PR – Martin
Client-Lawyer Relationship
i. Relevant Model Rules:
1. 1.2 (b): lawyer’s representation does not constitute endorsement of clients views/ activities
2. 1.2 (c)
3. 6.1
4. 6.2: lawyers can reject any prospective client (6.2 comment 1)
5. General Rules:
a. Lawyers can reject any prospective client (6.2 comment 1)
b. Lawyers are not obliged to accept a client whose character/cause the lawyer finds repugnant/disagreeable (6.2
comment 1)
c. First Qualification:
i. 1. All lawyers have a responsibility to assist in providing pro bono public service 6.1
1. Aspire to render at least 50 hours a year
2. ‘Substantial majority’ to help the poor
3. Not intended to be grounds for professional discipline.
d. Second Qualification:
i. 2. Lawyers may be subject to appointment by a court to serve unpopular clients or persons unable to afford
legal services 6.2 Bothwell
ii. 6.2 Good Cause to not represent:
1. (a) if representing client will likely result in a violation of the Rules of other law
2. (b) if representing the client is likely to result in an unreasonable financial burden on the
lawyer
a. i.e.: tobacco litigation; med malpractice b/c having to pay experts
3. (c) if the client or cause is so repugnant to the lawyer as to likely impair the client-lawyer
relationship or the lawyer’s ability to represent the client
4. ***in-active status is an exemption to pro bono
ii. Court appointments and Pro Bono Service
1. Hypo: Suppose court appointed Fox to rep KKK, which has been denied a parade permit. Options?
a. 6.2 c: could try to make the good cause argument about repugnant; OR 1.2 b: might want to take case knowing that
it will count for pro bono work and knowing that a lawyer’s representation does not constitute an endorsement of the
client’s past/current activity;
b. What if Fox knew the rep would be limited to arguing a technical aspect of the filing of the permit itself?
i. 1.2 c: allows lawyers to limit scope of rep so long as the limitation is reasonable and client gives
informed consent
ii. unbundling of legal services for example so to only deal w/ the technical filing issue/limited situations 
can practice law a-la-carte
iii. Lawyer owes client the “5 C” Fiduciary Duties:
1. Client Control over objectives of representation
2. Communication
3. Competence
4. Confidentiality
5. Conflict of interest resolution
iv. (1) Control
1. 1.2 (a):
a. Lawyers must abide by clients’ decisions about the objectives of the representation
b. Consistent w/ 1.4, lawyers must consult w/ clients about how to achieve those objectives
c. Lawyers can take actions impliedly authorized
d. Clients retain sole authority over these decisions:
i. 1. whether and when to settle in a civil matter
ii. 2. in criminal cases, how to plead, whether to waive a jury trial, and whether to testify
2. 1.2 (d) lawyer must not perform, counsel, or assist an unlawful act of a client
3. Problem 4-1: Plaintiff retained Fox in a personal injury case. A few weeks later, Fox proudly informed Plaintiff that he had
settled the case for a tidy sum. Plaintiff replied that she would never settle for that amount and refused to sign the release.
What should Fox do? Does it matter if Fox agreed to the settlement during a mandatory court-annexed mediation? [1.2(a),
1.4; Machado]
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Must rescind that acceptance b/c that’s a decision that is solely for the client, violating that duty
And he did not communicate w/ client about objective of litigation
Court annexed mediation: just makes it more likely that he’ll have a real problem getting that agreement rescinded
b/c it would appear that he would actually have the authority to do that when he really didn’t
v. (2) Communication:
1. 1.4: lawyers have an affirmative duty to communicate during the representation in these instances:
a. 1. When a client decision arises (1.4 a 1)
b. 2. When deciding how to achieve the client’s goals (1.4 a 2)
c. 3. To keep the client reasonable informed about the case status (1.4(a)(3))
d. 4. To promptly respond to client requests for information (1.4(a)(4))
e. 5. To consult about the lawyer’s own limitations of representations (1.4(a)(5))
2. 1.4 (b): lawyers must provide enough information to enable the client to make informed decisions about the
representation
a. 1.0 (e): “informed consent”: informed consent denotes the agreement by a person to a proposed course of
conduct after the lawyer has communicated adequate information and explanation about the material risk of and
reasonably available alternatives to the proposed course of action
3. Problem 4-3: In representing Employer, Martyn and Fox forgot to insert a non-compete clause into an employment
agreement for a new key employee, even though Employer had specifically requested that protection. Any problem? What if
Martyn and Fox forgot to advise Employer that a covenant not to compete could be included? [1.2(a), 1.4; dePape]
a. Yes there is a problem, they had a duty to obey client about objectives under 1.2 so they breach the fiduciary duty
that way
b. Under 1.4 a 2 they would have also breached a duty by not advising them of all possible alternatives and means to
reach the objectives
c. DePape: used model rules more as guidelines, not necessarily a strict pro-se application; Standard of care
determined by: objective views of just a common lay-person of a reasonable duty of care b/c his actions were so
egregious they didn’t need to have a professional opinion of a lawyer, rather a lay person could figure out if they
failed their standard of care/protection by a lawyer. Damages were expectation damages, damages for emotional
distress, and would have awarded punitive damages if they would have been sought.  so egregious almost =
willful and wanton conduct
vi. (3) COMPETENCE
1. MR 1.1: lawyer must provide competent representation to a client.
a. legal knowledge
b. skill
c. thoroughness
d. preparation
2. Remedies?
a. Professional discipline
b. Civil liability
c. Reversal of a criminal conviction for ineffective assistance of counsel
3. A. Introduction:
a. Problem 5-1: •Martyn & Fox is asked whether the firm can file a patent application for a new gene therapy on
behalf of the inventor. No one at Martyn & Fox took biology in college or ever filed a patent application. At a
partners’ new business meeting, Fox declares, “Let’s take it, it can’t be that hard; thousands are filed each year.
We’ll let the inventor teach us the science.” How should Martyn respond? [MR 1.1]
4. B. Malpractice and Breach of Fiduciary Duty
a. Problem 5-2: –Martyn interviewed a prospective client about a potential personal injury case and told him that it
wasn’t the kind of matter Martyn & Fox handled. Two months later, the same person called, leaving a message
that he wanted to check on the “status of his case.” Before returning the call, Martyn noted that the applicable
statute of limitations on the claim had run three weeks earlier. What should Martyn do? [MR Preamble (17);
1.18; 1.1; Togstad]
b. Client-Lawyer Relationship?
i. MR Preamble 17: Principles of substantive law external to the rules determine whether a clientlawyer relationship exists
ii. MR 1.18: lawyers owe certain duties, like loyalty, even to prospective clients who never become
clients
iii. What must be proven to establish a client-lawyer relationship?
1. Tort analysis:
a. Foreseeable plaintiff
a.
b.
c.
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2.
5.
Contract analysis:
a. Offer
b. Acceptance
c. Consideration/promissory estoppel
c. Engagement, Nonengagement and Disengagement Letters:
i. Good ideas
ii. Burden rests w/ lawyers to clarify expectations
iii. Problem 5-3
1. What if Martyn agreed to take the case when she first met w/ the prospective client?
a. (a) Must she tell the client that the statute has run? Yes – communication issue;
must keep client informed of status of law suit etc…
b. (b) Can Martyn be disciplined? Yes b/c of incompetence for missing the deadline
(1.1); and 1.3 for lack of diligence; BUT if it’s a one instance type instance it may
mitigate the penalties/discipline – patterns can result in a lot more trouble
c. (c) Can Martyn and Fox be disciplined? NO under MR 5.1. Law firms are NOT
subject to discipline (yet may be subject to malpractice suits); Sometimes a partner
can be disciplined for the actions of an associate if they knew of the conduct and did
nothing to prevent/protect against it
d. (d) Will Martyn and Fox be liable for malpractice? Yes, it’s called vicarious liability
for the general rule (can be limited w/ LLPs etc.. and depends on jurisdiction and
how firm is set up; Togstad & things required for malpractice suits:
i. there is a lawyer-client relationship
ii. duty was in effect to do what an ordinary prudent lawyer would do
iii. breach of duty
iv. Causation (must show actual and proximate  i.e... Statute of limitations:
must show that there was a breach of a duty, but ALSO that they WOULD
HAVE ONE had the lawyer not done malpractice)
v. damages
iv. Problem 5-4: Martyn and Fox provided client w/ tax advice regarding a settlement of $1 million to
Client in a ford explorer rollover case. Later, Client learned about a similar case that ended in a jury
verdict of #3million. Can Client recover the difference from Martyn and Fox? What if Martyn and
Fox had been retained to advice regarding the advisability of the settlement? [1.2 and Togstag]
1. Under first question, NO because of the engagement letter that should be in place limiting the
scope of the tax stuff
2. Under second question, POSSIBLY if they ignored the client’s wishes about the settlement
etc…; generally speaking, lawyers don’t have to get them the best settlement possible if they
are doing their job competently and give the client all the info they need in order to make an
informed decision – just bc others receive more doesn’t mean they are liable.
D. Misrepresentation:
a. Problem 5-7: In giving an opinion to Cheltenham Township on the issuance of bonds to finance a shopping
center, Martyn and Fox inserted the usual boilerplate: “This issuance complies w/ all applicable law.” Martyn
and Fox forgot that there were new IRS regulations governing the tax exempt status of such special purpose
bonds. Any problems? [1.1; 2.3; 4.1; 8.4 ©; Greycas]
i. YES  a competence issue; must let the client know one way or the other about the new IRS tax code.
If it is a problem and it doesn’t comply, then they have failed to do research to stay up on the current
laws and regulation, thus will probably be in trouble. If Cheltenham Township was not client, but they
gave an opinion to the township as a lawyer for Kroger for a development and they reasonably rely on
that information to make a decision etc… then they are/may be liable to that third party.
b. Model Rules: Four Provisions relate to fraud/misrepresentation
i. 1. Disciplined for knowingly making false statements of “material fact or law” to a tribunal when
representing a client. MR 3.3 (a) (1).
ii. 2. Disciplined for knowingly making false statements of “material fact or law” to a third person
when representing a client. MR 4.1 (a).  outside of the courtroom type situations during
transactions; does not apply when dealing w/ talking about settlements and what is acceptable
iii. 3. Disciplined for engaging in any “conduct involving dishonesty, fraud, deceit or
misrepresentation both in representing clients and apart from law practice. 8.4 ©
iv. 4. Disciplined for counseling or assisting a client to engage in conduct the lawyer knows to be
criminal/fraudulent. MR 1.2 (d)
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CONFIDENTIALITY
vii. MR 1.6 – GENERAL/FIDUCIARY/PROFESSIONAL DUTY (very broad)
1. Lawyer cannot “reveal information relating to the representation of a client unless”:
a. 1. Client gives informed consent
b. 2. Disclosure is impliedly authorized; or
c. 3. Disclosure is allowed by one of the state exceptions in 1.6 (b)
2. just about everything though is relating to representation
3. Road Map:
a. 1. Discuss scope of professional (or fiduciary) duty of confidentiality under Model Rules
b. 2. Discuss two related evidentiary doctrines
i. attorney-client privilege
ii. work-product doctrine
c. 3. Discuss exceptions to confidentiality
4. B. Professional (Fiduciary) Duty:
a. Problem 6-1: (see slide for pertinent rules)
i. Under first scenario, need to get informed consent to do that.
ii. Under second, even if its public record, it may still be required b/c it’s still related to the representation of
a client; best advice is not to reveal, even if it’s in a public record since you could still get into trouble
even if you reveal that info that can be found elsewhere
b. Problem 6-2
i. Under first scenario: Yes there are problems of conflict of interest and it’s not a good idea, even though
it is possible; would still want informed consent of Disney if you did go ahead and purchase stock;
ii. Under second scenario: Yes since they used the knowledge/info of the representation of the client to
procure land, especially since the adjacent land might come in conflict w/ the interests of Disney and hurt
the price of selling land around there that would negatively affect Disney; also could be in competition
w/ client later on down the road; IF USING CONFIDENTIAL INFO TO THE DETRIMENT OF
CLIENT, MUST GET INFORMED CONSENT. Insider trading can be a big problem too.
iii. MR 1.8(b): a lawyer cannot use confidential information to the client’s disadvantage, unless lawyer
obtains informed consent from client, except as permitted or required by the Rules.
c. Problem 6-3 (1.18; 1.9 (c); 1.4 (a) (3); Perez)
i. From prospective client’s perspective: does lawyer have any confidentiality obligations to prospective
client?  YES, lawyer cannot use or reveal info from this consultation UNLESS 1.9 would allow it.
ii. You’d probably have to withdraw yourself form representing Big bank:
1. Perez Case: cannot use confidential information for the benefit of a current client by disclosing
former client’s confidential information to a third party. 1.9(c) (1) and 1.8 (b)
iii. MR 1.18: Lawyer cannot use/reveal info learned in consultation w/ prospective client unless MR
1.9 would allow it?
iv. Does 1.9 (c) allow it?
v. Does 1.6 allow?
viii. Professional Duty of Confidentiality:
1. Forbids voluntary disclosure and use of info to client’s disadvantage
2. But court can order lawyer to testify about info lawyer cannot disclose under Rules:
a. 1.6 (b) (6): allows lawyers to disclose
b. 3.4 (c) lawyers duty to obey a tribunal
c. Now have a situation where lawyer is not supposed to, but a court can order them
d. Evidentiary Rules:
i. Attorney-client privilege and work-product doctrine can be asserted to block production of
information or documents obtained from the client
ii. Can use to oppose subpoena, interrogatory, deposition questions
iii. Elements of A-C privilege:
1. 1. Communication: info obtained by lawyer thru observation or investigation usually
NOT covered; info learned from non-client witnesses NOT covered; Majority Rule:
communications are protected whether form lawyer to client, or client to lawyer
2. 2. Made b/w privilege persons: include lawyer, client, and agents of either who may help
w/ communication b/w them (interpreter), may help w/ the representation (investigator), or
may help as a retained expert (accountant). Must consult w/ lawyer in a professional
capacity.
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3.
e.
f.
g.
h.
i.
j.
3. In confidence: communication must be made b/w client and lawyer in private, w/ no
persons present who are not privileged persons; AND must remain confidential otherwise
its waived
4. 4. For purpose of obtaining or providing legal assistance for the client: communication
must be made w/ the purpose of obtaining legal advice (not business, public relations, or
friendly advice); if a non-frivolous claim of disclosure can be made against disclosure, then
you have a duty as a lawyer to assert the attorney-client privilege for your client  lawyer
can waive it for failure to assert it when they had the chance.
iv. Work Product Doctrine: protects documents or other tangible things that were prepared in
anticipation of litigation.
1. Underlying facts not privileged, rather the document itself that was prepared in
anticipation of litigation (FRCP 26 B 3)
2. Ordinary v. Opinion work product: ordinary can be obtained by showing undue
burden in obtaining info from another source
If material is not privileged, lawyer has different options:
i. Can take a stand and appeal
ii. Get held in contempt (civil)
Hypo 1: Interview memo summarizing interviews w/ third party witnesses who observed an accident
involving your client. Interviews occurred after a lawsuit was filed against your client.
i. Professional duty of confidentiality? YES
ii. A-C privilege? NO, b/w no communication b/w attorney and client, rather 3 rd party
iii. Work-product doctrine? YES; is a document being prepared for litigation; other side can still
interview witnesses that were interviewed
Hypo 2: memo summarizing a conversation b/w lawyer and client behind closed doors, about legal aspects of
a proposed business transaction, which may happen in client’s ordinary course of business
i. Professional duty of confidentiality? Yes, so broad
ii. A-C privilege? Yes, b/w client and attorney in private
iii. Work product doctrine? NO b/w it came in the normal course of business and thus means it wasn’t
prepared in the anticipation of litigation
Problem 6-4: At client’s request, Fox returns goods stolen by Client to the police. Can Fox be forced to
testify about the identity of Client? [see Hughes & Dean Case]
i. Hughes: just being the delivery boy/conduit and not giving any advice does not open door to AC
privilege 
ii. Dean: Client called him specifically b/c client knew that this lawyer had given advice to someone
else and wanted his opinion and help in what to do  amounted to legal advice and thus allowed to
use AC privilege
Problem 6-5: Martyn interview 25 maintenance workers to determine how our client is disposing used oil.
Can Martyn be forced to testify about those conversations? [Upjohn]
i. Probably covered by AC privilege; organization is client, but as long as these maintenance workers
are working for that org and are talking to the lawyer there should be 3 things that allow for AC:
1. Organization as client:
a. AC privilege covers communications b/w lawyer and employees and high-ranking
organizational officials IF:
i. 1. Employee communicates w/ lawyer at the direction of employee’s
superior
ii. 2. Employee knows that the purpose of the communication is to obtain
legal advice for organization; AND
iii. 3. Communication relates to subject w/ in scope of employee’s
employment
iv. **opposing counsel could still interview those people though
b. MR 1.13 (f): When talking w/ constituents of an organization, lawyer must
explain the identity of the client when lawyer reasonable believes that the
constituent’s interests are adverse to the org’s interests.
Problem 6-6: In a privileges conversation Client tells Martyn where he was on the night in question. Can
Client now be compelled to testify as to his whereabouts? [Upjohn]
i. YES, client can certainly be compelled to testify about his whereabouts. Can’t ask about convo w/
lawyer, but can ask about whereabouts b/c UNDERLYING FACTS ARE NOT PROTECTED for
AC privilege or work product doctrine
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k.
2.
Problem 6-7: Can Martyn be forced to testify about a conversation she had alone w/ an investment banker to
understand what was required for our corporate client to pursue a merger?
i. NO, b/c it’s in the course of representation through the hiring of the expert investment banker for
consultation purposes. Are there a retained expert or an agent of the lawyer?  If so and is helping
w/ representation of client, then yes it is protected communications. If not, then lawyer has blown
and waived the attorney client privilege which could be a problem.
l. If asking about if someone can testify, we are dealing w/ an AC privilege
ix. MR 8.4(g) of Indiana Rules of Professional Conduct:
1. “It is professional misconduct for a lawyer to. . . (g) Engage in conduct, in a professional capacity, manifesting, by
words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation,
age, socioeconomic status, or similar factors. Legitimate advocacy respecting the foregoing factors does not violate
this section. . . .”
2. Quick note on MR 8.4(d) and comment 3  see
D. Express of Implied Authority  Exceptions to confidentiality:
a. Express Authority: 1.6 (a)
i. 1.0 (e) = informed consent
ii. Agree on course of conduct after consultation
b. Implied Authority:
i. Lawyer has implied authority from client to use or disclose confidential info when appropriate to carry out the
representation unless client gives specific instructions to the contrary. (1.6 (a))
c. Express or Implied Authority/Wavier:
i. Problem 6-8: Martyn recommends that Martyn and Fox add the following clause to all personal injury retainer
agreements. Should Fox agree? (“Client agrees to allow …) [1.6; 1.0 (e); Pressly]
1. Seems like a really bad idea b/c it’s just too broad. Far Better to get informed consent for each disclosure
action. This a prospective waiver in the problem  nothing in the MR says you can’t use prospective
waivers so they can and have been used. For example, education level should not mean that you can use
them for those more educated people.
a. Problem 6-9: what may (must) Fox do if client, in the course of estate planning, tells Fox that she is terminally ill
and plans on taking lethal dose of medication as soon as she signs the documents? [1.6; 1.14]
i. (may/must type of questions should pick one maybe)
ii. Rule does not require lawyers to do it; it is a PERMISSIBLE thing and thus they MAY do it, but must
not
iii. A lot of these exceptions are ALL MAY and not requirements  all permissive
iv. MR 1.14(a), (c):
1. Diminished capacity: minority, mental impairment, or some other reason
2. Lawyer is impliedly authorized to disclose confidential info to the extent reasonably necessary to
protect client’s interests
b. Problem 6-10: Can Martyn and Fox turn over notes of 25 interviews w/ maintenance workers to the Justice
Department as part of a settlement on behalf of our corporate client? [Upjohn]
i. Whoever the high ranking person is can waive the privilege/confidentiality. Example of how at one point
communications are privileged, but later become not privileged b/c org waived it
c. Problem 6-11: Can Fox testify to privileged communications w/ old CEO of our client, if new CEO of our corporate
client directs him to do so? [Upjohn]
i. Yes, if fox had represented both, then perhaps the new CEO would not be able to waive it. Assuming he
never represented the old CEO and only the org, the new CEO can waive that privilege
d. Problem 6-12: Martyn and Fox are ready to try the High Energy case against Arthur Touché … [4.4 (b); Citgo]
i. Inadvertent Fax:
1. Receiving lawyer must promptly notify sending lawyer. 4.4(b)
2. Whether receiving lawyer must take any additional steps is beyond scope of Rules. 4.4 comment
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3. Whether privileged status was waived is beyond scope of rules. 4.4 comment 2
ii. What if fax reveals misconduct by the other side?
1. Definitely want to report it to the judge and have him rule on it (outside of model rules); but you
as the receiving lawyer should only read it to the extent until you realize it was mistaken,
otherwise reading beyond that point could land you in trouble
iii. What if same document is sent to us in a plain brown envelope w/ a note “Knew you’d find this
interesting”?
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d.
1. can get around 4.4 b/c this was NOT inadvertent and thus rule does not apply; formal ABA
opinion though says they still have a duty to disclose/tell judge/other side about it accidentally
falling into their hands even in the manner it did  it’s the same principle just by different
means
iv. Citgo Case:
1. Were worried about inadvertent disclosure and court decided AC privilege did cover the materials
 question was whether entire subject matter of investigation was waived or JUST those
documents?  They said it was only those documents that were inadvertent and did not waive
the entire subject matter, but there are cases where that does happen when there is a substantial
amount of confidential info has been disclosed and thus waives confidentiality for all the stuff.
Confidentiality Exceptions: 1.6 (b)
i. Physical Harm:
1. MR 1.6 (b) (1): lawyers MAY disclose info to the extent they reasonable believe is necessary to prevent
reasonably certain death or substantial bodily harm
a. Comment 6: Harm is reasonable certain if:
i. It will be suffered imminently or if there is a present and substantial threat that a person
will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate
the threat
2. Problem 7-1: May (must) Martyn and Fox disclose that Husband just stomped out of Fox’s office, screaming
I’m going to kill her rather than give her the Cape Cod house? What if dad tells Fox that’s what Son just told
him in a phone call, not ten minutes ago? What if Fox calls the police, and then is subpoenaed to testify at a
grand jury proceeding considering whether to indict son? … (1.6(b)(1); Hawkins; Purcell)
a. as a lawyer you want to make sure you think this is a reasonable and really serious threat
b. can only do it to an extent reasonable necessary to prevent some type of harm  can’t broadcast it on
the news
c. Father context: AC privilege would arise; may disclose to extent necessary if believes it reasonably
necessary
d. Purcell:
i. Found that he was allowed to disclose to the extent necessary to prevent injury to tenants from
his client’s threats; DID NOT wipe away all of AC privilege though, only the stuff that was to
the extent necessary to prevent the harm and not everything else they had communicated
about  Ac privilege may still be intact; If there AC does still exist, THEN YOU NEED TO
SEE IF THERE IS A CRIME/FRAUD exception  If NO C/F exception, then AC still intact.
ii. Exception to AC privilege  Crime/Fraud Exception to Ac privilege:
1. Applies if the client sought legal advice or assistance in furtherance of criminal or
fraudulent conduct (Purcell)
2. If exception applies, AC privilege is lost; lawyer MUST testify.
e. Son Context: sounds more like hearsay to a certain extent b/c you’re hearing it through someone else.
NOT required to contact anyone
i. Hawkins: lawyer hears stuff from another lawyer and it’s not exactly on point whether they
are certain to do that  sounds less certain to a certain extent so it may not be reasonable
belief
f. Calls police context and subpoenaed: no AC privilege b/w son and lawyer so he would be able to
testify; although husband was seeking advice, son was not and thus not a direct communication b/w
privilege people seeking legal advice.
3. Problem 7-2: May (must) Martyn and Fox disclose that our client just discovered arsenic drums in back of the
plant it bought last year? What if our client has owned the plant for 50 years? [1.6 (b) 1; Hawkins; Purcell]
a. Hawkins case believes there may be instances where lawyers have duty to warn if it appears beyond a
reasonable doubt that the client has firm convictions to commit injury to third or undisclosed persons;
this idea hasn’t been pressed that far yet though w/ lawyer’s civil liability towards third persons.
b. First question: yes, they may disclose if they feel like they should; if this client is an organization then
they must follow 1.13 and go up the ladder to finally tell the CEO of best interests of company and
they refuse to do something, lawyer may go outside of CEO and disclose so to advance best interests
of organization
c. Comment 6: Injury could be one suffered at a later date, the injury doesn’t have to happen tomorrow if
you are reasonable certain that it will happen in the future, then you still may reveal to the extent
necessary
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Problem 7-3: May Martyn and Fox, as lawyers for defendants, disclose that our physician’s examination of
plaintiff reveals that plaintiff has a life threatening aneurysm, a condition not uncovered by plaintiff’s own
physician? [1.6(b)(1); Spaulding]
a. Spaulding: under MR lawyers NOT required, but May tell the other side. But if you are the lawyer for
this party, on one hand you have a short term advantage of a settlement, but on the other hand you
would have expensive attorney fees later to go back and re-do the award once it is actually found out
and would become evident anyway.
i. Interesting that they noted that plaintiff’s attorneys never asked for that report in discovery
5. Problem 7-4: May Martyn and Fox disclose or testify that our client has committed a crime for which another
person is now serving time? What if the innocent person is on death row?
a. Probably NOT must since it would be about a past crime and this information would most likely be in
a AC context; They MAY disclose though even if it is covered by AC privilege
b. Death row situation: Still NO REQUIREMENT to disclose; makes it a moral decision that allows
them (MAY DISCLOSE) to disclose if they want; If the client dies, it may seem more likely to
disclose, BUT the AC privilege and professional duty of confidentiality lasts forever (unless waived)
and they still would not have to; Work product does not necessary continue forever
ii. Financial Harm:
1. Problem 7-5: May Martyn tell the other side that our client “won’t possibly pay more than $500,000” when she
has recommended that our client settle the case quickly or face far more extensive liability? How about if
Martyn ells the other side that she “isn’t authorized to settle … [4.1(a); comment 2 ]
a. MR 4.1: lawyers cannot knowingly make false statements of fact/law to third persons in the course
of representing clients:
i. Comment 2: under generally accepted conventions in negotiations, certain types of
statements are not taken as statements of facts. [opinion v. fact]
b. First instance probably OK b/c it’s like posturing themselves for negotiations
c. Second instance: starting to get into trouble because you are making affect that is so far from the truth
that it sounds problematic under 4.1(a) by stating something like that. CAN’T MISSTATE THE
FACTS!
2. Problem 7-8: Martyn admonished Client about the importance of fully disclosing all assets on a bankruptcy
filing. Client failed to do so and was indicted for bankruptcy fraud. Can Martyn be forced to testify about the
original warning? [Chen; Purcell]
a. Court in this case said NO. It was only for the purpose of legal advice and thus would apply  is there
now a crime/fraud exception? If yes, no AC.  here AC privilege will remain intact b/c it was not in
the furtherance or assisting or crime/fraud, rather it was only in giving him advice (Purcell)
b. Chen: got people running the company who are trying to evade taxes, and the sister quits the company
and waive AC privilege by turning documents over. Company was using their lawyer w/o lawyer’s
knowledge to commit fraud against IRS  court said AC privilege applied to the communication, but
the crime/fraud exception also existed and the attorneys were forced to testify b/c of the causal
connection b/w the communication and the crime/fraud committing even though the lawyer has
NO idea about them using the advice for furtherance (an interesting outcome)
3. Client Fraud and Confidentiality:
a. Lawyer must not help client commit crime/fraud:
i. 1.2 d: prohibits lawyers from counseling or assisting clients in conduct the lawyer knows to
be criminal or fraudulent
ii. lawyer may be required to withdraw under 1.16(a)(1) or permitted to withdraw under
1.16(b)(2) or (3)
1. MUST withdraw if you find out about activity going on
2. MAY if you reasonably believe there is
b. lawyer may disclose info to prevent crime/fraud:
i. 1.6(b)(2): allows lawyer to reveal confidential info the extent lawyer reasonable believes…
1. 1. Committing a crime/fraud
2. 2.reasonable certain to result in substantial injury to financial interest/property of
another
3. 3. In furtherance of which client has used or is using the lawyer’s services
c. Lawyer may disclose info to mitigate crime/fraud: 1.6(b)(3)
i. Allows lawyer to reveal confidential info to extent lawyer reasonable believes necessary:
1. 1. To prevent, mitigate or rectify;
2. 2. Substantial injury to the financial interests/property of another;
4.
8
3. 3. That is reasonably certain to result of has resulted;
4. 4. From client’s commission of a crime/fraud;
5. 5. In furtherance of which client has used lawyer’s services
d. Lawyer must disclose info to avoid crime/fraud on court: 3.3(b) candor toward the Tribunal:
i. Requires lawyers to disclose info where necessary to avoid knowingly assisting a criminal
or fraudulent act by a client on a tribunal
ii. ** This requirement is not subject to MR 1.6 with respect to confidentiality. Doesn’t have
to be something that would be disclosable. 3.3 trumps 1.6, don’t have to go through 1.6
analysis.
e. Lawyer must disclose info to avoid crime/fraud on 3 rd person: 4.1 (b)
i. Requires lawyers to disclose info where necessary to avoid knowingly assisting a criminal
or fraudulent act by a client on a third person
ii. Disclose is subject to MR 1.6 w/ respect to confidentiality
f. Lawyer for Organization may disclose to CEO & Beyond if crime/Fraud:
i. 1.13 (b) allows lawyer for organization who knows that employee is committing or will
commit crime/fraud to tell highest authority in organization  “Up the ladder reporting”
ii. 1.13(c)(2): allows lawyer for organization to disclose violations of law beyond the
organization, but ONLY if and to the extent lawyer reasonable believes is necessary to
prevent substantial injury to the organization
a. disclose is not subject to 1.6 w/ respect to confidentiality; does not
have to satisfy an exception under 1.6
iii. Under Model Rules, what May (Must) a Lawyer Do?
1. Lawyer provides legal services to client company
2. Lawyer sends opinion letters to Bank to secure huge loan for client’s benefit
3. Based on opinion letters, client gets huge loan to be paid in 5 installments over 5 years from bank
4. 1 year later, client discovers massive fraud by employee of client
5. fraud changed material facts in opinion letters
6. neither lawyer nor client knew about fraud at the time
7. Client tells lawyer about fraud but does not want lawyer to tell bank. Client wants to continue getting loan
installments each year
8. lawyer went “up the ladder” pursuant to MR 1.13(b); highest authority does not want lawyer to disclose
9. Consider 1.16 (a) & (b); 1.2 (d), 4.1(b), 1.6(b)(2) & (3), 1.13 (c)
a. Must tell client it is wrong and try to get them to stop attempting to commit a fraud on bank 
you can never assist in committing a fraud by client so MR 1.2 (d) comes into play, and you
MUST withdraw under 1.16(a).
b. Might also have a duty owed to the 3rd person under 4.1 (b) so to prevent injury due to a fraudulent
client’s conduct towards that 3rd person, otherwise you could be seen as assisting a fraudulent act
against another person.  Exceptions under 1.6(b)(2)+(3) would allow for this type of disclosure
 saying if you are allowed to disclose under 1.6, you must disclose.
c. Answer:
i. Lawyer must w/draw 1.16(a)(1) and 1.2(d)
ii. If withdrawal is not enough to prevent the lawyer’s assistance in the fraud, lawyer MUST
disclose 4.1 (b)
1. Lawyer MAY disclose under 1.6 (b)(2) or (3)
2. Note: Noisy withdrawals allowed under 4.1 comment 3: give notice of
withdrawal and disaffirm an opinion
iii. Lawyer MAY disclose pursuant to 1.13 (c) [allows you to disclose to a certain extent if
highest authority thumbs their nose at you]
iv. Typically don’t put a lot of duty on lawyers to investigate into matters that client says;
don’t have to go too far into investigation (i.e.: yes there was fraud, but won’t affect us in
paying back loan)
iv. Seeking Advice and Self-Defense:
1. 1.6(B)(4): lawyers may disclose info they reasonably believe is necessary o secure legal advice about
“these Rules.” [stresses idea that we should seek help when interpreting these rules]
2. 1.6(b)(5): lawyers may disclose info they reasonable believe in order to defend themselves
3. Problem 7-9:
a. Martyn and Fox is dealing w/ several difficult clients: {1.6(b)(5); Meyerhofer}
9
1.
(a) Client A threatens to sue Martyn and Fox for malpractice in a real estate
transaction. Fox wants to threaten back, telling client we will tell his wife about
Client’s illegitimate child. How should Martyn respond?
2. Does NOT seem to be reasonable necessary to disclose; you can’t use the
revelation to disparage/threaten anyone in some way, only to defend yourself so
it’s probably not reasonable necessary and too much.
3. Even if not actual lawsuit filed, the lawyer can still disclose in order to defend
themselves. Comment 10: does not have to be a formal proceeding, can be a
controversy settlement or claim.
ii. (b) Martyn and Fox want to sue to collect a fee. Can they disclose how difficult and
irresponsible Client B was? How client B repeatedly lied to the other side in
negotiations?
1. If somehow the difficult and irresponsible part relates to the fee, then it may be
ok. But if it’s not, it’s probably not necessary in order to defend/collect the fee.
iii. (c) Martyn Fox represented client C on a loan from big bank. Now Martyn and Fox is
being sued by big bank, which is claiming “aiding and abetting” a fraud. What if
anything, may Martyn and fox reveal?
1. Still allowed to disclose what is reasonable necessary in order to defend
4. Problem 7-10: Client fired Martyn and Fox after Martyn accused client of fraudulent conduct in
connection w/ certain lease transaction in which Martyn and Fox could not confirm the existence of the
underlying equipment. Law A, successor counsel, calls Fox to find out why such a fine firm was
terminated. Lawyer A asks, “Were there any disagreements.” [1.6]
a. Not considered impliedly authorized, so you’d have to get client’s consent to disclose anything.
b. Can’t answer anything really good or negative in the context, but normally if it’s a good past
relationship it will be easy and amicable and normally authorized (may even ask former lawyer to
pass on info to new lawyer)
5. Problem 7-11: Lawyer B, form another law firm consults, Martyn and Fox in her representation of Apex.
She is worried that the CEO of apex is lying to her and she wants another lawyer to hear all the details for a
reality check. Can we help her? [see rules]
a. Yes we can. They encourage hypotheticals presented by clients so that they don’t necessarily
know who the client is and it shields it to a certain extent.
b. Under MRs lawyers MAY seek advice from outside sources, and of course have implied
authorization to talk to other lawyers in the firm about it
v. Compliance w/ Law or Court Order: Physical Evidence
1. 1.6(b)(6): lawyer may reveal confidential info to the extent the lawyer reasonable believes necessary to
comply w/ other law or a court order
2. Problem 7-12: What, if any, obligation to disclose does Martyn have if her client tells her where he hid the
stolen money? What if he hands her the key to the safe deposit box where the money is? Can Martyn give
it back? If she keeps the key, can she be forced to testify that her client gave it to her? [1.6(b)(6)
a. Might be able to assert a privilege since it’s a past crime. It IS confidential information covered
by professional duty, and it looks like it might be covered by AC privilege too since it’s a past
crime and it is still covered by AC privilege. Starting to sound a lot like Purcell case, where he
can disclose to an extent but AC privilege might still apply  don’t have to disclose where he hid
the money.
b. BUT what happens when key is handed over? Lawyer can take possession and examine it for a
reasonable amount of time, BUT he MUST notify (has an obligation) authorities of his possession
otherwise could be co-conspirator, accessory after the fact, etc…  because key is an instrument
to the crime and thus AC might not even be held in tact
c. Can NOT give it back to client, unless of course they swear/affidavit that they are going to turn it
over themselves.
d. If she keeps key: can invoke AC possibly and would depend on jurisdictions, but could be forced
to testify about it. CAN’T tell a client to take the ‘smoking gun away’ if they present it to you 
co-conspirator law prevents this, you really can’t do this.
3. Problem 7-13: may (must) fox Disclose that his client killed two children and Fox knows where the bodies
are buried? Does it matter if the parents still hope the children are alive, and the town has been conduct a
massive search for two weeks?
a. NO he does not because it’s a past crime.
10
b.
If child is still alive? may be able to reveal/ disclose to reasonable extent if you did a little bit of
investigation and you reasonably believe they were alive. DON”T have to do investigation, but if
you know or believe they COULD reveal to extent necessary, but DON”T have to.
4. Belge Case:
vi. Compliance w/ Law of Court Order: Practice Before a Tribunal
1. Problem 7-14: If Martyn and Fox’s client lies to an IRS agent during an audit, do we have any obligation
to correct the record? Does it matter whether we were present? Whether the lies came as a surprise?
[1.0(m); 3.3; 3.9 comment 3; 4.1]
a. Is this really a tribunal? If not, no. Look to 3.9 comment 3: stuff regarding income tax returns do
not count as a tribunal. Excludes tax audit situation from tribunal rules and thus we are dealing w/
the 3rd person issue
b. If it is not a tribunal, only way to disclose is if one of 1.6 exceptions applies
c. Generally speaking, if it’s a plie and 1.6 exception applies, then they MUST disclose to mediate
the situation. FRAUD is defined by a state substantive law to determine what, if any, activity is
considered fraud
d. Duty to correct record/client misrepresentation:
i. If 3.3 applies, lawyer is required to (MUST) correct record regardless of MR 1.6 as long
as evidence is material and false
ii. If 4.1 applies and lawyer is not present, lawyer cannot correct unless failing to correct
would assist client in crime/fraud and an exception under 1.6 applies
iii. If 4.1 applies and lawyer is present, lawyer cannot correct as long as lawyer did not
create/ratify the misrepresentation unless failing to correct would assist client in
crime/fraud and an exception under 1.6 applies.
1. If not exception under 1.6, then you CANNOT disclose
2. Problem 7-15: What should Martyn tell a judge who asks Martyn to reveal her client’s bottom line? [3.3;
4.1]
a. You are going to try really hard not to disclose that info. Question becomes, in negotiations, is the
judge acting as a tribunal or is the judge just participating in the negotiations themselves? To
Professor, it is confidential and you wouldn’t have to say unless there is an exception (which none
will exist) or the judge orders you to.
b. Best thing to do is to remind judge about this rule/obligation
3. Problem 7-16: If Martyn and Fox’s client lies about her name in a criminal case, what should we do? [1.2
(d); 3.3(a)(1); 8.4 (c) ; 8.4 (d); Casey]
a. Tell them not to do that.
b. Do NOT even file an appearance or anything w/ court because then you are misrepresenting
something to the court/tribunal.
c. Go to her first and get her to and do some reasonable remedial measures. If she does not give in,
then you MUST w/draw so to not misrepresent something to the court and to prevent a future
crime on the court.
4. Problem 7-17: If Martyn and fox’s client dies of natural causes while the client’s personal injury action is
pending, can we settle the case before the other side finds out? What if our client dies as a result of the
injury inflicted by the alleged torffeasor? [3.3(a); 3.4(a); 8.4(c); forest]
a. No you can’t settle the case because it’s a false statement of fact previously made to a tribunal
because that person is dead and they don’t’ represent them anymore
5. Problem 7-18: may/must Martyn and fox disclose the presence just outside the courtroom of a witness we
know the other side has been trying to subpoena for weeks? [3.3(a(1); forest]
a. If they made a statement to the court about the witness, then YES they would have to point them
out to clarify a misrepresentation made
b. If nothing said in court about witness, and witness is outside courtroom, and thus made no
misrepresentations to the court whatsoever, they DO NOT have to do anything (probably will not
disclose if it will hurt the client). If done nothing to cause misrepresentation/statements about the
witness to a court, there is NO duty on lawyer to provide/volunteer adverse facts to the other side
(unless obviously asked to in the course of discovery)
6. Problem 7-19: may/must Martyn and Fox disclose an error by the court (egg. Our cline has no prior
convictions) that we played no role in causing the occur? [3.3(a)(1)]
a. Majority view: most say no, you are NOT required to. No duty to disclose unless lawyer/client
caused the mistake.
b. Minority: some say you must correct if you know of the error, regardless if you caused it or not
11
7.
8.
9.
Problem 7-20: Martyn is preparing an appellate brief, which argues that the trial court properly dismissed
an indictment against her client because the court correctly construed a criminal statute narrowly so as to
exclude her client’s conduct. Martyn finds only one reported decision citing the statute, a ten-year old state
Supreme Court case that upheld the statue’s constitutionality. The prosecutors’ brief does not mention this
case, and Martyn doesn’t like the case’s dicta, which might suggest a broader statutory meaning. Should
Martyn cite the case? [3.3(a)(2); Hendrix]
a. Lawyers must not knowingly leave out authority that is adverse to their claim and seemingly
dispositive.
b. As long as it is dicta though, you really are not required to cite it at all.
c. Also, things that deal w/ a different issue (i.e... Constitutionality) are not directly adverse, and thus
no requirement
d. BUT good lawyering would be to still cite it and point out that it exists, but then show why it is
distinguishable from our facts. Should cite it and then explain it away.
Problem 7-21: Prior to trial, Fox discussed w/ client whether he has ever smoke marijuana. Client asks
what that has to do w/ the matter, and Fox tells him: nothing but I am worried the other side just might ask
that question. Client admits he smokes marijuana from time to time. At trial opposing counsel asks client
whether he has ever smoked marijuana and he immediate responds no. Does fox have any obligation to
correct him record? Can we settle the case before the lie is disclosed? What if the same thing happened
during client’s disposition?
a. First question: we don’t know under these facts, but we will assume it is a civil case. Assuming
the question is unrelated to the suit/claim, under 3.3 you would not necessarily have to. IF IT IS
NOT MATERIAL, IT WILL NOT BE A PROBLEM UNDER ANY OF THE RULES
b. IT MUST be MATERIAL and the lawyer must have ACTUAL KNOWLEDGE OF IT; no
obligation here to correct the record
c. If it IS material: 3.3(a)(3) requires lawyer to take immediate reasonable remedial measures (start
w/ client and get him to clarify his statement b/c it will look better), but if client won’t then you
would have to disclose
d. Not going to matter if it’s in deposition or in courtroom
i. Reasonable remedial measures: 3.3 comment 10:
1. 1. Advise client (lawyer’s duty of candor/consequences of lying  must tell
them this)
2. 2. If this fails, may/must seek w/drawal. 3.3 comment 15
3. 3. If w/drawal is not permitted by court (1.16©) or will not undo the effect of
false evidence, lawyer must make such a disclosure to tribunal as reasonable
necessary under circumstances.
a. Even if disclose would violate 1.6  this rule trumps it!!
4. 4. Tribunal then decides what to do
Problem 7-22: How does Martyn and fox deal w/ our criminal defendant client who insists on testifying
and insists on lying? What if we know in advance? What if it happens as a surprise? Does it matter that
we are convinced our client is innocent? [3.3(a)(3); 3.3(b); 3.3(b) comment 13; McDowell]
a. In criminal cases, defendant has right to testify and lawyer must abide by it. BUT a defendant in
a criminal case cannot testify falsely.
b. You would go through the same remedial measures that you would do for a civil defendant 
Conflicts of Interest
1. Conflicts of Interest: Clients, Lawyers, and Third Persons:
e. Hardest Area of PR in Practice:
i. Business and professional tensions
ii. Standards difficult to understand/apply
1. Judicial standards for disqualification are not always same as Rules
2. Rules written broadly
3. Analysis often requires lawyers to speculate about future events
4. Some conflicts are simply unavoidable
f. 4 STEP ANALYSIS: whenever dealing w/ a conflicts of interest issue:
i. 1. IDENTIFY CLIENT(S);
ii. 2. DETERMINE WHETHER A CONFLICT OF INTEREST EXISTS;
1. see 6 categories of conflicts below:
iii. 3. DECIDE WHETHER THE CONFLICT IS CONSENTABLE; AND
12
g.
h.
i.
j.
k.
1. sometimes the client can consent if they are aware of conflict
2. some are NOT consentable though
iv. 4. IF CONSENTABLE, CONSULT W/ AFFECTED CLIENTS AND OBTAIN WRITTEN INFORMED CONSENT.
1. 6 CATEGORIES OF CONFLICTS:
a. 1. Personal interests of lawyer
b. 2. Interests of third person
c. 3. Interests of current clients
d. 4. Interests of former clients
e. 5. Imputed conflicts (mr 1.10)
f. 6. Government lawyers
MR 1.7(a)
i. Lawyer cannot represent a client if the representation involves a concurrent conflict of interest:
1. The rep of one client is directly adverse to another client (1.7(a)(1)), OR
2. There is a significant risk hat the rep will be materially limited by lawyer’s responsibilities to another client,
former client, third person, or personal interest of lawyer (MR 1.7(a) (2)).
ii. Must then go to 1.7(b) -
MR 1.7(b):
i. Even if concurrent conflict of interest exists under MR 1.7(a), lawyer may still rep client if four (4) requirements are
met:
1. Lawyer reasonably believes he/she can provide competent/diligent rep for each affected client;
2. Rep not prohibited by law
3. Rep does not involve assertion of a claim by one client against another client raped by lawyer in same matter
before a tribunal; AND
4. Each affected client gives informed consent, confirmed in writing.
Informed Consent:
i. MR 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.
ii. See also MR 1.(n)
Introduction:
i. Problem 8-1: CEO of megacorp asks Martyn and Fox to draft a deed transferring vacant land owned by Mega to CEO.
“It’s just a liability for Mega,” CEO explains. What should Martyn and Fox do? [1.7; 1.13; 1.18; Maritrans]
1. 1. Who is client?  Megacorp
2. 2. Conflict?  Yes probably under 1.7(a)(2)
3. 3. Consentable?  YES, probably under 1.7(b); unless there is some reason he can’t perform competently
4. 4. Did counsel obtain informed consent, confirmed in writing?  if not, file motion to disqualify
ii. Remedies for Breach of Fiduciary Duty of Loyalty:
1. Professional discipline
2. Malpractice action
3. Fee forfeiture
4. Criminal accountability
5. Injunctive relief
a. If somebody’s upset that there is some conflict of interest in a transactional type situation (not before a
tribunal so can’t file motion to disqualify lawyer/law firm) and there is no other relief, then you go to
the court and try and get an injunction ordering injunctive relief
6. Disqualification of lawyer/law firm : more for when you’re in front of a tribunal and you want that lawyer off
a. Disqualification:
i. A motion to disqualify is sought to prevent a lawyer or former lawyer (and that lawyer’s
current law firm) from raped another client
ii. May be raised by client, former client, other party to litigation, or judge
iii. Can be raised in any court
iv. Orders are not appealable until a final judgment on the merits
Conflicts of Interest Categories:
i. 1. Personal Interests of Lawyer:
1. General rule – mr 1.7(a)(2) :
a. If there is a significant risk that the rep of a client will be materially limited by lawyer’s own
personal interests, then lawyer must not take the matter subject to MR 1.7(b)
2. Exception: Even if lawyer has a personal interest, however, lawyer may still rep client if:
13
a.
b.
c.
3.
1. Lawyer reasonably believes that lawyer can provide competent and diligent rep to each affected
client;
2. The rep is not prohibited by law;
3. The rep does not involve the assertion of a claim by one client against another client raped by same
lawyer in same litigation/proceeding before a tribunal; and
4. Each affected client gives informed consent, confirmed in writing
d.
MR 1.8:
a. Specific rules concerning current client conflicts
b. If rules under 1.8 do not allow informed consent (non-consentable), they trump 1.7
c. IF 1.8 says something is non-consentable, then it’s non-consentable and you don’t’ do 1.7
analysis
d. 1.8(a): lawyer shall not enter into a business transaction w/ a client unless:
i. 1. The transaction and terms are fair/reasonable to client and are fully
disclosed/transmitted in writing in a manner that can be reasonable understood by
client;
ii. 3. Client is advised in writing of desirability of seeking and is given a reasonable
opportunity to seek advice of independent legal counsel on transaction; and
iii. 5. Client gives informed consent, in a writing signed by client, to essential terms of
transaction and lawyer’s role
iv. Comment 8: does not bar lawyer from seeking to have a lawyer assigned as the executor
of an estate
e. 1.8(c): lawyer cannot solicit any substantial gift form a client, including a testamentary gift; lawyer
cannot prepare on behalf of a client an instrument giving lawyer any substantial gift unless lawyer
is related to client
f. MR 1.8 (d): (not consentable) If lawyer is still representing a client, lawyer cannot agree to
negotiate to receive literary or media rights to a portrayal or account based in substantial part on
info relating to the representation.
g. MR 1.8(e): lawyer cannot provide financial assistance to a client in connection w/ pending or
contemplated litigation, except that:
i. 1. Lawyer may advance court costs/expenses of litigation – repayment may be
contingent on outcome;
ii. 2. Lawyer may pay indigent client’s court costs/expenses
h. MR 1.8(f): lawyer cannot accept compensation for raped client form someone other than client
UNLESS:
i. 1. Client gives informed consent;
ii. 2. There is no interference w/ lawyer’s independence of professional judgment or w/
client-lawyer relationship; AND
iii. 3. Information relating to the rep of client is protected under MR 1.6
i. MR 1.8(g):
i. In civil case, lawyer who reps two or more clients cannot participate in making an
aggregate settlement of clients’ claims unless each client gives written informed consent,
signed by client
ii. Lawyer must disclose existence/nature of all claims and participation of each person in the
settlement
j. MR 1.8(h): lawyer cannot make an agreement to prospectively limit lawyer’s malpractice liability
unless client has independent legal counsel when making the agreement; lawyer cannot settle such
a claim w/ client/former client unless person is advised in writing of the desirability to seek and
given reasonable time to seek independent legal counsel
k. MR 1.8(i): lawyer cannot acquire a proprietary interest in the cause of action/subject matter of
litigation lawyer is conducting for client, except:
i. 1. Lawyer’s fees/expenses lien, OR
ii. 2. Contingent fee in civil case.
l. MR 1.8(j): lawyer cannot have sexual relations w/ client unless a consensual sexual relationship
existed b/w them when the client-lawyer relationship began
m. 1.8(k) Imputation: if a lawyer is prohibited from representing a client under 1.8(a)-(i), the
conflict is imputed to all other lawyer’s in his/her firm
14
i. all conflicts under 1.8 are imputed to the conflicted lawyer’s law firm – EXCEPT: any
conflict created by a sexual relationship under MR 1.8(j) is not automatically imputed to
conflicted lawyer’s law firm
4. MR 1.10(a)(1): if lawyer is prohibited form representing a client based on personal interests, other lawyers
in the firm can still represent the client if there is no significant risk that the lawyers will be materially
limited in representing the client
5. MR 5.4(c): lawyer cannot permit a person who recommends, employs or pays lawyer to render legal services
for another to direct or regulate lawyer’s professional judgment in rendering legal services.
ii. 2. Client and lawyer interests (see 18 above b/c it corresponds):
1. Problem 8-2: Should Martyn and Fox agree to accept one third of the shares of stock issues in a new business
start-up in lieu of an hourly fee? Should she agree to serve on the new company’s board of directors? [1.8(a);
1.8(k); Monco; “It wasn’t the money.”]
a. 1.8(i) is non-consentable and this could be an issue raised here
b. second part: not good idea to do it for
2. Problem 8-3: Should Martyn and Fox insert a clause in all of its estate planning documents that appoints a
Martyn and Fox lawyer as the fiduciary (executor, administrator or personal representative) of an estate of
trustee of a trust? When Marty and Fox lawyers act as fiduciary or trustee, may they hire Marty and Fox as
counsel for the trust or estate? [1.4(b); 1.7; 1.8(a), 1.8(c)]
a. First question: NO, there really is not conflict under 1.8(a) or (c) but they still believed they needed to
get informed consent from everybody ; better to get informed consent each time
b. Second question: seems more like a conflict, but ABA says it’s OK. You can act as your mom’s
executor of estate and you can hire Martyn and Fox as your counsel even if you work for them. Still
would have to get informed consent = it is consentable
3. Problem 8-4: Should Martyn and Fox provide free legal services to a criminal defendant who agrees to grant it
the movie rights to his story? [1.8(d)]
a. NO. see 1.8(d); does not bar this from doing it w/ former clients  once representation has ended its
doable, but it’s not consentable when representing
4. Problem 8-5: Our client, in order to service financially, is warned she’ll have to settle her case early and for too
little. Should Martyn and Fox pay her living expenses through trial? [MR 1.8(e)]
a. Would be a conflict of interest under 1.8(e). So, is it consentable? NO  a lawyer can NEVER give
living expenses to a client, even if it is an indigent client
5. Problem 8-6: Martyn and Fox failed to file a client’s case within the appropriate statute of limitations. Should
Martyn sit down w/ the client, confess her error, and offer to pay the entire amount of the underlying claims?
[1.4; 1.8(h)]
a. It is a conflict of interest.
b. Consentable? Yes, but need to have reasonable time to get another attorney
c. You’re not supposed to minimize legal malpractice, but if the other has other representation then you
can negotiate that stuff out
6. Problem 8-7: Martyn and Fox represents Acme Corp. in contested litigation against Zenon Inc. Can a senior
associate assume a major role in the case when he is married to the lead lawyer for Zenon? [1.7; 1.10(a)(1)]
a. No MR that is on point here  must go back to 1.7 for general provisions since no 1.8 specific rule.
b. ACME [M&F: husband assume major role?] VS. Zenon [wife does not work for M&F = lead counsel]
 see 1.7(a)(2)
i. Is this creating a conflict? Significant risk rep of client materially limited by lawyer’s own
personal interests? If yes, can’t represent client. BUT, must go to 1.7(b) to see if there is an
exception. Unless something about husband believing he can provide diligent and reasonable
representation, it is going to probably be consentable.
c. 1.10(a)(1): unless other partners feel there is significant risk, other lawyers in firm can still represent
them.
7. Problem 8-8: Client tells Martyn and Fox that he is strapped for cash and cannot afford our requested retainer
in a divorce case. Can Martyn and Fox have client sign a promissory note secured by a mortgage on the family
home in lieu of the retainer? [MR 1.8(i)]
a. Dealing w/ the family home and a divorce case, so chances of that home being divided is 100% so now
you have a proprietary interest
b. Under 1.8(i) it’s a conflict of interest that exists
c. Non-consentable  notice the overlap b/w conducting business b/w client and lawyer and a
proprietary interest – if they do happen to overlap and you think it’s a business transaction that can be
consentable then it may very well be under 1.8(a)
15
d. Monaco:
Problem 8-9: Martyn and Fox represents a Big Bank in a wide variety of matters. A colleague tells Fox at
lunch: “Did you hear the latest? Sarah Snyder [an associate at Marty and Fox] is dating the general counsel of
Big Bank.” [1.8(j); 1.8 comment 19; Halverson]
a. comment 19 extends the prohibition to those who meet/consult w/ the lawyer
b. could be a potential conflict; BUT it is NOT consentable  client can never say they waive it and that
they are informed
c. got to sit the lawyer down and figure out what is going on,
d. If they take Sarah out, they could still represent Big Bank
9. Problem 8-10: Fox is an estate lawyer. One day he receives a visits form an individual who says: “I need some
help for dad. It is too hard for dad to travel downtown these days. He needs to change his will to make sure his
grandchildren’s education is paid for.” What should Fox do? [1.8(f); 5.4(c); 1.14 comment 3]
a. Call the dad b/c we don’t know if the son is really the son
b. Must get informed consent from the dad, and must make sure there is no other conflicts. 
c. If son is paying for representation and he is the son  get client’s informed consent and make sure
there stuff if protected from AC privilege and maintain an independent judgment
d. IF son is not going to pay  see 5.4(c): if son is recommending the father to this lawyer, lawyer still
has to be sure he is using his or her own professional judgment and not looking to son to have them
help them.
Conflicts of Interest: Multiple Clients:
a. Joint Client Conflicts:
i. dePape (employer and future employer)
ii. Perez (trucking company and employee)
iii. Spaulding (insurer and insured)
iv. Maritrans (tug/barge company and competing companies)
b. Current clients/Aggregate Settlement:
i. Problem 9-1: An automobile accident resulted in the death of Wife and serious injuries to daughter and grandmother.
Martyn and Fox undertook the representation of daughter and grandmother, as well as the estate of wife. Defendant’s
insurer offers policy limits of $1 million to settle all claims. Should Martyn and Fox accept the offer? [1.8(g); Burrows]
1. not only do you need written and informed consent, but there needs to be a signature on it  ABA wants to
impress upon client the importance of such a decision
2. If they’ve done this, then they can accept the aggregate settlement.
3. Burrows: lawyer’s botched aggregate settlement; remedy was forfeiture of ALL of attorney’s fees. “Fee
Forfeiture” = an equitable remedy; insurance rarely covers fee forfeiture  typically must prove clear and
serious violation of duties owed to client; can either get full OR partial fees depending on circumstances
c. Joint Representations:
i. MR 1.7 comment 23: common representation of persons having similar interest in civil litigation is proper if MR
1.7(b)’s requirements are met.
1. that means that every joint rep in civil litigation raises a conflict of interest; question becomes is it consentable
ii. Same is true in criminal cases, but Comment 23 suggests that lawyers should ordinarily decline to represent more than
one codefendant in a criminal case
d. Current Clients/ Joint Representations:
i. Problem 9-2:
1. Husband and wife ask Martyn and Fox to prepare the papers for their dissolution of marriage. May Martyn and
Fox represent both spouses? Does it matter if they have already agreed to property division, child custody, and
support obligations?
a. It would create a conflict under 1.7(a)(1)  is it consentable? Must look at 1.7(b)  NO, doesn’t
meet #3; NOT consentable
2. What if husband and wife ask Martyn to mediate their disputes regarding those issues? If the mediation is
successful, may Martyn represent both in drafting the legal papers necessary to effectuate the dissolution?
a. YES, a mediator does not actually act as legal representation for either party  therefore they don’t
represent the parties under 2.4.
b. Depends on jurisdiction sometimes, but it appears it would be consentable in many jurisdictions
c. Even if you’re allowed to do it and 1.12 would allow you to do that, you’d still have to go back to
1.7(a)(2) to make sure you weren’t materially limited in another way.
d. Collaborative Law:
3. Relevant Rules/Reading: 1.7(b)(3), 2.4; 1.12; ABA Formal Opinion 07-447
ii. Mediation:
8.
3.
16
1.
2.
iii.
iv.
v.
vi.
vii.
viii.
MR 2.4: lawyers who act as mediator do not represent the parties to the mediation.
MR 2.4 comment 4: if mediator is later asked to rep a client in the same matter, 1.12 governs conflicts of
interest
3. MR 1.12: former mediator may rep a client in same matter if all parties give written informed consent.
Problem 9-3: Two defendants are charged w/ murder arising from a botched bank robbery that resulted in killing of a
customer. Can Martyn and Fox represent both defendants? What if only the “shooter” is eligible for the death penalty?
Would it matter if Martyn represents one defendant and Fox represents the other? [1.7]
1. At this point we don’t have enough info to say they are adverse clients/have adverse interest to each other so
you can do this
2. Given what we have here, it IS CONSENTABLE for doing that
3. Second question: missing important piece of information  most jurisdictions do not allow co-representation
when a capital matter is involved and would go against 2.7(b)(2) about being prohibited by law in that
jurisdiction = probably NOT consentable based on jurisdiction
4. Third question: A conflict for Martyn is a conflict of Fox, and vice versa  an imputation case; a conflict for
one is generally a conflict for others
Problem 9-4: Martyn and Fox is asked to represent driver-son and passenger-father, in a lawsuit arising from an auto
accident where the driver of the other car has been charged w/ speeding. Can we take on this case? What happens if son
tells Fox before his deposition, “I had two drinks before I picked up dad?” [1.7; Wolpaw]
1. First Part: there is a conflict, but w/ informed consent you can take on both father and son
2. Second Part: comment 31 of 1.7 would be inadequate for lawyer to not reveal info helpful to other client,
thus creating adversity w/in the same litigation. If you cannot consult w/ your clients about everything and you
can’t tell father something, then you must w/draw probably since there are adverse situations;
3. AC privilege w/ joint clients:
a. NO AC privilege attached to joint clients if the lawyer is sitting w/ the joint clients and info comes out,
then there is no AC privilege among the joint clients and the lawyer could be asked/allowed to answer
about stuff that came out during that joint meeting
b. IF he is NOT in front of his father then it creates a confidentiality problem for lawyer (if is in front of
father then cat is out of bag and it might not matter)  must w/draw
Written Confirmation of Informed Consent/Joint Clients:
1. Three categories of information:
a. 1. Disclose material risk of the proposed course of conduct (i.e... Joint representation).
b. 2. Disclose alternatives relating to disclosure of confidential info form lawyer to each of them and the
effect of joint rep on the AC privilege.
c. 4. Each potential client should receive some explanation about the advantages/disadvantages of the
available alternatives to joint rep, including what would happen if lawyer has to w/draw.
Problem 9-5: Out long time corporate brokerage client and two of its stockbrokers have been sued for violating insidertrading regulations. Can Martyn and Fox represent both the corporation and the stockbrokers? { 1.7; 1.7 comment 34;
1.13(g)}
1. Under 1.13: lawyer can represent both these clients but subject to 1.7 and any conflicts, this consentable and
you can do this.
2. Must make sure there is no adversity b/w clients, but if there is no adversity you can’t take the joint
representation w/ written informed consent
Problem 9-6: Buyer and seller of real estate come to Martyn and Fox to handle the deal. They have agreed on the price,
date of closing, and identity of the property to be conveyed. Can Martyn and Fox undertake the engagement? [1.7;
Anderson]
1. If it can be dealt w/ as a third party neutral yes it could be done
2. If they are adverse due to the sale then probably not.
3. Many jurisdictions allow these situations under a certain set of facts.
4. A transaction so 1.7(b) not at play  but there could be a conflict that could/would affect your confidentiality
in certain situations and thus prevent you from representing both
Problem 9-7: A longtime client of Martyn and Fox asks us to represent three partners in forming a new business: our
long time client, the money guy, and the new venture’s CEO. May we? [ 1.7; 1.7 comments 28 and 31; Anderson]
1. YES it is consentable so it is perhaps an option that would be there  a lot of people try and do this b/c they
don’t have a lot of money up front to hire a bunch of lawyers to do the same transaction.
2. Would want to tell them that you are not representing each of them/their interests.
3. Comment 31: are certain times a lawyer can keep confidences in these certain types of situations  i.e.; trade
secrets that would not need be disclosed
4. Must make sure you can competently represent them going forward
17
e.
ix. Problem 9-8: A corporate client’s CEO asks M&F to represent his wife and him in drawing up new wills. Can we do
so? What if the wife takes Martyn aside and tells her to draft a codicil that diverts a substantial party of her assets to a
“friend”? What if later, during divorce proceedings, the wife calls Martyn and FOX to be refreshed as to husband’s
assets; may (must) Martyn and Fox share that info? [1.7; 1.7 comment 27; A v. B]
1. First question: There is a conflict but is consentable so it can be done
2. Second question: that would not be okay because they would have a conflict of interest b/w their duty to the
husband and wife. Unless agreement says even if you tell me something confidential then I can tell that to the
other client, you cannot represent both and must w/draw b/w lawyer cannot consult to extent necessary w/ both
clients to get informed consent. Can’t say I’m w/drawing b/c of the want of other to divert funds, would say “I
have to w/ draw b/c …” but can’t say exactly why
3. Last part about refreshing about assets: M&F must tell them from the start that among joint clients, anything
they say in the room w/ the other is NOT privileged b/w those two (but to everyone else outside the room it is
still). If husband’s assets were discussed during the initial conversation w/ joint clients both present, they MAY
reveal that info to her again and MUST reveal that info if a court orders them to
Current Clients/ Simultaneous Representation of Adversaries:
i. Problem 9-9:
1. Viacom and Disney are both competing for an open TV channel in New York:
a. (a) Can Martyn represent Viacom while Fox represents Disney if each lawyer seeks his or her client’s
consent?
i. It’s a transaction so it wouldn’t necessarily be a problem under 1.7(b), probably not prohibited
by law either.
ii. BUT what about 1.7(b)(1) about competent representation: probably can’t competently
represent both, especially since it seems like it might be fundamentally adverse b/c it is a
scarce resource  scarce resources where there is a zero sum game for the thing being
sought, it is considered non-consentable cuz you can’t competently represent both when only
one of them will get it
b. (b) What if M&F lawyers feel comfortable taking on the representation of both?
i. Doesn’t matter b/c of above. They shouldn’t feel comfortable b/c it’s non-consentable.
c. 1.7; 1.10
i. MR 1.7(a): lawyer cannot rep a client if the rep involves a concurrent conflict of interest:
1. Rep of one client is directly adverse to another client OR
2. Significant risk that rep will be materially limited by lawyer’s responsibilities to
another client, former client, third person, or personal interest of lawyer.
ii. MR 1.7 (b): Even if there is a concurrent conflict of interest under MR 1.7(a), lawyer may
still rep client if four requirements are met:
1. Lawyer reasonable believes she/he can provide competent/diligent rep to each
affected client;
2. Rep does not prohibited by law
3. Rep does not involve reps one client against another client in same matter
before a tribunal AND
4. Each affected clients gives informed consent, confirmed in writing
iii. MR 1.7 comment 24:
1. “Ordinarily a lawyer may take inconsistent legal positions in different tribunals at
different times on behalf of different clients.”
2. “A conflict of interest exists … 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.”
3. If a conflict exists, it IS CONSENTABLE
iv. MR 1.7 Comment 34: Lawyer who represents a corp/org does not necessarily represent
any constituent or affiliated org, such as parent or subsidiary. A lawyer for an org is not
barred from accepting representation adverse to an affiliate in an unrelated matter, unless:
1. 1. Circumstances are such that the affiliate should also be considered a client of
lawyer;
2. 2. There is an understanding b/w lawyer and org client that lawyer will avoid
representations adverse to client’s affiliates; OR
3. 3. Lawyer’s obligations to either org client or new client are likely to limit
materially lawyer’s representation of other client
18
d.
f.
g.
(c) IF M&F already represents Viacom in another unrelated matter, can we take on representation of
Disney? [1.7; 1.10; Eastman Kodak]
i. MR rule: there certainly will be a conflict of interest b/w they are representing Viacom and
competing w/ Disney. BUT even if concurrent interest, they still can if they reasonable
believe they can, it’s not prohibited by law, and they are not representing the same client
against an adversary in the SAME matter against a tribunal
ii. Could represent Viacom and Disney w/ informed consent (even though both would probably
not give consent anyway)
ii. Problem 9-10:
1. Local municipality filed a motion to disqualify M&F, claiming that M&F cannot represent a developer in an
appeal from a zoning decision b/c we currently represent local municipality on some tax collection matters.
Martyn, who is handling the zoning appeal, distinctly recalls chatting w/ the city solicitor and getting a waiver.
Is M&F safe? [1.7]
a. First moral: has to be in writing  recollection of convo not good enough, need proof of written
informed consent
b. Would want to know if city solicitor is someone who can waive this consent; if they can’t, then it
probably won’t help you anyway
c. Considering what we know about conflict soft interest, this situation is obviously a conflict b/c they are
representing one client against city and the city is also a client  BUT they are different matters so
you could get informed consent so it IS CONSENTABLE just needs to be informed consent in writing
and solicitor has/had ability to waive it
iii. Problem 9-11:
1. M&F has been retained by Magnum Industries to defend a products liability action. In-house counsel for
Magnum tells Fox that the case is routine, but she wants to know what to do about the fact that plaintiff’s
counsel works for a law firm that regularly represents Forest Products, a wholly owned Magnum subsidiary.
Does it make any different whether Forest Products is a partially owned subsidiary? [ 1.7; 1.7 comment 34;
Eastman Kodak] (see slide 25 of class 7 for diagram)
2. Start at 1.7(a); Then go to 1.7(b)
3. Four Steps:
a. 1. Who is client?
i. if magnum is considered client under 1.7 comment 34, go to Step 2:
b. 2. Conflict?
i. Yes, under 1.7(a)(1)
c. 3. Consentable?
i. Probably, under 1.7(b)
d. 4. Did P’s counsel obtain informed consent, confirmed in writing?
i. If not, file motion to disqualify
iv. Problem 9-12:
1. General Amalgamated asks Martyn to assert that the fact that the lawyer of Amalgamated’s adversary shared
info w/ adversary’s auditor regarding this litigation acted as a waiver of the AC privilege for all of adversary’s
communications w/ its counsel. At the same time, Colossus asks Fox to defend its right not to turn over AC
privileged material to the lawyers who have instituted a class action against Colossus. The plaintiff’s lawyers
are asserting that since Colossus cooperated w/ SEC in its investigation of the same transactions by sharing w/
the SEC M&F’s investigation report, that cooperation waived the privilege as to the plaintiffs. Can M&F make
both arguments? Does it matter where the cases are pending? [1.7 comment 24]
a. Typically, this is not a problem, unless there is a significant risk that a lawyer’s action on behalf of one
will materially limit the lawyer’s effectiveness in representing another client in a different case (1.7
comment 24 essentially)
Current Clients/ Positional Conflicts Cont.…
i. MR 1.7, comment 24: Factors to consider in determining whether the clients need to be advised of the risk:
1. 1. Where cases are pending;
2. 2.Whether the issue is substantive or procedural;
3. 3.The temporal relationship between the matters;
4. 4. The significance of the issue to the immediate and long-term interests of the clients involved; and
5. 5. The client’s reasonable expectations in retaining the lawyer.
Former Clients:
19
i. MR 1.9(a): Lawyer who has formerly raped client cannot thereafter rep 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, in writing.
1. MR 1.9(b): Lawyer cannot rep person in same or substantially related matter in which a firm with which the
lawyer formerly was associated had previously raped a client:
a. 1. Whose interests were materially adverse to that person; and
b. 2. About whom the lawyer had acquired material info protected by MR 1.6 and MR 1.9(c);
c. Unless former client gives informed consent, in writing.
d. MR 1.9(b) Scenario:
i. Lawyer L employed at Firm One.
ii. Firm One reps Alice in case: Alice v. Bill
iii. L quits Firm One and moves to Firm Two
iv. Unless Alice consents, L cannot rep Chris in Chris v. Alice if the case is substantially
related to the Alice v. Bill case and if any conf info L obtained from Alice is material to the
Chris v. Alice case. MR 1.9(b)
v. Firm Two may rep Chris, if L screened. MR 1.10(a)(2)
2. MR 1.9 (c):
a. Prevents lawyer from using confidential information gained while rap’s the former client to former
client’s disadvantage unless lawyer gets former client’s informed consent, the info has become
generally known, or some other MR 1.6 exception exists.
b. Prevents lawyer from also revealing conf. info.
c. Could raise MR 1.7(a)(2) conflict with new client.
d. Interplay b/w MR 1.9(c) and MR 1.7:
i. Even if no conflict under MR 1.9(a), rep can create a problem under MR 1.9(c) if lawyer
actually learned conf info.
ii. Lawyer’s rep of new client may be materially limited by former client’s interests under MR
1.7(a)(2).
iii. If so, probably cannot get informed consent from “each affected” client under MR
1.7(b)(4), because you cannot share confidential information with new client. MR 1.7(b)(1)
problem.
iv. May become nonconsentable conflict under MR 1.7.
3. MR 1.9 Comment 3: Substantially Related Matter: Matters are ‘substantially related” if they:
a. 1. Involve the same transaction or legal dispute; OR
b. 2. If there is a substantial risk that confidential factual information as would normally have been
obtained in the prior rep would materially advance the client’s position in the subsequent matter.
c. **The scope of the ‘matter’ depends on the facts of a particular situation or transaction (1.9
comment 2)
d. **the lawyer’s involvement in a matter can be a question of degree (1.9 comment 2)
4. Notes About Confidential info and substantial relationship:
a. The passage of time might render info obsolete. MR 1.9, Cmt. 3.
b. Info that has been disclosed to the public or other parties adverse to the former client ordinarily will
not be disqualifying. Cmt. 3.
c. Lawyer not prohibited from later handling a problem of the same type, but factually distinct, from
cases handled for former client. Cmt. 3.
ii. Problem 9-13: Three years ago, Martyn prepared tax returns for wife’s business. Husband now wants Martyn to
represent him in a divorce. Can Martyn? Does it matter if Martyn prepared the tax returns ten years ago? What if
Martyn handled an employment discrimination claim for Wife’s business? [1.9(a); 1.9 comment 2; 1.9 comment 3]
iii. Imputation:
1. MR 1.10(a) – General Rule: a firm of lawyers is essentially one lawyer for conflicts rules: If a lawyer is
disqualified, all lawyers in firm are disqualified.
a. Two Exceptions:
i. Lawyer’s personal interest exception
ii. Former client exception
iii. (1) If prohibition is based on a disqualified lawyer’s personal interest and other lawyer in
firm will not be materially limited in rep.
iv. (2) If prohibition is based on MR 1.9(a) or (b) and arises out of disqualified lawyer’s
association with a prior firm, and:
1. (1)Disqualified lawyer is timely screened/not apportioned fees;
20
2.
3.
2.
3.
4.
5.
6.
7.
(2)Prompt written notice given to any affected former client; and
(3)Disqualified lawyer/law firm partner provide certifications of compliance with
Rules and screening procedures to former client upon request
MR 1.0(k) – Screening:
a. Isolation of lawyer from any participation in the matter
b. Timely imposition of reasonably adequate procedures
c. Designed to protect information that the isolated lawyer is obligated to protect under Rules or
other law
Problem 9-14: Martyn represented Client in getting zoning from Abington Township for a new shopping
center. (A) Can Martyn and Fox represent potential tenants in lease negotiations for the new center? [1.9(a),
comment 3; 1.9(c)]
a. Under 1.9(a):
i. Former client?
ii. Materially adverse?
iii. Same or substantially related matter?
b. (b) Can Martyn and Fox represent someone who wants to build a shopping center across the street?
[1.9 (a), comment 3)
i. under 1.9(a):
1. Former client?
2. Materially adverse?
3. Same or substantially related matter?
c. If Martyn cannot rep w/o consent, what about law firm?
i. No – Martyn’s conflict is the law firm’s conflict
ii. One lawyer’s former client in the same law firm is everyone’s former client in that law firm
(unless MR1.10(a)(1) applies)
iii. MR 1.10(a)(2) only applies to migratory lawyers now – new rule
d. (c) Can Martyn & Fox represent an environmental group that wants to challenge the shopping center
because it would lie in a flood plain and would violate applicable federal regulations? [1.9(a) comment
3]
Imputed Conflicts/ Migratory lawyers:
a. Problem 9-15: Martyn & Fox is in a ten-day countdown to trial when one of its associates darkens
Fox’s door to announce that she is leaving the firm on Friday. When Fox recovers from the shock of
losing his right arm in the case on such short notice, the associate tells him that she will be joining the
firm on the other side of the case, but not to worry – she’ll be screened. What should Martyn & Fox
do? [1.9(a); 1.10(a)(2)]
i. If associate cannot rep w/o consent, what about law firm?
1. MR 1.10(a)(2): law firm not disqualified if prohibition based on MR 1.9(a), arises
out of disqualified lawyer’s association with a prior firm, and firm follows MR
1.10(a)(2) screening and notice procedures
2. No consent needed
3. This provision was created to address the migratory lawyers issue
Problem 9-16: Martyn & Fox agrees to staff a hot line for the local legal services project every Tuesday. One
Tuesday a Martyn & Fox associate received a phone call from an individual who has been the subject of
predatory lending by The Dollar Store. Without seeing any documents, the associate gave the woman advice
about possible remedies and only learned upon returning to the firm that Big Bank, Martyn & Fox’s largest
client, owns The Dollar Store. Is Martyn & Fox in trouble? [6.5; 1.7; 1.10]
MR 6.5: Allows lawyers who assist in hotlines or help desks at public service practice settings to provide
limited advice to clients so long as no conflict is apparent to the lawyer undertaking the assignment.
In Class Exercise: Former Client Conflicts:
a. Plaintiff Cathy (can Ted rep her?) v. Defendant BigCo (Ted’s former client)
b. Answer:
i. MR 1.9(a) is controlling.
ii. Lawyer may rep client materially adverse to former client so long as case is not same matter
or substantially related to prior rep.
iii. Comments help to explain standard.
iv. MR 1.9, Cmt. 2, says lawyer who recurrently handled a certain type of problem for former
client is not precluded from taking a case in which problem is of the same type but factually
distinct.
21
v. Suits are different for several reasons.
vi. 15-20 years have passed.
vii. MR 1.9(c) could come into play if Ted actually learned conf info and is now trying to retain a
new client, Cathy.
viii. It does not appear that Ted learned anything that would create a conflict under MR 1.7(a)(2).
ix. Thus, Ted probably can rep Cathy without getting informed consent from former client,
BigCo.
FEES
1.
2.
3.
4.
5.
6.
7.
8.
MR 1.5:
a. Fees must be reasonable.
b. Scope of rep and basis/rate of fee/expenses must be communicated to client.
c. Contingent fee agreements must be in writing, signed by client.
d. No contingent fee agreements for domestic relations proceedings or criminal matters.
e. Provision for fee splitting among lawyers in different firms.
MR 1.15: Client Property:
a. Lawyer must keep advance fees and other client property separate from lawyer’s own property.
b. Client trust accounts are established.
Hourly Fees:
a. Problem 10-1: Martyn flies to San Francisco for a client that pays full hourly rates for travel. If during a six-hour flight,
Martyn works on another client’s matters for four hours, may she bill two clients a total of ten hours? What if the work on
the plane was pro bono? [ 1.5(a); 1.5(b); ABA Formal opinion 93-379]
Expenses:
a. Problem 10-2: May Martyn & Fox charge clients $2/page for all incoming and outgoing faxes? What about billing client’s
$200/hour for contract lawyers whose agency charges us $150? [1.5(a); 1.5(b); ABA Formal opinion 93-379; Fordham]
MR 1.15: Client Property:
a. lawyer must keep advance fees and other client property separate form lawyer’s own property
b. client trust accounts are established
Contingent Fees:
a. Problem 10-3: M&F entered into a one third contingent fee agreement w/ client, who has been seriously injured by drunk
driver. Two weeks later, after we have spent about 10 hours on the case, drunk driver’s insurer offered the policy limits of
$150,000. Client threatens to file a disciplinary complaint unless we agree to reduce our fee to $5000($500/hr). What should
we do? [MR 1.5(c); ABA formal Opinion 94-389; Fordham]
i. If they had no idea that it would be settled so quickly it should be fine; BUT if they knew they would get the policy
limits and they knew it was an easy case and would be settled quickly and early then the client may have a
legitimate claim.
ii. However, on the facts as they are, they should get what they bargained for assuming it is reasonable and they didn’t
know it would end so quickly
b. Problem 10-4: Massachusetts hired M&F to sue the tobacco companies at a time when the suit seemed hopeless. The fee
agreement, signed for Massachusetts by the Attorney General, called for a 25% contingent fee. Two years later, as part of an
overall settlement w/ 40 states, Massachusetts was awarded $8.3 billion. Should M&F collect $2.075 billion? [ MR 1.5;
ABA formal opinion 94-389]
i. They can and it is perfectly ethical for them to do that under the law.
ii. May want to consider taking such a high amount though even though they bargained for it since it’s for the state and
tax payers are paying. Plus it’s an enormous percentage that is going to the lawyer’s for something that really was
not a reasonable amount. Also, if you want to do future business for the state it might be smart to not take this
amount as a way to entice them to use their firm again.
iii. Public perception might be terrible if they took this too.
Reverse Contingent Fee:
a. Problem 10-5: M&F’s client is sued for $10 million to be trebled as party of an alleged antitrust conspiracy among drug
companies. May M&F negotiate a fee agreement that would award the firm 25% of everything the client saves below $30
million? [1.5(c); ABA formal Opinion 94-389]
i. Yes they may. It’s ok to create reverse contingency situations, these agreements are fine.
ii. Treble = triple
iii. Just fine under ABA model rules as long as it’s reasonable
Referral Fees:
a. Problem 10-6: M&F routinely refers medical malpractice actions to Hastie & Moore’s 40% contingent fee. Fox just
discovered that Hastie & Moore has not paid us our share after settling the last two cases we referred. What should we do?
[1.5(e)]
22
i. You would need to go to Hastie first and see if they will make the debt right.
ii. As long as they follow 1.5(e), it allows fee splitting among lawyer’s not from the same law firm and can go ahead
and collect what is owed to them.  Requires that the amount collected is equal to work done for them, must be in
writing, must be reasonable, etc…
iii. Question here to ask is whether 40% is a reasonable proportion in a med-mal case
iv. Reciprocal Referral agreement: as long as client is fully aware that they have some kind of reciprocal agreement w/
the other law firm then merely referring cases to other law firms means they can take a referral fee.  if you have
one of these, it sure looks like you must accept joint responsibility if anything goes wrong in the suit by the other
lawyers actually handling the case
b. MR 1.5 (e): Referral fee is proper if:
i. Division of the fee is in proportion to the services performed by each lawyer or each lawyer assumes joint
responsibility for the rep; AND
ii. Client agrees to the arrangement and agreement is confirmed in writing (signed?); AND
iii. Total fee is reasonable
iv. Reciprocal Referral Arrangements:
1. MR 1.5(e) does not permit fee splitting with referring lawyer who neither assumes joint responsibility
for case nor works on case.
2. However, lawyer may set up a “reciprocal referral” arrangement with another lawyer. MR 7.2(b),
cmt. 8.
3. Arrangement must not be exclusive, and client must be informed of arrangement.
9. Flat Fees:
a. Problem 10-7: Insurance Company offers to hire M&F to represent all of its insured physicians in medical malpractice cases
for $250,000 per case. Can M&F accept this arrangement? [ MR 1.5]
i. They can if it is reasonable; this is one way that some law firms get away from the billable hours idea.
ii. Again, must ask yourself in med-mal cases whether $250,000 is reasonable based on the facts to see if it may or may
not be reasonable  if reasonable flat fee, then it is acceptable under ABA MRs.
b. Problem 10-8: Martyn & Fox agrees to defend Client’s breach of contract action for a flat fee of $20,000. Six months later,
Client fires us, saying, “I just like the lawyers down the block better,” and demands a refund of $15,000. What should
Martyn & Fox do? [1.5; 1.15; Sather]
i. First: can they show how they spent their time and what they did, they might be able to get/keep it if under the
quantum merit type of situation saying I’m not going to give you $15,000 b/c I deserve x-amount of money for this
work.
ii. Lawyer not entitled to maximum value of K, but if they how their hours and they are reasonable they may be able to
recoup some of those fees; once K is cancelled and is over, they can’t get above the amount contracted for
iii. Lawyer is allowed to keep disputed amounts in a fund until that dispute is settled under 1.5  if there were
advanced fees and client wants it back, lawyer can keep those funds in account until the dispute is settled
10. Fees on Termination:
a. Problem 10-9: Martyn & Fox agreed to take on Plaintiff’s malpractice suit for a fixed fee of $30,000, plus a contingent fee
equal to 50 percent of all amounts recovered in excess of $500,000. After Martyn & Fox spent $100,000 on the matter,
Plaintiff hired Caldwell & Moore, which settled the suit for $500,000. What fee is Martyn & Fox entitled to collect and from
whom? [1.5; 1.15; Malonis]
i. Quantum merit applies (see Malonis); it would go back to their billed hours and how much time they spent on the
case.
ii. General rule: they can only collect up to $30,000 because the bargain was anything above $500,000 they get 50%
of. Since nothing was collected above $500,000 they can only collect billed hours up to $30,000. UNLESS there
were some bad faith on their part, and of course on contingency fees the client has to succeed.
11. Statutory Fees:
a. Martyn & Fox agrees to a one-third contingent fee contract with Client and spends 2,000 hours on Client’s federal civil rights
action alleging police brutality against Local Municipality, resulting in a jury verdict of $21,000. Statutory fees are available
under the civil rights legislation. What fee will Martyn & Fox receive?
i. Moral of story: when many statutory fees (written so prevailing party NOT the attorney gets the fees) are present,
you need to have an agreement w/ the client up front that those fees will go to the lawyer and not the client; if you
didn’t have this agreement w/the client, they could only get $7000 and not the statutory fees.
Random
1. Terminating the Relationship:
a. MR 1.16(a): Must w/draw if:
i. rep will result in violation of rules;
23
2.
ii. lawyer’s physical/mental condition materially impairs lawyer’s ability to rep client; OR
iii. lawyer is discharged
b. MR 1.16(b): Withdrawal Permitted if:
i. * withdrawal can be done without material adverse effect on client;
ii. * client persists in action involving lawyer’s services that lawyer reasonably believes is criminal/fraudulent;
iii. * client has used lawyer services to commit crime/fraud;
iv. * client insists on taking action lawyer finds repugnant;
v. * client fails substantially to fulfill an obligation to lawyer regarding services and has been given reasonable
warning that lawyer will withdraw unless obligation is fulfilled;
vi. * rep will result in unreasonable fin. burden on lawyer or has been rendered unreasonably difficult by client; or
vii. * other good cause for withdrawal exists.
c. Worth noting that baby boomers are aging and close to retirement, and this rule is for any of those still practicing lawyers
who may have Alzheimer’s, or some other condition that would render them mentally or physically impaired to do their shit
d. Physical/mental impairment does not reduce the level of delegation and ability to represent a client
e. Places a duty on opposing lawyers or other lawyers to come forward; a duty required under 1.8(a);
f. Also, will allow these type of lawyers to continue to practice (i.e. research etc.., but not necessarily represent them as the
primary attorney)  if you learn about an impairment in a confidential context you are not allowed to disclose that
information
g. Judges can/will turn people in if they see a serious problem (being in court drunk consistently, etc…)
The Bounds of the Law:
i. Introduction:
1. Problem 12-1: How do you advise Martyn & Fox’s client who just told us that an otherwise perfectly legal $10,000
political contribution to the Republican Party will guarantee issuance of a building permit six months sooner, saving
our client hundreds of thousands of dollars? What if our client asks us to buy five of the ten $1,000 tickets to the
County Lincoln Day Dinner necessary to complete the transaction? [MR 1.2(d); 8.4]
a. Under 1.2(d) you’d want to advise them of the consequences, and then make a good faith effort to make
sure they understand the law. If it rises to the level of bribery
b. Second question: decline their request under 8.4© which prevents lawyer’s from engaging in conduct that
involves dishonesty, fraud, bribery etc…
2. 18 U.S.C. § 201:
a. Any person who directly or indirectly, corruptly gives/offers/promises anything of value to any
public official with intent to influence any official act,
b. Or who directly or indirectly, corruptly gives/offers/ promises anything of value to any person, with
intent to influence testimony under oath as a witness in a trial, etc.,
c. Will be punished by fine and/or up to 15 years in prison.
3. Reporting Requirements:
a. Problem 12-2: Martyn & Fox’s client in a criminal matter brings an $11,000 cash retainer to the office. He
reminds Fox that unless he is indicted, he does not want the fact that he retained us or his identity disclosed.
Do we have any problem meeting this request? [1.6(b)(6); 8.4(b)]
i. Really this is asking about the identity of the client  do they have responsibility to disclose
identity of client or can they withhold the identity?  Moral of story under fed. Statute: must
report any amount of $10,000 in cash or greater received in the course of trade/business, lawyer
must turn identity of that person into the IRS.
ii. 1.6(b)(6) allows lawyer to do it even if it is confidential information b/c a law allows them to do it
iii. requires anybody, including lawyers, to turn identity over to IRS  all it means is that they’ve
paid in cash above 10K, not necessarily that they’ve committed a crime. But they are trying to
prevent those people who have obtained that cash illegally.
iv. Can be one payment, OR a series of payments  they would have to relatively connected in a
series to have to report it.
v. Can write a check for 10K and above and don’t have to report it
vi. Can purposely make it 9999K to avoid difficulty of statute, UNLESS you have reason to believe
illegality going on there.
b. 26 U.S.C. § 60501:
i. Requires anyone engaged in trade/business to report to the IRS any person from whom at
least $10,000 cash is received in the course of that trade/business.
c. Problem 12-3: Martyn & Fox take on the pro bono representation of a detainee at Guantanamo. Thereafter
it is disclosed that the government is conducting warrantless surveillance of e-mails and telephone calls
between the United States and overseas countries. Martyn & Fox have regularly been contacting the
24
detainee’s relatives and friends in Yemen. The DOJ refuses to assure Martyn & Fox that lawyer calls are
exempt from the surveillance. What should Martyn & Fox do? [1.6]
i. You’d want to stop and get consent from the client and figure out whether they should challenge it
or not to challenge it if you are going to have to talk w/ those people. Find out how client wants
them to proceed.
ii. Lawyer might try to get a ruling from a judge that by him proceeding in the convos will not waive
the AC privilege, or at least lawyer wouldn’t get in trouble for not trying
iii. This situation puts a lawyer in a real pickle under legislation passed after 9/11.
ii. Frivolous Claims:
1. Problem 12-4: Martyn & Fox filed a lawsuit against Chemco one week before the statute of limitations ran on behalf
of three children born with birth defects, alleging that the birth defects were caused in utero by their mother’s
exposure to poisonous chemicals Chemco emitted into the air near their homes. Ten months later, Martyn & Fox
consulted an expert for the first time, who told them there was no way to prove that Chemco’s chemicals caused the
birth defects in question. Martyn & Fox then voluntarily dismiss the claim, after Chemco had spent thousands of
dollars on its own experts. Is Martyn & Fox in trouble? [3.1; 3.4; FRCP 11; Christian]
a. This is kind of a rule 11 type issue  can’t file any paper w/o good faith basis to believe the factual and
legal claims are well-grounded so they could get in trouble
b. Also depends on what happens after that  under 3.4(c) lawyers can’t knowingly ignore stuff by a tribunal
c. Was it reasonable for the lawyer to act the way under the facts given?  is possible that it is not frivolous
when filed, but then after if they find out it is, or fail to go ahead and get expert testimony and follow up on
discovery then it may be deemed to be a then frivolous claim
d. See Christian case about Barbie Dolls
e. Safe harbor provision: can file a motion w/ opposing attorney, and if they don’t respond w/in time, they
then can file a claim w/ the court.
2. FRCP 11:
a. Rule 11 prohibits filing any paper – like a pleading or motion – w/o a good faith basis to believe that the
factual and legal claims it contains are well-grounded.
b. Question: whether lawyer conducted an objectively reasonable investigation under the circumstances.
3. MR 3.1:
a. Lawyer cannot bring claim, defend claim, or press issues with a frivolous basis.
b. Can make a good faith argument for an extension, modification, or reversal of existing law.
4. MR 3.4 (c):
a. Lawyer cannot knowingly disobey an obligation under the rules of a tribunal.
b. Exception: open refusal based on an assertion that no valid obligation exists.
iii. Discovery Abuse:
1. Problem 12-5: An associate at Martyn & Fox believes the firm must produce certain damaging documents in a
products liability case. Fox insists they not be produced because the documents came from the client’s subsidiary in
Germany, and it would be burdensome to search the German subsidiary’s warehouse. “Let’s just object to
producing any of the subsidiary’s documents,” Fox instructs the associate. May the associate accept direction
from Fox, the experienced partner? What if documents from the subsidiary have not been requested? [3.2;
3.4; 5.2; Tutu Wells]
a. See 5.2(b): assuming that there is gray area here, an associate can rely on a supervisor’s reasonable
resolution of an arguable question of professional duty.  If there was a direct case on point that said they
had to turn it over, and they took the advice of a supervisory lawyer’s advice they could be in trouble, but if
it’s a gray area they would not be in trouble.
b. What if documents not requested? 3.4 comment 1: system is adversarial and as long as they don’t
reasonable believe info is relevant and it has not been requested, they do not have to do the work for them
and don’t necessarily need to come forward w/ that.
c. FRCP 26(g) governs this and makes sure that lawyers can’t purposefully not turn over discovery stuff.
2. FRCP 26(g):
a. Requires at least one attorney of record to sign a discovery disclosure, certifying that to the best of
the signer’s knowledge, information and belief, formed after reasonable inquiry, disclosure is
complete and correct as of the time it is made.
b. Provides for sanctions if certification made without substantial justification.
3. MR 3.4(d):
a. Lawyer cannot make frivolous discovery request or fail to make reasonably diligent effort to comply
with a legally proper discovery request by opposing party.
25
4.
5.
6.
MR 3.4(f): Prohibits an attorney from asking a witness to refrain from voluntarily communicating with
opposing counsel unless the witness is the lawyer’s client or a relative, employee, or other agent of the client.
MR 3.2: requires lawyers to make reasonable efforts to expedite litigation consistent w/ the interest of the client
a. If you don’t do 26(g) you can be in trouble under MRs as well.
MR 5.2(b): associate can rely on supervisory lawyer’s reasonable resolution of an arguable question of
professional duty.
iv. Bias:
1.
Problem 12-6: Martyn is furious with opposing counsel, who happens to be one of the most highly regarded male
lawyers in town. In the course of a recent deposition, this lawyer referred to Martyn as “office help,” and repeatedly
called her “sweetheart,” “dear,” and raised his voice to drown her out, which required Martyn to stop talking until he
was finished and then inquire if she could be heard. What do you advice? [4.4(a); 8.4(d); Panel Case No. 15976]
a. Comment doesn’t really seem to violate 8.4 unless she can prove the comments were made intentionally to
embarrass her she can move for misconduct under 4.4(a)
b. There is a line here and deals w/ conduct that limits her participation as to when professional misconduct
can be used.  If it starts to prejudice justice then the lawyer could be in trouble.
c. Not supposed to step over that line and prejudice the administration of justice, and if they do can get in
trouble under 8.4(d) and 4.4(a).
d. Panel Case: people felt bad for lawyer in that case.
2. MR 8.4(d):
a. •Lawyer must not engage in conduct prejudicial to the administration of justice.
b. •Cmt. 3: When representing a client, a lawyer cannot knowingly manifest by words/conduct prejudice
based on race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status.
3. MR 4.4(a):
a. In representing a client, lawyer must not use means that have no substantial purpose other than to
embarrass or burden a third person.
b. Bounds of the Law:
i. Communication w/ unrepresented and represented persons
ii. Communication w/ judges and jurors
iii. Lawyer as witness
c. Communication w/ Unrepresented and Represented Persons:
i. MR 4.2 – Communication w/ Represented person:
1. Lawyer must not communicate about the subject of the representation w/ a person known to be
represented by another lawyer
2. Exceptions: Other lawyer (not client) consents, or lawyer is authorized by law or court order
3. Comment 7: Prohibits communications w/:
a. 1.Constituent of org who supervises, directs or regularly consults with org’s lawyer concerning
the matter;
b. 2. Constituent who has authority to obligate org with respect to the matter; or
c. 3. Constituent whose act or omission in connection with the matter may be imputed to org
for purposes of civil or criminal liability.
ii. MR 4.3: Dealing w/ Unrepresented Persons:
1. Lawyer must not state or imply he/she is disinterested.
2. Lawyer must make reasonable efforts to correct any misunderstanding about representation.
3. Lawyer must not give legal advice.
iii. Problem 12-7: Negotiations have been going on for months. Then Martyn receives a call from the potential buyer.
“With my lawyer involved, we’ll never reach agreement. Let’s talk – just you and me.” What if buyer
announces, “I fired my lawyer?” [4.2; 4.3]
1. Going to have to know whether or not that lawyer was really fired
2. If lawyer is not fired can’t talk to that person
3. If they are fired, then you have to follow 4.3 and its rules
iv. Problem 12-8: Martyn & Fox’s client is totally frustrated. “I’ll bet our settlement offers are not even being passed
on to the plaintiff by that shyster lawyer of his. Why don’t you just call the plaintiff up yourself and tell him our
latest?” What if the client simply asks us to write the lawyer on the other side, with a copy to the plaintiff? What
if our client asks us to write a letter for the client to send to the plaintiff? [4.2]
1. Lawyer could not pick up phone and call plaintiff him or herself b/c the lawyer knows they’re represented
under 4.2
2. Second question: surprisingly can’t do this; can’t ‘CC’ a plaintiff in an email; of course other lawyer can
consent to that, but if not then you run into a 4.2 problem
26
v.
vi.
vii.
viii.
ix.
x.
xi.
3. Third question: communication b/w two clients is OK  clients can talk to other clients; question
becomes, how much is lawyer getting involved into this discussion;
a. Under 8.4(a) can’t ask others to do what you can’t do;
b. Way to get around this: set up a settlement conference so you can talk in one room w/ client there,
OR you can ask judge to communicate the offer to the plaintiff so to avoid a direct letter for the
client  grey area is how far can lawyer go in scripting a letter from their client to the plaintiff
Problem 12-9: Martyn & Fox’s client has a petition for a variance pending. Client tells Fox, “I think if you meet
with the Zoning Board Chairman and explain our position, the hearing will go a lot better. That’s what the
Democratic committeeman told me.” What may Fox do? [4.2 comment 5]
1. He can’t really talk about the merits, but if law allows him to talk to zoning person, he can go ahead and
talk to the board chairman but can ONLY talk about policy and can NOT go into the merits of what is
going on  some jurisdictions will define this
Problem 12-10: An Assistant U.S. Attorney gets a call from a defendant whose trial is now scheduled in six
weeks. “I can’t stand it,” defendant exclaims. “That guy [from Martyn & Fox] the company hired to represent
me couldn’t care less about my case. All he wants is to make sure the company gets off scot-free. Can’t we talk?
I’ll meet you at Local Pub at 11:00 p.m. Ok?” [4.2 comment 5; 4.2 comment 6]
1. Often times government officials are not seen the same way as the zoning board since we are dealing w/ a
defendant in a case and the assistant attorney
2. Better to find out up front in a criminal defendant prosecution case if they are going to waive council and
try and obtain a waiver of counsel form signed by them
3. Best thing to do: get a court order that would allow you to talk to this defendant in the trial that would say
this defendant has waived counsel, therefore unrepresented, and thus allowing you to talk to them.
4. Different than last problem since it’s a defendant in a criminal case  want to be extra sure w/ the waiver
Problem 12-11: Martyn & Fox has been representing a corporate client in an SEC investigation, a fact known to
the SEC. One Saturday morning, Fox gets a panicked telephone call from our client’s sales manager. The cause:
Justice Department lawyers visited at least ten brokers employed by our client this morning. What should Fox
do? [4.2 comment 7; Messing]
1. Figure out if it’s an organization, you want to figure out if they are represented or not  4.2 comment 7
will tell you who is represented
2. If they were represented, then that would be a problem;
Trick here also as far as when does MR 4.2 kind of kick in?  looking at when 4.2 attaches to representation
Problem 12-12: Can Martyn & Fox send a memorandum to all our client’s corporate employees directing them
not to talk to anyone from the Justice Department? [1.13(d); 3.4(f)]
1. 3.4(f): lawyer shall not request person other than client to refrain from communicating w/ opposing
counsel unless witness is lawyer’s client, or relative, an employee, or other agent of client
2. if they are corporate client’s employees, than under 3.4(f) if seems lawyer could ask them not to talk w/
opposing counsel
3. Conflict though: Does it matter that it’s the Justice Department?  YES b/c it could be a problem if for
example they are not represented employees, b/c if it’s a criminal investigation by justice department,
you don’t want to be found to obstructing justice by telling them not to talk, but if these employees are
not represented then perhaps obstruction of justice would trump 3.4(f) (BUT can always tell a
represented person NOT to communicate w/ opposing counsel  civil case can ask any employees not to
talk, but Dept. of Justice is different story.
4. MR 3.4(f): (see above)
Problem 12-13: The trial is a week away. Can Martyn visit the other side’s expert witness? How about a former
employee of the party on the other side? What if the employee was separately represented at her deposition? [4.2
comment 7]
1. First question: ethical rules would allow you to talk to an expert/ any witness on other side as long as you
comply w/ discovery rules, and you can’t seek privileged info from those witnesses, and discovery rules
will require that they file notice w/ opposing counsel to talk w/ witness  ethical rules allow it as long
as discovery rules allow it
2. Second question: former employee, it’s fine to talk to them as long as they’re not represented; comment c
allows you to talk to former employees
Problem 12-14: Martyn & Fox’s client, an activist vegetarian group, thinks that a national chain is using beef
tallow in processing its French fries. They believe the only way to prove this is to get someone hired to work at
the national chain’s French fry processing center. They ask Martyn & Fox if we will get one of our paralegals to
apply for employment at the plant. What should we say? [4.1; 5.3; 8.4(a)]
27
1. 5.3 attorneys are responsible for conduct of non-lawyers under their employment and for establishing
policies that would prohibit conduct that would violate the rules
2. Could you counsel the client to do it instead? Can’t allow another person to do conduct that would cause
violations if lawyer did it, even though it’s not illegal/against the rules for them to do it (an argument
some make saying you can send your client if they want to do it, as long as it’s illegal, and would allow
it)
3. Probably would not counsel her client to do so.
d. Communication w/ Judges and Jurors:
i. MR 3.5 prohibits a lawyer from communicating ex parte with a judge, juror, prospective juror, or other official
during the proceeding unless authorized by law or court order.
1. Problem 12-15: Martyn lost a jury verdict Fox assured her she was certain to win. In an effort to
understand what happened, Martyn phoned three jurors at home after the trial and she hopes to catch the
trial judge tomorrow morning in chambers to chat about the case. Any problem? [3.5; Ragatz]
a. 3.5(c) applies and if you want to talk to juror you must follow this rule  unless one of exceptions
are there they CAN talk to jurors after the case
b. Chatting w/ judge after proceeding and it’s really over w/ not motions still going to be filed, this is
fine as long as the judge is willing to talk and consents to it
c. Some jurisdictions get very picky w/ jurors and make it so you can NEVER talk w/ jurors
afterwards
d. Important to point out about 3.5: really during proceeding w/ the judge is an important part of that
ii. MR 3.7: Lawyer as a Witness: Lawyer cannot act as advocate at trial in which lawyer is likely to be a
necessary witness unless:
1. 1. Testimony relates to uncontested issue;
2. 2. Testimony relates to nature/value of legal services in case; or
3. 3. Lawyer’s disqualification would work substantial hardship on client.
4. 3.7(b): lawyer may act as advocate at trial in which another lawyer in firm is likely to be called as
witness unless barred by MR 1.7 or MR 1.9
5. Problem 12-16:
a. Martyn actively negotiates a business deal for Client with Third Party. Two years later, Third
Party sues Client to rescind the deal, alleging that Client committed fraud during the
negotiations.
b. (A) Can Martyn defend Client in the rescission action? Does it matter if Client is now terminally
ill? Can Martyn do pretrial work only? [3.7; D.J. Investment Group]
i. Could still defend client as long as he’s not called as a witness at trial unless it’s one of
the exceptions under 3.7 as a necessary witness
ii. Terminally Ill: start to think about now if there were only 4 people in the room and 1
of the 2 on this side are terminally ill, perhaps the lawyer might become a necessary
witness and would move towards a 3.7 exception
iii. Pre-trial work only: could still do pretrial work and testify as a witness as long as he
doesn’t testify about anything privileged
iv. MR 3.7 ONLY applies @ Trial and can only reach there
c. (B) Can Fox represent Client in the rescission action? Does it matter if Martyn’s recollection of
the facts might not support Client’s position?
i. Another lawyer in the law firm representing client (FOX): 3.7(b) would allow him to
represent client SO LONG AS there is NO conflicts under 1.7 or 1.9
ii. As long as fox feels competent and will not feel limited then it’s fine
iii. Second question: Martyn and can’t do anything that would mislead a tribunal; NOW
though FOX may have a conflict of interest and may be contradicting what their client
says since they are representing client and a partner in his law firm is saying something
against the client  would he be materially limited in representation based on his
partner making a statement in conflict w/ his representation? If there is a conflict he
may not be able to represent his client competently.
d. (C) What if Third Party calls Martyn to the stand during the trial? Can Martyn & Fox continue the
representation?
i. Yes so long as it does not give rise to another conflict under 1.7 or 1.9; as long as
lawyer’s ok and there is no conflict b/w what lawyer is going to say and client is going
to say, it doesn’t matter who calls lawyer to stand as long as no conflict exists  they
can continue the representation
28
Advertising and Solicitation: MR 7.1 – 7.5
1. Background:
a. Advertising: lawyer’s communication with public at large or segment of public.
b. Solicitation: lawyer’s individual contact with a prospective client.
i. Bates v. State Bar of Arizona:
1. Pre-Bates: professional ethics banned lawyer advertising and solicitation.
2. In 1977, Supreme Court in Bates recognized lawyer advertising as commercial speech protected by First and Fourteenth
Amendments.
3. State may adopt reasonable regulations to insure that lawyer advertising is not false or misleading, but cannot ban all lawyer
advertising.
ii. First Amendment Regulation of Lawyer Advertising/Solicitation: (Not on Final)
1. Political Speech and Speech That Seeks Access to Courts
a. –Afforded most constitutional protection/compelling gov’t interest.
b. –Regulation could not prohibit NAACP from soliciting persons to serve as plaintiffs in constitutional challenges by
NAACP to segregated education. Button
2. Commercial Speech
a. –Intermediate level of scrutiny/substantial gov’t interest – Central Hudson test.
b. –Went for It.
3. Unprotected Speech
a. –No protection/gov’t interest presumed.
b. –In-person solicitation for pecuniary gain.
iii. Problem 13-4: Can Martyn & Fox advertise their new phone number as “1-800-HonestL”? What about “1-800-PIT-BULL”? [7.1; 7.1
comment 2 & 3; Went For It]
1. No problems w/ first one under 7.1 so long as they’re honest (a joke); as long as they’re honest lawyers its fine
2. Pit-bull (a grey area) may be more of a problem there; can’t make self-laudatory statements, yet it seems like it flies a lot of
times.  somehow could make people think you attack, or not let go until you win and thus could cause reprimands from
courts and contains no indication that lawyers specialized in dog bite litigation, and don’t convey objective and relevant
information about the lawyer’s practice
3. Indiana re-doing all of their advertising ethics rules right now
iv. MR 7.1: Lawyer cannot make a false or misleading communication about lawyer/lawyer’s services
1. Comment 2:
a. •Truthful but misleading statements are prohibited.
b. •Truthful statement may be misleading if it omits material facts.
2. Comment 3: Truthful statement may be misleading if it creates unjustified expectations.
v. Problem 13-5: Can M&F use www.superlawyers.com as its URL website address? [7.2; 7.3; Utah State Bar Opinion 99-04]
1. It’s kind of self-lauding and a bit misleading
2. Been frowned upon, but allowing people to say that they have been selected as a super lawyer and ranking of law firms
3. At this point at least allowing lawyers to put on their individual website that they were accepted as a super lawyer, but using
this as a URL is probably overstepping the bounds
vi. Problem 13-6: Can Martyn & Fox e-mail families of a recent accident to inform them of their need for counsel? Can Fox follow up on
e-mail responses with phone calls? Can he follow up using real-time electronic exchanges? [7.2(a); 7.3(a); Utah State Bar Opinion]
1. Email families: probably okay because it’s not a real time contact; MRs make a distinction b/w texting/chat rooms and
emailing someone as different things  unless there is some statute that requires a window of time before you are allowed to
talk to victim of an accident so long as you abide by 7.2(a) and 7.3(c) for putting advertising material at beginning or end of
electronic communication
2. Follow up phone calls: can if it is directly solicited by the person responding to the email and they initiate it and say to call
them then they are probably okay; if they say no then you can’t
3. Real time communication: same thing as a phone call  if responses are soliciting a response from the lawyer
4. Can, HOWEVER, call for pro-bono work  rule ONLY applies to pecuniary situations
5. 7.2 (a): Advertising:
a. Lawyer may advertise services through written, recorded or electronic communication subject to MR 7.1 and
7.3.
b. Must include name/office address of at least one lawyer/law firm responsible for its content. MR 7.2(c).
c. Cmt. 3: –Lawful communication by electronic mail is permitted.
6. 7.3(c): Generally requires that a written, recorded, or electronic communication include the words “Advertising
Material” at beginning and ending of any electronic communication.
a. 7.3(a): Direct Contact:
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i. Lawyer cannot seek fee-paying work by using in-person or live telephone contact, or real-time
electronic contact, with a no lawyer prospective client with whom lawyer has no family, close
personal, or prior professional relationship.
ii. Exceptions: current/former clients, family members/close friends, and other lawyers.
1. Can do real time contact w/ these people  rule only applies to prospective clients you can’t
do it w/
b.
7.3 (b): Even if otherwise proper, MR 7.3(b) prohibits communication if the prospective client has made
known to the lawyer a desire not to be solicited or if the solicitation involves coercion/ duress/harassment.
vii. Problem 13-7: Can Martyn & Fox advertise “Law for You” seminars where Martyn touts the advantage of living trusts? Can Martyn
hand out business cards to those who attend the seminars? Advertising brochures? [7.4; 7.5; Utah State Bar Opinion]
1. Yes; basically no problem w/ that
2. Second question: lawyers not supposed to hand out business cards and brochures, BUT lawyer can put cards and brochures
on a table for people to take, just can’t personally hand them out or have their paralegal hand them out.  not really
supposed to call attention to their business cards and brochures being there
3. CAN hand them out if it is requested by an initiation of another person
viii. Problem 13-8: Can Martyn ask those who attend the seminar to hire the firm to draft a living trust? Does it matter if the seminar is
sponsored by a local not-for-profit organization? [7.3; Utah State Bar Opinion]
1. What is soliciting: Martyn cannot ask to be hired, but the people can come up and ask him/their firm to draft the living trust;
Just can’t sit up there and say let my law firm draft your living trust
2. Second question: makes a different since it’s not for profit  (button case) as long as its collective activity taken to gain
meaningful access to courts then its fine. More relaxed for potential plaintiffs in a class action if it’s a not for profit
organization.
ix. Problem 13-9: While visiting her father at a local hospital, Martyn warns the person in the next bed not to sign an insurance settlement
form until she speaks to a lawyer. Can Martyn & Fox take the case? [7.3; Utah State Bar Opinion]
1. Under 7.3 probably not, unless the person was a relative/family member and it was past the 30 day window if there was one
2. From facts, it doesn’t really sounds that Martyn is trying to take the case  if it’s just really a good faith effort to provide
advice and it was innocent and not for pecuniary gain and just trying to be nice and helpful, then perhaps M&F could take the
case
3. BUT if Martyn is trying to get person to hire her firm, then there could be a problem.
Judicial and Professional Regulation of Lawyers
c. Professional Regulation:
i. Highest court in any state has power to regulate conduct of lawyers practicing in that state
ii. Court usually delegates power to bar association or commission
iii. I.e.: Indiana
1. Indiana supreme court disciplinary commission
a. Investigate potential violations
b. Presides over hearings
c. Reports to Indiana supreme court
2. Indiana Supreme Court
a. decides violations/ sanctions
d. Relationship b/w ABA and states:
i. Are ABA Model Rules binding authority? NO
ii. Are Abe formal opinions binding authority? NO
iii. Are state rules binding in state disciplinary proceedings? USUALLY
iv. Are state Supreme Court opinions about state rules binding in state disciplinary proceedings? USUALLY
e. Other ways lawyers can get into trouble:
i. Malpractice suits
ii. Breach of fiduciary duty suits
iii. Criminal prosecution
iv. Ineffective assistance of counsel
f. OUR FOCUS:
i. MPRE
ii. WEBSITE: WWW.NCBEX.ORG
g. Requirements for admission to the bar
i. Graduation from accredited law school
ii. Pass bar exam
iii. Undergo a character and fitness review
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iv. Model Rule 8.1
1. (1) Applicant cannot knowingly make a false statement of material fact
2. (2) Applicant cannot fail to disclose a fact necessary to correct a misapprehension known by person to have
arisen in matter; or
3. (3) Knowingly fail to respond to a lawful demand for information from admissions authority.
4. Example: IN RE APPLICATION OF CONVERSE
a. Can disciplinary committee review conduct if that conduct would be protected under the first
amendment?  YES, they are and can look at conduct even if conduct itself is protected by first
amendment since it is only in the context of being admitted to the bar
b. Age a factor?  YES; this is a forty year old man making decisions, likely he will and has acted this
way for a significant period of time
c. Conduct prior to law school a factor?  YES; may ask questions regarding previous conduct is past
times of ones’ life
d. Who has burden to prove moral character at bar admission stage? APPLICANT must prove to
commission that they are of moral standing for bar admission; disciplinary scenarios it is the burden of
the commission to show the conduct
e. Patterns significant? YES; if you start performing in a way that resembles a pattern it shows
negatively onto the weighing of your moral character and fitness  one mishap may be looked over,
but not patterns (note: incivility is NOT against the Model Rules however; there is no specific rule)
5. Example: Problem 2-1 (a)
a. (a) Should Moore be denied admission to the bar because she included as text, and w/o attribution,
seven direct quotations, three from cases and four from law review articles in a seminar paper in law
school?
i. Potentially YES; depends on how it appears as either an isolated event or as a someone nonisolated event/pattern.
ii. If she admits it, and also shows remorse, it is likely she would still be admitted.
iii. Questions to ask?
1. Isolated or not?
2. Remorse?
6. Example 2-1 (b)
a. (b) What if Moore pled guilty to drunk driving five years ago and against last year?
b. If it is an addiction and put as a condition, then you have a better likelihood of being admitted to the
bar. If you are not doing treatment it will create more problems
c. The 2 incidents might show a pattern there w/o evidence of condition/addiction
d. But does it relate to the fitness of being able to practice law? Drunk driving could be seen as having a
general disrespect for the law
7. Problem 2-1 (c)
a. What if Moore believes in White supremacy and has announced plans to become General Counsel to
the KKK Council?
b. Cannot deny admission based on beliefs alone  it HAS TO BE CONDUCT; Just because you
represent a group doesn’t mean you engage in their conduct
c. Membership in groups: can be asked about if that group would promote or advocate for a cause that
would deal w/ the character and moral fitness and ability to practice law faithfully; cannot just
blanketly ask about every group you’re in  must be about a specific group that in some way would
affect your ability to practice law  must be specific and relate to fitness to practice law
v. Bar admission General Rules:
1. Don’t lie/omit material facts
2. Admit and disclose
3. Bar admissions:
a. Can ask about beliefs, but can only deny admission based on conduct relevant to practice of law
b. Can consider conduct even if it might be protected by First amendment
c. Can ask about specific group membership if group’s beliefs are contrary to lawyer’s ability to
represent clients
vi. Professional Discipline
1. MR 8.4: Misconduct
a. Violate/ attempt to violate Rules
b. Commit criminal act that reflects adversely on lawyer’s honesty, trustworthiness, or fitness as a
lawyer
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2.
3.
4.
5.
6.
7.
c. Engage in conduct involving dishonesty, fraud, deceit or misrepresentation
d. Engage in conduct that is prejudicial to the administration of justice
MPR 8.3: Duty to Report Prof Misconduct
a. Lawyer has duty to report another lawyer’s Rules violations when:
i. Lawyer knows about the violation
1. MR 1.0 (f): knows as actual knowledge of fact in question. A person’s knowledge
may be inferred from circumstances
ii. Violation raises a “substantial question as to that lawyer’s honesty, trustworthiness, or
fitness as a lawyer; and
1. MR 1.0 (L): substantial = material matter of clear and weighty importance
2. 8.3 comment 3: term substantial refers to the seriousness of the possible offense
and not the quantum of evidence of which the lawyer is aware
iii. Reporting does not violate confidentiality under MR 1.6.
Problem 2-2: Fox meets his close friend and law school roommate, Prosecutor, for dinner. Prosecutor tells
Fox that he’s just learned he has only months to live before he dies of colon cancer. After several drinks, he
also confides that two years ago he suppressed exculpatory blood evidence in order to obtain a murder
conviction. What should Fox do? [Rules/Readings: MR 3.8, 8.3, 1.6; ABA Opinion 04-433]
a. Under 8.3, he would be legally required to report it.
b. He has actual knowledge b/c he can trust his friend;  now, is there a violation? Yes, definitely b/c of
the following 3.8 rule. This most definitely raises a question of his honesty/fitness as a lawyer.
c. Violate confidentiality? No, b/c it is not communication privileged by attorney-client under these
circumstances or facts
d. MR 3.8 (d), (h): Special duties on a prosecutor
i. (d): Prosecutor must timely disclose to the defense all evidence that tends to negate the
guilt of the accused
ii. (h): when a prosecutor knows that a defendant was convicted of a crime that the defendant
did not commit, prosecutor must seek to remedy the conviction
e. Sample Analysis:
i. Fox Knows prosecutor violated MR 3.8 (d)
ii. Does violation raises substantial question as to prosecutor’s fitness under 8.3 (a)? Yes it does
iii. 8.3 (a) requires Fox to report if they were talking just as friends
iv. IF lawyer/client relationship was created, 8.3 (c ) provides exception for confidential
information – see 1.6
Problem 2-3: Martyn & Fox are successor counsel for Client, and discover that Client’s former lawyer stole
Client’s money from his trust account. What should Martyn and Fox recommend? [Rules/Reading: 8.3, 8.4,
1.6; ABA opinion 04-433
a. Towards client: advise client of things that happened; tell them of your duty to report, but then you
must get your client’s informed consent and waiver b/c that information is considered confidential
communication protected by attorney-client privilege from past representation (1.6 puts this rule on
them, giving client ability to say no)
b. Recommend to either: 1) file a malpractice suit (so to get your money back) or 2) go to disciplinary
commission (to get his license revoked etc…). But, could go to disciplinary commission first hoping
for a positive outcome so to point to that in the malpractice suit.
Note on Threatening Disciplinary Complaints
a. Threatening to report a disciplinary matter to gain an advantage in a civil case may violate several
Model Rules, according to another ABA opinion:
i. MR 4.4(a): if threat’s sole purpose is to embarrass, delay, or burden opposing counsel
ii. MR 8.4 (b) if threat constitutes criminal act of extortion, for example
Note on Disciplinary Authority
a. 8.5:
i. Indiana lawyer is subject to disciplinary authority in Indiana regardless of where her
conduct occurs
ii. Illinois lawyer is subject to Indiana’s disciplinary authority if she provides legal services in
IN
iii. Lawyer can be disciplined in 2 different jurisdictions for same conduct
Problem 2-4: Martyn discovers that an associate in the firm has been charging clients for phantom travel
expenses, thereby generating money that he has used to fund a gambling addiction. Martyn tells fox she has
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8.
9.
investigated, the associate has repaid the money, and the associate has joined Gamblers Anonymous. Should
Fox accept that solution? [Rules/reading: 8.3, 8.4, 5.1, 5.2; Busch}
a. No he should not  we know he has violated a rule; we know its substantial b/c it involves stealing
money from clients; therefore there is a duty to report, yet 8.3 (c) might mean since he is a partner it is
considered privy to confidential information about a particular case in his law firm and would have to
get client’s informed consent to report  if no informed consent obtained, then they do not have to
report and their duty is relieved
b. MR 5.1: partner can be held responsible for associate’s violations if:
i. partner orders conduct or ratifies it; OR
ii. partner knows of conduct at a time when its consequences could be avoided or mitigated
but fails to take reasonable remedial action
iii. Partners may also have duty to put into effect measures that give reasonable assurance that
lawyers in firm will conform to the Rules.
Busch Case: sometimes a particular condition can mitigate the discipline, but only if the misconduct is caused
by the disability/ condition
General Rules for Professional Discipline:
a. Lawyer has duty to report another lawyer’s professional misconduct if:
i. Lawyer ‘knows’ about violation
ii. Violations raises “substantial question” as to lawyer’s honesty, trustworthiness, or fitness as
lawyer; and
iii. Reporting would not violate confidentiality
iv. Lawyer can be subject to discipline in two or more jurisdictions for same conduct
v. A disability may mitigate a disciplinary sanction, but only if the disability caused the problem
and can be accommodated to prevent it in the future
vi. Partner must establish internal policies to assure conformance w/ the Rules and can be held
responsible for associate’s violation in certain circumstances
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Review:
h.
i.
j.
k.
l.
Reciprocal Referral Arrangements:
i. MR 1.5(e) does not permit fee splitting with referring lawyer who neither assumes joint responsibility for case nor works
on case.  Only if you’re going to split fees.
ii. However, lawyer may set up a “reciprocal referral” arrangement with another lawyer. MR 7.2(b), cmt. 8.
iii. Arrangement must not be exclusive, and client must be informed of arrangement.
iv. 1.5 does not talk about lawyers w/in a law firm  refers to other lawyers not associated w/ a firm  cant’ get fee
splitting unless you assume professional responsibility or get the proportion of money to the amount of work you did.
v. Reciprocal referral arrangements are “you scratch my back and I’ll scratch yours” – referral to another specialty  not a
fee splitting arrangement, just allowed under MR and so long as it’s not exclusive and allowed by Client.
What’s the difference b/w ordinary and opinion work product?
i. Opinion work product consists of the opinions or mental impressions of the lawyer; all other work product is ordinary.
1. Not available EVER
ii. If ordinary work product, other party may obtain it upon showing of substantial need and inability to obtain equivalent
through other means.
1. Could be perhaps gotten
Law/Court Order: Physical Evidence:
i. Problem 7-12:
1. What, if any, obligation to disclose does Martyn have if her client tells her where he hid the stolen money?
What if he hands her the key to the safe deposit box where the money is? Can Martyn give it back? If she keeps
the key, can she be forced to testify that her client gave it to her?
2. MR 1.6(b)(6)
3. This is basically a past crime so info is confidential and thus has NO OBLIGATION to disclose.  BUT if she
has the key, she’s probably going to have to notify the prosecutor that she has it, YET is allowed, as a lawyer, a
reasonable time of examination before turning it over;  giving it back could/would be a problem for Martyn if
they think the client will get rid of the key and not turn it in.  and if she keeps the key it is not covered by AC
privilege b/c it was NOT A COMMUNICATION and is actually considered an instrumentality
ii. Problem 7-13: May (must) Fox disclose that his client killed two children and Fox knows where the bodies are buried?
Does it matter if the parents still hope the children are alive, and the town has been conducting a massive search for two
weeks?
1. People v. Belge
2. Again, w/o more info we have to assume this is a past crime and is not using lawyer’s services in any way and it
appears that bodies are already buried and already dead, and if already dead there is NO requirement for
disclose of the bodies, even if the parents think the children are alive  IF lawyer believes that they could be
reasonably alive, then it changes a little bit and he could disclose the location of the victims to prevent the
reasonably certain death/bodily injury if the lawyer believes the children are actually still alive.
3. Lawyer is NOT OBLIGATED to do any independent type of investigation to figure out if they are alive or dead,
just what they reasonable believe based on what the client says.
False Testimony – Criminal Defendant:
i. Problem 7-22: How to deal with a criminal defendant who insists on testifying and insists on lying?
1. –Must take Reasonable remedial measures: 1. Seek client’s cooperation (don’t get up there and lie, if you go up
there I’m going to ask you questions I know you can answer truthfully so you don’t have to lie); 2. Consider
withdrawal; 3. (either way whether you withdraw or not, if the info will be deceitful to the pursuit of justice you
still must )Disclose to tribunal. MR 3.3, cmt. 10
a. certain jurisdictions provide middle ground (see below)
2. –Narratives are the middle ground between the defendant’s right to take the stand and the lawyer’s obligation
not to put a client on the stand if lawyer knows testimony will be false; some jurisdictions allow narratives. MR
3.3, cmts. 7 & 9
a. Narratives: lawyer stops asking client questions and says ‘OK client, why don’t you describe on your
own to tell jury what you think on this…’  know that whatever the client is saying, the lawyer knows
to be a lie, so in other words the lawyer will not help the client get the story out; only some
jurisdictions allow this.
b. MUST tell your client the ramifications of doing this and that the prosecutor and the judge will know
that any time after the lawyer stops asking questions that the client is fabricating a story  if not you
could be sued for malpractice if you let them doing it w/o telling them the consequences
Client and Lawyer Interests:
i. Modified Problem 8-2: Should Martyn & Fox agree to accept one third of the shares of stock issues in a new business
start-up in lieu of an hourly fee?
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1. Relevant Rules/Reading: MR 1.8(a), 1.8(k);
2. Monco
ii. MR 1.8(a): A lawyer shall not enter into a business transaction with a client unless:
1. 1.The transaction and terms are fair/reasonable to client and are fully disclosed/transmitted in writing in
a manner that can be reasonably understood by client;
2. 3.Client is advised in writing of desirability of seeking and is given a reasonable opportunity to seek
advice of independent legal counsel on transaction; and
3. 5. Client gives informed consent, in a writing signed by client, to essential terms of transaction and
lawyer’s role.
iii. MR 1.8(k): If a lawyer is prohibited from representing a client under MR1.8(a)-(i), the conflict is imputed to all other
lawyers in his/her firm.
iv. You cannot do it unless you abide by 1.8(a)
m. Current Clients/Joint Representations:
i. Problem 9-8: A corporate client’s CEO asks Martyn & Fox to represent his wife and him in drawing up new wills. 1.
Can we do so? 2. What if the wife takes Martyn aside and tells her to draft a codicil that diverts a substantial part of her
assets to a “friend”? 3. What if later, during divorce proceedings, the wife calls Martyn & Fox to be refreshed as to
husband’s assets; may (must) Martyn & Fox share that information?
1. Relevant Rules/Reading: MR 1.7, Cmt. 27; A. v. B
2. 1. YES, w/ informed consent from both parties; that informed consent, if you’re smart, in that consent you’ll
have a waiver agreement and talk about what happens if one of them gives you confidential info that doesn’t
want the other client to have, then what happens w/ AC privilege and whether the lawyer will have to w/draw or
not w/draw so you avoid problems after the fact that comes up in #2.
3. 2. This is the kind of info that would probably be materially related to the representation so the lawyer would
have a DUTY to tell the husband b/c its info related to dividing their assets and that now she wants certain
assets ‘hidden’ since she said not to tell the husband  the sis relevant and material info that puts lawyer in a
dilemma
a. First: look at joint client agreement about AC privilege  follow agreement and do what it says
b. If no agreement: lawyers wants to think about any other ways lawyer could disclose this info  is
there some exception so he can disclose to husband against wife’s wishes? (if she says you can tell him
then everything is ok)
c. 1.6(b) (3) MAY allow disclosure  problem/rub here is that we don’t know if this transfer would be
of substantial injury to the husband or not (could be minimal assets and thus have little effect on
husband) AND what is the fraud statute in this jurisdiction, aka would it amount to fraud what she is
trying to do?
d. If it did check out and allowed lawyer to disclose, lawyer could disclose to husband against wife’s
wishes  once you’ve done that the relationship may be so ruined that he can no longer competently
represent her, and if that’s the case the lawyer may have to w/draw, at which point she’d be a former
client and he would have to get informed consent from her to allow it.
e. If it did NOT check out: lawyer has to w/draw from joint representation b/c he can’t competently
represent the husband since he knows this info and can’t share it w/ him that is relevant  lawyer
could represent wife but he will be a former client and would have to get informed consent form him
also to be able to later represent the wife
4. 3. If they are asking to refresh about what lawyer learned during the joint representation, NO AC will exist and
can be forced to testify b/c there is NO AC privilege b/w joint clients if those convos were had b/w all clients in
an open conversation  let joint clients know this ahead of time that no AC privilege among themselves and
later end up inc conflict in litigation (but there is AC privilege to the rest of the outside world)
ii. Lawyer May Disclose Info the Mitigate Crime/Fraud
1. MR 1.6(b)(3): Allows lawyer to reveal confidential information to extent lawyer reasonably believes
necessary: (MUST BE USING LAWYER”S SERVICES)
a. 1.To prevent, mitigate or rectify;
b. 2.Substantial injury to the financial interests/property of another;
c. 3.That is reasonably certain to result or has resulted;
d. 4.From client’s commission of a crime/fraud;
e. 5. In furtherance of which client has used lawyer’s services
n. Former Clients:
i. Modified Problem 9-13, Part One: Three years ago, Martyn prepared tax returns for wife’s business in which she was the
sole proprietor. Husband now wants Martyn to represent him in a divorce. Can Martyn?
1. Relevant Rules/Reading: MR 1.9(a); 1.9, Cmt. 2; 1.9, Cmt. 3
35
2.
2.
Basic MR 1.9(a) question:
a. 1. Was wife former client?  YES
b. 2. Materially adverse to former client? -> YES, divorce is materially adverse
c. 3. Are they substantially related?  Probably YES, b/c it was tax matters before w/ business and
divorce now deals w/ assets  since it would be substantially related, representation of husband would
be a conflict BUT it is consentable so you’d have to get wife’s consent.
ii. MR 1.9(a): Lawyer who has formerly raped client cannot thereafter rep 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, in writing.
1. MR 1.9, comment 3: Substantially Related Matter: Matters are “substantially related” if they:
a. 1.Involve the same transaction or legal dispute; or
b. 2. If there is a substantial risk that confidential factual information as would normally have been
obtained in the prior rep would materially advance the client’s position in the subsequent
matter.
2. Substantially Related Matter:
a. The scope of the “matter” depends on the facts of a particular situation or transaction. MR 1.9,
comment 2
b. The lawyer’s involvement in a matter can be a question of degree. MR 1.9, comment 2
iii. Modified Problem 9-13, part 2: •What if, three years ago, Martyn only handled an employment discrimination claim for
the wife’s business?
1. Starting to not sound so substantially related and therefore would be no problem and don’t’ need informed
consent under 1.9(a);
2. BUT, also has to be sure that in employment discrimination case the lawyer didn’t learn confidential and
damaging information that would be relevant in the later litigation  see 1.9(c); if they learn something that is
confidential and would be adverse there is a new conflict under 1.7(a)(2) they would be unable to competently
represent current client b/c of former client’s interest (see the interplay section below)
3. MR 1.9(c):
a. Prevents lawyer from using confidential information gained while rap’s the former client to former
client’s disadvantage unless lawyer gets former client’s informed consent, the info has become
generally known, or some other MR 1.6 exception exists.
b. Prevents lawyer from also revealing conf. info.
c. Could raise MR 1.7(a)(2) conflict with new client.
4. Interplay b/w MR 1.9(c) and MR 1.7:
a. Even if no conflict under MR 1.9(a), rep can create a problem under MR 1.9(c) if lawyer actually
learned conf info.
b. Lawyer’s rep of new client may be materially limited by former client’s interests under MR 1.7(a)(2).
c. If so, probably cannot get informed consent from “each affected” client under MR 1.7(b)(4), because
you cannot share confidential information with new client. MR 1.7(b)(1) problem.
d. May become nonconsentable conflict under MR 1.7.
o. Advertising and Solicitation:
i. Problem 13-8: Can Martyn ask those who attend the seminar to hire the firm to draft a living trust? Does it matter if the
seminar is sponsored by a local not-for-profit organization?
1. Relevant Rules/Reading: MR 7.3; Utah State Bar Opinion
2. 1. No, you can’t do this.
3. 2. Yes, it does matter b/c US supreme court says it matters and that it’s political speech and that it’s ok to do it
as long as it’s not for profit
ii. Gray Areas:
1. Disciplinary investigations would generally take into consideration whether a lawyer stepped into a gray area
when determining a violation and/or sanctions
Some gray areas that we discussed in class for the Model Rules would be clarified when looking at a particular jurisdiction’s rules and
substantive law (like obstruction of justice).
36