Introduction: The Sources and Structure of the Law Governing Lawyers
Introduction in the Rules Supplement (pages 1-5): Understanding and Finding The Law Governing Lawyers.
A. Introduction in the Rules Supplement (pages 1-5): Understanding and Finding The Law Governing
Lawyers.
o Introduction – What is This Class About Anyway?
 The Law Governing Lawyers NOT “Legal Ethics”
 What Must/May/Should you do?
o There is law to answer this!
 Analysis:
 Is there a source of law governing this?
 Does it say you Must not? / Must do something? / May do
something?
o Then Ethics does enter the picture
o Sometimes the rules tells you to do something you
think is wrong (then ethics come into play as well)
 Sources of Law?
o Model Rules of Professional Conduct (#1 Source)
 Passed by the ABA, constantly undergoing revision
 Each State has its own version
 What is tested on the MPRE
o General Civil/Criminal law
 No exception, law still applies when acting as a lawyer
o Restatement of the Law Governing Lawyers
 Just like other Restatements
o Cases/ethics opinions
 Interpret the rules and law as they apply to lawyers
 Ethics Opinions: lawyer calls the state and the board issues an
opinion
 Not law but following these is good practice
 Model Code of Prof. Responsibility
 B/f the Model rules and really won’t be touched
 Consequences? (Can be subject to multiple consequences)
o Bar Discipline AND/OR
 For violating a Rule of Professional Conduct
o Civil or Criminal Liability AND/OR
o Other Judicial Remedies (See RLGL Section 6)
 Violating a Rule may also make you subject to Judicial Remedies
 See Section 6 for list of possible consequences
o Justice Scalia
 “The only thing the Court offers that approaches substantive instruction is its implicit
approval of ‘fundamental canons of professional responsibility,’ articulated by an ad hoc
group of legal-ethicist amici consisting mainly of professors of that least analytically
rigorous and hence most subjective of law-school subjects, legal ethics.” Holland v.
Florida, 560 U.S. __ (2010) (Scalia, J., dissenting)
 WRONG, WRONG, WRONG!
 Historically the rule governing ethics was less stringent
 Now a how body of law that governs lawyers, just like torts, etc.
Still subjective, but no less subjective than other courses
Preface in Casebook (pages xix-xxii)
Chapter 1: Lawyers, Role, and Law
o Lawyers and Role
 “A lawyer, as a member of the legal profession, is a representative of clients, an officer of
the legal system and a public citizen having special responsibility for the quality of
justice.” Model Rules Preamble, para. 1
Lawyers and Role; Lawyers and Law – Pages 3-22; Problems 1-1 through 1-4
 Problem 1-1
 Should Martyn & Fox file a claim on behalf of a client after the statute of
limitations has expired? What if we are fairly sure the opposing party will not be
represented?
o Yes or no?
 Right thing to do is discuss it with client and if they want to file, it
is ok
o Why or why not?
 Statute of limitations
o What would Freedman and Smith say?
 Client controls
 And you can decide who you want as your client
 F & S would say file the claim b/c the client wants you to
 They would say this is the right thing to do b/c you’re
supposed to be a zealous advocate for your client
 Value in individual autonomy and clients job to support
those decisions
 Will do anything the client wants as long as legal (w/n the bounds
of the law)
o What would Rhode say?
 See Justice as distributed fairness
 In Rhode’s view, what is wrong with Freedman and Smith’s
approach?
 There is an ethics opinion that says this ok
 Says that a time barred claim is not a frivolous claim
o Lawyers and Role (summary)
 Friedman and Smith (“Adversary Ethic”)
 Lawyers must support client’s individual autonomy
o Moral issues are for clients
 Limits?
o Nothing illegal
o Lawyers can choose clients
 If Lawyers make the decisions about what claims to bring then will have an
oligarchy
 Perfect world would be two evenly represented parties that compete for the
ultimate income
 Rhode (“Public Interest Ethic”)
 Lawyers must take into account the social context of their choices
o Lawyers bear moral responsibility for choices.
o Things are never in balance and someone is always at an advantage
o Mistakes by other side (summary)
 Freedman and Smith (and most practicing lawyers):




No duty to correct
Zealous advocacy even in non-litigation setting
o Lawyers benefit from zealous advocacy as much as anyone
 Lawyers wrote the rules
 May violate own duty to client if do correct
 Consult and see what client wants to do (you may be surprised!)
Rhode critique: is this justice?
 But any time a lawyer starts worrying about whether a particular outcome is just,
it impacts their ability to be a zealous advocate.
 Real world does not always lead to just outcomes as there is always imbalance
 See zealous advocacy different in criminal cases (freedom and life are at stake)
o Can justify doing everything possible for your client
Are DAs different?
o Problem 1-2
 During negotiations, a lawyer on the other side agrees on behalf of his client to pay an
extra $50,000 because the land is zoned for ten lots. Martyn & Fox knows that the lawyer
is mistaken. Should Martyn & Fox close the deal without correcting the mistake?
 Nothing that requires you to make any steps while the other side drives into a
ditch
 Should discuss with your client and explain the repercussions / concerns
o Problem 1-2 Variation
 What if in Problem 1-2, the lawyer had told the other side the wrong information re:
zoning?
 Rule violation?
 Rule 4.1 - Truthful statement; Can’t lie.
o In the course of representing a client a lawyer shall not knowingly:
 (a) make a false statement of material fact or law to a third person;
or
 Consequences?
o “Lawyer Who Threw a City Case Is Vindicated, Not Punished,” New York Times, March 4, 2009
(available on TWEN)
 Prosecutor who decided not to prosecute two guys and helped the defense
Chapter 2: Judicial and Professional Regulation of Lawyers
Bar Admission; Professional Discipline – Pages 23-55; Problems 2-1 through 2-4
Bar Admission
o Why regulate who can become a lawyer???
 Reduce competition
 Lessen the # of people you have to kick out later.
 B/c lawyers, simply by filing a complaint, can start the entire court process.
o General Requirements
1. Age
2. Education
3. Bar Exam (and MPRE)
4. Oath
5. Good Moral Character
i.
Why do we care about good moral character?
1. Rules Governing MS Bar:
a. "Good Moral Character"- Applicant should not be admitted:
i. If dishonest
ii. Takes unfair advantage of others
iii. Irresponsible in business
iv. Support the overthrow of the US gov't
v. To fake being a lawyer
vi. Repeated violations regarding drugs and alcohol or traffic violations.
In re Converse
1. What exactly did Converse do wrong?
a. Dispute resolution.
b.The grade dispute.
c. Why didn't Converse's free speech argument hold up?
i.
B/c the court focused on his pattern of conduct, not his speech.
2. How did the bar find out about his conduct?
3. What was the court's holding?
a. What facts did court focus on?
4. “‘An attorney should be one whose record of conduct justifies the trust of clients, adversaries, courts
and others with respect to the professional duties owed to him.’” (quoting the Neb. Ct. R. for Adm.
Of Attys. 3)
What about Mental Health?
What about debt?
o Problem 2-1
 Martyn & Fox represent Mary Moore, who is about to graduate from law school
 (a) Should Moore be denied admission to the bar because she included as text,
and without attribution, seven direct quotations, three from cases and four from
law review articles in a seminar paper inlaw school?
o Maybe? Was it a mistake or intentional?
 She should disclose. Focus on the act being a single instance.
 (b) What if Moore pled guilty to drunk driving five years ago and again last year?
o Yes. Here we have a repeated violation showing an indifference to the
law. Also suggests that she has a drinking problem. However, unlike 2-1adoes not suggest she is dishonest.

(c) What if Moore believes in White supremacy and has announced plans to
become General Counsel to the KKK Council?
o Yes. 8.4 comment 3 states that this is a violation of paragraph d of 8.4.
Matthew Hale reference in case reading.
Rule 8.4: Misconduct
It is professional misconduct for a lawyer to:
a. violate or attempt to violate [a Rule], knowingly assist or induce another to do so, or do so
through the acts of another;
b. commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness
as a lawyer in other respects;
c. engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
d. engage in conduct that is prejudicial to the administration of justice;
[Subsections (e) and (f) are omitted.]
1.
2.
3.
4.
Summary
Bar Admission
Burden on applicant
Disciplinary rules referenced in admission
Bar authorities concerned about:
o Uncivil behavior (e.g. personal attacks)
o Inability to work within the system
o Multiple instances vs. single instance
o Addiction
o Conduct involving dishonesty. 8.4
o Mental Health???
Your application
o Be honest! 8.1
o Contrition counts
Professional Discipline
o Problem 2-2
 Fox meets his close friend and law school roomate, Prosecutor, for dinner. Prosecutor
tells Fox that he’s just learned he has only months to live before he dies of colon cancer.
After several drinks, he also confides that two years ago he suppressed exculpatory blood
evidence in order to obtain a murder conviction. What should Fox do?
a. Is prosecutor subject to discipline? (Examine Rule 8.4 (a)(c)(d), 3.8(d), Coop
references Bill Clinton's story.
a. The Rules apply to all members of the bar, practicing or non-practicing.
Clinton wouldn't admit to anything other than 8.4d (the most vague of
Rule 8.4).
 What should Fox do?
a. Rule 8.3: Reporting Professional Misconduct
a. A lawyer who knows that another lawyer has committed a violation of the
[RPC] that raises a substantial question as to that lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects, shall inform the
appropriate professional authority.
b. If he tells it to you in confidential conversation no duty to disclose
 This Rule does not require disclosure of information otherwise
protected by Rule 1.6…. (client-attorney confidentiality)
 IMPORTANT: 1.6 > 8.3

o
o
Anything a client tells you is confidential. The client can waive it,
but if he does not it cannot be disclosed.
c. Coop says wait a day and talk to him when he's sober. Plus, the
requirements are that you KNOW. So you'd have to do some research.
b. What do you think about the 8.3 reporting requirement?
Problem 2-3
 Martyn & Fox are successor counsel for Client, and discover that Client’s former lawyer
stole client’s money from his trust account. What should Martyn & Fox recommend?
 They must know and it must be substantial.
 They must get permission from client to report. Rule 1.6 - Anything you learn in
the context of representing a client that relates to that client (even if it is publicly
available) can only be granted w/ permission.
Problem 2-4
 Martyn discovers that an associate in the firm has been charging clients for phantom
travel expenses, thereby generating money that he has used to fund a gambling addiction.
Martyn tells Fox she has investigated, the associate has repaid the money, and the
associate has joined Gambers Anonymous. Should Fox accept that solution?
a. Can Martyn & Fox let sleeping dogs lie? No
b. What is the effect of the ADA?
a. State ex rel OK Bar Ass v. Busch (Okla 1996). Disability doesn't cause
lying to the court (ADD not covered).
 Is condition covered? ADD not covered, gambling addiction not
covered by ADA either
 Is conduct complained of causally connected to covered
condition?
 Is lawyer “qualified” to be a member of the bar i.e. is there a
“reasonable accommodation” for the lawyer? (pg 46.)

Is the lawyer getting treatment, medication for the disability?
 Disability can still be a mitigating factor.
 These are all AND's. If the disability isn't covered
by any of these 4 factors, the condition is not
covered by the ADA.
c. Are Martyn & Fox subject to discipline for associate’s conduct?
Rule 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers
a. A partner in a law firm … shall make reasonable efforts to ensure that the firm
has in effect measures giving reasonable assurances that all lawyers in the
firm conform to the [RPC].
b. A lawyer having direct supervisory authority over another lawyer shall make
reasonable efforts to ensure that the other lawyer conforms to the [RPC].
c. A lawyer shall be responsible for another lawyer’s violation of the [RPC] if:
1. the lawyer orders, or with knowledge of the specific conduct, ratifies,
the conduct involved; or
2. [the senior lawyer] knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take reasonable
remedial measures.
 We need more facts
d. Would associate still be on the hook if Martyn & Fox told him to steal the client’s
money? Yes the supervisor is not acting reasonable, but so is Supervisor.
Rule 5.2: Responsibilities of a Subordinate Lawyer
1. A lawyer is bound by the [RPC] notwithstanding that the lawyer acted at
the direction of another person.
2. A subordinate lawyer does not violate the [RPC] if that lawyer acts in
accordance with a supervisory lawyer’s reasonable resolution of an
arguable professional duty.
“ACLU files ADA lawsuit against Indiana Bar” (available on TWEN);
“Finding Debt a Bigger Hurdle Than Bar Exam” (available on TWEN);
Chapter 3: Beginning the Client-Lawyer Relationship
Problems 3-1 and 3-4 on page 59 only; no reading;
Deciding whom to represent.
o
o
o
Problem 3-1
 Should Martyn & Fox represent Credit Suisse in a case brought by descendants of
Holocause victims who deposited money in the bank before the war? Would you be
willing to have us limit our representation to a statue of limitations motion?
a. Everyone deserves representation, but it doesn't have to be you. Think about rules
1.2b, c,
b. You can ask what their intentions are - Are they going to litigate the SOL, are
they going to take a hard line, do they want to settle (etc.)
c. Ask yourself if you can do a good job for this client.
Problem 3-2
 Should Martyn & Fox represent an anti-gay and lesbian group that pickets the funerals of
deceased soldiers from the Iraq War as a way of protesting the armed forces’ willingness
to recruit gays and lesbians under the “don’t ask, don’t tell” policy?
a. Everyone deserves representation, but it doesn't have to be you. Think about rules
1.2b, c,
b. Ask yourself if you can do a good job for this client.
Problem 3-4
 Should Martyn & Fox represent a defendant on death row who brutally abused and then
stabbed two young girls? How should we respond if a court appoints us to represent the
defendant?
 Criminal defendants deserve representation, court appointed under 6.2
 A lawyer shall not seek to avoid appointment by a tribunal to represent a person
except for good cause, such as:
 (a) representing the client is likely to result in violation of the Rules of
Professional Conduct or other law;
 (b) representing the client is likely to result in an unreasonable financial
burden on the lawyer; or
 (c) the client or the cause is so repugnant to the lawyer as to be likely to
impair the client-lawyer relationship or the lawyer's ability to represent the
client.
o Deciding Whom to Represent (Summary)
 Moral issue with client or case?
 Indigent client?
 Pro bono client? See 6.1
 A lawyer is not his client. 1.2(b)
 Lawyer may limit representation if reasonable. 1.2(c)
 No obligation to take on client (unless court appointment under 6.2)
o Pro Bono
 Rule 6.1: Voluntary Pro Bono Publico Service
 “Every lawyer has a professional responsibility to provide legal services to those
unable to pay. A lawyer should aspire to render at least (50) hours of pro bono
publico services per year....”
 Serve “persons of limited means”



o Notes:



Secure “civil rights, civil liberties or public rights”
Improve “the legal system or the legal profession”
Charitable contributions
Should aspire is a compromise that doesn’t require the pro bono work, but gives that
decision to the lawyer
Pro Bono is important because of lawyers monopoly on legal representation
 That power should be used for good
Two good reasons:
 Is a good opportunity to gain experience without money being on the line
 Can find a pro bono cause that furthers issues you believe in
 Good for you as giving back
Chapter 4: Control and Communication
o The 5 “C” Fiduciary Duties
 A lawyer is a fiduciary!
1. Client Control
2. Communication
3. Competence
4. Confidentiality
5. Conflict of Interest Resolution
Pages 75-100; Problems 4-1 through 4-4;
o Problem 4-1
o Plaintiff retained Fox in a personal injury case. A few weeks later, Fox proudly informed Plaintff
that he had settled the case for a tidy sum. Plaintiff replied that she would never settle for that
amount and refused to sign a release. What should Fox do? Does it matter if Fox agreed to the
settlement during a mandatory court-annexed mediation?
 Was lawyer acting properly in agreeing to the settlement?
o No, you have a duty to communicate
o Client should be informed of the decision so that they can make the
decision
 Why did other side agree to settlement with Fox?
o Other side assumes that the attorney has discussed with their client and is
speaking on their behalf
 How does client decide about settlement?
o Receive good advice and information from the attorney
 Is it relevant if Fox did not intentionally violate the rules of professional conduct?
o No, intent is not a defense
o May help mitigate your punishment
 What is client’s sphere of control?
 What is lawyer’s sphere of control?
o Machado v. Statewide Grievance Committee
 What did Machado do wrong?
 Adams wanted him to declare bankruptcy and appointed an agent
 Cihocki , Adams agent, paid the retainer and wanted Machado to pursue the
dismissal of a sales tax lein from a business he and Adams owned
 The retainer ran out w/o the bankruptcy being pursued
o What’s wrong with this?
 Should have defined the scope of the relationship on the front end
 Remember who your client is, keep them informed, even when another agent is
involved
 Generally, the court’s lean towards the client’s side of the argument
o Problem 4-2 (Simeon)
o Martyn represented Defendant, who was charged with first degree sexual assault. During the
trial, Defendant and Martyn discussed the pros and cons of whether to ask the court for a lesserincluded jury instruction for assault, and Martyn decided against such a request. After the jury
convicted Defendant, Martyn believes she made a mistake and recalls that Defendant wanted her
to ask for the lesser-included instruction. If these facts can be established on appeal, should
Defendant prevail?
 What is the importance of the instruction about the lesser-included offense?
o Can get the jury to find the defendant guilty of a lesser offense


o However, may also look more appealing for a jury to find the defendant
guilty
Did lawyer and client discuss the issue?
o Yes
 What was said?
o No one remembers
 Did lawyer act properly?
Is this a decision for the client or the lawyer?
 Lawyer, as this is a tactical decision not given to the client in Rule 1.2
 Review Rest. § 21
o Control – Rule 1.2
 Rule 1.2: Scope of Representation and Allocation of Authority Between Client and
Lawyer
 Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decision concerning
the objectives of representation and, as required by Rule 1.4, shall consult with the
client as to the means by which they are to be pursued. A lawyer may take such action
on behalf of the client as is impliedly authorized to carry out the representation. A
lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case,
the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a
plea to be entered, whether to waive jury trial and whether the client will testify.
 (c) A lawyer may limit the scope of the representation if the limitation is reasonable
under the circumstances
 (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the
lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences
of any proposed course of conduct with a client and may counsel or assist a client to
make a good faith effort to determine the validity, scope, meaning or application of the
law.
o Note - Courts will also look at other standards (criminal defense law standards, etc.) to see if
lawyer acted properly
o Control
 Clients’ Sphere:
 Objectives of representation
 Settlement (civil) and plea (criminal)
 Exercise of Constitutional rights in criminal cases – jury trial, testify in own
defense
 Lawyers’ Sphere:
 Act within bounds of the law, comply with court orders;
 Everything else is shared
 Parties can agree who will make decision
o If client absolutely wants something that goes against the tactical decision
of the lawyer, the lawyer should still side with the client
 Lawyer owes duty to communicate under 1.4
 Presumption that tactical decisions belong to lawyer
o Communication
 Rule 1.4: Communication
 A lawyer shall:

promptly inform the client of any decision or circumstance to which the client’s
informed consent … is required;
 reasonably consult with the client about the means by which the client’s
objectives are to be accomplished;
 keep the client reasonably informed about the status of the matter;
 promptly comply with reasonable requests for information; and
 [consult about limits imposed by RPC]
 A lawyer shall explain a matter to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation.
o NOTES:
 Communication tends to be the key to the majority of mistakes made by lawyers in
dealing with clients
o Legal Malpractice (de Pape)
o dePape v. Trinity Health Systems, Inc. (guy trying to cross the border from Canada)
 What did dePape’s lawyer do wrong?
 Didn't line out how they needed to prepare for immigration
 Never contacted the doctor(one of two clients) by letter / telephone
o Best way is to put this in writing via letter
 How did court analyze malpractice?
 Just like tort: D,B,C,Ds
 Duty
 Arises from attorney-client relationship (RLGL 14)
o Beware accidental clients!
 Two main types:
 Like DePape- Lawyer represents a company but the lawyer
is also representing the EEs of the company
 People asking you for informal legal advice
o Law tends to presume they are your client unless
you tell them otherwise
 Lawyers owe:
o Duty of Care (Professional Negligence)
o Duty of Loyalty (Breach of Fiduciary Duty)
 Breach
 Violation of Rule
o Review ¶ 20 of the Preamble
 Courts ignore this advice however and will use the rules to define
the lawyer’s duty of care
 Expert Testimony unless “common knowledge”
 Causation
 Usually case within a case
 Damages
 Compensatory, Emotional, Punitive
o Problem 4-3
o In representing Employer, Martyn & Fox forgot to insert a non-compete clause into an
employment agreement for a new key employee, even though Employer had specifically
requested that protection. Any problem?
 What if M & F fail to include non-compete provision requested by client?
 Did not meet the objectives under 1.2a;
o Duty and Breach can make you subject to discipline


 If did not communicate that they failed then they violated 1.4
What if M & F fail to advise the client that they could include a non-compete?
 Could be a violation of 1.1 - Competence - and 1.4(a)(2) & (b)
Are M & F liable for malpractice?
 Must then do Causation and Damages to decide this portion
Chapter 5: Competence I
Introduction; Malpractice and Breach of Fiduciary Duty; Ineffective Assistance of Counsel – Pages 101-16;
124-33 Problems 5-1 through 5-6

Competence
o Rule 1.1: Competence
 A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation reasonably necessary
for the representation.


Problem 5-1
Martyn & Fox is asked whether the firm can file a patent application for a new gene therapy on behalf of
the inventor. No one at Martyn & Fox took biology in college or ever filed a patent application. At a
partners’ new business meeting, Fox declares, “Let’s take it, it can’t be that hard; thousands are filed
each year. We’ll let the inventor teach us the science.” How should Martyn respond?
o Can a lawyer with no relevant experience file a patent application?
 No, b/c must have passed the patent bar so it would be an exception
o Can a lawyer with no relevant experience take on a medical malpractice case?
 Yes
NOTES:
o No requirement for an attorney to tell a perspective client his expertise
o Lawyer need not have special training to handle particular cases



Problem 5-2
Martyn interviewed a prospective client about a potential personal injury case and told him that it wasn’t
the kind of matter Martyn & Fox handled. Two months later the same person called, leaving a message
that he wanted to check on the “status of his case.” Before returning the call, Martyn noted that the
applicable statute of limitations on the claim had run three weeks earlier. Martyn thinks she warned the
prospective client about the statute when they met. What should Martyn do?
o Is there a lawyer-client relationship here?
 See RLGL Section 14.
o How does this compare to Togstad?
 Lawyer was not diligent Rule 1.3
 Not competent representation under 1.1
 Did not communicate under 1.4
 Difference here is that it would not have been reasonable for M & F’s client to think they
accepted the case
o How could Martyn and Miller (lawyer in Togstad) have protected themselves?
 Non-engagement letter


Disengagement letters are also a good idea to finish off the relationship
Have to watch the included information of an engagement letter so as to prevent an issue of future
violation of a Rule
Problem 5-3
What if Martyn agreed to take the case when she frist met with the prospective client?
o (a) Must she tell the client that the statute has run?
 Yes, Problem 1.34
After the lawyer makes an error there may be a conflict of interest b/c lawyer wants to protect self
o (b) Can Martyn be disciplined?
 Yes, Incompetent 1.1, if fails to tell client 1.4



 Should she be? How serious, is she repeat offender
o (d) Wll Martyn & Fox be liable for malpractice?
 Have to prove that underlying case had merit, case-within-a-case



Formation of A-C Relationship (Duty)
 Offer: “A person manifests to a lawyer the person’s intent that the lawyer provide
legal services for the person.”
 Acceptance: “the lawyer manifests to the person consent to do so; or the lawyer
fails to manifest lack of consent to do so, and the lawyer knows or reasonable
should know that the person reasonably relies on the lawyer to provide the
services.”
 No consideration necessary

Padilla v. Kentucky - Immigrant gets deported because he entered a guilty plea
o What is Padilla’s argument?
 His lawyer was incompetent, and he therefore received ineffective assistance of counsel
as he was due under the 6th Amendment
o What does the Court say?
 What does Court look to in determining 6th Amendment standard?
 Effective assistance of counsel
 What is a lawyer’s legal duty under the 6th Amendment?
o What if Padilla’s lawyer had not given him any advice about his immigration status?
o Is Padilla free to go?
 No
o After Padilla…
 How would you approach the representation of a criminal defendant who speaks poor
English?
 Determine immigration status and research what effect the legal decisions have on
the client’s immigration status.
 How would you approach the representation of an accused sex offender?
 Have to consider all collateral consequences of the litigation
o Relocation
o Whether Gov may seize your property
o NOTES:
 Where the law is clear, the lawyer has a duty to provide competent advisement
 Where unclear, must advise that the client that the pending litigation may have an effect
on immigration status
Ineffective Assistance of Counsel
o Counsel’s representation fell below an objective standard of reasonableness
 Rules of Professional Conduct
 ABA Standards
 Expert Testimony
 Courts frequently defer to “strategic decisions” of defense counsel.
o Counsel’s deficient performance prejudiced the defendant
 Actual prejudice – but for counsel’s errors, the result would have been different
 Errors frequently labeled “harmless” (e.g. sleeping lawyer cases)
 In rare cases, prejudice presumed
Chapter 5 Part 2: Competence II
Duties to Nonclients; Aiding and Abetting – Pages 134-44; Problems 5-7

Duties to Nonclients
o Three possible claims by third parties:
 Malpractice (Greycas)
 Misrepresentation (Greycas)
 Aiding and Abetting Breach of Fiduciary Duty (Thornwood)

Greycas
o What happened? Lawyer submitted letter for his brother in law saying there were no liens on his
farm equipment to help him get a huge loan and save his farm
o What kind of claim did Greycas bring?
 Malpractice
 Misrepresentation
o What did Court say about his claim(s)?

Malpractice claims by non-clients
o “Primary purpose and intent of the attorney-client relationship was to benefit or influence the
third party” (Greycas); RLGL 51
o Three Categories:
 Invitation (from lawyer or client) to rely so long as not too remote. RLGL 51(2)
 Third-party beneficiaries of clients (lawyer knows client intends to benefit third party).
RLGL 51(3)
 Prospective clients. RLGL 51(1); Togstad

Misrepresentation
o False representation concerning a material fact
o Made intentionally or negligently***
 Intentional or reckless misstatements (fraud) – lawyer liable to all who reasonably relied
 Negligent misstatements: Lawyer is liable to those in a “limited group of persons for
whose benefit and guidance” the professional “intends to supply the information.”
Restatement (Second) of Torts 552; Greycas
 Minority view – privity required (Ultramares)
o For the purpose of inducing another to act
o Reasonable reliance (causation)
o Damages


Problem 5-7
In giving an opinion to Cheltenham Township on the issuance of bonds to finance a shopping center,
Martyn & Fox inserted the usual boilerplate: “This issuance complies with all applicable law.” Martyn
& Fox forgot that there were new IRS regulations governing the tax-exempt status of such special
purpose bonds. Any problems?
o Can M & F’s client sue them for malpractice?
 Yes, but causation and damages is difficult
o Can a third party sue M & F for malpractice?
 Yes, malpractice:
 Just have to figure out which category this group fits into
 Yes, misrepresentation
 Yes, but just because they didn’t check doesn’t mean that it wasn’t compliant

Thornwood v. Jenner & Block
o What was the relationship between Thornwood and Follensbee?
 Partners in a golf community project
o What was Jenner & Block’s role?
 Assist Follensbee in negotiations w/ PGA tour and to get Thornwood’s interest
o What did Jenner & Block do wrong?
 Conflict of interest issue (will review later)
 Aid and Abet the breach of a fiduciary duty
 Help Follensbee breach his duty to his partner
 Release was too broad, too general (said any and all claims)
 Can't release unknown claims - Partner didn't tell him PGA was
going to do project
 Releases not valid b/c fiduciary duty between partners to share
information
 Weren’t competent - Didn’t know the law

Aiding and Abetting Breach of Fiduciary Duty (Thornwood)
o Fiduciary (client) breached an obligation to plaintiff.
o Lawyer provided substantial assistance to breach
o Lawyer knew client’s obligation constituted a breach of fiduciary duty (ex. release drafted on
behalf of self b/c they knew (Jenner and Block) that they were doing wrong)
o Breach causes harm to third parties
Material on Laura Pendergest-Holt and Stanford Financial (available on TWEN)

Pendergest-Holt v. Sjoblom
o Who did Sjoblom represent? He represented Stanford Financial in regulatory matters
 What did his engagement letter say?
 What did he say at her deposition?
o What did Sjoblom do wrong?
 Pendergest-Holt’s lawyer: “He essentially dropped her in the grease.”
Ineffective assistance of Counsel 2-2

Competency of Defense Counsel (Problem 2-2 on TWEN)
o You represent Edward Donald in his post-conviction petition.
 What standard do you have to meet?
 That the representation was ineffective
 What are your arguments?
 Should have found the Df witness
 Client wanted to testify
 Didn’t cross-examine the witness
 What will the government say in response?
 Strategic decision
o Didn’t call Df because of his long record
o Obvious to the jury that the man was old and wore glasses
 Error was harmless
o Can Donald sue his trial attorney for malpractice?
 YES; Same analysis as civil (D,B, Ca*, Da)
 Causation: Must prove but for error of counsel, NO conviction (majority)
o Minority require the following as well as no conviction
 Actual innocence (minority)
o Some allow for the Df to just prove they would have gotten less
 Lesser sentence (minority)
Chapter 6: Confidentiality I
o Intro; Fiduciary Duty; Evidentiary Protections – Pages 161-188; Problems 6-1 through 6-7
Matter of Anonymous: Lady sent attorney financial documents concerning her and her child’s father so that she
could get child support. The attorney later used those documents / info in them to get money owed to another
client. An attorney owes a non-client not to reveal damaging information learned in the course of consultation.
Here he revealed information without the potential clients consent. Fact info was public mitigates the damages.
Perez v. Kirk & Carrigan: Coca Cola driver was in an accident and killed 21 children. Lawyers visited him in
the hospital, said they represented him as well; driver gave the attorneys a sworn statement and they promised
to keep it confidential, but when the DA threatened them with a subpoena they “ratted” him out. Driver was
indicted for manslaughter. A lawyer breaches his fiduciary duty when he promises to keep something
confidential and instead divulges it regardless of privilege.
Hughes v. Meade: Hughes was an attorney that Williams used to return a stolen typewriter to the police. The
judge held the attorney in contempt because Hughes would not name Williams. A/C privilege does not exist
when the attorney is simply used as a conduit.
Dean v. Dean: Property and cash was stolen from Husband’s shop. Person contacted Kirschner about returning
it and chose him because of confidentiality with another case. A/C privilege exists when a client consults an
attorney concerning stolen property.
Upjohn Co. v. United States: IRS investigated UpJohn and wanted them to disclose memos between attorneys
and non-control EEs. A/C exists between corporate attorneys and non-control EEs

Confidentiality
o NEED TO DISTINGUISH
1. The Professional Duty of Confidentiality (“PDC”)
 Incorporates A/C & AWP
2. The Attorney-Client Privilege
3. The Work-Product Doctrine

Exceptions > PDC > Wrongful Imprisonment, etc (See chart, page 162)

PDC vs. A-C Privilege
o Professional Duty of Confidentiality
1. Info “relating to representation of a client.” 1.6(a)
 Extremely broad
2. Derives from CL of agency; codified in 1.6(a).
3. Cannot voluntarily reveal conf. info BUT cannot use PDC to avoid court ordered
disclosure
 Once court requested, have to move to the A/C Privilege in order to avoid the
court order
o Attorney-Client Privilege (Evidentiary issue) (Subset of PDC)
1. Communications between privileged persons in confidence for the purpose of obtaining
or providing legal assistance. RLGL 68-77.
 Only covers “communications”
2. Derives from CL of evidence
3. Can be used to avoid court ordered disclosure.
o Work-Product Doctrine – TBD

Problem 6-1

May Martyn & Fox include in a firm website the names of clients they have represented, the results in
their litigation matters, and the size and type of transactions they have handled?
o Is there any prohibition on M & F promoting their work on their website?
1. RPC 1.6, Restatement 59 Comment (d)
2. Must have client consent
o What if everything is a matter of public record?
 Public record does not matter, still must have consent
2. What does Matter of Anonymous tell us about this?
 What did lawyer in Anonymous do wrong?
o Did not gain the client’s permission to use the info
o Filed against her husband a collection action using info she gave him
3. Generally known info can be used - Johnny Cochran / OJ


Problem 6-2
Martyn & Fox represents Disney as undisclosed principal for the purpose of purchasing property to
develop a new theme park.
o May Fox, who represents Disney, purchase land adjacent to Disney’s proposed new theme park?
1. 1.8(b) - If it is detrimental to the client
2. Can get permission
o May Fox purchase stock in Disney?
1. No Prof. Rule
2. But cannot trade on inside information - Securities / Corp law

Perez v. Kirk & Carrigan
o What happened to Perez?
1. Driver for Coke hit a school bus and killed 21
o Who did Kirk & Carrigan represent?
1. Coke and Driver
o What did Kirk & Carrigan do wrong?
1. Explain how they violated each of the 5 Cs.
 Conflict of interest representing the company and the EE
 1.8 can’t disadvantage client
2. Why couldn’t they go to the police once they dropped Perez as a client?
 1.9 same as 1.8 but for former clients
3. How does the presence of Perez’s relatives in the hospital room affect the analysis?
 Doesn’t affect whether the information will be kept confidential
 However, could affect the A/C privilege if third party in room
4. How did their bad lawyering actually hurt their own economic interest?
 Can’t use former clients info (1.9(c)) to disadvantage him or in an adverse action
 W/o info they can’t represent zealously


Problem 6-3
Small Co. asks Martyn & Fox to bring a huge fraud and RICO claim against Magna Co. Martyn & Fox
currently represents Big Bank in a $600 million loan to Magna that is scheduled to close next Tuesday.
What can we tell big bank?
o Is Small Co. a client?
1. Prospective client under 1.18
o Why would Big Bank want to know what M & F have learned from Big Bank?
1. Wouldn’t want to make the loan
o Can M & F disclose the information to Big Bank?
1. No
o Where does that leave M & F?
1. 1.4 - Need to inform current client
2. 1.18 - Duty to prospective client
3. 1.16(a)(1) - Must withdraw if the attorney will violate a rule

Confidentiality (PDC)
o Info “relating to representation of a client.” 1.6
1. BROADER THAN A-C PRIVILEGE!
o Can’t reveal it without informed consent or an exception. 1.6
o Can’t use it to client’s disadvantage. 1.8; RLGL 60
o PDC owed to former clients (1.9) and prospective clients (1.18).

Attorney-Client Privilege (Watch out for third persons)
o REMEMBER THAT A-C PRIVILEGE IS AN EVIDENTIARY RULE!
o Elements
1. Communication
2. Made between privileged persons
3. In confidence
4. For the purpose of obtaining or providing legal assistance


Problem 6-4
At Client’s request, Fox returns goods stolen by Client to the police? Can Fox be forced to testify about
the identity of Client?
o Is the client’s identity confidential? Is it privileged?
1. Depends on whether a conduit or gave legal advice
2. Identity is confidential; but not privileged (Dean said the right elements to then make it
privileged)
o Can you distinguish Hughes from Dean?
1. Hughes - Lawyer was acting like a delivery service, not a lawyer = no privilege
2. Dean - Client approached him because of confidentiality and got legal advice= privilege


Problem 6-5
Martyn interviews 25 maintenance workers to determine how our client is disposing of used oil. Can
Martyn be forced to testify about those conversations?
o Who is the client?
1. Company
o What is Martyn’s relationship with the workers?
1. Represents the company
o What should Martyn tell the workers?
1. He’s here on the company’s behalf, not theirs
o Are communications with the workers privileged?
1. Yes, extends to non-control EEs as well (Upjohn changed this - in almost every state &
Fed)
o Can the company assert the attorney work-product doctrine?
1. Yes, but only if in anticipation of litigation
 don’t have to turn over work product material

Attorney Work Product
o The “no borrowed wits” doctrine
o Elements (RLGL 87):
1. Documents, photos, diagrams, sketches, mental impressions, etc.
2. Created in anticipation of litigation


Problem 6-6
In a privileged conversation Client tells Martyn where he was on the night in question. Can Client now
be compelled to testify as to his whereabouts?
o The facts themselves are not privileged
o What you told your lawyer is privileged


Problem 6-7
Can Martyn be forced to testify about a conversation she had alone with an investment banker to
understand what was required for our corporate client to pursue a merger?
o Is the conversation covered by the attorney-client privilege?
1. Investment banker is a third party and not a client
o Is the conversation covered by the attorney work-product doctrine?
o What should Martyn do to ensure that she will not have to testify about the conversation?
1. Can hire the investment banker as an expert (lawyer should hire them); send them a letter
describing the involvement and that he will be advising his client based on this advice. Be
sure to lay out the elements of the A/C privilege in the letter

Inadvertent Disclosure
o Is disclosure inadvertent?
1. Majority rule (Citgo factors); RLGL 79:
 Reasonableness of precautions taken to prevent disclosure
 Amount of time taken to remedy the error
 Scope of discovery
 Extent of disclosure
 Overriding issues of fairness
2. Minority “Crown Jewel” rule
 Citgo: If waive the privilege for one thing, you waive it for everything
Chapter 6 Part 2: Confidentiality II
Express or Implied Authority – Pages 188-196; Problems 6-8 through 6-12
In re Pressly: Custody battle between husband and wife. Pressly represented the wife. Father had a history of
abuse; Wife notified Pressly that father may have sexually abused their nine year old and to keep it confidential
until a doctor reviewed the child. Father’s attorney asked Pressly and he told him. Even if her case was not
harmed, she was emotionally affected by his actions. Information was not needed to protect the child, but
Pressly did not intend to break confidence. Can give attorney an implied power to waive confidentiality if
needed to further the case along, but here there was an express confidentiality agreement and can only be
modified by the client.

Confidentiality
o NEED TO DISTINGUISH
1. The Professional Duty of Confidentiality (“PDC”)
2. The Attorney-Client Privilege
3. The Work-Product Doctrine

PDC vs. A-C Privilege
o Professional Duty of Confidentiality
1. Info “relating to representation of a client.” 1.6(a)
2. Derives from CL of agency; codified in 1.6(a).
3. Cannot voluntarily reveal conf. info BUT cannot use PDC to avoid court ordered
disclosure
o Attorney-Client Privilege
1. Communications between privileged persons in confidence for the purpose of obtaining
or providing legal assistance. RLGL 68-77.
2. Derives from CL of evidence
3. Can be used to avoid court ordered disclosure.
o Work-Product Doctrine – TBD

Confidentiality (PDC)
o Info “relating to representation of a client.” 1.6
1. BROADER THAN A-C PRIVILEGE!
o Even publicly available information is confidential (unless generally known)
o Duty owed equally to all clients. Perez.
o Can’t reveal it without informed consent or an exception. 1.6
o Can’t use it to client’s disadvantage. 1.8.
o PDC owed to former clients (1.9) and prospective clients (1.18).

Attorney-Client Privilege
o REMEMBER THAT A-C PRIVILEGE IS AN EVIDENTIARY RULE!
o Elements
1. Communication
2. Made between privileged persons
3. In confidence
4. For the purpose of obtaining or providing legal assistance
o Facts are not privileged.

Attorney Work Product
o The “no borrowed wits” doctrine
o Elements (RLGL 87):
1. Documents, photos, diagrams, sketches, mental impressions, etc.
2. Created in anticipation of litigation
o For difference between AWP and A-C privilege, see RLGL 87, comment d.

When can an attorney reveal confidential information?
o Only if “the client gives informed consent, the disclosure is impliedly authorized in order to
carry out the representation or the disclosure is permitted by paragraph (b).” 1.6(a).
1. What does “impliedly authorized” mean?
 Court forces you to turn them over (Can function as an attorney w/o obeying)
2. Can you reveal confidential information in response to a direct question from opposing
counsel?
 No
3. Does it matter if you think it will help your client?
 Irrelevant, may mitigate the punishment, but still a violation of the rule


Problem 6-8
Martyn recommends that Martyn & Fox add the folowing clause to all personal injury retainer
agreements. Should Fox agree?
“Client agrees to allow Martyn & Fox discretion to disclose any information relating to the
representation whenever Martyn & Fox determines such action will promote the best interests of Client?
o Can M & F implement this language in its fee agreements?
1. Must be “informed consent” and must discuss the alternatives and the material risks
involved
o What language in 1.6 applies?
1. (a)


Problem 6-9
What may (must) Fox do if Client, in the course of estate planning, tells Fox that she is terminally ill and
plans on taking a lethal dose of medication as soon as she signs the documents?
o Is this confidential information?
1. Yes
o Is Fox required to do anything?
1. NO
2. May reveal under 1.6(b)(1); Not required
o Should Fox do anything?
1. Is this client in their right mind?
2. Feel they are a danger to themselves
 MAY take action
o Now it is a moral / ethics issue
 Freedman & Smith - Client’s morals control the decision


Problem 6-10
Can Martyn & Fox turn over notes of 25 interviews with maintenance workers to the Justice Dept. as
part of a settlement on behalf of our corporate client?
o yes, as it is part of the clients representation in order to get them a settlement
o Must make sure you don’t put anything inappropriate in your notes


Problem 6-12
Martyn & Fox are ready to try the High Energy Case against Arthur Touche and five former High
Energy directors. Fox’s secretary hands him a thick fax with a cover page that says: “To all Defense
Counsel. Privileged and Confidential. Summary of Decision Quest’s Jury Profile.” What should Fox do?
What if the fax reveals misconduct by the other side? What if the same document is sent to us in a plain
brown envelope with a note “Knew you’d find this interesting”?
o Is this inadvertent disclosure or is it something else?
1. If inadvertently produced document, 4.4(b) requires that you promptly notify the sender
 If not inadvertent, then it is voluntary or deliberate
2. What factors does the Citgo case tell us to look at?
 See below
o What is the significance of how we characterize the disclosure?
o Hot issue of metadata
1. Properties information in documents made electronically
 Who created it, when, who edited it
 Majority say it is an inadvertent disclosure
o Say you shouldn’t look at it
 Minority of states and the ABA say it is voluntary

Inadvertent Disclosure (v. Voluntary Waiver)
o Is disclosure inadvertent?
1. Majority rule (Citgo factors); RLGL 79:
 Reasonableness of precautions taken to prevent disclosure
 Amount of time taken to remedy the error
 Scope of discovery (How many documents)
 Extent of disclosure
 Overriding issues of fairness
 Also: If they have given you multiple copies of the document, given to the other
party in multiple forms; then not confidential; How careful are you in reviewing
your documents;
2. Minority “Crown Jewel” rule
 If you don’t treat the information as the crown jewels then it is a voluntary waiver
o Interaction with FRCP 26 and FRE 502
1. FRE 502 - Inadvertent disclosure does not constitute waiver of the privilege
2. FRCP 26 - Must give inadvertent material back
 Both beg the question, is this inadvertent?
 If voluntary disclosure (or inadvertent disclosure ruled voluntary) then waiver of confidentiality and
privilege; Not just this document, but the whole subject matter is waived (will be subsequent argument
about what the extent of the subject matter is)
o Don’t presume voluntary
 Comply with 4.4(b) by sending a letter and tell them then that you see this as a voluntary
waiver; then go to the court and make a motion that the court resolve it.
Chapter 7: Confidentiality Exceptions I
Physical Harm – Pages 197-213; Problems 7-1 through 7-4
Hawkins: Hawkins arrested on a marijuana charge; court appointed attorney; learned of his mental illness but
did not bring it up at his hearing. Hawkins was released and assaulted his mother and jumped off a bridge
resulting in amputation of his legs. When an attorney fears for the life of someone specific, Tarasoff applies and
is an exception to confidentiality. Intention to commit a crime or harm someone is an exception to
confidentiality
Purcell: Tyree received an eviction notice and contacted Purcell for legal advice. Purcell believed that Tyree
was going to commit arson so he notified the DA. Authorities discovered arson equipment in Tyree’s home and
arrested him. The DA subpoenaed Purcell about their conversations but Purcell successfully quashed the
subpoena and the jury was unable to reach a verdict. Tyree was re-tried and this time the conversations were not
quashed as A/C privilege does not exist when seeking legal advice on the furtherance of a crime or fraud.
Purcell appealed and ultimately it was found that he was not contacted about legal advice for the furtherance of
a crime.
Spaulding: Spaulding was in a car accident and severely injured. Zimmerman drove the vehicle. Spaulding
sought damages from Zimmerman. A nuerologist reviewing Spauldings injuries for Zimmerman’s attorney’s
discovered he had a aneurism. The attorney’s did not disclose that before the settlement. After settlement,
Spaulding’s doctor found it and the court vacated the settlement. The situation is different when it comes to
minors.
Swidler: Foster fired people from the White House Travel office and engaged Hamilton at Swidler regarding
advice on the investigation of his actions. Hamilton took three pages of handwritten notes beginning with the
word privileged. Foster then committed suicide. The Gov requested the notes and that Hamilton should testify.
Appeals Court found that A/C did not apply posthumousely. S. Ct. granted certiori. A/C privilege exists even
posthumously. O’Connor Dissent: When there is a need for the info and no other way to get it.

Physical Harm Exception
o Exception to PDC
o May reveal confidential information “to the extent reasonably necessary to prevent reasonably
certain death or substantial bodily harm.” 1.6(b)(1).

“The Practice” Clip
o Has Lindsey complied with her obligations to her psychotic client?
1. Communications with high school?
 No, confidentiality rule does not have a public record exception
 Even if it is publicly available info (criminal record) it has to be commonly
known info to disclose it (like OJ common)
2. Communications with police?
 yes, because did not reveal privilege information
 Should not have told the DA her clients information
o Bodily harm/death has already occurred so exception no longer applies
 Could only disclose the info reasonably necessary to prevent death / bodily harm
o Is it ever OK to break the rules?


Problem 7-1
May (must) Martyn & Fox disclose that Husband just stomped out of Fox’s office, screaming “I’m
going to kill her rather than give her the Cape Cod house”? What if Dad tells Fox that’s what Son just
told him in a phone call, not ten minutes ago? What if Fox calls the police, and then is subpoenaed to
testify at a grand jury proceeding considering whether to indict Son?
o May Fox reveal?
1. How does this situation compare to “The Practice” clip?
 Specific person, time, but how serious?
 Pretty typical of divorce
 History of Violence?
2. How does this situation compare to Purcell?
o Must Fox reveal?
1. No
 See Hawkins; RLGL 66(3).
o If Fox reveals, can he be subpoenaed to testify?
 See Purcell.

Is there ever a situation where the lawyer MUST reveal?
o No under the rules.
o Civil liability only if “it appears beyond a reasonable doubt that the client has formed a firm
intention to inflict serious personal injuries on an unknowing third person.” Hawkins
1. RLGL 66 says no civil liability under these circumstances
 NOTES: No evidence that he was going to assault anyone, only that he posed a
general threat to society in general
 Tarasoff does not apply here
 Hawkins has dicta that says in some circumstances, but none have ever been
found
o No case has ever held a lawyer liable under these circumstances

Purcell
o What happened?
1. Purcell threatened to burn down his apartment complex
o Was lawyer justified in going to police?
1. Yes, correct in doing so
o Could prosecutors compel lawyer to testify against client? (NO)
1. Because he went to police?
 Decision to reveal confidential information not necessarily a waiver of the A-C
privilege! Purcell; See also RLGL 79, comment c.
o Policy argument - Don’t want to discourage lawyers from going to the
police
2. What about the crime-fraud exception?

Crime-Fraud Exception
o Exception to A-C Privilege (Not Confidentiality)
1. (A/C does not apply)
o “Only if the communication seeks assistance in or furtherance of future criminal conduct.”
Purcell
1. Doesn’t apply in Purcell because the client was not there to seek advice for the crime
 Policy:
o A/C Privilege exists b/c we want clients to speak freely
o However do not want to allow them to speak freely about future crimes

Problem 7-2

May (must) Martyn & Fox disclose that our client just discovered arsenic drums in back of the plaint it
bought last year? What if our client has owned the plant for 50 years?
o What should M & F do under the circumstances?
1. Not enough facts to do anything. Don’t know client’s intention, purpose of the drums, etc
2. Don’t know danger posed by the situation, don’t jump to reveal confidential information.
o Must they reveal? May they reveal?


Problem 7-4
May (must) Martyn & Fox disclose or testify that our client has committed a crime for which another
person is now serving time? What if the innocent person is on death row?
o Any exception that justifies disclosure?
1. If on death row may reveal under 1.6(b)(1)
o Does it make a difference if client is dead?
1. Doesn’t matter, still need their permission (Swidler)
 A/C survives death - protect a person’s legacy, family and friends; otherwise
wouldn’t come forward
 Restatement (Sec. 77, comment d) actually supports the dissent in Swidler &
Berlin; Where need for the info is great, argue it is ok to disclose if confidentiality
is less

An Innocence Exception?
o Massachusetts and Alaska: “to prevent the wrongful execution or incarceration of another”
o Model Rules and 48 other states have no exception.
o What would you do???

“The Practice” Clip
o Who is the client?
1. The driver, even though insurance company pays the bills
o Why were lawyers advised that there was no exception?
1. Three potential regimes
o Spaulding:
1. What did Spaulding’s lawyer do wrong?
 Did not request the medical exam of the other side before settlement - malpractice
2. What did Zimmerman’s lawyer do wrong?
 Should have talked to the client
3. Why does the court reopen the judgment?
 Lack of candor to the court
 He was a minor at the time
o In the absence of an exception, what would you do?

Spaulding and 1.6(b)(1)
o 3 potential regimes
1. No 1.6(b)(1) exception. Spaulding.
2. Old 1.6(b)(1) (still the rule in a minority of states): May reveal when “necessary to
prevent the client from committing a criminal act that the lawyer believes is likely to
result in imminent death or substantial bodily harm.”
3. Current 1.6(b)(1): May reveal “to prevent reasonably certain death or substantial bodily
harm.”
Watch (at home) “60 Minutes” story re: Alton Logan. (You can access it at this link:
http://www.cbsnews.com/stories/2008/03/06/60minutes/main3914719.shtml or on TWEN)
Chapter 7 Part 2: Confidentiality Exceptions II
Financial Harm – Pages 213-220; 231-242; Problems 7-5 through 7-8
United States v. Chen: Sunrider Corporation was importing goods from Asia and creating false invoices to
avoid income tax. The comptroller left the company and disclosed the fraud. The court subpoenaed the
attorney’s even though they were unaware of the fraud. The crime-fraud exception applies to A/C privilege
even where the attorney is innocent of wrongdoing or guilty knowledge. Cannot shield clients from ongoing or
future criminal conduct.


Problem 7-5
May Martyn tell the other side that our client:
o Martyn: “My client won’t possibly pay more than $500,000”
o Martyn: “I am not authorized to settle for more than $500,000.” (Settlement authority is actually
$5,000,000)
o Any difference?
1. 4.1(a) says can’t lie, but the comment for this rule may provide room for negotiation such
as in the first statement (puffing), whereas the second statement is clearly a lie

Rule 4.1: Truthfulness in Statements to Others
o In the course of representing a client a lawyer shall not knowingly:
1. Make a false statement of material fact or law to a third person; or
2. Fail to disclose a material fact when disclosure is necessary to avoid assisting any
criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6
 Is it necessary to disclose a material fact to avoid assisting and is disclosure
allowed in 1.6?
Problem 7-6
Martyn & Fox, representing Seller, mistakenly told Buyer’s lawyer that the property is zoned
commercial. What happens if when we discover the mistake we don’t correct it, the deal closes, and
Buyer then discovers the correct zoning?
o Have M & F violated 4.1(a)?
1. No, because they made a mistake; it was not knowingly
o Have M & F violated 4.1(b)?
1. Would nondisclosure result in a fraud?
 What is fraud in that jurisdiction?
 Common Law Fraud - next slide
 Meets everything but reasonable reliance because the other side could have
researched and discovered the zoning issue
2. Is there a 1.6 exception?
3. Is lawyer assisting?
 What does The Opinion Letter say about this issue?
o The letter was to give the bank the confidence to give the loan.
o Because it was an ongoing loan and future payments were due, it was a
continuing fraud



Fraud/Misrepresentation
o False representation concerning a material fact
1. Can include an omission.
o Made intentionally or negligently***
1. Intentional or reckless misstatements (fraud) – lawyer liable to all who reasonably relied
2. Negligent misstatements: Lawyer is liable to those in a “limited group of persons for
whose benefit and guidance” the professional “intends to supply the information.”
Restatement (Second) of Torts 552; Greycas
 Minority view – privity required (Ultramares)
o For the purpose of inducing another to act
o Reasonable reliance (causation)
o Damages


Problem 7-7
What may (must) Martyn & Fox do if at a celebration dinner the night before the initial public offering
the CEO tells us, “I sure am glad we didn’t have to disclose that threatened patent infringement suit”?
What if it’s the CFO and he tells us, “I sure am glad the auditors didn’t insist we footnote the $65
million in off-balance sheet financing we cleverly arranged”? May we withdraw? Will client have a
claim against us if we do? What if we learn these things a week after the IPO?
o Checklist:
1. What do you know? Hearing from the CFO is probably good enough to know the issue.
May followup with the CFO
 Can’t step back and say you don’t want to know; may need to inquire further
2. Mandatory disclosure under 4.1(b)
 Material fact? Yes
 Necessary to avoid assisting in a criminal or fraudulent act? Yes, if pre-closing; if
post-closing maybe not (but may be argument that the fraud is ongoing postclosing)
 Fraudulent? Yes
 Is disclosure permitted by 1.6? Yes, (b)(2) because it will harm others and they
used THIS lawyers services; And (b)(3) because can probably rectify
o Depending on the state (Chart 112, have to look at how the state handles
this)
3. Lawyer must withdraw (Rule 1.16) if under 1.2(d) their services will assist in
committing a fraud
 May withdraw if reasonably believe action involving their services result in
criminal or fraudulent action

Client Fraud Checklist
o What does lawyer “know”? (1.2(d), 1.13, and 4.1)
1. Obligation to investigate. (1.1).
o Disclosure?
1. Mandatory under 4.1(b).
 Is disclosure necessary to avoid assisting AND
 Does a 1.6 exception exist?
2. Permissive under 1.6(b).
o Up and out reporting? 1.13.
1. Must report low level EE action up the chain of authority; includes gov. orgs
2. May report reveal out to authorities if nothing is done
o Withdrawal? See 1.16, 1.2(d)?
1. Mandatory? Permissive?

1.6(b)(2) & (3) Exceptions
o Rule 1.6 (exception to confidentiality)
o (b) A lawyer may reveal information relating to the representation of a client to the extent the
lawyer reasonably believes necessary:
1. (2) to prevent the client from committing a crime or fraud that is reasonably certain to
result in substantial financial injury to the financial interests of another and in furtherance
of which the client has used or is using the lawyer’s services
2. (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of
another that is reasonably certain to result or has resulted from the client’s commission of
a crime or fraud in furtherance of which the client has used the lawyer’s services


Problem 7-8
Martyn admonished Client about the importance of fully disclosing all assets on a bankruptcy filing.
Client failed to do so and was indicted for bankruptcy fraud. Can Martyn be forced to testify about the
original warning?
o Effect of client fraud on attorney-client privilege?
o Test for crime-fraud exception: “Only if the communication seeks assistance in or furtherance of
future criminal conduct.”
1. Remember this is an exception to the A/C privilege, not confidentiality (see above for
that test 1.6(b)(2)(3))!
o United States v. Chen
o How is this problem different than Chen?
 7-8 the client sought advice on a legal bankruptcy; clients actions after that did
not use his service in furtherance of the crime / fraud
2. Why do we have a crime-fraud exception?

United States v. Chen
o What are the facts of Chen?
1. Tried to lower custom taxes and income taxes
2. Reported lower profit to IRS
3. If come clean to the Customs, then just have to pay the penalty and no criminal issue
 Hired lawyer
 Tried to get the customs figure and the IRS figure to match, by raising the
customs figure because it was a lower %
 Lawyers are never told the reasons behind the requests by the Chen’s; just told
they just found it was wrong
4. Comptroller leaves and gives Customs her account of the whole scheme
5. Lawyers have to testify
 Don’t know about the crime; Given mfg paperwork
 No A/C privilege, no pure motive in going to the lawyer
o Irrelevant that they were in the dark
o What is the legal issue before the Court?
o What does the Court say?
1. Does the crime-fraud exception apply?
 Yes, the clients here were committing a crime
 Ask is the purpose of the communication to facilitate fraud or the client has a
legitimate purpose to get legal advice
2. Is it relevant that the lawyers did not know about the fraud?
 Yes
o Different from Purcell because in Chen the lawyers were used in furtherance of the crime.

Is there a reason to invade the A/C privilege in the crime-fraud exception
Chapter 7 Part 3: Confidentiality Exceptions III
Seeking Advice and Self-Defense; Compliance with Law or Court Order: Physical Evidence; Compliance with
Law or Court Order: Practice Before a Tribunal – Pages 242-259; Problems 7-9 through 7-16
Meyerhofer: Empire had an IPO and was represented by Sitomer. Goldberg was an attorney at the firm and
worked on the IPO. Meyerhofer was an initial purchaser of the stock and filed a class action against the firm
when the stock price dropped, and alleged that a finders fee should have been disclosed. Bernson represented
Meyerhofer and Goldberg gave him an affidavit verifying his non-participation in the finder’s fee omission.
Court barred the two parties from representing Meyerhofer and dismissed his complaint. A lawyer may reveal
confidences or secrets necessary to defend himself against an accusation of wrongful conduct. Charges were
serious ones. because of this Goldberg had a right to make an appropriate disclosure about his role in the IPO
and to support his version of the facts. An attorney may not represent a party in a suit against a former client
where there may be the appearance of a violation of confidence. Rule 1.6(b)(5)
Belge: Belge represented Garrow and put forth an insanity defense to murder. As part of the evidence, Garrow
confessed to other murders. Belge inspected the burial site of one of the bodies to verify Garrow’s stmt and the
public became outraged. The State charged Belge with public health violations. A/C privilege may outweigh
administration of justice even when the attorney is informed of information relevant to a criminal investigation
and does not inform authorities. Public health laws are easily outweighed, but obstruction of justice charges
may be more difficult
Casey: Teen was arrested for criminal trespass and produced a friend’s ID. A hearing was set for the person on
the ID, but they were unaware and did not show. A bench warrant was issued for that person. The actual person
arrested hired an attorney, Casey, and Casey acted as though the represented the person on the ID and not the
actual criminal. Casey got the charges dismissed and then told the person on the ID. The person on the ID
notified the DA and they sought sanctions against Casey. The A/C privilege does not override the duty to be
truthful in court

1.6(b)(4) & (5) Exceptions (to confidentiality)
o Rule 1.6
o (b) A lawyer may reveal information relating to the representation of a client to the extent the
lawyer reasonably believes necessary:
1. (4) to secure legal advice about the lawyer’s compliance with these Rules;
2. (5) to establish a claim or defense on behalf of the lawyer in a controversy between the
lawyer and the client, to establish a defense to a criminal charge or civil claim against the
lawyer based upon conduct in which the client was involved, or to respond to allegations
in any proceeding concerning the lawyer’s representation of the client.


Problem 7-9
Martyn & Fox is dealing with several difficult clients.
o (a) Client A threatens to sue Martyn & Fox for malpractice in a real estate transaction. Fox wants
to threaten back, telling client we will tell his wife about Client’s illegitimate child. How should
Martyn respond?
1. Not reasonably necessary to reveal this information; the purpose is not to OK the use of
any confidential info to combat the client - ex. if you sue me i'm going to tell them about
your illegitimate child (ridiculous)
o (b) Martyn & Fox want to sue to collect a fee. Can they disclose how difficult and irresponsible
Client B was? How Client B repeatedly lied to the other side in negotiations?
1. Is it reasonably necessary to reveal this? On its face it doesn't seem to have anything to
do with fee dispute. . . but if you are saying that 100 hours are because client was difficult
and lied then it is possible that it is reasonably necessary
o (c) Martyn & Fox represented Client C on a loan from Big Bank. Now Martyn & Fox is being
sued by Big Bank, which is claiming “aiding and abetting” a fraud. What, if anything, may
Martyn & Fox reveal?
1. Third-party lawsuit, may reveal what is reasonably necessary "to respond to allegations in
any proceeding concerning the lawyer's representation of the client."


Problem 7-11
Lawyer B, from another law firm, consults Martyn & Fox in her representation of Apex. She is worried
that the CEO of Apex is lying to her and she wants another lawyer to hear all the details for a reality
check. Can we help her?
o Yes, 1.6(b)(4)

Effect of “Other Law”
o Lawyers must comply with:
1. Law of fraud
2. Criminal law
 e.g. Obstruction of justice, destruction of evidence, accessory liability
 But NOT “pseudo-criminal” statute (Belge)
3. Court orders
o 1.6(b)(6) shields lawyers from discipline for complying with “other law” and court orders.
1. Purpose: So when a lawyer has to comply with other law or court orde, the client can’t
claim they violated the confidentiality rules

“Severed Head” Clip
o Did the lawyers act appropriately?
1. Public Policy
 Solve Crime
 Privilege and Confidentiality
 5th & 6th Amendment
 Return stolen property if it were money instead of head
 Lock up dangerous criminal
 Lawyer wants to avoid jail
o What else could they have done?
1. Call Police - tell them/not tell them about head
2. Give it back
3. Destroy it
4. Hold onto it
o Gap between rules and practice???
1. Professional rules don't say anything about this, follow applicable laws
2. Restatement 119(1) - Can hold for reasonable time for investigation; 119(2) Must then
turn it over to prosecuting authority
3. Some other authority - Put it where it belongs, where police would find it
4. Consult with somebody, see what law is in your jurisdiction, and balance the law with
what is best for your client

Problem 7-12
o What must/may Martyn do if her client tells her where he hid the stolen money?
 It is a communication for the purpose of obtaining legal advice (privileged)
 Confidential information - Doesn’t have to go to the police
2. What if her client asks what he should do with the money?
 If you call police you are breaking confidentiality, Give it back is selfincrimination, leave it, hide it, spend it, destroy it
 If you obstruct justice -Suppresses, alters, or destructs
 At minimum have to say don't do anything with it, leave it where it is
o What must/may Martyn do if her client hands her the key to the safety deposit box holding the
stolen money?
 Not take the key because that would be concealment
2. Can she give the key back?
 No, you would be aiding and abetting
 You do get a reasonable time to review the evidence before turning it over to
authorities
o Probably an area of the law where in practice it is not handled in
accordance with the law

People v. Belge
o What happened in Belge?
1. Found other bodies the client murdered
o Why didn’t Belge and Armani disclose what they had learned?
1. Further would have incriminated client
o What was Belge charged with?
1. Public Health violations
 Improper burial
o How did the Court rule?
1. Public health violation is a lesser law then 5th amendment and A/C privilege
2. But say that obstruction of justice would have been different
3. Can’t tamper or move the evidence; B/c that would be obstruction of justice
o Problem 7-13: Any different?
1. What if a massive search is ongoing?

3.3 vs. 4.1
o MR 3.3 (See Also 3.9)
1. Applies to lawyers practicing before a “tribunal” (defined in 1.0)
2. Applies to lawyers representing a client before a legislative body or administrative
agency in a nonadjudicative proceeding (3.9)
3. Under 3.3, candor > confidentiality
o MR 4.1
1. Applies to communication with all other third parties (e.g. opposing counsel, witnesses)
2. Under 4.1, confidentiality > candor


Problem 7-14
If Martyn & Fox’s client lies to an IRS agent during an audit, do we have any obligation to correct the
record? Does it matter whether we were present? Whether the lie came as a surprise?
o Must decide whether under 3.3 or 4.1.
1. A/C Privilege trumps candor under 4.1, but not 3.3
2. Question is whether they are in a adjudicative capacity; IRS here is just in an
investigatory capacity
3. 4.1 applies as the client made the false statement to a third person, not a tribunal
 Client made it, so (a) doesn’t apply
 (b) -Question is whether the attorney is assisting
4. 3.9 doesn’t apply because this is not a proceeding


Problem 7-15
What should Martyn tell a judge who asks Martyn to reveal her client’s bottom line?
o Must tell the truth because this is a tribunal (Rule 3.3)
1. Can argue not the same as a tribunal, but should not lie to a judge; err on the side of 3.3
o But don’t necessarily have to tell them. If you open your mouth, speak the truth, but don’t have
to say anything


Problem 7-16
If Martyn & Fox’s client lies about her name in a criminal case, what should we do?
o What does Casey tell us about this problem? (Correct it)
1. What happened in Casey?
 Didn’t correct the court as to his client’s identity / name
2. What rules did lawyer violate?
 3.3 - Candor to a tribunal trumps confidentiality
3. What was Casey’s defense?
 Zealous Advocacy; Subordinate lawyer
4. Compare and contrast Belge and Casey.
 Belge understood the law (looked at the bodies, but didn’t disturb them)
 Casey was dumb, didn’t know the law
o Is this problem any different than Casey?
1. No, even with the client lying

3.3: Candor Toward the Tribunal
o (a) A lawyer shall not knowingly:
1. (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of
fact or law previously made to the tribunal by the lawyer;
2. (3) offer evidence the lawyer knows to be false. If a lawyer, the lawyer’s client, or a
witness called by the lawyer, has offered material evidence and the lawyer comes to
know of its falsity, the lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal….
o (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding and
apply even if compliance requires disclosure of information protected by Rule 1.6.
o [Remainder of 3.3 omitted]
Chapter 7 Part 4: Confidentiality Exceptions IV
Compliance with Law or Court Order: Practice Before a Tribunal, cont’d – Pages 260-264; 271-282; Problems
7-17 through 7-22
Virzi: Withheld his client’s death and reached a settlement. Misrepresentation of a material fact to an adversary
or tribunal is never permissible
In re Forrest: Did not tell the court that his client was dead. Can’t withhold material information in the case
Matter of Hendrix: Victim sued Driver Hendrix. Victim received a PI judgment. Driver filed bankruptcy;
Victim got the court to modify the bankruptcy to allow them to proceed against Driver’s liability insurer. There
was a dispositive case on the issue but neither attorney mentioned it. Not citing a dispositive case is
sanctionable conduct.
-This is just bad lawyering. Should have disclosed and argued around the dispositive law (Rule 3.3(a)(2))
McDowell: Public defender thought McDowell was going to testify untruthfully. Court said if that was the case
that the Public Defender should have him testify in the narrative and PD should notify the court of this. PD had
McDowell testify in the narrative, but McDowell told the truth. McDowell sued for ineffective aqssistance of
counsel. Attorney must have actual knowledge from the client of the client’s intent to testify falsely before
permitting client to testify in the narrative and must inform the court and opposing counsel.


Problem 7-17
If Martyn & Fox’s client dies of natural causes while the client’s personal injury action is pending, can
we settle the case before the other side finds out? What if our client dies as a result of the injury inflicted
by the alleged tortfeasor?
o Isn’t keeping quiet in the client’s best interests? What’s wrong, then, with saying nothing about
the client’s death?
1. No, like Forrest
o Forrest
1. What happened?
2. How did lawyer violate the rules
 Didn’t tell the court he is dead
 Made affirmative comments that he was alive
 Served false interrogatories on behalf of his client
3. Withholding material information to the case is the same as making an affirmative
statement to the negative

3.3: Candor Toward the Tribunal
o (a) A lawyer shall not knowingly:
1. (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of
fact or law previously made to the tribunal by the lawyer;
2. (3) offer evidence the lawyer knows to be false. If a lawyer, the lawyer’s client, or a
witness called by the lawyer, has offered material evidence and the lawyer comes to
know of its falsity, the lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal….
o (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding and
apply even if compliance requires disclosure of information protected by Rule 1.6.
o [Remainder of 3.3 omitted]





More on Candor to the Tribunal
Problem 7-18:
May (must) Martyn & Fox disclose the presence just outside the courtroom of a witness we know the
other side has been trying to subpoena for weeks?
1. No, don’t have to do the other side’s work
2. However, may be a violation of RCP if your answers to the other side or court have said
previously that you did not know the whereabouts of the person
o How is this different than Problem 7-17 and Forrest?
Problem 7-19:
May (must) Martyn & Fox disclose an error by the court (e.g., our client has no prior convictions) that
we played no role in causing to occur?
o Does lawyer have any obligation to disclose?
1. No, as long as the lawyer was not involved in creating the error
o What is in client’s best interest?
1. Maybe


Problem 7-20
Martyn is preparing an appellate brief, which argues that the trial court properly dismissed an indictment
against her client because the court correctly construed a criminal statuete narrowly so as to exclude her
client’s conduct. Martyn finds only one reported decision citing the statute, a ten-year-old state supreme
court case that upheld the statute’s constitutionality. The prosecutor’s brief does not mention this case,
and Martyn doesn’t like the case’s dicta, which might suggest a broader statutory meaning. Should
Martyn cite the case?
o How is this different than the last several problems?
o What does Hendrix tell us about this problem?
o How is this problem different than Hendrix?
1. How do we know when we must disclose adverse authority under 3.3(a)(2)???
 This problem is discussing dicta and not directly adverse
 How do we know if something is dicta or not?
 Don’t can always argue that something is not controlling

Candor Re: Legal Authority
o 3.3(a): A lawyer shall not knowingly
1. (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel

The Perjury “Trilemma”
1. Competence
1. Must investigate more
2. Advise on the chances that his story passes the court’s hurdles
2. Confidentiality
3. Candor

Hypo on McDowell
o Client says he had sex with gf back there, that’s why the DNA is there
1. Must investigate more
2. If the client starts lying in his testimony, you must recess and stop the testimony

Lawyer’s Active Involvement in Perjury
o 3.3 (a) A lawyer shall not knowingly:
1. (3) offer evidence the lawyer knows to be false. If a lawyer, the lawyer’s client, or a
witness called by the lawyer, has offered material evidence and the lawyer comes to
know of its falsity, the lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than
testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Lawyer’s Passive Involvement in Perjury
o 3.3(b): A lawyer who represents a client in an adjudicative proceeding and who knows that a
person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to
the proceeding shall take reasonable remedial measures, including, if necessary, disclosure.

The “4 Rs”
1. Recess
2. Remonstrate
3. Resign
4. Reveal
 See 3.3, comment 10
o When you know your client is going to perjure themselves, there is a split of authority
o Some allow you to instruct the client to give testimony in the narrative (McDowell)
 Problem is that they ramble, don’t focus on the good parts of their story
 Don’t get to be lead by the attorney
 Court knows that something is up; red flag; doesn't pass the Trilemma
 Some jurisdictions don't allow this
o Model Rules do not allow for a narrative (notes to 3.3 don't allow)
 Feel false testimony is false testimony regardless of how it is given
 Criminal defense lawyers abhor this idea that you would rat your client out
Chapter 8: Conflicts of Interest: Clients, Lawyers and Third Persons (LOYALTY)
Introduction; Client and Lawyer Interests – Pages 283-305; Problems 8-1 through 8-8
Maritrans GP Inc v. Pepper, Hamilton & Scheetz: Represented them in labor matters and then accepted $2 mill
in fees to represent them corporately. Messina was the attorney that handled there business in depth. Messina
started handling the labor negotiations with a union for four of Maritans competitors in such a way that would
make them more competitive. Maritans claimed it was a conflict, but Pepper said it was a business conflict and
not a legal conflict resulting in a breach of fiduciary duty. Messina agreed to represent the four smaller
competitors and distance himself from the largest competitor. He parked the big competitor with an attorney
who was negotiating to be a partner with Pepper. Maritans fired Pepper and the court granted Maritans an
injunction. An attorney owes a fiduciary duty and cannot represent an adverse party. The injunction prevents
Pepper from continuing to represent the competitors.
Monco v. Janus: Monco was Janus’ personal attorney for many years. The two went into business together to
market a beverage holder around a person’s next. Testimony differs whether they were 50/50 or whether Monco
told Janus to seek independent council. Another attorney put the documents together but Monco drafted the
final paperwork. Monco did not tell Janus that the patent would be in the corporations ownership. Monco finally
told Janus to obtain independent counsel. The corp dissolved and Janus counterclaimed that Monco breached
his fiduciary duty and used undue influence to become a partner.
Presumption of undue influence arises and must be rebutted by clear and convincing evidence when an attorney
engages in business of a client and benefits by it. Attorney can overcome such by arguing the McFail factors.


Problem 7-21:
Prior to trial, Fox discusses with Client whether he has ever smoked marijuana. Client asks what that has
to do with the matter, and Fox tells him: “Nothing, but I am worried the other side just might ask that
question.” Client admits he smokes marijuana from time to time. At trual, opposing counsel asks Client
whether he has ever smoked marijuana, and he immediately responds “no.” Does Fox have any
obligation to correct the record? Can we settle the case before the lie is disclosed? What if the same
thing happened during Client’s deposition?
o Only an obligation to correct if it is material (Rule 3.3(a))
o Is a lie always relevant and material to show someone’s truthfulness or character
o Why bother lying if it is not material
o If material, you then have to go through the 4 R’s

Conflicts:
o Loyalty- We don’t want lawyers pulling punches. We won’t them to be the best zealous
advocates possible.
o Confidentiality - Don’t want lawyers telling clients each other’s secrets
 But can get past using informed consent
o Public Interest (not as big as the other two)

Conflicts Checklist (284-85)
o Identify the client
o Determine whether a conflict exists:
1. Personal interest conflict
2. Current client conflict
3. Third-person conflict
4. Former client conflict
o Is conflict imputed to firm? (Usually if one attorney has a conflict, the entire firm has a conflict)
o Decide whether the conflict is consentable
o If it is, consult and obtain informed consent.

Maritrans v. Pepper Hamilton
o What happened?
1. Represented company for a long time, but then expanded and represented competitors in
that very distinct field
o Explain Pepper’s various conflicts:
1. Personal interest conflict
 Messina and the firm wanted to make more money
 Maritrans wanted the competitors to do worse and for Pepper not to represent
those clients
2. Joint client conflict
 Pepper owed duty of loyalty and confidentiality to all competitors
3. Former client conflict
 Maritrans fired them but argued that their representation was improper because
Pepper knew their labor situation over the next few years and sharing that info
with competitors could be detrimental. Maritrans asks the court to grant an
injunction. Injunction granted.
 Did Maritrans establish that Pepper had actually shared info with the
competitors? NO
o Don’t have to show that, just that attorney was in a position to
share that info
 These duties relate back to the fiduciary duties owed under common law with
principals and agents


Problem 8-1
CEO of Megacorp asks Martyn & Fox to draft a deed transferring vacant land owned by Mega to CEO.
“It’s just a liability for Mega,” CEO Explains. What shoud Martyn & Fox do?
o What’s the issue here? What’s the big deal?
1. Who is the client???
o Can the lawyer represent both the CEO and Megacorp?
o Is there an obligation to disclose the CEO’s request to Megacorp?

Personal Interest Conflicts
o Is lawyer’s representation limited by a personal interest?
o Analysis:
1. Check 1.8 for specific prohibition
2. Even if no specific prohibition, still must analyze under 1.7!!!
 1.7(a)(2): “A concurrent conflict exists if … there is a significant risk that the
representation of one or more clients will be materially limited by … a personal
interest of the lawyer.”

Monco v. Janus
o Why are we concerned about business transactions between lawyers and clients?
1. Don’t want attorneys using their superior knowledge to take advantage of clients
o What happened here?
o How does the Court analyze the situation?
1. Next slide

Business Transaction with Client (Must be an attorney client relationship)
o Presumption of undue influence that lawyer must overcome with evidence of:
1.
2.
3.
4.
5.






Fair and reasonable terms
Full and frank disclosure
Advice to client to obtain independent legal advice
Client’s informed consent in writing
[See Monco; Rule 1.8(a)]
Problem 8-2
Should Martyn agree to accept one-third of the shares of stock issued in a new business start-up in lieu
of an hourly fee? Should she agree to serve on the new company’s board of directors?
o Can lawyer accept 1/3 of shares of stock issued in lieu of an hourly fee?
1. What rule applies?
 1.8(a) - Must meet the Business Transaction w/ Client elements
2. Why are we concerned about this situation?
 May have more of a personal interest based on the increase in stock price and not
be able to make appropriate legal decisions
o Can lawyer assume position on client-company’s board of directors?
1. “It Wasn’t the Money” – what are the various interests involved?
 Attorney became member of the Board of Directors of the company
 Saw it in his and the firms best interest to concrete the relationship
 There was a bribe that inflated the appraisal for a land deal
o Attorney was conflicted with how to handle
 Just don’t do it
Personal Interests
o $ (director fees)
o good for reputation
o solidifies client relationship
Company's interst
o good legal advice
o no disclosure
o get partners $$$
Firm's Interest
o Avoid liability
o disclose
o keep client
Partner's interest
o $$
o disclosure


Problem 8-3:
Should Martyn & Fox insert a clause in all of its estate planning documents that appoints a Martyn &
Fox lawyer as the fiduciary (executor, administrator, or personal representative) of an estate or trustee of
a trust? When Martyn & Fox lawyers act as fiduciary or trustee, may they hire Martyn & Fox as counsel
for the trust estate?
o 1.8(c) - Lawyers are commonly executors. Can name themselves fiduciary, but not beneficiary
unless they are related.
1. Don’t write a clause in your contract that requires a client to give up a right. It is not
informed consent.


Problem 8-4
Should Martyn & Fox provide free legal services to a criminal defendant who agrees to grant it the
movie rights to his story?
o No, 1.8(d)
1. 1.8(d) - lawyer can't make a deal with clients on media rights related to the representation
during representation; can take them after representation is over


Problem 8-5
Our client, in order to survive financially, is warned she’ll have to settle her case early and for too litlle.
Should Martyn & Fox pay her living expenses through trial?
o No, 1.8(e)
1. 1.8(e) - Lawyer can't loan client money for living expenses but can make contingent fee
arrangements

Personal Interest Conflicts
o 1.8(c): Lawyer can’t draft document naming himself as beneficiary but document can name him
a fiduciary.
o 1.8(d): Lawyer can’t make a deal with clients on media rights related to the representation during
representation.
o 1.8(e): Lawyer can’t loan client money for living expenses but can make contingent fee
arrangements.

Personal Interest Conflicts
o Rule 1.8(e): A lawyer shall not provide financial assistance to a client in connection with
pending or contemplated litigation, except that:
1. (1) a lawyer may advance court costs and expenses of litigation, the repayment of which
may be contingent on the outcome of the matter; and
2. (2) a lawyer representing an indigent client may pay court costs and expenses of litigation
on behalf of the client.


Problem 8-6
Martyn & Fox failed to file a client’s case within the appropriate statute of limitations. Should Martyn
sit down with the client, confess her error, and offer to pay the entire amount of the underlying claims?
o REVIEW: The lawyer makes an error. Must he tell his client?
1. Yes, duty to communicate information related to the representation that client wants to
know
o Can he then offer to pay the entire amount of the underlying claim?
1. Yes, but must comply with 1.8(h)(2)


Personal Interest Conflicts
Rule 1.8(h): A lawyer shall not:
o (1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice
unless the client is independently represented in making the agreement; or
o (2) settle a claim or potential claim for such liability with an unrepresented client or former client
unless that person is advised in writing of the desirability of seeking and is given a reasonable
opportunity to seek the advice of independent legal counsel in connection therewith.


Problem 8-7
Martyn & Fox represents Acme Corp. in contested litigation against Zenon Inc. Can a senior associate
assume a major role in the case when he is married to the lead lawyer for Zenon?
o Is there a specific prohibition on this in 1.8?
 No
2. Is that the end of the analysis?
 No, must move to 1.7
o What does 1.7 say about this?
1. Is this a conflict? (Section A)
 Rule 1.7 (a)(2)
 Loyalty issue; won’t be as adversarial / aggressive, pull her punches
 Confidentiality: Share same bed / probably secrets too
2. Is it consentable? (If there is a conflict; can the lawyer continue anyway w/ appropriate
party agreeing) Probably not under 1.7(b)(1)
 How do you obtain consent?
 From each client,
3. Is it imputed?
 No, most are imputed, but personal interests are not
 No need to get consent if the wife is removed from the case

Conflicts of Interest – Rule 1.7
o (a) … A concurrent conflict of interest exists if:
1. (1) the representation of one client will be directly adverse to another client; or
2. (2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer’s responsibilities to another client, a former client or a
third person or by a personal interest of the lawyer.
o (b) Notwithstanding … a lawyer may represent a client if:
1. (1) the lawyer reasonably believes that the lawyer will be able to provide competent and
diligent representation to each affected client;
2. (2) the representation is not prohibited by law;
3. (3) the representation does not involve the assertion of a claim by one client against
another client represented by the lawyer in the same litigation or other proceeding before
a tribunal; and
4. (4) each affected client gives informed consent, confirmed in writing.

Personal Interest Conflicts
o Rule 1.8(i): A lawyer shall not acquire a proprietary interest in the cause of action or subject
matter of litigation the lawyer is conducting for a client, except that the lawyer may:
1. (1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and
2. (2) contract with a client for a reasonable contingent fee in a civil case.
Chapter 8: Conflicts of Interest: Clients, Lawyers and Third Persons II
Client and Lawyer Interests, cont’d; Client and Third-Person Interests; Current Clients (Aggregate Settlements)
-- Pages 305-311; 319-344; Problems 8-9 through 8-11; 9-1
Parsons v. Continental Nat. Am. Group, 550 P.2d 94 (Ariz. 1976) (Available on TWEN)

Conflicts Checklist
o Identify the client
o Determine whether a conflict exists:
1. Personal interest conflict
2. Current client conflict
3. Third-person conflict
4. Former client conflict
o Is conflict imputed to firm?
o Decide whether the conflict is consentable
o If it is, consult and obtain informed consent.

Personal Interest Conflicts
o Is lawyer’s representation limited by a personal interest?
o Analysis:
1. Check 1.8 for specific prohibition
2. Even if no specific prohibition, still must analyze under 1.7!!!
 1.7(a)(2): “A concurrent conflict exists if … there is a significant risk that the
representation of one or more clients will be materially limited by … a personal
interest of the lawyer.”

Conflicts of Interest – Rule 1.7
o (a) … A concurrent conflict of interest exists if:
1. (1) the representation of one client will be directly adverse to another client; or
2. (2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer’s responsibilities to another client, a former client or a
third person or by a personal interest of the lawyer.
o (b) Notwithstanding … a lawyer may represent a client if: (ALL OF THESE ARE ANDS)
1. (1) the lawyer reasonably believes that the lawyer will be able to provide competent and
diligent representation to each affected client; AND
2. (2) the representation is not prohibited by law; AND
3. (3) the representation does not involve the assertion of a claim by one client against
another client represented by the lawyer in the same litigation or other proceeding before
a tribunal; AND
4. (4) each affected client gives informed consent, confirmed in writing.

Personal Interest Conflicts
o Rule 1.8(i): A lawyer shall not acquire a proprietary interest in the cause of action or subject
matter of litigation the lawyer is conducting for a client, except that the lawyer may:
1. (1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and
2. (2) contract with a client for a reasonable contingent fee in a civil case.

Problem 8-9

Martyn & Fox represents Big Bank in a wide variety of matters. A colleague tells Fox at lunch: “Did
you hear the latest? Sarah Snyder [an associate at Martyn & Fox] is dating the General Counsel of Big
Bank.”
o Does 1.8(j) prohibit this relationship?
 Need to know if the relationship started b/f the lawyer/client relationship
 What does dating mean? Law talks about a sexual relationship.
2. If not, is that the end of the inquiry?
o Compared to Halverson, is this situation so bad?
1. This is more of a relationship of equals, less like the true client
2. Balance may be in the opposite direction (General Counsel and Jr. Associate)
o What if M & F decide to take Sarah off the case, can M & F continue with the representation?
1. YES

Personal Interest Conflicts
o Rule 1.8(j):
1. A lawyer shall not have sexual relations with a client unless a consensual sexual
relationship existed between them when the client-lawyer relationship commenced.
o Is this rule overinclusive? Underinclusive?
1. Decent point that avoids several terms having to be defined and more line drawing


Problem 8-10
Fox is an estate lawyer. One day he receives a visit from an individual who says: “I need some help for
Dad. It is too hard for Dad to travel downtown these days. He needs to change his will to make sure his
grandchildren’s education is paid for.” What should Fox do?
o What issues does this raise? Rule 1.8(f)
1. Who is the client?
 Dad
o Can the son play any role here?
1. Can pay the bill, but must be informed consent, can’t interfere with confidentiality, no
interference with lawyer’s independent judgment
2. Son may also play a role if the dad has a diminished capacity under 1.14

Third-Person Conflicts
o Rule 1.8(f): A lawyer shall not accept compensation for representing a client from one other than
the client unless:
1. (1) the client gives informed consent;
2. (2) there is no interference with the lawyer’s independence of professional judgment or
with the client-lawyer relationship; and
3. (3) information relating to the representation of a client is protected as required by Rule
1.6.

The “Eternal Triangle”
o How does the relationship among insured, insurer and lawyer impact the lawyer’s duties of:
 In every jurisdiction insured is the client
 Is a split and in some jurisdictions both are clients, but a greater duty is still owed
to the insurer.
2. Competence – 8-11(a)
 Who can sue the attorney?
 Insured - Malpractice
 Insurer - Either as a client or 51-3 as a third party (referenced in Paradigm)
3. Confidentiality – 8-11(c)


Who can invoke and waive confidentiality and privilege?
Are conversations with non-client insurance companies confidential?
 Yes, it relates to the client
 Is it privileged?
 Yes, b/c privileged persons includes agents that may help the lawyer settle
the case
4. Control – 8-11(b)
 Generally the same principles apply as in non-insurance related matter’s; the
insured is the client and their best interests go forward (1.8(f)) A third party who
is paying the bills (insurance company) can't interfere; 5.4(c) also says just b/c
someone else is paying you still have to work for the best interests of the client
 HOWEVER, Rest. 134 says that the insurance co can make decisions if:
 A LOT of pressure on the lawyer from the insurance company however in the real
world
5. Communication – 8-11(c); Parsons
 Finds out that the act is intentional and because the insured is his client, he cannot
tell the ins. co that the act was intentional
 If both are clients (in those jurisdictions) he must not tell, but must also withdraw
b/c they would now be adversarial
6. Conflict of Interest Resolution – 8-11(c)-(e)
 8-11(d): Insurer often may want to litigate because the same amount (policy limit)
is the same risk; Whereas Insured just wants to settle
 Doctrine of good faith - Insurer must consider the settlement offer and can
only say no if they have a good reason to say no
 8-11(e): Client wants to litigate
 Hurts reputation
 Typically the policy says that there is a “Duty to cooperate”: that includes
an agreement that the insurer is able to settle the policy within the limits
without the insured’s consent; Physician doesn’t have to settle but has to
go and find a new lawyer on his own dime (or same lawyer without the
benefit of the insurer paying)
Chapter 9: Conflicts of Interest: Multiple Clients I

Burrow v. Arce
o What happened?
1. Class action suit and the court says that the lawyers were disloyal
 Breach the duty of loyalty
 Lead to the forfeiture of fees
o Without the finding that their settlement was inadequate - Court
doesn’t care when you are disloyal
1. Just needed Duty and Breach for this particular malpractice
case
2. Explosion at a plant, with different injuries to the plaintiffs
 Lawyers didn’t deal with this, just gave everyone the same
3. Malpractice here: Failure to deal with each client individually
 Maximize each individual’s gain
 This creates conflicts of interest between the clients
4. Owe a duty of independent judgment to each client
5. Rule 1.8(g)
 Requires informed consent when aggregate settlement occur
6. Consequence ends up being fee forfeiture and possible discipline
o Identify the conflicts.
o Are aggregate settlements a good thing?
1. Pfs stand a decent chance of recovering - Strength in #’s
2. Can be good for the law firm - Effeciency
3. Defendants - Certainty when settling with large group
o Why are we worried about them?
o Problem 9-1
1. Do the rules permit this?
2. What are the potential consequences of violating the rule?

Joint Client Conflicts –
Aggregate Settlements
o Rule 1.8(g): A lawyer who represents two or more clients shall not participate in making an
aggregate settlement of the claims of or against the clients … unless each gives informed
consent, in a writing signed by the client. The lawyer’s disclosure shall include the existence and
nature of all the claims or pleas involved and of the participation of each person in the
settlement.
Current Clients (Aggregate Settlements; Joint Representations) – Pages 345-354; 360-363; Problems 9-2
through 9-8
ABA Formal Opinion:
Wolpaw:
Anderson:
“In Vioxx Settlement, Testing a Legal Ideal: A Lawyer’s Loyalty” (available on TWEN)

Merck Vioxx Settlement
o Mass tort settlement terms:
1. If one client of an attorney enrolls in the settlement, then the attorney must recommend
the deal to all other clients.
2. If a client decides not to take part in the settlement, then the lawyer must take “all
necessary steps” to withdraw from representing that client
3. Lawyer promises to “exercise his or her independent judgment in the best interest of each
client individually.”

Conflicts of Interest – Rule 1.7
o (a) … A concurrent conflict of interest exists if:
1. (1) the representation of one client will be directly adverse to another client; or
2. (2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer’s responsibilities to another client, a former client or a
third person or by a personal interest of the lawyer.
o (b) Notwithstanding … a lawyer may represent a client if:
1. (1) the lawyer reasonably believes that the lawyer will be able to provide competent and
diligent representation to each affected client;
2. (2) the representation is not prohibited by law;
3. (3) the representation does not involve the assertion of a claim by one client against
another client represented by the lawyer in the same litigation or other proceeding before
a tribunal; and
4. (4) each affected client gives informed consent, confirmed in writing.
Non-consentable conflict.
 Zero Sum
o Ex. Where you represent two companies who want the same piece of property; one will win and
one will lose (can’t effectively represent both)
 Limited Pot of Money


Problem 9-2
Husband and Wife ask Martyn & Fox to prepare the papers for their dissolution of marriage.
o Can M & F represent both spouses?
 No
2. Is it a conflict?
 YES, both parties are adversaries Rule 1.7(a)(1) but also under 1.7(a)(2)
 Many things like money are zero sum
 THINK OF CONFLICT RULES AS “RISK” RULES!
 Is there a risk to the A/C relationship / representation and the Attorney’s
duties?
o Zealous, Communicate, Confidentiality w/ client at risk
3. Is it consentable?
 No, because of 1.7(b)(3)
o Does it matter if they have already agreed to property division, child custody, etc.?
1. No, it can always go sour. It’s the risk that there will be a conflict regardless of whether
one exists at that time
o Can M & F represent wife vs. husband in mediation? (Formal Opinion pg 345)
1. Yes, most states and the ABA say it is fine
o Can M & F mediate the dispute?
 Yes, they can serve as mediator - Rule 1.12(a), Rule 2.4 (can't serve as mediator
and lawyer)
2. If mediation is successful, can M & F jointly represent husband and wife in drafting and
filing legal papers?
 No, Rule 1.7(b)(3)

Conflicts of Interest
o “[A] conflict of interest exists whenever the attorney-client relationship is ‘at risk,’ even if no
substantive impropriety – such as a breach of confidentiality or less than zealous representation –
in fact eventuates…. When the risk of substantive harm is small … that does not indicate the
absence of a conflict of interest, nor does it mean that the conflict is only a ‘potential’ conflict, as
is sometimes said. Quite the contrary. The conflict – the risk – already exists in the here and
now; what is ‘potential’ is the actual harm – the actual breakdown of the client-lawyer
relationship or actual harm to the quality of the representation.” -- Hazard & Hodes Treatise


Problem 9-3/Practice Clip
Two defendants are charged with murder arising from a botched bank robbery that resulted in the killing
of a customer. Can Martyn & Fox represent both defendants? What if only the “shooter” is eligible for
the death penalty? Would it matter if Martyn represents one defendant and Fox represents the other?
o What’s different in the criminal context? Rule 1.7(a)(2)
1. People's lives and liberties are at stake
2. Parties that are not adversaries will be made adversaries in order to provide zealous
advocacy
o Why are we concerned about one lawyer representing two criminal defendants?
1. Risk that the parties will become adversaries, finger pointing among joint defendants
2. Consentable?
 Issue is with 1.7(b)(1)
 Not (b)(3) because the clients are not asserting a claim against one another
o Are there any circumstances where joint representation is OK?
1. Yes, but only in the situation where both are adamant that neither committed the crime


Problem 9-4
Martyn & Fox is asked to represent driver-son and passenger-father in a lawsuit arising from an auto
accident where the driver of the other car has been charged with speeding. Can we take on this case?
What happens when Son tells Fox before his deposition “I had two drinks before I picked up Dad”?
o Is there a conflict?
1. Yes, there is at least a potential (On its face it looks like their cases are aligned
 The father has a potential claim against the driver-son (material limitation conflict
Rule 1.7)
 If father had own attorney he would suggest filing a claim against son
 Could turn adversarial
o Is it consentable?
1. Yes
o What if son subsequently tells Fox he was drinking?
 There is a 1.4 duty to the father
 There is a 1.6 obligation to the son, son doesn't want to tell father
 Therefore 1.16(a) requires withdrawal
 Common representation? Comment 30 (Privilege); Comment 37 (Confidentiality)
 If they now have separate counsel and Dad wants to depose Martyn and Fox to
see what son told them is this condfidential? Not from Dad (prevailing rule)
2. Is this information confidential?
 If one gives confidential info, must withdraw
3. Is this conversation privileged?
 Yes, but as between commonly represented clients, A/C does not attach
o What does Wolpaw tell us about this problem?
1. No, there is a 1.7(b)(1) issue
2. Everyone will want to blame the other ones; Insurance Co must appoint individual
counsel for each individual
3. If Dad has 50k claim, son has 50k claim, and insurance policy of driver only has 50k
4. Non-consentable (If there was enough insurance money to cover the claim then it would
be consentable)


Problem 9-5
Our long-time corporate brokerage client and two of its stockbrokers have been sued for violating
insider-trading regulations. Can Martyn & Fox represent both the corporation and the stockbrokers?
o Who is the client?
1. Company
o Is there a conflict? Is there a risk to the representation if the lawyer takes on both company and
brokers?
1. Probably, company will blame broker and broker blame company
2. SEC wants company and best way to get company is make a deal with a broker
3. Concerned with a material limitation on the lawyer's representation
o Is it consentable?
1. YES, if the parties agree that neither did anything wrong (the SEC is just wrong); have to
sign informed consent
o What should M & F say to stockbrokers?
o Is there anything M & F can do to ensure continued representation of company?


Problem 9-6
Buyer and Seller of real estate come to Martyn & Fox to handle the deal. They have agreed on the price,
date of closing, and identity of the property to be conveyed. Can Martyn & Fox undertake the
engagement?
o Is there a conflict?
1. Yes, because they are adversaries from the start
 Disclosure issues
 Maybe one changes their mind on the price
2. At minimum there is a risk to the relationship
o Is it consentable?
 Yes, not necessarily at odds
2. What if M & F have a longstanding relationship with buyer?

o What is lawyer’s role in joint representation?
 More of a mediator, less of an advocate
 Like an advisor for the parties
 Role must change
2. What did lawyer in Anderson do wrong?


Problem 9-7
A long-time client of Martyn & Fox asks us to represent three partners in forming a new business: our
long-time client, the money guy, and the new venture’s CEO. May we?
o Is there a conflict?
1. Yes, there is a risk to the attorney / client relationship in the future
 May change minds, won’t to change setup and the business
 Need to disclose that one of the people is a long-term client
o Is it consentable?
1. Yes
o What does informed consent look like?
1. Again as advisor
o What is lawyer’s role?


Problem 9-8
A corporate client’s CEO asks Martyn & Fox to represent his wife and him in drawing up new wills.
Can we do so? What if the wife takes Martyn aside and tells her to draft a codicil that diverts a
substantial part of her assets to a “friend”? What if later, during divorce proceedings, the wife calls
Martyn & Fox to be refreshed as to husband’s assets; may (must) Martyn & Fox share that information?
o Most authorities consider the will situation to not be a conflicted situation
o Usually husband and wife want the same thing (limit taxation, distribute assests)
o However, some groups say to get consent as a prophylactic
o BUT, consent is difficult so most do not gain consent
o Situation of diverting to the friend:
1. Becomes a 1.4 v. 1.6 conflict - So lawyer must withdraw under 1.16
o Situation of divorce
1. Have to tell because of comment 30; Privilege doesn’t attach in the multiple client
Chapter 9: Conflicts of Interest: Multiple Clients II
Current Clients, cont’d (Simultaneous Representation of Adversaries; Positional Conflicts); Former Clients;
Imputed Conflicts – Pages 363-387; Problems 9-9 through 9-17
“Should Ted Olson Argue in High Court Campaign Finance Case?” (available on TWEN)
***If you are using an older edition of the rules supplement, make sure to consult the New ABA Rule 1.10
(found here: http://abajournal.com/files/109_Revised.pdf or available on TWEN)

Conflicts Checklist
o Identify the client
o Determine whether a conflict exists:
1. Personal interest conflict
2. Current client conflict
3. Third-person conflict
4. Former client conflict
o Is conflict imputed to firm?
o Decide whether the conflict is consentable
o If it is, consult and obtain informed consent.

Conflicts of Interest – Rule 1.7
o (a) … A concurrent conflict of interest exists if:
1. (1) the representation of one client will be directly adverse to another client; or
2. (2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer’s responsibilities to another client, a former client or a
third person or by a personal interest of the lawyer.
o (b) Notwithstanding … a lawyer may represent a client if:
1. (1) the lawyer reasonably believes that the lawyer will be able to provide competent and
diligent representation to each affected client;
2. (2) the representation is not prohibited by law;
3. (3) the representation does not involve the assertion of a claim by one client against
another client represented by the lawyer in the same litigation or other proceeding before
a tribunal; and
4. (4) each affected client gives informed consent, confirmed in writing.

Joint Client Conflicts
o Scott Boras, Esq. represents free agent all-star closers Mariano Rivera and Jonathan Papelbon
1. Scenario 1: The Yankees are the only “big market” team that needs a closer.
 Non-consentable
 Zero Sum situation
 2 competing for one spot; 1.7(a)(2)
2. Scenario 2: The Yankees, Red Sox and Cubs all need closers.
 Maybe non-consentable
 Not that different from scenario 1; better to be the 2nd signer
 Some say he isn't practicing law, he is an agent...shaky b/c you are working on
contracts etc.


Problem 9-9
Viacom and Disney are both competing for an open TV channel in New York.
(a) Can Martyn represent Viacom while Fox represents Disney if each lawyer seeks his or her
client’s consent?
1. Cannot under 1.10
 One is going to win and one is going to lose
2. 1.10 imputes the conflict to the entire firm
(b) What if Martyn & Fox lawyers feel comfortable taking on the representation of both?
3. Doesn’t matter what they feel comfortable with
4. Objectively can’t do it
(c) If Martyn & Fox already represents Viacom in another unrelated matter, can we take on
representation of Disney?
5. Can a lawyer be adverse to client in an unrelated matter?
 NO - Directly adverse under 1.7(a)(1) & significant risk under (a)(2)
 What does Eastman Kodak say?
 In unrelated matters, it is a conflict but is a consentable conflict
 What if the clients do not consent?
 Hot Potatoes Rule: Can’t just dump your older clients and jump to new
clients

Client Conflicts -- Disqualification
o Hot Potato rule vs. “flexible approach”
1. Inconvenient to find no counsel for the older more advanced cases
o “Flexible approach” adopted in Eastman Kodak
1. Prejudice to parties
2. Costs and convenience to the party being required to obtain new counsel
3. Complexity of the various litigations
4. Origin of the conflict
 Disqualification is not mandatory; It is at the discretion of the court
o If the court thinks Kodak was doing this strategically, the court can reject the motion to
disqualify
o Says they will not disqualify in the future
 Even if just represent a subsidiary, the subsidiary and principle company are so inter-related that
conflicts exist when they are adverse
o Rule 1.7, comment 34 - Starts by treating subsidiaries differently for conflict analysis;
UNLESS circumstances where the subsidiary appears to be adverse in the situation
reviewing the facts / factors around the subsidiary / principle relationship / organization


Problem 9-10
Local Municipality filed a motion to disqualify Martyn & Fox, claiming that Martyn & Fox cannot
represent a developer in an appeal from a zoning decision because we currently represent Local
Municipality on some tax collection matters. Martyn, who is handling the zoning appeal, distinctly
recalls chatting with the City Solicitor and getting a waiver. Is Martyn & Fox safe?
o Is there a conflict?
1. Yes, direct adversity
o Is it consentable?
1. Yes
o Is consent adequate here? NO - Must be informed consent informed in writing - Could just be in
the engagement letter and not necessarily a separate writing.
1. Material risks of the proposed course of conduct
2. Effect on confidentiality
3. Pros and cons of joint representation
o Does a prospective waiver fulfill informed consent?
1. In this situation probably, depends on the facts of each case

Client Conflicts – Prospective Waiver
o 1.7, comment 22: “The effectiveness of such waivers is generally determined by the extent to
which the client reasonably understands the material risks that the waiver entails. The more
comprehensive the explanation of the types of future representations that might arise and the
actual and reasonably foreseeable adverse consequences of those representations, the greater the
likelihood that the client will have the requisite understanding….”

Conflicts – Representation of Affiliated Organizations (9-11)
o 1.7, comment 34: “A lawyer who represents a corporation or other organization does not, by
virtue of that representation, necessarily represent any constituent or affiliated organization, such
as a parent or subsidiary. See Rule 1.13(a). Thus, the lawyer for an organization is not barred
from accepting representation adverse to an affiliate in an unrelated matter, unless the
circumstances are such that the affiliate should also be considered a client of the lawyer, there is
an understanding between the lawyer and the organizational client that the lawyer will avoid
representation adverse to the client’s affiliates or the lawyer’s obligations to either the
organizational client or the new client are likely to limit materially the lawyer’s representation of
the other client.



Positional Conflicts
Problem 9-12
General Amalgamated asks Martyn to assert the fact that the lawyer of Amalgamated’s adversary shared
information with adversary’s auditor regarding this litigation acted as a waiver of the a-c privilege for all
of adversary’s communications with its counsel. At the same time, Colossus asks Fox to defend its right
not to turn over a-c privileged material to the lawyers who have instituted a class action against
Colossus. The plaintiffs’ lawyers are asserting that, since Colossus cooperated with SEC in its
investigation of the same transaction by sharing with the SEC Martyn & Fox’s investigation report, that
cooperation waived the privilege as to the plaintiffs. Can Martyn & Fox make both arguments? Does it
matter where the cases are pending?
1. Can you argue for waiver of privilege and then in a 2nd case argue for narrow discovery?
 Yes, part of being a lawyer; Happens all the time
 Ted Olsen article
 Maybe issue under last sentence if you argue one way in the S. Ct. and another
way in the lower court
o 1.7, comment 24: “Ordinarily a lawyer may take inconsistent legal positions in different tribunals
at different times on behalf of different clients. The mere fact that advocating a legal position on
behalf of one client might create precedent adverse to the interests of a client represented by the
lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists,
however, if there is a significant risk that a lawyer’s action on behalf of one client will materially
limit the lawyer’s effectiveness in representing another client in a different case….”

Former Client or Joint Client Conflict?
1. Must determine if a Former Client or Current Client
o Does client subjectively believe that the representation continues and is that belief objectively
reasonable?
1. Consider:
 Still sending mailings
 Have you sent a disengagement letter?
 Sophisticated client?
o Two critical differences
1. With former clients, there is only an impermissible conflict if matters are “same or
substantially related.” (see 1.9(a))
2. Former client conflicts are always consentable (see 1.9(b))

Former Client vs. Joint Client?
o 1.7(a)(1): “A concurrent conflict of interest exists if … the representation of one client will be
directly adverse to another client.”
1. Does not matter what the representation is about, being adverse is a conflict
o 1.9(a): “A lawyer who has formerly represented a client in a matter shall not thereafter represent
another person in the same or substantially related matter in which that person’s interests are
materially adverse to the interests of the former client unless the former client gives informed
consent, confirmed in writing.”
1. If the matters are completely different there is no conflict

Former Client Conflict Analysis
o Has the lawyer formerly represented a client who might complain about the conflict?
o Is the matter the same or substantially related?
o Are the interests of the present and former client materially adverse
o Did the former client provide informed consent?


Problem 9-13
Three years ago, Martyn & Fox prepared tax returns for Wife’s business. Husband now wants Martyn &
Fox to represent him in a divorce. Can we? Does it matter if we prepared the tax returns ten years ago?
What if we handled an employment discrimination claim for Wife’s business?
o Is the wife a former client?
1. Does wife = wife’s business?
 Type of business, etc
2. Probably
o Are the matters substantially related?
1. Functional “follow the secrets” approach!
 Big focus for former clients is confidentiality
 Are there secrets that you could take advantage of
o Would then do the Former Client Conflict Analysis (Four Step Approach)

“Substantial Relationship” Test
o Mitchell: “if the facts giving rise to an issue which is material in both the former and present
litigations are as a practical matter the same, then there is a ‘substantial relationship’ between the
representations for purposes of disqualification.”
o 1.9, comment 3: “same transaction or legal dispute or if there is a substantial risk that
confidential factual information as would normally have been obtained in the prior representation
would materially advance the client’s position in the subsequent matter.”

Problem 9-14
o (a) Can Martyn do lobbying work on behalf of Small Hospital which is a competitor of her
former client Capital Hospital?
1. Substantially related?
 Probably not, as she was GC for one and lobbying a matter for another
 But could be depending on what she did as GC and if there is something
about the lobbying work that is adverse to the former client
2. Materially adverse?
 Probably not, because the lobbying work may benefit both parties
o 9-14(b)
o Can Martyn & Fox Sunshine Hospital and rehab center in another county that there are no
antitrust ramifications of potential expansion when Martyn advised Capital that a planned
expansion would not be wise under the same law?
1. (Issue for former clients is confidentiality; but don’t want attorneys attacking their own
work product):
2. However, because the situations may be factually different you can advise differently
o 9-14(c)
o Can Martyn & Fox represent plaintiff, who alleges medical malpractice that occurred while a
patient at Capital hospital?
1. Materially Adverse - Yes; Substantially related - Probably
2. She would know the “play book” (from Mitchell); She would know the hospital’s
litigation strategy and how they go about settlement (pressure points, etc.)


Problem 9-15
Martyn & Fox received a call to defend a major accounting firm in a class action involving a dot.com.
After discussing approach and defenses they tell Martyn & Fox they will get back to them next week.
Another company calls and asks for Martyn & Fox to represent them in the same matter?
o How do we characterize the relationship between Fox and the accounting firm?
1. This is a prospective client relationship under 1.18(a)
o What duties does Fox owe to the accounting firm?
1. Confidentiality - Keep secrets regardless of whether they have paid you or not - Rule
1.18(c)
o How could Fox have protected himself and the firm in advance of the meeting with the
accounting firm?
1. Rule 1.18(c) 2. Must do a conflict check in your system to make certain there are no adverse parties

Prospective Clients
o 1.18(c): A lawyer “shall not represent a client with interests materially adverse to those of a
prospective client in the same or a substantially related matter if the lawyer received information
from the prospective client that could be significantly harmful to that person in that matter,
except as provided in paragraph (d).”
o The issue under (c) is not being able to use confidential info against another party that they
gained when the party was a potential client

Prospective Clients
o 1.18(d): When the lawyer has received disqualifying information as defined in paragraph (c),
representation is permissible if:
1. both the affected client and the prospective client have given informed consent confirmed
in writing, or: (Can get consent before the info. is given or after)
2. the lawyer who received the information took reasonable measures to avoid exposure to
more disqualifying information than was reasonably necessary to determine whether to
represent the prospective client; and (limit the info you get from the potential client)
 the disqualified lawyer is timely screened from any participation in the matter and
is apportioned no part of the fee therefrom; and (Screen / Chinese Wall)
 written notice is promptly given to the prospective client. (Not consent, but
NOTICE)

Problems w/ screen
o Fox guarding the henhouse
o Too easy to make a mistake and share confidential information
 Not a big concern if they are in different offices (Memphis & Houston)


Problem 9-16
Martyn & Fox is in a ten-day countdown to trial when one of its associates says she is leaving the firm
and is joining the firm on the other side of the case. What should they do?
o Issue:
1. The Assoc leaving has a former client conflict at her new firm
o Did the associate “represent” the client? (No conflict unless the Assoc. was actually representing
the client)
1. Closer call when they’ve only done one research memo, etc.
o Are the two matters substantially related? (YES, same matter)
o Is the moving lawyer’s taint imputed to firm?
1. Old 1.10(a) vs. New 1.10(a)
o Is disqualification automatic?
1. No, disqualification is discretionary by the court

Imputation - Old 1.10(a)
 “While lawyers are associated in a firm, none of them shall knowingly represent a
client when any one of them practicing alone would be prohibited from doing so
by Rules 1.7 and 1.9 . . .”

Revised 1.10(a)
o No imputation when:
1. (2) the [conflict] is based upon Rule 1.9(a), (or (b)) and arises out of the disqualified
lawyer’s association with a prior firm, and
 (i) the disqualified lawyer is timely screened from any participation in the matter
and is apportioned no part of the fee therefrom;
 (ii) written notice is promptly given to any affected former client to enable the
former client to ascertain compliance with the provisions of this Rule, which
shall include: a description of the screening procedures employed; a statement of
the firm's and of the screened lawyer's compliance with these Rules; a statement
that review may be available before a tribunal; and an agreement by the firm to
respond promptly to any written inquiries or objections by the former client about
the screening procedures; and
 (iii) certifications of compliance with these Rules and with the screening
procedures are provided to the former client by the screened lawyer and by a
partner of the firm, at reasonable intervals upon the former client's written request
and upon termination of the screening procedures.

Summary: are conflicts imputed?
o 1.7 and 1.9 conflicts are generally imputed unless they are personal conflicts. See 1.10(a) and
comments to 1.7.
1. The new 1.10(a) allows 1.9 to NOT be imputed when it is from a migrating lawyer
 For the imputation not to occur b/c of 1.9, there should be an ongoing matter at
the new firm when the attorney migrates
o All 1.8 conflicts are imputed except 1.8(j) (ban on sexual relationship with client). See 1.8(k)
o Under new 1.10(a), law firms can use screens to prevent imputation of non-personal 1.9 conflicts
caused by migrating lawyers.
o Should lawyers be able to thrust involuntary screens on clients?
1. Fox says no, says the rules are for the clients not for the lawyers benefit
2. Is Fox’s view realistic? Migrating attorney; Large firms with very different
o See Comment 7 to Rule 1.10
Chapter 10: Fees and Client Property I
Hourly Fees; Contingent Fees; Fee Agreements – Pages 399-424; 446-451; Problems 10-1 through 10-7
“Two Veteran Lawyers Say Now Is the Time for Fixed Fees” (available on TWEN)

The Problem of Fees
o Why not just let lawyer and client agree to any arrangement they want?
1. Worried about lawyers taking advantage of clients. View this as a relationship of
unequals (lawyer in superior position)
o How does the lawyer’s personal interest enter into every fee arrangement?
1. Would you ever hire a painter to paint your house on an hourly basis?
 Incentive to charge more hours than you’ve actually worked or work more hours
than is typically necessary
o Contingency: Get a certain percentage of the judgment after cost
1. Incentive to cut corners to limit cost of litigation (cuts into your percentage)
o Touchstone for all fee arrangements is “reasonableness” (See 1.5(a)).
1. Is it reasonable? Consider the non-exhaustive factors in 1.5(a)


Problem 10-1
Martyn flies to San Fran for a client that pays full hourly rates for travel. If during a six-hour flight,
Martyn works on another client’s matters for four hours, may she bill two clients a total of ten hours?
What if the work on the plane was pro-bono?
o Can you charge a client for travel time?
1. Yes, if the client agrees to it and it must be reasonable
o If Client A has agreed to pay you for your travel time even if you don’t work, can you “double
bill” that time? (NO)
1. What if it is for a pro bono client?
 Probably different, but doesn’t change if you are planning on getting attorney’s
fees
2. What if you get consent?
 Yes if informed, but will probably never happen
o Efficiencies you gain, go to the client
1. Work while flying; reusing memo’s research
o Can’t bill for more hours than you actually worked


Problem 10-2
May Martyn & Fox charge clients $2/page for all incoming and outgoing faxes? What about billing
clients $200/hour for contract lawyers whose agency charges us $150?
o Can lawyers charge clients for their costs of doing business?
1. Faxes? Legal research? Contract attorneys?
 Legal Research - supposed to pass on the same discounts to the client
o Probably is marked up and the firm probably does make money off of it
o Faxes / Contract Attorney - Charge a little more than their cost and putting
it in the fee agreement
2. Can lawyers charge a markup?
 Unless there is an agreement, must charge the actual charge

Fordham:
o 1.5(a) - “lawyer shall not make” - is determined at the beginning
o Court in this case looks at the entire situation and judges reasonableness both before and after
o Should think about this in the context of 1.1; Can study to become competent, but the client
should not pay for the time spent studying / learning / getting up to speed

Contingent Fees
o How do they work?
o Pros and Cons?
1. Pros:
 Allow clients to bring cases that they might not otherwise be able to
2. Cons:
 May produce frivolous litigation, but lawyer doesn’t take the case unless they
think they can win and get paid
o Problem 10-3: Is there any reason M & F can’t accept the fee?
1. Review the ABA opinion on pg 420 and Section E & H
 Loot at the risk of non-recovery; if they were almost certain to get the policy
limits then they probably are unreasonable
2. Did the hiring of the lawyer increase the value?
 If he did add value / create leverage and momentum, then the arrangement is
probably ok
 If did not add value, should probably charge hourly
o Problem 10-4: Can lawyers enforce benefit of their bargain even if billions in fees?
1.
o Problem 10-5: Can defense lawyers enter into contingency arrangements?
1. Reverse Contingency Fee Case
 Yes, Fees are contingent on the outcome of the matter not just for Pfs
 Still must be reasonable. If the $30 mill is a real number then saving them money
may be reasonable
o May still look at what the hourly rate would be
Chapter 11: Ending the Client-Lawyer Relationship
o Pages 453-458; Problems 11-1, 11-3 only






Withdrawal
Problem 11-1
Martyn & Fox has been handling a litigation matter for a client for several years. Last September, the
client stopped paying Martyn & Fox’s bills, and has given one excuse after another. May Martyn & Fox
resign?
1. Can M & F withdraw if client has not paid it bill?
 Yes, but under 1.16(b)(5), it must be substantial
2. Under what provisions of 1.16 may M & F withdraw?
 (b)(5); (b)(1)
3. What does Gilles teach us?
 The warning must fully inform the client on withdrawal
 The attorney should have completed the documents for filing since it was so close
to the end of the SOL
 Court puts a very high standard on what is required of the attorney before
withdrawing
 Rule 1.16(d)
Problem 11-3:
Martyn & Fox have counseled Big Pharma that it must disclose recent problems with defibrillators
manufactured and implanted five years ago. Big Pharma refuses. Pharma CEO explains: “It will cause a
panic and the global risk to patients is greater in having the defibrillators replaced than just living with a
few defective ones.”
1. May/Must M & F resing?
 Must if knows it is a violation or fraudulent
 May if reasonably believes, or fundamentally disagrees
Terminating the Relationship
o 1.16(a): Mandatory withdrawal if representation will result in a rules violation.
o 1.16(b): Permissive withdrawal for a variety of reasons,
1. including no reason at all, provided that “withdrawal can be accomplished without
material adverse effect on the interests of the client.”
o 1.16(c): All withdrawals must be with permission if case is in litigation. (Not paying is
confidential info, shouldn’t reveal unless ordered)
o 1.16(d): Upon termination, “a lawyer shall take steps to the extent reasonably practicable to
protect a client’s interests.”
Chapter 13: Self-Regulation I
o Restrictions on Power; Inherent Power; Advertising and Solicitation; Pages 509-530; Problems
13-1, 13-2; 13-4 through 13-8

Advertising Examples
o www.lifeshortgetadivorce.com
o Flynt: www.youtube.com/watch?v=PBEWHy6khZw
o Brown and Crouppen: www.youtube.com/watch?v=XOajzfDQbKU
o Brown and Crouppen (dog bite): www.youtube.com/watch?v=9g-RydKSiR8&feature=related
o The Hammer: www.youtube.com/watch?v=62xreSr25uI
o Pasquali: www.youtube.com/watch?v=OS2YOtLLK-4
o Denvil Crowe: http://www.youtube.com/watch?v=lANJc_QIXU0
o P’ta Mon: abovethelaw.com/2007/08/lawyer_of_the_day_peter_pta_mo_1.php
o Le Pellitier: orangecounty.craigslist.org/lgs/1458433382.html
o Louisiana rules: www.lsba.org/2007MemberServices/LawyerAdvertising/20089LawyerAdHandbook.pdf

Problems 13-4 and 13-5
o Can a lawyer…
1. Use the phone number “1-800-HonestL”
2. The website www.superlawyers.com?
 Or call himself a “Super Lawyer?”
3. Use the phone number 1-800-PIT-BULL?
4. Use the nickname “The Hammer?”
5. Use the nickname “The Switchblade?”
6. Use the nickname “The Golden Retriever?”
7. Advertise that you have previously obtained million dollar verdicts for your clients?
8. Promise future results?
 Denvil Crowe, P’Ta Mon

Advertising
o Advertising (or any statements) cannot be false or misleading. See 7.1.
1. Misleading statements include:
 Statements “about the lawyer or the lawyer’s services for which there is no
reasonable factual foundation.” 7.1, comment 2.
 Statements that create “unjustified expectations.” 7.1, comment 3.
2. Lawyer may describe experience and areas of practice. 7.4.
o Are these rules good policy?
o Bad taste doesn’t violate the rules


Problem 13-6
Can Martyn & Fox e-mail families of a recent accident to inform them of their need for counsel? Can
Fox follow up on e-mail responses with phone calls? Can he follow up using real-time electronic
exchanges?
o Is an e-mail to families of recent accident victims “advertising” or “solicitation” under the rules?
Solicitation
o What about communication in a chat room? Real-time electronic contact
1. What difference does this make?
2. What if the lawyer practices in Florida or Louisiana? First 30 days after accident no
contact with potential clients
3. Does it matter if it is a pro bono case?

Advertising v. Solicitation (First Step is figure out which it is)
o Advertising is protected by the First Amendment while solicitation may be banned altogether.
o Advertising = “written, recorded or electronic communications, including public media” (e.g. TV
ad or billboard) (website probably falls under here)
o Solicitation = “in-person, live telephone or real-time electronic contact to solicit professional
employment from a prospective client”
1. E-mails are probably NOT Solicitation and are Advertising because they are not real-time
 Treated the same as letters which the S. Ct. said it was ok
 Court said that the FL law requiring 30 day waiting period before sending a letter
to an accident victim was acceptable
 However, this promotes adjusters settling claims before attorneys can
solicit them

Ads:
o Can’t be false or can’t give a false expectation
o Some get away with it because their state allows what they do (the hammer, golden retriever),
and the bar is not focused on this (better things to do
o Can say you practice in a particular field, but can only say you are certified if you say what in
and by whom
o As ridiculous as they are, they do provide some useful info
1. Your lawyer does do this ridiculous advertising
2. Time of injuries that can be sued upon
o Restricing ads to some degree restricts clients choice
o Cooper says
1. the real issue is that there are bigger fish to fry
2. Tend to have a disproportionate enforcement against plaintiff’s lawyers

Problems 13-7 and 13-8
o Can a lawyer conduct a seminar educating the public about living trusts?
1. Lawyers do this to get clients
o At that seminar, can the lawyer…
1. advertise his availability to draft living trusts?
 No, can generally say that you do that (in certain states)
2. distribute advertising brochures?
 No, but can have them there
3. hand out business cards?
 No, that would be solicitation
4. hand out business cards that state that the lawyer is a “specialist” in living trusts?
o Does it matter if the seminar is sponsored by a non-profit organization?
1. Might, should help the lawyers argument
2. Even more unconstitutional in this scenario
 Button Case: Collective activity to gain access to the court is political speech
when it is for education and not necessarily for lawyer’s pecuniary gain.
 Would receive SS
o Are these restrictions constitutional???
1. Open question on this issue
 Court has said that lawyers have a 1st Amend right to advertise and this is
commercial speech which gets IS



Only decision is based on the worst possible scenario -Lawyer in hospital
Argument is that saying in a seminar that you are available is less coercive in a
big group setting than it is in a one-on-one like in a hospital
 Would argue this is solicitation under the rule, but the rule is
unconstitutional when applied in this context
Referrals
o A lawyer generally may not pay a non-lawyer for referrals. 5.4(a).
o A lawyer may pay a lawyer in another firm for a referral as long as the lawyer retains
responsibility for the case and the client consents. 1.5(e).
o A lawyer may participate in a non-exclusive referral system with lawyers or non-lawyers as long
as client is informed of arrangement. 7.2(b)(4).
o A lawyer may pay a fee to a non-profit lawyer referral service. 7.2(b)(2).
PROBLEM 13-1
M&F are worried about the firm’s new lease obligation. What if the firm says that “any lawyer who leaves the
firm and practices within 100 miles must pay the firm his last year’s draw”? “Forfeits his pension”? “Owes the
firm 25% of all fees generated by former M&F clients”?
1. Rule 5.6(a) can’t restrict working after termination of relationship, except retirement benefits  upon
retirement benefits after practice.
2. A lawyer may not agree to restrict his right to practice after termination. 5.6(a)
3. A lawyer may not agree to restrict his right to practice as part of the settlement of a case. 5.6(b)
4. Won’t get your retirement benefits unless you retire. This is okay.
PROBLEM 13-2
M&F’s manufacturing client is fed up w/repetitive product liability suits over allegedly defective forklift trucks
brought by one law firm over the last decade. Tell them we’ll settle w/their latest client for an extra $100k if
they promise never to sue us again, CEO tells our lawyer. Is this a good idea?
1. No, Rule 5.6, comment 2
2. Don’t want to restrict lawyer’s ability to practice; also don’t want to restrict client’s ability to chose the
lawyer he wants to represent him

Merk / Vioxx - Probably violated this Rule - 5.6(b) [Comment 2]; Limits clients choice

Restrictions on Practice
o A lawyer may not agree to restrict his right to practice after termination. 5.6(a)
o A lawyer may not agree to restrict his right to practice as part of the settlement of a case. 5.6(b).
o What is the policy behind these rules?
1. Restricts client’s choice / access
Chapter 13: Self Regulation II
Referrals; Unauthorized Practice – Pages 530-546; Problems 13-10 through 13-12
“Sotomayor and Associates” (available on TWEN)
“Lawyers Use Humor to Plead Case” (available on TWEN)
New Louisiana Advertising Rules (available on TWEN)



Referrals
Problem 13-10
Martyn tells Fox she has joined a business referral club. “For only $350 a year I get to be the only
lawyer member of the group along with one each of various other professionals and business people. All
I have to do is attend weekly meetings, give 60-second “commercials” to the group, and provide
referrals to other members.” Fox checks the Club’s website that says they will hand out your business
card.
o A lawyer generally may not pay a non-lawyer for referrals. 5.4(a).
1. If everyone in the group were lawyers, it would be ok, but would move to the next issue
o A lawyer may pay a lawyer in another firm for a referral as long as the lawyer retains
responsibility for the case and the client consents. 1.5(e).
1. Prevents naked referrals for payment
2. Policy is to pay lawyers for legal work and not for just brokering or passing clients on
o A lawyer may participate in a non-exclusive referral system with lawyers or non-lawyers as long
as client is informed of arrangement. 7.2(b)(4).
1. Would have to be non-exclusive regardless of whether it was a group of lawyers or if you
are the only lawyer in the group
o A lawyer may pay a fee to a non-profit lawyer referral service. 7.2(b)(2).
o District of Columbia Opinion: Non-Profit found attorneys for indigent clients and is ok under
7.2(b)(2)
1. 5.4(a) and 7.2(b)(2) are in conflict
 bar opinion ultimately decides that this is a 7.2(b)(2) situation



Multidisciplinary Practice
Problem 13-11
Martyn & Fox represent mortgagees in lending transactions. Martyn & Fox is approached by a group of
investors who want to set up a new business, make Martyn & Fox minority shareholders, and enter into
a contract with Martyn & Fox that provides that Martyn & Fox will have the new enterprise undertake
all of the non-legal aspects of Martyn & Fox’s practice (title searches, service of process, advertising
foreclosure sales, filing papers, photocopying, messenger services) for the next ten years. “Your clients
won’t even have to know.”
o A lawyer generally may not share fees with a non-lawyer. 5.4(a).
o A lawyer may not form a partnership or corporation with a non-lawyer. 5.4(b); 5.4(d).
o A lawyer can employ a non-lawyer.
1. A lawyer can supervise a non-lawyer in the provision of “law related services.” 5.7.
2. Under 5.7, the Rules of Professional Conduct apply to the provision of these services.



Multijurisdictional Practice
Problem 13-12
Martyn & Fox represents a Norwegian company that has subsidiaries in two distant states. Martyn &
Fox lawyers travel to both states to negotiate collective bargaining agreements. Has Martyn & Fox
engaged in unauthorized practice? Does it matter if the Norwegian company has an office in Martyn &
Fox’s state?
o What is the practice of law???
1. Defined very broadly
o Birbower bombshell:
1. Cal. client hired NY lawyer to represent client in potential arbitration in Cal. governed by
Cal. law.
2. Lawyers flew to Cal. for meetings, etc.
3. Court found fee agreement invalid and unenforceable because of unauthorized practice of
law in California.

Multijurisdictional Practice
o 5.5(c) = the ABA’s response
1. 5.5(c)(1): May associate with a lawyer admitted to practice in the foreign jur.
 Costs more for the client
 Local counsel may have “in’s” with the court
2. 5.5(c)(2): May obtain admission pro hac vice in a litigation matter.
 Generally grant the motion before the court, but usually require you associate
with a local lawyer
3. 5.5(c)(3): May provide legal services if “reasonably related to a pending arbitration … if
the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction
in which the lawyer is admitted….” [directed to arbitration]
 MS lawyer for a MS client who you’ve done MS work for, if arbitration is
required in a foreign jurisdiction that is reasonably related then you can represent
them in arbitration
4. 5.5(c)(4): May provide legal services if “reasonably related to the lawyer’s practice in a
jurisdiction in which the lawyer is admitted to practice.” [Catch-All]
o If non-litigation work, the best practice is to associate yourself with a local attorney
Chapter 12: The Bounds of the Law
Communication with Unrepresented Persons; Lawyer as Witness – Pages 495-500; 503-506; Problems 12-7,
12-8, 12-11 through 12-13; 12-16
“Ethics of 'Friending' Adverse Witnesses” (available on TWEN)
“A Legal Battle: Online Attitude vs. Rules of Bar” (available on TWEN)

Communications with Represented Persons
o No communications with represented persons about the case without the consent of the other
lawyer. 4.2
o Who counts as a “represented person” for an organization? See Messing.
1. What happened in Messing? Legal issue?
 Other party contacted other EEs at the company
 How do we define represented persons when the other party is an organization?
2. Three tests
 Tests:
 Narrow: Control group Test (Rejected in Upjohn)
 Broad: Scope of EM test (Upjohn choses)
 Middle: Those with speaking authority in the matter / committed the acts /
Supervisors
o Leaves out Mere Witnesses
 Court chooses middle ground.
 How does this test compare to Upjohn?
 The party’s own attorney can talk to all EEs and it is privileged, but
 The other party can talk to mere witnesses
o Can you talk to other party’s former employees (12-13)?
1. Usually a goldmine of information
2. Comment Under 4.2 - Can talk to them, not a part of the “party”
 Problem 12-7
o Negotiations have been going on for months then you receive a call from potential buyer wanting to talk
without lawyer.
o Rule 4.2 Cannot communicate with person you know is represented unless has consent from
other lawyer (doesn’t matter that rep person initiates phone call)
 Worried about what might happen in convo (agree to something that would hurt them,
reveal info other party shouldn’t know, confidential convos with his atty, etc.).
 This Rule protects the atty-client relationship on the other side.
o What about obligations to non-represented persons?
 Need to clarify that your role is adversarial (who you are & who you represent, interests
of your client because then won’t be violating Rule 4.3).
 In this problem, need to confirm with other lawyer that he has been fired (client could’ve
made that up).
 Why worry?
 Comment 1 to 4.2: Protects clients from over-reaching when they have chosen to
be represented by an attorney

Communications with Unrepresented Persons
o Be careful when communicating with unrepresented persons (4.3):
1. Be clear on what your role is and that you are not disinterested.
2. No advice to unrepresented person except to seek own lawyer.
3. Can you “friend” an opposing party???
 If represented, then no b/c against the no contact rule
 If not represented, then only if you tell them who you are


Lawyer as Witness
Problem 12-16
o Can Martyn defend Client in lawsuit involving business deal that Martyn negotiated?
1. What is the test under 3.7?
a. Is the witness necessary?
i. Lawyer must have something necessary / unique to say
ii. Issue is that it confuses the jury
1. Is he more credible or less if serving as both a lawyer / witness
 What does D.J. Investment Group teach us about 3.7?
2. Does it matter if Client is now terminally ill?
 Yes, because lawyer may be only one who knows
 What does lawyer have to say that is unique?
 If client dies, lawyer has to testify a/b everything if the client dies
3. Can Martyn do pretrial work only?
 Yes, says cannot act as advocate “at trial”
4. Can Fox represent Client in the lawsuit?
 Does it matter if Martyn’s testimony may be adverse to Client?
 Yes, it would then be a conflict of interest and would be imputed to the
whole firm

Disqualification is always at the discretion of the court.
o In reviewing the substantial hardship the court will look at the ability for the client to get a new
lawyer and how long it took the other party to complain

Lawyer as Witness
o Rule 3.7:
1. (a) “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a
necessary witness unless:
 the testimony is to an uncontested issue;
 the testimony relates to the nature and value of legal services rendered in the case;
or
 disqualification of the lawyer would work substantial hardship on the client.”
2. (b) No imputation unless a 1.7 or 1.9 conflict
Chapter 15: Judicial Ethics
Pages 571-596; Problems 15-1 through 15-3;
Caperton v. Massey: (found here: http://www.supremecourtus.gov/opinions/08pdf/08-22.pdf or on TWEN)

Ragatz
o What about communicating with judges???
o What happened here?
1. Judge started convo w/ Ragatz
o What should Ragatz have done?
1. Stopped the Judge and not had a conversation w/ the Judge without the other party’s
counsel being in place
2. Rule 3.5 - Can’t talk to a Judge ex parte unless extraordinary circumstances
 “Earwigging” in MS is ex parte contact and illegal
 Extraordinary Circumstances:
 Court order stopping some immediate action

Judicial Ethic
o Important to the Lawyers ethical duties because of 8.4(f)
 Can’t knowingly assist a Judge in violating rules



Judicial Ethics
Problem 15-1
Client sees Judge and solictor of town clinking champagne flute during a zoning appeal.
o No ex parte contacts unless authorized by law or court order. Rule 3.5(b); Jud. R. 2.9(A).
o Disqualification when “the judge’s impartiality might reasonably be questioned.” Jud. R. 2.11.
1. See also Rules Jud. R. 1.2 (avoid “appearance of impropriety”) and Jud. R. 3.1(C) (social
activities should not “undermine the judge’s independence, integrity or impartiality”)
o BUT judges may engage in “ordinary social hospitality.” Jud. R. 3.13(B)(3).
1. i.e. having dinner with them
o Where does duck hunting fit in???
1. Who decided whether Scalia should recuse himself?
 Scalia decided

Caperton
o What happened in West Virginia?
1. A John Grisham novel! (The Appeal)
 $50 Mill verdict against Massey
2. How much did Blankenship give?
 $3 mill
 But only stood to gain very little from it because of few shares owned
3. Why didn’t Justice Benjamin recuse himself?
 Partially because of his opponent
 Wasn’t the money, the opponent was an idiot and lost it for himself
 The Judge wouldn’t benefit from it
4. “The Rant in Racine”
o Argument that failure to recuse is a due process violation
o Opinion:
1. Kennedy went to great lengths to say this was an extraordinary case and rare
2. Dissent: Unclear, no standards
o What is the holding?
1. Who is right: the majority or the dissenters?
o What does this case mean for the future of recusal motions? Judicial elections?
 Dissent is overblown, hasn’t been a great rush of recusal motions
 Some States are re-thinking recusal processes
2. What will be the impact of Citizens United?
 Elections: Corporate donations can have a big impact on Judicial Elections
 Little attention, few voters, little money spent



Judicial Ethics
Problem 15-2
In forum judge candidates asked “What is your opinion on abortion?” One says she would overturn Roe
v. Wade if she had a case come before her that would allow her to do so.
o Judicial candidates shall not “in connection with cases, controversies or issues that are likely to
come before the court, make pledges, promises or commitments that are inconsistent with the
impartial performance of the adjudicative duties of judicial office.” Jud. R. 4.1(A)(13).
1. BUT can discuss “personal views on legal, political or other issues….”
Exam Review
PART I
Question 1: The Torture Memos (55 minutes, 550 points)
[NOTE: Yes, this problem is based on the real “Torture Memos” (though the facts have obviously been
modified), but you do not need any knowledge of constitutional and/or international law to answer this
question. Nor will you receive any credit for discussion of any legal (or political) issues other than those
we covered in this course.]
You have just been hired as an Attorney-Advisor (an entry level position) in the Office of Legal Counsel
(“OLC”), a branch of the United States Department of Justice. OLC provides legal advice to the President and
all the Executive Branch agencies. On your first day of work (July 16, 2002), your boss, Jason Yu, who came
to OLC after a distinguished career as a Professor of Constitutional and International Law at Yale Law School,
hands you the following Draft Memo and asks for your analysis of it.
LEGAL MEMORANDUM (Privileged and Confidential)
To: Albert Robinson, Counsel to the President
From: Jason Yu, Assistant Attorney General, Office of Legal Counsel
Date: July 15, 2002
Re: Standards of Conduct for Interrogation
You have asked for our Office’s advice on the legality of using certain enhanced interrogation
techniques – specifically, sleep deprivation, nudity, dietary manipulation, abdominal slaps, facial slaps,
facial holds, waterboarding, wall standing, water dousing, stress positions, cramped confinement,
confinement with insects, and “walling” (where the prisoner is firmly pushed into the wall with his head
and neck supported by a towel to help prevent whiplash) – on detainees being held in United States
custody. For the following reasons, we conclude that the use of these techniques is legal.
First, we do not believe that the suggested techniques constitute “torture” within the meaning of
8 U.S.C. Section 2340, which criminalizes “torture.” Although the statute does not define “torture,” we
believe that to constitute “torture” within the meaning of the statute, the physical pain must be
equivalent in intensity to the pain accompanying organ failure, impairment of bodily function, or
even death. You have told us that the interrogation techniques will not rise to that level.
Second, the exact definition of “torture” is irrelevant because we conclude that it would be
unconstitutional to apply Section 2340’s ban on torture to interrogations of enemy combatants
undertaken pursuant to the President’s Commander-in-Chief powers under the Constitution. We find
that in the circumstances of the current war against al Qaeda and its allies, prosecution for torture under
Section 2340 would be barred because enforcement of the statute would represent an unconstitutional
infringement of the President’s authority to conduct war. Therefore, the interrogators may engage in the
enhanced interrogation techniques described.
Third, the exact definition of torture is also irrelevant because we conclude that the defenses of
necessity or self-defense would justify interrogation methods that might violate Section 2340 and would
preclude prosecution of interrogators who violated Section 2340. These interrogation techniques are
necessary to defend the United States against attack.
You spend the next week extensively researching the issues discussed in the Draft Memo and reach the
following conclusions:
First, you conclude that the Draft Memo’s interpretation of “torture” under Section 2340 is unsupported
by current law and that, under overwhelming precedent – ignored by the Draft Memo – “torture” may consist of
acts that fall short of provoking excruciating and agonizing pain and may include mere physical suffering or
lasting mental anguish. You are convinced that the proposed interrogation methods violate this standard and
therefore violate Section 2340.
Second, the Draft Memo’s conclusion that the President’s Constitutional Commander-In-Chief powers
trump the statutory ban on torture is erroneous and unsupported by any current legal authority. You are
particularly concerned that the Draft Memo fails to even mention the seminal U.S. Supreme Court case that
speaks to the issue of the President’s Commander-In-Chief powers (Youngstown Steel & Tube v. Sawyer).
Third, you conclude that the necessity and self-defense arguments in the Draft Memo are absurd.
Permitting torture under any circumstances would violate our international treaty obligations. Moreover, all the
authorities you found (including an earlier OLC memo on the issue), lead to the conclusion that “self-defense”
could not be available here since the interrogator is not in imminent danger and the person being interrogated
does not personally pose a threat. As to the “necessity” defense, the Draft Opinion fails to even cite the leading
authority – a U.S. Supreme Court decision issued just two-and-a-half months earlier – in which the Court
concluded that necessity can not be a defense to a violation of a federal statute when the federal statute does not
expressly provide for a necessity defense, and Section 2340 does not provide for one. Again, you are troubled
with the legal conclusions in the Draft Memo but perhaps even more so with the Draft Memo’s failure to cite or
discuss essential precedents.
Fourth, the draft opinion entirely ignores the official position of the United States, articulated in the
U.S.’s Report to the United Nations Committee Against Torture in 1999: “No official of the government,
federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture.
Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked
as a justification of torture. U.S. law contains no provision permitting otherwise prohibited acts of torture or
other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent
circumstances (for example, during a ‘state of public emergency’) or on orders from a superior officer or public
authority.” The Draft Memo also ignores the potential applicability of a host of other U.S. and international
laws (e.g. the 8th Amendment’s ban on cruel and unusual punishment) to the proposed interrogation techniques.
Indeed, it doesn’t even mention these legal sources.
Finally, you are concerned that the one-sided analysis in the Draft Memo is inconsistent with the stated
policy of OLC to give “candid, independent, and principled advice – even when that advice may be inconsistent
with the desires of policymakers.” These are complicated, nuanced issues, but the analysis in the Draft Memo
is preposterously simple. You believe that Mr. Yu is just telling the policymakers what they want to hear about
the interrogation techniques.
You report these conclusions to Mr. Yu and tell him that you believe that the advice in the Draft Memo
violates the Rules of Professional Conduct. He tells you that he disagrees with your analysis and plans to
forward his original memo as-is to the White House. Moreover, he tells you that he wants your signature on the
memo next to his if you want to keep working at OLC. “Whether you sign it or not, though, the memo is going
to the President,” he tells you.
What must/may/should you do? (55 minutes, 550 points)
First Issue - The fact that you are a subordinate lawyer doesn’t
Clear violation of competence
Do you have to report YOOU to the bar? 8.3a shall inform
What rules have been breached? Competence (1.1); Failure to cite an arguably controlling SC case is
incompetent
Duty to communicate (1.4); Failure to inform the client of key legal authorities and potential legal impact
(1.2d); lawyer shall not counsel and assist a client in a crime; Torture is illegal and by giving this opinion
YOOU is assisting the gov’t in committing torture
(1.2) talks about conduct lawyer knows to be criminal; arguably doesn’t know this is criminal but he is a very
smart lawyer and would have known of these authorities (willfully blind)
Does this raise a substantial question of YOOUs capacity to practice law?
Some discussion of the Role of the Lawyer in the Lawyer-Client relationship- This guy was just writing what
his client told him to justify their torture (Not job to just say yes when client wants to do something criminal);
Lawyer has
Can you reveal this information since this torture is going to happen - (1.6b(1)) to avoid death or bodily harm;
(1.13) When client is corporation or gov’t - Up and Out reporting requirement; Must take it up the ladder; When
that
What’s in the gov’t s best interest?
Last issue - withdrawal; all this stuff is going to happen; mandatory withdrawal - also if you find it repugnant
¼ to 1/3 of the points for the rule statement - the rest for applying to rule
Does client subjectively believe that the representation continues and is that belief objectively reasonable?
-Two critical differences
1. With former clients, there is only an impermissible conflict if matters are “same or substantially
related.” (see 1.9(a))
2. Former client conflicts are always consentable (see 1.9(b))
Difference b/t A-C privilege and Confidentiality (Client controls both; exceptions in some situations for
confidentiality)
A-C privilege - Much narrower, comes from law of evidence; Only applies to communication b/t privileged
persons (client, lawyer, and agents of each) that are in confidence for the purpose of obtaining or providing
legal assistance
 Comes up when A or C is asked to give evidence (provide all documents in file)
o Privelege prevents having to disclose evidence that is privileged
Professional Duty of Confidentiality (1.6) - Anything related to representation (WESTLAW research, talk to
colleagues, talk to opposing counsel)

Client Fraud Checklist
o What does lawyer “know”? (1.2(d), 1.13, and 4.1)
1. Obligation to investigate. (1.1).
o Disclosure?
1. Mandatory under 4.1(b).
 Is disclosure necessary to avoid assisting AND
 Does a 1.6 exception exist?
2. Permissive under 1.6(b).
o Up and out reporting? 1.13.
1. Must report low level EE action up the chain of authority; includes gov. orgs
2. May report reveal out to authorities if nothing is done
o Withdrawal? See 1.16, 1.2(d)?
1. Mandatory? Permissive?