Professional Documents
Culture Documents
ProfResp Barnett Fall10 Cases
ProfResp Barnett Fall10 Cases
ProfResp Barnett Fall10 Cases
Session 1.1
In Re Nunnery
Overview: Attorney was suspended for, inter alia, violating Wis. Sup. Ct. R. 20:1.1 by failing to
make any meaningful inquiry into the veracity of suspicious documents his client gave him as
the documents were obviously fraudulent and Supreme Court of Wisconsin was not persuaded
attorney was, as he implied, merely a hapless victim of an unscrupulous client.
Facts
Sole practitioner, without previous discipline problems
T.T: ED dispute, reached agreement with N on fees, but was never reduced to writing
Failed to file a response after requesting two extensions, and complaint was dismissed.
T.T. tried to contact N but was told he was gone. Convinced her to file a federal suit,
which T.T. sent a $200 cheque to N who put it in his own files and not into client trust
account. (never returned check and did not file the federal suit…check never negotiated)
On 2nd suit against employer, employer responded, but N/T.T. never replied (Which was
decided to be a no probable cause determination)
Referee found Nunnery never intended to reply, but only to conduct discovery for
federal court claim. T.T. then lost a right-to-sui by not filing, and T.T.’s claim was
barred.
VIOLATIONS
With T.T.
i. (M.R. 1.5.c)- Failing to reduce the 60/40 contingency basis in writing whereas the
contingent fee must be in writing, denoted expenses that are deducted, and the recovery if
any.
ii. (MR 1.15.a)- keeping property of clients separate from the attorney's property, that is to
say, against comingling; D failed to keep $200 check in trust account, kept it in a file
iii. MR 1.3 - Reasonable diligence, whereas Defendant failed to respond to ERD deadlines
resulting in a dismissal
iv. MR 1.4(a) (Clauses 3 + 4) - Failure to Communicate with client about status, meaning tha
thte lawyer must reasonably inform client about status of matter and comply with
reasonable requests for information
v. MR 1.4b - Communication to client to the extent reasonably necessary to permit the client
to make informed decisions regarding their representation, whereas Defendant never
intended to pursue the ERD claim
With J.A.
i. Knowingly advanced a claim not warranted by law w/o good faith argument, violating
RULE 3.1 that a lawyer shall not knowingly advance a claim or defense that is
unwarranted under existing law, except that of which is in good faith.
With D.D
i. Rule 1.4(b) not communicating strategy w/ D.D., failed to explain to extent reasonably
necessary to permit client to make informed decision regarding the representation-----still
did not file federal complaint. Did not explain strategy to D.D. about his strategy of using
one suit to get discovery on another suit. (D.D. tried to contact N but with not luck, but
later was told everything was on track. N failed to tell D.D. case was on hold). N told D.D.
he would refund retainer, but never did.
ii. Rule 1.3 failing to act w/ reasonable diligence (not performing work on D.D’s case)
iii. Rule 1.4a failing to respond to requests for information, and assuring that everything
was on track, not explaining N was putting case on hold for reason, and telling him he had
mailed the check. Not keeping client informed.
With E.J.
i. 1.1: failure to provide competent representation. (failure to meaningfully inquire into the
veracity of the suspicious e-mails and letters that his client claimed were sent by defendants
in the EJ case; blindly relying on client’s unreasonable assurances that the documents were
authentic, and that their extraordinary content were actually reduced to writing by alleged
authors; by ignoring sworn statements by original authors that documents were
fabrications, arguing the wrong legal standard, presenting an appellate brief with only one
page of argument. The referee found misconduct on this count (10) not b/c N failed to
discover his client’s fraud, but because he failed to make any meaningful inquiry into
the veracity of the suspicious documents. (described as obviously fraudulent) N
argues that 1.1 doesn’t apply b/c he intended to protect clients only. But the court says 1.1
is intended to protect the system of justice as well as individual clients. Further, his
suggestion that his clients misdeeds relieve an attorney of this obligation to serve and
protect the legal system is rejected.
ii. 3.1/4.4(a) took actions which he knew or was obvious that it was merely to harass or
maliciously injure another.
With Y.P
i. 1.3: failed to act w/ reasonable diligence and 1.4, (failure to keep clients reasonably
informed). Took up a 3k retainer check, but nunnery was non-communicative, and case
was dismissed. He continued evading her communications about refund and legal situation.
Improperly filed a complaint on their behalf. Did not inform Y.P of the judgment which
constituted a lien against her real estate.
ii.
V. R
i. 1.1 failed to provide competent representation to client, was told to move for a
substitution of parties but did not, and did not move for extension.
1.1: A lawyer shall provide competent representation to a client.
Poor brief writing
Failed to inform client about the costs she owed, thus creating a lien against her property.
He had taken on too much and the result was a disciplinary action…he was a very competent
attorney, but the demands were just too much.
Conclusion: 2-month suspension plus requirement pay back E.J for the sanctions imposed on
her.
Holdings: The Supreme Court held that:
(1) attorney's conduct in filing employment discrimination lawsuit on behalf of client in federal
court, without making any meaningful inquiry into veracity of purported e-mails, letters, and memos
from employer's personnel to client, which documents client had provided to attorney, violated
professional conduct rule requiring competent representation, and
(2) two-month license suspension, with reinstatement conditioned on attorney's payment of Rule 11
sanctions which federal court had imposed on attorney for filing frivolous employment
discrimination complaint, was appropriate disciplinary sanction for attorney's failure to provide
competent representation to two clients, lack of diligence in representing three clients, failure to
communicate with three clients, and other misconduct.
Model Rule Violations:
Rule 1.15 Safeguarding Property (c) A lawyer shall deposit into a client trust account legal
fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as
fees are earned or expenses incurred.
Nunnery took check for $200 from client (for fed. Filing fee to be paid) and placed it in
clients folder not in bank and he failed to file in federal court.
Rule 1.3 Diligence – A lawyer shall act with reasonable diligence and promptness in
representing a client.
Nunnery failed several deadlines resulting in the statute of limitations being up and/or
dismissal of cases.
Rule 1.4 Communication (a)(3) A lawyer shall keep the client reasonably informed abut the
status of the matter.
Nunnery didn’t return phone calls and was unavailable to his clients as their cases
progressed.
Rule 1.4 (b) A lawyer shall explain a matter to the extent reasonably necessary to permit
the client to make informed decisions regarding the representation.
Nunnery failed to explain to client TT that he never intended to pursue a complaint.
Court found that Nunnery violated a preamble to the Model Rules that his conduct was an
attack on the system of justice.
His client forged documents and the Court said that he should have questioned her
more and found that the documents were fakes.
a. Hypos:
Your client is convicted of selling drugs and sentencing has not yet taken place. She tells you that
she had been recently arrested for DUI and gave the police her friend’s ID. At her sentencing for
the drugs do you have to disclose that her sentencing report is inaccurate? Yes if the judge asks
you during sentencing but probably not otherwise.
1. The VA Ethics Committee says the lawyer should do nothing because their main
duty is to defend their client.
2. Rule 1.8 (b) and Rule 3.3
Lawyer fakes his death leading his wife to believe that he died. He hides for five weeks and then
PO’s find him. He is brought up on ethical violations. His defense is that it shouldn’t matter
because it’s a private matter. Should he be disciplined? YES. Dishonesty/Misrepresentation.
Can a lawyer be disciplined for having an affair? NO. Unless it was another lawyer who was
representing an opposing client.
1. Rule 8.4 (c) & (d)
B. Residency Requirements
a. ISSUE: Is the residency requirement to practice law in a state a violation of the Article IV
Privileges and Immunities clause?
b. Privileges and Immunities clause guarantees that non-residents of a state are treated fairly
State government can argue that P&I is not applicable because there is no discrimination against
non-residents
Session 1.2
Rule 8.4: Misconduct
-prof. misconduct for a lawyer to © engage in conduct that involves in dishonesty…. (d) the
administration of justice… (has an enormously broad reach).
Comment 3:
What may a lawyer disclose to the spouse of a client (in the hypo, where she's dead)
Attorney-client privilege
Rule 1.6
Comment 2
5th line (encouraged to seek…)
Maintain Confidentiality
DC bar (in hypo) took position that lawyer was going to have to make a decision
and he was going to have to act with the information he gathered when his client was then
alive.
1.6(b) has exceptions to confidentiality (pg22)
B3: probably doesn't apply b/c lawyers services have not been in furtherance of a fraud
committed by the wife….
Rule 4.1
(a) lawyer can't say something to husband that is flat-out wrong. (ie she's starting up a business etc…)
cannot misrepresent the situation.
(b) --> how is this juxtaposed against 1.6
Can't disclose a material fact but can't say something that's wrong.
Wife's conduct isn't fraudulent (if you look up 1.0 it's defined), but (b) concludes
Preamble on pg 3 (in relation to hypo with law firm advising on American
workers and foreign workers)
Paragraph 5
Paragraph 9 (pg 4) --> nature of law practice…
Explain the ramifications of the crime perpetrated but having done this, if she did not do this, the lawyer
had to keep his mouth shut.
Rule 3.3. Candor toward the tribunal
"is there anything omitted to this report"? -->
Hypo
Life-threatening hernia on a child. Surgery is performed. All is well.
Down road, new client says the same doctor has performed malpractice. Would you represent
client? Be impartial?
What if it opens up liability for lawyer malpractice
Hypo: Atty involved in extra-marital affair. Wife learned. Lawyer faked death. No representation
of client, his acts were outside the court of law. It was a personal matter that had ramifications for the
practice of law.
8.4c
8.4d
By faking his death he communicated his opinion of the legal profession.
8.4
8.5(a) (regardless of where it occurs)
Practicing law while suspended…may result in disciplinary actions not only in that state, but also
other states where you're permitted to practice as well.
Tolchin pg 546: Challenge to NJ req. that to practice law in state one must have an office, a bona fide
office in the state, and must take a course in skills and methods before you can represent clients.
Third circuit took the opinion that there is no discrimination against non-residents. B/c if there is no
discrimination, the clause is inapplicable. Ct says these requirements cover a resident of NJ as well
as non-resident. They're not imposing greater requirement against non-residents, but that all
attorneys that pass the NJ bar must have an active office in state and must take the course.
NJ requires non-resident lawyers practicing in NJ to maintain an office in NJ and to take a course
in NJ on NJ law.
This was upheld after being challenged as a violation of the P&I clause.
ARG for State: State gov. can argue that P&I is not applicable because there is no
discrimination against non-residents
-------------------
Rule 8.4
Rule 5.5b1b-and 5.5(c) and 5.5(a)
"other law" can encompass state law and commerce law.
Is there now b/c of repetition of these commercials a continuous or other
systematic and continuous presence in this jurisdiction for the practice of law.
5.5(c)(4)--> arise out of or are reasonably related to, but can only do so temporarily.
How long is temporarily? States construe this in different ways.
5.5(d) a lawyer admitted to a US jurisdiction and not suspended from practice may provide legal ser
Remember Cali lawyer on fed inc. tax matters who puts ads on television. It's possible that this
lawyer is allowed through irs rules or case law to provide this service in this jurisdiction where
the lawyer isn't licensed.
8.5a-
If Cali lawyer is violating laws of NC with these tv commercials, Cali lawyer might also be
disciplined by California.
A lawyer not admitted is subject to discipline…
An attempt by states to have some ability to deal with lawyers who are attempting to
retain clients in jurisdiction even though they're not licensed in jurisdiction.
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Murgatroyd; lawyers practice in Cali. Specialized in airplane disasters. Sent letters to relatives of
victims in Indiana. The Indiana SC said you can't do this b/c it violates Ind. rules and didn't put
'advertising material' on outside of envelope and didn't file solicitation with state bar. But Ind. didn't
have the second sentence in 8.5a. In all cases where they acquired clients they always associated
themselves with local lawyers. But they only did that after they had recruited client. Ind.Sc. said these
lawyers held themselves out to practice law and thus we have authority to you even though we
have never adopted the equivalent in the second sentence of 8.5a
Leis v. Flynt
Pro Hac Vice - an out-of-state lawyer who has been granted special permission to participate in a
particular case, even though the lawyer is not licensed to practice in the state where the case is
being tried.
FACTS: Larry Flynt was being sued due to his magazine and wanted to have NY attorney’s
defend him in Ohio. The attorney’s were not licensed to practice in Ohio and requested admission
pro hac vice. Ohio had no governing law or rule regarding pro hac vice admission. The trial court
denied the request and the State Supreme Court denied mandamus. Flynt sued in federal court
(which affirmed the ruling) and was granted cert by the SC of the US.
RULE: Absent a governing rule or statute, a summary denial of a request to appear pro hac
vice is not unconstitutional.
ISSUE: Is there a property interest in practicing law in a state where they are not licensed?
1. Supreme Court says that property comes from state and federal law or a mutually
understanding
2. The United States Supreme Court says the lawyers do not have a right to a
hearing to see if they can represent Flynn.
How can you argue for using lawyers Pro Hac Vice?
6th Amendment - Right of the D to have assistance of counsel.
1st Amendment Free Speech – Lawyers representing unpopular clients.
14th Amendment – D’s right to enter into a K.
Right to Interstate travel
Full faith and credit clause
14th Am DP guarantees which is applicable to states, and this is a state-level action.
Due Process Guarantee:
Procedural Due Process
Substantive Due Process
DPC says states shall not deprive us of life, liberty or property w/o due process of law
Question here is whether there was a Property-interest that the two attorneys have in
practicing law. If there is a property interest found here, then the state is obligated to follow
procedural due process (meaning state must give person(s) a hearing and the right to produce
evidence, must be fair, and must be proceeded by reasonable notice,) and if there is a violation of
these attorney's property rights, they must be given this hearing.
If that were to happen, the state cannot exclude them is that these two attorneys had
represented Mr. Flynt in the past (they were excellent attorneys).
Same court admitted them on earlier occasions
Where does this property interest come from?
USSC says that there is no property interest.
Property interest can be found in administrative agency, common law rule,
statute, but whatever it is, it must be explicit, not implicit.
That's the majority opinion!
Flynt's con. Rights to effective assistance of counsel. Notice in this case that it is the attorneys
rights, not mr. flynts rights, that are being considered. Pg 566 w/note.
To have the best lawyer might require getting an out-of-state lawyer. The 1st Am. Case
law says that 1st am is to protect against gov't suppression of new ideas. And those ideas
are rightfully received and disseminated (with limitations). Attorneys who represent
client in 1st am. Case may be the best b/c of their skill to communicate these ideas.
Community has a right to hear the ideas advanced, and the best lawyers to do this are not
licensed in the state.
So first am. Could very well play role in pro hac vice admissions in the furture.
Also, 14th Amendment of liberty guarantee, a liberty interest, in contracting with those we choose
and so forth. Does this now allow the attorneys a hearing as to why they would not be allowed pro
hac vice status? IS there a liberty interest being infringed? ( a parallel argument could be that he
was going to contract with a lawyer and we have a right to enter into lawful contracts. Flynt
proposed was not illegal, was not unlawful, just wanted to hire them to represent.
What about the right to interstate travel? SC hasn't pinpointed that right in the
constitution.
Full-faith and Credit clause of Art. IV Sec 1. as well. When you are sworn in as
attorneys, there's a judicial proceeding.
These are the const. provisions Barnett could identify that could be used to overrule Leis v.
Flynt.
El Gemayel v. Seaman
FACTS: P is a lawyer, who is admitted to practice in Lebanon, but not the U.S. He lives in the US
and was contacted by a NY woman (D) because her daughter had been kidnapped by her ex-husband
and was found in Lebanon. The P negotiated a K with the D and went over to Lebanon and got P’s
daughter back. The P’s only contact with NY was his phone calls with D and a trip to D’s house to
return luggage that the D had forgotten. P is suing because D refused to pay his bill. P argues that
he was not licensed to practice law in NY and therefore the bill/K is void.
Did the P’s conduct constitute the unlawful practice of law in NY? No. It was too attenuated to be
considered practicing in NY.
Court says practicing Lebanese law is practicing law.
Court rationalized that in our global world a per se rule banning any contact between NY and a
lawyer that is not licensed to practice in NY would be too restrictive in our global marketplace.
Court concludes the contacts were 'incidental and innocuous'.
Did it have all of the facts? What other facts could be pertinent?
court does not decide whether he's illegally practicing law in washdc or mass.
HYPO: P meets D at JFK in NY to travel together to Lebanon. Is this the practice of law in NY?
Birbrower would consider this physical presence in NY in equating this decision but the lawyer does
not have to come into state to be found practicing law in that state.
Session 3.2: Marketing Legal Services/Free Speech
Marketing Legal Services
ISSUE: Is this protected by the 1st Amendment?
Lawyer advertising is commercial speech and, as such, is protected by the 1st Amendment.
Bates v. State Bar (USSC)
Arizona restrained print ads by lawyers
RULE: The 1st Amendment Free Speech clause protects truthful advertisement concerning the
availability and terms of routine legal services.
RULES:
Rule 7.1 – A lawyer should not make a false statement about their services or the lawyer
themselves.
Can apply in 1-on-1 conversations
Can be false/misleading by omission/commission
Rule 7.2 (a) Allows a Lawyer to Advertise
A lawyer could be disciplined if someone he hired made false or misleading statements.
Ohralik v. Ohio State Bar. Assn.
RULE: A state may constitutionally discipline a lawyer for soliciting clients in person, for
pecuniary gain, under circumstances likely to pose dangers that the state has a right to
prevent.
FACTS: Attorney Ohralik (D), upon learning of an auto accident involving an 18 year old woman,
twice visited her in the hospital, whereupon she orally agreed to allow him to represent her. She
later sought to renege on the agreement. He also solicited as a client the woman’s passenger. The
Ohio State Bar (P) instituted disciplinary rules barring in-person solicitation of clients. D was
indefinitely suspended.
Bates was an attorney who advertised in paper. Issue is on print advertising
"routine legal services" and listed prices for each of those services.
In the course of the discussion the court justifies its position by saying that bankers are
allowed to advertise and that’s no problem.
Tangible things (vs intangible things)Easier to regulate banks
Everything was truthful. That kind of truthful advertising has benefits.
Rationale behind RULE: A state has a strong interest in preventing the perceived harms of atty.
solicitation, these being assertion of fraudulent claims, debasement of the legal profession, and
potential harm to the client by overreaching, overcharging, under-representation and
misrepresentation. The potential for coercion of the potential client is particularly strong in face to
face solicitation, as the atty., who is trained in persuasion, holds a great advantage over the client,
who is at best unfamiliar with the law and may be in a particularly vulnerable situation due to
whatever misfortune it was that led the atty. to seek him out.
Ct. says that the state is regulating conduct and not speech but there is a speech component
When speech is a part of conduct some constitutional protections may exist
The standard seems to be that:
The state must have a strong interest See Rationale.
The state must act reasonably
In person solicitation is different from print ads. States have a strong interest in regulating lawyers
ads.
NO injury is necessary the rules prohibiting solicitation are prophylactic measures whose
objective is the prevention of harm before it occurs. … the potential for overreaching is significantly
greater whena lawyer, a professional trained in the art of persuasion, personally solicits an
unsophisticated, injured, or distressed lay person.
Unlike the advertising in Bates, in-person solicitation is not visible or otherwise open to public
scrutiny. Often when there is no witness other than the lawyer and the lay person whom he has
solicited, rendering it difficult or impossible to obtain reliable proof of what actually took place
RULE 7.3 Ban on In Person Solicitation of those Known to Need Legal Services
There are some exceptions in the comments section.
An Omission CAN be sufficient to create a material Rule 7.1(see comment 2)
7.2 & Comment 5
Lawyer cant hire ad firm and say do what you want. If the ad firm violates the rules, the lawyer can
be held accountable.
State must have a reasonable basis in believing has a strong interest and has substantially advanced
this interest.
Lawyer cannot hire someone to go to crash site, go to hospital. AGENTS can very well violate the
rule by extension.
Dignified Advertising
Can a state prohibit advertising that it says is undignified?
For instance, NJ has a rule 7.2a which says the lawyer may advertise…all advertisements shall be
'predominantly informational' and no using techniques that depend on absurdity….including that
contain extreme portrayal…
Is the advert materially misleading? Failing to include a disclaimer?
Must an advertisement contain statements that submit one's experience or criteria that should be used in
choosing a lawyer.
PG 203 of MC.
Rule 7.3 A lawyer cannot in person solicit professional employment where there is a significant
economic incentive for doing so. Unless the person contact is a lawyer or has a… 7.3a.
7.3b You shall not solicit professional employment even if committed by paragraph a) if the
person does not want to be solicited or solicitation involves coercion and duress.
Ohralik would be charged under 7.3
Commment 1.Suggests that 7.3 applies only when the lawyer knows that the person or persons
being solicited is in need of legal services. If the lawyer is aware, then this rule is aware
The implication is if a lawyer does not know.
Supreme court says accountants are different than lawyers, accountants deal with objective material.
And people go to the accountants’ office….The economy depends on the free flow of information.
No duress, influence, undue influence, and the person doing the soliciting who unlike a lawyer is not trained in
the techniques of persuasion
Under Rule 7. 3, a lawyer can solicit another lawyer
Hypo: a lawyer who specializes in appellate criminal practice contacts a criminal defense trial attorney,
saying that he's the best one for appellate work. Is there a problem with that?
Yes perhaps. B/c on appeal, one of the basis that may be used by the appellate attorney, might
be, that he use ineffective assistance of counsel at the trial level.
Appellate attorney might have the incentive to pull the punches to do this.
Look at Rule 1.7(a)(2)
There's a conflict of interest here. b/c the appellate attorney has a duty to be loyal to his client
Edenfield v. Fane
FACTS: Fane was an accountant who wanted to solicite business from in person office stop ins.
Is it constitutional to ban an out of state accountant from soliciting business in another state through in
person office stop-ins? Yes. The Court found that accountants and lawyers are different and that
Florida’s ban on Fane’s tactics was unconstitutional.
The Fane case introduces some ambiguity into what the state can do.
Questions:
Does Fane constitutionally protect you from your state bar?
Is live telephone contact speech or conduct?
Speech would afford more protection and it would heighten the states burden.
The Fane Case introduces some ambiguity in what a state can do.
Shapero v. Kentucky Bar Assn. Targeted Mail towards those with legal problems
FACTS: P, a Kentucky attorney, applied to the Attorneys Advertising Commission of the KY State
Bar for approval of an advertisement he wished to circulate. The advertisement would be sent to
those individuals who, according to public records, were facing imminent foreclosure. The ad
apprised the recipients that avenues for forestalling foreclosure existed and recommended that the
addressee cal P’s office for a free consultation about their rights in this matter. While not finding the
advertisement false or misleading, the D found it to be in conflict with a KY Rule and forbade it.
RULE: A state may not prohibit the mailing of advertisements to a target audience believed to be in
need of particular legal services.
Targeted Mail and Advertisements are treated the same both lack the coercive impact and the
reader can easily discard.
RATIONALE: The 1st Amendment protects from state prohibition advertising which is neither false
nor misleading. The Court found that the policy reasons for prohibiting in person solicitation
(coercion, lack of evidence) were not present in this direct mail advertising.
The ABA Response to Shapero: Rule 7.3 was rewritten to permit targeted direct mail to potential
clients. However, where the communication is aimed at a person “known to be in need of legal
services in a particular matter”, the words “Advertising Material” must appear on the outside of the
envelope, if any, and a the beginning and ending f any recorded or electronic communication unless
the recipient is a lawyer , a member of a lawyers family or a someone with whom the lawyer has a
prior professional relationship.
What to Take from Zauderer, Ohralik and Shapero: Outright face-to-face solicitation can be
categorically banned. An advertisement, even one to a target audience and containing illustrations,
may be permitted. However, it must not be misleading and must disclose all or most information
necessary for a would-be client to make up his mind about using the lawyer’s services.
Zauderer v. Office of Disciplinary Counsel (Part IV)
Commercial illustrations are entitled to the first amendment protections afforded verbal commercial
speech: restrictions on the use of visual media of expression in advertising must survive scrutiny
under the Central Hudson Test. (the gov’t may bay forms of communication more likely to deceive
the public than to inform it, but there can be no constitutional objection to the suppression of
commercial messages that do not accurately inform the public about lawful activity If the
communication is neither misleading nor related to unlawful activity, the government’s power is
more circumscribed. The state must thus assert a substantial interest to be achieved by the
restrictions on commercial speech).
State’s law says that the purpose of the restriction on the use of illustrations is to ensure that
attorneys advertise ‘in a dignified manner’. state undoubtedly has a substantial interest in
ensuring that it’s attorneys behave with dignity and decorum in the courtroom. We are unsure
that the state’s desire that attorneys maintain their dignity in their communications with the
public as an interest substantial enough to justify the abridgement of their first amendment rights.
Even if that were the case, we are unpersuaded that undignified behavior would tend to recur so
often as to warrant a prophylactic rule.
Appellant may not be disciplined for his use of an accurate and nondescriptive illustration.-->
indeed, because it is probably rare that decisions regarding consumption of legal services are
based on a consumer’s assumptions about qualities of the product that can be represented
visually, illustrations in a lawyer’s advertisements will probably be less likely to lend themselves
to material misrepresentations than illustrations in other forms of advertising.
Conclusion: blanket bans on price advertising by attorneys and rules preventing attorneys from
using nondeceptive terminology to describe their fields of practice are impermissible
CT: ad not deceptive or false and were entirely accurate. requires a state to overcome a
burden of establishing that prohibiting use of such statements to solicit or obtain legal
business directly advances a substantial government interest.
ODC Argument: that it is similar to Ohralik (which ct says not a chance…different
concerns)
->also argues that the ad ‘encourages others to file lawsuits’ (Ct: not quite, again)
CT: state posits argument that there are some circumstances that a prophylactic rule is the
least restrictive possible means of achieving a substantial government
interest….but the state has not presented a convincing case for this. (state
attempts to distinguish between deceptive and non-deceptive legal ads)
-State argument proceeds from the premise that it is difficult for
unassuming consumers to distinguish between legal truth and
deception
(ct: Dalkon Shield statement was researchable and accurate as is)
Session 4.2
Florida Bar v. Went for It, Inc.
Procedural Posture: Appeal from judgment which affirmed district court's grant of summary
judgment to respondents, an attorney referral service and an attorney, in respondents' action
alleging the petitioner state Bar's rules violated the 1st and 14th Amendment of the U.S. Const.
Facts: Plaintiff, an owner of a lawyer referral service, filed an action for declaratory and
injunctive relief on grounds of a violation of the 1st and 14th Amendments based on Florida Bar
Rules creating what is essentially a 30-day blackout period for lawyers wishing to contact
through directed mail those who have been injured in an accident. FB was concerned with
protecting victims of disasters and relatives when they were emotionally vulnerable. That is not
the case here, Maryland was not trying to protect those who were emotionally vulnerable…in
conjunction with this, that time is of the essence when someone has been charged with a crime.
In civil suit, the potential plaintiff had three years with which to decide to pursue a claim.
Criminal D needs immediate action. Sixth Amendment says you have a right to counsel when
charged with a crime--> no such provision for civil suits. Fourth Circuit Said that privacy is not
an issue in the Maryland case b/c privacy of D has already been breached by the arrest and
booking. 4th Cir. Adds some caveats, a ban on personal solicitation would probably be sustained,
this case did not involved phone calls and so the Fickert case with letters targeted to the accused
….--
Issue: Whether the Florida Bar rules violate the 1st and 14th Amendment
Rule: The government may regulate commercial speech Commercial speech that falls into
neither of those categories may be regulated if the government satisfies a test consisting of three
related prongs: (1) the government must assert a substantial interest in support of its regulation,
(2) the government must demonstrate that the restriction on commercial speech directly and
materially advances that interest, and (3) the regulation must be "narrowly drawn." (Hudson)
Holding: No. The government has surpassed intermediate scrutiny on the restriction of
commercial speech by presenting a strong showing to satisfy each of the three Hudson prongs.
Analysis:
Prong 1: State’s substantial interest in support of regulation: protect reputation from
acts committed by lawyers that are beneath the public decency, in addition to protecting
the privacy and tranquility of personal injury victims against intrusive and unsolicited acts by
lawyers.
Dissent; Privacy interest is not applicable, citing Shapiro’s distinction between in-
person solicitation and direct-mail solicitations. The focus is on the mode that poses
danger, and the mode of mail is not dangerous to the public. Also cites Zauderer striking down a
ban on advertising even if some members find it objectionable does not warrant suppression of it.
Prong 2: Government demonstrated that the harm is real and the regulation
advances this interest of protecting against it being committed: cited the Fla. Bar study
which found that Floridians viewed direct mail solicitation in the immediate wake of accidents
are intrusions into their privacy which thus reflects poorly on the profession. Cites specific
examples of comments made in inquiry.
Dissent: argues that the sample size or selection procedures are inadequate. Majority says that it
does not read case law to require empirical evidence data to be introduced with a surfeit of
background information. Also says it is ‘common sense’ that this reaction happens.
Dissent: Rule is overinclusive, and also may prevent citizens from learning about legal options.
Maj. Says that the regulation, instead of being based on severity of injury, reasonably protects all
victims for a brief period of time. Also articulates the variety of other avenues people learn about
legal recourse (billboards)
RULE: Florida Bar rule prohibiting personal injury lawyers from sending targeted direct mail
solicitations to victims and their relatives for 30 days following an accident or a disaster is
constitutional.
CONSTITUTIONALITY TEST – (From Hudson – Intermediate Scrutiny) Government may regulate if
they satisfy:
1. The government must assert a SUBSTANTIAL INTEREST in support of the
regulation.
o Substantial Interest here is to protect the privacy ad tranquility of personal
injury victims and to protect the reputation of the legal profession.
2. The government must demonstrate that the restriction no commercial speech
DIRECTLY and MATERIALLY advances that INTEREST.
o State must provide evidence.
o P showed statistical findings evidencing the advancement of this interest.
3. The regulation must be NARROWLY DRAWN.
o Court found that FL Bar’s Rule was narrowly drawn and that there weren’t
any better alternatives.
o Doesn’t have to be the least restrictive means.
The Court seems really concerned about the public view of the legal profession being harmed.
HYPO: Can a lawyer post DUI check points and speed traps on his webpage?
No. Rule 1.2 (d) – Lawyer shall not counsel a client to engage, or assist a client, in conduct that
the lawyer knows is criminal. Rule 8.4 (d) – Lawyer shall not engage in conduct that is
prejudicial to the administration of justice.
B. Lawyer-Client Conflicts
Rule 1.8(a):
The rule provides procedural and substantive protection:
“A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership,
possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client
and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the
client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity
to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the
transaction and the lawyer’s role in the transaction, including whether the lawyer is representing
the client in the transaction.”
HYPO: Lawyer is a partner at a large law firm and General Counsel for a large company. His job with the
company is to find a law firm to help with legal troubles. Is there a problem with RULE 1.8 Conflict of Interest
with Current Clients? Can he hire a law firm that he is already partner in?
YES. There will be no conflict of interest if there is not a significant risk that the lawyers
representation of the company will be materially limited by the lawyers responsibility to the firm,
and he will be allowed to hire his firm. In this case, it doesn’t seem that the interests of the company
and the law firm are adverse, but contrarily that they are in synergy.
With regard to 1.8a.
RJR Hypo: lawyer in a firm, hired onto gen counsel for RJR. Is there a violation of 1.8a.
Does the lawyer have an adverse pecuniary interest by being employed in both places where RJR
had hired his firm previously and continues doing business with the firm with which he is employed?
What is the definition of 'business transaction'. --> Does the meaning of 'transaction' imply being
hired to an employer>?
Everytime you're hired by a client, it's a business transaction. If it is, then A(1)(2)(3)
….particularly (2), advising client….
What about "knowingly acquiring' a pecuniary interest adverse to client?
Does lawyer come within that part of 1.8a?
The way 1.8 is worded implies that the adverse pecuniary interest must come into existence
AFTER the
"acquire" and "acquires" --> present tense.
He already had partnership in law firm. And RJR knew this.
Time sequence: this case, he's already a partner in the firm so he already had the
adverse pecuniary interest adverse to the client
Some other Current Client-Lawyer Conflict Rules:
1.8(d) “Prior to the conclusion of representation of a client, a lawyer shall not make or
negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial
part on information relating to the representation.”
1.8(e) “A lawyer shall not provide financial assistance to a client in connection with pending
or contemplated litigation, except that:
a lawyer may advance court costs and expenses of litigation, the repayment of which may be
contingent on the outcome of the matter; and
a lawyer representing an indigent client may pay court costs and expenses of litigation on
behalf of the client.”
1.8(f) “A lawyer shall not accept compensation for representing a client from one other other
than the client unless:
the client gives informed consent;
there is no interference with the lawyer’s independence of professional judgment or with the
client-lawyer relationship; and
information relating to representation of a client is protected as required by Rule 1.6.”
1.8(j) “A lawyer shall not have sexual relations with a client unless a consensual sexual
relationship existed between them when the client-lawyer relationship commenced.”
1.8(k) “While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a)
through (i) that applies to any one of them shall apply to all of them.”
1.8(e) is especially important for indigent and near indigent clients. If П is injured and needs
money, Δ has money. Lawyer is working on contingency. Δ knows П needs money and uses procedural rules
to delay the trial. П asks lawyer for a loan to pay the bills. ABA and NY rules don’t allow it. The lawyer can
advance costs of litigation like testimony, etc., but no other support no matter how small.
o The original theory said it gives a lawyer an interest in a matter that might skew her judgment.
The lawyer may encourage a settlement to recoup her costs. This is ridiculous bc these loans are
likely much smaller than the other costs of the litigation.
o Some states allow humanitarian assistance.
o 2nd theory says if we allow this, lawyers will compete for choice clients by offering cash. People
will choose lawyers based on cash advances instead of on skill.
Session 5.2
Gellman v. Hillal: representing clients previously represented by spousal partner
FACTS: Gellman (P) sued Hilal (D) for medical malpractice. P was represented by Bogaty, whose
wife, Brody, had previously represented D in another malpractice action whose subject was the same
medical procedure challenged by P. D therefore moved to disqualify Bogaty in the current action.
D argued that if Brody divulged her knowledge to Bogaty, D would be prejudiced. D also argued
that, as Bogaty’s wife Brody had a financial incentive to aid Bogaty in the prosecution of P’s suit
since any contingent fee he earned would likely benefit the Brody-Bogaty marital household. D also
alleged a danger of inadvertent disclosure in the ordinary course of spousal intimacy of daily life in a
shared household.
ISSUE: May lawyers who are related as parent, child, sibling or spouse represent direct
adversaries if the clients consent after consultation? YES.
RULE: Lawyers who are related as parent, child, sibling or spouse may represent direct
adversaries only if the clients consent after consultation.
In the context of attorney-spouses working for opposing law firms, there is no per se rule of
disqualification based on marital status.
RATIONALE: In this case, D relied solely on the hearsay, vague and conclusory affidavits of his
counsel Thus did not allege facts sufficient for a court to infer that Bogaty is privy to confidences
or other strategic information that if revealed might injure D in this action or that even if she had
such knowledge, she has or will improperly divulge it to the D’s detriment.
Can’t assume that just because they are married they will not break the ethical rules for
lawyering though Bogaty and Brody must follow these rules.
Court here redefines marriage as two people living together, but are independent of one another.
Court says re: marriage that there is a significant risk of inadvertent breach of confidence…
"marital couple is an association of two individuals with separate emotional and intellectual makeup….it's
two people who are living together…
See: canon 9 pg 252 of Ny MC.
1.7 Comment 11
-family relationship will interfere w/ loyalty and independent professional judgment
Relation to lawyer (parent, child, sibling, spouse) may not represent unless client is disclosed and
has fully consented
How far do blood relationships go?
"For example…including but not limited to"
Can be construed very broadly
People v. Zimmer
FACTS: Zimmer (D) was the organizer and manager of a business, Zimmer, Inc. For years he
managed this corporation with no reins being placed on his managerial conduct by the investors.
During this regime, no shareholders meetings were ever held and in the midst of a corporate
financial crisis, he elected to surrender his corporate holdings and resign. The dissatisfied
stockholders retained the District Attorney for the county as corporate counsel, who was also a
shareholder in the corporation. The DA, while still being corporate counsel and a shareholder,
brought charges against Zimmer and trial ensued. Zimmer argued that this was a conflict of interest
and the DA should not be allowed to try him.
RULE: A District Attorney cannot bring suit against the former manager of a corporation for
which he is also corporate counsel and a shareholder. He must recuse himself.
RATIONALE: The presumption of impartiality is undermined when there is a clear conflict
of interest. The District Attorney’s mission is not to convict but to achieve a just result. This is
important because DA’s have a wide latitude to operate: they decide whether to try the case,
whether to offer a plea deal, what charges to bring, etc.
Commonwealth v. Ellis
FACTS: By Massachusetts statute, the Automobile Insurers Bureau of Massachusetts was
formed. The AIB is a voluntary, non-profit association of MA’s automobile insurance
companies which represents the interests of those companies in regulatory and rate-making
proceedings. Also, the IFB, a private investigative agency, was established for the prevention
and investigation of fraudulent insurance transactions. At its outset the IFB was paid for by the
AIB. A later statute mandated that the Office of the Attorney General should designate
attorney’s to work with the IFB in investigating and prosecuting fraud matters. The AIB not
only provided money to the IFB but also indirectly to the Attorney General’s office. Defendants
who were indicted for insurance fraud moved to dismiss indictments or to disqualify Attorney
General's office from prosecuting indictments on grounds that such office was not a disinterested
prosecutor. The Superior Court denied motion. Granting application for direct appellate review,
the Supreme Court held that: (1) statutes providing for insurance company underwriting of
insurance fraud investigations and prosecutions, and for referral of such cases to the Attorney
General's office by an Insurance Fraud Bureau (IFB) financed by insurers, does not compromise
disinterestedness of prosecutors so as to violate due process principles; and (2) defendants failed
to demonstrate that statutes violated due process as applied to them.
RULE: In the absence of evidence showing that a prosecutor was not disinterested in a
criminal proceeding, any inquiry into why a prosecutor exercised his or her discretion to
prosecute would be inappropriate.
The prosecutor must retain total control over the course of the investigation and all
discretionary decisions.
o A victim’s direct funding of substantial expenses of a prosecutor’s office would raise
a question of control because the prosecutor may lose or appear to lose his
impartiality because he may be beholden tote victim for assisting him.
RATIONALE: The D’s argued that the prosecutor did not have complete control because
his office was funded by the insurance agencies. The Court found that this was not true
and that it is in the public interest that victims and others expend their time, efforts, and
resources to aid public prosecutors. The Court said that this financial influence was a
“paper tiger” because if the insurance companies threatened or did actually withdraw their
funding, the DA’s office could get it from numerous other places. So in essence this would
not be a viable threat.
Footnote 2: lawyers immediately stopped from practicing law upon charge of crime.
Supreme court of Mass. Says we're dealing with an appaerance of impropriety, which is a facial challenge
Two types of links between fraud division and insurance industry that are potentially problematic
1. Funding mechanism/ Collaboration
a. No appearance of impropriety.
2. Powers
Legislature has delegated to the private entity certain powers with regard to the funding
mechanism between
Standards 3-1.3, 3-3.8 and 3-3.9 of the A.B.A Criminal Justice Standards (Prosecution Function)
Pg 440
HYPO: Can you represent a couple that wants to adopt a baby and the biological mother form whom
they adopt?
Rule 1.4 (b) – Need to explain to client so that client can make informed consent.
Are these adverse interests? At present no but possibly in the future.
Say that even though it was not asserted directly against the other staff members, it creates a potential
conflict between state and staff members, and then creates an apparent, if not actual, conflict of interest.
State opts to eliminate these seven individuals from the pleadings through amendment.
If the conflict is no longer there by amending pleadings, how come Ardis can only still represent
one group or the other?
if there is no longer direct adversity (1.7a1), then why Ardis not represent both: it says it can
only represent one if the pleadings are amended, and if they amend it, there is no direct adversity.
Perhaps the former client’s confidences.
1.79b4)…state cannot give consent because state has a duty to uphold public confidences.
1.7Comment 24
-a lawyer may take different positions.
Conflict exists if there is a significant risk that a lawyers action on behalf of one client will
materially limit the lawyer’s effectiveness in representing another client
*positional conflicts of interest; position with one client is different than that of another client.
Fiandaca v. Cunningham
FACTS: A class of P’s comprised of female inmates of the NH (D) penitentiary system brought
action in which they claimed that they were denied equal protection because male inmates enjoyed
superior facilities. They were represented by New Hampshire Legal Assistance, a public-interest
organization. NHLA also represented a class of students at a state school in an unrelated matter. At
one point the D offered to convert one of the school buildings into a penitentiary for women. The
students represented by NHLA vehemently opposed this, and the convict P’s rejected the offer. A
trial ensued, and the district court held that the D denied equal protection to female convicts and
ordered that a facility be built. The D appealed, contending that the Court should have disqualified
NHLA form representing the P class.
RULE: An attorney may not represent two clients when a settlement offer made to one is
contrary to the interests of the other.
RATIONALE: Model Rule 1.7 prohibits an attorney form representing a client if the
representation of that client may be materially limited by the lawyer’s responsibilities to
another client. Thus, when a settlement offer is made and a lawyer owes allegiance to a party
opposed to that settlement, that lawyer cannot use his independent judgment in advising his
client. At this point a conflict exists. Here, NHLA could not recommend the D’s settlement
offer because of a duty to another client, and it therefore should have been disqualified.
It is usually possible for a potential conflict to be waived. This requires: (1) a reasonable
belief by the attorney that he can zealously represent both interests, and (2) a knowing consent
by the affected parties. The Court here however believed the conflict to be real and not
potential.
Equal Protection claim challenging the facilities available to female inmates.
NHLA represents the П class.
NHLA also represents the Garrity class, which was challenging conditions at Laconia State
School.
On the eve of trial, the state offers to use Speare College at LSS for female prisoners.
NHLA rejects the offer and the state moves to disqualify it.
Argument is the lawyers represent both classes and can’t make good judgment about what is
the best deal for both.
NHLA’s duties to the Fiandaca class
NHLA’s duties to the Garrity class
Court:
“It is inconceivable that NHLA, or any other counsel, could have properly performed the role of ‘advocate’ for
both П and the Garrity class, regardless of its good faith or high intentions. Indeed, this is precisely the sort of
situation that Rule 1.7 is designed to prevent.” : Dist. Ct. Erred in permitting NHLA as Π’s counsel after
trial had become apparent
--Disqualification pursuant to Rule 1.7
CT: NHLA owes plaintiffs undivided loyalty, and to ensure that the offer received full and fair
consideration by members of the class
But what remedy?
The case had already been tried in lower court, so the higher court said they wouldn’t
reverse.
NHLA didn’t do anything in the trial that appeared to be a conflict.
The lower court judge refused to award the remedy of Speare Cottage.
1.4a/b, 1.2a, 1.8g, all of which say the client makes the ultimate decision.
Re; mentally retarded, rule 1.14.
Pg 243: there is at least the appearance of having been tainted by NHLA’s conflict of interest. This
smacks of an appearance of impropriety.
1.6b: a lawyer may reveal (not must)…to the extent that the lawyer reasonably believes necessary.
4.1(b):
Hypo: if you work for government agency, and you find some statute is being violated or
objectionably effected, can you sue the government? Could the DA sue the county in a civil matter?
What if a gov’t attorney is a volunteer for a volunteer legal group, can government represent
environmental group in blocking the environmental license.
Imputation (Rule 1.10(a): “While lawyers are associated in a firm, none of them shall knowingly represent a
client when any one of them practicing alone would be prohibited from doing so by rules 1.7 or 1.9 unless the
prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk
of materially limiting the representation of the client by the remaining lawyers in the firm.”
o Courts have carved out an exception for legal services and public defender offices. These
lawyers are salaried.
Session 7.2
North Carolina State Bar v. Nifong
Benjamin Weiser, Doubting Case, A Prosecutor Helped the Defense
Session 8.1
Simpson v. James
FACTS: Simpson (P) operated a restaurant, which she desired to sell. She contacted James (D), an
attorney who had previously represented her, concerning a sale. Oliver (D), James Partner,
facilitated a transaction between P and Tide Creek, Inc. A deal was arranged wherein the business
was sold for $500,000, $100,000 of which was paid down, with $400,000 payable in notes, secured
by TC, Inc. stock. The business proved unprofitable for TC, which eventually went bankrupt. P
sued D’s, who had represented both sides in the transaction, contending that it had constituted
malpractice for them to do so. A jury awarded P $200,000 and an appeal was taken.
RULE: An attorney may commit malpractice by representing both sides in a transaction.
RATIONALE: While representing both sides is not inherently impermissible, it may make it
difficult for an attorney to represent one side, the other, or both as zealously as professional
standards require.
Tide creek, the purchaser, is devoid of assets, and Simpson is trying to recoup as much as
possible. Sues law firm for malpractice. If he did not fulfill the fiduciary duty, he will be
Did a lawyer-client relationship come into existence between James and Simpson @ January 9th
meeting? Yes.
James argued the opposite. Simpson apparently asked him to represent her, never gave her advice or
time.
The test seems to be what the client reasonably believed.
What happened after tide-creek purchased HP enterprises? The firm continued to do estate and
tax work for Simpson. So firm was representing her.
Model Rule 1.10 cmt 2. Second sentence.
Did Mr. James mislead Simpson to the point that he violated professional ethics? What did he say to
her?
Rule 4.1 Did james violate rule 4.1?
Jan 29th he encouraged her about the viability. She added that she relied on those assurances.
What is 4.1 getting at: False statements of material fact.
Were those statements factual? Probably not, because they were opinion, but it can be argued either
way.
Were those statements material?
4.1-2 applies to facts, not to opinions. Is that fact or opinion?
What is the pertinence of the conflict of interest? is it at all relevant to liability? Arguably no.
because if everything had been done well, there would have been no liability or neg. But the conflict
of interest shows that there is something that should have been done or not done. Conflict of interest
made it appear and easier to demonstrate that something wasn’t right.
Simpson and the Joneses sold their catfish restaurant to Tide Creek.
Buyers and sellers were represented by Ed Oliver, who had long represented the restaurants
when run by Simpson’s late husband.
Oliver got the buyer’s personal guarantees on a note, a lien on the stock of Tide Creek, and
restrictions on the operation of the business (good things that a seller would want).
o He didn’t get a lien on the inventory or any interest on insurance proceeds.
Tide Creek had an insurance loss and David James of Oliver’s (now former) firm helped it
collect $200K in insurance.
Tide Creek defaulted on a $200K note, Simpson consulted James about her options.
Tide Creek then declared bankruptcy. Simpson’s note is worthless.
Simpson sues James and his firm. What is her theory of liability?
o Malpractice, negligence
What did Oliver and James do wrong and what does the alleged conflict have to do with it?
o Either the lawyers were guilty of malpractice (negligence) or they weren’t.
o Theory: the conflict enabled П’s lawyers to explain to the jury why the Δ failed to get better
protection. In effect, it shifted the burden of proof to Δ to show that an unconflicted lawyer
would have fared no better.
o П’ lawyers love conflicts. Why?
Is it bc of burden shifting?
James’s defense: I did not represent Simpson on the note. Not plausible.
Could the law firm have gotten informed consent for the multiple representations?
o Generally not a good idea unless the client interests are strongly aligned, not so here.
o Informed consent requires information and the amount of information depends on the
client’s sophistication.
o The value of independent counsel.
Is it possible to have informed consent to a conflict that has not yet arisen, whose details cannot be foreseen,
and which may never arise? YES.
Rule 1.7 comment 22
Restatement § 122 comment d
Considerations: sophistication of client, independent counsel, informed to the risks.
Public Service Mutual Insurance v. Goldfarb
FACTS: Goldfarb (D), a dentist, was accused by one of his patients of sexually assaulting her while
she was under sedation. Criminal charges were filed, and he was convicted. The victim filed a civil
suit against D, which he tendered to his professional liability carrier, Public Service Mutual (P). P
responded by seeking a declaration that the alleged act did not trigger a duty to defend and
indemnify D.
RULE: Sexual assault by a doctor against a patient may trigger a professional liability
carrier’s duty to defend and indemnify in a subsequent civil suit.
RATIONALE: To the extent that a jury in a civil suit finds that injury upon the victim was
unintentionally caused, the duty to indemnify will arise. Since this determination cannot be
mad prior to trial, P must defend D for as long as the potential of a duty to indemnify exists,
the duty to defend also exists.
The reasoning used in arriving at the rule here is fairly universal. The duty to defend
arises when any aspect of an action might be covered. The terminology used is “the duty to
defend is broader than the duty to indemnify.”
PSMI: what creates a conflict of interst here? Recovery of one would be the detriment to the other.
Where is the conflict of interest? Whether the conduct intended to harm. Damages are pursuant to
this.
If the injury was negligently sustained, then that would mean the policy provided coverage. If it was
intended, then it wouldn’t cover. Thus, the lawyer is trying to argue that they are intended acts.
Goldfarb wants to say these were not intentionally inflicted injuries. One lawyer, a lawyer
representing the insurance company and Goldfarb, is an impossible situation.
Court of App. Says when you have a situation like this, where the interest of the insured diverge
from the insurance company. Dentists must have a lawyer paid for by insurance company that
represents the dentists interests. The alleged injuries may be covered by conduct of the policies.
Hypo: plaintiff sues defendant for injuries for car wreck. D has two insurance policies. One for car
and one for home. Company A and B represent each. Company A says we’re not going to get
involved in this b/c it is a matter of the car, not a house. Plaintiff was saying it was injured b/c the
problems with the car and the driveway(home). So homeowners insurance company is trying to get
out of case. Can one attorney represent both the D, company A and company B? Defendant wants to
have both representations of a and b. but he’ll need the third. Company relies on Goldfarb to get to
this conclusion. HOA Ins. Said if we lose this suit, we want our counsel present. Having abandoned
thehomeowner, you’re simply going to go unrepresented. Having breached its policy, new York
court did not look kindly on the hoa ins. Co.
Allstate Ins. Co. v. Aetna Cas. & Sur. Co.
FACTS: Linda Friedman was driving her neighbors car and injured Yvonne Goellar. The
neighbors were insured by P and P assumed complete control of Friedman’s defense. P learned two
years later that Friedman was insured by D. P lost the case against Goellar and after the case sued D
to recoup their losses. The Court found for D, Aetna.
RULE: Where a conflict of interest between the insured and the insurer requires the insured
to hire independent counsel the insurer has a contractual duty to pay to defend the lawsuit.
RATIONALE: Court found that by the terms of the insurance policy that P was obligated to
pay to defend Friedman. The Court was swayed by the two year interval from the accident to
when D was told of the accident. Court found that P’s two year delay in informing D of the
accident and resulting action prejudiced D’s rights.
Spaulding v. Zimmerman
FACTS: P was injured in an automobile accident where the D was the driver. P had lots of
injuries and went to the doctor. Before settlement, D wanted P to see a doctor of D’s
choosing. P went to this doctor. This doctor concurred with the other doctors and in a
report to the D’s counsel informed them that P also had aortic aneurysm, which is a life
threatening condition mandating surgery to repair. P did not know of this condition and the
D or his counsel never informed him. The sides settled for a far less amount of money than
had the P known of the aneurysm. Later, the P undertook a routine physical where the
aneurysm was discovered. The Doctor went back to the original X-Rays and verified that
the aneurysm was from the accident. P sued D to nullify the original settlement. The Court
found for the P.
RULE: The court may vacate settlement which court has approved on behalf of
minor suing for injuries for mistake even though mistake was not mutual in sense
that both parties were similarly mistaken as to nature and extent of minor's injuries,
but where it is shown that one of parties had additional knowledge with respect
thereto and was aware that neither the court nor the adversary party possessed such
knowledge when the settlement was approved.
MODEL RULES:
RULE 1.6 CONFIDENTIALITY OF INFORMATION: A lawyer may reveal information
relating to the representation of a client to the extent the lawyer reasonably believes
necessary (1) to prevent reasonably certain death or substantial bodily harm
RULE 3.3 CANDOR TOWARD THE TRIBUNAL
RULE 4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS – A lawyer shall not
knowingly make a false statement of material fact to a 3 rd person.
Spaulding
-doesn’t find out about aneurysm until years later that his doctors believed resulted from
accident. He goes back and wants additional damages b/c the attorneys weren’t open b/c they
didn’t reveal this material fact for a far more favorable settlement. This is a case before MR.
Updating the case, what rules would be applicable to the attorney for the defendants that say they
were permitted to disclose evidence?
1.6b1/1.6a…a lawyer may reveal to representation to prevent reasonably certain death or bodily
harm. This presupposed that it is reasonably certain
What is meant, ‘to prevent reasonably certain death or substantial bodily harm’?
Paragraph 1-6-16 of Scope: rules do not exhaust
Must the lawyer for the defendants disclose under the MR?
Rule 3.3, candor to the tribunal. What part: Section a1. Shall not knowing make a false statement
of fact or tribunal. If you look at comments, even failure to disclose would be misrepresentation
to court. They knew about it and signed off. That would be considered. Comment 3. Attorney
simply sat silent and said nothing. No affirmative statement.
Rule 3.3c—applies throughout court proceedings. Apply under Paragraph A. Notice under 3.3c.
Even if compliance requires violation of rule 3.6 Confidentiality is superseded by candor to the
tribunal.
Rule 8.4c/d. Conflict dishonesty deceit or misrepresentation.
Rule 1.2d. a lawyer should not counsel/assist a client in conduct that a lawyer knows is
fraudulent. 8.4 does cover deceit. So this is a type of fraud, and thus within 1.2d as well. A
statement containing a half-truth is the same as a false statement. …that undisclosed facts….and
it is immaterial as to whether it is relevant to the value of it.
Also know rule 1.2 comment 10. Pg 14. “may not continue assisting”…lawyer must withdraw
from representation. IN some cases, withdrawal alone may be insufficient. Must make a noisy
withdrawal
1.2d….conduct that the lawyer knows is criminal….is there a crime here? No disclosure? Might
there be a crime? Reckless endangerment. A person is guilty of reckless endg if with indifference
to human life, acts with reckless
Rule 4.1. in course of representing client, a lawyer shall not make false statement of material
fact. Now if the lawyer for the defendants has made court to believe. Might that third person.
Comment 1.
4.1b. in course of rep. not knowingly
4.1b1. does 4.1b require disclosure ? Udner 4.1, under cmt 3. Which says, in extreme cases, a
lawyer may be required to disclose
Fickett v. Superior Court (Client-Third Party Conflicts)
Contract of employment was between guardian of estate of ward and attorney. But privity of
contrat was present, but not to ward. What does the court conclude here/ they disagree with atty’s
argument. Court says there is a rebuttable presumption. Notice comment for rule 1.14. Comment
4.
Rule 1.2, comment 11. When lawyer is fiduciary, he has special obligations.
Lawyer knew or should have known. So if the lawyer knew or should have known, the lawyer
had an obligation b/c injury was foreseeable.
Factors 5 and 6 rare not explained. But court says with regard to 5 and 6, refers to atty having
The guardian’s duty to the ward was in some sense imputed to Fickett, presumably because
Fickett was representing the guardian not in the guardian’s personal capacity, but in his
fiduciary capacity
Fickett involved an action filed by the present conservator of an incompetent's estate against the former
guardian and that guardian's attorneys, claiming that Fickett, as the attorney for the former guardian, had
been negligent in failing to discover that the guardian had embarked upon a scheme to liquidate the
guardianship estate by misappropriation and conversion of funds to his own use, and by making improper
investments. The Pima County Superior Court denied summary judgment in favor of Fickett, rejecting the
argument that absent a showing of fraud or collusion, the attorney owed no duty to the ward and a cause of
action for malpractice could not be maintained. The Court of Appeals affirmed that determination, holding:
The general rule for many years has been that an attorney could not be liable to one other than his client in
an action arising out of his professional duties, in the absence of fraud or collusion . . . In denying liability
of the attorney to one not in privity of contract for the consequences of professional negligence, the courts
have relied principally on two arguments: (1) that to allow such liability would deprive the parties to the
contract of control of their own agreement; and (2) that a duty to the general public would impose a huge
potential burden of liability on the contracting parties.
******
We cannot agree with petitioners that they owed no duty to the ward and that her conservator could not
maintain an action because of lack of privity of contract. We are of the opinion that the better view is that
the determination of whether, in a specific case, the attorney will be held liable to a third person not in
privity is a matter of policy and involves the balancing of various factors, among which are the extent to
which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of
certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct
and the injuries suffered, the moral blame attached to the defendant's conduct, and the policy of preventing
future harm.
Id., 27 Ariz. App. at 794-95, 558 P.2d at 989-90. The Court, rather than abolishing a privity requirement
entirely, however, allowed the action by the successor conservator to proceed on the basis that when an
attorney undertakes to represent the guardian of an incompetent, that attorney assumes a relationship not
only with the guardian but also with the ward. That rationale is consistent with a later holding that an
attorney for the Special Administrator of an estate has a "derivative fiduciary duty" to the successors of the
estate. Matter of Estate of Shano, 177 Ariz. 550, 869 P.2d 1203 (App. 1993). The so-called "Fickett test"
was subsequently applied, however, to deny standing to a workmen's compensation carrier to pursue a
malpractice claim against the attorney for parties to whom it was paying benefits for his failure to file an
action against a potentially liable third party before the expiration of the statute of limitations. Travelers
Insurance Company v. Breese, 138 Ariz. 508, 675 P.2d 1327 (App. 1983). The Court's rationale was that the
carrier, Travelers, was not intended to be the prime beneficiary of the attorney-client relationship between
the attorney and the compensation claimants, and it was not foreseeable that the attorney's failure to file the
third-party action on time would prejudice any rights of Travelers.
Subsequently, in Donnelly Construction Co. v. Oberg/Hunt/Gilleland, 139 Ariz. 184, 677 P.2d 1292 (1984),
the Supreme Court expressly rejected the imposition of any requirement of privity to maintain an action for
professional negligence, and had disapproved prior decisions, including Chalpin v. Brennan, supra, which
had purported to impose one. The only appellate decision dealing with the impact of Donnelly on legal
malpractice claims is Franko v. Mitchell, 158 Ariz. 391, 762 P.2d 1345 (App. 1988), which was an appeal
from a summary judgment entered in favor of a lawyer, Mitchell, on breach of contract and legal
malpractice claims brought by a Ms. Franko. Franko had agreed to loan her boyfriend, Markoff, a sum of
money, and Markoff had asked Mitchell to draw up the promissory note evidencing the obligation to
Franko. Both Markoff and Franko went to Mitchell's office to review and sign the note. Markoff
subsequently defaulted and disappeared. The Court held that there was a genuine issue of material fact as to
whether an attorney-client relationship had been formed between Mitchell and Franko, which required the
reversal of the summary judgment entered below.
The Court then went on to discuss Franko's contention that she was entitled to bring a legal malpractice
action against Mitchell even if she was not his client. Noting that the Supreme Court had in Donnelly
abolished any requirement of privity in professional negligence cases, the Court ruled that Franko's ability
to pursue malpractice claims against Mitchell would turn on the application of the test announced in Fickett
v. Superior Court, supra. The Court then offered the following explanatory comment concerning the
"Fickett test":
We are of the opinion, however, that the test utilized in Fickett does not create a distinct duty of care
towards a third party, as Franko suggests, but instead allows a third party in certain situations to sue an
attorney for negligence to his client. That is, under the Fickett test any duty owed by an attorney to a third
party is derivative of the duty owed by that attorney to his client.
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THE ADVOCATE WITNESS RULE
A special conflict confronts attorneys who are or ought to be called as witnesses in a litigation in which
they represent one of the parties.
Model Rule 3.7 – does not distinguish between testimony for or against a client. Unless one of the
narrow exceptions applies, it simply prohibits lawyers from acting “as advocate at trial if the
lawyer is likely to be a necessary witness.”
o This disqualification runs only to advocacy at trial not pre-trial work.
o Other lawyers at the witness/lawyers firm are not imputed from representing the client so long as
they do not have conflict of interest issues.
Policies Behind the Advocate-Witness Rule:
o The Jury may accord the lawyer’s testimony to much weight because their special knowledge of
the case.
o Professional courtesy may restrict the opposing counsel on cross examination.
o Possibility that the testimony would degrade the public’s view of the legal system.
Lawyer might not be able to distinguish between his role as advocate and witness
----------------------------------------------------------------------------
RULE: A lawyer may not represent an adversary of his former client if the subject
matter of the two representations is substantially related.
This is the Substantial Relations Test RULE 1.9 (a) (2 Part Test):
o (1) Is matter Substantially Related?
Lawyer could have attained confidential information in the 1st
representation that could be relevant in the 2nd.
The Model Rules don’t mandate that the information even has to be
confidential; just that it is relevant in both suits.
If YES Then it is Substantially Related.
o (2) Are Positions Materially Adverse?
Look at Rule 1.7 (a)(2)
o **If there is a Substantial Relationship Need consent from both former and
current client to continue in capacity as lawyer.
***Rules 1.7 and 1.9 make it important to determine if client is a former client or a
current client.
****Remember too that the lawyer’s conflict will be imputed to all of her office
colleagues. Rule 1.10 (a).
RATIONALE: Specifically, a lawyer may not represent an adversary of his former client if
the subject matter of the two representations is substantially related. If confidential
information that might have been obtained during a representation might be relevant in the
second, then the attorney must be disqualified. The fact that the attorney might not have
actually attained the information is of no consequence. A per se rule of disqualification is
preferable, as determination of the facts underlying a motion to disqualify would be difficult
and time consuming if a case-by-case analysis were employed. Here, SF represented D in a
financial transaction, and then represented an adversary in an anti-trust suit. It seems clear
that information that the firm might have obtained during its representation of D might be
relevant in the present action so disqualification is proper. AFFIRMED.
The rule stated here is universal. In the current age of megafirms, it sometimes
presents a problem in that disqualification of one member of a firm usually disqualifies
the entire firm. A large firm might have many clients and the possibilities of
inadvertent conflicts are ever present.
Substantial Relationship Test: a factual inquiry in every case into whether confidences had actually
been revealed would not be a satisfactory alternative, particularly in a case such as this where the issue
is not just whether they have been revealed but also whether they will be revealed during a pending
litigation.
MR 1.9(a): The modern articulation of the substantial relationship test.
“where any substantial relationship can be shown between the subject matter of a former
representation, the latter will be prohibited
“…the former client need show no more than that the matters embraced within the pending
suit wherein his former attorney appears on behalf of his adversary are substantially related
to the matters or cause of action wherein the attorney previously represented him, the former
client.
The court will assume that during the course of the former representation confidences were
disclosed to the attorney bearing on the subject matter of the representation.
Posner on “substantial relationship”: “if a lawyer could have obtained confidential
information in the first representation that would have been relevant in the second.”
When are two matters substantially related? (remember rule 1.10a imputes lawyers conflict to all
other firm employees. If the former client can show that the new ‘adverse’ matter is substantially
related to the former matter (using language like the language in analytica or some variation), it is
irrebutably presumed that the lawyer gained confidential information in the prior matter relevant to
the new one.
a. The Continuing Duty of Loyalty
1. Confidentiality is not the only goal of successive conflict rules
2. Another value the rule protects is loyalty to a former client as a way to
encourage clients to repose trust in their lawyers during the professional
relationship. rule forbids lawyers to switch sides and oppose a client even
if not confidential information is at risk.
3. Notion that loyalty to a former client survives the termination of the
relationship is carried over in the Model Rule 1.9 and its comment. The text of
Rule 9.1(a), the embodiment of the substantial relationship test, does not
depend on the existence of confidential information.
4. Hypo: when two business partners hire an attorney to jointly represent them in
getting a deal done, and the deal falls out, and one client retains the attorney to
represent him, and the other client objects, the lawyer/client can argue that the
other client should have no expectation to the attorney-client privilege for
joint representations. Christensen & Allagaert, refused to disqualify attorneys
in positions like the lawyer, holding that the other client cannot complain: but
this is a very narrow reading and under unusual facts where the other client
should have anticipated that the lawyer would side with the other client in
event of a dispute. Accomodation (Restatement), one who, under the
circumstances, would have ‘understood and impliedly consented to the
lawyer’s continuing to represent the regular client in the matter.”
5. When two Courts take the view that a duty of loyalty prevents the successive
adverse representation
Greig v. Macy’s Northeast, Inc.
FACTS: The P (Greig) retained the firm of Kenneth Weiner to represent her in a matter against
D (Macy’s) for allegedly being wrongfully targeted (racial discrimination) as a shoplifter while
in a Macy’s store. During this representation, the P and Weiner disagree and the Court grants
Weiner’s withdrawal from representing P. Then, P files an action for malpractice against
Weiner. Weiner’s malpractice carrier retained the Amdur firm to represent Weiner in this action
against the P. Another lawyer from the Amdur firm already represented D (Macy’s) in the initial
lawsuit. The P alleges that this dual representation constitutes a conflict of interest and creates an
appearance of impropriety and that the firm should have to withdrawal as counsel for Weiner.
Greig’s attorney is mr. weimer
Greig and weimer had a disagreement and
So former client becomes plaintiff against macy’s and his now ex-attorney
Who was representing macys: amber firm.
District court did not like the situation here. Notice how the court says at different points in the
opinon, the rules technically don’t apply here. We’re invoking the spirit of the rules.
Given the injury that mrs. Dewey would suffer, we would not disqualify. However, from this point
forward, (1,800 hours in the case), the wilentz firm is working for nothing. For free. Trial court, if
dewey prevails, will have to determine how much they should be compensated. Anything beyond
that, go to mrs. Dewey.
RULE:
APPLICABLE MODEL RULES:
1.6 Duty of Confidentiality
o (b)(5) – a lawyer may reveal information relating to the representation of a client to establish a
defense on behalf of the lawyer.
o NJ-SC – “a lawyer sued for malpractice is obligated to reveal privileged information only to the
extent necessary to establish a claim or defense on behalf of the lawyer in a controversy between
the lawyer and the client.
1.10 Imputation of Conflicts of Interest – if one lawyer is disqualified, all lawyers at the firm are
disqualified.
Rule 8.4 Misconduct – It is professional misconduct for a lawyer to:
o (a) violate or attempt to violate the Rules of Pro Conduct, knowingly assist or induce another to
do so, or do so through the acts of another. Or to
o (b) engage in conduct that is prejudicial to the administration of justice.
Ct. found that the Amdur firm violated this rule by representing Weiner because it should
have been clear that Weiner would be in danger of violating his Duty of Confidentiality
to Greig by divulging such information to Greig’s adversary.
New Jersey has added to Rule 1.7 Conflict of Interests with Current Clients an “Appearance of
Impropriety” standard.
o The standard is if a layperson would think there was a conflict of interest.
o Purpose of this Rule: Bolster public’s confidence in the legal system.
o The Court found that disqualification is compelled in this case because there was an appearance
of impropriety.
Rule 1.9 (a) – A lawyer who has formerly represented a client in a matter shall not thereafter represent
another person in the same or a substantially related matter in which that person’s interests are
materially adverse to the interests of the former client unless the former client gives informed consent,
confirmed in writing.
o Once it has been established that an attorney has undertaken a prohibited representation under
1.9, the NJ Courts apply a presumption that confidential information has been revealed.
o This presumption may not be rebutted for fear that the former client will be damaged by
disclosure of the very information for which the protection is sought.
The Court found that these rules, read together, make it clear that the representation of Weiner by
Amdur falls within the scope of transactions that were intended to be prohibited by the Rules.
RATIONALE: Court found that a conflict of interest has occurred in this situation that
compels the Amdur firm be disqualified from representing both parties (Greig and the D).
The concerns which require disqualification outweigh Weiner and Macy’s right to counsel
of their choice.
IMPUTED DISQUALIFICATION AND MIGRATORY LAWYERS
o Rule 1.10 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.
o The Model Rules DO NOT PERMIT SCREENS when private lawyers change firms,
although they do permit them when government lawyer enter private practice.
Session 9.1
Cromley v. Board of Education
FACTS: Cromley (P) brought and action against the Board of Education (D), claiming she had
been denied various administrative positions because she had complained to a state agency about the
sexual misconduct of a co-worker. During pre-trial litigation, P’s attorney, Weiner, accepted a
partnership in the law firm representing the D. Weiner then withdrew as P’s attorney. The District
Court granted SJ to the D, denying P’s motion to disqualify the D’s attorneys. P appealed.
RULE: When a lawyer in a case moves to the other parties firm, the attorneys for the other
party must be disqualified where the representations are substantially related, unless the
presumption of shared confidences can be rebutted.
RATIONALE: In this case the representations are substantially related but the presumption of
shared confidences has been successfully rebutted by the timely establishment of a screening
process. After he joined the D’s law firm, Weiner was denied access to the relevant files. Under
threat of discipline, he and all employees of the firm were admonished not to discuss the case. In
addition, Weiner was not allowed to share in the fees derived from the case. The partner handling
the case for the D affirmed under oath that all of the admonitions had been adhered to.
o This case stands for the proposition that the presumption of shared confidences has been found to be
irrebuttable only when an entire law firm changes sides.
o Other factors help to determine whether adequate protection of the former client’s confidences has been
achieved. Those factors include:
1. The size of the law firm
2. The structural divisions of the law firm
3. The screened attorney’s position in the firm
4. The likelihood of contact between the screened attorney and one representing another party
5. The fact that the law firms and lawyer’s most valuable asset are their reputations for honesty,
integrity and competence.
o Difference between this case and Analytica:
a. This case: Individual Lawyer Switched Sides
b. Analytica: Whole Firm Switched Sides
o The Model Rules disagrees with this ruling that allows the use of screening mechanisms to
rebut the presumption of shared confidences.
o Two different presumptions
a. Presumption that the attorney acquired information from the first firm
b. Presumption that he transmitted
o Look at this from the giving firmer/attorney/client, and receiving firm/attorney.
o Proved that they effectively screened the information in a timely manner.
o How do the rules handle these presumptions?
a. Under the rules, if the attorney possesses the information, then the attorney is conclusively
presumed to have spread throughout the new firm.
b. What rule # are we concerned with?
i. 1.6
ii. 1.10(a) if a lawyer is prevented from representing a client based on 1.9, and 1.9
says they cant
iii. 1.9 is the basis for the decisions. If we look at 1.9, then we proceed to 1.10
iv. 1.9c: where does 1.9c say that screening is impermissible but that there is a rebuttable
presumption?
v. 1.9b2 says the lawyer cannot in a subsequent firm represent a prior client if htat
lawyer had acquire confidential information, but if he did not acquire this
information, there is no problem.
o What 1.9b says there is a question did the lawyer at firm 1 acquire pertinent confidential info, and if
he did, then in the subsequent firm the lawyer cannot represent a person against a former client. Here
there is no question about the confidential information.
o If he had not then the subsequent firm would be ok. But once it is found that he acquired that
pertinent information, that’s it, the lawyer shall not knowingly represent the same person in a
substnatilaly related matter (or same matter)…
o In 1.9(b)(2)….
o Can’t represent clients who are against the original firms clients, but some jurisdictions allow
screening requirements to be met (not all of them), unless he does not have confidential info.
o Purpose of screening is to ensure that a client of a law firm remains confidential.
o Screening is permitted under certain circumstances under model rules
a. Rule 1.11, when someone has been a public officer and has move to a private firm or has
confidential governmental information.
b. Rule 1.12c
c. Rule 1.1a
o Screening applies to everyone, so long as screening is permitted by the jurisdiction.
o Screening is a technique that present lawyer mobility between firms.
o 1.8b has to do with use of information, rather than the disclosure of information, and 1.6 is
concerned with disclosure, as is 1.9c2.
o HYPO; Plaintiff sues physician claiming medmal. Plaintiff is represented by lawyer 1. Physician/Δ
is represented by lawyer 2. Plaintiff loses. He eventually believes his lawyer was incompetent.
Going to sue lawyer for legal malpractice to find lawyer to do that. Plaintiff settles on lawyer 2 to
pursue medmal claims.
a. Under rule 1.9 can the lawyer do it?
b. Legal vs. Medical malpractice.
i. Lawyer 1 is the defendant in second suit.
ii. So if lawyer 2 accepts the case, he’s going to have to damage the reputation of his
former physician client. Therefore when the rule says ‘shall not represent a new client
against a former client’ if the interest of the new client is materially adverse to the
former client.
iii. Why are the two matters substantially related:
1. Say these are the facts that lawyer 1 committed malpractice, but underneath
that you have the facts of the original case.
More importantly, comment 3, a substantial risk that confidential factual information as would normally have
been obtained in the prior representation would materially advance the clients position in the subsequent matter.
OR IF
Session 10.2: LAWYERS FOR ENTITIES
CONFLICTS AND CONFIDENTIALITY IN ENTITY REPRESENTATION
Purpose of rule 1.6 is to tell us what we can tell others, and to protect attorney from disclosure requested by
court.
Under rule 1.13(g), notice that 1.7 isincorporated by reference. “if the organizations consent to the
dual representation is required by Rule 1.7, the consent shall be given by an appropriate official
ofhte organization other than the individual who is to be represented, or by the shareholders”
Since rule 1.7 is incorporated by reference in 1.13(g), consent is required if 1.7 requires it. Would
1.7 require it--?
Applicable
Rule 7.1: a lawyer shall not make a false or misleading communication abou the lawyer or the
lawyer’s services. A communication is 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.
Rule 4.1(b): failure to disclose a material fact when disclosure is necessary to avoid assisting a
criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Does rule 1.6 permit disclosure?
Rule 1.13(f): basically that a lawyer has a duty when dealing with shareholders or constitutions
Fasihi falls under at least 3 of those categories.
Rule 4.3: does this apply? Maybe. Notice comment 1: In the fourth line: “in order to avoid a
misunderstanding a lawyer will typically need to identify the lawyer’s client” is this dr. lopez?
Yup.
Douglas v. DynMcDermot Petroleum Operations
FACTS: Following her termination as in-house counsel, black female attorney brought suit against
her employer alleging retaliation in violation of Title VII. Attorney when bringing Title VII action
disclosed informally to third parties information relating to interoffice complaints of discrimination.
RULE: Once an attorney violates the ethical rules, the attorney loses the privilege to sue. Once
ethical rules are violated, the employer is insulated from any liability irrespective of whether it
took adverse employment action because the conduct constituted a breach or because the
conduct was in opposition to discriminatory employment practices.
Applicable Rules
Model Rule 1.13 Organization As Client
(a) A lawyer employed or retained by an organization represented by the organization
acting through its duly authorized constituents
(b) If a lawyer for an organization knows that an officer, employee or other person
associated with the organization is engaged in action, intends to act or refuses to act in a
matter related to the representation that is a violation of a legal obligation to the
organization, or a violation of law that reasonably might be imputed to the organization,
and that is likely to result in substantial injury to the organization, then the lawyer shall
proceed as is reasonably necessary in the best interest of the organization. Unless the
lawyer reasonably believes that it is not necessary in the best interest of the organization to
do so, the lawyer shall refer the matter to higher authority to the organization, including, if
warranted by the circumstances to the highest authority that can act on behalf of the
organization as determined by applicable law
(c) Except as provided in paragraph (d), if
(1) despite the lawyer’s efforts in accordance with paragraph (b) the highest authority
that can act on behalf of the organization insists upon or fails to address in a timely and
appropriate manner an action or refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in
substantial injury to the organization
Then the lawyer may reveal information relating the representation whether or not Rule
1.6 permits such disclosure, but only it and to the extent the lawyer reasonably believes
necessary to prevent substantial injury to the organization
(g) A lawyer representing an organization may also represent any of its directors, officers,
employees, members, shareholder, or other constitutents, subject to the provisions of Rule
1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the
consent shall be given by an appropriate official of the organization other than the
individual who is to be represented, or by the shareholders.
What did DynMcDermott do? they were operating the strategic oil reserves.
Where did the problem arise? She was handing out the letter. This whistleblower was working for DOE, but
not DynmcDermott.
Duty of loyalty goes hand in hand with duty of confidentiality.
We have a lawyer here who believes she’s a victim of race and sex discrimination in which she makes the race
and sex allegations, and adds to that letter a case involving another corporation and a fellow employee, and
some of those employees received this property of the company
She’s suing for wrongful termination
What duty did she breach? Duty of confidentiality. It did not fall within exception of 1.6 so she shouldn’t have
disclosed this to an outside source. And the confidential information that she disclosed was not information
about her, but about two separate complaints altogether.
Also breached the duty of loyalty b/c it goes hand in hand w/ confidentiality
Why is loyalty pertinent here? what was involved int eh duty of loyalty that doulas violated?
Title VII prohibits retaliatory firing incident. Also prohibits penalizing employee opposing acts protected by
title VII.
Was there a violation of Title VII? This is leading to the question of what rights do we give up as a lawyer for
working for a corporation. They make a balancing test between Rights and conduct. They say Title VII rights
between employee and employer interests and the profession in general.
Court identifies three factors in balancing interest of employee against the other interests.
1. Entity interest of the employer. what did court say? Employer has to trust its counsel to know that the
employee will maximally represent it. The client (employer) must have a reasonable expectation that its
confidentiality will not be disclosed.
2. Interest of the legal profession the profession of law has an interest in having its conduct fulfilled and
lived up to. Or else, the legal profession suffers and so do those who lawyers represent.
3. Interest of employee:
Has the court effectively denied the plaintiff a title vii claim? Perhaps. What does the court rule as to douglas
given to what she in fact did: that her actions are not under title vii b/c she breached her duties, so she lost any
rights she had for breaching loyalty and other duties.
Hirobayashi: counsel tried to put in footnote of brief that there was inconsistencies. It didn’t work. To the
memorandum that said the curfew was unnecessary. He went along and signed it. A year later he’s working
on brief for korematsu, remembers the memorandum of the ONI, becomes suspicious of the army’s
assertions for exclusion orders,
Mr. ennis threatened to resign, and gave the solicitor general pause, and people would begin to ask
why he wasn’t on it. Ennis ultimately signed it though. Assuming the 2003 model rules were in
effect. What are the obligations of Mr. Ennis?
Who is the client of the attorneys who are preparing this brief? If the client is the people, then does
the lawyer have an obligation to reveal these two documents?
Rule 1.13 comment 9.
Did Mr. Ennis have an obligation to withdraw?
1.2(d). and comment 10
1.16. a lawyer shall withdraw from representing a client if representing the client will violate the
rules of professional conduct or other law.
Is there an intent to deceive the court? Wasn’t the AG trying to keep the SC from learning about
these two documents? That’s why there were three footnotes.
Can a lawyer for the government refuse to even disclose a top secret document?
In comment 9 to 1.13:
Rule 3.3 a lawyer cannot misstate a material fact or omit a material fact. Does 3.3(a) apply?
Notice the comments.
Session 11.2
The Saga of Albinex Video
Did lawyer have an obligation to tell doctor who he represented? 1.13(f) He did know that the
organizations ARE adverse to those of the constitutions. He reasonably should have known. Rule
says ‘are adverse’ what he should have known or did know, that the company has an adverse
interest
Was lawyer under an obligation under model rules under an obligation to explain his role to the
doctors? when he walked into office he said “I’ve been asked to do this as the company’s
lawyer’ so he’s saying he’s representing lawyer. Did he have an obligation to warn doctor
further? (See rule 1.13 comment 10 and 11) Comment 10 suggests that lawyer should tell the
doctor he should get independent legal counsel. Would dr have turned over files?
Look at Rule 4.3 2nd sentence.
4.1:
Fraud intent to deceive issue? did it have a purpose to deceive?
1.6(a)
7.1. the wording is not limited to advertising.
If the answer to the first question is ‘yes’, what should the lawyer have said to the doctor specifically
if the lawyer had an obligation under the rules? If there is an obligation to warn, how broad must that
warning be? notice in 1.13(f), the rule says, “in dealing with an organizations members, a lawyer
shall explain the identity of the client when the lawyer knows or reasonably should know that the
organization’ interests are adverse to those of the constituents with whom the lawyer is dealing
what does ‘explain’ require. How far?
3rd issue: did partner, the boss of lawyer, did he do anything wrong that would excuse a violation of
the rules by the lawyer? 5.1(b) did the supervisor violate this rule?
Did the supervisors statement that the lawyer should get as much information as possible w/
disclosing as little as possible.
5.2 doesn’t matter, the lower lawyer still must adhere to rules.
If we’re having a tough time finding the lawyer as violating rule, maybe it’s arguable about the
supervisor has not as well.
1.4(a) lawyer shall keep the client reasonably informed of the matter?
1.4(b) a lawyer shall explain consult w/ client about the means by which the client’s objectives
are to be accomplished.
Did lawyer have an obligation to disclose to the company the health problems that doctor had
revealed in interview?
What happens now? If the lawyer delivered material to supervisor who went to president, did
supervisor have an obligation; could he have gone to the chairman of the board? A higher authority?
The CEO’s background is in science, not in finance or marketing. Is the decision being made by
supervisor a business decision or decision w/in scope of representation of the corporation?
Notice Rule 2.1: “in representing a client, a lawyer shall exercise independent professional
judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but
to other considerations such as moral, economic, social, and political factors, that may be
relevant to the client’s situation.“
If you juxtapose 1.13(b) and 2.1, where do we come out? Do they constrain or expand the scope
of one another? One can argue that 1.13(b) was put into the rules to apply to lawyer representing
entity, but not sure that this will be the way its construed; but keep in mind 2.1.
Session 12.1
The Saga of Albinex Video
video cont’d
Did Baskin do anything that would have violated the rules?
5.1: cmt 3.Last sentence in comment 3: the ethical atmosphere can influence conduct of all employees.
Cannot assume that all lawyers will adhere to all the rules of professional conduct. But see 5.2(a) and
5.2(b) we have an ambiguity with the FDA regulations. Delay of report or is it necessary to be quickly
filed?
Client wants an opinion letter….does not have to be transmitted immediately to the FDA. That can be
put into a report later on. In that opinion letter, what should the law firm say?
Should it disclose the differences of opinion? Should it be delayed? What should be in this opinion?
1.4(b)+ comment 5.
What is the responsibilities of the gov’t lawyer who receives the letter? What do the rules require him
to do?
If the FDA attorney looks at it and realizes there is something wrong, should she find out what it
is, or are the FDA regulations not clear enough argue for concluding the gov’t attorney can wait
for the periodic report. Rule 1.3cmt1.
Session 12.2: DISCIPLINE
In choosing a sanction, the ABA model standards identify four considerations
The duty violated
Lawyer’s mental state
Potential or actual injury caused by lawyers misconduct
Existence of aggravating or mitigating factors.
In re. Warhaftig
FACTS: Attorney Warhaftig (D), faced with serious financial pressures, began appropriating client
funds. For the most part, the funds were returned. When the State Bar (P) discovered Warhaftig’s
(D) activities, it instituted disciplinary proceedings. Warhaftig (D) argued in his defense that he had
only meant to “borrow” the monies taken, not permanently misappropriate them. Based on this
distinction, the State Bar (P) recommended a reprimand but not disbarment.
HOLDING: An attorney may be disbarred for taking fee advances out of client funds, even though
he did so with the intention of returning the funds. An attorney who knowingly misappropriates
client funds must be disbarred. Misappropriation is prohibited whether or not the funds were
“stolen” or “borrowed.”
RULE: An attorney may be disbarred for taking fee advances out of client funds, even if he
did so with the intention of returning the funds.
The attorney, Warhaftig, took funds from the trust account he had set up for clients at a point in time
before he had any legal right to such money;
The court said he was effectively borrowing from one group of clients to pay himself in advance for
matters being handled for other clients.
Warhaftig argues that he never failed to make a proper payment and nobody ever lost money.
Said he knew what he was doing was wrong, but made sure nobody got hurt
Lower Disciplinary Board emphasized that there was a distinction between knowing
misappropriation of clients funds (grounds for disbarment) and what respondent did, which
was pre-mature withdrawal of money he had earned.
Rule
A lawyer’s subjective intent, whether it to ‘borrow’ or steal, is irrelevant to the determination of the
appropriate discipline in a misappropriation case.
Any attorney who knowingly misappropriates funds will be disbarred.
Analysis
The policy is that we hold lawyers to a higher standard of professional responsibility
Note about what would happen to bank tellers not being rehired
The difference between stealing and borrowing is negligible.
Respondent knew with full recognition that he was making these withdrawals in violation of
rules governing attorney conduct.
In re. Austern
FACTS: Austern represented one Viorst, who was attempting to arrange a condominium
conversion. At one point he attended a meeting between Viorst and prospective purchasers. The
purchasers, suspicious of Viorst’s motives, demanded that he make a good faith money deposit into
an escrow account. Viorst wrote a check for $10,000. Viorst later admitted to Austern that the check
was drawn on an account which contained no funds. Despite this knowledge, Austern helped effect
the transaction. He was later investigated by the Board on Professional Responsibility, which
recommended censure for his part in the deal.
HOLDING: An attorney may be censured for facilitating a real estate transaction despite knowledge
that a client’s deposit to third parties consisted of a check drawn on nonexistent funds. Viorst’s use
of a worthless check as earnest money constituted fraud on the prospective purchasers. Auster, with
knowledge of this fraud, helped facilitate the transaction. The only appropriate course of action for
Austern would have been to advise Viorst to cease, and upon Viorst’s failure to do so, withdraw.
RULE: An attorney may be censured for facilitating a real estate transaction despite
knowledge that a client’s deposit to third parties consisted of a check drawn on nonexistent
funds.
8.4 B,C,D
Austern: 4.1 comment 1: partially true but misleading statements
1.16a
i. A lawyer shall not assist the client with conduct that is fraudulent (8.4c)
ii. Lawyer should abide by clients wishes (1.2a) but should not assist client in engaging
in illegal conduct (1.2c); if clients wishes are to engage in fraudulent conduct, lawyer
should withdraw from representation (1.16a1)
1. Court: respondent was under an affirmative duty to withdraw from
representation of Viorst once he knew that the escrow account was funded
with a worthless cheque.
In re. Martha Jane Shay
FACTS: Attorney represented J.C. J.C. married L.F.C. who later became legally separated. J.C.
and E.Y. began to date and told E.Y. falsely that the divorce was final with respect to him and
L.F.C. but J.C. legally remained married to L.F.C. Attorney knew that J.C. was still legally
married to L.F.C. Attorney drafted wills for E.Y. and J.C. which E.Y. was unaware of the fact
that J.C. was still legally married. J.C. incurred debt and E.Y., upon obtaining a credit report
which listed L.F.C. as J.C.’s spouse found out that J.C. was lying. J.C. asking attorney not to tell
E.Y. that the divorce was not final told E.Y. to leave that alone and not to worry about the fact in
the credit report.
Whether respondent had a conflict of interest and whether she failed to withdraw after she knew or
should have known that her continued employement would result in a violation of the disciplinary
rules it is first necessary to determine if she had an attorney-client relationship between both J.C. and
E.Y.
Applicable Rules
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist
or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects
(c) engage in conduct that involving dishonesty, fraud, deceit or misrepresentation
(d) engage in conduct that is prejudicial to the administration of justice
(e) state or imply an ability to influence improperly a government agency or official
or to achieve results by means that violate the Rules of Professional Conduct or
other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of
applicable rules of judicial conduct or other law.
Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer
(d) A lawyer shall not counsel a client to engage in, or assist a client, in conduct that the
lawyer knows is criminal or fraudulent …
Rule 4.1 Truthfulness in Statements to Others
(a) In the course of representing a client a lawyer shall not knowingly make a false
statement of material fact or law to a third person
Court: Shay cannot place her duty on J.C. to cure her conflicts of interest
Conclusion: violation of 1.7/1.16\
Shay can continue representing E.Y. so long as it is obvious that she can adequately represent her after
full disclosure of the possible effects of representation. (But she never made the disclosure, so this isn’t up
for discussion:
Anytime you research a trust account question/ethics question, be careful to understand what
year/event occurred, the case opinion was decided…all of these change over time. History is
important.
Make a list of a
Trust account responsibility is personal, it is not delegable (to managing partner, spouse,
secretary…etc..), and includes supervision of others, and includes vicarious liability for others in
your office.
Can’t use “I was just following orders”
Don’t ever use a rubber stamp, or mechanically sign. You’re stuck if you do.
Do not protect you from regular endorsements
In a single client client-trust-account; want to put the money in those accounts, and the client gets the
interest and the 10-99 by the gov’t. Now we take a multiple-client account
Over-draft protection. No cheques ever bounce. Even overdraft protection might not be good
enough.
DO NOT HAVE YOUR MONEY IN CLIENT-TRUST Account
If the money is yours, it must first be taken from this account and put into an office account, and
then from there, to a personal account.
This is co-mingling; so don’t put your money in the trust account.
One way it may happen unintentionally: get a settlement check; deposited; cheque deposited;
what have you done? Those cheques that you wrote, bounce, and the money is covered from
other accounts; this compounds the problems. This is BAD
You have to know what you’re putting into the trust account.
Wire transfers are a good idea
Fees and trust accounts
Minimum non-refundable fee is not a minimum and it’s not non-refundable.
A true ‘retainer fee’ is that the instant you’ve received it you’ve earned it b/c you’re available.
Otherwise, it’s an advanced payment, and it’s put into a trust account.
More than half the clients want to change lawyers before the case is over.
Client has a right to fire you; and if the money they gave you prevents them from getting
If you’ve ‘earned’ the money, you must take the money out. If the client charges against this, you
must put the money back in until the matter is resolved.
Fee Disputes at 10 days (or reasonable amount of time) can be taken out. Otherwise you gotta
put the money back in.
Record-Keeping
Must keep trust account records separate. Keep them forever in a fireproof safe.
Do not rely on a computer to keep or maintain records. Get hardcopy:
Unearned fees must stay in the trust account
Recommendation: leaving about 50 bucks of your own money in the account; may get unknown
charges for wiring or cc. you have to account for this. Keep some money in there. Be sure to
under the FDIC rules
1. Simple bank reconciliation
2. Total money in trust accounts belong to ABCDEF, here’s how much came in…
3. Reconcile cash of the accounts w/ client list
Put the minimum fee retainer and only take it out if you think you’ve earned it.
Rule 1.15 and Comments
Session 13.2: JUDGES – CONFLICTS and DISQUALIFICATION
Liljberg v. Health Services Acquisition Corp.
FACTS: A contractual dispute arose between Liljeberg (P) and Health Services Acquisition Corp.
(D) over the right to construct a hospital. Loyola University stood to benefit if Liljeberg (P) won.
The judge to whom the case was assigned was a trustee of Loyola, although he apparently was
unaware of Loyola’s interest in Liljeberg’s (P) success. After a bench trial, the judge announced a
verdict in favor of Liljeberg (P). Several days later, before final entry of judgment, Loyola’s interest
was brought to the judge’s attention. He denied a motion to vacate, and he entered judgment.
HOLDING: A judge, upon discovering a personal interest in a litigation, must recuse himself any
time before final entry of judgment. A judge shall disqualify himself in any proceeding in which his
impartiality might be questioned. While a judge obviously cannot recuse himself for something he
does not know, if such knowledge is imparted to him any time during the course of the action, a pall
is cast over the whole proceeding, as such important motions as requests for new trials might be
made right up to the time of final entry. For a judge to rule on such items with knowledge of a
personal interest would undermine public confidence in the judiciary.
RULE: A judge, upon discovering a personal interest in a litigation, must recuse himself any
time before final entry of judgment.
Applicable Rules
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(c) engage in conduct that involving dishonesty, fraud, deceit or
misrepresentation
(d) engage in conduct that is prejudicial to the administration of justice
(f) knowingly assist a judge or judicial officer in conduct that is a violation of
applicable rules of judicial conduct or other law.
Rule 3.5 Impartiality and Decorum of the Tribunal
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means
prohibited by law
(b) communicate ex parte with such a person during the proceeding unless
authorized to do so by law or court order
Comm. On Legal Ethics v. Hobbs
FACTS: Lawyer suspended from practicing law for 2 years for extortion. Judge’s wife was
present at hospital where malpractice occurred and judge told lawyer to see wife. Lawyer paid
judge’s wife in exchange for help