Legal Professional Outline – Roy 2004
Intro
A. Professionalism Crisis: There is a push for better ethics.
B. Solution for lack of Professionalism, Rules:
• ABA Model Rules (1983), Recently amended in Feb. 2002
• Model Code (do not have to know details of it)
• Restatement of Law Governing Lawyers (not responsible for it)
• U.S. Constitution
• State and Federal Rules of Civil Procedure
• Common Law Legal Malpractice Doctrines
*MS has adopted the ABA Model Rules
*Model Rules are the minimum standards
A. Professionalism:
• The first letter, the first phone call, first court appearance will carry with you as a professional
B. Solution for lack of Professionalism, Rules:
• ABA Model Rules (1983), Recently amended in Feb. 2002
• Model Code (do not have to know details of it)
• Restatement of Law Governing Lawyers (not responsible for it)
• U.S. Constitution
• State and Federal Rules of Civil Procedure
• Common Law Legal Malpractice Doctrines
*MS has adopted the ABA Model Rules
*Model Rules are the minimum standards
VIDEO
Types of Attorneys: L should follow ethical rules . . . not try to get around them.
1. Instrument: “Hired gun.” Client controls. L will do anything for him. May ignore ethics
to do what client wants.
2. Director: L thinks he knows best. Tendency to take over and view first duty to the “law.”
3. Collaborator: BEST; Mixes other two. Sensitive to the client, but not totally “client
driven.” Works in harmony with client to reach ethical and desirable end.
*Autonomy: Who controls decision, L or client? *Adversarial system may fall with dumb L.
Ch. 2: Judicial and professional regulation of Attys.
A. Admission to the Bar
There are no hard and fast rules, but the Ct generally looks at a person’s behavior and
the way his pattern of behavior.
Rule: Can’t stop someone for what they believe. But conduct “harmful to others” can keep
someone from being admitted. I.e.: someone in Klan ok to believe whites are superior, but
you can’t act in a way that harms others.
Rule: You may have a 1st Am right to do or say something, but your actions can be counted
against you in the bar application process. (Converse).
B. Discipline (p.34 of Kimble)
**Generally, a pattern of conduct is more likely to be punished than an isolated event.
1
**Can be punished for: Breach of confidence/loyalty, Frivolous suits, incompetence, failure to
communicate to client, fraud (bad check), stealing (taking $ from trust – even if client doesn’t
suffer loss), unrelated personal conduct of atty. (break law).
1. Purposes of Discipline –
i. protect public,
ii. integrity of legal system,
iii. further administration of justice,
iv. deter further conduct,
v. rehabilitate the lawyer,
vi. educate the lawyer and public.
** Punishment IS NOT A PURPOSE
2. Different Sanctions that can be Imposed (Most → Least Harsh )
i. Disbarment
ii. Suspension
iii. Censure (type of public reprimand)
iv. Warning, Caution, Reprimand
Rule 8.3: “Squeal Rule” Reporting Professional Misconduct
(a) Lawyer who knows of a violation of Rules of PC that raises a substantial question as to the
atty.’s trustworthiness, honesty, or fitness as a lawyer in other respect . . . must inform
officials.
**Know: Legal def’n of knowledge. Doesn’t require absolute certainty.
(c) Doesn’t require disclosure of information otherwise protected by Rule 1.6 (confidentiality).
Rule 1.6(b)(2)-(3): Must prevent client from committing crime/fraud if it is
reasonably certain to result in substantial injury.
Analysis of Rule 8.3: 1) Obligation to report? (a)
- Do you “know” of violation?
- Does it raise “Subst Q” as to trustworthiness, etc.?
2) Any exception to reporting? (b)
Problem 2-2: Represent in tax audit, client tells you he’s been cheating. Must rat him out
Rule1.6.
Problem 2-3: Former atty. stole from client. Apply 8.31) knows, 2) questions honesty, etc.
*Must tell client and get ok to reveal b/c it is confidential.
Problem 2-4: Find out another atty. in the firm has stolen from trust, but he gave money back
and claims he is better b/c he’s on bi-polar medicine.
*Since it is your firm, it isn’t confidential. Don’t have to get client ok to turn in.
*Is there a reporting obligation? Rules 5.1 and 5.2 are supervisory dutiesdon’t report,
it is as if you ratified it. If you know of violation, you must report it. Also, under Rule 8.3.
*If you fire him, must you still report? YES, 8.3.
Malpractice: Suit in negligence for failure to carry out responsibilities (case w/in a case)
Proof: lawyer negligent, negligence caused loss in underlying litigation
2
Difference b/t Malpractice and Discipline
Malpractice
- one act is enough
- harm to client is required
Discipline
- usually a pattern of neglect (not informing)
- no harm to client is required
 Don’t have to show any damages.
Ch. 4: Competence and Communication
Togstad: A lawyer/client relationship was found where the lawyer told the woman she had no
med mal case, but he would get back to her. Client did nothing, SOL ran.
*There must be relationship for there to be malpractice. Giving advice may create a
lawyer/client relationship. “No Case” – advice, made relationship.
*What did lawyer do wrong? He never followed up, called, or said he wouldn’t take suit.
He also should have told her about SOL.
How to say “no thanks”: Be careful when giving advice . . . it may make her a client.
1) Send a call and letter saying you don’t want to represent them AND why
2) Advise client to see another lawyer. Explain concept of SOL and tell them to hurry.
Engagement Letters: K for representation. Goal is to prevent misunderstandings.
1) Use letter to limit the scope of K (can have more than one for multiple letters)
2) Explain the Fee system (expenses, rates, who will work on file, etc.)
3) Don’t promise “Excellent Results”
4) How to handle any disputes (complaining, contact people, arbitration, etc).
RULE 1.18: Duties owed to prospective client: Duty of Confidence applies to prospective
client (RULE 1.1) and loyalty. (Comment 9).
(a) Prospective Client: Person who discusses with a lawyer the possibility of forming
client/lawyer relationship with respect to a matter is a prospective client.
Problem 4-1: Interviewed person, Atty. said he didn’t want suit. Two months, person called.
Martyn found out it was time barred. What should Martyn do?
1) Was client relationship established? View this from the client’s perspective.
*Negligenceview from client’s perspective (RP client think there was
relationship?)
*K Was client relationship established? Offer/acceptance or make a
relationship by giving advice?
2) Obligation to inform that the SOL has run? YES
1.2 AND 1.4 ALWAYS WORK TOGETHER
RULE 1.2: Scope of representation and Allocation of authority.
(a) Lawyer must advise the client and abide to client’s wishes. Lawyer can take
action impliedly authorized. Objectives – client; Means – client and lawyer.
(b) Can’t advise client to engage in criminal or fraudulent conduct.
*Objectives (ultimate resolution of matter): settlement offer, Jury v. no Jury trial, transaction –
look at what client wants (must do what client wants)
*Means (mode of operation): stipulate to a set of facts, most stipulations,
*In between: filing summary jmt (closer to objective).
3
*Obj v. Means: Think about “who will be affected more, lawyer or client?”
Rule 1.2 Comment 2 & Rule 1.4 Comment 3.
Means to accomplish client’s objectives, must consult client.
RULE 1.4: Communication
(a) Must inform client of any decision to which client’s informed consent is required.
a. Reasonably consult client of means by which client’s objectives are to be met.
b. Keep informing of status.
c. Give requested information
(b) Lawyer must explain matter to extent necessary to permit client to make informed
decisions regarding representation.
Problem 4-2: Martyn took case in 4-1.
(a) Tell SOL has run? YES (filing is an objective, must tell objective can’t be reached)
(b) Martyn be disciplined? Usually not because this was one mistake, not pattern.
(c) Firm be disciplined? NO
(d) Malpractice? YES, very likely – inform client. Missing SOL is malpractice.
Problem 4-4: Martyn forgot to put in a covenant not to compete, supposed to.
*Discipline: Probably not b/c “forgot,” and it was only one time. Not a 1.2 problem
b/c the lawyer didn’t act w/out client’s authority.
*Malpractice: YES, if there were damages.
(b) What if forgot to advise that a covenant not to compete could be included?
*Discipline: Likely no discipline, but Objective that should have advised on. (1.4
violation)
*Malpractice: YES, if show duty, breach, causation, damages. Must be foreseeable
to the lawyer (causation)
De Pape: Lawyer represented both sides in employment K & immigration. (OK if get consent).
Messed up immigration, got wrong status, never told Dr. Told Dr. to lie to cross border.
What did lawyers do wrong?
- Dr. wasn’t present at first meeting, no one informed Dr. about contents.
- Advised client to lie to border cops. (Rule 1.2)
- Changes the classification of Dr’s visa w/out informing client. (Rule 1.4)
- Didn’t follow up after everything went south.
D. Misrepresentation/Client Equivalent (people who can sue lawyer w/out relationship).
Greycas: p. 96Brother needs $, goes for loan. Bank asks for a letter from a lawyer saying the
collateral was free and clear. Letter says, “I’ve done a U.C.C. and tax search, collateral is clear.”
 Lawyer outright lied – never did search. Seems more like fraud, went w/ negli. (INS)
 Can client equivalent (bank) sue for malpractice? YES; Privity req’t is eroded b/c it was
obvious that someone would use and rely on the letter. Negligence/fraud in letter.
 Foreseeable that party receiving opinion letter could be hurt by lie/negligence.
Negligent Misrepresentation: Lawyer, as speaker, intends to supply information to a small group
of people with the intention of the group to rely on the guidance.
4
EX: You know something is not true, still represent it, can be sued for fraud/negl.
Rule 1.1: Lawyer shall provide competent representation of client. Requires legal knowledge,
skill, and preparation necessary for the representation.
Problem 4-6: Martyn forgot to check statute when writing opinion letter, but he still said all
applicable law was applied with. (NOTE: forgot to check, diff’t than case (lied)).
Ask: 1) Who is suing? Client/client equivalent (foreseeable class)
2) Here clearly negligent (forgot), didn’t lie.
3) If someone relied, person was foreseeable, can probably win in negl. Misrep.
*Subject to Discipline? YES, violated Rule 1.1 (RPP would have checked law)
*Discipline probably won’t be applied unless there is a pattern, still “subj to disc”
E. Ineffective Assistance of Counsel:
Roe: Attorney didn’t file appeal in criminal matter (objective). Roe could prove ineffective
counsel if he can show he wanted to appeal or it wasn’t frivolous.
Std for Ineffective Assistance:
1) Lawyer’s actions fell below objective standard of reasonableness (stds for discipline
experts, ABA opinions letters, Model Rules),
2) Lawyer’s deficient performance caused prejudice to the client.
a. “But for” counsel’s error, the results would have been different (if client never
got information, look to see if prejudiced by worse sentence than bargain)
Problem 4-6: Fail to Perform criminal client about plea offer. Is Fox in trouble?
*Discipline: Would a RP lawyer have told? YES. Plea is objective, must inform client
and let him decide. (Rule 1.2) And Failed to inform client (Rule 1.4). A reasonable
competent lawyer would have informed client and filed valid appeal. (Rule 1.1).
*Ineffective Assistance: 1) Below reasonableness std? YES
2) Prejudice and causation? “But for” – no; can’t say for
certain b/c never informed; therefore, use another std. Did
client suffer prejudice due to a tougher sentence?
Malpractice for Criminal Defendants (Tougher std than civil – just prove negligence)
Majority Rule: 1) Win ineffective assistance claim AND
2) Conviction must be reversed – D exonerated. (win on appeal)
*Other jurisdictions: A) Exoneration + actual innocence. (harder).
B) “Colorable claim of Innocence”
TX CASE: D wasn’t informed of plea offer  plea would have dropped suit against D.
*Ct said this wasn’t exoneration. Need actual innocence or reversal of conviction.
Chapter 5: Confidentiality The ethical duty of confidentiality (Rule 1.6) is greater than the
Atty./client privilege. **Ethical duty lasts past actual relationship.
Privilege: For a privilege to exist, the information must be confidential. Only covers
communications b/t atty./client. If client waives (by telling someone else) you owe no duty.
5
Ethics: Doesn’t have to be confidential to have duty. Covers communications about
representation learned from a third party. If waived, you still have ethical duty.
“May” . . . he do something, etc  Dealing w/ ethical rules.
“Forced to testify”  Deals w/ whether or not the communication testifying about is privileged.
Rule 1.6: Confidentiality of Info:
a) Shouldn’t reveal information unless client gives.
b) May reveal info relating to representation if necessary to:
1) prevent substantial bodily harm,
2) prevent client from committing crime/fraud, substantial injury to another,
3) prevent/mitigate/rectify subst. Injury to financial interest/prop of another,
4) secure legal advice about compliance with the rules.
Comment 2Client should be able to expect anything he tells the atty. will be covered. Atty.
owes a fiduciary duty; client should be able to trust.
Problem 5-1: W/no permission, “If you want to know, look at depo in public record.”
*Does this info relate to the representation? If yes, even if public, owe duty of confid.
Problem 5-2: Client opening a theme park, you are writing contract, can you buy adjacent land?
*Rule 1.8(b): Can’t use info related to representation to disadvantage client.
*Would buying land disadvantage? Maybe, land might appreciate. Should ask Disney 1st.
1.8 EX: while representing A, find out A owes debt to another client. Tell other client.
B. Who is your client?
Problem 5-3: A asked Atty. to sue B. Atty. represents bank w/ big loan to B that will close in a
few days. What can we tell bank?
*Must get OK from A b/c it was obtained through representation of A. Rule 1.6.
Rule 1.18: Prospective client.
Even if you don’t agree to represent, you owe a duty to prospective client, even if no client/atty.
relationship, you can’t use or reveal info learned in consultation (except 1.9).
Problem 5-4: CEO of client says, “Transfer this property to me. It’s a liability.” What do?
*We should tell board. It might be contrary to interests of the corporation.
*Best to tell CEO that you represent corp., and you can’t represent him.
- Can you go to the corp. and tell them? YES, you won’t have to get consent from
CEO b/c the Corp is the primary client and has an obligation to them. CEO
expects atty. to act for the Corp. and not him.
Rule 1.13(b) – Confidentiality w/ Corp. client:
If a lawyer for organization knows of an officer who might do something that causes
substantial injury to organization, lawyer should act in best interest of Corp. (tell board)
Perez: Atty. for truck driver’s E/er (and him) in wreck. Took a sworn stmt that would hurt driver
individually. Atty. then quits representing Perez, doesn’t tell. Cops subpoena stmt and Atty.
gives it up.
6
*Perez was a client and expected that the stmt would be confidential. Should have kept it.
*Duty of confidentiality arises out of the Atty./client relationship, but it can arise in a
situation where an atty. might not expect it. Stuff from earlier.
*Relationship doesn’t require $.
Difference b/t A/C privilege and the ethical duty.
- B/c someone else in room, not privileged, BUT still had ethical duty.
- Voluntary disclosures under threat of subpoena may still violate Rules.
Rule 1.6: Can invoke A/C privilege even if subpoenaed. Ct rules against you, must turn over.
*Duties breached:
- Confidentiality (gave up info had ethical duty not to give up)
- Loyalty (favored Coca-Cola over Perez).
- Competence (RPP atty. would have known ethical rules and informed client)
*This is an example of Atty. acting as a Director. Best for situation, not best for client.
C. Atty./Client Privilege: No A/C relationship, Atty. can be “Forced to testify.”
*Big difference b/t A/C (privilege) and Confidentiality (ethical duty-broader)
Two cases: 1) Atty. gets call from person wanting to return stolen prop. Just drops prop. at
house. Lawyer gets paid. Lawyer asserts the privilege. Just conduit for returning prop.
*Atty. can’t assert privilege b/c he wasn’t acting as an atty., no advice/representation.
2) Atty. gets call, “What do I do w/stolen prop?” Client said, “I want you to represent, I want
advice, etc.” Atty. advised client to return property.
*A/C privilege existed. Here, the lawyer established an A/C relationship by questions.
- Atty. here gave advice, acted like atty., not just conduit.
3 tests to see if A/C Privilege Exists b/t Atty. and Corporate Client:
 Subject-Matter Test: Communications between employees and attorney concerning
matters within the scope of employees’ duties made for purpose of securing legal advice
for the corporation.
o Communications doesn’t have to be about e/ee’s conduct, just w/in scope of job
o Any E/ee can fall into this test. Regular E/ees should be fully disclose & priv.
 Functional Test (middle test): Covers E/ee who is discussing his own conduct
performed w/in the scope of his job.
o EX: Someone falls, E/ee sees it. Not E/ee’s conductnot privileged.
 Control Group Test: (Narrower) Focuses on who is doing the communications.
o Only person (upper echelon) who normally talks to counsel is privileged
People tend to try to run everything by an Atty. to make it privileged, this usually doesn’t work.
Work Product: If something really is a work product, opposing counsel can’t get to it.
They can have access to the Source of Information, but not to the actual document.
Applying Subject Matter Test
Problems 5-7: Turn over notes of interviews w/ client in settlement? Not covered unless w/in lit.
5-8: Relinquish communication had w/ old CEO if ordered by new CEO? New CEO can waive
the A/C priv. Priv belongs to the org, not the CEO.
5-9: Client be req’d to testify as to where he was on night in Q? Yes, he can be forced. Privilege
doesn’t cover this. Can’t get communication w/ lawyer, but you can have access to information.
7
5-10: Atty. be forced to testify about conversation w/ banker about merger? This is covered by
the ethical duty (1.6)-info obtained through representation. Not w/ C, so not A/C Privilege. Try
to say that Banker is an agent of your client. Agent, Priv. applies. Just comm. w/ 3d, not priv.
5-11: B/f dying, confessed to atty. committed crime, other is serving time. Can’t reveal info. A/C
Priv survives death. Policywant people open/honest w/ atty (maybe concerned about rep, suits)
Exceptions to A/C: 1) Crime/fraud: can (don’t have to) reveal confidential information if C
using information for purpose of doing a crime/fraud. NOTE, this is different from ethical
obligation. Ethically, Atty. must say, “I can’t help/counsel to do crime.”
2) Self-Defense: If Atty. is implicated, he can reveal just enough info to exonerate himself.
3) Public Policy: That’s all to know.
4) Waiver: Privilege belongs to C to waive, but Atty. can waive b/c he’s the agent EVEN if the C
doesn’t want him to waive it. If confidential info goes to 3d party, A/C Priv is waived.
Inadvertent Disclosure: Info pertinent to representation accidentally goes to unintended party.
Mainly where you accidentally hit the wrong number/send.
 ABA’s ruling, when you realize info was inadvertently sent to you:
1) Can no longer examine information after you realize inadvertent,
2) Notify the other side, and
3) Abide by what the other side said to with it.
Rule 4.4(b) (new): Receive doc, you know inadvertently sent, must promptly notify sender.
*Comment: Must look at law of jurisdiction as to what to do after notify. Some
jurisdictions say inadvertent communication waives privilege . . . keep it. Others, ABA.
Problem 5-12: P gets doc that says, “to all D counsel.” Don’t look, notify, abide.
*What if in plain envelope saying, “knew you’d find this interesting.” B/f opening: No reason to
suspect this was inadvertently sent. R 4.4(b) doesn’t help. Might think it was something that
should have been produced in discovery. After opening: You would see it was for other Atty.
Still, not inadvertent. Someone wanted you to have it. But, you know other side doesn’t want you
to have it, but it depends on law of Juris. 4.4 won’t apply, but the wise thing to do would be to
try to have judge decide. No direct guidance.
D. Exceptions to Confidentiality (not A/C privilege, Confidentiality):
* A/C Privilegeonly when trying to compel someone to testify. Confid – let info slip.
1. Expressed or Implied Authority:
Pressly: Atty. being sanctioned. Atty. convinces C to give up on custody to get other stuff. C
later found out Dad abused kids. Opposing counsel asked, “why does your client want custody so
bad.” Atty. told opposing about C finding out about abuse.
*Was this impliedly authorized? NO, C specifically said, “Don’t tell the Dad.” – violated
both the duty of confidentiality AND the duty of abiding by C’s wishes.
*If client hadn’t specifically said, “don’t tell,” it might have been impliedly authorized
(Atty. could have used it as leverage).
Problem 5-13: M&F want disclaimer: “We have discretion to disclose any info and settle
whenever we want . . .” This is directive behavior . . . obviously can’t do this.
8
Problem 5-14: C says after signing will, she will kill herself. Must lawyer do anything? NO,
lawyer not forced to do anything under ethical rules. He MAY tell (R. 1.6) if very sure.
2. Physical Harm Exception: 1.6(b) (Confid- info must be reasonably related to the represent.)
Problem 5-15: May (Must) atty. tell if C plans to kill? Must - NO (not req’d); May - yes, does the
lawyer believe it is necessary? Reasonably certain the harm will occur? 1.6(b).
*What if C tells us his son plans mayhem? 1.6(b); yes - prevent reasonably certain death.
Case: Atty. warned that C may be dangerous. Atty. didn’t say anything at bail hearing, he hurts
someone. Atty. not liable for malpractice b/c NO DUTY to disclose this info. Not even sure of
what will happen OR who it will happen to. Not Certain harm will occur.
*Permissive Disclosures: Catch 22 if Atty. discloses (possibility for malpractice/disclosure).
5-16: May M&F disclose arsenic drums behind plant C bought? 1.6(b)(2) - might hurt enviro,
terrorism, etc. “Reas. Certain” + “subst. Injury.” Here, just possibility, can only assess risk by
asking C for more information.
Case: Do you have a duty to reveal life threatening information when you have entered into a
settlement and if the P knew this info, they would ask for more $? Help Ps life AND his case.
- Concern: It is more than protecting P, it helps other side. What will client say about this? Client
will get nervous, “P has Drs”C isn’t a barrier. It must be clear that subst. Injury will occur.
5-18: May M&F disclose info that C committed a crime for which innocent is serving? Death P?
Hard b/c we’re not certain that it will result in subst. Injury. In Death case, clear/certain that
Death will occur. Therefore, MAY reveal. Try to not reveal your C, Duty to protect your C.
3. Seeking Advice and Self-Defense: OK to secure legal advice (1.6(b)(4))
1.6(b)(5) “To extent reasonably believed to be necessary . . .” can reveal D/Claim b/t A/C, or
to respond to allegations concerning Atty.’s representation.
**OK to reveal confidential info to secure advice about rules or self-D.
Problem 5-19: C threatens w/ malpractice, can we threaten to disclose confid against C?
“To extent reasonably believed to be necessary . . .” may need to reveal confidential info to get
yourself off, OK. Can’t use it to try to intimidate C in dropping charges.
*Use Confid. Info to get pmt of fees? Absolutely, can use info to go after $, as long as necessary.
*Disclose if 3d party sues us for our role in C’s loan? Yes, concerning Atty.’s rep (1.6(b)(5)).
**Comment 10: An action doesn’t have to be commenced against the Atty. for 1.6 to
start. Any controversy, charge, or claim is enough to respond w/ confidential info.
What you reveal must be narrowly tailored to reveal as little confid. Info as possible.
Case: Atty. told firm what to do (Securities stuff), and firm didn’t do it. Atty. went to SEC and
gave a report about what he told firm. Atty. then named as a D in a suit . . . he decides to show
the P’s atty. the report. Really helps Atty. b/c it was prepared b/f litigation.
- It was OK for Atty. to use the report to get him out of the suit. Reasonable b/c
it REALLY proved he wasn’t in on it.
9
5-20: M&F and C split, what can we tell new Counsel? Not self-D, not securing advice. Can’t
tell them anything. OK to warn w/out disclosure
5-21: ATTY. from another firm says she’s worried about C lying. Can she go into more detail to
tell us about it? OK to reveal information b/c 1.6(b)(4) - getting independent evaluation on how
to adhere to the Rules. OK to reveal for help in rules. ABA recommends using a hypothetical.
*If not getting info about PRC, be careful using hypo and revealing confidential info.
4. Financial Harm: For crime/fraud exception to A/C Priv, C must be using Atty. service to
further the crime
Rule 1.2(d): Can’t counsel C to engage (or assist) C in conduct that Atty. KNOWS is crim/fraud.
Rule 1.16: Mandatory w/drawalShall w/draw if representation will result in violation of
Professional Rules or other laws.
Rule 1.6(b)(3)Can reveal info to prevent, mitigate, or rectify subst. Injury to financial
interests of another, that is reasonably certain to result in crime/fraud in furtherance of which
the C has used the Atty.’s services (used services to further crime).
- You can Only reveal to the extent reasonably necessary to “. . . prevent, mitigate, . . .”
- (b)(3) applies where Atty. doesn’t learn of C’s crime/fraud until after it has been
consummated. Atty. may disclose if prevent/rectify/etc.
Rule 4.1(a): Atty., while representing C shall not knowingly, make a false stmt of material fact
or law to a 3d person.
Comment 2: Certain stmts aren’t taken as stmts of material fact. Estimates of prices/value
placed on transactions or settlement are not material facts . . . they are acceptable.
(b): In representing C, Atty. shall not fail to disclose a material fact when disclosure is
necessary to avoid assisting a crime/fraud by C UNLESS disclosure is prohibited by Rule 1.6.
“The Opinion Letter”: Two friends, One Atty-one businessman. Atty. gave op letter saying
business had good Ks, later found out that there was a huge fraud on the business by a salesman.
Atty. wants to tell the bank about the Ks . . . Atty. knows he will have to w/draw.
- 1.2(d): Is the Atty. assisting in fraud if he doesn’t tell bank? Here, we know there is a
fraud. Some jurisdictions say “leaving info wrong is fraud.”If so, Assisting
- 1.6(b)(3)Applies. Prevent substantial harm. CAN, not mandatory to tell. Applies
when you learn your opinion letter is helping to further an illegal act.
- 4.1(b) This one is MANDATORY, not just permissive like 1.6(b)(3). Again, look to
jurisdiction to see what assisting in fraud is.
- Only other obligation to reveal (besides 4.1), when you lie/misrep to a tribunal
Problem 5-22: M&F told C importance of full disclosure in B’ruptcy. C didn’t, can A be forced
to testify about warning? A/C Priv: NOTE, this isn’t using the rules (ethical duty of
confidentiality). A/C’s crime/fraud exception apply? NO; Here, just simple warning, no
exception, not using Atty.’s services to perpetuate/further the crime.
US v. Chen: Elaborate scheme where C is lying to customs and IRS to avoid taxes. Atty.
discloses some info to customs to perpetuate the fraud. Crime/fraud
RULE *Std for Crime/Fraud Exception: Was C using the Atty.’s services (even if Atty. didn’t
know) to perpetuate the crime  IF so, brings this under the C/F exception.
10
5-23: Negotiating, we say C won’t pay over $500K, when C says to settle a.s.a.p.? Probably OK
b/c just jockeying for position by price. Rule 4.1(a) comment 2
*Can Atty. lie (“C said only 500K”, but in reality has 5M)? Is this a misrepresentation of
material fact? Argue that this is playing the game. Probably falls under 4.1(a) b/c didn’t have to
speak up. Clearly a lie, and it isn’t possible that this is just puffing. Should have just avoided Q.
5-24: Atty. accidentally told buyer wrong zoning, found out. What happens if Buyer finds out
Atty. knew? Ethical DutyBreached duty of confidence. Restmt of Torts: Failure to reveal
subsequent info that makes previous representation fraudulent is fraud. Also, assume we can
rectify the situation1.6(b)(3) applies (may tell). Also, if fraud, 4.1(b) says you must tell - now
that you KNOW it was wrong, it is fraud (restmt of torts), You have duty to tell.
1.0 comment 5 (fraud): Doesn’t include merely negligent misrepresentation. Jurisdictional.
5-25: B/f IPO goes out, CEO says, “glad didn’t have to disclose copyright suit.” CFO says, “Sure
glad auditors didn’t put that $65M financing on BS.”
1) Assume it is fraudulent . . . Atty.’s options: W/draw-1.16; Disclose? 1.6(b)(2)-subst.
Injury to 3d party (shareholders), then atty. CAN disclose. “Up the ladder.”
**What if we tell CEO to disclose and he refuses? Now we must look at the best interest for the
org. (R. 1.13 - org. is the client, not officers). Try to talk CEO out of it. If can’t, must go “up the
ladder.”  Go to the Bd of Dir (Sarbanes-Oxley - practicing b/f SEC).
Sarbanes-Oxley: Req’ts for attys.
*Up the ladder req’t: “If you know of violation of law, must talk them out of it, then keep
going up ladder.” Accepted
*Noisy W/drawal: No agreement on this. Not yet a rule. If can’t get the Bd/CEO to “do
right,” Atty. has a duty to w/draw, explain to SEC why (breaking law, C won’t correct). 1.6(b)(2)
would allow this, but ABA and Atty.s
*Consequences for not “going up the ladder” . . . disqualified from practicing b/f SEC.
**Fin. Harm in the C/F exception, C must be using (have used) advice in furthering crime
5. Law/Ct Order Exception: Physical Evidence:
Problem 5-26: Any obligation to disclose if C tells Atty. where the stolen $ is?
If just information, no duty to tell. No physical evidence, just information related to rep.
*C hands over key to safety deposit box where $ is hidden. Obligation to disclose?
Atty. takes, make harder for authorities to get $. Can’t make authorities job any harder/hide.
*Can atty. give key back to C? No worse off. Fits in w/ rule that as long as Atty. doesn’t make
authorities’ job harder, probably no discipline. NOTE, other law may require A to give up.
Rule 3.4(a): Atty. shall not, unlawfully obstruct another party’s access to evi (or alter evi). Can’t
counsel to do that.
*Unlawfully - considered in light of statutes (obstruction of justice). Probably have some
obligation if take key. RULE: Can’t make authority’s access to info. harder.
5-27: May/must Atty. inform that his C has killed two kids. Knows where body is. Obligation?
11
Don’t have to give up. Not hiding evidence/making harder, no 3.4 violation. Conflict b/t Duty of
confidentiality v. Atty. being an accomplice.
*What if parents still hope kid is alive and there is a search? Permissive - 1.6(b) (always ok to
save kids’ life). BUT, Atty. must reasonably believe kids still living.
6. Law or Ct Order: Practice b/f a Tribunal
5-29: What should Atty. tell a judge when asks A to reveal C’s bottom line?
Don’t lie to judge, try to get C OK.
*Settlement amt is confidential info., decision is up to the Client. Even though telling
judge, it is still a breach of confidentiality/Rules. BUT, still can’t lie to judge.
*Other options: 1) Refuse (not at liberty), 2) Call in C and have him tell, 3) Get
permission ahead of time.
*There may be benefit to giving up info, but it isn’t in Atty.’s scope of decision making (obj)
Rule 3.3: Candor to Tribunal: Atty. shall not knowingly make a false stmt of material fact/law
to tribunal or fail to correct a false stmt of material fact/law previously made by Atty.
5-30: C lies about her name in Crim. Case, what do you do?
Tell Cshouldn’t have lied, can’t enter appearance for wrong name. C won’t go along w/ Atty.
advice, must w/draw (1.16 - rep would violate rules/law). Also, 1.2(d) - assisting crime.
**Also, just b/c another atty. told you to do it, no defense.
5-31: C dies b/f trial. Can we settle b/f other side finds out? Obligation to tell other side.
If don’t tell: *Atty.’s representation to the other side: Atty. created impression that man was still
alive. Could have saved a lot of time and effort.
*Client lying to tribunal: Same duty to arbitration as to ct. Also, 1.2(d) - instructing to
commit crime (perjury).
5-32: May/must you disclose to the other side that there is a witness outside the ct room that
opposing side has been wanting to subpoena? Must-NO (not hindering evi.); May-NO, you
aren’t correcting your mistake or something similar. Related to rep, no exception.
5-33: May/must atty. disclose an error by the ct (C previously convicted) that we had no role in
causing? May want to tell b/c it could really piss judge off if he finds out later. Nothing in rules
to allow you. *Judge asks, “do I have the facts right, then tell (candor 3.3).
5-34: Atty. writing appellate brief. Found case that directly contradicts his.
Rule 3.3(a)(2)Shall not fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the Atty. to be directly adverse to his position and not reported by
opposing.
**Note, it must be controlling authority.
**Purpose, we want to try on the law (opposing maybe breached competence).
**If the adverse part was dicta, it isn’t direct  don’t have to report.
RULE 3.3: (a)(3) it has 3 partsAtty. can’t offer evidence that he knows is false. (False
evidence is perjury). Lawyer should seek to get C not to give false evidence.
12
-
(a)(3)If atty. comes to know that material evidence from witness (called by atty.)/client
gave false testimony, atty. MUST take reasonable remedial measures, can tell ct.
o Atty. must have put on evidence to have a duty to correct it. (other side, no duty)
o If not material, you don’t have to go back and correct.
o Idea of telling judge that your C is lying is very dicey. No one wants to.
o
Remedial measures1st try to get C to correct, w/draw if C won’t give you
permission (can’t w/draw if ct won’t let you out; can’t w/draw if it won’t alert ct
of the false info), MUST get permission from C to correct the record b/f going
to the tribunal (telling tribunal is the last resort, only reveal as much as
necessary).
- (a)(3): Zone of discretion: Atty. MAY refuse to on evidence, other than testimony in a
criminal matter, that the Atty. reasonably believes false. (PERMISSIVE)
o Can’t refuse evidence in criminal matter UNLESS you KNOW.
o Reasonably believe false is a very different std from “Know”
 KNOW-required to fix (if material, even if crim).
 Reasonable belief - MAY refuse evidence
*What is conclusion of the proceedings? Final judgment affirmed on appeal or the time for
appeal has passed.
3.3 (a) summarized
**Can’t put on false evidence; if accidentally do, you must correct or tell Ct (mandatory)
1.6 is permissive, 3.3 is mandatory (except the Zone of discretion part).
3.3(b)If you know C intends to engage in criminal/fraudulent conduct related to proceedings,
must take reasonable remedial measures.
False Inferences v. facts: Atty. can give false inferences. I.e.Knowing his C did the crime,
Atty. says, “it could have just have easily been the man down the street.”
3.3(a)(3) ANAYLSIS: 1) you put on the evi, 2) you KNOW it is false, 3) it was a MATERIAL
FACT, then you must take reasonable remedial measures to correct (must tell C first)
**Material - look at charge, how the evidence relates to the charge. I.e.find out an expert
doesn’t have his college degree, but he lied at trial/depo saying he did.
Stds for Knowledge:
1) “Firm basis in fact”Doesn’t have to be personal knowledge, but more than just suspicion.
5-35: Ask C, do you smoke weed? He says yes. Opposing asks him at trial and C says “NO.”
1) We “know” C lied. 1.0(f)knowledge can be inferred from circumstances (C told you).
KNOWLEDGE IS A VERY HIGH STD . . .
2) Is it material fact? If it ismust go back and correct. If notno duty to correct. Probably
is b/c both attys. asked about it.
ABA Opinion/Comment: R. 3.3 applies when there is a proceeding ancillary to the Ct.
- I.e.: depositions, arbitration, mediation.
13
Criminal Cases - D wants to lie: If KNOW it is false, must still refuse to give wrong
evidence. Conflict b/t Atty.’s duty of candor and the C’s 6th Am right.
5-36: Criminal D insists on testifying (objective) and lying.
*What do we do? 1) know it is false, 2) know it is material
1stTry to get the C not to lie. Decision for C, but Atty. can take decision away and
refuse to allow C to testify if Atty. knows it will be a lie. This won’t be ineffective Assistance.
**If it is just our reasonable belief that our C is lying, in a criminal case, Atty. CAN’T refuse to
put him on the stand. In a civil case, Atty. MAY refuse (permissive)
MinorityNarrative Approach: C can still testify, in narrative form, and say he didn’t do it, not
false inferences, but actual denial. Atty. can ask no Qs, must sit at desk.
*Comment 7: Duty to tribunal is subordinate to the accused D’s right to testify if he so
desires. This is why the narrative approach is used. BUT, if you know false, duty to stop.
Atty.’s as Collaborators:
*Must help your Client achieve his goals w/in the bounds of the law. Would stop C if it
would harm others, require atty. to act unethically.
Directors-set the agenda/goals. Probably happens more w/ unsophisticated C;
Instruments-go along w/ any goals, even if illegal/unethical/hurts. Happens w/ sophisticated C.
Ch. 6: Loyalty (Conflicts of interest) p. 251conflicts
Def’n: Situation where Atty.’s obligation to someone else/other C interferes w/ service to C.
1) Is there a C,
2) Determine where conflict exists? (this is the meet)
3) Decide if consent-able?
4) If so, get the consent
Remedies: 1) Disqualification (preferred remedy b/c it remedies the harm that the atty. may give
up confidential info to the competitor), 2) Discipline, 3) Disgorgement of fees.
Two types of Conflicts
1) Successive: move from one C to a new one . . . is there a conflict?
2) Current: R. 1.7 (general rule)
This is the general Rule . . . There are other specific rules.
RULE 1.7(a): Atty. shall not represent C if representation involves a concurrent conflict.
(1): Rep of one C will be directly adverse to other C (rep P and D in case) - RARE;
(2): significant risk that the representation of one or more C will be materially limited by
the Atty.’s responsibility to another C, former C, or 3d person. - (Catch all provision).
(b) Still can represent if:
(1): Atty. reasonably believes he will be able to provide competent/diligent rep to each C;
(2): Rep not prevented by law;
(3): rep doesn’t involve the assertion of a claim by one C against another C represented
by the lawyer in the same litigation or other proceeding b/f a tribunal. - (never OK).
(4): each affected C gives informed consent, in writing (can’t sue old C, can’t consent).
Comment 10: If Atty.’s own conduct is in transaction, can’t give detached advice
14
Comment to 1.7: Lawyer related to another lawyer, ordinarily may not represent a client in a
matter where that lawyer is representing another C UNLESS each C consents.
Comment 34: Atty. who represents org, does not rep parent or sub. Atty. isn’t barred from
accepting representation adverse to an affiliate org (such as parent or sub) in an unrelated matter,
UNLESS Circs are such that affiliate be considered a C of Atty.
1): Significant control of affiliate by C, (??What does this say for rep of sub??)
2): Significant loss/benefit on affiliate that will have adverse effect on C
3): Disclosure of confidential information of the affiliate.
4): Understanding that Atty. won’t take action adverse to any affiliate/parent. (in K).
5): Likely to limit the representation of the original C
Problem 6-1: M&F works for D in prod. Liability case. P atty. represents also represents a
subsidiary of the D. Is this ok? Represent a Corp, do you rep the subsidiaries?
*Rep sub, want to sue the parentMay be fine, but you have to look at the
circumstances. If Both are your C, you can’t sue.
CASE: After yrs of advising one C (Atty. has a lot of confidential info), Atty. starts representing
competitors. C and Atty. sign K saying that Atty. won’t advise the C’s BIGGEST Competitor.
Atty. gets rid of old C and then takes on new one.
*Any “direct adversity?” NO, not representing different sides in same litigation.
Economic v. legal adversity: Comment 6: Simultaneous representation in unrelated matters of C
whose interests are only economically adverse (competing eco interests, representing in noncompeting litigation) not ordinarily a conflict of interest (NO CONSENT REQ’D).
* Significant risk that it will materially limit rep.? Atty. has confidentiality duty, BUT he has
motivation to use it (new C’s best interest). HUGE temptation to give up info.
**Same line of business, Atty. knows old C’s “playbook,” knows how they bargain, etc.
**Old Atty. and C had a K saying that Atty. wouldn’t go after competitor. Fired C.
Moved from a current conflict to a successive conflict (worried about using confid info).
Shouldn’t be allowed to undo what you did for the first C (give up confid, counter advice, etc).
*NOTE, you can’t get rid of a conflict by getting rid of the C - Successive CoI.
D. Personal Interests of the Lawyer: Generally fits under 1.7(a)(2). “ . . . sense of duty to self.”
Types of things that create Personal CoI:
1) $ (may motivate an atty. to do better for one C);
2) Sensing a promotion/bonus if do good for a C;
3) Relationships may affect personal interests (there is a specific rule). Can’t rep fully;
4) Relationships w/ a C (there is a specific rule);
5) Transactions w/ C - can take adv. (there is a specific rule);
Say: Atty.’s ability to represent C is affected by the Atty.’s (personal interests).
Rule 1.8: Specific rules about conflicts.
(a) Business Transactions: Atty. shall not enter into business transaction w/ C or knowingly
acquire ownership/possession/pecuniary interest adverse to C UNLESS:
15
(1) Transaction/terms are fair/reasonable. Fully disclosed and transmitted in writing
where C can understand.
(2) C is advised in writing of desirability of seeking and is given opportunity to seek
advice of independent legal counsel on the transaction.
(3) C gives informed consent, in writing, to essential terms of transaction and the Atty.’s
role in the transaction (is Atty. rep C?).
(c): Atty. can’t solicit a testamentary gift or create instrument where Atty. receives it.
(d): Prior to conclusion of representation of C, lawyer shall not make or negotiate an agreement
giving Atty. media rights to the representation. OK after the suit.
(e): Shall not provide financial assistance except:
(1) Lawyer may advance ct costs and expenses of litigation; only contingent on
outcome of the matter.
(2) For an indigent C, may pay ct costs/expenses regardless of contingence.
(h)(2): Atty. shall not, settle a claim for malpractice unless the C is advised in writing of the
desirability of seeking, and is given a reasonable opportunity to seek advice of independent legal
counsel.
(j): Atty. shall not have sexual relations w/ a C unless the consensual sex existed when the A/C
relationship commenced. (This is a hard line - just say NO . . .)
Business Transactions
Problem 6-2: Should Atty. take 1/3 shares of stk in new business instead of an hourly fee.
*Same as a business transaction w/ a client. You may do something adverse to C for your
interest. EX: Atty. won’t recommend issuing more stk. See PRC 8.1(a)(1)-(3) . . . ownership int.
Case: C and Atty. in business. K said, “both share patent 50%”.
*Can’t say, “we weren’t A/C, we were partners.” C came to A for legal advice; that made an A/C
interest. No clear point where C knew it was no longer A/C and now partners.
*Problems: Didn’t inform C in writing early on to get independent Atty.
Ct said it wasn’t fair to C.
Problem 6-3: Can M&F in all wills/estates that an M&F atty. will be the executor of each will.
*Administrator of estate is something each C should make a decision on.
*Can ask C to allow an M&F Atty. to be administrator.
6-4: Free legal advice for criminal D if he gives you rights to the book?
*CoI b/c the $ may be better if you lose. Interest for atty. is to make the suit a public
affair. Best for C may be to have a boring D. See PRC 8.1(d) . . . OK after trial.
6-5: C won’t be able to make enough money to pay grocery bills until jury verdict. Can atty. pay
her bills instead of allowing her to settle? See PRC 8.1(e)
NO*Now, Atty. has too much vested interest in the outcome. CommentIt will
encourage extra/frivolous cases. Potential for abuse of the system . . . trying to keep suit alive.
*Other CoIChanges dynamics of relationship. Atty. is now acting more like the boss, C
feels like they have to do what Atty. says.
6-6: M&F forgot to file b/f the SOL ran. Should they tell the C and offer to pay the entire amt?
16
*ConflictPersonal interest of Atty. (Malp/Disc). C’s interest-what will happen w/ case
and advise.
*Should Atty. tell? YES *Should Atty. offer to pay the entire amt? NO. Dumb
for Atty. b/c malpractice is hard to prove. See PRC 8.1(h)(2)
6-7: Can Atty. play big part in case when opposing counsel is that atty.’s wife?
*ConflictChance that confidences could be inadvertently revealed. Loyalty Risk: One
may not represent C as zealously b/c she wants hubby to win.
Comment to 1.7: Lawyer related to another lawyer, ordinarily may not represent a client
in a matter where that lawyer is representing another C UNLESS each C consents.
**Must first go through the 1.7 analysis b/f applying this comment.
Sexual relationship w/ Clients:
Sex case: Pres of WA bar association. Has sex w/ 6 Cs. After wife finds out, he w/draws from
the representation. Atty. goes back to his wife and the woman sues him (he settles).
*Discipline: Analysis proceeds under 1.7(a)(2).
*Conflict of Interests1) Potential for undue influence (Atty. is in opinion of power). 2)
Concern that the Atty. may use the representation to further the sexual relationship. 3) A
lawyer’s independent jmt could be clouded by the sex. 4) In divorce caseruins the chance for a
reconciliation; will hurt the C in custody dispute.
I.e.R. 1.4: He failed to disclose the effects of getting caught on the representation.
**What if Atty. had explained all the risks? Practically, people don’t tell of the risks. No
incentive to give up info (Why am I screwing him?).
CT: R. 1.7(a)(2) Applied the “reasonable Atty. std.” No reasonable atty. ould have
thought this could be undertaken the representation w/out any problems.
Dissent: This was consensual. Degrading to women. C chooses atty., has the power (but,
really -- after sex, maybe changes). Hurts freedom of love. Paternalistic.
Most common to find sex cases: 1) Discipline and 2) We also see a lot of suits in “breach of
fiduciary duty” cases
E. Multiple Parties: Concurrent conflict when you have conflicting Cs at the same time.
1. Aggregate Settlements:
Problem 6-10: Car wreck P atty. represents 3 people. Should we settle all 3?
Rule 1.8(g) - 2 or more C, Atty. shall not participate in aggregate settlement, UNLESS each
gives informed consent in writing. Disclosure shall include existence and nature of all the claims
involved and of the participation of each person in settlement. (“Your claim is worth __”) - it is
assumed that you aren’t giving up confidences.
*Insurance Triangle: Inherent Conflict b/t Ins. Co. and C. WE’RE COMING BACK TO IT
What if it is the Atty. for D, multiple Ps say, “we’ll take full policy limit.” Does Atty. represents
both Ins. Co. and Cpotential conflict b/t Insurance Co. and C.
2. Simultaneous Representation of Adversaries: Do we have direct adversity?
6-11: Viacom and Disney are competing for 1 open TV channel in NY.
17
(a): Can M rep Viacom while F rep Disney if each has their C’s consent?
*No, this is direct adversity, not economic. Can’t undertake the representation w/out
hurting another since only 1 channel. Gain for one is the loss of another. Can’t represent both
effectively, C’s can’t consentnonconsentable.
*Most conflicts are imputed; every atty. is Atty. of every C for firm. If one atty. is
disqualified, so are the others. One person’s act is imputed. Personal Conflicts are not imputed to
other members  ex-marriage to others, sex.
(b): What if Atty.’s feel comfortable w/ it? NO, not consent-able, Doesn’t matter. NO way
you can represent one w/out limiting the representation for the other. Competing for one spot.
Can’t reasonably believe that you could provide competent representation to both, only one wins.
**RARE, but if dual rep can only provide one winner, can’t represent both.
(c): If firm already represents Viacom in unrelated matter, can we take on rep of Disney?
*Yes, they can represent both. Here, not one C suing another. Must still get C’s consent.
If one C is asserting a Claim against another, you can’t represent. This is just a transaction. If any
litigation was involved, you couldn’t represent the new party. Economic adversity OK, But out
of loyalty, you can’t represent someone suing your old C. Litigation makes the difference.
*Rare to find something for which you can’t consent. Not about confid, about loyalty
EX: A rep B in litigation w/ D; Can A also represent D in unrelated matter while representing B?
NODirect adversity; the litigation aspect makes this a direct adversity.
*”Hot Potato”: Dropping C so you go from a current conflict to a successive one. Successive is
easier std. More likely that you can rep opposing in unrelated litigation. Hot Potato rule prevents
you from representing in unrelated. NOT ALL FOLLOW IT.
- Successive - Look for material adversity on a substantially related matter.
Atty. wanted to make it a successive CoI where the std is easier.
3. Joint Clients:
Marriage (both)-only in NY; Criminal (both)-ordinarily shouldn’t; civil (2 Ps)-ok, inform of
CoI/consent; B/S in RE trans-ok, get informed consent/explain potential CoI.
6-13: Hubby and wife ask Atty. to rep both of them in dissolution of marriage.
(a) Can you Represent both?
*Rules: Can’t rep both in litigation. Can represent both in same transaction.
*This is closer to litigation than business transaction.
(b): What if they have reached a decision on property/custody/etc?
*No, still can’t . . . potentially could still get very nasty
(c): Can atty. mediate issues? YES. Here he has an impartial role.
(d): If mediation is successful, can you then represent both to effectuate divorce?
*More than an agreement. Most jurisdictions say, NO. NY will allow it under certain
circumstances. Not categorically improper if mediation was successful (not longer a dispute),
best Atty. can tell there won’t be a conflict, atty. can carry it out w/out hurting both.
*Generally, still too big of a conflict.
18
6-14: 2 Ds charged w/ murder. Can you represent both?
*Criminal CoDs. Not direct adversity. But significantly handicapping ability to rep both.
Not per se conflict, but you shouldn’t take it.
*Comment 23: B/c the potential conflict is so grave; ordinarily, a lawyer should decline to
represent more than one D. i.e.-plea offer to one to testify against other. Different than civil
situation b/c if you wait for conflict to arise, it could seriously hurt other.
(b): What if only the shooter is eligible for the death penalty?
*Just showing how it could be such a great problem.
(c): M one, F other? Imputed conflicts if can’t do one.
6-15: Rep driver/son and passenger/father where the other car’s driver was guilty of speeding.
(a): Can we take it?
*Yes, there are potential conflicts, but it isn’t as great as criminal case. There are
benefitsone accident, need both for info, etc.
(b): What if son says, “I had a little to drink b/f picking up dad.”
*Potentially, the dad could sue son.
*Don’t “really need to stay away”, let them know of potential conflicts and get their consent.
6-16: Corp brokerage C and two stockbrokers have been sued for insider trading.
(a): Can we sue both the brokerage house and the two brokers?
*If brokers violated the law, E/er and E/ee could have contradictory defenses. E/er will
say, “we didn’t know about it.” E/ee will say, “this is what I was trained to do.” Practically, you
won’t have this info at the outset. Can’t do it if there is this big difference.
*Must get informed consent even if there isn’t a potential big difference like above. Can’t
reveal the confidences if you interview the broker and decide not to. Must tell brokers, “we rep
house, and maybe you . . . depends on interview.”
6-17: B/S want firm to do RE transaction. Everything agreed on.
*Yes, but you must get informed consent, explain potential conflicts. Not uncommon
6-18: Long time C wants you to rep 3 partners in forming a bus. Take Rep?
*YES, but there is a potential CoI. Get Inf C. At any time, the 3 C’s interests could become
adverse. Acting as an adviser (common goals, objectives, legal considerations). W/draw if CoI.
6-19: CEO of C asks us to help him and wife set up will. OK?
*Rep both? YES, but there are risks. Atty. must get informed consent in writing. Potential
conflict. Comment 27: Atty. must recognize the potential conflict. Say, “I can’t keep confidences
from your wife, if there is something you want me to, I must w/draw.
*Wife asks you to make a separate part for a “friend.”
Now there is a conflict. Atty. can’t draft this b/c it will completely undermine the purpose
of the representation. Must w/draw.
*Can firm tell hubby?
General rule is NO. Restmt position would allow it if the info is materially adverse to spouse.
*Later during divorce, can wife call and get a copy of assets of hubby?
She was privy to the information in the first place. If NEW info in will, not originally
privy to, still can tell. When joint rep, assumed they shared info.
19
Comment 31Get informed consent to potential conflicts of interests. Must tell Joint C’s up
front that any info. will be shared between them.
4. Positional Conflicts (smaller issue)
6-20: Client A wants to challenge “poison pill” provision. At same time, Client B wants to
enforce a similar provision in a diff’t case
*Generally can take inconsistent position at the same time. But can’t take position that will
undo your work for the other Client. Potentialtake inconsistent opinion, there is a concern the
atty. may undo his own work for his other C.
Factors: 1) Ct filed (same ct house-Federal districtcould be problematic)
*Does it matter if Client A wants to make a Constitutional Challenge in the same District Ct
where Client B’s case is filed?
YES, can’t make both arguments. It could make a legal obstacle that could definitely be
adverse to our B. *Most definitely will hurt other? Likely you will undo work for another C?
F. Interests of a Third PersonProblem when one pays the bill for another. I.e. - E-er/E-ee,
Parent/Child, Inurer/insured. Important to remember who your C is.
6-21: Estate planner Atty. says, “Can you change something in Dad’s will? Dad can’t come.”
*Atty. should say, “Oh, I’ll make a house call.” Ask, “Can son act as agent?” If yes, then the
son can do all the changes possible. Must be clear that Son is acting for C.
RULE 1.8(f): Shall not accept compensation for representing a C from someone else UNLESS,
1) C gives informed consent, 2) no interference w/ lawyer’s independence of professional Jmt or
w/ A/C relationship, and 3) can’t reveal confidentiality.
Insurance Triangle: Who’s CSome say both Cs (MS); Some say only insured; Some say only
insured, but you owe a duty also to the insurer. Split on how to treat.
6-22: Ins. Co. hires us to represent insured.
(a): Who’s C? Insured for certain. Depending on Juris, insurer may be C.
(b): Ins. Co. tell you depos, experts, mtns, bill to outside auditor, etc?
*Really depends on the underlying insurance policy B/t insurer and insured. Depo,
expert, mtnThese are means to achieve objectives. Ordinarily, Atty. makes decision for best of
C. ABA? Restmt  insurer can make reasonable requests. Unreasonable-depo limit. Policy may
give them a little more freedom, but it is frowned upon.
AuditorAtty. should always be concerned about $, can’t make unreasonable demand.
(c): In investigation, Atty. finds info that insured was fully aware of his acts when he
attacked someone. No coverage for intentional acts. What should Atty. do?
*This would cut off the insurer’s duty to defend. This is confidential info, it would hurt
our C. CoIspend more time w/ insurance co. CAN’T reveal confidential info to person paying
bills. Like the will situation, conflicts.
*What if both are Cs? Still can’t reveal info. Adverse to one. Can’t take pos adverse.
20
*Still ok to carry on representation and raise “false inferences.” Can’t lie about file. If
you know D will lie, can’t let him testify.
*May not reveal to insurance company under 1.6 exceptions.
(d): P’s complaint demands 300K, they’ll settle for policy limit. Ins says, “we would rather
pay you than settle.” What do you do?
*Assume insured is the C. Potential conflict is that insured could potentially be liable
over the limit. Atty. has a self-interest alsorather be paid to litigate. Settlement is an objective
so C gets to decide. Tell insured of offer. Ask C what he wantsFollow C’s answer.
*Assume both are Cs. Still must go tell the insured. Now, must w/draw from the
representation. MS treats both as Cs. MS says, “there is a conflict and I can’t follow either of
your directions . . . you must work it out.” Both Cs, can’t favor one C’s wishes over other. Give
info to both w/out taking directions. Explain scenario to both sides. Either is Adverse to one.
(e): P wants to settle w/in policy limit, Ins says, “OK”. D refuses b/c it will hurt business.
*Look at policy and settlement. Possibly in policy. Harder b/c significant liability if have
to go to trial AND the only bad effect to D is to his business.
*It seems to Roy that here, you lean towards the Ins. Co. Nature of relationship leans
toward insurer b/c relationship is started b/c D needed someone to “pay up.” That’s why this
scenario is diff’t. Usually policy will have something about it. May suggest only to pay policy,
then D pay the rest.
G. Former ClientsSuccessive COI. Same types of conflicts (fear new rep might undo old).
**We’re talking about how the former C responds when Atty. takes on new C. If concerned
about new C, we’re talking about 1.7/1.8.
Lawyer used to represent Client A in matter X, and now Client B in matter Y.
**Concerned w/ confidential info, but in loyalty.
Rule 1.9: Duties to former C
(a): Formerly rep a C in a matter, shall not rep another C in same or substantially related matter
in which C’s interests are materially adverse to former UNLESS the former C gives informed
Consent in writing. (subst related matter? Materially adverse to old C?)
Comment 3: Subst related: Same trans/dispute OR substantial risk that confidential info would
normally have been obtained in prior representation and would materially advance the C’s
position. I.e.-rep business-person and learn PRIVATE financial info, can’t rep spouse in divorce.
*1.9 presumes that when Atty. obtains confidential information, it will be shared.
*Don’t have to prove conf info was shared. Would be hard to prove Atty. used it.
6-23: 3 yrs ago M&F prepared tax return for wife’s business. Rep hubby in Divorce?
*Ask-Look at who is C  Did wife believe SHE was the C or the business?
IF wife, 1.9-substantially related? YES, Worried about using confid info for other C.
Materially adverse? YES, info in divorce.
(b): What if 10 yrs ago? Comment 3: Still probably shouldn’t do it, but info acquired
through other representation may be rendered obsolete by passage of time.
21
6-24: Rep C in getting zoning for shopping center.
(a): Rep potential tenants in Center?
*Substantially related? NO. Ex in Comment. (read comment to see ex).
(b): Rep someone who wants to build center across the street? (Need more info).
*Substantially related? Seems that way; *Materially adverse? Shared confidences. Is it
possible that they want info we had in orig. C? Don’t know if materially adverse.
(c): Rep enviro group that wants to challenge center?
*Substantially related? Seems that some of the same info at play. *Materially adverse? YES,
and puts Atty. in position of undoing previous work.
6-25: Atty. got call to defend ACC firm over dot.com STK drop. Met and explained some
defenses-3 hrs. After meeting, a “conflicts memo” was passed. Can we rep firm and underwriter?
*NO, can’t take on new representation? (ACC firm?) Probably didn’t limit amt of info.
*Duty to Acc firm? 1.18Confid./loyalty even if prospective. A lot of info was revealed.
Rule 1.18(c): Duty to Prospective C is like 1.9.
(d): Atty. received disqualifying info, don’t w/draw if 1) both IC, OR 2) atty. took steps
reasonable steps to avoid exposure to more disqualifying info than reasonably necessary in trying
to determine whether to represent C (w/out this rule, P’s could get tons of atty. kicked
out.Burden is on Atty. to try to control the flow of info so as not to be disqualified.)
1) Effect on new C: W/ respect to 1.9, we’re concerned about the former C. BUT, there may
be a conflict w/ respect to the current C. Switch sides-presume confid info will be shared.
a. 1.7(a)(2): Concurrent conflict if there is a significant risk that C may be injured by
responsibilities to . . . former C.
I. Imputed Conflicts: If one Atty. can’t rep b/c conflict, no one else in firm can either (exc Pers)
Rule 1.10: While in firm, can’t knowingly rep C when any member would be prohibited for
doing so UNLESS personal conflict & won’t present a significant risk of materially limiting rep.
6-28: Legal services hotline. Unbeknownst to Atty., he gave advice about remedies for predatory
lending against
*Advice made C, materially adverse to Current C. NOT imputed CoI.
Rule 6.5: Atty., who for non-profit, provides short term service w/out expecting (by either A or
C) further rep is subject to
1) 1.7/1.9 ONLY if knows rep of the C involves a CoI.
2) 1.10 ONLY if lawyer knows another in firm is disqualified.
 Migratory Lawyers: Moving from one firm to another. (4 ways)
Types: 1) Worked on B’s matter and obtained confid info; 2) Worked on B’s didn’t obtain confid
info; 3) Didn’t work on B’s matter but DID obtain confid info.; 4) didn’t work NOR obtain info.
Rule 1.9(b): Shall not knowingly rep person in same or a substantially related matter in which a
previous firm had previously represented a C:
(1): whose interests are materially adverse to that person; and
(2): about whom atty. has acquired confidential info;
(c): duty to former C-directly protects confid info.: Atty. who represented C (or his former firm
represented C) CANT:
22
(1): use info related to rep to disadvantage of former C except as rules require OR the info
has become generally known. (Diff’t than duty to current C b/c of the ‘generally known’
exception)
(2): reveal info relating to rep except as rules permit or require.
6-29: 10 day countdown to trial when associate (right arm in case) says, “I’m leaving firm for the
opposing side next week. Don’t worry, I’ll be screened.”
*Assoc must have confidential info. 1.9(b) is clearly met here. (right arm)
*Move to disqualify? YES, violate 1.9(b) and imputed. Could be a problem w/ w/drawal.
Assoc may not be able to w/draw from rep (must have cause OR permissive-only if no hurt).
*NOTE, after disqualification, C loses atty. Firm’s fault-punishing C for firm? Rule silent
Screens: an attempt to overcome the presumption that you will share the info. (prevent sharing).
1. Size of firm/infrastructure, ability to do following things.
2. Safeguards-how safe is info? Screens on comps? Networking? Files?
3. Limits about what new atty. can discuss at firm?
*From C’s POV, this probably still wouldn’t be sufficient. Even if screened from area where
you used to represent, may accidentally slip. *Roy has never seen an effective screen.
PRC do not permit screenscan’t use to get around the 1.9 (minority allows screens).
1) Switching firms: Instead of presuming, we care more about what the atty. actually knows.
a. What should old firm be concerned with?.
i. 1.10(b): Client leaves w/ atty: When atty. has terminated association w/
firm, firm isn’t prohibited from thereafter representing person with
interests materially adverse to those of a C represented by the formerly
associated lawyer and currently represented by the firm UNLESS
1. matter is the same/substantially related, AND
2. any atty. w/ firm has confidential info.
ii. i.e.- Atty. leaves, takes C with him. C is a C of the Atty., not the firm.
Firm doesn’t have to treat C as a former C UNLESS they have info and
could use it against that C. IF ONE ATTY. in old firm has confid info, it is
imputed. PRESUME will share. THIS will likely only work if every atty.
who services that C left the firm.
H. Revolving Door B/t Govt. Service and Private Sector: Want to protect the public.
*Disadvantage to public service? $ is lower.
*Benefits of public service? Better hours, benefits, networking, look better in private.
**Don’t import R. 1.9 to R. 1.11. NOT CONCERNED ABOUT LOYALTY HERE.
Rule 1.11: (a) Moving from public sector to private.
(1) subject to 1.9(c).
(2) Shall not rep a C in connection w/ matter where Atty. has participated personally and
substantially as public E/ee UNLESS to govt. agency gives IC in writing. (This is more
lenientmore likely to allow atty. to undertake rep than 1.9). 1.9-i.e. just get confid info.
23
**Participated personally and substantially in the matter.
**Also, doesn’t matter what side you were on. (That makes it stricter than 1.9-materially
adverse).
(b): When disqualified from rep under (a), no lawyer associated may knowingly undertake or
continue representation in such a matter UNLESS
(1) Disqualified Atty. is timely screened and
(2) Written notice is promptly given to appropriate agency to ascertain compliance w/ rules.
**Diff’t from Rule 1.9 b/c it allows a screen. W/out screen, this would make person hard to
hire. Also, you can’t get any of the fee.
(c): Know confid info about person, obtained while govt. E/ee, can’t rep someone who’s interests
are adverse to that person . . . firm can if you’ve been screened.
**Privy to certain confidential info of 3d parties, can’t use it against other person.
(d): Private to public service: Except as law permits, atty. currently serving as Govt. E/ee:
(1) Is subject to Rules 1.7 and 1.9
(2) Shall not
a. Participate in matter in which atty. participated personally and substantially while
in private practice UNLESS govt. agency gives written IC. (current E/er)
b. Negotiate for private e/ment w/ any person involved as party/counsel. in which
lawyer is participating personally and substantially EXCEPT clerk for judge, etc.
Definition of matter: Any judicial or other proceeding, contract, claim, accusation, etc involving
a specific party or parties.
*Comt 10: Matter may continue in another firm. To determine if two matters are the same,
Atty. should consider the extent to which the matters involve the same basic facts, the same or
related parties, and the time elapsed.
6-27: M&F hired Juliewho worked for state Att’y Gen. Office. 1st Case was defending class
action against race discrimination case against Dept of Taxation. (6 yrs ago). Last case, settled w/
antitrust case against GM (lead counsel).
(a): Can M&F take on antitrust case for local city against GM based on facts identical to last
case?
*Under 1.9-no issue b/c not adverse. NO FORMAL C concern.
*Under 1.11-it doesn’t matter which side you were on while in govt. service. Julie can’t take
on the representation unless there is written IC. LEAD counsel - matter continued in a different
form (identical facts, same type of action, short time), participated pers/subst.
**BUT, M&F can take it if she was properly screened.
Two other concerns:
*1.11(c)****Look out for confidential govt. information. Same party, confidential is possible.
*Is there a possibility she acted in the first case to help her in private practice?
(b): Can M&F take rep of C who wants to sue state Dept of Taxation for race discrimination.
This claim is based on events that occurred yrs after her first case.
*NOTE, if not govt. service, 1.9 could have applied.
*“Personally and substantially”? YES,
24
*“In connection with a matter”? Same type of action, BUT not based on identical facts,
occurred four yrs after her first case, not class action or in class. Therefore, not in connection w/
the matter she personally and substantially worked on. SHE CAN WORK ON IT.
*BUT, if she has confidential information about Dept of Taxation that can be used against it,
SHE MUST BE SCREENED. 1.11(c) (not the same matter, but presume she’ll use confid).
**Concerned about person using info they got from govt. service against someone.
**“In Connection w/ matter” = same matter
Regulation of Judges
Canons of Code of Judicial Conduct: (Judges are regulated differently than Attys.)
*Judges have more powermore concerned about public perception.
Canon 2: Judge must avoid “Appearance of Impropriety.” Comment?
(B): Judge shall not use prestige of office for personal, family, political gain.
(C): no membership in org that practices invidious disc on basis of race, sex, rel., origin.
Canon 3: Judge shall perform the duties impartially and diligently.
(B)(5): Shall perform duties w/out bias b/c age, sex, race, religion origin, disability, Sex Or.
(B)(6): Judge shall require attys. from using words conducts, etc biased by same.
(D)(1): Squeal rulereceives info indicating a substantial likelihood that another has
committed a violation should take appropriate action.
Judge KNOWS of another committed violation that raises substantial Q as to other’s
fitness for office shall inform appropriate authority.
(E): Judge shall disqualify himself where judge’s impartiality might reasonably be
questioned SPEND TIME ON E WHERE YOU CAN FIND BIAS. (actual or apparent bias).
****LOOK AT KIMBLE’S
Rule 8.3: Lawyer’s squeal rule
(b): A lawyer who knows judge has committed violation (R of Jud conduct), subst. Q as to
fitnessinform appropriate authority.
Rule 8.4: It is professional misconduct for an atty. to:
(d): Engage in conduct that is prejudicial to administration of justice (counterpart/catch all
for appearance of impartiality for atty.)any violation-throw this in.
(f): knowingly assist judge in conduct that is a violation of applicable law/rules of conduct.
Chapter 7: Fees and Client’s Property:
Rule 1.5: Reasonableness is the Touchstone. Factors for reasonableness: (a)
(1) Time and labor required, novelty/difficulty, skill required
(2) Likelihood it will preclude other e/ment
(3) Fee is similar to other comparable fees.
(4) Amt involved and results
(5) Time limitations imposed by C
(6) Nature/length of relationship (longer, less likely to be cheating)
(7) Experience, reputation, ability of atty.
(8) Whether the fee is fixed or contingent.
25
*New C: Fee K doesn’t have to be in writing (preferred). Explain fees w/in reasonable time.
Problem 7-1: Atty. flies and during flight (C pays for it), you do another’s work for 4 hrs.
*Can you bill both? ABA opinion says this is unreasonable. Client will believe he is paying
for actual time. Atty. is paid twice for time. Don’t double bill.
*What do you do? Should have just done work for C paying for flight. Could bill just for
flight OR you could split up the time. Diminishes efficiencyBUT, ABA says it is bad.
(b): What about if it is pro bono work? Not getting pd. Bill first C for whole?
*Same as twiddling your thumbs/reads for 4 hrs. NOT getting pd twice-OK.
*Splitting time: If have to go somewhere for 2 Csmust split up the time.
Problem 7-2: Charge $2/page for faxes? (reasonableness applies for expenses)
Rule: If it reasonably approximates cost + overheadOK; if for profit-must 1st ask C.
(b): What about billing $200 for outsourced legal advice who charges us $150?
*ABA Opinion: In-house provision of servicesIf the extra amt is b/c administrative
costs, it would be acceptable. If it is just a special fee, for $, you must inform C to bill extra.
A. Hourly Fees
Case: Testing reasonableness of fee.
Facts - Father got atty. for son’s DUI. Usually costs b/t 3K to 10K. He charged $50K.
Spends 227 hrs working. Atty. told them he had no experience. Had a “novel” argument. Won.
*Ct said it was unreasonable. Looked at 1.5(a) factors. I.e.-fee usually charged.
*Look at C’s expectations. Did he know that he was signing up for most expensive rep?
B. Contingent Fees-fair b/c risk is allocated to atty. He should get more $.
Problem 7-3: 33% K, settled very early. We should get 150K, C wants us to get $500/hr (5K).
*Is fee valid? Must still be reasonable. Look at what Atty. knew about recovery at the
beginning. High likelihood at recovery-maybe only fee. If didn’t know, got b/c rep-OK.
1.5 (c): Writing is req’d, explain calculation for fees/expenses and how/when taken out.
(d): No contingent fee for:
(1): Domestic relations matter (property settlement/alimony)
(2): D in crim. Case.
ABA Opinion: Early settlement shows that atty. did a good job valuing case. Should get K fee
even if there was an early resolution. BUT, there may be some special circumstances. (i.e.-Atty.
was reasonably confident that case would offer a settlement amthourly fee might only be
appropriate.)
7-4: K w/ MS to sue tobacco (25% contingency). MS got 8.3 Billion. Still get 25%?
*ABA opinionReasonable at time the K was entered intoLook at what they thought
when signed K. BUT, for this one case, got less. (state physical policy, etc).
26
7-5: C sued for 10M to be trebled. Can Atty. ask for 25% below 30 Million?
*Generally, if reasonable at time entered into, OK. Correlation b/t result and fee.
7-6: Atty. generally refers med mal cases to another firm for 10%. Firm quit paying us.
*Rule 1.5(e): Division of fee b/t lawyers not from the same firm only if:
(1): Division is in proportion to services performed by each OR has joint responsibility;
(2): C agrees to arrangement, including the share, in writing; and
(3): The total fee is reasonable.
*ONLY a referral fee, 1st firm isn’t really doing anything. Joint responsibilityBoth could
be on hook if C sues for malpractice. Must either do work OR have JR (either is enough).
C. Statutory fees
KNOW THIS: Atty. may be able to receive fees under a fee shifting statute that allows atty. to
receive fees under certain types of cases. Usually this applies to a prevailing P. Fee goes to
individual, BUT it is for pmt of atty. Always in K. Allows suit when P is broke.
D. Fees on Termination (Two issues- K law and ethical discipline)
a. Generally, C is the boss and can fire the Atty. at any time. When atty. fired, C has
to pay for services rendered. Issues arise when the billing isn’t hourly.
i. Issues when Atty. is fired/quits b/c of C’s unethical behavior.
b. If the C pays a flat fee up front, what can he get back?
7-8: Defend C for $20K. Did 6 mos of work. C wants 15K back.
(a): What can Atty. do? What if spent $25.
*We can keep it. As long as we can document time spent, and we spent that amt of time,
we can keep the full $20K if we did that much work. Can’t get extra $5.
As a matter of K law: Majority/Restatement View: Lawyer is entitled to the reasonable value of
atty.’s service CAPPED AT the amt of the K for the legal services.
As a matter of Discipline: Atty. will be disciplined for keeping funds not earned or allowing C’s
$ and yours to “co-mingle.”
Assume same facts as 7-8, but now assume the atty. did only 15K worth of work.
*Comment 4 of 1.5: Atty. may require advance pmt of fee, but is obliged to return unearned.
*1.16(d): At termination, must refund any advance pmt that hasn’t been earned.
Comment 4 to 1.16-C has right to discharge. C won’t be liable for unearned fees.
Special Retainer v. General Retainer: Look at the facts of each case.
*SpecialFor a particular matter where the only understanding is that Atty. will represent
you in a certain matter. Must return any unearned portion. When received, not earned. Ordinary.
*GeneralC is retaining Atty. not for a particular matter, but to represent the C exclusively
for a period of time. So Atty. will be available on a moment’s notice. Value conferred at the time
the retainer was received (K made). ALSO, must be clear in K that it is a general retainer.
27
Rule 1.15(a): Atty. Shall hold property of C separate from Atty.’s own property. Property must
be identified as such and appropriately safeguarded. Must keep complete records.
I.e.-must keep special retainer separate b/c not earned, still C’s property.
(c): Atty. must deposit legal fees paid in advance to be w/drawn only after earned.
(e): If a portion of pmt is disputed, Atty. must distribute what isn’t in dispute. Keep other sep.
Other Rule: If you lie and say a special retainer is non-refundable, it is a violation of 1.16(d).
Chapter 8: Terminating the Relationship: Permissive and Mandatory
*Different b/t Atty. and C. C can terminate for any reason at any time. L can’t just fire C at
any time. There are times where you may terminate and there are other times where you must.
Rule 1.16(a): Must w/draw if:
(1) Representation will result in violation of the PRC
(2) Physical or mental condition materially impairs Atty.’s ability
Rule 1.7: Comment 5Unforeseeable developments, such as changes in corp. affiliation, might
create conflicts. I.e.-Corp. sued on behalf of one C and the Corp. buys C. Lawyer may have
option to w/draw from one in order to avoid conflict. Must 1st seek court approval to minimize
harm to Cs.
Rule 1.16(b): May w/draw if:
(1): W/drawal can be accomplished w/out material adverse effect on C. (waiting too close to
running of SOL, can’t w/draw by letter-adverse effect).
(2): C persists in course of action involving lawyer’s services that the lawyer reasonably
believes is criminal or fraudulent.
(4): C insists on taking action that lawyer finds repugnant or has fundamental disagreement.
(5): C fails substantially to fulfill an obligation to atty. regarding the atty.’s services. Atty.
must first give the C reasonable warning the Atty. will w/draw if the obligation isn’t fulfilled.
Rule 1.16(c): Litigation: Atty. must comply w/ applicable law requiring notice to tribunal when
terminating a representation. May have to continue in rep if ordered by ct.
8-2: Handling C’s litigation for yrs. 11 mos. ago, C quit paying. Can we fire the C?
*(b)(5)-ONLY if we have warned the C b/f dropping him.
Case: Atty. for P in med mal case. Atty. wanted $ for expert. 6 mos. later, Atty. dropped C. Atty.
said, we’re getting out of med mal, concerned about getting pd. BUT, here’s the expert and Atty.
*Atty. mailed letter 1 mo. b/f SOL ran. Letter told P about SOL, BUT it never said when the
actual date was.
*Ct said this was not permissible w/drawal. Too close to SOL. Should have taken some
action to preserve the CoA. I.e.-bold SOL date; call C in and explain.
*What could Atty. have done. File it and have another Atty. come in. Could have notified
sooner and it would have been OK (factual determination).
28
8-3: Due to FDA regs, Atty. thinks C must disclose receipt of defective kidney machine. C says,
we’ll just sell it to another Corp., they don’t care about quality.
(a): May/must they w/draw?
*May, if fraud or repugnant. If litigation, must get judge’s OK.
(b): What if you are in-house counsel?
*If you w/draw b/c uncomfortable (constructive discharge), some states allow retaliatory
discharge claim by atty. Some price to pay for firing attys.
Chapter 9: Limits of the Law: What law (other than Model Rules) might cover your conduct.
****p.18 of Kimble’s****
A. Ethics in Advocacy: It is an adversarial system, but there are limits. Don’t have to cooperate
w/ the other side. ( I.e.-protect C) Two duke it out.
B. Reporting Requirements
A. Candor to Tribunal: 3.3-Can’t knowingly present false evi/facts/law. Can’t lie to the ct.
a. Difference b/t false facts and false inferences. Can you suggest inferences that
someone else did crime when you know/pretty sure your C did crime? YES. False
inferences aren’t false evidence. Expert Op-“think he did it?” - OK.
i. R. 3.8-Limits on inferences drawn by prosecutors. They must give up
exculpatory information. NOT promoting individual. Representing public.
b.Can you put on a witness that you know is wrong? Generally, this isn’t false
evidence. As long as witness isn’t perjuring himself.
c. Cross exam: Can you cross examine someone and raise inferences even though you
know it is truthful? Perfectly fine to destroy credibility of truthful witness.
B. Fairness to Adversary: Don’t have to help other side. Must be fair.
a. R. 3.4(b): Atty. shall not falsify evidence, counsel or assist witness to testify
falsely.
i. Anytime you shape testimony to what might not be true, it is getting very
close to this rule. It is ok to say, “You may not want to reveal everything.”
b.Example of Coaching (coaching of form/wording is OK):
i. Atty. to Crim D: “B/f you tell me story, we have to prove X, Y, and Z.”
This is OK. NOT telling C what to say. Allowing witness to decide what
to tell.
1. Must explain possible Ds so they can know what will happen.
1.2/1.4.
2. It is possible to go too far in shaping testimony.
ii. Do you have the time? Answer-Yes, What time is it? Etc. Making C
answer very shortly so opposing has to ask more. This is not improper at
all. Just explaining how to answer Qs. NOT what to say.
c. 3.4(f): You can’t request a person other than C to refrain from voluntarily giving
relevant info UNLESS if relative or E/ee and reasonably believes person won’t be
adversely affected from refraining.
C. Frivolous Claims:
R. 3.1: Shall not bring suit unless basis in law/fact or GF argument for extension/modification.
29
*Comment 2: Filing b/f claim is fully substantiated isn’t per se frivolous. Discovery is used
to firm up claims. Even if Atty. doesn’t think C will win-not per se frivolous. No GF Arg-friv.
9-3: Lawsuit, didn’t consult w/ expert b/f. 10 Mos. After filling, found out no CofA b/c of expert.
*Just not getting expert b/f filing isn’t frivolous.
*BUT, 10 Mos. is a long time. They need a reason for waiting so long. Maybe frivolous.
Mattel: Did you rip off my copyright? Frivolous b/c of order produced.
*Atty. Conduct: Threw dolls off table. Stopped depo b/c hurt C. False stmt of fact and law.
*T Ct has inherent power to sanction for conduct.
*Behaving poorly gives profession a black eye. I.e.-“You could gag a maggot off a meat
wagon, you suck so bad.” I.e.-During DepoObj frequently; telling C to wait 3 seconds/write
b/f answering; not considering extensions (not obj); inconvenient times for depo.
VIDEO
**You have no obligation to help the other side. BUT, do you have any latitude to help another
atty.? You do have some latitude (i.e.-being civil in discovery, etc). You can only go so far,
though. Generally, can’t help adversary to the detriment of your Client. Can’t sit down and
explain mistakes of a young atty.
- Going to ct and saying 1.0 violation (not competent) would be safe.
- Telling your C you want to help first.-ok 1.2-objective.
- 1.3 comment 1: Must represent zealously, but don’t have to press for every
advantage. Discretion in means by which a matter should be pursued.
D. Discovery Abuse:
9-4: Associate believes firm must produced damaging docs (concede liability). Partner says don’t
produce b/c it came from German subsidiary’s warehouse. Can you object by saying burden?
(a) Can you not produce (assume there is no reason to object)?
*Probably the young atty. would get in trouble for following orders. Young could
quit, w/draw-bad situation. * Not requested-do nothing.
Rule 3.4(d): shall not make a frivolous request or fail to make reasonably diligent effort to
comply w/ proper discovery request.
Rule 5.1: (a) and (b): Partners have the responsibility to make sure attys. complies w/ the rules.
(c): L shall be responsible for another’s conduct if:
i. Orders or knows of conduct (ratifies) AND
ii. Atty. has comparable mgt authority or supervisor of atty. and knows the
conduct at a time when its consequences can be avoided or mitigated but
fails to take reasonable steps.
Rule 5.2(a): Layer is bound by PRC notwithstanding that he acted on other’s direction.
(b): Subordinate Atty. hasn’t violated PRC if he acts in accordance w/ a supervisory atty.’s
reasonable resolution of an arguable question of professional rule of duty.
- If clearly unreasonable, Subordinate will have violated rule.
30
Rule 3.2: Atty. must make reasonable efforts to expedite litigation consistent w/ C’s interest.
*Is there a substantial purpose other than delay (RPP) or are you just stalling?
- Realizing financial benefit from improper delay isn’t legitimate interest.
*Comment 1: If it is done for purpose of frustrating opposing, violation.
E. Bias
9-5: Atty. called other one “office help” & “sweetheart” and talked loud out in depo.
(a): What do you advise?
*Could argue it wasn’t out of habit. BUT, it sounds like knowingly biased actions. There
was NO LEGITIMATE ADVOCACY.
*Is it “prejudicial to the administration of justice” YES. No real reason.
Rule 8.4: Professional misconduct to:
(d): engage in conduct that is prejudicial to administration of justice. (catch all).
*Comment 3: Lawyer who knowingly manifests words or bias based on race, sex, etc
violated (d) when such actions are prejudicial to justice. Legitimate advocacy isn’t a violation.
*Same std for a judge’s duty not to allow lawyers to raise bias.
Case: P atty. said, “I don’t want disabled clerk in room b/c it will prejudice my C.” Judge said it
was offensive and shocking. Judge sent him to discipline committee.
*Could argue that this is legitimate advocacy. BUT, can’t stop someone from doing his job
b/c the jury might draw a comparison/conclusion b/c of disability, race, gender, etc. Personal
characteristics of clerks, lawyers, etc. should be left out.
*In a similar fact pattern, this could be considered legitimate advocacy.
Rule 3.4(e): Lawyer shall not in trial 1) allude to any matter not reasonably believed to be
relevant or not supported by admissible evidence, 2) assert personal knowledge of facts, or state
opinions (justness of cause, credibility of witness, culpability, innocence, etc).
*1st part- Trying to get jury to think about things that aren’t important to get them to dislike
another party. I.e.-Geographic location of parties isn’t relevant. Race, etc.
*2d part- Improper vouching at trial. Can’t say, “I know ____ . . .” Open/Close.
F. Communications w/ Represented Persons (No Contact Rule)-protecting A/C relationship.
**If you meet w/ a represented person w/out approval of counsel, it is presumed that you will
undermine the representation.
Rule 4.2: Lawyer shall not communicate about subject of representation w/ a person atty. knows
is represented by another w/out consent of other’s knowledge.
*Can infer knowledge. *Can’t communicate at all.
Rule 4.3: Dealing w/ un-represented: Atty. shall not state/act like he is dis-interested. When atty.
knows or reasonably should know that un-represented party misunderstands atty.’s role, must
correct.
31
*Atty. shall not give legal advice other that to secure counsel, if atty. knows or reasonably
should know that the interests of the person are or have a reasonable possibility of being in
conflict w/ Atty.’s C.
*OK to make settlement offers, deals, etc. when the person is un-represented.
9-6: L represents seller. Gets call from buyer (who is represented); don’t like atty., let’s talk.
*Even if other side initiates, STILL can’t engage in this communication.
(b): What if he fired his atty.? Probably best to make sure. Then, it would be OK.
9-7: You believe that your settlement offers haven’t even gotten past the atty. Go to C?
*Can’t bypass the Atty. and go to the other party directly even if not getting to C.
(b): What if write to atty. w/ Carbon Copy to C? NOPE, still communication to atty.
(c): What if C asks you to write a letter for him to communicate w/ the other side?
*You can’t write the letter. It would be our communication. Our C CAN write other side,
and he can ask us what to write, BUT you can’t use the C to effect your own communication.
****From here****
9-8: C tells you that you should meet w/ the zoning board chairman. Have matter pending there.
*4.2, Comment 5: C has right to communicate w/ govt. Comm. OK. NOT rep’d C.
9-9: US atty. gets call from rep’d D whose trial is in 6 wks. D wants to meet w/ him b/c he feels
his atty. isn’t doing an adequate job. Can US atty. meet w/ him? (like 9-6) 4.2 allows ct order.
*Probably not. Must get permission from atty. BUT, maybe can go to ct and be allowed.
*Comment 6: Can get ct order to communicate when ordinarily not allowed if except. Circ.
9-10: Rep corp. C in front of SEC. Justice department went and interviewed some brokers.
*1st issue: Are brokers our Cs since we represent E/er?
o Comment 7: 1) Prohibits communication w/ worker who supervises, directs, or
regularly consults w/ atty., OR 2) has authority to obligate organization w/ act,
OR 3) act in matter can be imputed to the organization w/ the suit.
o Comment 5: “authorized by law” may include investigative activities of lawyers
representing govt. entity. (This would take it out of 4.2). UNLESS YOU ARE
TOLD IN HYPO A LAW AUTHORIZES YOU TO DO IT, 4.2 APPLIES.
*2d issue: If Clients, no law authorizing it, 4.2 still applies.
9-11: Can we send memo to corporate C’s E/ees saying, “don’t talk to justice dept.”
*3.4(f): Can’t request person other than C from refraining to give voluntary info. UNLESS
relative/E/ee AND atty. reasonably believes that person’s interests won’t be adversely effected.
*These are a class of people you tell not to volunteer as long as not obstruction (E/ee).
9-12: Trial 1 wk away, can you meet w/ other side’s expert?
*YES. Can talk to witnesses of other side. NOT REPRESENTED.
(b): Can you talk to former E/ee of other side?
*YES. No longer a part of organization. Don’t have to worry if represented b/c E/er
(c): What if E/ee was separately represented at depo?
*NO, represented.
32
9-13: Veggie group asks us if we can get a paralegal to get a job at fast food Co. TESTORS.
*8.4(c): Can’t (yourself or induce other) into engaging in conduct involving dishonesty.
(hired under false pretenses). Can’t counsel for someone to do it. C could do it w/out telling.
*You could send someone in as customer to look and see what co. is doing.
*Testors are OK, but can’t send someone in to bust them or get their e/ees to tell.
G. Communication w/ Judge or Jurors
In re Ragatz: L has suit in front of judge. They run into each other and said, “Clerk thinks
frivolous.” L advocates. L then got unsolicited letter from judge saying frivolous. L then repairs
a response and sends it only to judge (sends it on a first name basis). Clerk put it in ct file.
*Both L and Judge violated ethical rules. 3.5(a) and (b) & 8.4(f). Canons for Judge.
*L Should have . . .: When he received the letter, he should have sent it to other side. May
piss off judge . . . But you have to do it.
Rule 3.5: Shall not
(a): Seek to influence judge, jurors, etc in a way prohibited by law;
(b): Communicate ex parte w/ judge/juror during proceedings UNLESS OK by law or order.
(c): Communicate w/ discharged juror if:
1): prohibited by law/ct order;
2): Juror has made known to L a desire not to communicate; OR
3): Communication involves misrepresentation, coercion, or harassment.
*Comment 1: Can’t contribute to a violation of the Canons of judicial conduct (following up).
*Doesn’t matter that the Atty. didn’t initiate.
H. Lawyer as Witness - Concerned about perception of system. Can’t vouch.
**Balancing rights of C v. Chance it could affect the trial.
Rule 3.7(a): L shall not act as advocate at trial where L is likely to be a necessary witness unless:
(1): testimony relates to uncontested issue.
(2): Relates to nature/value of legal services rendered. (to get fees.) OR
(3): Where disqualification would work substantial hardship on C.
*Must figure out if L would have been necessary witness (for either side) b/f trial.
*Consider importance of atty.’s testimony, effect of disqualification on C, conflict w/ other wit.
(b): May act as advocate in a trial in which another L in your firm is a witness UNLESS CoI.
*Not the same types of interests as CoI being violated. If 1.7/1.9 apply, it is imputed.
**CoI arises when the testimony of atty. and C conflict.
9-14: Negotiate deal b/t C and 3d party. 2 yrs later, 3d party alleges fraud in the deal, rescind.
(a): Can we defend C? Does it matter if C terminally ill? Pretrial work only?
*Probably b/c many other people can testify. Atty. only witness, probably necessary.
Always look to see if another atty. can jump in at that time. Can do only pretrial.
(b): Can other Atty. in our firm represent C? *YES. Matter if C/Atty. testimony conflict? If
the different testimony causes a CoI, then it is imputed.
(C): What if 3d party calls Atty. to stand during trial? Can firm continue rep? YES exc CoI.
*Look to see if Atty. was likely to be a necessary witness at trial. Balance if firm can rep.
33
Chapter 10: Self-Regulation
C. Advertising and Solicitation: Integrity of Bar v. desire to advertise/attract Cs.
**Must balance 1st Am right v. R to advertise**
**Old days, could advertise. **Also want to protect people from Atty. overreaching.
S Ct opinions that shape the Ethical Rules.
Bates v. State Bar (1977): Protects truthful advertisement for availability and fees for routine
legal services.
Ohralik: In person solicitation for $. State may discipline an Atty. for face-to-face solicitation.
In re Primus: (1978) Solicitation by mail. ACLU using targeted mailings. Public interest type
case. The public interest motive for face-to-face solicitation is OK.
Zauderer: Can’t discipline an atty. who has non-deceptive depictions in ad.
Shapero: (1988) 1st Am prohibits bans on direct mail solicitations.
FL Bar: (1995) Can’t send PI Vs solicitations by mail w/in the first 30 days of accident. Ct was
concerned about privacy of people. Also, concern about people getting info.
*This law was Con. Concerned about privacy and perception of attys.
*Dissent: Does this cut off services to those who need representation the most.
Rule 7.1: L shall not make false or misleading communication about lawyer or services.
Communication is false or misleading if it contains a material misrepresentation of fact, law, or
omits a fact necessary to make the stmt considered as a whole not materially misleading.
Comment 2: Truthful stmt is also misleading if Substantial likelihood that stmt will lead a
RPP to formulate a specific conclusion about the L or services for which there is no reasonable
factual foundation.
Rule 7.2-Ads generally permitted.
Rule 7.3-L shall not by in-person, live telephone, or real time electronic contact solicit E/ment
when a significant motive for lawyer’s doing so is pecuniary gain UNLESS person is:
1) L, 2) has family, personal, or professional relationship w/ person.
**No distinction b/t pecuniary and not for profit (S Ct has distinguished.
10-4: Adv 1-800-notglty. 1-800-honestL
*7.1-notglty may be violation. Comment 2. (only take not guilty Cs? All Cs not guilty?)
10-5: Use commercially available email lists for estate planning C. Follow up w/ a phone call?
Follow up on responses w/ real time electronic contact?
**Real time is different than email. **Telephone Recording is OK. **If follow up w/out
being invited, it is another unsolicited contact. **If response to email by C, can follow up.
34
10-6: Email families of recent accident to inform them of their need for counsel?
*OK by PRC, but if there is a rule in the jurisdiction against it, it is CON. S Ct just tells you
what rules can be made and the boundaries.
10-7: Can L advertise “Law for You” seminars where they tout living trusts? Can they hand out
business cards? Advertise brochures?
*Can’t hand out cards/brochuressolicitation. OK to leave them lying around. Seminar OK.
10-8: Can L ask those who attend to hire the firm to draft living trust? Matter if it is sponsored by
a local “not for profit” organization.
*Can’t say, “I’m willing to represent any of you.” If not for pecuniary gain, it isn’t prohibited
by the S Ct (Primus), but R 7.3 doesn’t have any distinction for non-profit.
Junk she showed us in class:
*Corey B. Trotz: Creates unjustified expectations. (went in twice, go see and get $).
*“Home town folks”-unless trying to get across that you will bribe, OK.
**Looking for violations: Look for a promise of results, outright lies, & unjustified expectations.
Limits on 1st Am Rights of Atty.:
1) Contempt/Sanctions for things atty. says/does;
2) Judges can limit what atty. can wear (priest).
Gentile: “Substantial likelihood of material prejudice,” court can keep an atty. from talking about
a pending case.
Why Atty. wants to talk:
1) Keep from trying to influence the outcome of case or “court of public opinion.”
2) Non-trial interests in publicityDA (re-election); get a reputation, book deals.
3) Atty. may be trying to help C’s reputation; PR (“he didn’t do it, good ole boy.”)
**Read the comment at least a little**
R. 3.6: Trial Publicity: L participating/has participated in litigation of a matter shall not make an
extrajudicial stmt L knows or reasonably should know will be disseminated by public
communication of the lawyer knows or reasonably should know that it will have a substantial likelihood
of materially prejudicing an adjudicative proceeding in the matter.
(c): Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer
would believe is required to protect a client from the substantial undue prejudicial effect of
recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to
this paragraph shall be limited to such information as is necessary to mitigate the recent adverse
publicity. (A lawyer may mitigate effects of bad publicity)
*Must respond in proportion  only mitigate what has happened.
*Must be something you and the C are not responsible for to respond.
(b): Stmt is imputed to firm. You can’t have press conference, no one associated can either.
Focus on
35


Subject matter of stmt to determine “subst. likelihood of materially prejudicing.”
Is it criminal proceeding or civil? (Likely more prejudice if criminal).
Unanswered Qs by 3.6:
 If someone overhears you and then reports it. Shouldn’t talk in public about stuff.
 Talking to reporter and say, “Is this ‘off’ the record.”
E. Multi-Jurisdictional Practice:
Def’n: Delivery of litigation, trans, or other services by atty. who is admitted in multiple
jurisdictions (general or pro hoc) or by L who services C other than one where L admitted.
Problems: Cs have multi-state needs. Don’t want to have multiple attys. Atty. runs risk of
unauthorized practice.
State’s Interest: Protect the public against services by unqualified attys.
 Competence of counsel-haven’t tested unauthorized atty.
 Honesty/integrity-usually can’t discipline an atty. in another jurisdiction.
 Protect from “economic invasion.”
Unauthorized practice: Violate ethical rules in your jurisdiction & likely won’t get your fees.
Two types of practice:
1) Litigation: Very easy to get around concerns of unauthorized practice. If you think you
are going to get Pro hoc admission, then you will be covered for starting b/f getting. .
2) Non-litigation: Comes down to law of jurisdiction. What is considered practicing?
Birbrower: L who is admitted in NY has a client in Cal. Lawyer makes trips to Cal to negotiate
in arbitration and lawyers did not associate local counsel. This constitutes UPL in CAL!!
Important things in the Ct’s Ruling
 CA Client.
 Physical presence and virtual presence (email, fax, phone, etc) of atty.
a. “Physical presence is just one factor and someone may practice w/out physical
presence.” May be illegal w/out ever going! (Don’t know how many faxes)
*i.e.-advice CA C on CA Law concerning a CA dispute.
 Fee agreement said it was governed by CA law.
a. Would this one factor w/ virtual presence be enough? Look to Juris. (anyone can).
b.This is one of the weakest factors (Most attys. can just look it up.
5.5(a): L Shall not practice law (or assist another) in violation of regulation of legal profession in
that jurisdiction.
*Violation in your jurisdiction if you do unauthorized practice in another jurisdiction. Must
know the other jurisdictions laws.
(b): Not admitted to practice in this jurisdiction, shall not:
(1): Except as authorized by law, establish an office or systematic/continuous presence
(2): Hold out to public or otherwise represent that you can practice in this jurisdiction
*Easier than Birbrower.
36
(c): L admitted in another jurisdiction, not disbarred or suspended, may provide legal services on
a temporary basis in this jurisdiction that:
(1): are undertaken in association w/ admitted L and he participates (wouldn’t work in BB);
(2): are in or reasonably related to a pending/potential proceedings b/f ct and is authorized or
reasonably expects to be so authorized (pro hoc);
(3): are in or reasonably related to pending ADR if services arise out of or are reasonably
related to the L’s practice in a jurisdiction in which L is admitted to practice.
(4): Arise out of or are reasonably related to L’s practice in a jurisdiction in which L is
admitted to practice (THIS is a catch all to protect you).
(d): L admitted in juris, not disbarred, may provide legal services in this jurisdiction that:
(1): are provided to E/er and are not services for which the forum requires Pro Hoc.
(2): are services that L is authorized by fed law/ct order to provide here.
Comment 6: Temporary: No single test to determine temporary under (c). Temp even if it is an
extended period of time. Lengthy negotiation/litigationOK.
5.5 gives a lot more protection than Birbrower.
*L in MS, office MS, MS C concerning TN lawOK (“type of law” is weakest).
*L in MS, office in MS, goes to TN for MS client, TN matter. Long-term litigation in FED Ct or
STATE CTPro hoc-yes. No pro-hoc-NO. (Could associate someone and it be OK-still should
get pro hoc application)
Other options: Take bar; reciprocate. Other-“sorry, can’t help.”
Problems: As you notice, didn’t focus on sharing profit. Most important thing to her is MDL
10-10: 5.4/7.2/5.5/5.7can pay salary, not share fee w/ non-atty.
b-generally OK. Probate in anther state.
c-reciprocal referral b/t Atty. and non-atty. OK.
d-probate-pro hoc application
10-11: We’re servicing them in MS.
Chapter 3: Pro Bono:
1.2(b): L representation of a C (including by appointment) doesn’t constitute endorsement of
clients believes, conduct, morals, etc.
*Comment 5: Broke people w/ controversial/unpopular subject deserve representation.
Representing doesn’t constitute approval.
R. 6.1: Every L has a prof. Duty to provide legal services for those who can’t pay. Should
ASPIRE to do 50 hrs of pro bono work per yr (not mandatory).
Arguments for pro bono:
- Monopoly (only L has power, should help others-atty. holds key to
meaningful participation in a branch of govt.)
- Atty. has more, should give back.
37
-
Professionalism (Owe something to society as a professional). Pursuit of a
learned art in the spirit of public service.
Arguments against pro bono:
- Bar shouldn’t require lawyers to give away services.
- Professionals shouldn’t be held to a higher std.
- No opportunity to those who want to give services to those who aren’t poor.
Alternatives to 6.1? Mandatory (won’t happen). Allow non-L to provide services so burden isn’t
all on atty. (won’t happen-substandard service). *Firms should help/not interfere w/ pro bono.
Chapter 11: Being a Lawyer:
Squeal Rule
11-1: Associate tells Fox that Martyn has been billing his work at Martyn’s price. Fox fixed and
said it won’t happen again b/c Martyn is on anti-depressants. What should associate do?
*8.3(a): L knows another L has committed violation of PRC that raises a substantial Q as to
L’s honesty, trustworthiness or fitness, L shall inform the appropriate Professional authorities.
Must report:
- Over-billing.
- Any type of lying/deceit (particularly to the C)
*L now has a reporting requirement. Fox also has a reporting obligation.
Kelly: Associate of a firm found out a partner was stealing. Told other partners. They “fired him”
and told him to be quiet if he wanted a good recommendation.
*L does have an ethical obligation to report to appropriate authorities. NOT just w/in firm.
*L didn’t have to go “up the ladder” in his firm . . . he could have just dropped the hammer.
BUT, he does have to go to the disciplinary committee (professional authority).
11-2: Fox tells Martyn that he has been convicted of a DUI. Admits a drinking problem. Says
he’ll handle it. What should Martyn do?
*NO DUTY TO REPORT. Doesn’t rise to the level to make Fox unfit to practice. It may rise
to a situation where he isn’t fit to practice law, but we need more facts showing unfit.
Mullison: L was found guilty of 13 counts of misconduct b/c he was a cocaine addict. He took $,
didn’t provide services. He served time, made restitution, community service. Reinstatement suit.
*He made up w/ spouse, worked as a paralegal. Another L vouched for him.
Rule: Personal problem isn’t enough to require reporting . . . must have conduct that affects
professional life. (stealing, lying to C, etc).
Comment 3: A peer review agency may be more appropriate to report atty. (i.e.-personal
problems that don’t rise to the level of 8.3). Help Atty. in need.
Handout: Gun to the Head: Junior associate goes from public service to private in environmental
law. Asked to write an opinion that a substance wasn’t hazardous. She didn’t agree.
*If it is a lie (everyone knows hazardous), she can’t do it. (assisting Cs fraud, etc).
38
*BUT, here it wasn’t clear if hazardous. Therefore, R. 5.2 kicks in to say that you can follow
your supervisor’s advice to an arguable Q of PRC.
Options: *Try to justify the opinion. *Look for a new job.
Review on this handout:
Fees: Think about it in the shower, bill. (Maybe OK-real jmt call-maybe really going over it).
Always bill as if you started from scratch. (violation).
39