Legal Profession Professor Becker Fall 2011 Outline Where Do Ethics Rules Come From? A.

Why study the ABA Model Rules? a. Because they are enacted & enforced in every state B. Consequences of Violating a State Ethics Rules 1. Sanction by state Disciplinary Board a. This is an administrative agency tribunal with appeals to the courts b. Courts can sanction lawyers for contempt of court but they cant say you have violated this rule and therefore you are sanctioned c. Discipline can range from disbarment, suspension of right to practice, public/private censure 2. Civil liability a. No per se civil liability for violation of an ethics rule i. MR Preamble 20 Scope: Violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. ii. Nevertheless, since the rules do establish standards, a lawyers violation of standard of conduct may be evidence of breach of the applicable standard of conduct. b. Two Types of Civil Liability i. Malpractice 1. Must show negligent conduct, usually that results in economic loss ii. Breach of Fiduciary Duty 1. Very open ended 2. If breach, mental distress damages may be recovered 3. Ex: consensual sex with w/ client this works a lot better as a theory of liability for the client. Atty is not acting as a fiduciary should because he is engaging in conduct that is specifically prohibited C. What happens when no clear answer from ABA rules? 1. Some state & local bar assns will have a telephone answering service where they will talk you through an issue. 2. Other authorities a. Ethics opinions i. ABA ethics opinions influential but not controlling ii. State ethics opinions not as prominent as ABA opinions b. ALI Restatement c. Academic articles d. ABA Manual on Professional Conduct i. Available through BNA; comes out every 2 weeks D. The Professionalism Movement 1. Movement has resulted in the adoption of professional rules of conduct & civility codes by states, bar associations, district courts

2. PA Civility Code (Becker e-mailed) a. Not mandatory It is expected that judges and lawyers will make a voluntary and mutual commitment to adhere to these principles. These principles are not intended to supersede or alter existing disciplinary codes or standards of conduct, nor shall they be used as a basis for litigation, lawyer discipline or sanctions. b. Why is it adopted in addition to the model rules? i. Because the model rules dont go far enough ii. The whole professionalism movement grows out of the concern that the model rules are just a minimum; they dont go far enough to require lawyers to observe integrity, dignity, decorum civility. Professionalism movement says there are higher standards than the model rules. c. Why is civility code not mandatory? i. Some terms are ambiguous hard to enforce. ii. Some terms are too minor to be met w/ discipline d. Why are the civility codes criticized? i. See above too ambiguous & minor for enforcement ii. Also criticized bc the professionalism movement may reflect desires to impose an authoritarian element on a profession that is traditionally an old boys club it is an attempt to keep out the diversity element Defining the Client-Lawyer Relationship A. Lawyer Owes Duties only to CLIENT 1. Always focus on WHO the client is; this is the person or entity L owes duties to a. Ex: 50 y/o son w/ elderly mom who just nods to what son says. Mom is client b. Restatement 14 Formation of Client-Lawyer Relationship: A relationship of client and lawyer arises when: (1) a person manifests 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 reasonable 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 to provide the services. 2. Whether there is money or an agreement involved is not dispositive i. No payment doesnt preclude a relationship 1. Ex: 1-800 services: giving advice may create relationship regardless of lack of payment ii. MR 1.5(b): The agreement shall preferably be in writing. 1. Agreement doesnt HAVE to be in writing iii. Boilerplate disclaimers may not even help when client is relying on lawyer & lawyer should reasonably know it 3. Types of Clients a. Informal client: Restatement 14: owe duties (Formation of CL Relationship) b. Prospective Client i. Restatement 15: A Lawyers Duties to a Prospective Client ii. MR 1.18 establishes certain duties to a prospective client iii. Case law says you owe duty of accuracy for info given to prosp. client c. Multiple Parties: Have to focus on who among multiple ppl is your client: i. Corporation 1. Corp. Officer testifies do you have to keep it confidential? 2. MR 1.13 No; officer is not the client the corporation is the client. ii. Fee payor 1. Just because one person pays doesnt make them a client.

2. The client is the person who you are representing. 3. Ex: Hired by Insurer A to represent Insured B. B is the client. B. Is there a Client Here? 1. The Actual Client no question in these situations a. retainer agreement signed by the client b. appointment by court 2. The Prospective Client a. Someone with whom L discusses possibility of forming an A/C relationship, but none ensues (discussion, then no hiring) b. Attorney owes a duty of care to the prospective client i. Togstad v. Vesely 1. Facts: L1 dont think you have a case. L1 later investigates & finds that person does actually have case, but SoL has expired by then. Togstad sues first lawyer for malpractice 2. Issue: Is there a C/L relationship upon which Togstad can sue for malpractice? 3. Analysis: Togstad has reasonable belief she was given advice by lawyer. (i) There is a duty to a potential client that is case law based. L1 was negligent because he did not investigate the claim. (ii) At minimum, L1 should have investigated & looked at the medical records. (iii) Damages in this case what she would have recovered if she had prevailed in a malpractice case with L1. c. MR 1.18: Duties to Prospective Clients 1. 1.18(a): duty of care 2. 1.18(b): duty of confidentiality 3. 1.18(c) & (d): duty to avoid a conflict of interest d. Elements of A/C Relationship (Kreamer) 1. Person seeking advice manifests intent to seek legal services; 2. L does not manifest lack of consent to provide legal advice; 3. L reasonably knows that person will reasonably rely on advice 3. Where no discussion occurs a. Hypo #1 COCKTAIL PARTY -- You meet someone at a party; they tell you about their ongoing litigation w/ a previous business partner. You give them an answer that turns out to be wrong & the person relies on your answer. Clearly this person was neither an actual nor a perspective client, but can this person sue you for malpractice? PROBABLY, if Kreamer elements are met. b. Hypo #2 WEBSITES Man sees lawyers website & calls lawyer, says I want you to represent me in my divorce; I had an affair and my wife doesnt know about it. It turns out lawyer represents wife. Can lawyer tell the wife what he found out? (i.e. does the lawyer owe a duty to the man who called his office? IF SO, he cant use the info in wife case) i. ABA Formal Opinion 10-457 (Aug. 5, 2010) 1. If the lawyers website invites inquiry or submission of info, then ABA says there has been a discussion w/in the meaning of MR 1.18. By setting the stage for the material being submitted to the atty, this counts as a discussion. 2. On other hand, websites that merely describe the work of the lawyers & list only contact information do NOT create a reasonable expectation that the lawyer is willing to discuss a lawyer/client relationship i.e. no discussion has occurred and thus no duty owed.

3. ABA suggests that attorneys properly place a disclaimer on their websites in order to protect themselves Wisconsin case says that a proper disclaimer will warn that (1) there is no lawyer/client relationship created by the website; and (2) that no information contained in e-mail that you send to us will not be protected as confidential. Disclaimer must also be short & include readable language (cant be in size 2 font that you cant read). c. Hypo #3 COMMON INTEREST You can owe client-like duties to someone who is not officially a client. Situation arises where lawyer represents one D in complex anti-trust case & another lawyer from a diff firm represents a diff D in the same antitrust case. Both Ds want to work together on case. Ls hold strategy meetings together for D1 & D2. Here, L owes duty of confidentiality & duty to avoid conflict of interest to D2 bc it is in the context of a common interest C. What Do Lawyers Owe Clients? 1. Duty of Competence MR 1.1 a. MR 1.1 - sets forth requirement that l must provide the client w/ competent representation b. The requirements of competent representation are: i. Legal knowledge; ii. Skill; iii. Thoroughness; iv. Preparation necessary for representation c. Disciplinary action is only enforced in egregious cases i. Mistakes are made (ex. SoL is blown) & proceedings under Rule 1.1 often only occur when there is a pattern of incompetence d. New lawyer/lawyer not familiar w/ field, L may take the case: i. Comment 2: Through necessary study a new lawyer may provide competent representation. ii. Comment 4: The requisite level of competence can be achieved by reasonable preparation. 1. Q: Can L then bill the client for the extra time involved (e.g. more research/preparation to get up to speed)? (i) Yes, as long as fees are reasonable. Reasonable here means something that would be appropriate under the circumstances. (MR 1.5(a) requires a reasonable fee must be charged) (ii) To be safe, lawyer should explain to the client that he doesnt really practice that area of law so he may have to bill him for a little extra research time (Fordham). (iii) Will be a sliding scale depending on how sophisticated client is when he agrees to the extra billing. 2. Duty of Confidentiality MR 1.6 a. There are two important principles related to this: i. Ethical duty of confidentiality under MR 1.6 ii. Evidence rule of attorney-client privilege. b. MR 1.6(a) Confidential info relating to representation may NOT be disclosed unless: i. Informed consent 1. Defined in MR 1.0 agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about risks. ii. Disclosure is impliedly authorized in order to carry out representation

1. Ex: Lawyer talks to other people in the law firm in order to better serve the client. iii. Hypo: Lawyer represents GM and person e-mail lawyer about wanting to bring suit. Ca the lawyer disclose to GM? Lawyer has not discussed so no duty of confidentiality. 1. Q: What if lawyer website says he specializes in employment discrimination? 2. A: L is encouraging and soliciting people to contact so there is duty of confidentiality here. c. MR 1.6(b): ALLOWS disclosure of confidential info in order to: i. (b)(1) Prevent reasonably certain death or SBI; 1. Ex: Client says he killed 2 and knows where the bodies are. Lawyer is negotiating for a plea. He says client will reveal location in exchange for a break on sentencing. Can the lawyer disclose the location under 1.6(b)(1)? No. The death has already occurred so it would not be preventive. ii. (b)(2) Prevent client from committing a crime or fraud that is reasonably certain to result in substantial financial/property injury to a third person and in furtherance of which the client has used Ls services; 1. Preventative is key 2. In furtherance only permits L to disclose in order to prevent once the client has used the lawyers services. See Comment 7 (i) PA drops the in furtherance language. 3. Hypo: Client comes to lawyer and says he wants lawyer to help him do something illegal. Lawyer is not going to disclose but continues to work for the client. Is this permitted? MR 1.2(d): Lawyer may not assist in conduct lawyer knows to be criminal (knows denotes actual knowledge. Knowledge can be inferred from the circumstances) 4. Some Questions (& Corollary Rules) When There is Financial Fraud: (i) Can you disclose? MR 1.6(b)(2) (ii) Lawyer may be able to reveal confidential info if the client is an organization MR 1.13(c) (iii) Can you keep your mouth shut & help the client? MR 1.2(d) (iv) Can or Must you withdraw? MR 1.16 iii. (b)(3) Prevent, mitigate, or rectify substantial financial/property injury to a third person that is reasonably certain to result or has resulted from the clients commission of a crime or fraud in furtherance of which the client has used Ls services; 1. Hypo: A PA lawyer is representing PA Corp in dealings with NJ bank. PA Corp admits to lawyer false documents were submitted to bank. Lawyer may disclose under 1.6(b)(3). (i) NJ requires disclosure, but PA does not conflict of laws (ii) Under MR 8.5(b) the rules of the jurisdiction in which the lawyers conduct occurred apply. iv. (b)(4) Secure legal advice about Ls compliance with these Rules; v. (b)(5) Establish a claim or defense on behalf of L in a controversy between the client and L, to establish a defense to a criminal charge or civil claim against the L based on conduct in which the client was involved, or to respond to allegations in any proceedings concerning the Ls representation of the client; 1. Lawyer need not wait until commencement of action begins. Ex: Find out being investigated, may go clear name. 2. The greatest use of (b)(5) is when the lawyer is suing client for payment of a fee. This will necessarily entail lawyer disclosing facts about representation. (i) (b)(5) permits this to establish a claim in controversy between lawyer and the client.

d. e.

f.

g. h.

i.

vi. (b)(6) Comply w/ other law or court order 1. Lawyers responsibility is to promote client interest, but court may order L to disclose. It is then allowed to be disclosed under 1.6(b)(6). 2. A subpoena is not a court order. L should until there is an actual court order NOTE: The exceptions under (b)(1)-(6) are permissive; the lawyer does not violate the Rule if information is not disclosed. Comment 15 i. NJ requires the lawyer to disclose Comment 18: duty of confidentiality continues after C/L relationship has terminated i. Hypo: Client says he killed 2 and knows where the bodies are. Lawyer is negotiating for a plea. He says client will reveal location in exchange for a break on sentencing. Can the lawyer disclose the location under 1.6(b)(1)? No. The death has already occurred so it would not be preventive. People were outraged for holding out. They brought public health threat. Court threw out suit. It does not matter where info came fromclient or non-clientwhat matters is if it relates to the representation i. Hypo: Ethics column in Newsletter lawyer defends guy who cannot be in bar. Lawyer quits defense work and becomes DA. Goes to bar and sees old client. Can the lawyer go back and inform DA about violation? 1. Argument for it does relate to representation you knew he was violating probation because you were his lawyer. 2. Becker favors a very broad relating to the representation. It is anything the lawyer learns by reason of client encountering lawyer There is no social disclosure exception i. cannot tell wife when you come home ii. You could tell without using the names, identifying information (e.g. in article) Violations of MR 1.6 can lead to 2 kinds of suits against L: i. Malpractice lawyer breached duty of care. Only economic out of pocket costs can be recovered. In sex w/ client case, may be no economic damages. ii. Breach of fiduciary duty lawyer did not act as a fiduciary should. Lawyer did not act in way consistent with a fiduciary relationship. Having sex w/ client violates fiduciary duty. The purpose of MR 1.6 is to make the client feel comfortable to reveal everything to the lawyer. Broad rule = facilitates communication.

3. Attorney-Client Privilege a. What is protected? i. Any communication (oral or written) ii. Made by the client to the lawyer iii. In confidence iv. For the purpose of obtaining legal advice or assistance b. A/C Privilege vs. Duty of Confidentiality (MR 1.6) i. They cover different communications ii. Virtually ALL privileged info will also be protected by confidentiality, BUT much of the info protected by MR 1.6 will not be protected by A/C privilege. iii. Ls duty under 1.6 applies to much more info. With A-C Privilege only talking about in judicial proceeding. iv. A/C Privilege is a Rule of Evidence: says that certain communications are exempt from rules that apply to normal evidence 1. A/C Privilege applies in discovery. It exempts certain evidence that is otherwise relevant to the case. Although otherwise relevant and discoverable, the information is protected from discovery. 2. There is a higher public policy for MR 1.6 (duty of confidentiality) wanting people to be candid when speaking with their lawyer.

v. A/C Privilege does not end when a client or attorney are dead c. Defining Whats Privileged i. Communication 1. The underlying facts of the communication can be asked about (Ex: What did you send to your attorney?) 2. Does it cover a communication lawyer makes back to the client? Only if the communication would reveal what the client said. ii. Made by the Client 1. Includes communications from prospective clients 2. Includes communications to an agent of the lawyer (ex. paralegal, secretary) iii. Made in Confidence 1. Speaking w/ couple, anything one client tells you the other hears and the privilege is destroyed. NOT TRUE FOR MR 1.6. iv. For purpose of obtaining legal advice or assistance 1. If it is mixed business/legal, the predominate topic determines. (i) Ex: Saying to In House counsel: We want to acquire this other corporation, what is the most appropriate way to do it? 2. If you are talking about things in the past, is it covered. If it relates solely to the past, it is not protected. If the lawyer says send me a chronology, this could be for providing advice and therefore protected. d. A/C Privilege and Entity Clients i. Upjohn v. United States (SCOTUS 1981) 1. Facts: Ls for company think employees have been bribing. Upjohn lawyers conduct interviews. Govt investigates and subpoenas the interviews and documents. Lawyer represents the company and not the employees. 2. Issue: Is the employee deemed to be the company for purposes of the privilege? 3. Analysis: In Upjohn, the court discusses two tests for determining the scope of the privilege: (i) Control group test Only the senior mgmt people who control the corporation. This is the least protective test (protects the least amount of information). (ii) Subject matter test If the communication is given for purpose of giving advice, it is protected, regardless of the person. 4. Holding: Court rejects the control test and goes for broader privilege of subject matter. (i) With the subject matter test, there is a zone of silence argument where information would be sent to lawyers just to get it privileged. (a) Ex. Tobacco companies had copies of scientific results sent to their lawyers in order to hide behind the privilege and thus undiscoverable. (b) SCOTUS rejected this zone of silence argument by saying all the privilege does is protect the communication. You can ask the employees about the underlying facts in a deposition. ii. Samaritan v. Goodfarb (Az. 1993) 1. Facts: Lawyer for hospital investigates and interviews nurses. Lawsuit is brought and years later 4 employees say they forget what happened 2. Issue: Pl lawyer know there are interviews and want the transcripts. It is the same issue as in Upjohn. 3. Analysis: Look at the two tests: (i) Control group would not be privileged because the nurses are not part of the control group.

(ii) Subject matter test it would be privileged because the nurses communicated with lawyer for him to give counsel. 4. Holding: Court comes up with a middle-view: If it is unsolicited and for advice, it is privileged. If someone else sets it up, for protective purposes, it will not be privileged. (i) The Court in Samaritan could reject the SCOTUS view because the issue in Samaritan was an Arizona evidentiary issue. AZ legislature eventually overruled the decision e. Exceptions to A/C Privilege & Confidentiality Rule i. Self-Defense 1. Both A/C Privilege and MR 1.6 allow a lawyer to reveal information if necessary to defend him self against an accusation of wrongdoing. ii. Waiver by Client 1. Client can waive CONFIDENTIALITY: (i) MR 1.6(a): lawyer shall not reveal confidential info relating to the representation unless client gives informed consent (ii) MR 1.8(b): lawyer shall not use info relating to representation of a client to the disadvantage of the client unless client gives informed consent. (iii) MR 1.9: lawyer who formerly represented client shall not later represent another person in the same or substantially same matter in which that persons interests are materially adverse to the interests of the former client unless the former client gives informed WRITTEN consent 2. Client may waive PRIVILEGE (i) But note that Client cannot unwaive once he waives ! 3. Ways client may waive the privilege: (i) Client puts the communication in issue in litigation (a) Waiver is inferred here (b) Ex: disclosing it during trial, deposition, etc (c) Miller: D charged w/ securities fraud claimed his actions were taken in good faith reliance on attys advice; gov't was then allowed to cross-examine D on a letter from atty that otherwise may have been privileged. (d) Bilzerian: Privilege waived when D in a securities fraud case testified to his good faith belief in the lawfulness of his conduct; he waived the privilege for communications from his former atty that contradicted D. Rationale: this is about fairness; Client cannot selectively cite to counsels advice and then deny its opponent access to other parts of that avice that undermine the defense. (e) White: privilege NOT waived when D (charged w/ conspiracy to defraud the US gov't) merely denied criminal intent bc to be acquitted based on lack of criminal intent, D would not need to introduce any evidence of communications to and from counsel. (ii) Client reveals all or part of a confidential communication (a) Note: C cant just waive the privilege for part of the communication (b) In Re Pioneer: Company that revealed its counsels tax advice in an SEC filing lost the privilege w/ respect to all documents & communications which formed basis of that advice (iii) Inadvertent Waiver by Client

(a) Ex: client puts info in trash, someone sees it, or client emails wrong person, faxes wrong number or produces too many documents. (b) Go through the 3 approaches: Never Waived: Always retains privilege see MR 4.4(b)

Always Waived: Dont care how it happened, privilege is waived (MR 4.4, Comment 2) Factors Test: look at precautions taken to avoid inadvertent disclosure, attempts to rectify, amount of time took to realize mistake, overriding interests of fairness & justice

(iv) No Limited Waiver (a) Ex: company reveals otherwise privileged info to a gov't agency (e.g. SEC) to get off the hook during an investigation. Later, someone privately sues that company & tries to subpoena the document/communication that company gave to the SEC. By giving the document to the SEC, the company certainly waived the privilege. (b) Q becomes, is there such a thing as limited waiver? (i.e. When we gave the info the gov't agency, we limited the waiver only to that agency). A: No. Waiver is waiver; when you waive you waive fully. (v) Communication to Ls Experts or Paralegals NOT WAVIER (a) Privilege is not waived for communication between lawyer or client and agents of either (e.g. expert) IF purpose of communication is to enable L to render legal services. (b) Ex: Info a client gives to lawyers support staff (paralegal, assistant) retains its privileged status (c) Ex: Info given to expert from another field that L hired in order to understand Cs issue is privileged. Includes therapists, accountants. Minority rule (Cavalaro) sets bar a lot higher: The involvement of the third party must be nearly indispensible or serve some specialized purpose in facilitating the A/C communications. Mere convenience is not sufficient [to retain the privilege]. (vi) Communication to Ls hired PR expert USUALLY NOT WAIVER (a) Case law is split between upholding the privilege & saying privilege is lost when client talks to PR expert retained by atty: On the one hand: the very purpose of PR experts is to help decide what info to make public, which can be seen as inconsistent w/ the purpose of the privilege. On the other hand: lawyers are legitimately concerned w/ how the media will treat a high profile case and may need help in responding to press inquiries. iii. Crime-Fraud Exception 1. Communications are not privileged when the client has consulted the lawyer in order to further a crime or fraud, regardless of whether the crime or fraud is accomplished and even though the lawyer is unaware of the client objective and does nothing to advance it. 2. Hypo: Client goes to lawyer w/ scheme to defraud a bank. Client prepared bank statement that is false. (i) Q: Can the lawyer act for the client? A: No bc it would violate 1.2(d). (ii) Q: Is the lawyer permitted to disclose this to the banks? A: Yes under Rule 1.6(b)(2). We are not talking about privilege, we are talking about disclosure of information related to the representation (bank fraud) (iii) Q: In judicial proceeding, does privilege apply? A: Privilege does not apply if the purpose of the communication is intended to further a crime or fraud. 3. Is in furtherance applicable to Crime-fraud exception to privilege?

(i) Q: Person murders and tells lawyer, can lawyer represent them? (ii) A: Yes you can represent because not assisting in crime or fraud. You can test system, but you cannot permit client to perjure himself iv. Identity & Fees Exception 1. Assertions of privilege for information relating to a clients identity, the source of legal fees, the amount of fees and other information about representation are usually unsuccessful. (i.e. not privileged) (i) Hypo: There is a hit and run where victim is injured. Lawyer goes to police and asks what kind of deal can be made. No deal results. DA subpoenas the lawyer what is your clients name. (a) DA argues identity is traditionally not privileged. (b) Court holds that notwithstanding the exception, there is exception to the exception which states if the information would be the last link in a chain of evidence to prosecute a client, it is privileged. (c) Exception is it is not privileged, exception to exception is last link doctrine. Purpose of exception to exception is there is a higher interest when life and liberty are at stake. v. Public Policy Exception 1. Prosecutor says there is an important public prosecution that should prevail over the privilege. Is there an overriding public policy? (i) Ex: Ken Starr tried to get Clintons attorneys records after suicide of important aid. 2. It is rare to find a case where public policy requires disclosure of privileged information (i.e. where public policy overrides the privilege) 4. Agency a. Lawyer is agent of the client i. L has authority to act on behalf of client in matters related to the proceedings. ii. In order to ensure L does not exceed the retainer, it is important to define what the lawyer has been retained to do. This can also help to protect lawyer against malpractice. iii. Remedy for Violation: Client can sue for malpractice or disciplinary action iv. In criminal context, there is ineffective assistance of counsel argument. b. Case Law on Agency i. Taylor v. Illinois (SCOTUS 1988) 1. Facts: Lawyer refused to reveal identity of a prospective witness to gain an advantage without client knowing. Witness could not testify and client appealed. 2. Issue: Should unknowing client be damaged by actions of lawyer? 3. Holding: Lawyer is agent of client and client must accept consequences of representation. ii. Cotto v. United States (1st Cir. 1993) 1. Facts: Client injured hand and filed suit. Lawyer made blunders. 2. Holding: Client must accept consequences. c. Agency & Settlements on Behalf of Client i. Issues often arise in settlements where the lawyer may have settled and the client wants to disavow it. ii. MR 1.2(a): a lawyer shall abide by a clients decision whether to settle a matter. iii. Is client bound if lawyer settles without authority? Case law is that if never given express authority, cannot settle without clients consent. If the client gave apparent authority by leading the side to believe, client will be bound. d. Admissions by the Lawyer i. The client may also be bound by vicarious admissions by the lawyer.

ii. Ex: Ford being sued in design defect case. Jury finds for PL and separate trial on punitive damages. Lawyer says once discovered it tried to mitigate damages. Other lawyers note that lawyer says Ford knew. Is this admissible in other cases? The admission binds the clients. 5. Fiduciary Duty a. In the fiduciary relationship between attorney and client, attorney must place clients interests above their own in the area of representation b. Ls must also treat their clients fairly. i. There is no model rule stating this relationship, but it is black letter law. c. Civil lawsuits against lawyers for breach of fiduciary duty. 1. This is different than malpractice. 2. Do NOT need to show economic damages for breach of fiduciary duty (as you do w/ malpractice). d. Perez v. Kirk and Carrigan i. Facts: Coca cola truck driver drives into school bus; driver claims breaks failed. Perez sues his law form of K&C and partners individually. Law firm represents Coke, tells Perez that firm represents him also. Perez gives sworn statements which firm turns over to DA under threat of subpoena. Truck driver sues under theory of breach of fiduciary duty. ii. Was there an A/C relationship formed? Yes. Court says relationship does not depend upon fee. Lawyers said were lawyers and A/C relationship formed under Restatement. No money changed hands unimportant iii. Was Ls release of information a breach of Fid Duty? Yes; Ethical duty applies here bc out of court (Ls duty not to disclose info under MR 1.6) iv. Must show economic loss. e. Hypo i. P hires L for SS claim. P is emotionally vulnerable. L knows of that and takes advantage of P, sexually. L gets SS award for P. L achieves for P exactly what L was retained for. 1. P sues anyway. Malpractice is not an available suit. L, in handling Ps matters, acted as a reasonably attorney would. L, however, DID breach their fiduciary duty. L knew of Ps emotional state and took advantage of her 6. Diligence & Loyalty - MR 1.3 a. MR 1.3: L shall act w/ reasonable diligence & promptness in representing a client b. There is no explicit rule of loyalty, but rules for conflict of interests (MR 1.7 and 1.8) underlie loyalty. i. Old Model Rules had language about zealous advocacy, but this has been relegated to Comment 1 Lawyer should pursue a matter on behalf of client despite opposition, obstruction, or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate the clients case or endeavor. ii. Comment 1 also says L is not bound to press for every advantage that may be realized for the client. 1. Rather, L may have authority to exercise professional discretion in determining the means by which a matter should be pursued (See MR 1.2 re: allocation of authority between L & C) 7. Duty to Inform and Advise - MR 1.4 a. MR 1.4 sets forth standard for communication w/ client: i. (a)(1): if informed consent is required for a decision, lawyer must inform client of that decision.

ii. iii. iv. v.

b. c.

d.

e.

f.

g. h.

i.

(a)(2) Consult with client about means client objectives are to be accomplished. (a)(3) Keep client informed about the status of the matter (a)(4) Comply with requests for information (a)(5) Consult with client about any relevant limitation on the lawyers conduct when client requests such assistance. vi. 1.4(b) Lawyer shall explain matter to extent reasonably necessary to permit the client to make informed decisions. Key thing is to put all communications in writing. Put everything in writing so that the client cannot come back and say there was malpractice for non-informing. Under MR 1.2(a) the lawyer is bound by the clients decision concerning the objectives of representation. MR 1.2 references MR 1.4s duty to consult with client on decisions. MR 1.2(a) provides examples of decisions which client has right to decide: i. Whether to settle a matter. ii. In criminal case, 1. Whether a plea shall be entered. 2. Whether to waive a jury trial. 3. Whether the client will testify. Guiding principle of MR 1.4 i. L should fulfill reasonable client expectations for information consistent with the duty to act in the clients best interests, and the clients overall requirements as to character of the representation ii. Must explain so that client can make an INFORMED decision Nicolas v. Keller (1993) i. Facts: Employee is injured on job. Employee comes to lawyer and want to represent him. Lawyer does not tell him about possibility of also bringing a 3rd party suit and SoL runs. ii. Analysis: To succeed in malpractice, must show that the Pl would have won in the underlying case. iii. Holding: Court found duty of care to tell client about alternative claim against 3rd party. Court says lawyer has duty to advise layperson of other alternatives if available. Olef v. Gordon i. Rule: Lawyer must go with what the client decides for how to sell her home. AC relationship is one of agent to principal. As agent, the attorney must act in conformity with his authority (the client). Hypo 1: Lawyer receives settlement offer. Lawyer refuses and does not disclose to client. Client loses at trial. Under 1.4(a) disclosure is required to the client so the client can make an informed decision. Hypo 2: Do you have to tell adversary if he does not court order, case will be dismissed with prejudice? Must consult client because this impacts whether he wins or not. It would not be appropriate for lawyer to make decision because he likes the adversary. Only guidance is MR 1.2 and 1.4(a). Hypo 3: Lawyer represents W in divorce and she wants to take low offer. Lawyer has duty to inform and explain. Client has right to make decision. Lawyer does have right to withdraw under these circumstances. Under MR 1.16(b)(4) if lawyer finds client decision repugnant, may withdraw but this hypo would not rise to that level

8. Clients with Diminished Capacity MR 1.14 a. Background: We already know that MR 1.2(a) sets forth requirement that lawyer shall abide by client decisions; & we know MR 1.4 requires the lawyer to consult with the client so that client can be informed when making such decisions. What happens when client has diminished capacity to make such informed decisions?

b. MR 1.14 gives a lawyer guidance when there is a client with diminished mental capacity: i. 1.14(a): L shall maintain a normal client-lawyer relationship as far as is reasonably possible. 1. Comment 2 L must still treat C w/ respect even tho disability/incapacity ii. 1.14(b): When the lawyer reasonably believes the client has diminished mental capacity and client cannot act in own interest, the lawyer MAY take protective action if the client is at risk of financial loss or physical injury, by: 1. Consulting individuals with powers to protect the client; or 2. By seeking appoint of a guardian (i) Comment 7 says this is last resort bc of expense and trauma to client (ii) Comment 5 lists examples of protective action L can take (iii) Comment 6 lists factors L should consider in determining extent of Cs diminished capacity: (a) Client ability to articulate reasoning (b) Variability of state of mind (c) Ability to appreciate consequences of a decision (d) Substantive fairness of a decision, etc. (e) Lawyer may seek guidance of a diagnostician. (iv) MR 1.14(b) is permissive, but it should almost be read as mandatory bc of the implications of civil liability. iii. 1.14(c): Information relating to representation of client is still subject to MR 1.6 duty of confidentiality. 1. Exception: When taking protective action, lawyer may reveal information about the client to extent to protect. 2. Comment 3: if other people are present to assist the client, the applicability of the attorney-client privilege is not affected. c. Diminished Capacity of Children i. Diminished capacity issues arise when L represents a child. ii. Two scenarios: 1. Abuse Proceeding lawyers are appointed to protect childs interests 2. Contested Custody Cases court may appoint child a lawyer. iii. Children under 12 are deemed to be of diminished capacity. iv. In Re Matter of M.R 1. Issue: Does L act in accordance w/ client decision when child has diminished capacity or does L act in way he believes is in best interests of child? 2. Holding: Court says lawyers are not trained to decide best-interest. If someone is incapacitated, lawyer cannot make all decision. Lawyer must protect clients rights and can get guardian appointed if decision is against their best interests. D. Terminating the Relationship 1. The client can terminate for any reason a. Can fire an attorney with or without case e.g. doesnt like Ls tie i. BUT client still subject to pay lawyers fees if for no cause. ii. Sometimes a lawyer may not be fired in middle of trial because it impedes justice (consequent delay/prejudice to other side). b. When client has diminished capacity, L has duty to explain ramifications of discharge (See Comment 6 to MR 1.16) c. Indigent criminal defendants have no per se right to fire lawyer though they can ask the court for a new lawyer.

2. Mandatory Withdrawal MR 1.16(a) a. Under MR 1.16(a), there are circumstances where L MUST withdraw: i. (a)(1): If the representation will result in violation of Model rules or other law; (i) Remember MR 1.2(d) prevents the lawyer from assisting in crime or fraud ii. (a)(2): Lawyers phys. or mental condition impairs Ls ability to represent client (i) e.g. L has mental breakdown iii. (a)(3): Lawyer is discharged (i.e. fired or otherwise discharged by client) b. Upon withdrawal, L still has duties to client: i. Lawyer must take reasonably steps to protect clients interests (MR 1.16(d) lists examples) ii. L comply w/ applicable law requiring L to provide notice to the tribunal/get permission from tribunal where appropriate (e.g. during litigation, MUST obtain permission of the tribunal to withdraw) 1. Confidentiality issues may arise if tribunal asks why lawyer is withdrawing. (i) Lawyers statement that professional considerations require termination should be accepted as sufficient. 3. Permissive Withdrawal 1.16(b) a. Under MR 1.16(b), a lawyer MAY withdraw if: i. (b)(1): Withdrawal can be accomplished w/out adverse effect to clients interests; (i) Here client will always have an arguable adverse effect because of need to find new lawyer, fees, etc. ii. (b)(2): Client persists in course of action involving lawyers services that lawyer reasonably believes is criminal or fraudulent. (i) Q: Is there a duty to investigate? (ii) A: It is only if you know. If lawyer reasonably believes, they should withdraw to avoid civil liabilities. (iii) There is no duty to investigate in rules, but cannot shut eyes to truth. iii. (b)(3): Client has used lawyers services to perpetrate a crime or fraud. (i) Applies to something in the past (ii) Doesnt matter if lawyer isnt furthering it lawyer is forbidden to associate w/ such conduct regardless iv. (b)(4): Client takes action that lawyer finds repugnant or with which lawyer fundamentally disagrees (i) Ls moral values can come into play here (ii) Under MR 6.2(c), lawyer may avoid appointment if client or cause is so repugnant to the lawyer that it will impair representation (this counts as a good cause to avoid appointment under 6.2) v. (b)(5): Client fails to substantially fulfill obligation to lawyer related to services (i) Ex: Not paying bill. vi. (b)(6): Lawyer faces unreasonable financial burden or client is making representation unreasonably difficult b. MR 1.16(d), upon withdrawal: i. Lawyer must take steps to protect a clients interests. ii. Lawyer may retain papers as permitted by law. Client may request file, but there are some narrow exceptions. (e.g. internal firm memos) c. Termination and Fees i. Sometimes an issue: 1. If it is hourly-based, this is not a problem. 2. If it is contingency based:

(i) Majority rule is where lawyer is fired without cause, lawyer gets paid quantum meruit. (Problem is this may be a deterrent to client to fire ineffective lawyer.) (ii) If for cause, lawyer not likely to get quantum meruit. ii. There is a common law way to protect fees charging a lien to the fees. 1. With a lien, the lawyer gets first right in any funds subsequently recovered in matter which lawyer rendered services and is entitled to fee. 2. You effectuate lien, by writing to other lawyer. If second lawyer does not pay out of award, second lawyer will be liable for lien. 3. Used to be retaining lien where lawyer had right to retain clients files until lawyer was paid. 4. Termination by Drift a. In some cases, it is clear when the relationship is over, but in some instances, a person may think you are their lawyer even if you have not seen them in a while (similar to dentist). b. Hypo: Lawyer sets up clients estate. Lawyer sends newsletter to client about tax changes. Lawyer never contacts client and heirs sue for malpractice. Lawyer claims L-C relationship was over, but heirs claim ongoing relationship as evidenced by newsletters. i. Bc of potential problems, best practice to send end of relationship letter 1. lawyer will want to maintain good rapport so that client will contact lawyer if they need future services. c. MR 1.3, Comment 4: lawyer must clarify relationship when doubt exists (preferably in writing) so that client is not mistakenly assuming lawyer is looking after the clients affairs. Protecting the Client Lawyer Relationship Against Invasion

A. Communicating With a Represented Person MR 4.2 1. MR 4.2 In representing a client, L shall not communicate about subject of representation w/ person L knows to be represented by another lawyer in the matter a. EXCEPTIONS: i. The L has consent of the other L; or ii. The L is authorized to do so by law or court order 1. Comment 6: L may seek a court order to permit communication where communication is necessary to avoid reasonably certain injury. b. Hypo: Real estate developer is represented by L1; Tenant is represented by L2. L1 cannot get into contact with L2 so he calls tenant directly. i. Q: What if the client initiates the communication? A: Still violates rule. It does not matter who initiates bc rule says the lawyer shall not communicate... ii. Q: What if lawyer calls client and asks for permission? A: Still violates Rule, must call other lawyer and ask for permission 2. Consequences for violation of MR 4.2 a. Evidence obtained in violation of the rule may be inadmissible b. Lawyer may be disqualified from representation. c. There is also disciplinary implications 3. Policy for Rule 4.2: Comment 1 a. To prevent attorney overreaching and client then feeling coerced to reveal things

i. Courts aware of special coercive power of attys, esp. re: unsophisticated clients b. To preserve the relationship by limiting outside influence 4. In the Matter / In Representing a Client a. Comment 4 a lawyer who is not representing someone in the matter can communicate with a represented client. i. Ex. C comes to lawyers office upset with current representation. Can you talk to the client? You can talk to the client. You are not representing a client and the Rule says, In representing a client . . . b. Hypo: Lawyer represents person in automobile accident. No complaint is filed yet. Lawyer calls the other driver directly asking about the facts. Insurance company later appoints lawyer for other driver. Lawyer for ins. company looks to strike evidence and to disqualify lawyer. i. Courts seem to say that you can talk to a person if they are not represented AT THAT TIME, even if it is likely the person will be represented later. c. Opposing clients are free to talk to each other i. Ex: H and W both represented in a divorce proceeding, they can talk to each other MR 4.2 only covers communications by attorney. 5. Only Communication is Prohibited a. Communication is what is prohibited so there is room for such things as videotaping an opposing party. 6. Lawyer CANNOT act through agent or client (prohibited by MR 8.4(a)) a. Q: Can lawyer representing a client in a matter hire a private investigator to go talk to the opposing client? i. A: No, under MR 8.4(a), it is professional misconduct for a lawyer to get someone else to violate rules for them b. Middle ground is this: client asks for background on law. How much advice and assistance can lawyer give when client is going to talk to the other side? i. Some court say cannot give any advice about forthcoming talk because this would violate 4.2 through 8.4. ii. Other courts say it is ok so long as clients as initiating the interaction with the lawyer before going to talk to the other side. 7. Communications when Entities/Corporations are Involved a. Niesig v. Team I i. Facts: P is injured when falls from scaffolding. P is represented by counsel. P does not sue employer bc workers comp. Lawyer wants to interview other employees of corporation on the job that day. Employees are not represented by counsel ii. Arguments by D: cannot interview these guys unless D lawyer consents bc of MR 4.2 (argument is that at least some corp employees are also deemed to be the corp so that communication with them is barred under MR 4.2). Need not be a party to the case. iii. Holding: Communication w/ ANY employee where the corp is represented is deemed to be communication w/ corp and thus violates 4.2. 1. This rests on Upjohn blanket rule approach. 2. BUT this is not the only approach . . . b. Three Approaches to Communication w/ Employees of Represented Corporations (see table below) i. Upjohn L canot talk to anyone employed by corp; they all count as corporation (L cannot even talk to janitor)

ii. Control Group L cannot talk to any high level management (i.e. anyone in the control group); but L can talk to anyone else. iii. Comment 7 L cannot talk to anyone who supervises, directs, or regularly consults w/ lawyer about the matter, or anyone whose actions may be imputed to the corporation. Upjohn Approach This is a blanket rule. Communication with any employee where the corp is represented is deemed to be communication with corp and violates 4.2 Control Group Approach High level management. For purposes of 4.2, the only employees deemed to be the corporation are those in the control group. Comment 7 Approach Intermediate approach Cannot communicate with constituent who supervises, directs or regularly consults lawyer about the matter. Also include constituent whose actions may be imputed to entity. Yes - Construction workers have no authority to sign off on corps behalf and their actions of observing are not imputed on corp.

No - Pl lawyer could not communicate with employees of corp.

Yes - Pl lawyer could communicate with construction worokers because they are not highlevel management.

c. Comment 7 L can talk to the constituents if: 1. They supervise, consult or regularly consult w/ entitys lawyers; OR 2. They have authority to obligate the organization w/ respect to the MATTER IN QUESTION (i.e. their actions may be imputed to the organization) d. Even if a permissible communication w/ corporate employee under one of the approaches, L still CANNOT ask about a PRIVILEGED COMMUNICATIONS i. Ex: What did you tell the corporate lawyers? If it is Upjohn jurisdiction, this would be privileged 1. MR 4.4(a): cannot ask about info if you know the information is privileged 2. MR 8.4(d): misconduct to engage in conduct that interferes w/ admin. of justice e. If person is former employee, MR 4.2 is not an issue under Comment 7 f. If the represented entity is the government, still follow Comment 7, but there is constitutional right to communicate w/ gov't so it may be broader 8. MR 4.2 in Criminal Law Context a. Hypo: Crim proceeding pending against D; D counsel wants to interview chief complaining witness. Does MR 4.2 bar this communication? Does D have to get prosecutor consent? i. A: No; DA does not represent complaining witness. b. Q: Can prosecutor contact D without getting consent of the Ds counsel? i. A: Look at MR 4.2 literally and it seems to say DA cannot contact D without consent of D counsel. If the prosecutor cannot do it, then the DA cannot do it through agents. This violates MR 8.4. ii. Comment 5: if no indictment yet, prosecutor can contact bc MR 4.2 has not kicked in yet (same is true w/ civil context rule doesnt attach until complaint) B. Communicating with an Unrepresented Person MR 4.3

1. MR 4.3 sets forth requirements for dealing w/ an unrepresented person: a. Lawyer shall not state or imply he is disinterested b. Lawyer shall clear up any misunderstanding of the unrepresented person re: the lawyers role (when L knows or reasonably should know that the unrepresented person misunderstands the Ls role) c. Lawyer shall not give legal advice other than to secure counsel if there is possibility of conflicts of interest between Ls client & unrepresented person 2. Hypo: Matrimonial case: W is represented. H is not represented. On behalf of wife you are negotiating with H, but can you? a. Q: If you represent W in divorce and H is not represented, can you negotiate with H? b. A: Yes, but must follow requirements in MR 4.3. If asked what a legal document is, can probably explain the document C. Protecting Confidential Information from the Other Side 1. Lawyer STEALS Information a. MR 8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation i. This applies to a lawyers private life as well as his professional life ii. Fraud is defined in MR 1.1 fraud includes conduct that is: 1. Fraud under the applicable substantive law of the jurisdiction; AND 2. Has a purpose to deceive (makes it beyond negligence since need purpose) b. MR 8.4(d) prohibits a lawyer from engaging in conduct prejudicial to the administration of justice c. This is a very broad rule. d. Stealing info prevents the system from functioning in a fair way. 2. Inadvertent Disclosure of Privileged Information a. Hypo: Ds lawyer inadvertently produces privileged information during document discovery request. Communication between C & L enclosed. b. Two problems created: i. Privilege Issue Was the disclosure a waiver of the privilege? 1. The privilege is the clients. In the context of what goes on in the case, the L is the agent of the client. The Ls acts are imputed to the client. 2. For the purpose of waiver you can make the argument that L is agent of the client and has waived the privilege by producing confidential information. 3. Three Approaches: (i) Privilege Never Waived Waiver must be intentional & here the material was not intentionally given away, thus no waiver and privilege is still in tact. Highly protective rule. (ii) Privilege Always Waived - privilege is always waived in this fact pattern; intent is irrelevant. Once you publish info it is waived, PERIOD. Dont care how it happened. (See MR 4.4, Comment 2) (iii) Middle Ground Focuses on factors related to the disclosure to determine whether privilege was waived or not: [1] Reasonableness of precautions to prevent inadvertent disclosure; [2] Amount of time it took the producing party to recognize its error; [3] Scope of the production; [4] Extent of the inadvertent disclosure; and [5] Overriding interest of fairness and justice. ii. Ethical Issue(s) 1. Does L need to tell the other side when in receipt of their inadvertently disclosed confidential/privileged information?

(i) MR 4.4(b): yes, IF the lawyer knows or should know it was inadvertent, then L must promptly notify the sender. (ii) Actual knowledge is not required here. 2. Can L use the information received as a result of inadvertent disclosure? (i) Determining whether L can use it is a matter of professional judgment (ii) MR 1.2(a): L must consent w/ client on the big decisions. To send it back without consulting the client would probably conflict w/ MR 1.2(a). (iii) MR 1.4(b) requires L to explain matters to client. Client and lawyer may conflict on whether to use the info in this situation. e. Hypo: Misdirected Fax i. Privilege still retained 1. On faxes there are normally disclaimers. The cover page has all kinds of disclaiming language. Under the factor approach, this aids the inadvertent faxer in arguing that the privilege is still retained even after inadvertent fax. 2. Arguably a fax is not a completed communication. (i) You could argue that the privilege does not attach bc it was not a completed communication. (ii) PA Case: Client goes to call L and calls Ds L by mistake. Leaves an incriminating message on other Ls voicemail (he was asking the L how he could pretend to be injured). Court said the communication was not finished so privilege does not apply. (a) Argument that the privilege does not apply in this set of facts: Crime/Fraud Exception If you communicate w/ your L to further a crime or fraud the privilege does not apply. Here, he was leaving a message asking L how to pretend injury! ii. Privilege Lost - Did not reach other party so not privileged Financing Legal Services

A. Fees 1. Unreasonable Fees Prohibited MR 1.5(a) a. MR 1.5(a) L shall not make an agreement for or collect an unreasonable fee i. 1.5(a)(1)-(8): factors used in determining reasonableness of a fee: 1. Time, labor required, difficulty of question, skill requisite to perform; 2. Lose of other employment by taking case; 3. Fee customarily charged in the locality for similar work; 4. Amount involved, results obtained; 5. Time limitations imposed by client; 6. Nature and length of professional relationship; 7. Experience, reputation and ability of the lawyer; 8. Whether fee is fixed or contingent. b. Variations on MR 1.5 i. PA approach: L may not charge a fee that is illegal or clearly excessive. This language is much more favorable to lawyers than merely unreasonable. ii. Brobeck case: L may charge any fee that is not unconscionable. This is even MORE lawyer friendly than the PA approach. Highly fact-specific. c. Litigation often arises where L sues P for Non-Payment i. C will argue the fee agreement is unenforceable bc it is unreasonable (ABA) or clearly excessive (PA). ii. The burden of proving a fee is unreasonable is on the client attacking the fee.

2. Lawyer Must Communicate Rate of Fee MR 1.5(b) a. MR 1.5(b): L must communicate (preferably in writing) the scope of representation or rate of the fee i. Must take place BEFORE or within REASONABLE TIME after commencement of representation, except in case of regularly represented client. ii. Some states make writing a requirement (PA) 1. ABA did not want to make writing mandatory to avoid defenses by clients to oral agreement that it should have been written and is not binding. b. MR 1.5(b) also requires any change in basis/rate to be communicated to the client i. Hypo: Lawyer takes case and gets $1500 retainer and knows this will not be sufficient. Lawyer must communicate to client that this will not cover all the expenses. ii. Under Rule 1.4(b), L must explain to client billing arrangements so they can make an informed decision. 3. Hourly Fees a. Matter of Laurence S. Fordham i. Facts: C hires L for his sons DUI. L says he will accept but it will have to learn area bc hes never done a DUI case. Fees end up being $50k (normal for DUI case is $10k). L gets client off (successful case, just very expensive) ii. Holding: Court finds $50k fee was clearly excessive. Norm is $10k. iii. L argued two positions: 1. Fees were charged in good faith; & fee cannot be attacked unless it involves bad faith. Court rejected this argument. 2. Client agreed to the fee arrangement and was aware lawyer had to learn in order to get up to speed, thus fee cannot be attacked bc client consented. Court rejected this too, saying issue was whether it was excessive, not whether the client knew. Client consent therefore is not an per se defense. b. Hypos re: Laurence i. Can a lawyer take a case they know nothing about? Yes, under MR 1.1, Comment 2 lawyer may take case; issue is really whether L can charge fees for learning. As long as its REASOANBLE under MR 1.5(a). ii. What will L be paid after discipline? A fee arrangement that violates a rule is void. Lawyer will ask for Quantum Meruit. iii. What if in Laurence the father was a billionaire and hired the best? A: Court would probably uphold fee bc of sophistication of client. iv. What if at courthouse for 3 clients & wait for 4 hours, can you bill 4 hours to each client? A: ABA Opinion says you must split up the hours among the clients. v. What if you put in 30 hours on difficult issue for client A and client B walks in with the same problem. How do you bill? A: if you bill B hourly, it must be by hour spentcannot bill 30 hours. Bill flat fee, but must be reasonable according to factors in MR 1.5(a). c. Flat Fees i. You often see flat fees in comparatively simple matters (e.g. run of the mill DUI) and they are rarely found to be unreasonable. ii. Utah case charging flat fee of 1% of assets was found to be unreasonable bc no correlation to amount of legal work done. 4. Contingent Fees MR 1.5(c) & (d) a. MR 1.5(c) sets forth requirements for contingent fee agreements: 1. Must be in writing and signed by client; 2. Must describe litigation & other expenses do be deducted from recovery;

3. Must state whether such expenses are deducted before or after contingent fee is calculated; 4. Upon conclusion of the matter, L must provide client w/ written statement showing outcome of matter, and (if there is a recovery), showing the remittance to the client and how it was determined. ii. Hypo re: Deduction of Expenses Case settles for $300k; Expenses are $60k (i) If expenses deducted first $240k in pot; L gets $80k and client gets $160k. (ii) If expenses deducted after $300 in pot; L gets $100k and client gets $200k less 60 = $140k. (Lawyer gets $20k more if deducted after) iii. Scenarios where Contingent Fees typically are used 1. Mostly see in personal injury context (e.g. 1/3 of damages recovered) 2. Reverse contingent fees (e.g. If I save you $10k on tax bill, I get X fee) 3. Sometimes see Bonus Arrangements (e.g. If recover in excess of $50k, L can take bonus on the excess) iv. Contingent Fees Must be Reasonable 1. Held to same standard of reasonableness as hourly fees 2. Hypo: Lawyer retained w/ contingent fee for police brutality case. Police settle 2 weeks later (not much work) and lawyer takes 1/3. Court found unreasonable fee. 3. Fee reasonable at time entered into it may be deemed to be unreasonable later (e.g. change of circumstances can change reasonableness) 4. Generally, courts do not throw out contingent fees as unreasonable. Some states have laws that cap contingent fees. 5. Some argue that in clear cut cases, contingent fees may be inappropriate b. MR 1.5(d) Contingent Fees Prohibited in the following areas: 1. Domestic relations matters (e.g. divorce, alimony, property settlement) 2. Criminal Defense case (i) Policy: L may reject plea bargain in order to get acquittal; Might cause the lawyer to do something unethical. Nothing that unethical behavior in criminal case is even worse for society 5. Division of Fees MR 1.5(e) a. MR 1.5(e) division of fees between lawyers from different firms only allowed IF: i. Division is in proportion to services performed by each lawyer, or each lawyer assumes joint responsibility for the presentation (i.e. each responsible for all) ii. Client agrees in writing to fee division (including share each L will receive); and iii. Total fee is reasonable b. Must have Lawyer INVOLVED in case to split fees i. Under MR 1.5(e), must be involved in the case in some way to split fees 1. Also, under MR 7.2(b): a lawyer shall not give anything of value to a person for recommending the lawyers services 2. Lawyers under the Model Rules CANNOT take referral fees under either rule bc mere referral doesnt satisfy involvement requirement. ii. PA 1.5(e): C must be advised & not object; fees cant be excessive. Thats it. 1. Doesnt require both lawyers to have joint responsibility; no proportion requirement 2. Thus, referral fees in PA are okay (where under MR they are NOT) 3. But you still cant have conflicting interests in your referral (e.g. sent C to bad lawyer to make more money) because of MR 1.7 (conflict of interests). c. Comment 7 to MR 1.5: i. Definition of fee division: a single billing to a client covering the fee of two or more lawyers who are not in the same firm.

ii. Purpose of Allowing Fee Division: to facilitate representation of C by association of two or more lawyers where neither alone could serve the client as well iii. Most often used when fee is contingent & division is between one lawyer (the referring lawyer) & a trial specialist iv. Joint responsibility for the representation entails financial and ethical responsibility as if Ls were associated in a partnership (i.e. its as if they become one firm for the purposes of the rules) v. L may only refer a matter (i.e. collaborate on the case) when he reasonably believes L he is referring to is competent to handle the matter 6. Retainers & Non-Refundable Fees a. Two Types of Retainers i. L receives money up front and bills client as services are performed 1. If you do this and get $10k, you must put in client trust account and then as you bill, you must draw down from that account. You cannot commingle your money and the clients money as per MR 1.15(a) 2. Q: What if $10k retainer and client discharges after $2k of work? A: You refund the unearned amount ($8k) ii. General retainer payment for being available and not taking other work 1. Ex. Sara Bennett p. 137 if antitrust matter comes up, Sara agrees to represent. They pay $10k just to be available. This is not gouging because she is promising to be available and not work for someone else in litigation with company. 2. You do not see this much, but if you do, it is by large corporations. 3. Must put $ in personal account when paid bc it is earned up front (and thus is Ls property, not clients, from the get go) b. Non-refundable Fees Cooperman provides an example of such an arrangement. i. In Re Matter of Copperman 1. Facts: L paid $5k fee and will be paid on an hourly basis thereafter. If discharged, he will not refund. 2 days after agreement, client discharges Cooperman and asks for refund. 2. Holding: NY Court of Appeals found such an arrangement to be against public policy. It may force clients to keep inadequate counsel. 3. Courts vary: (i) NY has majority view: non-refundable is per se against public policy (ii) PA has minority view: non-refundable may be appropriate in some circumstances, e.g. where reasonable. (a) PA says such an arrangement is not per se bad. (b) Cohen & Brennan: Reasonableness depends on sophistication of client 4. Q: What is ethic violation for Cooperman? A: MR 1.5(a), cannot charge unreasonable fee. If fee violates public policy, then 1.5(a) is clearest way to find violation. (i) Ex. DUI case where fee is $15k regardless of outcome. Lawyer is discharged and client was awarded rebate on fee. Unearned portion should be recovered. NY would find this invalid bc it indicates nonrefundability. 7. Court-Awarded Fees a. Attorneys fees are generally NOT recoverable by party that wins litigation b. Two possible exceptions: i. Some kinds of statutes permit winner to get attorneys fees (e.g. RICO allows for attorneys fees + treble damages)

ii. Common fund cases you get attorney fee out of the fund 8. Safekeeping Client Property MR 1.15 a. MR 1.15(a): L must keep his property SEPARATE from Cs property i. Must keep Cs property in separate account maintained in the state where Ls office is, unless C consents to an account elsewhere. 1. Ex: If C pays in advance, L must deposit into separate trust account and only withdraw as fees are earned or expenses incurred (Warhaftig) ii. NO COMMINGLING 1. Only exception is MR 1.15(b) L MAY deposit Ls own funds into a client trust account for the sole purpose of paying bank service charges on the account. L must keep accurate records re: which part of funds are the clients. iii. This is a MAJOR area of disciplinary action!!! 1. Warhaftig: L put Cs advance payment into client trust account. L takes money out that is unearned to pay for personal expenses. Client never lost any money bc L put money back that wa unearned & kept only portion he earned. Nevertheless, court held this was a clear violation of MR 1.15 2. Hypo 1: What if L deposited his own money into the trust account? A: This would be a violation bc funds are commingled (unless in depositing the funds, L was paying bank service fees under MR 1.15(b)). 3. Hypo 2: Client gives L $5k retainer. L performs services on monthly basis and can take monthly earnings. L does not withdrawal until a month later. Has lawyer violated MR 1.15? A: Yes, bc funds became commingled as L earned fees bc they became the Ls funds once earned. iv. Interest on Trust Accounts (IOLTA) 1. Client funds in a trust account earn INTEREST. Can lawyer keep interest? (i) ONLY if the interest is small enough. (ii) IOLTA where interest generated is small enough, it goes to fund for public interest lawyering. 2. Eminent domain challenges to IOLTA: taking private property for public use 3. SCOTUS upheld a Washington IOLTA statute bc it only applied when funds were too small to generate net earnings. b. MR 1.5(d) When Lawyer Receives Settlement Funds i. When L receives funds in which client or third party has interest (e.g. settlement funds) L must: 1. Promptly notify client or third party; 2. Promptly deliver the funds to client or third party who has right to them; 3. Render accounting regarding the property if requested by client or third party c. MR 1.15(e) Disputed Funds i. Ex: Ls receives funds from which Ls legal fees are to be paid, but then: 1. There is a dispute between L & C over the fees; or 2. A third party has a lawful claim (lien) over the funds ii. When L claims he is owed a portion of the funds received (for Ls fees): 1. L not required to remit funds that L reasonably believes represent fees owed, but L may not hold funds to coerce client into accepting Ls contention 2. L must put disputed funds in trust account & suggest a way to promptly resolve the dispute (e.g. arbitration) 3. The undisputed portion of the funds must be promptly distributed. iii. When client owes debt that L has received notice of (third party lien): 1. Comment 4 L has duty to protect third-party claims against wrongful interference by the client. 2. If a dispute as to the person entitled to the funds, L may file an action to have the court resolve the dispute.

3. L may ONLY turn funds over to the client if there is no lien B. Restrictions on Right to Practice / Requirements for Practicing 9. Pro Bono Work a. Debate: Should lawyers be required to do pro bono work? Currently they are not required its a suggestion. b. MR 6.1: Ls should provide at least 50 hours of pro bono service (i.e. without fee) a year, primarily to: i. Persons of limited means; and ii. Charitable organizations c. Why might it be beneficial to make pro bono work mandatory? i. It might influence some people to do more pro bono work ii. Engages the conscience; creates a better profession d. Mandatory Pro Bono Hours vs. Mandatory Reporting of Hours i. Some states have mandatory reporting of hours (idea is public publishing of list of attys who have done pro bono work may incentivize people to do it) 10. Restrictions on Right to Practice a. Restrictions on Right to Practice MR 5.6 i. MR 5.6 prohibits L from offering or entering into a partnership, employment, or other agreement that restricts the Ls right to practice after termination of the relationship 1. Exceptions: (i) Agreements re: benefits upon retirement (ii) Agreements incident to sale of law practice (see MR 1.17, below) ii. Comment 1: Policy for MR 5.6: non-compete arrangements violate a lawyers autonomy & limit the freedom of clients to choose a lawyer iii. Hypo: L and C are suing GM. It is a complicated design defect case. GM says to L, we will settle under one condition. You the L have to agree not to represent anyone else on this matter in the future. MR 5.6(b) says that the L may not make that agreement. You may not make an agreement where a restriction on your right to practice is part of the agreement. b. Sale of a Law Practice MR 1.17 i. Restrictions on right to practice are only allowed in sale of law practice ii. MR 1.17: Sale of law practice is only allowed if following conditions are met: 1. 1.17(a) Seller ceases to engage in private practice of law, or ceases to engage in the area of practice that has been sold in the geographic area/jurisdiction in which the practice being sold has been conducted; 2. 1.17(b) Entire practice (or entire area of practice) is sold; 3. 1.17(c) Seller gives written notice to sellers clients regarding: (a) The proposed sale; (b) Clients rights to retain other counsel or take possession of file; and (c) The fact that clients consent to the transfer of the clients files will be presumed if the client does not take any action or otherwise object within 90 days of receipt of notice; AND 4. 1.17(d) Fees charged clients shall not be increased by reason of sale. iii. NOTE: if client cannot be given notice pursuant to MR 1.17(c), clients file may only be transferred to purchaser w/ court permission (and seller may disclose to court info relating to the representation only to extent necessary to obtain an order authorizing the file transfer). iv. Lawyer leaving practice want to be able to take clients with them when they go elsewhere. In order to do this, L must:

1. Tell clients you are leaving 2. Tell them where you are going (i) Some restrictions on solicitation, but they do not bar L from taking w/ them someone L has had relationship with. (ii) Bottom line L retains a fiduciary obligation to the firm he is leaving behind, but content of obligation is unclear. (iii) Trade secrets litigation when lawyers leave & take people with them. (a) Reeves v. Hamilton: Lawyer breached fiduciary duty to ex-firm when he departed and secretly solicited firm employees. Concurrent Conflicts of Interest MR 1.7, 1.8 A. Client-Lawyer Conflicts Basic Structure 1. MR 1.7 is the default rule for conflicts prohibits lawyer from representing client when there is a concurrent conflict of interests. 2. MR 1.8 lists specific situations. On Exam Start with MR1.8 to see if specific provision on point; then turn to MR 1.7 if 1.8 does not address issue/fact pattern specifically 1. Conflict of Interest Defined MR 1.7(a) a. Under MR 1.7(a), a Concurrent Conflict of Interest exists IF: i. (a)(1) Representation of one client will be directly adverse to another client 1. ex: L cannot represent P and D in a matter ii. (a)(2) There is significant risk that representation of one or more clients will be materially limited by: 1. the Ls responsibilities to another client, 2. the Ls responsibilities to a former client or a third person; or 3. the personal interests of the L. (i) Note: the significant risk is an objective judgment (how does it appear to general viewer?) L may claim there is no risk, but objectively there still is. 2. Exceptions (Where L May Still Represent Even Though Conflict Exists) a. Under MR 1.7(b), a L may represent a client even though a concurrent conflict of interest exists under MR 1.7(a), IF: i. (b)(1) L reasonably believes he will be able to provide competent and diligent representation to each affected client; ii. (b)(2) the representation is not prohibited by law; iii. (b)(3) the representation does not involve a claim by one client against another client; iv. (b)(4) all affected clients have given informed consent confirmed in writing 1. Comment 20 requires the informed consent to be in writing. (i) informed consent may be oral, but the confirmation by the client must be in writing. Probably also want to include explanation in writing so you have documentation of what was explained. 2. MR 1.0(e) defines informed consent as: an agreement to a course of conduct after the lawyer has communicated adequate information and explanation of material risks and alternatives. b. Hypos re: MR 1.7 & 1.8

i.

Hypo 1: Lawyer is member of team of lawyers representing a celebrity defendant. Lawyer goes to Vegas and sees odds on whether client will be guilty or innocent. Lawyer puts $10k on client being guilty. 1. There is no provision in MR 1.8 on point, so turn to MR 1.7. 2. There is significant risk under MR 1.7(a): lawyer has incentive to throw case 3. (b)(1) prevents lawyer from representing because lawyer cannot reasonably believe will be able to provide competent and diligent representation. ii. Hypo 2: Lawyer bets that client will be found not-guilty. 1. Will representation be limited? Possibly may push for plea bargain. May turn up that lawyer has 100k bet on acquittal. 2. Key language to evaluate is there a significant risk the representation will be materially limited? under MR 1.7(a)(1) you could say no significant risk. If no significant risk, then no conflict. 3. Lawyer could probably say that he can provide competent representation at least until plea bargain is offered and then deal with it once plea bargain is offered. 3. Specific Rules on Conflicts MR 1.8 a. MR 1.8(a) L may not enter into a business transaction w/ a client or knowingly acquire an interest that is adverse to a client, UNLESS: 1. (a)(1) the transaction and terms are: (i) fair & reasonable; (ii) fully disclosed to the client in writing; (iii) in a manner reasonably understood by the client (no legalese); 2. (a)(2) the client is advised in writing to get an independent lawyer to counsel client on the transaction; AND 3. (a)(3) the client gives informed written consent (consent to the terms of the transaction and the Ls role in the transaction, including whether the L is representing the client in the transaction). ii. Misc. stuff re: 1.8(a) 1. Comment 1 1.8(a) does NOT apply to standard commercial transactions between the lawyer and client for products or services (E.g. Client has electronic store & lawyer buys TV. Rationale = Lawyer has no advantage over client in this kind of dealing so restrictions of 1.8(a) are unnecessary) 2. Q: What if L screws up writing of the transaction (e.g. terms are legalese) A: May be disciplinary action against L. 3. Q: What if transaction is fair, but no writing and then client wants out? There is no per se civil liability for a violation of 1.8(a), but client would make public policy argument that the rules were not followed and he might win in civil liability suit. 4. Lawyer obligated to treat client as if the lawyer were advising the client in a deal with someone else (i.e. in a deal NOT with the lawyer himself). 5. In Re Matter of Neville (i) Issue: If the lawyer is representing the client in a completely unrelated matter, does Rule 1.8(a) prohibit conventional arms length transactions between the client and lawyer? (ii) Holding: Lawyer owes the client a duty and client will rely on you to observe a fiduciary standard. It does not matter if business transaction is unrelated to the representation. 6. Q: What if as in Neville, the representation is over, does MR 1.8(a) still apply? Yes bc A/C relationship continues until abandonment (when lawyers influence over client is dissipated). So applies even though no formal relationship.

b.

c.

d.

e.

(i) MR 1.8(a) will apply to a former client unless something happens so that relationship is expressed to be over (ex. termination letter). 7. Q: What if client sets the terms of the deal? Is this enough to make it okay under MR 1.8(a)? No, L must still go over pros & cons of the deal (remember Ls obligation under rule to advise client on transaction as if client were dealing with third person & not the L). 8. Q: How does MR 1.8(a) come into play w/ FEE AGREEMENTS? (i) Normal fee agreements (e.g. C pays L by cash) not subject to MR 1.8(a) (ii) BUT if client is going to pay L w/ property (e.g. stocks), then the agreement becomes subject to MR 1.8(a): (a) If stock, L must tell client about possible conflicts of interests down the road; agreement must be reasonable at time it is made. (iii) MR 1.8(a) DOES apply to post-retainer fee agreements (e.g. raising retainer from $5k to $10k -- this is considered a business transaction MR 1.8(b) L may not use information relating to the representation of the client to the disadvantage of the client UNLESS: i. Client gives informed consent; or ii. Use of the information is otherwise permitted by the Rules MR 1.8(c) L may not solicit any substantial gift from client or prepare any instrument giving L (or person related to L) any substantial gift, UNLESS: i. L is related to the client: 1. Related is defined in the rule at 1.8(c): spouse, child, grandchild, parent, grandparent, or other relative or individual w/ whom the lawyer or the client maintains a close, familial relationship. (in-laws count) 2. Q: Can the gift be given to the girlfriend of the lawyer? Yes, rule says gift cannot go to person related to the lawyer. Girlfriend does not fall under the related person definition. MR 1.8(d) prohibits L from taking (prior to conclusion of representation) literary or media rights based on information from the representation i. E.g. representation like O.J. Simpson, where client tells lawyer he can control the book and media agreements after the trial is over. ii. Policy: may cause lawyer to spin case in a way that makes it more attractive so he can profit more later 1. If AFTER end of the representation, ok to have an agreement like this BUT L must still get informed consent from client before disclosing any confidential information as controlled by MR 1.6 2. MR 1.8(d) does NOT prohibit L who represents a client concerning literary property from agreeing that Ls fees will consist of a share in ownership of the property upon resolution of the matter, AS LONG AS the agreement conforms to the requirements of the following rules: (i) MR 1.5 governing reasonableness of fees; (ii) MR 1.8(a) requirements for L to enter into business transaction/acquire interest adverse to client; and (iii) MR 1.8(i)(2) says L may acquire a proprietary interest in the cause of action or subject matter of the litigation the L is conducting for the client IF it occurs under a contract for reasonable contingent fee in a civil case. MR 1.8(e) L may not provide financial assistance in connection w/ pending or contemplated litigation. i. EXCEPTIONS: 1. L may advance court costs & expenses of litigation (the repayment of which may be contingent on the outcome of the matter); and 2. L representing indigent client may pay court costs & expenses of litigation (regardless of whether or not funds will be repaid)

ii. Q: What if lawyer maintains apartment complex and client cannot pay rent, can lawyer offer lodging? A: Technically, this is providing financial assistance, so no. (Remember Barbri lecture illustration about how far this rule goes: If C tells L that his kids are starving and will die if L doesnt loan him some money, Ls only response should be when is the funeral?) iii. Hypo: L has TV commercial where l says, If you lose, you pay me nothing. At that point, L is essentially saying, I will pay for costs and fees. (Is this then prohibited under 1.8(e)?) iv. Policy: prevent profiteering; prevent lawyers from buying clients; prevents clients from bringing litigation that otherwise they wouldnt bring (if L agrees to pay everything, no risk for client and may flood courts) v. Comment 10 1. Rule does NOT prohibit L from lending a client court costs & litigation expenses (including expenses of medical examination) bc these advances are virtually indistinguishable from contingent fees. 2. Policy for exception: these advances help ensure clients access to the courts 3. When client is indigent, doesnt matter if he will pay it back or not, L can just pay it for him; no lending/repayment necessary. f. MR 1.8(f) L may not accept compensation from a third party, UNLESS: i. Client gives informed consent; ii. There is no interference w/ Ls independence of professional judgment; and iii. Info related to representation is protected as required by MR 1.6 1. Under MR 1.6 no disclosure of confidential info to 3rd party (person paying Ls fees) unless client gives informed consent to the disclosure g. MR 1.8(g) L who represents two or more clients may not participate in making an aggregate settlement of claims (civil) or aggregate guilty/nolo pleas (criminal), UNLESS: i. Each client gives informed consent in writing. 1. When disclosing to clients in order to obtain informed consent, Ls disclosure must include an explanation of the existence and nature of: (i) All claims/pleas involved; and (ii) The participation of each person in the settlement. h. MR 1.8(h) Limiting Liability and Settling Malpractice Claims i. L may not: 1. (h)(1) Make an agreement prospectively limiting Ls malpractice liability UNLESS client has independent counsel helping him make the agreement; 2. (h)(2) Settle claim or potential claim for such malpractice liability w/ unrepresented client or former client UNLESS L advises client in writing to get counsel & L gives client reasonable time to do so. ii. Comment 14 this rule does not prohibit L from entering into agreement w/ client that they will arbitrate any malpractice claim, BUT the agreement must be enforceable & the client must be fully informed of the scope and effect of the agreement to arbitrate. iii. Q: If you blow the SoL, do you need to tell client or just say sorry you lost? A: MR 1.4(d) requires L to discuss w/ client so they can make informed decisions. There is obligation to let client know of remedy available for malpractice. i. MR 1.8(i) L may not acquire proprietary interest in clients cause of action i. EXCEPTIONS: 1. Where L acquires a court-authorized lien to recover Ls fees and expenses; 2. Where L contracts w/ client for a reasonable contingent fee in a civil case (i) Remember contingent fees prohibited in criminal defense cases. j. MR 1.8(j) L may not have sexual relations w/ a client unless a consensual relationship existed before the commencement of the lawyer client relationship.

Client can sue on breach of fiduciary duty. Purpose is lawyer is in position to exploit position of trust. Lawyer may have interest in keeping sex going. No imputation for MR 1.8(j) Some issues that come up w/ 1.8(j): 1. Even if pre-existing relationship, may still be conflict under MR 1.7 2. What counts as a sexual relationship? 3. What if lawyer has sex w/ executive of corporate client is that person a client? (go through analysis under Upjohn) k. MR 1.8(k) Rule of Imputation applies to all MR 1.8 prohibitions EXCEPT the prohibition against sexual relations w/ client. i. This means if prohibitions under 1.8(a) - (i) apply to one partner in a firm, they apply to all the partners in the firm. ii. NOTE: Rule of Imputation DOES NOT APPLY TO SEX RULE, MR 1.8(j) iii. MR 1.10 deals with imputation 4. Misc. Issues w/ Lawyer-Client Conflicts a. Gellman v. Hilal i. Facts: Husband with one firm will represent P, and Wife with another firm previously represented D. ii. This close relation of the attorneys raises two issues under the rules: 1. Client confidentiality (MR 1.6) 2. Conflict of Interest may interference w/ Ls loyalty & independent professional judgment (MR 1.7 & 1.8) iii. Comment 11 in this scenario, L should: 1. Tell client about the existence of the relationship and the potential conflict of interest before L agrees to undertake representation; AND 2. Obtain informed consent from client. b. Discrimination vs. Conflict of Interest i. Only thing that governs here is MR 8.4(d) it is professional misconduct for lawyer to engage in conduct prejudicial to admin. of justice (catch-all) ii. Hypo: Jury not likely to look favorably on Jewish lawyer. Does firm keep Jewish lawyer on legal team? iii. To answer, go through applicable rules: 1. MR 1.2(a) lawyer is bound by clients decisions; 2. MR 1.4(b) lawyer shall explain matter to client so they can make an informed decision; 3. MR 1.7 possible conflict of interests: want to fight prejudice but want to win for client. iv. Becker says: Client must be told & let client decide. B. Client-Client Conflicts 1. Client-Client Conflicts in Criminal Context

i. ii. iii. iv. v.

a. Defense Lawyers i. Hypo: Two Ds are indicted for crime, both Ds ask same L to represent them. Each D is saying not guilty. 1. Under MR 1.7, must first determine if there is conflict here:

(i) (a)(1) - Is it immediate bc parties are directly adverse to one another in the matter? OR (ii) (a)(2) - Is it a conflict bc of a significant risk of material limitation? 2. Here, not directly adverse under (a)(1), BUT defense of both clients may conflict under (a)(2): (i) Comment 8 states the general test for significant risk: critical interest is likelihood of a conflict. (ii) Comment 23 states that the potential for a conflict is so great in representing co-defendants in a criminal case that the lawyer should decline. 3. Answer: There is no absolute prohibition under these facts, but Comment 23 is pretty strong. May be able to represent both if meet MR 1.7(b) reqs. (i) If problems arise in these facts, L can be sued for malpractice. (ii) In order to recover, client must prove they were innocent. ii. Violations of conflict of interests rules can lead to 6th Amendment claims: 1. i.e. client may argue ineffective assistance or counsel. One way criminal defense counsel can be alleged to screw up is through conflict of interests. b. Prosecutors i. Q: Can a prosecutor claim disqualification for a lawyer representing codefendants? ii. A: No, prosecutor has no standing to request disqualification bc prosecutors do not represent anyone. Only client or former client may be basis of claim for disqualification. 2. Client-Client Conflicts in Civil Litigation Setting
Questions from Beckers Syllabus: 1. How does MR 1.7 apply to a lawyer representing opposite parties in civil litigation? 2. Can lawyer avoid a problem by asking a partner to represent one of the parties? (See MR 1.10(a); pp. 277-278) 3. Can lawyer act adversely to a client on an unrelated matter? (See pp. 79-282 (first three lines)); 4. What happens in multiple/joint representation situation? (p.283); 5. What is the common interest rule? (See 284-286); 6. Confidentiality issues (first full paragraph p.286); 7. Fiduciary duties (pp. 286-287; Comments 29-33 of MR 1.7) 8. Waiver by clients as possible solution to conflict issues (See first full par p. 282; last full par p. 286; first full par p. 294; pp. 295-96; Comment 22 to Rule 1.7) 9. Class conflicts (See pp. 287-88) 10. May L take inconsistent legal positions in different tribunals at different times on behalf of different clients? (See Comment 24 to MR1.7).

a. As we know from MR 1.7(a) L cannot represent a client if such representation will be directly adverse to the interests of another client i. Imputation Applies Ls law partner cant do it either bc imputation rule applies under MR 1.10(a)(1). Bc L cannot represent, neither can partner ii. If prospective client seeks to sue Ls current client, L cannot undertake prospective clients representation EVEN IF current client consents. 1. MR 1.7(b)(3) expressly prohibits representation where there is a claim by one client against another client (even if client willing to consent) b. Hypo 1: Lawyer is hired by client to sue GM in design defect case. Recovery is going to be substantial. Lawyer has a substantial holding of GM stock, so Lawyer has a lot to lose if GM loses the case. Conflict? There is no specific rule. . . i. Under MR 1.7(a)(2), there is argument there is a significant risk here (L will pursue clients case less effectively bc of his stake in the outcome)

ii. Probably not consentable under MR 1.7(b)(4) bc no way lawyer can reasonably believe that he will be able to provide competent & diligent representation under MR 1.7(b)(1) c. Hypo 2: Lawyer only represents Corp X in environmental matters. Client comes to L and wants to retain L to sue Corp X in unrelated personal injury action arising bc client was injured when truck driven hit client. i. Comment 6 absent consent, L may not act as advocate in one matter against a client L represents in another matter, even when matters are wholly unrelated (i.e., even when the two matters are wholly unrelated, L may not act as Ps attorney in suing D that is his client). 1. Ls loyalty can be undermined; client as to whom the representation is adverse is likely to feel betrayed, which can result in damage to L/C relationship, which will impair Ls ability to represent client effectively (implicating (b)(1)). ii. These rules are especially important to big firms w/ multiple offices 1. Ex: Environmental work in San Fran office; Antitrust work in DC office 2. Big law firm must have a good database to track conflicts 3. Firms may try to use consent to conflict agreements (i) Argument against these agreements: does the client understand? (ii) If the client is sophisticated and the waiver is limited, this has best shot at being upheld iii. Organization as Client (Comment 34) 1. A lawyer representing a corporation does not necessarily represent any constituent or affiliate of the corporation (e.g. a parent or subsidiary) 2. Therefore, lawyer may accept adverse representation. d. Hypo 3: Client is going to be a witness & Lawyer wants to cross-examine client in the course of his representation of another client. i. Cross-examination is by nature adversarial. This is a concurrent conflict of interests and lawyer would have to get informed consent. ii. Becker: thinks it is consentable under MR 1.7(b), but you would need consent of BOTH clients e. Inconsistent Legal Positions i. Comment 24 to MR 1.7 L can take inconsistent legal positions with respect to different clients. (lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients) 1. Ex: mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the L in an unrelated matter does NOT create a conflict of interest. ii. HOWEVER, a conflict DOES arise if there is a significant risk that a Ls actions on behalf of one client will materially limit the Ls effectiveness in representing the other client in a diff case 1. Ex: when a decision favoring one client will create precedent likely to seriously weaken the position taken on behalf of the other client. 2. Comment 24 lists factors relevant in determining whether clients need to be advised of the risk!! 3. If there is a significant risk of material limitation L must either get informed consent from both clients, or withdraw/refuse to represent one or both of the clients. 2. Client-Client Conflicts in Non-Litigation Matters a. Comment 7, MR 1.7: directly adverse conflicts can also arise in transactional matters. i. Hypo: L represents B. S seeks Ls representation in sale of Ss business, where S is negotiating the sale w/ B, the potential buyer.

1. If L represents B in this transaction (i.e. B attained L to represent him in the purchase of this business), then L cannot undertake the representation even if both consent (its unconsentable). 2. If L represents B in another, unrelated matter, then L can undertake the representation as long as he gets informed consent of both S & B. ii. Comment 7 also says that if you represent the seller in negotiations and have represented the buyer in past unrelated matters, you need to get informed consent of each client. b. Conflict where L is retained to form an entity for multiple parties i. Hypo: A few business owners come in and want to form corporation. They want L to draw up the documents. L is representing all three owners. 1. Conflicts arise: stock options, what corporate form will be chosen? 2. Here, L can undertake representation as long as explains the situation and gets informed consent from all parties. c. Two major points related to representing multiple parties on same side in a transactional/non-litigation context i. Effect on A-C Privilege Comment 30 of MR 1.7 1. When you represent multiple parties, you often discuss things w/ parties. In this instance, the privilege does not attach. (If A and B sue each other, neither can assert the privilege against the other. When L represents multiple parties, A/C privilege does not protect them individually.) ii. Confidentiality 1. Hypo: NJ lawyer is doing estate planning; represents both H & W. Husband says there is illegitimate child that Wife does not know of. L now has a duty of confidentiality to H but a conflicting duty to disclose to W (under restatement clients should expect lawyer to share all information) (i) Arguable whether duty to disclose is greater than duty of confidentiality. (a) If you can disclose, then you are home free. (b) One way of handing this is saying to BOTH: We only represent you if you waive confidentiality to the other. 2. Common Interest Rule can be used to retain A/C privilege: (i) Ex: If A represents X and B represents Y, and interests are in common, often A & B will get together and talk w/ clients. (ii) Common Interest Rule states that in a common interest situation like this one, any statement of one client to the other lawyer will be regarded as privileged. 3. Hypo: Lawyer is representing client who is insured by All State (All State is the one hiring & paying the atty). Lawyer is then hired by B to sue All State on a different matter. All State argues L cannot sue on an unrelated matter without A-Ss consent, which they refuse to give. Lawyer says insured is the client, not All-State. (i) Court would say A-S is also client and thus L cannot sue them, (i.e. L cannot engage in the representation of B). 3. Lawyer as Witness MR 3.7 a. MR 3.7(a) if L is likely to be a witness in case, L cannot act as counsel i. There are 3 exceptions to this advocate-witness rule: 1. If testimony is uncontested; 2. If testimony relates to the nature & value of legal services rendered in the case; OR 3. If disqualification of L would create substantial hardship on the client b. MR.7(b) No Imputation Rule (subject to MR 1.7 and 1.9)

i.

L in a firm may act as advocate in trial in which another L in same firm is likely to be called as a witness, UNLESS L would be precluded from doing so by MR 1.7 or MR 1.9 (conflict of interest current & former client) 1. If witness lawyer would be disqualified by MR 1.7 or MR 1.9 from representing the client in the matter, other lawyers in the firm will be precluded from representing the client by MR 1.10 (imputation rule) UNLESS the client gives informed consent under the conditions stated in MR 1.7. ii. Hypo: Lawyer represents H in divorce litigation. Lawyer who is going to be witness does pre-trial work and then partner will try case. This does not violate MR 3.7. Successive Conflicts of Interest - MR 1.9, 1.10, 1.11 A. Private Practice 1. Conflict of Interest based on Former Client MR 1.9 a. MR 1.9(a) L who has represented a client in a matter may not later represent another client in the same or a substantially related matter in which the new clients interests are materially adverse to the interests of the former client, UNLESS: Former client gives informed consent confirmed in writing. b. Substantially Related analysis i. Comment 3 to MR 1.9: matters are substantially related if: 1. they involve the same transaction or legal dispute; OR 2. there is a substantial risk that confidential factual info as would normally have been obtained in the first representation would materially advance the clients position in the subsequent representation. ii. Hypo 1 re: Substantially Related 1. Lawyer represents Doctor X in drafting partnership agreement with Doctor Y. Agreement is done, but then there is later a dispute. Y asks L to represent him in suing X. If X was a current client, clearly L could not represent Y, but what about the fact that X is now a former client? (i) A: Under MR 1.9(a), it is same or substantially related, so L would have to get informed consent in writing from X (former client) in order to be abl eto represent Y (new client) (ii) Rule is intended to protect the former client bc of confidentiality issues. (iii) Rule 1.6 covers confidentiality, but the rules do not trust lawyers to live up to that rule w/out informed written consent from the former client. iii. Analytica v. NPD Research 1. Facts: Corp wants to give Malec 2 shares of NPD stock. Must establish value of the 2 shares. Malec goes to L. Analytica, represented by Ls firm, is currently suing NPD. NPD moves to disqualify Ls firm under MR 1.9. 2. Analysis: Is Ls representation of Malec in stock valuation and substantially related to Ls representation of Analytic in antitrust substantially related? 3. Holding: Yes. Court found representations were substantially related. Court says in evaluating stock for Malec, L would need to ask about market strength and this is at heart of antitrust action, thus it relates to the representation of Analytic. iv. Hypo 2 re: Substantially Related 1. Lawyer represents Doc X in Partnership agreement. Doc X is getting divorce and Doc Xs wife asks L to represent her in divorce action where economic issues will come up.

(i) Argument for substantially related: Info about value of practice (which will come up in divorce upon property distribution) is substantially related to the partnership agreement. v. The focus for determining substantial relation is not the legal theory, but the type of information involved. 1. Test is whether the lawyer could have obtained confidential information, NOT whether lawyer did in fact obtain confidential information. 2. Asking lawyer what they did obtain would to violate confidentiality. vi. Comment 3 to Rule 1.9 information acquired in prior representation may have been rendered obsolete by passage of time, thus it is not a disqualifying factor. vii. Hypo: L used to represent corp in employment discrimination matters. Later (after rep of corp has stopped) employee comes to L and wants to sue corp in employment discrimination case. 1. Argument for company to disqualify L from representing the employee is playbook information: L knows how corp handles employment discrimination matters, thus this could be used in his representation of empoyee against corp (the former client). viii. Disqualification where Conflict arising from Former Client ix. Courts are generally reluctant to grant disqualification bc it results in delay. x. Some courts have said they will not disqualify, but will refer to the disciplinary board when information could have been learned but was not (i.e. malpractice based on conflict?) c. Who is a Former Client? i. Payment is not controlling. ii. If lawyer performed legal services then person is a former client 1. Under Common Interest Rule someone who is not technically a client may be protected as a former client. iii. Ex: Member of trade association gives lawyer information so that can help lawyer achieve an end. Member is treated as former client bc the interest was the same. i.e. eomeone who was not technically a client can be protected by MR 1.9 if deemed a former client. iv. Hypo re: Former Client status 1. H is wage earner. W interviews top divorce lawyers and goes to #6. Can H hire 1-5? A: W will move to disqualify; H can show she was acting in bad faith to conflict out. d. Are Prospective Clients Former Client? i. MR 1.18(a) a person who discusses the possibility of forming a client-lawyer relationship w/ a lawyer is deemed a prospective client. ii. MR 1.18(b) lawyer may not reveal information obtained in this consultation with the prospective client, even where no client-lawyer relationship ensues. iii. MR 1.18(c) a lawyer subject to 1.18(b) shall not represent a client w/ interests materially adverse to those of the prospective client in the same or a substantially similar matter if the information the lawyer received from the prospective client could be significantly harmful to the prospective client in that matter, except as provided in 1.18(d). Imputation rule applies, also except as provided in 1.18(d). iv. MR 1.18(d) even if lawyer has received disqualifying information as defined in 1.18(c), representation is permissible IF: 1. Both the affected client & the prospective client give informed consent in writing; OR 2. Lawyer who received the disqualifying info took reasonable measures to avoid exposure to more disqualifying info than was reasonably necessary to determine whether to represent the prospective client; AND

(i) Disqualified lawyer is screened (defined in MR 1.10) form any participation in the matter, then lawyers firm may continue; and (ii) Written notice is promptly given to the prospective client. v. Comment 5 to Rule 1.18 states waiver may be used to condition the consultation on notion that any information obtained will not prohibit the lawyer from representing a different client in the matter if no lawyer-client relationship results form the consultation. Limited waivers have best chance of being upheld. vi. Hypo re: Hot Potato Issue 1. Lawyer represents client X in small matter. Y comes in to sue X in a large matter. (i) Q: Can lawyer represent Y against X? No, there is conflict and MR 1.7 prohibits the representation. (ii) Hot potato issue: Can Lawyer withdraw from X and take Ys case? (a) If L withdraws, X is former client and Rule 1.9 applies. (b) Then Q becomes: is it same or substantially similar matter? (iii) In Jelco court said you cannot withdraw from one representation to permit you to sue the former client. (i.e. you cannot drop a client like a hot potato.) (a) Policy: L cannot exercise legitimate right of withdraw when L is essentially dropping client to turn a 1.7 case into a 1.9 case. e. Unforeseen Developments creating a Conflict during Representation i. Q: What if you represent P, and the D is taken over by your existing client? ii. A: Under Comment 5 of Rule 1.7, lawyer has option to withdraw from one representation to avoid conflict. Lawyer must seek court approval. iii. Q: L represents X episodically and then year goes by w/ nothing. Y wants to retain L to sue X. A: L must determine if X is current client or former client 1. If current client MR 1.7 2. If former client MR 1.9 B. Migratory Lawyers & Imputed Disqualification 1. Definitions a. Migratory Lawyer i. Lawyers who leave to go to another firm/into sole practice/etc. 1. How do imputation rules work when L leaves to go to new firm ? 2. What happens when a conflicted L (subject to disqualification) changes firms? ii. Comment 2 to MR 1.10 imputation rule operates from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated. b. Firm i. Comment 1 to MR 1.10 defines what is meant by firm and cross-references to MR 1.0(c), which also defines firm (same definition). c. Lawyer i. MR 1.9 refers to lawyer so the rule would seem not to apply to a paralegal or summer associate. ii. Comment 4 to MR 1.10 imputation rule of MR 1.10(a) does not prohibit representation by people other than lawyers (e.g. paralegals, secretaries, law students). 1. MR 5.3(a), if you hire a non-lawyer, you have to make sure their ethical conduct is equivalent to that of a lawyer. You cannot have a non-lawyer who can tell you confidential information.

2. First issue: Is the firm the migratory lawyer left tainted by former client of the migratory lawyer? a. Hypo 1: L works at Able Law Firm. L represents Dr. Pill in negotiations with Dr. Pusher. At end of negotiations, relationship ends. Dr. Pusher comes to Able Law Firm to sue Dr. Pill in matter related to negotiations. i. Q: Assuming L is still at Able Firm, can L represent Dr. Pusher? A: L could not represent Dr. Pusher because of MR 1.9(a), unless Dr. Pill consents. ii. Q: Can other lawyer in Able Law Firm represent Dr Pusher? A: No, under imputation of MR 1.10, L is barred, thus all lawyers in Able are imputed out. b. MR 1.10(b) When a lawyer has left a firm, the firm is NOT thereafter prohibited from representing a client w/ interests materially adverse to those of a client represented by now-departed lawyer, UNLESS: i. The matter is the same or substantially the same as the matter the now-departed lawyer was part of, AND ii. Any lawyer remaining in firm has information protected by MR 1.6 (confidentiality) and MR 1.9(c) that is material to the matter. 1. Hypo 1 (continued from above): L leaves Able Firm, then Pusher (who has interests materially adverse to the client L represented while at Able) comes to Able Law Firm looking for legal representation. A: L is no longer at Able so there is no longer imputation of Rule 1.10(a). Under MR 1.10(b), since L has left, Able Law Firm is not prohibited from taking Dr. Pusher on as a client unless the matter is the same, OR, anyone still in the firm has confidential info that is material to the matter. (i) So key question for application of Rule 1.10(b) is whether anyone in the firm has confidential information! Facts will say so. Note that its not could they have info, it is do they actually have any info. 3. Second Issue: Does the migratory lawyer carry a taint to his new firm? a. In other words can a firm represent the old adversary of a migratory lawyer (who has recently come to the firm)? 1. Model Rules no & dont allow for screening to cure in this scenario; 2. Some states (PA) yes as long as the migratory lawyer is screened; 3. Restatement yes, if L screened + L only has info not likely to be significant b. Hypo 2 (continued from Hypo 1 above): L leaves Able and joins Zeb Firm. Pusher comes to L and wants to sue. i. Q1: Can L represent now Pusher that he is with Zeb Firm? A: L is barred by MR 1.9(a), regardless of fact that he is at new firm, unless L obtains consent from former client. ii. Q2: Can another lawyer in Zeb Firm represent Pusher? A: Under ABA Rules, other lawyers in Zeb would be imputed out. c. Three views about whether or not screening the disqualified/tainted attorney can allow the firm to take on the case: i. Restatement: Firm can take case only if screening of disqualified lawyer & only if lawyer has information that is not likely to be significant. ii. Model rules: No screening allowed; firm imputed out no matter what (Note: under MR, screening to cure disqualification is only allowed in two situations MR 1.18 and MR 1.11) iii. PA and some other states: Firm can take case if screening of disqualified lawyer and written notice is given to client. 4. Third Issue: Can L, whose prior firm represented client X, later move to a new firm and represent the Xs adversary? a. Lawyer is not barred by MR 1.9 because while at firm, never directly represented Client X (just his firm did) b. MR 1.9(b) not a problem so long as L did not acquire confidential info

If L did receive confidential info on Client X, the only way new firm can represent Client X is if Client X gives informed consent in writing. c. Q: What if a different lawyer (not original L form hypo) in the firm goes elsewhere? Can the different lawyer who went elsewhere sue Dr. Pill? A: MR 1.9, once L leaves infected firm, lawyer is free to sue the former client of the infected firm as long as the lawyer does not have confidential information. d. Cromley v. Board of Education i. Facts: Lawyer goes from representing P to the firm representing D, but the law firm screens him out. ii. Analysis: Under Model Rules, this violates the ethics rules regardless of whether there is a screen. The firm should be imputed out no matter what. iii. Holding: State court not bound to follow the Model Rules. In some instances, the court will find conduct violated rules, but court will not disqualify (will just make lawyer face the disciplinary board). C. Conflicts of Interest for Former & Current Gov't Employees MR 1.11 1. MR 1.11(a) L who formerly served as a gov't employee and now works in firm i. (a)(1) L is subject to MR 1.9(c) governing duties to former clients, AND ii. (a)(2) L shall not represent a client in connection w/ a matter in which L participated personally & substantially as a gov't employee, UNLESS the gov't agency gives informed written consent to the representation. 2. MR 1.11(b) When L is disqualified under 1.11(a), no lawyer in Ls firm may knowingly undertake or continue to represent in such a matter UNLESS i. (b)(1) disqualified L is screened off (doesnt take part in matter & doesnt receive a fee from it); AND ii. (b)(2) Written notice is promptly given to the gov't agency 3. MR 1.11(d) L who formerly served in private practice & is now in gov't service a. (d)(2)(i) L shall not participate in a matter where the L personally and substantially in private practice was involved with the matter, unless informed written consent. i. Concern is lawyers who were in private practice and now serve govt -- dont want to worry about Ls cutting old clients a favor. b. (d)(2)(ii) L cannot negotiate for private employment w/ a party who is participating in a matter unless you are a law clerk, but you need judges consent. 4. MR 1.11(e) defines matter as used in this rule. Ethics in Advocacy A. Introduction 1. Two competing views of adversarial system (each would produce diff. ethics rules): a. Trial in law and a search for truth b. Trials are adversarial system and not a search for truth. 2. Accepting Court Appointments MR 6.2 a. MR 6.2 lawyer may not avoid court appointment to represent client unless for good cause b. Good Cause reasons for avoiding appointment: i. 6.2(a) representing client is likely to result in violation of model rules; (i) e.g. if lawyer could not handle the matter competently, or if undertaking the representation would result in a conflict of interest ii. 6.2(b) representing client is likely to result in unreasonable financial burden on lawyer; OR

i.

iii. 6.2(c) the client or 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) Rules caution here that all Ls have responsibility to fulfill fair share of pro bono cases, and L can fulfill this responsibility by accepting a fair share of unpopular matters/clients. 3. Candor to the Tribunal MR 3.3 a. MR 3.3(a) L may not knowingly: i. (a)(1) make a false statement of fact or law to the tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by L. ii. (a)(2) fail to disclose to the tribunal legal authority from Ls jurisdiction that L knows to be directly adverse and was not disclosed by opposing counsel; iii. (a)(3) offer evidence that the L knows to be false. (i) If L, Ls client, or witness called by L has offered material evidence and L comes to know of its falsity, L must take reasonable remedial measures (including, if necessary, disclosure to tribunal of the falsity). (ii) Other than testimony of the D, L has right to refuse to offer evidence that the L reasonably believes is false. b. Tribunal defined in MR 1.0(m); Comment 1 to MR 3.3. i. Includes judge, arbitrator, others who can make final decisions. ii. Includes ancillary proceedings, such as depositions. c. Hypos re: Candor i. Hypo 1: If judge asks if all documents were turned over and lawyer lies and says yes, this violates MR 3.3. ii. Hypo 2: Judge asks DA if there are prior convictions and DA says no, but L knows there was one, does L have to tell judge? Conventional answer: No. As long as lawyer has not made a false statement to court or anyone, no obligation to tell judge. d. Client Lies i. Under MR 3.3(a)(3), L may not offer evidence that the lawyer knows to be false. 1. If false testimony has been offered, L must take reasonable remedial measures including disclosure to tribunal if necessary. 2. If the client is planning to lie, there are a number of concerns: (i) MR 3.3(a)(3), L cannot offer false testimony into evidence. (ii) MR 1.4(b) L cannot assist client in crime or fraud, perjury. (iii) MR 1.16 at issue if L wants to withdraw. If in litigation L will need authority from court; L can argue professional reasons compel him to withdraw. (iv) MR 3.3(b) states if L knows client is about to engage in criminal act (perjury) lawyer shall take reasonable remedial measures. (v) MR 1.6 - Can L disclose to a tribunal? There are confidentiality issues at play here. ii. Nix v. Whiteside 1. Facts: W charged with murder and claims she stabbed in self-defense bc H had gun. W never saw gun, but believed saw a gun and has to say he saw one in order to prevail. When it comes to trial, W tells lawyer he saw gun. Lawyer says cannot permit to do it bc lawyer knows it is a lie. W then appeals on ineffective assistance of counsel (6th Am) 2. Holding: Court says no error bc L acted correctly & in accordance w/ model rules 3. There are two views on preventing clients from perjuring themselves: (i) Minority Criminal defendants have right to testify. Lawyer may not ask questions where the answers will be perjurious, but lawyer can ask

question and client may perjure. In closing arguments, lawyer may not base argument on what he understands to be perjurious (ii) Majority Rule Comment 7 Present accused as witness or give narrative statement even if client plans to perjure. e. MR 3.3 only implicated if Lawyer knows i. What if the lawyer reasonably believes something to be false but does not know? ii. L may be wrong; L only mandated if he KNOWS. iii. L is not under any affirmative duty to determine if the client is lying f. Lawyer Prep of Witness i. Witness prep is important part of a Ls job, but must not spill over to L telling the client/witness what to say on the stand. ii. Hypo: L prepare witnesses by giving paper which says remember you saw names on the bags. 1. If lawyer is telling witness to lie clearly violates 3.3. 2. If telling witness what to say problematic but no clear rule violation iii. There are ethical issues w/ witness prep, but very little enforcement if suggesting what client should say. iv. Q: What if the lawyer gives the client the law then has client adapt testimony? A: Some people defend and say you are entitled to tell the client what the law is. You would almost never see a disciplinary action with this. v. Bottom line: As long as do not tell client to lie, everything else seems to be fair game in preparing the witness. B. Other Lawyer Practices 1. Fairness to Opposing Party & Opposing Counsel MR 3.4 a. MR 3.4(e) During trial, L may not allude to any matter L does not reasonably believe is relevant or that will not be supported by admissible evidence. i. Ex: L may not assert personal knowledge of facts in issues except where testifying as witness ii. Ex: L may not state a personal opinion as to the justness of the cause, the credibility of a witness, the culpability/guilt of accused/defendant. b. Such false inferences bring up ethical issues, but Becker does not know of any disciplinary cases for a lawyer arguing a false inference. c. Perjury cases i. Not violation for a witness to testify truthfully but erroneously (e.g. dates wrong) ii. Bronston: Not convicted of perjury because he told the literal truth 1. If its a nonresponsive answer its the Ls job to follow it up (didnt here) iii. DeZarn: Convicted of perjury even though it was literal truth 1. If question can be understood to be relating to the facts, then you must answer truthfully. 2. Frivolous Positions and Abusive Tactics a. MR 3.1 L may not assert a frivolous position b. MR 3.2 L required to make efforts to expedite litigation consistent with the interests of the client. i. It is not a justification that everyone does it. Ethical thing is whether a competent lawyer acting in good faith has a substantial reason other than delay. c. MR 3.4(b)L may not offer an inducement to witness that is prohibited by law i. Comment 3: 1. You can pay an expert witness. 2. You cannot pay a fact witness for coming in and testifying.

(i) PA rules you can pay fact witness to compensate them for their loss of time (e.g. 2 days wages) d. MR 3.5(b) No ex parte communication i. Lawyer cannot communicate ex-parte w/ a judge juror or backup juror unless expressly authorized. 1. Cant do it even if judge initiates it!! 2. Doesnt matter if you tell the lawyer later -- technically, you cannot even give letter to judge & mail it to other party on same day. That is essentially ex parte. 3. Hypo: Here is the paper, sign the affidavit, I will get it notarized later. What is wrong with that? Wrong bc notary has to be there. This is an ethical violation. If a violation of substantive law then MR 8.4(b), if not, then it is a violation of MR 8.4(c) which deals with dishonest conduct. ii. One MINOR exception: for scheduling matters/emergencies iii. Ex parte communications also prohibited with juror or prospective jurors. 1. But you can contact jurors after the trial under MR 3.5(c), unless the juror says leave me alone or the communication is harassing.

Special Issues in Litigation A. Lawyers Obligation with Respect to Real Evidence 1. Criminal Cases a. Not a lot of ethics authority related to real evidence. b. MR 8.4(d) prohibits conduct that is prejudicial to the administration of justice i. Hypo: Client comes into office saying he shot someone and gives the lawyer the victims wallet. No one knows the client is involved. Can the lawyer keep the wallet? c. MR 3.4(a) - L may not unlawfully block obstruct other partys access to evidence i. Another body of law is incorporated into the rule because of unlawfully. (i.e. must look to other body of law to find what is unlawful) ii. In the hypo, criminal law obstruction of justice statutes would be at issue i. PA law: unlawful obstruction of justice in criminal statute applies to destroying or concealing evidence even if there is no arrest or no investigation. ii. Fed statute is very broad & a criminal proceeding need not be initiated for OOJ to apply. b. In the hypo, this would be unlawfully concealing evidence because it would also make lawyer guilty of obstruction of justice c. People v. Meredith i. Facts: D accused of conspiracy to murder. D tells lawyer he has wallet. Lawyer gets wallet. He cannot keep it, but what does he do with it? ii. Issue: Was the location of the wallet a product of a privileged conversation? iii. Holding: Whenever D counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence in question. 1. May be privileged, but there is an overriding duty to turn over fruits of crime to the police 2. In turning over evidence, prosecution must avoid content of attorney-client communications.

3. Prosecution cannot let finder of fact know that the source of the information was the defense attorney d. Bottom line: Lawyer may not take evidence and keep it; once he has it he must reval the location of the evidence so authorities can do the proper investigation (even though local is privileged bc L learned it in course of the representation) e. Q: Client offers L wallet and L says lose it in a river. Is this valid? - A; No, because you are telling C to obstruct justice. MR 8.4(d) misconduct for L to engage in conduct that is prejudicial to the administration of justice. f. Q: Do you have to tell client to turn it over to police? A: AZ decision said no obligation to tell someone to turn it over. If it is not overt obstruction of justice, it does not require to be turned over. i. In Meredith, the mistake was for the lawyer to take the wallet out of the trash bin; this created an obligation to turn it over. If wallet was just observed, there is no obligation to disclose. 2. Civil Cases a. No obstruction of justice statutes in civil context b. Corporations often have policies for document retention. Justifications for getting rid of documents are storage issues. c. Issues arise when documents are destroyed and litigation is looming i. If it is subpoenaed, there is obligation to comply ii. If suit filed and you destroy everything, MR 3.4(a) uses word unlawfully so must look to body of law in jurisdiction to see if destroying the documents was unlawful. iii. May be MR 8.4(d) issue. B. Special Responsibilities of a Prosecutor MR 3.8 1. MR 3.8 a prosecutor shall: a. Refrain from prosecuting a charge that prosecutor knows is not supported by probable cause; b. Make reasonable efforts that the accused has been advised of rights; c. Not seek to obtain from an unrepresented accused a waiver of important pretrial rights; d. Etc, etc, etc. (see p. 283 in rulebook) 2. Dishonestly What if a prosecutor files false charges? a. MR 8.4(c) is obviously violated; b. MR 3.3 violation for lack of candor to a tribunal; c. MR 3.8 also implicated Negotiation and Transactional Matters
No specific rule just a diff way of applying rules in negotiation context

A. Two major issues to think about in Negotiation Context 1. How far can the lawyer go in assisting the client? a. Under MR 1.2(d), you may not assist in crime or fraud (e.g. drawing up agreement that is premised on crime/fraud = assisting client; violates MR 1.2(d)). b. It is crime or fraud where conduct involves an intent or purpose to deceive. 2. What are the lawyers ethical duties in negotiations? a. Must explain to your client under MR 1.4(b) in order for client to make informed decisions.

B. If crime or fraud is at issue, L may withdraw under MR 1.16 1. Confidentiality issues, but crime or fraud is an exception under Rule 1.6. 2. Remember is permissive (MAY) not mandatory ( 3. Some states require disclose confidential information to prevent client from carrying out fraudulent act resulting in financial loss to another person. FL and Wisc. 4. Comment 10 of Rule 1.2 states that in some situations, withdraw may be insufficient and the lawyer may be required to disaffirm any opinion, document, affirmation or the like. a. It is good practice to disaffirm in order to avoid civil liability b. Academics argue Rule 4.1(b) requires more than just withdraw; must disclose to avoid assisting in crime or fraud by client. C. General Rule: Lawyers Cant Lie In the Course of Representation - MR 4.1(a), 8.4(c) 1. MR 4.1(a) L shall not knowingly make a false statement of material fact or law to a third person i. Comment 2: puffing is okay sometimes, depends on context, if its a common negotiating ploy, maybe okay. ii. Cant appear on behalf of a dead client bc even though it is not an overt statement, it implies your client is alive. 2. MR 4.1(b) L shall not fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting client in crime or fraud a. Exception: L may fail to disclose if disclosure is prohibited by MR 1.6 confidentiality b. MR 4.1(b) goes w/ MR 1.2(d) L shall not counsel a client to engage, or assist a client, in conduct that the L knows is criminal or fraudulent. i. Suppose C wants to commit a crime or fraud Ex. Client wants to hide money from wife; Ex. Using fake documents to secure a bank loan. Can L assist the client? No, violates MR 1.2(d) ii. Definitional points to be aware of: 1. L must know what criminal or fraudulent conduct is 2. Fraud: definition in MR 1.0(d) iii. Examples of what MR 1.2(d) applies to: 1. Client applying for bank loan, intends to submit false statements to bank. MR 1.2(d): cant help client process loan because youd be furthering a fraud 2. If the L prepares an agreement for a client and the agreement is premised on fraud by the client or the client has misrepresented facts, the L is prohibited from making other side sign agreement where you know of fraud by C. 3. Client negotiating with wife for property settlement. Client has $300K cash he doesnt want L to tell wife about. L cant do this according to 8.4(c) because he would be misrepresenting and it would violate 1.2(d) D. Lawyers want to push envelop in negotiations, but cannot lie under MR 4.1 & 8.4(c). . . But is puffery permitted? 1. Comment 2 to Rule 4.1(a) leaves some room for puffery in estimates of price or value of item in transaction. VERY SLIGHT ROOM. 2. Lawyer may not misrepresent his authority, My client has not authorized me. 3. Under MR 4.3, lawyer may not state he is disinterested when dealing with an unrepresented person. a. In addition, MR 4.3 prohibits the lawyer from giving legal advice to an unrepresented person other than the advice to secure counsel if there are interests in conflict 4. Florida Bar v. Belleville a. Facts: Lawyer was being disciplined for agreement drawn up bc it contained fraud. b. Holding: i. Lawyer must explain if the person does not understand the lawyers role; and

ii. Lawyer must explain in clear terms. 1. BECKER thinks this is dead wrong. If other side totally screws up, L should have no duty to say correct law. If you make it clear to other side that you do not represent them, there is no obligation to go further to explain deal to the other side. It is arguable giving advice to the other side. 5. Hypos re: Negotiations & Lawyer Puffery/Honesty a. Hypo 1: In negotiating a settlement, a lawyer may not lie about policy limits. Q: If a hospital only knows about 1 insurance policy and cuts break, must lawyer reveal 2nd policy? A: Becker says no-- if the client did not lie and did not conceal, there is no obligation to tell adversary everything unfavorable to you. b. Hypo 2: W threatens H that she will go to DA and report abuse if H does not agree to property settlement. i. Despite no Model Rule, there is the crime of extortion. 1. PA: Someone is guilty of theft if threaten anyone of a criminal defense. 2. It is a defense that property obtained was honestly claimed that property was restitution for accusation. ii. This is extortion pure and simple bc the two acts are unrelated. Abuse is unrelated to property settlement. c. Hypo 3: As car is vandalized by B. As lawyer says to B, here is the bill, if you do not pay, they will tell police. This is not extortion bc it is classic example of defense. Restitution is in good faith and the money sought is related to harm done under the circumstances. d. Hypo 4: Lawyer represents hotel clerk who was hit by celebrity. Lawyer for clerk says client has trauma & wants $ for suffering. Threatens reporting it to the DA This is kind of in the middle. Where the claim (amount of $) is not easily quantifiable (in car accident, it is easily quantifiable), it may not be extortion if it is reasonable amount for harm caused. 6. If extortion is committed, MR 8.4(b) states it is misconduct for lawyer to commit a criminal act that reflects adversely on lawyers honesty, trustworthiness. Extortion falls under this. 7. Note: minor crimes like getting a speeding ticket ARE NOT in violation of Model Rules, only certain crimes are covered under MR 8.4(b). Lawyers for Corporations & Other Entities - MR 1.13 A. Organization as Client MR 1.13 1. Who does the lawyer for the entity represent? MR 1.13(a), (f), and (g) a. MR 1.13(a) Lawyer employed by an organization represents the organization acting through its duly authorized constituents. b. MR 1.13(f) When dealing with the entitys constituents, L must explain identity of the client when L knows or should reasonably know the entitys interests are at odds with the constituents w/ whom L is speaking. c. MR 1.13(g) Lawyer may represent a constituent of the entity, but the lawyer is subject to conflict of interests rules (MR 1.7). Consent must be given by corp. 2. Responsibilities of the entity lawyer learns of wrongdoing MR 1.13(b), (c), (e) a. MR 1.13(b) lawyer must report any action by constituent at odds with their duties owed to the higher authority in the organization. b. Main elements: i. Lawyer must know someone is violating duty ii. Violation is likely to result in substantial injury to the corporation.

1. Lawyer has no duty of confidentiality to the corp officer who disclosed the information bc the officer is NOT Ls client. iii. Lawyer must only refer up, then obligation is fulfilled. 3. Conflicts & Confidentiality in Entity Representation a. If L learns of wrongdoing, can L call media to reveal fraud by constituent of corporation? A: No. L has duty of confidentiality to corp & this is information that is relevant to the representation. i. Hypo 1: Officer asks to represent in PI case. You need conflict of interests to trigger Rule 1.7. In case where representing in PI case, no conflict. ii. Hypo 2: Officer comes in and says being sued by SH X. X is alleging officer committed fraud in IPO. Can lawyer represent corp and officer? You can under MR 1.13 under conflict analysis. There is a concurrent conflict (that there maybe a conflict) under MR 1.7. There is a riskpossibility that it will turn out that what the plaintiff said is true and you cannot do justice to both clients. No absolute prohibition to representing both. iii. For a lawyer representing a partnership the lawyer does not represent the general partner. iv. In close corp where lawyer works with the individual owners there is more of a risk that court will hold lawyer implicitly represents SHs. 4. Sarbanes-Oxley Amendments to the Model Rules a. Two rules amended by SOX: i. MR 1.6 this now provides greater discretion for attorneys to disclose confidential information where financial crime or fraud. ii. MR 1.13 made more responsive to corporate wrongdoing when lawyer learns about it. Lawyer shall refer matter to higher authority in company when constituent breaches duties. Lawyer only has to refer up no other obligations. Some say this does not go far enough because must know. b. May be situations where MR 1.13 permits disclosure and MR 1.6 does not: MR 1.6 1.6(b) depends on lawyers services you cannot always disclose if client has not used lawyers services Aimed to prevent crime or fraud that will injure someone else MR 1.13 Lawyers services do not need to be used to allow for disclosure Disclosure is permitted to prevent injury to the organization.

c. SOX required SEC to adopt rules regulating professional conduct of lawyers i. Rules affect lawyer who work for large public companies. ii. Mandatory reporting up obligation when there is misconduct. iii. Require disclosure to SEC of material violation of securities laws or breach of fiduciary duty. iv. Requirements follow reasonably believes standard not know standard. v. Also, SEC provides for permissive disclosure of confidential information. 5. Whistle-Blowing and Retaliatory Discharge a. MR 1.13(e) if L reasonably believes they are terminated for reporting up violation, lawyer must still report up to the entitys highest authority. i. If contract employee, can only be fired for terms of contract. ii. Often employee will be protected for whistle-blowing. iii. For non-lawyers, there is tort of retaliatory discharge.

iv. Associates in firm should insist on tort. b. Crews v. Buckman Labs i. Issue: Can lawyer bring action for retaliatory discharge when she is terminated for whistle blowing? ii. Holding: Lawyer is given the at-will employee tort of retaliatory discharge. c. In retaliatory discharge action, can L reveal confidential information? i. Courts have said yes & relied on MR 1.6(b)(5) which provides that L can reveal confidential info in self-defense where controversy between lawyer and client ii. Under MR 5.2, a lawyer is bound by the Model Rules even when the lawyer acted at the direction of another person. 1. Lawyer is not bound under MR 5.2(b) if acts in accordance w/ supervisory lawyers reasonable resolution of an arguable question of professional duty

Control of Quality A. Reducing the Likelihood of Professional Failure 1. Admission to the Bar a. In order to practice law, there are certain quality control mechanisms that must be passed: i. Bar exam - applicants for admission have to exhibit competence ii. Character can focus on character before, during & after law school. 2. Transient Lawyers - MR 5.5; MR 8.5 a. Model Rules sanction under MR 5.5(a) - L shall not practice law in a jurisdiction in violation of the legal profession rules of that jurisdiction, or assist another in doing so. i. Comment 2 permits the lawyer to delegate work to a paralegal so long as there is supervision and the lawyer maintains responsibility. ii. Comment 3 permits lawyer to give non-lawyer advice on what the law is. iii. Other Sanctions for violation of this rule: 1. Criminal Sanction (i) States have statutes making it a crime for person to practice law in state where not licensed to do so. 2. Fee Forfeiture Sanction (i) Ex. L gets $1M fee, client can refuse to pay fee and claim it is forfeited. L has earned his fee, but he did it in violation of public policy of NJ. b. MR 5.5(b) Lawyer not admitted to practice in this jurisdiction shall not: i. Establish an office or other systematic presence for the practice of law; or ii. Hold out to public or otherwise represent that L is authorized to practice in that jurisdiction. c. MR 8.5(a) Disciplinary Authority for Violating Unauth. Practice of Law Rule i. Not clear how this would work L may be subject to disciplinary authority both in this jurisdiction and another jurisdiction for the same conduct. ii. It is clear the jurisdiction where the lawyer is licensed can discipline. d. MR 7.5(b) Multijurisdictional Firms i. Letterhead must indicate who is licensed where ii. Any identification of lawyers in an office of the firm (on letterhead) must

indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.

e. Court can admit a lawyer pro hoc vice for certain cases which permits the lawyer to try cases in certain jurisdictions i. there is no transactional equivalent of pro hoc vice its only for litigation. ii. Birbrower v. Superior Court 1. Facts: Lawyers travel US doing transactional work. Client claims fee forfeiture bc not licensed to practice law in PA. 2. Holding: Ls ended up forfeiting portion of fee related to conduct in state not licensed in. Illustrates that practice of law is not clear in transactional work. iii. Courts have found a de minimis exception for practicing law. 1. Q: What if work is done electronically, is this the practice of law? 2. A: Under Birbrower, the definition of practice of law did not depend on presence in the state. (i) As a result Birbrower, the model rules were relaxed to permit some limited practice of law in non-licensed states. f. MR 5.5(c) lawyer not licensed in a jurisdiction may provide legal services on a temporary basis in a jurisdiction if the legal services are: i. (c)(1) Undertaken w/ another lawyer who is admitted to practice in the jurisdiction and actively participants in the matter; ii. (c)(2) Authorized by law or order to appear in such proceeding; iii. (c)(3) Related to pending/potential arbitration, mediation or other alternative dispute resolution; iv. (c)(4) Are not within (c)(2) and (c)(3) and arise out of or are reasonably related to the lawyers practice in a jurisdiction which the lawyer is admitted to practice. (this is an important BROAD exception) g. MR 5.5(d)- a lawyer admitted in another jurisdiction (and not disbarred or suspended anywhere) may lawyer may provide legal services in this jurisdiction (even though not licensed here) if the services: i. (d)(1) Are provided to the lawyers employer or it organizational affiliates 1. Ex: house counsel ii. (d)(2) Are services the lawyer is authorized by federal or other law to provide 1. Ex: May represent for federal income tax practitioner. Do not need to be admitted somewhere. 2. Q: Can a lawyer offer a client in a jurisdiction advice about law in another jurisdiction? (Ex. PA lawyer saying Cali will is not enforceable.) A: Does not matter the subject is law of another jurisdiction does not mean practicing law in that jurisdiction h. First Amendment Issues i. Ex. Online Will/Estate preparation tools helping people do things on their own. ii. Sellers of this type of software have first amendment right to sell their stuff, but is this considered practice of law? 1. Dacey - Lawyers sold book called How To Avoid Probate Court says this is NOT the practice of law 2. But what about electronic legal programs? (Quicken, LegalZoom) Are these software programs practice of law? (a) Generally yes 9th Cir. has said legalzoom = practice of law. (b) So why are these software programs practice of law but the book in Dacey is not? Bc book purports to just give advice, theyre open to interpretation. Whereas electronic programs are less open to interpretation. 3. Non-Lawyers Practicing Law a. The definition of practicing law is drawn very broadly to protect lawyers. i. It often involves broader areas that involve legal skill or knowledge

1. Ex. Salesperson explaining warranty ii. Certain activities by non-lawyers that involve appearance in court or representation of parties usually involve the practice of law. iii. Other aspects with giving advice or assisting can be viewed as practice of law under broad definition, but courts create exceptions because public interest may permit the activity: (e.g. the salesman explaining the warranty; real estate broker) 4. Supervisory Responsibilities MR 5.1, 5.2, 5.3 a. Supervisor Responsibilities Over Other Lawyers MR 5.1 i. MR 5.1(a) partners/managing attorneys in a firm must make reasonable efforts to ensure all lawyers conform to the Model Rules. 1. MR 5.1(b) direct supervising attorney must make sure subordinates comply with the model rules 2. MR 5.1(c) lawyer will be responsible for another lawyers violation of the Rules if: (i) (c)(1) the lawyer orders or (with knowledge of the conduct) ratifies the conduct involved; OR (ii) (c)(2) the lawyer is a partner/has managerial authority in the firm or has direct supervisory authority over the other lawyer who did the violation, AND knows of the conduct at a time when its consequences can be avoided or mitigated BUT fails to take reasonable remedial action. b. Supervisor Responsibilities Over Non-Lawyer Assistants MR 5.3 i. MR 5.3 basically the same as 5.1 but deals w/ conduct of non-lawyers 1. (a) a partner or lawyer who possess managerial authority shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the non-lawyer assistants conduct is compatible w/ Rules. 2. (b) lawyer having direct supervisory auth over non-lawyer shall make reasonable efforts to ensure the persons conduct is compatible w/ the Rules; 3. (c) lawyer will be responsible for conduct that would violate the Rules if done by a lawyer IF: (i) (c)(1) L ordered the conduct or (with knowledge of conduct) ratified it (ii) (c)(2) L is a partner or has managerial authority in the firm OR has direct supervisory authority over the person AND knows of the conduct at a time when its consequences can be avoided or mitigated BUT fails to take reasonable remedial action. c. MR 5.2 Responsibility of a Subordinate Lawyer - MR 5.2 i. MR 5.2 even if subordinate L acted at the direction of another lawyer/person in the firm, L still responsible if he violates a rule. 1. Exception: subordinate L does not violate the Rules if that lawyer acts in accordance w/ a supervisory lawyers reasonable resolution of an arguable question of professional duty. ii. So if theres a question as to the ethics of a certain act L not bound bc L would have to argue against supervisor (dont want to make Ls do that) iii. BUT if conduct is without question a violation L is bound even if he acted in accordance w/ supervisors request. B. Remedies for Professional Failure 1. Malpractice a. Elements:

i.

b. c.

d.

e.

f.

g.

Attorney-client relationship existed there are 2 parts to this: 1. Reliance by client reasonably believes that lawyer is supplying legal services or will supply legal services. 2. Lawyer knows of the clients belief or reasonably should know. ii. Lawyer must be negligent or in breach of contract 1. Held to standard of reasonable lawyer. iii. Proximate cause lawyers acts were proximate cause of Ps damages/injury iv. But for the lawyers conduct the P would have been successful 1. must show you would have won 2. but for more difficult to show in transactional context (see Viner v. Sweet) v. Damages 1. Many states have malpractice which permits the Pl to recover emotional distress damages, but not on breach of fiduciary duty action. REMEMBER: i. Breach of fiduciary duty is an alternative theory to malpractice Togstad v. Vesely, Otto, Miller & Keef i. Facts: 14 months after a hospital accident wife goes to lawyer about possible suit. Lawyer says let me look into it. He never calls back. She goes to another lawyer who thinks there is case. SoL against hospital has run so she sues first lawyer. ii. Holding: Pl met all malpractice elements and L was liable. Third-Party Client Equivalent i. There are some instances where the 3rd party is the equivalent of a client. ii. Ex. Beneficiary under will. If lawyer acted properly, heirs would have enjoyed benefit. iii. Point is sometimes people who are not clients may have standing to sue for malpractice. Expert Testimony- As part of showing the standard of care, does the Pl need to introduce expert testimony? 1. In many cases, an expert is needed at all phases, but especially for standard of care. 2. Ex. Togstad expert lawyer said you must consult hospital record and talk to doctor. Jury would not know that this is the standard of care. Violation of Rule as Evidence of Malpractice i. Q: Is violation of an ethics rule dispositive proof of malpractice? A: Violation is not per se breach of duty of care (malpractice), but it IS relevant evidence. ii. Majority rule it is evidence of a duty of care if the rule was intended to protect someone in position of P Viner v. Sweet i. Facts: Ps sue lawyer for provisions of transaction that are disadvantageous. ii. Analysis: But for is more difficult in transactional context. If requiring but for must show Pl would have better deal and other side would have agreed or Pl would not have agreed without negligence iii. PA Hypo: Woman enters into co-habitation with another man. H sues lawyer for not included cut off of alimony if co-habitation. PA court said it is malpractice to not explain basic legal principles.

2. Malpractice in Criminal Context a. General rule there is no causation unless D proves that D was innocent of the charge. i. If D is in jail for life, it is because of the crime, lawyer malpractice is not the proximate cause. ii. Some jurisdictions must show the conviction was reversed or overturned before the malpractice can proceed.

b. Majority rule D must prove actual innocence to maintain a malpractice action c. Hypo: Woman charged with tax fraud. US Atty makes offer for her to testify against others involved for immunity. Ws attorney does not relay the information. W pleads guilty in plea bargain gets light sentence, but could have had no sentence. W sues lawyer and court says must prove innocence and she could not because she pled guilty. 3. Disciplinary Systems a. There must first be an act justifying discipline b. Warhaftig disbarment for violation i. Facts: Lawyer does real estate closings. Lawyer deducts his legal fee before the closing. No harm to any client bc if the deal doesnt close he refunds what he deducted. Ls acts only discovered because of random audit. ii. Holding: Yes clear violation of MR 1.15(a) 1. ALWAYS a MAJOR penalty is at least suspension if not disbarment. 2. Lawyer was disbarred for this c. In re Austern suspension for violation i. Facts: Lawyer represents client. There is an escrow account where client will put $10k to fund any additional work. Clients at closing write check. Lawyer manages escrow account. Client tells Austern there is no money to cover the account. Lawyer does not tell anyone. It comes out that check was worthless and Austern as lawyer was disciplined. ii. Holding: Disciplinary proceeding; L is found liable suspended. 1. MR 1.2(d) violation for assisting client in fraudulent act. 2. MR 8.4(c) violation for Ls conduct that is dishonest. (here dishonest act applies in a lawyers personal life as well as professional life) d. Hypo: L tapes convo between P and Q. Under federal law, it is legal, but under state law, it is unlawful. Are there Rule implications? i. MR 8.4(c) is not applicable because it is not deceitful, fraudulent. It could be argued that it is dishonest. Dishonest is not defined by ethics rules. It is a common legal concept, however. ii. MR 8.4(b) not a violation to commit ANY criminal act. It is only a violation to commit a criminal act that reflects adversely on lawyers honesty, trustworthness of fitness. (e.g. speeding ticket doesnt count) iii. Q: What if a prosecutor files false charges? 1. A: MR 8.4(c) is obvious; also remember MR 3.3 violation for lack of candor to a tribunal; See also MR 3.8 (deals specifically w/ prosecutors) e. MR 4.1 Truthfulness of Statements to Others i. Prohibits: 1. false statement to third person or 2. failing to disclose material fact to third person when it is necessary to avoid assisting a criminal or fraudulent act by a client. 4. Lawyers Private Life a. Certain rules apply in a lawyers private life b. MR 8.4(c) prohibiting dishonesty, fraud deceit or misrepresentation; i. Ex: lawyer files a misleading drivers license application ii. MA takes 8.4(c) further and says a lawyer cannot engage in conduct that adversely reflects on his or her fitness to practice law. c. MR 8.4(b) commit a crime that reflects adversely on the lawyers honesty, trustworthiness or fitnessapply to a lawyers personal life 5. Racist and Sexist Conduct

a. You see incidents of this type of conduct from one lawyer to another. It often happens in depositions because adversarial situation and no court monitoring. b. This conduct is dealt with by courts power to sanction conduct. However, there must be sufficient gravity to sanction c. Comment 3 to Rule 8.4 says racist and sexist words or conduct violates MR 8.4(d) prejudicial to the admin of justice. i. If you interpret narrowly, must show actual prejudicial effect. However, if you interpret broadly (courts tend to use), is this conduct in conflict with system of administering justice. Is this kind of conduct good? ii. NOTE: MR 8.4(d) does NOT apply to lawyers personal life however. iii. MR 3.5(d) sometimes apply disruption to tribunal prohibition 6. Reporting Misconduct MR 8.3 a. MR 8.3 requires a lawyer to report misconduct of another lawyer or judge i. 8.3(a) If lawyer knows of misconduct that raises a question as to the lawyers honesty, trustworthiness or fitness, lawyer shall inform the appropriate authority. ii. 8.3(b) If lawyer knows judge has committed violation, shall inform the appropriate authority. b. MR 8.3 requires actual knowledge i. If the lawyer reasonably believes, there is no obligation to report, must KNOW. ii. Knows requirement seems to protect lawyers to the nth degree. c. Misconduct that raises questions about Ls honesty, trustworthiness, fitness i. Hypo: Lawyer goes to party and sees lawyer sell drugs. Is there a violation of professional ethics for selling drugs? MR 8.4(b) lawyer has committed a criminal act that reflects adversely on lawyers fitness. Yes- L must tell. ii. Q: What if lawyer blows SoL; does another lawyer have to report? A: This is probably MR 1.1 competence issue and not likely necessary to be reported. d. MR 8.3(c) makes an exception for confidential info that is protected by MR 1.6 a. If you come by information that is protected by Rule 1.6, you are off the hook and do not have to report it. b. BUT Comment 2 says L should encourage client to consent to the disclosure

C. Lay Participation in Law Business 1. Nonprofit Entities and Intermediaries: 830-844 2. For-Profit Enterprises: 845-851 3. May A Law Firm Own an Ancillary Business? 852-854

Marketing Legal Services

A. Advertising vs. Solicitation a. Advertising communication you direct to the population at large, offering legal services or letting know where available. Governed by MR 7.1 & 7.2 b. Solicitation addressed to specific person offering to represent them in a specific matter. Governed by MR 7.3 B. Advertising

1. Non-Deceptive Advertising Okay a. Bates v. Bar of Arizona i. Holding: Court held that advertising by lawyers was commercial speech entitled to First Amendment protection. 1. Bates was not limited to advertising and lawyers were freed to talk to the media. 2. Before Bates lawyer advertising was not allowed. 3. Following Bates, the Bars moved into regulation of advertising. b. General Rule: as long as ad is not deceptive, it receives commercial speech protection under First Amendment i. Bates said deceptive commercial speech is not entitled to protection, but nondeceptive is limited to some con protection. 2. No False or Misleading Communications a. MR 7.1 lawyer shall not make false or misleading communications about the lawyer or lawyers services. b. False or Misleading i. A communication is false or misleading if it contains a material misrepresentation of fact or law OR omits a fact necessary to make the statement considered as a whole not materially misleading. ii. Comment 3 statements that create unjustified expectations 1. Even if ad reports truthful achievements to the lawyer, it may still be misleading if presented in a way that would give a reasonable person an unjustified expectation: (i) Ex. I have 10 cases where $5M verdicts have been won. (ii) May be able to disclaim *e.g. saying results may differ. 2. Unsubstantiated comparison to other lawyers may be misleading if lead reasonable person to conclude that the comparison can be substantiated (i) Ex. Best trial lawyer in Phila. (ii) Statement of fact (with subjective element). No way for consumer to verify the statement. It is example of misleading statement. c. MR 7.2(b), lawyer may not give anything of value to a person for recommending the lawyers services EXCEPT a lawyer MAY: i. Pay costs of advertising ii. Refer clients to another professional under reciprocal agreement. Internet plans like a find a lawyer and like yellow pages, you can pay for cost of advertising. 3. Regulation of Non-Deceptive Advertising a. Remember non-deceptive advertising is Commercial Speech b. Gov't may regulate commercial speech, but must meet requirements: i. Regulation must serve Govt objective. ii. Regulation must advance that objective iii. Regulation cannot be more extensive than necessary to protect the govt purpose c. Zauderer v. Office of Disciplinary Counsel i. Facts: Ls place ad in 36 Ohio newspapers re: contraceptive device causing serious pelvic infection, talks about damages, our law firm representing these cases, etc. It used graphic images & illustrations to show damages. 1. L brings action challenging Ohio bar provision which banned soliciting or accepting legal employment through advertising containing information or advice regarding a specific legal problem. 2. Ohio argues it has an interest in protecting public from false legal advice.

ii. Holding: SCOTUS says because it is in writing, it can be monitored and there is no need for outright ban. Court says Ls reprimand from the Ohio bar must be reversed. Too hard to come up w/ bans based on what is tasteless/offensive. 1. Side issue: Court upheld Ohios requirement that contingent fee advertisements (i.e. you pay me nothing unless we win) must specify that the client might in any event be liable for COSTS. 2. Q: How does Zauderer relate to electronic advertisements? A: BECKER thinks electronic information comes & goes so it should be easier to make argument that it is should just be cut off. d. Some states attempt to regulate non-deceptive advertisements but regulation is overturned by Court in these instances: i. New York & Louisiana said ads could not have attention-getting techniques that lack relevance to getting an attorney and you couldnt portray characteristics unrelated to legal competence ii. South Carolina legal ads have to be primarily informative e. Basis for Prohibiting Testimonials in Ads i. Ban on testimonials relates to unjustified expectations & deceptivitiy of the ad. At very least, need a disclaimer in the ad. ii. Some states prohibit actors playing attorneys/clients

C. Solicitation 1. In-Person Solicitation Prohibited a. Defined as direct contact with a prospective client saying employ me. b. MR 7.3(a) prohibits in-person, live telephone or chat room solicitation from a prospective client when lawyers motive is pecuniary gain UNLESS: i. Person is a lawyer ii. Person is a family member, close personal contact or prior professional contact. 1. Note: No pecuniary gain if it is pro bono. 2. Note: MR 7.3(b) is an exception to 7.3(a). Even if in exception for inperson, have to leave alone if person requests so. iii. Two Cases Guide MR 7.3(a) 1. Ohralik v. Ohio Bar (i) Facts: Ohio Bar says no solicitation. L says Ohio ban is unconstitutional. (ii) Holding: Court says the ban is not overreaching thus its constitutional. (a) A situation where lawyer has powers of persuasion is a legitimate concern for the state. State can ban any in-person solicitation. 2. Shapero v. Kentucky Bar Assn (i) Facts: L wanted to send out letters to potential clients who had foreclosure action against them. (ii) Holding: SC says written communication (solicitation by letter) cannot be prohibitively banned. (a) SC says state may ban in person (some states permit it) (b) But states may not ban targeted mail 3. Subsequent litigation on TARGETED MAILING: (i) Wentworth: FLA had a 30 day ban on soliciting persons injured. They said that the reason was that it is regarded is intrusive, deplorable and beneath common decency. Reputation of lawyers is impaired by this solicitation. SC upheld restriction due to de minimis effect of regulation.

(ii) New Mexico has permanently banned direct mail solicitation of PI clients. 10th Circuit through it out. Temprorary, a la FLA is okay, but permanent bans are not. (iii) Maryland banned Ls from communicating with potential criminal Ds for 30 days. Court said no, cant do this, this does not reflect poorly on legal profession as does contacting accident victims. (iv) Iowa requires truthful information be presented in a dignified manner. c. MR 7.3(b) prohibits written, recorded, electronic solicitation IF: i. Prospective client has made it known a desire not to be solicited. ii. Solicitation involves coercion, duress, or harassment. 1. assumed that pressures that exist in face-to-face also exist in electronic d. MR 7.3(c) solicitations must include words Advertising Materials. STOPPED HERE IN CLAS DIDNT GET TO FREE SPEECH RIGHTS OF LAWYERS & JUDICIAL CANDIDATES (BELOW)

Free Speech Rights of Lawyers and Judicial Candidates A. Lawyer Talking to the Press About Pending Cases 1. Defamation a. Many brought against Lawyers b. Recent PA case. L makes statement at press conference and makes a defamatory statement about someone. c. As a matter of tort law, there is an absolute privilege from defamation in legal proceedings. If someone is covered by a privilege they cannot be sued. Judges and Lawyers are covered. i. What is the scope of that privilege? - The statement in question has to be relevant to the proceedings. During the course of a trial a L in open court or in documents filed with the court is always protected by privilege (even if defamatory). ii. Gray area: Does the privilege extend to statements made before the proceedings or after the proceedings to client or third parties (witnesses)? 2. Trial Publicity - MR 3.6 a. MR 3.6(a) L participating in judicial process shall not make statement out of judicial process that L knows or has reason to know will go to press and have a substantial likelihood to material prejudicing the proceeding. i. Press Communications generally are not viewed as protected speech 1. There was a case when an L made a statement in a complaint. When reporter asked for it the L mailed it to reporter. Court said that this is not protected. You mailed it to reporter which is not protected by judicial proceedings. ii. ONLY forbids statements that have substantial likelihood of material prejudice b. MR 3.6(b) Notwithstanding 3.6(a), L can say some things . . . i. (b) = basically a bunch of exceptions to (a) c. MR 3.6(c) Notwithstanding 3.6(a), an L can make a statement that would protect client from publicity initiated by someone else B. Lawyer Publicly Criticizing Judges and Courts See textbook pp. 883

C. Speech Rights of Judicial Candidates 1. 2. 3. 4. Extent to which judge can actively participate in a political campaign is up in the air Judges have rights to free speech. ABA rules that interfere w/ those rights can be struck down (as in White) ABA Code of Judicial Conduct CJC Rule 4.1(A)(13)- a judicial candidate (whether via election or appointment) shall not, in connection with cases or controversies, OR issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent w/ the impartial performance of the adjudicative duties of judicial office. See also Comments 7. 8, 11, 13, 15

D. Judicial Conflicts and Disqualification 1. Judicial Conflicts and Bias a. ABA has adopted code of judicial ethics they are in supplement b. Code says judge should avoid issues that cause judge to appear lacking impartiality. c. Appearance of Impropriety Standard i. Test for judicial disqualification = where judicial impartiality might reasonably be questioned d. Judge Making Public Comment on Matters before the Judge i. At one time ABA Rules prohibited judges from making a statement on a matter that may come before the judge. This has been thrown out. ii. TODAY, judges may make a comment on issues that may come before them.