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1. Competence & Ethics a. Practicing Law Professionally i. The Rules Governing Competence 1. ABA Model Rule 1.1 a. Requires lawyers to be competent ii. By power of Article 4 of OH Constitution, Supreme Court has power to regulate law practice b. Types of Ethics i. Compliance-Based ii. Integrity-Based iii. Role-Based 2. Ethics a. Personal ethics vs. professional ethics or role b. Professional role (duty to client) vs. professional role (duty to court) c. Rule 3.3 (p. 243) 3. Regulation of Lawyers a. Affirmative Inherent Powers b. Negative Inherent Powers 4. Grievances & OH Disciplinary Procedure a. Can be filed by anyone; usually filed by disgruntled clients, judges, other lawyers, etc. b. See flow chart 5. Introduction to Secrecy a. An Outline on Secrecy i. Duty of Confidentiality (Ethical Obligation of Confidentiality) 1. ABA Model Rule 1.6 ADD TEXT OF RULE a. OHs 1.6 altered slightly 2. Generally cannot voluntarily tell other people anything about client (information relating to the representation), regardless of source, without clients express or implied informed consent, or some other exception 3. Does not protect client when statutes, court rules, or court orders require attorney to disclose information a. I.e. when called as witness at trial or deposition 4. Requires attorney to claim attorney-client privilege whenever it arguably applies 5. Limitations a. Attorney cannot refuse to testify or provide interrogatory answers unless testimony is expressly protected by attorney-client privilege) b. Attorney cannot refuse to produce documents or disclose opinions unless information is protected by attorney-client privilege or by work-product doctrine 6. As defense, also consider ABA Model Rule 3.3 ADD TEXT OF RULE a. Trumps 1.6 i. Even if there is a 1.6 duty, 3.3 will still prevail 7. ABA Model Rule 4.1 8. OH Rule 1.9(c)[1] a. Removes unless protected by 1.6 from ABA Rule 4.1 b. Comment [8] ii. The Attorney-Client Privilege (Evidence) 1. Generally cannot be compelled to reveal (oral or written) communication with client a. Court has no power to order counsel to disclose; privilege is almost absolute COMPELLED 2. Applies only when 5 Cs are present A-C PRIVILEGE ISSUE

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Client Communicates Confidentially with Counsel (i.e. lawyer acting as lawyer) i. Or agent of counsel (secretaries, paralegals, etc.) e. To obtain Counsel (i.e. to obtain legal advice) 3. Privilege protects only communications, not facts a. Client cannot hide facts by telling them to attorney 4. Client cannot turn existing, non-privileged documents into privileged communications simply by handing them to lawyer a. Document must have been created as confidential communication between client and counsel 5. Ordinarily, client identity and client whereabouts are not protected by attorney-client privilege a. But identity and whereabouts may be privileged in rare circumstances (i.e. if clients communication of his own name meets 5 conditions necessary to trigger privilege) 6. When lawyer represents corporation, his communications to or from all corporate officers, directors, or employees regardless of rank are protected by privilege in federal and most state courts 7. Situations in Which Attorney-Client Privilege No Longer Applies a. Waiver If client waives privilege as to given subject, then privilege no longer exists for information on that subject i. When privileged information is intentionally revealed ii. Privilege cannot be selectively waived 1. If any amount of information is disclosed on a subject, privilege is waived as to that subject iii. Can be accidental rather than deliberate iv. When client is a corporation, change in management team will result in change of persons who can waive privilege on behalf of entity b. Crime-Fraud Exception If client uses lawyers services to commit crime or fraud, then clients communications with lawyer are not privileged, even if lawyer did not know client was engaging in crime or fraud at time communications were made i. Depends on clients intent to commit crime or fraud, not on attorneys knowledge of that intent c. Joint Clients Exception If 2 clients hire same lawyer, and they later get into dispute with each other, then they do not have an attorneyclient privilege vis--vis each other i. But as long as 2 clients dont blame each other, they can continue to claim attorney-client privilege against their adversaries, and against anyone else in world who tries to breach privilege d. Advice of Counsel Defense Client waives attorney-client privilege if he defends lawsuit by claiming that he acted based on advice of counsel e. Lawyers Self-Defense Exception Lawyer has right to disclose confidential information in self-defense i. Corollary is that client waives attorney-client privilege by attacking lawyer iii. Work-Product Protection (Procedure)

a. b. c. d.

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1. Generally cannot be compelled to reveal written material created in anticipation of litigation or for trial a. Documents and tangible things 2. Courts give especially strong protection to lawyers mental impressions, opinions, and conclusions as a lawyer 3. Ordinary Work Product Information recorded by attorney (or attorneys client, or by attorneys agents) in anticipation of litigation or in preparation for trial a. Work by party or by attorneys investigators, paralegals, and consulting experts in anticipation of litigation or for trial is considered work-product and has same protection as if it were prepared by attorney personally 4. Opinion Work Product Consists of mental impressions, conclusions, opinions, or legal theories of attorney or other representative of party concerning litigation 5. Experts When experts generate reports, opinions, or other work product materials, level of protection provided by FRCP depends on whether expert is a trial expert or merely a consulting expert a. Trial Expert 6. Tangible Things Vs. Oral Communications 7. Witness Statements 8. Criminal Cases Work-product protection also extends to lawyers in criminal cases iv. Who is a Client? 1. Main Test Whether person reasonably believes she is your client 2. Death of client does not extinguish duty of confidentiality 3. Termination of attorney-client relationship does not extinguish duty of confidentiality a. However, once attorney-client relationship ends, attorney may reveal information that has become generally known v. Physical Evidence: Documents and Things 1. Rules depend first and foremost on whether case is civil or criminal a. Civil Cases Lawyer/party has no general obligation to turn over evidence to anyone unless evidence falls into narrow automatic disclosure provisions of FRCP 26(a)(1) or unless party/government agency has made formal request (civil investigative demands, subpoenas & discovery requests) i. Formal requests do not obligate attorney to turn over documents protected by attorney-client privilege or workproduct ii. Attorneys always obligated to assert attorney-client privilege or work product protection whenever either would arguably protect against disclosure b. Criminal Cases Substantive state or federal law may require lawyers to turn over physical evidence i. Duties to turn over physical evidence come from 4 different sources statutes, subpoenas, ethics (Rule 3.4(a)) & discovery requests 6. The Attorney-Client Privilege and Physical Evidence a. Categories of Physical Evidence i. Evidence given to attorney by client ii. Evidence given to attorney by 3rd party iii. Evidence found by attorney on his own

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iv. Evidence that attorney only sees but does not touch v. Evidence attorney only hears about but does not see or touch b. Handling Physical Evidence i. When defense counsel removes or alters evidence, attorney-client privilege does not bar revealing the original condition or location of the evidence ii. Defense lawyers in criminal cases are prohibited from hiding physical evidence in their offices iii. Top of p. 105 iv. Meredith (Tag Rule) Case If defense lawyer actually takes possession of physical evidence (even if it is directly from his client), he must turn it over to prosecution 1. Must also reveal original condition or location of evidence (if changed or removed) 2. Conversely, if original condition or location is not altered, communications remain protected 3. c. The Consequences of Destroying Evidence i. The Tort of Spoliation 1. Destroying evidence may subject client to civil liability 2. Spoliation Destruction or significant alteration of evidence, or failure to preserve property for anothers use as evidence in pending or reasonably foreseeable litigation 3. Intentional Spoliation of Evidence a. Pending or probable litigation involving P; b. Knowledge by D of existence or likelihood of litigation; c. Intentional acts of spoliation on part of D designed to disrupt Ps case; d. Disruption of Ps case; and e. Damages proximately caused by acts of D 4. Negligent Spoliation of Evidence a. Existence of potential civil action; b. Legal or contractual duty to preserve evidence which is relevant to potential civil action; c. Destruction of evidence; d. Significant impairment to ability to prove lawsuit; e. Causal relationship between evidence destruction and inability to prove lawsuit; and f. Damages ii. Litigation Sanctions for Destroying Evidence 1. Even where courts do not recognize independent tort for destroying relevant evidence, courts may impose sanctions on destroying party 2. I.e. dismissing the answer; precluding D from introducing any evidence about the condition of the destroyed evidence; ordering destroying party to pay monetary sanctions to opposing party; or entering default judgment against party which destroyed documents 3. Adverse inference jury instructions also possible a. Jury advised that it could assume that destroyed evidence would have been damaging to Ds who destroyed them 4. Duty to preserve potentially relevant evidence is affirmative obligation that party may not shirk a. When duty to preserve is triggered, it cannot be a defense to spoliation claim that party inadvertently failed to place litigation

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hold or off switch on its document retention policy to stop destruction of evidence 5. FRCP governs ESI and electronic discovery since 2006 d. Standards for Criminal Justice i. ABAs Standards 4-4.6 7. Exceptions to the Ethical Duty of Confidentiality a. Disclosures must be no broader than necessary to satisfy justification for each exception b. Client gives informed consent under ABA Rule 1.6(a) i. Lawyer must explain to client exactly what lawyer intends to disclose and how disclosure is likely to affect client ii. Informed Consent definition from Rule 1 c. Implied authority ABA Rule 1.6(a) i. When disclosures are required by rules of procedure, or ii. Disclosure will help client, not hurt client iii. Lawyer never has implied authority to disclose information harmful to client 1. Informed consent or express authority from another exception is needed to disclose information harmful to client 2. Lawyer never has implied authority to override express instructions not to disclose iv. Most common example is that lawyer generally is impliedly authorized to reveal facts that will help client in negotiations v. Lawyer also generally has implied authority to turn over documents responsive to legitimate request for production of documents in pending litigation 1. If disclosing certain documents would be harmful to client, lawyer should consult with client before producing them vi. Present in settlements and negotiations 1. But cannot lie in negtotiations d. To prevent reasonably certain death or substantial bodily harm ABA Rule 1.6(b)(1) i. Can be act by anyone, not just client ii. Can be any type of act e. To prevent client from committing crime or fraud that is reasonably certain to result in substantial injury to financial interests or property of another and in furtherance of which client has used or is using lawyers services ABA Rule 1.6(b)(2) i. Narrow exception f. To prevent, mitigate or rectify substantial injury to financial interests or property of another that is reasonably certain to result or has resulted from the clients commission of a crime or fraud in furtherance of which client has used lawyers services ABA Rule 1.6(b)(3) i. Applies even if client has already committed crime or fraud, and even if harm has already occurred g. To secure legal advice about lawyers compliance with these Rules ABA Rule 1.6(b)(4) i. When lawyers need to consult other lawyers to determine whether their own conduct complies with applicable standards h. Lawyers claim or self-defense Rule 1.6(b)(5) i. Permits lawyer to reveal information relating to representation of client to extent lawyer reasonably believes necessary 1. To establish claim or defense on behalf of lawyer in controversy between lawyer and client 2. To establish defense to criminal charge or civil claim against lawyer based upon conduct in which client was involved 3. To respond to allegations in any proceeding concerning lawyers representation of client

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Disclose only as much as necessary to achieve objective law ABA Rule 1.6(b)(6) Permits lawyer to reveal confidential information to comply with other law Does not necessarily override ethical duty of confidentiality Clarity of asserted laws intent affects whether lawyer has duty to consult with client about disclosure 1. When lawyer perceives that statute, court rule, or some other source of law outside rules of professional conduct requires disclosure of information covered by ABA Rule 1.6, lawyer must confer with client about legal requirement of disclosure, implications of disclosure, and how to make disclosure in compliance with law j. Court order ABA Rule 1.6(b)(6) i. Permits, but does not require, lawyer to reveal confidential information to comply with court order k. Information that become generally known after a representation ended ABA Rule 1.9(c) l. False evidence offered to a tribunal ABA Rule 3.3(a)(3) i. Lawyer must take reasonable remedial measures, including, if necessary, disclosure to tribunal ii. Lawyer may not offer evidence he knows to be false & must report evidence or testimony that he learns to be false after the fact m. Criminal or fraudulent conduct related to proceedings before a tribunal ABA Rule 3.3(b) i. If lawyer representing client in proceeding who knows that any person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct relating to proceeding, shall take reasonable remedial measures, including, if necessary, disclosure to tribunal n. When client is organization, a clear violation of law may be revealed to prevent substantial injury to organization ABA Rule 1.13 i. When lawyer knows that corporate officer or employee is engaged in illegal conduct that reasonably might be imputed to organization and is likely to result in substantial injury to organization, lawyer must take steps to put stop to wrongful conduct 8. Exceptions to the Attorney-Client Privilege a. Catalogue of Waivers and Exceptions to Attorney-Client Privilege i. Testamentary Exception When competing claimants are asserting claims under will of decedent, court may compel lawyer who drafted will to testify to information shedding light on testators intent ii. Crime-Fraud Exception Applies when client has used lawyers services to commit crime or fraud iii. Deceased Client Exception Applies when client has died and societys need for privileged information outweighs likely harm to deceased client 1. New; not recognized by many courts iv. Waiver by Disclosure Applies when client turns over privileged documents to another party in litigation, by mistakenly e-mailing or faxing privileged documents to another person or by revealing privileged communications to another person 1. Intentional disclosure almost always waives privilege 2. Unintentional disclosure may or may not waive, depending on various factors such as time pressures client was under and precautions client took to prevent inadvertent disclosure v. Waiver by Failure to Object Applies when lawyer fails to object to question that calls for privileged information i.

ii. Other i. ii. iii.

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1. Once testimony has been given in answer to question, information no longer protected vi. Waiver by Attacking Lawyers Work Client who sues lawyer (or former lawyer) for malpractice waives right to claim attorney-client privilege for communications relevant to malpractice claim vii. Waiver by Putting Advice of Counsel in Issue Applies if client defends against criminal charges by claiming that she relied on advice of her counsel that conduct in question was legal 9. Dead Man Talking: The Attorney-Client Privilege After a Client Dies a. Attorneys as Voluntary Witnesses i. No public interest exception, even when disclosure will not harm client (i.e. client is deceased) b. Is the Attorney-Client Privilege Subject to a Balancing Test? i. Under FRE, attorney-client privilege survives death 1. Policy-based, not text-based, rule 2. Based on premise that revealing privileged information after clients death might harm reputation of client or clients surviving loved ones ii. Purpose of the attorney-client privilege is to promote public observance of the law by encouraging complete and truthful communication between attorneys and their clients iii. Confidentiality, even after the client's death, is essential for such honesty in both criminal and civil contexts iv. Absent a posthumous application of the attorney-client privilege, people would be likely to withhold information for fear of their friends' or family's reputation, civil liability, and general well-being c. A Balancing Test for Disclosing Privileged Communications? i. Balancing test exception does not apply in determining whether information asserted to be privileged may be disclosed 10.Ohio Materials Regarding 7-9 a. O.R.C. 2317.02 Privileged Communications and Acts i. (a) b. O.R.C. 2317.021 Client Defined; Application of Attorney-Client Privilege to Dissolved Corporation or Association c. State v. Doe (2004) i. In event of death of client, OH statute authorizes surviving spouse of that client to waive attorney-client privilege protecting communications between deceased spouse and attorney who had represented that deceased spouse ii. Attorney for deceased client may not assert attorney-client privilege to justify refusal to answer questions of grand jury, where surviving spouse of client has waived privilege in conformity with statutory requirements and where attorney has been ordered to testify by court d. Jackson v. Greger (2006) 110 Ohio St. 3d 488, 2006-Ohio-4968 i. -- Paragraph one of the syllabus: "R.C. 2317.02(A) provides the exclusive means by which privileged communications directly between and attorney and a client can be waived. (State v. McDermott (1995), 72 Ohio St. 3d, 651 N.E.2d 985, followed.)" Court declines to add a broader common law waiver rule based on hostile action of the former client, such as set forth in Hearn v. Rhay (E.D.Wash, 1975), 68 F.R.D. 574.Issue will likely be addressed again in near future (creating a common law waiver not in statute) e. O.R.C. 2151.421 Persons Required to Report Injury or Neglect; Procedures on Receipt of Report i. General Rule ii. Exception to General Rule (a)(2)

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iii. Exception to Exception f. In re Original Grand Jury Investigation (2000) g. Squires--- 127 Ohio St. 3d 161 (2010) 11.Corporations, Corruption, & Confidentiality a. The Attorney-Client Privilege for Organizations i. Privilege does extend to corporations, but may not protect corporations as fully as it protects individuals b. The Attorney-Client Privilege for Corporations in the Courts i. The Attorney-Client Privilege in Federal Courts 1. Upjohn Attorney-client privilege in corporate context extends to employees not within control group of corporation a. Privilege covers lower-ranking employees as well as executives ii. The Attorney-Client Privilege in State Courts 1. Arizona Functional Approach Where employee is not seeking legal advice in confidence, her communications to corporate counsel are within corporations privilege if they concern employees own conduct within scope of his employment and are made to assist lawyer in assessing or responding to legal consequences of that conduct for the corporation c. Disclosure of a Corporations Confidential Information i. General confidentiality ABA Model Rule 1.6(a) and exceptions stated in 1.6(b) apply to corporations and other organizations just as they do to individuals 1. However, ABA Model Rule 1.13 states additional exception to rule of confidentiality ii. Who is Your Client? 1. A lawyer employed or retained by an organization represents organization acting through its duly authorized constituents 2. When representing corporation, lawyer does not ordinarily represent individuals who run corporation unless he has expressly agreed to do so 3. Lawyer represents only corporate entity itself, not officers, directors, or employees of corporation iii. Objecting Within the Organizational Client (Reporting Up) 1. Ordinarily, lawyers job is to give legal advice, not make business decisions a. However, lawyers who are concerned about misconduct within organization must keep pursuing issue by climbing ladder of corporations hierarchy i. Purpose is to explain lawyers view of apparent misconduct to higher-ups in chain of command 2. Pre-2003 Amendments a. If remonstrating with client (i.e. trying vigorously to talk client into complying with law) did not produce change thought necessary, options were limited i. If not convinced action was illegal, lawyer can drop issue altogether ii. If lawyer remains convinced that client was engaged in illegal conduct, lawyer could withdraw from representation 1. Often means quitting job for in-house counsel 2. Quiet withdrawal iii. Make a noisy withdrawal (when lawyer withdraws, she simultaneously disavows or disaffirms previous legal work for client) 1. Whistleblowing by dramatic conduct

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iv. Lawyer can engage in civil disobedience and go public (i.e. find way to leak important document) 3. 2003 Amendments a. Adds option to those from above b. Lawyer may (but does not have to) tell someone outside organization i. If lawyer has gone all the way up the ladder to top authority within organization and is still not satisfied that issue has been correctly resolved, he is allowed to disclose otherwise confidential information relating to representation, whether or not ABA Model Rule 1.6 permits disclosure c. Lawyers ability to disclose under 1.13 expressly trumps Rule 1.6s duty of confidentiality i. Thus, even if Rule 1.6 would prohibit disclosure, 1.13(c) may permit disclosure ii. Rule 1.13(c) has created new exception to Rule 1.6 duty of confidentiality iv. Types of Legal Practice 1. Situation in which disclosure is allowed is more likely to arise in transactional practice than in litigation setting v. When is a Lawyer Permitted to Disclose Outside the Entity (Reporting Out)? 1. If reporting up does not cure wrongdoing, lawyer may reveal information related to representation, whether or not Rule 1.6 permits disclosure, to those outside organization 2. Circumstances allowing reporting up are very demanding a. Allowed only if organizations highest authority either insists upon or fails to address in timely and appropriate manner an action, or refusal to act that is clearly a violation of law i. Lawyer must determine whether questionable action or refusing to act of person associated with organization is clear violation of law ii. Lawyer then determines whether persons heading organization are correcting illegal action or refusal to act iii. If correction has not occurred in reasonable time, and wrongful conduct is reasonably certain to result in substantial injury to organization (not just likely), then lawyer may at last disclose iv. Extent of permitted disclosure is limited to disclosures lawyer reasonably believes necessary to prevent substantial injury to organization 3. OH p. 75 Reporting out governed by 1.6(b) and (c) a. 3.3 and 4.1 trump 1.6 b. Mandatory duty to disclose outside organization? vi. Noisy Withdrawal 1. If jurisdiction has not adopted 2003 version of 1.13(c) which grants permission to report out, then most lawyer can do is engage in noisy withdrawal 2. Lawyer explicitly disaffirms work product prepared by lawyer in course of representation, which may alert others that there was some problem with information supporting that work product 12.Principles of the Adversary System a. Defending the Guilty b. The Lawyers Professional Role

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i. Serve the Client 1. Lawyer should zealously represent interests of his client 2. Lawyer should try to maximize results for client to get as much of what client wants as it is possible to get using legal means 3. If lawyer can think of legitimate way to achieve clients objectives, he must do it ii. Morgan Lawyers are business consultants c. The Lawyers Conscience d. Should We Reform the Adversary System? e. Is the Adversary System a Battle Between Equals? 13.The Clients Role in the Adversary System a. As always, lawyers must use every legitimate weapon at their disposal on behalf of every client, even the guilty b. Allocating Power Between Attorney and Client i. ABA Model Rule 1.2(a) divides representation into 2 categories objectives and means 1. Client controls objectives 2. Lawyer (after consulting with client) controls means ii. ABA Model Rule 1.2(a) 2 Specific Categories of Decisions that are Reserved to Client 1. In civil matter, lawyer must abide by clients decision whether to accept (or reject) an offer of settlement; and 2. In criminal case, lawyer must abide by clients decision as to: a. Whether to enter plea, b. Whether to waive jury trial, and c. Whether to testify c. The Lawyers Informal Control 14.Introduction to Conflicts of Interest a. Trust is bedrock of attorney-client relationship i. Trust based on secrecy and loyalty ii. Loyalty Rules 1.2, 1.7-1.12, 1.16, 1.18, 2.4, 3.4, 3.7, 4.1-4.4, 5.1-5.3 b. ABA Model Rule 1.7 governs conflicts with current clients c. ABA Model Rule 1.9(a) & (b) govern conflicts with former clients i. Duty of loyalty diminished ii. But duty of secrecy/confidentiality is still there d. ABA Model Rule 1.10(a) says that conflicts under either 1.7 or 1.9 are imputed to all other lawyers in the firm, except personal interest conflicts that dont pose a significant risk to conflicting client e. Set up a screen or Chinese Wall to prevent new associates from creating conflicts by talking to lawyers about old clients from their past firm f. Outline on Conflicts of Interest i. Concurrent vs. Successive Conflicts 1. Concurrent or simultaneous conflicts are conflicts between current client on some other person or interest a. Arise whenever lawyer is unable (or might later become unable) to give 100% loyalty to current client because of competing loyalty to another current client, or because of loyalty to or personal interest in someone who is not a client, or to lawyers own personal, financial, political, or social interests i. I.e. conflict with another current client, conflict with a nonclient, conflict with lawyers own interests 2. Successive or former client conflicts are conflicts between current client and former client

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ii.

iii.

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3. General Rules on Concurrent & Successive Conflicts a. Lawyer may never ethically oppose a current client without that clients consent b. Lawyer may ethically oppose former client without former clients consent unless matter lawyer is now working on is substantially related to matter he previously worked on when he represented former client 4. When are 2 Matters Substantially Related? a. When lawyer would normally have been expected to learn confidential information about his client in course of that former representation that could be used against former client on behalf of new (current) client i. If lawyer would have learned confidential information in earlier representation that could be turned against the former client in a pending representation, then 2 matters are considered substantially related, and lawyer cannot oppose his former client without former clients consent Direct Adversity Conflicts vs. Materially Limiting Conflicts 1. See below 2. 1.7(b) If lawyer has either type of conflict, then he may not accept or continue representation unless he complies with all 4 criteria a. Despite conflict, lawyer must reasonably believe that he will be able to provide competent and diligent representation to each client involved in conflict; b. Representation must not be prohibited by law; c. Lawyer may not handle both sides of same litigation; and d. Each client gives written, informed consent Actual vs. Potential Conflicts 1. Actual conflicts already exist, even 2. if nothing else happens 3. Potential conflicts are those that might arise in future, depending on some contingent event 3 Levels of Conflicts 1. Immaterial Conflicts So minor, trivial, or unlikely arise that rules do not regulate then a. Lawyer need not disclose them to client, or obtain clients consent to them 2. Consentable/Waivable Conflicts Serious enough to be regulated, but mild enough so that they can be cured or avoided if client consents in writing after full disclosure of situation 3. Nonconsentable/Nonwaivable Conflicts So serious or inherently dangerous that they cannot be cured or avoided even if client consents in writing after full and complete disclosure a. I.e. representing both husband and wife in divorce proceeding Personal vs. Vicarious Conflicts 1. Personal Conflicts Disqualify or restrict lawyer because of something lawyer has done personally (such as representing a client with adverse interests), or because lawyers own interests are at odds with clients interests 2. Vicarious/Imputed Conflicts Restrictions on lawyer who is personally disqualified are imputed or attributed to another lawyer (usually in same firm) who is not personally disqualified

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a. Screens In some states, law firm may avoid disqualification by building screen or wall between disqualified lawyer and rest of firm b. Personal conflicts are not imputed from Lawyer A to other lawyers in As firm if As disqualification is based on personal interest and does not present risk of materially limiting representation of client by remaining lawyers in firm i. I.e. As pre-existing sexual relationship with client vi. 8 Events That Can Trigger Conflicts 1. New clients 2. New matters 3. New parties 4. New issues 5. New attorneys 6. New relationships 7. New witnesses 8. Need for lawyers testimony Testifying lawyer cannot be trial counsel vii. Negative Consequences of Conflicts 1. Harm to disqualified lawyer or firm 2. Harm to disqualified lawyers client 3. Harm to justice system viii. When are Conflicts of Interest Consentable? 1. 1.7(b) identifies 3 categories of conflict that are always nonconsentable a. 1.7(b)(1) Test for Determining Whether Conflict is Consentable i. Lawyer reasonably believes that lawyer will be able to provide competent and diligent representation to each affected client 1. If test is met, conflict is consentable 2. If test is not met, conflict is nonconsentable b. 1.7(b)(2) Representation prohibited by law is nonconsentable c. 1.7(b)(3) Conflict nonconsentable when consent would allow lawyer to handle both sides of litigation 2. Virtually all conflicts with former clients are consentable a. 1.9(a) provides only that lawyer may not materially oppose former client in substantially related matter unless former client gives informed, written consent 3. If conflict is consentable, then lawyer may accept representation provided client gives informed consent and consent is confirmed in writing ix. Obtaining Consent to a Conflict 1. To obtain valid informed consent, lawyer must tell client all information client would find important in deciding whether or not to retain him (or continue to retain him) rather than getting another lawyer x. How Courts Decide Motions to Disqualify xi. Obstacles to Appealing Rulings on Motions to Disqualify 15.Conflicts Who is a Client? a. Clients vs. Non-Clients i. Typically, client is either 1. Individual who walks into lawyers office and hires you to perform legal services, or 2. Corporation or other entity that acts through its agents to hire lawyer to perform legal services ii. But there are phantom clients, with sources such as 1. Trade association members, 2. Co-parties,

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3. Potential/prospective clients who had consultation interviews with a firm, but who did not retain firm (or are still deciding whether to do so), 4. General partners (and, in some jurisdictions, limited partners) in partnerships, 5. Officers, employees, or shareholders in small corporations, and 6. Affiliates, divisions, parents, subsidiaries, and other companies in the same corporate family as companies for whom lawyer has done legal work iii. Whether or not person is a client hinges upon clients belief 1. Deciding factor is what prospective client thought when he made disclosure, not what lawyer thought iv. Lawyers cannot oppose a current client without clients consent b. Ambiguity in Entity Representation i. Lawyers should make clear to entity clients who it represents just the corporation, and not the individual corporate employee, or both the corporation and its individual employee 16.Conflicts of Interest with Current Clients a. ABA Model Rule 1.7 b. If concurrent conflict bars any lawyer in firm from accepting case, then rule of vicarious/imputed disqualification will disqualify every lawyer in firm from representation unless conflict is personal interest conflict that does not pose significant risk or materially limiting representation of client b non-conflicted lawyers of firm c. Basics of Concurrent Conflicts i. Arise in 2 situations 1. Direct Adversity Conflicts Whenever lawyer directly opposes a current client 2. Materially Limiting Conflicts Whenever lawyers loyalty to current client is or may be materially compromised by competing loyalty to any other person (current client, former client, some 3 rd party), or by lawyers own personal interests a. Whenever lawyer may be tempted to give up any viable option that may advance clients interest in order to serve or advance competing interest b. If other interests are competing for lawyers loyalty, then lawyer cannot begin or continue representing client unless client gives informed consent c. Kinds of Competing Interests i. Another current client ii. Former client iii. Some other 3rd person, not a current or former client iv. Lawyers own personal, financial, political, or social interests d. Who is a Client? i. Basic Rule Person is current client if he reasonably believes he is a current client ii. Current Clients Everyone who has reasonable belief that lawyer is their lawyer 1. Prospective clients are current clients until lawyer rejects matter 2. Person is current client until a. Lawyer completes services he promised to perform; or b. Lawyer withdraws; or c. Client fires lawyer iii. Former Clients Anyone and everyone who was ever client in past, including both individuals and entities, whether they were served at lawyers current or previous job

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iv. Never-Clients Everyone who is not now and never was client or prospective client 1. Representing organization does not necessarily mean that lawyer represents organizations employees 2. Representing child does not mean lawyer automatically represents parents 3. 3rd parties paying clients fees are not clients v. Phantom/Surprise Clients Usually have same status under conflict rules as ordinary clients 1. Trade association members 2. Co-parties 3. Affiliates, subsidiaries, parents, divisions e. Conflicts Between 2 Current Clients i. Representing Opposing Sides in Same Litigation 1. Lawyer or law firm can never handle both sides of same suit ii. Representing Opposing Sides in a Transaction 1. Lawyer usually may not represent both sides 2. No per se rule from ABA, but some state decisions have adopted per se rule against iii. Opposing Current Client in Unrelated Litigation 1. Always requires consent from clients on both sides iv. Opposing Current Client in Unrelated Transaction 1. Conflict, but consentable v. Multiple Representation of Allied Parties 1. Always conflict to represent more than 1 party in same matter, even if parties are allies 2. Risky, but consentable 3. Explain to parties implications of common representation and advantages and risks involved 4. Representing 2 or more people who have common goal in transaction ethically permitted as long as clients wont suffer too much if proposed transaction falls apart 5. Aggregate Settlements a. Lawyer representing 2 or more Ps in same matter receives aggregate settlement offer b. Settlement may only be accepted if i. Clients give informed consent in writing ii. Lawyer discloses existence and nature of all claims involved and participation of each person in settlement 6. In criminal cases, lawyer should decline to represent more than one coD, but does not have to vi. Indirect Conflicts When lawyer represents different clients in different matters and one matter may adversely affect other matter 1. Although clients are not directly attacking or opposing one another, one client either wants something that would (or could) harm other client, or opposes something that would (or could) help other client vii. Issue/Positional Conflicts 1. May or may not be conflict to represent different parties in completely different matters if their legal positions are incompatible 2. Conflict does exist if there is significant risk that lawyers action on behalf of 1 client will create precedent likely to seriously weaken position taken on behalf of other client

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3. If there is significant risk of material limitation, then absent informed consent of affected clients, lawyer must refuse 1 of representations or withdraw from 1 or both matters f. Conflicts Between a Client and 3rd Person i. Directly Opposing 3rd Party Conflict almost always arises when lawyer is asked to oppose close friend, relative, spouse, powerful politician, or other person or entity important to lawyers personal or professional life ii. Adversely Affecting 3rd Party Lawyer may be reluctant to accept matter knowing that friend, relative, or other 3 rd person important to lawyer may be adversely affected if lawyer handles matter successfully g. Conflicts with Lawyers Own Interests i. Lawyers generally prohibited from accepting representation that actually or potentially conflicts with lawyers own interests ii. Business Transactions with Clients Prohibited, unless 1. Terms are fair and reasonable; fully disclosed 2. Client advised and given opportunity to get outside legal counsel 3. Client gives written, informed consent to terms and lawyers role in transaction 17.Conflicts of Interest with Former Clients (Successive Conflicts) a. Always keep confidentiality and loyalty to client in mind when dealing with conflicts b. Informed consent is key c. Former clients perception dictates whether or not he is a current or former client i. Always send letter of termination d. Concurrent and Successive Conflicts Compared i. ABA Model Rule 1.9 covers conflicts with former clients; much more lenient than 1.7 in 2 ways 1. Substantial Relationship Test a. Under 1.7(a), lawyer must always obtain consent to oppose (be directly adverse) to current client; lawyer may never oppose current client without clients consent b. Under 1.9(a), lawyer is not barred from opposing former client unless matter is substantially related to earlier work (or firms earlier work) for former client i. Lawyer does not need former clients consent unless matter lawyer is handling for current client is substantially related to matter lawyer handled for former client ii. No veto from former client unless matter is substantially related c. Lawyer can seek former clients consent even if reasonable lawyer would advise former client not to consent e. Grounds for Personal Disqualification Under Rule 1.9 i. 1.9(a) Lawyer disqualified from opposing any former client that he personally represented in same or substantially related matter while working at any previous law firm ii. 1.9(b) Lawyer disqualified if his previous firm represented client that current firm is now opposing in substantially related matter and lawyer obtained confidential information about opposing client (lawyers previous firms client) while lawyer was working at previous firm iii. Informed, Written Consent Former client is always free to consent to conflict whether it arises under 1.9 (a) or (b) 1. Burden on lawyer or law firm to spot former client conflict and obtain former clients informed consent; burden not on former client to object f. The Substantially Related Test

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i. No universal agreement on test ii. Most common test comes from Rule 1.9, Comment 3 1. Matters substantially related when a. They involve same transaction or legal dispute; or b. There otherwise is substantial risk that confidential factual information, as would normally have been obtained in prior representation, would materially advance clients position in subsequent matter iii. If lawyer personally represented client in substantially related matter, courts presume that lawyer obtained confidential information relevant and material to current matter (irrebuttable) iv. If lawyers former firm represented former client in substantially related matter, courts generally presume that lawyer acquired relevant confidential information (rebuttable) 1. Lawyer can rebut presumption by showing that he did not have access to former clients confidences; question of fact which depends on all circumstances v. No Revelations by Former Client Court compares former matter to present matter and reaches conclusion based on logic as to whether 2 matters are substantially related g. Imputed Disqualification and Conflict Checking Under Rule 1.9 i. 1.10(a) While lawyers are associated in firm, none of them shall knowingly represent client when any one of them practicing alone would be prohibited from doing so by 1.9 ii. Every time lawyer takes new job, 1.10(a) will impute to new firm all of lawyers conflicts under 1.9 iii. New firm will run former conflict check before hiring lawyer to see if lawyer 1.9(a currently or formerly represent(ed) adversaries of new firm ) 1. In some situations, lawyers confidentiality obligations under 1.6 or 1.9(c) will prohibit lawyer from disclosing nature of matters worked on if they are still ongoing 2. Conversely, once litigation has been filed or transaction or business deal has been carried out (or at least disclosed), prohibitions from 1.6 or 1.9(c) no longer operate iv. If any of lawyers previous matters are substantially related to matters new firm is working on, new firm will contact old firm (with lawyers permission) to tell them they have made lawyer conditional offer and needs consent from specific clients so that new firm can continue to ethically represent new firms clients who are adverse to old firms clients in same or substantially related matters v. If old firm clients consent, then new firm needs to confirm consent in writing vi. If clients of old firm refuse to consent, then new firm has 3 choices 1. Hire lawyer and withdraws from any conflicting matters 2. Make nonfrivolous argument that no conflict exists because matters are not related & hire lawyer, fighting any motion to disqualify that former clients file 3. Not hire lawyer vii. New firm shows lawyer list of firms current adversaries 1.9(b 1. Lawyer must try to remember whether he has obtained any confidences ) about any clients informally while working at old firm 2. Lawyer must inform new firm whether he had access to all files at old firm, or only some viii. Both lawyer and new firm must avoid discussing either content of confidential information or details of matters that new firm is handling against former client

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h. Perils of Preliminary Interviews i. Phantom former clients can result from preliminary interviews; called prospective clients ii. Issue arises when law firm turns down clients case, client turns down firms representation, or prospective client never calls back to follow up iii. ABA Model Rule 1.18 deals with issue 18.Imputed Conflicts and Firewalls a. The ABAs Current Approach to Imputed Disqualification i. Imputed disqualification refers to disqualification of all lawyers in form based on personal disqualification of another lawyer (or lawyers) at firm b. ABA Model Rule 1.8(k) If any lawyer in firm has conflict under 1.8(a)-(i), then every lawyer in firm suffers same conflict i. 1.8(a)-(j) Prohibited Conflicts with Current Clients * = Can be 1. Business transactions with clients* 2. Using confidential information to clients disadvantage done, if 3. Accepting gifts or testamentary bequests from clients* certain a. Cannot be cured by consent requirement 4. Selling literary or media rights to clients story s in rule are a. Cannot be cured by consent metexpenses) 5. Giving financial assistance to client (except advancing litigation a. Cannot be cured by consent 6. Accepting legal fees from 3rd party* 7. Negotiating aggregate settlements for multiple clients 8. Limiting future legal malpractice liability or settling actual or potential malpractice claims 9. Acquiring proprietary interest in clients COA* a. Cannot be cured by consent 10. Engaging in sexual relations with clients (unless relationship existed prior to representation) a. Only prohibition that does not apply to all lawyers in firm c. ABA Model Rule 1.10 Imputation of Conflicts of Interest: General Rule i. If 1.7 (current clients) or 1.9 (former clients) prohibits any lawyer in form from representing certain client, then 1.10(a) generally prohibits every lawyer in firm from representing that client ii. Exception for Personal Interest Conflicts No imputation if 1. Disqualifying conflict is based on disqualified lawyers personal interests (as opposed to interests of another current client, former client, or 3 rd party); and 2. Disqualified lawyers personal interest conflict does not pose significant risk that remaining lawyers in firm will be materially limited if they undertake or continue representation in question iii. 1.10(b) When lawyer has terminated association with firm, firm is not prohibited from thereafter representing 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. Matter is same or substantially related to that in which formerly associated lawyer represented client; and 2. Any lawyer remaining in firm has information protected by Rules 1.6 and 1.9(c) that is material to matter 3. Essentially, imputed conflict goes away when personally disqualified lawyer goes away, provided no other lawyer in form has confidential information that could be used against former client

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iv. 1.10(c) Disqualification prescribed by rule may be waived by affected client under conditions stated in 1.7 (4 requirements lawyer reasonably believes informed, written consent; if all 4 are not met, conflict is not consentable) v. 1.10(d) Rule does not apply to conflicts that arise when lawyers move from private sector to government or vice-versa d. ABA Model Rule 1.11 Special Conflicts for Former and Current Government Officers and Employees i. Sets out circumstances under which former government officer or employee is personally disqualified from working on matter at private firm 1. Lawyer who has formerly served as public officer or employee of government a. Is subject to 1.9(c); and b. Shall not otherwise represent client in connection with matter in which lawyer participated personally and substantially as public officer or employee, unless government gives informed, written consent to representation 2. Matter a. Any judicial or other proceeding, application, request for ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving specific party or parties b. Not rulemaking/drafting laws or compiling statistics ii. (b) Conflict is imputed unless 1. Screen; and 2. Written notice given to government so that it can make sure rule is complied with iii. (c) Conflict arising from former government lawyers possession of confidential government information 1. Lawyer having information that lawyer knows is confidential government information about person acquired when lawyer was public officer or employee, may not represent private client whose interests are adverse to that person in matter in which information could be used to material disadvantage of that person a. Confidential Government Information i. Obtained under governmental authority; and ii. At time rule is applied, either 1. Government is prohibited by law from disclosing to public, or 2. Government has legal privilege not to disclose information; and iii. Information is not otherwise available to public 2. Screening allowed e. Screens i. Screened lawyer cannot have contact with other firm personnel and any contact with firm files or other materials relating to matter ii. Notice and instructions to all other firm personnel forbidding any communication with screened lawyer relating to matter iii. Denial of access by screened lawyer to firm files or other materials relating to matter iv. Periodic reminder of screen to all firm personnel v. Screened lawyer gets no fee from matter f. ABA Model Rule 1.12 Former Judge, Arbitrator, Mediator, or Other 3 rd-Party Neutral

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i. Lawyer shall not represent anyone in connection with matter in which lawyer participated personally and substantially as judge or other adjudicative officer, or law clerk to such person or as arbitrator, mediator or other 3 rd-party neutral, unless all parties to proceeding give informed, written consent ii. Conflict not imputed if screen is implemented 1. Thus, to represent client, firm should implement screen and give notice to parties and any appropriate tribunal to make sure rule is complied with iii. (d) Arbitrator selected as partisan or party in multimember arbitration panel is not prohibited from subsequently representing that party 1. Partisan arbitrator not supposed to be neutral in first place g. ABA Model Rule 1.18 Duties to Prospective Client i. Even when no lawyer-client relationship ensues, lawyer who has had discussions with prospective client shall not use or reveal information learned in consultation, except as 1.9 would permit with respect to information of former client ii. Lawyer subject to above shall not represent client with interests materially adverse to those of prospective client in same or substantially related matter if lawyer receives information from prospective client that could be significantly harmful to that person in matter, unless there is a screen iii. Imputation exists, unless screen is implemented iv. Former prospective client may waive a 1.18 conflict, but if former prospective client does not waive conflict, 1.18(d) permits imputed conflicts to be cured by screening h. Kala Case i. Timely and effective screen ii. Presumptions regarding confidential information 19.ABA Model Rule 1.8 Personal Conflicts with Current Clients a. Business transactions, etc. 20. Overview a. 1.0 defines terms of art in Rules (OH) b. Zealous Representation i. 1.1 Duty of confidence; thoroughness of preparation; continuing CLE obligation ii. 1.3 Diligence in representation c. Intake Process/Start of Representation i. 1.18 Prospective Clients (Duties to) 1. Conflict Issues Prior to Representation a. 1.7, 1.8, 1.9, 1.10, 1.11, 1.12 ii. 5.3 All nonlawyers must understand what is ethically necessary in dealing with client iii. 1.16 Declining or Terminating Representation d. Confidentiality/Privileges i. 1.6 e. Terms of Representation/Scope, etc. i. 1.2 Scope of Representation and Allocation of Authority Between Client & Lawyer 1. (a) is very important professionalism, avoiding offensive tactics, etc. ii. 1.4 Communication 1. In Ohio, if malpractice insurance is less than $100K, must inform client and get written, informed consent of representation (not in ABA Model Rules) iii. 1.5 Fees and Expenses iv. 1.15 Safekeeping Funds and Property 1. Always keep lawyers $ separate from clients $

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f. g. h. i. j. k. l.

m. n. o. p. q. r. s. t. u. v. w. x.

2. Make regular accountings to clients regarding what $ lawyer is holding 3. Retainer a. Refund client for whatever portion was not earned b. Goes into client trust account (IOLTA) i. When work is performed, take $ out of IOLTA and put into lawyers account 4. Earned on Receipt Fee 5. Contingent Fee v. Engagement Letter Terms of relationship (fees, etc.) 1.16 Declining or Terminating Representation (Withdrawal) i. Refund unearned retainer ii. Quantum meruit claim for work done by lawyer 1.13 Problems in Representing Organization as Client Ohio 1.14 (Client with Diminished Capacity) 2.1 Advisor Can render legal, as well as moral, financial, etc. advice 2.3 Evaluation for Use by 3rd Persons i. Quiet/Noisy Withdrawals; Reporting Up, Reporting out from 1.6, 1.13, 1.16, 4.1 2.4 Arbitrators and 3rd Party Neutrals 3.1 Role as Advocate i. Bring meritorious claims and contentions ii. Can bring about changes in law iii. Can request reasonable extensions 3.3 Candor Toward the Tribunal 3.5 Dont bribe judges; dont lend $ to judge 3.6 When lawyer can talk about case 3.7 Lawyer as Witness 3.8 Special obligations of prosecutors 4.1 4.2 Cant talk directly to someone represented by counsel 4.4 In Ohio, okay to read it as long as you notify other side you got it by mistake & return it 5.1 Managerial authority in governmental agency, etc., you are in charge of having ethical systems in place to ensure that ethics will be observed 5.4 Cant share and split fees with non-lawyers; no shareholders who are nonlawyers 5.5 Temporary Permission to Practice in Unlicensed State i. Permanent Permission (representing 1 client in that state) 5.6 No covenants not to compete