Legal Profession outline
I.
Major Questions: Underlying issue – conflicting rules and duties (loyalty, confidentiality, candor)
a. Is your behavior permissible?
i. Does it subject you to discipline?
ii. Does it subject you to malpractice liability?
b. What should you do? And why?
c. Essay Framework
i. Under Rule x:
ii. Here, in this case, there is y
iii. Therefore: y is (not) a violation of rule x.
Answer: Lawyer may or is permitted to …, must …, is prohibited from …
d. Advice: Include rule itself as umbrella. Don’t go directly to the issue at hand.
I.e. state rule and Comment [?] to rule. Then answer.
i. “yes”, “no” or “maybe” should always start the answer.
ii. Break the rules down into their component parts. By applying each element, you can
maximize your points on the exam.
e. Focus is on the model rules. Esp issues we have talked about in class. With more emph on stuff
talked about more.
f. Outline organization: Duties or structure of the rules
i. Application of the rules.
II. Rule basics
a. Informed consent: MR1.0(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.
b. Reasonable belief: MR 1.0(i): that the lawyer believes the matter in question and that the
circumstances are such that the belief is reasonable.
c. Belief: MR 1.0(a): the person involved actually supposed the fact in question to be true. A
person’s belief may be inferred from the circumstances.
d. Reasonable: MR 1.0 (h): the conduct of a reasonably prudent and competent lawyer.
III. Admission to the Bar
a. State Supreme Court delegates authority to a Bar Admission Committee
b. Broad questions regarding any financial delinquencies and other issues of “fitness”
c. “Good moral character” defined in California’s business and professions code.
i. Honesty, Fairness, Candor, Trustworthiness, Observance of fiduciary responsibility, Respect
for/obedience to the law, Respect for rights of others and judicial process
ii. Especially ability to satisfy duty of candor in bar application itself. Affirmative duty to
disclose the necessary facts and any prior mistakes.
1. Dishonesty in the application can lead to disbarment.
iii. Criminal Violations
iv. Neglect of financial responsibilities: credit card debt, child support, bankruptcy
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v. Mental health and substance abuse. Less exclusion of “undesirables” now. Focus is on
professional ability to function.
vi. Controversial beliefs and memberships.
vii. Honesty: Criminal violations, Academic dishonesty, Mishandling of funds
1. No clever word-parsing on the application
IV. Unauthorized Practice of Law
a. Nonlawyer practicing law
i. Was it legal work?
1. Did it involve professional judgment and/or legal training, experience?
2. Was it done for someone else?
3. Then it’s practice of law.
ii. Key issues: Unsupervised and on behalf of another person
iii. Many things can be legal work when done by lawyers and not, when done by non-lawyers
b. Lawyer practicing in jurisdiction where not licensed
i. Lawyers are only permitted to practice in the states in which they are licensed.
ii. Partial solutions
1. Pro hac vice admission
a. Only applies to court appearances, not settlements
b. Time sequence, because you must practice before you appear in court.
2. Associate local counsel
a. Because local counsel will have to supervise, must be paid
b. Client pays two lawyers
iii. Birbrower: NY firm ended up with CA corporate client via a family relationship with an
existing client. This would not meet the requirements.
iv. This is the lawyer’s responsibility and can’t be placed on the client.
c. MR 5.5 Unauthorized practice of law
i. 5.5 (a) prohibition
ii. 5.5 (b) specifics about locating or advertising a law office if unlicensed
iii. 5.5(c) exceptions: “temporary basis” okay if one of the following
1. Comment [6] “recurring”, extends over a lengthy period of time. Ambiguity.
2. 5.5(c)(1) Associate local counsel, who must actively participate
3. 5.5 (c)(2) Admitted pro hac vice
4. 5.5(c)(3) If work that doesn’t require pro hac vice admission (e.g. arbitration or
alternative dispute resolution ) and work arises out of or is reasonably related to
lawyer’s practice in the jurisdiction where he is licensed.
5. 5.5(c)(4) Catchall provision. If work arises out of or is reasonably related to lawyer’s
practice in the jurisdiction where he is licensed.
6. Comment [14]: interprets arising out of or is reasonably related to.
a. represented client previously
b. Client has substantial contacts with lawyer’s jurisdiction.
c. Matter has substantial contacts with lawyer’s jurisdiction.
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d. L’s expertise in law that is uniform (e.g. federal law, two states with same UCC
provisions –weaker)
e. Pro bono/major disaster (post Katrina, relaxed some of these rules)
iv. 5.5(d) Exception allows in house counsel to practice nation-wide as long as the work is done
for the employer only.
V. Sources of the Law
a. Actual rules and obligations depend on where you’re licensed. Approved by local Supreme
Court. Model Rules have not been adopted everywhere.
i. Bar exam tests on the local rules.
ii. Trial courts have the authority to regulate the lawyers who practice before them
b. History
i. Canons of professional responsibility (1908). Very aspirational.
ii. Model Code of professional responsibility (1970). Three tiers. Last is rules.
iii. Model Rules (1983, 2001 and 2010 versions). Black letter law with interpretive comments.
1. Most states have adapted versions of the model rules. Not CA.
c. Model Rules Preamble and scope
i. Preamble: Aspirational description of what it means to be a lawyer and the importance of
the self-regulation of the legal profession
ii. Scope:
1. Model rules are not designed to be a basis for civil liability. Violation of a rule should
not create any presumption that a legal duty has been breached.
2. Violation of a rule may however be evidence of a breach of a standard of conduct.
d. Additional sources of regulation
i. Federal rules may apply
1. SEC rules (created by Sarbanes Oxley) apply to any lawyer providing advice in respect to
US securities laws.
2. IRS rules
3. Bankruptcy rules
4. Patent and Trademark rules
5. FRCP 11
ii. Federal courts have their own inherent ability to regulate and may at their choice follow the
model rules, the local state rules or their own rules.
iii. Conflicts: In theory federal rules pre-empt, in practice local bar decides at least until
appealed to federal court.
e. Sources of guidance (advisory only)
i. Restatement Third. Which is the first restatement of the law of prof. resp.
ii. Bar opinions. Advisory opinions from bar associations.
VI. Consequences of Violating the Rules
a. Actual sanctions vary from state to state. May include:
i. Fines: rare, except for restitution including client legal fees
ii. Private reprimand
iii. Public reprimand: a slap on the wrist. But you have to tell your clients.
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iv. Probation: Bar sets terms and conditions that must be met to avoid suspension.
v. Suspension
vi. Disbarment. Sounds severe, but not permanent, can petition for readmission.
b. Malpractice damages and criminal prosecution are also possible.
VII. Duties of Competence and Diligence
a. Competency
i. MR 1.1: must provide competent representation, including the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation
1. [ 1]: consider relative complexity and specialization of the matter
2. [2]: don’t need to have special training or prior experience
3. [4]: It is permissible to develop competence over the representation. (But there are
limits on ability to bill general research to clients.)
ii. In re Docking: novice lawyer represents 3 immigrants on felony charge. Outrageously bad
advice.
iii. Miller: didn’t have a clue how to probate a will. Alcoholic.
b. MR 1.3: Must act with reasonable diligence and promptness
i. [2]: includes a duty to control the workload.
c. MR 1.4: Communication: MR 1.4(3): must keep client reasonably informed
i. MR 1.4(4): Promptly comply with requests for information
d. Malpractice
i. Three possible foundations for malpractice suit
1. Tort (we focus on Tort)
2. Breach of fiduciary duty (Agency law)
3. Breach of contract due to incompetence (Contract law)
ii. Can you limit your liability?
1. Maybe. See MR 1.8(h). Your client may need independent representation to do so.
a. This is unlikely to be successful with an individual client.
b. It will usually work with a corporate client that has in-house counsel. (Without
limitations on liability the corporation might not be able to get low cost expert legal
advice, based for example on in-house counsel’s legal work.)
2. Case law shows that you can’t condition a fee settlement on an agreement with your
client not to file disciplinary charges.
iii. Tort liability
1. In order for there to be a duty, there must be a lawyer client relationship.
a. Where this is unclear, the question is whether a reasonable person in the client’s
position would think that the lawyer represents the client.
b. The duty may be expanded to non- clients whom client intends to benefit: eg.
Beneficiaries of will, or when an opinion letter is being drafted to be shown to a
specific client of the client
2. Standard of care: That of a reasonable professional.
a. For a lawyer who claims to specialize, it will be even higher.
b. Typically requires expert witnesses.
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3. Breach of duty:
a. If you violate a rule, this is typically ev of breach, but not presumption. See MR
Scope Comment [20].
b. But some courts allow violation of a rule to be “negligence per se” (conclusive).
c. If the effort was reasonable, a mistake is not likely to be a breach of duty.
4. Causation
a. The case within a case problem: Client must demonstrate
i. that representation was negligent and
ii. that the client would have prevailed in absence of that negligence
b. In criminal settings, most jurisdictions require that the D prove that they were
innocent – to show that the result would have been different.
c. In civil settings the standard is lower: the client just needs to prove that they would
have been better off with competent advice.
iv. Ineffective Assistance of Counsel
1. Where the issue in a criminal case is the Sixth Amendment right to counsel, the standard
is lower. Strickland sets the standard of demonstrating that
a. The lawyer’s performance was outside the wide range of professionally competent
assistance and
b. That the trial was fundamentally unfair by showing that there is a reasonable
probability of a different result.
v. A lawyer is required to know recent developments in the law. It is (almost) never
reasonable not to be up-to-date. Beware of the client who asks for a quick answer to a
quick question. See MR 1.2(c).
vi. MR1.2: Scope of Representation and Allocation of authority
1. MR 1.2(a): Must abide by client’s decision concerning objectives.
2. MR 1.2(c): May limit the scope of the representation if it is reasonable under the
circumstances and the client gives informed consent.
VIII. Entering and ending the attorney client relationship
a. Formation of the Attorney Client Relationship
i. When is an attorney client relationship formed?
1. This depends on standards in tort and contract law.
2. Scope Comment [17]: “principles of substantive law external to these rules determine
whether a client-lawyer relationship exists. Whether it exists for any specific purpose
can depend on the circumstances and may be a question of fact.”
3. The parties aren’t equal, as the lawyer has the fiduciary obligation to act in the client’s
best interests. These are contract obligations.
4. Ambiguities are resolved in favor of the client.
a. Need to be careful about how you welcome clients on a website, and what
information there is about when the relationship starts.
5. Offering any kind of legal advice (aside from a recommendation to consult another
lawyer) opens the door to an obligation.
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a. Especially advice like: “You have no case.” “This is the statute of limitations.” can get
you into trouble. Send a letter making everything clear.
ii. Some duties attach when you agree to consider entering the relationship.
1. But there is a unilateral communication exception: MR 1.18 Comment [2]. The client’s
expectations must be reasonable.
iii. Entity clients
1. In general the lawyer represents the entity, not the individuals with whom he
communicates. MR 1.13(a)
a. Corporate Miranda warning: Can’t cause the individual to reasonably believe that
you represent the individual, especially where the individual’s interests are adverse
to the entity’s. Have an affirmative duty to explain the identity of the client. MR
1.13(f).
b. In some cases it’s probably a good idea to let these individuals know that they
should seek independent representation.
2. Where a lawyer is hired only to form an entity, the “entity rule” can be applied
retroactively such that the lawyer is viewed as having represented only the entity, never
the individual.
3. While the lawyer may also represent the founders, etc. as individuals, the rules of dual
representation apply. MR 1.13(g).
b. Termination of the Lawyer Client Relationship
i. MR 1.16(a): Withdrawal is mandatory if
1. Representation will result in a violation of the rules of professional conduct or other law.
a. E.g. can’t take on a new client whose interests are adverse to current client – unless
terminate old client – see conflicts or client is trying to use you in some criminal or
fraudulent enterprise.
b. Note that there is no requirement to withdraw just because a client suggests illegal
conduct. Comment [2].
2. The lawyer’s physical or mental condition materially impair his ability to represent the
client, or
3. The lawyer is discharged.
a. A client has a right to discharge a lawyer at any time with or without cause.
Comment [4].
ii. MR 1.16(b): Withdrawal is permitted if
1. It is possible without material adverse effect on the interests of the client, OR
2. The lawyer reasonably believes that the client is persisting in criminal or fraudulent
activity,
3. The client has used the lawyer’s services to commit crime or fraud
4. The client insists on taking action that the lawyer finds repugnant
5. The client fails to fulfill client’s obligations and has been given reasonable warning
6. The representation will result in unreasonable financial burden on the lawyer or has
been rendered unreasonably difficult by the client, OR
7. Other good cause for withdrawal exists
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iii. MR 1.16(c): Once you have appeared in court, you must get the court’s permission to
withdraw – and may be required to continue representing the client, despite good cause for
withdrawal.
1. If the lawyer cannot explain to the court why he must withdraw (e.g. a demand for
unprofessional conduct), the lawyer’s statement that “professional considerations”
require termination should be sufficient. Comment [3].
iv. MR 1.16(d) You still have continuing obligations to your former client.
1. Reasonable notice
2. Allowing time for the employment of other counsel
3. Surrendering papers and property to which the client is entitled and
4. Refunding any advance payment that has not been earned/expense that has not been
incurred.
5. May retain papers to the extent permitted by other law.
v. Remember that you’re the fiduciary, so fairness tips in favor of the client. You can’t
withdraw over trivialities.
vi. Note that you’re permitted to withdraw if the client has committed crimes in the past, but
you’re required to withdraw if your representation will result in a violation of the law in the
future.
vii. Be careful of clients who think of you as “their lawyer” even though there is just a sequence
of independent projects. You need to be clear about the fact that relationship has ended.
MR 1.3 Comment [4]. Ambiguity is held against you.
viii. MR 6.2 Comment [1]. The lawyer’s freedom to select clients is qualified. Each lawyer has an
obligation to represent his “fair share” of unpopular matters and clients.
1. MR 1.2(b): Representation doesn’t constitute endorsement of views or opinions.
2. MR 1.2 Comment[5]: Representation should not be denied to people who are unable
to afford legal services.
3. MR 6.2(c): A lawyer doesn’t have to represent a client whose cause is repugnant to him.
ix. But MR 8.4(d) Comment [3]: A lawyer who in the course of representing a client, knowingly
manifests by words or conduct, bias or prejudice based on race, sex, religion, national origin,
disability, age, sexual orientation or socioeconomic status, violates paragraph d, when such
actions are prejudicial to the administration of justice.
IX. Decisionmaking in the Lawyer Client Relationship
a. MR 1.2(a): A lawyer must abide by the client’s decisions concerning the objectives of
representation, including
i. Whether to settle a matter
ii. In a criminal case
1. The plea to be entered
2. Whether to waive a jury trial
3. Whether the client will testify
iii. A lawyer must consult with the client as to the means by which the objectives are to be
pursued.
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iv. Comment [2]: Typically clients defer to lawyers regarding the means, particularly with
respect to technical, legal or tactical matters, and lawyers defer to clients regarding the
expense and concern for third parties. Mutually acceptable resolutions should be sought to
any disagreement; if there are fundamental problems, the lawyer may withdraw or the
client may fire him.
b. MR 1.3 Diligence
i. Comment [1]: The lawyer doesn’t have to press for every advantage. His duties do not
require offensive tactics or preclude the treatment of all persons with courtesy and respect.
ii. Comment [3]: A lawyer may agree to a reasonable request for postponement that does not
prejudice the lawyer’s client.
c. MR 2.1 Lawyer as advisor: A lawyer shall exercise independent professional judgment and
render candid advice, taking into account moral economic social and political factor, if they are
relevant.
d. MR 1.2(d): A lawyer must not counsel a client to engage, or assist a client, in conduct that the
lawyer knows is criminal or fraudulent, but may discuss the legal consequences of any course of
conduct with the client and may assist the client to make a good faith effort to determine the
validity, scope, meaning or application of the law.
X. Clients with Disabilities and Third Party Payers
a. Clients with disabilities
i. MR 1.14(a): Required to maintain a normal client-lawyer relationship as far as possible.
ii. MR 1.14(b): If lawyer reasonably believes that there is a risk of substantial physical, financial
or other harm and cannot adequately act in the client’s own interest, the lawyer may
consult with those who have the ability to protect the client or seek appointment of a
guardian ad litem, conservator or guardian.
iii. MR 1.14(c): The client is still protected by Rule 1.6 and the lawyer is impliedly authorized to
reveal information only to the extent reasonably necessary to protect the client’s interests.
iv. Comment [2]: Must maintain communication with the client.
v. Comment [3]: Must look to the client, and not family members, to make decisions on the
client’s behalf. Must keep client’s interests foremost.
b. Third Party Payers
i. It’s okay as long as you can maintain your loyalty to the client.
ii. MR 1.8(f): A lawyer may accept compensation from a party other than the client if:
1. The client gives informed consent
2. There is no interference with the lawyer’s independence of professional judgment or
with the client-lawyer relationship.
3. Information relating to representation of a client is protected as required by Rule 1.6
iii. MR 5.4(c): One who recommends, employs or pays the lawyer to render legal services for
another must not be permitted to direct or regulate the lawyer’s professional judgment in
providing such legal services.
XI. The duty to protect information
a. Distinguish from Lawyer Client Privilege (ACP) from evidence law
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i. This is not a duty, but a rule of evidence that allows the lawyer or his client to refuse to
answer questions. It prohibits the court from compelling you to reveal confidential
information.
ii. Five criteria
1. Client
2. Communicates
3. Confidentially
4. With counsel
5. To obtain counsel (or legal advice)
iii. The application of the privilege is limited and where there’s ambiguity courts are likely to
find that there is no privilege.
iv. You can be compelled to reveal information that is protected by the duty of confidentiality,
when it is not protected by ACP. But not v.v. In fact, everything protected by ACP is
protected by the duty of confidentiality.
v. The underlying facts are not protected.
vi. The privilege may be waived if:
1. Privileged material is disclosed to someone who is not privileged.
a. Elevator talk
b. Leaving things lying around
c. Failure to object to a discovery request
2. Once part of a privileged communication is disclosed, all communications on the same
subject matter lose the privilege.
vii. Exceptions to the privilege
1. Testamentary Exception: Implicit waiver where the disclosure would further the client’s
testamentary intent. (e.g. family battle over will.)
2. Crime Fraud Exception: The privilege is lost when a client knowingly seeks legal counsel
to further a continuing or future crime.
a. But not when he proposes a course of conduct and is advised by counsel that it is
illegal.
b. Note that it is the client’s “knowledge” that matters, not the lawyers.
c. The privilege is only lost with respect to those communications that were in
furtherance of the crime.
viii. Why is there a privilege?
1. Trust in lawyer’s silence allows client to be honest and give lawyer all the facts. This
may be necessary to successful representation.
2. Protecting a sphere of privacy against government intrusion
3. Facilitating legal advice that will bring clients into compliance with the law.
b. Distinguish from Work product immunity from procedure
c. Duty of confidentiality (MR 1.6) in part from law of agency. These duties exist due to agency
law. Not because they’re in the model rules.
i. This duty is very broad: “information relating to the representation of your client.” It
prevents the lawyer from talking about (the details of) his cases to others.
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ii.
iii.
iv.
v.
vi.
vii.
1. Confidentiality applies to information that you learn from third parties, whether or not
it is privileged, even if the client didn’t request confidentiality. It applies to all
information relating to the representation, whatever its source. Comment [3].
2. It includes disclosures that could reasonably lead to the discovery of protecting
information by a third person. Comment [4]. Properly constructed hypos are okay,
however.
3. It’s not clear whether the identity of the client is protected.
The basic rule is: absent consent, you are not allowed to reveal the information.
Traditional view when faced with a manager committing fraud: Reporting up is okay,
reporting out is not. This is hotly disputed by legal ethicists.
Inadvertent or unauthorized disclosure may put a lawyer’s competence in question.
Comment [16].
1. Disclosure of the metadata in a lawyer’s files is a breach of the duty of confidentiality.
But disclosure of the metadata in the client’s files during discovery may be required.
Special security measures not required, if the method of communication affords a
reasonable expectation of privacy. Comment [17]. When in doubt, get informed consent.
Observe that Rule 1.6(b) allowing disclosure is permissive, not mandatory. And if there is a
solution to the problem that doesn’t involve revealing information, then the exception
won’t apply.
MR 1.6 Confidentiality of information
1. MR 1.6(a): A lawyer must not reveal information relating to the representation of a
client, unless
a. The client gives informed consent
b. The disclosure is impliedly authorized in order to carry out the representation (e.g.
disabled client, admit facts that can’t be properly disputed, make a disclosure that
facilitates a satisfactory conclusion, communicating with opposing counsel, or within
a firm) or
c. The disclosure is permitted by (b)
2. MR 1.6(b): A lawyer may reveal information relating to the representation of a client to
the extent the lawyer reasonably believes necessary:
a. To prevent reasonably certain death or substantial bodily harm
i. “a present and substantial threat” of future harm in the absence of action is
sufficient. Comment [6].
b. To prevent the client from committing a crime or fraud that is
i. reasonably certain to result in
ii. substantial injury to the financial interests or property of another and
iii. in furtherance of which the client has used or is using the lawyer’s services
c. To prevent, mitigate or rectify
i. substantial injury to the financial interests or property of another that is
ii. reasonably certain to result or has resulted from
iii. the client’s commission of a crime or fraud
iv. in furtherance of which the client has used the lawyer’s services
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viii.
ix.
x.
xi.
xii.
xiii.
d. To secure legal advice about the lawyer’s compliance with these rules
e. To establish a claim or defense on behalf of the lawyer …
i. May disclose if necessary to prove services rendered and collect fee. Comment
[11].
f. To comply with other law or a court order (e.g. MR 3.3).
3. Note that the disclosure is only “to the extent the lawyer reasonably believes
necessary.” As little as possible, but open to interpretation.
4. MR 1.6 (b)(2) requires disclosure before the act is committed. MR 1.6 (b)(3) allows
disclosure where the lawyer learns of it after it has occurred.
5. Where the fraud was accomplished without the lawyer’s services, the lawyer has no
authority to disclose.
Use of information
MR 1.8(b): A lawyer must not use information relating to representation of a client to the
disadvantage of the client unless the client gives informed consent, except as permitted or
required by these rules.
1. Observe that you can’t use the information to the client’s disadvantage – even if you
don’t reveal it.
2. But you can use it if it doesn’t disadvantage the client. Comment [5].
Prospective clients protected from use or revelation of information
MR 1.18(b): Even when no client-lawyer relationship ensues, a lawyer who has had
discussions with a prospective client shall not use or reveal information learned in the
consultation, except as Rule 1.9 would permit with respect to information about a former
client.
Former clients protected from use or revelation of information
MR 1.9(c): A lawyer who has formerly represented a client in a matter or whose present or
former firm has formerly represented a client in a matter must not there after:
1. Use information relating to the representation to the disadvantage of the former client
except
a. As these rules permit or require or
b. When the information has become generally known
2. Reveal information relating to the representation except as these rules permit or
require.
Note that all but Rule 1.6 are made subordinate to the other rules.
Rules that require disclosure even if MR 1.6 would be violated:
1. MR 3.3(a), (b): Candor to the Tribunal
Rules that require disclosure only if MR 1.6 permits:
1. MR 1.2(d): No counseling to or assisting in fraud. This may require disaffirming
opinions, documents or affirmations. Comment [10].
2. MR 4.1(b): A lawyer must not knowingly fail to disclose a material fact when disclosure
is necessary to avoid assisting a criminal or fraudulent act by a client.
3. MR 8.1: In connection with an application for admission to the bar or with a disciplinary
matter a lawyer must not fail to disclose a fact necessary to correct a misapprehension.
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4. MR 8.3: Reporting professional misconduct.
xiv. Effectively these rules amount to the statement that lawyers cannot use the disclosure rules
to justify concealment of a criminal act or fraud.
xv. Under the California rules, the only exception to the duty of confidentiality is that the lawyer
may reveal confidences to the extent the lawyer reasonably believes it is necessary to
prevent a criminal act that is likely to result in the death of or substantial bodily harm to an
individual.
1. Requires prevention of a criminal act
2. Substantial bodily harm.
XII. Duties to Third Parties
a. MR 4.1: Truthfulness in statements to others. MR 4.1(b) includes failure to disclose a material
fact if necessary to avoid assisting a client’s fraud or crime and if permitted by MR 1.6(b)
b. MR 4.2: in representing a client, a lawyer must not communicate about the subject of the
representation with a person the lawyer knows to be represented by another lawyer in the
matter, unless he has the consent of the other lawyer, or is authorized to do so by law or by
court order.
i. To protect lawyer’s clients from release of confidential information or unfavorable
settlement negotiations.
ii. The client cannot waive this “protection” or consent to such communications. Comment
[3]. A lawyer must terminate such communications, even if the client initiated the contact.
iii. The client pretty much has to fire his lawyer to get control over this decision.
iv. A lawyer who talks to the opposing client is likely to end up with a conflict of interest that
precludes him from representing his own client. Disqualification from representation would
be a standard outcome.
v. “knows” refers to actual knowledge and can be inferred from the circumstances. Cannot
close his eyes to the obvious. Comment [8].
c. MR 8.4(a): It is professional misconduct for a lawyer to violate or attempt to violate the rules of
professional conduct … or to do so through the acts of another.
i. You can’t get around the rule by using a third party.
d. While a lawyer can encourage his client to talk to the other client, and even give advice on how
to handle the conversation, the lawyer can’t direct the communication. Comment [4]
i. Definitely can’t write up a document and ask your client to get the other party to sign.
e. The authorized by law exception is generally read very broadly to permit government lawyers to
direct criminal investigations.
f. Entity clients with representation: Cannot communicate with someone who
i. supervises, directs or regularly consults with the organization’s lawyer concerning the
matter; or
ii. has authority to obligate the organization wrt matter; or
iii. whose act or omission in connection with the matter may be imputed to the organization
for purposes of civil or criminal liability.
g. Entity clients with representation: Can communicate with a former employee. Comment [7].
h. MR 4.3: Dealing with an unrepresented person, while working on behalf of a client.
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i. Must not state or imply that he is disinterested.
ii. Must make reasonable efforts to correct any misunderstandings.
iii. If there is a reasonable possibility of a conflict with the lawyer’s client, the lawyer must not
give legal advice, aside from the advice to secure counsel.
i. This rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a
dispute with an unrepresented person – as long as the lawyer has explained that he represents
an adverse party and is not representing the person. Comment [2].
XIII. Duty of loyalty
a. Concurrent Conflicts of Interest: MR 1.7(a) A lawyer must not represent a client if the
representation involves a concurrent conflict of interest, which exists if:
i. The representation of one client will be directly adverse to another
ii. There is a significant risk that the representation of one client will be materially limited by
the responsibilities to another client, former client, a third person, or a personal interest of
the lawyer.
iii. MR 1.7(b) If the concurrent conflict is consentable, a lawyer may represent the client if:
1. The lawyer reasonably believes that he will be able to provide competent and diligent
representation to each affected client
2. The representation is not prohibited by law
3. The representation does not involve the assertion of a claim by one client against
another client represented by the lawyer in the same litigation or proceeding before a
tribunal, and
4. Each affected client gives informed consent, confirmed in writing.
iv. Resolution of a conflict of interest requires the lawyer to: Comment [2]
1. Clearly identify the client or clients
2. Determine whether a conflict of interest problem exists
3. Decide whether the representation may be undertaken despite the existence of a
conflict (i.e. whether the conflict is consentable).
4. If so, consult with the clients affect and obtain their consent confirmed in writing.
v. MR 1.7 applies only to current clients. What if you haven’t done work for a client in a year?
Remember that ambiguity is interpreted in favor of the client.
1. Does it matter? Do you have confidential information that affects the case even if from
a former client?
2. Can you drop a client like a hot potato? Most jurisdictions say no. The termination
should be unrelated to the new adverse case.
3. Typical example is where two law firms merge and end up representing adverse
interests: Likely to have to withdraw from both. But might be able to get consent.
vi. Unforeseeable developments may create conflicts in the midst of a representation. The
lawyer may have the option to withdraw from one of the representations to avoid the
conflict. Comment [5]. The lawyer may be forced to withdraw from representing all the
clients if the multiple representation fails. Comment [29].
vii. Conflicts are possible wherever there is dual representation. The lawyer should explain the
possibilities and get informed consent, confirmed in writing.
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1. The lawyer must explain the effects on loyalty, confidentiality and the attorney-client
privilege. Comment [18].
2. Loyalty: Equal duty of loyalty to each client. Thus an obligation to use any information
to each client’s advantage. Comment [31].
3. ACP: If litigation arises between the clients, attorney client privilege will not protect any
related communications. Comment [30].
4. Confidentiality: Where there is dual representation, the lawyer is precluded from
keeping one party’s information secret from the other – they are treated as a single
client. Such a demand will likely lead to the lawyer’s withdrawal. Comment [31]. Rarely
there can be agreement with informed consent to keep some information confidential –
e.g. trade secrets.
5. Where appropriate disclosure is impossible, so is consent.
6. If a client revokes consent, you will probably have to withdraw. Whether you must
withdraw from representing the other client depends on the circumstances. Comment
[21].
7. Whether representation of coplaintiffs or codefendants in a civil matter is permitted is
governed by MR 1.7a2 and the likelihood that potential adverse interests develop – if
there are clear signs of adversity already, dual representation is likely to be prohibited.
Comment [23].
8. Representation of two sides in a divorce may be prohibited, because it’s filed as a
lawsuit, H v W, even if amicable.
9. Ordinarily common representation of multiple Ds in a criminal case raises the potential
of such severe conflicts that a lawyer should decline joint representation.
10. Example: Represent both buyer and seller in a matter (i.e. they already have an
agreement). But you also know something that only one of the parties knows – likely to
force you to reject the representation – because appropriate disclosure is impossible.
viii. What does “directly adverse mean?
1. Broadly interpreted. Clients can’t be on opposite sides even across different lawsuits, in
the absence of consent. (Because it’s easy to imagine the relationship affecting the
quality of the representation.) Comment [6].
a. However, simultaneous representation
i. in unrelated matters of clients whose
ii. interests are only economically adverse (e.g. as competitors) does not ordinarily
constitute a conflict of interest and does not require consent.
iii. But do you need to worry about material limitations? Weigh this carefully. It’s
safer to get consent.
b. But if there is direct adversity between a prospective client and an existing client
(represented wrt a different matter) in a specific business transaction, informed
consent of both parties is required. Comment [7].
ix. What does “materially limited” mean?
1. The critical questions are:
a. The likelihood that a difference in interests will eventuate
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b. If it does, whether it will materially interfere with the lawyer’s independent
professional judgment in considering alternatives or foreclose courses of action that
reasonably should be pursued on behalf of the client.
x. When are conflicts non-consentable?
1. When the lawyer cannot reasonably conclude that he will be able to provide competent
and diligent representation. Comment [15].
2. When it is not permitted by substantive law (e.g. joint representation of two Ds in a
capital case). Comment [16].
3. In theory a lawyer can represent both sides in a mediation, but in practice the lawyer
needs to “reasonably believe” that he can do so effectively. Comment [17].
xi. Consent to future conflicts: Valid only if the future conflict was fully explained to the client.
Vague explanations would make the consent invalid. Comment [22]. And all four of the
conditions in MR 1.7b must be met.
xii. Ordinarily you may take conflicting positions on legal issues in different cases, but if there is
a significant risk that a decision (you are arguing for) will create a precedent adverse to a
client – and materially limiting the lawyer’s effectiveness – then informed consent is
necessary. Comment [24]. In CA just need to give notice.
xiii. Close family relationships between opposing lawyers also require informed consent – but
these do not extend to other members of a firm. Comment [11].
b. Personal Interest Conflicts: the details of “a personal interest of the lawyer”
i. MR 1.8(a): Business transactions with or adverse to a client are prohibited unless: (The
issue here is your fiduciary duty)
1. The transaction and terms are fair and reasonable and fully disclosed in writing in a
manner that the client can understand.
2. Client is advised in writing of the advisability of consulting independent legal counsel
and given reasonable opportunity to do so
3. Client gives informed consent in writing, signed by the client to the terms of the
transaction and the lawyer’s role in it (explicit if lawyer is representing client in the
transaction).
4. Does not apply to lawyer’s fees, but must be met when a lawyer accepts an interest in a
client’s business as payment of fees. Comment [1]. Does not apply to standard
commercial transactions with clients in that line of business, because it would be
impractical.
5. Fairness and reasonableness of the fee should be valued at the time the transaction
took place, so stock interests that are risky, but end up extremely valuable should be
okay.
ii. MR 1.8(b): Use of client’s confidential information to the disadvantage of the client is
prohibited, unless client gives informed consent, or permitted or required by these rules.
1. Use is not prohibited if it does not disadvantage the client. Comment [5].
2. Note that where your use of the client’s information is related to the work for the client,
you should analyze MR 1.8 and MR 1.7 just to be safe.
iii. MR 1.8(c): Substantial client gifts to lawyers and lawyer family members are prohibited if:
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1.
2.
3.
4.
iv.
v.
vi.
vii.
viii.
Solicited by the lawyer
Gifted in an instrument prepared by the lawyer
Exception: close, familial relationship
A gift may be accepted if it meets general standard of fairness. A substantial gift may be
accepted, but may be voidable as presumptively fraudulent. Comment [6].
5. If a client wants to give you a gift in a will, advise her to get another lawyer to draft it for
her, so she has independent advice. Comment [7].
MR 1.8(d): Gaining literary and intellectual property rights to a portrayal substantially
related to the representation is prohibited, prior to the conclusion of the representation.
1. However, if you are negotiating the sale of literary property, your fee can consist of a
share in the property. Comment [9].
MR 1.8(e): No financial assistance to a client in connection with potential litigation, except
1. May advance court costs and expenses with repayment contingent on outcome
2. May pay court costs and expenses for indigent client.
3. Can’t give loans to clients for living expenses, because this would subsidize lawsuits.
Comment [10].
MR 1.8(f): Third party payers are prohibited unless
1. The client gives informed consent
2. No interference with independent professional judgment or with client-lawyer
relationship
3. Confidential information is protected as per MR 1.6.
4. Given conflicts, safest to remember who is the client.
5. May be safest to treat this as a situation with potential conflicts (especially if the payer
is also a client) and get consent as per MR 1.7b.
MR 1.8(h): Limitations on malpractice claims
1. Agreements prospectively limiting the lawyers liability for malpractice are okay only if
the client has independent representation when making the agreement.
2. Malpractice settlement with an unrepresented (former) client is okay only if the client
was advised in writing of the desirability of having independent counsel’s advice and
given opportunity to get such advice.
MR 1.8(j): Sexual relations with a client are prohibited unless a consensual sexual
relationship existed between them when the client lawyer relationship commenced.
1. Broad prohibition due to the importance of the lawyer’s fiduciary role, the unequal
relationship, the problem of independent professional judgment and the complications
to the attorney client privilege. Informed consent is not adequate here. Comment [17].
2. Even if the sexual relationship predates the lawyer-client relationship, need to consider
whether the representation will be materially limited, MR 1.7b. Comment [18]
3. When the client is an organization, the rule prohibits sex with someone who supervises,
directs or regularly consults with the lawyer wrt the organization’s legal matters.
Comment [19].
4. Note that the Model Rules don’t prohibit sex between the D and prosecution lawyers –
unless they’re married. Hmm.
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c. Consecutive Conflicts
i. MR 1.9a: Representation of someone in a matter where his interests are materially adverse
to those of former client who was represented in the same or a substantially related
matter is prohibited unless
1. The former client gives informed consent, confirmed in writing.
2. The issue here is whether there is a substantial risk that you obtained confidential
information that would materially advance your current client’s position
ii. MR 1.9b: Prohibits knowing representation of someone in the same or a substantially
related matter, in which a firm with which you were formerly associated had previously
represented a client
1. Whose interests are materially adverse to that person and
2. About whom the lawyer acquired confidential information that is material to the
matter.
3. Unless the former client gives informed consent, confirmed in writing
iii. MR 1.9c1: Use of information relating to the representation of a client, or the client of a
former firm, must not be made to the disadvantage of the former client, except
1. As the rules permit or require or
2. When the information has become generally known.
3. MR 1.9c2: Revelation of information relating to the representation of a client, or the
client of a former firm, except as the rules permit or require.
iv. The underlying question is whether the lawyer was so involved in the matter that the
subsequent representation can justly be regarded as a changing of sides in the matter in
question. Comment [2]
1. Examples: Can’t rescind on behalf of a new client, a contract drafted on behalf of a
former client. Comment [1].
2. If you represented multiple clients in a matter, you can’t then represent one client
against the others in a substantially related matter – unless you have informed consent.
v. Matters are “substantially related” if **Comment [3] **
1. They involve the same transaction or legal dispute OR
2. There is a substantial risk that confidential factual information that would typically have
been acquired in the prior representation would materially advance the client’s position
in the subsequent matter. Comment [3]. See examples.
a. The primary question is: Is there likely to be inappropriate use of confidential
information?
b. If you were hired BECAUSE of the confidential information you have, well, that’s a
problem. (e.g. representing a former client’s spouse in a divorce, when you know all
his business info.)
vi. “material adversity” relates to the material limitations on representation in MR 1.7. E.g. if
confidentiality prevents you from using the facts for the current client, you are violating one
of your duties to one of your clients. Loyalty vs. Diligent advocacy
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vii. Note that MR 1.9b requires that you ACTUALLY received material confidential information.
This is a fact-based inquiry and completely different from the “substantial relationship” test
that looks at the risk that confidential information was acquired.
viii. Note that MR 1.18c and d address the issue of when information received from prospective
clients prevents a lawyer from taking a case.
d. Imputed Disqualification
i. MR 1.10a: When currently practicing with other lawyers, if one would be prohibited from
representing a client by MR 1.7 or MR 1.9, then all are, unless
1. The prohibition is based on a personal interest, that won’t materially limit the other
lawyers or
2. Arises out of association with a prior firm + Screening.
ii. MR 1.10b: Once a lawyer has left, the firm is not prohibited from representing clients
whose interests are materially adverse to the former employee’s clients, unless:
1. The matter is the same or substantially related, AND
2. Any lawyer in the firm has material confidential information
iii. MR 1.10c: A disqualification under this rule may be waived by the client if the conditions in
MR 1.7 are met.
iv. MR 1.8(k): When currently practicing with other lawyers, a prohibition that applies to one
lawyer under MR 1.8 applies to all of them (except for sex).
v. When does “personal interest” impute: If for example it’s a business interest of a partner in
the firm and personal loyalties will interfere. Does not impute if it’s a matter of strong
political beliefs and the other lawyers are not limited by these personal beliefs. Comment
[3]. What about when a lawyer is discussing employment with an opposing party or firm?
vi. Observe that the rules say that conflicts impute once and not more than once.
XIV. Fees and Fiduciary Duties
a. MR 1.5a: Fees must not be unreasonable nor may unreasonable amounts be charged for
expenses. Factors to consider:
i. Time, labor and skill required, novelty and difficulty
ii. Opportunity costs
iii. Customary fees in the locality
iv. Amount involved and the result obtained
v. Time limitations imposed by client or circumstances
vi. Nature and length of the professional relationship with the client
vii. Experience and ability of lawyer
viii. Whethe
r fixed or contingent
b. MR 1.5b: Fees must be communicated, preferably in writing, unless a regular client is charged
the same regular rate.
c. MR 1.5 c: Contingent fees must be in writing and signed by the client. They must include details
of calculation, what expenses client must pay, whether they are subtracted before or after
lawyer’s fees, etc.
i. MR 1.5d: No contingency fees for divorce, alimony, support or criminal cases.
d. Expenses must be either agreed in advance or a reasonable reflection of costs.
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e. Contingency fees: Pro allows claims for clients who can’t pay to be made by a lawyer who is
willing to take the risk; Con diverging interests, client may want to go to court while lawyer
wants to settle, etc.
f. MR1.15a: Client property must be held in separate account. Complete records must be kept
and held
i. MR1.15c: Advance payments are deposited in a client trust account and fees/expenses
withdrawn as earned/incurred.
ii. MR 1.15d: Must promptly notify client of receipt of funds or property in which the client
has an interest. Promptly deliver. Promptly render full accounting.
g. Mishandling client money is the most certain means of getting disbarred.
h. If your office staff mishandles money, you are subject to discipline if you didn’t properly
supervise your staff. MR 5.3b.
XV. Advocacy
a. The trilemma: Competent representation (including knowing all the facts), Confidentiality and
Candor to the Court. Which trumps?
i. Model rules say: Candor to the court
b. Duty to Avoid Frivolous Claims and Egregious Trial Strategies
MR 3.1: No frivolous claims
i. Comment [2]: frivolous if unable to make a good faith argument on the merits or to support
the action by a good faith argument for an extension, modification or reversal of existing
law.
c. MR 3.2: Reasonable efforts to expedite litigation
i. Comment[1]: Delay is not permissible solely for the convenience of the lawyers, or to
frustrating an opposing party’s attempt to get rightful redress or repose.
There must be a substantial purpose other than delay. Reasonably lawyer standard.
d. Duty of Candor to the Court
MR 3.3: Candor toward the tribunal
i. MR 3.3a1: Knowingly lying to the court is prohibited, as is failing to correct a previous false
statement
1. Your arguments and motions cannot misrepresent the facts.
ii. Duty to Disclose Contrary Authority
MR 3.3a2: Knowing failure to disclose controlling legal authority is prohibited.
1. This is often interpreted broadly: Would a judge consider this authority important?
2. As long as the opposing counsel raises the authority, you don’t have a duty.
iii. MR 3.3a3: Knowingly offering evidence that you know to be false is prohibited.
1. May refuse to offer evidence that he reasonably believes is false (unless it’s a criminal
defendant’s testimony).
2. If he learns that false evidence has been presented, he must take reasonable remedial
measures, including, if necessary, disclosure to the tribunal.
iv. MR 3.3b: If a lawyer knows that someone intends to offer false evidence, must take
reasonable remedial measures, including, if necessary, disclosure to the tribunal.
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v. MR 3.3c: These duties continue to the conclusion of the proceeding and trump the
protections of MR 1.6.
vi. The prohibition on offering false evidence only applies if the lawyer knows the evidence is
false. A lawyer’s reasonable belief that evidence is false does not preclude it’s presentation
to the trier of fact. Because knowledge can be inferred from the circumstances, the lawyer
may not ignore an obvious falsehood. On the other hand, doubts should be resolved in
favor of the client. Comment [8].
vii. Remedial measures if the client intends to lie: First try to convince the client not to offer
false evidence. Then, refuse to offer that false evidence. May not elicit or permit the
witness to offer false testimony. Comment [6]
viii. If the client insists on lying, typically the lawyer seeks to withdraw. If the client has already
lied or lies on cross-examination, the lawyer must tell the tribunal.
ix. Remedial measures if the client has lied: Comment [10]
1. Remonstrate with the client confidentially, advise the client of the lawyer’s duty of
candor, seek cooperation wrt withdrawal or correction of the false statements.
2. If withdrawal is not permitted, or will not undo the false evidence, the lawyer must
make such disclosure to the tribunal as is reasonably necessary to remedy the situation
– even if it requires revealing confidential information.
3. The court decides what should be done: statement to the trier of fact, order a mistrial
or nothing.
x. The duty of candor terminates at the conclusion of the proceeding = when a final judgment
has been affirmed on appeal or the time for appeal has ended. Comment [13].
xi. Where local rules allow a D to give narrative testimony when the lawyer knows it to be false,
the model rules permit it. Comment [7].
e. MR 3.4: Fairness to opposing party and counsel
i. MR 3.4a: Duty not to tamper with or hide evidence.
ii. Duty not to Counsel Client to Commit Fraud
MR 3.4b: Can’t counsel a witness to testify falsely.
iii. MR 3.4e: Assertion of personal knowledge of the facts is prohibited.
1. Can’t say: “How can you believe this witness? Based on my experience of years
listening to witnesses testify, it is clear to me that this witness is lying. I don’t believe
him. Can you?”
f. MR 3.5: Prohibition against seeking to influence judges and jurors.
g. MR 3.6: Must not make a public statement that is likely to materially prejudice the trial.
h. MR 3.7: Must not represent a client at trial, where he is likely to be a witness. A few exceptions
i. MR 3.8: Special responsibilities of the Prosecutor.
XVI. Duty of Candor (to Others)
a. MR 4.1: Prohibition against false statement to third parties and failure to disclose facts
necessary to avoid assisting in crime or fraud unless disclosure is prohibited by MR 1.6.
i. Note that this may mean that disclosure is required if it is necessary to avoid assisting a
crime or fraud. Comment [3]
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b. MR 4.4: If it embarrasses or burdens, it is permitted as long as you have some other purpose
too.
XVII. Law firms and associations
a. MR 5.1: Responsibilities of supervisory lawyers include ensuring that all lawyers in the firm
conform to the Rules. In some cases supervisors are responsible for subordinate misconduct.
b. MR 5.2: Responsibilities of subordinate lawyers
i. MR 5.2a: Lawyer must follow rules.
ii. MR 5.2b: No violation if acts in accordance with a supervisor’s reasonable interpretation of
professional duty.
c. MR 5.3: Responsibilities to ensure that non-lawyer assistants act in compliance with the Rules.
d. MR 5.4: Professional independence. No fee-sharing with non-lawyers. Or control of the
lawyers professional judgment by third-party payers or non-lawyers.
XVIII. Misconduct and the reporting of professional misconduct
a. MR 8.3: violations of the Rules by other lawyers that raise substantial questions as to that
lawyer’s honesty, trustworthiness or fitness as a lawyer shall inform the professional authorities.
b. MR 8.4c,d: It is misconduct to engage in dishonesty, fraud deceit or misrepresentation. Or to
engage in conduct that is prejudicial to the administration of justice.
i. These are so broad they are almost unenforceable. Thus, best used to support another
claim.
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