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Chapter 1: professionalism and the Practice of Law


A. The concept of Professionalism
i. Four Elements of a Professional
1. Get from emma
ii.
Public Service
1. Model Rule 6.1 Voluntary Pro Bono Public Service Three rules
to know, ad the fourth rule that some states have added
2. Professional responsibility to give services to those unable to pay.
3. Aspire to give 50 hours a year
a. should go to people of limited means, groups who serve people of
limited means, etc.
4. Lawyer should voluntarily give money to organizations who help
people of limited means
5. (only some states have this rule) Some states require you to
report your hours
iii. Model Rule 6.2 accepting appointments
1. General rule: a lawyer must not seek to avoid appointment by a tribunal
to represent a person
2. Exception: except for good cause
a. Representing the client is likely to result in violation of the rules
of professional conduct or other law
i. Comment: if you feel like youre not competent to handle
this type of case (violation of rules to rep if youre not
competent), or like a conflict of interest
b. Representing the client is likely to result in an unreasonable
financial burden on the lawyer
i. Cant afford to take on this huge pro bono case thats a year
long after you just graduated and have no money.
c. The client or the cause is so repugnant to the lawyer as to be
likely to impair the client-lawyer relationship or the lawyers ability to
represent the client.
i. Im so disgusted by the morally despicable things he did, I
cant represent him.
B. Regulation of the Legal Profession
i. Broad Principle the regulation of lawyers is generally a matter left to
the states.
ii. The big players in the regulation of Lawyers:
1. The American Bar Association (ABA): theyve provided the states
with the Model Rules of Professional Conduct, which most states have
adopted.
2. State Supreme Courts: the highest court in each state has the
inherent power to regulate all aspects of the legal profession.
a. This includes establishing standards for admission,
adopting rules of professional conduct, and enforcing those
rules through procedures tht may lead to an attny being
disciplined.

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3. State Bar Associations: The state Bar Asociation exercises its
delegated power to admit and discipline lawyers.
a. The state SC, however, can typically review the State Bar
Assocs decision.
4. Other Players:
a. Federal Courts - each district had make their own, or they
can just adopt the rules of the state in which that court sits
(most do this).
b. Imigration law and other organizations same thing
iii. Admission to the Profession: to be admitted to the legal profession, you
must generally meet five requirements
1. You must pass the MPRE
2. You must graduate from an accredited law school
3. You must pass the bar exam
4. You must establish that you have the character and fitness to
practice law (goes with bar exam)
5. You must comply with model rule 8.1 (bar admission and
disciplinary matters) (also tied to 3 and 4)
a. Model Rule 8.1: bar admission and disciplinary matters
i. An applicant for admission to the bar, or a lawyer in
connection with a bar admission application or
disciplinary matter, shall not:
1. Knowingly make false statement of material
fact
2. Fail to disclose a fact necessary to correct a
misapprehension known by the person to have
arisen in the matter; or
3. Knowingly fail to respond to a lawful deman
for information from an admissions or
disciplinary authority.
a. Exception: this rule does not require
disclosure of confidential client
information otherwise protected by rule
1.6.
iv. Regulation after Admission lawyer discipline: 4 issues
1. What constitutes misconduct
a. Model Rule 8.4 professional misconduct to:
i. (a) Violate the rules of professional conduct;
attempt to violate rules; knowingly assist or induct
another person to violate the rules, or violate rules thru
someone else
ii. (b) commit a criminal act that reflects adversely on
the lawyers honesty, trustworthiness, or fitness as a
lawyer in other respects. [yardstick does the crime
involve honesty, etc.]
1. Not all crimes are a violation of the rules.

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2. A lawyer doesnt have to be charged with a
crime to be subject to discipline
a. Disciplined for failure to pay taxes,
even tho not charged; drugs for oral sex;
etc.
3. Even if acquitted in a trail, can still be
subject to discipline.
a. Theyre a little closer to
preponderance of evidence standard than
beyond reasonable doubt.
4. A pattern of repeated offenses, even when
committed separately.
iii. (c) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation. even if its not a crime,
just shady.
iv. (d) engage in conduct thats prejudicial to the
administration of justice;
v. (e) state or imply an ability to influence improperly
a government agency or official or to achieve results by
means that violate the rules of prof conduct or other law
or
vi. (f) knowingly assist a judge or judicial officer in
conduct that is a violation of applicable ruels of judicial
onduct or other law.
2. What are the sanctions the lawyer must face if he commits
misconduct
a. Just as states determine own rules for prof conduct, each
state also determine what sanction may be imposed for
violations of those rules. Typically available for sanctions
(least to most severe):
i. probation
ii. Private reprimand
iii. Public reprimand
iv. suspension
v. Disbarment (typically 5 years until can reapply)
3. In which state(s) is lawyer subject to discipline
a. Rule 8.5(a) disciplinary authority
b. In which state or states is a lawyer subject to discipline?
c. There are 3 rules to know:
i. If you are admitted in state A, you are subject to
discipline in state A, even in you misconduct occurred
outside of State A.
ii. Even if you are not admitted in state A, you are
subject to discipline in state A, if you provide or offer to
provide any legal services there.
1. Pro hov viche temporarily admitted for a

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short time (permission to practice just for this
one case/limited matter) (northern kentucky
attny practice case held in ohio).
a. That state cant disbar her, but her
home state can.
b. They can prohibit from practicing in
that state again.
iii. You may be subject to discipline in multiple
jurisdictions for the same contuct.
1. Especially if you are admitted to the bar in
multiple states.
4. Choice of law issues
a. He wont quiz us on choice of laws. And usually not on
MPRE.
b. Model Rule 8.5(b).
c. If KY starts disciplinary proceedings against me bc of
alleged misconduct, which stats rule of prof conduct apply in
those proceedings?
i. KY can borrow rules of another state if the conduct
happened in that state.
d. If the alleged misconduct is in connection with a matter
pending before a court, then apply the rules of the state in
which the court sits.
i. Note conduct.
e. If the alleged misconduct occurred outside of the court,
then apply the rules of the state where the conduct occurred.
i. Note exception
5. MR 5.5 unauthorized practice of law; multijurisdictional
practice of law
a. There is a broad baseline principle, a general rule, and two
exceptions.
i. Broad Baseline principle: a lawyer must not
practice in a jurisdiction in violation of that jurisdictions
rule OR assist another in doing so.
ii. General rule: a lawyer who is not admitted to
practice in state A must not:
1. Establish an office in state A
2. Maintain some other systematic and
continuous presence in state A for the purpose of
practicing law; or
3. Hold out to the public or otherwise
represent that you are admitted to practice law
in state A.
iii. exception for temporary legal services (part
c): even if you are not admitted in state A.
1. if youre admitted in another stae, and not

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disbarred or suspended in any state then you can
provide temporary legal series in state A under
these circumstances:
a. you associate with a lawyer who is
admitted in state A (local counsel) and
that lawyer actively participates in the
matter.
b. You are doing pro hac vice work
before a court or potentially before a
court;
c. You are participating in an
arbitration, mediation, or other ADR that
is reasonable related to work in the
jurisdiction where you are admitted; or
d. You are doing other work that arises
out of or is reasonable realted to your
practice in the state where you are
admitted.
i. Hypo: admitted in KY and draft
an estate plan for old lady Ester in
KY. Old lady E moves to FL and
calls him up to draft an
amendment to her will. He drafts
it and flies to FL and she signs it in
FL.
2. Exception for more perm legal services:
even if you are not admitted in state A:
a. If you are admitted in another state
and not disbarred or suspended in any
state then you can provide [more
permanent] legal service in state A
through an offive or other systematic and
continuous presence if:
i. You are providing services to
your employer or its
organizational affiliates; (if youre
really just working for your
company and representing them,
then thats ok and you can have
office in another state); or
ii. The services you are providing
are authorized by federal or other
law [ hard to test this cant have

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to know this for MPRE etc]
II. Chapter Two: Incompetence and its Consequences
A. Defining Comp
General rule
1. MR 1.1: Competence
Principle #1
Principle #2 and its intersection with MR 1.5 (e)
2. MR 1.3: Diligence
3. MR 1.4: Communication
B. The Effect of Lawyer Incompetence, Error, or Misconduct
[The Bailey Case]
1. As we saw in BAILEY, the client layer relationship is a principle agent
relationship. Under general rules of agency law, the agent (lawyers) errors or
misdeeds will usually bind the principal (client) as against third parties, with only
narrow exceptions.
2. Since the agent (lawyers) errors or misdeeds will usually bind the
principal (client) as against third parties, the client can rarely undo the problem
the lawyer has created. That is, when a transaction goes badly or a case is lost bc of
a lawyers incompetence, the client probably cannot redo the transaction or reopen
the litigation.
1. Rule 60 b 1: provides relief from a final judgment for a lawyers:
1. mistake
2 inadvertence
3. surprise OR
4. excusable neglect
With respect to excusable neglect:
1. the precise meaning of this phrase is
impossible to pin down
2. courts decide cases based on their facts
3. However, BAILEY makes it clear that where
the neglect is inexcusable, relief will not be
granted under rule 60 b 1
2. Rule 60 b 6 provides relief from a final judgment for any other
reason justifying relief from the operation of the judgment
1. In BAILEY court said that Rule 60 b 6 requires
extraordinary and unusual circumstances
2. The BAILEY court also said that a lawyers inexcusable
neglect cannot meet this std; that would defeat the point of
having Rule 60 b 1
3. The best example of extraordinary and unusual
circumstances is where the lawyer has completely and
literally abandoned the client

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3. Ultimately, if a client is unable to redo the transaction, reopen the
litigation, or obtain some other relief from the final judgment, the
client will be left to pursue some sort of remedy against the lawyer,
such as a legal malpractice action
C. Remedies
1. Legal Malpractice
A. The Prima Facie Case
The prima facie case overall:
Under the law, there are four elements of a legal malpractice claim:
1. the lawyer owed a duty of care to the the P
2. the lawyer breached that duty of care
3. the lawyers breach caused the Ps harm (causation includes
both but for causation and proximate causation)
4. the client suffered damages
-must be proved by a preponderance of the evidence
1. Duty
regarding duty, there are several categories of ppl to whom a lawyer
owes a duty:
1. Clients:
Rest S 14 says that a client-lawyer relationship is formed
when:
(1) when a person manifest to a lawyer the persons
intent that the lawyer provide legal services for the
person; and either
(a) the lawyer manifests to the person consent to
do so; or
(b) the lawyer fails to manifest lack of consent to
do so, and the lawyer knows or reasonably
should know that the person reasonably relies
on the lawyer to provide the services; OR
(2) a tribunal with power to do so appoints the lawyer
It is clear from Togstad that a client-lawyer relationship can
arise even if:
1. the meeting btwn the parties is relatively short
2. no fee is paid or discussed
3. no formal or informal retainer agreement is signed
Non-Engagement Letter
(look, dont rely on me)
2. Prosepective Clients: Many cts say a lawyer owes a duty of
care to a prospective client---that is, someone who discusses
with a lawyer the possibility of forming a client-lawyer
relationship, but no such relationship ensues. See also MR
1.18(a)

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Rest Section 15(1) captures the duties a lawyer owes to a
prospective client:
Section 15 (1)(a): Generally, a lawyer must not use or
reveal confidential information learned in consultation
with a prospective client
Section 15 (1)(b): The lawyer must safeguard a
prospective clients ppty that is in the lawyers custody
Section 15 (1): The lawyer must use reasonable care
to the extent the lawyer provides the person with legal
services
Thus, even if we conclude that no client-lawyer
relationship exists to the extent that the lawyer
provides the person with legal services, the
lawyer owes the prospective client a duty of
reasonable care
Comment E to Section 15(1) : when a
prospective client and a lawyer discuss
the possibilities of representation, the
lawyer might comment on:
1 whether the client has a
promising claim
2 the time within which to bring
any claim
3 what other lawyer might
represent the prospective client
the lawyer must exercise
reasonable care in making these
statements, since the prospective
client might rely on those
statements. The inference to draw
is that lawyers have to be careful
when providing information to
prospective clients
Model Rule 1.18 also captures a duty that a lawyer owes to a prospective client,
providing in subsection
3. Non-Clients: A lawyer may also owe a duty to certain non-client 3rd
parties.
Rest SS 51 provides that a lawyer owes a duty of care to four
different types of non-client parties:
SS 51(1)
SS 51(2)
SS 51 (c)

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2. BREACH OF DUTY: The second element of legal malpractice, breach of duty,
requires proof by the P that the lawyers conduct fell below the std of care. This is a
Q of fact for the jury, unless reasonable people cannot differ about it.
THE STD OF CARE: Rest SS 52 (1) captures the std of care owed by a lawyer,
saying a lawyer who owes a duty of care must exercise the competence and
diligence normally exercised by a lawyer in similar circumstances.
1. This std of care is judged by what a lawyer would have done at the
time, excluding the benefit of hindsight.
2. Some jury instructions say that a lawyer cannot be held
responsible for errors in judgment
But multiple courts, including the S. Ct of KY in Equitania, have
said there is no exception for attny liability for errors in
judgment
3. In determining whether a lawyer breached the std of care, a jury
might consider whether the lawyer performed the level of research
that an ordinary, prudent lawyer would have done OR whether the
lawyer was simply shooting from the hip.
A settled pt of law vs an unsettled point of law.
The Influence of the Model Rules
3. CAUSATION OF HARM: the third element of a legal malpractice claim is causation
of harm
There are two types of causation:
1. But for Causation: This means that the P must prove that had the
lawyer not acted negligently, the harm would not have occurred. That
is, but for the lawyers breach of duty, the harm would not have
occurred.
2. Proximate Causation: This means that the P must prove that the
type of harm was within the scope of risks created by the Ds negligent
conduct.
The TRIAL WITHIN A TRIAL requirement: Ultimately: to prove causation, a P
must generally satisfy the trial-within-a-trial requirement (this is also
known as the case-within-a-case or suit-within-a-suit requirement.).
That is, the P must generally prove that had the D (lawyer) not
breached his duty, the P would have succeeded on the merits in the
underlying case.
It is worth noting, as REST SS 53 comment B does, that the true
requirement is that the P would have achieved a better result in the
matter had the D (lawyer) acted competently.
4. Damages: the fourth element of a legal malpractice claim is damages
There are two issues to keep in mind
1. Collectability:
Majority View: Most cts require a P to prove that any monies
lost through the lawyers breach would have been collectable.

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In other words, the P must prove that the D (lawyer)
performed adequately, the P not only would have
succeeded on the merits in the underlying case, but
would also have succeeded in collecting on the resulting
judgment in the underlying case.
Minority View: A minority of cts, however, place the burden of
proving non-collectability on the D (lawyer) as an affirmative
defense
2. Lost Punitive Damages:
Cts are split as to whether a lawyer should be liable for
punitive damages allegedly lost in the underlying case due to
the lawyers breach of duty
B PROVING A LEGAL MALPRACTICE CLAIM
General Rule regarding Expert Testimony: In order to prove a legal
malpractice claim, in most cases, the P will be required to have an expert
testify about the std of care and whether the D (lawyer) breached that std of
care.
Rationale: lay juries cannot understand what a reasonable lawyer
would have done without expert assistance on that issue from another
lawyer.
However, in the VANDERMAY case, the ct recognized an exception to
this general rule. That exception is known as the common
understanding exception
The Common Understanding Exception: Provides that a P does not have to
put forth expert testimony if the lawyers error is one that a jury could
understand without the assistance of an expert.
Ultimately, we must focus on the natureof the lawyers alleged misconduct
and ask whether this misconduct is of such a nature that the jury could
understand it without the assistance of counsel (((when in doubt, probs get
an expert)
C. A lawyers Defense to a Legal Malpractice Claim
1. contributory negligence: a lawyer being sued for legal malpractice may try
to defend the claim by pointing to the Ps own negligence
most cts allow the clients contributory negligence to be used as a
defense in a legal malpractice suit.
There are 3 main approaches to contributory negligence:
1. about a dozen sts follow a pure form of comparison, in which a Ps
fault will reduce recovery in the percentage of fault found by the jury,
but will not bar recovery.
2. four states follow the older rule that a Ps negligence bars a claim
entirely.
3. the majority of sts bar recovery only if the ps negligence is found to
be greater than or equal to that of the D; otherwise the Ps recovery is
reduced by the percentage of the Ps fault

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In Clark v Rowe, the Supreme Judicial Ct of
Massachusetts followed this third approach
2. Statute of Limitations: a lawyer being sued for legal malpractice may try to
defend the claim by arguing that the statute of limitations has run on the
legal malpractice action.
Different jurisdictions apply different tests for determining when the
SOL begins to run on a legal malpractice claim (and when, if ever, the
SOL is tolled).
Decisions on the SOL in lawyer malpractice claims are quite diverse if
not actually chaotic Paul Hayden
D. Limiting Liability for Malpractice
Model Rule 1.8(h): A lawyer must not:
(1) make an agreement prospectively limiting the lawyers liability to a client
for malpractice, unless the client is independently represented in making the
agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented
client or former client, unless that person is advised in writing of the
desirability of seeking and is given a reasonable opportunity to seek the
advice of independent legal counsel in connection therewith
2. Ineffective Assistance of Counsel
Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right
to have the Assistance of Counsel for his defense.
The Supreme Ct has interpreted this constitutional right to counsel as the
right to the effective assistance of counsel
In STRIKLAND V WASHINGTON, the S Ct established the standard for
ineffective assistance for counsel.
Starting point: the S Ct notes that the purpose of the sixth amendment right
to counsel is to ensure a fair trial
The ct said the benchmark for judging any claim of ineffectiveness
must be whether counsels conduct. (FINISH)
TWO PART TEST: the ct established a 2 part test to determine if a counsels
assistance was so defective as to require reversal of a conviction or death sentence:
1. First, the D must show that counsels performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the counsel guaranteed the D by the 6th A.
The Ct said the D must show theat counsels representation fell below
an objective std of reasonableness
The ct added that there is NO CHECKLIST for judicial
evaluation of attny performance and that prevailing norms of
practice as reflected in ABA stds are only guides to determining
what is reasonable.
The Ct said that a court deciding an actual ineffectiveness claim must
judge the reasonableness of counsels challenged conduct on the facts

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of the particular case, viewed at the time of counsels conduct.
Ultimately, a ct must look at a lawyers specific act or omissions and
decide if those failures were outside the wide range of professionally
competent assistance.
Ultimately, the ct said judicial scrutiny of counsels performance must
be highly DEFERENTIAL to lawyers
2. Second, the D must show that the deficient performance prejudiced the
defense. This requires showing that counsels errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.
The ct said the appropriate test for prejudice. Is this: the D must
show that there is a reasonable prob. that, but for counsels
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability that sufficient to
undermine confidence in the outcome.
Conviction: when a D challenges a conviction, the Q is whether
there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt
Death sentence: When a D challenges a death sentence, the Q is
whether there is a reasonable probability that, absent the
errors, the sentence would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death
Lets look at some situations where courts have found prejudice
ULTIMATELY BOTH PRONGS of the 2 part test must be met or the
convicted Ds claim fails on the prejudice prong of Strickland, cts
have found prejudice in certain circumstances:
1. Where the defense lawyer fails to object on a 4th A grounds
to the admission of evidence that ultimately results in his
clients conviction
2. Where the defense lawyer is absent or asleep during critical
stages of the proceeding
Absent lawyer: In Cronic, the ct held that a D did not
have to prove prejudice in cases where the defense
counsel was ABSENT during critical stages of a Ds trial
(prej. Is presumed)
Sleeping Lawyer: In BURDINE V JOHNSON, the 5th
Circuit sitting en bance said that, on the facts of that
case, since the D had a lawyer who was ASLEEP at
critical stages of the proceeding, that was akin to having
an absent lawyer. Thus, pursuant to Cronic, the ct
presumed prejudice.
MERELY Drunk Lawyer: It is worth noting that the
BURDINE ct drew a distinction between a sleeping
lawyer, who is likened to an absent lawyer, and a
lawyer wo is merely drunk or drugged.

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3. DISCIPLINE: A lawyer may be disciplined for violating the MRs related to
competence (see MRs 1.1, 1.3, 1.4)
As a practical matter, lawyers are usually not disciplined for isolated
violations of these rules, unless a client is harmed.
Most cases involve repeated or aggravated instances of incompetence.
CLIENT PROTECTION FUNDS: if a client suffers financial harm due to lawyer
incompetence, the client may seek restitution from the jurisdictions CLIENT
PROTECTION FUND. Every jurisdiction has set up such a fund, usually funded by st
bar dues, designed to reimburse clients victimized by bad lawyering
1. in many sts, the lawyer has to have been disbarred before the client
can apply to the fund for reimbursement of losses caused by the
lawyer.
2. Payouts are generally available only when the lawyer has
committed especially egregious conduct SEE OMEYER
3. Furthermore, virtually all sts cap the max payout per claim
(Alabamas cap is 10k, CAs is 100k) Thus , these funds often do not
provide adequate compensation to aggrieved clients
D Other Checks on Incompetence
1. Ethics Rules on Law Firms and Associations
1. MR 5.1: Responsibilities of Partners, Managers, and Supervisory
Lawyers
(a) a partner in a law firm, and a lawyer who individually or
together with other lawyers possesses comparable managerial
authority in a law firm, shall make reasonable efforts to ensure
that the firm has in effect measures giving reasonable
assurance that all lawyers in the firm conform to the Rules of
Prof. Conduct
(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 the Professional Conduct
A lawyer shall be responsible for another lawyers violation
of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific
conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable
managerial authority in the law firm in which other
lawyer practices, or has direct supervisory authority
over the other lawyer, and knows of conduct at the time
when its consequences can be avoided or mitigated but
fails to take reasonable remedial action
2. MR 5.3 : Responsibilities regarding nonlawyer assistants
With respect to a nonlawyer employed or retained by or associated
with a lawyer:
(GET NOTES FROM P 104 )))))

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3. MR 5.2: Responsibilities of a Subordinate Lawyer
(a) a lawyer is bound by the rules of Professional Conduct
notwithstanding that the lawyer acted at the direction of
another person
(b) a subordinate does not violate the rules of professional
conduct if that lawyer acts in accordance with a supervisory
lawyers reasonable resolution of an arguable question of
professional duty
2.REPORTING PROFESSIONAL MISCONDUCT
Is a lawyer required to report the professional misconduct of other lawyers?
1 at least three states do not require lawyers to report the prof.
misconduct of other lawyers (CA, GA, and MA).
2. The ABA Model Codes DR 1-103(A) requires lawyers to report
another lawyers misconduct, unless doing so would require the
disclosure of information protected by the attny-client privilege
see in re himmel
in re himmel is a landmark DR 1-103 a case out of Illinois
3. MR 8.3 Reporting Profess. Misconduct
(a) a lawyer knows that another lawyer has committed a violation of
the Rules of Professional Conduct that raises a subst question as to
that lawyers honesty, trustworthiness or fitness as a lawyer in other
respects, shall inform the appropriate professional authority.
This Rule dooes NOT require disclosure of info otherwise protected
by rule 1.6 or info gained by a lawyer or judge while participating in
an approved lawyers assistance program
3.Other Checks on Incompetence (e.g. CLEs, the Marketplace, etc.)
III. CHAPTER FOUR: The Client-Lawyer Relationship
A. Models of the Relationship
1. There are 3 theoretical models of the client-lawyer relationship:
1. the traditional model: the lawyer is the dominant figure,
paternalistically making decisions for a passive client. The client is
not an active participant in the decisions made in the course of
representation
2 The participatory model: the parties share responsibility for the
success of the representation. Both the client and the lawyer play
active roles.
3. The Hired Gun Model: a relationship in which the client is
dominant and the lawyer is passive. It is often the lawyer who accepts
the clients decisions unquestioningly
2. Model Rule 1.2 reflects the participatory model
(a) lets break down MR 1.2 (a) into 3 smaller rules
1. participatory relationship: subject to and (d), a lawyer shall abide
by a clients decisions concerning the objectives of the representation

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and, as required by rule 1.4, shall consult with the client as to the
means by which thy are to be pursued. A lawyer may take such action
on behalf of the client as is impliedly authorized to carry out the
representation.
2.settlements: a lawyer MUST abide by a clients decision whether to
settle a matter
3. criminal cases: in a criminal case, the lawyer must abide by the
clients decision, after consultation with the lawyer, as to a:
plea to be entered
whether to waive jury trial; and
whether the client will testify
Consider MR 1.2s intersection with MR 1.4
(b) a lawyers representation of a client, including representation by
appointment, does not constitute an endorsement of the clients political,
economic, social, or moral views or activities
a lawyer might limit the scope of the representation if the limitation is
reasonable under the circumstances AND the client gives informed consent
(d) a lawyer shall not counsel a client to engage, or assist a client, in conduct
that the lawyer knows is criminal or fraudulent,
but a lawyer may discuss the legal consequences of any proposed
course of conduct with a client and may counsel or assist a client to
make good faith effort to determine the validity, scope, meaning, or
application of the law
3. Clients with diminished Capacity: Particular challenges arise when the client is
very young, very old, or has diminished mental capacity or a mental or emotional
disability.
MR 1.14 Client w/ diminished capacity
(a)when a clients capacity to make adequately considered decisions n
connection with a representation is diminished, whether because of
minority, mental impairment or for some other reason, the lawyer
shall, as far as reasonably possible, maintain a normal client-lawyer
relationship with the client.
(b) when the lawyer reasonably believes that the client has
diminished capacity, is at risk of substantial physical, financial or
other harm unless action is taken and cannot adequately act in the
clients own interest, the lawyer may take reasonably necessary
protective action, including consulting with individuals or entities that
have the ability to take action to protect the client and, in
Information relating to the representation of a client with
diminished capacity IS protected by rule 1.6
when taking protective action pursuant to P (b), the lawyer is
impliedly authorized
B. Forming the Client-Lawyer Relationship
1.How is the Client-Lawyer Relationship Created?
1.General Rule: the client-lawyer relationship is usually formed by an

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EXPRESS K called a retainer agreement or an engagement letter
This agreement generally specifies:
1 the scope of the representation
2. the staffing of the matter
3. any ethical issues; and
4. the arrangements on fees and other expenses
2. Exception : However, a client-lawyer relationship may be formed
INADVERTENTLY (In the Matter of Anonymous)
Rest S14 says that a c-l relationship is formed when:
(1) a person manifests to a lawyer the persons intent
that the lawyer provided legal services for the person;
and either
(a) the lawyer manifests to the person consent to
do so; OR
(b) the lawyer fails to manifest lack of consent to
do so, and the lawyer knows or reasonably
should know that the person reasonably relies
on the lawyer to provide the services; or
(2) a tribunal with power to do so appoints the lawyer
It is clear from the TOGSTAD AND ANONYMOUS cases that a c-l
relationship can arise even if:
1 the meeting btwn the parties is relatively short
2 no fee paid or discussed; AND
3 no formal or informal retainer agreement is signed
Non-Engagement Letter!
3. SPECIAL ISSUES OF CLIENT IDENTITY: there are 2 situations where
a lawyer might face a client identity issues, asking, who is my client?
1 INSURANCE CO/INSURED PERSON:
issue: if an insured person is in a car accident, the insurance
company retains a lawyer to represent the insured person.
Who is the lawyers client?
1 Majority Rule: the Insured Person is the sole client.
The insurance Co. is simply a third party payor.
MR 1.8 (f): a lawyer shall not accept
compensation for representing a client from one
other than the client unless:
1. the client gives informed consent;
2. there is no interference with the
lawyers independence of professional
judgement or with the c-l relationship;
and
3. Info relating to representation of a
client is protected as required by Rule 1.6
Organizations as Client: if you represent an org, who is your client?
MR 1.13 (a)

17
MR 1.13 (F)
MR 1.13 (g)
2. Client Interviews
1 Theme: Effective Lawyers are good listeners
2. Four Purposes of Client Interviews: Client interviews
1 initiate the formation of the relationship;
2 allow the lawyer to explain foundational matters to the client (such
as the scope of the representation)
3
4
3. Non-Clients and the No-Contact Rule:
Starting Point: A lawyer cannot competently handle any client matter
without gathering facts. Many of these facts will be provided by the
client. But often, facts must also be obtained from others. What limits
are there on a lawyers ability to communicate with a non-client?
MR 4.2 In representing a client, a lawyer must not communicate
ABOUT THE SUBJ OF THE REPRESENTATION with a person the
lawyer KNOWS is represented by another lawyer IN THE
MATTER, unless:
1. the other lawyer gives consent; or
2. the communication is authorized by law or court order.
RATIONALE: MR 4.2, Comment 1 states the rationale behind
this rule, saying: This Rule contributes to the PROPER
FUNCTIONING OF THE LEGAL SYSTEM by protecting a person
who has chosen to be represented by a lawyer in a matter
against:
1. possible overreaching by other lawyers who are
participating in the matter;
2. interference by those lawyers with the c-l
relationship; and
3. the uncounseled disclosure of information relating to
the representation.
BASIC CASE: In a basic case, P v D, this is pretty easy
But what if you represent someone against a corporation
(organization)?
IMPORTANT HYPO: You represent someone against a corp/org (eg in
a wrongful termination suit). You want to talk to some of the
employees of the corporation to find out information. But the
problem is, the corporation has a lawyer!
The critical issue here is: which employees are considered clients of
the corps lawyer for purposes of Rule 4.2?
There are 3 approaches court could take:
1. All employees of the corp are considered clients and,
therefore, the lawyer could not talk to any of the employees

18
(without the corporate lawyers consent or authorization by
law or court order).
However, this seems to conflict with MR 1.13(a), which says a
lawyer employed or retained by an org represents the
org..constituents (not a person or persons in the org).
Moreover, the ABA has said in a formal Opinion that MR
1.2>>>>>>>>>
So this approach appears to be disfavored under the law.
2. NONE of the employees of the corp are considered clients
and therefore any or all of the employees (WHAT?)
However, courts generally find this to be too broad
So this approach also appears to be disfavored under the law
3. In the Patriarca case, the ct adopted the std approach, which
is that there are three types of employees that are considered
clients of the corporations lawyer for purposes of Rule 4.2
1. Those who exercise managerial responsibility in the
matter;
2. Those who are alleged to have committed the
wrongful acts at issue in the litigation;
3. Those who have the authority on behalf of the
corporation to make decisions about the course of the
litigation
4. MULT CTS AND REST S100 (c) add a 4th Category:
those whose stmnts would be viewed under the law as
binding the corporation.
Rationale: these people are protected by the corps
lawyer bc they could affect the corp clients interests
quite directly and negatively
5. What about former employees of an org?
multiple cts and MR 4.2, comment 7 say that consent of
the orgs lawyer is NOT required for communication
with a former employee.
If the Employee DOES Fall into One of the Protected Categories:
Then under MR 4.2, the lawyer is prohibited from communicating
about the subj of the representation with that employee, absent
consent from the 0rgs lawyer or authorization by law or court order
Q: can the lawyer order a non-lawyer assistant to talk to the
employee?
MR 5.3(b) cautions that a lawyer who has a direct supervisory
authority over a non-lawyer must make reasonable efforts to assure
that the non-lawyers conduct>>>>>
Plus, MR 5.3 provides that a lawyer will be responsible for the nonlawyers conduct that would be a violation of the Rules if engaged in by
the lawyer if the lawyer orders the conduct.

19
Thus, a lawyer could not safely order a non-lawyer to interview
protected employees bc such interviews would violate the ethics rules
if conducted by the lawyer himself
BUT CLIENT CAN CONTACT: However, MR 4.2 does not prohibit the
lawyers client from contacting the employee!
The ABA has said in a Formal Opinion that bc parties to a legal matter
have the right to communicate directly to each other, a lawyer may
advise a client of that right and may assist the client regarding the
substance of any proposed communication
(No script?--)
The lawyer may initiate this subject w/out violating any rule, but
must take care not to allow her assistance to result in overreaching
If the Employee DOES NOT Fall into One of the Protected Categories:
Then the lawyer is dealing with an unrepresented person under MR
4.3
Under MR 4.3
1. the lawyer must not state or imply that the lawyer is
disinterested
2. When the lawyer knows or reasonably should know that the
unrepresented person misunderstands the lawyers role in the
matter, the lawyer must make reasonable efforts to correct the
misunderstanding
3. the lawyer must not give legal advice to the unrepresented
person, other than the advice to secure their own counsel, if
the lawyer knows or reasonably should know that the interests
of such a person are or have a reasonable possibility of being in
conflict with the interests of the client.
RATIONALE: the rule restricting contact with unrepresented persons
is designed primarily to prevent a lawyer from overreaching and
taking unfair advantage of a relatively unsophisticated person.
C. Maintaining the Relationship
1. Model Rule 1.2: Scope of Representation and Allocation of Authority
Between Client and Lawyer
(a) Lets break MR 1.2(a) down into three smaller rules
1. Participatory Relationship: subject to and (d) a lawyer
shall abide by a clients decisions concerning the objectives of
the representation and, as required by rule 1.4, shall consult
with the client as to the means by which they are to be
pursued. A lawyer may take such action on behalf of the client
as is impliedly authorized to carry out the representation
2. CIVIL CASES: A lawyer must abide by a clients decision
whether to settle a matter
3. CRIMINAL CASES: In a criminal case, the lawyer must abide
by the clients decision, after consultation with the lawyer, as to

20
a

plea to be entered
whether to waive jury trial; and
whether the client will testify
[decision whether to appeal]

Consider MR 1.2s intersection with MR 1.4


MR 1.4, Comment 2: If these Rules require that a particular
decision about the representation be made by the client, MR
1.4(a)(1) requires that the lawyer promptly consult with and
secure the clients consent prior to taking action unless prior
discussions with the client have resolved what action the client
wants the lawyer to take.
For example: a lawyer who receives from opposing
counsel an offer of settlement in a civil controversy or a
proffered plea bargain in a criminal case MUST
promptly inform the client of its substance unless the
client has previously indicated that the proposal wll be
acceptable or unacceptable or has authorized the
lawyer to accept or reject the offer
2. Model Rule 1.2(d): Assisting the Client in Wrongful Conduct
MR 1.2(d0: A lawyer must not counsel a client to engage, or assist a
client, in conduct a lawyer KNOWS is criminal or fraudulent
But a lawyer may discuss the legal consequences of a propsed
course of conduct
The lawyer may also counsel or assist the client to make a good
faith effort to determine the validity, scop, meaning, or
application of law.
MR 1.2 Comment 9: There is a crtical distinction btwn
Presenting an analysis of legal aspects of questionable conduct
&
Recommending the means by which a crime or fraud might be
committed with advice
unsuggestive v advice which is suggestive of an action
Ultimate Question: Does the lawyer KNOW his advice is being used to
commit a crime or fraud?
Rule 1.0(f): defines knowledge as actual knowledge of the fact in
question. However, a persons knowledge MAY BE INFERRED FROM
THE CIRCUMSTANCES.
Final Point: Itr is not enough to present all of the advice and say at the
end, I give you a strong advice, do not do it. That is not enough to
immune the lawyer
Rather, Comment 10 suggests hat, the moment it becomes

21
known to the lawyer that her advice would be used to commit
a crime or a fraud, the lawyer should stop providing the advice
and must withdraw from the representation of the client in the
mater, pursuant to MR 1.16(a)
3. MR 1.15: Safekeeping Ppty
The Big Picture: the lawyer has to keep the clients$ completely separate
from the lawyers money
MR 1.15: safekeeping property
(a) lets break this down into a starting point and three smaller rules
Starting Point
1. funds (sep accnt, state where lawyers officer situated, or
somewhere else with consent)))
2. other property
3. five year rule
(b) when can a lawyer deposit the lawyers own funds into a client
trust account?
((((to cover bank charges)
what if the client pays legal fees and expenses in advance?
Withdraw as fees earned/expenses occurred
(d) what if lawyer receives funds or other ppty that a client or other
3rd party has interest in?
(e) what if, in the course of representation, a lawyer is in possession of
property in which two or more persons (one of whom may be the
lawyer) claims an interest in?
D. Terminating the Relationship
1. Methods of Termination
2. Mandatory and Permissive Withdrawal
3. A Lawyer Using Withdrawal as a Way to Get Her Client to Pay Her Fee
4. A Lawyers Duties After Withdrawal
5. Restrictions
1. Method of Termination:
Rule: at the end of the representation, the lawyer should send the
client a letter clearly defining the end of the representation so that a
reasonable person in the position of the client would think that the
representation has terminated. Why?
Two rationales:
1. An unambiguous termination has the important
result of moving the current client into the category of a
former client, which has significant ramification for
conflicts of interest (that is, a lawyer is much less likely
to have a conflict of interest with a former client than
with a current client).
2. If the lawyers representation has not terminated, the

22
L will have continueing exposure to legal malpractice
liability
2. Mandatory and Permissive Withdrawal
MR 1.16: Declining or Terminating Representation
(a) Mandatory Withdrawal: Except as stated in paragraph (c), a
lawyer must not represent a client or,
a lawyer must w/draw
GET RESTTTTT
(b)Permissive Withdrawal: except as states in paragraph (c), a
lawyer may withdraw from representing a client if:
1. withdrawal can be accomplished without material
adverse effect on the interests of the client;
2. the client persists in a course of conduct involving the
lawyers services that the lawyer reasonably believes is
criminal or fraudulent
3. the client has used the lawyers services to
perpetuate a crime or a fraud;
4. the client insists upon taking action that the lawyer
considers repugnant or with which the lawyer has a
fundamental disagreement
5. the client fails substantiallu to fulfill an obligation to
the lawyer regarding the lawyers services and has been
given reasonable warning that the lawyer will w/draw
unless the obl is fulfilled
6. the rep. will result in an unreasonable financial
burden on the lawyer or has been rendered
unreasonably difficult by the client, or
7. other good cause for w/drawal exists
notice: a lawyer must comply with applicable law requiring
notice or permission of a tribunal when terminating the
representation
when ordered to do so by tribunal, the lawyer shall continue
representation notwithstanding good cause for terminating the
rep
(d) upon termination of representation, a lawyer shall take
steps to the extent reasonably practicable to protect a clients
interests, such as:
1. giving reasonable notice to the client;
2. allowing time for employment or other counsel
3 GETTTTTTTT
4 refunding any advance payment of fee or expense that
has not been earned or incurred
the L may retain papers relating to the C to the extent

23
permitted by other law
3. A lawyer using withdrawal as a way to get her client to pay her fee
1. litigation context
hypo
MR 1.16 b 5: except as stated in paragraph , a lawyer may
withdraw from representing a client if the C fails
substantially to fulfill an obl. To the L regarding the Ls services
and has been given reasonable warning that the lawyer will
withdraw unless the obligation is fulfilled
However, most cts would say that a lawyer cannot
withdraw if that would result in a default judgment
against the client
Therefore, the lawyr would still have to provide
competent representation to their client under
MR 1.1 and, thus, not prejudice the outcome of
the clients case
Also, the lawyer cannot provide representation
that would fall below the applicable std of care
2. transactional setting:
hypo
mr 1.16 b 5: except as stated in paragraph , a lawyer may
withdraw from representing a client if the C fails
substantially to fulfill an obl. To the L regarding the Ls services
and has been given reasonable warning that the lawyer will
withdraw unless the obligation is fulfilled
you would have to comply with MR 1.16 d
but there is no problem from withdrawing here
4. A lawyers duties after withdrawal
(GET))))))))
Issue: Can a lawyer withhold a clients papers when the client has
failed to pay attorneys fees?
Majority rule----retaining liens: most starts say that a lawyer can
withhold a clients papers until the fee is paid. This is called a
retaining lien
Minority Rule Restatement Secton 43: the restatement rejects this
approach , finding the use of the clients papers against the client to
be Iin tension with the fiduciary responsabilities of lawyers
The academy of California Optometrists Case: The ct found
that the papers had no value to the lawyer, except as coercion
and were of substantial valie to the client
REST 43 allows a L to retain a doc only if:
1. the client has not paid all fees and disbursements due
for the lawyers work in preparing the document; and
2. non-delivery would not unreasonably harm the client
or former client

24
5. Restrictions on the Right to Practice
MR 5.6: Restrictions on the Right to ractice
A lawyer must not participate in offering or making
(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: or
(b) an agreement in which a restriction on the lawyers
right to practice is part if the settlement of lient
controversy
rationale? See comment rule book p 112
IV. Chapter FIVE: Attorneys Fees
A. The Basics
1. Four Types of Fee Arrangements:
1, Hourly Fee: Computed by multiplying an hourly rate times
the amount of time.
2. Flat Fee: Charging $X for certain legal fees
Ill charge you $250 to prepare your will
3. Contingency Fee: A fee that is earned at all only if a favorable
outcome is obtained; or
4. Proportional Fee: The fee is computed as a percentage of a
value of a particular transaction.
Criticism?
Counterargument?
2. The Contexts:
As fees is the one time when lawyers and Cs are necessarily in
conflict
Fee disputes can arise in multiple contexts:
1. Discipline contexts
2. litigation: many fee disputes arise in litigation between the
lawyer and the client
this is because both the type of fees and the amount of
those fees are largely a matter of K
thus, a lawyer might sue a client for a fee (a breach of K action),
or if a client sues a lawyer for malpractice, the lawyer may
counterclaim malpractice
3. MR 1.5: Fees
the relevant disciplinary rules regarding fees are the 1969
Model Codes DR 2-106 and, now, MR 1.5
1969 Model Codes DR 2-106: A lawyer must no make an
agreement for, charge, or collect an illegal or clearly excessive
fee

25
a fee is clearly excessive if a lawyer of ordinary prudence
NEED REST
MR 1.5

(a) a lawyer must not mke an argument for, charge, or


collect an unreasonable fee or an unreasonable amoun
of expenses. There are 8 factors to be considered in
determining the reasonableness of a fee
1. the time and labor involved;
the novelty and difficulty of the Qs involved; the
skill required to perform the legal services
properly
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
I need this is a year
I need this tomorrow
6. The nature and length of the professional
relationship with the client.
Which way does this cut?
7. The experience, reputation, and ability of the
lawyer or lawyers performing the services
8. whether the fee is fixed or contingent
(b) the lawyer must communicate the following to the client (preferably in writing):
the scope of the representation;
the basis or rate of the fee; and expenses for which the client will be responsible
timing: before or within a reasonable time after commencing the representation
exception: when the lawyer will charge a regularly represented client the
same basis or rate
but if the basis or rate of the fee or expenses charges, you MUST communicate that
to the client
(c-d) contingent fee matter: a fee may be contingent on the outcome of the matter
for which the service is rendered
exceptions: a lawyer shall not enter into an agreement for, charge, o collect:
any fee in a domestic relations matter, the payment of which is contingent pom:
securing of a divorce
the amount of alimony or support; or
a ppty settlement in lieu of alimony or support
2. A contingent fee for representing a defendant in a criminal case
Format: a contingent fee must be:

26
1 in writing
2 signed by the client; and
3. it must state the method by which the fee is to be determined, including
1 the percentage or percentages that shall accrue to the lawyer in the event of
settlement, tril GET THE REST
Conclusion of the Matter: The lawyer must provide the client with: 1. A written
statement
2. stating the outcome of the matter GET REST OMG (10/9/2013)
MR 1.5 (E)
GET FROM EMAILS FROM EMMA
B. Hourly Fees
1. billing for learning time
2. double billing
3. time increments and rounding
4. charging clients for general office overhead
5. the debate over hourly fees
B. Hourly Fees
1. Billing for Learning Time
[In the Matter of Fordham]
Starting Point: The reasonableness of any lawyers fee is going to be
judged under the factors laid out in MR 1.5(a)
Issue of Billing for Learning Time:
1. Under the Model Rues, there is nothing improper.
a. Likewise, MR 1.1, comment 4 provides that a L may
accept.
2. However, when a lawyer takes on a matter in an area of law
in which he lacks experience, the lawyer undoubtedly must
spend time learning about that area of law
3. If the lawyer is billing the client by the hour, the issue is
whether the lawyer can ethically bill the client for ALL of
that learning time.
4. As we saw in the Fordham case, generally, the answer is no
a. The proper course is for the lawyer to spend the
necessary time learning and then eat the hours
spent learning by not billing the client for those
hours.
b. At the very least, the lawyer should eat at least
some of the learning time so that the lawyer only
ends up charging a fee comparable to the fee
customarily charged in the locality for similar legal
services, the third factor listed in Model Rule 1.5(a).
That would make it more likely that the lawyers fee

27
would be considered reasonable.

2. Double Billing
Simultaneous appearance on behalf of multiple clients
The airplane flight on behalf of one client while working on another clients matter
Recycled work product
ABA formal opinion 93-379: all are impermissible under MR 1.5. You cannot engage
in double billing
Whayt are your alternative options?
1. The simultaneous appearance scenario?
2. The airplane flight scenario?
3. The recycled work product scenario
3. Time Increments and Rounding
Issue: Can a lawyer safely round up time spent on a matter (eg a phone call)?
Answer: the answer depends on:
1. what is considered reasonable in that jurisdiction; and
2. whether the lawyer is lying about time spent to such a degree that it is
considered dishonest or fraudulent
Most lawyer who
Answer: The answer depends
MYERS CASE p[ 309
PUBLIC CENSURE: it is unreasonable to bill in one-hour increments for less than
that
ISSUE: when the lawyer submits a bill to a client, can the lawyer add charges for
general office in overhead (in addition to a lawyers fee)?
ABA: No, unless the lawyer discloses this to the client in advance.
Basically if a client clooked at it they would be shocked. You should have already
figured out these things.
In absence of disclosure to the client in advance of the engagement to the contrary,,
the cost should be subsumed (abbrevs)
5. The (Lack of A) Debate Over Hourly Fees
ABA Commission Report (2002): A scathing indictment omn the negative
impact of hourly fees on the profession
At least 3 criticisms of the billable hour
1. The billable hour penalizes the efficient and productive lawyer
2. Breyer: continuos push to increase billable hours on the grounds that it
makes pro bono work difficult if not impossible
a. [quote on the top of page 310]

28
3. The Former ABA President decried the billable hours negative effect on
family and personal relationships
C. Conmtingent Fees
1. Entitlement to a Contingent Fee
Culpepper case: L agreed to represent a client in a will contest. The
lawyer and the client agreed that whatever the client got beyond what he normally
would have taken under the will, the lawyer woul get 1/3rd.
A bit down the road, the client is offered $21,000 over and
above what he would have received under the terms of his mothers will
Lawyer recomemends settlement offer
Client refuses to settle and fires lawyer
Client handles matter- gets nothing
Lawyer sues for 3rd
Ultimately lawyer loses
RULE: If a client obtains no recovery, then the lawyer is not entitled to any
contingent fee. In other words, a lawyer on a contingent fee will not recover
anything if the contingency never occurs [See FN 3]
Here, a contrary decision would have hampered the clients ability to reject
the settlement offer, which the client has the right to do (see MR 1.2 (a))
CHANGE THE FACTS:
Suppose $21000 settlement offer comes in
Client fires the lawyer
Client accepts offer
Does client have to pay lawyer one-third?
Split of authority:
Some cts: client does not have to pay a lawyer bc client has an absolute right to fire
his lawyer, at any time.
Other courts: A clients power to fire his lawyer can be exercised in bad faith.
Therefore client would have to pay the lawyer the fee or, as an alternative, the client
would be liable to the lawyer on a quantum meruit basis
2. The Reasonableness Requirement
The Gagnon (gannon) case
The was a serious personal injury case
The client and lawyer agree to 1/3rd
Settlement of 2.9 million
Obn his own motion (sua esponte), the trial jusge called a hearing to
examine the reasonableness of the amount
The client testified that he had no objection to the agreement,
the percentage or the amount
Nevertheless, the judge pared down the lawyers fee
Some Courts: WWhile all fees are subject to a reasonableness requirement, in

29
Gagnon, the ct said that the trial judge had no business raising an objection to the
amount of the contingent fee when neither the client nor anyone else had objected
to it
Other courts: however, other cts have said that trial ct judges can independently
review the reasonableness of a contingent fee
General Rule: generally a one-third contingent fee will be considered reasonable
Caveat: a combination of factors can change that view:
1. amount involved in the suit: what is otherwise a reasonable fee may be
seen as too uch if the amount involved is very high
2. amount of work involved: bc of a fast settlement offer, what is otherwise
reasonable fee may be seen as unreasonable
a. this is captured in MR 1.5 (a), which provides that a lawyer must
not make an agreement for, charge, or COLLECT an unreasonable
fee
b. Similarly, Restatement S 35, comment c, states: large [contingent]
fees unearned by either effort or a significant period of risk are
unreasonable.
3. The possibility that there was Never a Contingency:
eg taking a life insurance claim to insurance company--- no fighting it
3. Categorical Restrictions on Contingent Fees
MR 1.5 Fees
(c-d) Contingent Fee Matter: A fee
D. Two Final Fee-Related Issues
1. The division of a fee btwn lawyers not in the same firm.
MR 1.5(e): A division of a fee btwn lawyers NOT in the same firm may be mad ONLY
IF:
1. the division is in proportion to the services performed by each lawyer OR
each lawyer assumes joint resonsability for the representation
COMMENT 7
2. the client agrees to the arrangement, including the share each lawyer will
receive, and the agreement is confirmed in writing; and
3. the total fee is reasonable
2. Fee sharing between lawyers and nonlawyers
MR 5.4 (a): a lawyer or law firm shall NOT share legal fees with a nonlawyer
Exceptions:
1. [lawyers estate]
2. [purchasing the practice of a deceased lawyer]
3. A LAWYER OR A LAW FIRM MAY INCLUDE NONLAWYER EMPLOYEES IN A
COMPENSATION OR RETIREMENT PLAN EVEN THOUGH HE PLAN IS BASED IN
WHOLE OR IN PART ON A PROFIT SHARING ARRANGEMENT;
4. [sharing court-awarded legal fees with a non-profit]
MR 7.2(b): A lawyer shall not give anything of value to a person for recommending

30
the lawyers services [exceptions]
V. CHAPTER THREE: The duty of confidentiality
General Introductions:
There are 3 topics we are going to discuss under the duty of
confidentiality:
1. the work product doctrine
2. the attorney-client privilege; and
3. the ethical duty of confidentiality (See MR 1.6)
1. The Work Product Doctrine
[common situation]
starting point: there is a general view that discovery should be broad so as to
resolve disputes
EXCEPTION: However there is an exception for work product
Rationales for the Work Product Doctrine:
1. [first rationale] {its a matter of professionalism}
2. [second rationale] {if parties and lawyers knew that all of their
material could be discovered by an adversary in litigation, that might
discourage parties and lawyers from writing things down
As we saw in Stewart v. Falleys Inc, the party opposing discovery [by
claiming work product protection] must prove three elements:
1. that the material is a document or tangible thing;
2 that the material was prepared in anticipation of litigation; and
3. that the material was prepare by or for a party or by or for the
partys lawyer
it is worth noting that Rest 87 (10) roughly captures these 3 elements
(although that provision only mentions materials.
if these 3 elements are met, then the material is generally oridinary work
product however if these materials consist of the opinions or mental
impressions of the lawyer, then the material is opinion work product
As Rest 88 states, if the material is ordinary work product, then it is generally
immune from discovery. The burden shifts to the party seeking discovery to
show:
1. a substantial need for the materials; and
2. that the party is unable, without UNDUE HARDSHIP, to obtain the
substantial equivalent of the material by other means
As Restatement S89 states, if the material is opinion work product, then it is
generally immune from discovery. The burden shifts to the party seeking discovery
to show extraordinary circumstances
2. Attorney-Client Privilege

31
[common sitation]
starting point: there is a general view in evidence law that all competent evidence
should come in.
Exception: However, there is an exception for information covered by the
attorney-client privilege
Rationale for the Attny-Client Privilege: As Just Rehnquist said in UPJOHN, the
purpose if the attny-client privilege is to:
1. encourage full and frank communication btwn attnys and their clients, and
2. thereby promote broader public interesrs in the observance of law and
administration of justice
Restatement 68 captures the basic definition of the attny-client privilege, saying that
the attorney-client privilege may be invoked with respect to:
1. a communication
2. made btwn privileged persons
3. in confidence
4. for the purpose of obtaining or providing legal assistance for the client
Ultimately, the party asserting the privilege bears the burden of proving each
element f the privilege.
In the end, if a communication is ruled privileged, then it cannot be
introduced into evidence in a legal proceeding, unless some exception applies
or unless the privilege has been waived (the party asserting that the privilege
has been waived or is subject to some exception bears that burden)
1. A communication
Rest 69 Defines Communication: A communication is any expresseion through
which a privileged person undertakes to convey information to another privileged
person and any document or other record revealing such an expression.
The communication may be written, oral, or even demonstrative (eg a clients
opening his jacket to show a blood stain on his shirt).
The privilege protects communications, but not necessarily the info conveyed in the
communications
EG: In a private meetng, client tells lawyer: I ran the red light
Would this communication keep the opposing party from asking the
client how the accident occurred?
No! The attny-client privilege does not all a client to
immunize facts simply by telling them to his lawyer in
confidence
On the other hand, the attny-client privilege would prevent the client from
being compelled to answer the opponents question, What did you say to
your lawyer about the accident?
That is a protected communication (see also p 162)
Two special issues:
1. identity of a client: In general, the identity of a client and the mere fact of

32
consultation are not privileged bc they are not considered communications.
2. Fee Arrangements: In general, fee arrangements are not privileged bc they are not
considered communications
2. made between privileged person
Rest Section 70 Defines Privileged Persons: privileged persons within the meaning
of section 68 are:
1. the client (including prospective client)
2. clients lawyer
3. agents of either who facilitate the communication between them, and
4. agents of the lawyer who facilitate the representation
Unnecessary Third Party Issue: The presence of an unnecessary third party at an
otherwise confidential meeting will destroy the attny-client privilege. Why?
The reason for this is two fold:
1. The communication is not being held btwn privileged parties- the
third party does not fit within that category; and
2. the presence of the third party shows that the communication is not
confidential (the third element of the attny-client privilege).
TAKE AWAY: Lawyers have to be conscious of who is in the room and consider
whether each person is a privileged person under Section 70
If the presence of a third party would destroy the privilege (because that
person is not a privileged person under S 70), then it is important to tell
the client that the presence of that person affects the privilege
Are these privileged persons?
1. accountant? Yes
2. PR consultants? Split here (note 6)
Organizational Clients (eg corporate clients): As UPJOHN illustrates, the attny-client
privilege applies to corporations as well as individuals.
Issue: When a corporate employee is communicating something to a lawyer
working for the corporation, is that employee speaking on behalf of the corporate
client? In other words, is that employee a privileged person
MR 1.13(a): A lawyer employed or retained by an organization represents
THE ORGANIZATION acting through its duly authorized constituents
1. Prior to UPJOHN: some lower federal courts had held that only those
within the corporatios CONTROL GROUP were considered as speaking for the
corporation and were thus privileged persons But who is in the control group?
The control group generally includes those individuals in the Upper
ranks of the corporate ladder; in other words, those individuals who have the power
to direct the corporate entity to do something.
2. Upjohn: [see p 153] In Upjohn, SCOTUS rejected the control group test
for federal cases. However, the Ct did not articuyllate a clear alternative. Instead,
the Ct recited a litany of facts that were present in that case, suggesting that a
communication is privileged if:
1. it is btwn an employee and corporate counsel
2. at the direction of corporate superiors

33
3. in order to secure legal advice
4. communication concerns matters within the scope of the employees
corporate duties
5. employee was aware that he was speaking so that the corporation
could obtain legal advice
6. communication was mean to be confidential; and
7. communication was kept confidential
the UPJOHN ct never says if ALL of these requirements are necessary
for the privilege to attach
the UPJOHN test is much broader than the control group test
because ommunications from ANY employees, no matter how low,
could be privileged.
3. The Restatement S 73 approach is considerably broader than the Upjohn
test.
3. In CONFIDENCE
Rest S 71 Defines In Confidenc: A communication is in confidence within the
meaning of S 68 if the communicating person reasonably believes that no one will
learn the contents of the communication except a privileged person.
Whether a conversation is intended or reasonably expected to be confidential is
often a contested issue in cases
[communications over e-mail]
[meetings in restaurants and coffee shops] not if talking loud, generally no
[meetings in courtroom hallways] yes
4. for the purpose of obtaining or providing legal assistance for the client.
This element means that a confidential communication is privileged only if it
relates to the subject matter of the legal problem abut which the client seeks legal
assistance
The crime-fraud exception:
If the client seeks the lawyers services in furtherance of the commission of an
ongoing or future crime or fraud, communications relating to that are not covered
by the attny-client privilege. Such a communication is subject to the crime-fraud
exception, which is captured in Restatement S 82
Rest S82 provides that the attny client privilege does not apply to a communication
occurring when a client:
(a) consults a lawyer for the purpose, later accomplished, of obtaining
assistance to engage in a crime or fraud or aiding a 3rd person to do do;
(b) regardless of the clients purpose at the time of consultation, uses the
lawyers advice or other services to engage in or assist a crime or fraud
MR 1.2 d
Duration of the Privilege:
There are two key temporal points about the duration of the attny-client
privilege:

34
1. Pre-representation protection: the attny-client privilege attaches
when a prospective) client communicates with a lawyer for the
prupose of hiring that lawyer, even if the lawyer is never retained
2. post-representation protection: the attny-client privilege may still
exist even after the representation btwn the atny and the client has
cease
this is the case if the client reasonably believes that the
communication is confidential
In short, the duration of the privilege is based on the
reasonable expectations of the client
Death of a client:
In SWINDLER & BERLIN, the SCOTUS held that the attny-client privilege
survives the death of the client
Rationale: knowing that communications will remain confidential
even after death encourages the client to communicate fully and
frankly with counsel
Note: Many state statutes contain explicit provisions that allow the
survivor of a deceased client (such as a spouse) to waive the privilege
MPRE Review
1.2 (a) intersection with 1.4
1.2 (d)
1.3
1.5 ontingent fees in writing, division of a fee
1.6 (a) and (b) (1) MAY reveal not required to
1.7 (a)
1.8 LOOK AT THESE RULES (a) business transactions with a client, (c) solicit gifts, (d) literary or media rights, (e), (f), (h)(1)
and (h)(2)
1.9 (a)
1.13(a)/1.13(g)/1.7
1.16: must withdraw/may withdraw, a lawyer must continue if the ct says so
1.17 sale of a law practice- may turn on a
2.1 you can refer to moral, economic, social, and political factors
3.1 you have to have a good faith basis for your arguments
3.3/3.4 a lot of good rules
3.3a2, 3.4 d, 3.4e asserting personal knowledge/stating personal opnion, 3.4 f keep the AND in mind
3.6b: they often test this one what a lawyer can do
3.8(d): prosecutor knows about exculpatory evidence and does not turn it over
3.8 (g)
3.9 ---have to say in a representative capacity
4.2/4.3
4.4 (b)
5.1: when the supervisory lawyer is responsible
5.2(a)
5.3
5.4(a): must not share legal fees with a nonlawyer, except
5.5
5.6: covenant not to compete
6.1 50 hrs not required
6.2
7.2(b) must not give anything of value #4
7.3 live contact, no unless close, prior
non live ok for everyone unless
7.5 trade names are okay
8.1 dont lie to bar
8.3(a) urn in others
8.4
CODE OF JUDICIAK CONDUCT

35

Waiver
1. Inadvertant Disclosure
[the Scenario]
First Q: Is the document covered by a-c privilege (or the work
product doctrine)?
Second Q: Did the inadvertent disclosure waive the a-c
privilege (or the work-product protection)?
Third q: what are the receving lawyers ethical duties with
respect to the document?
First Q: Is the document covered by a-c privilege (or the work product doctrine)?
[analysis]
rest 68
section 70
section 71
Assuming that the document is covered by the attorney-client privilege (or
work product), the next question is:
Second Q: Did the inadvertent disclosure waive the a-c privilege (or the workproduct protection)?
Courts generally filllow one of three approaches in deterningng whether an
inadvertent disclosure constitutes a waiver of the attorney-client privilege (or the
work product protection):
1. some cts follow the traditional or strict approach which any disclosure ,
even an inadvertent disclosure, waives the privilege.
Rationale: According to Professor Perlman, proponents of this view
believe that it encourages lawyers to take great care of privileged
information In other words, as one ct has explained, this approach
instills in attnys the need for effective precautions against
disclosure
2. other cts follow essentially the opposite approach, holding that any
disclosure must be deliberate and intentional to constitute a waiver. Thus, a
disclosure that is truly inadvertent would not constitute a waiver
3. Most cts now follow a third, middle-ground approach known as the
balancing test or the totality of circumstances test. The cts in Cassano
and Amgen cases followed this test. Under this approach, cts will weigh the
following 4 factors in determining whether the privilege was waived:
1. the reasonableness of the precautions taken to prevent inadvertent
disclosure;
2. the time taken to rectify an error;
3. the scope of the discovery and the extent of the disclosure; and
4. overarching issues of fairness.
Federal Rule of Evidence 502, signed into law in 2008, follows a
similar approach, providing that an inadvertent disclosure does not
waive the privilege (or protection) if its holder took reasonable steps

36
to prevent disclosure and reasonable steps to rectify the error
Professor Perlmans Helpful Analysis:
Cts adopt middle ground approach have tended to find waivers when,
for example, the lawyer failed to review discovery documents before
producing them, or when the number of documents was sufficiently
small enough that the lawyer should have identified the privileged
documents before their disclosure
Cts are more reluctant to find a waiver in other circumstances such as
when there are a relatively small number of disclosures in an
otherwise large number of documents, and when the sending lawyer
took precautions against inadvertent disclosure.
Conclusion:
If the privilege (or protection) has been waived, then the document is
admissible as evidence
If the privilege (or privilege) has NOT been waived, then the
document is NOT admissible as evidence
While this may resolve the issue of waiver, we must still consider the
receiving lawyers ethical obligations with respect to the document
Third Question: What are the receiving lawyers ethical duties with respect to the
document?
Different jurisdictions have adopted different approaches regarding the
ethical obligations of a lawyer who receives inadvertently-produced material(s)
1. MR 4.4 (b): A lawyer who receives a document or electronically stored
information relating to the representation of the lawyers client and knows
or reasonably should know that the document or electronically stored info.
Was inadvertently sent shall promptly notify the sender
Comment 2: whether the lawyer is required to take additional steps,
such as returning the document or electronically stored information,
is a matter of law beyond the scope of these Rules, as is the question
of whether the privileged status of a document or electronically
stored information has been waived
Comment 3: Some lawyers may choose to return a document or
delete electronically stored information unread, for example, when
the lawyer learns before receiving it that it was inadvertently sent.
Where a lawyer is not required by applicable law to do so, the
decision to voluntarily return a document or delete electronically
stored information is a matter of professional judgment ordinarily
reserved to he lawyer See Rules 1.2 and 1.4
This comment suggests that lawyer can have a higher sense of
fairness and return the document
However, before a lawyer returns the document, Comment 3 points to
the lawyer to MR 1.2 and 1.4
MR 1.2(a) states that the lawyer shall consult with the client as
to the means by which the clients objectives are to be pursued.
Similarly, MR 1.4(a)(2) provides that a lawyer shall reasonably
consult with the clint about the means by which the clients objectives

37
are to be accomplished
Taken together, these rules suggest that, before the lawyer returns the
document, the lawyer should consult with the client
In consulting with the client and rendering advice, MR 2.1
makes it clear that the lawyer may refer not only to the law but
also to other considerations, such as moral factors. Thus, in
this case, the lawyer may discuss with the client whether it is
moral to keep this information.
PERLMAN
CASE OF INADVERTENT DISCLOSURES
GEORGE MASON
2. Kentuckys Rule 4.4(b) A lawyer who receives a document relating to the
representation of the lawyers client and knows or reasonably should know that the
document was inadvertently sent shall:
(1) refrain from reading the document,
(2) promptly notify the sender, and
(3) abide by the instructions of the sender regarding its disposition
Compared to MR 4.4(b), this approach is more protective of the careless
lawyer who inadvertently sent the relevant document(s)
Ultimately, a umber of jurisdictions have adopted this approach
[go through whole analysis and then say some jurisdictions apply this other
approach more protective of the careless lawyer]
3. Other Approaches (mention): As Prof Perlman has recognized, other jurisdictions
have adopted other approaches.
Moreover, FRCP 26(b)(5)(B) contains its own approach that applies to
discovery in federal ct actions
((((2nd issue of waiver needs to be resolved by a ct, get bar association to resolve
obligations)))
3. The Ethical Duty of Confidentiality
Introduction:
1. Agency Law: The ethical duty of confidentiality is rooted in agency
law principles
2. A Comparison: the ethical duty of confidentiality is BROADER than the attny-c and
work-product privileges in several respects
1. a-c privilege pertains only to admissibility of particular evidence in a
judicial proceeding when the client or lawyer have been asked to divulge or
produce that evidence
2. the evidentiary privileges protect communications, not information
relating to the representation of a client
3. the attorney client privilege protects only communications between the
client and the lawyer (and their agents)

38
The Upshot? p. 188 last paragraph
even if the content of some communication is not protected by atty/client
privilege, that same info may be protected by the ethical duty of confidentiality
If the court orders a lawyer to testify, lawyer must do so and does not violate the
ethics rule 1.6(b)(6)
MR 1.6:
(a) a lawyer shall not reveal information relating to the representation of a
client
Exceptions:
1. the client gives informed consent;
2. disclosure is impliedly authorized to carry out the representation;
or
3. the disclosure is permitted by paragraph (b)
(b) A lawyer MAY reveal information relating to the representation of a of a
client to the extent the lawyer reasonably believes necessary:
1. to prevent reasonably certain deah or substantial bodily harm;
2. to prevent the client from committing a crime or fraud that us
reasonably certain to result n substantial injury to the financial
interests or property of another AND in furtherance of which the
client has used or is using the lawyers services
3. to prevent, mitigate, or rectify substantial injury to the financial
interests or property of another that is reasonably certain to result or
resulted from the clients commission of a crime or fraud in
furtherance of which the client has used or is using the lawyers
services;
4. to secure legal advice about the lawyers compliance with the
Rules;
5. to establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and the client, to establish a defense
to a criminal charge or civil claim against the lawyer based upon a
conduct in which the client was involved, or to respond to allegations
in any proceeding concerning the lawyers representation of the
client;
6. to comply with other law or a court order; or
7. to detect and resolve conflicts of interests arising from the lawyers
change of employment or from changes in the composition or
ownership of a firm , but only if the revealed information would not
compromise the attorney-client privilege or otherwise prejudice the
client;
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or
unauthorized disclosure of, or unauthorized access to, information relating to
the representation of a client
Spaulding v Zimmerman
no canon of ethics or legal obligation may have required them to

39
inform plaintoff or his counsel with respect thereto or to advise the court
therein
Stds
De novo- q of law, no deference given
Deferential review
Abuse of discretion
VI. Chapter Six: Conflicts of Interest
A. Introductory Principles
1. The Context: A lawyer whose representation of a client is found to
be tainted by an impermissible conflict is subject to a number of
sanctions:
1. Ethics: Bc the ethics rules in all states regulate conflicts, a
lawyer can be disciplined by the bar association.
2. Disqualification: A lawyer might be disqualified from
representing a particular client bc of a conflict of interest
3. Malpractice: Bc of a conflict of interest may constitute a
breach of duty to the client, a lawyer may be sued by an
aggrieved client for legal malpractice
could also sue for breach of fiduciary duty
4. Fees: a L might be ordered to give up on fees earned, or may
be told by a ct that no fee can be charged for conflicting
representation
2. Types of Conflicts of Interest:
1. concurrent conflicts - Conflicts between the interests of two
or more of the lawyers current clients (called a concurrent
conflict); MR 1.7
2. successive conflicts - conflicts btwn the interests of a current
client and a former client (called successive conflict) MR 1.9
3. Imputing conflicts of Interest; MR 1.10
4. Conflicts btwn the interests of current client and those of the
lawyer, including both personal and financial interests; MR 1.8
5. Conflicts btwn the interests of a current client and those of a
non-client third party to whom the lawyer or client (or both)
owe duties.
3. Obtaining Informed Consent: In some instances (though not all
instances), a lawyer can represent a client despite a conflict of interest
if the client gives informed consent in writing
Definition of Informed Consent in Model 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 and explanation about
the material risks of and reasonably available alternatives to
the proposed course of conduct.
Simply put, the lawyer must be able to explain the

40
nature of the conflict in enough detail for the client to
understand the stakes of granting that consent
Timing issues with consent: consent to waive a conflict of
interest should (and often must) be obtained at the outset of
the representation
Thus, the consent can come TOO LATE
Hayden, Certainly it is not sufficient to seek
client consent near the end of a representation,
when the conflict was apparent at an earlier
point. (see also The Wittmack Case]
Can the consent come TOO EARLY?
Advance Waiver of Conflicts: Many law firms
routinely place advance waiver clauses in their
retainer agreements, seeking to obtain client
consent to waive a conflict before one even
arises.
The Model Rules and Restatement generally
permit this practice.
However, MR 1.7, Comment 22 makes it
clear that the effectiveness of such
waivers is generally determined by the
extent to which the client reasonably
understands the material risks that the
waiver entails. [HOW SOPHISTICATED IS
THE CLIENT?]
B. MR 1.7: Conflict of Interest: Current Clients
(a) Except as provded in paragraph (b), a lawyer shall NOT represent a client
if the representation involves a CONCURRENT CONFLICT OF INTERESR. A
concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another
client [even if the matters are wholly unrelated]; or
(2) there is a significant risk that the representation of one or more
clients will materially be limited by the lawyers responsibilities to
another client or a third person by a personal interest of the lawyer
(b) notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer may represent a client if all of:
(1) the lawyer reasonably believes that the lawyer will be able to
provide competent and diligent representation to each affected client;
(implicates MR 1.3, 1.1)
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one
client against another client represented by the lawyer in the same
litigation or other proceeding before a tribunal; AND
(4) each affected client gives informed consent, confirmed in writing
Rationale for the Rule: Lawyers owe a number of core duties to clients.
When a lawyer labors under a conflict of interest, the following duties may be

41
compromised:
1. Duty of Competence: ____
2. Duty of Loyalty: ________
3. duty of confidentiality: _______
4. system oriented interest: ________ best served if zealous
representation on both sides
[[[[[[[[[hypo 2
b and seller have same lawyer:
conflict is a?
conflict in b? have to assume to go through list
purely transactional not as much of a problem under 3
hypo 3
HYPO 4: Illustrating the Rationale:
1. the dui case:
state v defendant schueler (lawyer)
2. the horse farm transaction
buyer betty (lawyer) v. seller schueler
R: problem under 1.7a1 and a2
Comment 6s rationale:
The client as to whom the representation is directly adverse (schueler) is
likely to feel betrayed, and the resulting damage to the client-lawyer
relationship is likely to impair the lawyers ability to represent the client
effectively (in the dui case)
In addition, the client on whose behalf the adverse representation is
undertaken (Betty) reasonably may fear that the lawyer will pursue that
clients case less effectively out of defence to the other client (schueler), i.e.,
that the representation may be materially limited by the lawyers interest in
retaining the current client (schueler)
(go to b)
Hypo 5
1. the vineyard transaction
(lawyer) buyer bob v. seller sally (lawyer tina)
2. the dui case:
state v. defendant sally (lawyer)
Q 1: assume dont tell bob about defending sally in dui
Sanctions for talking to sally during transaction without lawyers consent: see 4.2
I: whether lawyer subject to discipline who u know repped by counsel
Rule: 4.2 says no if not about subj of rep
Rationale: afraid of overreaching see comment 1
Q 2 1.7. intersection of 4.2 and 1.7
4. Positional Conflicts:
Hypo: a lawyer is arguing to enforce a particular statute for client A in one

42
case, while arguing that the statute is unconstitutional in Client Bs separate
case. Client A is not suing Client B and they are not parties in a single lawsuit.
Issue: What if a lawyer is representing two clients in different litigated
matters, and is taking inconsistent positions on the law in those two cases?
Is that a conflict?
MR 1.7, Comment 24:
On the one hand, the mere fact that advocating a legal position on
behalf of one client might create a precedent adverse to the interests
of a client represented by the lawyer in an unrelated matter does not
create a conflict of interest.
On the other hand, a conflict of interest exists when a decision
favoring one client will create a precedent likely to seriously weken
the position taken on behalf of the other client.
The Comment suggests a number of factors that might be relevant in
determining whether a positional conflict is problematic, including
where the cases are pending ad what the issues are, among others
(positional conflicts--- continuum)
If there is a conflict, then the lawyer must obtain the informed consent
of each affected client (or refuse one (didnt get rest)
C. Conflicts between a current client and a former client
1. MR 1.9: duties to former client
(a) a lawyer who has formerly represented a client in a matter shall
not thereafter represent another person in the same or a substantially
related matter in which that persons interests are materially adverse
to the interests of the former client unless the former client gives
informed consent, confirmed in writing
BOTH CONDITIONS MUST BE MET OR THERE IS NOT A CONFLICT AT
ALL
(((hypos in notebook (11/18/13
Rationales:
1. the principle rationale for this rule lies in the duty of
confidentiality
MR 1.9, comment 1 makes it clear that after
termination of a c-l relationship, a lawyer has certain
continuing duties with respect to confidentiality
As prof wolfram says there are reasons to fear that
things the former client told the lawyer un confidence
during the prior representation might be used against
the former clients interests
In short, there is a concern that the lawyer is going to
reveal the former clients confidential info to the
current client
2. a secondary rationale for this rule lies in the duty of loyalty

43
however this rationale appears less persuasive since a lawyer
generally owes less loyalty to a former client than a current
client
MR 1.9, Comment 2: When a lawyer has been directly involved in a
specific transaction, subsequent representation of other clients with
materially adverse interests in that transaction clearly is prohibited.
no different for litigation and transactional context
2. The Substantial Relationship Test
(a) Hypo
1. P (Sally) v. D (Tesla Motor Co) products liability case (claim
is battery was defectively designed)
2. P (John) v. D(Tesla Motor Co.) products liability case (claim
is Tesla failed to warn consumers the batteries could burst into
flames)
D (Tesla) files an ethics complaint with bar association and a
motion to disqualify the lawyer from the litigation. What
result?
Lets apply MR 1.9
Ultimately the issue is . Are these two matters substantially
related?
If the matters are subst related, then the lawyer must
not represent John, unless Tesla gives informed consent,
confirmed in writing
If the matters are not substantially related, then the
lawyer may represent John even if Tesla does not give
informed consent, confirmed in writing
(b) the substantial relationship test:
MR 1.9s comment 3 says that matters are substantially related if
they involve the same transaction or legal dispute or if there
otherwise is a substantial risk that confidential factual information as
would normally have been obtained in the prior representation would
materially advance the clients position in the subsequent matter.
Nevertheless, courts have not agreed precisely on what substantially
related means
Indeed, as the Supreme Ct of Missouri has put it: Gallons of ink have
been consumed by those trying to articulate or explain the test for
deciding whether a substantial relationship exists between two
representations.
Ultimately, there are three primary tests for substantial relationship
used throughout the country (these tests have been applied in both

44
the ethics and disqualification contexts).
1. the first approach compares the facts in the two matters
2. the second approach compares the legal issues in the two
matters
3. the third approach blends the fact and issue comparison into
a 3-step test
In the LaSalle and Westinghouse (7th Circuit) cases, the Seventh
Circuit applied this 3-step test in the disqualification context,
saying:
1. First, the trial judge must make a factual
reconstruction of the prior legal representation
2. Second, it must be determined whether it is
reasonable to infer that the confidential information
allegedly given would have been given to a lawyer
representing a client in those matters.
3. Third, it must be determined whether that
information is relevant to the issues raised in the
litigation pending against the former client
this three step test is a practical approach, focusing on
whether there would be confidential information
obtained by the lawyer in the first representation that
would be helpful in the second representation.
If there would be, then there is a presumption that the
lawyer would share this confidential information with
the new client and, thus, the 2 matters will be
considered substantially related
In the end, if two matters are substantially related,
then the lawyer is prohibited from representing the
new client, unless the former client gives informed
consent confirmed in writing
D. Imputing Conflicts of Interest MR 1.10
1. Hypo #1
1. Law Firm #1 (Lawyer) Client A v. Law Firm #2 /Client B
2. Law Firm #1 /Client A v. Law Firm #2 (Lawyer) Client B
Two Qs:
Can L represent B against A?
Is Ls individual conflict of interest imputed to all the Ls in Firm 2
Question #1: Can L represent B against A?
MR 1.9 Duties to Former Clients
(a) A lawyer who has formerly represented a client (a) in a matter shall NOT

45
thereafter represent (B) in the same or a substantially related matter in which that
persons interests (Bs interests) are materially adverse to the interests of the former
client (A) unless the former client (A) gives informed consent confirmed in writing.
Rationales:
1. The principal rationale for this rule lives in the duty of confidentiality (wolfram)
fear that you will reveal the confidential information
2. a secondary rationale for this rule lies in the duty of loyalty
generally a lawyer owes less duty to a former client than a current client, so
less persuasive
Question #2: Is the individual lawyers conflict of interest IMPUTED to all of the
lawyers in Law Firm #2?
MR 1.10(a): as a general matter, while lawyers are associated in a firm, none of
them shall knowingly represent a client when any one of them practicing alone
would be prohibited from doing so by Rules 1.7 or 1.9
Thus, the general rule in this situation is that the individual lawyers conflict
of interest is imputed to all of the lawyers in Law Firm #2
This is referred to as the Typhoid Mary Problem-where an infected
lawyer infects all of the others in the firm, precluding them from representing a
client
Rationale:
There is a presumption that the individual lawyer has confidential
information about his former client, Client A, and that he will share that confidential
information with all of his new colleagues who are now working against Client A.
However, notwithstanding this general rule, MR 1.10 (a)(2) WOULD allow Law Firm
#2 to represent Client B if a number of requirements are met, including but not
limited to:
1. First the disqualified lawyer must be timely screened from any
participation in the matter
2. Second, the disqualified lawyer must be apportioned no part of the fee
3. Third, a written notice must be promptly given to any affected former
client (Client A)
In short, MR 1.10(a)(2) contemplates that a firm can REBUT THE PRESUMPTION
that information will be shared among lawyers in the firm by showing that the firm
has created a so-called chinese Wall around the infected lawyer
It is worth noting that this wall generally must be in place on the date that
the new lawyer begins working at the firm if the matter is already being handled by
the firm.
D. Imputing Conflicts of Interest
2. Hypo #2:
Plaintiff v. Our Class is a Law Firm/only one lawyer is working on the
case/defendant
If that 1 lawyer leaves the firm, to what extent can our classs law firm represent the
Plaintiff?

46
MR 1.10(b)

(b) When a lawyer has terminated an association with a firm, the firm

is not prohibited from thereafter representing a person with interests


materially adverse to those of a client represented by the formerly
associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the
formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by
Rules 1.6 and 1.9(c)that is material to the matter.

3. Hypothetical #3
Plaintiff v. Our Class is a Law Firm/some lawyers were working on the
case/defendant
If one of the lawyers in our firm who was not working on this case leaves our firm,
can that person go and represent the plaintiff?
MR 1.9(b)
(b) A lawyer shall not knowingly represent a person in the same or a
substantially related matter in which a firm with which the lawyer
formerly was associated had previously represented a client,
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer has acquired information protected by Rule
1.6 and 1.9(c)that is material to the matter; unless the former client
gives informed consent,confirmed in writing.

E. Conflicts of Interest Between the Client and the Lawyer


In this section, we are going o look at four issues
1. Business Transactions with a Client
Starting Point: Why is there an ethics rule governing business
transactions between a client and a lawyer? In other words, why not
allow lawyers to engage in business transactions with their clients
w/out any ethical restrictions?

47
MR 1.8s Comment 1: A lawyers legal skill and training,
together with the relationship of trust and confidence btwn a lawyer
and client, create the possibility of overreaching when the lawyer
participates in a business, property or financial transaction with
client
Model Codes DR 5-104(A):
General Rule: a lawyer shall not enter into a bus. Transaction
with a client if
1. they have differing interests; and
2. the client expects the lawyer to exercise his
professional judgment for the protection of the C
Exception: L can enter into such a business transaction if the C
has full disclosure
MR 1.8(a):
General Rule: A lawyer shall not enter into a business
transaction with a client or knowingly acquire an ownership,
possessory, security, or other pecuniary interest adverse to a
client.
Exception: a lawyer CAN enter into such a business transaction
or obtain such an interest if 3 elements are met: (scrutinize the
transaction).
1. the transaction and terms on which the lawyer acquires the
interest are:
fair and reasonable to the client;
fully disclosed to the client;
transmitted to the client in writing in a manner that can be
reasonably understood;
2. the client is advised in writing of the desirability of seeking
and is given a reasonable opportunity to seek the advice of
independent legal counsel on the transaction; AND
3. the C gives informed consent, in a writing signed by the C, to
the essential terms of the transaction; and
the Ls role in the transaction, including whether the L is
representing the C in the transaction
2. Gifts to Lawyers
(a) Client Offers a Simple Gifts (eg holiday gifts, tokens of appreciation):
MR 1.8s comment 6 states that a simple gift such as a present given at a
holiday or as a token of appreciation is permitted
(b) Client Offered a More Substantial Gift: If a client offers the lawyer a more
substantial gift, MR 1.8 does NOT prohibit the lawyer from accepting it
Caveat: As a MR 1.8s Comment 6 points out such a gift may be
voidable by the client under the doctrine of undue influence, which
treats client gifts as presumptively fraudulent
NOT VOID JUST VOIDABLE
MR 1.8: A lawyer shall not

48
solicit any substantial gift from a client, including a testamentary gift, or (See
comment 6) - about the idea of overreaching: due to concerns about overreaching
and imposition on clients, a lawyer may not suggest...
prepare on behalf of a client an instrument giving the lawyer or person related to
the lawyer any substantial gift (see comment 7) - the client should have the
detached advice that another lawyer could provide
UNLESS the lawyer of other recipient of a gift is related to the client
3. Sexual Relationships with Clients
MR 1.8(j): a lawyer shall not have sexual relations with a client unless a consensual
sexual relationship existed between them when the client-lawyer relationship
commenced.
(see comment 17---lawyers fiduciary role) relationship is almost always unequal can involve unfair exploitation of the lawyers fiduciary role; significant danger of
emotional involvement
also see note 441-442 - sex with a clients spouse
1.7(a)(2) - current clients - if there is a significant risk that the rep of one or more
clients will be materially limited to..or by the personal interests of the lawyer
practice question:
1. state v Daniel (LINDA) [drug case]
2. paula (LINDA) v Daniel (CINDY) [breach of K case
can linda ethically represent paula .
A Sample Answer:
I: If linda agrees to represent paula in her breach of k lawsuit against Daniel, then
Linda would be representing one clinet (paula) against another client (Daniel)
Therefore, the first issue here is whether lindas representation of paula would
present a conflict of interest between current clients.
Rule: MR 1.7 addresses conflicts of interest between current clients
MR 1.7(a) states: except as provided in (b), a L shall not repa C if the rep
involves a concurrent conflict of interest. The rule then provides that a concurrent
conflict of interest can exist in one fo 2 situations
First, 1.7(a)(1) states that a concurrent conflict of interest exists if the rep of one C
will be directly adverse to another C
MR 1.7, comment 6 explains this rule, saying generally, a L may not act as an
advotcate in one matter against a person the L represents in some other matter,
even when the matters are wholly unrelated
Second, 1.7(a)(2) states tha a concurrent conflict of interest also exists if theres a
sig risk that the representation of one or more clients will be materially limited by
the Ls respnosibilities to another C, a former C or a 3P or by a personal interest of
the L

49
Analysis: In this case, if Linda agrees to represent Paula in her breach of K lawsuit
against Daniel, then lindas representation of paula would involve a concurrant
conflict of interest under MR 1.7(a)(1). This is because Lindas representation of
one client (Paula) would be directly adverse to another client (Daniel)
In other words, linda would be acting as an advocate in one matter (the
breach of K case) against a person (Daniel) that Linda represents in some other
matter (the drug case).
While the breach of K lawsuit and the drug case are wholly unrelated, as a
general matter, Linda would be prohibited from representing Paula
MR 1.7, comment 6 explains the two main rationales underlying this rule.
First,
Second, (SHOW THAT YOOU KNOW THE RULE AND THE
RATIONALE)
Conclusion:
Issue: that being said, the next issue is whether linda could ethically represent Paula
despite the existence of the concurrant conflict of interest
Rule: MR 1.7(b) states: notwithstanding the existence of a concurrant conflict of
interest under paragraph (a), a lawyer may represent a client if:
(1)
(2)
(3)
(4)
Analysis: in this case, in order for linda to ehically represent paula in her breach of K
lawsuit against Daniel, all four of the foregoing requirements must be established
First, linda must
Second,
Third, lindas representation of paula must not involve the assertion of a
claim by one client against another client REPRESENTED BY THE LAWYER IN THE
SAME LITIGATION OR OTHER PROCEEDING BEFORE A TRIBUNAL
Mr 1.7 comment 23 explains this requirement, saying: P (b) (3) prohibits
If linda represents paula in her breach of K case, linda would be complying
with this third req. Although Lindas representation of Paula would involve the
assertion of a claim by one client (Paula) against another client (Daniel), Daniel is
not being represented by Lawyer Cindy in that case. Thus, if Linda represents Paula,
Linda would not be representing opposing parties in the same litigation
Since the third req would be satisfied.
In conclusion, pursuant to MR 1.7(a), Linda would generally be prohibited from
representing Paula in Paulas breach of K lawsuit against Daniel because that
representation would involve a concurrant conflict of interest.
Nevertheless, pursuant to MR 1.7(b) linda could still ethically represent
Paula if
(1) linda reasonably believes that she will be able to provide competent and diligent
representation to both paula and Daniel,

50
(2) the representation of paula would not be prohibited by law, and
(4) paula and Daniel each gave informed consent, confirmed in writing
(Note: MR 1.7 (b)(3) is already satidfied
PATRIARCHA case on exam
Inadvertent disclosure document on exam

CHAPTER SEVEN: LITIGATION ETHICS


A: The Adversary System and Zealous Advocacy
B. The Limits of Zealous Advocacy
1. Meritorious Claims and Contentions
2. Civilry and Decorum
3. Candor toward the Tribunal
A:
The Rest: :The adversary system is characterized by independent and contentious
presentation of evidence and lefgal argument to establish a version of the events
and a characterization of law that is favorable to the advocates client
[see the questions on page 462, note 2]
MRs Preamble: As an advocate, a lawyer zealously asserts the clients position
under the rules of the adversary system
However, the law and ethics rules set limits on this zeal, and overzealous
advocacy
Lets take a look at the limits for zealous advocacy
Hypo #1: you represent a beer co. when they make the beer they add ABC known to
cause cancer but preserves shelf life. Fda promulgates rule banning sale of products
with it, but violated procedural stuff beer co wants to enjoin to prevent
Model rule 3.1
model rule 2.1---moral
beer co wants to sell beer with cancer still: what then?
Perhaps you should withdraw under MR 1.16(b)(2) or (b)(4)
What else could you do? Put your morals aside and represent them
Rule that says representing client is not an endorsement of views 1.2(b)
Hypo #2: I offer to sell you my 1996 Toyota Camry for $2500. You accept my offer. I
deliver the camry to your house, but you still dont pay me the $2500. You drive the
car all around town, but you still dont pay me my money
Sue you in st ct for breach of K
You hire lawyer, say will pay, need a few months file a general denial ethical?
No!
MR 3.1 provides that a lawyer shall not defend a proceeding unless there is a
basis in law and fact for doing so that is not frivolous

51
Different result for criminal D: in criminal cases, we take a different attitude.
It is not frivolous for a D to plead not guilty even if he privately admits that he
committed the crime
This is bc the burden o the govt is to prove guilt beyond a reasonable
doubt
Moreover, comment 3 makes it clear that the lawyers obligations
under this Rule are subordinate to a federal or state.
Simply delaying and model 3.2 --- reasonable expedite
2. Civility and Decorum
If a lawyer engages in overzealous advocacy to the point that his conduct is
disruptive, that can lead to discipline or the lawyer being held in contempt
1. discipline context
2.contempt
direct
indirect
3. candor toward the tribunal
MR 3.3
(a)(1): false statements of law or fact
(a)(2): disclosing controlling legal authority

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