1
Ethics Ross
I.
II. Lawyer Liability
A. Rule 8.4 - Professional Misconduct
(MASTER RULE)
B. Rule 8.3 - Reporting
Professional Misconduct
C. Rule 5.1 - Partner / Manager /
Supervisor Liability
D. Rule 5.2 - Subordinate
Lawyer Responsibility
E. Rule 5.3 - Responsibilities Over
Non-Lawyer Subordinate
F. Rule 5.5 - Unauthorized Practice of Law,
Multi-jurisdictional Practice
III. Duty of Confidentiality
A. Rule 1.6 - Confidentiality of Information
IV. Attorney-Client Privilege
A. Work Product Doctrine
V. Attorney-Client Relationship
A. Rule 1.1 - Competence
B. Rule 6.1 - Voluntary Pro Bono
Public Service
C. Rule 1.8 - Duties to Prospective Clients
D. Rule 1.2 - Scope of Representation /
Allocation of Authority
E. Rule 1.3 - Diligence
F. Rule 1.4 - Communications
G. Rule 1.14 - Diminished Capacity Clients
H. Rule 1.16 - Declining or
Terminating Representation
VI. Conflicts of Interest
A. Rule 1.7 - Current Clients
B. Rule 1.0(e) - Informed Consent Definition
C. Rule 1.10(a) - Imputed Conflicts of Interest
D. Rule 1.8 - Duties to Prospective Clients
E. Rule 1.8(a) - Business Transactions
Between Lawyer and Client
F. Rule 1.8(f) - Third Party Compensation
G. Rule 1.8(g) - Aggregate Settlements
H. Rule 1.13 - Representing Organizations
I. Rule 1.9 - Duties to Former Clients
J. Rule 1.11 - Conflicts Issues for
Government Lawyers
K. Rule 1.12 - Conflict Issues for
Judges, Arbitrators, Mediator, or
Third Party Neutral
VII. Fees
A. Rule 1.5 - Fees
B. Rule 1.5(c) - Contingency Fees Agreements
C. Rule 1.8(i) - Proprietary Interest
D. Rule 1.8(e) - Financial Assistance
E. Rule 1.8(d) - Media Rights
F. Rule 1.8(h) - Limiting Malpractice Liability
G. Rule 1.16(d) - Refunding Advance Payment
that has not been Earned
H. Rule 1.5(e) - Dividing with Lawyers in
Different Firms
I. Rule 1.8(f) - Third Party Compensation
J. Rule 1.15 - Client Funds
VIII. Being a Good Person in the Adversary System
A. Rule 3.1 - Frivolous Claims
B. Rule 3.3 - Candor to the Tribunal
C. Rule 3.4 - Fairness to Opposing Party
and Counsel
IX. Evidence
A. Rule 3.4(a) - Evidence of Crimes
B. Rule 3.4 - Duties to Responding to
Discovery Requests
X. Candor to the Tribunal
A. Rule 3.3(a)(2) - Fail to Disclose Legal
Authority
B. Rule 3.3(d) - Disclosure to the Tribunal
C. Rule 3.5 - Impartiality and Decorum to
the Tribunal
D. Rule 3.6 - Trial Publicity
E. Rule 4.4(a) - Impeachment of a Truthful
Witness
F. Rule 3.7 - Lawyer as Witness
G. Rule 3.4(e) - Fairness to Opposing
Party and Counsel
H. Rule 3.9 - Advocate in Non-
Adjudicative Proceedings
XI. Communications with Lawyers and Third Persons
A. Rule 4.1 - Truthfulness in Statements
to Others
B. Rule 3.4(e) - Fairness to Opposing
Party and Counsel
C. Rule 4.4(b) - Inadvertent Disclosure
D. Rule 4.2 - Communications
with Represented Person
XII. Duties of Prosecutors
A. Rule 3.8 - Duties of Prosecutors
B. Rule 8.4(d) - Misconduct
XIII. Advertising and Solicitation
A. Rule 7.2 - Advertising
B. Rule 7.1 - False Statements
C. Rule 7.3 - Solicitation
1
 2
I. LAWYER LIABILITY
A. “All rules live in harmony with other rules.” All rules cannot conflict with each other. They must live in harmony.
B. Rule 8.4 - “Master Rule” and the master definition for misconduct. It’s the unifying rule over all the rules. It is
professional misconduct for a lawyer to…
(a) Violate/attempt to violate the rules, knowingly assist/induce another person to do so (aiding or abetting,
conspiracy), or do so via acts of another;
(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a
lawyer in other respects (not a good idea to commit a crime as a lawyer; this covers lying, stealing, sexual
assault, selling marijuana, drunk driving, any violation of the law, submitting a false affidavit) – Under Rule
8.4(b), a lawyer’s felony conviction does not automatically justify discipline, unless that misconduct
reflects “adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer”;
(c) Engage in dishonest conduct like dishonesty, fraud, deceit or misrepresentation (this does not concern
whether you lie to your family; this concerns sworn testimony; this is an unforgiving rule, and you cannot
violate a rule even if it’s for a “good” reason);
(i) (Not explicitly in the rule but a lawyer cannot assist in allowing someone who says, “I’m
innocent” but wants to take a plea bargain)
(d) Engage in conduct prejudicial to justice (cannot act in an obnoxious and inappropriate way);
(i) (Not explicitly in rule but insulting judge, insulting lawyer or acting in a racist/sexist manner but
pre-emptory challenges based on discrimination does not count)
(ii) “Sit well” rule – if something doesn’t sit well with you, it is probably wrong.
(e) Acting to improperly influence public officials;
(f) Knowingly assist a judge or judicial officer to violate rules; and
(g) Engage in discrimination or harassment based on a protected class (only passed two summers ago; New
York has not adopted this rule and the ABA has resisted for decades – however this will likely fall under
(d)).

C. Rule 8.3 – “RAT RULE” - Reporting Professional Misconduct

1. General rule: (a) Lawyer who knows (must have actual knowledge, but actual suspect that your suitemate
is wrong) another lawyer has violated rules that raises a substantial question as to that lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects, must inform the appropriate professional
authority (either the grievance committee or the judge or both). (b) The lawyer must have actual
knowledge (which is defined as knowingly or knows denotes actual knowledge; it can’t just be a hunch).
2. You should only do the reporting if you have actual knowledge. If not, you should have an appetite for
risk, because you are taking a risk.
3. Exceptions: Following are situations which you do not have to report:
a) Information protected by Rule 1.6 - Duty of Confidentiality. For example, when a lawyer’s client
tells her that another lawyer has engaged in serious misconduct, or she represents a lawyer who
has himself committed serious misconduct.
b) Information gained by a lawyer or judge while participating in an approved lawyers’
assistance program (e.g., drug rehabilitation, Alcoholics Anonymous).

D. RULE OF THE 5.0s

1. Rule 5.1 - Responsibilities of Partners, Managers, and Supervisors (Supervising Attorneys) – relates to
Rule 5.3.
a) (a) A partner or someone w/ comparable managerial authority, must make reasonable efforts
to ensure that all lawyers in the firm conform to the rules; (b) Lawyers must adequately
supervise subordinate attorneys; (c) Supervisory lawyers are responsible for any subordinate
lawyers in violation if the supervisory lawyer knows or should have known of the misconduct
when it could have prevented or remediated and failed to.
b) It’s a pyramid of responsibility. You have an affirmative obligation to see that they are
acting ethically. If there is some struggle, you have an obligation, as a supervising attorney,
to do something about it so that the client is getting competent representation. Make sure
that subordinate lawyers are acting properly.
 3
2. Rule 5.3 - Responsibilities over Non-Lawyer Subordinate
a) Cannot order someone to not do anything to violate the rule AND cannot fail to take
remedial action. Pretty much same as Rule 5.1 (Responsibilities of Partners, Managers, and
Supervisors (Supervising Attorneys))
b) If you have private investigators, paralegals, you must supervise them. (Does intern fall
under here?)

3. Rule 5.2 - Responsibilities of a Subordinate Lawyer (Anti-Nuremberg Rule)

a) (a) A subordinate lawyer is bound by the rules (can still be in violation) even if you are following
another’s directions (merely following orders is not a defense) BUT (b) subordinate lawyer does
not violate the rules if that lawyer acts in accordance with a supervisory lawyer’s reasonable
resolution of an arguable question of professional duty (reasonably following orders that are not
facially wrong).

4. Rule 5.5 - Unauthorized Practice of Law, Multi-Jurisdictional Practice

a) (A) A lawyer cannot practice in a state and break their rules, or assist someone else in breaking
them → (you can give someone advice on the phone in e.g., Nebraska, if you are not licensed
there, b/c you are allowed to do anything you want in the state you are licensed as long, as you
are “competent” (Rule 1.1)).
b) Under Rule 5.5, a lawyer may have disciplinary problems with the unauthorized practice rules,
either by practicing in a state where she is not admitted or by helping a lay person engage in
unauthorized practice, such as writing a threatening letter on a lawyer’s letterhead.
c) It is permissible for a lawyer to delegate work to non-licensed law clerks, assistants, and/or
paralegals, provided that all work is adequately supervised by the attorney and the attorney
reads every document. The attorney must be fully responsible for all such work. If for some
reason the attorney does not supervise and/or read the documents, then the attorney has
violated this rule.
d) Additionally, a lawyer cannot open a law office in a state where he is not admitted.
e) (c) Can travel and practice in other states if:
(1) You are not suspended or disbarred in your home state;
(2) The work is “reasonably related” to a pending or potential proceeding before a tribunal
in a jurisdiction you are admitted to bar;
(3) Reasonably related to arbitration mediation or other alternative dispute resolution
proceeding in the jurisdiction you were admitted to bar;
(4) Some states have exceptions, so you would have to check the exceptions. Note: Florida
has not adopted Rule 5.5(c), while about 47 other states have.

5. Multi-Disciplinary Practice - Refers to practice partnerships between lawyers and other professionals (i.e.,
lawyers and accountants).
 4
6. Rule 5.4 - Professional Independence of a Lawyer - A lawyer must not share legal fees with non-
lawyer (like a receptionist), except:
a) 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 (family members) or to one or more specified persons (not letting money go
to waste upon a lawyer’s death);
b) 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;
c) A lawyer or law firm may include non-lawyer employees in the firm’s compensation
or retirement plan, even though the plan is based in whole or in part on a profit-
sharing arrangement; and
d) 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 must not form a partnership with a non-lawyer if any of the activities of the partnership consist of
the practice of law (cannot open a law firm with a community activist).
(c) A lawyer must 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 must not practice with or in the form of a professional corporation or association authorized
to practice law for a profit, if:
(1) A non-lawyer 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 non-lawyer 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 non-lawyer has the right to direct or control the professional judgment of a lawyer.”
 5
II. DUTY OF CONFIDENTIALITY
A. Rule 1.6 - Confidentiality of Information
1. Rule 1.6(a) A lawyer must not reveal information relating to the representation of a client unless the
client gives informed consent (think (in MFJ) Garden of Eden residents, calling on behalf of residents to
talk to home administrators), the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted by (b).
a) Rule 1.6(a) requires a lawyer to maintain inviolate information relating to the representation of a
client. When a client discloses information to a lawyer about its past conduct, generally that
information cannot be disclosed by the lawyer without the client’s consent.
b) KEEP YOUR MOUTH SHUT (basically/this is important). This is the essence of confidentiality.
People tell you things with the expectation that the information will not be released, unless there
are unusual circumstances. Don’t reveal things you shouldn’t reveal. One way to reveal
information is that you should have informed consent.
c) Protects: Attorney-Client privileged information (this is a narrow field), work-product
privileged information (this is a narrow field), plus any information that meets its broad
definition (huge field).
d) This also applies to disclosures by a lawyer that don't in themselves reveal protected information
but could reasonably lead to discovery of such information by a third person. A lawyer's use of a
hypothetical to discuss issues relating to the representation is permissible, so long as there's no
reasonable likelihood that the listener will be able to ascertain the identity of the client or the
situation involved.
e) Rule 1.0(e): "Informed consent" represents the agreement by a person to a proposed course of
conduct after the lawyer has communicated adequate information and explanation about the
material risks of and reasonably available alternatives to the proposed course of conduct.
(1) Informed consent means you must tell the client that we do “x” but there are
disadvantages for me to do “x” but you don’t need to give me consent to do “x.”
f) Confidentiality vs. Evidence: If the lawyer does not understand the evidentiary rules and
communicate them to the client, the client will be harmed both because of how the lawyer
acts (e.g. divulging confidential information in the presence of third parties) and how the client
acts (e.g. a client’s inadvertent waiver of privilege).
g) Ethics is different than “evidentiality admissibility” but the two concepts often are related.
Why (and how) does the confidentiality rule (i.e., Rule 1.6) implicate evidence rules and vice
versa? A lawyer must advance his or her client’s interests (if so, there is implied authority, if
you advance your client’s interests) under Rule 1.2(a) and Preamble “2” (lawyer’s “zealous”
representation) must understand the confidentiality rule.

2. The principle of confidentiality permeates every aspect of litigation, ranging from:

a) the first client meeting,
b) client and witness interviews,
c) discovery,
d) settlement negotiations,
e) witness preparation, and
f) trial tactics and issues.
 6
3. Rule 1.6(b) Exceptions: 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
(2+3 basically means a short summary of if a client has committed a crime or fraud or otherwise
committed acts that would seriously harm 3rd parties financially and they used your services to engage in
that misconduct, you may take reasonable steps to mitigate or rectify what they did (or reveal that
information) – these two provisions are only triggers when they have used your services); (4) to secure
legal advice about the lawyer's compliance with these rules; (5) (self-defense) 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 on conduct in which the client was
involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the
client; (6) to comply with other law or a court order; or (7) to detect and resolve conflicts of interest
arising from the lawyer's change of employment or ownership of a firm, but only if the revealed
information would not compromise the attorney-client privilege or otherwise prejudice the client.
a) A lawyer who is litigating a case must advise the client of important information under
Rule 1.4(b).
(1) Must tell their client what they need to know to maintain privilege.
(2) If you commit malpractice, you need to tell your client.
(3) If you have cancer, you have an obligation to tell client.
b) Comment 6 to Rule 1.6: There must be a true sense of imminence.
(1) Is it an idle threat or reasonable threat? Reasonable is based on the totality of
the circumstances.
c) Comment 14: Before making a disclosure authorized by Rule 1.6(b), a lawyer should try to
persuade a client to take action that will “obviate the need for disclosure.” If a lawyer reveals
information based on Rule 1.6(b), the disclosure should be “as narrow in content as possible”
and made to as few other people as possible.

d) Rule 1.6(b)(2) - Preventing Crime or Fraud (similar to 3): A lawyer is allowed to discuss legal
consequences of proposed conduct but cannot engage or assist client in criminal fraudulent conduct,
e.g. can tell them something’s illegal, but cannot help them try to figure out how to carry out conduct
w/o getting caught. If the client’s course of action has already begun, and lawyer cannot represent
w/o encouraging fraudulent or criminal conduct, lawyer must withdraw.

e) Rule 1.6(b)(3) - Preventing Financial Injury (similar to 2): Your law firm does work for a financial
institution. The people are involved in Ponzi scheme and disclose to lawyer: three requirements
in terms of whether to disclose:
1. There is reasonable certainty that the client’s conduct will result in substantial financial
injury or substantial injury to the property of another person;
2. The client is using, or has used, the lawyer’s services in committing the acts, and;
3. The purpose of revealing confidences is to prevent the criminal or fraudulent act or to
prevent, mitigate, or rectify the harm resulting from the acts;
4. Must report if falls under Rule 4.1 - If failure to reveal would constitute assisting
a criminal or fraudulent act, the lawyer is required to disclose.
5. Refers to a past crime or fraud (trying to mitigate or rectify the damages in the
aftermath).

f) Rule 1.6(b)(4) - Legal Advice: A lawyer could ask another lawyer who has more experience; the
other lawyer cannot reveal this information, because they also have a duty of confidentiality.
(1) “To secure legal advice about the lawyer’s compliance with these Rules.”
 7
g) Rule 1.6(b)(5) - Establishing Claim Due to Controversy between Lawyer & Client: The fact that a
client owes lawyer money is confidential, but you’re allowed to use that “confidential”
information if they owe you money. Being able to reveal confidential information allows
lawyers to reveal information that is necessary for lawyers to defend themselves, if the client
makes an untrue statement against the lawyer as well as disincentivize non-payments.
(1) You cannot talk about a spouse cheating, only information that is necessary for lawyers
to defend themselves.
(2) Allows lawyer to reach information about a client.
(3) Courts are split on whether lawyer can use this in a client’s ineffective assistance of
counsel claim - ABA has said no (only when the lawyer is compelled to provide an
affidavit), but SDNY has said both yes and no (some judges say yes, some judges
say “no” – they are likely to be conservative and wait for a subpoena.).

h) Rule 1.6(b)(6) - Complying with Law or Court Order (MAY becomes MUST (because the law is
mandatory)): If the IRS is auditing, if subpoenaed, under Enron and the Sarbanes Oxley Act: This
requires lawyers employed by companies regulated by the SEC to report any information about
securities fraud to the highest officials of the corporation. It’s a federal exception to the
attorney-client privilege. You mean reveal [to the SEC].
(1) Duty to Appeal: In the event a lawyer is ordered to reveal information relating to the
representation of a client and the lawyer resists disclosure but is faced with an adverse
court ruling, the lawyer must consult with the client about the possibility of appeal
(ask for a stay of the contempt while you appeal the judge’s order [of contempt]). At
least one appeal allowed (at least one level of appeal).
(2) You can redact information to protect confidentiality.
(3) This has enormous reach: “To comply with other law or court order.” This is part of a
hierarchy and set of rules.
(4) Financial information is not privileged.

4. Past Criminal Conduct is Usually Protected [by Duty to Protect Confidences]. Once the crime is over
or committed, the lawyer will not prevent the harm by revealing it. Therefore, the crime is protected.

5. Rule 1.6(b)(7), a new provision which is focused on lawyer mobility, allows disclosure to “to detect and
resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the
composition or ownership of a firm, but only if the revealed information would not compromise the
attorney-client privilege or otherwise prejudice the client.

6. Hypos:
a) Client comes to lawyer and said that they put rat poison in the basement of his 6 friends→ You
may but don’t have to reveal the crime. There is not enough to think the lawyer might
prevent reasonably certain death or substantial bodily harm.
b) Chester admits to lawyer that he committed the murder of another person → You cannot reveal
the crime, because going to prison does not prevent reasonably certain death or substantial
bodily harm.
c) Defendant had a medical exam done on the plaintiff who was injured in car accident, and did
not disclose the minor-plaintiff’s aneurysm. The aneurysm was not discovered in the plaintiff’s
medical exam → Lawyers are liable for misconduct under Rule 1.6(b), b/c harm was not
necessarily reasonably certain.
d) A police officer asks you (a criminal defense attorney) if your client came to your office → Don't
give the information! You cannot reveal information relating to the representation of the client,
unless the client gives you express authority and there's no implied authority (because it
doesn't help the client). It's not privileged, but you still cannot reveal it. A client has to agree to
let you say that you are representing them (think getting authority from adult or nursing home
residents).
 8
e)Having dinner with Anna. She orders saccharine and you know that saccharine kills people. You,
as a lawyer, represents the sugar company. She pours it in her coffee. I don’t believe you have a
duty to notify, but you can allude to it.
B. Other Rules Concerning Crime or Fraud:
1. Rule 1.2(d): Provides that “a lawyer must not counsel a client to engage, or assist a client, in conduct
that the lawyer knows is criminal or fraudulent.”
2. Rule 8.4: Prohibits lawyers from engaging in any dishonesty, fraud, deceit or misrepresentation.
3. Rule 1.13: Duty of a lawyer representing an organization to call attention to crimes and fraud.
4. Rule 3.3: Addresses the duty to reveal crimes or fraud to tribunals (truthfulness in court).
5. Rule 1.1: If continued representation would result in a rule violation, the lawyer is required to withdraw.
6. Rule 4.1: “In the course of representing a client a lawyer must not knowingly: (b) 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 Rule 1.6.
a) This includes a double-negative. Rule 4.1 - Truthfulness in Statements to Others (a) cannot
make false statement to third party (b) Lawyers have duty to correct misstatements and frauds
by clients when your services were used for those purposes.
b) Comment 3 to Rule 4.1: If failure to reveal would constitute “assisting a criminal or fraudulent
act,” the lawyer is required to disclose. (or if your client is using your services to commit a crime,
you must report it.).
 9
III. ATTORNEY-CLIENT PRIVILEGE
A. Requirements:
1. A communication (i.e., face-to-face, fax, e-mail, telephone call)
a) Cannot be underlying facts.
2. Between privileged persons (i.e. attorney; current and prospective client; and necessary third-parties
[translators, paralegals, investigators, public relations experts, etc.]).
a) If mother is present for daughter’s divorce meeting, the family member would break the
attorney-client privilege. It is NOT a good idea to have a family member in the room, because
it can break privilege.
b) Is it the alter ego of the lawyer? i.e. accountant professional working with the lawyer. Kovel says
this is privileged information.
c) If you hire as a lawyer an accountant, it is privileged. The accountant becomes an avatar. For
instance, translators do not break the privilege. They stand in the shoes of a lawyer. LAWYERS
NEED EXPERTS TO HELP THEM (they become covered in the privilege).
3. Which the client reasonable believes is confidential
a) If client uses work computer to send, confidentiality is destroyed whether it is personal
account or work account.
b) If you are in an elevator talking loudly about the issue, you lose confidentiality. There is no
expectation of confidentiality in PUBLIC. This applies when you are also in a public, large street.
For example, information is not privileged if another prisoner hears your conversation with
your client speaking through windows in jail (or other public spaces like a coffee shop).
4. For the purpose of seeking or providing legal advice or legal services
a) If you are talking about jets (or regarding your late client): not privileged because it is not
regarding legal services. This could be confidential, because a lawyer cannot release information
related to the representation of the client.
b) If need to be able to advance your client’s interests (tell the other attorney that your client
is late).
5. (When the judge speaks to you, it is the same as being deposed, and there is the force of law).

B. Attorney-client Privilege vs. Duty of Confidentiality

1. Attorney-client privilege is an evidentiary rule that protects lawyers and clients from being
subpoenaed while ethics laws govern what we do as litigators, evidence law governs what can be
introduced into evidence. This survives death.
2. Hypos:
a) A police officer asks criminal defense attorney if client came to office → Confidential! But
not privileged, must tell the truth if subpoenaed.
b) You are asked the same question in civil deposition→ Must admit b/c its confidential,
not privilege.
c) You are asked by judge if your client had blood on his shirt→ You must admit. This is not
privileged, since this is neither a communication or covered by duty of confidentiality.

3. Client Identity: Generally not privileged, because it is a commercial transaction. Some court have
protected client’s identity, if disclosure would incriminate the client in the matter client sought advice on.

4. Waiver: Only the client can waive privilege.

a) Express privilege is expressly waived IF the client communicates privileged information to a third
party.
b) Partial disclosure: When does the plaintiff have to reveal more confidential information if
they have revealed some? In Swift v. Spindrift, only considered a complete waiver if the partial
disclosure will result in selective and deceptive presentation of evidence at trial.
c) “Advice of counsel defense” - If client is sued, he/she can use this.
d) Inadvertent: Accidental email of privileged information to the wrong person… Normally doesn’t
break privilege unless: you intentionally emailed it, or it was a bad strategic choice and you are
trying to take it back. Restatement 79, comment c: Privilege is only broken for information that
lawyer at actual or apparent authority to disclose.
 10
e) Malpractice: Waiver if client sues attorney for malpractice.
f) Crime Fraud Exception: No privilege if client seeks assistance w/ future or current crime or fraud.
Applies even if lawyer did not know client was using lawyer’s services to commit fraud or crime.
Asking whether a certain crime is prohibited is privileged. Advice about past crimes or frauds is
privileged. If client does not know conduct is a crime, but asks lawyer advice about criminal
activity, it is not privileged.
5. Challenging a Claim of Privilege: Opposing counsel could subpoena for “any and all correspondence,”
and ask for an in-camera inspection of all privileged information, if they believe the lawyer assisted in
committing fraud or crime.
a) U.S. v. Zolin: To obtain an in-camera inspection of evidence in a federal court, the party
seeking the information must present “evidence sufficient to support a reasonable belief that
an in-camera review may yield evidence that establishes the exceptions applicability” burden is
by a preponderance of the evidence.
b) Hypo: In bus crash litigation you believe the lawyers from insurance company are committing
fraud and are working w/ bus company: you want to invoke crime fraud exception → This
is really hard to defeat b/c you cannot speculate or guess your way to have judge provide
in-camera.

C. Work Product Doctrine: Work prepared in anticipation of litigation.

1. Work product consists of tangible material or its intangible equivalent in oral or written form, other than
underlying facts, prepared by a lawyer either for current litigation or in anticipation of future litigation.
Subject to exceptions, work product is not discoverable. Charles Wolfram explains: “Work product
extends to information prepared by a lawyer without regard to whether it was communicated to the
lawyer in confidence or to whether the lawyer’s client or some other person was its source. The critical
element for work product is possession of lawyer-generated information in the lawyer’s mind of private
files.”
2. Impending litigation: If client gives the lawyer a set of documents related to an impending litigation,
they may be privileged if the lawyer can demonstrate that his “selection and compilation” of documents
were part of his litigation strategy.
3. Materials not created or collected in anticipation of litigation are not privileged under the work
product doctrine.
4. Not absolute! Judge can order disclosure of work/oral information if opposing party can show
“substantial need” for the material & that the opposing party is “unable w/o undue hardship to obtain
the substantial equivalent” of the material by others means.

D. Corporate Privilege
1. Comment 7, Rule 4.2: If you are a lawyer and you want to talk to corporation’s employees, and
those corporations are represented by counsel, then the outside lawyer is not allowed to talk to the
corporation’s employees.
2. Hypo: A lawyer is representing Cardozo for cheating scandal and talks to Thea, an employee. The lawyer
can assert: (1) work product privilege and (2) attorney-client privilege, because under Rule 1.13
(organization as a client) combined with Rule 1.6 (Thea is law school, and law school owns privilege).
 11
IV. ATTORNEY-CLIENT RELATIONSHIP
A. Taking a Case
1. Subject Matter - Rule 1.1: A lawyer has a duty to use the legal knowledge, skill, thoroughness,
and preparation reasonably necessary for the representation of a client.
Comment 2: You are allowed to take a case if you are anything other than incompetent (you should be
competent). Inexperienced lawyers can take on new matters, through study or teaming up with another
lawyer. Lawyer may not bill client for extensive self-education. Associate who is working on an unfamiliar
field is assumed that her firm is providing competent service, based on the fact that she is keeping partner
informed → It depends on the level of supervision and supervisors’ experience level.
2. Discretion: Lawyers have discretion in choosing which cases they want to handle. But, Rule 6.1 - Every
lawyer has responsibility to provide legal services to those unable to pay; a lawyer should ASPIRE to
provide at least 50 hours of pro bono (only law students are required do pro bono). Cannot deny on basis
of creed, race, gender, etc.
3. When does the attorney-client relationship begin? Relationship begins when a reasonable person from
the public would believe you are their lawyer. The client does not need to pay money or sign anything
(like a retainer). Attorney should be clear if she is representing corporation, not corporation’s employees
(See Upjohn (Upjohn or corporate warnings)). Must be careful when offering casual advice.
4. Togstad (every basic seminar talks about this case): Wife goes to lawyer to ask if she had a case for
medical malpractice. Lawyer knew nothing about medical malpractice. Said it didn’t sound like she did,
but he would talk to one of his partners. He never called her back. Thus, Mr. Togstad assumed her case
was being handled. By the time she consulted someone else, the statute of limitations had run. Holding:
Lawyer-client relationship is present here b/c lawyer failed to advise client that she should seek the
advice of another lawyer (I’m not representing you!). There was a two-year statute of limitations; he was
not providing her with legal advice.
a) The lawyer failed to provide a formal denial or in paper – I’m not providing you with any
particular legal advice.
b) LESSON FROM THIS: When you meet with a lawyer, you should give a declination letter: “It was a
privilege to meet with you earlier, this email will confirm that I am not representing you in any
matter, I did not give you any legal matter, and that there is a statute of limitations and you
should seek another lawyer.”
5. Rule 1.8 - Duties to Prospective Clients: You owe potential client confidentiality and fiduciary. Does not
mention duty to provide competent advice.

B. The Attorney Duties to Clients

1. Agent Rule: Lawyers are agents of their clients and have different types of authority:
a) Express and implied authority: Explicit instructions from a client or implicit permission by a
client. Rule 1.2a: A lawyer may take actions “impliedly authorized” to carry out the
representation, e.g. don’t have to ask for the client’s permission to set trial date or call adversary.
(This doesn’t have to be the right authority. Implied authority doesn’t mean express authority.
Like the story that President Trump basically wanted Kavanaugh to be very angry to get him
confirmed.).
b) Apparent authority: Acts or omissions on the part of a client which justify reliance on the
attorney by third parties. For example, if a client fires a lawyer but subsequently stays silent
while the lawyer makes representations on the client’s behalf the client will be bound by
those representation. THIS WILL NOT BE TESTED ON.
c) Authority to settle litigation: In most states, lawyers do not have implied or apparent authority
to settle a client’s case.
2. Rule 1.1 - Competence: A lawyer must provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary
for the representation.
a) Criminal Cases: In order for a criminal conviction to be reversed based on the lawyers’ actions,
there must have been a giant mistake.
3. Rule 1.3 - Diligence: A lawyer must act with reasonable diligence and promptness in representing client.
Failure to return calls and file papers on time are violations.
 12
a) Preamble: The term “zealously” was dropped from the Model Rules; but the term remains in the
“Preamble and Scope” to the Rules: “As advocate, a lawyer zealously asserts the client’s position
under the rules of the adversary system.”

4. Rule 1.4 - Communications: Lawyers must communicate reasonably with clients. A lawyer must:
a) Inform client about anything requiring informed consent;
b) Consult with the client;
c) Keep the client reasonably informed as to status;
d) Promptly answer question client has; and
e) Consult with client about limitations in representations.
5. Cont. Rule 1.4 - Honesty: Does not mention lying to clients BUT Professor Ross says that it does not
explicitly or implicitly permit lies. No white lies, lies to protect people, protect your own privacy or
exaggerations. Sometimes, a lawyer may want to lowball estimate what the settlement may be to manage
client’s expectations. You cannot provide false information, so you must do this in a measured way.
Sometimes even if you think there’s nothing to worry about, you should also say “there’s always a chance
we may lose.”
a) Matter of Shearer - Omission of relevant facts amounts to lying.
b) Civil Liability for Dishonesty to Clients - A client injured by a dishonest lawyer may sue the
lawyer in a tort for fraud or for breach of lawyer’s fiduciary duty. Most cases of breach of
fiduciary duty result from disloyalty, like undisclosed conflicts of interests, which are treated as
constructive fraud, but the tort can result from actual fraud as well.
(1) Lawyers may be sued for damages if you contributed to fraud and you have injured a
client or third party.
c) When it is OK to Lie:
(1) CIA or DA with an undercover mission.
(2) Running an undercover operation searching for discrimination.
(3) In New York: If you are an undercover agent searching for intellectual property or patent
infringement.

C. Relationships with Competent Clients

1. Rule 1.2 - Scope of Representation and Allocation of Authority between Client and Lawyer: “A lawyer
must abide by a client’s decisions concerning the objectives of representation and, as required by Rule
1.4, must 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
must abide by a client's decision whether to settle a matter. In a criminal case, the lawyer must 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.”
a) Difference between Objectives and Means: Language suggests client decides whether to file
suit, but once you file you can make technical decisions. There is an interplay: Clients normally
defer to the lawyer’s special knowledge and skill in particularly technical, legal, and tactical
matters. The lawyer defers to client regarding costs, and concern for third persons adversely
affected.
2. (c) Limitations: Lawyer may limit scope of representation if limitation is reasonable under circumstances
and client is given informed consent.
3. *Off-Limits Litigation Decisions (this is reserved to the client to make and decide) - Whether to settle
(civil), to take a plea, waive jury trial, testify, plead guilty (criminal).
 13
D. Rule 1.14 - Diminished Capacity Clients: Who calls the shots? When a client's capacity to make “adequately
considered decisions in connection with a representation” is diminished . . ., lawyer must, as far as reasonably
possible, maintain a normal client-lawyer relationship with the client.
1. Due to minority (age), mental impairment, etc. Despite diminished capacity, you are supposed to maintain
a normal client-lawyer relationship.
2. Even if the client had a coma, you continue with the case as if the client was alive and awake giving you
instructions.
3. (b) Protective Measures: When the lawyer reasonably believes that the client has diminished capacity, is
at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in
the client's own interest, the lawyer may take reasonably necessary protective action, including
consulting with individuals or entities that have the ability to take action to protect the client and, in
appropriate cases, seeking the appointment of a guardian ad litem (GAL), conservator or guardian.
a) Comment 5 - Protective measures may include consulting family members, using surrogate
decision-making tools such as durable powers of attorney, or consulting support groups,
professional services, adult-protective agencies or other entities capable of protecting client.
b) When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized
under Rule 1.6(a) to reveal information about the client, to the extent reasonably necessary
to protect the client's interests.
4. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6.
When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule
1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect
the client's interests.
5. Important Comments:
a) Comment 2: A lawyer must treat the client w/ respect and maintain communication.
b) Comment 3: When family members are involved, the lawyer must look to the client for decisions,
not to the family members, unless protective action under Rule 1.14(b) is necessary. (You can
break the privilege or confidentiality with this rule to explore further whether protective action is
needed).
c) Comment 6: A lawyer can and should make some assessment of the client’s mental capacity; the
lawyer can look at such factors as (think about the overwhelming symptoms of dementia; when
a client is incompetent (similar to the client dying)):
(1) The client’s ability to articulate reasoning leading to a decision;
(2) The client’s ability to appreciate the consequences of a decision;
(3) Substantive fairness of a decision; and
(4) Whether the decision comports with known long-term commitments and values of
the client’s.
6. Children - Paternalistic Approach: A lawyer represents the child’s expressed preferences, but a separate
guardian ad litem may represent what the guardian believes are the child’s best interests, especially in
cases which there appears to be a conflict between the two. Clients determine objectives, and even if
they make bad decisions, you need to follow their objectives and the best interests associated with them.

E. Terminating the Attorney/Client Relationship

1. Standard – Attorney-client relationship typically terminates when a case is over or when the lawyer is
discharged.
2. Returning Documents to Client - Restatement 46(2): On request, a lawyer must allow a client to
inspect and copy any document (“Electronically Stored Information” (“ESI”)) possessed by the lawyer
relating to the representation, unless substantial grounds exist to refuse.
a) Substantial Grounds → If your client fires you, you may not want to give back files until they
pay, unless it unreasonably harms them. This also includes non-payment, as if the client does not
pay, it violates the law and also perhaps it involves your work product. As such, you might be
able to keep and withhold your files.
b) Note on Documents - Documents = writings, drawings, charts, discs, emails. Today, we consider
ESIs. If you have incriminating documents that show you messed up the case, you must turn
them over. Lawyers may keep copies of law firm documents intended for internal firm review,
 14
such as documents discussing who in the firm should be assigned to a case. Copies of the files
still represent the actual files themselves (cannot shortcut non-payment).
3. Rule 1.16 - Declining or Terminating Representation (Litigators must master the ethical guideposts of
withdrawing from a case.):
a. A lawyer must not represent a client or, where representation has commenced, MUST
withdraw from the representation of a client if (it’s a mandatory withdraw rule):
1. The representation will result in violation of the rules of professional conduct or
other law (most common reason);
2. The lawyer's physical or mental condition materially impairs the lawyer's ability to
represent the client; or
3. The lawyer is discharged (however, if you have to write a brief to submit or notice
of appearance in court, you still have to unless the court discharges this obligation
for you).
4. Regardless of the reason a lawyer resigns, she must take reasonable efforts to
protect the client’s interests, e.g., turning over the client’s papers and
property (Rule 1.16(d)).
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 (harm) on the
interests of the client;
▪ Can quit for any reason as long as it doesn’t prejudice the client (whereas #2-
6 below is allowed even if harms/prejudice the client).
2. The client persists in a course of action involving the lawyer's services that the
lawyer reasonably believes (definite knowledge is not needed) is criminal or
fraudulent;
3. The client has used the lawyer's services to perpetrate a crime or fraud (may not
aid or abet the client);
4. The client insists upon taking action that the lawyer considers repugnant or with
which the lawyer has a fundamental disagreement;
▪ Can be over anything money, tactics, client is rude, etc. It can turn toxic if there
is a fundamental disagreement. It is like a relationship, you can withdraw.
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; (e.g. client doesn’t pay, you may quit!).
▪ Even if the client doesn’t have the money to pay you, you can still quit
(different rule in N.Y.!).
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. Notice to the Tribunal - 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 must continue representation notwithstanding good cause for
terminating the representation.
 Must ask court permission when it comes to litigation.
 When you tell the court you’re withdrawing, your reasons must be consistent w/
confidentiality rules.
 Submit it in-camera and ex parte.
 Motion will be part of the record though.
d. Terminating - (d) Upon termination of representation, a lawyer must 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 ESI papers and
property to 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. Lawyer can keep copies of the file in order to protect their interest(s).
b. BUT it is difficult to sue your client, because it will affect your insurance rates and it
 15
is not worth the client’s counter-sue for legal malpractice. Also, the work that you do
is not paid so it’s not worth it. Pro-tip: The time to get out is sooner vs. later.
V. CONFLICTS OF INTEREST
1. Conflicts are about spotting the issues. One policy of the conflicts rules is the desire to protect the loyalty
between a lawyer and a client. Clients must trust their lawyers. To achieve an adequate level of trust, the
lawyer must have an undivided loyalty to the client, which is part of the fiduciary duty the lawyer owes to a
client apart from any set of rules. Conflict rules are designed first and foremost to protect client loyalty. In
addition to the duty of loyalty, there is the lawyer’s duty to keep the client’s matters confidential. The
conflicts rules are designed to protect confidentiality by removing situations in which a lawyer might be
tempted to disclose confidential information disadvantageously to the client. However, even when you have
identified a conflict of interest, in most cases and with exceptions, the clients can waive the conflict. Consent
must be a knowing and informed waiver that can only occur with full disclosure both of the risks
accompanying the situation and the alternatives to the conflicted representation.
2. In General:
a) Consequences of Violation:
(1) Disqualification from the case by judge
(2) Discipline: Rule 8.4 says it is misconduct to attempt to violate a rule or violate a rule. Once
a judge finds you must be disqualified for misconduct you go directly to a sanction hearing.
So, if you violate a conflict of interest rule you are subject to discipline.
(3) Malpractice Liability: increases your premium costs
(4) Injunction against representation of future clients
(5) Fee forfeiture
(6) Client mistrust
(7) Lost time and reputation
4. Types of Conflicts:
a) Concurrent Conflicts - Two things that going on NOW → Rules 1.7, 1.8, 1.13
b) Successive Conflicts - Representing someone today against a former client→ Rules 1.9,
1.11(a), (c),(d), 1.12(a)-(b)
c) Imputed Conflicts – If you have information that might harm a former client, that infection that
precludes you from representing that client also affects the firm → Rules 1.10, 1.11, 1.12(c)
5. Rule 1.7 - Current Clients
a) (a) A lawyer must not represent a client if the representation involves a concurrent conflict
of interests. A conflict of interests exists if:
(1) The representation of one client will be directly adverse to another [current] client
(e.g. plaintiff vs. defendant, cross-examine your client in a different case).
(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 → For example: If you believe in free choice and you
represent the government in big gulp lawsuit - must be actual conflict, not future conflict.
b) Waivers: Non-Consentable Conflicts: 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 (objective test).
(2) The representation is not prohibited by law; (Most states say that one lawyer cannot
represent the passenger and driver in a car crash case, despite whether driver was
actually at fault - this is allowed in N.Y., federal law prohibits government lawyers from
suing government).
(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 in writing.
(5) IN SUM: Lawyers may not represent conflicted client(s) when the lawyer reasonably believes
that he will not be able to provide competent and diligent representation, when
representation is prohibited by law, does not involve assertion of a claim by one client
 16
against another client represented by the lawyer in the same litigation or other
proceeding before a tribunal, and no informed consent in writing is accepted.
 17
c) How to Evaluate Concurrent Conflicts:
(1) Clearly identify the client and determine if each is present or former.
(2) Is this an actual conflict?
(3) Is it consentable? → Are the conflicting representations related or unrelated? Is it two
clients against each other? Or is it me vs. some other issue? If not factually interrelated
the conflict may be waivable.
(4) Is there direct adversity? If yes, it may impossible to pursue the interests of one client
without harming the other. But if the conflict could adversely impact only a former client,
the conflict is consentable.
(a) Think about whether there is a limited pot and whether considerations about
money would impact numerous parties. This would be about limited recovery.
There is a built in conflict when there is a limit (not enough money to go
around).
(b) There may be differing interests that conflict with one another and this
would need to be mediated. You can have a “conflict waiver” as soon as they
walk in to complete the retainer.
(c) Does it affect your ability to competently and diligently represent your
client’s interests?
(5) ***If conflict is consentable, you must provide the clients with full disclosure, obtain
informed consent confirmed in writing, and send written confirmation to the clients of
the informed consent → Virtually every conflict is waivable so long as you can get
informed consent informed in writing.
(6) To get a conflict waiver, you may need to disclose confidential information.
6. Hypos
a) Consider rules about whether you can represent two criminal defendants. This is very unlikely in N.Y.,
because there could be some ratting or snitching against the other which complicates how you can
reasonably believe you can provide competent and diligent representation and more (go down the
four points).
b) Can you represent buyer and seller of a home? → Not always direct adversity, e.g. in father and
son relationship where father wants to take care of son AND they have already agreed on price and
material terms.
c) Representing co-plaintiffs or co-defendants in civil litigation → This is direct adversity. With
defendants - what if one is more culpable? And with plaintiffs - award may be contingent on
others. Also substantially limited - If one client might have a claim against the other client, if the
clients are co-plaintiffs, they might be suing a defendant whose limited assets would make it
impossible to satisfy both their claims or if plaintiffs have different views on a settlement.
(1) How to decide → You must gather the facts by questioning each client separately, and the
lawyer must reasonably believe the lawyer will be able to provide competent and diligent
representation to each affected client under Rule 1.7 (b)(1), The lawyer must disclose to and
discuss with each client all the facts and circumstances that might adversely affect the
client’s interests See Comment 18 (informed consent) Rule 1.

7. Rule 1.0(e)- “Informed Consent”

a) It should be “dirty consent” – Give the client information sufficient to make an informed decision
concerning risks and disadvantages of multiple representation.
b) Sometimes a court conducts “Curcio” waiver inquiries on the record. “Curcio” hearings are often
conducted in which trial judge will ask defendants under oath to ensure they are waiving the
conflict with informed consent. Judge can disqualify lawyer even if defendant consents.
c) What if you must reveal on client’s confidences to obtain informed consent from another? Ask
clients permission to make disclosure. If client says no, then obtaining informed consent is impossible
without violating Rule 1.6. If the other client already knows the information needed for informed
consent, the lawyer does not have to explain. The client is allowed to change his mind and withdraw
consent.
d) Hypo - You are representing two clients, the driver in car accident and the passenger. The Driver tells
you they were high, even though the accident happened because another person ran a red light. Can
 18
you tell the passenger that the driver was high? → You would have to step out of the room to ask
the driver if it was okay to say it. Even though there does not appear to be direct adversity, you
would want a waiver, but you have to talk to the clients separately
e) Representing both parties to a transaction: It depends, if there is an actual or potential conflict
that is reasonably apparent to the lawyer, the lawyer must get informed consent.
(1) Can a lawyer solve the possible conflict by undertaking just to draft documents without
giving advice? No. A lawyer should not regard himself or herself as a “mere scrivener” b/c
he or she should attempt to provide services to each client as if the lawyer were
representing any one of them.
(2) Can a lawyer keep confidences learned from one client from the other client? No. As
between commonly represented clients, there is no confidentiality. A lawyer has a
fiduciary owes both clients a duty of loyalty; keeping secrets might compromise this duty.
See Comments 40 and 41 to Rule 1.7 addressing special considerations in common
representation with respect to privilege and confidentiality, also Rule 1.4: duty to
communicate.

8. *Advance Waivers - This a waiver for a potential future conflict that neither the party nor lawyer knows
about at the start - you can cherry-pick and decide which client you would like to represent. Validity
depends on:
a) Whether the conflict is consentable;
b) How well the client understood the risk of future conflicts (must be informed);
c) How thorough and specific was the lawyer’s initial disclosure;
d) The client’s experience with the type of legal services being provided and the nature of the conflicts
that could arise;
e) Whether the client was offered and received independent legal advice.
f) Example: “The Company agrees that, notwithstanding our representation of the Company in general
corporate matters we may, now or in the future, without seeking or obtaining your further consent,
represent other persons, whether or not they are now clients of our law firm, in other matters,
including litigation, where those other persons are adverse to the Company. The Company also
agrees not to seek disqualification of our law firm should the firm sue the Company in the future.”

9. Disqualification Motions - If a lawyer discovers a non-consentable conflict or if the relevant client declines to
consent, the attorney must withdraw, which requires a motion if the matter is in litigation OR opposing
counsel can move to disqualify attorney from continuing the work (strategic advantage or good faith belief).
a) Federal courts do not consider RFC as guideposts, but they are free not to follow them. State
courts follow them “slaveryishly.”

10. Rule 1.10 - Imputed Conflicts of Interest

(a) While lawyers are associated in a firm, none of them must 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: (1) the
prohibition is based on a personal interest (includes economic interests like stocks) of the disqualified
lawyer and does not present a significant risk of materially limiting the representation of the client by
the remaining lawyers in the firm (other people in the firm are free to provide representation – the
court can also ask for a conflict waiver)… (c) A disqualification may be waived by the affected client.
(b) When one lawyer is disqualified from the firm, all lawyers are disqualified from the firm (super
infectious, zombie virus that follows people). However, this could be prevented if there is screening.
The disqualified lawyer (or infected) must be screened. No part of the fee goes to the new lawyer.
(c) Note that paralegals, etc. do not apply, but still subject to a conflict screen.
(d) #Are lawyers allowed to sue current clients on behalf of other current clients?
(i) > Representing A and B in separate lawsuits not in the same case with A and B suing each
other. In U.S., this is still a problem. You cannot represent one client if he/she has interests
in regard to another client in a wholly different matter. This involves loyalty. Most large
firms have a large firm waiver that says to clients that they understand this was a large
firm, this is still allowed (advance waiver) which still allows firm partners, etc. to represent
you even if conflict in an unrelated case. But you cannot solve a
 19
conflict issue by getting somebody else to work on it. The only conflict that is solved is
a PERSONAL CONFLICT.
(e) Conflict Screen - We allow lawyers to move among law firms and not create conflicts among clients by
screening them and give notice to the client. “Screening” separates the new lawyer from any data or
information and denies the lawyer the ability to gain or provide information about the matter.
Screens can lock down any attorney’s access to prohibited information. If a lawyer is screened from a
matter, then it’s possible the conflict will not be imputed. Note, however, that nothing can be done
to prevent disqualifications if the newly associated attorney had substantial material information
or involvement in the pending matter at his or her old firm. Under these circumstances, screening is
not an adequate protection and the new firm will have to withdraw. If there is a new lawyer, you
can prevent her from infecting others with her information through a conflict screening. When to
Screen:
 Where a lawyer moves from one firm to another (Rule 1.10(a)(2))
 Where one lawyer in a firm has conflict based on personal interest that does not
present a significant risk of materially impacting other lawyers representations
(Rule 1.10(a)(1))
 Where a former non-lawyer employee has become lawyer (Comment 4)
 Where a former government lawyer entered law firm (Rule 1.11)
 Where a lawyer received confidential information from a prospective client who didn't
become actual client (Rule 1.18)
 Where a lawyer previously worked on the matter as a judge, law clerk,
arbitrator, mediator, etc. (Rule 1.12)
(f) How to Screen: Varies between jurisdictions. But must be timely and reasonably adequate under the
circumstances to protect information. Rule 1.10(e) then sets out in detail the requirements for
adequate screening: (1) material information in the possession of the personally disqualified attorney
must be isolated from the firm; (2) the personally disqualified attorney must be isolated from contact
with the client and with witnesses for or against the client; (3) the personally disqualified attorney
and the firm cannot discuss the matter with each other; (4) notice and an affidavit from the
personally disqualified attorney containing certain prescribed information must be sent to the
former client; and (5) the personally disqualified attorney and the new firm must reasonably believe
that the screening will be effective in preventing disclosure of material information to the new firm
or its client.
(g) Waiving imputed conflicts - Clients can waive imputed conflicts by obtaining informed consent
in writing of former and current clients.
(h) Special rule for government lawyers - The conflict rule doesn’t kick in unless you work personally and
substantially on the old matter (i.e., US Attorney’s Office). The rules governing government lawyers say
that you won’t be disqualified unless you have personally and substantially on the matter.
(i) Temporary lawyers and non-lawyers - Does not preclude representation based on conflicts by law
clerks, paralegals, secretaries or other non-lawyer employees. (Comment 4)
(j) What if lawyers share space but not same firm? Conflicts may be imputed if they consult about
cases, if they share a secretary who has access to both files. Must set up a confidentiality system.
(k) What happens when a lawyer with the conflict leaves the firm?
Under Rule 1.10(b), lawyer seeking to take on new work should determine whether there is material
adversity, substantial relationship, and possession of material confidences by a lawyer in the firm. If
yes, then firm cannot take on the work without consent of affected client. The law firm can also begin
to represent a case where there was a conflict if the disqualifying lawyer left the firm.

11. Conflicts Between Current Clients in Litigation - The lawyer can sue current client on behalf of other current
clients ONLY IF the lawyer reasonably believes she can represent both clients (without adverse impact) on
other and both clients give informed consent. It depends on the facts and whether they consent.
a) Cross-Examining a Current Client - You cannot cross-examine a current client! Ordinarily will
present conflict of interest that is disqualifying absent consent by one or both clients involved. And
that individuals lawyers disqualification will be imputed to all other lawyers in the firm.
 20
b) Representing Economic Competitors - Permitted because there is no direct adversity but if you have
extensive work for one of the competitors, you might be breaching your fiduciary duty.
 21
12. Positional Conflicts - When you make an argument in another case that was contrary to the client’s
interests. Certain positional factors are relevant in determining whether the clients need to be advised of the
risk:
a) Whether the issue is before trial or appellate court;
b) Whether the issue is substantive or procedural;
c) The temporal relationship between the matters;
d) The practical significance of the issue to the immediate and long-term interests of the client involved;
e) Clients reasonable expectations in retaining the lawyer.

13. Rule 1.8 - Duties to Prospective Clients

(a) A person who consults with you for services is prospective client.
(b) Even if they don’t hire you, a lawyer who learned information from prospective client, cannot use or
reveal that information except as Rule 1.9 permits.
(c) A lawyer must not represent client that has interest materially adverse to prospective client (even if
they didn’t hire you).
(d) When one lawyer of a firm is out the entire law firm is out.
(e) When lawyer has received disqualifying information, representation is possible if:
(1) Both parties consent,
(2) The lawyer who received information took reasonable measures to avoid exposure to more
disqualifying information than reasonably necessary to determine whether to represent the
client and disqualified lawyer is timely screened from any participation in the matter thereof
and written notice is given to prospective client.

14. Rule 1.13 - Representing Organizations

a) Who is the Client? Sometimes you can represent corporation and president of corporation. Look
at the retainer agreement and reasonable understanding of the individuals with whom the
attorney interacts (under Rule 1.13(f) lawyer who represents organization must explain role
whenever dealing with constituents whose interests may conflict w/ organizations)
b) Can lawyer who represents corporation provide legal service to individual employees of the
organization? Yes, unless the interest of the individual employee and the organization conflict, in
which case the lawyer may proceed only with consent of parties (consent can be given by designated
corporate official)
c) What if a corporate employee discloses information to the corporation’s lawyer in
confidence? Lawyer must give corporate Miranda/Upjohn warning. If the employees interest
conflict with organization, lawyer may need to discontinue representation of both.
d) If officer or employee of an organization threatens to do something to harm organization, lawyer
must report it to highest authority (Rule 1.13(b).). If a lawyer learns that someone within the
corporation has acted or refused to act in a way that violates a legal obligation to the organization, or
that constitutes a crime, fraud, or other violation of law that could be imputed to, and is likely to
result in substantial injury to, the organization, the lawyer has a duty to report that knowledge to the
leaders at the corporation. A lawyer must always act in the best interest of the organization, which in
many cases requires bringing the wrongful conduct to the attention of higher authority. If authority
refuses to act properly lawyer may reveal to public officials (Rule 1.13(c)) but not if the lawyer was
retained to investigate misconduct or defend organization (Rule 1.13d)

15. Representing Family Members

a) Separation Agreement - If two spouses ask lawyer to draft a separation agreement, may the lawyer
agree? Differs between states. Some states allow this but forbid one lawyer from representing both
parties in a divorce. Some states don’t allow a lawyer to represent both husband and wife in any
divorce action.
b) Estate Planning: Lawyers could represent more than one family member in estate planning:
It’s common for lawyers to draft wills for husband and wives but a number of problems arise:
(1) Florida bar opinion: lawyer is representing wife and husband in estate planning husband
wants to change his to give substantial amount of property to mistress: lawyer
must withdraw but cannot tell wife.
22
 23
16. Rule 1.8(f) - Third Party Compensation: “A lawyer must not accept compensation for representing a client
form one another 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) the
information relating to representation of a client is protected as required by Rule 1.6.
a) Insurance Companies: Insurance defense lawyer represents the client- the insurance company might
be a client too but not a client only if they designate the lawyer. Communications between the
insurer and the insured attorney may depending on the circumstances be considered as privileged
(1) Confidential Information: Lawyer cannot reveal the insured’s confidences to the insurer
when the confidences would cause the insurer to deny coverage, unless the insurance
company is also the client. A lawyer accept direction from an insurance company as to
how much to spend on discovery and other aspects of the litigation, only if the insured
consents and get progress reports but no confidential information.
(2) Conflict of Interest - If a conflict of interest arises between the insured and the insurer,
the lawyer should act in the best interests of the insured. Many insurance policies provide
that the insurer will pay the cost of hiring a separate lawyer for itself.

17. Class Actions - Many conflicts arise when lawyer represents 2+ clients:
a) Conflict regarding lawyers ideological interests or how much money should be divided.
b) Rule 1.8(g) - AGGREGATE SETTLEMENTS: Each client must give informed consent to aggregate
settlement based on information including the existence and nature of all the claims or pleas involved
and of the participation of those involved. Comment 13 to 1.8: must give disclosure AND get consent.
If it’s a class action, you only need the judge’s permission not everyone’s consent.

18. Present and Former Client Conflicts

a) Example: Husband and wife get into a fight. People are not happy if a former lawyer is against me.
It is not right for a lawyer to use confidential information learned earlier and use it against the
client later.
b) Dangers of representing former and present client:
(1) Betray confidences of the former client to the present client;
(2) Make adverse use of confidences that the lawyer learned during the representation of
the former client;
(3) Attack or challenge the work that the lawyer did on behalf of the former client; and/or
(4) Engage in work that is in some other way disloyal to the former client or at least causes the
former client to feel betrayed
c) Which Ethical Rule applies? Actually, it could be two rules that may apply. Rule 1.7(a)(2) says that a
current conflict could exist if there is a significant risk that one or more clients will be limited, because
of a former client. This means that if you are hesitating to beat up a former client, then that is a
material limitation that you have. It’s not easy to cross examination someone who you have known
for years, a former client.
(1) Rule 1.7 - Protecting the PRESENT client
(2) Rule 1.9 - Protecting the FORMER client
d) Successive Conflict - involves one present or prospective client and one former client
e) Concurrent Conflict - involves two present clients or one present and one prospective client

19. Rule 1.9 (Duties to Former Clients) - Under Rule 1.9(a), a lawyer who has previously represented a client must not
represent another person in the same or substantially related matter in which that person’s interests are
materially adverse to the interests of the prior client UNLESS the former client gives informed consent.
a) Think about whether you need to request the client to sign a waiver (i.e., robust advance waiver). Is
this advance waiver equivalent to informed consent? Yes, possibly this is true, as you can waive
without being completely informed. With an absence of the waiver, you have to terminate
representation if there is conflict.
b) The waiver can supersede the hot potato doctrine.
c) Shared information is not confidential information.
 24
d) When is something the “same matter”? → Usually, single lawsuit or transaction. Also, cannot later
attack validity of a documented the lawyer drafted if it would materially or adversely affect former
client. Also, cannot switch side in the midst of a negotiation or litigation.
e) When is something “substantially related”? → Comment 3 to Rule 1.9 say that if they involve the
same transaction or legal dispute or if there is a risk that confidential factual information from
the prior representation, this would materially advance the client’s position in subsequent
matter. Turns on common facts and confidences - not common legal issues.
(1) What if during first representation, the lawyer learned only general information about a
client’s business operations - Maybe substantial relationship. If they are relevant to the
matter in question, they will preclude representation. (Comment 3)
(2) What if lawyer knows how the former client tends to react to legal disputes - like
settlements, discovery → Maybe, depends on the range of information and how extensive.
(3) What if the information learned from Rep1 is public or obsolete? Not disqualifying.
(4) Is the likelihood of disqualification by how much responsibility a lawyer had on the prior
matter? Maybe- in Silver v. Chrysler, court held that in a motion to disqualify, when a lawyer
had been in a subordinate role, movant needs to show he gained information that added
value to current client.
(5) May a lawyer sue former client on behalf of new client without former clients consent if
new matter is not substantially related? YES! If new matter is not materially adverse to the
interests of the former client and not same or substantially related matter.
f) When is something “materially adverse”?
(1) ABA says direct adversity only. Restatement says potential harm to the type of interests
that the lawyer sought to advance on behalf of former client.
g) How do you know if someone is current or former client? Look at retainer agreement, closing
statement, billing entries. If a lawyer has not formally terminated the relationship for whom he has
completed work, that client may view himself as a present client. A lawyer cannot drop one client to
clear the way to take a more lucrative matter; this is called a “hot potato doctrine” and you can’t
just drop a hot potato without consequences (dropping a poor client to favor a rich).
h) Retainer agreement could stipulate that you are representing two clients.
i) Courses of action when you discover a conflict:
(1) The lawyer might conclude that the two matters are unrelated and simply proceed with the
new matter without seeking consent.
(2) The lawyer might conclude that there is a substantial relationship between the matters
and material adversity and tell the new client that the firm cannot accept the matter.
(3) The lawyer might disclose the problem to the former clients and ask for consent (if
the conflict is between two current clients, both parties must consent).
(a) The problem with this is it requires you tell former client confidential
information about the client to get informed consent.

20. Conflicts between present client and client who was represented by lawyer’s former firm - If a lawyer
switches firms, how would anyone know the confidences she acquired at that firm. Comment 6, Rule 1.9 -
Lawyer may have general access to files of all clients and can participate in discussions, inference is that
lawyer is privy to all information. Another lawyer may only have access to her own client’s information.
Burden of proof rests on the firm whose disqualification is sought.
a) Rule 1.9(c) - Duty to protect client is indefinite. Under Rule 1.9(c), a lawyer cannot use
information relating to the former representation for the disadvantage of the former client,
except as the rules would permit or generally require with respect to a client or when the
information has become generally known.
(1) Can’t take information taken from the President to use it in your favor (think Michael
Cohen). Probably violated this rule by recording information and then using it. Secret
tape recording is ok, but it is unethical (perhaps). No prohibition to tape a client if
there is a legitimate reason. The rules don’t prohibit it. ABA 330 said that it was
inherently deceptive to record somebody (in the 1960s), but the bar association
withdrew this.
 25
21. When is there a “substantial relationship” between one matter and another: Comment 3 to Rule 1.9
explains: “Matters are ‘substantially related’ for purposes of this Rule if they involve the same transaction or
legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally
have been obtained in the prior representation would materially advance the client’s position in the
subsequent matter.”
22. If the lawyer knows how the former client tends to react to legal disputes (playbook, disposition toward
settlement, attitude about cooperation with discovery requests, etc.) this knowledge may give the lawyer an
unfair advantage in subsequent litigation against the former client. If the prior representation was extensive,
it is more likely to be found to be substantially related to the new matter.

23. Rule 1.11 - Conflicts Issues for Government Lawyers - Same as rule above: we allow government
employees/officials to move from offices even if they have a conflict at new firm, as long as they do not come
into contact with the actual case that is adverse to previous clients. The firm must promise the lawyer is not
going to provide any confidential information to the organization. Must give notice to government
organization.

24. Rule 1.12 - Conflict Issues for Judges, Arbitrators, Mediator, or 3rd Party Neutrals
a) May not participate in the same manner as while a judge, etc. unless all parties to proceeding
give informed consent in writing
b) (b) must not negotiate for employment from an involved party, except law clerks with permission
of judge
c) If lawyer is disqualified under (a) then no one in the firm can take on representation unless (1) lawyer
is screened, gets no part of fee, (2) and there is written notice
d) Arbitrator who was a partisan of a party is NOT prohibited from subsequently representing that party.

25. Representing Economic Competitors. Think about a zero-sum game. Comment 6 to Rule 1.7 explains that
“simultaneous representation in unrelated matters of clients whose interests are only economically adverse,
such as representation of competing economic enterprises in unrelated litigation, does not ordinarily
constitute a conflict of interest and thus may not require consent of the respective clients.” You can represent
economic competitors, unless there is a conflict of interest.

26. Conflicts with Lawyers Personal or Business Interests

a) Rule 1.8(a): Business Transactions between Lawyer and Client - A lawyer should not enter into a
business transaction with a client or knowingly acquire an ownership, possessory interest (adverse
interests), unless
(1) The transaction and terms are fair and reasonable AND in writing;
(2) The client is given opportunity to seek the advice of independent legal counsel on
the transaction (must tell them in writing);
(3) The client must give informed consent confirmed in writing.

b) Rule 1.8(c) - Gifts from Clients - Lawyer can get a gift, but lawyer cannot solicit a substantial gift from
client (non-substantial?). Cannot solicit a testamentary gift or behest.
(1) Lawyer can accept gifts that are stolen?

c) Rule 1.8(j) - Sex with Clients: “A lawyer must not have intimate relations with a client unless a
consensual intimate relationship existed between them when the client-lawyer relationship
commenced”. If you have a prior intimate relationship, it’s not extortive around the legal relationship.
Professor Ross would define intimate relations as any intimate contact. N.Y. allows sex with clients,
except for matrimonial cases or coerced sex.
d) Intimate/Family Relationships with Adverse Lawyers - Comment 11 to Rule 1.7 Risk of confidential
information being revealed. Each client must give informed consent of the relationship before
representation. Disqualification is ordinarily not imputed to members of firms.
 26
VI. FEES
A. Fee Contracts: Regardless of whether the terms are oral or written, hiring of a lawyer creates a
contract. Ambiguities in retainer agreements are generally interpreted against the lawyer.

B. Types of Fee Agreements: Time-based billing or contingent fees

C. Rule 1.5 – Fees: (a) A lawyer must not charge an unreasonable fee. Factors to determine reasonableness include:
1. Amount of time you spend, novelty of case, difficulty of case, and the amount of skill you bring to case;
2. The amount of cases you have taken on;
3. Charges based on locality;
4. Amount of work involved, and results obtained;
5. Time limitations imposed by client;
6. The nature and length of the professional relationship with the client;
7. Experience, reputation, and ability of the lawyer or lawyers performing the services; and
8. Whether the fee is fixed or contingent.

D. Reasonableness: Generally, lawyers have discretion. Just cannot be excessive. Like Matter of Fordham- 227
hours for drunk driving case is excessive.

E. Communications about Fee Agreements - Under Rule 1.5(b), disclosure need not be in writing. New York requires
writing. Lawyer doesn't need to estimate fee. Courts vary in fee modification - some hold that lawyer may not
simply notify client of fee increase. Some cases hold that client consent is required. Nonetheless, communication
concerning the scope of the representation, the basis or rate of the fee, and the expenses for which the client will
be responsible be communicated to the client before or within a reasonable time after commencing the
representation. A lawyer accordingly may start working for the client without such a communication as long as the
client is provided with the written communication concerning fees within a reasonable time thereafter (as soon as
reasonably practical).

F. ***Rule 1.5 requires that any changes in the basis or rate of the fee or expenses be communicated to the
client in writing. A change in rates does not necessarily require a separate written notification to the client, but it
does require at least a clear statement on a bill sent to the client notifying the client of the change and indicating
the new basis or rate of the fee or expenses.

G. Unethical Billing Practices

1. Cannot invent hours not really worked.
2. No profits on costs - a lawyer may not billed for overhead or markup costs.
3. No double-billing: Cannot bill two clients for one period of time.
4. No billing a second client for recycled work.
5. No churning or running the meter- a lawyer may not do unnecessary extra work to justify billing more
hours.
6. No billing clients or the firm for personal expenses or marking up expense receipts.

H. Rule 1.5(c) - Contingency Fee Agreements: MUST BE IN WRITING (AND SIGNED). Must be signed by client and
must state how fee will be determined, and state whether lawyer is paying for expenses or whether client
absorbs the expenses. At the end of the case you must give client accounting about how much money came in,
how much money the lawyer got, client got, and vendor got. Ethical rules impose heightened restrictions on
contingent fees. Cannot charge contingency fee in criminal and domestic relationship case.
1. Limits: The percentage fee must be reasonable. But some states have maximum fees (for example, N.Y.
has ⅓ rule for personal injury and a sliding scale for medical malpractice).
2. “In writing” means something as simple as an email, letter, or memorandum, copy of the lawyer’s
customary fee arrangements.
 27
I. Forbidden Arrangements:
1. Rule 1.5(d): A lawyer cannot ethically use a contingent fee in domestic relations matters. In divorce cases,
contingent fees are forbidden because a lawyer might be tempted to prevent reconciliation of the
married couple in order to recover her fee.
2. Rule 1.8(i): No proprietary interest in the cause of action but the lawyer may assert a lien on client’s
property and secure the lawyer’s fee or expenses and contract with a client for a reasonable contingent
fee in a civil case.
3. Rule 1.8(e): A lawyer cannot provide financial assistance to a client in connection with pending or
contemplated litigation, except:
a) May advance court costs and expenses of litigation, contingent fees: the repayment of
which may be contingent on the outcome.
b) A lawyer representing an indigent client may pay court costs and expenses of litigation on
behalf of the client.
4. Rule 1.8(d): Prior to conclusion of representation, a lawyer must not make or negotiate an agreement
giving lawyer literary or media rights to a portrayal or account based in substantial part on
information relating to representation. *You can get rights after, otherwise it may interfere with
zealous representation, e.g. you want to write an exciting book about trial not accept plea bargain.
5. Rule 1.8(h): Lawyer may not limit their malpractice liability unless each client is independently
represented in agreement. Also, cannot settle claim for malpractice unless client is advised in writing
to seek independent counsel.

J. Rule 1.16(d): Refund All Advance Payment That Has Not Been Earned - Requires lawyer to refund any advance
payment of fee or expense that has not been earned or incurred: you are able to keep the hours you have worked
time your hourly rate (quantum meruit). Classic or general retainer agreements may be treated by the lawyer as
earned upon receipt, because the payment secures the lawyer’s availability but does not depend upon the
performance of any particular task.
1. Collection of Fees: If client refuses to pay, lawyer can sue client. In many jurisdictions, lawyer can
withhold documents prepared by lawyer which client has not paid for. Can also put lien on the
client’s property under Rule 1.8(i).
a) What about fees owed to lawyer who withdraws or is discharged before matter completed? If
lawyer is justified in withdrawing, or discharged without cause, she can recover in quantum
meruit. In contingent fee cases, lawyer cannot recover until case is tried or settled. The attorney
must provide an accounting and return unused fees. If lawyer is discharged for cause, lawyer
loses fee.
 28
K. Dividing Fees with Other Firms or with Non-lawyers (Note: YOU CAN’ T SHARE IF THERE IS A CONFLICT OF
INTEREST, if there was a conflict you would need a conflict waiver). A lawyer may be paid for referring a case to
another lawyer if he or she shares the financial and ethical responsibility for the representation. See Comment 7 to
Rule 1.5.
1. Rule 1.5(e): A division of a fee between lawyers who are not in the same firm may be made only if:
a) The division is in proportion to services performed by each lawyer or each lawyer assumes joint
responsibility for the representation,
(a) The client agrees to arrangement
(b) Total fee is reasonable
(2) Non-Lawyers: Generally, a lawyer cannot share fees with non-lawyers. (Rule 5.4(a)) but
a lawyer or firm may include non-lawyer employees in a compensation or retirement
plan, even though the plan is based in whole or in part on the profit-sharing
arrangement. Rule 5.4(a)(3).
(3) Rule 1.8(f) - Third Party Compensation: “A lawyer must not accept compensation for
representing a client form one another than the client unless
(a) 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
(4) Rule 1.15(a) - Custody of Client Funds: Your IOTA account should only include your own
money. If you hold client’s legal fees, it must be in a separate client trust account
(checking account that is established by the lawyer to hold a client’s money). When a
lawyer is in possession of a client’s funds, the lawyer owes the client a fiduciary duty to
protect, safeguard, and segregate this money from the lawyer’s own personal business
accounts. A fiduciary is a trustee with scrupulous obligations of trust, good faith, and
candor. If you borrow one penny for one minute you will be disbarred. You must keep
records demonstrating, when you got the money, when it went out, and the current
balance. Advanced fees that have not been worked for must go in that account. Upon
termination, you must return to client or third party any money that belongs to them or
if there is a settlement it must quickly come in and go to the client. When there is
disagreement at all about escrow funds, the lawyer may not disburse the funds until the
dispute is involved by the court or by all parties by mutual consent. Lawyers have a
“retaining lien” on the file.
(a) You must maintain two distinct forms of records: (1) Have a general ledger (it
must be clear), money coming in and out (date, description, amount, purpose);
(2) For each client, have a separate ledger (date, description, amount, purpose).
The total of each client’s ledgers should add up to the general ledger.
(5) Rule 1.15(d) - Prompt Delivery of Funds: Upon receiving funds in which client has an
interest, lawyer must promptly notify and deliver what they are entitled to. Under (e) - If
there is a dispute, lawyer must distribute any money not in dispute. If it is not in a
dispute, you do not need to distribute the money (must go to court and get an
interpleader even if this was a phony statement).
(6) Must also provide an accounting of all of their funds.
 29
VII. BEING A GOOD PERSON IN THE ADVERSARY SYSTEM
A. In General: Lawyers must balance their prime directive: to advance client’s interest within the bounds of the
law, with their duties of fairness to all parties and as “officers of the court.”

B. Can a good lawyer be a bad person? One commentator expressed the view that a lawyer who interposes valid but
technical defenses to defeat an otherwise valid legal claim may be acting immorally. Some of these things you may
not only be permitted to do but required to do as a matter of law. Under Rule 1.2(d), you cannot conduct a
criminal or fraudulent act.

C. Investigation Before Filing Claim

1. FRCP 11: Prohibits frivolous claims.
2. Rule 3.1: A lawyer must not bring/defend/assert a claim without a non-frivolous basis in fact and law,
including good faith. She cannot present frivolous claims, defenses, or motions. In criminal proceeding,
lawyer for the defendant in a case that could result in incarceration may defend the proceeding as to
require that every element of the case be established. Frivolous means that you do not have a basis on
law and fact (so if you have good faith, that might be enough, as well as a reasonable legal approach).
a) Comment 2 to Rule 3.1: Not frivolous if the facts haven’t been fully substantiated. Lawyers must
make good faith arguments even if they believe client won't prevail - she does not have to make
a complete factual or legal investigation before asserting a claim, defense or motion.
(1) The action is frivolous if the lawyer cannot make a good faith argument on the
merits or support the action taken by a good faith argument for an extension,
modification, or reversal of existing law.
b) Parker: The court held that a “scintilla of evidence” is sufficient to withstand sanctions and
be considered as non-frivolous under Rule 3.1 which includes even a client’s say-so.
c) Jimenez: Court sanctioned an attorney in a case where client claimed she was discriminated
against but falsified emails. The emails had mistakes in spelling, which were not consistent with
a big corporation writing them. Holding: Under Rule 3.1 and Rule 11, the lawyer failed to
subject his clients to “rigorous questioning” and for failed to view original emails, when it
should have been apparent the documents provided by the client were forgeries”
3. Differences between Rule 3.1 and FRCP 11:
a) Sanctions:
(1) Violation of Rule 3.1 is disciplinary action
(2) FRCP 11 both disciplinary action and by the judge in the civil action. (can also be subject
to collateral estoppel charge, which says they lost in front of the judge and they are
imposed with a sanction)
b) Safe Harbor:
(1) FRCP 11: Safe harbor provision. If an opposing party makes a motion complaining that a
lawyer has violated FRCP 11, the lawyer may withdraw the allegedly frivolous pleading
within 21 days and suffer no sanction (other than having to pay the attorney's fees that
the opposing party incurred for making the motion)
 30
D. Rule 3.3 - Candor to the Tribunal: A lawyer must not knowingly:
1. (a)(1)- Make a false statement of fact or law to a tribunal; if they accidentally do they must fix it!
(lawyer can just say, “I disavow”). Any factual assertions to the tribunal (“my client is ill”) must be based
on her knowledge that she knows is true or believes to be true on the basis of a reasonably diligent
inquiry.
2. (a)(2)- Fail to disclose to the tribunal legal authority in the controlling jurisdiction
3. (a)(3)- Offer evidence that lawyer knows to be false. A lawyer cannot participate in misleading the
court even when the client insists.
4. (b)- If a lawyer knows that a client or person intends to engage in criminal or fraudulent conduct related
to the proceeding, lawyer must take reasonable remedial measures including disclosure to the tribunal.
a) “Reasonable remedial measures” could mean anything. If a witness says something you know
is a lie and if you say, “I disavow”, you may have to tell the court why when they ask (judging
saying contempt and you asking to then stay the contempt). Under Rule 1.6(b)(6), confidential
matters can be disclosed pursuant to court orders. But if it’s your client, it may be protected
under attorney-client privilege.
b) Nix v. Whiteside: Lawyer refused to cooperate with defendant in presenting perjured
testimony at trial. Defendant argued he had a constitutional right to lie. Supreme Court held
that if lawyer says he had actual knowledge, no 6th Amendment violation.
c) What if a non-client third party testifies falsely? U.S. v. Parse: Defendant’s counsel allegedly
knew that juror falsified identity. 2nd circuit held that counsel waives right to move for new trial
if counsel actually knew about the misconduct before jury deliberations. In this case,
defendant’s counsel only suspected before voir dire and knew after jury verdict.
d) Can lawyers protect themselves and their clients by deliberately not knowing all the facts?
NO, lawyer may not willfully or deliberately be blind or ignorant to facts.
e) Lawyers Duties if Client Intends to Mislead the Court w/o Lying:
(1) Partial Truth: A partial truth is a statement that may literally be true but that deceives
another person by omitting relevant information or twisting information in a way that
distorts it.
(2) Perjury: Bronston v United States - Supreme Court declined to interpret the federal
perjury law to prohibit intentionally misleading non-responsive statements. The rules
require a more exacting degree of truthfulness - lawyers must correct witness’
fraudulent conduct. (Rule 8.4(c)). There is little case law with respect to whether
lawyers can be disciplined because they or their witnesses mislead courts with partially
true but deceptive testimony.
(3) Correcting the witness’ fraudulent conduct can include dissuading or convincing
the client to clear up the mistake/false testimony.
5. State Rules: Many states adopted Rule 3.3. D.C says a lawyer who is unable to dissuade client from giving
testimony she KNOWS is false may allow client to give testimony in narrative fashion. New York says that
attorney doesn't have duty to correct false testimony if client lied under attorney-client privilege.
6. Balancing Values: Every jurisdiction must balance lawyers investigating thoroughly to well represent
their client, preserving confidentiality, and preventing lawyers from knowingly presenting false evidence
or deceiving factfinders.

7. Coaching the Witness

a) Rule 3.4 - Fairness to Opposing Party and Counsel: You can coach a witness to make them
better BUT a lawyer must not (b) falsify evidence, counsel or assist a witness to testify falsely, or
offer an inducement to a witness that is prohibited by law.
(1) Knowledge standard applies so there is an appetite for risk in preparing witnesses
and offering evidence.
b) Restatement 116, Comment b: Preparation could include helping them look better with
demeanor, helping with recollection, refreshing recollection. You may not knowingly help client
or witness testify falsely.
 31
VIII. EVIDENCE
A. Evidence of Crimes - Rule 3.4(a) a lawyer must not or assist another in unlawfully obstructing access to
evidence or unlawfully alter, destroy or conceal items with potential evidentiary value.
1. Note that not all concealment or destruction of evidence is prohibited, just unlawful concealment of
those that have potential evidentiary value. The duty not to conceal or destroy objects or documents
begins at different times during proceedings dependent on state law. The ban applies if some other law
makes the concealment or destruction unlawful. (i.e. conduct that violates criminal obstruction of justice
statues, court orders, case law, etc.) or if the lawyer is under a present obligation to disclose the evidence
(i.e. the evidence is subject to a discovery requires which has not been objected to or is the fruit or
instrumentality of a crime.)
2. State v. Olwell: The client, who was charged with murder, gave a knife to his attorney. Holding: A physical
act is not privileged; the court concluded that attorney could have kept knife for a reasonable amount of
time to investigate, but after should have turned it over to prosecution at his own initiative. In scenarios
like this state should not disclose where evidence comes from in front of jury.
3. In Re Ryder: An attorney cannot conceal evidence even for a good purpose.
4. People v. Meredith: Defendant helps rob and kill victim and then throws victim’s wallet into trash—
Defendant tells lawyer about location of trash, and lawyer directed investigator to recover wallet, turned
it over to police and withdrew his counsel. Prosecution called the investigator to testify where he found
it. Holding: Testimony did not violate attorney-client privilege because by removing the wallet, he
prevented police from finding it and so the only way they could get information was to call him as a
witness. Furthermore, the prosecutor properly protected any existing privilege by not asking the
investigator, in the presence of the jury, to reveal that he was employed by the former defense attorney.
5. Morrell v. State: Defendant’s friend found a written kidnap plan and gave it to defendant’s lawyer.
Lawyer returned to friend and assisted friend in giving to police. Defendant claimed lawyer violated 6th
Amendment. Holding: Alaska Supreme Court applied the rule from Olwell and held that the attorney had
a duty to turn over the plan to the prosecutor, even without having been asked for it so assisting the
defendant’s friend in turning over a kidnap plan was not a violation of the 6th Amendment.

B. Duties to Responding to Discovery Requests: Once documents or other evidence have been requested through
discovery procedures, attorneys involved in civil litigation are subject to court rules that require them to either
comply with or object to discovery requests, or face sanctions.
1. Rule 3.4: A lawyer must not (c) knowingly disobey discovery obligation except for refusal open refusal
arguing no valid obligation exists; (d) make a frivolous discovery request or fail to make no effort to
comply with other’s requests.

C. Taking Evidence from Clients: A lawyer may take physical or electronic materials (which may or may not later
turn out to be evidence) from a client subject to the following highly oversimplified principles:
1. A lawyer cannot take possession of items that are contraband, fruits or instrumentalities of crimes such as
drugs and guns, unless the items are turned over to the police or other law enforcement immediately.
(Some argue that the lawyer may be allowed to engage in “non-destructive testing” of the items. If the
item is merely potential evidence, the lawyer must LATER turn that evidence over to the adversary if there
is a subpoena or document demand (or other form of legal demand) made in the case or even litigation
and subpoena or document demand is served upon the client or the lawyer.
2. In some cases, a lawyer may not even take possession of the items because federal or state law does
not recognize an “intermediary exemption” rule which would allow the lawyer to have possession of the
items, i.e., child pornography.
3. Attorney-client privilege does not apply since it is an act, not communication. However, in criminal
cases, a defense attorney who voluntarily performs the above “turnover” of evidence to law
enforcement authorities is given the “anonymous stipulation” at trial so that the lawyer is not later
disqualified as a witness
4. But, lawyers can take into their possession “mere evidence” or “mere potential evidence” such as
documents, emails, electronic data. And lawyers have a duty to advise clients under Rule 1.1 and Rule
1.3 of the duty to maintain and not “spoilate” evidence.
 32
IX. CANDOR TO THE TRIBUNAL
A. Duty to Disclose Adverse Legal Authority
1. Under Rule 3.3(a)(2), an attorney must “disclose to the tribunal legal authority in the controlling
jurisdiction to the lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel.” If a lawyer learns before the conclusion of the proceedings that a piece of evidence he offered
was false when admitted, he must take reasonable remedial measures.
2. May Can A Lawyer Be Disciplined for Overlooking A Directly Adverse Case? Generally, no because
prohibition is “knowingly.”

B. Disclosure to the Tribunal - Rule 3.3(d): In ex parte proceeding a lawyer must inform the tribunal of all materials
facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts
are adverse.” This duty overrides Rule 1.6’s duty. However, lawyers are not required to reveal information
protected by attorney-client or work product privileges.

C. Rule 3.5: Impartiality and Decorum of the Tribunal

1. “A lawyer must not (a) Seek to influence a judge, juror, prospective juror or other official by means
prohibited by law; (b) communicate ex parte with such a person during the proceeding unless
authorized to do so by law or court order…”
2. Can a lawyer ask judge a procedural question? The book says you can, but Professor Ross is unsure.
3. Should lawyers not befriend judges? This is okay, but there must be no communications relating
to particular proceedings.

D. Lawyers Comments to the Press (Reporters)

1. Gentile case: Defendant’s lawyer held a press conference and said evidence would show his client was
innocent and that detective was responsible for the theft. Court held that lawyers may take reasonable
steps to defend a client’s reputation and reduce the adverse consequences of indictment and the
statements did not prejudice the trial
2. Rule 3.6 - Trial Publicity: (a) A lawyer who is participating or has participated in the investigation or
litigation of a matter must not make an extrajudicial statement (outside of court) 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.
a) What does “substantial likelihood” know? This is a debatable, subjective threshold to meet.
b) EXCLUDES TELEVISION LAWYERS. MUST BE IN INVESTIGATION OR LITIGATION OF A MATTER.
c) (b) 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.”
 33
E. Impeachment of a Truthful Witness
1. If a lawyer believes opposition witness is truthful, can she cross-examine him in a way that suggests he
is lying? Rules don't address this, but generally a lawyer’s belief or knowledge of witness telling a truth
doesn't preclude cross-examination. Restatement 106, comment C. In part, the rationale is that the
cross-examination is undertaken merely to test the truth of the prosecution’s case.
2. Rule 4.4(a): A lawyer may not use means that “have no substantial purpose other than to embarrass,
delay, or burden a third person....” The tactic of discrediting an honest witness, however, is not
undertaken merely to embarrass or burden the witness but to make that witness’ testimony appear
false.

F. Statements by Lawyers During Jury Trials

1. Rule 3.7 - Lawyer as Witness: (a) You cannot be a lawyer and a witness in the same case (unless
testimony relates to an uncontested issue, related to nature and value of legal services or disqualifying
lawyer would pose substantial hardship); (b) A lawyer can be in a trial in which another lawyer in her
firm is called as a witness, unless precluded by Rules 1.7 or 1.9.
2. Comment 3 to Rule 8.4: “A lawyer who, in the course of representing a client, knowingly manifests by words or
conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or
socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice.
Legitimate advocacy respecting the foregoing factors does not violate paragraph
(d). A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not
alone establish a violation of this rule.”
3. Rule 3.4(e) - Fairness to Opposing Party and Counsel: “A lawyer must not … in trial, allude to any matter
that the lawyer does not reasonably believe is relevant or that will not be supported by admissible
evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a
personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant
or the guilt or innocence of an accused...”

G. Rule 3.9 - Advocate in Non-Adjudicative Proceedings: Lawyer representing client before a legislative body
must disclose her appearance is in a representative capacity.
1. Comment 3: Rule does not apply to negotiations with or inquiries to government agencies that are
unconnected to an “official hearing or meeting.
 34
X. COMMUNICATIONS WITH LAWYERS AND THIRD PERSONS
A. Rule 4.1 - Truthfulness in Statements to Others: (a) Cannot make false statement to third party; (b) Lawyers have
duty to correct misstatements and frauds by clients when your services were used for those purposes (creates a
duty to disclosure information to third parties in order to avoid assisting a client’s fraudulent act.”
1. Duty of Truthfulness in Negotiations - Comment 2, Rule 4.1: Statements in negotiations such as
estimates of price, party’s intentions as to an acceptable settlement, opinions, values, qualitative
statements are not considered statements of fact applicable.

B. Rule 3.4(e) - Fairness to Opposing Party and Counsel: “A lawyer must not … in trial, allude to any matter that the
lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert
personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the
justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an
accused...”

C. Cases
1. Apple Corp v. Int’l Collectors Society: Public or private lawyers use of an undercover investigator to
detect ongoing law violations is allowed, especially where it would be difficult by other means.
2. In Re Gotti: Lawyer called a company pretending to be a chiropractor and doctor. Court said he
violated the rule- doesn’t apply to government prosecutors, they do apply to private prosecutors. If you
are not working for CIA or prosecutor you cannot lie, and you cannot hire someone else to do it for you

D. Social Media: You can communicate but cannot deceive. You also cannot communicate with a prohibited person
(judge, juror, represented person)
1. NYCLA Ethics Opinion 745 - Can lawyers advise clients what to post/take down? YES - “New York
attorneys may advise clients as to (1) what they should/should not post on social media, (2) what existing
postings they may or may not remove, and (3) the particular implications of social media posts, subject to
the same rules, concerns, and principles that apply to giving a client legal advice in other areas.

E. Rule 4.4(b) - Inadvertent Disclosure: “A lawyer who receives a document or electronically stored information
relating to the representation of the lawyer's client and knows or reasonably should know that the document or
electronically stored information was inadvertently sent must promptly notify the sender.”
1. State law determines whether required to destroy or not. Depends on if someone is careless and made
no precautions.
2. Comment 2 - Lawyers sometimes receive a document or electronically stored information that was
mistakenly sent or produced by opposing parties or their lawyers. A document or electronically stored
information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is
misaddressed or a document or electronically stored information is accidentally included with information
that was intentionally transmitted. If a lawyer knows or reasonably should know that such a document or
electronically stored information was sent inadvertently, then this Rule requires the lawyer to promptly
notify the sender in order to permit that person to take protective measures....”

F. Metadata: Electronically embedded information about documents, which can be viewed using special software.
Can adversary examine metadata on a document sent by you? Some bar opinions argue that you can look for
metadata, but that you cannot use “extraordinary” means to search out hidden data.
 35
G. Rule 4.2 - Communications with Represented Person: “In representing a client, a lawyer cannot communicate about
subject of 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.”
1. Comment 3 - Still applies, even if client contacts you.
2. Restatement 99, Comment C - “A lawyer who does not represent a person in the matter and who is
approached by an already-represented person seeking a second professional opinion or wishing to
discuss changing lawyers or retaining additional counsel, may, without consent from or notice to the
original lawyer, respond to the request, including giving an opinion concerning the propriety of the first
lawyer's representation.”
3. Can lawyer have her paralegal or investigator call the represented party? NO. Rule 8.4(a) states that a
lawyer may not attempt to violate any rule through acts of another.
4. May the lawyer suggest that his or her client call the represented person directly? YES. Two people who
are represented by lawyers may talk with one another without their lawyers’ permission. But State bar
ethics committees are divided as to whether a lawyer may suggest that a client call a represented
adversary in connection with the case. In 2011, the ABA’s ethics committee concluded that Rule 4.2,
under certain circumstances, allows a lawyer to recommend that a client contact a represented opposing
party (but the lawyer should advise his or her client to encourage the other party to consult with counsel
before making admissions, disclosing confidential information, etc.)

5. What if a lawyer wants to contact an employee of a corporation represented by another lawyer?

Lawyer cannot speak to an employee of a corporation if the corporation has a lawyer and the
employee consults with the orgs lawyer OR the employee's actions are related to the legal matter at
bar. But you can speak to witnesses who worked at the company. (Comment 7, Rule 4.2)
a) Messing, Rudavsky, Weliky - Different courts have assumed different positions as to Rule 4.2’s
application in the context of contacting employees of represented organizations. Following the
Restatement and the N.Y. Court of Appeals, the Messing court adopted an interpretation of
Massachusetts’ Rule 4.2 which bans contact only with those employees who have the authority
to “commit the organization to a position regarding the subject matter of representation.”

6. Rule 4.3 - Communications with Unrepresented Person - You can communicate with them but cannot
pretend to be disinterested. Lawyer should make reasonable efforts to correct misunderstanding if
unrepresented person misinterprets lawyers’ role (e.g., I am not your lawyer, etc.) Lawyer must not
give legal advice to unrepresented person, if lawyer knows or should know of conflict w/ current client

7. Rule 4.3 - Communications with Organizations - In dealing with organizations’ directors, officers,
employees member, shareholders, etc., lawyer must give Miranda warning.
 36
XI. DUTIES OF PROSECUTORS
A. Rule 3.8 - Duties of Prosecutors
1. Prosecutors must…
(a) NOT/REFUSE TO prosecute a charge they know is unsupported by probable cause;
(b) Make reasonable efforts to assure accused has been advised right to and provided counsel;
(c) Not obtain a waiver of important pretrial rights from an unrepresented person;
(d) Make timely disclosure of evidence (Duke Lacrosse case - DA withheld exculpatory DNA evidence for
6 months and then concealed it in 1800 pages of lab date- he was disbarred and imprisoned for 1 day);
(e) Not subpoena defense attorneys if they believe information is privileged and if information is available
from other sources and is not essential information;
(f) Unless necessary to inform public, refrain from making extrajudicial comments that have a substantial
likelihood of heightening public condemnation of the accused;
(g) Disclose new and credible material evidence that creates a reasonable likelihood that a
convicted defendant did not commit an offense;
(h) Remedy a conviction if she knows person was convicted for a crime they didn't commit.

B. Rule 8.4(d) - It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the
administration of justice
1. Comment 3 - “A lawyer who, in the course of representing a client, knowingly manifests by words or
conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual
orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the
administration of justice.
 37
XII. ADVERTISING AND SOLICITATION
A. Rule 7.2 - Advertising
1. (a) Lawyers are permitted to advertise through written, recorded or electronic communication,
including public media . . . (c) must include name and address of at least one lawyer in the firm.
2. (b) Cannot pay people for cases you got as a result of their advertising, but you can (1) pay reasonable
costs of advertisements, (2) pay legal services plan or nonprofit qualified lawyer referral service, (3)
pay for a law practice, (4) Refer lawyers to other lawyers if (i) not exclusive (ii) client informed.

B. Rule 7.1 - Cannot provide false or misleading statements concerning a lawyer’s services: it is false or misleading if it
contains material misrepresentations of material fact or omits a fact necessary to make the statement considered
as a whole not materially misleading.
a) E.g., Lawyer advertising for getting the highest verdict for slip and fall but failing to mention the
award got overturned. The holding was a false advertisement.
b) E.g., Lawyer who said he had a 98% winning streak on overcoming criminal charges.
2. Bates v. State Bar of Arizona- The Supreme Court held that lawyer advertising is commercial speech
protected by the First Amendment, noting that the ban on advertising originated as a rule of
etiquette and not as a rule of ethics.
3. N.Y. Amendments to former disciplinary Rules 2-101: The Second Circuit prohibited client testimonials,
portrayals of judge's, irrelevant advertising, and the use of trade names violate 1 st amendment. The
court upheld a 30-day moratorium on contacting accident victims.

C. Rule 7.3 - Solicitation of Clients: Lawyer must not solicit professional employment when a significant motive is
pecuniary gain. Under Rule 7.3, in-person, live telephone, and real-time electronic solicitations of a prospective
client are prohibited when the lawyer’s significant motivate is her own compensation.
1. You can solicit former clients.
2. Can do it for legal aid, because you’re not doing it for financial gain.
3. Cannot go to the scene of an accident (ambulance chasing)
4. Can solicit another lawyer and ask to work on the case with them Rule (7.3(a)(1)) or your family under
Rule 7.3(a)(2).
 38
XIII. INTRODUCTION
B. Ethics, Moral, Professionalism: The difference between morals and ethics is that lawyers are
licensed professionals governed by a set of rules for ethics.
1. Ethics is a set of rules of how lawyer should act.
2. Morals are fundamental values.
a) Metrics: Rules for the regulations by licensing authorities and courts.
3. Professionalism: Lawyers must conduct ourselves professionally.
4. Golden rule: If the rules allow you to do it, you do it! The rules allow you to advance your client’s
interests within the bounds of the law. Don’t hesitate to boldly advocate for something so long as the
laws permit it. You can stretch the laws and lawyers work around a set of rules. For example, you can evict
a little old lady into the cold or prepare a witness in advance to give a specific type of testimony.
a) New York only adopted the Model Rules in 2009. Regulations are created by lawyers, licensing
authorities, and courts. If you break a rule, you will be punished. It is as simple as that.
b) Can you buy a story and bury it? You can probably do this, but there is a question about whether
it is ethical. See Michael Cohen. He tried to assert privilege over everything, but dropped it.
Read more about Cohen (as the professor bases his exams on current events).
C. Three Concept Areas:
1. Personal capacity: Every time a lawyer acts, he or she is acting in self-interest.
2. Professionalism: Am I following the rules governing the profession? Reputation is everything, so we must
act in a professional manner and abide by rules of profession.
3. Fiduciary duty: You represent a client and it’s a position of trust; the fiduciary has an affirmative duty to
prevent the client from being put in harm’s way. Justice Cardozo had described “fiduciary” is the
highest possible duty to those who trust you.
D. Sources of Authority for Lawyer Regulation:
1. Sources of law: Criminal law, civil law, court decisions, court rules, bar opinions, restatements,
professional conduct rules.
2. Institutions: Federal and state courts, lawyer disciplinary agencies, legislatures, prosecutors, malpractice
insurers.
a) If there is an inconsistency among sources, the courts call the final shots.
E. Model Rules of Professional Conduct:
1. ABA: A private non-profit organization that is the principal drafter of the model rules of professional
conduct.
2. Not law: Just a “model” for states to use in drafting their own ethics: different states can choose which ones
to use. Violation of rules is not always direct basis for civil or criminal liability but may be a factor.
3. State responsibility: Lawyers must comply with the rules of the state bar to which they are admitted.
The highest court in each state typically has the primary responsibility for regulating lawyers in that
state. State supreme courts adopt ethics codes; these codes are court-made law.
4. Federal courts and agencies: Such as the IRS, ICE, who have their own rules which are typically similar
in nature to the ABA model rules.