Legal Profession Outline

Legal Profession Outline Tebbe
Important to Remember
1. For conflicts, analyze every attorney in the problem. Anything that could cause them to pull their punches?
2. Paternalism
3. For policy, think of the incentives things set up, and court decisions set up.
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I. Where do Ethics Rules Come From?

*ABA Model Rules of Professional Conduct: Primary influence on the rules of professional conduct governing
lawyers in the United States. Many states have adopted some of the MR. No state has adopted all of the rules.
*ABA Model Code of Professional Responsibility: Precursor to the MR. New York State uses the Code.
The highest court in a given state sets the rules for the lawyers in that state.
Self-regulation (courts tend to adopt the ABA rules)
Other things that regulate lawyers:
o Constitutional controls (1st amendment and attorney advertising)
o Liability control (malpractice actions)
o Institutional controls (Rule 11 sanctions)
o Legislative controls
o Criminal controls (obstruction statutes)
Is self-regulation good?
o Lawyers have the best idea of what the profession entails, but then again, does this allow them to
abuse their power
o It adds credibility to a profession when lawyers adopt their own standards even higher
standards than if someone did it for us.
o Insulate lawyers from politics.
o However: something undemocratic about giving lawyers autonomy from politics. Also, lawyers
may draft rules that benefit them.
Note: Lawyers have a state sanctioned monopoly over the providing of legal services.
Three questions:
1. What does it mean to say that law is a profession?
Barrier to entry
to whom you owe a moral obligation
Specialized training/expertise
Clients interest above your own
Licensing/monopoly
2. Are lawyers becoming less professional?
Lawyers putting pecuniary interests above their clients
More business-like
Lawyers as employees.
More competition.
3. Is professionalism good?
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Competition fosters creativity and innovation

Easier to enter
Good for clients
Noncommercialism
Expertise
Monopoly
Ethics
Self-regulation
Axiom: a business model for a law firm. Lawyers as employees (no partnerships), more efficient, lowers costs.
But violates MRs.
Ask yourself, what are the consequences that come from calling law a business/profession?
II. Defining the Client-Lawyer Relationship

A. Role Differentiation:
Role differentiation is separating your own personal beliefs and moral convictions in the representation
of the client.
Model Rules
o MR 1.3, Comment 1: lawyer must act with commitment and dedication to the interests of
the client and with zeal in advocacy upon the clients behalf.
o MR 1.2b: a lawyer representation of the client does not constitute an endorsement of the
client views.
o MR 1.16b4: lawyer may withdraw from representing a client if the client insists upon
taking action that the lawyer considers repugnant or with which the lawyer has a
fundamental disagreement.
o MR 2.1: lawyer may refer to not just law, in advising a client, but to moral, economic,
social, and political factors that may be relevant to the clients situation.
Model Code
o Canon 7: A lawyer should represent a client zealously within the bounds of the law
o DR 701A1: a lawyer shall not intentionally fail to seek the lawful objectives of his client
through reasonably available means permitted by the law and the disciplinary rules
o EC 7-8: in assisting his client to reach a proper decision, it is often desirable for a lawyer to
point out those factors which may lead to a decision that is morally just as well as legally
permissible.
Demjanjuk Debate (can a lawyer be held accountable for the choices he makes in choosing clients, and
the methods of representing them?)
o Monroe Freedman says you should be held publicly accountable for the clients you represent.
o Michael Tigar says you shouldnt be held publicly accountable (but could be privately
accountable).
B. Is There a Client Here?
A threshold question that should always be asked is, Is there a client-lawyer relationship here?
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You can have a client-lawyer relationship even by declining a case (Togstad v. Vesely) and if you have
never met the client (Williams v. Ely). (Firm advised A, who they knew would relay information to B
and C, thus B and C were the Firms Clients)
Money need not change hands
Courts expect lawyers to be sensitive to and clarify any ambiguities relating to a client-lawyer
relationship.
Pg 25: An AC relationship is formed when 1) a person manifests an intention to the A that (s)he intends
the A to provide legal services and 2) the A fails to manifest lack of consent to do so AND the A knows
or reasonably should know that the person reasonably relies on the lawyer to provide the services.
Perez v. Kirk & Carrigan

An agreement to form an attorney-client privilege may be implied from the conduct of the parties.
Doesnt necessarily depend on the payment of a fee, but may exist as a result of rendering services
gratuitously.
C. Elements of the Client-Lawyer Relationship
1. Competence
MR 1.1: requires lawyers to provide clients with competent representation, requiring legal knowledge,
skill, thoroughness, and preparation reasonably necessary for the representation.
Factors:
o Relative complexity and specialized nature of matter
o Lawyers experience
o Training and experience
o Reasonable ability to prepare
Adequate preparation is required
In emergency, assistance should be limited to that reasonably necessary under circumstances.
2. Confidentiality
MR 1.6:
A. lawyer shall not reveal info relating to the representation of a client unless they give informed
consent, or it is implied in order to carry out representation, or disclosure is permitted below:
B. a lawyer may reveal info relating to representation to the extent the lawyer believes necessary:
o To prevent reasonably certain death or substantial bodily harm
o To prevent the client from committing crime or fraud reasonably certain to result in
substantial injury to financial interests or property of another and in furtherance of which
the client has used or is using the lawyers services
o To prevent, mitigate or rectify substantial injury to the financial interests or property...in
furtherance of which the client has used the lawyers services
o To secure legal advice about the lawyers compliance with these rules
o To establish a claim or defense on behalf of the lawyer to a controversy between lawyer and
client, or to establish a defense...
o Court order
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Confidentiality applies not only to matters communicated in confidence, but to all info related to the
representation, whatever its source.
Lawyers may communicate with other lawyers in their firm, unless otherwise agreed upon
Duty of confidentiality continues AFTER the client-lawyer relationship ends.
-Attorney-Client Privilege
Attorney-client privilege is an evidentiary rule, in the FRE
The attorney-client privilege may be invoked with respect to a communication conducted in confidence
between a lawyer and a client (or their agents) that is carried out for the purpose of obtaining legal
advice. RST 68
It is ok if the client is speaking to the lawyers support staff or agent or expert
-M-Perez v. Kirk & Carrigan
The attorney-client privilege applies to all confidential communications made during preliminary
discussions of the prospective professional relationship.
MR 1.6 Confidentiality VS FRE Attorney-client Privilege
Confidence: was information relating to representation (triggered after there is actually a lawyer-client
relationship). This is an ethical duty, found in MR 1.6.
Privilege: A defensive method of refusing to present evidence. Usually invoked for discovery or trials.
This is an evidentiary rule.
The ethical duty of confidentiality is BROADER than privilege because:
o The ethical duty applies regardless of the client
o Regardless of whether the info came from the actual client
o Regardless of whether other people were in the room
o SO much information that is ethically protected will not be within the privilege. But ALL
information privileged will also be ethically protected.
confidentiality
does not matter where you learn it
no particular purpose
does not have to be made in confidence
broader than privilege
governs what a lawyer CAN disclose
privilege
must be communicated by client and with client
for purpose of obtaining legal advice
client intends communication to be private
narrower than confidentiality
governs what a lawyer MUST NOT disclose
Exceptions to Confidentiality
Policies:
o Assurance of confidentiality will encourage the client to trust her lawyer and be forthcoming
with information to the lawyer
o Because it is the right thing to do
Exceptions: MR 1.6b (above)
o To prevent reasonably certain death or substantial bodily injury.
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This is circumscribed by the rule of reasonable necessity. A lawyer must have a good
reason.
o To prevent the client from committing, or to prevent harm from the clients commission of a
crime/fraud that is reasonably certain to result in substantial financial injury and in furtherance
of which the client has used the lawyers services
o To secure legal advice about lawyerly compliance with the Rules
o To establish a claim or defense for the lawyer, e.g. to collect fees
o To comply with a court order or other law
Noisy withdrawal (Mr 1.2, comment 10 AND MR 4.1 comment 3)
o A lawyer may alert others and retract documents or statements if related to a clients illegal
actions
Non-existence of a lawyer-client relationship, obviously.
Exceptions to Privilege:
Self-defense
Waiver (a client can waive the privilege either explicitly or implicitly
Crime-fraud exception
o Communications between lawyers and clients are not privileged when the client has consulted
the lawyer for the purpose of obtaining legal advice about the crime/fraud, regardless of whether,
The crime fraud is accomplished,
The lawyer is aware of the objective,
The lawyer does anything to further the crime/fruad
Public Policy
Identity and fees are generally not privileged.
Nonexistence of a professional relationship defeats claim of privilege
Purcell v. DA for Suffolk County (privilege sometimes larger than confidentiality?)
Purcell, attorney, told police his client was going to commit arson. Client sought to suppress statements
as violating privilege
Regarding confidentiality, Purcell acted ethically, MR 1.6(b)
But the statement was still protected by privilege. The crime-fraud exception only applies if the client
sought to use the attorneys help.
So it could be revealed, but not used in court! Selective waiver.
But wasnt the clients statement not for the purpose of seeking legal advice, so it shouldnt have been
covered??
Privilege for Entity Clients
MR 1.13 and comment: lawyer has ethical duties under 1.6 whether the client is a person or an
entity.
o Comment 3: when the lawyer knows that an organization is likely to be substantially
injured by action of an officer or other constituent that violates a legal obligation to the
organization or is in violation of law that might imputed to it, the lawyer must proceed as
reasonably necessary to the best interest of the organization.
The problem is whose identity of those person within an entity client whose communications with entity
counsel will be protected as attorney-client privileged.
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The Possible Tests for Privilege: (what individuals amongst an entity will be analogous to the client, as to create
attorney client privilege)
1. Control Group Test
a. Only the communications between the controlling individuals of an entity and the entitys
attorneys are privileged. A communication is protected if conducted with a member of the
control group of the entity, meaning officers and agents responsible for directing the
corporations actions in response to legal advice.
b. This is the least protective test.
2. Subject Matter test
a. Communications with lower-level employees may be privileged if
i. They concern matters within the scope of the employees corporate duties (not: scope of
employment. Scope of employees corporate duties is much broader than scope of
employment), and
ii. The employees were aware that they were being questioned so that the entity could obtain
legal advice.
b. Upjohn Co. v United States came up with this. Supreme Court.
i. Upjohn lawyers conducted an internal investigation via questionnaires and interviews
regarding potentially illegal activity. The IRS subpoenaed these questionnaires and
interview documents. Upjohn refused, citing privilege.
ii. Note: the privilege only protects disclosure of communications, it does not protect
disclosure of the underlying facts. The govt was free to question employees
considerations of convenience do not overcome the policies served by the attorney-client
privilege.
iii. Upjohn is the construction of the federal law, for the FRE. States could do other things.
iv. Consider Upjohn only to be an approach the SC was very clear that this holding just
applied to these particular facts.
3. Functional Test: is the potential declarant functioning like a client, or a witness?
a. Where a factual communication is initiated by someone other than an employee, it is protected
by the privilege, IF
i. Concerns the employees own conduct within the scope of employment, AND
ii. The purpose of the communication is to assist the lawyer in assessing the consequences
of that employees conduct for the entity.
b. Samaritan Foundation v. Goodfarb: Arizona
i. Not bound by Upjohn
ii. Court focuses on the job of the attorney that is, not just fact gathering, but protection
against liabilities
iii. Court distinguishes between attorney-conversations between witnesses and clients. The
distinction is derived from what the lawyers job is: protect the client, or just fact gather
from a witness
c. Functional test VS Subject matter test
i. Functional: ask if the employees actions would bring liability to the employer/whenether
the employees conduct about which he is being questioned could impute liability to the
entity. If so, privileged.
ii. Subject matter: doesnt care about if the employee would bring liability. Only whether he
is employed and he is talking about his job.
iii. EX. coca cola truck crashes. One employee is driving, one is the passenger. Under
Upjohn, both employees communications with the entity attorney would be protected.
Under Goodfarb, only the driver, who created the liability, would have his
communications privileged. The attorneys convo with the passenger would be fact
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gathering. Look at the employees actions in the scope of his employment if the actions
are within the scope of employment and create liability, under goodfarb the convo would
be privileged.
4. The Restatement:
a. RST 73. A communication is privilege if the other requirements are privilege is met, and
i. It is conducted between an agent of the organization and a lawyer, and
ii. It concerns a legal matter of interest to the organization
iii. (irrelevant who initiates the conversation)
Privilege for Government
RST 74:
o The attorney client privilege applies between an agent of the govt and a lawyer concerning
a matter of legal interest
8th Cir. Says that no govt attorney privilege could be asserted to avoid a federal prosecutors grand jury
subpoena (office of the prez v. independent counsel)
o Court reasoned that actions of the white house personnel cannot expose the white house to
criminal liability as an entity
There is a strong public interest in honest govt and exposing wrongdoing by public officials that would
be ill served by recognition of a govt attorney client privilege applicable into criminal proceedings
inquiring into the actions of public officials. To shield the govt against production of evidence relevant
to a criminal investigation would represent a gross misuse of public assets.
So this is sort of a public interest exception to the privilege. The public has an interest in uncovering
wrongdoing.
Roberts Documents Fight
Privilege for Multiple Clients: ABA Formal Op. 08-450 (representing multiple clients on a related matter)
When a lawyer represents multiple clients, either in the same or related matters, Model Rule 1.6 requires
that the lawyer protect the confidentiality of information relating to each of his clients. Because the
scope of the "implied authority" granted in Rule 1.6(a) to reveal confidential information "to carry out a
representation" applies separately and exclusively to each representation the lawyer has undertaken, a
conflict of interest arises when the lawyer recognizes the necessity of revealing confidential information
relating to one client in order effectively to carry out the representation of another. In such a
circumstance, the lawyer would be required to withdraw from representing one or both of her clients.
Lawyers routinely have multiple clients with unrelated matters, and may not share the information of
one client with other clients. The difference when the lawyer represents multiple clients on the same or
a related matter is that the lawyer has a duty to communicate with all of the clients about that matter.
Each client is entitled to the benefit of Rule 1.6 with respect to information relating to that clients
representation, and a lawyer whose representation of multiple clients is not prohibited by Rule 1.7 is
bound to protect the information of each client from disclosure, whether to other clients or otherwise.
The question generally will be whether withholding the information from the other client would violate
the lawyers duty under Rule 1.4(b) to explain matter to the extent reasonably necessary to permit the
[other] client to make informed decisions regarding the representation. If so, the interests of the two
clients would be directly adverse, requiring the lawyers withdrawal under Rule 1.16(a)(1) because the
lawyers continued representation of both would result in a violation of Rule 1.7.
Best thing to do: GET WAIVERS
3. Agency
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Lawyers are their clients agents. The law of agency therefore applies to the client-lawyer relationship. As
attorneys, or agents, before the law, lawyers have certain authority and duties.
Agency status affords the lawyer the authority to act for the client on the subject matter of the retainer.
Therefore, it is important to define so far as reasonably possible what the lawyer is retained to do. The client is
bound by many of the attorneys actions within the scope of the retainer.
-Taylor v. Illinois (criminal case)
A client is bound by the lawyers actions, including the misconduct the lawyer did in this case. Under
these facts, the client is precluded from having the witness testify because the attorney concealed his
identity. Just like a client cannot disavow his lawyers tactical decisions, he cannot disavow his lawyers
misconduct.
Brennan, dissenting: While a client should be bound by tactical errors he shouldnt be bound by
misconduct the rationales dont apply.
-Cotto v. United States (civil case)
The acts, and omissions, are visited upon the client. Since counsel waited too long to prosecute the civil
case, the case was dismissed, and the client has to live with it. The lawyer could still be liable for
disciplinary measures. But agency binds the client. Clients can also sue for malpractice.
MR 1.2 & Agency to Settle/Plea
MR 1.2 and case law gives the client the unfettered right to settle or plead guilty. The client has
authority over those decisions, but sometimes the attorney can get authority.
o A. a lawyer shall abide by clients decisions concerning objectives of representation, and
shall consult with the client as to the means by which they are purused.
o A lawyer shall abide by a clients decision whether to settle. In criminal, shall abide by
clients decision whether to plea, waive jury trial, and whether to testify.
-Authority to Settle (and Generally as well)
o Actual Authority
From the client: may be explicit or implicit
Inherent agency power (ex. in court)
o Apparent Authority
Where the client has done something to lead the other side to think reasonably (though
wrongly) that the lawyer has actual settlement authority
This serves to protect the other side
For example, the client is sitting right next to the lawyer while the lawyer settles
-Vicarious Admissions
A lawyers statements may be the vicarious admissions of a client. The lawyer, as an agent, is subject to
the vicarious admission rules of law of evidence.
They are admittable, but are rebuttable. The client may disown the statement or admit contrary proof.
Whether the statement was made in open court matters if in open court, it may not be rebuttable.
-Procedural Defaults
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In criminal cases, an attorneys failure to raise constitutional rights in compliance with valid state
procedures will prevent the D from asserting those rights collaterally in federal court unless she can
prove actual innocence unless the error is so bad as to constitute ineffective assistance of counsel.
-Confidentiality Duties in Agency Law

Lawyers, as agents, have a parallel duty of confidentiality under agency law.
4. Fiduciary
-Lawyer has a fiduciary relationship with his client. Has to place the clients interest above his own, and treat
the client fairly. Courts give clients extraordinary fiduciary protection. Example is that the Mr make it difficult
to start charging clients more once representation begins.
-Three reasons
Client depends on lawyers judgment, ignoring his own
Attorney requires confidential information in the course of representation that gives attorney unfair
advantage
Client is unable to easily just change attorneys.
MR 1.3: a lawyer shall act with reasonable diligence and promptness in representing the client
o Does not require the use of offense tactics, lawyer need not press for every advantage
o Work load must be controlled so that each matter can be handled competently
o Lawyer should carry through to conclusion all matter undertaken for a client.
5. Loyalty and Diligence
Loyalty: requires the lawyer to pursue and to be free to pursue the clients objectives unfettered by conflicting
responsibilities or interests.
Diligence: imposes on the lawyer an obligation to pursue the clients interests without undue delay.
6. The Duty to Inform and Advise
-Duty to inform
A lawyer has a duty to inform a client whenever the client has final authority to make a decision
and the information bears on the decision.
o MR 1.2(a) [settlement and plea bargains]: a lawyer shall abide by a clients decisions
concerning the objectives of representation, and as required by 1.4, shall consult with the
client as to the means by which they are pursued.
o MR 1.4(b) [strategy]: a lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
o Rule 1.0(e): defines informed consent: lawyer has communicated adequate information and
explanation of the material risks and reasonably available alternatives to the proposed
course of action.
Even when the lawyer has authority, there is a duty to keep the client reasonably informed and to
respond to reasonable requests for information:
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o MR 1.2a: requires the lawyer to consult the client even with respect to means of the
representation
o Rule 1.4(a)(1-5): a lawyer shall
promptly inform the client of any decision or circumstances with respect to which
the clients informed consent is required by these rules
reasonably consult with the client about the means by which the clients objectives
are to be accomplished
keep the client reasonably informed about the status of the matter
promptly comply with reasonable requests for information, and
consult wit the client about any relevant limitation on the lawyers conduct when the
lawyer knows that the client expects assistance not permitted by the MR
RST 20: a lawyer must keep a client reasonably informed about the matter and must consult with
a client to a reasonable extent concerning decisions to be made by the lawyer.
A client has the reasonable expectation that the lawyer will explain all the theories under which they
may win.
-Nichols v. Keller
Court said that the laywer has the duty to give the claimant information on all available remedies and
third party actions. The attorney should inform the client of the limitations of his representation and of
the possible need for other counsel.
D. Autonomy of Attorneys and Clients
Discussions of lawyer vs. client autonomy decide what the lawyer can decide and what the client can decide.
1. The Lawyers Autonomy
-The Scope of the Lawyers Autonomy
While recognizing the lawyer doesnt need to abide by each request of the client in regards to means of
achieving objectives, the client is and always remains the master of his cause.
MR 1.4: A lawyer shall abide by a clients decision concerning the objectives of representation and shall
consult with the client as to the means by which they are pursued.
If things concern the objectives of the client, the client controls.
If it concerns the means by which to reach the objective, the lawyer concerns.
-Jones v. Barnes
Attorneys get professional leeway, and therefore they dont constitutionally have to raise EVERY
nonfrivolous issue. He is allowed to use his professional judgment to decide what to do.
Brennan, disseting: right to counsel ought to include the right to choose which nonfrivolous claims to
bring. The role of a defense lawyer should be to function as an instrument and defender of the clients
autonomy and dignity in all phases of the criminal process.
2. The Clients Autonomy
-Olfe v. Gordon
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It is generally recognized that an attorney may be liable for all losses caused by his failure to follow with
reasonable promptness and care the explicit instructions of his client. An attorneys honest belief that the
instructions were not in his best interest of the client provides no defense to a suit for malpractice.
The attorney must act in conformity with his authority and instructions and is responsible to his principal
if he violates this duty.
In Jones, the lawyer refused to follow his clients instructions, and it was ok. In Olfe, the attorney didnt
follow directions, and it wasnt ok. WHY?
-A D has the right to decide whether lesser included offenses should be submitted to the jury. The same is true
for his decision to testify.
-Clients with Diminished Capacity
See MR 1.14. Get a Guardian Ad Litem.
3. Terminating client-lawyer relationship
By Client:
o Clients can terminate a relationship at any time (different for indigent clients)
o Lawyers, even retained lawyers, cant be fired without the courts permission if it would
prejudice the other side
By Lawyer = withdrawal.
o MR 1.16:
o A. A lawyer shall not represent a client, or where representation has comment, SHALL
withdraw from the representation if
The rep will result in violations of the rules of MR
The lawyers physical or mental condition materially impairs the lawyers ability to
represent the client
The lawyer is discharged
o B. A lawyer MAY withdraw from representation, if
Wont materially adverse effect the client
The clients persists in actions that are believed to be criminal or fraudulent
Client has used the lawyers services to perpetrate a crime or fraud
Client insists upon taking action that the lawyer considers repugnant or with which
the lawyer has a fundamental disagreement
The client fails substantially to fulfill an obligation to the lawyer regarding his
services and has been given reasonable warning that the lawyer will withdraw
unless the obligation is fulfilled
Representation results in an unreasonable financial burden on the lawyer or has
been rendered unreasonably difficult by client
Other good cause
o C. Must give notice consistent with applicable law to court
o D. Must give reasonable practicable notice to client
By drift: Episodic clients add ambiguity to whether the relationship has been terminated. Whether
termination can occur by lack of contact is very fact sensitive. You dont want to be in this position.
Dont let relationships just trail off it makes sense to put a termination into writing.
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III. Protecting the Client-Lawyer Relationship Against Outside Interference

-The No-Contact Rule Generally
MR 4.2. In representing a client, a lawyer shall not communicate about the subject of the
representation with a person unless the lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or
court order.
o Requires Knowing
o Consent by the client isnt enough you have to get consent from the other attorney.
Bars attorneys who are representing clients, from contacting the client of another matter in a matter that
relates to the two clients.
o What happens if the client themselves is an attorney?
Rule is meant to protect clients, and the witness being used by another lawyer.
Lawyers cannot send an agent on behalf of themselves either.
Entity issues
o Rule 4.2 comment 7
The rule prohibits communications with a constituent of a represented entity
Who supervises directs or regularly consults with the entitys lawyer
concerning the matter
Who has authority to obligate the entity with respect to the matter, or
Whose act or omission with respect to the matter can be imputed to the
organization for purposes of civil or criminal liability?
o Communication is prohibited with any current employee acting within his scope of
employment (RST, generally)
A. Communicating with Another Lawyers Clients
1. Civil Matters
MR 4.3: Dealing with Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not
state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know
that the unrepresented person misunderstands the lawyers role, he shall make reasonable efforts
to correct the misunderstanding.
MR 4.4: Respect for Rights of Third Persons
In representing a client, the lawyer shall not use means that have no substantial purpose other
than to embarrass, delay or burden a third person, or use methods of obtaining evidence that
violated the legal rights of such a person.
-Niesig v. Team I (Entity Rule)
A represented party who cannot be contacted about the matter includes corporate employees:
o Whose acts or omissions in the matter under inquiry are binding on the corporation
o Whose acts or omissions can be imputed to the corporation for the purposes of civil or
criminal liability
o Who are implementing the advise of counsel
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o THEREFORE non-managerial witness employed by a corporate defendant may be ex
parte interviewed.
-RST 100
A represented non-client who cannot be contacted included an employee or other agent who
o Supervises directs or regularly consults with the lawyer concerning the matter or who has
power to compromise or settle the matter
o Whose acts or omissions may be imputed to the organization for purposes of civil or
criminal liability in the matter
It wants to facilitate candid and informal access to information
-FRE 803d2d admits statements of a party what is scope of employment?
Communication is prohibited with any current employee acting within his or her scope of employment
(Vicarious admissions Rule of Evidence)
-No Contact Rule for Government
States consider this question differently some do not apply the rule as strictly
RST 101 limits the protection of the anti-contact rule when the govt is the party
Ex. criminal cases: the client of the prosecutor is the PEOPLE defense counsel is free to attempt to
speak to unrepresented witnesses, including the victim, who may refuse the interview.
2. Criminal Matters
-MR 4.2 (above) and DR 7-104(a) apply in both civil and criminal matters.
The comment to 4.2 envisions its application in criminal cases.
The 6th amendment also applies in criminal cases and prohibits the state from questioning the D outside
the presence of his counsel after judicial proceedings have been initiated. The 6th amendment does not
prevent questioning a charged person about a factually related but distinct and uncharged crime.
-United States v. Hammad (not good law everywhere)
Whether DR 70104(a)(1) restricts the use of informants by govt prosecutors prior to indictment, but
after a suspect has retained counsel in connection with the subject matter of a criminal investigation.
Rule: prosecutors are authorized by law to employ legitimate investigative techniques and the use of
informants frequently falls within the ambit of such authorization, however, using a fake subpoena
doesnt.
The use of informants by govt prosecutors in a pre-indictment, noncustodial situation, absent
misconduct, will generally fall within the authorized by law exception by DR 7-104(a)(1). This is
because prosecutors are authorized by law to employ legitmative investigative techniques in conducting
or supervising criminal investigations, and the use of informants to gather evidence against a suspect
will frequently fall within the ambit of authorization.
-Note: McDade Amendment rules that federal attorneys are bound by state ethics laws
B. Improper Acquisition of Confidential Information
MR 1.6 is implicated because the documents are confidential.
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MR 4.4b: Respect for Rights of Third Persons
A lawyer who receives a document relating to the representation of the lawyers client and knows
or reasonably should know that the document was inadvertently sent shall promptly notify the
sender.
But the rule does not state the legal duties of a lawyer who receives a confidential or privileged
document.
-The prohibition against communications with another lawyers client has, as one of its objectives, protection of
attorney client confidences. Courts preclude an attorney from acquiring, inadvertently or otherwise, confidential
or privileged information about his adversarys litigation strategy.
-If a lawyer learns confidential information from an expert previously interviewed by the opposing side, the
lawyer and her firm may be disqualified.
-The Case of the Misdirected Fax
What happens when a law firm for one party has accidentally given confidential information to the
opposition?
MR 4.4(b) requires notice to the opposing lawyer but leaves to substantive law whether the lawyer must
comply with the opponents instructions
If you mistakenly send a document to the other side, does that waive privilege? Courts are generally all
over the place. The southern district sometimes waives the issue. Look at your jurisdiction.
AND NOT JUST WHAT ARE YOU ETHICALLY REQUIRED TO DO, BUT WHAT DO YOU HAVE
TO TELL YOUR CLIENT ABOUT THE DECISION WHAT SAY DO THEY HAVE?
FRE 502 (possible new rule of evidence)
o Attorney client privileges and work product; limitations on waiver
(b): inadvertent disclosure: when made in a federal proceeding or to a federal office or
agency, the disclosure does not operate as a waiver in a federal or state proceeding if,
the disclosure is inadvertent
the holder of the privilege or protection took reasonable steps to prevent
disclosure, and
the holder promptly took reasonable steps to rectify the error
Basically, courts have three options
o Strict accountability (inadvertent release waives privilege)
o Never waived (accidental release never waives privilege)
o Totality of circumstances
Reasonableness of the precautions to prevent disclosure
Amount of time it took the producing party to realize error
Scope of production
Extent of the inadvertent disclosure
Overriding interests of justice and fairness
IV. Financing Legal Services and Dividing the Money

-Possible Fee Structures
A flat fee for specified service
Hourly fee
o Lawyers charge for each hour of work they do
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Value billing
o A fee is not fixed in advance. At the conclusion of the matter, lawyer and client sit down and
evaluate what the lawyer has achieved if substantial, it will support a fee higher than what an
hourly rate would yield. Poor work yields less.
o Is used by courts under fee shifting statutes
o Note: the different between value and contingent fees is that contingent fees are determined by a
formula, which lawyer and client agree to in advance.
Contingent fee
Combination of the above
Performance fee for highly favorable results
A. The Role of the Marketplace

-Brobeck, Phleger & Harrison v. Telex Corp. (Legal retainer analyzed under conscionability)
Fee agreement between the firm and Telex was not unconscionable. No one took advantage of each
other, exerted superior bargaining power, or disguised unfair terms in small print.
While the minimum fee was high, Telex received substantial value from the firms services
Unconscionability is determined with reference to the time when the contract was made and cannot be
unresolved by hindsight
But, this was look at through the lens of contract law. Is a lawyer-client relationship different? IS a
retainer agreement different from normal contracts?
B. Unethical Fees
-MR 1.5(a) Fees [Also DR 2-106(a)]
o A. A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses
o Factors:
Time required, difficulty of issues, and skill necessary
Preclusion of other work by lawyer
Customary amount of fees in such cases
Amount involved and results obtained
Time limitations
Nature and length of the lawyer-client relationship
Experience and reputation of lawyer
Whether fixed or contingent
o B. A lawyer SHOULD put fee agreements in writing.
o C. A lawyer SHALL put a contingent fee agreement in writing.
o D. A lawyer shall not collect a contingent fee for:
o A domestic relations matter
o A defendant in a criminal case
-Matter of Laurence S. Fordham (fee reasonableness from an objective standard)
It is unreasonable for a lawyer to charge an hourly wage for the hours he spends educating himself about
the area of applicable law.
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o A client should not be expected to pay for the education of a lawyer when he spends excessive
amounts of time on task, which, with reasonable experience, become matters of routine. For this
reason, it was unreasonable fee.
o Otherwise an experienced lawyer could charge more than an experienced one.
A safe harbor argument: that an agreement existed between client and attorney to bill a reasonable rate
times hours worked is protected from the argument that a fee was clearly excessive.
o But client-agreement doesnt matter A lawyer shall not make an agreement for an unreasonable
fee.
-Brobecks Reasoning vs. Fordhams reasoning

Brobeck was analyzed under contract law it wasnt unconscionable.
Fordham was analyzed under MR 1.5 reasonablenss is it objectively reasonable?
Think about this issue in terms of free market vs not-free market. Why should professionals not give into
pressures of the free market. Why is it illegal to make personal deals between attorney and client.
-Courts May Reduce or Deny Unethical Fees
Courts may order a reduction of the fee or deny a fee if they determine it is excessive or unethical.
Courts are especially strict in reviewing fee agreements reached or modified after the attorney-client
relationship is formed.
-Nonrefundable Fees
Types of Fees
o Minimum fees: an attorney works on an hourly or fixed basis, but sets a minimum fee to
complete a given task. If discharged, the fee is reduced according to the rule of quantum meruit.
o General retainer: a client pays a fixed sum in return for the lawyers promise to be free to
perform any legal service (of a general or specific kind) during a specific period for an agreed-to
fee. This fee is earned when paid, and non refundable. The fee is in exchange for availability.
o Special nonrefundable fee (Cooperman, below): a lawyer is paid a nonrefundable fee for specific
services in advance and irrespective of whether any professional services are actually rendered.
If they are, the fee is applied against time. Cooperman outlawed this because it made it difficult
for clients to fire their attorneys. Also sets up a weird incentive for Cooperman to want to get
fired.
Matter of Cooperman (fee that discourages client mobility)
o Nonrefundable fee agreements, in advance and irrespective of whether any professional services
are actually rendered, violate the code of professional responsibility.
o Nothing can rescue an agreement that impedes a clients absolute right to walk away from the
attorney. Nonrefundable fees make clients hostage.
C. Contingent Fees and Statutory Limits
-In a contingent fee agreement, a lawyers fee depends on the occurrence or nonoccurrence of an event.
-only allowed in US, not other industrialized nations
-Whether it is more favorable than hourly fee depends on:
Likelihood of the occurrence of the contingency
When it is likely to occur
Probable size of recovery
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Amount of work required

Amount of work required
Size of the lawyers percentage
-Prohibitions on Contingent Fees in Criminal and Matrimonial Cases MR 1.5c & d

Criminal: fee on acquittal could prompt a lawyer to encourage her client to reject a favorable plea
bargain and go to trial in order to make money for the lawyer
Matrimonial: state has an interest in seeing as much money stay with the family as ossible
o Could influence recommendations of lawyer
D. Mandatory Pro Bono Plans
MR 6.1: Every lawyer has a professional responsibility to provide legal services to those unable to pay. A
lawyer should aspire to render at least 50 hours of pro bono legal services per year.
V. Concurrent Conflicts of Interest

A conflict of interest is involved if there is a substantial risk that the lawyers representation of the client would
be materially and adversely affected by the lawyers own interests or by the lawyers duties to another client, a
former client, or a third person. (RST 121)
-Most conflict rules do not contain a mens rea requirement. Absolute liability.
-A lawyer must first have a client, before you can argue conflict.
-A Typology of Conflicts
Lawyer has personal interests that would cause him to materially and adversely affect his representation
of the client.
Lawyer is conflicted between concurrent clients.
Lawyer is conflicted by a continuing duty to a former client.
Conflicts imputed to a lawyers firm.
Lawyers who work for govt and move to private sector, and vice versa. He has gained information.
Lawyer wants to should be a witness in his own case.
o MR 3.7 bars advocate witness conflicts.
Conflicts can arise when a lawyer represents an entity but deals with the entity through its officers and
employees. Conflicts can develop if the lawyer is deemed to represent both the entity and its agents and
their interests diverge.
MR 8.5: Disciplinary Authority: Choice of Law
A. A lawyer admitted to practice in the jurisdiction is subject to the disciplinary authority of this
jurisdiction, regardless of where the lawyers conduct occurs.
Lawyers and clients may displace nearly all conflict rules by agreement.
-The Competing Interests
Conflict rules set a ceiling on firm size, because the greater number of clients the firm cannot represent.
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The narrower the rules, the less protection for those clients who may suffer from a breach of
confidentiality or an act of disloyalty.
-MR 1.7: Conflict of Interest: Current Clients

A. Except as provided in B, a lawyer shall not represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of interest exists if:
o 1. The representation of one client will be directly adverse to another client, or
o 2. There is a significant risk that the representation of one or more clients will be materially
limited by the lawyers responsibilities to another client, a former client, or a third person
or by a personal interest of the lawyer.
B. Notwithstanding the existence of a concurrent conflict under A, A lawyer may represent a client
if:
o 1. The lawyer reasonably believes that the lawyer will be able to provide competent and
diligent representation to each affected client, and
o 2. The representation is not prohibited by law, and
o 3. The representation does not involve the assertion of a claim by one client against another
client represented by the lawyer in the same litigation or other proceeding before a
tribunal, and
o 4. Each affected gives informed consent, in writing.
-MR 1.10: (imputed conflicts)
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 MR 1.7 or MR 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.
*Simultaneous representation in unrelated matters of clients, who interests are only economically adverse, such
as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a
conflict of interest.
A. Client-Lawyer Conflicts
MR. 1.8: Conflict of Interest, Current Clients, Specific rules
A. 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...
o Even if the two transaction is not closely related to the subject matter of the representation
B. The lawyer shall not use information relating to the representation of a client to the
disadvantage of the client unless the client gives informed consent, except as permitted or required
by these Rules.
C. A lawyer shall not solicit any substantial gift from a client...
D. Prior to the representation of a client, the lawyer shall not make or negotiate an agreement
giving the lawyer literary or media rights...
E. A lawyer shall not provide financial assistant to a client in conection with pending or
contemplated litigation, except that...
o Usually doesnt include advance court costs and litigation expenses because they are
indistinguishable from contingent fees and ensure access to courts
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F. A lawyer shall not accept compensation for representing a client from one other than the client,
unless
o The client gives informed consent
o There is no interference with the lawyers independence of professional judgment or with
the client-lawyer relationship; and
o Information relating to representation of a client is protected as required by MR 1.6
G. A lawyer who represents two ore more clients shall not participate in making an aggregate
settlement of the claims of or against the client, or in a criminal case na aggregated agreement as
to guilty or nolo contendere please, unless each client gives informed consent, in writing...with
certain disclosure...
H. A lawyer shall not
o Make an agreement limiting malpractice liability
o Settle a claim for such liability with an unrepresented client
I. A lawyer shall not acquire a propriety interest in the cause of action or subject matter of
litigation the lawyer is conducting for a client, except that...
J. A lawyer shall not have sexual relations with a client unless a consensual sexual relationship
existed before the professional relationship commenced.
K. While lawyers are associated in a firm, a prohibition above applies to any one of them...
1. Business Interests
-Matter of Neville
Neville represented Bly in real estate transactions. But then Neville purchased options from Bly.
In this particular transactions, Bly was not the client, but the court determined that Bly was till a client
of Neville in general.
Court said that intent isnt necessary. Conflict rules do not contain intent or knowledge requirements.
Neville would have had to give complete informed consent to the clients so that he can ponder the
wisdom of entering an agreement with Neville. Have to make sure that the client knows exactly the
role the attorney has.
-A Lawyers Financial Interests
Deals with Clients
o MR 1.8(a)
o It can entitle a client to void a business agreement with his lawyer, even where the agreement
appears as if the attorney got a milder better bargain
Interests Adverse to Clients
o MR 1.8(a) forbids a lawyer to knowingly acquire an ownership, possessory, security, or other
pecuniary interest adverse to a client unless certain conditions are satisfied.
o MR 1.7(a)(2) covers conflicts between a clients and lawyers interest, using broader language.
2. Media Rights
-MR 1.8d forbid lawyers to acquire publicity rights to a story based on the subject of the representation before
its conclusion.
3. Financial Assistance and Proprietary Interests
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-MR 1.8e permits the lawyer to make repayment of loans contingent on the outcome of the matter and to do
away with repayment entirely if the client is indigent (has to do with interest in winning).
-MR 1.8e absolute ban on financial assistance to a client in connection with a pending or contemplated litigation
if the clients matter is not in litigation.
4. Fee-Payor Interests (another person pays for a persons lawyer)
-MRs 1.8f, 1.5c: permit these payments under certain circumstances
o Client must give informed consent to the arrangement
o The payor must not interfere with the lawyer independence of personal judgment or with the client
lawyer relationship
o Law must protect the clients confidences under MR 1.6
5. Related Lawyers and Significant Others
-Gellman v. Hall
o Attorney-spouse conflicts are not fatal. No per se disqualification based on marriage.
o Is it weird that we impute conflicts to two lawyers in the same firm, but not to husband and wife?
6. A Lawyers Legal Exposure
o Where representation of a client could lead to information implicating the lawyer in a crime or in
exposing the lawyer to civil liability, a serious conflict will often exist.
o The second circuit deals with this as follows:
o If the trial court could definitely rule out the possibility that the allegations are true, a meaningful
waiver is possible since the falsely accused attorney is conflicted only to the extent that she
cannot cross-examine the witness regarding the false allegations.
7. Gender, Religion, Race
o Karen Horowitz problem. Can firm not allow a person to try a case because it is in the south and they
are jewish, etc...?
B. Client-Client Conflicts
Can arise in two ways:
1. Sixth Amendment claims, when a single lawyer represents two or more criminal defendants or clients.
a. Holloway
b. Cuyler
c. Strickland
d. Mickens
2. Disqualification: when a D wants to hire a lawyer and the judge refuses to allow the lawyer to represent
the defendant on the ground that the lawyer has a disqualifying conflict.
a. MR 1.7 (representation of one client will be directly adverse to another, or a significant risk that
the representation of one or more clients will be materially limited by the lawyers responsibilities
to another client, a former client, or a third person...)
b. Wheat
1. Criminal Cases (Defense Lawyers)
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-Issues of concurrent conflicts between clients in criminal representation arise when a single lawyer represents
two or more suspects or defendants. Representation can occur during the investigation, grand jury, plea
negotiations, trial, or appeal.
-Dont forget that constitutional principles also define the governing rules. A conflicted criminal lawyer may or
may not have been constitutionally ineffective within the meaning of the sixth amendment. Conversely,
disqualification of a criminal defense lawyer may violate the accuseds right to counsel of choice.
-The Cases (when a D is appealing to demonstrate 6th amendment ineffective counsel, not Rule 1.7)
Holloway v. Arkansas
o Held that there will be an automatic reversal of a conviction when a court refuses to release a
counsel when he claims he has conflicts. No prejudice needs to be shown.
o Where defense counsel objects to conflict, the court must investigate if they dont, automatic
reversal.
o However, multiple representations alone do not warrant a presumption that there is a conflict.
Cuyler v. Sullivan (ineffective only for conflicts...)
o This was a habeus corpus, 6th amendment ineffective counsel proceeding.
o Held that a defendant who appeals his conviction, objecting to his attorneys multiple
representations on demonstrate prejudice.
Must show actual conflict, AND
That conflict adversely affected (the lawyer did or didnt do something that harmed the
representation) the performance of counsel.
o The court need not investigate conflicts unless it is brought to their attention.
Strickland (general inassistance of counsel for 6th amendment)
o In order to prove ineffective assistance of counsel (6th amendment)
Must demonstrate counsel was ineffective for a reason, and
Consider whether the attorneys actions were reasonable.
But for the errors, the result of the case would have been different.
Prejudice
Mickens: suggested that the Cuyler standard may not apply for successive conflicts. T
o Rule: The Holloway automatic reversal rule operates only when defense counsel is forced to
represent codefendants over his timely objections, unless the trial court has determined that there
is no conflict. If the D lawyer makes no objections, the D must satisfy the Cuyler test by proving
the conflict affected the lawyers performance.
-This about the difference in standards for BEFORE trial evaluations of conflict and APPEALS for error for
conflict.
-Generally, it is easier to defend a conviction if the judge disqualifies the attorney at the beginning, because the
standard for proving ineffective counsel if your attorney had a conflict is easier to meet than Strickland.
Strickland requires prejudice, Cuyler doesnt.
-Disqualification of Defense Counsel (6th Amendment & the Model Rules)
Conflict rules and the 6th amendment provide prosecutors and courts with the basis to seek removal of
defense counsel even over the objections of the accused.
Wheat v. United States
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o To what extent is a criminal defendant given under the 6th amendment to be represented by a
conflicted lawyer. To, in essence, decline the defendants waiver of his right to conflict-free
counsel by refusing his proposed substitution.
o District courts have substantial latitude in deciding what to do with potential conflicts of
interests. Courts get much discretion to deny the D his counsel of choice, to deny his counsel of
choice under MR 1.7.
o Where a court justifiably finds an actual conflict of interest, there can be no doubt that it may
decline a proffer of waiver and insist that defendants be separately represented AND in cases
where a potential for conflict exists which may or may not burgeon into an actual conflict as the
trial progresses.
The court must recognize a presumption in favor of Ds counsel of choice, but that
presumption may be overcome not only by a demonstration of actual conflict, but by a
showing of a serious potential for conflict. The evaluation of the facts and circumstances
of each case under this standard must be left to the judgment of the court.
Wheat has provided ample ground for prosecutors to ask judges to disqualify defense lawyers. A
prosecutor could, in essence, call a witness in order to purposefully disqualify the defense counsel.
-Think about all this stuff in terms of paternalism.

2. Civil Cases
i. The Basic Rule: Fiandaca v. Cunningham (MR 1.7)
On appeal, D challenges the district courts refusal to disqualify the Ps class counsel due to an
irresolvable conflict of interest. Argues that the P counsel was conflicted because two of its clients were
directly adverse interests after the state extended its settlement offer. It placed the counsel in the
untenable position of being simultaneously obligated to represent the interests of two conflicting clients.
Impossible for them to perform the role of advocate for both clients.
Issue is whether, pursuant to Rule 1.7b, counsel could have reasonably believed that its representation
would NOT be adversely affected by the conflict.
Rule: Absent evidence of true necessity, a meritorious disqualification motion will not be denied in the
interest of expediency unless it can be shown that the movant strategically sought disqualification in an
effort to advance an improper purpose.
Remedy: look to the adverse effects actually caused by the lower courts error in refusing to disqualify
the counsel as attorney.
-Imputed Conflicts
MR 1.10. When lawyers are associated in a firm, none of them shall represent a client that when
practicing alone would constitute a conflict. It imputes MR 1.7 and 1.9 firmwide.
o Excludes imputation when one lawyers conflict is based on her personal interest if there is no
significant risk that the representation will be materially limited.
ABA Opinion 94-388: two firms, though practicing under different names, may be deemed one firm for
conflict purposes if they promote themselves affiliated or associated.
But firms who affiliate for a single matter (common interest arrangements) may not implicate imputation
for conflict purposes.
Some courts hesitate to extend the rule to public defender offices.
Amicus briefs pose a unique challenge for conflict rules. You can only write an amicus brief if they are
your client, so if you write that brief, that party is your client.
22

-Standing to Object
Adversaries, and clients, may raise conflict issues...
o Other courts say only clients may bring issues.
o A middle ground could be that nonclients do not have standing to assert an opposing lawyers
conflict, but a nonclient may have standinf if she can demonstrate that the opposing counsels
conflict somehow prejudiced the nonclients rights.
ii. When Issues of Two Clients Conflict:
MR 1.7, Comment 24: ordinarily a lawyer may take inconsistent legal positions in different tribunals on
behalf of different clients...the mere fact one decision will create precedent adverse to the position of a
client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict
WILL occur if there is a significant risk that a lawyers action on behalf of one client will materially limit
the lawyers effectiveness in representing another client in a different case...
iii. Concurrent Unrelated Conflicts:
-Rule 1.7 comment 6 example (Firm acting adversely to a client on an unrelated matter)
One firm can represent two clients in unrelated matters, even if those two clients are suing each other in
a third matter.
Direct Adversity (bad): X sues Y. X is represented by A, and Y is represented by B. A and B are in same
firm.
Comment 6 Situation (ok): X (represented by A) is suing P. Y (represented by B) is suing Q. A and B are
in the same firm. However, in an unrelated matter X is suing Y, and they are both represented by
someone not in A and Bs firm.
o The problem in Fiandaca lay in the perceived inability to the counsel to advice the class about
the wisdom of suing a certain site, because they represented interests in that site. The clients
interests were inconsistent.
o But in the example above, A and Bs firm may represent two parties on unrelated matters, and
those clients happen to be adversaries in a third matter where the firm represents neither, there is
no problem because the work the firm will be doing does not threaten the confidences of either
client in the matter in which they are adverse, nor lead to a sense of betryal in either client.
Another bad example: If A and B are in the same firm, A represents X in matter 1, B represents Y in
matter 2, in matter 3, X is suing Y, represented by A. Here, Y is being sued by its own firm!
-Confidentiality and Privilege in Multiple Client Representations
General rule: communications between a common lawyer and his two clients of one representation
retain their privileged status. The fact that communications between client A and their lawyer are not
shared with client B will not sacrifice that privilege. [but if the clients end up in dispute, neither client
will be able to assert privilege for their communications with the common lawyer]
If both clients each hire a different lawyer, those lawyers do not waive privilege by communicating with
each other regarding the matter.
The RST suggests that multiple cooperating clients who hire a single lawyer should expect the lawyer
may share all information relevant to the lawyers work with each of them. The lawyer should make this
clear in his retainer.
23
Note: If lawyer A is presenting client A, and lawyer B represents client B, and client A and B are
cooperating, then a common interest arrangement like this one may give lawyer A a fiduciary duty to
client B prevents lawyer A from using client Bs information to his own disadvantage.
Joint litigant or common interest privilege: a refusal to recognize waiver when privilege information
is shared with other clients and their lawyers who have a common interest.
-Class Conflicts
Be careful, easy to find conflicts.
-Malpractice Based on Conflicts
Simpson v. James
o Conflict signals proof of negligence and shifts the burden to lawyers to prove there was no
conflict and no negligence.
o Conflicts may be a kind of background noise that will make it easier for a party to convince a
jury that malpractice occurred. Does it alert a court to negligence?
o Dont want it to see like you are pulling punches on your client.
C. The Advocate-Witness Rule
-MR 3.7
A lawyer cant act as an advocate at trial if she is likely to be a necessary witness, but there are
exceptions.
This does not impute to a firm.
Motivated by policies:
o Jury may accord lawyers testimony too much weight
o Professional courtesy may handicap the cross
o Dont want attorneys truthfulness to become an issue
o Jury may not distinguish between lawyers role as witness vs advocate.
VI. Successive Conflicts of Interest

MR 1.9: Duties to Former Clients
A. A lawyer who has formerly represented a client in a matter shall not thereafter represent
another person in the same or a substantially related matter in which that persons interests are
materially adverse to the interests of the former client unless the former client gives informed
consent, confirmed in writing.
B. A lawyer shall not knowingly represent a person in the same or substantially related matter in
which a firm with which the lawyer formerly was associated had previously represented a client
o Whose interests are materially adverse to that person, and
o About whom the lwyer had acquired information protected by Rules 1.6 and 1.9c that is
material to the matter,
o Unless the former client gives informed consent, confirmed in writing.
C. A lawyer who has formerly represented a client in a matter or whose present or former firm has
formerly represented a client in a matter shall not thereafter
24

o Use information relating to the representation to the disadvantage of the former client
except as these Rules would permit or require with respect to a client, or when the
information has become generally known, or
o Reveal information relating to the representation except as these Rules would permit or
require with respect to a client.
A. Private Practice
-Analytica, Inc v. NPD Research, Inc
MR 1.9a
A lawyer may not represent an adversary of his former client if the subject matter of the two
representations is substantially related. It is irrelevant whether he actually obtained such information.
The substantial relationship test is a proxy for actually figuring out if the information in both cases is the
same. See MR 1.9, comment 3.
It is irrelevant whether the lawyer actually got confidential information. It is an irrefutable presumption.
The Substantial Relationship Test
See MR 1.9
o 1.9a: cases you work on/bill to
o 1.9b: cases you dont work on
Comment 3: matters are substantially related if they involve the same transaction or legal dispute or if
there otherwise is a substantial risk that confidential factual information as would normally have been
obtained in the prior representation would materially advance the clients position in the subsequent
matter.
Policies: loyalty, impropriety, and confidential information
Conflict Rules protect two interests:
The Continuing Duty of Loyalty
o MR 1.9 considers the continuing duty of loyalty. This policy can forbid lawyers to switch sides
and oppose a client even if no confidential information is at risk.
Confidentiality
The Consequences of Disqualification
First, the client may be disappointed. He loses his choice of lawyer.
Second, MR 1.10 disqualifies all lawyers in a law office from opposing a client when any lawyer in the
office has represented that client on a substantially related matter
To represent a client = bill to him.
Malpractice Based on Successive Conflicts
A law firm that acts adversely to a former client in violation of the substantial relationship test will
subject itself to liability for breach of fiduciary duty.
Who is a Former Client?
For successive conflicts, its difficult to determine whether
o The person or entity is a client for the purpose of the conflict, and
o Whether the client is a current client or former client.
25
A preliminary interview can create an attorney-client relationship.

The RST forbids subsequent adverse representation following a preliminary meeting that does not result
in retention only if the lawyer has received information that could be significantly harmful to the
prospective client.
Hot Potato Law

The idea is that a firm may be tempted to drop a client so they can sue them, because you cant sue a
concurrent client.
Unified Sewerage v. Jelco: firms may not escape the stricter current-client conflict rules simply by
withdrawing from a representation and converting a current client into a former one.
A firm may not drop a client like a hot potato, especially if it is in order to keep happy a far more
lucrative client.
Standing and Waiver
Concurrent conflicts may sometimes be waived.
Successive clients may always be waived (MR 1.9a)
The Appearance of Impropriety
The fact that this isnt mentioned in the rule doesnt mean that lawyers no longer have to avoid the
appearance of impropriety
Conflicts in Class Actions
Policy: the application of traditional successive disqualification doctrine to class actions can work great
hardship, sometimes for little gain.
B. Imputed Disqualification and Migratory Lawyers
[In Analytica, the firm itself changed sides. What happens when a conflicted lawyer who is subject to
disqualification changes firms? To what extent is the lawyers new firm saddled with his conflicts?]
-Cromley v. Board of Education (7th circuit)
Teacher Cromley represented by Weiner against school district. During middle of representation, Weiner
moved to the firm representing the school district. Cromley wants the firm disqualified.
See analysis below (screening)
Presumptions in Imputed Disqualification
Two presumption implicit in imputing disqualifications:
o 1. The migrating lawyer had confidences shared with him by his client, and
o 2. The lawyers at the migrating lawyers new firm are likely to receive confidences from the
lawyer.
The 7th Circuit (Cromley) considers both these presumption to be rebuttable (using screens to do the
second) Seventh Circuit and Screening
o The 7th Circuit is in the minority in its willingness to permit a new law firm of a migratory
lawyer to avoid imputation of the lawyers personal conflicts by erecting a screen. The MRs do
not permit screens when private lawyers change firms, although they permit them when govt
lawyers enter private practice.
o Three part test to see if an attorney is going to impute his conflict onto his new firm:
26

Are the former and current representations the same or substantially related? If NO,
representation is ok, and there is no conflict. Is yes...
Can the migratory lawer rebut the presumption that she learned confidences at the old
firm? (MR 1.9)
E.g. by showing that she did not work on the matter and learned nothing.
o Most all jurisdictions allow a rebuttal of this presumption
If she can rebut this presumption that she learned confidences at the old firm,
representation is ok. If she cant...
Can the migratory lawyer rebut the presumption that she will share confidences at the
new firm (MR 1.10(a)). This is where the 7th circuit splits...
Screen will suffice it in jurisdiction that allow it (pretty much just the 7th)
If the lawyer can rebut this presumption, the representation is OK.
The MR were recently changed to permit lateral lawyers to be screened without consent. New 1.10
requires among other safeguards that certifications of compliance with the screening procedures be
provided by a partner of the firm, at reasonable intervals upon the former clients written request and
upon termination of the screening procedures.
o Note: so firms will not hire lawyers that have worked elsewhere on matters that present a conflict
with a current representation of the firm. It punishes extensive experience.
Removing Conflicts from a Former Firm

MR 1.10B
o When a lawyer has terminated an association with a firm, the firm is not prohibited from
representing a person with interests materially adverse to those of a client represented by
the formerly associated lawyer and not currently represented by the firm, unless
The matter is the same or substantially related
Any lawyer remaining in the firm has information protected by MR 1.6 and MR
1.9C that is material to the matter
What if a lawyer terminates his association with a firm, and then the firm wishes to represent a new
client whose interests are materially adverse to those of a former client represented by the formerly
associated lawyer at the firm?
Rule 1.10b permits the firm to represent the new client, even if the matter is the same or substantially
related to the former lawyers representation, so long as the firm can show that no lawyer remaining in
the firm has protected information that could be used to disadvantage the former client.
Issue develops if Firm X wants to sue Q (represented by A). Can X fire A in order to sue Q? Judge
Walker: yes!
Nonlawyer Conflicts
This can happen. Ex. paralegals, secretaries. Courts are more likely to allow screening, though.
C. Government Service
The revolving door between private and govt practice.
MR 1.11: Special Conflicts of Interests for Former and Current Govt Officers and Employees
A. Except as law may expressly permit, a lawyer who has formerly served as a public officer or
employee of the govt,
27
1.11(a)
1.11(c)
o Is subject to MR 1.9c, and

o Shall not otherwise represent a client in connection wit ha matter in which the lawyer
participated personally and substantially as a public officer or employee unless the
appropriate govt agency gives its informed consent, confirmed in writing, to the
representation.
B. When a lawyer is disqualified from representation under paragraph A, no lawyer in a firm with
which that lawyer is associated may knowingly undertake or continue representation in such a
matter, unless
o The disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
o Written notice is promptly given to the appropriate govt agency to enable it to ascertain
compliance with the provisions of this rule
C. ...A lawyer having information that the lawyer knows is confidential govt information about a
person acquired when the lawyer was a public officer or employee may not represent a private
client whose interests are adverse to that person in a matter in which the information could be
used to the material disadvantage of that person...
o Definition of confidential govt information: information obtained under govt authority,
that the govt is prohibited from disclosing to public...
D. A lawyer serving as a public officer or employee
o Is subject to MR 1.7 and MR 1.9, and
o Shall not participate in a matter in which the lawyer participated personally and
substantially while in private practice, unless the appropriate govt agency gives its
informed consent in writing, or
o Negotiate for private employment with any person involved as a party or as al awyer for a
party in a matter in which the lawyer is personally participating and substantially...
E. matter: any judicial or other proceeding, application, request for ruling or determination,
contract, claim, controversy, investigation, charge, accusation ,arrest or other particular matter
involving a specific party or parties, and any other matter covered by the conflict of interest of the
particular govt agency...
Conditions
Result
If lawyer works in connection with Then conflict
a matter in which the lawyer
participated
personally
and
substantially while at govt
If
lawyer
has
confidential Then conflict
information about person adverse
to the lawyers client
Fix
Unless the government consents.
(Screening of firm lawyers
allowed under 1.11(b))
And consent cannot heal.
(Screening is allowed, even absent
consent)
-Armstrong v. McAlpin
While concerned that lawyers could exploit govt service and information gained from it for private gain
in the private sector. But we also encourage people to go to work in the govt field. Difficult to reconcile
these two posts.
VII. Marketing Legal Services

28

Three interlocking trends to keep in mind regarding attorney advertising:
1. The continuing growth of national and international law practice
2. Expanding American lawyer population, making competition fiercer and advertising more attractive
3. Technology makes lawyer marketing easier and cheaper.
A. Defining the Borders: Bates and Ohralik
-Bates v. State Bar of AZ
Held that advertising by lawyers was commercial speech entitled to First Amendment protections.
However, allowed a state to prohibit false, deceptive, or misleading ads might be able to require a
warning or disclaimer in legal ads, and could possibly restrict quality claims because they were hard to
verify or measure.
Arizona argued against this for 6 reasons:
o Adverse effect on professionalism and encourage commercialization
o Inherently misleading
o Stir up litigation
o Increase cost of legal services
o Encourage shoddy work
o Difficult to monitor against abuse
-Ohralik v. Ohio State Bar Assn.
A state may categorically ban in-person lawyer solicitation of clients. This is a prophylactic rule whose
interest is in avoiding privacy violations and overreaching.
In person solicitation of professional employment does not stand on par with truthful advertising about
the availability and terms of routine legal services, let alone with forms of speech more traditionally
within the concern of the First Amendment.
The interest in regulating lawyers is especially great since lawyers are essential to the primary govt
function of administration of justice.
This is the only lawyer advertising case in the SC that upholds a permanent and categorical ban on a
type of communication: in person solicitation.
B. Middle Ground: Zaunderer, Shapero, Went-For-It
Zaunderer: Rule: commercial speech has intermediate scrutiny test, so intermediate scrutiny test is
applied to lawyer advertising. States may do anything they want to prohibit false or misleading lawyer
advertising. But if the speech does not concern unlawful activity, it can still be restricted but only for
substantial govt interests through means that directly advance that interest. States may legitimately
demand that lawyers include a message that clients could be liable for legal fees.
Shapero: Found unconstitutional a prohibition on targeted mail to people known to have suffered from
injury. But states may still regulate this activity (ex. filing these letters with an agency)
Went-For-It: Court upheld a FL law that forces lawyer to wait 30 days to solicit by mail people who
have been injured, relying on the justification of professionalism.
o The dissent (scalia) wanted to overturn Bates and hold that lawyer speech is not protected.
The Model Rules
MR 7.1: a lawyer shall not make a false or misleading communication
MR 7.2: allows lawyer advertising, subject to 7.1 and 7.3, but requires any ad to include the name
and office address of at least one lawyer responsible for the ad
MR 7.3:
29
o A. prohibits real-time solicitation of professional employment from a prospective cient for

gain, unless the person contacted
Is a lawyer
Is a family member of, a close friend of, or someone who has a prior professional
relationship with, the lawyer.
o B. prohibits solicitation, real time or not, if the prospective client has said she does not want
to be solicited, or if it involves coercion, duress, or harassment.
o C. Requires targeted solicitation from a prospective client known to be in need of legal
services in a partical matter to include the words advertising material on the outside of the
envelope, or at the start and end of an electronic communiction (but exceptions in (a)
apply...
Note: states have taken a broad departure from the MRs.
Lawyer Advertising in NYS

Any ad shall not:
o Include testimonials regarding a pending matter (overruled by Cahill)
o Include the portrayal of a judge (overruled by Cahill)
o Use actors to portray lawyers or actors
o Rely on techniques that demonstrate a clear and intentional lack of relevance to the selection of
counsel (overruled by Cahill)
o Utilize a nickname, monikor, motto or trade name that implies an ability to obtain results in a
matter. (overruled by Cahill)
A lawyer or firm shall not utilize a pop up or pop under ad, other than on the lawyers own website.
30 day ban on solicitation of victims relating to specific personal injury or wrongful death event.
(Overruled by Cahill)
Lawyers have to retain any computer accessed communication for a year.
o An ad = any public or private communication about the lawyers services, the primary purpose of
which is the intention of the lawyer...
Alexander v. Cahill
o Struck down client testimony clause, judge portrayal ban, struck down techniques that have a
lack of relevance, struck down motto/monikor ban, struck down popups ban.
VIII. Ethics in Advocacy

A. Views of Justice
Our system does serve truth elevates other values above truth.
Frees lawyer from being judge and allows him to be a more effective advocate and champion for his
client.
Perhaps the adversary system is good for criminal trials, but not civil trials?
1. Lawyers serve and protect their clients, regardless of the merits of their case (hopefully)
2. They conduct investigations into law and facts for their clients, and they have limited obligations to the other
side.
3. Truth emerges through the conflict between parties, each motivated to bolster their case and waken their
opponents.
30

B. Truth and Confidences (PERJURY)
How far can lawyers go in stretching the truth in order to aid a client.
*This implicates the question of how adversarial, actually and optimally, our system is.
MRs 1.2(d) and 3.3 are the relevant rules to determine what a lawyer knows, or believes.
Rule 1.2(d): (prospective conduct)
o A lawyer shall not counsel a client to engage or assist a client in conduct that the lawyer
knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any
proposed course of conduct with a client and may counsel or assist a client to make a good
faith effort to determine the validity, scope, meaning or application of the law
Rule 3.3: Candor towards the Tribunal (retrospective)
o A. A lawyer shall not knowingly:
Make a false statement of fact or law to a tribunal or fail to correct a false statement
of material fact or law previously made to the tribunal by the lawyer,
Fail to disclose to the tribunal legal authority in the controlling jurisdiction known
to the lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel, or
Offer evidence that the lawyer knows to be false. IF a lawyer, the lawyers client, or
a witness called by the lawyer, has offered material evidence and the lawyer comes
to know of its falsity, the lawyer shall take reasonable remedial measures, including,
if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other
than the testimony of a D in a criminal matter, that the lawyer reasonably believes is
false.
o B. A lawyer who represents a client in an adjudicate proceeding and who knows that a
person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct
related to the proceeding shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.
o C. The duties stated in A and B continue to the conclusion of the proceeding, and apply even
if compliance requires disclosure of information otherwise protected by MR 1.6
o D. In an Ex PArte proceeding, a lawyer shall inform the tribunal of all material facts
known to the lawyer that will enable the tribunal to make an informed decision, whether or
not the facts are adverse..
DR 7-102B1: a lawyer who receives info clearly establishing that his client has, in the course of the
representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client
to rectify the same and if his client refuses or is unable to do so, he shall reveal the fraud to the
affected person or tribunal, except when the info is protected as privileged information.
Materiality element to 3.3. If the evidence isnt material, he is off the hook. But it doesnt always apply
have to check the rule.
Duty to court trumps duty to client.
Knowledge element: If you think but you dont know, you may NOT disclose. You HAVE to have
knowledge. MR 1.6 prohibits you from disclosure unless you KNOW it.
o Does this just inhibit the communication between lawyer and client?
How long does the rule apply?
o MR 1.2: prospectively
o MR 3.3: sometimes applies retrospectively, and only until the end of the proceeding.
Scope of Application:
31

o 1.2: applies broadly
o 3.3: applies only to lawyer conduct before a tribunal or adjudicative proceeding
o 3.3 applies to evidence AND fraudulent conduct relating to the proceeding by anybody.
-Nix v. Whiteside
6th amendment right of a criminal defendant to assistance of counsel is not violated when an attorney
refuses to cooperate with the D in presenting perjury testimony at his trial.
o Attorney told client not to testify regarding a statement he believed to be perjury. Client,
convicted, appealed, saying the lawyers action deprived him of his 6th amendment right.
Court used Strickland v. Washington in order to obtain relief for ineffective assistance of counsel.
o Must show error of performance AND prejudice.
A lawyers duty of loyalty is limited to legitimate lawful conduct consistent with the nature of a trial as a
search for truth. Counsel is precluded from taking steps to assist client in presenting false evidence or
otherwise violating the law.
The MRs do not merely authorize disclosure by counsel of client perjury, but require it. See MR 1.2, 3.3
The attorney in this case adhered to the reasonable professional standard. For counsel to take steps to
persuade a D to testify truthfully, or to withdraw, doesnt deprive the D of his right to counsel nor the
right to testify truthfully.
Therefore, as a matter of law, counsels conduct cannot establish the prejudice required for relief under
the second strand of Stickland scrutiny.
-Nix answered constitutional questions. MR 3.3 answers ethical ones. Questions remain.
-The Best Ethical Solution?
Full cooperation with Ds wishes
Persuading the client, then giving up.
Withdrawal from representation
Disclosure to court
Refusing to permit D to testify
Narrative Approach (MR and Nix rejected this, but some state courts allow it!!!)
o Allows the D to just go on the stand and speak, but attorney doesnt ask questions.
-The Epistemology Problem
How does the lawyer KNOW the testimony is false?
Actual knowledge? Good cause to believe? Firm factual bases? Courts use different ones...
o 2nd Circuit: unambiguous statement by the D
What should a judge do if informed by attorney of possible perjury?
United States v. Long: when a lawyer has a firm factual basis for concluding that a D will testify falsely
and informs the judge, he should limit further disclosures of client confidences, inform the attorney of
his duties to the client, inform the D of his rights, and determine whether the D desires to waive any of
his rights...
FRCP 26
A lawyer may encounter perjury during pretrial discovery.
Applying MR 3.3, revelation may prove to be the only reasonable remedial measure in the client fraud
situations most likely to be encounters in pretrial proceedings, including discovery.
32
Rule 26a1 of the FRCP states the party must supplement or correct information that is disclosed that is
incomplete or incorrect.
C. Fostering Falsity or Advancing Truth?

Limiting the tactics that can be used at civil or criminal cases to increase chances of victory on the facts
presented. How far can lawyers go in stretching the truth to aid a client?
1. Literal Truth
-What does True and False really mean?
-Conversation requires cooperation?
-The Law of Perjury
Tebbe Definition: A willfully false statement, made under oath, regarding facts material to a hearing.
Context can change the literal meaning of a statement.
o Bill Clinton: he was asked whether there was a sexual relationship with Lewinsky at the time of
questioning, and whether he had ever been alone with her. He used semantics to answer
truthfully, even though he was purposefully misleading.
Bronston v. United States
o Bronstons answer that the company had an account there is true, but was unresponsive to the
lawyers question, therefore misleading. The court said it wasnt misleading enough to count as
perjury.
o It is the lawyer responsibility to recognize the evasion of the witness and bring the witness back
to mark, with the tools available at cross examination.
o This holding extends the use of the adversary system to protect truth.
o Perjury is a willfully false statement, under oath, regarding facts material to the hearing.
o Can an answer be false without being perjurious? (Clinton admitted making false statements
under oath, but not lying. He admitted breaking MR 8.4(b) NOT MR 8.4(c).
United States v. DeZarn
o Witness spoke the literally true answer to the question that in which the lawyer got the date
wrong, but clearly everyone knew what the lawyer intended. The witness knew the question
wasnt asked correctly. He did correctly answer the question. BUT.
o If a responsive answer, viewed narrowly and out of context, has a claim to being literally true, it
may nevertheless when viewed in the larger context, be found to be perjurious because of the
statement of mind of the witness when giving his literally true answer.
o Here, the witnesss literally true answer didnt tip off the cross-examining lawyer.
Ask if the answer is responsive or nonresponsive:
o If it is responsive, it may be perjury because it doesnt alert the prosecutor
o If it is unresponsive, it should put the prosecutor on notice that they need to change their
question.
Ex. D needs to disprove he ever met Sonia Smith. HE gets the following written questions.
o Have you ever met Sonya Smith?
Literally, he can answer no, but is this Bronston or DeZarn. Probably more like DeZarn
the witness knows what he means.
o Have you ever met Sonia Simth?
Clear what the lawyer means. An answer of NO would not alert the lawyer to his mistake.
33
Answer it: No, I have never met Sonia Simth... this informs the lawyer of his mistake.
Is context the distinguishing factor between these cases? Also, think about policy who do we want to
place the burden on witness or lawyers. Just dont willfully mislead. You need to take personal resp
to clean up their bad questions.
-The Law of Contempt and Ethics and Perjury rules must be considered in analysis of whether a literally true
statement is considered otherwise false or forbidden.
2. Cross-Examining the Truthful Witness
A lawyer can ethically discredit a truthful witness.
o Prohibiting it would bolster the witnesss credibility. Also, it alerts the other side of the
discrediting. If lawyers couldnt discredit truthful witnesses, witnesses would have incentives to
lie behind closed doors.
Triange Shirtwaist Company Fire...Repeated his questions repeatedly, witness (who did indeed rehearse)
did give the same answer over and over. Sounded like it was made up.
3. Appeals to Bias
LeBlanc v. American Honda
o P sued D appealed to bias towards nationality of corporation in closing.
o Where remarks are calculated to encourage the jury to make a decision based on bias rather
than reason and the presented evidence, this can be prejudicial enough to require a new trial.
4. The Boundaries of Proper Argument
-Improper Argument: cannot testify to the attorneys own truthfulness and trustworthiness, if he wasnt a
witness. Cannot rely on facts not in evidence. Cant make stuff up.
-Arguing for False Inferences: Two Types...
Relevant Rules
o MR 3.4(e)
A lawyer shall not in trial allude to any matter that the lawyer does not reasonably
believe is relevant or that will not be supported by admissible evidence, assert
personal knowledge of facts in issue except when testifying as a witness, or state a
personal opinion as to the justness of a cause, the credibility of a witness, the
culpability of a civil litigant or the guilt or innocence of the accused.
o MR 8.4
It is professional misconduct for a lawyer to
C. engage in conduct involving dishonestly, fraud, deceit, or
misrepresentation
D. engage in conduct that is prejudicial to the administration of justice.
o ABA Standard 3-5.8a: in closing argument to jury, prosecutor may argue all reasonable
inference from evidence in court. Prosecutor should not intentionally misstate the evidence
or mislead the jury as to the inferences it may draw.
Type 1: Ask a jury to draw an inference from evidence when evidence does not rationally support that
inference. This is illegal, in violation of Rule 3.4(e). When a prosecutor does it, it may deny the D a fair
trial.
34
Type 2: May a lawyer ask a jury to draw an inference she knows is false as long as some evidence
rationally supports it?
o If the client is the criminally accused, then YES (so long as he does not rely on perjurious
testimony, a crim def attorney can argue for a false inference [Johns v. Smith: a fed judge held
that a defense lawyer MUST argue false inferences supported by the evidence])
o If the client is a prosecuting sovereign, then NO (may not argue for a false inference, even if
evidence in the record supports the inference)
o If the is a civil litigant, then not sure. (the MR proscribe false statements of fact, however, no
comparable language forbidding arguments for misleading inferences).
-The Subin-Mitchell Debate: How far can a lawyer go in asking the jury to draw an inference the lawyer knows
is false?
Present a maybe situation (for all we know, she didnt mean to steal) [Mitchel]
Present a rhetorical question (why would my client steal...) [Subin]
Argue the inference, supported by the evidence (my client DID this) [Tebbe]
Policies: would a jury know the difference between an inference and fact in summation? Dont all
summations wants the jury to accept an inference that isnt true?
Again, adversarial system issues.
6th amendment issues for a client to put on his own defense?
Two part analysis: 1. Does it fall within the law? 2. Should it?
Should it be different rules for P and D
-The Lawyer may not LIE or ask a jury to draw inferences not supported by the evidence.
-Plea Negotiations: Two Rules
MR 4.4a: in representing a client, a lawyer shall not use means that have no substantial purpose
other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence
that violates the rights of such a person.
MR 8.4: it is professional misconduct for a lawyer to, (c): engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation, (d): engage in conduct that is prejudicial to the administration
of justice.
XI. Real Evidence

-Real Evidence: a document or object that may have relevance to a pending or impending case.
-Real Evidence is governed by three clusters of doctrine:
1. Obstruction of Justice statutes (bind to lawyer and everyone else too criminal sanctions)
2. Attorney-client privilege (when a lawyer handles real evidence, what kinds of obligations attach with
respect to the privilege governs whether the attorney can say anything about it)
3. Ethics/professional discipline: what are the ethics rules say about this. Ex. disbarment
1. Real Evidence and Criminal Law
18 USC 1512, 1515, 1519
o 1512(b)
35

Whoever knowingly uses intimidation or physical force, threatens, or corruptly
persuades another person, or attempts to do so, or engages in misleading conduct
toward another person, with intent to...(2B) alter, destroy, mutilate or conceal an
object with intent to impair the objects integrity or availability for use in an official
proceeding is guilty of obstruction.
o 1512(c):
Whoever corruptly (1) alters, destroys, mutilates, or conceals a record, document, or
other object, or attempts to do so, with the intent to impair the objects integrity or
availability for use in an official proceeding, or otherwise obstructs, influences, or
impedes any official proceeding
o 1512(f)
For the purposes of this section, an official proceeding need not be pending or about
to be instituted at the time of the offense, and
The testimony or the record, document, or other object need not be admissible in
evidence or free of a claim of privilege.
*But likely there must be a nexus between the illegal act and a proceeding that is at
least foreseeable Aguilar
o 1519
Whoever knowingly alters, destroys, mutilates, conceals, covers up...any record,
document, or tangible object with the intent to impede, obstruct, or influence the
investigation or proper administration of any matter is guilty of obstruction.
Doesnt need to be tied to an imminent or pending proceeding. Relaxes the proximate
-ness of the proceeding...
o 1515(a)(1):
an official proceeding means a proceeding before a judge or court of the US...,a
proceeding before Congress, a proceeding before a fed govt agency authorized by
law
o 1515(c)
This chapter does not prohibit or punish the providing of lawful, bona fide, legal
representation services in connection with or anticipation of an official proceeding
Is this a safe harbor for lawyers?
US v. Russell
o Lawyer destroyed computer that was part of an investigation regarding child pornography. No
charges had been filed yet. He didnt know about investigation, I think...
o Issues:
Nexus issue between his conduct and an official proceeding. Forseeability?
The laptop itself was illegal in and of itself to possess. The laptop was contraband.
o His options:
Keep the laptop (but this is illegal, because it is contraband)
Destroy it (illegal, because he got in trouble for this)
Turn it over (but hurts his client)
Leave it alone with the church, and instruct them of their rights under the law (but its
contraband)
SEE 18 USC 1515c: give them bona fide lawful legal advice. Say, this is your
decision, it will destroy you though...
Issue with definition of concealment
36
When in doubt, return the real evidence to your client, write them a detailed letter absolving yourself of
liability and giving them honest, bona fide legal advice...
2. Real Evidence and the Attorney Client Privilege

People v. Meredith
o Was testimony regarding the location of a wallet lost during a crime privileged?
o Privilege extends beyond communications with the client it includes information the lawyer or
his agent may have acquired as a direct result of his representation.
o Privilege doesnt attach to objects, but to information about objects.
o The holding:
If defense counsel learns of real evidence from direct representation of his client, his
observations derived from privileged communications are insulated from revelation.
But if counsel chooses to remove evidence to examine or test it, the original location and
condition of that evidence loses the protection of the privilege.
o Questions: What if the client had retrieved the wallet and handed it to his attorney? Was he
required to turn over the wallet?
It was the fruit or instrumentality of a crime, it was illegal to keep it.
What about it being concealment?
3. Real Evidence and Legal Ethics
MR 3.4a: (not very helpful, because it punts to other law to determine if something is lawful)
o A lawyer shall not obstruct another partys access to evidence or unlawfully alter, destroy,
or conceal a document or other material having potential evidentiary value. A lawyer shall
not counsel or assist another person to do any such act.
o DR 1-102, 7-102, 7-109 is similar
In Re Ryder
o Attorney moved evidence of his clients crime from his lockbox to his own. Includes stolen
money a gun. Acted in good faith though.
o He should have just left the evidence where it was, and he has no obligation to turn it over to the
police. Then, counsel his client to the practical and legal ramifications.
Dont forget, the money and gun were contraband. It was illegal for him to possess this
stuff.
o So Ryder ended up:
Possessing contraband (both gun and money)
Committed obstruction of justice by concealing it from govt
And therefore, he violated ethics rules.
-Duty to Turn Evidence Over to Police
If the lawyer does not take possession, he has no obligation to reveal its location
An attorney may assert the privilege in resisting a summons to produce documents that were delivered to
him by his client IF the document would have been privileged while in his clients possession.
Can an attorney possess evidence but not turn it over be found guilty for concealing it????
X. Prosecutors
-Special rules for Prosecutors.
37
MR 3.8. Gives duties to help free those wrongly convicted

Enormous power to decide whom to investigate and charge, to pick charges, to offer pleas
bargains/withhold them
o These powers are beyond review
MR 3.6 Forbid lawyers from making public statements that will have substantial likelihood of materially
prejudicing the trial in their matters.
Javonovic Case (pg 476)

Three things needed to be proven
o Improper Leaks
o Denied a fair trial
o Other Remedies not available.
- Making the Charging Decision.
MR 3.8 very broad. Requires prosecutor to refrain from prosecuting a charge that the prosecutor
knows in not supported by probable cause.
ABA Crim. Justice Standard 3.39(b): Prosecutor is not obliged to present all charges which the
evidence might support. The prosecutor may in some circumstances and for good cause consistent
with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist
which would support a conviction. Illustrative of the factors which the prosecutor may properly
consider in exercising his/her discretion are:
o (i) the prosecutors reasonable doubt that the accused is in fact guilty;
o (ii) the extent of the harm caused by the offense;
o (iii) the disproportion of the authorized punishment in relation to the particular offense or
the offender
o (iv) possible improper motives of the complainant;
o (v) reluctance of the victim to testify
o (vi) cooperation of the accused in the apprehension or conviction of others; and
o (vii) availability and likelihood of prosecution by another jurisdiction
(f) the prosecutor should not bring or seek charges greater in number or degree than can
reasonably be supported with evidence at trial or than are necessary to fairly reflect the gravity of
the offense.
XI. Negotiations and Transactional Matters

-What rules constrain a lawyer in conduction negotiations for a client?
MR 4.1: in the course of representing a client, a lawyer shall not knowingly (a) make a false
statement of fact to a third person...
MR 1.2(d): a lawyer shall not counsel to a client to engage or assist in conduct the lawyer knows it
criminal or fraudulent
o But a lawyer may give an honest opinion about the actual consequences that appear likely to
result from a clients conduct.
MR 8.4c: it is professional misconduct for a lawyer to engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation.
17 CFR 240.10b-5: (relevant to securities)
38

o It shall be unlawful for any person (b) to make any untrue statement of material fact or to
omit to state a material fact necessary in order to make the statements made, in the light of
the circumstances under which they were made, not misleading, or (c) to engage in any act,
practice or course of business which operates or would operate as a fraud or deceit upon
any person, in connection with the purchase or sale of any security.
-Rules that Prohibit Omissions in Negotiations and Transactions
MR 4.1: Truthfulness in Statements to Others
o (b) in the course of representing a client, a lawyer shall not knowingly (b) fail to disclose a
material fact to a third person when disclosure is necessary to avoid assisting a criminal or
fraudulent act by a client, unless disclosure is prohibited by Rule 1.6 (confidentiality)
Comment 1: ...misrepresentation can also occur by partially true but misleading
statements or omissions that are the equivalent of affirmative false statements.
o Failure to disclose is subordinate to Rule 1.6.
If an exception to 1.6 applies, therefore disclosure isnt prohibited by 1.6, then that
OPTION is converted by MR 4.1 into a REQUIREMENT.
MR 3.3: Candor towards Tribunal
o A lawyer shall not knowingly make a false statement of fact or law, fail to disclose legal
authority known to the lawyer to be directly adverse to the clients position, or offer
evidence that lawyer knows to be false...)
17 CFR 240.10b-5: it shall be unlawful for any person to omit to state a material fact necessary in
order to make statements made, which under the circumstances are misleading...
-How far can you go? Two threshold questions:
1. Bad Client Issues: Weighs loyalty and confidentiality against the interest in avoiding or minimizing
harm to innocent victims of a clients illegal conduct. When these clash, whose interests prevail?
a. MR 3.3: lawyer may have to correct a fraud on a tribunal even if it means revealing confidences
protected by MR 1.6. But if a client has engaged in a criminal or fraudulent act against a third
part, the lawyer obligation to take corrective action to avoid assisting the client is subordinate
to Rule 1.6.
b. If a lawyer discovers that a client is perpetrating a fraud or a crime cannot assist the client and
will have to withdraw from the representation (MR 1.2(d) and 1.16(a)(1)).
c. Other confidentiality and entity issues.
2. Are there ethical limitations on a lawyer during negotiations that do not constrain the conduct of other
people selling negotiation services.
a. MR 4.1(a): in representing a client, a lawyer may not knowingly make a false statement of
material fact or law to a third person.
b. Comment 1: partially true but misleading statements or omissions may be the equivilent of
affirmative false statements and the rule can be violated if a lawyer incorporates or affirm
another persons statement the lawyer knows is false.
c. Comment 2: says that certain statements, not nominally facts, may not be taken as statement of
material fact. (My client will not settle for less than X)
Puffery VS Lying:
-If during a negotiation, you are authorized to accept a settlement for 100 bucks (and your client only NEEDS
80 but wants 100), and the other side offers 110, can you say:
That offer isnt even in the ballpark. Take a hike
o Does this violation Rule 4.1 (outlaws lies about facts)
39
o You can engage in puffery, but not lie about mistakes of fact.
o Even though that settlement IS within the ballpark, are you lying about facts by saying it isnt?
o This is probably fine.
My client has not authorized me to settle for less than 150.
o Is this more of a lie than something else?
o ABA said this is probably ok, but in the gray area.
That offer will not cover the cost of fixing my clients car, which will be 150 dollars.
o This is a direct contradiction of an objective fact.
o This steps outside a negotation, and relates to a real fact. Has repercussions outside of the
negotiation.
o Tebbe thinks this would not be permitted.
-Confidentiality, Loyalty, and the Duty Not to Aid Fraud

Rubin v. Schottenstein, Zox and Dunn
o While an attorney representing a seller in a securities transaction may not always be under an
duty to volunteer information about the financial condition of his client, he assumes a duty to
provide complete and non-misleading information with respect to subjects on which he
undertakes to speak.
o Admission to the bar imposes a heightened requirement of probity. And a lawyers duty of
confidentiality doesnt give him the right to lie or mislead with impunity.
o Note: even if the attorney does mislead, the litigant must prove he reasonably relied on the
misrepresentation.
-Noisy Withdrawals
If you have a real conflict between 1.6 and 4.1, you not just withdraw from representation, but tell
people they shouldnt rely on documents you had given them.
It appears in MR 1.2, comment 1.
Compromise between duty to not assist in crime and fraud and duty of confidentiality.
-Bad construction client example in book
Under MR 4.1, should the lawyer have told the home buyers that her builder she represented used poor
out-of-contract plumbers?
o First, in order to figure out, under MR 4.1b, if there was something fraudulent going on, need to
look at the law of the jurisdiction. If the actions were fraudulent, she would need to disclose this
information, unless it was prohibited by Rule 1.6.
o Second, also need to figure out of the jurisdictions substantive law would render her liable if she
didnt say anything. Would her silence in the face of fraud make her liable. Duty to speak?
Analyze this sort of problem under MR 4.1, 1.6, and substantive law of fraud
o While the MRs do not impose a duty to speak, substantive law might.
o May attorney tell home buyers? Depends on Rule 1.6b2,3. IF the exceptions dont apply, then she
must do a noisy withdrawal to avoid substantive law liability.
o IF the substantive law would require her to speak, then see the exception for 1.6!
o Does she have to reveal to govt agency? Look at 1.6 exception...
XII. Lawyers for Entities

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-Lawyers for entities, that is, a corporation, government, union, or limited/general partnership, may face
especially complex professional problems. An awkward triangle of representation develops:
Lawyers client is the corporation
But lawyer must represent the corporation through officers/agents of the corporation who are not
ordinarily clients.
The Relevant Rules Affecting Lawyers for Entities:
MR 1.3(a): a lawyer employed or retained by an organization represents the organization acting
through its constituents
MR 1.13(g): a lawyer representing an organization may also represent any of its constituents
subject to the provisions of MR 1.7 (conflicts of interest, current clients)
MR 1.13(f): in dealing with an organizations constituents, a lawyer shall explain the identity of
the client when the lawyers know or reasonably should know that the organizations interests are
adverse to those of the constituents with whom the lawyer is dealing
MR 4.3: in dealing with a third person not represented by counsel, the lawyer shall not state or
imply he is disinterested. The lawyer shall make reasonable efforts to correct misunderstandings.
A. Conflicts and Confidentiality in Entity Representation
-Tekni-Plex, Inc v. Meyner & Landis
P retained D to obtain a permit and merge with a new company. At the time of this merger, D also
represented the sole shareholder of P in personal matters. The newly merged entity sued the former
shareholder concerning issues of the permit. P retained D in the matter the newly merged entity
opposes the representation based on conflict of interest.
Issues:
o Whether long time counsel for the seller corporation and its sole shareholder may continue to
represent the shareholder in a subsequent dispute with the buyer?
NO! When buyer continues the pre-existing business operation the buyer displaces the
seller corporation and former shareholder the buyer controls the attorney client
privilege in matters concerning the companys operation, so they have a conflict of
interest.
The court applies a three part test:
Did the buyer-company assume the role of the Ds former client?
Are the matters involved in both representations substantially related?
Are the interests of the Ds present client (the shareholder) materially adverse to
the interests of the former client (who is now the buyer)
o Whether the attorney-client privilege as to pre-merger communications transfer to the buyer?
YES! The control of the privilege for all pre-merger communications transfers to the
buyer. However, the buyer did not have transferred to them any communications
regarding the merger itself.
The court used an interesting analytical tool separating pre-merger and merger
documents for privilege analysis.
This allows the buyer to keep and withhold documents that have the P shareholder name
on them!
-Formation of a Corporation
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Jesse v. Danforth: in the formation of a corporation by individuals, once the corporation is created, it
becomes the only client retroactively, displacing the corporate organizers, who become retroactive nonclients. The court argued this enhances the corporate lawyers ability to represent the interests of the
corporation. This is even if the corporate organizers give the corporate lawyer information that is
personal of theirs! Doesnt this discourage full disclosure!
-Corporate Officers and Employees

When control of a corporation passes to new management, the authority to assert and waive the
corporations attorney-client privilege passes as well.
A corporate officer or employee will enjoy the privilege along with the corporation if he can establish
that his communications with entity counsel were part of a joint representation this usually fails. They
must demonstrate
o They approached counsel for the purpose of seeking legal advice
o They were clear that they were seeking advice in the personal not corporate capacities,
o Demonstrate that counsel saw fit to communicate with them in their individual capacities,
knowing that a possible conflict could arise,
o Their conversations with counsel were confidential,
o The substance of their convos did not concern matters within the company or the general affairs
of the company.
This tactic often succeeds when the board of directors ask a lawer to investigate possible wrong-doing.
But, think of the consequences there would be conflicts that would immobilize a lawyer conducting an
internal investigation if he had to represent the employees too. SEE MR 1.13(f).
-Members of Corporate Families
If you represent one member of a corporate family, do you thereby have attorney-client relationship with
its affiliates?
ABA Opinion 95-390 concluded that representation of one company will make its corporate affiliate a
client only under certain circumstances
o If firm and client agree that affiliates will be clients
o If the two companies operate as alter-egos,
o Integrated operations and management,
o Same in-house legal staff handles matters
o Representation of the client has provided the law firm with confidential information about the
affiliate that would be relevant in any matter adverse to the affiliate.
If a firm represents parent corporation, and is retained to sue subsidiary corporation, economic adversity
alone will not create a conflict (ABA Opinion). RST of lawyers disagrees.
For general partnerships, the lawyers client is the partnership as an entity, not an individual partner.
-Privilege and Conflict in Shareholder (and Other Fiduciary) Actions
What happens in a shareholder derivative action? In this action shareholders should be permitted to
show cause why the privilege should not be invoked in this instance. This is because the shareholders
are suing the corporation...(Garner v. Wolfinbarger)
B. Retaliatory Discharge and Whistleblowing
42

-Claims of retaliatory discharge afford tort recovery when an employee is discharged for insisting on
compliance with or the protection of an important public policy. Lawyers used to be precluded from bringing
such actions not anymore...
i. Whistleblowing: Sarbanes-Oxley amendments...
-MR 1.13(c): acts as a further exception to MR 1.6 allows a lawyer to whisteblow to someone outside the
company.
MR 1.13(b): Reporting Up
o if a lawyer for an organization knows that an officer, employee, or other person associated
with the org is engaged in action, intends to act or refuses to act in a mater relating to the
representation that is a violation of law and that is likely to result in substantial injury to
the org, then the lawyer shall proceed as is reasonably necessary in the best interest of the
organization. Unless the lawyer reasonably believes that is not necessary, the lawyer shall
refer the matter to the highest authority in the org including to the highest authority that
can act on behalf of the org under applicable law.
MR 1.13(c): Reporting Out
o If 1. Despite the lawyers efforts in accordance with paragraph B, the highest authority
insists upon or fails to address an act/omission that is clearly a violation of law, and
o 2. The lawyer reasonably believes that the violation is reasonably certain to result in
substantial injury to the org, then the lawyer may reveal information relating to the
representation whether or not Rule 1.6 permits such disclosure, but only to the degree
necessary.
MR 1.13(d): paragraph C shall not apply with respect to information relating to a lawyers
representation by an organization to investigate an alleged violation of law, or to defend the org.
17 CFR 205.3B1: (SEC regulations)
o if an attorney, appearing and practicing before the commission in the representation of an
issuer, becomes aware of evidence of a material violation by the issuer or by any officer,
director, employee, or agent, the attorney shall report such evidence to the issuers chief
legal officer (or the equivilent thereof) or to both the issuers chief legal officer and its chief
executive officer (or the equivilent thereof).
17 CFR 205.3B3:
o unless an attorney who has made a report under paragraph B1 of this section reasonably
believes that the chief legal officer or the chief executive officer of the issuer has provided
an appropriate response within a reasonable time, the attorney shall report the evidence of
a material violation to:
o audit commit of the board of directors,
o another independent committee of the issuers board of directors, or
o the issuers board of directors
ii. Retaliatory Discharge
-Crews v. Buckman Laboratories International, Inc
A lawyer may generally bring a claim for retaliatory discharge when the lawyer is discharged for abiding
by the ethics rules as established by this court.
The Test:
o An employment at will relationship exists
o Employee was discharged
43
o The reason for the discharge was that the employee attempted to exercise a statutory or
constitutional right, or for any other reason which violates a clear public policy evidences
by an unambiguous constitutional, statutory, or regulatory provision, and
o A substantial factor in the discharge was the employees exercise of protect rights or
compliance with clear public policy.
Policy: encourage employee to protect public interest. Protect them, just like we protect others.
Counter-Argument: dont need retalitiatory discharge to persuade lawyers to support the public interest
and do the right thing...
-The Rights of Associates

New york courts have been the least generous in recognizing breach of contract or retaliaitry discharge
calims for at will employees.
C. Sarbanes-Oxley and the Rule 1.13 Amendments
Sarbanes-Oxley (SOX) was the most significant federal legislative response to the coproate scandals in
the US (Enron, Arthur Anderson, etc...)
Now requires attorney to report evidence of a material violation of law, breach of fiduciary duty, etc... to
the chief legal counsel or CEO , and
If the counsel or officer doesnt respond sufficiently, they must report to to someone else that can do
something...
The import of this action and the amendment to MR 1.13 compel the lawyer to act to protect the client
against the misconduct of its other agents...
Basically, the law is about making sure lawyers ensure the law is being followed.
XIII. Control of Quality: Remedies for Professional Failure

A. Malpractice and Breach of Fiduciary Duty
Legal Malpractice
negligence
also called legal negligence, or confusingly,
malpractice
may only be brought against lawyers
Breach of Fiduciary Duty

conflict of interest, e.g.
or misuse of client confidences
may be brought against any fiduciaries, not just

lawyers
**When analyzing malpractice, analyze under both theories!
*** Conflicts are usually breach of fiduciary duty however, if you dont do something because of that conflict,
you can sneak it in under legal malpractice.
1. Liability to Clients
-Togstad v. Vesely, Otto, Miller and Keefe
Togstad approached the D with the facts of a claim he said that he did not think we had a legal case
but that he would discuss it with his partner. He didnt call back Togstad and she assumed there was
no other case. She didnt consult another attorney for a year, when the statute of limitations was up.
Sued for legal malpractice.
P alleges that D failed to perform the minimal research that an ordinarly prudent attorney would do
before rendering legal advice in a case of this nature.
44
D alleges a) no attorney-client relationship and b) that even if so, his error was not the type to give rise
to legal malpractice.
Four elements must be shown:
o An attorney-client relationship existed
o D acted negligently or in breach of contract
o That such acts were proximate cause of the Ps damages
o That but for the Ds conduct the Ps would have been successful in the prosecution of their
medical malpractice claim.
Look at standard of care, below
A mere error of judgment does not constitute malpractice look at what an ordinarily prudent attorney
would do before rendering legal advice in a case of this nature.
o The degree of skill, care, diligence, and knowledge commonly possessed and exercised by a
reasonable careful and prudent lawyer in the practice of law in this jurisdiction.
o Usually applies to the state.
what is required to prevent malpractice after togstad?
o Tell them you arent an attorney with experience in that area
o And that you arent their attorney
o And they need to see a new one
o And be careful about statute of limitations
o maybe send them a letter
o In togstad, the mistake was you dont have a case and Ill look into it
What is the Required Standard of Care

If a lawyer has persuaded a client to use her services by proclaiming some expertise in a particular field,
the client will expect her to know more about the field than a lawyer who makes no such claims, and the
lawyer will be judged by the standard of the specialty.
When a lawyer recommends a settlement, he will have been expected to have done the legal and factual
research necessary to determine its adequacy.
Fraud
If a lawyer lies about his qualifications to a client, a person, he can be liable for fraud.
Look at law of the jurisdiction
Breach of Fiduciary Duties
If a client suffers a loss as a result of a lawyers conflict of interest, the client will be able to recover for
breach of fiduciary duty or in malpractice.
A fiduciary may not use a clients confidential information to the clients disadvantage.
Ex: Sex with clients. Using information about a clients divorce and emotional state to get her in bed
could constitute breach of fiduciary duty (Tante v. Herring)
2. Third Parties as Claim Equivalents
Some courts have upheld professional liability to third parties, by concluding that even though the P
never actually retained or sought to retain the D lawyer, the P was entitled to the benefit of the service,
and the same duty of care, the lawyer an agreed to provide to the actual client.
Will drafting, for example.
45
A nonclient P must prove that the primary purpose and intent of the attorney-client relationship was to
benefit or influence the third party.
3. Vicarious Liability
Law partners are personally liable for their colleagues wrongdoing.
But when a lawyer borrows money from a client and doesnt pay it back, the lawyers partners may be
sued. The defense could be that borrowing money from a client is not within the scope of legal
partnership so that there is no vicarious liability.
o Could sue under 2 theories when a lawyer charges too much:
All partners liable for a partners wrongful acts within the scope of the partnership, and
Co-partners were liable for negligent supervision.
Limited liability partnerships like ordinary partnerships except the partners are personally liable only
for their own professional negligence or breach of duty and potentially liable for similar conduct of
lawyers they supervise. The entity remains liable for the malpractice of its lawyers.
B. Proving Malpractice
1. Use of Ethics Rules and Expert Testimony
Lawyers can use experts and the standards of professional responsibility rules in order to prove that a
lawyer has violated a duty of care or breach a fiduciary or other duty.
Paragraph 20 of the scope says that a lawyers violation of a rule may be evidence of ab reach of the
applicable standard of conduct (MR)
-Smith v. Haynsworth, Marion, McKay and Geurard
A P in a legal malpractice action must generally establish the standard of care by expert testimony.
A majority of curts permit discussion of a violation of the professional responsibility rules as evidence of
the common law duty of care the expert must address the testimony to the breach of the legal duty of
care, and not simply to breach of disciplinary rule.
Other courts have held ethical standards conclusively establish a duty of care and that any violation is
negligence per se.
A minority of courts establish a rebuttable presumption of legal malpractice.
A few courts hold that ethical standards are inadmissible in legal malpractice actions.
Ethical Violations as a Basis for Reduction or Denial of Fees
Hendry v. Pelland: a breach of duty of loyalty diminishes the value of the attorneys representation as a
matter of law, and a degree of forfeiture of fees is appropriate without proof of injury.
Fee Forfeiture and Disgorgement
o Forfeiture: when a lawyer loses his right to collect the fee.
o Disgorgement: when the lawyer has to give back what he got.
o A client need only show misconduct for this relief, not proof of harm.
2. Causation and Defenses
Viner v. Sweet
o When alleged malpractice occurred in performance of transactional work (giving advice or
prepearing documents for a business transaction), the client must prove that the harm or loss
would not have occurred without the attorneys malpractice.
o It must be shown that the loss suffered was in fact caused by the alleged attorney malpractice.
46
o Ask, what would have happened if the D attorney had not been negligent.
The But For Test in Legal Malpractice
o When a P alleges malpractice in litigation, the but for test requires her to prove a case within a
case.
In the case against her former lawyer, she must prove the malpractice.
Then she needs to prove that absent the lawyers mistakes, she should have come out
better in the underlying case.
o In fiduciary duty, the causation is related is the lawyers malpractice a substantial factor?
ALSO: HAPPINESS
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I. Where do Ethics Rules Come From?