FALL 2007 – PROFESSIONAL RESPONSIBILITY – GIRTH

____INTRODUCTION TO VARIOUS APPROACHES TO IMPLEMENTING A COMMITMENT TO ETHICAL____

LAWYERING
1. Fiduciary Duty to Client
a. Duty of Competence MR 1.1
i. knowledge of law
ii. Duty of Diligence MR 1.3
b. Duty of Loyalty
i. involves conflict of interest, limits of loyalty MR 1.7, 1.8(a), 1.9
c. Duty of Confidentiality MR 1.6
2. In re Pautler 2002
a. FACTS: District attorney Pautler pretended to be a PD in order to assist police in apprehending man.
i. P violated professional conduct rule in Colorado
b. RULE: Reichman case (this is CO law) – noble motive does not excuse violation of professional conduct but may be
taken as mitigating factors to assess the appropriate discipline
i. exceptions: imminent public harm = no immediate feasible alternative but to break conduct rule
ii. MR 8.4(a)
1. It is professional misconduct for a lawyer to:(a) violate or attempt to violate the Rules of Professional
Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
3. Rules Governing Lawyers
a. When adopted by court, rules of professional conduct become law and lawyers who violate are subject to discipline
b. MR 3.4(c) – lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal
based on an assertion that no valid obligation exists.
c. LIMITS:
i. Some rules do not provide clear guidance, must refer to comments, court decisions, and lawyers own conscience
4. Lawyer-Client Relationship Approaches
a. Traditional Client-Centered Philosophy i.e. “Hired Gun”
i. Do everything to help client unless clear violation of rules
b. Defensive Lawyering
i. Before lawyer acts, checks to see if will get in trouble
c. Personal Morality
i. Lawyer acts in accordance w/ own goals/beliefs
d. Social Value
i. Lawyer acts in accordance w/ what is best for society, make society better
e. Modern Client-Centered Philosophy

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 i. Lawyer looks at client and all the circumstances, collaborative lawyering
5. LAW STORIES  David Wilkins’ “Race, Ethics and the First Amendment: Should a Black Lawyer Represent the Ku
Klux Klan?”
________HISTORY OF DISCIPLINARY SYSTEMS; MEANS OF REGULATING ATTORNEY CONDUCT______
1. Admission to Practice:
a. Graduate accredited law school
b. Pass bar
i. Few states still have “diploma privilege”
c. Good moral character
i. SC Standard of Review for “Good Moral Character” = whether a reasonable man could fairly find that there were
substantial doubts about the applicants honesty, fairness and respect for the rights of others and for the laws of
the state and nation
2. MR 5.5 Unauthorized Practice of Law; Multi-jurisdictional Practice of Law
3. Disciplinary Process for Lawyers: ABA Model Rules, GA Rules of Professional Conduct
a. SC characterized as “quasi-criminal” and certain due process requirements (including fair notice of charges) apply
b. Spevack v. Klein Case – lawyer can not be disciplined for invoking privilege against self-incrimination in a disciplinary
proceeding
i. Exception: does not prevent lawyers from being required to produce document
c. Burden of Proof = “clear and convincing evidence”
i. Higher then civil cases, lower then criminal cases
4. Civil Liability
a. Malpractice
b. Disqualification
c. Monetary Sanctions
i. FRCP Rule 11
5. Criminal Punishment
a. Contempt of Crt

_____________________REPORTING MISCONDUCT BY ANOTHER ATTORNEY_______________________

1. Duty to Report Misconduct

8.4: Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the
acts of another;

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(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the
Rules of Professional Conduct or other law; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

8.3: Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to
that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the
judge's fitness for office shall inform the appropriate authority.

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while
participating in an approved lawyers assistance program.

a. MRPC 8.3(a) – a lawyer who knows of misconduct by another lawyer that raises a substantial question as to that
lawyer’s honestly, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional
authority
i. limitations:
1. 1. actual knowledge = must know and knowledge may be inferred from the consequences
2. 2. the question of the lawyer’s honesty, trustworthiness, or fitness MUST be substantial
b. MRPC 8.3(b) – not ANY criminal act, but criminal acts that…__________
c. MRPC 8.3(c) – Improper Influence (i.e. have judge in pocket, or affect assignment of judge’s docket, etc)
d. Exceptions to Duty to Report
i. 1. duty applies only if the lawyer “knows” of misconduct
1. Distinction b/w “know” and “reasonably should know”
2. Actual knowledge can be inferred from the circumstances
3. Have “knowledge” if show conscious avoidance or deliberate ignorance of facts
ii. 2. MRPC 8.3(c) – attorney’s duty to report misconduct is subject to the attorney’s duty of confidentiality to the
client
1. See Rule 1.6
2. In re Himmel

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 2. Law Firms & Associations

5.2 Responsibilities of A Subordinate Lawyer

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(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the
Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory
authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take
reasonable remedial action.

_____________________________CLIENT-LAWYER RELATIONSHIP_________________________________
A. NON-ENGAGEMENT AND ENGAGEMENT AGREEMENTS
1. Engagement Agreement: notification to client of existence of attorney-client relationship
2. Non-engagement Agreement: notification to person seeking who consulted w/ attorney that attorney-client relationship does
NOT exist
3. MR 1.8(h): Lawyer may not enter into agreement w/ client prospectively limiting his liability for malpractice
a. Why? = b/c lawyers have obligation of due diligence

B. CONTINGENT FEES, EXPENSES, AND FEE SPLITTING

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1.5 Fees (b)(c)(e)
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to
the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a
regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the
client.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is
prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which
the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal;
litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is
calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the
prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the
matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and

(3) the total fee is reasonable.

1. INTRO
a. In a new client-lawyer relationship, establish fee understanding promptly by sending memo or copy of lawyers
customary fee arrangements:
i. 1 – state general nature of the legal services to be provided
ii. 2 – the basis, rate or total amount of the fee
iii. 3 – whether and to what extent the client will be responsible for any costs, expenses or disbursements in the
course of the representation
iv. 4 – written out
b. Contingent fees are subject to reasonableness standard = look to applicable law and factors relevant under
circumstances
c. Required to return any un-earned portion of advance payment
2. Fee Splitting
a. MR 1.5(e)
i. Occurs when lawyers who are not members of the same firm divide fees in a matter
ii. Referral Fee
1. Lawyer does not work on case, just refers  results in client paying excessive legal fees
2. Allowing referral fees could result in such unethical practices as solicitation of business
3. Contingent Fees & Expenses

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a. Charge Reasonable Fees MR 1.5(a)
b. Inform Client of the Basis of the Rate of the Fee MR 1.5(b)
c. Special Ethical Duties Regarding Contingent Fees MR 1.5(c)
i. Be in writing
ii. State the method by which the fee is computed, including the percentages if the matter is conclude by settlement,
trial, or appeal
iii. Identify the litigation or other expenses that the client is responsible to pay
iv. State whether expenses are deducted before or after the contingent fee percentage is computed
v. Clearly identify any expenses the client must pay regardless of whether the client prevails
vi. Lawyers must provide clients w/ a written settlement statement at the conclusion of the matter stating the
outcome and showing how the clients remittance is computed
vii. MR 1.5(d) – can’t collect contingency fees in domestic relations or criminal matters unless cause of action is
about collection of fees
1. public policy argument that don’t want to disrupt or encourage disruption of familial harmon
d. Ethical Obligations Regarding Expenses MR 1.8
i. Hourly Fees – can be based on value of the work
ii. Fixed Fees –
iii. Incurred Expenses:
iv. Typical Expenses:
1. Copying, computer time, etc
v. General Overhead Expenses:
1. Can’t bill client for general overhead in your “expenses” billing
a. Example: copies cost 7cents per page; can’t charge client 10cents per copy to include cost of
electricity to make copy and toner amount, can only charge client for what is identifiable
2. You are supposed to handle your general overhead through your actual fee charges, not through your
general/typical expenses
3. Attorney’s fees are usually calculated after all other expenses have been deducted (is this correct??)

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1.8 Conflict of Interest; Current Clients; Specific Rules
(a) (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:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in
writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal
counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the
transaction, including whether the lawyer is representing the client in the transaction.
(e) (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:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in
writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal
counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the
transaction, including whether the lawyer is representing the client in the transaction.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in
making the agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the
desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the
lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and

(2) contract with a client for a reasonable contingent fee in a civil case.

1.16 Declining or Terminating Representation

(b)(5) Failure to Pay Attorney. Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: the client fails
substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer
will withdraw unless the obligation is fulfilled; 7
 3.4(b) Fairness To Opposing Party And Counsel

A lawyer shall not: falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law
5.4 Professional Independence Of A Lawyer
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a
reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of
Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based
in whole or in part on a profit-sharing arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended
employment of the lawyer in the matter.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or
regulate the lawyer's professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or
interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of
association other than a corporation ; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

C. ALLOCATION OF RESPONSIBILITY, DISCHARGE & WITHDRAWAL; LIENS; CLIENT’S FILE

1. Scope of Representation

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 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by
Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is
impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the
lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the
client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political,
economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may
discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to
determine the validity, scope, meaning or application of the law.

1.16 Declining Or Terminating Representation

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw
from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or
fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental
disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given
reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult
by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When
ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests,
such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to

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which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer
may retain papers relating to the client to the extent permitted by other law.

a. Relationship b/w Lawyers and Clients

i. “informed consent” – mode of the day; attorneys act on clients wishes after informing them of what their options
are as allowed by model rules of professional responsibility
b. 1.16(a)(3) – client may discharge lawyer at any time
i. if this happens, compensation usually shifts to “quantum merit” – what is the reasonable value of the services
rendered up to this point;
c. 1.16(b) – lawyer wants to w/draw: can only do:
i. w/out material adverse affect on the client OR
ii. clients actions are criminal or fraudulent OR
iii. client fails to meet contractual obligation to attorney (i.e. pay fees) OR
iv. other good cause
2. Liens
a. Rule 1.8(i) – prohibits attorneys from acquiring a proprietary interest in the cause of action or subject of litigation except
for reasonable contingent fees in civil cases and “a lien authorized by law to secure the lawyers fee or expenses.
b. “Retaining Lien” - attorney’s right to retain client papers or other valuable client property in the lawyer’s possession as
security for any unpaid amount the client owes the lawyer
c. “Charging Lien” – applied against the proceeds of any settlement or judgment for any unpaid fees or expenses due the
attorney

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:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully
disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of
independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's
role in the transaction, including whether the lawyer is representing the client in the transaction.
(b) A lawyer shall not use information relating to 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, including a testamentary gift, or prepare on behalf of a client an
instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is
related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other
relative or individual with whom the lawyer or the client maintains a close, familial relationship.
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(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or
media rights to a portrayal or account based in substantial part on information relating to the representation.
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of
the matter; and
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.
(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the
clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed
consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas
involved and of the participation of each person in the settlement.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently
represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised
in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in
connection therewith.
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a
client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.
(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the
client-lawyer relationship commenced.
(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them
shall apply to all of them.

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 1.4 Communication
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is
required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not
permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

1.15 Re Trust Accounts; Safekeeping Property

(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate
from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is
situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately
safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a
period of [five years] after termination of the representation.
(b) A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service charges on that
account, but only in an amount necessary for that purpose.
(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the
lawyer only as fees are earned or expenses incurred.
(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or
third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly
deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by
the client or third person, shall promptly render a full accounting regarding such property.
(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be
the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly
distribute all portions of the property as to which the interests are not in dispute.

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 2.1 Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may
refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's
situation.

D. DUTY OF LOYALTY; CONFIDENTIALITY

1. General Principles
a. Scope: privilege invoke w/ respect to:
i. a communication
ii. made b/w privileged persons
iii. in confidence
iv. for the purpose of obtaining or providing legal assistance for the client
b. Summary: if any of elements absent, privilege does not apply
2. Exceptions:
a. Waiver
i. “privilege may be waived by agreement, disclaimer, or failure to object by voluntary disclosure in a nonprivileged
communication by the client, the client’s lawyer, disclosure in a non-privileged communication by the client, the
client’s lawyer, or another authorized agent of the client, or by raising the lawyer’s communication or assistance
as an issue in a proceeding”
b. Crime-Fraud Exception
i. privilege doesn’t apply when client:
1. (a) consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or
fraud or aiding a 3rd person to do so OR
2. (b) regardless of the client’s purpose at the time of consultation, uses the lawyers advice or other services
to engage in or assist a crime or fraud
ii. To break privilege party attempting must make a prima facie case that w/out explanation would be proof of
existence of exception
1. Burden then shifts to party maintaining privilege to provide reasonable explanation
c. Work-Product Doctrine
i. can be asserted by the attorney
ii. VIP CASE: Hickman v. Taylor (wrongful death action against owners of boat)
1. HOLDING: statements not protected by attorney-client privilege but still not discoverable b/c contained
thoughts/mental impressions of attorney in preparation of case;

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 iii. work product not absolutely immune from discovery where “relevant and non-privileged facts remain hidden in an
attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may be
property had”
iv. FRCP 26(b)(3) Trial Preparation Materials.
v. For Doctrine to apply:
1. Product created in anticipation of litigation
2. Exception: even if crt finds document is work product, adverse party may get if show substantial need &
inability to get w/out undue hardship
vi. Opinion WP vs. Ordinary WP
1. Opinion WP - mental impressions, etc.
a. Opposing attorney must show extraordinary circumstances to justify disclosure (along w/ substantial
need and undue hardship)
2. Ordinary WP – everything other then mental impressions and opinions of attorney; to get show substantial
need and inability to get w/out undue hardship
vii. Exam Purposes: professional responsibility focus => attorney has privilege of work-product but may be allowed
(this is here to show us feature of attorney-client privilege)
1. Any attorney can assert privilege if subject matter is part of attorney’s work assignment

3. LAW STORIES  Chapter 6: Spaulding v. Zimmerman: Confidentiality and its Exceptions

4. Duty of Confidentiality & Client Conduct

a. “reporting up” – lawyer informing higher authority w/in org of crime/fraud [MR 1.13(b)]
i. When you have knowledge that a constituent will do substantial injury to organization
ii. Current trend: organizations implementing “councils” to decide issues of conduct
b. “reporting out” – disclosure outside org
i. Appropriate to use to prevent harm to ppl [MR 1.6]
ii. Permissible when:
1. Self-defense [MR 1.6(b)(5)]
2. To prevent or rectify harm under MR 1.6(b)
3. Prevent harm to corporation under MR 1.13(c)
c. MR 1.13(a) – Entity Representation Principle: lawyer does not have attorney-client relationship w/ any of the
constituents merely b/c the lawyer represents the entity
d. Issues of 1.13(b)
i. Lawyer must have factual and legal basis for suspicion of misconduct for their to be obligation to report
ii. Misconduct must be in a matter related to the representation
iii. Involve substantial injury to org
e. Lawyer must discuss issues first w/ person whose conduct is in question (not required by MR but is common courtesy
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 f. MR 1.13(f) –
g. If lawyer has to w/draw, continuing duties [MR 1.13(e)]
h. MR 1.13(d) – limits lawyer’s authority to report out under 1.13(c)

5. Sarbanes-Oxley Act & SEC attorney conduct regulations (deals w/ “reporting out”)
a. 2002 – in response to widespread corporate accounting scandals
b. §307 Focuses on Lawyers
i. Establishes rules for professional conduct of attorneys who appear before board
1. attorneys required to “report evidence of material violations of Act to chief exec officer of company”
a. notice that there is no requirement of actual knowledge under S-O Act §307;
i. “knowledge” is a very objective standard
2. if chief exec does not appropriately respond, attorney must report violations to board of directors
c. Act supplements standards of Professional Conduct in states
i. If states have more stringent standards, then attorney must follow states, etc
d. Act applies to attorney who appear before Commission in the representation of an “issuer”
i. An “issuer” is a company selling stocks, etc
e. Obligation applies to attorneys to report when attorney’s actually become aware of conduct
i. “credible evidence” which would make it “unreasonable” to conclude that a material violation had not occurred
ii. “reasonably likely that material violation has occurred”
iii. Lawyer may properly refuse to report if a competent and prudent lawyer would, under the circumstances,
conclude based on the evidence that a finding of a violation was not reasonably likely
f. Subordinate Attorneys
i. have fulfilled obligation when report to supervisor
ii. DIFFER FROM S-O ACT: Under MR 5.2(b) – subordinate attorneys are not relieved from responsibility by
reporting to supervisor
iii. S-O Act affords subordinates greater protection
g. Supervisory Attorney
i. Must make decision whether evidence is sufficient to require reporting
ii. If find yes:
1. may report to Qualified Legal Compliance Committee (QLCC)
a. report to QLCC only if committee was established before matter arose
i. once attorney reports to QLCC, no further action on part of attorney is necessary
b. if none exists, attorney must:
i. report evidence to issuer’s Chief Legal Officer (CLO) or equivalent
1. CLO must then investigate
2. if attorney reasonably believes CLO has not made an appropriate response w/in reasonable time, attorney
must report to audit committee of issuer
15
 3. if reasonably believes response appropriate, no further action necessary
iii. If you are investigating attorney, there will come a time when you will report out possible – S-O Act §205(3)(d)
pg. 465 of supp

1.6: Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the
disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial
interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to
result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's
services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a
defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to
respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(6) to comply with other law or a court order.
Please note: Model Rule 1.6 is one of the rules that has been undergoing continuing scrutiny and revision in the wake of financial
scandals within the last 10 years. Such concerns are most apparent in M.R. 1.6(a) and (b)(2) and (3), and related Comments,
especially Comments 6 - 8, 14, 15, 16 and 17.

E. FRAUD BY CLIENTS IN BUSINESS TRANSACTIONS

1. MR 1.2(d)
a. obligation not to counsel or assist clients when know it would help them to commit crime or fraud but lawyer may
discuss the legal consequences of any proposed course of conduct w/ a client
b. Knowledge can be inferred from the circumstances [MR 1.0(f)]
i. Standards to help interpret “knowledge” (not required): firm factual basis, beyond a reasonable doubt, willful
blindness, conscious avoidance
c. Obligation not to help client when know client conduct is a crime/fraud
2. Must lawyer resign when conduct is fraudulent?
a. ABA comments: lawyer ethically obligated to w/draw from matters directly involving fraud
i. To matters not involving fraud – lawyer will probably be allowed to w/draw under MR 1.16
1. ABA says good idea to w/draw to disassociate yourself from fraud

16
1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer
(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's
political, economic, social or moral views or activities.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a
lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to
make a good faith effort to determine the validity, scope, meaning or application of the law.

1.6. SEE ABOVE

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial
interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to
result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's
services;

1.13 Organization As Client

(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in
action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the
organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury
to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the
lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to
higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the
organization as determined by applicable law.
(c) Except as provided in paragraph (d), if
(1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization
insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of
law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization,
then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and
to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.
(d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an
alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization
against a claim arising out of an alleged violation of law.
(e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to
paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those
17
paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed
of the lawyer's discharge or withdrawal.
(f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall
explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to
those of the constituents with whom the lawyer is dealing.
(g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or
other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule
1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by
the shareholders.

**Please note that Model Rule 1.13 has also been undergoing continuing scrutiny and revision in the wake of the recent financial
scandals. Please pay special attention to M. R. Rule 1.13 (b) and “c” and Comments 3 - 5.

**Sarbanes-Oxley Act of 2002, section 307 (15 U.S.C.A. 7245) at p. 458 of the Morgan and Rotunda Supplement.

**Please also take a look at the Securities and Exchange Commission’s Regulations implementing section 307 at pp. 458 – 67 as an
illustration of an agency’s potential for establishing its own standards for professionals’ performance. In particular, please review
Regulation 205.2 (b), defining an “appropriate response,” (e), defining “evidence of a material violation,” and (I.), defining “material
violation;” 205.6 setting forth “Sanctions and Discipline”; and 205.7 establishing “No private right of action.”

1.16 SEE ABOVE

Lawyer may withdrawal from representation when:
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult
by the client; or

18
_______________________________CONFLICTS OF INTEREST_____________________________________

1.7 Conflict Of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent
conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's 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 of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation
or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

A. REPRESENTATION AGAINST CURRENT CLIENTS

1. INTRO
a. RULE: when single matter contested b/w current clients, test to determine whether conflict of interest is:
i. (1) MR 1.7(a)(1) – concurrent conflict of interest exists when clients interests are “directly adverse” to one
another
1. To have clients “consent” to dual representation = consent form takes the form of a waiver of conflicts of
interest
a. Ex. friendly divorce w/ no kids
b. TEST FOR FORMER CLIENTS: “substantial relationship” test
c. “Current Client” – when in an ongoing professional relationship and the client reasonably expects the firm is their lawyer

2. 1.7 COMMENTS
a. MR 1.7(a) – concurrent conflicts of interest
i. (a)(1) - Lawyer may NOT undertake representation that is “directly adverse” to another client unless permitted by
MR 1.7(b)
b. MR 1.7(b) – deals w/ conflicts involving representation of one client against another client in a “current proceeding
before a tribunal” VS “unrelated matters”
c. MR 1.7(b)(3) – CAN NOT represent two current clients against each other EVEN IF they consent
3. “Entity” Representation Cases
a. MR 1.13(a) – lawyer employed by an entity represents it rather than any of its members or constituents

19
 i. EXCEPTION: lawyer could have a client-lawyer relationship w/a partner or member, depending on facts and
circumstances
1. VIP – DETERMINING IF RELATIONSHIP EXISTS IS A FACTS/CIRCUMSTANCES ANALYSIS
b. Westinghouse Electric Corp v. Kerr-McGee Corp
i. HOLDING: a client-lawyer relationship existed b/w law firm and members of association (not just association) b/c
firm held itself out as independent counsel, communicated directly w/ members of the association, and assured
them of confidentiality, one of the identifiers of client-lawyer relationship
a. Per Se Invalid Approach = Lawyer’s obligation to an existing client must be measured not so much against the
similarities in litigation, as against the duty of undivided loyalty, which is a duty that applies w/ equal force where the
client is a subsidiary of the entity to be sued
b. Alter Ego Test = not disqualified when matters were completely unrelated
i. To pass test:
1. there is such a unity of interest that he separate personalities of the corporations no longer exist AND
2. inequitable results will follow if the corporate separateness is respected

4. Positional Conflicts
a. No rule about this in MR
b. When lawyer takes a legal position that is adverse to the interests of another client but matter is unsettled in the law;
i. MR 1.7 [24] Comment  “conflict may arise if there is a significant risk that the lawyer’s action in one case will
materially limit the lawyer’s effectiveness in a different case (i.e. by say, the creation of precedent)
c. If arises, lawyer may not proceed w/out informed consent by both parties
d. Competing economic interests of parties in simultaneous representation of unrelated matters does not ordinarily
constitute a conflict of interest
5. Consentable Conflicts
a. MR 1.7(b) – lawyer may undertake adverse representation if:
i. (1) – the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation
to each affected client …AND
ii. (4) – each affected client gives INFORMED CONSENT, CONFIRMED IN WRITING
b. Unified Sewerage Agency v. Jelco, Inc.
i. HOLDING: though general rule precluding representation against a present client, such representation was
proper b/c J had given informed consent.
3. Attorney must do more then simply inform client of the conflict and obtain approval for representation.
4. The lawyer must explain the implications of the conflict to the client
5. Consent: Validity of Prospective Waivers
ii. ISSUE: in order to prove validity of a prospective waiver, must demonstrate that client reasonably understands
the material risks that the waiver entails.

20
 4. LAW STORIES  Chapter 7, “Bankrupt in Milwaukee: A Cautionary Tale.”

B. REPRESENTATION AGAINST FORMER CLIENTS

1. Substantial Relationship Test
a. Created by Judge Weinfield in TC Theatre Corp. v. Warner Bros Pictures Inc.
b. RULE = Former client need show no more than the matters in pending suit are substantially related to the matters or
cause of action where attorney previously represented him
i. Crt will assume confidences were disclosed to attorney bearing on subject matter of representation
ii. “Crt will not inquire into their nature and extent”
1. purpose of this presumption that attorney got info during representation and won’t go further is to prevent
forcing party from disclosing info that they are seeking to protect
c. Codified in MR 1.9
d. Some courts say this resulted in irrebutable presumption that confidential info was likely to be used
2. In re American Airlines, Inc
a. 5th circuit HOLDING: Only thing party seeking disqualification must demonstrate is that two matters are substantially
related
i. NOT that attorney’s involvement threatens to taint trial
ii. Must protect clients interest in the loyalty of his attorney
3. MR and Restatement REJECT In re American Airlines holding
4. Differences b/w Court application of “substantial relationship” test vs. MR
a. S.R. Test - does not require two issues to be identical, relationship is measured by the allegation in the complaint and
by the nature of the evidence that would be “helpful” in establishing those allegations
b. S.R. Test – disqualification only when the relationship b/w the issues involved is “patently clear”
c. S.R. Test – is the information “relevant” to the issues in the pending litigation?
d. MR 1.9 comment = information must “materially advance the client’s position in the subsequent matter”
 VIP is varying degree of importance to the current matter that must be shown for Substantial Relationship Test to apply;
(pg. 284-5) **VIP**
o MR say info gained in the prior representation must “materially advance the client’s position in the subsequent matter”
in order to be applicable to disqualification
 Passage of time or general knowledge may make info stale

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 person's 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 a substantially related matter in which a firm with which the lawyer
formerly was associated had previously represented a client
21
 (1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;
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:
(1) 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
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

C. IMPUTATION OF DISQUALIFICATION

MR 1.10 Imputation Of Conflicts Of Interest: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be
prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a
significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests
materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.
(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.
(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

Model Rule 1.10 is the general rule on imputation of disqualification, applicable to lawyers who are not current or former government employees.
We will consider the imputation of disqualification for government attorneys when we cover materials on representing the “public interest.”

Comments:
 the general rule on imputation of disqualification, applicable to lawyers who are not current or former government employees.
We will consider the imputation of disqualification for government attorneys when we cover materials on representing the
“public interest.”

1. Imputation Principle
a. “vicarious disqualification” – when lawyers are currently associated w/ a firm, and one of the lawyers is disqualified, the
disqualification is imputed to disqualify all members of the firm
i. “firm” can sometimes include co-counsel relationships if relationship is “close, personal, continuous, and regular”
2. Movement b/w Firms
a. Silver Chrysler Plymouth, Inc. v Chrysler Motors Corp
22
 i. HOLDING: attorney that moved from old firm to new firm should only disqualify new firm if attorney had actually
acquired confidential information about the subsequent client;
1. see MR 1.9(b) = lawyer changes firms, lawyer is disqualified from handling a matter involving a client of
the old firm if the new matter is the same as or substantially related to a matter involving the client of the
old firm, the interests of the new client and the former client are materially adverse, and the lawyer
received confidential info materially related to the matter.
3. “Screening” of Disqualified Lawyers
a. “screening” = instead of disqualifying entire firm b/c new lawyer is disqualified, simple screen the disqualified lawyer
from handling the matter
b. MR – do not allow “screening” of disqualified lawyer from case in order to still represent client b/c client is entitled to
confidentiality; rule is that when an attorney is disqualified, the entire firm is disqualified;
i. Exceptions: 1.11 – former government lawyers; MR 1.12 – former judges or neutrals; MR 1.18 – prospective
clients
c. Some courts follow MR, some courts say screening should be permitted
i. How To Screen:
1. measures taken to prevent disclosure of confidential info by disqualified lawyer
d. Restatement – allows screening ONLY if disqualified lawyer is unlikely to be significant in the subsequent matter
e. Former Prospective Client Disqualification:
i. MR and Restatement RULE: when a lawyer is disqualified, the lawyer’s firm may undertake representation
against former client even if the lawyer obtained confidential info that could be significantly harmful to the former
prospective client, provided the lawyer who received the info is screened from any participation in the matter;
1. if info is not significantly harmful, the lawyer could personally undertake representation against former
prospective client
f. Disqualification due to Paralegals or other Nonlawyer employees
i. If firm has no adequate screening measures = disqualification
4. Imputation when Disqualified Lawyer Leaves Firm
a. MR 1.10(b) RULE: old firm not disqualified form handling a matter against a former client when the matter was
handled by a departed lawyer unless the current matter is substantially related to the prior representation AND some
lawyer still remaining w/ the firm actually received material confidential info regarding the former client

_____________________________ETHICAL ISSUES IN CIVIL LITIGATION_____________________________

A. COMMENCEMENT OF ACTIONS
2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a
lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant
to the client's situation.

23
3.2 Expediting Litigation

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

1. ETHICAL DUTIES AND DISCOVERY SANCTIONS

a. MR 3.1: ethical obligations of lawyers not to engage in frivolous legal proceedings
i. Applies to complaints, answers, motions, etc
ii. Exception for defense of criminal proceedings
iii. No explicit definition of a “frivolous action”
1. MR 3.1 cmt 2 offers explanation:
a.
iv. Comments:
1. action is not frivolous even though lawyer believes that the client’s position ultimately will not prevail
b. MR 3.2 Expediting Litigation: “A lawyer shall make reasonable efforts to expedite litigation consistent with the
interest of the client.”
c. FRCP 11
i. Applies only to action in Federal Crt
d. Chambers v. Nasco
i. SC HOLDING: federal crts have inherent power to impose sanctions for bad faith conduct even when the
conduct is not specifically covered by rules of procedure or statutory provisions, including fraud that occurs
outside crt.
2. Tort Liability for Frivolous Actions
a. Attorneys can be subject to disciplinary actions under MR 3.1, sanctions under FRCP Rule 11, and possibility of tort
liability under Rest. of Torts §674 Malicious Prosecution &/or §682 Abuse of Process
b. Malicious Prosecution
i. Burden on party bringing MP suit to show:
1. absence of probable cause AND
2. Termination of proceeding in favor of PL
3. Improper purpose in bringing suit (i.e. brought suit for purpose other than proper adjudication of the claim)
c. Abuse of Process
i. Improper purpose
ii. Abuse occurs when process is used for a purpose other than that which it was intended – which is adjudication of
the claim;
iii. **This one is easier to establish**
d. In order to avoid frivolous actions/claims w/out merit, attorney should do investigation – FRCP 11: “reasonable
inquiry under the circumstances”

24
B. INVESTIGATION AND DISCOVERY TECHNIQUES
1. INVESTIGATION
a. Investigative Contacts w/ Potential Witnesses or Potential Defendants Prior to Filing Suit
1. MR 4.2: a lawyer CAN NOT communicate w/a person the lawyer knows is represented by counsel in the
matter w/out the consent of the person’s attorney, unless the communication is authorized by law;
1. MR 3.4(f)(1) – an employer may request its employees not discuss a matter that might lead or is involved
in litigation with plaintiff’s counsel.
2. Employer could send a letter to PL’s counsel discuss investigative matters w/ employer’s counsel, then
counsel would be on notice that employees were represented by counsel.
3. MR 4.2 applies to pre-complaint and during litigation
2. MR 4.3 Obligation w/ Regard to Unrepresented PPL: “lawyer shall not give legal advice to an unrepresented
person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the
interests of such a person are or have a reasonable possibility of being in conflict w/ the interests of the client.”
2. PROHIBITION OF COMMUNICATION W/ A PERSON REPRESENTED BY COUNSEL: PURPOSE AND SCOPE:
a. MR 4.2 “No Communication Rule”: In representing a client, a lawyer shall not communicate about the subject of the
representation w/a person 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 by court order.
1. Rule applies even if represented person initiates or consents to the communication.
2. Exceptions to Rule:
1. communication allowed when authorized by law
2. applies only to lawyers, not to their clients
3. communication in an emergency is permissible
3. Government Communications:
1. MR comments: communications authorized by law may include communications by a lawyer on behalf of
a client who is exercising a constitutional or legal right to communicate w/ the government.
2. Restatement: “no communication” rule does not apply to gov agency employees being represented”
a. “No communication” rule applies when:
i. In negotiation or litigation by a lawyer of a specific claim of a client againsty a gov agenscy or
against a gov officer in the officer’s official capacity, the prohibition stated in §99 applies,
except that the lawyer may contact any officer of the government if permitted by the agency
or w/ respect to an issue of general policy.
b. Neiseg v. Team 1
1. RULE: lawyer may not communicate directly w/a “party” known to have counsel in the matter
1. VIP MR 4.2 now says “person” was revised in 2000, no longer “party” b/c “party” implied that rule only
applied once litigation had begun which is NOT the case now (“no communication” rule applies to pre and
post litigation)
25
 2. Test Derived by Court to determine who is a “party” in litigation:
1. a “party” is a corporate employee whose acts or omissions in the matter under inquiry are binding on the
corporation or imputed to the corporation for purposes of liability, or employees implementing the advice of
counsel.
a. All other employees may be interviewed informally
i. OF COURSE it is assumed that attorneys would make their identity and interest known to
interviewees and comport themselves ethically.
c. VIP MR 4.2 cmt 7: Employees of Corporations
1. In the case of a represented organization, this MR prohibits communications w/ a constitutent of the org who
supervises, diects or regularly consults w/ the org’s lawyer concerning the matter or has authority to obligate
the org w/ respect to the matter or whose actor o omission in connection w/ the matter may be imputed to the
org for purposes of civil or criminal liability
1. eliminates “admission test” for determining employees subject to the rule
2. narrows class of managers subject to the no-communication rule
3. Application of the Prohibition on Communications w/ an Opposing Person to Former Corporate Employees
a. MR 4.2 cmt 7: “consent of the org’s lawyer is not required for communication w/ a former constituent”
1. However, warning to lawyers not to use methods of obtaining evidence that violate the legal rights of the
organization
b. Camden v. Maryland
1. HOLDING: communications w/ former employees are generally permissible but in this case the attorney’s
contacts were improper b/c the employee had been extensively exposed to confidential information involved in
the case
c. Restatement of Law Governing Lawyers:
1. Communications w/ former employees are generally proper except under limited circumstances:
1. such as, former employee was extensively exposed to privileged information
4. Other Applications of MR 4.2: settlement offers, expert witnesses, and treating physicians
a. MR 4.2: does not allow an attorney to make a direct communication of a settlement offer to the opposing party.
1. Other options if attorney believes opposing counsel is not conveying settlement offer:
1. attorney can serve an “offer of judgment” on opposing party, w/ copy to counsel, if authorized by FRCP
a. doesn’t violated MR 4.2 b/c it’s a communication authorized by law
2. attorney may file copy of settlement offer w/ court
3. attorney can advise client of right to convey offer directly to opposing party
b. MR 8.4 prohibits a lawyer from violated the rules of professional conduct “through the acts of another”
1. RULE: MR. 8.4 does not apply in the context of advising a client about the client’s right to convey a settlement
offer to the opposing party when the lawyer has GOOD REASON to believe that opposing counsel has not
done so.
c. Lawyer may not informally interview an expert for opposing counsel w/out consent of opposing counsel.
26
3.4 Fairness To Opposing Party And Counsel
A lawyer shall not:
(a) unlawfully obstruct another party' s 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;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid
obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper
discovery request by an opposing party;
(e) 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 an accused; or
(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such
information.

4.2 Communication With Person Represented By Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a person 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
a court order.

5. UNREPRESENTED PERSONS
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
lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give
legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should
know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

4.4 Respect For Rights Of Third Persons

(a) 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 violate the legal rights of such a person.

27
 (b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably
should know that the document was inadvertently sent shall promptly notify the sender.

6. DISCOVERY ABUSE
a. Discovery Abuse in Deposition Practice
1. Inappropriate coaching of Ws
1. Rule: lawyer may not assist the W to testify falsely as to a material fact;
b. Professional Standards for Conducting Discovery and Techniques for Dealing w/ Discovery Abuse
1. MR 1.0(m) – “Tribunal” definition
2. MR 3.3 – Tribunal
3. MR 3.4(a) & (d) - fairness to opposing counsel
4. MR 3.4(b) – Perjury

7. LAW STORIES  Chapter 3, “Travails in Tax: KPMG and the Tax Shelter Controversy”: focuses on the aggressive
marketing of tax shelters

8. CANDOR TOWARD THE TRIBUNAL

3.3 Candor Toward The Tribunal
(a) A lawyer shall not knowingly:
(1) 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;
(2) 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
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s 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 defendant in a criminal matter, that the lawyer reasonably believes is
false.
(b) A lawyer who represents a client in an adjudicative 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.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if
compliance requires disclosure of information otherwise protected by Rule 1.6.
(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.

28
________________REPRESENTING DEFENDANTS WHO ARE CHARGED WITH CRIMES________________
A. DEFENDING THE GUILTY

1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a
lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to
make a good faith effort to determine the validity, scope, meaning or application of the law.

3.1 Meritorious Claims And Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for
doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A
lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may
nevertheless so defend the proceeding as to require that every element of the case be established.

B. DELIVERY OF LEGAL SERVICES TO INDIGENT DEFENDANTS

C. COMPETENCY OF DEFENSE COUNSEL & LEGAL FEES IN CRIMINAL CASES

1.1 Competence 1.5

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, Fees
thoroughness and preparation reasonably necessary for the representation (a) A
lawyer
shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be
considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal
service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by
the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
29
 (8) whether the fee is fixed or contingent.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or
upon the amount of alimony or support, or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.

1.8 Conflict of Interest: Current Clients: Specific Rules

(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or
media rights to a portrayal or account based in substantial part on information relating to the representation.

1.15 Re Trust Accounts; Safekeeping Property

(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate
from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is
situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately
safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a
period of [five years] after termination of the representation.
(b) A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service charges on that
account, but only in an amount necessary for that purpose.
(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the
lawyer only as fees are earned or expenses incurred.
(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or
third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly
deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by
the client or third person, shall promptly render a full accounting regarding such property.
(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be
the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly
distribute all portions of the property as to which the interests are not in dispute.

D. PERJURY IN CRIMINAL CASES & THE “LECTURE”

1. Client Intends to Commit Perjury: what to do?
a. MR & RESTATEMENT APPROACH
i. RULE: lawyers should not knowingly participate in the introduction of false testimony
ii. APPROACH: if lawyer knows testimony is false, must refuse to present testimony and take reasonable remedial
means to correct false testimony (if necessary – disclosure)
iii. REASONING: integrity of tribunal superior to any interest client may have in loyalty and confidentiality regarding
false testimony MR 3.3(a)(3)
iv. STEPS:
30
 1. remonstration – MR 2.1: convince D not to do it
2. w/drawal – MR 1.16(b)(2): lawyer has discretion but not ethically required to withdrawal
3. disclosure to prevent false testimony – MR 3.3(b): must do if necessary to prevent bribery, intimidation, or
unlawful destruction of documents whether conduct by D or 3 rd person;
4. refuse to call D as a W – MR 3.3(a)(3): basically says lawyer can refuse to offer D’s testimony only when
he KNOWS that testimony if false, all other times, lawyer can refuse to offer evidence when lawyer
reasonably believes it is false;
5. narrative testimony – MR 3.3 comments allow this in jurisdictions where specifically authorized & in all
other jurisdictions when lawyer remains on case Y a portion of the D’s testimony will be false
6. remedial measures after false testimony has been offered – MR 3.3(a)(3): it appears by language that
duty to disclose only comes when attorney is surprised by false testimony
1.2 SEE ABOVE

1.16 SEE ABOVE

2.1 SEE ABOVE

3.3 SEE ABOVE

1. LAW STORIES  Chapter 5 “U.S. v. Kaczynski: Representing the Unabomber

___________________________________TRIAL & COURTROOM WORK______________________________

A. TRIAL PREPARATION
1. TRIAL PUBLICITY
a. Gentile v. State Bar of Nevada – SC Case
i. ISSUE: constitutionality of 1983 version of MR 3.6?
ii. FACTS: G attorney who called a press conference to talk about PO’s investigation. Pre-conference, G
researched issue of whether conference was likely to prejudice trial. At trial, G’s client was acquitted. State Bar
began disciplinary proceedings against G for violating MR 3.6.
iii. HOLDING: “substantial likelihood of materially prejudicing an adjudicative proceedings” standard of MR 3.6 was
constitutional. MR 3.6’s application to G in this case is unconstitutional b/c likelihood of prejudice by press
conference was minimal.
1. MR 3.6(c) language mislead G to thinking he could give a press conference w/out fear of discipline b/c rule
says: “lawyer may state, w/out elaboration, the general nature of the defense.”
b. Crt Rules and Gag Orders
i. District crt case:
1. Restraints on speech should carry a heavy presumption against their constitutionality;

31
 ii. Limitations on speech must be “no broader than necessary to protect the integrity of the judicial system and the
D’s right to a fair trial.”

3.6 Trial Publicity

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial
statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a
substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the
likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a
client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement
made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by
paragraph (a).

3.8 Special Duties of a Prosecutor

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a
legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening
public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or
other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the
prosecutor would be prohibited from making under Rule 3.6 or this Rule.
B. SPECIAL DUTIES OF PROSECUTORS

3.8 Special Responsibilities Of A Prosecutor

The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
32
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and
has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the
accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged
mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of
the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the
prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a
legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening
public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or
other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the
prosecutor would be prohibited from making under Rule 3.6 or this Rule.

1. Exculpatory Evidence
a. MR 3.3(a)(2) – prosecutors and defense attorneys have an obligation, although fairly limited one, to disclose adverse
legal authority
b. Pros has constitutional and professional obligation to disclose “exculpatory” material
c. Brady v. Maryland: SC held that suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.
i. Brady Rule only applies to evidence in possession of gov or police
d. MR 3.8(d) – Pros shall:
i. Timely disclosure
ii. Of all evidence or information
1. known to pros
2. negates guilt, mitigates offense
iii. in connection w/ sentencing disclose to defense and tribunal:
1. all unprivileged mitigating info known to pros
a. EXCEPT when the pros is relieved of this responsibility by protective order of tribunal
e. Difference in MR 3.8 for SC decisions:
i. MR 3.8 – info/evidence “known” to pros + greater disclosure
ii. SC – any evidence in the hands of the gov, even if not known by pros
33
 2. Charging & other Discretionary Documents
a. MR 3.8(a) – pros shall refrain from prosecuting a charge that the pros knows is not supported by probable cause;
b. “Overcharging”
i. Is OK b/c part of the give and take of negotiation common in plea bargaining
ii. Charges should not be filed simply to exert leverage to induce a plea, nor should charges be abandoned in an
effort to arrive at a bargain that fails to reflect the seriousness of the D’s conduct.

4.2 SEE ABOVE

1. COURTROOM MISCONDUCT
a. By Prosecutors: Should Prosecutor’s be Subject to Greater Regulation?
i. If regulation a problem, should be more scrutiny of their actions
1. Civil liability
ii. Buckley v. Fitzsimmons: HELD prosecutors were entitled only to qualified rather then absolute immunity for
investigative conduct and for statements made at press conferences.
iii. Kalina v. Fletcher: HELD that prosecutors were protected by absolute immunity in connection w/ preparation and
filing of charging documents, but they were not entitled to such immunity w/ respect to executing certifications for
determination of probable cause b/c such certificates were not part of the traditional functions of advocates.

2. SHAWN LAGRAU SPEAKER

3. LAW STORIES  Chapter 4: “In the Pink Room”

C. HONESTY IN NEGOTIATION

1.2 SEE ABOVE

4.1 Truthfulness In Statements To Others

In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(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.

1. 2 CATAGORIES:
a. HONESTY & FAIRNESS
2. MR 4.1(a) – in representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third
person
34
 a. Some false statements are permissible b/c they do not amount to statements of material fact.
3. Distinguishing b/w Permissible and Impermissible Representations:
a. EX: improper misrepresentation clearly occurs when a lawyer makes a false statement about the material facts of the
case – the testimony of a W or the existence or contents of a document
b. Not improper to misrepresent their true opinions about the relative strengths of each side of a case;
4. Duty of Disclosure
a. MR 4.1(b) – a lawyer may not knowingly 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.
i. MR 4.1(a) comments: Misrepresentations can occur by partially true but misleading statements or omissions that
are the equivalent of affirmative false statements (i.e. failure to disclose)
b. 4 Situations Where Duty to Disclose:
i. Duty of corrective disclosure
ii. Lawyers knows a party is operating under a fundamental mistake about the contents of a writing
iii. Lawyer has a fiduciary duty to the opposing party to disclose material information in negotiation (rare)
iv. Disclosure necessary to correct a mistake by the other party about basic aspects of the transaction and the
failure to disclose violates standards of good faith and fair dealing.
5. Fairness of the Settlement
a. Used to be that MR stated that lawyers owed a general duty of fairness to one another in negotiation, but this was
overly broad and replaced w/ MR 4.1
6. Improper Threats
a. MR 8.4(b) prohibits lawyers fro engaging in criminal conduct that reflects on their honesty, trustworthiness, or fitness to
practice law
i. Lawyer does not violate any of these rules by threatening criminal prosecution to settle a civil matter if the crime
was related to the civil matter;
ii. Lawyer can also agree not to report a criminal offense provided that such an agreement did not amount to
compounding a crime
iii. Threats to give undue publicity to the other party’s private matters in order to induce settlement are improper
b. MR. 4.4 – respect rights of 3rd persons
7. Approaches to Negotiation
a. Goes to Principles of Lawyering:
i. Style – personality traits that the lawyer presents in negotiation
1. competitive
2. collaborative
3. cooperative
ii. Strategy – goals of the negotiation
1. real adversarial
2. problem-solving approach
35
 b. MR 1.2(a) – a lawyer must abide by the client’s decisions concerning the objectives of representation and as required
by MR 1.4, shall consult w/ the client as to the means by which they are to be pursued;
i. Lawyers have broad discretion regarding tactical matters
c. MR 1.3: Diligence. A lawyer shall act w/ reasonable diligence and promptness when representing a client.
i. Application of MR: attorney should refuse to assist in vindictive conduct and should strive to lower the emotional
level of a family dispute by treating all other participants w/ respect.
8. Confidentiality or Non-cooperation Agreements & Judicial Orders Sealing Court Records
a. Many reasons where such an agreement is def justified, like family matters etc.
b. HOWEVER, not appropriate when lawyers negotiate and receive (monetary) incentive to have themselves and clients
enter into such confidentiality agreements.

4.3 SEE ABOVE

4.4 SEE ABOVE

5.6 Restrictions On Right To Practice

A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to
practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.

8.4 SEE ABOVE (Attorney Misconduct)

D. MEDIATION AND ARBITRATION

1. ADR in General
a. Various procedures, other then litigation, for resolving disputes
b. Common Forms:
i. Arbitration
1. dispute presented to neutral decision maker who renders a binding decision
ii. Mediation
1. helps parties to settle a dispute, but mediator’s decision is not binding on the parties
2. Ethical Obligations of Lawyers to Advise Clients regarding ADR
a. Advantages and disadvantages
3. Ethical Obligations of Lawyers Serving as Mediators & Arbitrators
a. MR 2.4 – requires lawyer neutral to inform unrepresented parties that the neutral does not represent them.
36
 i. When lawyer neutral knows or reasonably knows that parties don’t understand difference, lawyer is required to
explain the differences.
b. Arbitrators failure to disclose facts that could affect the arbitrator’s impartiality will not necessarily invalidate an award
c. Just b/c an arbitrator may have violated ethical standards, does not necessarily result in judicial nullification of the
award.

1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation.

1.2 SEE ABOVE

1.4 SEE ABOVE

1.12 Former Judge, Arbitrator, Mediator Or Other Third-Party Neutral

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated
personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other
third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.
(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in
which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or
other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a
party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has
notified the judge or other adjudicative officer.
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or
continue representation in the matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee
therefrom; and
(2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the
provisions of this rule.
(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing
that party.

2.1 SEE ABOVE

2.4 Lawyer Serving As Third-Party Neutral

37
(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a
resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an
arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the
lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the
difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.

________________________________LAWYERS IN PUBLIC SERVICE________________________________

A. JUDICIAL ETHICS
1. UNLIKELY HEROS  ETHICAL DISCUSSION
a. Pre-Judicial Behavior
i. Political nature of obtaining judgeships.
ii. Political connections often put federal judges in position for places on the bench.
1. Conversely, being outside the political loop will prevent one from being considered.
iii. News coverage of judicial appointments and confirmation hearings has changed how things are done.
1. Prior decisions and prior statements are much more open to scrutiny today.
2. Senators in Congress are the crucial link.
iv. Bar Associations role in era of social change.
1. Disincentives would include loss of fees, stigmatization, etc.
2. Also, plaintiffs in these cases would tend to have lower funds to pay for the lawyer’s services.
3. An additional disincentive would be that there is a potential conflict of interest with existing clients – they
might suffer from a lawyer taking a case.
v. Ethical Standards for Bar Associations
1. With the exception of voluntary standards and statements for bar associations, there is not much guidance
for bar associations themselves.
b. Personal Issues for Judges on the Bench
i. Membership in Private Country Clubs and other exclusionary organizations.
1. Some judges did not seem to have a problem with upholding the law and still belonging to exclusionary
organizations.
ii. Balancing of Professional Role and Personal Sacrifices of Judges
1. There were many occasions that judges had to make sacrifices in their personal lives.
2. Ostracism/hatred/loss of support networks was also very prevalent.
3. Especially acute when families are involved.
4. Once one is targeted, it can be a disincentive from backing off because this could be seen as weakness
on your part.
c. Relationships
38
 i. Relationship Between Supreme Court, Circuit Courts, and District Courts
1. Brown decision called for implementation of desegregation by “all deliberate speed.”
a. There was little direction as to how this would be done.
b. These judges believed that desegregation was dismantling of a way of life.
c. There also seemed to be some structuring as to which judges would hear certain cases.
ii. Relationship Between Judicial Decisions and Legislative Process
1. In this case, there seems to be evidence that the Fifth Circuit judges took an active role because of both
predisposition and the reality that there was much opposition.
2. At what point do judges that are admittedly unrepresentative of the people restrain themselves from
actually making law.
iii. Relationship Between Federalism and States’ Rights
1. States claimed the doctrine of “Interposition” – basically that the States could override federal laws in
certain instances.
2. Judge Cameron was very focused on States’ rights.
a. His view was a counterbalance to the philosophy of The Four in terms of race cases.
iv. Relationship Between Substance and Procedure
1. Some of Tuttle’s actions were procedurally unusual.
a. Gerrymandering of panel composition.
b. Expediting cases.
d. Disqualification
i. Judicial ethics call for judges to disqualify themselves when they are unable to be impartial.
e. Social Ostracism
i. The plaintiffs and the lawyers involved in the fight to end segregation were also heroes – while we tend to focus
on the judges because of their public nature, the lawyers and plaintiffs were even more crucial to the cause.
f. Governor Barnett Problem
i. Decision not to prosecute Barnett for contempt.
ii. This was a multi-year legal struggle to determine if Barnett could be held in criminal contempt for denying
Meredith entry into the University of Mississippi.
iii. The Supreme Court had found in a previous case that there was no entitlement to a jury trial but the penalty
would not be severe.
iv. Ultimately, the Court decided not to prosecute Barnett for criminal contempt.
v. There are times when public order, politics, etc. might weigh in favor of not enforcing the law.

CB PGS. 547 – 73 and ONLY the Preamble and the boldface language of Canons 1 - 5 (E), which begin at p. 512 of your
Selected Standards volume.

B. GOVERNMENT ATTORNEYS
39
MR 1.11 Special Conflicts Of Interest For Former And Current Government Officers And Employees
(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the
government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and
substantially as a public officer or employee, unless the appropriate government 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:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee
therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the
provisions of this rule.
(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government
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. As
used in this Rule, the term "confidential government information" means information that has been obtained under governmental
authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal
privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake
or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom.
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or
nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in
writing; or
(ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in
which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge,
other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to
the conditions stated in Rule 1.12(b).
(e) As used in this Rule, the term "matter" includes:
(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy,
investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and
(2) any other matter covered by the conflict of interest rules of the appropriate government agency.

40
MR 1.12 SEE ABOVE

MR 1.13 SEE ABOVE

1. Role of Gov Lawyer & Duty to Seek Justice

a. MR 2.1 – lawyers should counsel their clients regarding legal and nonlegal aspects of their case; including the fairness
of the action the client intends to take
i. MR 1.2(b) – client retains right to reject advice of attorney and attorney does not bear responsibility if client
wishes to proceed in a way that is unfair
b. Attorney General
i. Highest legal official in federal government
ii. Has power to control litigation where US involved
iii. Subject to authority of prez
iv. State Attorney Generals
1. authority depends on statutory, constitutional, and common law rules
2. NOT subject to authority of governor
2. Confidentiality of Info: Gov Attorneys and Wrongdoing by Gov Officials
a. MR 1.13 – lawyers employed by organizations have legal duty to protect org from harm caused to org by a constituent
i. To fulfill this duty, lawyer will generally have to reveal info about wrongdoing to high authorities w/in org;
ii. COMMENTS: MR 1.13 also applies to governmental organizations
1. gov lawyers should look to statutory authority for guidance when dealing w/ wrongdoing by a constituent;
b. In Re Lindsey:
i. Attorney-client privilege does apply to gov entities; however, privilege must yield to criminal investigations
ii. HELD: gov lawyers have obligation to report criminal conduct
c. Whistleblower Statutes:
i. Unlawful for the gov to take a personnel action against a gov employee who discloses info that the employee
reasonably believes evidences either: (1) “ a violation of any law, rule, regulation” OR (2) “gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public
health or safety.”
3. Revolving Door: Movement of Lawyers Into and Out of Gov Practice
a. Benefits of Revolving Door Syndrome:
i. Training for young lawyers
ii. No permanent bureaucracy
b. Problems:
i. Abuse of positions to help career in private sector
c. MR 1.11. Special Conflicts of Interest for Former and Current Government Officers and Employees
i. Regulation of revolving door
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 ii. Applies to movement from gov practice to private sector
iii. MR 1.11(a) 
1. gov lawyer may not use confidential info to the disadvantage of the former gov client
2. protects the gov and protects other people from having confidential info used against them when lawyer
leaves gov service
iv. look to MR 1.9(c) – duties to clients still applicable
v. VIP PROTECTIONS OF MR 1.11
1. bars rep by former gov lawyer of any clients as to matters in ehich the attorney was personally &
substantially involved while in gov employment
2. restricts activities of former gov lawyer only as to a “matter” in which the lawyer participated personally and
substantially
3. w/ an informed consent of the agency confirmed in writing, former gov lawyer may handle a matter in
which the lawyer was personally and substantially involved;
vi. MR 1.11(d) 
prohibits gov lawyer from participating in a matter in which the lawyer participated personally and substantially while in private
practice

C. PUBLIC INTEREST PRACTICE

MR 1.2 SEE ABOVE

MR 2.1 SEE ABOVE

1. Legal Service Corporation (LSC)

a. Originally created by immigrant groups to help w/ the immigrants’ legal problems on Ellis Island;
b. Now  institution to help all ppl

2. MR 1.2 Scope of Representation & Allocation of Authority B/w Client & Lawyer
3. Evans v. Jeff D.
a. SC Held: statutes that provide for attorney’s fees do not confer any rights on attorneys; clients can waive recovery of
legal fees w/out the consent of their attorneys;

D. MANDATORY PRO BONO & DELIVERY OF LEGAL SERVICES TO INDIGENTS

MR 6.1 Voluntary Pro Bono Publico Service
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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 publico legal services per year. In fulfilling this responsibility, the lawyer should:
(a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:
(1) persons of limited means or
(2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to
address the needs of persons of limited means; and
(b) provide any additional services through:
(1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or
protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational
organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would
significantly deplete the organization's economic resources or would be otherwise inappropriate;
(2) delivery of legal services at a substantially reduced fee to persons of limited means; or
(3) participation in activities for improving the law, the legal system or the legal profession.
In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited
means.

MR 6.2 Accepting Appointments

A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
(a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;
(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or
(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to
represent the client.

MR 6.3 Membership In Legal Services Organization

A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer
practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not
knowingly participate in a decision or action of the organization:
(a) if participating in the decision or action would be incompatible with the lawyer's obligations to a client under Rule 1.7; or
(b) where the decision or action could have a material adverse effect on the representation of a client of the organization whose
interests are adverse to a client of the lawyer.

1. Lassiter v. Dept. of Social Services

a. SC Held: presumption exists that appointed counsel was constitutionally required only in cases involving risk of
incarceration;
2. Legal Services Program
a. LSC used to be controversial b/c focused on reform of laws; now, its primary focus is legal aid delivery;
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3. Marrero Committee Report & Mandatory Pro Bono
a. Most detailed mandatory pro bono proposal to date
b. Many bar associations seriously considering mandatory pro bono hours requirement to attorneys
4. MR 6.1
a. Voluntary pro bono standard of 50 hrs/yr
b. Substantial majority be directed to persons of limited means
c. “every lawyer has a professional responsibility to provide legal services to those unable to pay”
d. COMMENTS: firms should encourage attorneys to comply

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