Legal Profession Book Outline

Westley

Introduction

Sources of Regulation
1. ABA Model Rules
a. Adopted in most states.
b. Preamble
i. Lawyers are officers of the court.
ii. Lawyers should do pro bono work.
iii. MR 6.2 requires the acceptance of court appointments.
iv. Duty of confidentiality begins when a potential client approaches an attorney
for legal advice and discusses the possibility of taking the case. Attorney-client
relationship begins after the case has been accepted. The relationship continues
until one informs the other of its termination. When ambiguous as to
formation/termination, the client’s reasonable understanding determines the
issue.
1. Prospective/current/former client status determines the level of
obligation with respect to COIs.
2. Attorney-client confidentiality privilege exists to protect client’s
interests. Lawyer cannot invoke for his own protection.
2. ABA Model Code
a. Disciplinary Rules are binding
b. Ethical Considerations are aspirational
3. American Law Institute (ALI)’s Restaement Third of the Law Governing Lawyers

Actual Regulation
1. Licensed to practice by the highest state court (self-regulated).
2. Lawyers police themselves: state will adopt rules voluntarily and impose them on anyone who
wants to practice in that jurisdiction.
3. Federal court requires a separate license, and prior license by a state court.
4. Attorney malpractice (negligence)
a. Model Rules and Code are not intended to impose civil (tort) monetary liability.
However, the rules may be considered in determining the standard of care.
b. A deviation from the controlling standard of care, which requires the lawyer to exercise
ordinary skill, care, and diligence exercised by lawyers in similar circumstances.
c. Not community standards, but national norms.
d. P must prove a non-negligent lawyer would have obtained a better result.

Problem 1: Hanging Out Your Shingle

MR: 1.1, 1.2, 1.3, 1.4, 1.5, especially 1.5(e).
MC: DRs 2-103, 2-106, 2-107, 6-101(A), 7-101; EC 7-8.

MR 1.1: Duty of Competence

- Lawyers must be reasonably competent to take a case
o Reasonable knowledge, skill, thoroughness, and preparation; or
o Associate oneself with a competent attorney
 If share fees, triggers fee sharing requirements of MR 1.5(e)
- In a particular, specialized field, lawyer needs more than the knowledge base of a general practitioner.
- Emergencies: lawyer may give necessary advice to a client who needs it, despite lacking ordinary
skill and knowledge.
- Competence = conducting factual and legal research
o Client cannot waive competence requirement.
- Stay up-to-date requirement

MR 1.2: Scope of Representation and Allocation of Authority

- Client has ultimate authority over the goals of the representation. Lawyers must abide by the client’s
decisions regarding objectives of representation, and consult regarding the means.
- Criminal cases: lawyer must follow client’s wishes in whether and how to plead, whether to have a
jury, and whether to testify
- Civil cases: lawyer must follow client’s decision to settle or not.
- Disagreement over the means: lawyer should consult with client to resolve the conflict. If
irresolvable, lawyer may withdraw subject to the requirements of MR 1.16, or client may fire him.
- Though a lawyer cannot assist a client with fraud/illegal acts, he can discuss the legal consequences
of actions with the client
o encourages open communication
- However, a lawyer should not assist a client in planning or avoiding the consequences of his wrongful
acts.
o E.g. lawyer should not advice criminal client of which countries do not have extradition
treaties with the U.S.
- Agreements concerning the scope of representation are acceptable and enforceable if:
1. Reasonable under the circumstances; and
2. client fives informed consent
- Comment 5: lawyers shouldn’t decline unpopular clients/cases
- No ethical duty to represent anyone that asks for representation
o The legal community strongly encourages taking on unpopular clients though
o Stronger case, not a requirement, but stronger case to accept a client who absolutely cannot
find alternative representation.
- Comment 9: there is a difference between presenting an analysis of legal aspects of questionable
conduct and recommending the means by which a crime or fraud might be committed with impunity.
- Comment 10: When lawyer discovers the client’s ongoing conduct is criminal/fraudulent, lawyer
must withdraw under MR 1.16(a), and may need to disaffirm any opinion, document, affirmation or
the like under MR 4.1.

MR 1.3: The Duty of Diligence

- Attorneys must be reasonably diligent and prompt.
- It does not require lawyers to use standard approaches to problems.
- Zealous Advocacy
- Attorneys especially need to attend to:
1. controlling their workload;
2. statutes of limitations;
3. procrastination; and
4. informing the client that the representation is complete
o Issue when atty serves for long period of time, client may be confused. Atty should
clarify preferably in writing.
o Sole practitioners may need plan upon death/disability for another atty to take inventory
of matters
MR. 1.4: Communication
- Lawyers must
1. keep clients reasonably informed of the status of their cases;
2. make sure the client understands what the attorney is doing; and
3. respond to client inquiries.
4. Consult with clients about limitations of atty’s conduct with regards to the Rules
5. Explain matters reasonable necessary to permit client to make informed decisions re: the
representation

MR 1.5: Fees
- Fees must not be unreasonable
- Factors: (Limitations, Opp cost, Customary fee, Amt at stake, Time/labor/skill, Experience,
Relationship, Nature of fee-contingent or not) LOCATE RN
1. time required
2. difficulty of the case
3. likelihood that acceptance of this representation will preclude lawyer from accepting other
employment
4. customary fee for this kind of work
5. time limitations for the case
6. type of lawyer-client relationship
7. **lawyer’s experience
8. lawyer’s reputation
9. lawyer’s skill
10. whether or not fee was contingent
- In Re Forham: inexperienced DUI lawyer can’t charge 3-4 times the usual rate in that locale
- Raymark- D law firm allowed to keep $1,000,000 retainer after being fired 10 weeks into the
representation.
- Fee agreement should contain:
1. Amount
2. Manner fee will be paid
3. Scope of representation
- New clients: lawyer must explain the fee and how it’s calculated, preferably in writing, when
representation begins. Lawyer must promptly communicate any fee changes.
- Contingent fees
- MUST be in writing, include method of fee calculation (including % accrued to atty upon
settlement, trial, or appeal) and court/other costs to be borne by client.
 CPR: contingency fee agreements don’t have to be in writing
- PROHIBITED in criminal and domestic relations cases.
 CPR: RARELY permitted in domestic relations cases.
- Court costs can be contingent on the outcome, and can be free for indigent
 CPR: court costs must be paid by client.
- Only reasonable when there are potential risks to the lawyer in taking the case.
 In Brobeck, there was no way Lasky could get $0, so huge contingency fee he ended
up getting was unreasonable both b/c lack of risk and b/c amount was
unreasonable/excessive.
- Different-firm attorneys may divide fee only if:
1. It’s divided in proportion to the work they do OR if they assume joint responsibility for the
case;
 2. client agrees to division in writing; and
3. total fee is reasonable
 CPR: allows fee splits based only on proportionate (actual) work, so can’t take a fee
if do no work but accept joint responsibility, and does not require in writing.
1. Client should be told, and must approve, of the relative %s
2. Accepting joint responsibility makes the lawyers ethically and financially
responsible for the representation as if partners.
- It is per se unreasonable to be paid for simply referring a client to another lawyer, unless the
first lawyer accepts joint responsibility.
- Rules: fee must not be unreasonable, Code: fee must not be clearly excessive.
- Property as payment
- Lawyers may receive both real property and stock shares instead of money
- It’s subject to more scrutiny if there’s a later dispute as to payment.
- If disputed, lawyer should attempt to resolve it through arbitration
- But lawyer is not prohibited from suing client to collect the fee.
- Transfers of property trigger requirements in MR 1.8
- Payment from 3rd parties (See also Insurance Triangle)
1. Permitted, but they must remain loyal to interests of the client, not 3rd party.
2. Lawyer must still preserve client’s confidentiality pursuant to MR 1.6 and MR 5.5(c) and
take direction regarding the scope and purposes of the representation solely from the client
pursuant to MR 1.2.

Problem 2: Must We Take This Case?

MR: 1.2, 1.7, 1.16, 6.1 especially (b)(3), 6.2
MC: DRs 2-109, 5-101; ECs 1-1, 2-1, 2-26, 2-27, 2-28, 2-30, 7-1

MR 1.16: Declining or Terminating Representation

- Withdrawal is mandated when:
1. continued representation will result in the attorney violating an ethical norm or the law;
2. the attorney is so ill as to be impaired; or
3. the attorney has been fired.
- Note Atty’s 1.14 duty if client has severely diminished capacity
- Withdrawal is permissible when:
1. no harm results to the client (w/o material adverse effect on client)
2. the client irrevocably intends to commit a crime or fraud
a. or atty finds out client has misused the atty’s services in the past, despite prejudice to
client
3. the lawyer finds the case repugnant
a. such that lawyer can no longer defend the client zealously
4. the lawyer’s fee has not been paid and the lawyer had forewarned the client that in such
instance he would withdraw; or
5. the case is posing substantial financial hardship on the lawyer.
- Withdrawal is not permissible when the tribunal requires the lawyer to continue as counsel
- Upon termination, the lawyer shall give the client:
1. relevant client papers
a. unless the law allows an attorney lien on the papers to guarantee fee payment
2. any unearned parts of the prepaid fee

MR 6.1: Pro Bono Work

- Lawyers should do some pro bono legal work (50 hours/year is recommended) and should participate
in activities for improving the law, the legal system or the legal profession.
1. It’s not required to be ethical, just recommended/aspirational

MR 6.2: Accepting Appointments

- Where a tribunal appoints a lawyer to represent a client, he should accept it unless for good cause
such as:
1. doing so would cause him to commit an ethical violation;
2. it would cause him an “unreasonable financial burden;” or
3. the lawyer is so repulsed by the client or the client’s cause as to not be able to represent him
zealously.
- Appointed lawyers have the same duties to clients as do ones retained and chosen by the client.

Problem 3: Getting a Client and Getting Paid

MR: 1.1, 1.2, 1.4, 1.5, 1.8 especially (a), (e), and (i).
MC: DRs 2-103, 2-106, 2-107, 5-101 (A), 5-103, 5-104(A), 7-101; ECs 5-1, 5-3, 5-5, 5-7, 5-8, and 7-8.

- Where there’s a vague scope of representation, and something bad happens later, it’s the lawyer’s
problem for not specifying what her services would cover.

MR 1.8: Specific Rule of Current Client COIs

- Where an attorney enters into a business transaction with a client:
1. the terms must be fair
2. the terms must be in writing and reasonably understandable to the client
a. if client is non-lawyer, complex contract terms must be separately explained in
writing in plain language
3. client should be informed in writing of the conflict
4. client must be advised in writing that he should seek independent advice from another lawyer
5. client must give informed consent in writing that states the essential terms of the transaction,
the lawyer’s role in the transaction, and whether the lawyer is representing the client in the
transaction.
- Attorneys must not use information obtained from clients against them unless there is consent after
consultation.
- Attorneys cannot solicit gifts from clients or prepare documents giving gifts to themselves (except as
a favor to a relative)
- Attorneys must not obtain book or media rights regarding the retelling of a pending case prior to the
completion of the case.
- It is permissible to obtain as a fee a % of independent literary material that is the subject of
the representation.
- This provision has the most stringent and extensive informed consent requirements of all the Model
Rules.
- Representing multiple clients:
1. Both civil and criminal: lawyer must relay all material information about any settlement/plea
to all of the clients.
2. Civil
a. Lawyer may not accept a settlement on their behalf without their written consent.
3. Criminal
a. Lawyer may not accept a plea on behalf of defendant clients without their written
consent.
- Malpractice liability – cannot be limited (unless jurisdiction allows it)
- Settling malpractice claim – lawyer must inform the client in writing that she should seek advice of
independent counsel
- Propriety interest in subject of a litigation – unethical except for liens to collect contingency/fee.
- Sex: only pre-existing consensual sexual relationships with a client are ethical
- Opposing counsel is close relative: lawyer can’t take the case unless there is client consent after
consultation.
a. If lawyer disqualified for familial relationship to opposing counsel, disqualified lawyer’s firm
can still handle case provided the lawyer is kept away from the case.

Kurtenbach Test – Whether Lawyer-Client Relationship Exists

1. Did the client seek advice from the lawyer?
2. Was it within the lawyer’s area of competence?
3. Did the lawyer, either directly or indirectly, agree to give the requested advice?
- The reasonable expectations and reliance of the alleged client are important

Flatt v. Superior Court (California Supreme Court 1994)

In talking to someone about a legal matter, you at a minimum have a duty of confidentiality. But you
may have even additional duties, to 3rd parties (mostly in cases involving the beneficiaries of a will). Old
common law would say no privity of K b/t the lawyer and the 3rd parties, but that’s no longer the case.

- Structured settlements v. immediate payment – lawyer cannot enforce an agreement that says lawyer
gets his money immediately if client wins a structured settlement b/c it’s not in the best interests of
the client.
- Ethical Consideration 7-8: a lawyer should initiate the decision-making process of what actions are in
the client’s best interests if the client does not take it upon herself to do so.

Problem 4: Communication and Confidentiality

MR: 1.2 especially (d) and Comment paragraphs 9 and 10; 1.6; 3.3; 4.1 (Note significant changes to MR
1.6 and 1.2, Comment paragraphs (6) and (7).)
MC: DRs 1-102, 4-101 especially (C), 7-102; ECs 4-1, 4-2, 4-4, 7-1, 7-5, 7-8.

- If you counsel your client to do the moral thing, and your client doesn’t listen, then the lawyer’s duty
is non-disclosure.
- If client presents lawyer with an instrumentality of a crime, lawyer should explain his turnover
duties should the instrumentality be left with him. If left, lawyer should comply with turnover duty in
a clever manner that doesn’t inform the authorities of the existence of the physical evidence.
- If client informs lawyer of the location of a fruit of their crime, lawyer has no turnover duty b/c he
doesn’t have possession.
- If someone bursts into lawyer’s office and makes a confession, but lawyer never agrees to represent
him, then there is a lawyer-client relationship only for the purpose of confidentiality and nothing
more.

MR 1.6: Confidentiality
- Lawyers shall keep all information relating to a client’s representation confidential unless a client
consents to its disclosure.
- A lawyer may (i.e. permissive) reveal confidential client information:
1. to prevent reasonably certain death or substantial bodily injury;
 1983 version just says “imminent death”
 2. to prevent the client from committing a crime or fraud that is reasonably certain to result in
substantial injury to the financial or property interests of another IF the lawyer’s services
furthered such act;
3. to prevent, mitigate, or rectify substantial financial harm that is reasonably certain to result
from the client committing a crime or fraud IF the lawyer’s services furthered such act;
4. to obtain ethical advice;
5. if ordered to by a court; or
6. to defend himself.
- In #s 2 and 3, knowing about the future crime or fraud is not sufficient to invoke the exception, the
attorney’s services must have been utilized in furtherance thereof.
- Policy is to promote trust b/t lawyer and client
o Client will usually follow lawyer’s advice when they know lawyer will not reveal
confidences
- This rule does not require attorneys to reveal confidential client information even when clients
forewarn them of the intent to do a violent crime
o BUT this rule is in variance with the weight of authority and ABA opinions
o This rule is the minority national opinion
- A lawyer may disclose some confidential information when discussing the case with firm members or
when engaging in authorized negotiations.
- Government lawyers: MR 1.6 applies equally to them, even when they disagree with the official
government policy.
- Comparisons
o ethical duty of confidentiality – VERY BROAD, attaches to any information relating to the
representation, no matter its source (client or any other source)
o attorney-client privilege/word product doctrine – apply on when the attorney is called to
be a witness or produce evidence in a case.
- Prospective or ongoing crimes using his services: lawyer must withdraw, and may disaffirm any
opinion or document he produced based on fraudulent information.
- To obtain his fee: MR 1.6 doesn’t prevent lawyer from disclosing confidences.
- Attorneys must first invoke the attorney-client privilege in court, but they must obey the court should
it order production of confidential information.
- Cmt. 4: it’s permissible to use a hypothetical to discuss issues related to a representation, but there
has to be no reasonable likelihood that the listener will be able to ascertain the identity of the client or
the situation involved. (Problem 5)

MR 4.1: Truthfulness in Statements to Others

- When dealing with 3rd parties in their representation of a client, lawyers must not lie (i.e. make a
false statement of material fact or law). 3rd parties must be treated with respect. Also, lawyers must
disclose material facts to avoid helping a client commit criminal or fraudulent acts (unless such
information is privileged).
o Whether a statement should be regarded as one of fact depends upon the circumstances.
o In negotiations, lawyers may basically lie b/c of the “circumstances.”
o Cmt 1
 A lawyer generally has no affirmative duty to inform an opposing party of relevant
facts.
 Misrepresentations can occur by partially true but misleading statements or omissions
that are the equivalent of affirmative false statements.

People v. Belge
Keeping client’s confessions confidential vs. not hiding physical evidence
• Two attys for a man on trial for murder did not disclose that they had seen extra bodies b/c atty-client
confidentiality
• Court said attys did not need to reveal existence of bodies—were covered by atty-client
privilege
• Rationale:
o Relationship b/w atty and client is like that b/w priest and penitent b/c it is premised on full
disclosure of all facts, even those re: prior crimes – to ensure this disclosure, must have
confidentiality
o The client that withholds information may not be accorded his full legal rights and the atty
who does not have full information may assert meritless or frivolous claims or defenses in
violation of ethics rules
o A strict rule of confidentiality best serves the client’s interests and the interests of the
public and judicial system

In Re Ryder (Va. 1967)

Client tells lawyer he has money in a safe deposit box. Lawyer goes and opens contents, finds the money
and the sawed-off shot gun used in the robbery. The lawyer cannot do this, it is not part of the scope of
attorney client privilege. Lawyers cannot hide evidence for their clients. They cannot hold onto
instrumentalities (e.g. the gun) or fruits (e.g. the money) of their clients’ crimes, legally. They also
cannot hold onto contraband (illegal in itself to possess). The contrast to these three things is “mere
evidence.” The distinction b/t the Garrows lawyers and the Ryder lawyer is that the Garrows lawyers did
not take possession of any instrumentality, fruit, or contraband. The REAL difference is observation v.
taking possession. The Garrows lawyer did take a photograph of the body, but that was neither an
instrument, fruit, nor contraband. If a client gives you one of these three things, you must turn them over
to the police. You don’t have to turn over your knowledge, just instruments, fruits, and contraband. Be
clever in turning over the evidence (mail via fed ex with no return address, or give to random gun drop
box).

People v. Meredith (Cal 1981)

• Passive Participation in Secretion of Evidence
o Atty-client privilege cannot be extended so that it renders evidence immune from
discovery and admission merely b/c the defense counsel gets the evidence first
o When Δ counsel alters or removes physical evidence, he deprives the prosecution of the
opportunity to observe that evidence in its original condition or location, and so privilege
does not extend to removing or altering such evidence
• Defense attys have TURNOVER duties  must turn over instrumentalities or fruits
(contraband) of crime
o “Mere evidence” does not have a turnover duty—must wait for prosecution to ask for it
 If the evidence is outside the atty’s possession or control, there is ALSO no
turnover duty
o Sometimes, this could come into conflict w/ confidentiality—how do you turn over a bloody
glove to the police?
REQUIRED to turnover, so must do so that minimizes the breach of confidentiality

Spaulding v. Zimmerman
Defense attorneys did not inform Spaulding or his lawyer about a potentially deadly aneurism that
Zimmerman’s attorney’s hired doctor identified. Spaulding’s attorney also did not request the results of
the examination. The doctor did not inform Spaulding of the aneurism either. Now, although just an
examining and not a treating physician, Zimmerman’s doctor would have to inform Spaulding of the
finding. Zimmerman’s defense lawyers had an obligation to at least inform their client (insurer or
insured?) who may have been perfectly OK with Spaulding finding out the diagnosis. It would be a
completely different case if the Zimmermans had been told and said not to tell Spaulding.

What should a lawyer do when the lawyer’s own client refuses to inform a third party about a potentially
deadly situation?
- MR 1.16(b)(4) states that a 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.

HIV Hypothetical
Client has HIV, has a significant other represented by a fellow colleague at the firm. Telling the
colleague would not violate MR 1.6 b/c they’re working for the same team. Telling the girlfriend would
violate MR 1.6 b/c you can only disclose information relating to the representation of a client (a) to
prevent reasonably certain death or substantial bodily harm (also (b) and (c)). Death from AIDS is not
reasonably certain anymore. Therefore, even under the permissive standard of MR 1.6(b), the lawyer
would not be justified in disclosing to the girlfriend. The lawyer could not HINT to the girlfriend about
getting an HIV test either, b/c Cmt. 4 to MR 1.6 says “this prohibition also applies to disclosures by a
lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery
of such information by a third person. That would be a breach of client confidentiality, and is unethical.

Client Gives You Fruit, Instrumentality, or Contraband

1. Explain to client your turnover duties under Ryder and Meredith, and abide by client’s decision.
2. Cannot advise your client to destroy evidence.
3. If client leaves them with you, comply with turnover duty in a creative manner, but cannot inform
the authorities of the existence of the physical evidence.

Problem 5: When Does a Lawyer Talk Too Much?

MR: 1.6, 4.4
MC: DRs 4-101, 7-101

MR 4.4: Respect for Rights of Third Persons

- Lawyers should not harass or embarrass third parties. They should avoid obtaining evidence in ways
that violate the rights of 3rd persons.
- Lawyers who receive documents (including emails) relating to the representation of their clients and
“know or reasonably should know that the document was inadvertently sent” should let the sender
know.
o The Rule does not address 1) whether the receipt of such a document waives any privilege
attached to it, or 2) the legal duties of the lawyer if the document was wrongfully obtained by
the sender.
o Whether or not to read return the document is a matter reserved for the lawyer’s own
professional judgment.

Refer to MR 1.6, Cmt. 4

Polly Klaas case

After Allen Davis was arraigned for murder of a young girl, Marteen Miller, the public defender assigned
to his case, told reporters that his client had admitted to abducting and strangling Polly Klaas while under
the influence. Not ethical at all.
Hard Hypotheticals – Confidentiality Absolutist
1. Wrong Inmate about to be Executed
a. Not reveal
b. It would not be unethical not to reveal under MR 1.6(b)(1) b/c revelation is discretionary
c. Even if you did reveal, it might not do any good.
2. Client Confides about Judicial Corruption
a. Client told his lawyer that a candidate for judgeship was planning to be engaged in
improprieties
b. The lawyer disclosed it to the authorities.
c. Unethical to reveal any information relating to representation of a client without informed
consent.
3. Corporate Clients that Confide about Unlawful Conduct that Affects Others
a. Abbe Smith thinks it’s different with corporate clients
b. Individuals rights aren’t as affected in the same way as in criminal defense
c. She recommends engaging in moral and legal counseling with the corporate client, and if
you can’t get anywhere, you have to maintain confidentiality.
d. BUT she doesn’t want to give them ANY circumstances to reveal confidential client
information

ABA Formal Opinion 98-411

Lawyer A → Client 1
↓
Lawyer B →

Where there is a quickie consultation, using hypothetical or anonymous facts, Lawyer B has no
relationship with Client 1, Client 1 is not a client even for confidentiality b/c no express or implied
agreement, and Lawyer B can use any of that information against Client 1.
- Prob. just addresses the quickie consult, not a longer legal relationship
- Lawyer B should do a conflict check before giving the consultation to Lawyer A, b/c if Lawyer B is
not representing Client 1 but rather Client 2, and Client 2 is in an adversarial relationship with Client
1, but Lawyer A doesn’t know that Lawyer B is representing Client 2, then Lawyer B is giving biased
advice.

Attorney-Attorney Consult
- Consulting attorney may not reveal confidential information to the consulted attorney under MR
1.6(a) without first getting the client’s informed consent. Without it, the consulting attorney only has
limited implied authority to disclose client information under ABA 98-411. Issue is often whether the
disclosure is impliedly authorized or not. The client controls the objectives of the representation
under MR 1.2, and the lawyer controls everything else. If lawyer is acting prudently, she would not
reveal without asking the client first.
- A prudent consulting attorney gets an advance promise of confidentiality.

Client Confidence v. Honesty to Court

- E.g. client admits name he gave police when arrested for DUI is false, he’s another person in trouble
with the law
- Client name falls within the terms of MR 1.6 as confidential information.
- MR 3.3(a)(1) says that “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.”
- If you’re not going to tell the court, have to argue that it’s privileged. It’s directly from the client, so
it’s likely privileged.

Problem 6: Technology & Confidentiality

MR: 1.6, 1.7, 4.4
MC: DRs 4-101, 7-101

MR 1.7: Concurrent COI

- Where a lawyer seeks to undertake a representation(s) that will create potential conflicts of interest,
he must:
1. have a reasonable belief that he can provide competent and diligent representation to each
client; and
2. acquire informed consent from each client, in writing.
- Directly adverse representations are prohibited.
- Representations where the lawyer’s other obligations or personal interests materially limit his ability
to represent a client effectively are prohibited.
 Material limitation – includes financial and personal conflicts in addition to obvious,
direct conflicts
- The Rule does not preclude representing multiple criminal Ds or civil parties on the same side,
provided there is no conflict of interest and each consents to any plea or settlement.
 MR 1.8(g): A lawyer cannot participate in making an aggregate settlement of the claims
of or against the clients, unless each client gives informed consent, in a writing signed by
the client.
- The Rule does not preclude representing parties on the same side of a transaction provided there is no
conflict of interest and the atty. obtains written informed consent.
- It is acceptable to take opposite positions on the same legal question if such is in a different and later
case or on behalf of different clients.
- Payment of the client fee by a third party is acceptable provided there is client consent after
disclosure and no interference by the third party.
- Where a lawyer works for a firm and a legal services organization, and consequently represents
clients adverse to each other, it is acceptable to do provided the lawyer does not adversely affect any
particular individual client.
- Buyer and Seller – this Rule prohibits a lawyer from representing both a buyer and a seller in the
same transaction. This is non-consentable under MR 1.7(b)(1).

MR 4.4(b) doesn’t prevent a lawyer from reading metadata inadvertently saved in a document by
opposing counsel, and the lawyer should read it, but cautiously.

Applicable Law
1. Email – majority of jurisdictions consider email secure enough to send confidential info. about a
client.
a. Test: 4th Amendment’s “Reasonable expectation of privacy.”
b. Interception and monitoring is supposedly illegal, though prob. impacted by the Patriot Act.
c. Lawyers should exercise prudence, especially in emails sent from unsecured locations.
d. Westley: you might open yourself up to liability if you communicate over an unsecured
connection.
2. Phones – both 4th Amendment and Acts of Congress protect land lines/cordless telephones.
a. Cordless telephones are less secure. If you don’t expect privacy, you don’t have any.
 - Westley: if you’re talking about something that’s confidential or privileged, you
should consider taking additional measures.
b. Cell phones are not as secure as land lines either, but devices that intercept cell phone
conversations have been illegal to sell in the U.S. for years.

Website Security/On-Line Legal Kits

- Failure to warn someone that a kit or form is not a substitute for representation by an attorney could
lead to liability.
- There is a problem with attorney/client relationship formation, and providing critical updates to
forms/kits as the law changes.
- Conflicts of interest may arise if there are multiple representations that go undetected.
- There’s also a problem of scope of representation; it may not be narrowed to include incompetent
representation.
- Disclaimers should appear on the 1st page of the website.

Aerojet-General Corp. v. Transport Indemnity Insurance (1993 Cal. App.)

There is no duty of immediate disclosure of the inadvertent receipt of privileged information. An attorney
who inadvertently receives privileged information has no duty to disclose and has a professional
obligation to use it to the benefit of his client.
- But MR 4.4(b) says lawyer should promptly notify the sender
- Whoops Case – CA (1999)  Privileged info has greater protection
o Whoops’ atty received boxes of trial exhibits from opposing atty, including litigation summaries
that were marked in bold letters “Atty-Client Communication/Atty Work Product”
o Court said the documents were privileged and that inadvertent disclosure did not waive
privilege – if information is privileged, receiving atty cannot read material beyond
determining if it is privileged and has to notify the other atty to figure out what he wants to
do about it
o Set forth guidelines to be followed in future instances of inadvertent disclosure:
 (1) Atty should examine the materials w/o reading them to ascertain whether they are
privileged and if they are, should refrain from further examination
 (2) Recipient atty should notify the sending atty that the privileged material was received
 (3) Sending and receiving attys should meet and confer to resolve what to do, or in the
absence of an agreement, should seek advice from a court
- ABA Formal Opinion 92-368:
o When an atty receives information which appears confidential and not intended for that atty, the
recipient should not look at the materials, but rather should notify the sending atty and
abide by that atty’s further instructions
 Wants to extend Whoops to CONFIDENTIAL info  no one really follows this
Bankrupt in Milwaukee: A Cautionary Tale
- Bankruptcy Code says that if a lawyer applies to the court to represent a debtor, he must be
“disinterested” and may not have an interest “adverse to the estate.”
- Corporate transactional lawyers have a distinctive approach to conflicts issues. Conflicts are much
more common in transactional work. Clients even like for their lawyer to be a transactional lawyer
for their opponent, b/c of their knowledge of how to word terms and be trustworthy. Transactional
lawyers see the ethical conflicts rules not as strong commandments, but rather as default rules that
can be negotiated.
Avoiding Conflicts in Multiple-Representation Scenario
1. Memorialize all communications, not just the clients’ consents;
 2. Specifically address what happens to attorney-client confidences in the multiple representation
situation;
a. Will confidences be shared or not be shared?
b. Best view is have all confidences shared, i.e. lawyer can share whatever he finds out from
one party with the other → problem: what happens if the spouses agree to have all
confidences shared, but then one day one spouse goes to the lawyer and wants to tell
them something secretly…
i. How can you enforce this K against your client?
3. Spell out specific ramifications of multiple representation in an “if/then” format; and
4. Specifically address the ground rules of what will happen in the event a conflict arises, including
withdrawal.

Cuyler v. Sullivan
Need ACTUAL conflict in criminal cases to not have multiple representation
Facts: Sullivan indicted w/ two others for two first-degree murders – all perps were represented by same
attys who looked out for the two other clients at Sullivan’s detriment
Issue: Must a state trial judge inquire into the propriety of multiple representation absent an objection
from one of the parties involved? Is the mere possibility of a conflict of interest enough to warrant the
conclusion that the Δ was deprived of right to counsel?
Rationale:
• State trial courts must investigate timely objections to multiple representation but Sixth
Amendment does not require state courts to initiate inquiries into the propriety of multiple
representation in each case
o Multiple representation does not violate Sixth Amendment unless is a conflict of
interest
• The possibility of a conflict is insufficient to impugn a criminal conviction  to violate the
Sixth Amendment an ACTUAL conflict must have adversely affected the atty’s
performance

**In response to this ruling, Federal Rule of Criminal Procedure 44(c) was adopted—court shall
promptly inquire w/ respect to such joint representation and shall personally advice each Δ of his right to
the effective assistance of counsel, including separate representation**

Spousal Estate Planning

Should a waiver of confidences be necessary for joint representation? Opinions go both ways.

Problem 7: Loyalties and COIs

MR: 1.4, 1.7 (and see especially 1983 comments 4 and 5 and 2002 comments 5, 8, and 14-20), 2.4, 2.2
(1983 Rules)
MC: DR 5-105; ECs 5-18, 5-24

• FORMER CLIENTS are governed by MR 1.9; CURRENT CLIENTS are governed by MR

1.7
o Current clients: Can have DIRECTLY adverse clients or PROPENSITY for
adversity clients
• Law firms are considered a single entity for the purpose of conflicts of interest analysis 
when a firm represents a client, that representation is IMPUTED to the ENTIRE firm
o Hughes v. Paine, Weber, Jackson & Curtis, Inc.: where an atty-client confidential
relationship has formed through a consultation but the atty does not ultimately represent
 the client, although the individual atty may have had an atty-client relationship, the FIRM
did not
• Every client deserves to feel like they have the UNDIVIDED allegiance of the atty

1983 MR 1.7, Cmt. 5: When a disinterested lawyer would conclude that the client should not agree to the
representation under the circumstances, the lawyer involved cannot properly ask for such agreement or
provide representation on the basis of the client’s conflict.

2002 MR 1.7, Cmt. 8: Conflict of interest exists if a lawyer’s course of action on behalf of the client will
be materially limited b/c of the lawyer’s other responsibilities or interests.

DR 5-105: a lawyer may represent multiple clients if he can adequately represent them all, and they all
consent after he informs them of the possible effects of the multiple representation. When a lawyer is
disqualified, all his partners and associates at his firm are disqualified too by imputation.

1983 (deleted) MR 2.2: Lawyer as Intermediary

A lawyer may act as an intermediary b/t 2 people who are both clients if:
1. lawyer consults with each client;
2. lawyer believes that the clients will not be injured by the multiple representation; and
3. lawyer thinks he can do it impartially.
If any clients request that he withdraw his representation, or any of the conditions aren’t satisfied, he has
to stop representing them both in the matter.

MR 2.4: Lawyer as Third-Party Neutral (Mediator)

- A lawyer may serve as a mediator or arbitrator to help non-clients resolve their problems
- The lawyer should clearly inform the parties to such an intermediation that he is not their lawyer and
is serving in a neutral capacity.

Before engaging in joint or multiple representation, lawyer should resolve following 4 questions:
1. What should be done about confidential communications?
2. How much should lawyer advise both clients about the law and what lawyer thinks is the best and
fairest thing to do?
3. When should the lawyer withdraw if things don’t go well?
4. When is it not possible to ask clients to waive conflicts of interest?
a. Can never waive competent and diligent representation.
b. 1.7(b) deals with prohibited representation
c. 1.7(b)(2): in some states, one lawyer can’t represent multiple capital murder clients
d. Cmt. 19: e.g. disclosing to an existing client a potential future client that wants to sue a
mutual sexual harasser, to get informed consent you would have to violate confidentiality
e. Cmt. 25: unnamed members of the class are not ordinarily considered clients of the
lawyer, and therefore the lawyer doesn’t need their consent.

Prospective Waivers
They are valid, but if circumstances change they may not be appropriate.

Process for Determining Potential Conflict of Interest

1. Is the situation adversarial?
a. Are they on opposite sides of the “v.”?
2. Is there a conflictual relationship?
3. Are there adverse interests?
 4. Is there an impairment of loyalty?
“Yes” to any one of them → potential conflict of interest, use 4 steps from Zitrin article in Problem 6
above.

Example Using Above Analysis

2 friends are involved in buying and selling a house. No adversarial situation. No conflictual
relationship. BUT, there are adverse interests. Seller wants highest price, buyer wants lowest price. A
relationship could be conflictual while not being adversarial.

Problem 8: Organizational Representation

MR: 1.7 (see especially 1983 Comments, paragraphs 8 and 14, and 2002 Comments, paragraphs 34 and
35), 1.13
MC: DR 5-105, ECs 5-18, 5-24

1983 MR 1.7
Cmt. 8: The nature of the litigation in which a lawyer acts as advocate against his own client is indicative
of whether it is ethical or not. E.g. fraud v. declaratory judgment on statutory interpretation.
Cmt. 14: Lawyer represents corporation and sits on its board of directors. If there is material risk that the
dual role will compromise the lawyer’s independence of professional judgment, the lawyer should not
serve as a director.
Considerations:
1. frequency with which lawyer is called on to advise the corporation in matters involving
actions of the directors;
2. the potential intensity of the conflict;
3. the effect of the lawyer’s resignation from the board; and
4. the possibility of the corporation’s obtaining legal advice from another lawyer in such
situations.

2002 MR 1.7
Cmt. 34: A lawyer for an organization is not barred from accepting representation adverse to an affiliate
(parent or subsidiary) in an unrelated matter, unless the circumstances are such that the affiliate should
also be considered a client of the lawyer, there is an understanding to the converse, or by accepting the
new client the lawyer will materially limit his ability to represent both.
- ABA Ethics opinion 95-390 concludes that lawyers are not necessarily barred from
undertaking representation adverse to corporate affiliates of their current clients.
- But if the other representation would materially limit your first representation, then it is
barred by MR 1.7
Cmt. 35: Lawyer should advise the other members of the board that in some circumstances matters
discussed at board meetings while the lawyer is present in the capacity of director might not be protected
by attorney-client privilege.

MR 1.13: Representing an Organization

- When an attorney represents a business organization, his duty is to the entity itself, not to any of its
officers or workers.
- If the lawyer learns of illegal or injurious conduct, the attorney should not immediately disrupt the
organization. The lawyer should first ask his contact within the organization to reconsider his
conduct. If that fails, the lawyer may refer the matter to a higher authority in the organization,
including, if necessary, “climbing the ladder” to the highest authority in the organization (usually the
Board of Directors). If this fails, the lawyer may “report out” the violation, invoking an exception to
 the duty of confidentiality of MR 1.6, if the lawyer believes it’s reasonably necessary to avoid
substantial injury to the organization.
- A lawyer may represent employees of the entity if there is no conflict or if there is informed consent
(where required)
 When the constituent’s interest might be in conflict with the lawyer’s real client, the
corporation, the corporate lawyer needs to tell the constituent that he does not represent
him. The lawyer gets to decide what’s in the best interest of the corporation.
- Privilege: Communications to the attorney are privileged insofar as they protect the entity. Thus, the
attorney should be careful to apprise employees that the confidentiality rules do not protect them
individually.

Sarbanes-Oxley Act
Essentially the same as MR 1.13. Establishes reporting obligations when lawyer believes someone in the
organization is engaged in action that is likely to result in substantial injury to the organization.

Garner v. Wolfinbarger (5th Cir. 1970)

A corporation can assert attorney-client privilege in the face of a demand for privileged information. But
where the corporation is in suit against its stockholders on charges of acting against stockholder interests,
protection of those interests as well as those of the corporation and of the public require that the
availability of the privilege be subject to the right of the stockholders to show good cause why it should
not be invoked in the particular instance.
9 factors in determining good cause:
1. # of shareholders and % of stock they represent;
2. the bona fides of the shareholders;
3. the nature of the stockholder’s claims and whether it is obviously colorable;
4. the necessity/desirability of the shareholders having the information and its availability
from other sources;
5. whether the claim is of criminal, illegal but not criminal, or just of doubtful legality;
6. whether the communication related to past or to prospective actions;
7. whether the communication is of advice concerning the litigation itself;
8. extent to which the information is identified v. just shareholders blindly fishing; and
9. the risk of revelation of trade secrets or other secret information.

Upjohn v. U.S. (U.S. Supreme Court 1981)

Attorney-client privilege applies to all communications made by all employees to corporate counsel in
order to secure legal advice for the corporation, not just to the control group (officers and agents).
- Privilege only protects disclosure of communications, it does not protect disclosure of the
underlying facts by those who communicated with the attorney. Gov’t can go ask the employees.
- Upjohn Warning: telling employees of corporation that you are not their atty, you are the atty of
the corporation and that the lawyer does not have a duty of confidentiality to them personally
- Criticism: MR 1.13 says that the lawyer represents the corporation acting through its duly
authorized constituents. These lower-level employees are prob. more like witnesses than the
corporate attorney’s clients.
- Applies in federal court, Illiniois still applies control group test.
- MR 4.2 says that under Upjohn, the government has to get corporate counsel’s permission to
interview any employees before they actually do, b/c the gov’t knows the employees to be
represented by corporate counsel.

Tekni-Plex v. Meyner and Landis (NY 1996) FILL IN

When a corporation is sold:
 1. Atty for sold entity may be disqualified from representing the seller in a dispute b/w buyer and
seller
2. the attorney-client privilege of the sole entity passes to the successive manegemnt concerning
business communications
3. attorney-client relationship exists b/t the corporation and the law firm, and passes.

Yablonski and ABA Formal Opinion 91-361: Same if it’s a corporation, union, or partnership.

Partnership
If lawyer represents a partnership, she should put in the partnership agreement procedures for when/if she
discovers wrongdoing by one of the partners.

Problem 10: Conflicts of Interest

MR: 1.2, 1.7, 1.9 especially Comment, paragraphs 3-9, 1.10, 1.11, 1.16 especially (d).
MC: DRs 2-110, 5-101l; ECs 2-21, 4-5, 4-6, 5-13 through 5-20.

MR 1.9: Duties to Former Clients

- It is impermissible for a lawyer or his firm to oppose a former client in the same or a substantially
related matter or to use information that is confidential pursuant to MR 1.6 against a former client
unless there is written consent after consultation.
- Cmt 3: Information that has been disclosed to the public or to other parties adverse to the former
client ordinarily will not be disqualifying.
- Cmt. 5: Jumping firms: if a lawyer with one firm acquired no knowledge or information relating to a
particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually
nor the second firm is disqualified from representing another client in the same or a related matter
even though the interests of the two clients conflict.

MR 1.10: Imputation of COIs

- Disqualification is necessary where there is either:
1. an actual conflict of interest regarding the lawyer’s duty of loyalty to the client; or
2. where there is a potential conflict and the client, after being so informed, does not accept the
arrangement.
- As a general rule, when one attorney is disqualified, her whole firm is also disqualified, unless the
conflict is based on a personal interest of the prohibited lawyer that does not materially limit
representation by other lawyers in the firm.
- There is a presumption that all partners and associates know about all cases.
- HOWEVER, if a lawyer leaves a firm, his former firm may represent a person with adverse
interests to a client represented by the formerly associated lawyer and not currently
represented by that firm, unless:
1. it involves the same or a related matter; or
2. any lawyer who is still at the former firm knows confidential information about the
matter.
- This rule of imputed conflicts does not apply when the disqualification is due to opposing
counsel being a relative.
- This rule of imputed conflicts does apply when the disqualification is because a former
government attorney has joined a firm representing a party with whom he had contact as a
government attorney (unless proper and timely screening is implemented and written
permission is obtained from the government agency in question).
- Where a new lawyer in a firm:
 1. acquired confidential information material to the matter; and
2. worked for a firm that represented a client with an adverse interest to the potential or current
client; then
- the entire firm is vicariously disqualified from representing the potential or current client even
retroactively.
- Commentary to MR 1.9 further qualifies this rule: vicarious disqualification is a rebuttable
presumption that puts the burden on the challenged firm to show that its new lawyer had no
involvement with the relevant case in the old firm and possessed no actual knowledge of
confidential information.
- The old client may waive the disqualification.
- A lawyer leaving a firm is permitted to oppose former clients unless it is on the same matter or unless
he acquired material confidential information.
- Imputation doesn’t occur when a lawyer forms an attorney-client relationship with a client through
consultation but does not end up representing the client.

MR 1.11: COIs and Gov’t Officers

- Former government lawyers shall not take clients with whom they were substantially involved when
they worked for the government unless the government consents after consultation.
- In this situation, the entire firm is disqualified unless:
1. the lawyer concerned is screened from the case;
2. the attorney receives no extra fee for this case; and
3. notice of the situation is given to the gov’t.
- Conversely, new gov’t lawyers must take all reasonable steps to avoid taking cases with which they
were involved while in the private sector.

Screening is a tool that can avoid conflict

- Consider:
1. the size of the firm and its divisions if any;
2. the likelihood that the screened attorneys would come into contact with the involved attorneys;
3. the access the screened attorneys have to the files of the involved case; and
4. how separated the screened attorneys are from the fees associated with the involved case.
5. Most important aspect is TIMING

MR 1.7 v. MR 1.9
- MR 1.7 is concurrent conflicts of interest.
 Usually when judges determine that there’s a concurrent conflict of interest involving
lawyers of one law firm, the firm is disqualified, regardless of the relationship b/t the two
matters that the lawyers are involved in.
- MR 1.9 is conflicts of interest involving former clients.
 If the conflict of interest involves a former client, you apply the substantially-related
matter test to determine how related the matters are. If the matters involving a former
client are unrelated, no problem.

Hot Potato Doctrine

- In order to avoid a concurrent conflict of interest, a law firm cannot drop a less interesting/lucrative
client in favor of representing a new client.

MR 1.9 Substantially-Related Matter

- Some courts focus on factual similarity, some on legal similarity, some on the obtaining of
confidences that can be used against a former client.
- Trone v. Smith
o There is a substantial relationship when the lawyer gained knowledge of the policies, practices
and procedures of the former client; but…
- ABA Formal Opinion 99-415
o Knowledge of former client’s strategies, policies, or personnel, without more, is not enough to
establish a substantial relationship
Were material confindences imparted?
Most jdx presume that confidences are imparted – disagreement if presumption can be rebutted
• Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp. – atty who performed
only minimal tasks and who never shared in any of the former client’s
confidences would NOT be presumed to have client confidences
• Creighton U. v. Hickman -- Nebraska S.C.  Bright line rule of
disqualification
o If atty’s prior firm represented the former client in a way in which
confidential information was transmitted to that firm, then those
confidences are imputed to all other lawyers of that firm, no matter how
peripheral their participation
o The presumption of shared confidences cannot be rebutted

Were material confidences imparted while at former firm?

o Presumption is that they were, but jurisdictions disagree as to whether it’s rebuttable.
o Nebraska Bright Line Rule: if lawyer’s prior firm represented the former client such that
confidential information was transmitted to that firm, then those confidences are imputed to all
other lawyers of that firm, no matter how peripheral their participation in the former
representation.

How should the lawyer’s former involvement be imputed to the lawyer’s new law firm?
1. 2 approaches
a. 2nd Circuit approach: 276, there’s a difference b/t lawyers who become heavily involved
in the facts of a case and lawyers who do not for purposes of establishing
“representation” in terms of former client COI. There must be an actual receipt of
confidential information.
b. 7th Circuit approach: 277, there was a substantial relationship if confidential information
might have been given to the attorney in relation to the subsequent matter.

Teradyne Inc. v. HP: Teradyne sued HP for patent infringement. One firm representing Teradyne also
represented HP’s wholly owned subsidiary in related IP matters.
o The court found there was an “IDENTITY OF INTERESTS” b/w HP and sub and
that firm had conflict of interest by simultaneous representation  firm was DQ’d

Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoft (Cal. App. 1999)
A parent and subsidiary are considered one entity in a COI analysis if they have a unity of interest.
Also, an attorney’s receipt of confidential information from a non-client may lead to the attorney’s
disqualification.

Shared Space – If lawyers hold themselves out as a firm, then they will be treated as one lawyer for COI
analysis.

Non-Lawyer Migration – Support staff in a law firm have the same duties of confidentiality, and when
they migrate.
COI Flow Chart
1. General rule of law firm imputation (MR 1.10).
a. One lawyer for purposes of COI.
2. Whether the matters involve current clients or one party that is a former client.
3. If former client, whether there is a substantial relationship between the former representation and
the current representation of the ongoing client against the former client.
4. If there is a former client and a substantial relationship, whether the disqualification of the law
firm should be mandated by the involvement of that firm’s new lawyers’ former firm or whether
it should require involvement of the new lawyers themselves; and
5. Whether there is a legitimate way of screening the new lawyers.

Problem 12: Lawyer as Client’s Savior or Mouthpiece?

MRs: 1.2, 1.14, 1.16, 2.1.
MC: DRs 5-107(B), 7-101; ECs 7-1, 7-7, 7-8, 7-11, 7-12.

Remember MR 1.2: The objectives of the representation are decided by the client.
- Cmt. 1: Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be
served by legal representation, within the limits imposed by law and the lawyer’s professional
obligations.

2 Ways to Approach the Issue

1. Paternalism – do what lawyer thinks is best
a. Run the danger of subverting client autonomy
2. Instrumentalism – do what the client thinks is best
a. danger is overriding important societal interests

MR 1.14: Client with Diminished Capacity

- The lawyer should keep as normal a lawyer-client relationship as possible, which means you should
do what your client wants, but Cmt. 1 says that maintaining the ordinary client-lawyer relationship
may not be possible in all respects. But as long as the client’s decision appears to be an adequately-
considered one, the lawyer should follow it.
- But where the lawyer reasonably believes that the client has diminished capacity and is at risk of
harm, he may take reasonably necessary protective measures, including seeking the appointment of a
guardian.
o The lawyer is impliedly authorized under MR 1.6(a) to reveal information about the client, but
only to the extent reasonably necessary to protect the client’s interests.

MR 2.1: Lawyer as Advisor

- A lawyer should give clients honest, professional advice, and should take into account a client’s non-
legal concerns (moral, economic, social, political), as well as a client’s legal concerns.
o Lawyer should tell the client the truth, even when unpleasant
o In explaining legal concepts, a lawyer should try to use layperson language and avoid technical
terms (unless the client is legally sophisticated)
o A lawyer may refer a client to other types of professionals (therapists, social workers) where
appropriate.
o Cmt. 5: In general, a lawyer is not expected to give advice until asked by the client.
Problem 14: Balancing Zealous Advocacy to Clients with
Duties to Legal System
MR: 1.1, 1.3 especially Comment, paragraph 1, 3.1, and 3.3.
MC: DRs 7-101, 7-102; ECs 7-1, 7-2, 7-3, 7-19, 7-25, 7-26.

MR 3.1: Meritorious Claims and Contentions

- A lawyer can make any argument that has a basis in fact and law that is not frivolous.
- A good faith argument to change the law is not frivolous.

MR 3.3: Candor Toward the Tribunal

- A lawyer shall not knowingly lie to a judge regarding the facts or the law or offer evidence the
lawyer knows to be false, and shall not fail to correct a false statement of law or material fact that the
lawyer previously made to a tribunal
o If a lawyer doesn’t know something is false, it’s not unethical.
- Adverse authority: lawyer must cite it to the court, even if opposing counsel did not
- To prevent crime/fraud on the tribunal: lawyer shall take all reasonable remedial measures.
o MR 1.6 doesn’t apply when the crime or fraud is upon the tribunal itself.
o If a client plans to be fraudulent in a tribunal proceeding, the lawyer should confidentiality
remonstrate the client and disclose the fraud to the tribunal if the client refuses to cooperate.
- Lawyers shall remedy frauds in the court
o Satisfied by requesting permission from the judge to withdraw and explaining the reason.
- Where client intends to perjure himself, the lawyer should not assist him in doing so.
In ex parte proceedings, lawyers shall make material facts known to the tribunal, “whether or not the facts
are adverse.”

3 key moments in the representation of the criminally accused:

1. Closing argument
o What’s fair to argue?
o Strongest closing argument is to present a believable narrative, but that isn’t so specific it
incorporates false evidence/lies
o You cannot tell jury in closing argument that client is innocent if they have confessed to
you.
2. Cross-examination of a truthful witness
o Can you implicate someone else when you know your client is guilty, consistent with MR
3.3?
 Yes, you can require the trier of fact to make inferences.
3. Client Interview
o What do you tell the client he can/cannot tell you?
o Prob. better for client to tell you the truth so that you can identify the land mines.

Michigan Opinion CI-1164

- A defense attorney has no obligation to correct inaccurate prosecution evidence.
- Robber hit victim over head, so victim’s sense of time was incorrect. Can attorney subpoena D’s
friends to testify that they were with the D at the time of the alleged crime?
- Ethical to do so. It’s not false testimony, the victim alleges the time the crime occurred.

Reasons to Defend the Guilty

1. The Garbage Collector’s Reason
 a. it’s dirty work but someone’s got to do it
2. The Legalistic or Positivist’s Reason
a. truth cannot be known, facts are indeterminate, contingent, and in criminal cases, often
evanescent
3. The Political Activist’s Reason
a. Most people who commit crimes are themselves the victims of horrible injustice
4. The Social Worker’s Reason
a. Helping the disadvantaged underclass is in itself a form of rehabilitation.
5. The Egotist’s Reason
a. Defending criminal cases is more interesting than other legal work, and they’re harder to
win so winning means more personally

Disagreement with Client

MR 1.2 says that the lawyer shall abide by a client’s decision, after consultation. If you find the D to be
morally or personally repugnant, that’s ok as long as your repugnance does not interfere with your ability
to zealously represent your client.

Problem 17: Discovery

MR: 1.2(b), 3.1, 3.2, 3.4(d), 4.4, 5.1, 5.2(b).
MC: DRs 7-101, 7-106(C)(1); ECs 7-1, 7-8, 7-9, 7-10, 7-25,
7-27.

MR 3.2: Expediting Litigation

- Lawyers should attempt to expedite litigation

MR 3.4: Fairness to Opposing Party and Counsel

- A lawyer shall not conceal evidence, destroy evidence, falsify evidence, disobey a court order, make a
frivolous discovery request, inject their own personal knowledge or opinion at trial, or instruct
another to falsify evidence.
o Paying an expert a contingency fee is reasonably likely to cause evidence to be falsified.

MR 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers

- Partners or supervising attorneys shall make all reasonable efforts to ensure that all attorneys in their
employ comply with the ethical rules and have policies in place to further that goal.
- Moreover, supervising attorneys are personally responsible for ethical violations if they order or ratify
the subordinate’s work.

MR 5.2: Responsibilities of a Subordinate Lawyer

- Subordinate attorneys are professionally responsible for all the work they do, notwithstanding the fact
that they followed a superior’s orders.
- When conduct clearly violates the Model Rules, they may not engage in it.
- Where conduct is arguably ethical, however, a subordinate attorney does not violate the Model Rules
by following her bosses’ orders.

Readings
- Tendentious, narrow, and literal positions with regard to discovery are, in my opinion, both typical
and expected.

Problem 18: Negotiation

MR: 4.1
MC: DR 7-102(A); ECs 7-7, 7-10.

Negotiation involves lying, posturing, and bluffing. They’re largely dominated by personal standards,
rather than ethical rules. Candor is not to be expected in the discovery process, despite the threat of
sanctions. In negotiations, even more room for lying and deception, and all we have in the Model Rules
is MR 4.1. A lawyer shall not knowingly make a false statement of material fact or law to a third person;
or fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent
act by a client, unless disclosure is prohibited by MR 1.6. Don’t get a free bite at the apple with
omissions in the comments.

MR 4.1 Not Statements of Fact

1. Estimates of price or value
2. Party’s intentions as to an acceptable settlement
3. Existence of an undisclosed principal, except where that would constitute fraud

Answering a question with a question → MR 4.1 says “a misrepresentation can occur if the lawyer
incorporates or affirms a statement of another person that the lawyer knows is false.”
o A misleading response = misrepresentation under the Model Rules

Pretending to get angry rather than answer a question → ethical, nothing in the rules says you can’t do
that. MR 4.1 narrowly defines when you can lie by saying that certain things are not statements of fact
(Cmt. 2).

Pretending to conspire with the opposing attorney to agree on a settlement that they’d sell to their clients.
→ It’s ethical under MR 4.1, Cmt. 2.

People v. Jones
Prosecutor has no duty to make affirmative disclosures of non-evidentiary fact, e.g. that the complaining
W is dead. Brady requirement to hand over exculpatory evidence doesn’t apply to non-evidentiary facts.
- Under ABA standards, “a prosecutor should not knowingly make false statements or
representations as to fact or law in the course of plea discussions with defense counsel or the
accused.
- Prosecutors must disclose marterial evidence favorable to criminal Defendant (exculpatory).
Brady

1. What is a false statement of material fact?

a. MR 4.1, Cmt. 2 says certain statements in a negotiation are not considered material facts.
2. What is a lie?
a. Concealments and omissions
i. Wetlaufer definition: any effort to create in some audience a belief at variance
with one’s own.
b. It doesn’t depend on whether what you believe is actually true, it just matters that the
impression you are trying to impose on others is at variance with your own belief
3. Prisoner’s Dilema
a. Is trust ever warranted?
b. Sometimes it is warranted in a negotiation.
c. Best outcome for both prisoners is to trust each other to keep quiet.
4. Negotiation Strategies
 a. Lawyers may not misrepresent a fact in controversy, even though they may misrepresent
facts relating to their authority or their negotiation strategy.
b. Rubin suggests candor can be enforced by requiring a sworn oath.
c. If a lawyer/negotiator misrepresents a material fact that induces other party to rely on it,
and the reliance is justified, and suffers injury, the injured party can void the agreement,
and the lawyer is thus liable in tort and to malpractice, unless client lied to him.
5. Lempert Hypotheticals
a. Situation 1
i. A party’s intentions as to an acceptable settlement is not a statement of fact under
MR 4.1, Cmt. 2.
b. Situation 2
i. To say a client is disabled when they are skiing.
ii. Under MR 4.1, it’s a false statement of material fact.
c. Situation 3
i. Tell opposing counsel your clients experienced emotional distress when they
didn’t.
ii. Under MR 4.1, it’s a false statement of material fact.
iii. Bad idea to exaggerate your client’s injuries during negotiations with opposing
counsel, their lawyer might request all the medical records.
d. Situation 4: Mistaken Impression
i. An omission can be the equivalent of affirmative false statements.
ii. If other side writes up the agreement and incorporates the statement, and you sign
it, are you committing fraud? Maybe. Much less likely that you’re committing
fraud if statement doesn’t make it in.
iii. Is it worth the risk of being charged with fraud?
e. There’s no general duty to disclose a relevant fact.

Virzi v. Grand Trunk Warehouse & Cold Storage Co. (E.D. Mich. 1983)
Court set aside a settlement consummated after the undisclosed death of the P, because P’s attorney did
not inform defense counsel of the death. ABA Formal Opinion 95-397 agreed.

Problem 24: What You Say, How You Say It, Whether You
Should Say It at All
MR: 1.2(d) especially Comment, paragraph 9, 1.4, 2.1.
MC: DRs 4-101(c), 7-102(A)(6) and (7); ECs 7-3, 7-5, 7-6, 7-8.

Lottery Audit Discussion with Client

A lawyer may discuss the consequences of any proposed course of conduct with a client, but the lawyer
may not counsel a client to engage or assist a client in conduct the lawyer knows is criminal or fraudulent.
- ABA Revised Formal Opinion 346 (1982): The lawyer who accepts as true the facts which the
promoter tells him, when the lawyer should know that a future inquiry would disclose that these
facts are untrue, also gives a false opinion. “Lawyers cannot escape criminal liability on a plea of
ignorance when they have shut their eyes to what was plainly to be seen.”

Liptak
If client asks how much pain they can inflict upon a torture victim, the lawyer could:
1. Explore every legal avenue available for his client, including all possible defenses should
criminal charges be filed.
2. Give legal guidance but add advice on the wisdom and morality of what the client is considering.
 3. Tell the client to take a walk.

Hutner v. OPM
• Singer Hutner had no idea anything was going on until one of O.P.M.’s founders told the atty,
knowing his accountant had discovered the fraud and was threatening to tell all
o Founder kept the story vague b/c Hutner told him couldn’t promise to keep the details
confidential b/c O.P.M. itself was the client [MR 1.13]
• The accountant hired his own atty and when that atty met w/ O.P.M., Hutner turned a
willfully blind eye and did not want to know anything [If knew, would trigger MR 1.2]
• Singer Hutner KEPT working for O.P.M.
o KNOW client is using services to commit fraud
 DEFINITELY w/draw as per MR 1.16
 Might have to do more – may be necessary to disaffirm any opinion,
document, affirmation or the like, in order to avoid material
misrepresentation under MR 4.1
o As soon as you KNOW, you’re fucked
• Singer Hutner had a staggered w/drawl – need to take reasonable measures to protect client’s
interest
o O.P.M. found new attys to represent them – Singer Hutner could do nothing toward new
representation w/o violating O.P.M.’s confidentiality

Lawyer Suspicious of Client’s Intention

- MR 2.1 Cmt. 5: a lawyer ordinarily does not have a duty to initiate investigation of a client’s affairs.
He does have a duty to investigate when doing so appears to be in the client’s best interest.
- But MR 1.2 Cmt. 9 says that even if the client uses advice the lawyer gave him to commit a fraud, the
lawyer does not automatically become a party to the illegal course of action.
- MR 1.2 Cmt. 13: If a lawyer comes to know or reasonably should know that a client expects
assistance not permitted by the Rules, the lawyer must consult with the client regarding the
limitations on the lawyer’s conduct.
o closest we get to requirement that lawyer needs to say something if he reasonably should ask
if his client expects to commit a fraud

Problem 27: Billing

MR: 1.4(b), 1.5, 1.15 especially Comment, paragraph (3), 7.1.
MC: DR 2-106; ECs 2-17, 2-19, 2-20.

- Client consent concerning billing amounts and how to bill is very important, and can avoid a lot of
problems (e.g. disagreements b/t client and firm)
- Big Firm associates face large billable hour quotas
- ABA Rules still do not require written fee contract for hourly billing.
o Only need written fee K when contingent fee
o Written K for hourly free is recommended, but not required
- Now we have legal bill auditors, which are sometimes used by institutional clients to monitor possible
fraud
- Most of the overbilling happens at the largest, most prestigious firms, b/c they have the big clients
- MR 5.2(a): an associate can get in trouble for what a partner told them to do
o But he’s not in trouble if he acts in accordance with a supervisory lawyer’s reasonable
resolution of an arguable question of professional duty.
- MR 5.1:
- Himmel reporting – proposition that the rule requiring lawyers to report certain misconduct of other
lawyers means what it says, and that a lawyer's failure to do so is its own rules violation, subject to
discipline.
- Problematic billing practices
o Charges to more than 1 client for the same work/hours
o Charges for in-house services that weren’t conducted for the billed client

- Alternatives to the Billable Hour:

o Flat or fixed fees—[a/k/a “task-based” or “value billing”]
 Big firms use this particularly when the task involved is familiar and relatively
 A modification of this is where the atty charges the hourly rate up to a maximum cap
for a particular case
o Hybrid hourly & contingency fees—allows lawyers who are not sufficiently confident about
a matter to take it entirely on contingency to represent clients who can’t or don’t want to pay
the full hourly freight.
 The lawyer gets a substantially discounted hourly fee and then a discounted
contingency fee in the even the case is successful
o Incentive bonuses—similar to hybrid fees (ex. hourly rate + % bonus for any recovery over
$X or any savings to the client more than $Y)
Discounts and “blended” rates—law firm charges a single median rate

Problem 30: Attorney Advertising

MR: 1.5(e), 1.18, 7.1, 7.2, 7.3, 7.4,
MC: 2-101

- MR 1.5(e): Division of Fees among lawyers who are not in the same firm can only be made if:1) the
division is in proportion to services of each lawyer or there is joint responsibility, 2) the client
consents in writing including the amount of the fee per lawyer, AND 3) the total fee is reasonable.
- MR 1.18- Duties to Prospective Clients.
o Lawyer owes duty of confidentiality to anything discussed in the consultation, even if no
relationship is formed
o When a lawyer receives DQing info representation is permissible if:
 Both affected client and prospective client give consent in writing or
 The lawyer who received the info took reasonable measures to avoid exposure to
more DQing info than necessary to determine whether to represent prospective client
and
• The DQed lawyer is screened from participation in the matter and
• Written notice is given to prospective client
- MR 7.1: Communications concerning Lawyer’s services
o A lawyer shall not make a false or misleading communication about the lawyer or his
services.
 False or misleading is a material misrepresentation of fact or law, or omits fact
necessary to make statement not materially misleading.
- MR 7.2: Advertising
o A lawyer can advertise through written, recorded, or electronic communication provided that
7.1 (re: misleading info) and 7.3 (re: direct contact with prospective client) are not violated.
 o A lawyer shall not give anything of value to a person for recommending the services, except
for cost of advertisement, usual charge for a referral service, and quid-pro-quo referrals which
are non-exclusive and where the client knows of the agreement
- MR 7.3 Direct Contact with Prospective Clients prohibited
o A lawyer shall not in person, by telephone, or real time messaging solicit clients when the
motive for doing so is the lawyer’s pecuniary gain, UNLESS: the person contacted is a
lawyer, or has a familial, close personal, or prior professional relationship with the lawyer.
o A lawyer shall not solicit professional employment by any of the above mentioned methods
even when not otherwise prohibited above, if: the prospective client has made known to
lawyer a desire not to be solicited by him, or the solicitation involves coercion, duress or
harassment.
 Ads must include words like “advertising mail”
- MR 7.4: Communication of Fields of Practice and Sepcialization
o A lawyer may communicate that he practices or does not practice in a particular field of law.
(specifically listed: Patent Attorney and Admiralty Attorney). But a lawyer shall not state or
impy certification as a specialist in a field of law unless: certified by org approved by state
authority or ABA, and the name of the org is clearly identified in the communication
- Note: 7.5 Firm names and letterheads cannot imply connection with government agency, public or
charitable org.
o CPR: Code does not allow an atty to use a trade name to describe its law practice.
o Can under the MR as long as it is not misleading.
- MC DR 2-101: A lawyer shall not use public communication including false or misleading,
deceptive, self-laudatory, or unfair statement or claim
- Can use: name of firm, lawyer, field of law, date, birthplace, schools attended, bars, languages, range
of fees, hourly rates, fixed rate for specific services (if so must render them)
- Disclaimers: must use non-confidentiality disclaimer to prevent claim of atty-client privilege to the
contents of an email
- Lawyers used to not advertise – would use reputation to solicit business in boardroom, luncheons, and
at the country club
- Bates v. State Bar of Arizona – SCOTUS (1977)  Atty advertising is now okay!
o Prohibiting attys from advertising PRICES of routine legal services would be a violation
of the First Amendment
o Advertising, however can be limited – should not be false, deceptive, or misleading; in-
person solicitation should be entirely restricted; and time place and manner provisions are
always appropriate
- An atty can advertise on the internet as long as the atty is licensed to practice in the state where the ad
is initially placed and specifies the jdx where the atty is admitted to practice
- Ohralik v. Ohio State Bar Association (1978): No in-person solicitation b/c clients are more
vulnerable to influence, advice is more intrusive when it’s in-person, not visible to public
scrutiny, and represents unequal bargaining power
- In re Primus (1978): Atty sent a letter to someone on behalf of the ACLU who had previously had a
consultation w/ her – protected speech b/c offer of free assistance, previously discussed possibility of
legal redress w/ woman, and by letter (not in-person)
- In re RMJ (1982): Truthful advertising related to lawful activities has First Amendment
protection—can list areas of practice. Restrictions should be no broader than reasonably necessary
to prevent deception.
- Zauderer v. Office of Disciplinary Counsel (1985): Court upheld targeted ad in newspaper to seek
women who used Dalkon Shield – b/c statements were not false or deceptive, state had to
establish that prohibiting the use of the statements to solicit or obtain legal business directly
 advances a substantial gvt interest – just b/c some members of the public would find the ads
embarrassing did not justify suppression.
- Shapero v. Kentucky Bar Ass’n (1988): Shapero wanted to send letter directly to potential clients
who have had a foreclosure suit filed against the. Court upheld direct mail b/c could just throw
the letter away. Question to ask in direct action cases is if the mode of communication poses a
serious danger that attys will exploit the susceptibility of a potential client’s legal troubles.
- Peel: Letterhead that atty was certified by Nat’l board of Trial Advocacy was OK
- The Florida Bar v. Went For It (1995):
o FL Bar had rule prohibiting personal injury attys form sending targeted direct-mail
solicitations to victims and relatives for 30 days following an accident or disaster – SCOTUS
upheld the rule
o Lawyer advertising is commercial speech and as such has First Amendment protection
that is afforded “intermediate” scrutiny – can be regulated if the gvt satisfies a three-
prong test:
 (1) Gvt must assert a substantial interest in support of the regulation
 (2) Gvt must demonstrate that the restriction directly & materially advances that
interest
 (3) Regulation must be “narrowly drawn”
o Problem w/ this decision is that the insurance company can contact those involved clients
involved and evidence may be lost during this time period!