ decisions, lawyers should defer to their clients’ judgments. The client
should call the shots (autonomy), and the lawyer should just assist the client in
representation (effectiveness). The majority seems to subordinate the client’s case
to the lawyer’s ability to make judgments.
(7) The lawyer does not have to follow the client’s wishes to introduce nonfrivolous appeals
(8) Is ineffective assistance to refuse to raise the errors that your client wants?
(a) The court says no!
(b) Could dilute the ones that could work
(9) Autonomy  of the client to control their case
(10)
Competency  that you are the one with training and the know how
(11)
The client can always fire you
(12)
Effectiveness is the big term in this case
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g) Should deference to client wishes depend on:
(1) Whether the case is criminal or civil? While in criminal actions, the client’s
liberty is at stake, the parties to a civil action can also suffer extreme
consequences.
(2) Whether the client has enough money to fire you and retain another lawyer?
Even if the client doesn’t have the money to find another lawyer, it will still be
impractical to try to do so because of the time required.
(3) Whether the client is wealthy or poor? Would you be more deferential to a
client with more money?
(4) What if client wants the death penalty, would there be a reason the opposition
might file an opposition to the death penalty? Maybe. The court in Bloom, said the
attorneys must obey the clients wishes for the death penalty, because they are the
clients wishes.
h) 4-5: The Package Bomber
(1) Demented professor sends bombs to professors at other universities because he
hates technology.
(2) You suggest that he submit to a psychological exam, as you think this is the
only way this guy is going to get off, and he says he’s against this (it’s
technology!) Client doesn’t want to plead insanity because he wants to get his
point across that he hates technolofy. If he loses this case, he’ll probably get the
death penalty.
(3) Can you dupe your client to take the psychological exam, by telling him that its
to prove his sanity? Is it ok to lie here?
(4) Under 1.2:
(5) In the actual case, the lawyers chose to fool their client. The client tried to fire
the lawyers, but the court wouldn’t allow it because it was on the eve of trial. Their
strategy sort of worked, but the client was upset with the lawyers and they had to
lie, so it was only a half victory.
(6) Would he prefer to live or be a martyr
(7) He does not want to be classified as some kind of mentally unstable person to
get out of the death penalty
(8) Option 1
(a) Let him talk to the jury and use his crazy talk that his bombings were
validated
(b)
(9) Hypo- Charged with a capital crime and in heart to heart he says I did it and
enjoyed it. Wanted to torture him. Now I realize what I have done is wrong
because I read the bible. He wants to confess. So what is the objective? What if
you don’t believe in the bible?
(a) Rule 1.14 Client with diminished capacity?
(i)
Can you make decisions based on your client’s craziness to
keep them from the death penalty?
(ii)
You think heaven and hell is ridiculous.
(10)
Hypo- Gilmore guy wanted death penalty and his lawyers actually field
paperwork to appeal/object to this request.
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2. Contract to change the duties owed to clients
a) Clients and lawyers can expand or contract the duties owed under the rules by mutual
agreement.
b) The range of legal services that the lawyer will provide to the client can also be
altered by agreement. This can be done under 1.2(c). Clients may want to do this for a
variety of reasons, but its usually done to limit the lawyer’s fee.
c) Certain limitations are not permissible:
(1) The agreement cannot waive the duty of competent representation.
(2) The parties cannot agree to limit the lawyer’s liability for malpractice, unless
the client is independently represented in making this agreement.
d) Can a client waive his rights to be kept informed or to be consulted about
settlement offers? Not in ordinary representation, but perhaps in lawsuits designed to
challenge institutional practices or to develop new law, where the client just offers up a
name to be the nominal P. There isn’t much case law resolving issues like this.
3. Clients with diminished capacity
a) In general
(1) Rule 1.14
Rule 1.14 Client With Diminished Capacity
(a) When a client's capacity to make adequately considered decisions in connection with a
representation is diminished, whether because of minority, mental impairment or for some other reason, the
lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of
substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's
own interest, the lawyer may take reasonably necessary protective action, including consulting with
individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking
the appointment of a guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule
1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule
1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the
client's interests.
(2) How can a lawyer asses his client’s mental capacity? See factors in R. 1.14,
cmt. 6:
(a) Client’s ability to articulate reasoning leading to a decision;
(b) Variability of state of mind and ability to appreciate consequences
of a decision;
(c) The substantive fairness of a decision; and
(d) The consistency of a decision with the known long-term
commitments and values of the client.
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b) Clients who may have mental disabilities
(1) Several options for the lawyer:
(a) Follow client’s instructions (treat the client as competent)
(b) Impose own ideas of what is best
(c) Invite others to provide substitute guidance
(d) Petition the court to appoint a third party to represent the interests of
the client
(i)
Guardian at litem: Can speak for the client in a legal matter
(ii)
Conservator: Can manage the financial affairs
(iii)
Guardian: Manages the client’s financial affairs and may
make medical or other personal decisions for the client
(2) Tremblay article
(a) Loyalty: It will not be disloyal for a lawyer to try to achieve what the
client actually values if he correctly determines:
(i)
That the client’s competence has failed;
(ii)
That the client has chosen a course of conduct contrary to
his values; and
(iii)
That in fact he would choose differently if he were
competent.
(b) Appointment of a guardian is a drastic and virtually deprives the client
completely of his civil rights. Only legitimate in extreme cases.
(c) Reliance on family members is preferable to unilateral lawyer
usurpation of authority. However, family members usually have no lawful
authority to give consent.
(d) Old cmt. to R. 1.14: Stated that the lawyer “often must act as de facto
guardian.” Unilateral usurpation of client autonomy is never appropriate,
except in emergencies.
(e) Persuasive (not coercive) dialogue: Lawyers should be permitted
greater latitude to use it here rather than with a coherent one. Justified in
less extreme cases.
(3) 4-6: Vinyl Windows
(a) Facts: 83 year old widow bought Storm-guard after being persuaded
by two salesmen. Windows cost almost $9K, and her life savings is only
$14K. Workmen damaged a wall and one of the windows leaked, so she
refused to pay last installment. When asked how much she paid or if she
had any paperwork, she just talked about “those crazy boys.” She thought
one stole $400 from under her mattress. You lay out her options, and
know that Stormguard’s lawyer usually settles for 50% of amount due.
She couldn’t figure out what to do. Her only friend is next-door neighbor.
(b) Issue: What are your options if the lady cannot figure out what she
wants to do?
(c) Response: If you determine that she is incapable of making a decision
in her best interest:
(i)
Persuasion using life savings angle
(ii)
May use R. 1.14(b) to talk with neighbor
(iii)
You might consider employing a social worker to stop by
(probably has more expertise than you to assess psychological
fitness)
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(4) 4-7: Tightening the Knot
(a) Facts: You provide representation to mentally ill people. Criddon was
picked up by police after threatening people. City is going to argue that he
should be committed for 6 months. City has technical error in petition that
you can use to get Criddon off. He turns out to be big/scary/angry, starts
yelling at you and threatens you (tightens tie knot).
(b) Issue: Do you tell Criddon that you found an error in the legal papers
and you hope to obtain his release?
(c) Response: Is it unethical not to mention the mistake to the city? Tell
him about the error and the possibility that it could be used for his release
(clearly what he wants). How likely that a judge would let this guy off due
to a clerical error? He’ll probably start yelling in the hearing...
(d) Options
(i)
You could get him off but don’t help because you think he
would be better in jail. And you do not tell him of your plan.
(ii)
You could say I could get you off but not in your interest
because you are crazy and cause trouble in the street.
(iii)
You could get him evaluated.
(iv)
Get him a guardian.
(v)
Terminated yourself as his lawyer
c) Juveniles
(1) Same standard is applied to juveniles as is applied to mentally impaired adults.
Children are regarded as having opinions entitled to weight in custody
proceedings.
(2) Delinquency cases: Usually older children and the cases resemble criminal
cases; most follow representation similar to the norms followed when representing
adults in court
(3) Custody, abuse and neglect proceedings: Usually younger children than in
delinquency cases; must balance between the child’s best interests and the child’s
stated wishes
(4) ABA Standards of Practice
(a) “Child’s attorney” (preferred): Lawyers owe the same duties of
loyalty, confidentiality and competent representation to a child as is due to
an adult client.
(i)
Must advocate the child’s articulated position.
(ii)
Should explain the situation in such a way as to allow the
child to articulate an informed decision. The lawyer should not
overbear the will of the child.
(iii)
If the expressed preference would be seriously injurious the
lawyer may request appointment of a separate guardian ad litem
and continue to represent the child’s expressed preference.
(b) “Lawyer appointed as guardian”: If lawyer is appointed as “guardian
ad litem” then he must protect the child’s interest, but is not bound by the
child’s expressed preferences.
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(5) 4-8: The Foster Child
(a) Facts: You represent 8 year old girl, Grace (not guardian ad litem).
Removed from mother’s home because mom doing drugs and beating her.
She has two younger brothers, but they have not been removed. Placed in
temporary foster care with Valerie Waite (older black woman; career
foster parent) – very good care. Grace wants to return to mom’s house to
take care of brothers, but changes her mind when mom’s BF is there.
Hearing soon – will determine whether she will stay with Waite (your
preference) or be placed with white, late 20’s couple (Social Services’
preference).
(i)
Grace: Wants to live with her mom (if BF isn’t there), or
grandma
(ii)
Mom and grandma: Want Grace returned home; if not, with
grandma (but grandma has no training in taking care of children –
did a bang up job with mom)
(iii)
White couple: Invested a lot in being trained as a
therapeutic foster parents and want Grace placed with them
(iv)
Psychiatrist: Recommends keeping her with Waite or with
the white couple. Will not get medication with mom. Said she is
capable of knowing what she wants.
(b) Issue: Should you advocate a particular placement for Grace?
(c) Response: Under ABA standards, must represent the interests of the
child. Must balance the expressed preference of the child with the child’s
best interests. Perhaps she should be placed with Waite until Social
Services can assess whether grandma would be an adequate guardian.
Placing her with her grandmother is a good compromise – still within
family, but not an abusive household. Not sure if she would get
medication, but grandma would be a good buffer between mom and
Grace. Otherwise, she should just stay with Waite – this appears to be her
preference when mom’s BF is there, even though she says her second
preference is with grandma. Perhaps the best option is to just buy some
time.
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E. Terminating the Lawyer-Client Relationship
1. Duties to the client at the conclusion of the relationship
a) Usually the relationship ends when the matter has been completed. However, the
lawyer has an indefinite duty to protect client confidences.
b) When work is finished, the lawyer must return to the client “any papers and property
to which the client is entitled” and return any unearned fee.
c) Rule 1.16 discusses termination of the relationship:
Rule 1.16 Declining Or Terminating Representation
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has
commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the
client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably
believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer
has a fundamental disagreement;
(5) 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;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been
rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating
a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding
good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to
protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of
other counsel, 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. The lawyer may retain papers
relating to the client to the extent permitted by other law.
(1) Note that the only limitation on the lawyer’s ability to fire you is when you are
appointed by the court. The general rule is that the client may fire you for any
reason.
(2) What if you wish to end the relationship? What is “other good cause”? What if
you just want to fire your client because he’s a jerk? You can withdraw at will as
long as it does not materially affect the client.
(3) Note part (a): There are certain situations where you MUST withdraw:
(a) Violation of law
(b) Violation of a rule
(c) Client fires you
(d) Mental/physical condition prevents you from representing your client
with zeal.
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(4) Part (b) describes situations in which you may withdraw. There are two
extremely broad situations:
(a) Where you have good cause (even if it would cause a material adverse
effect to your client!) and
(b) If there is no material adverse effect on the interests of the client.
(5) (c): You must comply with the court rules about notice. You must stay with the
client if the court says so.
(6) (d): See the La. provision below. La.’s rule is similar to this, but has a more
extensive second sentence.
(7) The entire files have to be turned over? TX says so
(8) In Utah they said not everything, the internal work product does not have to be
turned over b/c its was not the client’s papers
(9) LA Rule 1.16 Declining or Terminating Representation
(10)
Lien  keep the clients papers for security until paid
(a) Some jurisdictions allow
(b) However if it would cause prejudice to the client than you have to turn
over whether paid or not
(c) Common law retaining lien
(d) LA CoA decisions recognize this, but not LASC case says this
d) Restatement:
§46
(2) On request, a lawyer must allow a client or former client to inspect and copy any document
possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.
(3) Unless a client or former client consent to non-delivery or substantial ground exist for refusing to
make delivery, a lawyer must deliver to the client or former client, at an appropriate time and in any event
promptly after the representation ends, such originals and copies of other documents possessed by the
lawyer relating to the representation as the client or former client reasonably needs.
(1) Retaining lien: Under the cmt. to this rule, certain types of documents that
may be withheld form a client.
(a) Certain law firm documents reasonably intended only for internal
review
(b) The lawyer’s duty to inform the client may require the lawyer to
disclose matters discussed in the document even when the document itself
need not be disclosed.
(2) The lawyer may retain these documents until the client pays up, unless
retention would unreasonably harm the client.
(3) In La., the retaining lien idea is a CML doctrine that comes out of the case
law. We do not have a statute authorizing this. Under our law, if the client would
be prejudiced, then you have to give up the lien. Basically, the lien loses out as
soon as it starts to have effect. The fact that we even recognize this CML doctrine
in La. is probably jarring for pure civilians. See La.’s rule 1.16(d):
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(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a
client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel,
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. Upon written request by the client, the lawyer shall
promptly release to the client or the client’s new lawyer the entire file relating to the matter. The lawyer
may retain a copy of the file but shall not condition release over issues relating to the expense of copying
the file or for any other reason. The responsibility for the cost of copying shall be determined in an
appropriate proceeding.
(a) This appears to say that you cannot withhold the client’s files for ANY
reason.
(b) What is “the entire file”?
(i)
Tex. has looked at this same issue, and has held that every
scrap of paper in the file must be handed over.
(ii)
S doesn’t think this is sensible.
(iii)
Utah follows the Restatement rule.
(iv)
We don’t know what “entire file” means in La.
e) 4-9: The Candid Notes
(1) Facts: Lawyers instruct paralegals to take down candid notes on their
impressions of clients. Representation ended prematurely because client ran out of
money. She requests a copy of her “entire file” for a cheaper lawyer. Found a
memo inside that describes paralegal’s impressions of client, and it isn’t very nice.
(2) Issue: Should you send the memo to your former client? If you must, can you
redact the paralegal’s impressions?
(3) Response: While the Restatement requires a lawyer to allow a client to have a
copy of documents relating to representation, this may fall into an exception:
(a) Substantial grounds to refuse? Yes. Not only would this offend the
client, but its also imperative that the business judgment behind memos
such as this remains confidential within the firm. If word got out that the
firm engaged in this, it may have trouble getting clients.
(b) Exception for law firm documents? Although this is labeled as a
“memo” it is more like the law firm document reasonably intended only
for internal review as described in the comment to the Restatement. There
is a need here for the lawyers/paralegals to be able to set down their
thoughts privately to ensure adequate/efficient representation. May have to
disclose matters discussed, but that could be sugar-coated.
(c) Redact? This might work, but the former client or her new lawyer
might want to know what was redacted. This might draw more attention to
the offensive statements.
2. Grounds for termination before work is completed
a) When the client fires the lawyer
(1) Lawyer must withdraw here
(2) Clients always have the right to change lawyers (except when the lawyer was
appointed – must get court approval)
(3) Lawyer must also withdraw if his illness or incapacity would materially impair
the representation.
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b) When continued representation would involve unethical conduct
(1) Lawyer must withdraw if the representation would require the lawyer to violate
the law
(2) The lawyer may withdraw if:
(a) The client has already used the lawyer’s services to commit a crime or
fraud;
(b) Where he reasonably believes the client persists in a course of action
that is criminal or fraudulent; or
(c) If the client insists on action the lawyer finds “repugnant”
(3) When the lawyer wants to terminate the relationship
(a) May withdraw if it is possible to do so without material adverse effect
on the interests of the client
(b) It may be too late to withdraw (right before trial) or if the issue is very
complex it might cost the client too much if you withdraw
(4) Matters in litigation
(a) The lawyer cannot withdraw without approval of the court if he has:
(i)
Filed suit on behalf of a client or
(ii)
Entered an appearance in a matter of litigation
(b) The court may be reluctant to do so if the case will be delayed or if a
substituted lawyer has not been arranged
(5) When the client stops paying the fee
(a) Lawyer may withdraw in this instance, but must first warn the client
that nonpayment may lead to withdrawal
(b) If the client wants to pay but doesn’t have the money, the lawyer
should consider reducing the fee to make the representation affordable for
a client with limited means (see R. 6.1: lawyers have an obligation to
spend part of their time providing pro bono services).
(6) When the case imposes an unreasonable financial burden on the lawyer: may
withdraw
(7) When the client will not cooperate
(a) May withdraw here
(b) R. 1.16 also permits withdraw for “other good cause”
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IV.
Concurrent Conflicts of Interest
A. Studying Conflicts of Interest
1. When a lawyer undertakes representation of a client, the lawyer owes that client a duty of
loyalty and a duty to protect confidential information.
a) It could be disloyal for the lawyer to agree to represent another client whose interest
are adverse to the first.
b) In the course of representing the second client, the lawyer might use or reveal
confidential information learned from the first client.
2. There are three general outcomes when there is a conflict of interest:
a) The conflict is so serious that the lawyer must turn down one or both clients.
b) Some conflicts will be adequately addressed by obtaining in formed consent from the
affected clients.
c) The conflict is not serious enough to require informed consent.
3. Other remedies for conflicts may include signing agreements that limit representation and
screening.
4. It is not sufficient for a firm to have a good system for reviewing incoming matters to check
for conflicts – it must also have a system to monitor for emerging conflicts as the representation
is under way.
5. Hypo: Jay comes to you and says he’s been in an accident. Sally was the other driver, and he
wants to sue her. Sally’s insured by State Farm, and so State Farm will also be a D (under La.’s
direct action statute). Suppose you keep a computer in your office that keeps track of all your
matters. The computer generates hits for every time a particular party shows up that you have
done work for before.
a) What if a hit shows up that you drafted Sally’s will? This is a DIRECT conflict of
interest. It is very very bad to sue your own client. However, if Sally is a former client,
then it may be ok to sue if her you can obtain informed consent.
b) What if your computer says that you are representing Irma in a suit against Jay? This
is also bad.
c) What if State Farm is your client in other matters? Also a conflict.
6. Change the facts: Suppose you have a partner, Gayle, who is doing the representation of Irma
v. Jay. Is there still a problem? YES! You two are in the same law firm and Gayle’s conflicted
are imputed upon you. Everyone in the firm shares the same conflicts.
a) What if you’re in a firm with 500 lawyers, across the world? The same analysis
applies. The client databases MUST be linked to avoid these conflicts.
b) Keep in mind that small firms will not have a sophisticated system to keep tract of
conflicts!
7. Categories of conflicts:
a) Concurrent conflict: Rules 1.7 & 1.8. Conflict between 2 present obligations of a lawyer
or between one present client and one prospective client. Sometimes informed consent will
solve, but other times representation is prohibited altogether. 1.7 provides the basic rules and
1.8 provides tailored rules.
b) Successive conflict of interest: Rule 1.9. Conflict between an obligation to a present
client and an obligation to a former client. Informed consent will usually solve all scenarios.
c) Imputed conflict: Rule 1.10. Conflict between an obligation of one lawyer to a client and
an obligation of an affiliated lawyer. This is the “typhoid” or “infection” scenarios. An
imputed conflict can be waived by a client under the conditions stated in 1.7.
d) Conflicts for government lawyers: Rule 1.11. The rule addresses both successive and
imputed conflict of interest for lawyers who move between jobs in government and the
private sector. Many of these conflicts are resolved by informed consent.
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B. General Principles in Evaluating Concurrent Conflicts
1. Rule 1.7
Rule 1.7 Conflict Of Interest: Current Clients (through 1.12)
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by
the lawyer's responsibilities to another client, a former client or a third person or by a personal
interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may
represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client
represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
a) In general
(1) A concurrent conflict of interest is one between two current obligations of the
lawyer.
(2) There are two types of conflicts that might preclude representation of a client
because of a concurrent conflict:
(a) “Directly adverse” = A lawyer is acting directly against the interests
of one of his own clients. This is a direct concurrent conflict.
(b) “Significant risk of material limitation” = Representation will still
be prohibited without direct adversary if there is a significant “likelihood
that a difference in interests will eventuate and, if it does, [that] it will
materially interfere with the lawyer’s independent professional judgment.”
This is an indirect concurrent conflict.
(3) Exception to the general rule against representation, if all of the following are
met:
(a) If the lawyer reasonably concludes that he will be able to provide
competent and diligent representation;
(b) The representation is not prohibited by law;
(c) The parties are not adverse in the same matter; and,
(d) Informed consent in writing is received from each affected client.
b) Direct adversity
(1) There will be direct adversity where the lawyer’s conduct on behalf of one
client requires the lawyer to act against the interest of another current client.
(2) Note that both litigation and nonlitigation situations can involve direct
adversity.
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c) Material limitation
(1) This where there is still a concurrent conflict despite a lack of direct adversity.
The other responsibilities that might materially limit a lawyer’s representation of a
client include obligations to:
(a) Another client;
(b) A former client;
(c) Someone else to whom the lawyer owes a duty;
(d) Someone other than the client who is paying the lawyer’s fee;
(e) The lawyer’s own financial, employment, personal, or other interests.
(2) Pulling punches: If a client would receive less vigorous representation from a
lawyer because of a lawyer’s other responsibilities, there might be a “material
limitation” conflict.
(3) Note that the mere possibility of harm is insufficient to present a conflict.
There must be a significant risk. Evaluate the probability of the conflict occurring
with the magnitude of the interference to determine the significance of the risk.
Ex. Say your representing Jones, suing Sears, but my firm is at the same time has
been trying to entice Sears to choose my firm for it’s representation. If the atty
eases up on Sears, then the atty is “pulling his punches.”
2. How to evaluate conflicts
a) To resolve a concurrent conflict under 1.7, a lawyer must:
(1) Clearly identify the client(s);
(2) Determine whether a conflict of interest exists;
(3) Decide whether the representation may be undertaken despite the existence of
the conflict (is it consentable?); and,
(4) If so, consult with the clients affected under 1.7(a) and obtain their informed
consent, confirmed in writing.
b) Where a conflict is not consentable, the lawyer must decline to accept representation
of one or more clients. If a nonconsentable conflict emerges after a lawyer has
undertaken representation, the lawyer might be able to avoid the conflict by withdrawing
from the representation of one of the affected clients. Sometimes, the lawyer will have to
give up both clients.
c) Note that it is not sufficient that there be no conflicts at the outset of the
representation. A conflict later down the line will still cause you to violate the rule. You
must project and anticipate conflicts.
3. Nonconsentable conflicts
a) In general
(1) Note that most conflicts are consentable.
(2) Some conflicts are so problematic, however, that the lawyer cannot continue
the representation, even where the client wants him to. Go through the steps in
1.7(b) to determine whether the conflict is consentable.
b) The lawyer’s reasonable belief
(1) A lawyer must consider “whether the interests of the clients will be adequately
protected if the clients are permitted to give their informed consent to
representation burdened by a conflict of interest.”
(2) OBJECTIVE STANDARD: Can the lawyer reasonably conclude that he will
be able to provide competent and diligent representation?
(3) Ask: Would there be an adverse effect on the:
(a) Relationship with either client?
(b) Representation of either client?
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(4) These are some factors that might help to determine the effect on the
relationship/representation, and whether it may be consentable:
(a) Factual relation or connection between the matters. If not factually
related, then the conflict may be waivable.
(b) Joint representation of two parties with very divergent interests. If
so, it might not be possible to pursue the interests of one without harming
the other.
(c) Two present clients or one present and one former client? In the
latter case, all conflicts are consentable.
(d) Friendship or bond of professional loyalty between the lawyer and
one of the two clients? If so, the lawyer may not be able to provide
representation to the other, especially if the interests of the two are
divergent.
(e) Sophistication of the client. If highly sophisticated, then consent will
probably solve the problem.
c) Representation prohibited by law
(1) Some conflicts may not be consentable because the representation of a client in
the face of some conflicts is prohibited by statute or case law.
(2) This will differ between jurisdictions.
d) Suing one client on behalf of another client
(1) If the two clients are aligned directly against each other in the same litigation,
then the conflict is nonconsentable.
(2) A lawyer may not represent opposing parties in the same litigation, regardless
of the clients’ consent.
4. Informed consent
a) It is ultimately the clients’ decisions whether to waive the conflict by giving consent.
If the client declines to give consent, the lawyer cannot take on or continue the
conflicting work.
b) Definition of informed consent (1.0(e)): “An agreement to a proposed course of
conduct after the lawyer has communicated adequate information and explanation about
the material risks of and reasonable available alternatives to the proposed course of
conduct.”
c) Informed consent may require divulgence of confidences about the other client, in
which case the permission of the latter to disclose the information should be obtained
first. If this client declines to give permission to make the disclosures, then the lawyer
may not proceed with the representation, since the lawyer won’t be able to get informed
consent from the other client.
d) The lawyer must orally explain to the client the risks, advantages and possible
alternatives to the lawyer going forward with the representation.
e) Note that the consent by the client must in writing. The lawyer may not assume
consent if the client does not respond to a letter disclosing the conflict.
f) What if a client gives informed consent, and then wants to take it back later? That’s
fine – a client always has the right to fire a lawyer. A client who has waived a conflict
may revoke the waiver. Depending on the situation, the lawyer may be able to continue to
represent the other client, or may need to withdraw from representing both. The lawyer
may want to work this out ahead of time by asking who he could continue to work with if
a conflict arose.
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g) A client may give an advance waiver, but this depends on a number of factors:
(1) How well the client understands the risks of possible future conflicts;
(2) The thoroughness and specificity of the lawyer’s disclosure;
(3) The client’s experience with legal services;
(4) Whether the client received independent legal advice before giving the advance
waiver; and
(5) Whether the conflict that arises may be solved by consent. If the conflict is
nonconsentable, then the waiver will not be valid as to that particular conflict.
5. Withdrawal and disqualification
a) The lawyer with have to withdraw if either:
(1) The lawyer discovers a nonconsentable conflict OR
(2) The relevant client declines to consent.
b) This action can be taken on the lawyer’s own initiative or by opposing counsel by a
motion for disqualification.
c) Sometimes motions for disqualification are filed not because opposing counsel is
actually worried about a concurrent conflict, but because they want to obstruct litigation
or obtain a strategic advantage by forcing a party to change lawyers. For this reason,
courts review these motions very carefully.
d) Sometimes large corporations, or even individual clients, will needlessly engage law
firms, or just go to a prospective interview, just to strategically conflict out firms that
may be used against them.
6. Imputation of concurrent conflicts
a) A lawyer can have a conflict of interest because he represents one client whose
interests conflict with those of a client represented by his partner.
b) See rule 1.10, although this will be discussed in greater depth in the next chapter.
Rule 1.10 Imputation Of Conflicts Of Interest: General Rule
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of
them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on
a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the
representation of the client by the remaining lawyers in the firm.
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter
representing a person with interests materially adverse to those of a client represented by the formerly
associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer
represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to
the matter.
(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in
Rule 1.7.
(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed
by Rule 1.11.
c) This rule takes the position that a firm of lawyers is essentially one lawyer for
purposes of the rules governing loyalty to the client. If one lawyer has a conflict (is
“infected”), then so do all the other lawyers in the firm (Smith likes to call this “Typhoid
Mary”).
d) Some conflicts between a client’s interest and a lawyer’s personal interest are not
imputed to other lawyers in the firm.
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e) Such conflicts may be waived by a client so affected by the conflict, subject to the
restrictions articulated in 1.7(b).
f) Some jurisdictions allow law firms to avoid imputation of conflicts by screening the
conflicted lawyer from any contact with the matter that presents the problem. In these
jurisdictions, if the screening procedure is adequate, then the firm need not get the
client’s consent to proceed. In very limited circumstances, the model rules do not permit
screening as an alternative to client consent to avoid imputation of a conflict within a
firm.
g) What is a “firm”? This term includes “lawyers in a law partnership, professional
corporation, sole proprietorship, or other association” as well as “lawyers employed in a
legal services organization or the legal department of a corporation or other
organization.” This rule applies regardless of the size of the firm and regardless of how
many offices around the world the firm may have. The larger the firm, the larger the
number of conflicts!
h) Lawyers who have separate practices, but share the same office space may be
considered a “law firm” for conflicts purposes if their file management and
communication is such that one lawyer in a suite might have access to confidential
information about a matter being handled by another lawyer.
i) The imputation rules for government lawyers are covered in rule 1.11.
j) The imputation rules only apply to lawyers. They do not apply to conflicts presented
by law clerks, paralegals, secretaries or other nonlawyer employees. However,
nonlawyers are still expected to protect client confidences like lawyers are. If a conflict
is presented by a nonlawyer employee, then a comment to 1.10 explained that the
conflicted person ordinarily must be screened from any personal participation in the
matter.
7. 5-1: The Injured Passengers, Scene 1
a) Two passengers who don’t know each other get into a taxi. The taxi driver
causes an accident. They both approach the same attorney to represent them jointly.
b)
Is there a conflict?
(1) It is possible that the two passengers will have divergent interests.
(a) Divergent interest if: Defendant willing to settle more with one if sacrifice some
money from the settlement of the other.
(2) What if one of the passengers was drunk when she got into the taxi and helped to
cause the accident?
(3) What if one is forced to testify against the other? Since one was drunk, they may
have different perspectives of the facts. You can’t cross examine your own client (might
use confidential information you received from the attorney-client relationship to the
disadvantage of that client’s).
c) Suppose that one client is hurt much more than the other client. How do you decide
to split the settlement amount? Under 1.8(g), you must tell each client the whole deal and
get written, informed consent. Conflicts Between Current Clients in Civil Litigation
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8. Suing a current client
a) Clients can be directly adverse to one another, even when the cases in which the
lawyer represents the clients are unrelated. For example, you cannot represent the
husband in a divorce proceeding, and then represent another client in a car accident case
where that client is suing the husband from the divorce proceedings.
b) The general rule is that you cannot sue a current client without their consent. In
some jurisdictions this is absolutely prohibited. 5-2: I Thought You Were My Lawyer!
(1) You have agreed to take on H in a divorce case. Your firm is representing W in
another matter (she was hit by a bus). While her case is pending, you take on the H’s
representation in the divorce.
(2) This is a direct concurrent conflict – you are suing your own client.
(3) Is divorce directly adverse? Is it really litigation? The income from the settlement
wouldn’t be community property. What about damages for loss of consortium? This is a
direct conflict.
(4) Imputed conflict—can’t just get another lawyer in your firm to take on
representation of one of the clients. Rule 1.10.
(5) What if she was going by a different name in the bus case? Even if the firm didn’t
mean to initiate the conflict, you must still take steps to resolve it.
(6) 1.7(b)—(1) if the lawyer can still provide competent representation then it is okay if
the parties consent.
(7) Former client rule- if we dropped the W and still represented the W then we would
be suing a ‘former client’. 1.9à some issues may arise.
(8) If they H and W both want you to represent thenà you still have to sue somebody.
How do you sue your own client??
(9) The result might be pulling punches – you may not be as aggressive against the W
since she’s hurt or you might be more aggressive if you think she’s going to recover a
large settlement from the bus matter.
(10)
This would also be an instance of imputed conflict under 1.10. If one lawyer
in a firm has a conflict, then so do all the others.
(11)
In the real case, the H got really mad when he found out about the conflict.
The firm didn’t make any disclosures or obtain any consents before taking on the H’s
representation. H fired the firm, and sought to recover the expenses he paid to it.
(12)
Attorney Client Privilege—if parties agree to represent them jointly, there is
no privilege claim anymore in anything now or in the future.
(13)
Confidentiality
9. Cross-examining a current client
a) A lawyer can have an adverse relationship to a current client in litigation,
even if the client is no a D in the case. This might happen where the lawyer is
representing one client, and then another one of the lawyer’s clients is called as a witness.
b) This comes up a lot in the criminal defense context.
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Representation of co-P’s or co-D’s in civil litigation
b) a)
If a lawyer jointly represents two clients who are both either P’s or D’s in a
lawsuit, their relationship is not one of direct adversity, but their interests may conflict
anyway.
b) This might come up where:
(1) One co-party has a claim against the other.
(2) Both are suing the same D who has limited assets and cannot satisfy both their
claims.
(3) Differing views on whether to settle.
(4) If both D’s are responsible for the harm caused, one might try to pin it on the other.
(5) The P’s might disagree as to what the remedy should be (injunction or damages)
(1) This comes up very often in car accident cases, where two passengers or a
passenger and a driver of one car sue the driver of the other car involved in the
accident. While some cases have held that a driver and passenger have sufficiently
divergent interests that they cannot be represented by a single lawyer, the
Restatement takes the view that this type of conflict is waivable by the client after
full disclosure.
c) 5-3 The Injured Passengers, Scene 2
(1) One of the client’s injuries is more serious than the other. You have concluded
that you can represent them both, and you have obtained informed consent. The
taxi cab co. contacts you about settlement – they may offer $350K for the injured
client’s claim if you’ll accept only $50K for the other client’s claim.
(2) This would pin one client against another – direct concurrent conflict. This
seems to meet all the requirements of 1.7(b), so as long as the clients are fully
informed about the deal and they accept the settlement, you may proceed without
violating any rules.
Representing economic competitors in unrelated matters
a) Cmt. 6 of Rule 1.7: Simultaneous representation in unrelated matters of
b) clients whose interests are only economically adverse does not ordinarily
constitute a conflict of interest.
b) While it may not be a violation of ethical rules, it may be a breach of a
lawyer’s fiduciary duty to avoid representation that involves conflicting interests.
Conflicts in public interest litigation
a) The different groups interested in the litigation may have opposing goals in
b) this context. Many times, both groups cannot prevail.
5-4: The Prisoners’ Dilemma
(1) You are a lawyer in legal services. You are handling two different cases –
woman’s prison and a mental health facility. The women are in really terrible
facilities. The offer is to place some women in the mental health facility.
(2) While this is a decent offer for the women, the people in the mental health clinic
might be really pissed off.
(3) Can this be resolved with informed consent under 1.7(b)?
(4) Note that legal services will be considered a “firm” under 1.0(c), and therefore
the imputation rules apply.
(5) If both sides agree to the offer, then there won’t be a conflict where everyone
gives informed consent. What if both sides hate the offer? Technically there is no
conflict between the clients; however, in the actual case, the court held that there was
still an irresolvable conflict in this instance.
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Taking inconsistent legal positions in litigation
a) Positional conflicts: While a lawyer cannot advocate on behalf of one client against
another client, normally a lawyer may make inconsistent arguments on a legal issue in
different courts at different times without violating the conflict rules.
b) This will usually only
c) present a serious conflict of interest where there is a high likelihood that one client
would be materially harmed by a lawyer’s making an argument in another case that was
contrary to the client’s interest. This might happen where a decision favoring one client
creates a precedent likely to seriously weaken the position taken on behalf of the other
client.
d) The comment to rule 1.7 and the Restatement identify factors that are to be
considered in making this assessment:
(1) Whether the issue is before a trial or appellate court
(2) Whether the issue is substantive or procedural
(3) The temporal relationship between the matters
(4) The practical significance of the issue to the immediate and long-run interests
of the clients involved
(5) The client’s reasonable expectations in retaining the lawyer
e) Something else to consider is whether the lawyer might be inclined to “soft-pedal” or
otherwise alter one or another argument to avoid affecting the other case.
f) 5-5: Top Gun
(1) The city is suing a gun manufacturer because they knowingly sold guns to dealers,
that then sold to criminals. Your firm takes on the city’s claim. The firm also
represents a large pharmaceutical company. The pharm co. doesn’t want the firm to
take the city’s case, because it might set a bad precedent for them (may face liability
for selling drugs).
(2) This is called a positional legal conflict. Traditionally, lawyers are like taxi
drivers – the client can jump into the taxi and the lawyer will take the client anywhere
they want to go. Lawyers should not be limited in their ability to assert legal theories.
(3) What if the pharm co. calls you up and says they’ll fire your firm if you don’t drop
the gun case? While there doesn’t appear to be any direct adversity here, this could
materially limit your representation against the gun manufacturer, since you might be
pulling punches by giving up a good claim to suit your big clients. This threat ratchets
up the positional conflict.
(4) Cmt. 24 to rule 1.7: Maintains that a lawyer is a taxi cab, but there might be
an exception for indirect conflicts. “Ordinarily a lawyer may take inconsistent
legal positions in different tribunals at different times on behalf of different
clients. The mere fact that advocating a legal position on behalf of one client
might create precedent adverse to the interests of a client represented by the
lawyer in an unrelated matter does not create a conflict of interest. A conflict of
interest exists, however, if there is a significant risk that a lawyer's action on
behalf of one client will materially limit the lawyer's effectiveness in
representing another client in a different case; for example, when a decision
favoring one client will create a precedent likely to seriously weaken the position
taken on behalf of the other client. Factors relevant in determining whether the
clients need to be advised of the risk include: where the cases are pending,
whether the issue is substantive or procedural, the temporal relationship between
the matters, the significance of the issue to the immediate and long-term interests
of the clients involved and the clients' reasonable expectations in retaining the
lawyer. If there is significant risk of material limitation, then absent informed
consent of the affected clients, the lawyer must refuse one of the representations
or withdraw from one or both matters.”
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g) Ask if there is something going on that would cause you not to be as competent in
representation as you usually would. If the answer is yes, then the positional conflict will
turn into an indirect one, and needs to be evaluated under 1.7.
6-6: The Secret Affair: (under 1.18) These communications might be unilateral and is there
a rereal attorney-client relationship? If this is an atty-client relationship (Togstad), then all
those rules come into play. There likely wasn’t a formal atty-client relationship. Also, if there
was no “discussion” then this doesn’t engage 1.18. If we’ve decided we can’t represent the
woman, the husband would like to get that info. What do we need to disclose to the husband
to get informed consent?
B. Conflicts in Nonlitigation Matters: Representation of Both Parties to a Transaction
1. Can you represent both the buyer and the seller of a business? In most circumstances, it is ok,
but you would need to provide the client with information about the possible disadvantages of
joint representation, and also obtain their consent.
2. This rule generally applies whenever a lawyer is approached by two clients seeking legal
assistance with a common goal.
3. Some people think that there is no way to represent both sides of a transaction aggressively.
You always end up pulling punches.
4. Consent need to be obtained when there is an actual or potential conflict that is reasonably
apparent to the lawyer. If the clients’ interests appear entirely harmonious, then there may be no
need to obtain consent.
5. A lawyer in these instances is not a “mere scrivener” – “mere scrivener” meaning I was
just a scribe for the deal A set up with B. this defense will not work. He is still giving advice,
even if all he sees himself doing is drafting documents. He should endeavor to provide the same
range of services to each of the two clients as he would if he were representing only one of them.
6. The ethical duty to protect client confidences is less clear in this context. The lawyer owes a
duty of loyalty to both clients, but this might be compromised if the lawyer keeps secrets from
either of them. Cmt. 31 to Rule 1.7 says that a lawyer usually should not keep confidences from
one joint client received from the other. The lawyer should give the clients notice at the
beginning of the representation that all information will be shared.
7. What if the two clients wind up in litigation against one another – does the lawyer have to
withdraw altogether or can the lawyer represent one against the other?
a) The lawyer definitely cannot continue to represent both. If the lawyer withdraws from
representing one client, then that client becomes a former client.
b) Here, the lawyer usually cannot represent one client in a suit against a former client
because the suit would be the same or substantially related matter per rule 1.9 and its
initiation would be materially adverse to the interests of the former client.
c) In this case, representation is allowed only with the consent of the former client.
d) A lawyer might be able to continue representation of one client if a valid advance
waiver was obtained at the outset of the transactional work. Part of the informed consent
process at the beginning of the representation would include a discussion of what might
happen if litigation developed between the parties.
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C. Conflicts in Representation of Organizations
1. Who is the client?
a) The lawyer’s client is the corporation itself, not the officers or shareholders, and not
other corporations owned in part or in whole by the corporation.
b) See 1.13(a): A lawyer employed or retained by an organization represents the
organization acting through its duly authorized constituents.
c) Because lawyers who represent corporations develop close and cooperative relationships
with corporate representatives, it may sometimes seems as though those individuals are “the
client,” but it must be remembered that the lawyer’s obligations run to the organization itself.
d) Facts affecting whether a related entity is a client
(1) Related entity more likely to be a client if:
(a) The lawyer received confidential information from or provided advice to
the subsidiary.
(b) The entity was controlled and supervised by the parent organization.
(c) The original client could be materially harmed by the suit against the
subsidiary.
(2) Related entity less likely to be a client if:
(a) The lawyer no longer represents the initial corporate client.
(b) The two entities were linked after the lawyer began representation of the
corporation.
e) Rule 1.13 applies the same principles whether the lawyer is representing a business or a
nonprofit organization. All business forms and organizations are covered by the rule.
2. Representation of the entity and employees
a) Can a lawyer who represents a corporation provide legal services to individual employees
of the organization? YES, unless the interests of the employee and the organization conflict.
b) If consent for such a conflict is required, a designated corporate official can give this
consent for the corporation as long as he’s not the one being individually represented.
c) Where the individual and the corporation would assert the same defense to an accusation,
there might be no serious conflict in the lawyer representing both parties. However, the
lawyer should obtain informed consent from both due to the possibility of divergence later
on.
d) In derivative suits, the lawyer for the organization should not undertake to represent the
D’s, even with client consent (this is not true in La.). Exception: If disinterested directors
conclude that no basis exists for the claims and all relevant persons consent.
3. Duty to protect confidences of employees
a) If the lawyer only represents the organization and not any employee, then the lawyer
generally has no duty to protect the employee’s confidences.
b) The lawyer should advise the employee that a potential conflict exists and that
discussions between the lawyer and the employee are not confidential.
c) If the lawyer fails to give such a warning, and the employee has an expectation of
confidentiality, then the lawyer might have inadvertently created a lawyer-client relationship,
with a possible concurrent conflict of interest.
4. Responding to unlawful conduct by corporate officers and other employees
a) Recall that the lawyer’s duty is to the organization, NOT to the senior executives.
b) The lawyer should usually report the misconduct to higher authority within the
organization, and if need be, to the highest authority that can act (board of directors). If this
authority refuses to act, and the lawyer believes the misconduct will result in substantial
injury to the organization, rule 1.13(c) permit the lawyer to reveal the misconduct to public
officials.
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(c) Except as provided in paragraph (d), if
(1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on
behalf of the organization insists upon or fails to address in a timely and appropriate manner an action,
or a refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to
the organization,
then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such
disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury
to the organization.
c) What if a lawyer is fired for reporting executive misconduct to higher authorities or public
officials? The lawyer is directed by 1.13(e) to inform the organization’s highest authority of the
discharge or withdrawal.
5. Entity lawyers on boards of directors
a) Lawyers are not forbidden to sit on the boards of directors of organizations that they
represent, and while there usually is no conflict of interest, there can be.
b) Under the Restatement, if a conflict arises that presents “a substantial risk that the lawyer’s
representation of the client would be materially and adversely affected by the lawyer’s
obligations as a director, the lawyer should cease to represent the corporation on that matter
unless the organization waives the conflict. Alternatively, the lawyer could resolve the conflict by
resigning from the board.
c) Note that if a lawyer is also a director of an organization, communications with him may not
be protected by attorney-client privilege.
d) 5-6: My Client’s Subsidiary
(1) You represent Dori, a P who was hit by a bus and sues the bus company. The bus
company is a subsidiary of a parent corporation which is your client.
(2) There are a number of factors to determine whether a related entity is a client (see
above).
(3) If you had been asked to sue the parent company, then this would have been a direct
concurrent conflict. Here, this is only an indirect conflict.
(4) This suggests that there is some common management elements between the parent
and subsidiary corporations. You might be able to solve this with informed consent under
1.7(b), but you’d have to talk with the parent corporation, who is unlikely to give consent.
The only solution may be to withdraw.
e) Hypo: You do environmental work for a corporation. The compliance officer of the
corporation says that they are having trouble with the expense of environmental compliance, and
they have dumped hazardous waste in the night to save on these costs. What do you do as the
attorney for the corporation?
(1) The corporation is your client, not the compliance officer. You must keep the
corporation’s best interests in mind. Recall that under 1.13, you represent the entity and
not its employees.
(2) You have an obligation to protect the corporation. What happens if you report this
misconduct to the board of directors and they tell you to shove off?
(3) See 1.13(c): The lawyer reasonably believes that the violation is reasonably certain to
result in substantial injury to the organization, then the lawyer may reveal information
relating to the representation whether or not Rule 1.6 permits such disclosure, but only if
and to the extent the lawyer reasonably believes necessary to prevent substantial injury to
the organization.
(4) You can seek help from outside authorities, regardless of whether 1.6 prevents the
disclosure or not. This is an exception to the confidentiality rules. It won’t be mandatory to
go to outside authorities, but you may do so in order to protect the organization.
(5) This may also fall under the “substantial bodily harm” exception under 1.6, since the
hazardous waste might cause harm to those living by the corporation’s plant.
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D. Joint Representation in Particular Practice Settings
1. Representation of criminal co-defendants
a) The costs and benefits of joint representation of co-D’s
(1) In some of these situations, the conflict can be resolved with informed consent.
However, some conflicts cannot be resolved at all, and the lawyer must cease
representation of at least one of the co-D’s.
(2) The stakes are higher in criminal cases than in civil cases, as the D’s may face
imprisonment or even death if convicted.
(3) Stonewalling: A technique that can be used by co-D’s in a criminal action to
keep all persons holding inculpatory information from talking to the prosecution,
and thereby will defeat the criminal investigation.
(4) When a defense lawyer advises neither client to make a deal because he
believes he may be able to win the case for both, he is usually sacrificing a certain
success for one of them. Defense lawyers clearly cannot advise one client to make
a deal against the other’s interest. For a strategy based on total noncooperation, the
lawyer can resolve all conflicts with informed consent.
(5) If the stonewall defense continues until the government decides to force
immunity on one of the D’s, then at this point the attorney representing both will
have to divide the representation.
(6) However, when multiple D’s are charged in connection with one crime, the
stonewall may crumble and one client may seek to reduce his penalty by giving
inculpatory information about another client.
b) Case law and ethics rules on joint representation
(1) Most case law, ethics rule and commentary discourage joint representation of
co-D’s by a single lawyer.
(2) Cmt. 23 to rule 1.7: “The potential for conflict of interest in representing
multiple D’s in a criminal case is so grave that ordinarily a lawyer should decline
to represent more than one co-D.”
(3) A firm that does criminal defense work should not take on more than one co-D
unless there is no conflict (which is going to be rare).
(4) Restatement: A lawyer may not represent criminal co-D unless:
(a) The clients give informed consent and,
(b) It is reasonably likely that the lawyer will be able to provide adequate
representation to the clients.
(5) In a federal court case, if a lawyer proposes to represent 2 criminal D’s, the
judge must hold a hearing and advise both D’s of their right to separate counsel.
(6) What can happen to a criminal defense lawyer that proceeds in the face of
conflict? He can either be disciplined or disqualified from representation. In
addition a conviction may be reversed.
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c) The 6th amendment and joint representation
(1) Joint representation of criminal D’s may violate the 6th amendment right to
counsel. Recall the elements of the D’s cause of action under the 6th amendment:
(a) Deficient performance
(b) Prejudice (more likely than not that it would have made a difference).
Note that if there is a conflict of interest, prejudice is presumed!!
(2) If a D is represented by a lawyer who has a conflict of interest, he may
challenge his conviction on the basis that he was denied the effective assistance of
counsel. Not all conflicts that violate rule 1.7 will be serious enough to reverse a
conviction.
(3) Holloway v. Arkansas (1978): Whenever a trial court improperly requires joint
representation over timely objection, reversal is automatic.
(4) Cuyler v. Sullivan (1980): If a D who was jointly represented is convicted, and
there was no objection to the joint representation at the time, to overturn the
conviction on 6th amendment ground, the D must show that there was a conflict of
interest that actually affected the adequacy of his representation (this is not the
same standard as prejudice).
(5) Mickens v. Taylor (2002): If the trial judge is not aware of a conflict (and thus
not obligated to inquire), prejudice will be presumed only if the conflict has
significantly affected counsel’s performance – thereby rendering the verdict
unreliable.
(6) A criminal D is entitled to give a knowing waiver of conflict created by his
lawyer’s representation of another co-D in the same case, and if he waives the
conflict, he may not challenge a subsequent conviction on the basis of that conflict.
(7) Where there is a great risk of prejudice, a judge can disqualify counsel from
representing co-D’s, even if the co-D’s want to waive the conflict.
d) 5-7: Police Brutality, Scene 1
(1) Police officers assaulted an arrestee in a bathroom. You represent two of the
cops who have been charged with the crime, but who have not confessed to
anything. The Policemen’s Benevolent Association is paying the legal fees.
(2) Under 1.8(f), if you are going to allow a third party to pay the legal fees, then
the client must give (1)informed consent and (2)the third party must not interfere
with the relationship and (3)must not violate 1.6 (confidentiality)
(3) Apart from the PBA paying the legal fees, there could be a conflict just by
representing the two cops that are charged with the same crime.
e) 5-8: Police Brutality, Scene 2
(1) Gutman was the officer that committed the assault. He is also an officer of the
PBA. The PBA offers you a $10M contract to represent Gutman.
(2) In this instance, the PBA’s interests are likely going to conflict with the
lawyer-client relationship, since the PBA will want you to point the finger at a
lower-ranked officer.
f) 5-9: Police Brutality, Scene 3 (skipped)
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2. Conflicts in representing family members
a) Representing both spouses in a divorce
(1) Lawyers will frequently be asked to represent both husband and wife in a
divorce.
(2) Some states allow a lawyer to represent both parties in an uncontested divorce.
(3) Other states do not allow the lawyer to represent both H and W in the suit for
divorce, but allow a lawyer to assist both parties in preparing a settlement
agreement, as long as the clients agree and the resulting settlement seems fair.
(4) Some jurisdictions do not allow a lawyer to represent both H and W in any
divorce action, even with consent.
b) Representing family members in estate planning
(1) It is very common for lawyers to draft wills for husbands and wives, and for
the beneficiaries of the wills to be other family members.
(2) Some say that joint representation of two clients should include an agreement
that information shared by one is not to be held in confidence from the other. What
happen if the lawyer doesn’t disclose this upfront, and then a conflict arises?
(3) Florida Bar Opinion 95-4 (1997)
(a) You represent both H and W in the execution of a will. H wants to
leave everything to his mistress. Under rule 1.4, you are supposed to
provide adequate information to your clients so they can make informed
decisions. However, there is a duty under 1.6 to protect the H’s
confidences. Do you tell the W or do you protect the H’s information?
(b) Held: While a lawyer is ethically obligated to protect confidences and
also has a duty to communicate to a client information that is relevant to
the representation, the lawyer’s duty of confidentiality must take
precedence.
(c) The court advises an attorney in this situation to withdraw from the
representing, informing the parties that a conflict of interest has arisen
that precludes continued representation of both parties. The lawyer may
also want to advise that each party should retain separate counsel. As
such, even though the W might suspect an affair and ask the lawyer about
it, the lawyer may still not reveal the separate confidences.
(4) 5-10: Representing the McCarthys
(a) You represent H and W in estate planning. There is a separate woman
who is suing H in a paternity suit, and you also represent this woman.
There was a mistake in the client records that made you think there was no
conflict of interest.
(b) There is a direct concurrent conflict here in regard to the H. What
happens when the W finds out that the H may be the father of this child?
In regard to the W, because she isn’t a party to the paternity suit, there is
only an indirect conflict.
(c) What if you withdraw from representing this strange woman? There
may still be a conflict with W because there is a claim out there that she
doesn’t know about that will affect her estate. Also, you know confidential
information about the strange woman’s case that could influence your
work for the W.
(d) What if you withdraw from representing H and W? There is still a
conflict because you know information about H’s financial condition that
might be to his disadvantage in the paternity suit.
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(5) Other hypo’s that might arise in a H and W situation:
(a) The W has assets that she doesn’t want the H to know about. If H finds
out about them, then it might make a difference in dividing their estate or
in a divorce settlement. Can you disclose this to the H?
(b) Can you represent both H and W in an uncontested divorce? It would
probably not be a good idea, because of all the things that might come up
– insurance premiums for kids, education, etc.
3. Representing insurance companies and insured persons
a) Insurance policies usually provide that if the insured is sued over an event covered by
the policy, the company will provide the insured with a lawyer to defend him. The
company will cover the damages up to the amount of the policy.
b) The lawyer defending the insured will usually be paid by the insurance company and
the lawyer’s contact will usually be the insurance adjuster. The insurance company’s
interests may often by divergent of those of the insured.
c) Who is the client? The lawyer is being paid by one client (insurer) to represent both
the insurer and another client (insured).
(1) See rule 1.8(f).
(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional judgment or with the clientlawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.
(2) Cmt. 13: If acceptance of payment from someone other than the client presents
a significant risk that the lawyer’s representation of the client will be materially
limited by the lawyer’s own interest in accommodating the person paying the
lawyer’s fee or by the lawyer’s responsibilities to a payer who is also a co-client,
there is a conflict under rule 1.7(b). The lawyer must assess whether the conflict is
consentable and seek informed consent from the client.
(3) Restatement: It is clear in the insurance situation that a lawyer designated to
defend the insured has a lawyer-client relationship with the insured. The insurer is
not, simply by the fact that it designates the lawyer, a client of the lawyer.
(4) The insurance company may be a client, depending on K or state law.
However, the insured is always a client. Even so, the Restatement provides that
communications between the insurer and counsel will be privileged, and the
insurer may sue the lawyer for negligence.
d) Most case law says that it’s ok for one lawyer to represent both the insurer and the
insured as long as no conflict exists.
e) While the lawyer owes the insured a duty of competency in representation, the K
between the insurer and the insured may delegate to the insurer authority to make
decisions about discretionary efforts or expenses in litigation. If the insured might incur
liability exceeding the policy limits, the lawyer may not follow a direction by the insurer
that would substantially increase the risk of such liability.
f) What if the lawyer learns information from the insured that, if known to the
insurer, would cause the insurer to deny coverage? The lawyer must keep the
information confidential, even where the insurer is a client of the lawyer.
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g) If there is a conflict, then the lawyer should act in the best interests of the insured,
except that the lawyer may not assist client fraud. If the insurer is also a client of the
lawyer, then the lawyer should act in the best interest of both clients. If this is impossible,
then the lawyer must withdraw.
h) Some insurance policies provide that where there is a conflict between the insurer and
the insured that would result in withdraw, then the insurer has to pay for separate counsel
of the insured.
i) If the insurer and insured disagree about when to settle, then the lawyer’s obligations
to the insured should govern the lawyer’s conduct. An ABA opinion concludes that if the
insurer and the insured disagree about whether to settle, the lawyer must withdraw from
representing both of them in that matter. Once the insured becomes a former client, the
lawyer still cannot assist the insurer in settling the matter against the interests of the
former client.
j) In La., we have the direct action statute, where the P can sue the D and the
insurance company, or either, directly.
(1) In many other states, the custom practice is that if there is a hint in the trial that
the insurance company is going to pay for the damages, then it will be declared a
mistrial.
(2) In La., we don’t have the luxury of saying that your client is just the insured.
The jury will always know that the insurance company is involved and paying for
all or part of the fees.
k) 5-11: Two Masters
(1) You are an attorney in a large firm that represents both the insurance company and
the actual D (the insured). The insurance company pays the legal bills. The insurance
company wants to settle, but the insured doesn’t want to.
(2) Change the facts: Suppose the insurance policy will cover only $100K in damages,
and on the eve of trial, the P makes an offer to settle for $98K. The insured would be
in favor of settlement, because then he wouldn’t have to pay anything, but the
insurance company would have an incentive to go to trial and try to win altogether.
(3) What if the insurance policy has a term that says that the insured must settle when
the insurer says it wants to? If this is in the K, then the insured doesn’t have much of a
choice.
(4) If the insurance company is impinging on the lawyer-client relationship between
you and the insured, then you can tell the insurance company that they have a duty to
fund the defense of the insured, they need to do a reasonable job, or otherwise their
paying for a deficient defense. In such a case, either the insured or the lawyer may sue.
4. Conflicts in representation of a class
a) Because rule 1.7 doesn’t fit very well in the class action context, courts will usually
resolve any conflict by applying the court’s class action rules.
b) The lawyer ends up making a lot of the decisions in this context, since its hard to employ
all these rules on such a large scale.
c) Usually the court’s attention to the class action and the class action rules in the code of
civil procedure will take care of any issues.
d) Examples of potential conflicts in this area include:
(1) A greater concern for the interests of the class representatives than for the
unnamed members of the class;
(2) A prior relationship with the named D’s;
(3) A greater concern for receiving a fee than for pursuing the class claim; and
(4) The settlement of claims by collusion rather than through a fair process where
class members’ interests are adequately represented.
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V.
Conflicts Involving Former Clients, Government Lawyers and Judges
A. The Nature of Conflicts Between Present and Former Clients
1. Ways in which the interests of a former client may affect the representation of a present
client:
a) The lawyer might betray confidences of a former client;
b) The lawyer may make adverse use of confidences that the lawyer learned during the
representation of the former client;
c) He might attack or challenge work that he did on behalf of the former client; or
d) He might engage in work that is in some other way disloyal to the former client or at
least causes the former client to fee betrayed.
2. If the interests of the former and present clients conflict, a lawyer might be less zealous on
behalf of the present client – may pull punches. The lawyer may also favor her current client
over a past client since the current client is paying fees presently.
3. If a present and former client’s interest conflict, a lawyer would refer to rule 1.7 for guidance
on protection of the interests of the present client. “Former clients” are included in the list of
persons in 1.7(a)(2) with which the client may have a concurrent conflict with.
4. Protections for former clients are provided by rule 1.9. If a situation involves possible
compromises of the interests of both the new and former client, then the lawyer should look to
both rules for guidance.
Rule 1.9 Duties To Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in
the same or a substantially related matter in which that person's interests are materially adverse to the
interests of the former client unless the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a
firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is
material to the matter;
unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly
represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as
these Rules would permit or require with respect to a client, or when the information has become
generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with
respect to a client.
5. The ethics rules are generally less restrictive to successive conflicts than they are to
concurrent conflicts – informed consent will usually solve most conflicts. The lawyer’s duties to
a former client are limited to protecting confidences, avoiding side switching, and refraining
from attacking the work the lawyer did for the former client. The passage of time reduces the
likelihood that a lawyer will deliberately or inadvertently misuse information received from a
former client.
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B. Duties to Former Clients
1. The primary duty owed is to protect their confidences. Rule 1.9(c) bars use or revelation of
confidences of former clients or clients of a former firm to the same extent as such use or
revelation is barred for present clients.
2. Under 1.9(a), a lawyer may not do work on behalf of a new client, without the informed
consent of the former client, IF:
a) That work involves the same or substantially related matter as the former
representation AND
b) The new client’s interest are materially adverse to the interests of the former client.
3. A lawyer is ALWAYS permitted to proceed with the new representation if the lawyer can
secure informed consent from the former client.
4. Remember that the test is not substantially similar, but substantially RELATED.
C. Distinguishing Present and Former Clients
1. In general
a) Sometimes clients that a lawyer regards as former clients may consider themselves to
be present clients. The clients’ beliefs may be reasonable. When a matter is over, lawyers
will usually not write a letter that says – “The representation is over.” The lawyer usually
wants to maintain a bond with the client so that it will send more business.
b) If there is no clear statement by the lawyer or client that the representation has ended,
then the lawyer’s representational authority can also end because the lawyer has
completed the contemplated services.
2. Maintaining contact
a) If the representation has not been formally concluded, a court may still find that the
client is “present” and that a conflict with another client should be evaluated as a
concurrent, rather than successive, conflict.
b) 6-1: Keeping in Touch
(1) Your firm did some tax work for Almond, a small business, about 5 years ago.
The work took one day. Your firm sends out a newsletter to all current and former
clients, and it has updates to tax law in it. One purpose of it is to bring in more
business from past clients. The firm has called Almond a few times and they have
declined your invitations to help them with anything. Star wants to hire the firm to
sue Almond to collect unpaid bills. Is Almond a current or past client?
(2) If Almond was treated as a present client, then there would be a direct,
concurrent conflict.
(3) If we treat Almond as a former client, then 1.9 applies instead. Almost all
conflicts with former clients can be resolved with informed consent.
(4) It must be determined whether Almond is a present or former client. It appears
that the firm is trying to maintain a present relationship with Almond.
c) If you look at the comments to 1.9, you won’t see anything about what a “former
client” is. However, if you look to cmt. 4 of rule 1.3 (diligence), it gives you some hints
as to when the attorney client relationship has ended: “Unless the relationship is
terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all
matters undertaken for a client. If a lawyer's employment is limited to a specific matter
(this one was), the relationship terminates when the matter has been resolved (this one
was). If a lawyer has served a client over a substantial period in a variety of matters,
the client sometimes may assume that the lawyer will continue to serve on a
continuing basis unless the lawyer gives notice of withdrawal (Tagstad). Doubt about
whether a client-lawyer relationship still exists should be clarified by the lawyer,
preferably in writing, so that the client will not mistakenly suppose the lawyer is looking
after the client's affairs when the lawyer has ceased to do so.
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d) For example, if a lawyer has handled a judicial or administrative proceeding that
produced a result adverse to the client and the lawyer and the client have not agreed that
the lawyer will handle the matter on appeal, the lawyer must consult with the client about
the possibility of appeal before relinquishing responsibility for the matter. See Rule
1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal for the client depends
on the scope of the representation the lawyer has agreed to provide to the client. See Rule
1.2.”
e) NOTE: If there is doubt about the existence of the attorney-client relationship, this
should be clarified by the LAWYER in WRITING.
f) Hot potato rule: You cannot just drop a client like a hot potato to avoid a potential
conflict. The representation must come to a conclusion before you end the relationship.
3. Hiring and firing lawyers to create or eliminate conflicts
a) If you withdraw from representing a client to solve a potential conflict, does the
“fired” client become a former client for purposes of evaluating conflicts? NO. If the
withdrawal is premature and motivated by a desire to dump the first client so that a
lawyer can work for a new client, the lawyer’s withdrawal represents a breach of the
lawyer’s duty to the first client.
b) If one of the following conditions is satisfied, the lawyer may use the more lenient
successive conflict standards to evaluate the conflict:
(1) The lawyer withdraws at the natural end point in the representation.
(2) The client fires the lawyer for reasons other than an impending conflict.
(3) The client triggers a conflict for the lawyer by some action that was
unforeseeable to the lawyer.
(4) The lawyer withdraws for some other good reason (where the client insists the
lawyer assist him in committing fraud or where the client won’t pay fees).
c) Sabotage: Where clients purposefully go to a preliminary interview or hire a certain
law firm to prevent their adversary from doing so. In this instance, the lawyers may
refuse the business, or attempt to avoid the conflicts by asking the new clients for
advance waivers of future conflicts of interest.
4. Former in-house counsel
a) If a lawyer used to work in the legal department of a corporation, is the corporation
his former client on all matters that were going on during his employment? Not
necessarily.
b) Former in-house counsel have been disqualified for such conflicts in several cases,
but the mere fact of employment does not make a lawyer the corporation’s lawyer on
every matter. This is usually matter-specific, depending on how much work the lawyer
did for particular matters.
D. Evaluating Successive Conflicts
1. Questions to ask
a) Does the lawyer need informed consent from the former client in order to proceed
with the representation? This answer will depend on these questions:
(1) Is it the same matter as the previous one?
(2) If not, is it substantially related to the previous one?
b) If no to both, then the lawyer need not obtain informed consent from the former
client. However, if one of them is a yes, then the lawyer must ask:
(1) Are the new client’s interests materially adverse to the interests of the former
client?
c) If no, then no informed consent is needed. If yes, however, the lawyer must get
informed consent from the former client in order to continue. Note that the consent must
be in writing.
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2. The same matter
a) What is a “matter”? Anything that is the subject of representation: litigation,
transaction, subjects on which the client requests advice.
b) Most obviously, the “same matter” refers to a single transaction or lawsuit. It will also
be the same matter where the new representation involves a document that the lawyer
was involved in producing.
3. Substantial relationship
a) Common sense definition: Is there some connection between the earlier matter and
the new matter? Same parties? Same lawsuit? Same legal issues? Same or overlapping
facts?
b) Legal definition: Whether the lawyer, in the course of her work in the first matter,
would normally have learned information that could be used adversely to the former
client in the second. Under cmt. 3 to rule 1.9, matters will be substantially related if they
involve the same transaction or legal dispute or if there otherwise is a substantial
risk that confidential factual information as would normally have been obtained in
the prior representation would materially advance the client’s position in the
subsequent matter.
c) Usually whether there is a substantial relationship will be a facts and circumstances
type question.
d) It does not matter whether the information would be used – the question is whether
the information could be USEFUL.
e) Where there is no opportunity to make adverse use of the confidential information,
there is no substantial relationship.
f) Examples:
(1) A lawyer who has represented a businessperson and learned extensive private
financial information about that person may not then represent that person’s spouse
in seeking a divorce.
(2) A lawyer who has previously represented a client in securing environmental
permits to build a shopping center would be precluded from representing neighbors
seeking to oppose rezoning of the property on the basis of environmental
considerations; however, the lawyer would not be precluded, on the grounds of
substantial relationship, from defending a tenant of the completed shopping center
in resisting eviction for nonpayment of rent.
4. Confidential information
a) If a lawyer possesses only general knowledge that has only slight relevance to the
new matter, such knowledge may not create a substantial relationship between the two
matters.
b) What if the lawyer knows information about how the former client approaches legal
disputes? This type of knowledge may give the lawyer and his new client an advantage in
subsequent litigation against the former client. Whether the knowledge amounts to a
substantial relationship depends on the range of information that a lawyer could be
expected to have learned during the former representation.
c) If the confidential information that the lawyer learned from the former client has
become public, the lawyer is not precluded from representing the new client by the
possession of that knowledge.
d) If the information learned in the former representation is so out of date to be
irrelevant, then it is unlikely that the new matter would be found to be substantially
related to the old one.
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5. Variations in the definition of “substantial relationship”
a) While the rules are set forth to discipline lawyers rather than disqualify them, most of
the case law on successive conflicts involves motions to disqualify. Because courts in
these cases are not bound to use the ethics rules as standards, courts have articulated
various versions of the “substantial relationship” rule.
b) For most courts, the issue is whether there is factual information learned during the
first matter that could be used adversely to the first client during the second
representation. Substantial relationship usually does not include matters that involve
common legal issues, but some courts have held the opposite.
6. Material adversity
a) The apparent intention of the 1.9 is to require consent if the use of the former client’s
confidences might harm the former client’s interests, although neither the rules nor the
comments defines “materially adverse.”
b) Consent will not be required where the use of confidences would not harm the former
client’s interests.
c) The ABA Ethics Comm. has urged that “material adversity” in 1.9 should mean the
same thing as “direct adversity” in 1.7. However, the Restatement concludes that material
adversity is limited to potential harm to the type of interests that the lawyer sought to
advance on behalf of the former client – hence no material adversity where the new work
is unrelated to the previous work.
E. Practice Issues Relating to Former Client Conflicts
1. If a former client is approached about giving consent in these situations, the former client:
a) Has little reason to give consent where the new client’s interests conflict with those of
it;
b) Might claim that it is actually a current client; or
c) Might later claim that the request for a waiver constitutes an admission that a waiver
was needed.
2. Because of these complexities, lawyers often don’t seek consent from former clients. If a
lawyer proceeds despite a successive conflict without consent from the former client, the lawyer
may face a motion to disqualify. This is frustrating because there is no reliable formula as to
when matters are related or unrelated.
3. In evaluating a motion to disqualify, the judge does not learn details on the confidences at
issue or inquire into whether relevant confidences actually were disclosed in the first
representation. The judge evaluates the possibility that confidences had been disclosed that will
be harmful to the former client if used in subsequent representation.
4. In determining whether to grant a motion to disqualify, one looks at the type of information
that might ordinarily be disclosed in the course of prior representation. If such information
could be used adversely to the client in a subsequent matter, the two matters are deemed
substantially related.
a) The test is not whether the lawyer actually learned information in the first matter that
could harm that first client. If this were the standard, then it might require the former
client to give evidence that may violate her right to confidentiality.
b) The test is also not whether the lawyer could possibly have learned information
harmful to the first client while representing that client. This would disqualify too many
lawyers.
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5. 6-2: The District Attorney
a) You represented a kid in a car accident case 12 years ago back in private practice.
Now you are a district attorney, and this same person has committed a crime (murder)
that you must prosecute him for. He uses the defense of mental insanity.
b) Could you have reasonably acquired information that could now be used to his
detriment? Is there a substantial relationship between the mental insanity defense and the
car accident?
c) As a practical matter, you probably wouldn’t be able to remember facts from 12 years
ago that would impact his defense. However, in the real case, the lawyers were
disqualified from the prosecution.
6. Note that these rules are usually applied like a smell test or under an “appearance of
impropriety” test – if it seems unfair under the circumstances for you to be involved as a lawyer
in the case, then the court will disqualify you.
F. Particular Applications of R. 1.9
1. Suing former clients
a) A lawyer, on behalf of a new client, may sue a former client, without the former
client’s consent, in a matter that is not substantially related to the previous representation.
No consent is required unless the new matter is the same or substantially related, and the
new representation is materially adverse to the interests of the former client.
b) Although a lawyer is permitted to sue a former client on an unrelated matter, it may
not always be a good idea.
2. Representing the competitor of a former client
a) Cmt. 6 to rule 1.7: Ordinarily, representation of economic competitors poses no
serious conflict of interest. If this is not a concurrent conflict, then one would think it
would be less problematic in the successive conflict context.
b) However, if the firm learned a great deal about the operation of the former client, and
that information could be used on behalf of a competitor to the disadvantage of that
former client, the firm could have a serious conflict!
c) Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz (Pa. 1992)
(1) The firm (Pepper) knew a lot about how Maritrans did business through its
representation of the corporation. Maritrans sues to enjoin Pepper from
representing its competitors, as Pepper has a lot of information about the
corporation that it might share with its competitors. At the time this suit is brought,
Maritrans is no longer a client of Pepper.
(2) Held: There was a substantial relationship between Pepper’s former
representation of Maritrans and their current representation of Maritrans’
competitors, as Pepper’s involvement was extensive as was their knowledge of
sensitive information provided to them by Maritrans. In general, the relationship
between the attorney and his client is a fiduciary relationship, and the concept
of fiduciary relation by definition does not permit conflicts of interest. A fiduciary
who breaches his duty of loyalty to his principal is liable to his principal, and
an injunction is a proper remedy for the breach.
(3) Moral of the story: It might be risky to take on competitors of a client with
whom you have a close economic relationship.
d) Chinese wall: Lawyers in the same firm that are working on conflicting matters will
erect a “wall” between them and not share information. This is also called cone of silence
or more frequently screening. Must get informed consent from the former client in order
to use this method. This is specifically allowed by rules 1.11 (revolving door) and 1.18
(prospective clients), and may be allowed under the state rules. (THIS YEAR: 1.10a
allows for Chinese walls and screens)
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e) Walker v. State Dept. of Trans. and Development (La. 2002)
(1) Facts: Lawyer that represented DTD in a case where the P alleged that the road
was poorly designed and hence caused the accident. He represented many such
suits for the state. He left the DTD to go to private practice. At the firm, he was
given a personal injury matter (bad roads case) where he had to sue the DTD on a
claim similar to that which he used to defend against.
(2) Is this the same matter? No – it will never be the same accident under these
facts.
(3) Substantially related? Yes – While representing the DTD, he could have
obtained information that would have harmed the department.
(4) The court gives a narrow test for “substantially related”: So interrelated in
fact and substance that a reasonable person would not be able to disassociate the
two matters.
(5) Does this really help us? The test laid out here is quite different from that
employed for the model rule. There will always be some argument as to how
“substantially related” applies and what it means – it is a necessarily vague test. S
doesn’t think the test laid out by the LASC is very helpful – it seems to just be
restating the “same matter” test! This court seems to decide something contrary to
the comments to 1.9
G. Conflicts Between the Interests of a Present Client and a Client Who Was Represented By a
Lawyer’s Former Firm
1. In general
a) What if the former client was not represented by the lawyer personally, but by
another lawyer at a law firm where one of the lawyers in the firm used to work? This is
addressed in 1.9(b).
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a
firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is
material to the matter;
unless the former client gives informed consent, confirmed in writing.
b) While the analysis is largely the same as it is for 1.9(a) (same/substantially similar
matter and material adversity = informed consent), but there is one crucial difference:
consent is not required unless the lawyer has acquired information protected by
rules 1.6 and 1.9(c) that is material to the matter.
(1) Note that under 1.9(a), you ask whether the lawyer could have acquired
confidential information in the first representation that might be used adversely to
the former client’s interests.
(2) Here, however, you ask whether the lawyer actually acquired material
confidential information.
c) Comment 5
(1) If no actual knowledge of 1.6 information than not a problem if moved to new
law firm and they represent the opposing client.
(2) Note that (b) does not require that your represent the client, just than you got
the information (so sitting in a meeting would count)
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2. Analyzing former firm conflicts
a) To know if a lawyer has acquired material confidences, one must analyze the specific
facts relating to the lawyer’s access to or information about the relevant matter.
b) Cmt. 6 of rule 1.9: Certain assumptions can be used to facilitate this analysis. For
instance, if a lawyer had managerial responsibility they may be presumed to have received
confidential information about all firm matters. On the other hand, one might assume that a
junior lawyer only had access to or information about matters that she worked on or only
matters handled by her department.
c) Because it’s difficult for the moving party to get the information needed to prevail, the
firm whose disqualification is sought should have the burden to prove that the lawyer who
changed firms does not possess confidential information that is material to the new matter.
3. Using or revealing a former client’s confidences
a) Rule 1.9(c) explains the nature of the duty of confidentiality to former clients.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly
represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as
these Rules would permit or require with respect to a client, or when the information has become
generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with
respect to a client.
b) A lawyer must protect confidences of:
(1) His own present and former clients,
(2) Other present and former clients of law firms where he works or used to work, and
(3) Prospective clients.
(4) What about telling prospective employers who you worked with to prevent this? It
is necessity. Is there a Rule 1.6 exception? NO! But the ethics committee has read it in
because it is necessary to follow the rules.
c) Regardless of whether the possible receipt of confidences in a prior matter precludes
representation of a new client, 1.9(c) prohibits the revelation of confidences received from
former clients and prohibits the adverse use of such confidences.
d) 1.9 exempts from protection any confidences that may or must be revealed pursuant to
other rules.
e) If the information received in confidence has since become generally known, the lawyer
need not keep it confidential.
f) 6-3: A Dysfunctional Family Business
(1) Her Inc. v. Her Fashions. Two brothers who split off into different businesses are
fighting over the trademark of “Her.” The lawyer had previously represented both of
them when they were both under the same trademark. The lawyer is now just
representing “Her Fashions.”
(2) Under 1.9(c), because the lawyer formerly represented the entity that split up into
two, he is privy to information that might be used against the adverse party.
(3) Same matter? Defending a trademark may or may not be the same thing as
acquiring a trademark. There may be something about the trademark acquiring process
that could be used to hurt the adverse party.
(4) Substantially related? If the lawyer was in a position to gain confidential
information that could be used against the former client, then he cannot use that
information under 1.9(c) and must get informed consent from the opposing party
before continuing. (In LA, standard is whether a reasonable person could reasonably
associate the 2.)
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g) Typhoid Mary hypos from class: Apply 1.9(b) and 1.10 and (class handout
problems.)
(1) Associate worked at Old Firm, but then moved to New Firm. One of Old’s clients
is Toyota. At New, the associate is asked to sue Toyota. The associate never did any
work for Toyota at the Old Firm, and he was never in a managerial position. Is the
associate “infected”?
(a) The lawyer will only be infected where he knows something about
Toyota that is confidential and material to the matter.
(b) The associate becomes clean of the infection because he had no
opportunity to acquire confidential information since he didn’t work on
Toyota matters at Old Firm.
(2) Associate did do work for Toyota at Old. While it is clear that the associate could
not take on the matter at New, could his co-associate, Sally? Is Sally infected because
the associate is affected?
(a) Under 1.10, no one at the New Firm could sue Toyota without informed
consent.
(b) Once the infected lawyer moves, we engage 1.10 to determine the
outcome.
(c) Screening? The model rules don’t allow screening here, but the state rules
may. If you are able to get informed consent, screening might be part of the
consent deal.
(3) What if moving lawyer (before moving to the new firm) wanted to represent
Graphite while he was still at Old Firm? No, of course not. He is “imputed” with
confidential information since he’s currently working for the adverse firm. But once
he moves, the imputation stays behind…
(4) Associate did not do any work for Toyota at Old, but was asked to do a little
research on a Toyota case at one point. The research was on the summary judgment
procedure under state law. At New firm, the associate is asked to sue Toyota in the
same matter.
(a) Since this is the same matter, you must ask whether the information that
the associate knows is materially adverse.
(b) Didn’t associate represent Toyota under 1.9(a)? This rule only requires
the same matter for a conflict. It seems like that if associate was infected
under 1.9(a), then he should infect the whole New Firm. However, this is not
the case. For a moving lawyer story, we pretend 1.9(a) isn’t there! Only
look at 1.9(b) for people that move. There is some tension in the
commentary about this.
(5) At the Old Firm, associate didn’t do any work for Toyota, but associate had lunch
in the same room as attorneys that were extensively discussing the Toyota case. Is
there a problem if associate moves to New Firm and is asked to sue Toyota?
(a) YES. He is Typhoid Mary because he acquired information that was
protected under 1.6. The rule doesn’t say that you have to actually work on a
case in order to be infected.
(b) What if it was a paralegal in this situation rather than a lawyer? Cmt. 4 to
1.10 says that the rule in (a) does not prohibit representation by others in the law
firm where the person prohibited from involvement in a matter is a non-lawyer.
Such persons, however, must be screened from any personal participation in the
matter to avoid communication to others in the firm of confidential information.
(c) Keep in mind that La. has not adopted the comments to the model rules – we
don’t know where the LASC would come out on this issue. Other jurisdictions
have disallowed the use of a screen in these situations for secretaries.
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(6) Suppose it is now a partner that moves firms, and when partner moves to New
Firm, Toyota wants all the work to come with him. The only other person that
worked on the Toyota matter was an associate that comes with the partner to New
Firm. Right after partner leaves Old Firm, a lady approaches Old about suing
Toyota, but it is in a totally different matter. Can the Old firm do so?
(7) The 1.7(b) requirements if met will solve a lot of conflicts problems, or else we
jump through the new 1.10 hoops to “quarantine the typhoid”
H. Imputations of Former Client Conflicts to Affiliated Lawyers
1. In general
a) To what extent are conflicts caused by work done for former clients imputed to other
lawyers in a firm?
b) See rule 1.10 for the imputation rules for private sector lawyers.
Rule 1.10 Imputation Of Conflicts Of Interest: General Rule
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of
them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on
a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the
representation of the client by the remaining lawyers in the firm.
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter
representing a person with interests materially adverse to those of a client represented by the formerly
associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer
represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to
the matter.
(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in
Rule 1.7.
(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed
by Rule 1.11.
(1) General rule: If one lawyer in a firm has a conflict, all are precluded, with the
exception of conflicts that do not involve client loyalty or protection of
confidences (personal interest conflicts).
(2) If a lawyer leaves a firm, his former firm should use this rule to evaluate new
business that conflicts with the former lawyer’s work at the firm. The conflict will
leave the firm with the lawyer unless:
(a) The matter is the same or substantially related and
(b) A remaining lawyer knows material confidential information.
(3) Most imputed conflicts can be waived.
(4) New and fairly elaborate
(5) This has not been adopted in LA
(a) So choices are:
(i)
Not to hire
(ii)
Hire and roll the dice
(iii)
Get consent
(b) This rule does not require consent once you make the wall and give the
notices.
(c) Not ok in LA!
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c) “Screening”
(1) 1.0(k): Screening refers to isolating a lawyer from any participation in a matter
through procedures . . . reasonably adequate . . . to protect information that the
isolated lawyer is obligated to protect.
(2) Screening is generally not permitted as a remedy for conflicts between:
(a) Two present clients or
(b) A present and former client of the same firm.
(3) Screening is permitted in some states and by some federal courts as a remedy
for imputed conflicts in the private sector.
(4) There was a proposal to amend rule 1.10 to include language allowing
screening as a remedy in this context, but it was rejected by about 45 votes.
Several states, however, have amended their rules to take account of changes in the
model rules that were adopted in respond to the Ethics 2000 Commission also have
decided, notwithstanding the ABA’s rejection of the device, to permit screening in
this situation.
2. Imputation of the conflicts of an entering lawyer who is “infected”
a) The general rule is that a former client of one lawyer in a firm is imputed to the other
lawyers in the firm. If one lawyer cannot take on a matter, neither can the other lawyers
in the firm, unless the conflict is consentable and the relevant clients give informed
consent.
b) If an “infected” lawyer leaves the firm, the remaining lawyers are no longer infected
by the ex-lawyer’s conflict unless the new matter is substantially related to the old matter
and one of the remaining lawyers possesses material confidences learned as a result of the
ex-lawyer’s previous work.
c) If an infected lawyer enters a firm, the outcome will depend on whether the
jurisdiction allows screening. Additionally, most imputed conflicts can be solved through
consent. The exception is where the conflict is nonconsentable under 1.7 – other lawyers
in the firm may not solve the conflict by obtaining consent.
d) Even the ABA rules make an exception for law students, so as not to discourage law
firms from hiring lawyers who, as students, had summer jobs at other firms. However,
non-lawyer employees and law students that worked at a firm that represented a client
whose interests are adverse to a client of their present firm are barred from personal
participation in work for the client at the new firm. In addition, they must be screened.
This is one of only THREE situations where the model rules permit screening to solve a
problem.
e) Comment 4
(1) Paralegals, legal sec, and non lawyers (law students)
(2) Exceptions
(3) Screen the person from personal participation, but no need to give notice
(4) TSL Case in LA (supplement) because this rule not adopted
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3. Imputation of the conflict of a departed lawyer to his former firm
a) See 1.10(b). This analysis is similar to that under 1.9(b).
b) Consent will be required from the former client in order for the infected lawyer’s
former firm to represent a new client where there is:
(1) Material adversity,
(2) Substantial relationship, and
(3) Possession of material confidences by a lawyer in the firm.
c) What is the difference between 1.9(b) and 1.10(b)?
(1) 1.9(b): Whether the lawyer brings the old firm’s conflicts with her.
(2) 1.10(b): Whether the old firm retains the conflicts created by the work of the
moving lawyer.
4. Client waiver of imputed conflicts
a) Imputed conflicts can usually be solved by informed consent from the affected former
client.
b) The analysis for waiver here is the same as that for concurrent conflicts under Rule
1.7(b).
c) If an imputed conflict is waiveable:
(1) The lawyer must make the appropriate disclosures and
(2) The necessary consent must be in writing.
5. Imputation of conflicts among lawyers sharing office space
a) If lawyers are practicing as a law firm, it is obvious that imputation rules will apply.
b) Imputation rules may also apply where lawyers share office space without any formal
association of their practices.
c) 6-4: The Fatal Shot
(1) Two sole practitioners do criminal defense work and share a suit of offices to cut
down on operating expenses. Each lawyer takes on D in the same matter, and each D
blames the other for the shooting.
(2) Are they office sharing? If so, then what. If not, then what? Do office sharers
constitute a “firm?” under rule 1.10. If they aren’t really a firm, we don’t impute the
conflict, so it’s not a problem that they are represented by the 2 different attorneys.
They are purely office sharers and would need to make sure the secretary keeps info
separate as not to violate confidentiality.
(3) Are these two attorneys treated as being in the same firm? They share a secretary
and have access to each others’ files. The secretary alone would probably be enough to
cause a conflict, since she probably has intimate knowledge about both sides.
(4) The lawyers in this situation must take precautions to protect the confidential
information of each lawyer’s client. They could ask the secretary to only work on
things that don’t involve confidential information, but this might be impractical.
(5) Suppose that one lawyer has gone out of town to a funeral, and is supposed to
make an appearance in court for this matter. One lawyer asks the other to represent his
client at the hearing. Could this lawyer help out the other? This is problematic,
because the two D’s have divergent interests. What happens in this instance if that
lawyer at the hearing fires the first lawyer’s client? This client will become a former
client under 1.9.
This is very bad under 1.7 and/or 1.9. The client and former client’s interests are
materially adverse here – this lawyer has backed himself into a corner with a conflict
by doing a favor for his fellow lawyer.
(6) What if the two solo practitioners decide to form one firm? Then the two D’s
interests are still divergent (same matter) and this becomes a conflict under 1.7.
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I. Successive Conflicts of Present and Former Government Lawyers
1. In general
a) Revolving door conflicts: This conflict comes up if a lawyer works for a government
agency for a period of years and then joins a private law firm – some of the lawyer’s
previous work may conflict with her new practice.
b) Rule 1.11 imposes less stringent standards regarding successive conflicts that arise
from a lawyer’s present or past government service.
c) The reason for the lower barrier here is to not discourage movement between private
and public sectors.
d) How does 1.11 differ from rules that apply to other lawyer?
(1) LESS “CONFLICTS”: 1.11 has a slightly narrower standard for what
constitutes a conflict: rather than “substantial relationship,” this rule only requires
“personal and substantial involvement.” Does the lawyer possess confidential
government information that could be used adversely in private practice?
(2) NO IMPUTATION: The conflicts of former government lawyers are not
imputed to other lawyers in a firm if the former government lawyer is screened
from contact with the conflicting matter. This is the second of THREE situations in
which the model rules permit screening.
2. Conflicts of former government lawyers in private practice
a) In general
(1) See rule 1.11(a).
(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or
employee of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated
personally and substantially as a public officer or employee, unless the appropriate government agency
gives its informed consent, confirmed in writing, to the representation.
(1) The “participated personally and substantially” standard requires no inquiry
about the degree of adversity between the new client’s interests and the
government’s interests, unlike rule 1.9 (“same/substantial relationship” and
“materially adverse” standard).
(2) The 1.11 standard only applies to the same matter as the previous work.
Substantially related matter will not create a conflict in this context.
(3) Note that consent in these circumstances must be received from the
government (or a particular agency) rather than a typical individual or
organizational former client.
b) What is a “matter”?
(1) If the work involves the same matter, then 1.11 might bar the former
government lawyer from participation absent agency consent, and might bar the
firm from participation, absent screening and notice to the agency.
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(2) Rule 1.11(e) gives a definition of “matter” for purposes of this rule.
(e) As used in this Rule, the term "matter" includes:
(1) any judicial or other proceeding, application, request for a ruling or other determination, contract,
claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a
specific party or parties, and
(2) any other matter covered by the conflict of interest rules of the appropriate government agency.
(3) The comments offer further explanation:
(a) 1.11(a)(2) and (d)(2) disqualify lawyers only from work on matters
involving a specific party or parties, rather than extending disqualification
to all substantive issues on which the lawyer worked.
(b) For purposes of (e), a “matter” may continue in another form. In
determining whether two particular matters are the same, the lawyer
should consider the extent to which the matters involve the same basic
facts, the same or related parties, and the time elapsed.
c) Personal and substantial participation
(1) The comments to 1.11 do not define this term.
(2) The language is, however, borrowed from federal conflict of interest laws:
(a) To participate “personally” means directly, and includes the
participation of a subordinate when actually directed by the former
government employee in the matter.
(b) “Substantially” means that the employee’s involvement must be of
significance to the matter, or form a basis for a reasonable appearance of
such significance. It requires more than official responsibility, knowledge,
perfunctory involvement, or involvement on an administrative or
peripheral issue.
(c) It is essential that the participation be related to a “particular matter
involving a specific party.”
(3) There are two basis for disqualification of former government lawyers:
(a) 1.11(a): Subsequent work involves a matter in which the government
lawyer was personally and substantially involved while in the government
(can be cured by consent).
(b) 1.11(c): Subsequent work could involve use of confidential
government information about a person known to the lawyer in a way that
would materially disadvantage that person (cannot be cured by consent).
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d) Screening of former government lawyers
(1) See 1.11(b) as to avoiding imputation of a conflict of a former government
lawyer who had been personally and substantially involved in a matter.
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that
lawyer is associated may knowingly undertake or continue representation in such a matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no
part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain
compliance with the provisions of this rule.
(1) The former government lawyer’s firm must screen him from any contact with
the work and see that he earns no part of the fee.
(2) Note that the firm need not seek consent from the government agency as a
prerequisite to taking on the conflicting work, but must simply notify the
government agency about its work on the matter.
b) Confidential government information
(1) Even if the former government lawyer did not personally and substantially
participate in the matter, the lawyer might be precluded because, while in the
government she learned “confidential government information” about a person and
the new matter could involve material adverse use of that information.
(2) See rule 1.11(c).
(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is
confidential government information about a person acquired when the lawyer was a public officer or
employee, may not represent a private client whose interests are adverse to that person in a matter in
which the information could be used to the material disadvantage of that person. As used in this Rule, the
term "confidential government information" means information that has been obtained under
governmental authority and which, at the time this Rule is applied, the government is prohibited by law
from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to
the public. A firm with which that lawyer is associated may undertake or continue representation in the matter
only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no
part of the fee therefrom.
(1) This rule is here to prevent the use of governmental power in aid of private
interests and to avoid giving an unfair advantage to a party whose lawyer has
confidential government information about individual citizens.
(2) This type of conflict CANNOT be cured by obtaining consent.
(3) The former government lawyer cannot take on the work where:
(a) He has actually learned information about a person;
(b) That was obtained under governmental authority; and,
(c) That could be used to the material disadvantage of that person in a
new representation.
(4) Note the definition in the rule of “confidential government information” and
the fact that such conflicts only include information “about a person.”
(5) The imputation rule for these conflicts is in 1.11(c). The requirements to avoid
imputation of this kind of conflict are the same as under 1.11(b), except that the
firm need not notify the government agency about its work on the matter.
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2. Revolving Door Problems (class)
a) Suppose that A works for the IRS. At the IRS, A helps plan the legal strategy against
ABC Corp., which has claimed some questionable deductions and credits amounting to
over $160K. Shortly after doing the work on the IRS strategy, A joins law firm X, Y & Z.
It turns out that this firm represents ABC Corp. in tax matters, and the firm is engaged in
negotiations with the IRS about the corporation’s tax situation. The firm asks A to take
the lead in the negotiations.
(1) Prohibited under 1.11(a)
(2) He is disqualified UNLESS the government gives consent.
b) Same situation. But this time, the firm concludes A cannot be involved in the matter.
The firm decides to keep A totally screened off from the representation, but it continues
to represent ABC Corp. against the IRS.
(1) Under 1.11(b), A must be screened and given written notice to the government.
(2) Note that consent from the government is not needed.
(3) Screening will solve the problem.
(4) Note this is only the firm which is no longer disqualified (A still is!)
c) Suppose that lawyer Jackson used to work as a federal prosecutor. While in that
capacity, Jackson investigated CX Computers Inc. for a possible antitrust violation, and
learned some facts that would tend to support an antitrust claim. Now in private practice,
Jackson brings a civil antitrust action against CX on behalf of Western Electronics, a
competitor. Jackson finds that the knowledge he gained in government service is helpful
against CX.
(1) This is an 1.11(c) problem, and Jackson can be screened to solve the problem.
(2) What about Rule 1.6? Duty v. Bar. This is a use situation.
(3) What about we switch this hypo so that A movies from CX to GOV. Well gov
is not a firm.
d) Suppose that we have the same facts, but this time Jackson is not at all involved in the
litigation. Jackson’s law firm screens Jackson out of the litigation against CX.
(1) Screening will solve the problem. No notice (or consent) is required here.
(2) Why no notice? Well not protecting the government’s interest here, protecting
CX. And we don’t give notice to the opposing party! CX will never know.
e) Suppose that we are back in the situation with A, the IRS, and ABC Corp. A is a
government lawyer who represents the IRS. X, Y & Z law firm is on the other side. A
does a good job for the IRS, and the firm lawyer ho are working on the matter are
impressed by A and his abilities. So, during a break in the negotiations, one of the firm’s
lawyers tells A that the firm would like to hire him when the ABC matter has been
concluded. A is interested, and over the next several days, works out income and other
details of his future employment with the law firm.
(1) This is a problem under 1.11(d)(2)(ii): A lawyer currently serving as a public
officer or EE shall not negotiate for private employment with any person who is
involved as a party or as lawyer for a party in a matter in which the lawyer is
participating personally and substantially.
(2) Should A be reported under 8.4? Perhaps not because he hasn’t technically
violated the rule yet, since it won’t be negotiated until after the matter has been
completed.
(a) Haven’t really looked at this part of the rule before in great detail
(3) There might be a problem under 1.7(a)(2) – A might pull punches to get the job
– the lawyer’s personal interests are divergent from his client’s.
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f) B, a lawyer in a very small town, has now been elected mayor. One of the first
matters that comes to him concerns whether or not the town should build a new
schoolhouse on land that a corporation desires to use for a parking facility. While in
private practice, B did work for the corp., and lobbied the then mayor not to have the
town use the land for a schoolhouse. B is uncomfortable about deciding the issue as
mayor. But the town is so small, and there are only two officials – the mayor and the
chief of police. And the chief of police is concerned only with crime and crime
prevention.
(1) This is a 1.11(d)(2)(i) problem: A lawyer currently serving as a public officer
or EE shall not participate in a matter in which the lawyer participated personally
and substantially while in private practice or nongovernmental employment, unless
the appropriate government agency gives its informed consent, confirmed in
writing.
(2) The government agency in this instance must give informed consent. The
problem is that B is the only one that can give consent. The other possibilities
might be going to the city council or at least talking with the chief of police.
(3) 1.7 would probably not create a conflict here because as mayor, B is not acting
as a lawyer.
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VI.
Conflict of Interest Between Lawyers and Clients
A. Legal Fees
1. Lawyer-client fee contracts
a) Types of agreements
(1) Most common: The lawyer bills for the amount of time the lawyer spends on
the matter.
(2) Contingency fees are usually charged in personal injury P work, where the
lawyer gets a percentage of the damages (if any) that are paid out to the client).
(a) Has to be in writing!!!!
(3) Recent developments:
(a) Flat fees for standard services
(b) Schedule of fees
(4) Corporate clients have become more concerned about how much is spent on
outside counsel fees and will issue policies restricting what outside counsel may
bill for.
(5) Many clients wind up feeling blind-sided by steep legal bills, because lawyers
fails to notify them at the outset as to how much the services may cost (difficult to
predict?).
(6) Can you bill someone for the time spent billing them?! NO!!!! maybe if you
get permission from client but still might not fly.
b) Reasonable fees
(1) Lawyers generally have wide discretion in deciding how much to charge.
(2) See 1.5(a).
Rule 1.5 Fees
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount
for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(3) This is a squishy factor test that avoids accuracy.
(4) Some lawyers have been disciplined for charging unreasonable fees. In
determining the reasonableness of a fee, courts tend to ask whether the fee is
comparable to fees charged by other lawyers in similar cases, and whether the fee
makes sense in light of the work performed and the results obtained.
(5) A fee might be unreasonable if:
(a) The lawyer has no records to substantiate it or
(b) The fee is disproportionate to the services provided.
(6) Much of this question of reasonableness depends on the norms in the legal
community in question and in a particular are of practice.
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(7) In the Matter of Fordham (Mass. 1996)
(a) Lawyer charged 5 times more than the usual fee charge for a DWI, but
he came up with a very novel argument to get the kid off. The lawyer was
not an expert in this field.
(b) Held: Fordham’s fee was clearly excessive, despite the fact that
Fordham worked the hours billed.
(i)
Since other people in this field only charge $10K max for
this kind of work, the fee was unreasonable under 1.5.
(ii)
“His inexperience in criminal defense work and OUI cases
in particular cannot justify the extraordinarily high fee. It cannot be
that an inexperienced lawyer is entitled to charge 3 or 4 times as
much as an experienced lawyer for the same service.”
(iii)
The lawyer should not have charged for the research time
needed to get himself up to speed.
(iv)
The lawyer was charging, in part, to educate himself, and
this is unreasonable.
(c) Sometimes a safe harbor is applied to these situations, which will
make the fee per se reasonable: Where the lawyer contracts to bill by the
hour, the client is aware of the lawyer’s hourly fee and honestly and
diligently works the actual number of hours billed to the client, then the
lawyer will be protected. The court didn’t buy into this rule in this case.
(d) Note that while the fee is unreasonable, and outcome is not usual. The
outcome of the case is one of the factors to be considered.
c) Communication about fee arrangements
(1) Many conflicts are caused by inadequate disclosure about fees at the outset of
the representation.
(2) See 1.5(b), that requires lawyers to make some disclosures to clients about the
fees they intent to charge.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be
responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after
commencing the representation, except when the lawyer will charge a regularly represented client on the same
basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
(3) What must be disclosed?
(a) “Information about the scope of the representation,” or the general
nature of the legal services to be provided. The lawyer must also disclose
the “basis or rate of the fee and expenses.”
(b) It is suggested that the customary fee arrangement be disclosed, as
well as the basis, rate or total amount of the fee and any costs/expenses or
disbursements that will be charged to the client.
(c) The lawyer should tell the client his hourly rate if he bills by the hour.
(d) The client should be informed about any administrative costs that
might be incurred, like billing per page for copies.
(4) The disclosure only needs to be in writing if the lawyer intends to charge a
contingency fee. It is recommended that it be in writing.
(5) This disclosure must occur before or within a reasonable time after
commencing the representation. Basically, the only time the disclosure should
happen after work commences is when the client needs emergency legal help.
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(6) The lawyer need not estimate the amount of time she will spend or the total
fee, but it is a good business practice to provide a realistic assessment to clients. If
there is uncertainty as to how much time will be spent on a matter, the lawyer
might give a high and low prediction.
(7) 7-1: An Unreasonable Fee?
(a) The disputed amount was $70K in the client’s case, but the attorney
charged a fee of $60K. A satisfactory result had not even been reached yet
– no trial yet – and the fees are already this much.
(b) Applying Fordham, we would look at what other attorneys in the field
were charging and would say that he could not charge for research time.
(c) If the lawyer came up with a really novel argument, then that might
help to substantiate the fee. If the basis of the fee charged was set out in
writing ahead of time, then many of these problems could be avoided. The
problem is that only contingency fee arrangements must be in writing
under the rules.
(d) Rule 1.5 does NOT require lawyers to give an estimate of the fee. It
would not be a good idea to provide a precise estimate anyway, as the
client will hold you to it.
d) Modification of fee agreements
(1) If a lawyer represents a client over a long period of time, and the regular hourly
rate increases, may the lawyer simply begin billing an existing client at the
increased rate?
(2) Under contract law, this would be a modification of an ongoing contract. An
agreement modifying the initial contract is enforceable if it is fair and equitable in
view of circumstances not anticipated by the parties when the K was made.
(3) The case law is varied:
(a) Some courts hold that a lawyer may not simply notify a client of an
increase in the hourly rate charged.
(b) Others require client consent before a lawyer increases the percentage
f a settlement retained in as a contingent fee.
(4) 7-2: Rising Prices
(a) Consider how to communicate an increase in fees when you change
your hourly rate from $150 to $215 an hour. In light of 1.5, would any of
the options listed in the problem be unethical?
(b) Including a notice in the next month’s bill: This could probably only
be ethical if there was a term in the K that said something like the fee may
be increased at any time.
(c) Sending a letter explaining the situation: You don’t want to tell the
clients too much. A letter explaining why the fee is going up doesn’t do
much good if the client has no say in whether they pay that amount or not.
(d) Send the same letter with the caveat that if they continue to use your
services, then they assent to the modification: This at least gives the
clients a chance to speak up or switch lawyers.
(e) Maintain your present rate for existing clients: This is probably the
best and most common solution to this problem. Then you would only
charge new clients the increased fee.
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(f) Note 1.5(b): The scope of the representation and the basis or rate of
the fee and expenses for which the client will be responsible shall be
communicated to the client, preferably in writing, before or within a
reasonable time after commencing the representation, except when the
lawyer will charge a regularly represented client on the same basis or rate.
Any changes in the basis or rate of the fee or expenses shall also be
communicated to the client.
(i)
Any changes in the fee should be communicated to the
client. All of these choices literally satisfy this rule, but some are
more client friendly than others.
2. Regulation of hourly billing and billing for expenses
a) Recent unethical billing practices include:
(1) Inflating the amount of time recorded
(2) Working more hours than is necessary to complete the task
(3) Billing for time spent doing ministerial tasks
(4) Billing for personal expenses, or for legitimate expenses but at a higher rate
b) In response to these unethical practices, many firms have written billing policies and
guidelines other than those imposed by clients.
c) Clients are also demanding more detailed time records, with entries other than
“professional services rendered” or “research.”
d) S told a story about a lawyer representing dentists in CA that billed at higher rate than
the clients had agreed to, billed for work that hadn’t been done yet, and sometimes billed
more than 24 hours a day by bulk billing (bill 3 minutes per every page in a document).
He was charged with billing fraud, and in defense, he argued that he actually did the
work. A judgment was cast against him to return the unearned fees and he was disbarred
by the CA SC.
e) Here are some of the boundaries that have been developed by judges and ethics
committees:
(1) No padding or time inflation: A lawyer billing by the hour may not bill for
more hours than she actually worked. Some authorities think that undisclosed
rounding up combined with large billing increments impose on clients millions of
dollars of unearned legal fees a year.
(2) No inventing hours that weren’t really worked: If a lawyer inflates his hours
and then transmits the resulting bill to a client, he may not only be sued or
disciplined, but also may be charged with federal mail fraud or other crimes.
(3) No profits on costs: A lawyer may not bill for “overhead” or mark up costs.
The lawyer may only bill for the actual cost of the service. General overhead costs
should be covered within the lawyer’s hourly fee, not passed on to the client.
Lawyers are in the business of law, not copy centers.
(4) No double billing: A lawyer may not bill two clients for one period of time. If
a lawyer does work that benefits two clients, then the lawyer may bill each for ½
the time expended, but the block of time cannot be billed twice.
(5) No billing a second client for recycled work: A lawyer who is able to reuse
old work product has not re-earned the hours previously billed and compensated
when the work product was first generated – this is luck, not hard work.
(6) No churning or running the meter: A lawyer may not do unnecessary extra
work in order to justify billing more hours. Cmt. 5 to rule 1.5 says that “a lawyer
should not exploit a fee arrangement based primarily on hourly charges by using
wasteful procedures.”
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(7) No billing clients or the firm for personal expenses or marking up expense
receipts.
(8) No billing by the hour at lawyer rates for administrative services: While
some administrative services may be legitimately billable at lawyer rates, query
whether lawyers should bill for administrative tasks that could be delegated to a
staff person.
(9) Billing for time spent billing: It’s not clear whether the time spent explaining
billing procedures to clients or time spent preparing bills is billable. The Indiana
SC said it was improper, but this opinion is ambiguous.
3. Contingent fees
a) In general
(1) Types of contingency arrangements:
(a) A percentage of the client’s recovery
(b) Client pays an hourly fee or a flat fee, and then the lawyer gets an
additional fee if a specified result happens
(2) These arrangements have historically been closer regulated, due to the concern
about lawyers who have a financial stake in their clients’ recoveries.
(3) Benefits of contingency fee arrangements:
(a) Allows access to justice for people who are not wealthy
(b) The use of contingent fee usually aligns the interests of lawyer and
client (unlike hourly rates)
(4) Despite the more recent acceptance of contingency fee agreements, the rules
impose more specific disclosure requirements.
(5) Rule 1.5 requires that a contingent fee be in writing.
(6) Hypo: Suppose you look at a couple of documents and an accident report in a
personal injury case. You fax the report to State Farm, and they offer $40K to
settle the claim. You’ve only spent 2 hours on it. The client asks you whether it
should be accepted. If you take the typical 1/3 of this on a contingency basis, then
you’ll make much more than you would if you were billing by the hour. The
incentive for the lawyer is to settle right away, after not doing much work, while it
might be in the better interest of the client to litigate the claim.
(7) See 1.5(c).
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in
which a contingent fee is prohibited by paragraph (d) or other law. 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, including the
percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and
other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after
the contingent fee is calculated. 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. Upon conclusion of a contingent fee matter,
the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a
recovery, showing the remittance to the client and the method of its determination.
(a) Note the reference to 1.5(d): This provision bars contingent fees in
many criminal and domestic relations cases.
(b) Recall that all legal fees must be reasonable – this includes contingent
fees!
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(c) The agreement must specify the percentage of the recovery to be
earned by the lawyer and indicate whether the percentage to be charged
depends on how the case proceeds.
(d) The agreement must explain whether expenses are to be deducted from
the total settlement or judgment before or after the lawyer’s fee is
calculated.
(i)
Note that the rule does not require lawyers to deduct
expenses before calculating their fees or to offer clients an option
to do so.
(ii)
Generally, if the expenses are deducted from the total
recovery before the lawyer’s fee is calculated, the client’s recovery
will be more (and the lawyer’s fee will be less).
(e) The agreement needs to explain which expenses the client must pay
even if she gets no recovery.
(f) After the matter has been concluded, the lawyer must provide the
client with another writing explaining what fee and expenses were charged
and how they were calculated.
(8) Large contingency fee arrangements are often justified because of:
(a) The large risk that the lawyer takes in agreeing to represent the P, in
that the lawyer may invest substantial resources in the representation and
not receive anything.
(b) It is valuable for P’s to have access to contingency fee lawyers since
so many people could not afford to hire lawyers otherwise.
b) Criminal and domestic relations cases
(1) See 1.5(d).
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the
securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(2) Bar on contingency fee arrangements for domestic relations cases:
(a) Lawyers should not have a financial stake in their clients’ ultimate
divorce. The public policy concern is domestic harmony. We want
marriages to last.
(b) Traditionally, lawyers were obligated to make efforts to encourage a
divorcing couple to reconcile. If the lawyer’s fee was contingent upon a
divorce, the lawyer would be motivated to encourage the dispute.
(c) After the divorce has been granted, a lawyer may charge a contingent
fee to collect past due alimony or child support.
(3) Bar on contingency fee arrangements for criminal cases:
(a) The obvious concern is that in criminal cases, there is no settlement,
no recovery. Any fee paid to the lawyer is necessarily going to come out
of the criminal D’s pocket. You have to rely on the good graces of the
murderer you’re representing to pay you – like that’s going to happen!
(b) The lawyer may have perverse incentives, like in domestic relations
cases.
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(c) Also clients facing criminal charges may be vulnerable and may accept
fee agreements that overcompensate the lawyer. Because a contingent fee
is uncertain, a client might agree to a high contingent fee, doubting that it
will ever come due.
(d) For criminal defense cases, the lawyer will usually get a flat fee from
the D upfront.
4. Forbidden and restricted fee and expense arrangements
a) Buying legal claims
(1) See rule 1.8(i), which bars lawyers from acquiring an interest in litigation on
behalf of a client, except for permitted liens and contingent fees.
(i) 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, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.
(2) A lawyer may not purchase an interest in a claim on which the lawyer is
representing the client.
(3) However, if a lawyer purchases a claim from a client, and ceases to represent
the client in the collection of the claim, then the transaction is no longer technically
barred by 1.8(i). A lawyer may purchase collection claims from a client, so long as
the lawyer complies with rule 1.8(a) and (j) – the terms must be reasonable, the
client must have the opportunity to seek independent legal advice, the lawyer must
disclose all possible conflicts, and the client must consent in writing.
b) Financial assistance to a client
(1) See 1.8(e).
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated
litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be
contingent on the outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf
of the client.
(a) The goal here is to prevent lawyers from having too big a stake in the
outcome of litigation – it might produce an improper level of zeal.
(b) A client might also pursue a frivolous suit to obtain the offered
financial support.
(c) Note that court costs and litigation expenses may be paid by the
attorney.
(i)
If the client is not indigent, the client is ultimately
responsible for paying these costs, but they may be taken out of the
client’s recovery.
(ii)
If the client is indigent, the lawyer need not attempt to
collect these sums from the client.
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(2) Louisiana has adopted a different rule on financial assistance to clients, which
is much more client friendly.
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated
litigation, except as follows.
(1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be
contingent on the outcome of the matter, provided that the expenses were reasonably incurred. Court
costs and expenses of litigation include, but are not necessarily limited to, filing fees; deposition costs;
expert witness fees; transcript costs; witness fees; copy costs; photographic, electronic, or digital
evidence production; investigation fees; related travel expenses; litigation related medical expenses; and
any other case specific expenses directly related to the representation undertaken, including those set out
in Rule 1.8(e)(3).
(2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of
the client.
(3) Overhead costs of a lawyer’s practice which are those not incurred by the lawyer solely for the
purposes of a particular representation, shall not be passed on to a client. Overhead costs include, but are
not necessarily limited to, office rent, utility costs, charges for local telephone service, office supplies,
fixed asset expenses, and ordinary secretarial and staff services.
With the informed consent of the client, the lawyer may charge as recoverable costs such items as computer
legal research charges, long distance telephone expenses, postage charges, copying charges, mileage and
outside courier service charges, incurred solely for the purposes of the representation undertaken for that client,
provided they are charged at the lawyer’s actual, invoiced costs for these expenses.
With client consent and where the lawyer’s fee is based upon an hourly rate, a reasonable charge for paralegal
services may be chargeable to the client. In all other instances, paralegal services shall be considered an
overhead cost of the lawyer.
(4) In addition to costs of court and expenses of litigation, a lawyer may provide financial
assistance to a client who is in necessitous circumstances, subject however to the following
restrictions.
(i) Upon reasonable inquiry, the lawyer must determine that the client’s necessitous
circumstances, without minimal financial assistance, would adversely affect the client’s ability to
initiate and/or maintain the cause for which the lawyer’s services were engaged.12
(ii) The advance or loan guarantee, or the offer thereof, shall not be used as an inducement by the
lawyer, or anyone acting on the lawyer’s behalf, to secure employment.
(iii) Neither the lawyer nor anyone acting on the lawyer’s behalf may offer to make advances or
loan guarantees prior to being hired by a client, and the lawyer shall not publicize nor advertise a
willingness to make advances or loan guarantees to clients.
(iv) Financial assistance under this rule may provide but shall not exceed that minimum sum
necessary to meet the client’s, the client’s spouse’s, and/or dependents’ documented obligations
for food, shelter, utilities, insurance, non-litigation related medical care and treatment,
transportation expenses, education, or other documented expenses necessary for subsistence.
(5) Any financial assistance provided by a lawyer to a client, whether for court costs, expenses of
litigation, or for necessitous circumstances, shall be subject to the following additional restrictions.
(i) Any financial assistance provided directly from the funds of the lawyer to a client shall not
bear interest, fees or charges of any nature.
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(ii) Financial assistance provided by a lawyer to a client may be made using a lawyer’s line of credit or
loans obtained from financial institutions in which the lawyer has no ownership, control and/or security
interest; provided, however, that this prohibition shall not apply to any federally insured bank, savings
and loan association, savings bank, or credit union where the lawyer’s ownership, control and/or security
interest is less than 15%. Where the lawyer uses such loans to provide financial assistance to a client, the
lawyer should make reasonable, good faith efforts to procure a favorable interest rate for the client.
(iii) Where the lawyer uses a line of credit or loans obtained from financial institutions to provide
financial assistance to a client, the lawyer shall not pass on to the client interest charges, including any
fees or other charges attendant to such loans, in an amount exceeding the actual charge by the third party
lender, or ten percentage points above the bank prime loan rate of interest as reported by the Federal
Reserve Board on January 15th of each year in which the loan is outstanding, whichever is less.
(iv) A lawyer providing a guarantee or security on a loan made in favor of a client may do so only to the
extent that the interest charges, including any fees or other charges attendant to such a loan, do not exceed
ten percentage points (10%) above the bank prime loan rate of interest as reported by the Federal Reserve
Board on January 15th of each year in which the loan is outstanding. Interest together with other charges
attendant to such loans which exceeds this maximum may not be the subject of the lawyer’s guarantee or
security.
(v) The lawyer shall procure the client’s written consent to the terms and conditions under which such
financial assistance is made. Nothing in this rule shall require client consent in those matters in which a
court has certified a class under applicable state or federal law; provided, however, that the court must
have accepted and exercised responsibility for making the determination that interest and fees are owed,
and that the amount of interest and fees chargeable to the client is fair and reasonable considering the
facts and circumstances presented.
(vi) In every instance where the client has been provided financial assistance by the lawyer, the full text
of this rule shall be provided to the client at the time of execution of any settlement documents, approval
of any disbursement sheet as provided for in Rule 1.5, or upon submission of a bill for the lawyer’s
services.
(vii) For purposes of Rule 1.8(e), the term “financial institution” shall include a federally insured financial
institution and any of its affiliates, bank, savings and loan, credit union, savings bank, loan or finance
company, thrift, and any other business or person that, for a commercial purpose, loans or advances
money to attorneys and/or the clients of attorneys for court costs, litigation expenses, or for necessitous
circumstances.
(a) La.’s rule on this is quite different from the model rule. See part (4):
Subject to some restrictions, a lawyer may provide financial assistance to a
client who is in necessitous circumstances, subject however to the
following restrictions.
(b) The Edwin case came down about 4 years ago which held that lawyer
could make advances of living expenses to clients. The practice came up
because of the situation discussed in the problem below – clients are
forced to settle cases quickly because of their personal situation.
(c) The La. rule allows the advancement of living and medical expenses,
and also allows lawyers to make loans.
(d) E(4) is very broad: are transportation and education really necessary
for subsistence?
(e) There are a few prohibitions:
(i)
Must be reasonably necessary and imminent circumstances.
(ii)
The lawyer cannot charge an interest rate higher than what
the bank is charging.
(f) Note that the La. rule does not take anything away from the model
rule, but only adds to it.
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(3) 7-3: An Impoverished Client
(a) You represent a 62 year old man that recently lost his job as a night
security guard. If he wins his case, he’ll be awarded $50K, and the lawyer
will collect 1/3. The client is broke – he can’t pay his rent, etc. Can the
lawyer pay such living expenses for the client?
(b) See 1.8(e). Court costs and expenses can be advanced, but this rule
does not allow the lawyer to pay living expenses like rent or cable TV.
(c) What about medical bills? Cmt. 10 says that the lawyer can pay for
medical examinations (since its an expense as a result of the litigation).
However, medical care for actual treatment cannot be paid for by the
lawyer.
(d) This reflects traditional notions of champerty and maintenance (these
were prohibited kinds of advances under old CML notions).
(e) Note how the result would change under the La. rules.
c) Publication rights (media rights)
(1) Can lawyers agree to take on a matter in exchange for a promise that when it
is all over, you will have exclusive rights to publish a book/movie about the case?
Rule 1.8(d) says no.
(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement
giving the lawyer literary or media rights to a portrayal or account based in substantial part on information
relating to the representation.
(2) The problem is that if the case settles quickly, no one will want to read the
book. On the other hand, the trial might be widely publicized and make a
bestseller. A lawyer in such a situation might do things that would be bad for the
client and good for the book. The lawyer might be inclined to draw the case out to
make it a bigger show, rather than settling it at an appropriate time.
(3) This prohibition only stands until the case is over. At this point, you and your
client can agree to forgive all or part of the debt in exchange for transfer of literary
or media rights.
(4) This rule applies only to the story of the representation. IT does not restrict
lawyers representing clients in book or movie K’s where the book or movie is not
about a case handled by the lawyer. Such an agreement would, however, be subject
to 1.8(a), so the lawyer would have to comply with disclosure requirements.
(5) Note that the rule only prohibits the giving of media and publication rights to
the lawyer. Under 1.8(d), the client could technically sign over the rights to the
lawyer’s son who is a writer. However, 1.7(a)(2) might apply – the lawyer might
still pull his punches or be overzealous to make a better book. A lawyer may also
not “negotiate” an agreement of this type, so if the lawyer is just using his son as a
stand0in for his own interest, that will also not work.
(6) Maxwell (CA): This prohibition can be waived with informed consent, if the
lawyers seeking the rights disclose in the K that their interest in the publication
may be detrimental to the case. The court said that the disclosure is fine and that
informed consent was given – a valid waiver of the prohibition occurred. Note that
there is NO indication of a waiver under the ABA version.
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d) “Advance payment of fees” and “nonrefundable retainers”
(1) Retainer: Paying a portion of the lawyer’s fee for a specified service before the
service is performed.
(a) These are usually paid where the client asks for work to be done over a
period of time.
(b) If the client pays a retainer at the outset, the lawyer has some
protection against the claim if he becomes unwilling/unable to pay.
(c) This advance is deposited in the lawyer’s client trust account, and
portions are withdrawn as they are earned.
(d) Any unearned portions of the advance must be returned back to the
client.
(e) If the advance payment is exhausted, then the lawyer usually continues
to do work, billing the client periodically.
(2) Lump sum payment: Secures the lawyer’s availability for a period of time or
for a particular task. This is considered to be earned by the lawyer when it is
received, since it is a promise for future services.
(3) May a lawyer require a nonrefundable advance payment from an individual
client with whom the lawyer has no prior relationship? Maybe, although public
policy strongly discourages it. It is argued that this locks the client into the
relationship and tends to constrain the client from firing the lawyer where
necessary.
(a) There was a case out of NY that upheld a nonrefundable retainer of
$1M because the client knew about it from the beginning and agreed to
pay it.
(b) Nonrefundable retainers are rarely needed, but that are used to retain
the availability of lawyers in the firm – the lawyers have to turn down
other opportunities because of this arrangement.
(c) These agreements compromise the client’s ability to fire the lawyer.
(d) Distinguish among two types of retainers:
(i)
Advance fee payment (refundable)
(ii)
True retainer (nonrefundable)
La. rule 1.5(f) elaborates more on this:
(f) Payment of fees in advance of services shall be subject to the following rules:
(1) When the client pays the lawyer a fee to retain the lawyer's general availability to the client and the fee is not
related to a particular representation, the funds become the property of the lawyer when paid and may be placed
in the lawyer's operating account.
(2) When the client pays the lawyer all or part of a fixed fee or of a minimum fee for particular representation
with services to be rendered in the future, the funds become the property of the lawyer when paid, subject to the
provisions of Rule 1.5(f)(5). Such funds need not be placed in the lawyer’s trust account, but may be placed in
the lawyer’s operating account.
(3) When the client pays the lawyer an advance deposit against fees which are to accrue in the future on an
hourly or other agreed basis, the funds remain the property of the client and must be placed in the lawyer’s trust
account. The lawyer may transfer these funds as fees are earned from the trust account to the operating account,
without further authorization from the client for each transfer, but must render a periodic accounting for these
funds as is reasonable under the circumstances.
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(4) When the client pays the lawyer an advance deposit to be used for costs and expenses, the funds remain the
property of the client and must be placed in the lawyer's trust account. The lawyer may expend these funds as
costs and expenses accrue, without further authorization from the client for each expenditure, but must render a
periodic accounting for these funds as is reasonable under the circumstances.
(5) When the client pays the lawyer a fixed fee, a minimum fee or a fee drawn from an advanced deposit, and a
fee dispute arises between the lawyer and the client, either during the course of the representation or at the
termination of the representation, the lawyer shall immediately refund to the client the unearned portion of such
fee, if any. If the lawyer and the client disagree on the unearned portion of such fee, the lawyer shall
immediately refund to the client the amount, if any, that they agree has not been earned, and the lawyer shall
deposit into a trust account an amount representing the portion reasonably in dispute. The lawyer shall hold
such disputed funds in trust until the dispute is resolved, but the lawyer shall not do so to coerce the client into
accepting the lawyer’s contentions. As to any fee dispute, the lawyer should suggest a means for prompt
resolution such as mediation or arbitration, including arbitration with the Louisiana State Bar Association Fee
Dispute Program.
5. Fee disputes
a) Prospective limitations of lawyer’ liability and settlement of claims against
lawyers
(1) Can a lawyer ask each client to agree in advance not to sue the lawyer for
malpractice, no matter what? Rule 1.8(h) says YES, but only if each client has
independent counsel in making the K.
(2) Scope of work under Rule 1.2  but cannot upfront limit the mal-practice
liability
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the
client is independently represented in making the agreement; or
(2) 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.
(3) What about settling a malpractice claim?
(a) If a lawyer makes a mistake that might cause her to be liable in
malpractice, she will usually contact her malpractice insurance co. and/or
notify the client.
(b) A lawyer might settle this malpractice claim with a client who does not
have independent legal advice, but the lawyer must advise the client in
writing that it is a good idea to get advice from another lawyer before
making such a settlement.
(c) The lawyer must give the client a chance to consult with another
lawyer.
(d) This is a conflict of interest rule because the lawyer would be very
tempted to low-ball the amount of the malpractice settlement. This is why
outside independent counsel.
(4) Lawyers may also organize their firm to limit personal liability for the
misconduct of others in the firm. As an LLP, partners are liable for their own
conduct and for that of those he supervises, but is otherwise not vicariously liable
for the conduct of his partners.
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b) Fee arbitration
(1) May bar associations have established committees to intermediate between
lawyers and clients who have disputes over fees.
(2) Commentt. to rule 1.5: If a jurisdiction has set a mandatory mediation or
arbitration process for resolution of fee disputes, a lawyer must comply with it.
(3) Many lawyer include clauses in their retainer agreements with clients in which
both parties agree to go to binding arbitration in the event of a fee dispute. Such an
agreement will be proper where the client is advised of the advantages and
disadvantages of arbitration, the client gives informed consent and the provision
does not insulate the lawyer from liability that might otherwise by imposed by law.
c) Collection of fees
(1) What if your client doesn’t pay up?
(a) Lawyer may contact the client to request payment
(b) Lawyer may file suit against the client to collect the fee (but the client
may counter with malpractice)
(c) May use a collection agency or hire another lawyer to collect the fee
(d) May withhold documents prepared by the lawyer for which payment
has not been received, but only if doing so will not unreasonably harm the
client.
(2) Lawyers are subject to the Fair Debt Collection Practices Act if they regularly
engage in consumer debt collection activities.
(3) Several state consumer statutes apply to lawyers and forbid various unfair and
abusive practices in fee collection.
(4) Rule 1.8(i) allows a lawyer to “acquire a lien authorized by law to secure the
lawyer’s fee or expenses.” Each state has law that authorizes a lien in this context
– by statute, by CML or by K.
(a) Such a lien, acquired by contract, constitutes a business transaction
with a client and is covered by rule 1.8(a) – the client is entitled to fair
terms, a clear explanation of the terms in writing, and written
encouragement and opportunity to seek the advice of an independent
lawyer.
(b) Recall the special rule in La. about liens: If the client makes special
written demand for the file, then the papers must be handed over. No
retaining lien can be accomplished where the client asks for the file in the
right way.
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(c) See La. R.S. 37:218. (Not on test) This gives the lawyer a privilege in
an insurance/personal injury case where the insurance company pays out
to the client and the lawyer doesn’t get his fees. The lawyer doesn’t have
to go after the client, but the insurance company. Effectively, the
insurance company will have to pay twice if they forget to take out the
attorney’s portion the first time.
§218. Contract for fee based on proportion of subject matter; stipulation concerning compromise,
discontinuance, or settlement
A. By written contract signed by his client, an attorney at law may acquire as his fee an interest in the
subject matter of a suit, proposed suit, or claim in the assertion, prosecution, or defense of which he is
employed, whether the claim or suit be for money or for property. Such interest shall be a special privilege to
take rank as a first privilege thereon, superior to all other privileges and security interests under Chapter 9 of the
Louisiana Commercial laws. In such contract, it may be stipulated that neither the attorney nor the client may,
without the written consent of the other, settle, compromise, release, discontinue, or otherwise dispose of the
suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish
in which the suit is pending or is to be brought or with the clerk of court in the parish of the client's domicile.
After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by
either the attorney or the client, without the written consent of the other, is null and void and the suit or claim
shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition has been
made.
B. The term "fee", as used in this Section, means the agreed upon fee, whether fixed or contingent, and any and
all other amounts advanced by the attorney to or on behalf of the client, as permitted by the Rules of
Professional Conduct of the Louisiana State Bar Association.
(d) Recall 1.8(i): A lawyer may not acquire a propriety interest in the
cause of action or subject matter of litigation the lawyer is conducting for
a client. Obviously, there are a few exceptions in these cases about liens,
contingency fees, etc.
 In Saucier the LASC said 1.8(i) and §218 were in conflict, due to the
language “of a suit.” They said the ethics rules have the force and
effect of law, and will trump legislative pronouncements. The court
interpreted §218 just to say that the lawyer is acquiring a lien in the
settlement proceeds. The statute has not been amended, despite this
decision.
o A security interest
o Do not read the words literally
d) Fees owed to a lawyer who withdraws or is fired before the matter is completed
(1) Whether the lawyer is entitled to payment for the work done before withdrawal
or dismissal depends on the reason for the relationship’s severance.
(2) Where the lawyer is justified for withdrawing under 1.16(b), the lawyer would
be entitled to compensation on a quantum meruit basis (equitable assessment of
the value of the work done).
(3) If the lawyer withdraws without good cause, then the lawyer is breaching the K
and may forfeit her right to recover any fees for the work done.
(4) If a client fires his lawyer in a contingent fee case, the lawyer may get a
quantum meruit fee award, assuming that the services provided are deemed to have
some value.
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(5) Saucier: A is retained and fired without cause. Client then retains B, and B
sees the case to its conclusion.
(a) How should the fee be divided between A and B?
(b) There are a few options:
(i)
1/3 to A, 1/3 to B, 1/3 to client?
(ii)
1/3 to B and quantum meruit to A?
(c) The LASC rejected both. They concluded that only one contingency
fee should be paid here, and that fee should be allocated between the
attorneys, apportioned based on the 1.5 factors.
(i)
Relevant contributions of each lawyer
6. Dividing fees with other firms or with non-lawyers
a) Division of fees between lawyers not in the same firm
(1) If two lawyers in different law firms work on a case, both should be paid for
their services.
(a) With hourly fees, it is easy to calculate which lawyer is entitled to be
paid what amount.
(b) If its a contingency fee agreement, the allocation of the fee is unclear.
(2) See rule 1.5(e), which allows the lawyers to share a fee, but imposes conditions
to protect clients.
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint
responsibility for the representation;
(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement
is confirmed in writing; and
(3) the total fee is reasonable.
(3) A referral fee can only be collected where the lawyers form a joint venture:
(a) The referring lawyer takes on financial and ethical responsibility for
the representation as if the lawyers were associated in a partnership (share
responsibility in the event of discipline), and
(b) The proposed share that each lawyer receives must be disclosed to and
approved by the client, in writing. Note that the fee must always be
REASONABLE!
(4) If a fee splitting agreement is unenforceable, then a lawyer may still recover a
share of the fees on a quantum meruit basis.
(5) Hypo: He refers a case to you. You, being very grateful and wanting him to
refer more cases to you, give him a referral fee of $1K. Under 7.2 (an advertising
rule) however, you cannot pay for the recommendation. 1.5(e) might work in this
instance though, but the referring lawyer is going to have to assume responsibility
for your malpractice like he would if he were a partner.
(6) LA Rule 1.5(e)
(a) Little more specificity  requires service
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b) Sharing fees with non-lawyers
(1) You can’t do it. Lawyers are NOT allowed to share legal fees with nonlawyers, except in very narrow circumstances (like where a partner dies and you
distribute his fee earnings to his estate).
(2) See rule 5.4(a).
(a) A lawyer or law firm shall not share legal fees with a non-lawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment
of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or
more specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to
the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon
purchase price;
(3) a lawyer or law firm may include non-lawyer employees in a compensation or retirement plan, even
though the plan is based in whole or in part on a profit-sharing arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or
recommended employment of the lawyer in the matter.
(3) The purpose of the rule is to protect the lawyer’s independent judgment from
being affected by influence or pressure from non-lawyers.
(4) Law firms may pay salaries and bonuses to non-lawyer employees but may not
routinely divide profits among lawyers and non-lawyers.
(5) Cannot share fees with summer clerk, secretary or paralegal
What about “runners”?
(a) In most states, lawyers may not pay referral fees to non-lawyers who
send them clients.
(b) Some personal injury lawyers send runners to the scene of an accident
or the emergency room to hand out flyers about the P’s attorney – some of
them has been disbarred.
(c) In La., the Office of Disciplinary Counsel has been very vigilant about
this.
(i)
Sting program
7. Payment of fee by a third party
a) There are restrictions on allowing one person to pay a lawyer to represent another
person.
b) Rule 1.8(f) allows a third party to pay a lawyer’s fee, but only if:
(1) The client consents after being advised,
(2) The third person does not direct the lawyer’s decisions or otherwise interfere
with the representation, and
(3) The lawyer avoids sharing with the third person any confidences learned in the
court of representation.
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B. Lawyer as Custodian of Client Property and Documents
1. Client trust accounts
a) Client trust account: The bank account in which the lawyer keeps funds that belong to
various clients.
b) This is where most lawyers are disciplined – from taking money out of client trust
accounts.
c) Under rule 1.15(a), if a lawyer takes possession of money from a client or third party
in connection with representation, she must keep it “separate from the lawyer’s own
property. Funds shall be kept in a separate account maintained in the state where the
lawyer’s office is situated, or elsewhere with the consent of the client or third person.”
(1) Property other than money must be appropriately safeguarded, and the lawyer
must keep complete records of the funds or property for a period specified in state
rules after the events that they record.
(2) The lawyer must keep detailed records of deposits into and withdrawals from
the client trust account.
(3) The lawyer keeps something called an operating account, where the lawyer
makes withdrawals to pay the secretary’s salary, light bills, etc. The money in this
account CANNOT be commingled with the money from the client trust account.
(4) Funds from multiple clients may be kept in the same account, but the lawyer’s
funds may not commingle with those of the clients’. Lawyers cannot hide their
money from creditors in their client accounts.
(5) A lawyer may be disciplined for commingling or misappropriating client trust
funds even if the violation was unintentional, if no client funds were lost and even
if the lawyer’s mental capacity is compromised by illness.
(6) DO NOT SPEND ANYTHING OUT OF YOUR TRUST ACCOUNT!
(7) The only thing you can do is transfer to operating account and than spend once
its determined that you are entitled to them.
d) IOLTA: What happens to the interest on the client trust account?
(1) Interest on Lawyer Trust Accounts
(a) This is not chump change! This can be some big bucks.
(2) Traditionally:
(a) The trust account was noninterest bearing (banks liked this).
(b) Two exceptions:
(i)
If a large amount was going into the trust account for a long
period of time, then the lawyer had a fiduciary duty to tell the
client that he could put it in an interest bearing account.
(ii)
Where the client insisted on receiving interest.
(3) Under the IOLTA regime, the interest accruals would go to the state bar
association. At first this was voluntary, but later became mandatory.
(a) The client will only receive interest where he insists on it. We’re not
sure if the lawyer has a fiduciary duty to tell the client about interest
bearing accounts now that we have the IOLTA scheme.
(4) There is a caveat to La.’s IOLTA rules: “. . . traditional attorney-client
relationships do not compel attorneys either to invest clients’ funds or to advise
clients to make their funds productive.” Lawyers don’t have to tell clients that they
could get interest on their accounts. S thinks this is wrong, if lawyers truly have a
fiduciary relationship with their clients.
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(5) The state bar, working under the order of the LASC, is taking money that is
generated by private funds. Does this violate the takings clause? The US SC has
said that the interest generated from client funds is client property, but didn’t
actually rule on the takings question.
(6) Under the Wash. IOTLA scheme, the client gets the interest where the bank
fees don’t eat it up. In that instance, it was held that there was no taking. However,
the La. scheme doesn’t provide for this, so there might still be a valid IOLTA
claim there. Big commercial enterprises would likely want to attack this, since
IOLTA money goes to funding indigent clients that are usually suing these big
companies.
(a) Even in La., under our mandatory IOLTA scheme, if the client insists
on receiving the interest, then they can. But it’s murky as to whether the
lawyer has a duty to tell them about it.
(7) If the trust account gets overdrawn that the ODC gets a notice! Why because
this means the lawyer might be dipping into the account.
(8) Big deal for lawyers in private practice
2. Responsibility for client property
a) Prompt delivery of funds or property
(1) Once the lawyer receives a settlement check or other funds to be paid to the
client, he is obliged to:
(a) Notify the client and
(b) To make prompt payment of all funds due to the client.
(2) If the client requests a record of the amount received and of how much was
paid to whom, the lawyer must provide it.
b) Disputes about money or property in lawyer’s possession
(1) Under 1.15(c), if there is a dispute about the amount of the fee, the lawyer is to
distribute undisputed portions of the settlement and keep the disputed portion
in the client trust account. If you transfer the disputed amount to your account for
earned money, then this will be considered conversion (or stealing).
(2) Note that if the client gives the lawyer his property to watch over, the lawyer
must safekeep it. Therefore, if the property is damaged while under the lawyer’s
watch, the lawyer will be liable.
(3) Now the amount you agree on can be moved to the operating account
(4) The amount in dispute is the amount you think you should get minus what they
think you should get. It sits in the trust account until the matter is resolved.
(5) Note LASC case found that even if the client’s claim is no goof you still have
to do this! If not you could be disbarred.
c) Lawyers’ responsibilities to clients’ creditors
(1) Comment. to rule 1.15: If a third party has a “lawful claim” against funds that
are in the lawyer’s custody, the lawyer might have some obligation to the third
party.
(2) The lawyer should hold the property until the claims are resolved.
(3) However, a lawyer is not a collection agency for all his client’s creditors. Third
party creditors have no right to ask the lawyer to give them money that the client
owes, even if the debt is legitimate and overdue.
(4) Unless the creditor has a legitimate claim to the particular funds in the
lawyer’s possession, the lawyer’s duty is to his client, not to the third party. This
might happen where the creditor has obtained a judgment against the client and
obtains an order against the lawyer to surrender the funds.
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3. Administering estates and trusts
a) A lawyer may accept appointment as executor of a client’s estate.
b) A lawyer must comply with rule 1.7 in giving advice about whom to appoint as
executor or in acting as executor for a client’s estate.
4. Specific Conflicts
a) Business Transactions
(1) Rule 1.8(a)
(2) Lawyers sometimes have money to invest and this rule applies
(3) Same if borrow form client
(4) IN La lawyer disbarred for not following the rule and screwing over the client
(5) The trick to try and get around  try to make a fee and get piece of action.
Court did not like! If your gonna try and get piece of the action FOLLOW THE
RULE.
(6) There are no exceptions for things like buying a car from your client who owns
dealership.
(a) But the comments do!
(b) Exceptions for NORMAL client activities.
(c) Remember that LA did not adopt the comments.
(7) FL hypo
(a) Represented client in aircraft business
(b) Owned company which maintained aircraft
(c) This business is in completion with his client’s business
(d) The court said that you acquired a business in conflict with the adverse
pecuniary interest of your principle client and you should have jumped
through the 1.8(a) hoops
(e) So what if I want to get Honda dealership and client owns Chevy
dealership. This is ok.
(8) Client is a borrower and borrowing money from a lender
(a) Note and mortgage going back to lender
(b) It is going to default
(c) So you want to buy the note and mortgage for 50 cent on the dollar
(d) So now you the lawyer are the creditor for your OWN client
(e) This is pretty adverse to the clients adverse pecuniary interest
b) Gifts
(1) Rule 1.8(b)
(2) Prohibits soliciting substantial gifts from your clients
(3) You are bonehead! Clients do not really like this.
c) What about wills and acts of donations?
(1) Rule 1.8(c)
(2) If they want to give you something than another lawyer has to make it!
(3) LA hypo  Client wants to give gift to the lawyer. He wrote it in and said if
it’s invalid than it goes to his wife. Heirs not good with this. Challenge. Rule 1.8(c)
invalidates the donation because force and effect of substantial law. Lawyer claims
now only can punish! Cannot take my property. He tries to claim that he did not
know. They don’t care and disbar him! SO DON’T DO THIS. He lost the donation
and his practice. Just send it out and protect yourself and your donation.
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d) Sex
(1) Rule 1.8(j)
(2) Sex itself is not prohibited
(a) You are fiduciary for your client. Don’t let the men pick on vulnerable
female clients. Like for example divorce clients.
(b) Lawyers offer discount for sex acts! Or for late fee payments….
(3) Ok if you were engaged BEFORE you became the client.
(4) LA does not have this rule. But still will go after them with other conflict rules.
None of it turns out well for the lawyer.
(a) Not representing client well b/c you have personal interest in client’s
affair
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VII. Lawyers’ Duties to Courts, Adversaries and Others
A. Investigation Before Filing a Complaint
1. Issue: Does the lawyer for the party initiating the proceedings have enough of a factual and
legal basis to justify starting a case that will impose burdens of time and expense on others?
While lawyers are not required to file only “sure winners,” they also cannot file frivolous
lawsuits.
2. Required Investigation by Lawyers Filing Civil Cases
a) See R. 3.1, which prohibits the filing of “frivolous” claims without defining the term.
Rule 3.1: Meritorious Claims and Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis
in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension,
modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent
in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that
every element of the case be established.
b) How much more than mere speculation is required? See cmt. 2: The facts need not be
“fully substantiated” before suit is filed. The lawyer may need to use discovery to
“develop vital evidence.” On the other hand, lawyers must “inform themselves about the
facts of their clients’ cases and the applicable law and determine that they can make good
faith arguments in support of their clients’ positions.”
c) Appears to set up a lower bar for criminal matters, since there is usually a lot more at
stake there. You can assert a not guilty claim even where you know your criminal client
is guilty – this will not be a violation of the rule.
d) You can let him plead not guilty even if your know they are guilty.
e) Federal Rule of Civil Procedure 11(b): Similar to R. 3.1, but more detailed.
By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting,
or later advocating it — an attorney or unrepresented party certifies that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are
reasonably based on belief or a lack of information.
(1) This standard is subject to widely ranging interpretations.
(a) Legal theory: Must be warranted by existing law or by a nonfrivolous
argument for the extension, modification or reversal of existing law or the
establishment of new law.
(b) Factual assertions: Must have evidentiary support, or if specifically so
identified, be likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery.
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(2) What are the differences between R. 3.1 and Federal Rule 11?
(a) Sanctions:
(i)
3.1: Bar disciplinary action against the attorney
(ii)
11: Punished by the judge in the civil action; may result in
nonmonetary directives or monetary sanctions against the lawyer
or a party
(b) Safe harbor:
(i)
3.1: No safe harbor, although bar counsel would be
unlikely to file a charge against a lawyer for filing a frivolous case
or defense that the lawyer withdrew pursuant to the safe harbor
provision of Federal Rule 11.
(ii)
11: If opposing party makes a motion that 11 has been
filed, the lawyer may withdraw the allegedly frivolous pleading
within 21 days after the motion and suffer no sanction other than
paying atty fees for filing the motion.
(3) What penalties may apply to lawyers who bring unsubstantiated suits under
Federal Rule 11?
(a) A lawyer who initiates a federal claim in good faith, and later finds out
that the suit is groundless, may still be subject to sanctions.
(b) May have to pay the other party’s atty fees.
(c) In some states, a D who has been sued on the basis of virtually no
evidence may sue the P or the P’s lawyer for the tort of malicious
prosecution. This may require a higher burden of proof than for granting
sanctions under Federal Rule 11. The elements of this claim usually
include:
(i)
D won the previous suit
(ii)
Suit was without probable cause
(iii)
Suit was brought with malice
(iv)
D was injured despite having won
(v)
(Sometimes) Special injury
(4) CCP Art. 863: By signing a document or pleading submitted to the court, the
lawyer certifies that, after reasonable inquiry, that the claim does not violate the
equivalent requirements of rule 11.
Art. 863. Signing of pleadings, effect
A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of
record in his individual name, whose address shall be stated. A party who is not represented by an attorney
shall sign his pleading and state his address.
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise
provided by law, but the signature of an attorney or party shall constitute a certification by him that he
has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable
inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law; and that it is not interposed for any improper
purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
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f) 8-1: Your Visit from Paula Jones
(1) An EE in a state agency. She had a brush with the Gov. of Ark. (Clinton) – she
got a note from him, and thought it had to do with a promotion. She goes to meet
with him, and he sexually harasses her. She goes to a lawyer, and sues the Pres. of
the US for sexual assault.
(2) There is a duty to look into the truthfulness of the client’s story before filing
formal charges. She could be lying about this – some people are crazy or want to
attack politicians.
(a) You need an reasonable investigation
(b) Should not really take anything at face value
(3) How do you know if she’s telling the truth? It would be hard to figure out
whether what she is saying is true. You must make a “reasonable inquiry.” How
would you go about doing this? Is there anything we can do to check out her story?
Make sure she was employed where and when she said, record that she was at that
hotel that day, could check the hotel’s records to ensure that Clinton had access to
the particular room, could ask her or the bodyguard about the note or letting her
into the room, etc. If some of this comes together, then there’s some good
corroboration.
(4) What if you didn’t get anything, just believed her story and then filed suit?
Does no inquiry = reasonable inquiry? There is a code language that is used in
pleadings when we don’t have corroboration yet, but we’re likely to get it – on
information and belief. We hope to get something, but we don’t have it yet. You
won’t be asserting that you have the information – you’re not lying about it.
B. Truth and Falsity in Litigation
1. Once a case has been filed, lawyers are bound by court and ethical rules to be honest with the
tribunal.
2. The Rules on Candor to Tribunals
a) R. 3.3
Rule 3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact
or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be
directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called
by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer
shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer
may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the
lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to
engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take
reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if
compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that
will enable the tribunal to make an informed decision, whether or not the facts are adverse.
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(1) Bars false statements to courts by lawyers themselves, as opposed to false
testimony by clients. If the lawyer discovers he made a false statement, he must
correct it.
(2) Lawyers must affirmatively disclose directly adverse law in the controlling
jurisdiction if the opponent doesn’t do so.
(3) If the lawyer knows his client or other witness is going to lie, he may not
allow the witness to do so. If the witness does lie, the lawyer must call on the
witness to correct the lie, and if he won’t, then the lawyer must disclose the lie.
This applies to trial testimony, depositions and other testimony related to
adjudication.
(a) “Knowingly” = not just subjective certainty, but there is an objective
element as well
(b) Note that this duty to correct only applies to false statements of
material fact or law.
(4) If a lawyer reasonably believes that evidence is false, the lawyer may refuse to
offer the evidence. Exception: In criminal cases, the lawyer must allow the D to
testify if the lawyer reasonably believes the evidence is false.
(5) Lawyers have a duty to prevent false testimony, and also “criminal or
fraudulent conduct” in connection with a case before a tribunal.
(a) If you know your client wants to present a false alibi, and you as the
lawyer knows that the alibi is going to lie, but has not testified yet, then
you can probably prevent him from testifying (the constitution only
requires that you let the criminal D testify).
(b) The information that you have, that the alibi is going to lie, wouldn’t
that be 1.6 confidential information? How can this be disclosed then?
3.3(c) basically says that it trumps 1.6. We’ve seen 1.6 crush other rules,
like the whistle blowing rule. Here, we have a rule that crushes 1.6, and
that is something to note.
(c) If the false testimony by the alibi is not material, then there is no duty
to correct or disclose it.
(6) Unless the case has been completed, if a lawyer learns that a witness gave false
testimony, the lawyer must take steps to correct the record. This overrides the duty
of confidentiality.
(7) Where only one side makes a presentation to the court, the lawyer has a duty to
tell the court about adverse facts AND law.
b) R. 8.4(c)
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
(1) This applies to all conduct by lawyers.
(2) The ban on deceit and misrepresentation may be broader than the R. 3.3(a)(1)
ban on false statements.
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C. Concealment of Physical Evidence and Documents
1. How should laws balance their duty to protect client confidences against their responsibilities
to the system of justice?
2. Duties of Criminal Defense Lawyers with Respect to Evidence of Crimes
a) What should a lawyer do when a criminal D hands the lawyer a weapon or other
tangible evidence of a crime?
(1) Recall that in criminal cases, prosecutors may not use discovery to obtain
information from D’s.
(2) Because it would likely breach the attorney-client privilege and because judges
are hesitant to grant the prosecution a search warrant to search the D’s lawyer’s
office, the rules restrict lawyers from hiding evidence of criminal misconduct.
(3) Why might a client want to park criminal evidence with the lawyer? The client
might think that the lawyer could conceal it. If you could use an attorney as a way
to protect criminal evidence of crimes, what might happen to the lawyer, if this
could be done legally? If your clients were criminals, what might happen over
time? Your law office might have an annex in it where you could hide this
evidence.
(4) The lawyer cannot make the policeman’s job harder!
(5) See 3.4(a).
Rule 3.4 Fairness to Opposing Party and Counsel
A lawyer shall not:
(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a
document or other material having potential evidentiary value. A lawyer shall not counsel or assist another
person to do any such act.
(a) The thrust of the La. rule is not to alter, hide, etc. ANYTHING that has
potential value to a legal proceeding.
(b) Notice that the rule only prohibits unlawful concealment or
destruction. The ban will only apply where some law makes the
concealment/destruction unlawful (like where it would violate a criminal
obstruction of justice statute or where it would violate a court order).
(c) It may also be unlawful where it would result in the state law tort of
spoliation – however this is unclear because tortious conduct may result in
the payment of damages, but not criminal prosecution.
(d) It is also limited to material having potential evidentiary value.
(e) Violations of this rule are often difficult to detect. Even if a prosecutor
finds out about it, the lawyer is likely going to assert the attorney-client
and work product privileges to avoid revealing information.
(f) You have to tell your client that if given to you than have to report.
What if they ask how to get rid of evidence? Inform them that is
obstruction of justice.
(i)
You have assisted in fraud or crime if counsel them to
obstruct evidence! Attorney client privilege just falls out!
(g) Allowed to do reasonable testing on evidence before turning it over.
(6) State v. Olwell (Wash. 1964): Lawyers cannot resist a coroner’s subpoena – he
should turn it over to the prosecution, even at his own initiative. The attorney
should not be a depository for criminal evidence, which in itself has little, if any,
material value for the purposes of aiding counsel in the preparation of the defense
of his client’s case.
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(7) In re Ryder (4th Cir. 1967): Lawyer disbarred where he moved contents of D’s
safe deposit box into his own in order to keep the D from disposing of it – the
court held that his motivation for moving the money was deemed irrelevant
because he helped conceal the evidence. The lawyer was suspended from practice
in federal court, and the evidence was eventually introduced in the D’s case.
(8) People v. Meredith (Cal. 1981): Lawyer could have left evidence where D had
told him it was and not revealed this fact by using the attorney-client privilege.
However, the privilege was partially abrogated when the lawyer’s investigator
went after the evidence, and therefore the lawyer’s act of turning it over to the
police and withdrawing from the representation was proper.
(9) Green (La.): Someone had killed an LSU student and came to a lawyer. The
client gave the lawyer a bag of clothes with the murder weapon in it. What is the
obligation of a lawyer in this instance? The lawyer could not hold on to the gun.
The general obligation is to turn it over to the police, but the lawyer cannot hold on
to it. At what point does the lawyer have to turn it over? It might be able to be kept
by the lawyer for a reasonable period of time to see if it has evidentiary value.
What if the client wants to throw the gun in the river? You have to tell him no – if
you say that this would be a good idea, you are assisting him in the commission of
a crime. You don’t want to get involved! The lawyer in Green found the gun
involuntarily and turned it over to the police.
(a) The lawyer’s duty stops at turning the gun over – you don’t have to
say where it came from. This would be whistle-blowing on your own
client. Can the client be compelled to testify about where the gun came
from, if the lawyer turns the gun in? What does the attorney-client
privilege protect? Communications. Is the giving of the gun a
communication? Recall the LAST LINK doctrine to the attorney client
privilege – normally the identity of the client isn’t privileged, but the
client’s identity would be protected here if the lawyer was being
compelled to testify about who gave him the gun.
(b) The lawyer cannot wipe off the fingerprints on the gun before turning
it in, and neither can the client – would be tampering with evidence or
obstructing justice.
(c) Can you take the gun from your client, tell him you won’t turn it over
to the client, and then turn it in anyway? The client should probably be
informed about what’s going on. You should probably tell your client
before he hands it over about your duty to hand it over to the authorities.
(d) Suppose the client hides the gun, tells you where it is, you go check it
out and see that it is in fact in this spot. What do you say when the
prosecution asks you where the murder weapon is? Is the communication
protected by the attorney-client privilege? These are communications
about past crimes, so they’re protected.
(e) If the client says that he’s going to throw it in the river, and you tell
him which one to throw it in, then this would be furthering the
commission of a future crime and not protected.
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D. The Duty to Disclose Adverse Legal Authority
1. Rule 3.3(a)(2) prohibits a lawyer from knowingly failing to disclose legal authority in the
controlling jurisdiction that the lawyer knows is directly adverse to her client’s position, if an
opponent has not already informed the judge of the adverse authority.
(a) A lawyer shall not knowingly:
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be
directly adverse to the position of the client and not disclosed by opposing counsel.
a) This seems to be a rule that says you have to do your opponent’s homework. This is
counter to our intuition and most lawyers don’t like this rule.
b) What is “legal authority”? What about cases in La. – would that be authority? There
is a comment to the CC that says that jurisprudence is secondary authority. Cases will
probably still fit within “authority.”
(1) Suppose you are a La. lawyer that is arguing before a La. appellate court. There
are two periods of prescription – you want the longer one. There is a Fla. case that
says that in these circumstances, the shorter period should apply. Do you have an
obligation to disclose this to the La. app. court? No, because its not legal authority
in the controlling jurisdiction. Suppose the case was actually from the same cir.
court in La.? In that case, you probably do have a duty to disclose it. Suppose its a
LASC case? Must disclose. Different cir. court in La.? Not in the same circuit
you’re in, so this is a little unclear. Is it controlling? Perhaps not. This same
principle could be applied on the federal scale as well. There is no binding
authority for cases from other circuit courts.
(2) This is unclear because there are commentators that say that controlling
jurisdictions should mean STATE authorities. If that is the answer, then one cir.
app. court decision should bind another circuit court, and so you must disclose.
The Restatement takes the opposite view – one circuit won’t control another. There
is no La. rule or case that answers this question.
(3) This can come up in the context of FRCP rule 11 or the state equivalent.
(4) Jeffery Hazard (one of the commentators): How do you know when the
authority is directly adverse? The more unhappy the lawyer is that he found it, the
greater the likelihood that he must report it.
c) Hypos from class:
(1) Case in La. cir. court. The case tends to support your position in the litigation.
Must you reveal it under this rule? No, but you’ll probably reveal it anyway since
it would be in your best interest to do so.
(2) Suppose that the La. decision is long and confusing, but you think it might be
adverse to your position. Opposing counsel thinks that it might support your
position, and they have been trying to distinguish it from your case. Do you have
to disclose? No. The other side has already disclosed it, although they messed it
up. S doesn’t think that you could take the position in oral argument that the case
supports your position if you don’t think it does. That would be misrepresenting
the law, which is not ok. The purpose of the rule is to make sure the judge is aware
of all the law – you cannot hide the ball from the judge. If it’s not directly adverse
to your position on the law, then you don’t have to disclose it.
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2. Shouldn’t a lawyer have a stronger duty to disclose adverse facts than adverse law? Not
necessarily, as the lawyer’s volunteering of fact that are adverse to a client is contrary to the
principles of confidentiality and client loyalty. The premise of this rule is that cases should be
decided within the framework of the whole body of law, not just the favorable parts that parties
told the judge about.
a) The rules with facts are different. It is contemplated that the facts are just going to be
brought out – the adversary system is good at developing facts. You don’t have a duty to
bring out adverse facts. It is assumed that your opponent will do this.
b) Exceptions:
(1) 3.8(d):
The prosecutor in a criminal case shall:
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to
negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the
defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the
prosecutor is relieved of this responsibility by a protective order of the tribunal.
(a) A prosecutor that messes up on this will be penalized. There was a
prosecutor in NOLA that was prosecuted a few years ago for forgetting to
tell the defense or the tribunal that the murder witness wasn’t wearing her
glasses when she saw the murder happen.
(b) The idea is that the prosecutor is not a conviction machine. They’re
supposed to be an agent of justice, and not just someone that goes around,
convicting people.
3. Restrictions on contact with represented parties
a) What should be a lawyer’s relationship to a nonlawyer who is involved in a matter in
which the lawyer is representing a client?
b) See R, which addresses restrictions on contact with a person (not only adverse
parties) who is represented by a lawyer.
Rule 4.2 Communication With Person Represented By Counsel
In representing a client, 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, unless the lawyer has the consent of the
other lawyer or is authorized to do so by law or a court order.
c) Hypos from class
(1) Hypo: A lawyer tells his paralegal to call up opposing counsel’s client and get
information from him. You cannot violate this rule through an agent. Even if you
just send a letter to the opposing counsel’s client, it will still violate the rule, it is
still a communication.
(2) Hypo: Conflicts aside, suppose that you are making a will for a client that is
represented by someone else in a different matter. You can talk with the client
about the will.
(3) Hypo: You’re concerned that the lawyer on the other side is a drunk. You’ve
made several offers to him, but you don’t think any of these have reached his
client. You tell your client about this, and the client offers to call up opposing
counsel’s client. Is there a problem with that? No, because the client is wanting to
do this himself. If its on the own client’s initiative, then its fine. The lawyer may
not orchestrate the contact.
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d) This rule is aimed at preventing lawyers from making “end runs” around other
lawyers to get information from the other lawyers’ clients.
e) This rule applies to ALL contacts with represented persons, not only to parties in
litigation.
(1) It applies whether the lawyer or the represented initiates the conversation.
(2) If a represented client contacts a second lawyer to get a second opinion, the
second lawyer may talk with the represented client.
(3) If a lawyer starts a conversation with someone they erroneously believed to be
unrepresented, the conversation must end upon the lawyer’s knowledge that the
person has a lawyer.
f) The rule applies only to communications with persons known to be represented by a
lawyer in the matter that is the subject of the communication. If the communication
involves a different matter, then the lawyer may communicate with the person about even
closely related subjects.
g) A lawyer may NOT circumvent this rule by directing someone else to contact the
represented client. Rule 8.4(a) prohibits violating the rules through the acts of another.
h) Note that this rule applies to lawyers, not clients. Two people who are represented by
lawyers may talk with one another without their lawyers’ permission. However, if the
lawyer tells her client to call the opposing party for a particular reason, then the lawyer
may still violate 4.2 via 8.4(a).
i) Do prosecutors’ undercover investigations violate this rule? There is no blanket rule.
It is argued that “authorized by law” at the end of the rule excuses compliance with 4.2.
The Restatement notes that the undercover operations may violate the suspect’s
constitutional rights.
j) Purpose is to keep slick and wily lawyers from getting information they should not.
k) Does 4.2 mean that lawyers representing clients who have disputes with government
agencies must contact the general counsel’s office of the agency and may not make direct
contact with government officials? NO – the 1st amendment’s guarantee of the right to
petition government will override ethics rules. However, the ABA urges that the lawyer
first notify the government’s lawyer of her intent to talk directly with the policy official,
and give the lawyer a chance to advise the official as to what to say.
l) What if a lawyer wants to contact an EE of a corporation represented by another
lawyer?
(1) 4.2 does impose certain constraints on lawyers who want to interview EE’s of
an adverse corporation without permission of corporate counsel.
(2) Cmt. 7 to rule 4.2: The corporation may deny access to the EE in question if
he:
(a) Supervises, directs or regularly consults with the organization’s lawyer
concerning the matter;
(b) Has authority to obligate the organization with respect to the matter; or
(c) Is one whose act or omission in connection with the matter may be
imputed to the organization for purposes of civil or criminal liability.
(3) The proper test for barring lawyers from speaking with organizational EE’s has
been extensively debated. These standards will usually vary from state to state.
(4) Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard
College (Mass. 2002)
(a) Held: 4.2 only bans contact with those employees who have the
authority to commit the organization to a position regarding the subject
matter of representation.
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(b) This interpretation prohibits ex parte contact only with those
employees who:
(i)
Exercise managerial responsibility in the matter;
(ii)
Are alleged to have committed the wrongful acts at issue in
the litigation; or
(iii)
Have authority on behalf of the corporation to make
decisions about the court of the litigation.
m) Look at La.’s 4.2
(1) Our rule is a lot longer. See §(b).
In representing a client, a lawyer shall not communicate about the subject of the representation with:
(a) a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized to do so by law or a court order.
(b) a person the lawyer knows is presently a director, officer, employee, member, shareholder or other
constituent of a represented organization and
(1) who supervises, directs or regularly consults with the organization’s lawyer concerning the matter;
(2) who has the authority to obligate the organization with respect to the matter; or
(3) whose act or omission in connection with the matter may be imputed to the organization for purposes
of civil or criminal liability.
(2) This stuff comes out of the comments to the ABA rule.
(3) When are you limited when the corporation is represented by general counsel?
(b) directly addresses this under the La. rule.
(4) Note that this is not the control group test. These are just people who are off
the table. This may not be a director or officer, but it may be the employee that
actually committed the bad act.
(5) It is not always easy to determine whose acts or omissions may be imputed to a
corporation. However, the rule has more teeth in La. because its not just in a
comment – its actually stuck in the rule.
(6) There was a case a few years ago about a lawyer that was disciplined under
4.2. She invited the P to come talk with her about the case, and the P was
unsophisticated. She said she didn’t know anything about 4.2. The LASC didn’t
believe it – this is such a basic rule.
n) Hypo: Can you contact the general counsel for the corporation on the other side of the
case, where corporation is represented by outside counsel? There is an ethics opinion by
the ABA that says this is ok – the purpose of the rule isn’t served there. The problem is
that the rule doesn’t say anything about this.
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E. Advertising and solicitation
1. Back when the world was new, lawyers could not advertise AT ALL. They could have small
signs, but all they could say was your name. You could not advertise on billboards, TV or radio.
2. In 1977, the Bates case was decided. They took out an ad in the local newspaper. The SC
said that the first amendment protects lawyers and you cannot have blanket prohibitions against
truthful statements. Advertising is now ok.
a) Commercial speech = protected by the First Amendment
b) Constitution allows lawyers to advertise. But also allows states to prohibit false or
misleading advertising.
3. Zowderer: Ran an ad in Ohio that had picture of a birth control device. The bar went after
him because it was undignified. The court said they weren’t concerned about the content. They
relied on Central Hudson – “Government is free to prevent dissemination of commercial speech
that is false, deceptive, or misleading, or that proposes an illegal transaction. Otherwise,
commercial speech may be restricted only in the service of a substantial governmental interest,
through means that directly advance that interest. And....as with other speech, of course,
commercial speech may be regulated as to time, place, and manner.”
4. Now we have rules that take into account the 1st amendment
a) Rule 7.1
Rule 7.1 Communications Concerning A Lawyer's Services
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A
communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact
necessary to make the statement considered as a whole not materially misleading.
(1) This tracts the language of the cases.
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b) Rule 7.2
Rule 7.2 Advertising
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded
or electronic communication, including public media.
(b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a
lawyer may
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A
qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate
regulatory authority;
(3) pay for a law practice in accordance with Rule 1.17; and
(4) 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 clients or customers to the
lawyer, if
(i) the reciprocal referral agreement is not exclusive, and
(ii) the client is informed of the existence and nature of the agreement.
(c) 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.
(1) Hypo: What if you were to advertise that you had never lost a jury trial, but
you had never had one? This would be misleading and prohibited.
(2) Hypo: The state bar passes a regulation that says if you have an ad of any kind,
you have to put a disclaimer on it (the state bar doesn’t encourage lawyer
advertising, you read the ad at your own risk, etc.). This will discourage free
speech – will have a chilling effect. This will still run into constitutional problems.
5. Solicitation
a) Ohralik v. Ohio State B. Ass’n: Ohralick out of Ohio who was an ambulance chaser.
He went to the hospital after an accident, and signed up the victim as his client. He also
signed up the driver of the car – might be a conflict. This goes to the SC – this is not
Bates. This is no longer advertising, but in your face, personal solicitation for personal
gain. The person receiving it cannot just turn off the TV – trained advocates can steamroll
people. The court can use prophylactic prohibitions. This is not limited to in your face
solicitations – on the phone, in chat rooms. These communications can be prohibited
where they’re for personal gain.
b) Premus: Wanted to sterile everyone that was getting welfare, particularly women.
Premus calls up one of these women, and says that he wants to represent her. Premus is
an ACLU lawyer (pro bono). At the SC, the court distinguishes Ohralick, since this was
not for pecuniary gain.
(1) Trying to assert constitutional rights so that is ok!
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c) See rule 7.3
Rule 7.3 Direct Contact With Prospective Clients
(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional
employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's
pecuniary gain, unless the person contacted:
(1) is a lawyer; or
(2) has a family, close personal, or prior professional relationship with the lawyer.
(b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or
electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise
prohibited by paragraph (a), if:
(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.
(c) Every written, 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 envelope, if any, and at the beginning and ending of any recorded or
electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1)
or (a)(2).
(1) Suppose Premus calls up the woman, and says that if she doesn’t accept the
representation, then Premus will cut off her welfare benefits. This is clearly
prohibited under (b).
(2) If you know that someone needs legal assistance on a matter, then you have to
put this legend on the communication under (c). This only applies where the
communication is targeted. If the communication is widespread, then no disclaimer
is necessary.
(3) The La rule is pretty consistent
(4) If you want business so you can eat that is an issue! Cannot go up to a person
in the street or call them on the phone. No live chats or ims.
(5) Frisbees  if go to people that are known to need a lawyer that is not ok. If
just handing out that is fine.
(6) NO LIVE OR IN PERSON SOLICITING where pecuniary gain deal but ok for
assertion of constitution rights
(7) Advertising v. soliciting
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