LAWYERS/ETHICS/ADVERSARY SYSTEM ----------------------o Introduction
o Ethics Rules = created by legal pros (role based)
o Legal Rules = created by legislature (trump any ethics rules)
o Dominant View
o Lawyer must pursue ANY client goal, through ANY legal course
of action
o Lawyer must assert ANY non-frivolous claim
o Contextual View
o Lawyers take action that promote justice
o Lawyers consider right/wrong
o Lawyers are Advisors (M.R. 1.2)
o Holmes View
o Client wants to know risk of legal problems
o Client wants prediction of what can get away w/
o Client does not want morality, just assessment
o EX: Zimmerman v. Spaulding: П doctor failed to see aneurysm; Δ’s
doctor found it, but didn’t reveal; П later hurt from aneurysm; Δ’s
doctor NOT liable for concealing report of injury during discovery
phase, but should have revealed during settlement proceeding; П
could have sued his own doctor/lawyer for malpracticeA
o Courts won’t set aside judgment – unless by fraud, mutual mistake,
or concealment from court – because a lawyer has concealed
adverse evidence from the opposing party
o Affirmative lying is unacceptable
o BUT, Lawyers don’t have to volunteer info to adversaries
o Volunteer info may be unethical breach of confidentiality
o BUT, Lawyers may be obligated to reveal info after discovery
period ends, during settlement
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ATTORNEY-CLIENT RELATIONSHIP -----------------------------o Nature of Relationship
o M.R. 1.4: Communication
 Lawyer must be prompt; reasonable re means to objective;
reasonable informed; reasonable explain; if exigency requires
action, tell client ASAP; Explain matter to extent reasonably
necessary
 BUT, if client, no need tell all members, only rep.
o M.R. 1.2: Scope of Representation
 (d) No counsel client to engage or assist in fraud/crime
 (d) BUT, may discuss course conduct/legal conseq.
o M.R. 1.16: Declining or Terminating Representation
 (a) Mandatory Withdrawal: Lawyer shall withdraw if:
 Representation will result in ethics rule violation
 Lawyer physical/mental materially impair ability
 Lawyer is discharged
 (b) Non-Mandatory Withdrawal:
 If can do w/out material adverse effect on client, AND
 Client uses services/involved in crime
 Client uses lawyer to perpetuate crime/fraud
 Client pursues course lawyer determines imprudent
 Client fails substantially to fulfill obligation and client given
reasonable warning that withdrawal will ensue
 Rep will result in unreason finance burden on lawyer
 Rep has been rendered unreasonably difficult by client
 (c) When court ordered
 (d) Upon termination, lawyer take reasonable steps to protect
client’s interest, such as reasonable notice, allowing time to
employ other counsel, surrendering papers, reducing
advance payment
 Client may discharge lawyer at any time – with or without
cause – unless client has diminished capacity or other nonmitigating factor
 Even if lawyer has been unfairly discharged, must still mitigate
any harmful consequences to client
 Cannot K out of the right to be discharged
o Scope of Lawyer’s Authority
o M.R. 1.2: Scope of Representation
 (a) Clients decides objectives; lawyer consult with client for
means; client decides settlement acceptance; in criminal case,
client decides after lawyer consultation what plea, waiver of jury
trial, client testifying at trial
 Settlement Practices
 Four key Client Decisions
o Whether to plead guilty or not guilty – rejected if no
consent – Jones case, AA woman innocent
o Whether to waive a jury trial
o Whether to testify on his own behalf
o Whether to take an appeal
 Five key Lawyer decisions w/out consent
o Which witness to call
o Whether to agree to mistrial
o Whether defense is plausible – Unabomber: no insane
o Opening/Closing arguments
o Whether to seek change venue after pre-trial publicity
 Generally: Not all “means” questions go thru client
 Client can authorize lawyer to take action with no consult
o M.R. 1.14: Client With Diminished Capacity
 (a) Lawyer shall as possible maintain normal relationship; seek
appoint guardian only when reasonably believe the client can’t
act in his own best interest b/c of minority, mental impairment,
or other reason
 BUT, young children have opinion in legal proceedings
 Look at: ability to articulate reasoning; ability to appreciate
consequences; substantive fairness of decision
 (b) Can consult individuals or appoint guardian if needed
 (c) Confidentiality:
o
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o
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o
o
o
o
o
o
o
o
 Client still protected by M.R. 1.6 Confidentiality
 Info regarding diminished capacity shouldn’t be disclosed
unless authorized
 Emergency (health, safe, finance): lawyer may act in emerge
situation, even if not lawyer; only if sure person has no lawyer
 CA does not have this rule!!!
Three Theories to Lawyer’s Duty
 Normative
 Empirical Dimension (how do lawyers/clients behave?)
 Normative Dimension (how should they behave?)
 Legal Dimension (how control authority law govern?)
Three Types of Lawyers Duty:
 Express
 Implied
 Apparent
Lawyer defer to client
Client can’t K out of lawyer liability for malpractice
Client can’t K around lawyer duty to provide competent service
Lawyer can’t accept settlement offer w/out permission
Lawyer authority implied in law
No right to settle for gov’t unless express
Not every point a client wants on appeal raised (Jonesv. Barnes)
Some lawyers take informed consent approach
Client can’t prove immunity from lawyer’s actions
 (Taylor v. Illinois: unbeknownst to client, lawyer intentionally
didn’t call witness; dissent argues difference b/w misconduct, as
here, and a pure tactical error)
Formation of K
 (1) Contract/Engagement Letter
 (2) Court Appointment
 (3) Default, per Togstad
 EX: Togstad v. Miller: Person is client if:
 Foreseeable giving person negligent advice might injure
 Person reason believed get legal advice/relied on it
 Person reason belief he’s client may change relationship
 (Case: person came to ask for medical legal advice, lawyer
said he’d ask his med lawyer, gave advice, she sued claiming
he was his lawyer; he said they never agreed; court found Δ
negligent b/c didn’t warn about statute lim)
 Engagement Letter:
 Non-Engagement Letter: send if aren’t going take case; don’t
offer comment re merits; warn about possibility of statute of
limitations.
Termination of K
 Client can fire/release lawyers at almost any time
 Lawyers cannot simply leave
 After case starts, withdrawal requires court’s permission
 Limits to Firing:
 Can violate state or federal laws on racial discrimination
 CA SC noted in-house counsel cannot be fired for not
participating in illegal acts demanded by house lawyers
 Client might not be allowed to terminate on or near trial –
court may refuse to allow lawyer to withdraw; courts have
methods of deterring a lawyer from leaving or being fired at
or during trial b/c they suspect this as a tool to extend trial
 Clients with appointed lawyers not allowed to fire at will
 2 Issues in Firing
 Wrongful termination is a cause of action for lawyer
 Fees and Files (Rule 1.16) - lawyer must return “unearned
fees,” files, etc. – lawyer only fees on quantum merut basis

o
o Dealing with Another Lawyer’s Client
o M.R. 4.2: Communication With Person w/ Lawyer
 Lawyer shall not talk about the subject of rep w/ person who he
knows has lawyer
 UNLESS has consent of lawyer or authorized by law
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 Rationale: Protect lawyer-client relation/prevent deception of
layperson/protect confidential information
 Exceptions:
 Able to talk re case in which you’re not taking part
 If person shopping for new lawyer, you may talk
 You violate only if you know – intent ignore is no excuse
 You may speak with for depositions/by judicial order
 Pre-Indictment Contact: most jurisdictions-not subject
 Problems
 Gov’t lawyer questioning people over federal investigation
o Generally within federal criminal arena
o Complicated b/c intersects with con law; after a person is
formally charged with a crime, they have the waivable right
not to be questioned without an attorney
o If person not arrested, generally no right to attorney
 Corporate Entity
o Arise from central idea that a corp. is legal construct
o Corp. lawyers want broad definition of no-contact rule
o Plaintiff wants narrow definition for this rule so everyone
can be questioned
o Rule 4.2 defines “party” as anyone whose comments may
act as an admission for organization (Niesig v. Team 1 –
Compromise Rule)
o Blanket Group Rule: no one at corp. can be talked to
o Control Group Rule: only top management cannot be
talked to without lawyer’s consent
o Compromise Group Rule: no-contact rule in re anyone
whose statements may constitute an admission on the part
of the organization cannot be talked to without attorney
present
o M.R. 4.3 – Dealing with an un-represented person
o Lawyer shall not imply disinterest
o Lawyer shall make reasonable efforts to correct the
misunderstanding, if any
o Shall not give legal advice
o Except, if clients’ interests are adverse
o EX: If you want an un-represented person to sign anything – you
have to think about rule 4.3
o EX: As in-house counsel
o BUT: now lawyers can have un-represented person sign legal
documents – this is OK
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COMPETENCY ------------------------------------------------------------o M.R. 1.1: Competence – Lawyer provide competent rep
o M.R 1.3: Diligence – Lawyer shall act with due diligence
o M.R. 1.8(h): Conflicts Interest – lawyer shall not
o (a) Contract out of malpractice unless client has 2nd lawyer
o (b) Settle claim for malpractice w/un-represented client unless
person advise in writing or has indy legal advice
o Malpractice
o * cannot be criminally liable for ethics violations, but is proof
o Duty
 Fiduciary Duty: not interview witness; not follow instruct
 Professional Duty:
 Lawyer only owes duty to client/3rd party beneficiaries
 EX: Lucas v. Ham: point: illustrate self-referentiality (below)
 Traditional Rule: absent fraud/collusion, etc., no liable to 3rd
 Growing Rule: 3rd party beneficiaries can have duty owed
o Breach
 Failure to use skill as lawyer ordinary competence under similar
circumstances
 Most breaches occur from blatant failures/omissions
 EX: failure to research/making unreason mistake of law/failing
to interview critical witness/failing to follow instruct/
 POINT: strategic exceptions cannot be negligent
 POINT: if claim would have failed – no negligence
o Causation
 But-For causation
 Causation of Harm
 If П harm occurs during course of litigate and harm suffered
is recoverable claim, П must prove would have won had the
case been brought
 П must prove would have made different decision BUT-FOR
lawyer’s advice? Or Substantial Factor?
 Standard of Care
 BLL: must prove it was STRATEGIC CHOICE not to do
research, etc., rather than a simple mistake (Smith v. Lewis:
lawyer failed to do research for divorce proceeding.)
 Expert testimony: Depends on custom and practice – no hard
and fast rule. If a lawyer takes time to learn the local customs,
then may be shielded for a malpractice claim
 Judgmental Immunity: Some jurisdictions give lawyer large
latitude when law is uncertain, but others require lawyer to
tell client the law is unsettled. Lawyer should deal with legal
and factual uncertainty by urging settlement
 Keep Accurate Records in re memos, etc.
 EX: Lucas v. Hamm: drafted invalid will, but court held laws
too difficult to understand so no MP
 LUCAS/HAMM TEST
o (1) П must provide expert testify to local lawyer custom
o (2) Prove lawyer fell below this standard
o HARM
 Traditionally limited to economic damages; ordinarily lawyer’s
fees cannot be reclaimed
 No pain and suffering
o Remedies
o Malpractice claims available to any and all clients – but only to
people who lawyer owed fiduciary duty
o Ineffective AC claims available only to convicted criminals
o Proof
o Elements
(1) What is reasonable standard: Generally based on state
standard, but can try to invoke local standard
(2) That lawyer’s conduct fell below that reasonable standard
 Ethics Violation
 Cannot sue for an ethics violation
 BUT such evidence is admissible/relevant
o Limiting Malpractice by Agreement
o (a) Contract out of malpractice unless client has 2nd lawyer
o (b) Settle claim for malpractice w/un-represented client unless
person advise in writing or has indy legal advice
 Malpractice Insurance: Two Types
 Occurrence Insurance: for acts or omissions during policy term,
regardless of when claim made
 Claims Made Insurance: for acts or omissions during policy
term, for claims made during term
o Cover:
 Claims arising out of criminal acts
 Claims arising out of any malicious acts
 Punitive or exemplary damages
o Vicarious Liability of Partners
 Most jurisdicts have LLP rules so partners can’t be held liable
o Violation of Ethics Rules as Basis for Malpractice
 Ethics violation cannot be basis for suit, but can be evidence
o Ineffective Assistance of Counsel - Sixth Amendment Guarantee
o Rule: Counsel must be appointed in every criminal case where
defendant faces possible prison time
o Must have lawyer:
 Preliminary hearing at which probable cause to proceed is
determined
 At post-arrest line up
 At trial and sentencing
 Through first appeal
 Not applicable in civil cases
o TWO-PART TEST (Strickland v. Washington)
 (1) Counsel’s performance was deficient
 (2) Counsel’s performance prejudiced defense/reasonable
probability of different result
 * If one part of test deficient, no need to assess second part
 * No hard and fast rules here
o Prejudice Presumed if:
 (1) Fail to file an Anders Brief
 (2) Client prevented from conferring with counsel for a
significant period of time
 (3) Counsel is burdened by conflict of interests
o Burden:
 Burden on Δ to overcome presumption that lawyer’s trial
strategy is deficient
 Burden is on Δ
 Court presume lawyer effective/reluctant to find lawyer liable
o Damages
 Only economic damages, no p&s
o When Brought
 Can’t bring unless criminal proceeding is finished
 Criminal can’t sue unless he can prove his innocence; rationale –
if guilty, should do crime (holds for criminal lawyers)
 Not brought on direct appeal b/c:
 Convicted criminals represented by same counsel on appeal;
counsel won’t sue against herself
 These claims usually involve question of fact, and appellate
courts don’t find questions of fact
o Malpractice Against Criminal Defense Lawyers
o # of jurisdictions hold criminal Δ lawyers immune
o # of jurisdictions make Δ prove their own innocence or guilt
o # of jurisdictions make Δ conviction be overturned
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CONFORMITY TO LAW ------------------------------------------------o Obstruction of Justice
o Can result in criminal prosecution/punish by bar – but rare
o M.R. 3.4: Fairness to Opposing Party: Lawyer shall not
 Unlawfully obstruct access to evidence, alter/destroy/conceal
document, or counsel person to do such acts
 Falsify evidence/counsel witness to false testify
o M.R. 1.2: Scope of Representation: Lawyer shall not
 (d) Lawyer shall not counsel client to engage in or assist him in
criminal/fraudulent activity
 BUT, lawyer may discuss legal consequence of action
o M.R. 8.4: Misconduct: Lawyer shall not
 Engage in fraud, dishonesty, deceit, commit criminal act, etc.
o Lawyer Possessing Physical Evidence must:
 Return to source if can be done w/out altering/impairing, OR
 Turn over to П (or court), to use evidence or info relating to
condition, location, discovery, but NOT its source
 STENHACH RULE:
 Lawyer may return evidence to location if can do so without
altering or destroying it;
 Otherwise, must deliver evidence to prosecutor, but
prosecutor can’t say where he got it
 EX: Stenhach: two lawyers given map re location of rifle stock,
not guilty for OJ b/c map part of A-C priv. unless client
consents; if map not for advice, but for crime – not protected
 EX: represent man rob 7-11; tells you where $$ is; options:
 Tell П (no good; violation attorney-client privilege)
 Tell client to move bag (no good; OJ, aiding/abetting)
 Tell client to you $$ (no good; would have to turn over to П;
return under Stenchach; or replace w/out altering)
 Explain law/options to client (most complicated; OK if only
advise of legal consequences; but don’t encourage)
 Tell client to turn over to П (no good; no zealous ad.)
 Tell client you can’t give advice (BEST OPTION)
 Boundaries of Rule: only applies to criminal proceedings;
Doesn’t apply to all evidence, e.g., business records – only to
instrumentalities of crimes
 Problems: criminal OJ statutes can be overbroad, w/ambiguous
language, creating uncertainty in zealous ad.
 Exceptions:
 (1) Evidence created as part of a defense, such as a statement
by defendant prepared for his lawyer (AC Priv)
 (2) Evidence state could not force a defendant to disclose
against his will (i.e., a diary in certain instances, etc.)
o Federal Omnibus Statute –ANALOGIZE IF IN STATE
 Elements of Offense
 Pending federal judicial proceeding (if evidence destroy
before Grand Jury, no crime; in states, can’t destroy if likely
trial to commence)
 Δ knew of proceeding (knowledge required)
 Δ acted with intent to interfere w/justice
o When hire expert, can tell not to take notes, b/c are discoverable
o BUT can’t tell to destroy after created
o Basically, if lawyer acts w/corrupt purpose to interfere – liable
 EX: Cintolo: lawyer convicted for OJ after tell client not to
testify before Grand J., b/c was tape proving lawyer wanted to
prevent testimony re other client’s crimes (corrupt purpose)
 EX: lawyer telling non-client to not testify in order to protect
client; this is obstruction justice (corrupt purpose)
o Document Retention/Destruction
o Torts Involving Deception of 3rd Parties
o Civil Fraud
o Aiding and Abetting
o Negligent Misrepresentation
o Malpractice
o NOTE: for П to recover under any of these torts, must prove
Damages/Causation: П must have relied to his detriment
o Criminal Fraud
o Elements:
 Actus Reus: voluntarily commit acts in furtherance of fraud
 Mens Rea: Knowledge that statements are false/misleading
o EX: US v. Benjamin: lawyer assisted shell co sell bad stock in;
found guilty of fraud –
o Relevant Facts: lawyers more liable in such cases; conscious
ignorance/willful blindness not OK; normal lawyer business can
suffice if culpable state of mind; jury can infer from lawyers action
that he knew; liable for aiding, even if not main actor
o Criminal Conspiracy
o Agreement to Commit Crime (not actually committed OK)
o Tacit agreement OK too
o EX: lawyer retained by mafia to represent anyone arrested – if
know of ON-GOING crime acts, guilty of conspiracy
o Basically: NOT ok to be arm of criminal enterprise
o Civil Liability for Fraud:
o Def: making [knowingly] false representation etc.
o M.R. 4.1: Truthfulness in Statements: Lawyer shall not
 Make false statement of material fact or law
 Fail to disclose material fact when disclosure necessary, unless
prohibited by M.R. 1.6: Confidentiality
o M.R. 1.2(d): Scope of Representation
 Lawyer can’t assist in fraud/criminal acts
o M.R. 1.16(a): Declining/Terminating Rep
 Permissive withdrawal – lawyer can withdraw
o M.R. 4.1: Truthfulness in Statement to Others
o Lawyer liable 4 normal duties if done with culpable state of mind
o BLL: If lawyer knows there is fraud, must withdraw
o EX: Kline: lawyer can’t disclaimer out of liability by noting that
info contained in letter based on unchecked fact as told by client
o Guilty If:
 Makes false material representation intentionally/recklessly
 Omits to disclose material facts and omission is within an
exception (must be within an exception b/c lawyer doesn’t
usually have a duty to disclose)
 Two exceptions
 (1) Duty to disclose when the party entitled to the information
is in a fiduciary duty relationship
 (2) Lawyer has duty to disclose when the lawyer has made a
misleading statement and needs to correct it.
 (a) Once the lawyer says something, must not be fraudulent –
general no duty 2 speak, but once speak, then duty 2 disclose
o Co-Author/Substantial Participate (Kline): Law firm substantial
assist/co-author, even if not noted in doc as author, can be held
liable. Controversial decision
o BUT: Other approach: Schatz (298) holds that the law firm
CANNOT be held liable if didn’t actually disclose (circuit split)
o Civil Liability for Negligent Misrepresentation
o Def: make [unknowingly] false misrep.
o Can reach insurance, etc., b/c proving knowlege [required by
fraud] is tough
o CA: No need for lawyer to owe duty to 3rd party  can be liable
for neg misrepresentation to him anyway
o Other juris: may need duty to 3rd party (joint rep, etc.)
o Basically: was purpose of lawyer/client to influence 3d party?
o Aiding and Abetting Liability
o Aiding/Abetting is crime, but M.R. 1.2 is ethical counterpart
o M.R. 1.2 (d): Scope of Representation: Lawyer shall not
 Counsel client to engage /assist in crime/fraudulent acts
 BUT, lawyer may discuss legal consequences of action
o Elements (Securities Fraud; per Nat’l Student Marketing):
 Party 1 involved in securities law violations
 Party 2 has general awareness his role part of improper act
 Party 2 knowingly and substantially assisted in violation
o Must have Culpable Intent (must want to aid/abet)
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o Malpractice
o Criminal charge here too, though described in Competent sections
CONFIDENTIALITY -----------------------------------------------------o Attorney-Client Privilege (single client)
o Definition (Rest. §118):
 (a) Communication: Including preliminary conversations, even
if lawyer decides not to take case
 (b) Between privileged persons: Client, (including prospective
client), and client’s lawyer, agents of either who communicate
for them, and agents of the lawyers who facilitate the
representation; Lawyer seeking another lawyer’s advice
 (c) In confidence; Presence of third parties defeats this privilege;
Also, if client later disseminates information, defeats privilege
 (d) For purpose of obtaining or providing legal assistance
 *** Payment of a fee is not required
o Definition (Wigmore)
 (a) Where legal advice of any kind is sought
 (b) From a professional legal advisor in his capacity of such
 (c) The communication relating to that purpose
 (d) Made in confidence
 (e) By the client
 (f) Are at his instance permanently protected
 (g) From disclosure by himself or by the legal advisor
 (h) Except the protection be waived
o Not Included
 Preexisting written documents
 Documents created not for purpose of legal advice, etc. (i.e., tax
forms)
 Physical evidence of a crime
o Purpose: To insure that a client is not damaged for seeking legal
advice – NOT intended as mechanism to keep all potentially
relevant information secret
o Exceptions
 Dispute concerning a decedent’s disposition of property
 Client crime or fraud
 Lawyer self-protection
 Dispute in which trustee is charged with breaking fiduciary duty
 Disputes b/w representatives of an organizational client and
constituents
o Hypo: potential client tells you source of drugs; Decide not to take
case – protected by attorney-client privilege
o Hypo: potential client tells you source of drugs; You then have
investigator finds out source of drugs; Not protected b/c
investigator found out where the source was on his own
o Hypo: client is called before Grand Jury after pleading guilty –
asked where he got the drugs; Not protected, b/c about the facts of
the case
o Hypo: tort Δ who ran red light, you defend; At cocktail party, you
tell a person that a witness at the scene of an accident told you that
she saw that your client run a red light; Not protected b/c the
information was not told to you by your client
o Attorney-Client Privilege (Joint Client)
o Definition: When two or more people are represented –
communications are not privileged between the various parties, but
are privileged to the rest of the world
o The problem with this is when joint parties later sue one another
o Rationale: joint-clients to not expect their communications to be
privileged
o Attorney-Client Privilege (Corp Client)
o Definition:
 Communication b/w an agent of the organization and the
organization’s lawyer only if disclosed only to “privileged
persons and other agents of the organization who reasonably
need to know of the communication in order to act for the
organization”
 The current management of the corporation controls the ability
to claim the privilege
o
o
o
o
 Corporate Officer will never have a privilege against the
corporation himself if corp brings suit
Simon’s Definition:
o A communication is privileged if it was made
 By a corporate employee
 To a corporate employee
 Acting as such
 By or at the direction of corporate superiors
 In order to secure legal advice
o EX: Upjohn: corporate counsel requested information from
workers; court of appeal applied Control Group test (where only
officers with control of corp has AC Privilege); holding this
defeats the AC Privilege; here, workers at all levels were protected.
o Problem: with anything other than control group: creates too broad
a zone of silence in corp, preventing working from being witnesses
b/c of privilege
Work Product Doctrine
Definition:
o Party may obtain documents and tangible things prepared in
anticipation of litigation ONLY upon showing the party seeking
discovery has substantial need of the material AND the party is
unable w/out undue hardship to obtain by other means:
o Rational: Mutual knowledge of relevant facts of litigation is
essential; either party in good faith can compel other to disclose
whatever relevant facts in possession, if not otherwise privileged,
without regard to the time-honored defense of "fishing expedition”
o Protected Material: mental impressions, conclusions, opinions, or
legal theories; ANY documents NOT prepared in
preparation/anticipation of litigation
 EX: “In anticipation of litigation” for insurance litigation:
o (Jurisdiction #1) Once an attorney has become involved
and has either prepared documents or requested
preparation
o (Jurisdiction #2) Treats virtually all reports as in
preparation of litigation
o Jurisdictions vary whether lawyer/client may invoke privilege
Crime-Fraud Exception (forced divulgement of protected info)
o Definition: forcing lawyer to divulge protected information b/c
client used lawyer in furtherance of crime
o Requirements:
 (a) Prima Facie showing client engaged in criminal/fraudulent
conduct when sought advice; was planning criminal conduct; or
committed crime after seeking legal advice, AND
 Good faith showing by prosecutor enough to beat the prima
facie burden – i.e., if allegations are true -enough to prove
 (b) Showing attorney’s assistance obtained in furtherance of the
criminal activity OR closely related to it
 NOTE: Lawyer DOES NOT HAVE TO KNOW client was
committing crime – completely immaterial; BUT, client’s intent
does matter
 NOTE: Past Crimes: for Crime-Fraud privilege to be valid
(therefore, forcing attorney to divulge info re occurring or future
crime or testify) the crime must be current/future
 Burden of Proof: burden is on lawyer to prove that the
information requested to have disclosed by court is protected by
the privilege; To assert privilege, most jurisdictions hold a
witness must appear, testify, and invoke privilege in response to
a particular question
 A lawyer’s inquiry into client’s state of mind is fine distinction
b/w legit advice on matters of uncertain legality and the outright counseling of criminal conduct
 A lawyer may appeal a lower court, but may be sanctioned by
the court and have to serve jail time for refusing to testify while
awaiting appeal
o Hypo: asks about legality existing trade agreement; Client’s motive
is innocent – Crime-Fraud exception won’t take effect
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o Hypo: asks lawyer to redraft something to comply with law, but
still be illegal; The court (actual case) here ruled the lawyer not
liable – but different jury could have easily come out different
o Hypo: lawyer says can’t be done, but does it anyway; If lawyer
redrafts it, the lawyer can be liable; even if he doesn’t know, the
crime fraud exception would apply
o Client Identity/Fee Arrangement Disclosure
o Restatement: Testimony about client’s name, amount of fee, or
client’s whereabouts is okay to reveal UNLESS the disclosure
directly or by reasonable inference would reveal content of
confidential communication; A client’s physical characteristics
also not “communication” in respect to attorney-client privilege
o Waiver of Attorney-Client Privilege
o Who can Waive:
 Client Directly or by consenting to lawyer’s disclosure
 Lawyer acting as client’s agent
o Scope of waiver
 Lawyer puts part at issue in litigation
 Any part of communication/issue disclosed by lawyer creates
a waiver of ENTIRE privilege at issue – everything’s open
game
 Client waives part of privilege DOES NOT open up entire
communication – only part that was disclosed
o Inadvertent disclosure
 Wigmore held disclosure a COMPELTE DISCLOSURE
 RULE: courts have softened the approach b/c technology has
allowed for more widespread disclosure - if lawyer took
adequate precautions, then court may protect disclosed info
 CA: Supreme Court has NOT ruled on inadvertent disclosure
o Selective disclosure
 Made by lawyers under confidentiality agreements, usually to a
federal or state agency investigating a client’s conduct
 Client wants to be able to control the extent of disclosure
 To achieve this goal, parties have entered into a “confidentiality
agreement” wherein the disclosed information will be kept
within the agency – so the later civil opposition cannot say that
they should have access to the information solely b/c it was
disclosed previously
o Jurisdictional Variation: vary on how to react and acknowledge the
disclosure of the information
o Termination:
 Comm. Law Rule: does NOT end upon death (Vince Foster)
o Duty of Confidentiality
o M.R. 1.6: Confidentiality
 (a) Lawyer won’t reveal information relating to rep., unless:
consented, or impliedly authorized, or per (b)
 (b) EXCEPTION:
 (1) Prevent certain death/bodily harm
 (2) Prevent client from crime/fraud reason certain result in
injury to finance/property (might happen future)
 (3) Prevent/mitigate/rectify finance/property injury from
crime/fraud (that has already happened)
 (4) Secure legal advice in re rule compliance
 (5) Lawyer’s self-D
 (6) To comply w/ law
o All exceptions are permissive; no require disclosure, but allow it
o M.R. 1.9: cannot argue against former client who’s confidential
info you received per M.R. 1.6
o M.R. 1.18: prospective clients owed same duty as former clients
o M.R. 1.8: cannot use confidential information to disadvantage
current client unless client gives informed consent
o Use client information to disadvantage yourself, but not
disadvantage client is ethical
o Cal B and P Code §6068 (e) – absolute duty of confidentiality.
2004 amendment created exception like M.R. 1.6(6)(1)
o EXCEPTION (1): Certain Great Bodily Harm:
 Must be reasonably certain person will suffer imminently or
substantial threat will be harmed at later date if don’t warn
 *Lawyer should first try and dissuade*
 Ethical Duty: NO duty; is permissive to warn
 Legal Duty: common law duty only if certain harm will occur
and person is unaware
 Hawkins v. King County, lawyers would be required to
volunteer information to court where lawyer is convinced his
client is going to harm an unaware victim; facts – lawyer did not
disclose patients mental illness at bail hearing, later attacked
mother, argued lawyer should have disclosed at bail hearing that
defendant was a danger)
 Hypo: man walks into law office and says he is going to “fix”
his former boss. Does the lawyer have good reason to call and
warn the boss? There is an ethical duty potentially NOT to warn,
but a potential tort liability for not warning. MR 1.6 may allow
for a disclosure
o EXCEPTION (2): Client Fraud: Future Harms
 New Rule
 Permissive; but this has become mandatory under MR 4.1 only
if lawyer has actually assisted or aided and warning or telling
person is only way to avoid harm
 Lawyer must reasonably believe client has/will commit crime
 Available only if using lawyer’s services
 Available only to crimes/frauds reasonably certain to result in
someone’s financial issue or property
 CA: No Client Fraud exception
 EX: OPM: Even though lawyer has no duty to warn about past
crimes, the line between past and future crimes is often tough to
distinguish as this case points out.
 Legal Liability:
 Aiding and Abetting: OPM engaged in unlawful conduct;
Law firm attesting to validity in loan, substantially assisting
in client fraud; Lawyer knew lawyer was going to continue
fraudulent conduct
 Fraud: Did they know that they knew claims were false
when they made them
 Negligent Misrepresentation: Writing opinion papers
without doing proper research into validity
 Malpractice: Banks are third party beneficiary; lawyers of
ordinary competence wouldn’t make representation
 Ethical Liability
 M.R. 1.6 - Permissive: Under new rules, lawyer could have
disclosed information to prevent future frauds or to rectify
past frauds
 M.R. 4.1 - Mandatory: under this rule, disclosure is only
mandatory if lawyer knowingly assists, etc.
 Q: Would withdrawal alone have been enough to preclude
liability, or would lawyer have to disclose fraud to injured
parties?
 If lawyer writes an opinion letter to bank, then finds out it
was based on fraudulent information, and withdraws, but
knows the bank will rely on the letter in the future, the
lawyer is liable
o EXCEPTION (3): Client Fraud: Already Committed Harms
 New Rule
 Permissive
 Lawyers must reasonably believe client has/will commit crime
 Available only if using lawyer’s services
 Available only to crimes/frauds reasonably certain to result in
someone’s financial issue or property
o EXCEPTION (5): Lawyer’s Self-D
 EX: Myerhoffer: securities and exchange case, in which lawyer
had to disclose former client’s information to plaintiff in order to
defend himself in action; would be in client’s interest in not
disclosing interest.
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 Issue: how early can a lawyer use the self-d exception; can it be
used as an anticipatory measure?
 Held: lawyer did NOT have to wait until trial to disclose some
information
 Lawyer Liable If: (1) Disclose Too Early: before complaint is
filed; (2) Disclose more info than is necessary to defend
o FOR SEC MATTERS:
 Legal Liability: On notice failure to disclose could create legal
liability
 Ethical Liability: almost seems irrelevant b/c these guys
obviously failed ethics class; assume corporate client
 M.R. 1.13: not clear if Goldberg’s disclosure was ethical
 SEC Regs: also not clear whether disclosure was ethical b/c
 1.16: required to withdraw under this rule
 Amendment: allow disclosure to comply with other law; since
would still violate federal securities law, can be disclosed
 4.1: require disclosure only to prevent client fraud – here there is
no client fraud to be prevented
o Policy
o Define interest that justify a possible sacrifice of the client’s
interest in secrecy
o Determine whether opportunity to disclose should be permissive or
mandatory
o Determine whether limiting language concerning actor, victim,
etc., should be included
o Determine whether should be limited to prevention or to where
lawyer’s services have been involved
o Duty of Confidentiality – Organization as Client
o M.R. 1.13: Organization as Client:
 (c)(1-2) If Lawyer has gone to highest authority in corp., and
believes those people are acting to substantial detriment of corp.,
then lawyer may disclose info REGARDLESS OF M.R. 1.6, to
extent necessary to prevent injury to corp.
 Recent Amendment: allows to disclose outside corp. is
necessary;
o Sarbanes-Oxley Act: instructs SEC to make regulations for
securities for lawyers who discover that their corp. clients are
committing “material violation” of SEC law or breach of fiduciary
–ROLE OF TRUST/CONFIDENCE – duty; “credible evidence” =
unreasonable actions under circumstances (created in reaction to
Enron)
 Applies to lawyer for securities issuers
 If lawyer finds violation, MUST report to Chief Legal Officer
 Evidence of violation = unreasonable actions under circs
 CLO MUST investigate
 If violation, CLO must remedy or stop violation
 If CLO doesn’t, lawyer goes to Board or directly SEC
 Copr. Can set up Watch Board; lawyer then report to it - OK
o Corp is a legal construct
o Don’t represent people, represent the corporation
o Duty is to entity – not people
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CONFLICTS OF INTERESTS ------------------------------------------o Procedure to Determine Conflict
o (1) Clearly identify client
o (2) Determine whether conflict exists
o (3) Decide whether represent my be undertaken despite conflict
o (4) Obtain informed consent of each client
o WHAT TO TELL CLIENTS – (risk-benefit analysis)
 Risks
 Conflict of interest may later arise
 Explain, that as of now, the risks are remote
 But as get deeper, one person may seem more culpable, etc.
 If conflict does materialize, you CANNOT represent either
 Explain Duty of Confidentiality
 Explain you can’t keep confidences from either client
 Explain Joint-Client except (protect from 3rd – not each other)
 Benefit
 Economic Efficiency
 Procedural Efficiency
o NOTE: Court may not appoint lawyer to joint counsel if lawyer or
client refuses – denial of 6th amendment right to counsel
o Professor’s Main Points:
 Joint-Representation is Strongly Disfavored
 Prosecutor disqualification motion are readily granted
 Appointment of Joint-client representation is unconstitutional if
lawyer or client object
 If objection is not raised until after defendant is convicted – can
ground an ineffective assistance of counsel – but at this point, the
client must prove there actually was a conflict
 BUT, client does not have to prove but-for causation, etc.
o Informed Consent – Concurrent representation
o Must be in writing
o Can be revoked at any time
o Must include implications of common representation, possible
effects on loyalty, confidentiality, and attorney-client privilege
o Attorney-Client Privilege – concurrent representation
o As between commonly represent clients, privilege doesn’t exist
o Duty of Confidentiality – concurrent representation
o Lawyer must advise clients that info will be shared, and if one
client doesn’t want info disclosed, he’ll have to withdraw, unless
both clients consent
o Concurrent Representation Conflicts - Civil Litigation
o Concurrent: Directly Adverse
 M.R. 1.7: Conflict of Interest: Current Clients
 (a)(1): conflict exists if rep of one client directly adverse to
another client
 I.e.: cannot rep one client against another client
 Duty of Loyalty
 Duty of Trust
 Duty of Confidentiality
 EX: Representing clients on both sides of trial
 EX: Cross examining a client in another case
 EX: asked to negotiate on both sides of negotiation
o Concurrent: Less Starkly Adverse
 M.R. 1.7: Conflict of Interest: Current Clients
 (a)(2): Conflict exists if there is significant risk that rep will
be materially limited by responsibilities to another client,
former client, or 3rd party
 EX: Westinghouse Elec. v. Kerr-McGee Corp.
 Facts: Four appellants-defendants in antitrust action;
unsuccessfully moved to have Kirkland disqualified in antitrust suit; basis of motion was that KMG were members of
API, which Kirkland was also representing in Congress, not
in litigation; KE claimed they were clients of the law firm,
being represented in Congress, and KE was representing
Westinghouse who was suing them; API was trying to stop
federal leg to stop oil companies in re uranium; Trial court
held that American petroleum institute; Court Appeal asks







who is the client; who has client status; firm can owe people
professional duties;
Held: Westinghouse had to get new counsel/Kirkland Ellis
was dismissed as counsel
Side Issue: shouldn’t impute this is a qualification between
Washington and Chicago offices; Lawyers cannot overcome
the imputation of knowledge;
Q: How would this case come out under the new rule?
Practical matter, wouldn’t matter if this came under new rule
because Kerr McGee would never consent
Q: Is this a consentable conflict under the new rule?
Not made non-consentable by 3
Q: Could Kirkland given Kerr-McGee and Westinghouse
adequate representation
o M.R. 1.9: Conflict of Interest: Former Client
o Generally a two-part Duty:
 (1) Duty to maintain confidences/confidential info of former
client
 (2) Duty to maintain loyalty to former client
 Substantial Relationship Test:
 In successive representation, if the matters are not “the same
or substantially related” then the lawyer may represent the
new client without consulting the former client
 If the matters ARE substantially related, and the lawyer will
be adverse to the former client, the former client’s consent
must first be obtained before going forward
 NOTE: So this potential conflict can be resolved merely by
the former lawyer’s consent
 Definition: Substantially-Related
o Three variations:
 (1) Broad: need only be akin to present action in way
reasonable persons would understand as important to
issues involved
 (2) Narrow: relationship between two matters must be
“patently clear, identical, or the same”
 (3) Restatement §213:
 Current matter is substantially related to earlier matter if:
 (1) Current matter involves work the lawyer
performed for former client, or
 (2) There is a substantial risk that representation of
present client will involve use of information acquired
in the course of representing the former client, unless
information has become generally known
o M.R. 1.10: Imputation of Conflicts – Firm Lawyer’s
o Rationale: firm of lawyers are one lawyer for purpose of rules
governing loyalty to client
o (a) No lawyer in firm should rep someone when anyone of them
practicing alone could not based on 1.7 (current) or 1.9 (former)
o (UNLESS the conflict is personal interest of prohibited lawyer, and
does NOT pose significant risk to firm’s representation
o This may be waived
o Concurrent Representation Conflicts in Criminal Litigation
o Lawyer representing two criminal joint-defendants; prosecutor
gives each criminal a deal, that if one rats on the other, he gets off;
but if neither client talks, the prosecutor has no case against either
of them; so lawyers can create conflict in this situation; can lawyer
withdraw from one client and keep representing another client?
No. Can she advise either client not to accept prosecutor’s deal? It
is not clear.
o POINT: If we think the lawyer could advise both clients NOT to
take the deal, there is another problem that lawyer faces psychological problem: even though ethics rules allows joint
representation, the lawyer must be sure that she is not
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psychologically adversely affected in her decision-making process
– there can be no divided loyalties
o TEST POINT: In the context of criminal litigation, the potential
for conflict of interest in representing multiple defendants is SO
grave, lawyer should generally only represent a single codefendant
o Concurrent Representation: Criminal v. Civil
o Whether and What extend a lawyer can represent multiple clients
o Critical Difference between Transaction and Criminal issues
 (1) Large part of problem in criminal defense work, clients are
subject to manipulation – not case in transactional
 (2) Hard to believe criminal co-defendants can give informed
consent to joint representation without getting legal advice – in
transactional work, this is not always the case
 (3) Criminal defendants do not have to go without lawyer if
don’t want joint-representation – in transactional, people are not
guaranteed subsidized representation – many people just end up
going un-represented.
o Concurrent Representation: Buyer and Seller
o Lawyer may NOT represent buyer/seller in active negotiations
o Lawyer may represent both buyer and seller in non-active
negotiations, if Buyer and Seller have already agreed on all
material terms of agreement
o Lawyer must inform them that if litigation develops, he cannot
represent either one of them
 EX: State v. Callahan
 Facts: buyer and seller agreed on terms, represented by the
same lawyer; but because the seller was unsophisticated,
she did not understand that she was helping to secure loans
for buyer without securing any mortgage of her own;
 Held:
 Main Problem: one of the parties was more sophisticated
and the deal was inherently bad
 Refer to Rule 4.3: fairness to persons not represented by
counsel
that must exist between an officer of corp and its
attorneys would prevent the attorneys form later using
the information on behalf of corporation, would be great
injustice to stockholders, etc.
o Lawyers Role in Matrimonial Matters - 1.7(b)(1) problem
o Problems can Arise if lawyer represents both sides:
 Marital difficulties suggests some degree of antagonism
 If K negotiations fail, the parties may walk away, but husband
and wife are married
 In many marriage dissolutions, one spouse is dominant figure

Risk-Benefit analysis becomes more difficult

Lawyer must be sure she can reasonably maintain impartiality

Jurisdictions are split beyond question of drafting – i.e., can
one lawyer represent both in court

Three Points of Concern (same as above, except these taken
from lecture)
o Severe emotional distress may be factor – person may need
separate lawyer – can a lawyer in this circumstance really
get informed consent
o Relationship of parties – one spouse may be dominate
o Has the lawyer had a professional relationship with
husband or wife before?
o M.R. 1.8: Lawyer With Stake in Business Transaction
o Lawyer shall NOT enter into a business transaction unless:
 Terms are fair and reasonable and fully disclosed in writing
 Client is advised that should seek outside counsel
 Client gives informed consent in writing
o
o Concurrent Representation: Business Transactions
o Can have advantages and disadvantages, but must be looked at
through M.R. 1.7
o Divergent Interests are #1 problem, where lawyer can’t avoid
conflict
o Corporations and Conflicts
o Question: Who is the Client?
 (1) When lawyer represents corporation, is communicating with
the CEO always sufficient? Should the lawyer ever insist on
communicating with the Board of Directors?
 (2) When the CEO communicates with the lawyer, does the
CEO personally hold the attorney-client privilege or may the
corporation waive it against the CEO’s wishes? Who may waive
the privilege on corporation’s behalf?s
 RULE:
 As attorney’s for the corporation, the first duty is to the
corporation; having to withhold information disclosed
between attorney and CEO (as officer for corporation), would
be unfair to stockholders and corporation if attorneys had to
use information against CEO later
 EX: Meehan v. Hopps:
o Facts: lawyers work with CEO of corp, Hopps, as well as
corporation itself; Hopps tried to claim attorney-client
privilege, barring attorney’s from disclosing information
about Hopps’ interaction while working for corporation
o Held: Attorney’s first duty is to corporation
o Reasoning:
 To hold that giving of such information between CEO
and attorneys in that more or less intimate relationship
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DUTY TO COURT ---------------------------------------------------------o Perjury
o M.R. 3.3: Candor To Tribunal: Lawyer shall not knowingly
 Make false statement of fact or law
 Advise another to make false statement is crime
 Fail to correct false statement of fact or law
 Fail to disclose legal authority from controlling jurisdict known
as Directly Adverse to client/not posed by opposition
 Offer evidence known to be false
 If know client intends/is/has engaged in crime, must take
remedial measure, including tell court
 Above requirements TRUMP M.R. 1.6
 If learn BEFORE end of proceeding, must dissuade client; tell
client to correct wrong; if nothing works, must tell court or
withdraw -> though this is obvious to court
 If learn AFTER proceeding, discretion to tell court
 Lawyer can refuse give evidence reasonably believed as false
 But only required to disclose info knows to be false
o Punishment: criminal prosecute/severe disciplinary sanctions
o Can be liable if jury finds person knew what question meant, even
if questions dealt with wrongs facts (i.e., questioner messed up but
defendant knew what he was asking)
o Prior Criminal Record: Do NOT have to disclose PRIOR criminal
record, but if court asks if prosecution’s record complete, and you
know of other convictions, have to disclose
o EX: Nix v. Whiteside: Δ told lawyer he was going to perjure and
say he saw “metallic object”; didn’t, but later claimed ineffective
assistance counsel b/c lawyer advised him not to perjure; held:
lawyer upheld his duty to court and client by not letting perjure;
lawyer who knows his client is going to lie may withdraw; though
this case did not define when a client knows his client is going to
lie
o TEST: how to know you’re client is going to perjure: (this is taken
in light of Nix v. Whiteside)
 (1) Clearly Stated Intention Standard
 (2) Beyond Reasonable Doubt Standard
 (3) Factual Basis Standard
o Lawyer’s Knowledge:
o M.C.: defines that a person’s knowledge can be inferred from
circumstances
o Up until now, lawyer’s knowledge in class limited to transactional
instances
o But this is litigation arena; HERE, there is a constitutional right for
Δ to testify, and if he perjures, lawyer in bad position
o Also practical differences: there is difficulty to know truth, and is
hard to prove what lawyer knew
o If client is DEFINITELY going to lie, unethical to allow testify
o If lawyer has SWEATY PALMS, in tougher spot – face ethics
o Witness Preparation – there are NO ethics rules as long as lawyer
knows client is giving truthful testimony
o The Lecture: giving client a detailed explanation of the laws;
including all legal defense available, etc.; criticized as unethical by
some, but within the law
o Conscious Ignorance: Lawyer can tell client that there may be
things that should not be told to lawyer b/c lawyer will tell court
o The Roy Cohn Approach: ask you’re client “what are the lies
they’ll say on stand, presumably referring to his crime, but w/out
addressing it as such – therefore no knowledge of guilt or potential
perjury
 EX: someone can put client near scene of crime; know he’s
innocent, but someone can put him near; lawyer wants to allow
perjured claim he wasn’t close just so he can get off cause he’s
innocent; example of Friedman’s approach
o Narrative Approach: where client simply describes events on stand
to jury, and counsel asks no questions; counsel also makes no
reference to testimony in closing – therefore no perjury (objection
to this method usually always sustained b/c opposition can’t object
when question asked, but has to wait until jury hears fact from
narrative) – no ABA approval, but adopted in D.C. and MA
 Strengths
 Better for client than disclosure to judge
 Also better than lawyer perjuring
 What is judge supposed to do when lawyer warns judge?
 Most judge will just let witness testify/let jury figure it out
 Criticisms
 Created around old rule lawyer couldn’t tell court re lies
 Allows perjured testimony
 Is obvious that testimony is false to jury anyway
o The Trilema – Friedman’s Issue in favor of allowing perjury
o Duty to seek out ALL relevant facts
o Duty of confidentiality
o Duty to be candid to court
o
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