Professional Responsibility and Ethics – Morgan – Fall 2011
 Informed consent (Rule 1.0(e))
 “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated
adequate information & explanation about material risks of & reasonably available alternatives to proposed course of conduct”
 Reasonably believes
 “L believes the matter in question and that the circumstances are such that the belief is reasonable” Rule 1.0(i)
 “The conduct of a reasonably prudent and competent lawyer”
The Role and Organization of the Legal Profession
 APPROACHES TO LEGAL ETHICS
 Ethics of duty—minimum level of ethics to which a lawyer should adhere
 Model Rules reflect the ethics of duty, though they attempt aspiration as well
 Moral People v. Moral Actions—maintaining satisfaction w/ “rule ethics” and the “personal ethics” a lawyer may have
 Ethics of aspiration—what the best lawyer would do.
 Other approaches
 Consequentialist/utilitarian—what rule gets the best result
 Deontogolical—Absolute value; some things are right & others aren’t—labels put on behavior leading to a conclusion
 Ethics of care—idea that the most important issue for a lawyer is the relationship with a client.
 BASIC RULES OF CHARACTER AND FITNESS TO PRACTICE LAW
 Purpose—cleanse violators, purge deviant lawyers, deter violations, and maintain the profession’s reputation
 Misconduct (RULE 8.4) “It is a professional misconduct for a lawyer to:
 (a) violate or attempt to violate the Rules, knowingly assist or induce another to do so, or do so through the acts of another;
 (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other
respect;
 Assisting criminal activity. Bloom (leasing plane, filing false documentation to help client sell explosives)
 Assisting breaking and entering. Protokowicz (helping C break into wife’s home and cooking cat)
 Repeated assaults
 Violating campaign finance law by facilitating corporate contributions
 Murder. Rowe (court did not admit applicant to practice)
 Purchasing child pornography. Bourdreau.
 (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
 Filing fraudulent documents in insurance claim. Fornari
 Resume fraud. Scruggs (used another students transcript and misrepresented law school)
 Misrepresenting attendance at CLE program. Diggs (claimed to have attended, but only showed up at the end)
 (d) engage in conduct that is prejudicial to the administration of justice;
 Fried (Lawyer told client to hire a particular lawyer to force judge’s recusal)
 Karahalis (lawyer bribed Congressman so that client could be moved to prison close to home)
 Lane (lawyer submitted 80 hours for fee petition where bulk of work was cut and paste)
 Cannot discipline a lawyer for pleading the Fifth. Spevack
 (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that
violate the Rules or other law; or
 (f) knowingly assist a judge or judicial officer in conduct that is violation of applicable rules of judicial conduct, or other law.”
 Comment 2—offenses that affect fitness to practice law adversely are limited to those relevant to law practice, rather than
generally those of “moral turpitude” (like adultery).
 Ex: pattern of repeated offenses, violence, dishonesty, breach of trust, interference w/ admin. of justice.
 What is required for lawyers in application for admission to the bar?
 MODEL RULE 8.1 “An applicant for admission to bar, or lawyer in connection w/ bar admission application, shall not:
 (a) knowingly make a false statement of material fact; or
 (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in a matter, or
knowingly fail to respond to a lawful demand for information from admissions or disciplinary authority, except that the
lawyer need not reveal information otherwise protected by Rule 1.6”
 What does a law license allow you to do?
 MODEL RULE 5.5
 (a) a lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that
jurisdiction, or assist another in doing so.
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(b) a lawyer who is not admitted to practice in this jurisdiction shall not:
 (1) establish an office or ... systematic & continuous presence in this jurisdiction for the practice of law, or
 (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law [there].”
 RESTATEMENT § 3—Lawyer currently admitted to practice in a jurisdiction may provide legal services to a client anywhere in
the admitting jurisdiction or before a tribunal in another jurisdiction if complying with those requirements
Lawyer Competence—What does it mean to be a competent lawyer?
 MODEL RULE 1.1—“A lawyer shall provide competent representation to a client. . . . requires legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation.”
 Comment 1—determination of knowledge and skill is based on relative complexity of the matter, lawyer’s experience,
preparation and study, most often required proficiency is that of a general practitioner
 Comment 2—competent representation can be through necessary study or association with another lawyer
 Comment 3—In an emergency, lawyer may give advice/assistance, but only what’s reasonable in circumstances
 Comment 6—lawyer should engage in continuing study/education to maintain requisite knowledge/skill
 MODEL CODE 6-101(A)—“A lawyer shall not:
 (1) handle a legal matter which she known or should know that she is not competent to handle. . .[association]
 (2) handle a legal matter without preparation adequate in the circumstances
 (3)neglect a legal matter entrusted to her.”
What May Only Lawyers Do pgs. 630-657
 What is practice of law?
 Definition of “law practice” varies from jurisdiction to jurisdiction. Rule 5.5, comment [2].
 “Rendition of services for others that call for the professional judgment of the lawyer . . . [consisting] of the educated ability to
relate the general body and philosophy of law to a specific legal problem of the C.” ABA Model Code of Prof. Resp. EC 3-5.
 REST III § 4, comment d—allowing people to represent themselves is allowed because it’s personal. Unauthorized practice of
law must be on behalf of someone else.
 In Re Sledge (disbarred guy who used paralegals with a stamp of lawyer’s signature to draft documents & make pleadings).
 Lawline v. ABA (7th Cir.) (ABA Model Rules 5.4(b) and 5.5(a) are not an illegal conspiracy by lawyers to maintain traditional forms
of practice and were not unconstitutional).
 Do-it-yourself kits.
 Quicken (Tx) software with 100 legal forms was practice of law but state leg. passed law stating OK so long as put disclaimer on
box.
 Books alone will not be considered unauthorized practice of law. NY Count Lawyers’ Association v. Dacey
 MULTIJURISDICTIONAL PRACTICE (PRACTICING IN ANOTHER JURISDICTION)
 State may not impose additional requirements on out of state applicants without violating the Privileges & Immunities Clause.
Friedman (US).
 Reciprocity agreements are ok because they encourage states to accept each other’s lawyers. Schumacher (3d Cir.)
 In-house Counsel. Lawyer may provide legal services if they are part of providing services to employer or its organizational
affiliates and are not services for which the forum requires pro hac vice admission. RULE 5.5(d)(1).
 Authorized by Federal law. Patent or bankruptcy lawyers do not have to be licensed in each state where they practice. There’s a
separate licensure. RULE 5.5(d)(2).
 MODEL RULE 5.5(c) Lawyer may provide legal services outside of her own jurisdiction, if:
 (1) she is associated with an admitted lawyer in that jurisdiction who actively participates in the matter
 (2) she is the lawyer on a reasonably related pending or potential tribunal in the other jurisdiction if lawyer is authorized or
expects to be authorized, OR
(3) if the matter is related to arbitration or mediation and it arises out of a jurisdiction where she is licensed
 (4) the action arises out of / is reasonably related to the lawyer’s practice in a jurisdiction where the lawyer is licensed
 Reasonably related is defined in RESTATEMENT § 3, comment ‘e’ as
 If the client is regular client of lawyer,
 Multistate transaction with significant connections with lawyer’s licensed state.
 Significant aspects of lawyer’s practice in her licensed state.
 Lawyer appearing in a jurisdiction where she is not licensed must apply for admission pro hoc vice.
 Court may deny lawyer’s fees for violation of multijurisdictional practice.
 Birbrower (Cal.) (Court denied fees to a NY firm who represented a CA corporation in suit where the CA law governed the
contract and it was to be arbitrated)
 Ferrey (No fees for lawyer where state agency allowed lawyer to represent client before it but where the court held that the
agency did not have the authority to grant the lawyer license to practice)
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BUT Condon (Cal.) granted fees to lawyer representing client as the executor of an estate most of the assets of which were
found in California.
 SANCTIONS AND REMEDIES FOR MISCONDUCT
 Duty to Report Others’ Misconduct
 MODEL RULE 8.3: Reporting Professional Misconduct
 (a) [Reporting Lawyers] “A lawyer who knows that another lawyer has committed a violation of the Rules that raises a
substantial question of honesty, etc., shall inform the appropriate professional authority.
 (b) [Reporting Judges] “A lawyer who knows that a judge has committed a violation of the rules of judicial conduct
that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority
 (c) [Confidential Information Exception] “This Rule does not require disclosure of information otherwise protected by
Rule 1.6 or info gained by a lawyer or judge while participating in a lawyers assistance program.”
 Comment 3—Lawyer should consider offense’s severity in deciding whether to report to some
 REST. § 5 Professional Discipline (3) is the same as Model Rule 8.3(a).
 Only one case has ever disciplined a lawyer for failure to report—Himmel (where lawyer represented client in a suit against
her former lawyer for conversion of settlement and the lawyer did not report the misconduct).
 Protected Information. Lawyer must secure client consent if she learned about the misconduct from a client. ABA Ethics
Advisory Panel.
 Judge’s Responsibility upon learning of misconduct
 If judge gets the information of lawyer misconduct, she should take “appropriate action.” ABA Model Code of Judicial
Conduct, Canon 3D(2).
 BUT if conduct implicates “honesty, trustworthiness or fitness in other respects,” judge MUST inform the appropriate
authority. Id.
 Sanctions
 Remedies for Lawyer Misconduct
 General Factors. Standards for Imposing Lawyer Sanctions (ABA House of Delegates, 1986):
 Duty violated
 Lawyer’s mental state
 Alcohol and Drug Abuse
 Alcoholism may mitigate discipline. Walker (court allowed lawyer to keep law license because he was
an alcoholic); Kelley (Second DUI lead to a 3 year probation by the bar conditioned on no further
alcohol violations)
 Rule 23 ABA Model Rules for Lawyer Disciplinary Enforcement provides for “disability status” which is
adjudicated confidentially but disclosed to clients if found.
 Mental Illness
 If illness prevents the lawyer from qualifying to practice, she is not excused. Clement; Lujan (lawyer
claimed she was a compulsive shopper and that forced her to overbill the firm and clients)
 Depression will not excuse misconduct unless it is serious. Vanderlinde.
 Punishment
 Disbarment. If lawyer engages in a pattern of neglect AND causes serious or potentially serious injury.
 Suspension. Pattern of neglect and not serious injury. ABA Standard 4.42(b).
 Reprimand (public). Negligence or failure to act with reasonable diligence and injury or potential injury. ABA
Standard 4.43.
 Admonition (private). Little to no actual or potential injury.
 Some jurisdictions allow sanctioning a law firm.
 Constitutional Protections
 No double jeopardy rule. Artman.
 Bar can charge a lawyer for the same conduct for which she was punished. Segal.
 No right to court appointed counsel. Harris.
 Even presidential pardon does not override professional discipline. Abrams.
 Multijurisdictional Sanctions on Bad Conduct
 Which state can discipline a lawyer? MODEL RULE 8.5(a)
 Any jurisdiction where the lawyer is admitted, AND
 The jurisdiction where the conduct occurs.
 Choice of Law MODEL RULE 8.5(b)
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Rules of law in which the tribunal sits, OR
Rules of law where the conduct occurs or where the predominant effect of the conduct occurred.
Safe harbor: The lawyer will not be subject to discipline if the lawyer’s conduct is in conformity to the rules of
jurisdiction where the lawyer reasonably believed the predominant effect of her conduct would be occurring.
 Interstate effect of discipline. Tribunals in different states should avoid using different rules for punishing the same
conduct. RULE 8.5, comment 6.
 Reciprocal Discipline by Federal Courts.
 8th Cir. requires the offending lawyer to show by clear and convincing evidence that the federal system should
not impose the same discipline as the state. Hoare (drunk lawyer killed another driver and refused BAC test)
 9th Cir. federal system will honor state discipline unless lawyer shows one of the 3 Selling (US) factors:
 Deprived of due process in first proceeding,
 Evidence of misconduct insufficient in first hearing, OR
 Grave injustice would result
Remedies Outside of the Formal Disciplinary System
 Judicial Remedies (RESTATEMENT § 6)—for lawyer’s breach of duty owed to client or non-client, judicial remedies may
be made through judgment or order, and include:
 (1) money damages,
 (2) injunctive relief,
 (3) award for unjust enrichment,
 (4) cancellation or reformation of contract, etc.
 Lawyer Criminal Offenses (RESTATEMENT § 8)—lawyer is guilty for criminal offenses which occur in course of
representation to same extent that a non-lawyer would be guilty, but typical lawyer conduct taken into account
 Lawyer Negligence (RESATEMENT §§ 48-51)—lawyer is civilly liable to whom the person the lawyer owes a duty of care
for professional negligence; also civilly liable for breach of fiduciary duty. Duty of care is owed to clients, prospective
clients, and certain other non-clients as identified in § 51 (beneficiaries, 3rd party opinions, etc.).
Forming the Lawyer-Client Relationship
 OBLIGATION TO TAKE CLIENT’S CASE
 No obligation to be an advisor for everyone (MODEL CODE EC 2-26)—BUT don’t lightly decline proffered employment.
 Lawyer may decline a case for any reason. But see Stronicky v. Nathanson (where lawyer was punished for refusing to accept
a divorce case because the prospective client was a man).
 No frivolous cases. Lawyer should not take cases unless “there is a basis in law and fact for doing so that is not frivolous.”
MODEL RULE 3.1
 Lawyer must decline representation IF:
 Representation would violate the RULES. RULE 1.16(a)(1)
 Lawyer’s physical / mental condition materially impairs the lawyer’s ability to represent the client. RULE 1.16(a)(2)
 Lawyer is discharged. RULE 1.16(a)(3).
 Don’t decline representation because the client/cause is unpopular (EC 2-27)
 Rejection of employment shouldn’t come from preference not to be against a certain lawyer/judge (EC 2-28)
 Cannot be excused from appointments except for compelling reasons (EC 2-29)
 Compelling reasons do not include repugnance of the subject matter, identity of the client, belief that the Δ is guilty, or belief
on the merits of a civil case
 Accepting Appointments (MODEL RULE 6.2)—“A lawyer shall not seek to avoid appointment by a tribunal except for good
cause, such as:
 (a) representing the client is likely to result in a violation of law or of these Rules,
 (b) representing the client is likely to result in an unreasonable financial burden on the lawyer, OR
 (c) the client or the cause is so repugnant to the lawyer as to likely impair the client-lawyer relationship...”
 Lawyer shouldn’t accept employment if she is incompetent (EC 2-230)—also if the suit is obviously just harassment
 WHEN DOES A PERSON BECOME A CLIENT?
 Duties to Prospective Clients RULE 1.18.
 Definition of prospective client. “a person who discusses with a lawyer the possibility of forming a client-lawyer relationship
with respect to a matter is a prospective client” Rule 1.18(a). Restatement § 15.
 Duty of Confidentiality. Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective
client shall not use or reveal information learned in the consultation, except as Rule. 1.9 would permit with respect to
information of a former client. Rule 1.18(b).
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Representation of others on materially adverse matters. Rule 1.18(c).
 Cannot represent someone else on the same or substantially same matter IF lawyer received information from a
prospective client that could be harmful that person in the same matter. This is imputed to the firm
 UNLESS RULE 1.18(d)
 Both clients give informed consent, OR
 Disqualified lawyer is timely screened from participation
 Definition of timely screened—isolation from the matter and reasonable steps RULE 1.0(k).
 The lawyer took reasonable steps to avoid exposure to more disqualifying information while trying to
determine if she could represent the client, AND
 Gets no fees, AND
 Written notice is promptly given to the prospective client.
 Non-Profit and Court-Annexed Limited Legal Services RULE 6.5
 “A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term
limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide
continuing representation in the matter:
 (1) is subject to [conflict of interest rules] RULE 1.7 and [representing another person in same or substantially
related matter] Rule 1.9(a), ONLY if the lawyer knows that the representation of the client involves a conflict of
interest; AND
 (2) is subject to [imputed conflicts] RULE 1.10 ONLY if the lawyer knows that another lawyer associated with the
lawyer in a law firm is disqualified by 1.7 or 1.9(a) with respect to the matter.
 Generally
 Limit amount of information acquired from a prospective client to that necessary to decide whether to undertake
representation RULE 1.18, comment 4.
 Don’t accept representation if there is a conflict until you get consent. RULE 1.18, comment 4
 Lawyer may condition conversations with prospective client on that client’s informed consent that no information will
prohibit the lawyer from representing another client on another matter. RULE 1.18, comment 5
 Lawyer is always bound by competence (1.1) and safe-keeping of property (1.15)
Commencement of the Lawyer-Client Relationship.
 Lawyer-client relationship begins when a person manifests to a lawyer the person’s intent that the lawyer provide legal
services for her (RESTATEMENT § 14), AND
 Lawyer manifests to the person consent to do so, OR
 Lawyer fails to manifest lack of consent to do so AND the lawyer knows or should have known that the person
reasonably relies on the lawyer to provide the services.
 Lawyer generally bears the risk of ambiguity.
 Togstad v. Vesely (Lawyer promised to get back to the client about representing him and never did)
 DeVaux v. Am. Home Assurance Co. (prospective client called firm about a slip & fall, & legal secretary advised her to
write a letter to the store, get store insurance medical exam, & write to the attorney, but the secretary misfiled the
letter and the lawyer didn’t see it until after the statute of limitations passed. SJ denied for firm)
 Lawyer may limit representation but bears responsibility in defining scope.
 “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the
client gives informed consent” RULE 1.2(c)
 May restrict use of means that would otherwise be used to accomplish client’s objectives. 1.2(c), comment 6.
 The Engagement Letter
 Content
 Who is the client
 The fee and an outline of expenses
 Billing terms, interest for payments
 Scope of representation
 Existence of conflicts
 Departure from usual assumptions (i.e. joint representation, etc.)
 Client undertakings
 If a refusal letter, the lawyer should promptly send and explain why
 Timing—the letter should be sent within a reasonable time of commencing representation UNLESS the lawyer
regularly represents the client and is charging the usual rate. RULE 1.5(b).
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Decision making during representation
 Lawyer MAY:
 disclose information reasonably necessary to establish claim. RULE 1.6(b)(5).
 accept settlement if the client has stated the acceptable terms and delegated authority to the lawyer. In re Lewis
(suspended lawyer for requiring client to sign blanket agreement giving the lawyer the authority to settle).
 refuse to act in a way that the lawyer reasonably believes to be unlawful. RESTATEMENT § 23.
 take actions she reasonably believes to be required by law or an order of a tribunal Id.
 Lawyer SHOULD:
 abide by client’s decision about objectives of the representation and consult with the client about means of pursuing
those objectives. RULE 1.2.
 explain a matter to extent reasonably necessary for client to make informed decisions RULE 1.4.
 keep client reasonably informed about status of a matter & promptly comply with reasonable requests for info.
 Client:
 Client generally has the decision-making authority.
 Client has exclusive authority in deciding what plea to enter. RULE 1.2(a)
 FEES AND REFERRALS
 Fee agreements
 Fee agreement should be in writing
 Written agreement required in contingency fee case. RULE 1.5(c), but otherwise written agreement is preferable but
not required. RULE 1.5(b)
 Some jurisdictions always require writing unless the lawyer previously represented the client. Like DC
 Others say you only need agreement if it is foreseeable that legal fees will exceed $1k. Like California.
 Expenses should be enumerated in the fee agreement. RULE 1.5(a), but general overhead and administrative expenses are
not separately billable. Columbus Bar Ass’n v. Brooks.
 Fixed Fee agreements may be permissible, but lawyer should not set fee so low that she is discouraged from providing
adequate representation RULE 1.5, comment 5
 Fee must be reasonable
 RULE 1.5 (a) Factors to be considered:
 (1) Time and labor required, the novelty and difficulty of the questions involved, the skill requisite to perform the legal
service properly
 In re Fordham (fee 15 times greater than other lawyers for DUI representation)
 Matter of Hanna (40% fee to collect settlement of no fault insurance claim, not really a contingency)
 White v. McBride (1/3 fee to collect on widower’s wife’s estate when there was nothing really to do)
 Lawyer cannot charge for things an assistant (lower paid person) could do. In re Green
 (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other
employment by the lawyer
 (3) The fee customarily charged in the locality for similar legal services,
 (4) The amount involved and the results obtained
 (5) The time limitations imposed by the client or by the circumstances,
 Lawyer may consider client’s ability to pay in setting the price. RULE 1.5, comment 5.
 (6) The nature and length of the professional relationship with the client,
 (7) The experience, reputation, and ability of the lawyer or lawyers performing the services, and
 (8) Whether the fee is fixed or contingent.
 Bar associations cannot set recommended fees for typical services because it violates the Sherman Act § 1. Goldfarb v. VA
Bar. Even maximum limits are illegal price fixing. Arizona v. Maricopa.
 A fee that was reasonable original may later become unreasonable if amount of work turns out to be lower. RESTATEMENT §
34, comment c.
 Unclear if a firm can raise fees DURING representation
 Severson & Werson v. Bolinger (Firm cannot increase a fee once representation has started)
 BUT RESTATEMENT § 18 says firm can make modifications if fair and reasonable to client
 Fee Disputes
 Client may demand mandatory arbitration clause. Anderson v. Elliot.
 Lawyer may insist on arbitration w/o independent counsel only if she explains to client the potential consequences. ABA
Formal Op. 02-425.
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Fee Collections. A lawyer may...
 Collect quantum meruit recovery if there is an early termination in contingent fee case, even if it’s not in the written
agreement, but only if client won the case with the other lawyer. Plaza Shoe Store, Inc v. Hermel; Gagne v. Vaccaro
 Sue to collect but this is discouraged. ABA Formal Opinion 250.
 Use confidential information if necessary. RULE 1.6(b)(3)
 Accept credit cards. ABA Formal Opinion 00-420.
 NOT charge interest. Lustig v. Horn
 NOT have a security interest in property which is the subject matter of litigation UNLESS permitted by law or in a contingent
fee case. RULE 1.8(i)
 Retaining liens on client’s property. In many states, lawyers have possessory interest in client’s papers & funds
 BUT REST. § 43 disagrees that lawyers can use that lien to force fee payment.
 Some jurisdictions will make exceptions for clients unable to pay but in emergency situations. Pomerantz
 Charging Liens. Most states allow the lawyer the right to have recovery in a case applied to fees.
 Sometimes (though rarely) court will help the lawyer collect her fee by postponing the criminal trial
Contingent Fees
 Impermissible in dealing with these cases:
 Domestic relations cases RULE 1.5(d)(1) BUT it is ok if parties are divorced & it simply has to do with a related matter.
 Criminal cases. RULE 1.5(d)
 Limits on contingency fees in some jurisdictions (medical malpractice is common).
 Contingency fees are ok in civil cases. Formal op. 93-373.
Referrals
 Division of a fee between lawyers at different firms is OK only if it meets RULE 1.5(e)
 (1) The division is in proportion to the services performed by each lawyer OR each lawyer assumes joint responsibility
of the representation AND
 (2) The client agrees in writing to the arrangement, including share (in writing) each lawyer will receive, AND
 (3) The total fee is reasonable
 Lawyer must ‘reasonably believe’ the other lawyer is competent to handle the matter. RULE 1.5, comment 7.
 The Court will not enforce fee agreements in violation of the rules. Kaplan v. Pavalon & Gifford.
 Reciprocal referral agreements are allowed if:
 The agreement does not interfere with professional judgment or providing substantive legal services
 Agreement is not exclusive
 Clients are informed of an agreement.
 Not of indefinite duration
 Agreement is reviewed periodically to determine if criteria is still satisfied.
 Generally, a lawyer cannot give value to a person for recommending the lawyer’s services.
Care of Client Property & Ending Relation
 HANDLING CLIENT PROPERTY
 Client funds. Rule 1.15
 (a) No commingling of funds. “A lawyer shall hold property of clients or 3rd persons ... separate from lawyer’s own property.
 Signing a client’s name can constitute conversion (lawyer may sign her name on settlement checks if made out to the
lawyer, but can only sign the client’s name if she has actual authority to do so).
 Account must be in the lawyer’s state unless the client consists to have it elsewhere.
 Must keep complete records and retain for 5 years after representation”
 Lawyer may only deposit her own funds into the client trust account to cover bank service charges. RULE 1.15(b)
 Lawyer must deposit fees given in advance for fees/expenses into the client trust account. RULE 1.15(c)
 Client Property
 A lawyer must notify third party if she receives property in which the party might have an interest and deliver
property/funds if they are entitled to it. Rule. 1.15(d). If the lawyer fails to do this, she may be liable to the third party. Kaiser
Foundation Health Plan, Inc. v. Aguiluz.
 Disputed property. Lawyer must keep property in dispute and distribute everything else. RULE 1.15(e).
 Lawyer may be responsible for misuse of property by office staff or associated lawyers. Ball (secretary’s diversion of client
funds); Duggins (liability for associated lawyer who ran off with the money)
 Lawyer must use reasonable measures for safe-keeping client’s property. RESTATEMENT § 44 & RULE 1.15; Florida Bar v.
Grosso (lawyer responsible for keeping client’s gun collection but it eroded in his damp garage).
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 WITHDRAWAL
 Lawyer MUST decline representation IF:
 Representation would violate the RULES. RULE 1.16(a)(1)
 Lawyer’s physical / mental condition materially impairs the lawyer’s ability to represent the client. RULE 1.16(a)(2)
 Lawyer is discharged. RULE 1.16(a)(3).
 RULE 1.16(b) Lawyer MAY withdraw IF:
 (1) It will not materially and adversely affect the client’s interest, AND
 Gilles v. Wiley, Malehorn & Sirota (lawyer sent withdrawal letter 3 weeks before the statute of limitations expired and
had information necessary to decide to terminate months before)
 If the client does one of the following:
 (2) persists in conduct lawyer believes to criminal or fraudulent,
 (3) uses a lawyer’s services to perpetrate a fraud
 (4) insists upon taking action the lawyer considers repugnant has a fundamental disagreement with
 It must be so significant it almost prevents her from properly representing the client
 Prior version of the rule said only ‘imprudent’
 (5) fails to substantially fulfill an obligation to the lawyer and the lawyer has warned that she will withdraw unless the
obligation is fulfilled.
 Lawyer can specify that she will withdraw if payments are not made properly
 (6) if the client’s representation will be an unreasonably financial obligation to the lawyer.
 Smith v. RJ Reynolds (contingent fee was arranged, but Пs wanted to go to trial on principle and firm had already
spent a bunch of money and wanted to settle).
 (7) other good cause.
 Steps required for withdrawal. Lawyer must take steps reasonably practicable to protect clients’ interests, such as giving notice,
allowing time for employment of other counsel, surrendering documents and property, etc.
 Judge’s call. When ordered to do so, the lawyer shall continue to represent the client, notwithstanding good cause.
Privilege and the Duty of Confidentiality
 ATTORNEY-CLIENT PRIVILEGE
 Three different sources of the law of confidentiality:
 Law of evidence—provides privilege against testifying about certain matters
 Law of civil procedure—provides work product immunity during discovery
 Law of agency (common law)—an agent may not disclose information of the agent’s principle. The lawyer is in an agency
relationship with the client and this prevents the lawyer from talking about the client’s information
 Attorney client privilege protects:
 RESTATEMENT § 68 (1) a communication
 (2) made between privileged persons
 (3) in confidence [reasonable belief that no one will learn contents of communication except a privileged person]
 (4) for the purpose of obtaining or providing legal assistance for the client
 Attorney-client privilege is inapplicable if:
 Waived—client by mistake or otherwise, communicates to an outsider the contents of a privileged communication.
RESTATEMENT § 79.
 Even if the disclosure is only to the government, it is a waiver Columbia/HCA Healthcare Corp.
 Lawyer must take reasonable steps in the circumstances to protect confidential information against impermissible use
or disclosure REST. § 60(1).
 Some jurisdictions say that if communication is even capable of being overheard, the protection is lost (IL)
 Client seeks lawyer’s services in furtherance of crime or fraud. Prop. FRE 503 (d)(1)
 Claimants through the same deceased client. Prop. FRE 503 (d)(2).
 Breach of duty by lawyer or client. Prop. FRE 503 (d)(3)
 Document attested to by lawyer. Prop. FRE 503 (d)(4)
 Joint clients (current or former). Prop. FRE 503 (d)(5).
 Rest. § 75—if two or more persons are jointly represented, a communication of either co-client that otherwise qualifies
as privileged and relates to matters of common interest is privileged against 3rd persons, and any co-client can invoke
the privilege, unless the one who made the communication waived it.
 Identity not ordinarily privileged, BUT protected when the disclosure would lead to client liability. D’Alessio v. Gilberg.
 If a lawyer receives protected information, she should review the documents enough only to determine they are privileged, and
then return them State Compensation Insurance Fraud v. WPS.
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
Duration of privilege—courts differ on whether death allows discovery of privileged information
 REST. § 77—balance interest in confidentiality against exceptional need for communication; Swindler.
 State v. Macumber (court excluded two lawyers’ testimonies that their client, before death, confessed to committing
murder for which another person had been convicted).
 WORK PRODUCT IMMUNITY
 Definition, REST. § 87.
 Tangible material or its equivalent prepared by a lawyer for litigation, existing or anticipated [anticipated means litigation
could reasonably have been expected. In re Sealed Case]
 Opinion work product consists of opinions or mental impressions of the lawyer.
 Two ways to overcome work product immunity
 Opinion work product can be disclosed upon “extraordinary circumstances” REST. § 89, FRCP 26(b)(30).
 Other information can only be obtained upon a showing of “substantial need” FRCP 26(b)(3).
 Waiver. Immunity is waived by voluntary disclosure to a 3d party, even the govt. Columbia/HCA Healthcare Corp.
 Some courts say it is not waived if the party took steps to keep the material confidential. McKesson HBOC.
 Accidental disclosure may waive immunity depending on the jurisdiction’s approach:
 Never waived,
 Strict accountability (always waived),
 Restatement approach—no waiver if party took reasonable steps to prevent waiver. § 79, comment h.
 CONFIDENTIALITY
 Broader than attorney client privilege because it protects any information “relating to representation” not just confidential
information. RULE 1.6(a)
 Lawyer may be disciplined for either disclosing [RULE 1.6(a)] or using [RULE 1.8(b)] confidential information
 Even public information is protected by confidentiality
 Not confidential if:
 Lawyer obtains informed consent [RULE 1.6(a)] OR
 [RULE 1.6(b)] Necessary to:
 (1) Prevent reasonably certain death or substantial bodily harm
 (2) Prevent client from committing a crime or fraud reasonably certain to cause substantial injury to another AND in
furtherance of which the client has used or is using the lawyer’s services
 (3) To prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably
certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has
used the lawyer’s services.
 (4) To secure legal advice with respect to lawyer’s compliance with these rules.
 May disclose some information to obtain advice on representation if:
 The lawyer uses hypotheticals,
 Gets permission from the client if it might put the client at risk
 Obtain assurances of confidentiality
 Lawyer may not consult the lawyer who might represent the adverse party. ABA Formal Opinion 97-411.
 How Privileges differ from confidentiality:
 Attorney-client privileges apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise
required to produce evidence
 Confidentiality rules apply not merely to matters communicated in confidence by the client, but also to all information
relating to the representation, whatever the source.
 Confidential Information in Corporate Settings
 Upjohn—rule before this case was that the only group who could communicate in a way that was privileged was the control
group. But now, the corporation is protected with respect to communications of any employee which can contribute to the
corporations receiving legal assistance with a problem.
 RULES do NOT allow a lawyer to report on corporate client whose activities are breaking the law, but RULE 1.6 extends
protection to disclose conduct that will lead to imminent death or substantial bodily injury.
Conflicts
 MULTIPLE CLIENTS
 Concurrent Conflicts RULE 1.7(a)
 (a) A lawyer may not represent two clients if there is a concurrent conflict of interest. A concurrent conflict exists if:
 (1) the representation of one client will be directly adverse to another client, OR
 (2) significant risk that representation of one will be limited by lawyer’s duty to the other.
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
RULE 1.7 (b) Lawyer may represent a client IF
 (1) The lawyer reasonably she will be able to provide competent & diligent representation to each client, AND

(2) Not prohibited by law, AND
 Prohibited: representing more than one client in a criminal matter (RULE 1.7, comment 16)
 Prohibited: representation by former government lawyer for certain crimes in some places (Id.)

(3) Does not involve assertion of a claim by against one another in the substantially same proceeding, AND
 Not the same case when representing adoptive & biological parents in adoption matter. In re Michelman
 Fiandaca v. Cunningham. (Association represented two sets of prisoners and rejected settlement for one set
because it would adversely represent another set.)
 Cannot represent the buyer and seller in a real estate transaction. Baldassarre v. Bulter.
 Courts differ about conflicts existing in an uncontested divorce, but most say clients can’t consent
 Establishing a business. One version of the rules (2.2) said that lawyer could represent two parties if she:
 Consults with parties and informs them of the consequences,
 “reasonably believes matter can be resolved on terms compatible with the clients’ best interests”
 “little risk of material prejudice”
 Lawyer believes representation can be undertaken impartially.
 (4) Each client gives informed, written consent.
 Informed consent—client is aware of foreseeable ways that the conflict could have adverse effects
 Client can agree orally, and the lawyer can write it up and send it to her. Rule 1.7 comment 20
 Client revoke consent
 Revocation of consent depends on the circumstances:
 Nature of the conflict
 Whether client revoked because of a material change in the circumstances
 Reasonable expectations of another client
 Whether there will be a material detriment to either the client or lawyer
 REST. § 121—unless all clients consent, lawyer may not represent a client if that representation would create a conflict of
interest, defined as a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by
the lawyer’s own interests or by the lawyer’s duties to another or former client, or 3d person.
 DIRECT ADVERSITY CONFLICTS IN EXISTING CLIENTS
 Can’t represent a client where the representation would be directly adverse to an existing client’s interests. R. 1.7(a)(1)
 Substantial relationship test—when representation of a client on a matter is substantially related and adverse to a former
client, the adverse representation is prima facie improper. Cinema 5 v. Cinerama
 If two current clients are involved, the substantial relationship test doesn’t apply. Id.
 Purpose: loyalty and prospect that one’s client’s interests will be sacrificed for another (not so much about misuse of
information. Grivance Committee v. Rottner.
 Rule 1.7(a)(1) is only violated when the matters are directly adverse. If a past client merely objects, it isn’t violated
 To determine whether a person is a current client.
 Look at pattern of representation to establish whether there is an ongoing relationship. IBM v. Levin
 Examine the client’s reasonable expectations.
 Subsidiaries.
 Cannot represent the parent in one matter and represent another client who is suing the parent’s subsidiary without
consent. Image Technical Services v. Eastman Kodak Co.
 Proposed Factors from ABA Formal Opinion 95-390:
 Parent and subsidiary operate as one entity
 Agreement to treat them as one client
 Lawyer’s obligations to parents will materially limit pursuit of a claim against the subsidiary
 US v. ASCAP (Court held no conflict of interest where a lawyer represented ASCAP in its suit against a member)
 Brown & Williamson v. Pataki (Court didn’t disqualify firm who represented state government welfare department in getting
federal funding and the tobacco company in suing state to overturn prohibition on mail order cigarette sales)
 ABA Formal Opinion 92-367: A lawyer who in the course of representing a client examines another client as an adverse witness in
a matter unrelated to the lawyer's representation of the other client, or conducts third party discovery of the client in such a
matter, will likely face a conflict that is disqualifying in the absence of appropriate client consent. Any such disqualification will
also be imputed to other lawyers in the lawyer's firm. Q1: don’t get this at all.
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
Hot Potato Rule—Generally, the lawyer must drop both clients (Picker International) UNLESS the conflict was created by client’s
subsequent acquisition. Gould v. Mitsui Q1: At what point? After you’ve accepted both clients?
 Waivers of conflicts.
 Conflicts CAN be waived based on informed consent (where the client or former client have reasonably adequate
information about the material risks) REST. §122(1).
 Advanced Waivers
 Conflict waivers written into agreement of representation that are advance/open-ended are usually ineffective.
 ABA 93-372: It’s unlikely that a waiver which fails to identify potential opposing parties or a class of potentially
opposing clients would survive scrutiny
 Worldspan v. Sabre Group Holdings (engagement letter with an advanced conflict waiver, that didn’t mention the class
or individuals, signed six years in advance found ineffective)
 BUT SEE General Cigar Holdings v. Altadis (honored a broad advance waiver) Advanced consent is valid where:
 Made by sophisticated parties,
 Instant suit is not substantially related to claims in other cases (antitrust/free speech), AND
 Representation of the plaintiff in instant case would not impair firm’s representation of another client in any
matter. General Cigar Holdings v. Altadis (Latham representing GC and Alt in free speech against Mass. but
representing GC against Alt in antitrust at the same time. None of lawyers worked on both cases)
 POSITIONAL CONFLICTS (RULE 1.7, COMMENT X)
 “Not improper to assert inconsistent positions in cases pending in different trial courts, but it may be improper to do so in cases
pending at the same time in an appellate court”
 Question whether there is a significant risk that lawyer’s actions will “materially weaken the lawyer’s effectiveness in representing
another client” (i.e., by creating a precedent that would ‘seriously weaken’ position taken on behalf of another client) Rule 1.7,
comment 24.
 Lawyer can’t bring matter in the same jurisdiction if precedent would directly damage a current client. ABA 93-377.
 Lawyer still shouldn’t bring a matter, even if the matter is in another jurisdiction, if the matter is important enough that the
case would still have an adverse effect within your other client’s jurisdiction. Id.
 PERSONAL INTEREST CONFLICTS RULE 1.8(A)
 Lawyer may not acquire interest adverse to a client UNLESS terms are
 (1) “Fair and reasonable to client,
 Measured at time of acceptance, not later (though sometimes courts will invalidate if value becomes too great)
 (1) fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client,
 (2) client is advised and given opportunity to consult with other independent counsel, AND
 (3) client gives informed consent to essential terms in writing.”
 Regular course of business exception. RULE 1.8 excludes: “standard commercial transactions in regular course of business of the
client” AND “involving a product or service as to which the lawyer does not render legal services”. REST. § 126
 Courts are hostile to lawyer’s taking personal interest in client’s matters.
 Passante v. McWilliam (Lawyer loaned client $100k for 3% of baseball card company. 3% became worth $33M and court did
not uphold the contract, even though it was fair at the time of the transaction)
 In re Kirsh (client gave land for fees but land was encumbered. Court held that client didn’t commit fraud because the lawyer
should have done a title check first)
 Committee on Professional Ethics v. Mershon (court found a violation when the lawyer and client did a joint venture, even
though terms were fair, because the lawyer did not explain all aspects of the agreement).
 Use of Confidential Information
 Lawyer may not use confidential information to her benefit, even if it doesn’t hurt the client. REST. § 60, comment c; Healy v.
Gray
 NOTE: The Model rules DO NOT PROHIBIT USES THAT DON’T DISADVANTAGE THE CLIENT
 Model CODE DR 4-101(B)(3): lawyer may not “knowingly use confidence or secret of her client for the advantage of
herself or a third person”
 No professional discipline if use doesn’t harm the client under either REST. or RULES
 Lawyer still may be subject to:
 Disgorgement (paying back ill-gotten gains) REST. § 60 OR
 Securities law. US v. O’Hagan (the use of information may constitute a deceptive practice under SEA 10b-5)
 Consent remedies any use of client’s confidential information. RULE 1.8, comment 5
 Gifts.
 Lawyer can’t solicit any substantial gift from a client for herself or a person related to her unless the client is a relative
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
Lawyer may not prepare instrument effecting a gift UNLESS
 Lawyer is a relative or in a similar position AND
 “Gift is not significantly disproportionate to those given other donees similarly related to the donor.” § 127(1).
 Rules do not prohibit lawyer from seeking to be named to a lucrative fiduciary position, like executor. Rule. 1.8, comment 8
 Sexual Relationships
 Lawyer cannot have sex with a client unless the relationship preceded the representation. RULE 1.8(j).
 When client is an organization, precludes relationship with any member thereof RULE 1.8(j), comment 19
 BUT conflicts are not imputable to other members of the firm. RULE 1.8(k)
 THIRD PARTY CONFLICTS
 Payment by a third Party RULE 1.8 (f) A lawyer shall not accept compensation for representing a client from one other than the
client UNLESS:
 (1) client gives informed consent
 (2) no interference with lawyer’s independence of professional judgment or with the client-lawyer relationship, AND
 (3) information relating to the representation of client is protected as required by RULE 1.6
 Insurers and the insured
 Does the lawyer represent the insurer or insured for purposes of RULE 1.7? Varies state to state.
 REST. § 134 says insurer is not the client simply because they pay the lawyer, therefore it’s not a violation of RULE 1.7(a)
[representing two adverse clients in the same matter]
 Lawyer may not later represent the insured person against the insurer. Anon. SC Bar Members (1993)
 This is disingenuous because there will always be a significant risk that the lawyer’s judgment will be materially limited under
RULE 1.7.
 Settlements. When there is a conflict between the insured and the insurer, lawyer must disclose and invite insured to get
independent counsel at the insurer’s expense. Easley v. State Farm Mutual Insurance Co.
 In many states, if the insurer rejects the settlement offer within the policy limits, it must bear the risk of any loss, even
if it’s above policy limits. Crisci v. Security Insur. Co.
 Lawyer must honor insured’s refusal to settle unless insurance agreement gives authority to insurance co.
 If both the insured and the insurer are clients, lawyer has the duty to keep both informed of everything. R. 1.4
 Appropriate Level of effort
 What if insurer limits the level of effort? Under 1.8(f)(2), lawyer can accept third-party payments so long as it doesn’t
infringe on the independent judgment of the lawyer. Insurance companies hate this.
 Rest. § 134 says lawyer may not follow direction of the insurer if doing so would put the insured at significantly
increased risk of liability in excess of coverage
 Lawyer may not disclose records to the insurer so that insurer can make sure lawyer complied with its policies.
 Obligation to protect confidential information.
 Lawyer may not disclose information to retaining party that would be detrimental to the client. REST. § 134, comment f;
Parsons v. Cont’l National American Group
 Ill State Bar Op. 00-02 (where lawyer was retained by parents to represent the client, client, the lawyer could not disclose
information to parents without the client’s consent.)
 If concealing confidential information would perpetrate fraud on insurer, lawyer must withdraw. REST. § 134, cmnt. F
 Court may have the rights to see documents between the lawyer and retaining party. RI Ethics Op. 98-10.
 FORMER CLIENTS
 Continuing Duty of Confidentiality. Lawyer may not use information to a former client’s disadvantage UNLESS she has:
 Written, informed consent OR
 The information has become generally known. Wal-Mart (lawyer defended Wal-Mart in slip and fall and later sued for a slip
and fall in Wal-Mart using information about policies that were then public information)
 Directly opposing a former client.
 RULE 1.9(a) Lawyer shall not represent another person “in the same or a substantially related matter” where the new
client’s interests are “materially adverse” to the former client UNLESS client gives written and informed consent.
 Key to “same or substantially related” is asking whether the lawyer receive relevant confidential information.
 Comment 3 asks if it involves:
 The same transaction or legal dispute OR
 Substantial risk that confidential factual information as would normally have been obtained in the prior
representation would materially advance the client’s position in the subsequent matter
 REST. § 132 (a)
 (1) “the current matter involves the work the lawyer performed for the former client, OR
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
(2) there is a substantial risk that representation of the present client will involve the use of information acquired
in the course of representing the former client, unless information is generally known
 Ahmanson Factors:
 Factual similarity of cases,
 Legal similarity
 Extent of lawyer’s involvement in the cases.
 Did the lawyer gain knowledge casting light on the purpose of later acts and agreements where they are in question?
 Not necessary to prove that lawyer HAS information, but rather, a reasonable lawyer WOULD HAVE acquired relevant
information in doing their job
 Cannot represent a buyer then a seller in suit against the buyer. Damron v. Herzhog
 Representing a business person and getting personal information, then representing the spouse in divorce Rule 1.9,
comment 3.
 Marten v. Yellow Freight System Inc. (lawyer who gave employment discrim. seminar to company was not prohibited
from representing employees in dispute against company if no confidential info. was received.
 Other Situations Where Disqualification may be Required
 Lawyer disqualified in co-defendant situation because confidences are shared in a common defense.
 RULE 1.9(c), even if matters aren’t substantially related, lawyer can’t use info gained from prior representation
 Typically class counsel is allowed to sue class members in later suit. RULE 1.7, comment 25, but see Fuchs v. Schick (where
lawyer was not allowed to sue former class member when she was one of the lead plaintiffs)
 П firm hires paralegal who had worked at another firm representing Δ in similar past cases.
 Unless there is evidence of improper advantage (use of confidential information, etc.), no per se rule against using work product
of disqualified attorney. First Wisconsin Mortgage Trust.
 IMPUTATION AND SCREENING
 Imputation RULE 1.10(a)
 imputes one lawyer’s conflict to all others at the firm UNLESS
 Conflict is personal to the lawyer (like a sexual relationship) AND
 No risk of significantly limiting other lawyer’s representation BUT
 If the lawyer terminates association with the firm, the firm can represent the client.
 Q1: can a lawyer associated with a firm for competency purposes impute conflicts to the firm?
 Client may always waive imputation. Rule 1.10(c).
 Situations that come up often:
 Government or non-profit. Unclear whether imputation applies when lawyer is conflicted & works at a government/nonprofit agency; 3 approaches to conflicts in prosecutor’s office:
 No imputation where prosecutor had previously “represented” Δ Eidson v. Edwards
 Appearance of impropriety justifies disqualifying entire office Turbin v. Ariz. Superior Court (where lawyer previously
interviewed Δ & witnesses & negotiated w/ prosecutor’s office before joining the prosecutor’s staff)
 REST. § 213, comment d(iii)—no automatic imputation if prosecutor’s office is operated so as there is no material risk
that confidential information will be inadequately safeguarded.
 Lawyer’s sharing the same office—no imputation if the lawyers who share the office take reasonable care to keep
information confidential. ABA Informal Op. 1486.
 Affiliated Firms—if the firms have a “close and regular, continuing and semi-permanent” relationship or hold themselves as
affiliated will be considered as one for conflict determinations.
 Lawyer’s Old Firm CAN take cases adverse to the interests of a client of a lawyer who no longer works there, UNLESS
 RULE 1.10(b) Matter is the same or substantially related to that in which the formerly associated lawyer represented
the client AND
 Lawyer in old firm has information protected Rules 1.6 or 1.9(c) material to the matter in the present law suit
 Ex: lawyer and associates represent A in A v. B. Lawyer leaves the firm and still represents A. No one in the firm who
has confidential information about that representation can represent B.
 Lawyer’s New Firm. [RULE 1.9 (b)(2)] If a lawyer is disqualified from a matter at a firm, and then she leaves the firm and goes
to a new firm, the new firm is NOT disqualified, though the lawyer is.
 Lawyer’s family.
 ABA Formal Op. 340—spouses are not automatically disqualified if the other spouse has an interest in the opposing
party, unless the marriage creates a financial or personal interest that reasonably might affect the ability to a lawyer to
represent fully her client with undivided loyalty
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

Rule 1.7, comment 11: clients have a right to know where by blood or marriage there is a conflict or risk that
information will be inadvertently disclosed.
Cohabitation, similar to marriage, is treated as a marriage relationship.

Screening.
 Denotes the isolation of a lawyer from any participation in a matter, through the timely imposition of procedures within a
firm, that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to
protect under these rules or other law. RULE 1.0(k)
 Size and structural divisions of the law firm involved (screening in a 4-person law firm is suspect Van Jackson),
 Likelihood of contact between screened lawyer and lawyers responsible for the case,
 Existing rules to prevent screened lawyer from accessing information.
 REST. § 124(2)—Only allows screening to remedy former-client conflicts if no substantial risk that confidential information
will be used to adversely affect the old client, where:
 It’s unlikely that any confidential information will be significant in a subsequent matter,
 Screened lawyer is subject to adequate measures, AND
 Timely notice provided to all clients.
Counseling Clients
 INDIVIDUAL CLIENTS
 Lawyer should take the facts as she finds them and resolve legal doubts in clients favor. MODEL CODE 7-3.
 Styles of Counseling Individuals
 Client-Centered—Help client understand her own goals and means of achieving them.
 Justice-Centered—professor Simon argues lawyers should help client reach the just, not favorable, result
 Good Friend Approach—Shaffer & Cochran argue lawyer should be supportive but urge moral considerations as well
 Contextual Counseling—approach should depend on the nature of the client.
 Limits on Lawyer’s Advice
 Lawyer should not counsel or assist a client in engaging in conduct the lawyer knows to be criminal or fraudulent, but it is
unclear if counseling about nations without extradition treaties is covered.
 RULE 1.2 (d) Lawyer may discuss legal implications of any proposed course of conduct with the client and may counsel or
assist a client in making a good faith effort to determine validity, scope, meaning or application of the law.
 Different in presenting legal aspects of proposed conduct and suggesting that conduct RULE 1.2, comment 9.
 People v. Chappell (Lawyer disciplined after telling client to leave state when losing custody battle)
 Hughes (public reprimand where lawyer told client to ignore the court ordered drug testing because the lawyer
believed it was in valid). If a lawyer counsels avoidance of an order, BE RIGHT.
 If conduct has already begun, lawyer cannot assist by drafting or delivering fraudulent documents or concealing
conduct. RULE 1.2, comment 10.
 If lawyer was assisting conduct originally thought to be legal, but it turns out to be illegal, lawyer must withdraw from
the case. If the client continues to use documents or other work that the lawyer did, the lawyer must disaffirm any of
the work. Id.
 Clients with Diminished Capacity Rule 1.14
 Creation of the Relationship—Clients with “severely diminished capacity” may lack legal capacity to discharge a lawyer. RULE
1.16, comment 6. Lawyer should make special effort to help the client consider the consequences and take reasonably
necessary protective actions for the client.
 Preservation of Normal Relationship (RULE 1.14(a)—lawyer should “as far as reasonably possible, maintain a normal clientlawyer relationship” with clients with diminished capacity (age, mental impairment, some other reason)
 Lawyer should advocate what client wants unless “patently absurd or undue risk of harm to client” Matter of MR
(court said that lawyer should advocate for mentally retarded client’s parental preference in guardianship)
 Gary Gilmore case where attorneys appealed on his behalf after he decided he wanted to die.
 If client wants to commit suicide AND is suffering from mental disorder or disability, lawyer may notify family, agencies,
doctors or cops. Mass. Bar Association Op. 01-2
 Steps to Protect Client—when lawyer reasonably believes that client with diminished capacity is at risk of “substantial
physical, financial or other harm unless action is take” and lawyer cannot act in client’s own interest:
 Lawyer may take steps to protect client, including appointment of guardian ad litem, conservator, or guardian. RULE
1.14(b)
 Lawyer should take least restrictive steps possible though, Comment 7.
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
Revelation of Confidential Information—when acting pursuant to 1.14(b), lawyer may reveal information protected by 1.6 to
protect the client, but to the extent reasonably necessary. Just consider whether the person receiving the information will
act contrary to client’s interests (comment 8).
 Emergency Legal Assistance
 Lawyer may act on behalf of a person with seriously diminished capacity if threatened with imminent and irreparable
harm, even if no client-lawyer relationship exists. 1.14, comment 9
 Lawyer should take actions only minimally necessary to preserve status quo. Id.
 Lawyer should regularize relationship as soon as possible. Id., comment 10. Q1: example??
 CORPORATE CLIENTS
 Who is the client? Lawyer represents the organization acting through its duly authorized constituents. In reality, it is hard to
define corporate interests by anyone other than agents.
 Lawyer as director. ABA Formal Opinion 98-410
 Lawyer must advice client that problems of conflicts of interest and preservation of privilege may arise.
 Lawyer shouldn’t accept unless she is sure that problems won’t be serious.
 Lawyer should consider frequency, severity, etc. of issues. RULE 1.7, comment 35.
 Duty to Report Client Misconduct in Corporate Setting
 RULE 1.13(b) Lawyer must proceed as “reasonably necessary” in organization’s interests IF:
 Officer, employee, or other associated with the organization is engaged in action, intends to act or refuses to act
 in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law
that reasonably might be imputed to the organization, AND
 it is likely to result in substantial injury to the organization, THEN
 the lawyer shall refer the matter to higher authority in the organization, (even the highest authority [determined by
applicable law] if warranted by the situation).
 Duty to go outside the corporation RULE 1.13(c)
 (1) IF highest authority that can act on an organization’s behalf refuses to act AND the situation is clearly a violation of
law, AND
 (2) Violation is reasonably certain to result in substantial injury to the organization, THEN the lawyer may reveal 1.6
confidences necessary to prevent injury UNLESS
 RULE 1.13(d) Lawyer was retained to investigate violations of law or defend an organization, officer, or employee or
other constituent against claim arising from an alleged violation of law.
 Lawyer must disclose information if facts indicate beyond a reasonable doubt that crime will be committed ABA 314
 REST § 66 (more limited approach):
 Lawyer must report if necessary to prevent reasonably certain death or serious bodily harm to a person BUT
 Must first make a good faith effort to persuade the client to change or warn the victim
 Liability for Failure to Disclose
 A lawyer’s decision not to disclose does not violate rule. RULE 1.6, comment 13
 Failure to disclose does not lead to professional discipline or to liability for damages to the client or a third party
 FDIC v. Mmahat ($35M judgment against lawyer who was part of Board for a bank that violated lending laws)
 FDIC v. O’Melveny & Meyers (Based on Cal. law, a law firm who knew that its client was dishonest had a duty to reveal the
information to “avoid public harm”)
 DISCLOSING INFORMATION ABOUT YOUR CLIENT
 General Duty
 J. Jackson says that lawyers are officers of the court and “intellectually independent of client control”
 Lawyer’s representation of client does not constitute an “endorsement of client’s political, economic, social or moral views
or activities. RULE 1.2(b).
 Disclosing confidential information:
 To prevent “reasonably certain death or substantial bodily harm” Rule 1.6(b)(1). State v. Hanson (allowed the lawyer
to warn the judges/prosecutors that the convicted felon client had threatened to kill them)
 Lawyer may disclose information to prevent the client from committing “crime or fraud that is reasonably certain to
result in substantial injury, financial, or property interest” AND IN FURTHERANCE OF WHICH the client has used the
lawyer’s services. RULE 1.6(b)(2).
 Lawyer may also disclose information to mitigate or rectify the harm described directly above. RULE 1.6(b)(3).
 No law requires reporting of past crime, but lawyer must disclose client’s intention of committing future crime.
Negotiation Ethics
 AUTHORITY TO PARTICIPATE AND ENTER INTO NEGOTIATIONS
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
Implied Authority.
 “In the absence of a contrary agreement, lawyer normally has authority to initiate or engage in settlement discussion,
although not to conclude them” REST. § 22, comment c.
 Lawyer has authority to take any lawful measure within the scope of representation that is reasonably calculated to advance
a client’s objectives. REST. § 21, comment e.
 Lawyer must reasonably consult with the client about the means by which the client’s objectives are to be accomplished.
 Plea bargaining. Obligation to engage in plea bargaining is unclear, but In re Stanton (lawyer was suspended after refusing to
assist clients in plea bargaining)
 Client has Ultimate Authority.
 Lawyer shall abide by client’s decision whether to settle a matter, and lawyer may take such actions as are impliedly
authorized to carry out representation.
 Generally, client is not bound by a lawyer’s unauthorized settlement on their behalf. REST. § 27, comment c.
 Duty to Inform the Client.
 RULE 1.4(b). Lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed
decisions about the representation.
 Lawyer must inform client of settlement offer UNLESS client has previously indicated that the offer would be unacceptable
or has authorized lawyer to accept or reject the offer. RULE 1.4, comment 2.
 DUTY OF HONESTY
 RULE 4.1(a). “Lawyer shall not knowingly make a false statement of material fact or law to a third person”
 BUT estimates of price or value or a party’s intentions on acceptable settlements are not material facts., comment 2 But see
Fire Insurance Exchange v. Bell (Δ’s lawyer stated that settlement limit was $100k, but it was actually $300k. П settled for
$100k, but court held that П’s lawyer was entitled to rely on the Δ’s lawyer in this situation)
 Nondisclosure is ok unless it would constitute fraud. RULE 4.1(a)
 Duty to Volunteer Information or Correct a Misapprehension.
 Failure to disclose when client’s death is tantamount to making a “false statement of material fact” ABA 95-397
 Virzi (П died with no relation to the accident. Throughout negotiations the lawyer never mentioned П’s death but Δ
never asked if П is available for trial either. This was not zealous representation but fraud.)
 Kentucky Bar Association v. Geisler (П sued after being hit by Δ’s car, but lawyer didn’t tell Δ that П was dead)
 ABA Formal Opinion 94-387—if the lawyer knows that the statute of limitations has run, the ethics rules do not stop her
from negotiating the claim w/out informing the opposing party. SOL is an affirmative defense for the other party.
 In negotiations it’s ok to not tell all the truth at the beginning as there isn’t an affirmative misrepresentation. ABA Formal
Opinion 314 (dealing with IRS specifically).
 SETTLEMENTS
 Secret Settlements violate RULE 5.6(b) [lawyer shall not participate in offering or making an agreement in which a restriction on
the lawyer’s right to practice is part of the settlement] by materially limiting lawyer’s ability to represent future clients. ABA Op.
00-417.
 Settlements when the Lawyer Represents Two Parties. Lawyer who represents two or more clients shall not participate in making
an aggregate settlement of the claims. RULE 1.8(g)
 Informed consent can overcome this rule
 REST. § 128 states that this situation presents conflicts of interest and that 1.8(g) is really a conflict of interest rule with a
written informed consent provision
 CRIMINAL CONTEXT
 Brady Rule. Prosecutor is under a Constitutional duty to respond to Δ’s request for disclosure of material evidence favorable to Δ
 Material evidence—whether disclosure would have made a different result reasonably probable Kyles v. Whitley (US)
 Prosecutor has the duty to disclose to Δ that key evidence against him has been disclosed Fambo
 BUT there’s no denial of due process when prosecutor didn’t disclose key witness’s death because this does not reflect
doubt on Δ’s guilty. Jones
 ALSO no duty to disclose impeachment information about witnesses in negotiations even if you would have to disclose that
information at trial. US v. Ruz (US).
 Undercover Work May be Permissible. Gatti case said it was impermissible, but Oregon amended the rules to permit “covert
activity”
Legal Opinion & Auditor Letter
 Duties to the Client Asking for Legal Opinions
 Lawyer shall exercise independent professional judgment and render candid advice. RULE 2.1. Lawyer may not just say an
opinion just because the client wants to hear it.
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
Special Situations: Taxes. Likelihood of information impairing ultimate chance of success dictates whether it should be disclosed.
ABA Formal Opinion 314. IRS is not judicial or a tribunal so they are not truly unbiased. For that reason, lawyers can urge
statements of positions most favorable to the client as long as there is a reasonable basis for it.
 Duties in Preparing Legal Opinion for 3rd Parties
 RULE 2.3 Evaluation for Use by Third Persons
 (a) [Provision of opinion must be consistent with the client-lawyer relationship]. A lawyer may provide an evaluation of a
matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the
evaluation is compatible with other aspects of the lawyer’s relationship with the client.
 (b) [Can’t provide evaluation if it’s adverse unless you have written informed consent]. When the lawyer knows or reasonably
should have known that the evaluation is likely to affect the client’s interests materially and adversely, the lawyer shall no
provide the evaluation unless the client gives informed consent.
 (c) [Information not in the report is still protected]. Except as disclosure is required in connection with a report of an
evaluation, information relating to the evaluation is otherwise protected by RULE 1.6
 Accuracy
 Unless stated otherwise, there is no “guarantee by the lawyer that the facts stated are accurate” REST. § 95, comment c.
 Lawyer may rely on facts that the lawyer “reasonably believes to be appropriate sources” without further investigation,
unless recipient requires more investigation. Id. UNLESS
 Facts appear irregular on their face (ABA “Legal Opinion Principles” (1998) OR
 Facts have been provided by an inappropriate source. Id.
 Opinions are expressions of legal opinion and not guarantees that a court will reach any particular result.
 Opinions for Auditors.
 ABA/AICPA Treaty: Agreement Between AICPA and ABA Statement of Policy.
 (5) When requested by the client, it is appropriate for lawyer to furnish to the auditor information concerning the following
matters if the client has been engaged by the client to represent or advise the client professionally:
 (a) Overtly threatened or pending litigation, whether or not specified by the client
 (b) a contractually assumed obligation which the client has identified and specifically requested
 (c) an un-asserted possible claim or assessment which the client identified and requested.
 Lawyer may provide information about:
 Items “material to the presentation of financial statements”
 The likelihood of success (with a scale of either probable or remote)
 Lawyer may state range of potential loss.
 Lawyer Liability for Inaccurate Opinions
 Liability to Client
 If lawyer did not use ‘reasonable care’ in rendering opinion for client’s management, client will likely be able to sue for
malpractice. FDIC v. O’Melveny & Meyers
 UNLESS stated otherwise, no “guarantee by the lawyer that the facts are accurate” REST. § 95, comment c
 Liability to Third Parties
 Lawyer or lawyer’s client invites the third party to rely on the lawyer’s opinion & the third party does. REST. § 51(2)(a)
 Examples:
 Greycase v. Proud (lawyer was liable when he claimed he had done a title search on security interests but he hadn’t
and Greycas relied on his report)
 Mehaffy, Rider, Windholz & Wilson (lawyer stated that a lawsuit was not meritorious and the banks relied on this
opinion to buy bonds. Lawyer was liable when the bonds fell through because they knew that the opinion would induce
non-clients to buy bonds. Negligent, material misstatements of fact)
 Central Bank of Denver v. First Interstate Bank (US) (there is no “aiding and abetting” liability under § 10(b) so
securities Пs cannot sue lawyers and other professionals under this theory).
Compulsory Disclosure of Law or Facts
 CANDOR IN LITIGATION
 Adverse Legal Authority RULE 3.3(a)(2). Lawyer must cite known adverse authority IF directly adverse in a controlling jurisdiction
AND not disclosed by the other side.
 If authority is scant but boils down to whether the court relies on the authority seriously and might lead court to rule against
the lawyer, then she should disclose it.
 Tyler v. Alaska (duty to cite cases that are reasonably considered to “cast substantial doubt” on the argument being made)
 Policy: Rule 3.3, comment 4, Lawyer is obligated to invoke the law’s protection
 Tactically, it makes sense to preempt the opposing counsel
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

 Law is inherently not the client’s material like the facts are
Adverse Facts
 No duty to disclose adverse facts or witnesses. Lawyer does not have the right to turn on a client either. People v. Cassas
(court threw out lawyer’s statements that client committed the crime).
 BUT there is a duty to correct a false statement of material fact or law previously made to the tribunal by law
 FRCP 26
 Lawyer must disclose names and information of a witness the client is using to support her own claims and defenses
 Lawyer must take remedial measures if she learns that information acquired in discovery has in some respect been
incomplete or incorrect and if information has not otherwise been made known to the other parties
 No duty to correct an opponent’s misapprehension of facts.
 Failure to disclose can be deception under certain circumstances.
 Toledo Bar Association v. Fell (attorney failed to inform court that client died)
 Virgin Islands House Authority v. David (failure to accurately reflect lower court proceedings resulted in a violation)
 Ex Parte Proceedings. RULE 3.3(d)
 “In an ex parte proceeding [like a restraining order], a lawyer shall inform the tribunal of all material facts known to the
lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.”
 Comment 14: ex parte proceedings are different than normal advocacy because there is no balance of presentation by
opposing advocates, but the results should still be just. The lawyer for the represented party must disclose all facts
Candor About Matters That Aren’t Easily Verifiable. If the court is relying on the lawyer for corroboration of the correctness of a
statement of a court, the lawyer must disclose the fact. ABA Formal Opinion 287.
The Client Who Intends to Commit Perjury
 PERJURY
 Lawyer’s Actions RULE 3.3(a)
 (a) A lawyer shall not knowingly:
 (1) [false statements] make a false statement of fact or law to a tribunal or fail to correct a false statement of material
fact or law previously made to the tribunal by the lawyer;
 (3) [false evidence] offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called
by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take
reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer
evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
 Check RULE 1.2(d) about counseling client to engage in criminal or fraudulent conduct if client asks about how her
story sounds or if she needs to change things to make it more believable.
 OK to offer evidence even if lawyer reasonably believes it to be false, as long as they don’t know it. Comment 8.
 OK to offer evidence to prove its falsity. Comment [5].
 If only part of testimony false, lawyer shouldn’t ask about that part. Comment [6].
 RULE 1.0(f) defines “know” as having actual knowledge
 In re Foley (lawyer punished more for concocting and planning a false story for the client outside of the courtroom, because
in the courtroom lawyers can get caught up in the heat of proceedings and without planning to commit perjury)
 Duty to Prevent Fraud by Others RULE 3.3(b)
 RULE 3.3(b) “A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to
engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable
remedial measures, including, if necessary, disclosure to the tribunal.”
 RULE 3.3(a)(3)—lawyers, like everyone else, cannot aid and abet perjury, which is a criminal offense.
 No requirement of materiality, ABSOLUTELY NO FALSITY. Florida v. Cox (used a false name for govt. informant).
 Lawyers may not use false testimony during a trial to catch the opposing lawyer suborning perjury because of integrity
of courtroom
 Lawyer’s failure to prevent false testimony to bolster case was not malpractice. Tibbs.
 The Decision to Call the Defendant who May Commit Perjury
 Criminal Δ has a Constitutional right to testify on her own behalf in criminal a trial. Rock v. Ark.
 There may be ineffective assistance of counsel if the lawyer threatens to withdraw rather than allow Δ to testify falsely.
Nichols v. Butler (ineffective assistance of counsel when lawyer threatened withdrawal)
 Right to testify on own behalf does not include right to testify falsely. Nix v. Whiteside.
 Narrative. Some courts will allow narrative if criminal D insists on making false testimony. DC Rules of Professional
Conduct, 3.3(b).
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
What to Do When the Client Does Give False Testimony
 The lawyer who knows her client has committed perjury must disclose this knowledge to the tribunal if she cannot
persuade the client to rectify the perjury. ABA Formal Opinion 341 which led to RULE 3.3(a)(3), (b), comments 10-11.
 A lawyer, while telling the court of the perjury, can reveal information protected in RULE 1.6
Duration of Duty RULE 3.3(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply
even if compliance requires disclosure of information otherwise protected by Rule 1.6. Conclusion is when “final judgment has
been affirmed on appeal or time for review passed.”
Handling Physical Evidence
 Confidentiality of Client’s Identity.
 Client identity is not usually confidential—information relating to representation can be disclosed if “impliedly authorized in order
to carry out the representation” RULE 1.6(a)
 Identity shouldn’t be disclosed if it would lead to client liability
 Baird v. Koerner—attorney-client privilege protected the identity of tax payers paying past taxes through their lawyer
 REST. § 69, comment g—client privilege should be decided based on the extent to which the information would directly
reveal the content of the privileged communication
 “Last Link” doctrine—if the fact of consultation would itself be sufficient to tie the client to a crime, the lawyer should not
have to disclose the client’s identity. Only applicable in rare situations
 RULE 1.6(b) Identity can be disclosed when lawyer reasonably believes necessary:
 (1) To prevent reasonably certain death or bodily harm,
 (2) To prevent client from committing crime,
 (3) To prevent substantial injury to financial interests of others that will result from client’s commission of a crime,
 (4) To secure legal advice about professional responsibility,
 (5) To establish a claim on behalf of the lawyer and the client or to have a defense against criminal charge or civil action
where client was involved, or respond to allegations in any proceeding concerning the representation
 (6) To comply with other laws or a court order.
 Taking Possession of Physical Evidence for Testing or Safekeeping
 RULE 3.4(a) a lawyer shall not unlawfully obstruct another party’s access to evidence or ater, destroy or conceal a document or
other object with evidentiary value.
 REST. § 119—with respect to physical evidence, the lawyer may:
 (1) take possession of physical evidence when necessary for representation and retain it for testing—not alter or destroy it.
 See also People v. Meredith (when defense counsel removes or alters evidence, she deprives prosecution of the
opportunity to observe the evidence in its original condition or location)
 In re Ryder (lawyer transferred his client’s stolen money to his own safety deposit box, going beyond receipt and
retention of a confidential communication. He was suspended)
 Evidence is not a communication. Sowers v. Olwell (“attorney should not be a depository for criminal evidence, which
in itself has little, if any material value for the purposes of aiding counsel in the preparation of the defense of his
client’s case”)
 (2) lawyer must notify police of lawyer’s possession of evidence or turn the evidence over to them
 Non-disclosure of Physical Evidence
 Failure to disclose facts. Belge (where grand jury cleared lawyers for failing to disclose the location of two bodies from prior
murder victims). NY State Bar affirmed that there was no duty to disclose.
 Clutchette v. Rushen (if the lawyer had not received receipts he knew were critical to prosecutor’s case, he would not need to
disclose them, but since he had the wife take possession of the receipts, they were fair game for police discovery)
 RULE 1.6(b)(1) lawyer can reveal client confidences when necessary to prevent death or substantial injury.
 McClure v. Thompson (lawyer rightly revealed location of child victims with a reasonable belief they might still be alive)
 Henderson v. State (even if belief the victim is still alive is remote, the authorities are entitled to pursue the possibility
 Destroying Failing to Retain Physical or Documentary Evidence
 RULE 1.2(c) “a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or
fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or
assist to make a good faith effort to determine the validity, scope, meaning, or application of the law”
 RULE 3.4(a) a lawyer may not obstruct access to evidence or unlawfully alter, destroy or conceal evidence. Lawyer cannot counsel
or assist a person to do the act herself.
 If there is a reasonable basis to believe a case may be filed, lawyer should counsel client to hold onto documents or else face
“conspiracy to obstruct the due administration of justice in a proceeding which [is not pending but which] becomes pending in the
future.” United States v. Perlstein.
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Special Duties of Prosecutors—Prosecutor Ethics
 Media Relations in Modern Litigation
 Sheppard v. Maxwell. Excessive pretrial and trial publicity could be a due process deprivation
 RULE 3.8(f) (Applies to prosecutor)
 Prevents lawyer form making statement that have “substantial likelihood of heightening public condemnation of the
accused.” AND
 Requires the lawyer to take reasonable precautions to ensure that people involved don’t make extrajudicial statements that
prosecutor would be prohibited under RULE 3.6
 RULE 3.6. Prevents lawyers (not just prosecutors) from:
 Making statements they know or reasonably should know will be disseminated by means of public communication.
 Making statements that have a substantial likelihood of materially prejudicing an adjudicative proceeding.
 RULE 3.6(b) which permits disclosing
 (1) the claim, offense, or defense involved, except where prohibited by law, the identity of the people involved,
 (2) information in public record.
 (3) that an investigation of a matter is in progress
 (4) the scheduling or result of any step in litigation
 (5) request for assistance in obtaining evidence and information
 (6) warning of danger concerning behavior of a person involved “when there is reason to believe that there exists the
likelihood of substantial harm to an individual or to the public interest” OR
 (7) IN A CRIMINAL CASE:
 (i) the identity, residence, occupation, and family status of the accused,
 (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person,
 (iii) the fact, time, and place of arrest, and
 (iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
 Constitutional First Amendment Concerns
 Lawyer’s speech can be regulated by less than a “clear and present danger standard,” risk of “material prejudice” acceptable
standard. Gentile v. Nevada State Bar.
 U.S. v. Bingham (judge disciplined lawyer for criticizing him/her on TV). If the criticism had been made in open court, and
then reported to the media, it would not have been a violation though under 3.6(b)(2).’
 Lawyer is not shielded from libel charges if she publishes a website about the opposing party. Seidl v. Greentree Mortgage.
 Just because a lawyer doesn’t violate a PRE doesn’t mean she is free from any liability. Kennedy v. Zimmerman (a lawyer can
be sued for defamation even though 3.6(b)(2) doesn’t prohibit the statement to a reporter).
 Policy Issues:
 Robert Shapiro suggests defense should have more leeway with the media because prosecution has police who make
statements and other media reports about crimes and the arrest.
 Duke Lacrosse Case—Disciplinary proceeding brought against DA Nifong for announcing the players were guilty of rape
 Standards Governing Decision Whether and What to Charge RULE 3.8
 (a) The prosecutor should refrain from prosecuting a charge she “knows is not supported by probable cause.”
 As opposed to RULE 3.1’s restriction on lawyers to bring civil cases only if there is a basis in law and fact that is not frivolous,
which includes a good faith argument for an extension or modification of existing law.
 (d) The prosecutor in a criminal case shall make timely disclosures of “all evidence or information known to the prosecutor that
tends to negate guilt of the accused or mitigates the offense,” OR in “connection with sentencing, disclose to tribunal all
unprivileged mitigating information.”
 Pleas
 US v. Goodwin—a lawyer can threaten a criminal Δ with bringing higher charges as long as the Δ is subject to such charges if the Δ
fails to plead guilty to the lesser charges.
 Prosecutor may let the Δ go free in exchange for testimony against someone the prosecutor believes is more dangerous to
society. US v. Singleton (10th Cir.) (reduced sentence is not like payment for testimony)
 Exculpatory Evidence
 Brady Rule (3.8(d)). Don’t have disclose lack of evidence, but have to disclose any exculpatory evidence you do have.
 US v. Williams—the prosecutor doesn’t have to turn over exculpatory evidence to the grand jury who is just there to determine
whether there is enough evidence to charge; however, RULE 3.8(d) requires eventual disclosure.
 There’s an obligation to disclose when police are lying, but there is no presumption that they are. Berrios.
 Zahrey—U.S. Attorney charged with bribing witnesses by offering to drop their charges if they testified against a police officer
who was on trial. The prosecutor only has qualified immunity in the course of an investigation
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 If a prosecutor knows the government witness’s testimony is false, the lawyer has a duty to inform court. Idaho v. Warrick.
 Limits on Prosecutors Investigating Defense Attorneys
 Rule 3.8(e) The Prosecutor cannot subpoena a lawyer in a grand jury or criminal proceeding to testify about a past or present
client unless the prosecutor reasonably believes:
 (1) the information is not privileged, AND
 (2) the evidence is “essential to successful completion or ongoing investigation or prosecution.” AND
 (3) there is no other feasible way of obtaining information.
 Prosecutor doesn’t need to show compelling or reasonable need to subpoena lawyer in a grand jury setting when doing so would
disqualify lawyer from representing client. In re Grand Jury Subpoena Served upon Doe (at trial stage is when the court weighs
the right to counsel against public interest in testimony).
 Defense counsel should resist subpoenas. ABA For. Op. 94-385.
 Once an order issued, however, the lawyer should comply.
 No Fifth Amendment right to refuse to testify about the client’s lifestyle, spending habits and sources of income.
 Conn v. Gabbert (no constitutional rights violation when lawyer’s office was searched for a letter which did not violate his
liberty interest, nor was his client prejudiced by her lawyer responding to the subpoena because a grand jury witness has no
constitutional right to a lawyer)
 Seizure of Fees of Privately Retained Defense Counsel
 Under RICO and Comprehensive Forfeiture Act (CCE), the government can charge that Δ got 95% or more of income as profits
from narcotics trafficking and notify counsel that fees are subject to seizure if D convicted.
 lawyer must then establish that she received funds without knowing that property was subject to seizure.
 A warning makes it difficult for attorney to establish, thus, lawyers are dissuaded from accepting cases.
 Constitutional issues:
 How can you deny Δ the right to use funds to defend herself when wrongfulness of the funds has not yet been established?
 In Caplin & Drysdale v. U.S., SCOTUS held that Δs only have a constitutional right to representation, not to the lawyer of their
choice; therefore, there is no right to retain fees where funds were illegally obtained.
 Pre-trial order may freeze all assets, including those used to pay the lawyer. U.S. v. Monsanto (US).
 Lawyers legally required to report payments greater than $10,000. 26 U.S.C. § 6050I.
 This is OK even though will reveal to government who has hired an attorney.
 Doesn’t matter that IRS has no interest in who paid (i.e. should only be worried about reporting income). Ritchie
 BUT see lawyer privilege may overcome § 6050I if sufficiently tied with other privileged information.
Marketing Legal Services
 Advertising
 Lawyers have a First Amendment right to advertise but the state may regulate “false, deceptive or misleading” conduct by placing
reasonable restrictions on time, place and manner permissible. Bates v. Arizona State Bar.
 Model Code 2-101(B) was passed in response to Bates but is significantly different than RULES 7.1-7.5.
 RULE 7.1—a lawyer shall not make a false or misleading communication about the lawyer or lawyer’s services; False/misleading:
 Contains a material misrepresentation of fact or law
 Omits a fact necessary to make the statement not a misrepresentation
 FORMAL OPINION 10-457: guidelines about what can go on a law firm website: information about lawyers, their practice
areas, the identity of clients who have given consent, no false information, no legal advice, etc.
 Comment 3: Accurate statements about a lawyer’s successes for other clients may be misleading if a reasonable person
forms an unjustified expectation that the same results could be obtained, regardless of the factual and legal circumstances
 MODEL RULE 7.2
 (a)[Ads are OK] A lawyer may advertise services written, recorded or electronic communication, including public media.
 Zauderer v. Office of Disciplinary Counsel— upheld state bar discipline for failing to note in a newspaper advertisement
that clients would be responsible for paying court filing costs regardless of the outcome of the case.
 (b)[No payment for promotion, UNLESS] a lawyer shall not give anything of value to a person for recommending the lawyer’s
services except that a lawyer may:
 (1) pay the reasonable costs of advertisements permitted by this Rule;
 (2) pay the usual charges of a non-profit lawyer referral service or legal service organization; or
 (3) pay for a law practice in accordance with RULE 1.17.
 (4) refer clients to another lawyer or professional if:
 (i) the reciprocal referral agreement is not exclusive AND
 (ii) the client is informed of the existence and nature of the agreement.
 (c) any communication made pursuant to this rule shall include the name of at least one lawyer responsible for its content
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
MODEL RULE 7.3 – Direct Contact w/ Prospective Clients
 (a) a lawyer shall not by in-person or live contact solicit professional employment from a prospective client w/ whom the
lawyer has no family or prior professional relationship when a significant motive is the lawyer’s pecuniary gain.
 (b) a lawyer shall not solicit professional employment from a prospective client by written or recorded communication or by
in-person or telephone contact even when not otherwise prohibited by (a) if:
 (1) the prospective client has made known to the lawyer a desire not to be solicited; or
 (2) the solicitation involves coercion, duress or harassment.
 (c) every written or recorded communication who is not family member or former client shall include the words “Advertising
Material” on the envelope or at the beginning and ending of a recording.
 (d) Notwithstanding (a), a lawyer may participate with a group legal service plan which uses in-person telephone contact to
solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular
matter covered by the plan.
 Note: Under RULE 8.4(a), a lawyer may not violate the advertising and solicitation rules through the acts of another
 FL v. Went For It, Inc. (US)—FL law upheld that does not allow lawyers to send materials to an accident victim within 30 days
 State laws protect substantial interest of protecting clients’ privacy
 Advanced the interest in a direct and material way
 Other issues
 In Matter of Zang (lawyers claimed they were good at preparing for trial, but never actually went to trial. Court held the
advertisement was flattering beyond the point of deception).
 In re Keller (‘insurance companies know the name Keller’ falsely implied a usual favorable outcome for clients)
 False/Misleading Firm Name
 RULE 7.5 Firm Names and Letterheads
 (a) trade name may be used if it doesn’t imply a connection with a government agency or legal services organization
and doesn’t violate RULE 7.1
 ABA MODEL CODE DR 2-102(b)—lawyer should not practice under a trade name or name containing names other
than members of the firm.
 Comment 1: Misleading to use name of someone not associated with the firm or a nonlawyers
 (b) Offices in different jurisdictions can use the same name but id of lawyers should be clear where they’re licensed
 (c) Name of a lawyer holding public office shouldn’t be used in the name of a law firm
 (d) Lawyers may imply they practice in a partnership but not if that is a lie.
 Solicitation
 Generally, don’t contact prospective clients, unless she’s a lawyer or the lawyer has a personal relationship with the prospective
client. If the prospective client makes known that they don’t want to solicited, don’t do it to anyone. Don’t use duress.
 RULE 7.3 No Direct Contact with Prospective Clients
 (a) [In person solicitation]. A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional
employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain,
unless the person contacted:
 (1) is a lawyer; or
 (2) has a family, close personal, or prior professional relationship with the lawyer.
 (b) [No written or electronic communication IF] A lawyer shall not solicit professional employment from a prospective client
by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not
otherwise prohibited by paragraph (a), if:
 (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
 (2) the solicitation involves coercion, duress or harassment.
 (c) [Requirements for solicitations] Every written, recorded or electronic communication from a lawyer soliciting
professional employment from a prospective client known to be in need of legal services in a particular matter shall include
the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or
electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).
 (d) [Pre-paid or group legal services exception]. Notwithstanding the prohibitions in paragraph (a), a lawyer may participate
with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses inperson or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need
legal services in a particular matter covered by the plan.
 Solicitation OK for family, close personal or prior professional relationship with the lawyer. RULE 7.3(b)
 Ohralik v. Ohio State Bar Association (it was not ok for a lawyer to get a girl to hire him when he visited her in the hospital.
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

In re Primus. (it was ok for a lawyer to advertise that the ACLU offered sterilized women free legal services. SCOTUS
distinguished Ohralik because (1) the solicitation was in writing and (2) the case had a political character to it.
Targeted Direct mail counts as solicitation.
 Targeted direct mail—contact w/ persons believed to have a specific current need for legal service. Ex: victims of plane crash
 Shapero v. Kentucky Bar Association (US)—KY’s law banning targeted direct mail was unconstitutional because lawyers can
send advertisement mail without targeting, so limiting them from being more efficient by targeting is not Constitutional.
 Additionally, targeted direct mail can be disregarded just like advertising or put into a drawer to consider later
 In person solicitation is still not allowed because it is different from a letter which can be thrown away
 ABA rules treat internet chat solicitation as like in-person solicitation, but it is unclear that it’s the same.
The Ethics of Referral to a Specialist
 Required level of competence. Rule 1.1
 “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation.”
 Notes:
 Lawyer may take case involving subject matter in which he or she is unfamiliar. Rule 1.1, cmt. 2. Comment 1. Don’t need
prior experience or special training.
 Can give advice without ordinary skill required in an emergency.
 Note that lawyer will still be bound by fiduciary duty, though this doesn’t seem to fully apply.
 RULE 7.4: Communication of Fields of Practice and Specialization
 (a) Lawyer may communicate areas where she practices.
 (b) a patent lawyer admitted before the PTO may say patent
 (c) “Admiralty” designation is fine if engaged in admiralty law.
 (d) A lawyer shouldn’t say she’s certified, unless:
 (1) lawyer has been certified as a specialist by an organization approved by an appropriate state authority or ABA; AND
 (2) the name of the certifying organization is clearly identified in the communication.
 Lawyer cannot call herself a specialist even if she only take cases of a specific type, because it is misleading. Matter of Robbins.
 California has a “certified specialist” designation that you can call yourself if you take certain number of cases in particular,
get education, take examination, etc. page 550.
 Peel v. Attorney Registration and Disciplinary Commission (US ) (lawyer listed his certification from the National Board of
Trial Advocacy, a respected national organization, in letterhead. Stevens plurality held that the state couldn’t prohibit the
reference, and distinguished this case from facts that lead to an inference of quality and warranty. Marshall and Brennan
concurred holding that Peel’s claim might be misleading, but a state cannot just prohibit things like this)
 If lawyer does refer the case to an outside lawyer, what fee can the referring lawyer get?
 RULE 1.5(e) division of fees between lawyers NOT in the same firm can only be made if:
 (1) division is in proportion to services performed or each lawyer assumes joint responsibility for the representation;
 (2) client agrees in writing to the arrangement, including the share each lawyer will receive; and
 (3) the total fee is reasonable.
 A lawyer cannot get a fee simply for referring a matter; the lawyer must have worked on the matter, and then can only get fees
for work they do.
 RULE 7.6: Political Contributions to Obtain Government Legal Engagements or Appointments by Judges: Lawyer or firm should not
accept government engagement or appointment by a judge if lawyer/firm makes a political contribution or solicits political
contributions for the purpose of obtaining or being considered for that type of legal engagement or appointment.
Roles and Responsibilities in a Law Firm pgs. 559-574
 Obligations of Supervisory Lawyer
 RULE 5.1. Responsibilities of Partners, Managers, and Supervisory Lawyers
 (a) A partner or similar position in a law firm, shall make reasonable efforts to ensure that the firm has measures giving
reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct
 Attorney Grievance Commission v. Ficker (Court fined supervising lawyer for not having procedures to ensure cases
were properly handled, ran firm like a “taxicab company”)
 (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other
lawyer conforms to the Rules of Professional Conduct.
 (c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
 (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
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
(2) the lawyer is a partner in the law firm in which the other lawyer practices, or has direct supervisory authority over
the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to
take reasonable remedial action.
 Billing more than agreed upon amount probably an ethical violation. RULE 8.4(c) (engaging in “conduct involving dishonesty,
fraud, deceit or misrepresentation” is professional misconduct).
 In Matter of Haskell. lawyer suspended for two years for billing client at his rate for work younger associates did and
for his own personal expenses.
 Lawyer can be responsible for errors made by non-lawyers. Wilkinson (lawyer assigned law school grad to do work,
told him not to give legal advice, but did and client lost a ton of money).
 Responsibilities of a Subordinate Lawyer. Rule 5.2
 (a) lawyer is bound by the Rules notwithstanding that the lawyer acted at the direction of another person.
 (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a
supervisory lawyer's reasonable resolution of an arguable question of professional duty.
 RULE 5.3: Responsibilities Regarding Nonlawyer Assistants
 (a) a partner shall make reasonable efforts to ensure measures are in place for workers to comply with RULES.
 (b) a partner should make reasonable efforts that workers are complying with the RULEs.
 (c) a lawyer shall be responsible for conduct that would be a violation of the RULES if:
 (1) lawyer orders or ratifies the conduct
 (2) lawyer knows of the conduct at a time when the consequences could be avoided but doesn’t take action
 Can’t bill client for work done for another client that ends up saving the firm time on the client’s case. Formal Op. 93-379
 Legal Rights of Lawyers
 Rights of lawyer who refuses to violate the law.
 Companies cannot fire their lawyers for such refusal in some jurisdictions.
 Inside counsel can’t be fired for refusing to violate law. Gen. Dynamics v. Supreme Court (Cal.).; Kachmar v. Sun Gard
Data Systems, (3d Cir.) (just because she was a lawyer doesn’t mean she lost the right to sue for retaliatory discharge);
 ABA For. Op. 01-424. Rules don’t prohibit suit, but lawyer must disclose only such info as may be disclosed under 1.6
 Companies can fire lawyers for refusing to violate the law. Herbster v. North American Co. (at will employees can sue for
retaliatory discharge but lawyers can be fired for any reason because of the sensitive nature of the relationship).
 Can a firm fire an associate for reporting an ethical violation?
 NO. Wieder v. Skala (N.Y.) (firm can’t fire lawyer for insisting firm report other lawyer for a disciplinary violation, lawyer is
officer of court); Lichtman v. Estrin (contract implied in law prevents firing where associate fired for making concerns known
about partner’s continued practice after suspension).
 YES. Jacobson v. Knepper (Firm fired lawyer for repeatedly protesting firm’s failure to comply with Rules. Retaliatory
discharge for lawyer’s unnecessary when lawyer could’ve reported to authorities); Bohatch v. Butler & Binion (firm can fire
partner for good faith allegations of misconduct).
 Lawyer rights regarding firm misrepresentations made in interview.
 Lawyer can sue. Stewart v. Jackson & Nash (lawyer told in interview firm had big environmental case they didn’t have).
 Lawyer can’t sue. Geary v. Hunton & Williams (no fraud. Inducement for misrepresenting size of banking litigation practice).
 Lawyer can’t sue if the firm retracts job offer. Slate v. Saxon (lawyer’s employment is terminable at will, can be fired before
work has begun. Dissent thought student performed part of a unilateral contract).
 No right to equal compensation at firm.
 Discrimination
 Lawyers can sue under Title VII of the Civil Rights Act. Lucido v. Cravath Swaine & Moore
 Rule 8.4, comment [C]. A lawyer who, in the course of representing clients, manifests bias upon race, sex, religion, national
origin, disability, age, sexual orientation or socioeconomic status violates rules only if conduct is prejudicial to justice.

Partners can use for being discriminated against on the basis of age. EEOC v. Sidley & Austin (7th Cir.) (Posner held that
partners can be employees for purposes of Title VII).
 One court has held that client cannot terminate lawyer when motivated by a protected class. Plessinger v. Casleman &
Haskell (N.D. Cal.)
 Leaving the Firm
 Partner’s pre-termination solicitation of clients breaches fiduciary duty. Dowd & Dowd v. Gleason BUT lawyer can look for office
space and make other preparations.
 Can take another firm’s client. Lawyer’s generally have no right to sue another lawyer for stealing clients. Koeler v. Wales.
 Lawyer must contact client when leaving F b/c material to their representation. Rule. 1.4
 Lawyer can also solicit old clients because this qualifies as “prior professional relationship with lawuer” under Rule 7.3(a)
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
Taking old firm’s Cs.
 No right under tortuous interference theory, though may be some liability for using firm property (computers, Rolodex) for
soliciting its clients. Fred Siegel Co. v. Arter & Hadden.
 Associates could not contact clients and take them with them to a new firm because of the risk that client’s would not have
time to make informed decision (since cases in progress) and b/c there was a fiduciary duty. Alder v. Epstein (Pa.).
 ABA Frml. Op. No. 1457 authorized sending a form letter
 lawyer can’t try to persuade client to leave, but can indicate willingness to continue representing client.
 State firm you’ll be working at.
 Must state client can decide who represents it.
 Notice sent to lawyer’s active clients
 Notice is “brief, dignified and not disparaging of the lawyer’s former firm.”
 ABA Frml. Op. 99-414. Joint notification by firm and client preferred.
 Lawyer has no right to transfer conflict info, but new firm may request names of old lawyer’s clients and firm’s clients for a
reasonable period of time. N.Y. State Bar Ass’n Cmte. on Prof. Ethics Op. 720.
 Remember that lawyers still have a duty to protect confidential information. Rule 1.6
 Rule 1.17, Cmt. 7, General comments are permissible without asking for consent, but once a lawyer talk about details, the
lawyer better get consent.
 Efforts By Firms To Inhibit Lawyer’s Ability To Leave
 Can always sue for breach of FD.
 Non-compete clauses generally impermissible. Rule 5.6(a)
 Rule 5.6(a)
 a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a
lawyer to practice after termination of the relationship, EXCEPT an agreement concerning benefits upon retirement
 Rationale: Limits client right to choice of lawyer and lawyer’s autonomy. Comment [1]
 Can’t restrict entitlement to share of future earnings on non-compete clause. Cohen & Lord, Day, & Lord (competition
forfeits all rights to future firms earnings).
 But courts are starting to uphold reasonable restrictions.
 Howard v. Babcock (Cal.) (allowing forfeiture of share of profits for 12 months if lawyer practiced in same country
as old firm).
 11 year personal guarantee of lease is reasonable. Shuttleworth, Ruloff & Giordiano v. Nutter; see also 8182 Md.
Assoc’s (Partner liable for lease even though withdrew before firm dissolved).
 EXCEPTION: “Concerning benefits upon retirement.” Nueman v. Akman (D.C. App.) (conditioning retirement benefits on not
practicing law OK); Hoff v. Mayer, Brown & Platt
 Make it easier for a law firm to treat associates poorly.
 Can’t prevent lawyer from taking cases against old firm. ABA Ethics Op. 94-381
 BUYING A PRACTICE
 Sale of a Law Practice. Rule 1.17 A lawyer or a law firm may sell or purchase a law practice, or an area of law practice, including
good will, if the following conditions are satisfied:
 (a) Must cease The seller ceases to engage in the private practice of law, or in the area of practice that has been sold, [in the
geographic area] [in the jurisdiction] (a jurisdiction nay elect either version) in which the practice has been conducted;
 (b) [Entire practice] The entire practice, or the entire area of practice, is sold to one or more lawyers or law firm;
 (c) [Notice and consent] The seller gives written notice to each of the seller's clients regarding:
 (1) the proposed sale;
 (2) the client's right to retain other counsel or to take possession of the file; and
 (3) the fact that the client's consent to the transfer of the client's files will be presumed if the client does not take any
action or does not otherwise object within ninety (90) days of receipt of the notice.
 If a client cannot be given notice, the representation of that client may be transferred to the purchaser only upon entry of an
order so authorizing by a court having jurisdiction. The seller may disclose to the court in camera information relating to the
representation only to the extent necessary to obtain an order authorizing the transfer of a file.
 (d) The fees charged clients shall not be increased by reason of the sale.
 Client must consent. R. 1.17 (c) (technically states that you have to give notice of sale and client’s consent presumed if no
response within 90 days).
 Exclusion from purchase or sale of practice. Admission to or retirement from a law partnership or professional association,
retirement plans and similar arrangements, and a sale of tangible assets of a law practice, do not constitute a sale or purchase
governed by this Rule. Rule 1.17, comment 14.
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
Must notify client if disclosing client-specific information for purchase of purchase and sale. Rule 1.17, Comment [7] Consent
presumed if no response within 90 days.
 Establish Group Legal Services Plan
 1(A) allows non-lawyers to channel cases to specific lawyers b/c no substantial regulatory interest presented. Brotherh’d of Rlr’d
Trainmen v. Virginia (US). Dissent Clark & Harlan. Court derailed regulation of legal profession by treating as commercial
enterprise. Court also ignored kickback agreement b/t union and lawyers.
 Sorenson argues that allowing intermediaries to sell services takes control out of lawyer’s hands & risks depriving poor of access.
 Lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the
lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not
known to need legal services in a particular matter covered by the plan. Rule 7.3(d).
 At least one court found no liability for negligence of lawyer’s referred. Gonzalzles v. Amer’n Express Corp.
The Duty to Work for No Compensation pgs. 594-610
 The Moral Obligation
 Marks argues that lawyers have a duty b/c govt. has conferred a statutory monopoly, like broadcasters, and thus have moral duty.
 RULE 6.1: Voluntary Pro Bono Public Service
 “Every lawyer has a professional responsibility to provide legal services to those unable to pay [and] . . . should aspire to . . .
at least 50 hours of pro bono services per year.” The lawyer should:
 (a) provide a substantial majority without fee or expectation of fee to:
 (1) persons of limited means or
 (2) charitable, religious, civil, etc. organizations in matters designed to address needs of persons of limited means
 (b) provide any additional services through:
 (1) delivery at no fee or substantially reduced fee to individuals seeking to protect civil rights, or charitable etc.
organizations in furtherance of their organizations purpose when legal fees would deplete economic sources
 (2) delivery of services at reduced fee to person of limited means
 (3) participate in activities improving the law or legal system.
 In addition, a lawyer should voluntarily contribute financial support to an organization that provides legal services above.
 Bar may legally require 20 hours of pro-bono or pay $350 in fees. Schwarz v. Kogan.
 Appointments In Criminal Cases
 RULE 6.2. A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
 (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;
 (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or
 (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's
ability to represent the client.
 Can fees be protested?
 Hunoval (N.C.) suspended lawyer for demanding more money to represent Δ.
 DeLisio (Alask.) Government shouldn’t be able to make one lawyer bear the cost that all should bear.
 Olive v. Maas (Fla.) Mandatory cap on attorney’s fees violates state constitution by impeding effectiveness or
representation.
 Grounds for Withdrawal
 Ethical considerations. Chaleff v. Superior Court (lawyer excused when Δ sought death penalty and required lawyer to
advocate too).
 Incompetence. US v. Wendy (2d Cir. upheld withdrawal by tax lawyer assigned to defend felony tax case because he had no
experience in trial advocacy).
 All lawyers are considered generalists, BUT
 Ferri v. Ackerman (US)—defendant can file a malpractice suit against appointed counsel)
 Rotational defender service unconstitutional. Zarabia v. Bradshaw.
 Appointments in civil cases.
 Ex Parte Dibble test (US)
 (1) Client’s case required free counsel,
 (2) No other lawyers were willing to take the case pro bono, and
 (3) Assignments would be fairly distributed among the bar.
 California’s Multifactored Approach to Civil rep for prisoners. Yargbrough
 Inmate’s indigency
 Likelihood his present or future property rts. affected.
 Helpfulness of having L
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 Whether cause could be abated until prisoner’s release.
Appointments by Federal Courts
 Federal courts do not have authority to impose compulsory lawyer appointments. Mallard v. Illinois (US).
 BUT lower courts have narrowly interpreted.
 Tabron v. Grace (3d Cir.). lawyer’s should accepted court appointments.
 Scott v. Tyson Foods, Inc. (8th Cir.). Cases involving a Title VII claim does allow for appointment of counsel.
 Other Sources Of Funding
 Legal Services Corporation v. Velazquez (US) (unconstitutional for congressional prohibition on use of funds to amend or
challenge welfare law; Scalia, dissenting, lawyer can restrict when speaker)
 ABA FORMAL OPINION 06-441—supervisors of a public defender have a duty to tell the court to not assign any more cases
until adequate resources are provided because they must represent each client competently and diligently
 Louisiana v. Tonguis—trial judges should appoint counsel even in the absence of funds, but if funds are not available, the
state should be barred from prosecuting defendants until funds become available.
 Clinics
 Interest on Lawyer Trust Accounts (IOTLA).
 ABA For. Op. 348. Good way to finance legal services because there is no obligation to place money in an interest bearing
account; see also Cone v. State Bar of Fl. (upholding constitutionality of FL’s IOLTA account)
 But see Phillips v. Washington Legal Foundation (US) (SCOTUS held that even a small amount of interest still properly belongs
to client and is therefore a taking IF THE STATE REQUIRED a lawyer to put funds into an IOLTA account)
 Brown v. Legal Foundation of Washington (US)—IOTLA OK where funds would otherwise not be depositable in interest
bearing accounts b/c no way could’ve made interest otherwise, no taking.

Judges’ Conflicts of Interest 655-672
 Judge Shall Avoid Appearance of Impropriety in All Activities
 Model Code of Judicial Conduct (CJC)– A judge shall not allow family, social, political or other relationships to influence the
judge’s conduct or judgment. A judge shall not lend the prestige of judicial office to advance the judge’s private interests, nor
shall a judge convey or permits others to convey the impression that they are in a special position to influence the judge. A judge
shall not testify voluntarily as a character witness.
 FINANCIAL INTERESTS THAT MAY CREATE DISQUALIFYING BIAS
 Regulating Lawyer’s Approach to Judges
 RULE 3.5(a)—a lawyer shall not (a) seek to influence a judge.
 RULE 8.4(f)—knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct
 Model Rule 8.2
 (a) a lawyer shall not make a statement that the lawyer knows to be false or w/ reckless regard for the truth concerning
the qualifications or integrity of a judge, or candidate for a judicial or legal office.
 (b) a lawyer who is a candidate for legal office shall comply w/ the applicable provisions of the CJC.
 Regulating Judge’s Financial Interests
 CJC 2.11: Disqualifications
 (A)(2) the judge knows that she or someone close (great-grandparents, nieces, aunt, husband, etc.) is:
 (a) a party to the proceeding, or an officer, managing member, etc. of a party
 (b) acting as a lawyer,
 (c) has more than a de minimis interests affected by the proceeding, or
 (d) is likely to be a material witness in the proceeding
 CJC 3.11: Financial, Business, or Remunerative Activities
 CJC 3.12: Compensation for Extrajudicial Activities
 CJC 3.13: Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things of Value
 CJC 3.14: Reimbursement of Expenses and Waivers of Fees or Charges
 CJC 3.15: Reporting Requirements
 JUDGE’S ROLE GENERALLY
 CJC 2.11: a judge shall disqualify herself in any proceeding where the judge’s impartiality might reasonably be questioned
 CJC 1.1—Compliance with the Law. A judge shall comply with the law, including the Code of Judicial Conduct.
 CJC 1.2—Promoting Confidence in the Judiciary
 A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of
the judiciary, and shall avoid impropriety and the appearance of impropriety.
 Comment [5] Actual improprieties include violations of law, court rules or provisions of this Code. The test for appearance of
impropriety is whether the conduct would create in
reasonable minds a perception that the judge violated this Code or
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engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a
judge.
 A judge shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the court
 CJC 1.3—Avoiding Abuse of the Prestige of Judicial Office. A judge shall not abuse the prestige of judicial office to advance the
personal or economic interests* of the judge or others, or allow others to do so.
 CJC 2.1—Giving Precedence to Duties of Judicial Office. The duties of judicial office, as prescribed by law, shall take precedence
over all of a judge’s personal and extrajudicial activities.
 CJC 2.2—Impartiality and Fairness. A judge shall uphold and apply the law and shall perform all duties of judicial office fairly and
impartially.
 BIAS ARISING FROM PERSONAL VIEWS RATHER THAN FINANCIAL INTEREST
 CJC 2.3—Bias, Prejudice, and Harassment
 (A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.
 (B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in
harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, etc., and shall not permit court
staff, court officials, or others subject to the judge’s direction and control to do so.
 (C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in
harassment, based upon attributes including but not limited to race, sex, etc., against parties, witnesses, lawyers, or others.
 (D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the
listed factors, or similar factors, when they are relevant to an issue in a proceeding.
 CJC 2.4—External Influences on Judicial Conduct
 (A) A judge shall not be swayed by public clamor or fear of criticism.
 (B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s
judicial conduct or judgment.
 (C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to
influence the judge.
 CJC 2.5—Competence, Diligence, and Cooperation
 (A) A judge shall perform judicial and administrative duties, competently and diligently.
 (B) A judge shall cooperate with other judges and court officials in the administration of court business.
 CJC 2.6—Ensuring the Right to Be Heard
 (A) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be
heard according to law.
 (B) A judge may encourage parties to a proceeding and their lawyers to settle matters in dispute but shall not act in a
manner that coerces any party into settlement.
 It’s not ok to try to get people to settle
 CJC 2.7—Responsibility to Decide.
 A judge shall hear & decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law.
 Basically says a judge can’t duck hard cases
 CJC 2.8—Decorum, Demeanor, and Communication with Jurors
 (A) A judge shall require order and decorum in proceedings before the court.
 (B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and
others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court
officials, and others subject to the judge’s direction and control.
 (C) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding.
 RULE 2.9 -- Ex Parte Communications
 (A) A judge shall not initiate, permit, or consider ex parte communications about a pending matter, except as follows:
 (1) When circumstances require it for scheduling, administrative, or emergency purposes, which does not address
substantive matters, is permitted, provided:
 (a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result
of the ex parte communication; and
 (b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication,
and gives the parties an opportunity to respond.
 (2) A judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding if the judge
gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited,
and affords the parties a reasonable opportunity to object and respond to the notice and to the advice received.
 A judge can solicit an amicus brief or information from some expert but must then tell counsel
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(3) A judge may consult with court staff and court officials provided the judge avoid receiving factual information.
 Cannot give record information and must personally decide the case
 (4) A judge may, with the consent of the parties, confer separately with the parties to settle matters pending
 Is sometimes done by a separate judge to keep the judge from knowing what each side wants
 (5) A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law to do so.
 (B) If a judge inadvertently receives an unauthorized ex parte communication she should notify the parties of the substance
of the communication and provide the parties with an opportunity to respond.
 (C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented
 Keeps judges from looking at the facts, some judges have been punished for this
 (D) A judge shall make reasonable efforts to ensure that this Rule is not violated by court staff, court officials, and others
 Law clerks can’t do it either
 WAIVING JUDICIAL DISQUALIFICATION
Civil Remedies Other than Discipline pgs. 62-82
 THE STANDARD OF CARE AND CONDUCT IN A MALPRACTICE ACTION
 Mallen Standard:
 (1) employment of attorney
 (2) failure of attorney to exercise ordinary skill and knowledge, AND
 (3) such negligence was the proximate cause of damage to the plaintiff.
 REST. § 52(1) “a lawyer who owes a duty of care must exercise the competence and diligence normally exercised by lawyers in
similar circumstances” Morgan likes this.
 Failure to interview before recommending a settlement may constitute malpractice. Woodruff v. Tomlin
 If client doesn’t have adequate information about legal questions submitted. Wood v. McGrath
 Horne v. Peckham (“A general practitioner must refer her client to a specialist or recommend the assistance of a specialist if
under the circumstances a reasonably careful and skillful practitioners would do so”).
 Criminal Δ
 An element of a malpractice suit is that a convicted criminal Δ prove she is actually innocent of the charges against her, not
just that another lawyer might have obtained a not guilty verdict. Wiley v. County of San Diego.
 Rest. § 53, comment d—not necessary to prove actual innocence
 Malpractice to Someone other than a client?
 Controversial. REST § 51 suggests a lawyer may be liable to:
 A prospective client for revealing confidential information or failing to tell the client that the SOL will soon run,
 Beneficiaries named in a client’s will if the will doesn’t carry out testator’s intent due to lawyer negligence,
 A non-client to whom lawyer expressly assumes obligation to investigate facts and report them to her,
 § 51(4), comment h, trustee who is aided by the lawyer to breach a fiduciary duty to that beneficiary
 PROVING A MALPRACTICE CASE
 Present expert testimony about the duty of care in a malpractice suit, but excused if the issue is obvious
 “Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been
breached” but experts can cite the Rules
 REST. § 52(2) proof of a violation of a professional Rule does not give rise to an implied cause of action for negligence and
does not preclude other proof concerning duty of care, BUT may be considered by the trier of fact in understanding
 Suit-within-a-suit Rest. § 53, comment b—causation requires another trying of the issue to determine if lawyer lost the case
 MALPRACTICE REMEDIES; ADVANCE WAIVERS OF A LAWYER’S MALPRACTICE
 Substantial range—what the client would have obtained by trial or settlement if the lawyer had handled the matter well to fee
forfeitures though REST. § 37 says they are not justified in each instance, nor is a total forfeiture always appropriate
 RULE 1.8(h) A lawyer shall not:
 (1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is
independently represented in making the agreement; or
 Provisions added to standard engagement letters that provide that the client waive any malpractice claims
 Client must be independently represented in order to sign such an agreement
 (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is
advised in writing of the desirability of seeking an independent legal counsel
 OTHER SIGNIFICANT CONSEQUENCES OF NEGLIGENCE OR MISCONDUCT BY LAWYERS
 REST. § 6, comment g—a lawyer advocating in a proceeding may be subject to remedies through contempt orders where
necessary and appropriate to prevent significant impairment of the proceedings
 Ineffective assistance of counsel.
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
Strickland v. Washington (US)—the lawyer’s acts or omissions were outside the wide range of professionally competent
assistance and the ineffectiveness caused actual prejudice.
 Cottle v. State—ineffective assistance of counsel to fail to tell a criminal client about a plea offer from the prosecutor and to
fail to give the client the right to decide whether to accept it
Other Kinds of Remedies and Sanctions for Improper Conduct
 Disqualification from a particular case.
 Void transactions made in violation of lawyer’s professional responsibilities
Special Duties of Counsel for Public Companies pgs. 367-384
 DISCLOSURE OF A CLIENT’S INTENDED CRIME OR FRAUD
 RULE 1.6(b) A lawyer may reveal information relating to the representation to the extent lawyer believes necessary:
 (1) Prevent reasonably certain death or substantial bodily harm
 (2) Prevent client from committing a crime or fraud reasonably certain to cause substantial injury to another AND in
furtherance of which the client has used or is using the lawyer’s services
 (3) To prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain
to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the
lawyer’s services.
 (4) To secure legal advice with respect to lawyer’s compliance with these rules.
 RULE 1.13(b) Lawyer must proceed as “reasonably necessary” in organization’s interests IF:
 Officer, employee, or other associated with the organization is engaged in action, intends to act or refuses to act
 in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that
reasonably might be imputed to the organization, AND
 it is likely to result in substantial injury to the organization, THEN
 the lawyer shall refer the matter to higher authority in the organization, (even the highest authority [determined by
applicable law] if warranted by the situation).
 Duty to go outside the corporation RULE 1.13(c)
 (1) IF highest authority that can act on an organization’s behalf refuses to act AND the situation is clearly a violation of law,
AND
 (2) Violation is reasonably certain to result in substantial injury to the organization, THEN the lawyer may reveal 1.6
confidences necessary to prevent injury UNLESS
 RULE 1.13(d) Lawyer was retained to investigate violations of law or defend an organization, officer, or employee or other
constituent against claim arising from an alleged violation of law.
 RULE 1.16(a)—a lawyer shall not represent a client or shall withdraw from representation if the representation will result in
violation of the rules of professional conduct or other law
 THE SPECIAL OBLIGATIONS OF A SECURITIES LAWYER
 SEC has asserted the right to punish, even though it was thought that only state courts of the bar could punish lawyers. ABA has
been fighting this assertion.
 17 CFR § 205.3
 (b) Duty to report evidence of a material violation.
 (1) If an attorney, appearing and practicing before the Commission in the representation of an issuer, becomes aware of
evidence of a material violation by the issuer or by any officer, director, employee, or agent of the issuer, the attorney shall
report such evidence to the issuer's chief legal officer * * * or to both the issuer's chief legal officer and its chief executive
officer * * * forthwith. By communicating such information to the issuer's officers or directors, an attorney does not reveal
client confidences or secrets or privileged or otherwise protected information related to the attorney's representation of an
issuer.
 (2) The chief legal officer * * * shall cause such inquiry into the evidence of a material violation as he or she reasonably
believes is appropriate to determine whether the material violation described in the report has occurred, is ongoing, or is
about to occur. If the chief legal officer * * * determines no material violation has occurred, is ongoing, or is about to occur,
he or she shall notify the reporting attorney and advise the reporting attorney of the basis for such determination. Unless
the chief legal officer * * * reasonably believes that no material violation has occurred, is ongoing, or is about to occur, he or
she shall take all reasonable steps to cause the issuer to adopt an appropriate response, and shall advise the reporting
attorney thereof. * * *
 (3) Unless an attorney who has made a report under paragraph (b)(1) of this section reasonably believes that the chief legal
officer or the chief executive officer of the issuer (or the equivalent thereof) has provided an appropriate response within a
reasonable time, the attorney shall report the evidence of a material violation to:
 (i) The audit committee of the issuer's board of directors;
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 (ii) Another committee of the issuer's board of directors consisting solely of [independent] directors * * *; or
 (iii) The issuer's board of directors * * * .
 (6) An attorney shall not have any obligation to report * * * under this paragraph (b) if * * * the attorney was retained or
directed by the issuer’s chief legal officer * * * to investigate such evidence of a material violation.
 (10) An attorney formerly employed or retained by an issuer who has reported evidence of a material violation under this
part and reasonably believes that he or she has been discharged for so doing may notify the issuer’s board of directors or
any committee thereof that he or she believes that he or she has been discharged for reporting evidence of a material
violation under this section
17 CFR § 205.2(e)(i) Material violation means a material violation of an applicable United States federal or state securities law, a
material breach of fiduciary duty arising under United States federal or state law, or a similar material violation of any United
States federal or state law.
 17 CFR § 205.2(e) Evidence of a material violation means credible evidence, based upon which it would be unreasonable,
under the circumstances, for a prudent and competent attorney not to conclude that it is reasonably likely that a material
violation has occurred or is about to occur
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