Professional Responsibility Outline - Morgan – Fall 2011
I. History, Background, and Fundamental Issues:
 A. The Development of the Profession
 General:
 Lawyers were not always required, used, or trained as they are now
 1600s
 Most layman practiced if they had a legal issue
 Hostility towards lawyers existed, and effort to restrict fees
 No need for early colonizers to have ‘law’
 1690-1700
 As commerce expanded, and imports and exports grew, people wanted to have technical legal protections
 Still, however, limited practice with high barriers to entry
 1700
 Lawyers more used
o Long apprenticeship required very prohibitive of entering practice
 1800s
 Large corporations born and westward expansion in the United States
 Leal education developed
o Apprenticeship requirements remained, but Law School became an option
 1900s
 Law schools develop as an alternative to apprenticeship
 Becomes required by ABA
o To raise ethical standards
o Ensure literacy, educated, and honest practitioners
o Apprenticeship declines
o Requirements to get into law school rise
 College Required
 3 Year commitment
 Modern Changes to the Profession:
o General:
 In today’s market and time, the legal profession has changed drastically
o 1. Not Self-Regulating
 Lawyers used to write their own rules they had to abide by
 Anti-trust issues, and now lawyers do not write their own self-serving rules
o 2. Explosion of Growth in the Number of Lawyers
 Excess supply with decreased demand
 Direct Correlation to GDP, which has been decreasing, but law school output has been
increasing
o 3. Globalization
 It is essentially impossible to be a generalist
 Because law is now international, and complex, specialities are required
 Foreign attorneys coming to America to become licensed
o 4. Technology
 Legal issues once complex, unique, and worth of fees are found on the internet
 Although we apply it better it is there to find
 Lowers potential fees charged
 Copying of documents reduces creativity in work
o 5. Growth in size of law firms
 reduces the need for the all purpose lawyer
o 6. Representation of Businesses is much more common
o 7. General Counsel Has increased power
 In-house counsel generally tend to decide what legal representation their client needs
o 8. Declining Significance of the law license
 use of paralegals, etc…
 Also, modern corporations use non-lawyers to negotiate, draft contracts, discrimination
claims, etc…
o 9. The Economy
 B. The Development of Standards Governing Professional Conduct:
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Generally:
 Following the Watergate scandal, the ABA promulgated rules in an effort to ensure nothing like that happened
again
 The MPRE Followed
 Promulgation of Rules
 The ABA does not regulate lawyers
o The ABA prepares Model Rules
o The State Supreme Court then considers whether to adopt them
 Note:
 Not all states have adopted, or have adopted different versions
 5 Sources of Ethics Rules:
o 1. State Code of Professional Responsibility
o 2. Court decisions examining discipline, malpractice
o 3. ABA and State and Local Ethics Opinions
o 4. Restatement on the Law Governing Lawyers
o 5. Federal Agency Practice Regulations
C. Philosophy’s Effect on Legal Ethics:
 1. Duty or Aspiration
 The ABA Model code creates a minimum floor of duties expected from practicing attorneys
o EG:
 Rule 1.1 Competent representation is a minimum floor
 Some provisions are aspiration things to aspire to, but which may not be reached
 2. Moral People versus Actions
 The ABA Model Rules seek to regulate the person, outside of practice, and the practice
o However:
 Must be careful to not sanction lawyers for personal behavior too much
 May lead to easier sanctioning and over sanctioning
 3. Rule versus Integrated Ethics
 Some feel that your ethics change from when you are a person to when you step into the role of a lawyer
 However, the Model Rules attempt to regulate both in some ways
 4. Consequential versus Deontological
 Consequential:
o The ethical path you take is based on the results that may occur
 Deontological:
o Focused on the ethics and values rather than where they lead you
o Regardless of result, focus is on the behavior being right or wrong
 Overall:
 All of these philosophical models effect the rules
D. Introduction and Rule Basics:
 Preamble (1): A Lawyer has 4 roles
 1. A representative of Clients
 2. Officer of the legal system
 3. Public Citizen having special responsibility for the quality of justice
 4. A Third Party Neutral
 Preamble (7): What Law Governs Lawyers:
 1. The Rules
 2. Substantive and Procedural Law
 3. Personal Judgment and Morals
o Ask other lawyers their opinion
o (9) Many issues of personal discretion arise, and should be resolved through the professional and moral
judgment of the attorney
 Preamble (14)(16): Scope and Types of Rules and Nature of Obligations:
 1. Imperatives:
o Mandates that require some action or inaction
o May be discipline following failure to comply
 2. Permissives:
o Permit certain behavior based on judgment
o May not be an incorrect answer
 3. Depend on Other Legal Context
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o Some rules depend on other laws, statutes relating to lawyer obligations
 The rules coincide with personal judgment
Preamble (14) (19):
 The Comments do not add substantive obligations but provide guidance
 Failure to comply with the rules is basis for discipline
E. Rule 8- Admission to the Bar and Discipline:
 Generally:
 Largely seen as the most important
 1. Rule 8.4: It is professional misconduct to:
 (a) violate, attempt, knowingly assist, or to violate through another’s acts the rules of professional conduct
o Effect:
 Therefore, a violation of another substantive rule is also a violation of 8.4
 You violate 2 rules
 (b)-(d)
o Are their own violations—may violate these without violating other rules
 (b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a
lawyer
o DUI:
 Generally not the type of circumstance that would effect attorney’s abilities
 However, may be indicative of substance abuse which does affect client
o Spousal Abuse:
 May be
 Abuse of spouse may “reflect adversely” on lawyers treatment of client
 Those he is in a close relationship with cannot trust him
o No Clear line where criminal act may have future effect on practice
 (c) Dishonesty, fraud, deceit, misrepresentation
o EG:
 Personal Tax fraud can get you disbarred under 8.4(c)
 (d) engage in conduct prejudicial to administration of justice
o This is very broad category and difficult to apply
o Note:
 Comment 3 states that the use of peremptory challenge that is based on discriminatory basis
does not alone establish a violation of this rule
 Only those Offenses that are Relevant to Law Practice Should be Professionally Answerable:
o Comment 2
o Thus, although lawyer may be criminally liable, violation of rules should be based on relevance to
practice
 2. Rule 8.1: Bar Admission: A bar applicant, or lawyer in connection with a bar admission application
 (a) May not make knowingly false statements of material fact
 (b) Fail to disclose facts necessary to correct someone’s misperception you know of
 (c) Fail to respond to lawful demand for information
 3. Rule 8.3: Duties to Report Professional Misconduct
 (a) If you know of another’s violation, and it raises “substantial question of lawyer’s honesty, trustworthiness,
or fitness as a lawyer,” you have a duty to report to authorities
o Note:
 Qualifying language reduces de minimus claims
 Must raise a “substantial” question
 Does not include disclosure of information protected by Rule 1.6
 4. Rule 8.5: Choice of Law When Barred in Several States
 (a)
o Any state where you are licensed may begin a proceeding, regardless of where conduct occurred
o Even if you are not barred in a state, you are subject to their discipline if provided legal service in that
jurisdiction
o Subject to discipline of both jurisdictions
 (b) Choice of Law
o 1. If Conduct Occurs in Litigation
 Rules of the state you appeared in apply, regardless of whichever court is disciplining you
o 2. If Non-Litigation
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Where it occurred or
If predominate effect elsewhere, where the predominate effect of lawyer’s behavior occurred
 Note:
 However, if you conformed to the rules of where the predominate effect
occurred, there is no discipline
II. Undertaking the Representation of a Client:
 1. Prospective Client:
 A. Prospective Client is: 1.18
 (a) A person who discusses the potential of forming a client-lawyer relationship with a lawyer is a prospective
client
 Not all people who communicate with lawyer get protection, however:
o Comment 2, 1.18
 A person who communicates information unilaterally, without reasonable expectation that a
lawyer is willing to discuss is not a “prospective client”
o Inquiry Did lawyer invite you to communicate
 Websites and E-mails from lawyers may invite you to inquire, and therefore, would create
relationship
 B. You Owe Prospective Client Duties—1.18:
 Even before you decide to represent someone, you owe duties
 Incorporated in 1.18 is Restatement of Law Governing Lawyers
o 1. You have a duty not to disclose the legally privileged communications of the prospective
o 2. If you take possession of documents or property, must protect them
o 3. Advice given may make you responsible for malpractice
 C. Conflicts Between Prospective Clients and Firm’s Representation of Adverse Parties—1.18:
 1.18(c)
o 1. A lawyer with a prospective client relationship cannot represent a client materially adverse to the
prospective client in the same or substantially related matter if the lawyer received information that
could be harmful
 Lawyer Disqualified generally from representing adverse parties if has prospective client
 1.18(d)
o If Lawyer Is disqualified  Firm disqualified, unless:
 (1) both the clients give informed written consent or
 (2) Lawyer who received information from PC avoids unnecessary exposure to too much
information from prospective client and
 (a) Disqualified Lawyer is Screened and
 1.0(k) Screened: excluded from matter
 (b) Written notice is given to Prospective Client
 Note:
 Comment 4: So, with prospective clients, get enough information to decide whether
to represent, but no more so that your firm may continue to represent adverse parties
if applicable
 D. Meeting with Prospective Client and Pro-Bono Event—Rule 6.5:
 If meeting occurs without expectation by either party of continued representation
o 1. Subject to rule 1.7 and 1.9 only if you know that there is conflict and
o 2. Subject to 1.10 only if you know that another lawyer at firm is disqualified
 Effect:
o Attending these clinics and giving advice contrary to one of your firm’s clients is ok, as long as you do
not know there is a conflict
o Your firm may continue to represent client
o Facilitates pro-bono service and avoids worry of large firms
 2. The Decision to Represent a Client:
 A. There is No Obligation to Represent Someone:
 You have no obligation to represent anyone
o Largely you are free to choose client as you wish
 B. Views of the Client—1.2(b):
 The representation of a client does not endorse the client’s political, economic, or social views
o Note:
 Comment 5: this rule avoids lawyers denying representation because they disagree with their
client’s views
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 Realistically, however, you are associated with them
C. Limitations to Rejecting a Case:
 There may be cases, albeit rare, where you may not be permitted to reject
o Stropnicky v. Nathansan:
 Where law firm represented women only, and man asked them to represent him because they
specialized in his case, Commission on anti-discrimination required them to represent him
 Protected Classes, anti-discrimination laws may apply
3. Documenting the Decision to Represent a Client:
 A. When Party becomes your Client—Restatement §14:
 A party becomes your client when
o 1. Party manifests intention to the lawyer that he provide legal services to the person, and:
 A. Lawyer consents or
 B. Lawyer fails to deny consent and
 Lawyer should know that client reasonably believes the lawyer represents him
 The Risk of Ambiguity Is on the Lawyer:
o If attorney fails to send a letter rejecting representation, or secretary forgets to, lawyer may be liable
for malpractice
o Be careful to properly communicate and document
 B. The Engagement Letter:
 A letter, documenting that the lawyer is representing a client should include:
o 1. Who the Client is and who the client is not
o 2. The Scope of Representation—1.2(c)
 What the lawyer will do and wont do
 Ensure it is explicit
 Avoids liability for matters that lawyer specifically negotiates it will not perform
 1.2(c):
 A lawyer may limit scope if (a) reasonable and (b) client consents
o 3. Fees
 Including an outline of the expenses client is responsible for
o 4. Conflicts of Interest
 Including whether client consents to waive them
o 5. Changes in the use of confidential information
o 6. Requirements of the Client
 A client has no general duty
 Therefore, a letter should include in detail what the client will do
 EG: tell the truth
 Remember to Send Letter Rejecting Representation
o To avoid failing to deny consent, you should also send a letter to the fact
4. Decision Making During Representation:
 1. Lawyer has Duty to Communicate With Client During Representation-1.4
 (a) lawyer should promptly inform client of decisions/circumstances if informed consent required
 (b) consult with client about the means the clients objectives will be accomplished by
 (c) Inform about status of matter
 (b) respond to requests of information from client
 2. Lawyer must get permission to reveal confidential information—1.6, unless authorized or 1.6(b) applies
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3. Client’s Power and Attorney’s Power—1.2
 The Client:
o (a) Has the power to determine the objectives of representation and the attorney must abide
o Powers Include:
 In Civil Case:
 1. Settlement is the client’s decision
 Note:
 A client is not bound by an attorney’s unauthorized settlement
 In Criminal Case:
 1. Plea entered
 2. Whether to waive jury trial
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 3. Whether client will testify
The Attorney:
o (a) Power to determine the means by which those objectives will be achieved
 Per 1.4, attorney must communicate those means
 Note Comment 3:
 The client may authorize the lawyer to take specific action without more consent
 The attorney may use it, but it can be revoked
o (b) 1.2(d)
 Lawyer may not counsel a client to engage in conduct known to be criminal or fraudulent
 But, may discuss legal consequences of the client’s actions
o (c) 1.1 Competent
5. Competent Representation:
 1.1 Competent Representation
 The lawyer shall provide competent representation to a client
 Requires:
o 1. Legal knowledge
o 2. Skill
o 3. Thoroughness and
o 4. Preparation reasonably necessary to represent
 What is “Competent”
o The ABA and attorneys generally presume that all attorneys are generalists—capable of performing all
legal tasks
o Because this is so broad, it is difficult to be punished for being incompetent
 1.1 cmt 1&2:
 Depends on complexity, specialized nature of matter, lawyer’s experience,
preparation and study of lawyer—many instances only require proficiency of general
practitioner
 Don’t necessarily need special training—and can become competent in unfamiliar
field by learning subject matter
 1.1 cmt. 5:
 A lawyer’s competence requires inquiry, analysis, and use of methods a competent
practitioner would use
 It also requires preparation, depending on what type of matter is involved
o Note:
 If you are incompetent in a matter, become competent by:
 Associating with a competent Lawyer
 Learing the subject matter prior to representation or
 Emergency advice giving
 Are all means of becoming “competent”
III. Fees, Handling Client Property, and Withdrawing from Representation:
 1. Fees—1.5:
 (a) No unreasonable fees or expenses. 8 Factors to consider if reasonable:
 1. Time and labor, novelty and difficulty of question
 2. Liklihood that acceptance of employment will preclude other employment
 3. Fee usually charged in the locality for similar service
 4. Amount involved and results obtained
 5. Time limiations
 6. Nature and length of relationship with client
 7. Experience, reputation, and ability of lawyer
 8. Whether fixed or contingent
 (b)
 Duty to communicate the fee and expenses to the client, preferably in writing before or within reasonable
amount of time after commencing, unless it is a regularly represented client who is charged same rate
 Typically in engagement letter
 Regular Fees do not have to be in writing, but are preferred to be
 (c)
 Contingent fees do have to be in writing
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Rule 1.0: “Writing”
 Record of communication
 A signed writing includes a signature
o Rule 1.0 “Confirmed in Writing:”
 When a writing is used to confirm oral discussion and consent
o (d) Restrictions on Contingent Fees:
 1. No contingent fees when matter is domestic relations—contingent upon securing a divorce,
alimony, or property settlement
 Policy:
 Want to discourage divorce and protect the family unit
 Note:
 If the judgment has already been issued, and money owed is past due under
the judgment, a contingent fee is acceptable—considered a debt
 2. No contingent fees for representing criminal defendants
 Policy:
 You may not represent to best ability, and instead figure out how much you
will get for different outcomes, and push towards one when you think its
adequate money
 (e) Division of Fees With Lawyers Outside of Firm:
 1. You may get division if you do proportionate work to the fee or If you don’t do work, you assume joint
liability, and
 2. The Client Agrees to the share/arrangement (that is disclosed), in writing and
 3. Fee is reasonable
o Policy:
 Restrictions on referrals act to
 1. Ensure independence of lawyer
 we don’t want a system in which incompetent lawyers take on all cases,
simply to refer them to the highest bidder
 2. Protects client
 clients are not merchandise to be passed around
 3. Ensure Lawyer has interest in representation
 1.5(e) treats the referring lawyers as partners—the requirements much
resemble that of a partnership, and passing a client down the hall—partners
have joint liability, share fees, and fees must be reasonable
 Thus, 1.5(e) applies to solo-practitioners, and resembles a law firm between
referring and referral lawyer
 Lawyer’s Attempts to Collect Fees:
 1. A lawyer may sue a client to collect fees
 2. Per 1.6, you may reveal confidential client information when bringing claim
o However—you may not threaten a client with the disclosure of confidences
 3. The Use of Attorney Liens:
o A. The “Retaining Lien”
 Lawyers have a possessory interest in their clients papers, funds, and documents
 Pressures client into paying lawyer’s bill
 Urgent Need Exception:
 If there is urgent need for documents, may not apply
o B. The “Charging Lien”
 Gives the attorney the right to apply a recovery of his fees to client’s recovery
 Process:
 1. Give notice to party paying judgment/settlement
 Party has duty to protect your lien
 2. If party pays entire amount to client, they become responsible for attorney’s fees
2. Handling of Client Property—1.15:
 1. A lawyer owes a fiduciary duty to client
 2. Lawyer’s Keeping of Office Accounts
 1.15(a)
o A lawyer must hold client property separate from personal property
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Client $ must be held in Client Trust Account, in state of practice unless client consents
elsewhere
 This is held for the benefit of his clients
 Separate from:
 (1) Personal Accounts of Lawyer and
 (2) Business Accounts of Firm
 Note:
 Each client does not need a separate account, but must have records of individual
client’s funds accurately
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1.15(b)
o The only reason a lawyer may have his personal money in client trust account is to pay bank service
charges
 1.15(c)
o As soon as money is received by the attorney, it must be deposited into the client account
 Includes:
 Legal Fees and Expenses
 May only take them out when earned or incurred
 3. Tangible Objects:
 1.15(a)
o Property should be identified and appropriately stored and safeguarded
o Use reasonable measures, depending on value and circumstances
 4. When Attorney Receives Property of Client:
 1.15(d):
o As soon as funds or property that client has interest in
 1. Promptly Notify Client
 2. Promptly Deliver to the Client
 Note:
 So, lawyer who is suing party for a ring and punitive damages
 As soon as lawyer wins, and gets back ring,
 5. Disputes regarding Fees:
 1. 1.15(d) (e)
o Promptly pay to the client the amount entitled to receive that is undisputed
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 2. 1.15(c)(e)
o Withdraw amount earned and undisputed
 3. 1.15(e)
o Keep disputed property in client account
 Note:
o Although not a practical move, an attorney could appropriately pay all the money back to the client
 EG:
o Client agreed to pay you 40% of damages, and you win $100. He later thinks it’s too high, and says he
will only pay 25%.
 Put all in trust account
 You distribute to him undisputed $60
 You keep $15 in account disputed (difference between 40 agreed and new 25%)
 You may take out $25 (Undisputed you will get that)
3. Withdraw from Client Representation—1.16:
 1. A lawyer must withdraw when:
 1. Representation will violate a rule of professional conduct or other law
 2. Physical or mental condition materially impair lawyer’s ability
 3. Lawyer is fired
o Note:
 You may not agree to client being unable to fire you
 2. A Lawyer may withdraw:
 Generally:
o Although a lawyer has vast discretion to decide when to choose a client and if he will represent
someone, it is much more difficult to end representation
o There are only enumerated reasons
o Be careful in accepting clients
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May Withdraw if:
o 1. Can occur without material adverse effect on interests of client
o However—if there is a material adverse effect, you may withdraw if:
o 2. Client wants to proceed in manner lawyer thinks is criminal/fraudulent
o 3. Client has used lawyer to perform crime/fraud
o 4. Lawyer considers client’s desire
 Repugnant or
 Fundamentally Disagrees with it
o 5. Fails to Pay fees
o 6. Continued representation will result in unreasonable financial burden or is unreasonably difficult
 3. Even if you Satisfy A or B, You Must Satisfy C The Court
 When ordered by a court, a lawyer shall continue to represent a client
 4. When Withdrawing, Must Mitigate Effect to the Client
 When withdrawing, must act in reasonably practical manner to
o give notice to client
o allow time for him to acquire other lawyer
o surrender property, documents, papers to him
o Effect:
 Withdrawal will not be automatic, but gradual
 Mitigating the consequences, may include assisting in finding another lawyer
IV. The Duty of Confidentiality, Attorney Client Privilege, and Work Product Doctrine:
 Generally:
 The Duty of Confidentiality can be made up of three laws:
 1. The Attorney-Client Privilege
o A rule of evidence law
 2. Work Product
o A rule of Civil procedure
 3. The Duty of Confidentiality
o a rule of professional responsibility with lawyer as an agent of the client-principal
 1. The Attorney Client Privilege
 1. The Privilege attaches when:
 1. Communication
 2. Between privileged parties
o Attorney, client or agents of either, or party seeking attorney
 3. In confidence
o In a confidential area or intended to be confidential
 4. For the purpose of getting legal assistance
o Must be legal advice
 2. An Attorney Cannot Be Compelled to Testify About Privileged Information:
 A. If information is privileged, an attorney can refuse to testify about it
o However:
 Although the actual information between the two is privileged, information surrounding it and
the subject matter of the discussion can be compelled
 EG:
 What did attorney say to you? Versus What did you two talk about?
 B. The Attorney or Client may claim the privilege
 C. Exceptions To Attorney Client Privelege:
o 1. “Crime-Fraud” Exception—Restatement §82:
 1. When a client consults lawyer to engage in fraud or crime that is accomplished
 2. When client uses advice to engage in or assist in crime
 Therefore:
 If client actually uses advice for fraud or illegality privilege ends
 If client has not actually used it yet continues to be privileged
 Policy:
 Encourages parties to come to a lawyer to get advice so that they may
advise
 Lawyer as a gatekeeper to help people not break the law
o 2. When Communications between concurrently Represented parties
o 3. When Waived by Client
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3. Upjohn: The Attorney Client Privilege Extends to a Business Entity:
 Restatement §73:
o 1. If communication otherwise qualifies
o 2. Is between an agent of the organization and privileged party
o 3. Concerns legal matter of organization
o 4. Only disclosed to privileged parties or agents of organization who need to know
4. Waiver of the Privilege:
 If the client by mistake or otherwise tells any third party, other than attorney, about content of confidential
conversation
o The privilege is waived
 May not be waived if adequate protection to assure not disclosed
o Inadvertant disclosure may not waive it
 EG: Mistaken mailing of confidential memo
o However, if inadequate protections could be waived
 Many parties agree to claw-back provisions
5. The Duration of the Privilege:
 Death:
o Death does not end the attorney client privilege
 Indefinite:
o The Privilege survives indefinitely, going beyond termination of attorney-client relationship
Overall:
 Very Narrow in application between lawyer and client communication
2. The Work Product Doctrine
 1. What is Work Product:
 1. Consists of tangible material or intangible equivalent in unwritten oral form, other than underlying facts,
prepared by the lawyer
o For litigation in progress
o Or, litigation that is reasonably anticipated
 2. Opinion work product is opinion or mental impression of lawyer
o Immune from compelled disclosure unless:
 1. Extraordinary circumstances justify it
 3. Ordinary Work product is everything else
o Immune from compelled disclosure unless:
 1. Substantial need and
 2. Unable to get without undue hardship
 EG:
 You take testimony of witness who then dies
 No one else can get your notes, or talk to that peson—may be ok
 But, may redact your opinion
 2. Why do we protect Work Product:
 Protects strategy, and client’s interest
 Also, keeps lawyers working hardest for their client
o Otherwise, attorney’s would simply discover other’s work, and never do any work themselves
o This would progress and free-rider problem would exacerbate it as no one would do any work
 3. Note the difference between Privileged Material and Work Product
 Privileged material can only be compelled if client (1) actually used it (2) for crime or fraud
o Nothing else
 Work product has an easier, albeit not easy, standard to compel
3. The Duty of Confidentiality-Rule 1.6:
 General:
 Unlike privilege, the duty of confidentiality is extremely broad
o If anything “relates to” the client you may not reveal it voluntarily unless exception applies
 But, you may be compelled to reveal it
o The duty of confidentiality includes work product and privilege
 1. The Rule:
 (a) Lawyers shall not reveal any information relating to the representation of a client, unless
o Informed Consent
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o Impliedly authorized to carry out representation
o Or as allowed in (b)
(b) a lawyer may reveal if:
o 1. To prevent reasonably certain death or substantial bodily harm
o 2. Prevent client from committing crime or fraud that may result in substantial injury to financial
interests or property of another if due to use of lawyer’s advice
o 3. Prevent, mitigate harm to financial interests or property of another due to lawyer’s advice
o 4. Attorney wants to get legal advice about ethical obligations about his client’s situation
 Attorney may ask other lawyers for advice on ethical matters
 1. Use hypothetical terms
 2. Permission of client who may be at risk
 3. Obtain assurance of confidentiality
o 5. To sue client or defend from malpractice claims against attorney for attorney’s conduct
 Preemptive Self Defense (1.6, cmt. 10):
 A Lawyer may reveal just enough client confidential information to defend himself
to third parties against claims against the lawyer
 This may occur before any formal charge or suit is brought against the client
o 6. If law or court orders it
EG:



Attorney represents A. At a dinner party, a banker comes up to attorney and says that A is having financial
difficulty.
o This information is not privileged did not come from attorney
 Can be compelled
o This information is protected by the duty of confidentiality relates to representation
 Can be compelled, but should not reveal it without compulsion
2. What steps should an attorney take to keep Confidential:
 Should take reasonable steps and precaution to prevent information from being revealed
 You are not required to use specialized security measures, unless special circumstances warrant it
o Consider the sensitivity of information and the extent communication is protected
3. How vigorously should an attorney defend the confidentiality:
 The lawyer should assert all non-frivolous claims to protect client
o In the event of an adverse ruling, lawyer must consult with the client about the possibility of appeal or
informed consent to disclose if appeal is likely to lose
 You do not have to go to jail to defend it
V. The Duty of Loyalty and Conflicts of Interest:
 1. Conflicts Between Clients a Lawyer Represents:
 Generally:
 1.7 is extremely broad
 There is no requirement that the matters be similar, or substantially the same
 You simply cannot represent any client who is directly adverse or materially limits your ability to another client
o Unlike prospective clients, interests with former clients
 Rule 1.7:
 A. A lawyer shall not represent a client if there is a concurrent conflict. There is a concurrent conflict:
o 1. When the interests of parties are directly adverse
 Examples:
 The most often occurring directly adverse conflict is one where your firm represents
two parties. One of the parties attempts to admit that the other client committed the
crime.
 This is a 1.7(a)1 directly adverse conflict, because imputation to firm
 Representing two parties in unrelated matters who have competing economic
interests does not constitute direct adverseness
o 2. There is significant risk that representing one will be materially limited by representing another
client, former client, or personal interest of the lawyer
 Note:
 This is in terms of probability if there is significant risk, there is a conflict
 EG:
 Two parties who have amicably resolved there divorce come to you, wanting a
drafted agreement
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There is a risk that down the road it will get difficult
 Even by you doing your job, asking pertinent questions, you could create
the risk
 Thus, although amicable now can get bad later on so you may need to
comply with (b)
 B. However, a lawyer can represent concurrently conflicted clients if:
o 1. Reasonably believes he can provide competent and diligent representation to each
 Note:
 An objective standard
 Some conflicts no attorney would reasonably believe are ok to undertake
o 2. Not prohibited by law
o 3. Does not involved litigation by one against another
o 4. Each client gives Informed written consent
1. Who is a current client:
 If there is an attorney client relationship, then it is clear
 Sometimes, it is not clear
o “If the party reasonably believes he is a client”
 How to end client relationship after matter:
o 1. Disengagement Letter
 You could write a letter, ending the attorney client relationship
 However, this is unlikely given the value of having a client be a continual client

I.E., Ford Motor Company
 You wouldn’t end this relationship simply after one matter
 “Hot Potato Rule”
 You may not end one client relationship to represent another client who sues the
former
o 2. Engagement Letter
 In the engagement letter, you should put an “Advance Waiver”
 This waives 1.7 concurrent conflicts, and therefore lifts the need to end client
relationships
 Ensure that
 Client reasonably understands risks
 The more sophisticated the more likely they will understand them
 Be specific—not general
 The more specific you are to what future risks may arise, the more
likely the advance waiver will be sufficient
2. Waiving Conflicts of Interest by informed written consent
 The client may waive the conflict if all 4 attributes are met
o However:
 No informed waiver by consent can occur if
 1. Not reasonable to think lawyer can be competent and diligent
 2. Is prohibited by law
 3. Representation in litigation
 Must be Informed Written Consent (cmt. 18)
o 1. Explanation of the risks and benefits
o 2. Explanation of the duty of confidentiality and duty to communicate
o 3. Aware of the relevant circumstances and the material and reasonably foreseeable way conflict could
affect the client
o 4. Its implications to loyalty, confidentiality, duty to communicate
3. A New Waiver May be Needed if Circumstances Change:
 If there is a material change in the circumstances, a new waiver by written consent may be needed to explain the
additional circumstances
o This applies to advance waivers
 If some material fact changes, there may be a need to get additional consent from client
4. The Effect of Revocation of Consent by One Client:
 Depending on the circumstances, revocation by one client may lead to the attorney having to withdraw from
representing other client
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o
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What is the nature of the conflict, whether there has been a material change in the circumstances,
whether other client would be materially detrimented by attorney withdrawing
5. Examples of Non-Consentable, Unreasonable Representations:
 A. Representing two clients, and declining one’s settlement to increase the other’s
 B. Buyer and seller in commercial real-estate deal
 C. Non-contested divorce proceeding
o Some jurisdictions permit this as consentable while other disagree
6. The Effect of Disclosure of One Client That is to be withheld from another
 An attorney, per rule 1.4 has a duty of disclosure and communication to each client about status of the matter
o At the outset, the lawyer should obtain each parties informed consent that communications will be
shared to meet a duty of loyalty to both clients
 If one client tells attorney to withhold relevant information from other breach of duty to communicate to the
other client, or breach of duty of confidentiality to client who won’t let you tell
o Lawyer likely must withdraw
7. Conflicts are imputed from lawyer to law firm
 Rule 1.10
o Conflicts based on 1.7, above, are extended from an individual attorney to the law firm he works for
 If you would be conflicted representing two parties, your firm is conflicted
o Must get Written Consent to represent, or else the attorney and the firm are disqualified
8. Conflicts are imputed to Relatives of attorney:
 Thus, if a lawyer has an issue representing two clients, they cannot send one of them to a relative
o Unless the client gives informed consent
 Relative:
 Blood or marriage
 Parent, child, sibling, spouse
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
However—Related Lawyer’s Law Firm May Represent
o Although the disqualification excludes use of related lawyer, the imputation does not extend to the
related lawyers law firm
9. Privilege In Joint Representation:
 The privilege does not apply between two people who were formerly jointly represented by one attorney
10. Remedies for Conflict Violations:
 In litigation
o Courts order lawyer disqualified from representation to any clients
 Non-Litigation
o Potentially the same effect
 Other Remedies:
o 1. Discipline
o 2. Disqualification
 The affected party who has a client will be disqualified
 This will extend to your law firm
 Opponent will move to disqualify
o 3. Damages
 Arising from malpractice, breach of contract, breach of fiduciary duty
o 4. Disgorgement
 Regardless of whether damages in fact occurred
2. Conflicts Between the lawyer and his current client:
 Generally:
 These are the most often occurring conflicts of interest an attorney may have with his client
 They are premised on the idea that an attorney’s specialized skill and training can possibly lead to overreaching
a client—especially when the client seeks an attorney when they are in need, unsophisticated, and vulnerable
 A. Business Transactions with a client—1.8 (a):
 General:
o You are not prohibited from entering into a business transaction with a client or taking payment in
stock, or taking an ownership, possessory, or security interest in your client—But,
 1. Must be reasonable per 1.5
 2. Must meet 1.8(a)
o Does not apply to Generally Available Goods:
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o
o
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Although this rule applies broadly, it does not apply to transactions that are “standard ones,”
or ones generally marketed to everyone
 EG:
 Your client owns a restaurant
 You can go, and buy food without worrying about it being a 1.8
business transaction
Many Law Firms Refuse:
 They feel that owning client stock will alter their ability to evaluate their client’s best interest
objectively
 Others, however, feel it shows confidence in their client
Stock, Ownership, or Possessory, Security Interest:
 Often times this means stock
 But, could be client paying you in land, or mortgage on his land
Rule:
o
1. Transaction must be fair and reasonable, and fully disclosed to the client in understandable way
 Note
 The transaction must comply with your fiduciary duty, being fair
 An objective standard of reasonableness
o 2. Client must be advised to get another lawyer’s opinion
 Note
 They do not have to actually do it, but you must advise them
o 3. Must give informed written consent to the terms
 Note
 Must be signed, and give details
B. Use Of Client Confidential Information For Attorney Benefit—1.8(b):
 Model Rule:
o A lawyer may not use confidential information to client’s disadvantage, unless client gives informed
written consent
o Effect—Creates Discipline Ability:
 Seeks to ask whether you have hurt your client—disadvantaged them
 If so Subject to discipline
 Restatement §60:
o If client information is used for pecuniary gain, must account to the client for profits made
 Effect—Creates Civil Liability:
 You can be civilly liable, beyond discipline by bar, for restitution damages
 Example:
o Your client is developing a business, you realize the land nearby will skyrocket in value. You buy all
the land around the client’s business
 Under the Restatement—you must account for gain to your client
 Under Rule—if you have disadvantaged your client, subject to discipline
C. Gifts From a Client to an Attorney—1.8(c):
 Rule:
o An attorney may take a gift from a client, however, an attorney may not:
 1. Solicit a gift from a client, or
 2. Draft an instrument that transfers a gift to the attorney or attorney’s relative
 Unless:
 The lawyer is related to the client
 Effect:
o You may accept gifts from a client
 There is no concern over small trinkets, like a pen, but soliciting such gifts or getting a gift
and then preparing the instrument to transfer it are prohibited because:
 Lawyer is influential and skilled
 Drafting transfer documents may be unintelligible to the client who is unaware of
what’s going on
o Relative Exception:
 Because lawyers in the family are often used by the family, this exception is one of
practicality to permit attorneys to get gifts from family who are also related—very common
o Wills/Trusts/Estates:
 The most often occurring gift scenario is within an estate or will
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Lawyer is in charge of many assets, and permitting a lawyer to draft instruments transferring
title from client—who is now dead—shouldn’t go unchecked
o When Instrument must be drafted to transfer:
 If a client gives you a gift that requires a transfer by instrument—assume a nice car—they
must go to another attorney to get that instrument drafted
 Attorney should counsel:
 Check that there is no duress, fraud, coercion, or misunderstanding by client
 D. Literary and Media Rights from Client Representation—1.8(d):
 Rule:
o You may not acquire media rights or literary rights based on substantial part on client representation
before the representation is over
o Post-Representation:
 You may negotiate for such rights
 E. Financial Assistance from Attorney to client—1.8(e):
 You may not provide financial assistance to the client, except for two reasons:
o 1. You may advance costs to your client, and expenses of litigation, when payment is contingent on
outcome
 Including litigation medical examination expenses
o 2. If client is indigent, you may pay
 F. Payment From a Third Party for Client Matters to an attorney—1.8(f):
 General:
o This arises when there is an insurance claim
o The insurer will seek to pay for your client—the insured
 However, they will also seek to become your client, effecting the representation and
potentially attempting to mitigate costs
o This rule avoids the potential that a 3P will effect litigation
 A third party, not your client, cannot pay for the client, unless:
o 1. Client gives informed consent
o 2. It does not interfere with lawyer’s independence or A-C relationship, and
o 3. Confidential information under 1.6 remains protected
 G. Aggregate Settlements—1.8(G):
 If a lawyer represents two or more clients, you cannot undertake an aggregate settlement for all, unless each
gives informed written consent
 H. You May Not Waive Malpractice—1.8(H):
 A lawyer may not agree to limit the mal-practice liability of the individual attorney, unless client has
independent representation
 A Lawyer may not settle a malpractice claim without that client’s representation by an attorney, or explaining
the desirability of malpractice claim
 I. Lawyer may not take proprietary interest in subject matter of suit—1.8(i):
 Example:
o If client is debtor, you cannot purchase the debt from him becoming the client
 Except:
o 1. May acquire a lien to secure fees
o 2. May contract with client for contingent fee in civil case
 J. Sexual Relationship With Client—1.8(j):
 You may not have a sexual relationship with a client, unless it existed prior to representation began
o Corporate Client:
 This extends to the constituents of a corporate client
 Imputation of Conflicts to Firm:
 Conflicts A through I, above, are imputed from the attorney to the law-firm
 Thus, if any one of them exists, the firm is conflicted and may be disqualified
 Sexual Relationships do not Impute
o 1.10(a)(1)
3. Conflicts between lawyer and Former-Client—1.9:
 Generally:
 An attorney continues to owe a duty to his former clients
o 1. Duty of Confidentiality
 Must continue to keep past client information in confidence
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The duty to a former client is premised on the idea that confidential information was given
in the past—it should not be later used to that client’s disadvantage when the attorney
represents someone else
o 2. Loyalty
 Must remain loyal to the client
Not the Same as 1.7:
o 1.7 applies much more broadly than 1.9
 It prohibits representation if there is any conflict
o 1.9
 Creates potential issue only if the representation of a current client is substantially related to a
matter that dealt with a former client
 Much narrower
Policy:
o We want attorneys to be able to move on from a client
 With the amount of clients one may have, if there were no way to move on it would restrict
representation to those clients
o Current clients
 Demand more loyalty in their current representation
A. Duty to Former Client:
 1. If you have represented someone formerly, you may not later represent someone in a same or substantially
related matter where the current client is materially adverse to the former client
o Unless: the former client gives informed consent that is confirmed in writing
o Effect:
 If you fail to get informed consent You will be disqualified from representing current client
in matter
o Same or Substantially Related Matter:
 A contextual inquiry based on the circumstances of each case
 1. May be factually related
 EG:
 If you drafted a contract for former client, you may not represent
subsequent client to attack that contract
 But, even if the facts do not align with the two representations, it does not mean they
are not related
 2. If Past Confidential information can be used
 If a former client’s confidential information can be used to materially advance the
current client’s position They are “substantially related”
 Key measure is what confidential information was received in past
representation
 Secrets, private information
 EG:
 Represent Dr. Marks in custody battle. Gain access to personal finances.
Later, represent plaintiff who is suing Dr. Marks for negligence. Your
knowledge of his finances may be the type of information that requires his
informed consent to represent the new client
 Does Not Apply To:
 To generally known information or knowledge about the client’s policies,
practices
 2. The Duty may Extend Beyond past Client, to Past Co-Litigant:
o If you represent a defendant who has a co-defendant, you may learn confidential information from the
co-defendant in the process
 “Implied Client”
 A court may extend the former-client duty, to a former co-defendant, treating them
as your client
o Class Action:
 A lawyer’s past representation of a class of litigations does not usually disqualify the lawyer
from later suing a member of that class
 It is unlikely that the lawyer got any confidential information given the size of the
class
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3. When Attorney Leaves Former Firm Who Represented a Client, Attorney may be disqualified from
New Firm, and the New Firm can be disqualified:
o General:
 This rule deals with a lawyer who leaves a law firm
 If the lawyer’s firm had a client, but the lawyer individually did not work on the
matter or acquired no knowledge, then he is not later disqualified—nor is his new
firm
 But, if the attorney worked on the matter, or had knowledge—the lawyer may later
be disqualified and so can the new firm
 EG:
 If you leave Firm A, where the firm represented client 1, and go to firm B, who is
representing a client adverse to client 1, you may be disqualified
o RULE:
 1.9(b): A lawyer cannot knowingly represent a current client in a substantially related matter
that the lawyer’s former firm represented a client, if:
 1. You are representing someone materially adverse to former firm’s client and
 2. You acquired confidential information about former firm’s client
 Unless:
 Former client gives informed consent, in writing
 Effect:
 Lawyer will be disqualified from representing current client at new firm
o Imputation from 1.10:
 Generally:
 If an individual lawyer is disqualified, the law firm may be disqualified because the
conflict is imputed to it
 But, if the conflict is based on 1.9(a), or (b), and arises from the lawyer’s
employment at a former firm, the new firm is not disqualified if:
 1. The disqualified lawyer is screened:
 Has no participation and has no fee
 2. Written Notice is Given to the affected Former Client:
 Notify former client, describe screening procedures
 3. Certification of Compliance with 1.10(b) and the screening
procedures are given to the former client
 By disqualified lawyer and a partner in periodic intervals
o Rule Applies to Secretaries, Paralegals, and Law Students of Former Firms:
 If one of these parties leaves a former firm, they may have confidential information about
former clients
 When they get to a new firm, they may be disqualified and the firm may be disqualified if
they do not comply with 1.9(b) and 1.10(b)
 Policy:
 They gain access to confidential information just as much as the attorneys do
 Thus, when they arrive at a new firm, they could materially advance the new clients
position against the former client
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4. A lawyer who has a former client, the Lawyers Former Firm has a former client, or the Lawyers
Present Firm has a former client, may not:
o General:
 This provides a continuing duty of confidentiality to former clients
o Rule:
 1. Use a former client’s confidential information to disadvantage that client or
 2. Reveal information relating to a representation
 5. 1.10(b):
o When a lawyer leaves a firm, that firm is not prohibited from representing a client materially adverse
to client formerly represented by the lawyer, and not currently represented by the firm, unless:
 1. The matter is the same or substantially related to the former lawyer’s representation, and
 2. Any lawyer remaining in the firm has confidential information material to former client
4. Special Conflicts for Attorneys and Government or Judicial Employment:
 1.11: Government Lawyer
 (a) A lawyer who leaves being public officer, employee of government
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o

1. Subject to 1.9(c)
 May not use former government information to its disadvantage
 Must keep it confidential
o 2. Shall not represent a client in a matter that the lawyer participated personally and substantially as
government officer
 Unless:
 Government Agency gives its informed consent, in writing
 Note (Cmt. 3)
 Matter here does not mean that you must be adverse to the government
 You cannot be involved in any matter, whether adverse or even consistent with the
government’s position
 No Involvement at all in a matter you worked on for the government
 Concern is the use of confidential government information at all
 A Matter requires parties
 Writing a regulation, law, or statute does not apply
 Legal Opinion Does not Apply
 Doing or compiling statistics does not apply
(b) If you are disqualified, the firm is not disqualified if:
o 1. Disqualified lawyer is screened from participation, and gets no fee
 Note:
 You may still get salary and partnership share, but not fee directly from disqualified
matter
o 2. Written notice is given to the agency
o


Policy:
 We want good attorneys to be able to work for the government, and coming and going freely
without hindering a firm who may potentially hire them
 But, we also want to avoid having confidential information used to government’s
disadvantage or client’s advantage.
18 USC 207(a)1:
 A lawyer who works for a private client may have potential criminal liability
 Any person who was employed by executive branch/agency who knowingly makes a communication with
the intent to influence that the US has a direct or substantial interest may be punished up to 1 year in jail
or $50,000.
o Effect:
 This rule is based on the idea that if you were to leave the government, and go back as a
private attorney, you cannot attempt to influence the agency to the benefit of the client
1.12: Former Judge, Arbitrator, Mediator, Law-Clerk:
 (a) A lawyer shall not represent anyone in connection with a matter that he participated in personally and
substantially as a judge, law clerk, or arbitrator, mediator, or 3P neutral
o Unless:
 All parties give informed consent, in writing
 (b) Lawyer cannot negotiate for employment with person involved as party or lawyer in matter which lawyer is
a judge, law clerk, arbitrator, 3P neutral
o Law-clerks may negotiate, but only after notifying judge

(c) If lawyer is disqualified under (a), the firm is not disqualified if it:
o 1. Screens the disqualified lawyer
o 2. Gives written notice to the parties
o 3. Attorney does not share in the fees from the particular matter
VI. Advising Clients:
 Generally:
 When you have an individual as a client, they may come to you for legal advice. Rule 2.1
 Rule 2.1:
 A. When representing a client, a lawyer shall
 1. Exercise Independent Professional Judgment
 2. Give Candid Advice
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o
o
In doing so, you may consider the law and moral, economic, social, and political factors that are
relevant to your client’s situation
Offering Your Advice (Cmt. 5):
 You generally have no duty to give advice unless its sought—but you may offer your advice
 But, if the client may take action that will likely result in substantial adverse legal effect, you
may volunteer your advice to the client
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
Effect:
o Give your client truthful advice that is not just legal assessment, but candid facts—these may be
unpleasant
o You can present them in an acceptable form, but you should not be deterred from being honest and
candid just because it may be something they don’t want to hear
o Indeed you have the right and the obligation to advise honestly, and independently
 Matters May Go Beyond Law:
o Issues may be family, psychiatric, social work, or business matters
 If consultation with another professional is something a competent lawyer should recommend,
you should make the recommendation
B. Counseling the Client:
 1. Clients may not always be forthcoming
o You should be skeptical of your client’s version of the facts
o Do your best to learn more each session to acquire more facts and documents, putting together the
story
 2. Styles of Counseling
o A. Client-Centered
 You are a zealous advocate for your client, and base everything you do on what they want
 Client defines relationship, and you are passive
o B. Counsel as Friend
 Be supportive, but also give them your opinion in addition to legal advice
 More human connection, discussion and honesty between parties
 They obviously have decision making power per 1.2, but you’re clear to them your opinion
o C. Counsel for Justice
 Determine from the situation what the just outcome is, and advise and steer your client
towards that result
o D. Contextual Counsel
 Hybrid of the friend counseling and justice counseling
B. Limitations on Client Counseling:
 1. 1.2(d) Crime or Fraud
o A lawyer cannot counsel a client to engage or assist in conduct that is known to be criminal or
fraudulent
 However:
 You may discuss the consequences of the proposed conduct
 You may counsel on the meaning and scope of the law
 Note:
 Just because a client uses your advice for fraud does not necessarily mean you
violate 1.2(d)
 There is an unclear distinction between counseling on scope of the law
and recommending how to commit a crime
 If you already represent someone, and determine that they are acting in a way as to
use your services for crime or fraud, you must withdraw per 1.16(a)
o It is not unconstitutional to limit a lawyer’s ability to advise:
 Milavetz v. US: Supreme Court held that lawyers are “debt relief agencies,” but law that
prevents DRAs from incurring debt to file bankruptcy only prohibited lawyers from “advising
people to incur more debt when the impelling reason is for bankruptcy”
 If there is another reason, may be acceptable
 2. Skill, Ability, Competence
o 2.1 n. 4: matters may go beyond legal advice, and if a competent lawyer would recommend seeing
another professional, you should make the recommendation
C. Clients with Diminished Capacity—1.14:
 1.14:
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o
o
1. A lawyer must try to maintain a typical client-lawyer relationship as reasonably possible, despite a
client’s diminished capacity to make adequate decisions, based on minority, mental impairment, or
other reason
 Effect:
 You must make a reasonable effort to go out of your way to accommodate the client
 And, 1.4 communications must be made in a way that can be understood to the client
2. If a lawyer reasonably believes the client is at risk of physical, financial, or other harm, and cannot
act in their own best interest:
 1. May take reasonably necessary action, including consulting individuals that have the
ability to help protect
 EG:
 Father has dementia, you may seek out their older children to help
 2. In appropriate case, lawyer may seek a guardian be appointed
 Guardianship should not be sought unless there is no less drastic action
 Take the Least Restrictive Action:
 If sought, should be limited to the issue, and less than a general guardian
unless needed
o


3. If you are taking action pursuant to this rule, you are impliedly authorized, meeting 1.6, to disclose
confidential information to the extent reasonably necessary to protect the client
 EG:
 You seek out a neighbor of your client who is being beaten and abused, and ask if
she can take the kids in the meantime…this may be appropriate under 1.14(c)
Emergency Legal Assistance:
o If there is exigent and potential harm to health, safety, or finances of client with diminished
capacity, the lawyer may take action on behalf of the client even though they cannot express their
judgment
o Should be careful not to disclose confidences
o Should not act unless you believe there is no one else to do so
Determining Capacity:
o Infancy, retardation, dementia, inability to articulate reasoning, variability of state of mind, consistency
of decision with the long term commitments and values of the client
VII. Negotiations and Dealing with Represented Parties:
 A. Dealing with Represented and Unrepresented Parties as an Attorney, and Third Party Neutral:
 4.2: Represented by Attorney:
 A lawyer cannot communicate with a person who is known to be represented by a lawyer in the matter about the
subject of the case
o Unless:
 Consent of other lawyer
 Authorized by Law or Court Order
o Effect:
 You have to go through someone’s lawyer to communicate with them
 Even if they attempt to contact you, you must end it and go through the attorney
o Does Not Apply To Matters Outside of Representation:
 Weather, dinner, etc…do not apply and will not be disciplined for it
o Communication with a Represented Organization:
 4.2 (n.7)
 This rule applies to the constituents of an organization who:
 1. Supervise, Direct, or Consult with General Counsel Concerning the matter
 2. Are Authorized to obligate the organization with respect to the matter (Settle) or
 3. Whose act is at issue
 4.3: Unrepresented by Attorney:
 When you have a client, and you deal with a person who does not have a lawyer
o 1. You may not state or imply that you are disinterested
o 2. If they misunderstand your adverse role, you must make reasonable efforts to correct it
o 3. You cannot give any advice to unrepresented person, other than advice to get an attorney
o Note:
 However, you may negotiate with and communicate with these parties on behalf of your client
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2.4: Lawyer as Third-Party Neutral:
 A. You are a third-party neutral when you assist 2 or more people who are not your clients to reach a resolution
o Includes: Arbitrators, mediators, or other capacity
 B. You must inform the unrepresented parties that you are not representing them
o If there is confusion, you must explain your role to the party, and the difference between 3P netural
and attorney
B. Negotiations:
 A. 4.1:
 In course of representing a client, a lawyer cannot knowingly:
o 1. Make a false statement of material fact or law to a third party
 Effect:
o You must be truthful, but generally you have no affirmative duty to inform an opposing party of facts
 May even be prohibited by Confidentiality, or Privilege
o Example:
 Client comes to you and says he was drunk when he drove, but the police don’t have evidence
of it. If they ask you, you have no duty to disclose it—and cannot with A-C privilege or
Confidentiality—but you also cannot make a false statement of fact
 Certain Statements May be Puffed and Are Not Questions of Material Fact:
o Certain statements, under accepted negotiation principles may be puffed and are usually not taken at
their face value as fact:
 1. Estimates of price or value
 2. Party’s intention as to acceptable settlement claims
 3. Existence of Undisclosed Principal
 Overall:
o A lawyer may not be fraudulent or tortuously misrepresent something, but there is not any greater duty
for a lawyer to adhere to
 B. The Duty to Disclose Information:
 Generally:
o 4.1(cmt.1): You have no affirmative duty to disclose to opposing party
o Just a Duty not to make false statements
 Exceptions:
o 1. Death of your Client:
 You must disclose this to opposing party as it ends the agency relationship
 There is no principal anymore, and the claim is therefore dead
o 2. Rule 3.8 Special Duties of a Prosecutor:
 (a) A prosecutor may not prosecute a charge he knows is not supported by probable cause
 (d) Prosecutor must make
 1. Timely disclosure to defense of all evidence or information known that tends to
negate guilt or mitigates offense
 2. In sentencing, disclose to defense all unprivileged mitigating information known
 Note:
 This stems from a Constitutional requirement interpreted in Brady v. Maryland,
which required disclosure of material evidence favorable to the accused
 US v. Jones: The Death of State Witness does not count
 It only affected the ability to prove the case, but it did not cast doubt on ∆
 C. Authority to Negotiate:
 Generally:
o The lawyer has the authority to negotiate for the client within the scope of representation to advance
the client’s objectives
 1.2 Client’s Final Authority over Certain Issues and Objectives and the Attorney must communicate with
the client as to how means are pursued:
o 1. Waive Trial by jury
o 2. Plead
o 3. Testify
o 4. Settlement
 A Lawyer must communicate with the client issues requiring his informed consent
 This includes settlement
 1.4 comment 2/5:
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Lawyer must promptly inform the client of a settlement offer received, unless
client as already indicated it is acceptable or unacceptable or the attorney has
authority to accept or reject an offer
Policy:
 Attorneys must pass on settlement offers because, per 4.2, attorneys are required to
only communicate through attorneys
 Thus, the attorney must pass on information to the client
D. Limitations on the Results Reached in Negotiation:
 1. A Lawyer May Use of Criminal Action as Negotiation Leverage in a Civil Case
o There is no restriction, and the ABA has, in opinions, stated that a lawyer may use the possibility of
criminal charges in negotiations if they have foundation in fact and law
o However:
 You cannot threaten to report an opposing counsel for disciplinary violation
 If applicable, you must simply report it—not threaten
 2. May Not Negotiate Lawyer’s Duty to Disclose
o A lawyer may not negotiate his duty to report under 8.3(a) in negotiations
 3. Rule 5.6 Agreements to Restrict Practice are Prohibited:
o A. A lawyer may not participate in offering or making an agreement that restricts the right of the
lawyer to practice after termination
 Except:
 An agreement concerning benefits upon retirement
o B. A lawyer may not participate in offering or making an agreement to restrict the lawyer’s right to
practice as part of a settlement for client
o Policy:
 Limits the lawyer’s ability to practice and it limits the ability of client’s to find a lawyer of
their choice
o Note:
 Although you may not agree to restrict your future practice—i.e., that you will abstain from
representing clients on a particular matter in the future—if you have gained knowledge of
some claim due to your representation of a client, if that client agrees in settlement to not
disclose something, and you are not authorize to disclose it, you may not
 EG:
 In client’s case, large products liability issue arises—in settlement, client agrees to
not disclose the product defect—per 1.6, this relates to your client and you may not
disclose the defect—thus your ability to pursue that type of case in the future is
limited
 4. 1.8(g) Aggregate Settlements
o A lawyer may not enter into an aggregate settlement of clients unless each one gives informed consent
in writing
VIII. Advising Corporation, Entity Client, and Third Party Opinions
 1. Advising Corporation, Business Entity:
 A. Rule 1.13 (a) Duty is Owed to the Corporation:
 If a lawyer is employed or Retained by an organization, the client is and duty is owed to the corporation
o The Corporate Constituents Are Part of Your Client:
 Because your client is a legal entity, it has to act through its constituents
 Constituent Communications are Confidential Under 1.6:
 When these constituents communicate with the lawyer in their organizational
capacity, it is protected under 1.6
 They Do Not Become Your Client:
 Note that, even though the constituents communicate with you and that is
confidential, they are not your client
 Scope of Rule:
o This rule applies to corporations (private and public), government agencies and organizations
 2.1 Duty to Advise Exists For Corporate Client:
o You generally have no duty to give advice, but for a client, if they are likely to take action that would
result in substantial adverse legal consequences to the client, Rule 1.4 communication may require you
to give advice
o Example:
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In case of corporate client who thinks they have estimated the damages of a potential faulty
product accurately, you may offer advice that they’ve underestimated punitive damages
 Additionally, per 2.1, you may advise on economic, social, and other factors—such as
damage to business reputation
B. 1.13(b) Potential Harmful Action of a Constituent—Go Up the Ladder
 If the lawyer knows an officer, employee, or other person will engage in an action that
o 1. Violates a legal duty to the corporation
 Example:
 Officer is breaching or will likely breach a fiduciary duty
o 2. Or, violates a law that will be imputed to the corporation, and
 Example:
 Mass tort of selling faulty product
o 3. Is likely to result in substantial injury to the corporation
 Lawyer must act in way reasonably necessary to the corporation’s best interest
o Method of Action:
 Unless lawyer reasonably believes it is not necessary, the lawyer must refer the issue to a
higher authority, up to the highest authority in the organization
 Note:
 The language presumes that you will act, unless you believe it is not reasonably
necessary
 In all, the question arises—is a constituent of your client going to hurt your client—if
so, you must act
 Things to Consider in Using 1.13(b):
o 1.13(b) lets you go beyond the constituent your dealing with, and above them to report the matter
o You should consider the seriousness of the issue, its potential consequences, motivation of the
constituent
 In your 2.1 advising role, it may be appropriate to simply ask the constituent to reconsider his
action
 If this works—may not be necessary to report it
 But, if this fails, 1.13(b) may need to be complied with
C. 1.13(c) Reporting Beyond Corporation If Top Of Ladder Fails:
 You may report beyond the highest authority:
o 1. If you have reported to the highest authority, and they fail to address in a timely and appropriate
manner that is clearly a violation of law and
o 2. You reasonably believe that the violation is reasonably certain to substantially injure your client
o 3. You may reveal information to an outside source to the extent reasonably necessary to prevent the
substantial injury
 Note:
 It is ok to reveal information, even if it would violate 1.6 in this situation
 In this case, you are essentially replacing the constituents decision making ability of
your client with your own judgment
 Example:
 If your client is selling products that are highly flammable to children, and the
highest authority fails to act, you may be under 1.13(c) able to go to the Consumer
Safety Protection Board, or another source you believe reasonably necessary

Relation of 1.13(c) and 1.6:
o 1.13 gives you specific rules for dealing with your client, and when disclosure can be made outside of
the entity your represent
o However:
 1.13(c) operates as a supplement to 1.6—thus, you may disclose for reasons in 1.6(b) and in
1.13(c)
 Example:
 Flamable pajamas being sold by your client may be capable of being
disclosed under 1.6(b)1 (substantial injury or death), and 1.13(c)
 Note:
 1.6 protects a 3P, while 1.13 protects your client—the organization
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1.13(d): The Duty to Report Outside of the Organization May Not Apply In 2 Scenarios:
o 1. If you are representing the organization in an internal investigation of law or
o 2. Defending an organization against a claim
D. 1.13(e) Discharge of Lawyer Who Complies with 1.13:
 If lawyer reasonably believes he has been discharged because of actions under 1.13(b) or (c), the lawyer must
proceed in reasonably necessary manner to make sure the organization’s highest authority is informed
E. Dealing with Corporate Client’s Constituents—1.13(f):
 Like Rule 4.3, where there is a duty when dealing with an unrepresented party to assure that they understand the
lawyer does not represent them, 1.13(f) exists
 Rule:
o When a lawyer deals with corporate constituents—directors, officers, employees, members, etc—the
lawyer must explain who his client is when the client is adverse to the constituents
F. Concurrent Representation of Corporate Client and Its Constituents—1.13(g):
 The lawyer representing the organization may represent its constituents if 1.7 is complied with
 To get 1.7 consent by the corporation, a constituent other than the constituent who seeks dual representation is
required
G. Lawyer Liability for Failure to Comply with 1.13:
 Although 1.6 states you may not be liable for failing to disclose under 1.16(b), it appears that you may be liable
for failure to comply with 1.13
o Several cases have found a lawyer liable to:
 1. The Corporate Client, based on failure to disclose up the ladder what constituents may do
 2. To Third Parties
H. Corporate Lawyer Who is Also A Director For Corporation:
 Not Forbidden by the Rules
 There may be a conflict between the client and lawyer’s personal interest
o If it will compromise professional judgment, should withdraw from either or both
o Lawyer should note the conflict, and assure that parties at board meetings know the communications
likely will not be privileged
2. Legal Opinions to the Client, to a Third Party, and to Auditor:
 1. Opinion to Your Client:
 A. A Lawyer must still comply with 2.1 In Furnishing Opinions:
o Must exercise your independent professional judgment and be candid
 Effect:
 A client cannot simply “purchase” the opinion he or she wants
 You must give an honest legal opinion, whether beneficial or harmful to your client’s
position
 This resembles your advice in 2.1—same idea, simply in writing
 B. 1.2(d) Must be Complied With:
o You must not counsel your client or assist a client to engage in conduct that is known to be criminal or
fraudulent
 But:
 You may discuss the consequences and the scope of the law
 C. Tax Opinion:
o Like any other opinion, the tax opinion must also be given in an independent manner, and candidly
o Under 2.1, this opinion must be objective—cannot simply be purchased
o Requires:
 “A Reasonably basis” to give tax opinion advice
 2. Opinion to Third Party:
 A. Fairness to the Opposing lawyer and Party:
o 1. Rule 3.4:
 (a) obstruct another’s access to evidence or alter or destroy it
 (b)A Lawyer may not falsify evidence, counsel witness to testify falsely,
 (d) in pre-trial, make frivolous discovery requests or fail to make reasonable effort to comply
with a request
o
2. Rule 4.1:
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While representing a client, a lawyer may not knowingly make a false statement of material
fact to a third party
 B. Rule 2.3 Evaluation Opinions for Use By Third Party
o Generally:
 Often, your client may request that you furnish a legal opinion to a third party
 May arise by client’s request, or if a third party requires one of your client, the client may
then ask you for one
 The Evaluation:
 Is an investigation of your client, and the giving of an opinion regarding some legal
issue
 Note—this only applies when your client is being evaluated by you
 Not if your client wants you to evaluate some 3P
o Duties Owed to 3P:
 As a result of 4.1, and rule 2.3 cmt.5, and restatements, a lawyer has a similar duty of candor
to a 3P as you do to your client
 1. Must give independent, fair candid professional advice
 2. Third Party Does not Become Your Client
o Rule 2.3:
 1. A lawyer may provide an evaluation of matters affecting the client for a third party if the
lawyer reasonably believes that making it is compatible with other aspects of lawyer’s
relationship with the client
 Compatibility:
 Depending on the scope of your representation of a client, giving a third
party an opinion about your client may or may not be compatible
 Depends on scope and what the opinion asks for
 2. If lawyer knows or should know that the opinion/evaluation of the client is likely to affect
the client’s interests materially and adversely—lawyer must have informed consent to give
opinion
 3. Information relating to an evaluation is still protected by 1.6
 Must Comply with 1.6
 Need informed consent to disclose certain things, unless disclosure is
authorized
3. Opinion to Third Party Auditor:
 General:
o Historically, it was unclear what a lawyer would need to disclose to an auditor—some information was
confidential, some was required by the auditor—the gap needed to be bridged
 Issues:
 1. Waiver of Privilege
 2. Violation of 1.6
 3. Creation of Liability for you and client that otherwise wouldn’t have occured
o ABA/AICPA Treaty:
 Determines what a lawyer should disclose to the auditor
 Treaty Components:
o Loss Contingencies:
 When a client requests it, it is appropriate for a lawyer to furnish the following information
 1. Overtly Threatened or Pending Litigation
 2. Contractual Obligations
 3. Unasserted Possible Claim which the client has specifically identified and the
client has requested
o Valuation Estimates:
 1. A lawyer should not express judgment on the outcome of the liabilities unless it is
 A. Probable: prospects of claimant not succeeding are extremely doubtful
 B. Remote: prospects of claimant are slight, and extremely doubtful client will lose
 2. Value
 Lawyer should only provide an estimate of amount of loss if he believes the
probability of inaccuracy is slight
4. Lawyer Liability:
 1. Restatement §51
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A lawyer may be liable to a non-client if that non-client is invited to rely on the opinion and they
actually so rely
 1. Greycas v. Proud: If you fail to fail to investigate the client, you may be liable to a third
party if you represented to them that you did indeed investigate them
 Civil Liability
 2. US v. Sidley Austin: Aggressive tax shelters that you give a legal opinion on may create
liability to the client who was harmed by the opinion
 3. Krieger v. Orshoski: Opinion given to client, where a third party relied on the opinion
created liability of attorney to the third party
IX. Litigation:
 A. Basic Governing Rules:
 1. 3.1 No Frivolous Suits:
 A Lawyer may not bring or defend a proceeding, unless there is a basis in law and fact to do so that is not
frivolous
 Requires a good faith argument for extension, modification, or reversal of law.
 In Criminal Case:
o It is not frivolous to require every element of an offense be established
 Cmt. 2: It is not frivolous to:
o 1. File an action or defense before facts have been substantiated
o 2. File an action expecting to find evidence only by discovery
o 3. File an action even though a lawyer believes his position will not win
 FRCP 11 Acts As Supplements:
o Ratchets up the requirement that a lawyer conduct a “reasonable inquiry” into the matter
o Requires Attorney of record certify that after reasonable inquiry:
 1. Not presented for improper purpose to harass or cause delay
 2. Is warranted by existing law and is not frivolous argument, and
 3. Is based on facts that have or are likely to have evidentiary support
 2. 3.2 Duty to Expedite Litigation:
 Rule:
o A Lawyer shall make reasonable efforts to expedite litigation consistent with client’s interests
 There are times where expediting may not be available, but:
o It is not reasonable to fail to expedite:
 1. To frustrate the opposing party

2. Realizing a financial or other benefit from an improper delay is not a legitimate client
interest
 Note:
 Thus, although the rule states “consistent with client interests,” of which
many might be to save money—the notes offset this and limit it
 3. 3.4 Being Fair to the Opposing Party:
 Rule:
 A Lawyer may not:
o 1. Assist another or obstruct another party’s access to evidence, or unlawfully alter, destroy, or coneal
materials that may have evidentiary value
o 2. Falsify evidence, advise or assist someone in doing so
o 3. Advise or counsel someone to testify falsely or induce ($) a witness improperly
o 4. Make a frivolous discovery request or fail to make a reasonably diligent effort to comply with one
o 5. At Trial:
 Allude to a matter that is not relevant or not supported by admissible evidence
 Assert personal knowledge of facts, except as a witness
 Give Personal Opinion
 1. As to culpability, guilt, or innocence
 2. As to justness of the cause
 3. As to credibility of a witness
 Note:
 A lawyer may present the evidence—“we believe the evidence fails to show
guilt” but may not say “ I think, or I know”
o 6. Request a person other than a client to refrain from voluntarily giving information, unless
 1. It is Client, or their relative, employee, or agent of client and
 2. Attorney reasonably believes person’s interest will not be adversely effected
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4. 3.5 Impartiality In Court;
 A lawyer may not:
o 1. Seek to influence a judge, court official, juror, or potential juror by means prohibited by law
o 2. Communicate ex parte with judge, court official, juror, or potential juror, unless permitted by law or
court order
o 3. Communicate with a juror or prospective juror after discharge of jury if
 1. Court order or law prohibits
 2. Juror has made known he doesn’t want to be talked to or
 3. Communication harasses, durres, or misrepresentation
5. 3.7 Lawyer As Witness:
 A lawyer may not be counsel in an action he knows he will be necessary as a witness, unless
o 1. Testimony is related to an uncontested Issue
o 2. Testimony relates to nature and value of legal services rendered
o 3. Disqualifying lawyer would be a substantial hardship on client
 Balancing Test:
 Must balance chance of misleading jury with prejudice on client

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Not Imputed To Lawyer’s Firm:
o Attorney’s in your firm may still be counsel even if attorney is a witness, unless 1.7 or 1.9 would
preclude
 Policy:
o It is generally thought to be confusing to the jury if they were to see a lawyer argue for the client and
than act as a witness
 6. 3.9 Lawyer in a Non-Adjudicative Proceeding:
 When a lawyer represents a client before a non-trial, he has a duty to disclose his representative capacity
o Rule 3.3 Applies (a)-(c) applies
o Rule 3.4 Applies (a)-(c) and
o Rule 3.5 Applies
 Non-Adjudicative Proceedings:
o Legislature, municipal council, administrative agencies, executive agencies
B. Litigation tactics:
 Rule 8.4(d)
 A lawyer may not engage in conduct that is prejudicial to the administration of justice
o Cmt. 3:
 Lawyer violates this by knowingly manifesting by words or conduct, bias or prejudice, based
on sex, religion, race, disability, age, sexual orientation or socioeconomic status
 Example:
 A lawyer who dresses very poorly to influence the jury may violate this
 A. Attire in Court:
 Some courts do regulate it
o Policy:
 Effects the jury’s perception of client and merits of case
 However, it is extremely difficult to draw a line that deciphers between permissible attire and
impermissible attire
 We want each party to be capable of being themselves, and presenting their case
 We also want an outer limit on acceptable means of doing this
 B. Jury Selection:
 The use of peremptory challenges based on race or sexually discriminate reasons has been struck down
o Constitutional Law has held these two reasons are impermissible based on a citizen’s right to sit as a
juror and avoid oppression
o However, it is not a violation of 8.4:
 Cmt. 3:
 A finding that a peremptory challenge was exercised for a discriminatory basis does
not alone establish a ethical rule violation
 Effect:
 Even though constitutional law has held it impermissible, ethics rules do not
necessarily prohibit it
 C. Cross-Examination:
 A. Rule 4.4:
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An attorney may not use means that have no substantial purpose other than to
 Embarrass
 Delay or
 Burden a Third Party
o Effect:
 The American system is based on cross-examination—even though this rule exists, this truth
finding function really isn’t limited at all—must be fair, and cannot unnecessarily intimidate
or humiliate
 You may cross examine party you believe is honest, make an honest party look stupid or
dishonest That is the adversarial system
 B. Rule 3.4 (e):
o A lawyer may not elude to a matter that is not relevant or supportable by admissible evidence
 Example:
 In trial, having your very attractive secretary go talk to the plaintiff to make it seem
as though he has a relationship with another women, is dishonest…etc…
 Probably violates 3.4, and 3.5 improper influence
 C. Rule 3.4 (a)(b):
o May not falsify evidence, alter it
 In cross examination, therefore, you cannot pretend to read some document that doesn’t exist
or say you have evidence you do not
 3.4(e) Violation As Well:
 eluding to matter not supportable by admissible evidence
C. Deception in Investigation:
 A lawyer may not be able to deceive someone in the name of law enforcement
 Pautler Case
o Serial Killer called police officers, and asked to speak to defense lawyer. Prosecutor got on the phone
and acted like his defense lawyer. Serial Killer was brought in, arrested, and sentenced to death
o Lawyer Violated Ethical Rules:
 1. 4.3-acting disinterested while representing a party and dealing with an unrepresented party
 2. 4.1-making false statement of material fact
D. Inadvertent Disclosure of Privileged Information:
 Rule 4.4:
 A lawyer who receives a document relating to the representation of the lawyer’s client, and knows or should
know that the document was sent inadvertently must promptly notify sender
 Note:
o Must notify sender so that they may take protective measures
o Read or Unread:
 There is no duty not to read or use the inadvertently sent document
 No enumerated duty to return
 It is a matter of professional judgment and personal choice
o Court’s Potential Choices:
 If petitioned, a court may order you to return the document, and any copies made
 Court could potentially disqualify lawyers who read or used information
 However, a court may also decide that it will not reward carelessness—and therefore, permit
the recipient to use the information
 Distinguish From Intentionally Sent Information:
 If a disgruntled employee, or whistleblower sends the information—rather than an inadvertent slip or mistake—
the ABA recommends a different course of action
o 1. Refrain from reviewing, other than to determine how to proceed
o 2. Notify the party
o 3. Comply with their wishes
o Policy:
 It appears that the ABA has distinguished a mistake—one which may not be protected—from
intentional misconduct of an employee or party on the sending side, which may not be able to
be guarded against
E. Duty of Candor with the Court:
 Rule 3.3—A Lawyer may not knowingly
 1. Make a false statement of fact or law to trial, or fail to correct a false statement of material fact or law
made by the lawyer
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Note:

Policy:
 Based on the idea of the lawyer as an officer of the court—and to protect the
integrity of the court
 1. Duty to correct only extends to material fact—avoids de minimus concern of minor
misstatements
 EG: you said something occurred at 3:15, you find out it was 3:20.
 2. You have no duty to correct another lawyer
o No General Duty to Disclose or Volunteer Facts:
 Although you cannot make a false statement, you have no duty to disclose facts
 Except for certain physical evidence; see infra
 Policy:
 Our system is based on adversarial methods
 We do not want attorneys to do work for the other side
 Adversary is expected to present
 Facts are generally discoverable—if the other side doesn’t discover them,
than so be it
 Would be a violation of your 1.6 duty of confidentiality
 Per 1.6(b)(6), some disclosure is “permitted by law”
 FRCP 26 requires in Civil Discovery that certain things
such as (1) name of each individual likely to have
discoverable information, and subjects of that
information, categorized
o Statement:
 May be an assertion, or it could be a failure to make a statement
 By you or your client
 Not a 3P, or the Judge
 If your client makes a misrepresentation, you may have a duty to correct it
 Could be a violation of 1.2(d), not assisting client in committing fraud
 Example:
 Standing by idly while your client makes false statements, or uses a false
name is an example of silence being a false statement by an attorney
2. Duty to Disclose Adverse Authority
o A lawyer must disclose legal authority
 (1) that is controlling
 (2) and directly adverse if the other side has not disclosed it
o Directly Adverse:
 It may include dicta, or arguments by analogy
 Policy:
 1. This is contrary to the policy taken by having no duty to disclose facts and the
adversarial system
 But, here we want law, in general, to be consistent—because a case affects
subsequent cases, we want that case to be decided on the appropriate law
 2. Judicial Economy
 Trial courts are burdened, so we use attorney’s as a means of supplementing
the trial court’s research
 3. Statement of Good lawyering
 A good attorney will take a case that may be considered directly adverse,
and distinguish it, restrict its application, or get it overturned
 Merely a policy statement of good lawyering
 4. Lawyer as Officer of the Court
 This duty bolsters the need for the attorney to be an officer of the court
3. Duty to Disclose In Ex Parte Proceeding
o The attorney does have a duty to inform the court of all material facts lawyer knows
 Policy:
 Unlike traditional trial, where there is an other side and an adversary who may do
work, in an ex parte proceeding—there is no other side to do work or contradict your
facts
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

Therefore, lawyer acts as supplementary role of adversary and must disclose
 Note:
 Prosecutors do not have this duty in a Grand Jury Proceeding
4. Dealing With False Evidence and False Testimony:
o 1. A Lawyer must not knowingly offer evidence that is false
 Note:
 A lawyer may refuse a client’s insistance or wish to do so
o 2. If that lawyer finds out evidence is false, or a witness or client testified falsely, lawyer must take
reasonable remedial measures
 Including alerting the Court
 Duration of the Obligation to Correct False Statement:
 3.3(c)
 The duties stated apply until the conclusion of the proceeding
 Occurs when:
 Final judgment is affirmed on appeal
 Or, time for review has passed
o
3. A Lawyer may refuse to present evidence he reasonably believes is false, other than the testimony
of a criminal defendant
 Lawyer’s Choice:
 If reasonable belief, the lawyer may refuse to present, but is not required to
 Does not Apply to a Defendant in a Criminal Case
 Criminal Defendant and False Testimony:
 If only a reasonable belief, may not refuse to let criminal ∆ testify
 If lawyer knows of false testimony
 1. Should persuade client not to do so
 2. Attempt to refuse to represent and withdrawal
 3. If all else fails, the lawyer must disclose the false testimony of the
defendant to the trial court
 Then, trial court will decide how to pursue
 See discussion, infra
 Note:
 Disclosure to the court is not a violation of 1.6 in these instances
X. Attorneys’ Handling of Physical Evidence:
 A. Client ID:
 Normally, this is not confidential and you are impliedly authorized to disclose
 Additionally, normally the client identity may be compelled as non privileged
 However:
o Restatement §69: Whether or not identification is privileged is based on whether the release of the
identification would reveal the content of the privileged information
o “Last Link Doctrine”
 extends the privilege to non-privileged information if revealing it would reveal privileged
information
 Therefore, though not normally privileged—it may be in certain instances
 How far does an attorney have to go to defend:
 You must raise all non-frivolous defenses to the compelled disclosure of information that may be confidential
and privileged
 But, again you do not have to go to jail to defend it
 B. Physical Evidence:
 A. General Duty—Restatement §119:
 With respect to the fruits or instrumentalities of a crime
o 1. The lawyer may, when reasonably necessary for purposes of representation, take possession of the
evidence and retain it for reasonably necessary time to examine it, subject it to tests
 may not alter or destroy evidence
o 2. Following this, the lawyer must notify prosecuting authorities of the lawyer’s possession of the
evidence or turn it over to them
 Policy:
o We do not want defense attorneys to become a repository for fruits and instruments of crime
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o
Otherwise, would negate any evidence finding function of the adversarial system—would be no way to
use evidence

Effect:
o 1. The fruits and instrumentalities of a crime, therefore, are not privileged
 Must comply with subpoena for such information
o 2. Rule 3.4:
 Cannot Alter or Destroy or Conceal Evidence that you have or are given
 Must comply with §119, and applicable law that requires disclosure
 Cannot wipe the gun clean of fingerprints, or alter evidence!
 18 U.S.C. §1519:
 It is a federal crime to alter or destroy evidence
 Punishable by up to 20 years in prison and a fine
o 3. Only applies to “Fruits and Instrumentalities”
 The gun or the bag of money
 Tape recordings, photographs, and other tenuously connected things may not need to
be turned over
 Armani Buried Bodies Case:
 Murderer was caught and while with his attorney, notified the attorney of two other
murders and rapes he had committed, and where these bodies were buried. The
lawyer did not disclose where the bodies were buried to authorities.
 This was considered confidential and privileged information
 No duty to disclose, and can’t be compelled to disclose
 Note:
 If lawyer reasonably believes people may be alive, disclosure would be
permissible under 1.6(b)(1) to prevent reasonably likelihood of substantial
bodily harm or death
 In this case:
 The lawyer did not tell of where bodies were buried—client was convicted.
Prior to the client’s conviction, the client told the attorney where he might
hide if he ever escaped. He eventually did escape, and the lawyer told the
police what the client had said—this was permissible under 1.6(b)(1) as a
convicted serial killer may lead to reasonable likelihood of death
 In all, the duty to disclose physical evidence is very narrow
 B. Document Retention Policies:
 Most corporate clients have some type of destruction policy
o Your advise to comply with this policy is largely acceptable and does not violate any rules of
destroying evidence
 When investigation anticipated or Ongoing:
o You likely cannot tell them to comply with document destruction policy
o Alert them of litigation hold
 Potential Effect:
 1. 1.2(d)

you may be affording the client legal advice in pursuance of a crime or
fraud
 2. 18 U.S.C. §1519
 If compliance with the policy is with “the intent to impede, obstruct, or
influence the investigation” criminal obstruction may ensue
 C. Overall:
 1. Have limited duty to disclose certain physical evidence if fruits or instrumentalities
 2. Have duty not to destroy, conceal, or alter any evidence that may be used
 3. Counseling client of evidence’s potential subpoena or damning nature may violate 1.2(d), and perhaps, you
can avoid communicating with them if you comply with 1.4, cmt. 7
o You may be justified in delaying communication if you believe the client would react imprudently
XI. Media Relations in Litigation and Special Duties of the Prosecutor:
 1. Media Relations:
 A. 3.6 Applies to any lawyer
 3.6(a)—A lawyer who is participating or has participated in the investigation or litigation of a matter shall not
make an extrajudicial statement that the lawyer knows or should know will:
o 1. Be disseminated by public communication and
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o

2. Will have a substantial likelihood of materially prejudicing the proceeding
 Note:
 Only applies to lawyers participating in matter
 Policy:
 This is an attempt to strike a balance between the public’s right to knowledge about
legal matters that might affect it and the lawyer’s first amendment right, with the
right of the fair trial
 However, the public does have a right to know about threats to safety and security
 And, it also has a right to knowledge of judicial proceedings
 3.6(c) Right to Reply:
o A lawyer may make a statement that a reasonable lawyer would believe is required to protect a client
from the substantial prejudice of a statement in (a)
 3.6(b)—However, there are enumerated communications that a lawyer can make, despite material
prejudice:
o 1. State the claim, offense, or defense involved, and if not prohibited by law the identity of the person
involved
o 2. Information in the public record
o 3. That an investigation is in progress
o 4. Scheduling or result of litigation
o 5. Request to the public to obtain evidence and information necessary
o 6. Warning of danger concerning behavior of person involved, if there is liklihood of harm to public
o 7. In Criminal Case
 1. The identity, residence, occupation, family status of the accused
 2. If accused hasn’t been caught—information necessary to aid in catching
 3. Fact, time, and place of arrest
 4. Identity of invstigating officers
 B. 3.8(f) Media Relations of Prosecutor:
 In addition to complying with 3.6, a prosecutor must also comply with 3.8(f)
o Except for statements that are necessary to inform the public of the nature and extent of prosecutor’s
action or for a legitimate law enforcement purpose
 (1) A prosecutor may not make a statement that has a substantial likelihood of
heightening public condemnation of the accused
 (2) The prosecutor must exercise reasonable care to prevent investigators, cops,
employees, and other persons from making such statements
o Note:
 This does not restrict what the prosecutor can say under 3.6(b)
 C. Civil Liability May Still Exist:
 Even if you comply with rule 3.6, and it is a permissible statement, there is a chance that the attorney may still
be civilly liable
 Kennedy v. Zimmermann, held that compliance with this ethical standard did not protect the lawyer from
defamaton
2. Special Duties of Prosecutor:
 General:
 The prosecutor has special role to minster justice
 A. Rule 3.8:
 (a) a prosecutor not prosecute a charge that the prosecutor knows is not supported by probable cause
 (b) prosecutor must make reasonable effort to assure accused has been advised of rights to obtain counsel
 (c) prosecutor must not seek to obtain waiver of important pre-trial rights from unrepresented
 (d) Prosecutor must make disclosure of exculpatory evidence that prosecutor knows of that may negate guilt or
mitigate sentence
o Premised on Brady v. Maryland’s constitutional requirement, but is much broader
o At Preliminary hearing:
 US v. Williams:
 There is no requirement to disclose exculpatory evidence
 The grand jury’s purpose is to decide whether there is enough evidence to charge,
not to balance conflicting evidence
o However, Afterwards:
 3.8(d) will require disclosure for trial
 (e) Sobpeona of Defense Attorney
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o
A prosecutor cannot subpoena a defense attorney unless they reasonably believe:
 1. Information sought is not protected from disclosure
 2. Evidence sought is essential to ongoing investigation or prosecution and
 3. There is no other feasible alternative
 Policy:
 The defense lawyer’s role may be confused, and eroded
 The client comes to his lawyer to discuss things, but if the defense lawyer is
merely going to have to give information to the prosecution—may erode
confidential information and A-C privelege relationship
 B. Prosecutor has large discretion on what and whether to charge:
 1. US v. Goodwin:
o prosecutor may file heightened charges, additional charges, or forgoe legitimate charges
o This is true when the prosecutor thought the defendant would plead guilty to a lesser charge
 2. US v. Singleton:
o The prosecution is a power of the sovereign state, and has the ability to chose to immunize, forgoe
prosecution, or leniency of one potential criminal in pursuit of another
o Note:
 Immunity is granted by the court
 You must petition the court, and they must approve it
 C. Corporate Defendants:
 The Justice department prior to 2006, would often engage in negotiations for privileged information from
corporations—if you give us privileged information (such as internal investigations), we will only prosecute the
wrongful individuals, leaving the corporate entity free from prosecution
o The ABA recommends that the Department of Justice refrain from this practice
o Not restricted, but modified to required DOJ official approval
 McNulty Memorandum
 D. Potentially Wrongfully Convicted Defendants and the Duty of the Prosecutor:
 3.8(g)
o When the prosecutor knows of new, credible, and material evidence that creates reasonable liklihood
that convicted did not commit offense, prosecutor must:
 1. Promptly disclose to court or authority
 2. If conviction was obtained in prosecutor’s jurisdiction
 1. Disclose to defendant
 2. Undertake further investigation
 3.8(h)
o when the prosecutor knows of clear and convincing evidence establishing the defendant in prosecutor’s
jurisdiction was convicted wrongfully, prosecutor shall seek to remedy it
 Burden is on the prosecutor to remedy
 Effect:
 Because of the clear and convincing evidence, the prosecutor’s duty in
3.8(g) is ratcheted up in 3.8(h) to remedy the conviction
 Because following conviction, many ∆s do not have an attorney—the ABA
promulgated this rule to put the burden on the prosecutor
X. Lawyer Marketing:
 A. Law Firm Names, Specialization of Lawyers, and Legal Engagements:
 1. Law Firm Names—7.5
 1. May not be false or misleading
o Dead partners may stay on firm letterhead
 “Skadden, Arps” or “Cravath”
 2. Trade Name is acceptable if
o A. is not false or misleading and
o B. Does not imply a connection with government agency
 3. When Law firm has offices in several jurisdictions:
o Lawyer in an office that is not barred in that stated must indicate in letterhead the limitation
 4. Lawyers Who Hold Public Office:
o The name of a lawyer who attains public office must be removed from law firm name during period of
substantial amount that lawyer is not active with the firm
 2. Lawyer Specialization—7.4
 1. You may communicate that you don’t practice a certain type of law
33



2. A person certified in the patent office or admirality practice may state so
3. But, a lawyer may not be “certified specialist” unless:
o A. Lawyer has been certified by an organiation that has been approved by the ABA or State
o B. Name of certifying organization is identified in communication
 3. Political Contributions from Law Firm or Lawyer—7.6
 A Lawyer or law firm may not accept a government legal engagement or appointment if:
o The lawyer or law firm makes political contribution or solicits political contributions for the purpose
of obtaining or being considered for the engagement
o Examples:
 Gift, loan, deposit, or something of value
B. Advertising deals with 7.1 and 7.2:
 History:
 Prior to 1977, lawyer marketing was prohibited and considered poor “lawyermanship”
o No one did so, and referrals were the way work was received
 Bates v. State Bar of Arizona:
o Supreme Court held that it was unconstitutional to prohibit lawyer marketing, as against the 1st
amendment
o Other than fraud or misrepresentation in lawyer advertising, it was unconstitutional to prohibit
 DR 2-101(B):
o The ABA attempted to restrict lawyer advertising, but then enumerated nearly 25 exceptions
 It proved unworkable, as one would have to argue an advertisement fit into a certain
exceptions
 7.1: No Material Misstatements In Advertising
 A lawyer may not make a false or misleading communication about the services
o “False or Misleading”
 a material misrepresentation of fact or law, omits fact necessary to make statement as a whole
not misleading
o May not:
 1. Create unjustified expectations
 2. Make unsubstantiated comparisons
o Limiting Language:
 The use of limiting language, or disclaimer may, however, preclude a statement from being
misleading
 7.2 Advertising:
 (a) A lawyer may advertise subject to 7.1
o Note:
 This standard incorporates Bates
 (b) A lawyer may not give anything of value for recommending their services
o But:
 1. Lawyer may pay for advertising costs
 2. Pay usual charges of a legal services plan or qualified referral service plan
 3. Lawyer may buy a law practice in 1.17
o Reciprocal Referral Arrangement:
 Lawyer may refer clients to a lawyer or to a non-lawyer as part of an agreement with that
party if
 1. It is not exclusive
 Note:
 The lack of exclusivity ensures that a referring lawyer may get the
“best” party to assist his client—not agreed to party
 2. Not indefinite and
 3. Is informed to the clients of the agreement
 Note:
 Even though you may refer to non-lawyer, may not share fee with a non-lawyer as an
under 5.4


(c) Advertising must include the name and office address of at least 1 lawyer in the firm responsible
Policy Concerns of Advertising:
 Questions remain as to whether advertising has benefited or harmed the legal profession
34
o



Public gets to see lawyers who need to advertise most
 High Volume personal injury lawyers
 Class Action law firms with funding to advertise, and need to tap into a class
o Few “bad apples” spoiling the bunch
o Ads, like all ads are designed to market rather then demonstrate what whole profession is about
o But, Advertising is necessary to compete
 Disclosure has lowered prices, potentially
 Reach parties who need representation, and maybe were perhaps ignorant of the law prior
Zauderer:
o 1. Supreme Court held it is not a proper legitimate interest of the state to regulate to avoid increased
litigation
 There is no valid interest in preserving the dignity of the legal profession
o 2. Illustrations within advertisements are protected speech
Television Advertising:
o The same rules against fraud and misrepresentation apply
o Does create unique problem as plays on emotions, great visual and auditory marketing ploys are in
your face
o Highly effective marketing campaigns
 Particularly effective against low and moderate income parties
 Therefore, assists in getting legal information to large sector of the public
 Limiting assumes regulators know what type of law is important to public
 In all, may be beneficial to public, though it paints negative picture about attorneys
D. Solicitation:
 General:
 Unlike advertising, solicitation is largely prohibited
 Policy:
o 1. We are sophisticated, and therefore may be able to overpower and charm our clients into certain
agreements
 Subjects a lay person to the in-person communication with a trained advocate
 Possibility of undue influence, intimidation, and over-reaching by the lawyer
o 2. Lawyers, however, can protect themselves (and may be solicited)
 Supreme Court:
o Has approved the prohibition on solicitation
o Ohralik v. Ohio State Bar Ass’n (1978):
 Lawyer waiting around victims hotel room, essentially got her to agree to his representation
while she was semi-comatose
 Court held that in person solicitation is different from advertising
 Advertising may be evaluated, and left by the client whenever they chose
 However, in person soliciation is pressure filed and cannot be avoided as easily
 Not as protected by the 1st amendment
 7.3:
 (a) A lawyer may not in person, live, by electronic, or real-time, communication, solicit a prospective client
when the significant motive is lawyer’s pecuniary gain, unless:
o
o
o
o
o
1. The prospective client is a lawyer or
2. Is a past client, family, close-personal, or prior professional relationship with lawyer
3. Pro-Bono, or significant motive is not pecuniary gain
4. (c) Pre-Paid Legal Services Group
 a lawyer may participate in a pre-paid group, operated by an organization, that uses in-person
communication to solicit memberships or subscriptions
 (a) solicitation prohibition does not apply
5. Targeted Direct Mail:
 Letters, and mail to people known to have legal issues is acceptable under 7.3
 Unless:
 The party makes it known that they do not wish to receive such mail
 Policy:
 It is not in-person, or live and therefore writing may be avoided by the party
without policy concerns that make up prohibition of solicitation
 Statute Has Restricted:
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

Florida Bar v. Went For It, Inc:
 The supreme court upheld a statute that prohibited plaintiff’s lawyers (not
defense lawyers) from using targeted direct mail to contact victims families
within 30 days of an accident or disaster
 State had a substantial interest in protecting the privacy interest of its
citizens
 Therefore, the 30 day limitation was upheld
(b) “Advertising Material”
o Every written, recorded, or electronic communication soliciting professional employment must include
“Advertising material” on the envelope, or beginning and end of communication unless
 1. Person is lawyer or
 2. Is a past client, family, close-personal, or prior professional relationship with lawyer
 3. Sent in response to request of potential client
XII. Responsibilities in the Law Firm:
 A. General History:
 Until 1970s, most lawyers were in solo practice or in small firms—working on most anything that came through the door
 However, large law firms employed the “Cravath Model”
 Compensated hourly
 Associates time was divided so that 1/3 was their pay, 1/3 was to overhead, and 1/3 was to partnership profit
 To become a partner, you have to be able to generate more—enough for your associates and your partnership share
 Why do Lawyers Create Firm:
 1. Diversifies Risk
o As individual attorneys specialize, they need protection when time for their work is less valued
 EG:
 RLF’s bankruptcy practice and corporate practice offset
 2. Economies of Scale
o Some projects need large numbers of people
 3. Economies of Scope
o Scope of firm, depth of practice, and geographic location permits firm to be where clients are
 4. Brand Name
o Facilitates business in a crowded legal market
 What Direction are Firms Going:
 1. Seek to develop legal teams
o Will include substantive expertise as well as legal expertise
 2. May lean up, getting smaller
 3. Develop race and gender diversity to appeal to wide variety of clients
o Globalization of business lends to wider variety of clients—need to be able to match those clients
 4. Grow talent with internal training
 5. Make firm an attractice work place
 6. New ways to finance (stock sales, though no prohibited)
 B. Fraudulent Billing:
 1. Will be considered “unreasonable” under 1.5
 By definition, fraudulent billing is excessive and therefore unreasonable
 2. Additionally, will be a 8.4 Violation
 lawyer is engaging in conduct that involves dishonesty, fraud, deceit, and misrepresentation
 C. Responsibilities of Partners, Managers, Supervisors—5.1
 (a) The supervisors (partner, managers) must make “reasonable efforts” to ensure that the firm has effective measures to
ensure that all lawyers follow code of ethics
 Reasonable Efforts:
o Policies and Procedures should be in place
o The level of elaborateness will depend on the size and complexity of the firm
 More elaborate measure may be necessary in a large firm
 (b) Lawyer with direct supervisory authority over another must make reasonable efforts to assure they follow code of
ethics
 (c) A lawyer may be responsible for another lawyer’s ethical violation if
 1. Partner or has supervisory capacity knows of it and fail to mitigate it or avoid the consequences when they
could have
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




2. Lawyer orders it, and it raises a substantial question of the fitness, character, or honesty of the lawyer who
ordered it or ratifies it
D. Responsibilities of Subordinate Lawyers—5.2:
 (a) A Lawyer is bound by the rules of ethics, notwithstanding that they were ordered to do something
 (b) A subordinate lawyer does not violate the rules of ethics if
 They act according to a supervisor’s resolution of an arguable question of ethical duty
 Effect:
o If something is unclear as to what the correct ethical decision is, the supervisor may make the
judgment, resolving the matter
o Otherwise, it would be impossible to come to a resolution and action
o But, if it is not arguable, and can only be answered one way, both lawyers will be liable
o EG:
 False billing is clear—it is wrong, and subordinate will be liable
 1.7 question of reasonable may be arguable
E. Responsibilities Regarding Non Lawyers—5.3:
 (a) The supervisors or managers must make reasonable efforts to ensure that the firm has measures in place that the
nonlawyer’s conduct is compatible with the ethical obligations of the lawyer
 (b) The direct supervisor of the non-lawyer must make reasonable efforts to ensure that their conduct is compatible with
professional obligations of the lawyer
 (c) Lawyer is responsible for their conduct if:
 1. They know of it and fail to mitigate it or avoid the consequences when they could have
 2. Lawyer orders it, and it raises a substantial question of the fitness, character, or honesty of the lawyer who
ordered it or ratifies it
F. Liability of Firm:
 Generally:
 Discipline is only available for the lawyer
 The firm is not held liable because the state supreme court licenses lawyers, not law firms
G. Rights of Lawyers as Employees:
 1. Effect on Lawyer Who Reports or Refuses to Act in Illegal Manner
 General:
o If the supervising lawyer makes a decision on a matter that the subordinate lawyer feels is incorrect, or
remains unethical, what happens?
o Firing Lawyer is Often Appropriate:
 1. They are an at will employee, fired at any time
 2. Client may discharge an attorney at any time
 thus, the client’s discharge is appropriate for reporting, or any other reason
 3. Awkward to have unwanted lawyer around the office
 Lawyer Recovery:
o Some courts have held that lawyers may be able to recover for wrongful discharge
 2. Anti-Discrimination Laws Apply to Law Firms:
 Civil Liability:
o Hiring and promotion decisions may be reviewed under Federal anti-discrimination law, like any other
employer—Lucido v. Cravath, Swaine, & Moore
 However, Discipline for Discrimination May Not Ensue:
o Few states actually discipline for violating the federal anti-discrimination laws
o Washington D.C. Is one of the few:
 “Lawyer shall not discriminate in employment…because of race, color, religion, sex, physical
handicap, sexual orientation…”
o Old Age:
 EEOC v. Sidley Austin, held that firing partners because of their age was violation of federal
antidiscrimination laws
H. Attorney Leaving Law Firm and Retaining Clients:
 Restatement §9:
 Absent an agreement with the firm providing more permissive rule, a lawyer leaving the law firm may solicit
firm clients:
o 1. Prior to leaving the firm
 a. only with respect to clients lawyer has actively and substantially worked on the matter
 b. And, only after lawyer has adequately and timely informed the firm of intent to contact
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




c. And, after ceasing employment in the firm, to same extent as non-firm lawyer
Note:
o
o
o
o
Law firm may not restrict your ability to contact clients
Client has the right to go to whatever firm they want
However, this is balanced against the partner’s and attorney’s duty to the firm
Under 5.6, Attorney Probably May Not Agree Not To Solicit Clients:
 This would restrict attorney’s practice, and the Firm may not prevent clients from choosing
I. Sale of Law Practice—1.17
 A lawyer or firm may sell or buy a practice, or an area of practice if:
 (a) Seller ends his practice of law, or ends practice of law in the practice area in that location
o Note:
 Lawyer may continue to practice law on staff of public agency or legal services to poor, or in
house counsel to business
 Must sell practice or practice area
 You may not sell good clients and not bad ones
 Purchaser must take on all clients in that area, subject to consent
 (b) Sells Entire practice, or practice area is sold
o If practice area is sold, the lawyer may continue to practice in the other practice area
 (c) Seller must give written notice to each of its clients:
o 1. The proposed sale
o 2. The client’s right to retain other lawyer or to take their file
o 3. The fact that client’s consent to transfer of files is presumed if no action is taken within 90 days of
receipt of notice
 Note:
 This is confidential information
 Therefore, to transfer the client confidence to the buyer, you must have the express
consent of the client
 (d) Fees charged may not be increased because of the sale
J. Special Rules Dealing with Fees, Partnerships, and Corporations—5.4:
 1. Fee-Sharing
 A Lawyer may not share fees with a non-lawyer. Except:
o 1. Payment of arrearages to party who holds a deceased partner’s interest
o 2. Payment of benefits, compensation, salary, bonus to non-lawyer employees
o 3. May pay to non-profit that recommended, employed the attorney
o Note:
 Exception for Rule 1.5(e) Fee-sharing rule
 2. Partnership
 A lawyer may not form a partnership with a non lawyer if any part of the partnership is practice of law
o However:
 If none of it is practice of law, then you may form a partnership with a non-lawyer
 3. Corporation
 A lawyer may not be in or practice with a professional corporation if
o 1. Any shareholder is a non-lawyer
 Exception:
 If, for reasonable period of time a deceased partners shares are held by a non-lawyer,
it is ok if they are merely executing the estate
o 2. A non lawyer is a director or officer
 4. Independent Professional Judgment
 A lawyer may not let any person interfere with his professional judgment in rendering legal services
o Policy Note:
 The prohibition on partnerships and corporations with non-lawyers is designed to ensure the
professional judgment of the attorney
 A “public law firm” would permit non-attorneys to govern or have influence over the
judgment of attorneys, their practice, and the administration of justice
K. Unauthorized Practice of Law:
 Rule 5.5:
 A lawyer may not practice where they are not admitted
 A lawyer may not engage in or assist someone in the unauthorized practice of law
o What is the Practice of law:
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Anything that a lawyer would traditionally do—advise, etc…, including-1. Appearing in Proceedings, Courts, Depositions
2. Drafting documents that affect a substantial right
 Note: if the lawyer supervises, and actually has people sign, this is acceptable for
non-lawyer to do
 3. Negotiating Settlements
o What is Not Practice of law:
 1. Interviewing
 2. Filling in Forms
 Providing forms prepared by lawyer, filled in by non-lawyer ok
 3. Drafting legal memorandum
 4. Writing legal help books is traditionally not the unauthorized practice
 Explaining/providing documents or print-outs that require filling in
 Note:
 In Quicken, a Texas court did hold that a computer program which prepared
custom legal documents was the practice of law—however, this was quickly
superseded by the state legislature
ABA EC 3-5 Defined Practice of Law:
o The practice of law relates to rendition of services for others that call for the professional judgment of
lawyers
o This is the lawyer’s educated ability to relate the general body and policy of the law to a specific legal
problem of a client
Discipline for Unauthorized Practice:
o 1. Criminal Contempt of Court
 Because courts license lawyers, courts and judges regulate lawyers and will find an
unauthorized practice a contempt of court authority
o 2. Professional Discipline
o 3. Loss of Legal Fees*
o 4. Potentially No Attorney-Client Privilege
 However, depends on if client “reasonably believes they were dealing with an attorney”
 If so—privilege will attach, regardless of if real attorney
Policy—Why Do We Regulate Unauthorized Practice of Law?
o 1. Lawyers write rules—protective of our monopoly
o 2. Protects the Public
 The practice is detailed, and difficult for a non-lawyer
 Ensuring those who say they practice have common training and certification is beneficial to
public
o 3. The practice is detailed/Unique
 Those who are trained and certified should be able to do it if they are going to Sheppard the
public
 Even if we let pro-se litigants do it, they voluntarily assume the risk of their own ability
 Letting someone hold themselves out at being capable as an attorney is different to someone
who relies on them—a non-pro-se litigant
o 4. It is like doctor, architect, engineer
 want trained party in many (perhaps not all) areas of the law
o 5. Courts want real lawyers
Outsourcing of Lawyers:
o A new trend has emerged, whereby clients demand that their law firms outsource ministerial tasks to
non-lawyers—i.e., discovery, instead of first or second year attorneys
o State bar associations have upheld this practice as long as US law firm supervises, assures confidence
is protected, and checks for conflicts
 Policy:
 1. Lowers cost of legal system
 2. Opens door to enhanced justice as more can afford legal services
 3. However, untrained lawyer may decrease efficiency of litigation if incorrect
discovery performed
Permitted Temporary Multi-Jurisdiction Practice:
 A lawyer may act as lawyer in another jurisdiction if:
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o
1. They associate with a local lawyer who actively participates in the representation
 Must actively participate and share in the responsibility
o 2. Pro-Hac-Vice
 If they are admitted for “this matter only”
o 3. May Engage in Arbitration or mediation if related to the home state practice
o 4. Anything reasonably related to the representation
 Negotiations
 Contract
 Permitted Permanent Multi-Jurisdiction Practice:
 1. If the lawyer is no admitted in the state, but their employer has an office in that state
o This is the “Corporate Counsel exception”
o You may be in house counsel to corporation, even though not admitted to practice in that state
 2. If Federal or other law permit it
o I.E., working at the SEC only requires bar admission in any state to practice for Federal Agency
 L. Ancillary Services to Law Practice—5.7:
 General:
 Lawyers may provide services other than legal services to their clients
 However, the rules of ethics may apply to these services
 Rule:
 1. Not-Distinguished:
o If the lawyer fails to clearly differentiate, make the non-law services distinct from the legal practice
from non-legal practice, the rules of ethics will apply
 2. Entity Controlled by Lawyer:
o If there is an entity that provides non-legal services, the lawyer must do the following to avoid having
the rules of ethics apply:
 1. Disclose their interest in the entity and
 2. That it does not provide legal services and lawyer-client relationship does not apply
XIII. Pro-Bono Work:
 1. 6.1
 1. Not a Mandatory Obligation
 2. Only hortatory in that lawyers “should” provide pro-bono services
 Recommends that 50 hours per year be done
 Policy:
 Why do Lawyers Have a Moral Obligation:
o 1. We created the system
 Because the system is specifically created by lawyers, only lawyers know how it works and
how to use it
 Thus, we have created a moral obligation to represent parties who may not be able to afford
an attorney
o 2. Specified, Expertise to Utilize the System
 The system cannot be fair or effective without proper representation
o 3. Public Utility
 We structure the conflicts of society so that they are capable of peaceful resolution
 We have a monopoly on the system—therefore, we should attempt to help others use it
o 4. General Moral concept of helping others with a powerful education
 There must be more than being a partner, and being rich
 The pursuit of justice must present itself sometimes in a lawyer’s career
 We Do Not Require It, Notwithstanding These Arguments:
o 1. If You are required, pro-bono loses its altruistic zeal
 It is not as effective a moral tool if it is merely a checking of a box
 Not as praiseworthy
o 2. People who opposed a requirement the most are those who practice in pro-bono areas (small
potatoes criminal, homeless law, etc…)
 Our bar has become specialized, and these practices are too
 Rather than having someone required to come in 50 hours per year, taking time away from
these attorney’s specialties, should let them practice in their practice area
 2. Appointment by the Court—6.2:
 Rule:
 Attorneys must accept a court appointment unless they have good cause not to:
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o
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
Good Cause Includes:
 1. Fundamental Disagreement/Moral Repugnance of Client
 2. Conflict of Interest
 3. Physical or Mental Deficiency
 4. Incompetence
 But:
 Associating with a competent Lawyer
 Learing the subject matter prior to representation or
 Emergency advice giving
 Are all means of becoming “competent”
 5. Unreasonable Burden
 Such as, financial burden to the attorney’s practice
Policy:
 This is required because it deals with a constitutional right to representation
 Note:
o Typically, large firms are not the appointed parties
o Instead, lawyers who practice in these areas are the ones who are appointed
o Rarely do attorneys actually claim “good cause” to avoid an appointment for fear of offending a judge
they may later appear in front of
IOLTA Accounts:
 General:
o An “Interest On Lawyer Trust Acconts”
 In this instance, client fees and money is kept in an interest bearing account
 The interest is paid to a state fund which is used to compensate attorneys for their
appointment work
o Brown v. Legal Foundation of Washington (US. 2003)
 Held that the interest generated was so small that the net benefits to the client were zero
 Therefore, the plight of needy Americans satisfied the public use requirement of the just
compensation clause
 The transfer was not a compensable taking
 There was no net loss to the client—the amount of interest was so small that after
bank fees—there is a net of zero on interest
XIV. Lawyer Discipline:
 A. Why Do We Discipline Attorneys:
 Policy:
 1. To Cleanse:
o We discipline to identify and remove deviant members
 Note:
 This is an aspirational duty—one which may never be accomplished
 There will always be bad attorneys, and we’ll never get rid of all
 2. Deterrence:
o We discipline to deter deviance and maximize compliance with rules among attorneys
 Note:
 Civil liability is arguably deterrent enough—discipline is added deterrence, and may
be redundant
 3. Public Image Function:
o To maintain a level of response and assure public satisfaction of legal profession
 Note:
 This helps us save face, but doesn’t really help the public image
 Additionally, because most disipline actions may never be brought to public light,
and allegations will certainly not be brought to public attention—doesn’t really affect
public image
 B. Types of Lawyer Activity That May Be Punished:
 General:
 The violation of any rule may subject a lawyer to discipline—listed are among the most common
 1. Incompetence/Lack of Diligence under 1.1 and 1.3:
 General:
o Attorneys have been punished for failing to be diligent or competent
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Competence 1.1:
o If lawyer fails to seek expert where reasonable attorney would
o Lacks competence to take on a matter
 May be disciplined
 Diligence—1.3. cmt. 3:
o Will likely require “neglect” by procrastination of client matters
o Failure to pay attention—overlook statute of limitations, will be disciplined
 Note:
 Lawyers take on so many matters, however, that they are bound to forget one or
two—that is our model, to encourage settlements, and volume to acquire more
money
 Thus, diligence discipline is pursued but rarely accomplished
2. Rule 8.4(b) Criminal Acts that Reflect Adversely on “Honesty, Trustworthiness, and Fitness” to be Lawyer:
 General:
o Policy:
 Attempts to utilize “cleansing” function and public image function
o This deals with crimes that occur outside of the practice of law
 Include:
o Those crimes which are deceitful, fraudulent, involve deception will likely fit this standard
o Assault, DUI, may not as much, but are arguable
 Examples:
 1. Child Pornogrophy has been disciplined
 2. Illegal political contributions
 3. Overbilling clients
 EG:
 Bill Clinton’s lying in a personal deposition—he was disbarred under 8.4(b)
 Substance Abuse:
o General:
 Data compiled has found that those lawyers who are disciplined are likely to be substance
abusers
 DUIs, and other substance abuse crimes may lead to 8.4(b) discipline
o Courts View It As Mitigating Factor:
 When considering substance abuse as means of discipline, some courts have held that it is a
mitigating factor to consider the severity of the violation
o Rule 23 ABA Lawyer Discipline Enforcement:
 In an effort to help those with substance abuse issues, the ABA promulgated this rule
 Instead of discipline, those considered substance abusers are “suspended” as an “inactive
status” lawyer
 Use:
 1. Most often used by first time offenders of model rules
 2. Used as friendly threat by an attorney’s peers—they will threaten to invoke the
rule unless the lawyer cleans himself up and takes time off
3. Rue 8.4(c) Engage in Conduct involving dishonesty, fraud, deceit, misrepresentation:
 A lawyer’s engaging in this type of conduct in the practice of law will be disciplined
4. 8.3 Duty to Report:
 Under rule 8.3, a lawyer has an affirmative duty to report a lawyer who has violated a rule that “raises a
substantial question of that lawyer’s fitness, character, and honest” to practice law
o Policy:
 1. Provides a self-policing function
 2. Comment 3: Has limiting language to provide room for judgment and de-minimus issues
 3. We know the rules, and therefore, we will know when someone violates—thus, self
policing function makes sense
o However:
 This is arguably the most underused, and under-enforced rule of all
 8.3(c)
o The rule does not, however, require disclosure of confidential information under 1.6, or information
gained through a lawyer’s assistance program
 Note:
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 You may not negotiate away your duty to report under 8.3 in negotiating settlement
Two Views:
 1. In re Himmel: Client may not tell you to not report an attorney under 8.3—an
affirmative duty
 2. Client May Tell You Not To Disclose:
 Effect:
 If a new client comes to you, disclosing issues with last lawyer that raise an
8.3 issue, and tells you he does not want you to report—this is information
relating to a client, under 1.6, and he has told you he does not want it
disclosed
 Thus, you have no authority to do so under 1.6—and 8.3(c) tells you this is
acceptable—to not report at the request of a client
5. Breach of Rule of Ethics, Which Breaches 8.4
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XV. Mal-Practice and Civil Liability:
 General:
 Lawyer Discipline occurs in only about 5% of lawyers—however, civil liability is much more common and likely in
your career
 Waiving Mal-Practice and Settling Mal-Practice Claims:
 1.8(h)
o 1. You may only prospectively limit malpractice if client is represented independently in the agreement
o 2. You may settle mal-practice claim with a former client only if you advise party in writing of the
desirability to seek anther attorney
 A. Mal-Practice and Negligence:
 General:
 The standard is that of regular negligence—duty, breach of duty, causation, and damages
 A. Who does an attorney owe a duty:
 1. Prospective Clients
o See, supra
o You owe a duty of loyalty, confidentiality, to protect property, and to give competent advice or be
subject to mal-practice liability
 2. Client
 3. People the client wanted to benefit
o Commonly Those in a Will:
 You do owe a duty to these third parties
 Why:
 Because you are fulfilling the duty to your client—by fulfilling their wish
 Thus, because you owe a duty to your deceased client, who is not around to
ensure it’s fulfilled, the duty extends to those parties he wished to benefit—
and they may enforce it
 4. People Attorney has assumed duty to
o Common in “Third Party Opinion”
 When your client wants an opinion prepared for a third party, you assume a duty to that third
party
 If inaccuracy, or mistake, they may bring negligence action against you
 5. Representing Trustee, May owe beneficiary duty
o If you represent a trustee, you may owe a duty to the beneficiary if the reason you’ve been retained is
to ensure the trust and trustee do what they were legally required to do
o If they fail to, while you’re the attorney, beneficiary may have claim against you
 B. What is the Standard of Care To Breach Duty:
 A. There are Two Popular Versions:
o 1. Mallen’s Treatise view:
 “Attorney’s failure to exercise ordinary skill and knowledge”
o 2. Restatement §52 View:
 “Attorney who owes duty must exercise the competence and diligence normally exercised by
lawyers in similar circumstances”
 Experts are Held to Higher Standard:
 “Like lawyer of similar circumstances” will ratchet up standard of care for
experts
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1.1 cmt. 5:
 A lawyer’s competence requires inquiry, analysis, and use of methods a
competent practitioner would use
 It also requires preparation, depending on what type of matter is involved
 Retaining another expert in that field may be necessary, if an ordinary
attorney would do so
 1.2(c):
 Remember that an attorney may limit the scope of the representation, thus
limiting the potential malpractice liability
B. Breach of Duty and Settlement Offers:
o Traditional:
 The traditional view was that clients could not sue for negligence after accepting a
settlement—they must have been happy with the result, and therefore, nothing was wrong
o Modernly:
 This has changed
 Because clients follow their attorneys advice, and rely on it, recommending an inadequate
settlement may be a breach of duty
 Thus, acceptance of settlement does not preclude recovery from attorney under negligence
theory
C. Breach of Duty and Associating with more Expert Attorney:
o Under 1.1, if a reasonably attorney would associate or recommend the assistance of an expert or
specialized lawyer, it may be a breach of duty to fail to do so
 1.6 Duty of Confidence Issue:
 If you do so, you must get the client’s express consent to associate with a more
expert lawyer—otherwise, breach 1.6
o In all do not do things you are unsure of how to accomplish
D. Breach of Duty to Criminal Defendant Client:
o A criminal defendant may have a potential negligence claim against an attorney
 Majority Rule:
 To show a breach of duty to a criminal defendant, the convicted criminal must show
that they are actually innocent of the charges against them
 Policy:
 This daunting standard is mandated by courts because otherwise
 1. Criminal ∆s would sue to make $ off of their conviction
 2. Courts would be flooded with every criminal defendant
seeking monetary compensation for their conviction
 3. They already have a remedy for wrongful conviction—
reversal on appeal
o Ineffective Assistance of Counsel Suit:
 A criminal defendant may be able to get a reversal under a theory that the attorney provided
ineffective counsel to them
 Strickland v. Washington:
 To do so, requires (1) lawyers acts are outside the wide range of professionally
competent assistance and (2) ineffective counsel cause actual prejudice—that but for
the unprofessional errors, the result of the proceeding would have been different
E. Demonstrating Breach of Duty
o 1. Use of Model Rules:
 Showing a violation of the model rules of ethics, although not per se negligent, is relevant to
the consideration
 Most courts have agreed that competent and diligent attorneys, who exercise ordinary skill
follow these rules
 Thereforeprovides a standard of care that may be breached
 Because lawyers have written the rule—for lawyers by lawyers—they set out their
own expectations
 By definition, failing to meet these expectations is breach of standard of
care
 Scope 20:
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o
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Breach of rules does not itself give rise to negligence, but is evidence of
breach of standard of care
2. Expert Testimony:
 Common to have expert attest to the standard of care—as in all negligence trials
C. Causation:
 1. Most Courts use the standard “But For” Causation Test
o “Suit within suit”
 In mal-practice suit, you must show that but for the negligence, you would have won the case
 This, in essence, requires putting on the case, and showing you would have won
 2. “Substantial Factor Test”
o If the jury finds that the lawyer’s negligence was a “substantial factor” in causing the client’s loss,
causation is met
 Issue:
 So many things play a role and are factors in a certain jury decision
 Because of this, it opens lawyers up to tremendous liability
D. Damages and Typical Recovery for Mal-practice:
 1. Tort Damages
 2. Breach of Contract damages
 3. Breach of Fiduciary Duty damages
 4. Punitive Damages
 5. Statutory Remedies
 6. Fee-Forfeiture
o Restatement §37:
 Court has discretion to award
 The amount will depend on the judge and circumstances of mal-practice
 A lawyer may be required to return all or part of the fee—even in the absence of client
damage—if there was a “clear and serious breach of fiduciary duty to client”
 Other Potential Remedies for Misconduct, Separate from Negligence:
o 1. Court imposed contempt sanctions
o 2. Disqualification from representation
o 3. Voiding transactions if lawyer violated duty to other side
o 4. Federal Law Violation sanctions
o 5. Criminal liability as co-conspirator
XVI. The Client Who Intends to Commit Perjury and Corporate Fraud
 General:
 Under Rule 3.3, a lawyer may not knowingly present false evidence to a court
 Thus, the attorney must know the evidence is false
 Lawyer may not ignore obvious falsehood
 Rule 1.0(f):
o Knowledge is actual knowledge and may be inferred from the circumstances
 A. What Do You Do In This Situation:
 Generally:
 The issue is the lawyer’s duty not to present false evidence contrasted with the defendant’s 5th, 6th, and
14th amendment right testify and to trial by jury—Rock v. Arkansas
 Nix v. Whiteside affirmed the following process as acceptable
 Rule 3.3
 Process:
 1. Seek to Dissuade the Client and Cajole/Counsel Them Not To Testify Falsely—3.3 cmt 6
o Tell them of their Constitutional Right to Testify
 Rule 1.2(a)—it is client’s decision in a criminal case
o Explain that they will be cross examined and will look like a liar
o You’re obligated to tell them not to do so falsely
o Explain they will be perjuring themselves
 Be Careful not to breach 1.2(d):
 You may explain the scope of the law—but don’t coach them on what they could do
to meet the legal requirements, thus in effect coaching them to lie
o If It is a Witness, or Non-Criminal Defendant:
 3.3 permits an attorney to refuse to present evidence that he “reasonably believes” is false
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Thus, you may refuse to call non-criminal defendant to stand if you reasonably
believe they will testify falsely
 Note:
 Even so, you may call them and control their answers so that they do not
testify falsely
 Simply avoid asking them questions you know they will or may lie about
 3. If You Cannot Dissuade, Seek Withdrawal:
o Tell court that “there is an ethical issue”
 It will almost be clear in an unspoken manner as to what has happened
 Practically:
 Usually, you will not find out your client has lied until after it has occurred
 If so—you can’t disclose this—this is confidential information at this point
 4. If you are not permitted to Withdrawal:
o A. Narrative Testimony is Potential:
 Simply call the defendant to the stand, ask them their name, and mention that they “have
something to say”—they will then tell their side of the story
 Effect:
 Lets the ∆ comply with his 6th amendment right to testify
 Attorney is not offering or knowingly presenting false evidence—the client is
 Thus, complies with 3.3
 Don’t refer to it in the closing—3.3 n.7
 But—this looks awful to the jury, as they and the judge know something is off
o B. 3.3(a)(3)—Lawyer Must Take Reasonable Remedial Measures to Correct Material Errors:
 In Criminal Trial:
 1. Disclosure: It is unclear whether disclosure to the court in this instance is
appropriate—many authorities believe it is inappropriate to alert the court to the
criminal defendant’s false testimony
 But:
 Authority does exist to do so and the rules do not distinguish
 Cmt. 11:
 “disclosure can result in grave consequences to the client,
but the alternative is that the lawyer is deceiving the court
and subverting the truth.”
 2. Other Measures:
 If happens during trial—ask for recess—attempt to cajole them to fix their
testimony, correct themselves (If deposition, fill out errata or correct
statement)
 In Civil Trial:
 You must disclose to the court under 3.3(a)(3)
Monroe Freedman Policy Argument:
 The duty not to present knowingly false evidence, the duty of confidentiality, and the duty to reveal and correct
such concerns is a Perjury Trilemma
o Because it is impossible for all three of these to work together
o We should let the first two work, and let defendant’s lie (In essence, 2/3 isn’t that bad)
 Contrary Arguments:
o 1. The duties do not have to be construed mutually exclusive
 All constitutional guarantees and duties in the law have limits—these are no different
 Thus a limited right to testify and a limited duty of loyalty are ok
o 2. All trust in the system would erode if society knew we sanctioned litigants lies in courts
B. Special Duties of Corporate Counsel:
 1. General Issues to Spot:
 A. Privilege and Upjohn
 B. Confidentiality
o Something may be confidential
o Note:
 1.6(b)(3)
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You may disclose confidential information to prevent or mitigate something that has
already occurred if it would harm economic or property interest and was based on
lawyer’s services
C. Rule 1.13 duties
D. 1.16 duty to withdraw—must if representation would violate a duty of ethics or law
E. 1.2 comment 10:
o Duty to Disaffirm Opinion:
 If you have given an opinion on behalf of your corporate client, the discovery of fraud may
require you to disaffirm that opinion
 “Noisy Withdrawal” alerting parties and stock market of an issue
 F. Rule 4.1(b)
o In representing a client, a lawyer may not knowingly fail to disclose a material fact when necessary to
avoid assisting in criminal or fraudulent act by client . . .
 Rule 1.6(b)(2):
 A lawyer may reveal information relating to client to prevent client from committing
crime or fraud . . .that will result in substantial injury to financial or property
interest . . . by using lawyer’s services
 Effect:
 Thus, a lawyer must disclose material facts to avoid assisting a corporate client in a
fraud or crime and 1.6 permits this disclosure
o What is Fraudulent—1.0(d)
 What ever it is defined as in the applicable jurisdiction
 --Does not include mere negligence and it is not necessary to have suffered damages
2. Special Rules for Securities Lawyers:
 A. ABA Opinion 335—Lawyer has duty to investigate:
o 1. Make an inquiry of client
o 2. If anything seems materially incomplete, lawyer should further investigate
o 3. If not confident—you must not give an opinion
 B. Sarbanes Oxley:
o 17 CFR §205.3 Note: This actually mirrors 1.13 duty for corporate client
 1. There is a duty to report a material violation to the Chief Legal Officer
 Material Violation:
 Means a violation of securities law, fiduciary duty, under state or federal
law
 Must be credible evidence; that it would be unreasonable for a prudent and
competent attorney not to conclude that it is reasonably likely a material
violation occurred
 2. The CLO must inquire into the evidence
 Whatever they decide, they must notify the attorney who reported it
 3. Unless the reporting attorney thinks it was responded to appropriately, the attorney
must make a report to:
 Audit Committee, or Board of Directors
 But No Duty to Report if hired to investigate such matters
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