LEGAL PROFESSION OUTLINE

Background
1. Preamble – “honest dealings with others”
a. Rules are self-governing – can only be punished for violating the rule (not the comments), BUT
judges rely on the comments and preamble
b. Provides framework for resolving ethical conflicts and dilemmas
c. The rules aren’t meant to be used for malpractice, only disciplinary matters, but courts still cite the
rules as evidence of violation of fiduciary duty
d. (Not in preamble) Violations of ethical rules are not grounds for an appeal (Ineffective assistance is.)

2. What rules affect lawyers?

a. Common Law
b. Agency Law – duty to act in my client’s best interests
i. Fiduciary duties
c. Tort – malpractice
d. Contract – relationship should be written, scope, atty fees
e. Criminal law – aiding and abetting, fraud, filing false statements
f. Evidence – ACP
g. FRCP – Rule 11 and sanctions
3. Advisory opinions – based on a question that keeps arising or a specific question
a. Not force of law, but courts will look to them.
b. State opinions carry more weight than ABA, since we practice in Ohio and ABA isn’t anywhere

4. MR 1.0 Definitions
a. Belief – actual belief of fact or it can be inferred from circumstance
i. Objective – inferred; Subjective – actual
b. Informed Consent – Atty must make reasonable efforts to ensure client possesses all the information
reasonably adequate to make an informed decision regarding a course of action; requires
communication
i. Includes an explanation of the material risks of a certain course of action and reasonably
available alternatives
c. Knowingly - actual knowledge of the fact in question. A person's knowledge may be inferred from
circumstances.
i. Subjective standard with objective twist at the end.
d. Reasonable - conduct of a reasonably prudent and competent lawyer
e. Reasonably should know - lawyer of reasonable prudence and competence would ascertain the matter
in question
f. Substantial - material matter of clear and weighty importance
g. Tribunal – includes binding arbitration

Example:
1-2 During negotiations, a lawyer on the other side agrees on behalf of his client to pay an extra $50,000 b/c
the land is zoned for ten lots. Martyn & Fox knows that the lawyer is mistaken. Should Martyn & Fox
close the deal without correcting the mistake?

Taking advantage of this situation could result in litigation down the road. Client wants the deal done and done
properly; doesn’t want future litigation. “Sin of omission?” Might not be breaking a rule b/c we didn’t supply the
fact, but practically, when they find out they will sue. But what about my client? – Need to talk to client first and
get them to sign off on this. Gen Rule – if you didn’t do anything to mislead the other party, you don’t have to
disclose... but this isn’t practical.
a. Attorneys have no ethical duty to correct an adversary about a mistake of LAW. Could seek
client approval, but won’t get; informing other side could breach confidence
 b. A mistake of fact could lead to future litigation – advice client of this and let them decide how to
proceed

Advising client about illegal activities?

1. Practically, as a counselor, you could advise client of legal and non-legal ramifications of their actions.
Additionally, you could be buying a lawsuit. “I don’t even know the answer to that question.”
2. I cannot, as your attorney, participate in anything fraudulent or illegal. Ethics rules are clear that you can’t
aid or abet in these situations. It’s not a lecture, but a conversation you have with your client.
3. Reasonableness at the time is typically the standard – was it reasonable to not look deeper into something?
Was it reasonable to investigate tax returns after client asks that question

1. MR 8.4 – Misconduct
a. Misconduct:
i. Violate or attempt MRPC, knowingly assist or induce someone else to – can’t hire someone
to do something unethical if I can’t
ii. Commit crim act that reflects adversely on atty honesty, trustworthiness, fitness as atty
(doesn’t have to be client-related)
iii. Engage in conduct involving dishonesty, fraud, deceit or misrepresentation (personal too)
1. Omissions are just as bad!
iv. Conduct prejudicial to admin of justice – typically litigation related; catch-all
v. State or imply ability to bribe gov’t official or try to
2. MR 8.1 – Bar Admission
a. Can’t knowingly make a false statement of material fact or fail to disclose
i. OFTEN failure to disclose, omissions are treated the same as commissions
b. Inquiry into bad application would focus on intent – honesty, intent, trustworthiness
i. BUT, inadvertent still shows lack of competence, diligence
ii. Admit, show remorse, What did applicant learn from it, what has she done since, what’s she
going to do?
iii. Won’t tolerate behavior by an applicant that wouldn’t be tolerated by a member of the bar
c. In re Converse – douche bag during law school, significant problem with authority; totality of events
d. In re Acton – many tickets; said was too busy and distracted – not a good trait for atty
i. Mitigating factors – ADD? Prof. will make only reasonable accommodation
ii. Aggravating factors – too laid-back, fiscally irresponsible

Lawyers and Other Professionals: Professional Licensure

Lawyers are the only professionally licensed group regulated by the judicial branch of government.
• Courts apply criteria like honestly, respect for law, and ability to act professionally
• Concerns about ability to act honestly may be evidenced by a crim record, academic misconduct, or neglect of professional or
financial obligations.
• Successful treatment for alcohol – two DUIs during law school with failure to accept responsibility for alcohol abuse
precluded applicant from admission until he demonstrated a sustained period of compliance with alcohol treatment programs;
3 years sobriety not enough time to establish relapse wouldn’t occur)
• 1st amendment issues – Officials may ask about membership in specific associations if it is relevant to fitness to practice.
Commie party membership may indicate a shared belief specifically contrary to a lawyer’s ability to represent clients.
However, can’t be asked to list all memberships.
• White racial supremacy group – Panel focused correctly on conduct, rather than his beliefs; admitted he’d follow RPC when
he felt like it. Denied admission b/c the public and the bar are entitled to be treated fairly and decently by attorneys.
• Residency and citizenship requirements are not allowed. Can impose restrictions, as long as they apply equally to residents
and non-residents.
Common grounds for discipline are found in lawyer codes adopted by highest court: incompetence, conviction of a crime, or other
professional misconduct.

Professional Discipline – The Self-Regulating Profession

Two Steps: (1) Did atty violate the rules? (2) If so, do we have to report?

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 1. MR 8.5 Authority; Choice of Law
a. Subject to discipline in juris where admitted AND in juris where located at the time of the offense
(double spank)  OH atty in IL, subject to both.
b. Rules of jurisdiction where tribunal sits (if court-related); non-court - rules where conduct
occurred or if the predominate effect is in diff juris., there; unless atty reasonably believed his
conduct conformed to the rules of the jurs.
2. MR 8.3 Reporting Misconduct
a. “Knows” another atty committed violation of MRPC that raises “substantial” question re: atty’s
honesty, trustworthiness, fitness  must inform
i. “Knows” = actual knowledge, which may be inferred. Whether a reasonable lawyer
under the circumstances would have formed a firm opinion that the conduct in question
had MLTN occurred
ii. “Substantial” = material matter, clear and weighty importance;
iii. Has to do with seriousness of offense, not the evidence showing the possible problem
iv. Voluntary disclosure in good faith is always permissible
b. Must report a judge for same
c. Confidentiality to client trumps duty to report violations
3. When determining if we have to report – what do we actually “know”? Is it substantial?
a. We should tell to self-report, before we turn in if we must report it
b. If they come for legal advice – now this is protected, and trumped by 1.6
4. What if previous atty stole from current client? Do we report?
a. We know, and substantial. BUT, we need informed consent from client due to R1.6
confidentiality
5. MR 5.1 Responsibility of Partners, Managers and Supervisor Attys
a. Shall make reasonable efforts to ensure all attys conform to MRs
i. Potential vicarious liability for subordinates
b. Direct supervisors over another atty – take reasonable efforts
c. Shall be responsible for another’s violation if:
i. Orders, or with knowledge ratifies conduct (explicitly or implicitly)
ii. Partner / manager knows of conduct but fails to mitigate or take remedial actions over a
direct subordinate
6. MR 5.2 Responsibility of Subordinate Atty
a. Abide by the rules; not in violation when acting in accordance with supervisory lawyer’s
reasonable resolution of arguable question of professional duty
7. Busch: missed deadlines, lied to court and client. Atty claimed ADD – mitigating factor, but doesn’t
compel an atty to lie.
8. Factors to be considered by the court in determining the appropriate sanction:
a. The duty violated
b. The lawyer’s mental state
c. The actual or potential injury caused by the misconduct
d. The existence of aggravating and mitigating factors.

LAWYERS & CLIENTS: Fiduciary Duties

A lawyer who agrees to represent a client agrees to be bound by five basic fiduciary duties (from substantive law
– agency law; K):
1. Client Control – over goals of rep., decision making authority is almost always on the client; except
discretionary issues such as interrogatories, objections, etc.
a. Big Control issues – whether to settle, whether client will testify
2. Communication – client giving informed consent
3. Competence
4. Confidentiality
5. Conflict of Interest Resolution – recognizing and avoiding

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How do these duties fit in with our ethics? These are BOTH fiduciary duties and ethical; ethical duties
incorporate and reflect the fiduciary duties.

CONTROL & COMMUNICATION

1. Four Themes:
a. Clients trust in lawyers, giving us power and making us fiduciaries
b. Authority vested in a lawyer to represent a client always remains subject to client’s control over
the goals of the representation (R1.2)
c. Lawyers assume a fiduciary duty of communication to assure that the client’s interests are
properly identified and well served.
d. Law governing lawyers provides multiple remedies when professional duties of control or
communication are breached.
2. MR 1.2 Scope of Representation and Allocation of Authority (CONTROL)
a. Shall abide by client’s decision w/ objectives of rep. and shall communicate (1.4) w/ client about
how to pursue objectives. May take such action on behalf of client as impliedly authorized to
carry out representation.
i. Shall abide by client’s decision to settle
1. MUST!!
ii. Crim Action – shall abide by client’s decision, after consulting, as to plea, waiving jury,
and whether client will testify
b. Representation, including by appointment, doesn’t constitute an endorsement of their beliefs
c. May limit scope if reasonable with informed consent
i. This poses issues: client needs to know what is and isn’t covered; ghostwriting and FRCP
11 requiring signature by attorney. Violating FRCP = violating MRPC
3. MR 1.4 COMMUNICATION
a. Lawyer shall:
i. Promptly inform of any decision or circumstance where client’s informed consent is
needed
ii. Reasonably consult about the mean by which to accomplish client’s objectives
iii. Keep client reasonably informed about the status of the matter
iv. Promptly comply with reasonable requests for info
v. Consult w/ client re: relevant limitation on lawyer’s conduct when lawyer knows client
expects assistance not permitted by MRPC or law
b. Explain a matter to extent reasonably necessary for client to make informed decisions
4. Corps. and orgs. – need to identify who controls the decision-making for the entity; best interests of the
corp over the individual constituents (more later)
5. Machado – client in jail, bankruptcy, spent retainer at direction of someone else. Atty failed to abide by
Client’s decision to abide by decision to file bankruptcy and failed to consult with Client re: the ∆ in the
scope of representation - violation of R1.2 (control). Atty did not keep Client reasonably informed about
status of the bankruptcy and failed to inform Client re: change the scope of representation = violation of
R1.4(a) (communication).
a. Finding of bad faith or corrupt motive is not necessary to constitute a professional misconduct
violation. May exacerbate sanctions.
6. Informed Consent – failure to obtain in Machado led atty to mistake nature and scope of rep.
a. Precondition to receiving instructions (settle, plea), limiting scope, disclosing or using
confidential info, resolving conflicts, means (litigate, arbitrate, stipulate), request of info from
client, when atty can’t give expected assistance b/c of legal constraints (helping with a fraud)
b. Clients make real choice if they have: (1) understood info, (2) appreciate the consequences, and
(3) used reason to evaluate this info.
c. Duties: provide information and defer to client choice
7. EX – client asks atty to handle a suit against an important client. Adverse outcome, asks why we didn’t
mediate. Should atty offered client option of ADR?
a. Practically, need to discuss implications of suing important customer (communication, informed

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 consent)
b. Generally not required to give advice until asked (under R2.1, comm.. 5), but may be necessary to
inform client of reasonable alternatives to litigation. It’s a comment, so recommended and it’s
important for client relations, but probably not sanctionable.
8. MR 2.1 Advisor
a. Lawyer shall exercise independent prof. judgment and render candid advice. Can refer to more
than law (moral, economic, social and political factors relevant to client situation)
9. dePape – Canadian doctor; atty for US place screwed up multiple times
a. Legal Malpractice elements: (1) existence of AC relationship giving rise to duty, (2) Atty, by act
or failure to act, violated/breached duty, (3) atty’s B of duty proximately cause injury, and (4)
client sustained actual injury, loss, or damage. Here it existed. (Generally need expert test.)
b. Failure to communicate - Breach:
i. Breached when atty failed to use such skill, prudence, and diligence as lawyers of
ordinary skill and capacity commonly possessed/exercised in performance of task
ii. MR 1.4 – can’t establish COA, shows fiduciary duty owed – clearly breached
1. Dr. had no info, no informed consent. Could have sent letter, told him
requirements of visa, etc.
c. Causation:
i. To recover – must show but for atty negl., loss wouldn’t have occurred.
ii. Here, wouldn’t have taken position and left old job, or gotten another. Prox. cause was
losing ability to start his own practice
10. Accidental Clients – be careful. Courts favor the client and look at whether the reasonable person in
client’s shoes would think there was a relationship.
a. Some examples where it arises: implied – where someone relies on advise but isn’t a client;
prospective clients – when discussing possible relationship, implied can develop esp. when any
advice is offered; joint clients; third-party payers; orgs.; morphing clients; quasi (3rd party
beneficiaries);
11. FIRST STEP – KNOW YOUR CLIENT
12. Subrogation – Right to funds doesn’t turn Insurer in atty’s client (at least in AK)
a. Jurisdictional

Pro Bono Service

13. MR 6.1 – Voluntary Pro Bono
a. Aspirational – it’s a responsibility (but not necessarily a “duty”) to provide 50 hours a year of legal services
to those who can’t pay (poor or charities)
b. Should also contribute money
14. MR 6.2 – Accepting Appointments
a. Shouldn’t seek to avoid appointment except good cause, like:
i. Violation of rules or laws (like conflict of interest)
ii. Likely to result in unreasonable financial burden on atty (death penalty cases)
iii. Client/cause so repugnant that it would impair atty’s ability to represent client

COMPETENCE
1. Remedies available for breach: prof discipline, malpractice, reversal of conviction, ineffective assistance
of counsel
2. MR 1.1 Competence
a. Shall provide competent representation – requires legal knowledge, skill, thoroughness and
preparation reasonably necessary for the rep.
i. Comm. – many instances, requires competence of general practitioner (in that area of
law). Sometime expertise is required.
ii. Factors – complexity of question, skills, training, experience
iii. Don’t necessarily need expertise or prior experience to handle an unfamiliar legal
problem. A newly admitted atty can be as competent as a practitioner with long

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 experience. Can study and learn new areas if need be.
iv. Can also establish competence through association with atty with established competence
in the field
v. Can give advice in an emergency in an area where lawyer doesn’t have competence, but
should be limited to what’s reasonably necessary and should
3. Togstad – Told her she didn’t have a case, but he’d call someone and let her know if she had a med mal
case, didn’t mention SOL or anything else. Never called back.
a. Communication and competence are often implicated together – broke down when he said she
didn’t have a case without proper review
b. If you are going to give advice that client doesn’t have a case, you can’t just base it on client’s
story, you need to review the case;
c. Med mal - you need to look at medical records and have a med expert consultation
d. Ordinary care and diligence would require him to inform the party of the two-year statute of
limitations
e. Elements of a Legal Malpractice Action: (1) AC relationship – received legal advice; (2)
negligent (w/ expert testimony); (3) acts were cause of Π ’s damages (4) but for atty’s conduct,
Π would have been successful in med mal trial (trial in a trial)
4. Prospective Clients – still owe duty of confidentiality, competence and conflicts of interest avoidance
– once you advice, you basically create and AC relationship.
5. MR 1.18 Duties to Prospective Clients
a. One who discusses possibility of forming a client relationship
b. Can’t reveal confidential info
c. Can’t represent a client with materially adverse interests of a prospective client in same or
substantially related matter IF lawyer received info from prospective client that could be
significantly harmful to that person in the matter
i. If disqualified, all lawyers in that firm can’t undertake representation
ii. comm. – not prohibited unless info from pros. client could be significantly harmful if
used in the matter
d. Disqualifying info – rep. is permissible if both affected and prospective clients give informed
consent in writing, OR lawyer who received info. took measures to avoid exposure to more
disqualifying info than was reasonably necessary to determine whether to rep. the prospective
client AND disqualified lawyer is screened, AND written notice is promptly given to prospective
client
6. MR 1.3 Diligence
a. Act with reasonable diligence and promptness (goes to communication as well)
b. Comments - Should pursue zealously in advocacy, dedication, commitment.
c. Workload must be managed so each matter can be handled compently
d. Lack of can cause loss of legal position – SOL (also violation of 1.1)
e. Unreasonable delay can cause a client needless anxiety and undermine confidence
f. Should carry through all matter undertaken to conclusion
7. Non-engagement Letters - might be beneficial to send a letter rejecting to represent the client which
includes a statement that the lawyer is NOT expressing an opinion on the outcome, a suggestion to
contact another firm, a SOL notification, a number for a Bar Association, etc.
8. Engagement Letters – specify scope, client, responsibilities of all parties, resolution of confidentiality
issues, goals, staffing, methods of communication, 3rd parties, fee arrangement and billing, grounds for
withdraw and termination, file retention policy, methods of dispute resolution
9. Ineffective Assistance of Counsel (criminal case remedy only) – 6th Amendment
a. Client due an objective standard of reasonableness, anything less is breach of con. right
b. Courts give great deference to defense attorneys and their strategic decisions
10. Roe v. Flores-Ortega – defense counsel didn’t file notice of appeal, but wrote “bring notice papers”
a. A ∆ claiming IAC must show:
i. (1) That counsel’s representation fell below an objective standard of reasonableness, and
1. Look at facts of particular case, viewed as of the time of counsel’s conduct

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 2. Holding: Constitutionally-imposed duty to consult with ∆ re: an appeal when
there is reason to think either a rational ∆ would want to appeal (nonfrivolous),
or this ∆ reasonably demonstrated to counsel that he wanted to appeal
ii. (2) That counsel’s deficient performance prejudiced the defendant.
iii. Need to show that mistakes actually caused person to be found guilty or sentenced longer
iv. Harmless errors aren’t enough
11. Duties to Non-Clients - Liability for economic harm applies most often to accountants and lawyers
whose negligence causes harm to persons who rely on their work or who are injured by the professional’s
negligent provision of services to a client
a. Foreseeability – problems: subjective, fluid, defined by HINDSIGHT, reviewing entity has the
benefit of hindsight.
b. Invitation to rely, Negligent Misrepresentation, 3rd party ben., representing fiduciaries
12. MR 2.3 – Evaluation for Use by Third Parties
a. Can evaluate a matter affecting a client for use of someone other than client if it’s compatible
b. Knows or reasonably should know that the eval is likely to affect client’s interests materially and
adversely, lawyer shall not provide the evaluation unless client gives informed consent
c. R1.6 still in effect, except as authorized
d. Civil liability is not in the scope of the rules – legal duty to that third party may or may not arise
13. MR 4.1 Truthfulness in Statements to Others
a. In the course of representation, shall not knowingly:
i. Make a false statement of material fact or law to 3rd person; or
ii. Fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal
or fraudulent act by a client, unless MR 1.6 applies.
1. Ex. – “it’ll be easy to knowing,” (knowing it isn’t and it’s already been rejected)
iii. Comm. – Generally has no affirmative duty to inform an opposing party of relevant facts
14. Greycas – brother-in-law atty wrote letter that he did a thorough UCC check and found no liens, but never
performed the check.
a. Pelham – no privity of K required. 3rd party can sue for malpractice if primary purpose and
intent of the AC relationship must have been to benefit or influence 3rd party. (Greycas didn’t
bring a professional malpractice suit)
b. Ultramares - required privity of K between the parties for negligent misrepresentation.
c. MacPherson - where the D gives an absolute guarantee for accuracy and knows only a few
persons would receive and rely on it, there can be negligent misrepresentation.
d. § of Torts Rule: One who in the course of his business or profession supplies information for the
guidance of others in their business transactions is liable for negligent misrepresentations that
induce detrimental reliance

CONFIDENTIALITY
1. Duty of Confidentiality - Doesn’t just apply to A-C privilege or Work-product privilege, but all
information relating to the representation, even when the information is available from other sources
2. Sources of:
a. CL – fiduciary duty, agency
b. Ethical – Prospective (1.18), Current client (1.6), former client (1.9)
c. Evidentiary law – AC privilege (CL and statutory)
d. Rules of Crim and Civ Pro – prohibit compelled discovery of AC privileged information and of
work-product material
e. U.S. Constitution – 5th amendment right against self-incrimination. Can’t drag in the lawyer
either
3. Lawyer confidentiality created the basis in agency law that confidentiality is an integral part of the
fiduciary duty of loyalty that lawyer-agents owe to client-principals
a. Atty-client privilege and agency duties were incorporated into the lawyer codes
b. Essential to making the legal system work
c. Need to trust attorneys to get all the facts/circumstances

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4. MR 1.6 Confidentiality
a. Shall not reveal info relating to the representation of a client, unless client gives (1) informed
consent, or (2) impliedly authorized in order to carry out rep., or (3) disclosure is permitted.
i. (2) – always some implied auth., but be careful, should really discuss with client
b. May (discretionary) reveal info relating to rep. to the extent the lawyer reasonably believes
necessary (but not more... narrowly tailored):
i. Prevent reasonably certain death or SBI – Alton Logan, had it been death penalty
ii. Prevent client from committing a crime or fraud that is reasonably certain to result in
substantial injury to financial interests/property of another AND the client used or is
using lawyer’s services
1. If not using atty services, exception doesn’t apply
2. Trying to prevent client from engaging in bad behavior, has not committed yet
iii. Prevent, mitigate or rectify substantial injury to the financial interests or property of
another that is reasonably certain to result or has resulted from the client's commission of
a crime or fraud in furtherance of which the client has used the lawyer's services;
1. Client has already committed the crime or fraud and we just found out
2. Trying to prevent the injury
iv. To secure legal advice about atty’s compliance with the Rules
v. Establish a claim or defense on behalf of atty in a controversy b/w atty-client
1. Sued for malpractice or suing client for nonpayment of fees
vi. To comply with other law or court order
1. 3.3 duty as officer of court trumps
vii. Comments: Can’t disclose if crimes committed b4 atty was hired.
1. Should really consult with client prior to disclosure; disclosure can be to affected
persons or appropriate authorities
2. Duty to former client covered by MR1.9
3. Must safeguard information against inadvertent or unauth. disclosure
4. Reasonable precautions when communicating to prevent unintended recipients
5. Confidentiality - MRPC 3.3 (TRUMPS 1.6) requires lawyers to take reasonable remedial measures to
correct false evidence. However, in crim defense, a lawyer who reasonably believes, but does not know,
that his client will testify falsely must bow to the client’s choice.
6. Examples – Using a client name on a website: Should get informed consent as a practical matter. It
doesn’t matter if it’s public record. You still have to keep your mouth shut even though the information is
publicly available. You should still get permission to present a public case because there is no public
record exception.
a. Undisclosed principal for Disney, can we purchase stock? Adjacent land? 1.8b (using info. to
disadvantage of client) doesn’t seem to be a problem with stock, but could be an SEC problem.
Land could be a problem if disadvantage to client
b. Small Co. asks M&F to bring a huge fraud and RICO claim against Magna Co. M&F currently
represents Big Bank in a $600 million loan to Magna that is scheduled to close next Tuesday.
What can we tell Big Bank?
i. When giving advice before an AC relationship is formed, the lawyer owes the duty of
confidentiality, not to share the information. M&F cannot share this information. M&F
should avoid conflict by telling Small Co. that it cannot represent them in this matter. If
you tell Big Bank, then the deal might fall apart. You received this information from a
prospective client. (R1.18b)
7. Anonymous - Contacted by Mother in seeking child support from Father, Atty discovered a judgment
against both by county welfare department, also Atty’s client. Atty declined to rep. Mother b/c of
conflict. Later filed suit against father (using info gathered by Mother; Mother was joined.
a. He should have withdrawn from both representations.
b. Violations:
i. Rule 1.6(a): violated by revealing info relating to the rep of Mother without her consent
ii. Rule 1.8(b): violated by using that info to Mother’s disadvantage without her consent.

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 iii. Rule 1.16(a)(1): violated by failing to withdraw as counsel for the local welfare dept
during the collection suit against the mother when such rep violated the rules of PC
c. Mitigating Factors:
i. Info gather about Mother’s case was readily available from public sources
ii. Declined to rep Mother and advised her to seek counsel
iii. No apparent sinister motives
d. Conduct was misuse of information entrusted to him. Private reprimand  how does this protect
the integrity of the profession? TWO core duties were violated (confid. and communication)
8. Perez – Truck drive, hit a bus, killed kids. Firm hired to rep. Coke and told driver they were his attys too
and anything he said was confidential. Firm later turned over his statement to DA’s office w/o consent.
a. K&C said they were threatened with subpoena by DA  (1) a threat is not a subpoena, (2) had
they been subpoenaed, classic ACP. Client owns the right not to incriminate.
b. Lawyers breached all 5 duties.
i. Relationship existed b/c they told him they repped him (implied).
ii. Confidentiality!
9. Ethical duty: All information related to the representation of the client (very broad) has to be kept
confidential.
a. Within this broad duty, you also have ACP (can apply outside litigation to transactional info) –
made for the purpose of legal advise, etc – and
b. Work product doctrine - limited to work in preparation for or in anticipation of litigation). Courts
look at this on a case-specific level.
10. Work Product Doctrine – LIMITED TO LITIGATION – attorney’s thoughts, mental impressions, case
strategies. Only waived if given to adversary. Only possible to overcome with substantial showing of
hardship – but still not likely.
11. Attorney-Client Privilege – broader than WP doctrine
a. Written and oral communications b/w atty (and agents) and client (and agents) made for the
purpose (from atty perspective) gaining the necessary info and obtaining legal advice (from
client’s perspective)
i. Communication must be made with expectation of privacy – statement made in front of
others – atty has a duty of confidentiality, but probably not AC privilege.
ii. Email to son who would give to technically impaired parents, not waived
iii. Email to financial planner, probably waived.
b. Have to be maintained as confidential.
c. Other Considerations:
i. Absolute privilege – no showing of hardship overcomes it
ii. Client owns and controls the privilege
iii. Can be waived intentionally by the owner  typically, once a little is released, it’s a
waiver for the entire subject matter
iv. Or inadvertently released by owner or atty
v. Doesn’t shield FACTS, only communications
vi. DOES NOT attach if client seeks attorney’s advice to effectuate fraud/crimes
1. Crime-fraud exception
12. Upjohn - Independent accountants discovered bribes paid to foreign governments. General Counsel and
outside counsel prepared a letter with a questionnaire sent to all foreign general and area managers. IRS
was given list of all those interviewed by Upjohn and all who responded to questionnaire. Company
refused to give questionnaires themselves to IRS on grounds of privilege and work product doctrine.
a. ACP – IRS claimed hardship, b/c of location, but they need to do the work themselves
b. Who’s covered? It will frequently be EEs beyond the control group (officers responsible for
directing the company’s actions in response to legal advice, i.e. high level EEs) who possess
information needed by counsel. Middle level and lower level EEs can embroil the corp in serious
legal difficulties and it is only natural that these EEs would have relevant info needed by
corporate counsel if he is to adequately advise the client.
i. Application of AC privilege to communications here puts the adversary in no worse

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 position than had they never taken place. The privilege only affects disclosure of
communications, not the disclosure of the underlying facts.
c. WP doctrine - Forcing an attorney to disclose notes and memoranda of witnesses’ oral statements
is disfavored b/c it tends to reveal the attorney’s mental processes. Here, to the extent the notes
do not reveal communications, they reveal the attorney’s mental processes in evaluating the
communications. Such WP cannot be disclosed simply on a showing of substantial need and
inability to obtain the equivalent without hardship. In effect, adverse counsel must build its own
case and not rely on opposing counsel’s thoughts, notes, and strategies.
i. In anticipation of litigation or for trial, as opposed to normal business records and
transactions. But a showing of substantial hardship can set aside WP. Has to be a really
substantial hardship – and ACP may still apply to some of the information.
13. Swindler - Attorney made 3 pages of handwritten notes of an initial interview with client regarding
possible cong. investigation before client’s suicide. Gov’t seeks notes for use in a criminal investigation.
a. General Rule - AC privilege continues after death and established law supports the continuation
of the privilege. “An uncertain privilege in many ways is worse than no privilege at all.”
b. Notes were protected by ACP - Knowing that communications will remain confidential even after
death encourages the client to communicate fully and frankly with counsel. Clients may be
concerned about reputation, civil liability, or possible harm to friends or family.
14. Inadvertent Disclosure – violates ethical duty, and duty of competence
a. MR 4.4 Respect for the Rights of 3rd Persons – (a) shouldn’t embarrass, delay, or unduly
burden a 3rd person or violate their rights
i. If you receive a doc you know or should reasonably know was inadvertently sent, shall
promptly notify the sender. (includes emails or other modes of transmission)
ii. Obj/subj standard – knows/should know.
iii. Rules don’t say you can’t read it
iv. Notice allows them to run to court to prevent use of document
v. Should also notify our clinet probably
vi. VERY jurisdictional and case-specific as to how court will deal with this
vii. Comm – Some may choose to return unread; But, where a lawyer is not required by
applicable law to do so, the decision to voluntarily return such a document is a matter of
professional judgment ordinarily reserved to the lawyer.
1.  This sentence is saying (1) there could be a proc. rule or case law that may
require it, and (2) this isn’t the client’s decision about whether to send the item
back, it’s the attorney’s professional judgment to keep the document or send it
back.
viii. Need to be aware of meta-data – scrub the document or send in format where it’s gone
b. Issue 1: What do you do if you receive information that you know is privileged? 1) Judgment
call needs to be made – jurisdiction-specific on duties (see notes on Comment 3 of R4.4)
c. Issue 2: What is the attorney’s obligation to safeguard client information?
15. Citgo – produced thousands of docs, some were privileged. Gov’t sought to depose Counsel, claiming
privilege on subject matter had been waived. There were docs stamped confidential (although that
doesn’t make it confidential). Citgo should’ve been careful. Only 4 were truly privileged.
a. ACP applies equally to corp. client.
b. Party asserting the ACP must prove that confidentiality of communications has been preserved.
c. Disclosure of communications to a 3rd party who lacks a common legal interest generally waives
the ACP.
d. Whether an inadvertent disclosure waives the ACP, courts must consider the circumstances
surrounding the disclosure on a case-by-case basis:
i. The reasonableness of precautions taken to prevent disclosure;
ii. The amount of time taken to remedy the error;
iii. The scope of the discovery;
iv. The extent of the disclosure;
v. The overriding issue of fairness

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 e. Waiver of Privilege:
i. Evidence of multiple disclosures on multiple occasions weighs against Citgo
ii. Several factors show Citgo did not take reasonable precautions to preserve
confidentiality; they mislabeled docs and failed to properly review them.
iii. The amount of time taken to remedy the error weighs against Citgo
iv. The vast scope of discovery argument might favor Citgo if it hadn’t twice disclosed the
privileged documents in different forms at different times.
v. Fairness does not save Citgo. The government’s untimeliness does not save Citgo.
f. Ct agrees gov’t breached ethical duty by not notifying Citgo, but that isn’t an issue here. It was
Citgo’s burden to maintain confidentiality – govt’s behavior won’t exonerate Citgo.
g. Scope of Waiver
i. Generally, the disclosure of any significant portion of a confidential communication
waives the privilege as to the whole to the subject matter.
ii. BUT, the justification here is usually that the holder of the privilege relies on the advice
of counsel as part of its defense or claim, or selectively discloses portions of privileged
communications in their own self-interest, or by some other means intentionally waives
privileges. Here, the disclosure was inadvertent.
h. Lessons: 1) stamping confidential on paper can actually be detrimental. 2) Once you do, you
need to be extremely careful releasing the documents. 3) Be timely.
CONFIDENTIALITY EXCEPTIONS
16. Governed by MR 1.6(b). Comments state you can’t be disciplined for failing to disclose when you could
have, EXCEPT if in a jurisdiction that requires disclosure.
17. Should always try to talk to the client first and obtain informed consent!
18. Physical Harm – doesn’t have to be imminent
19. Client stomps out “I’m going to kill her rather than give the house.”  It’s always discretionary.
a. Is atty reasonably certain this is going to result in death or SBI?
b. Factors: history of domestic violence? Is he “packing heat”? If you choose not to disclose, you
won’t be disciplined; but if you do disclose, you could be disciplined if it wasn’t reasonable.
c. Disclosure could be to authorities (if atty believes necessary) or could call the wife (but you
probably don’t want to give her more ammunition in the case). Should probably try to contact
client and calm him down.
20. Client has committed a crime for which another person is now serving time – Alton Logan
a. May be able to disclose if a death penalty case
b. Remember that privilege doesn’t attach if client seeks atty’s advice to perpetuate the act
21. Hawkins – Client wanted to be released on bond, mom said he was dangerous, Atty got him out on bail
and didn’t say anything about his mental status; beat his mom and tried to kill himself
a. Atty didn’t breach any duties; followed client’s wishes. Shouldn’t be mandatory. Client didn’t
say he was going to hurt anyone
22. Purcell - fired as maintenance guy and evicted from his apartment. Atty told police he might burn the
apartment, police found incendiary materials. DA subpoenaed Purcell to testify. Ct concluded statements
weren’t protected by ACP
a. Crime-fraud Exception - If the services of the lawyer were sought or obtained to enable or aid
anyone to commit or plan to commit what the client knew or reasonably should have know to be
a crime or fraud. – Wasn’t here
b. Burden of proving that the ACP applies to a communication rests on party asserting the privilege.
c. A statement of intention to commit a crime made in course of seeking legal advice is protected by
the privilege, unless the crime-fraud exception applies.
i. That exception applies only if the client or prospective clients seeks advice or assistance
in furtherance of criminal conduct. Unless the crime-fraud applies, the ACP should apply
to communications concerning possible future, as well as past, criminal conduct.
23. Spaulding – Serious car accident, adversary’s doctor discovered accident-related aneurysm. Case settled
before other side discovered the damage. Court vacated settlement.
a. Court in its discretion may vacate a settlement, even w/o fraud or bad faith, where it is shown that

11
 in the accident there were separate or distinct injuries which were not known or considered by the
court at the time the settlement was approved.
b. Reasoning: While no canon of ethics or legal obligation may have required them to inform
Spaulding, it is obvious at the time that the settlement then made did not contemplate or take into
consideration the disability described.
24. Financial Harm – (b) and (c)
a. Specific exceptions exist to allow a lawyer to disclose to 1) prevent; 2) rectify; or 3) mitigate
financial harm
25. Five provisions that require lawyers to recognize and respond to client fraud (MUST KNOW):
a. R1.2(d): prohibits lawyers from counseling or assisting clients in conduct the lawyer knows to be
criminal or fraudulent
b. R1.13: lawyers who represent organizations are also given discretion to disclose violations of the
law to those outside the entity, but “only if and to the extent the lawyer reasonably believes
necessary to prevent substantial injury to the organization”
c. R1.16: requires lawyers to withdraw from representing clients when the representation will result
in violation of the rules of professional conduct , and it allows withdrawal when “the client
persists in a course of action involving the lawyer’s services that the lawyer reasonably believes
is criminal or fraudulent.”
d. R3.3 and 4.1(b): require lawyers to disclose information where necessary to avoid knowingly
assisting a criminal or fraudulent act by a client on a tribunal or third person.
e. Hindsight Bias: humans believe that the fact that a past event like fraud has occurred must have
meant the event could have been anticipated. Lawyers should anticipate hindsight and the fact
that if they had some warning of crime/fraud they did not investigate, it might implicate their
complicity or incompetence.
26. Key Points to Remember:
a. You must be competent; know the relevant facts and the law that govern the representation of a
client, including whether the activity is a crime or fraud.
b. You must clearly communicate these findings to your client so that activity can be avoided or
stopped
c. If you have been retained to defend a client’s wrongful activity that is completely ended and not
continuing, you are not assisting or counseling it.
d. Failure to withdraw when a client seeks your services to further fraud/crime will subject you to
professional discipline as well as potential civil and criminal liability.
e. If you represent an entity, you have special obligations to address serious legal violations with
others beyond your immediate supervisor, going to higher authorities, such as corporate boards
for reconsideration.
f. You need to know your jurisdiction’s exceptions to confidentiality to determine whether you also
have discretion or an obligation to warn third persons
27. MR 1.13 Representing Organizing
a. Represents the organization acting through its authorized constituents
i. Know who the client is, who can make the decisions, and make sure everyone is aware of
who the atty is representing
b. If atty knows that officer, EE, or other person is engaged, intents, or refuses to act in a way that is
a violation to the organization or a violation of law, likely to result in substantial injury to org,
lawyer shall proceed as is reasonably necessary in best interest of the organization
i. Should refer to higher authority in the organization, or the highest if necessary, unless the
atty thinks it won’t help
1. IF highest authority won’t stop or address issue that is clearly a violation of law
AND
2. Atty reasonably believes violation is reasonably certain to result in substantial
injury to the org 
a. Lawyer may reveal info relating to the rep regardless of 1.6, but only if
and to the extent reasonably necessary to prevent harm

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 c. Can also represent directors, officers, EEs, members, shareholders or constituents, provided you
get dual consent where necessary (R1.7)
d. Be mindful of SOX w/ publicly-traded companies
28. EX - Night before the initial public offering the CEO tells us, “I sure am glad we didn’t have to disclose
that threatened patent infringement suit.” What must we do, can we withdraw?
a. What do we “know?” Potentially very dangerous to not disclose – but likely to get fired and
become known as a whistleblower against clients. Don’t know if they used our services to further
their criminal act here. IF you intentionally or were so reckless that you did aid, you could be
dragged into liability. We HAVE to withdraw if they are using our services to further criminal
act. But under 1.16(b) we might also be able to withdraw. Client will only have a claim if we
withdraw if we didn’t have a valid reason to withdraw. SOX may require more action.
29. EX - Martyn admonished Client about the importance of fully disclosing all assets on a bankruptcy filing.
Client failed to do so and he was indicted for bankruptcy fraud. Can Martyn be forced to testify about the
original warnings?
a. Not in trouble for client not following our advice.
b. Are they using my services? Tough to say, probably not. So look at ACP. We need to know
what questions the client asked in order to determine whether he’s trying to use our services to
effectuate the fraud – then we’d look at crime-fraud exception.
30. Seeking Advice and Self-Defense 1.6(b)(4) & 1.6(b)(5)
31. Meyerhofer – Atty was partner and thought something should be disclosed; firm disagreed and Atty
resigned. Π ’s later sued firm and Atty; Atty had filed out an affidavit explaining what happened and why
he left to exonerate himself – CYA. He gave to Π ’s, who then dropped him from suit.
a. Whether Goldberg’s disclosure of his affidavit violated confidentiality.
b. Lawyer may reveal confidences or secrets necessary to defend himself against an accusation of
wrongful conduct
c. Atty contacted an attorney and the SEC and handled the situation as best as possible under a
situation of urgency. The affidavit is his best defense. However, the rule says that you can
disclose to the extent reasonably necessary. This affidavit is a roadmap to all the wrongdoing by
the ∆ s.
32. EX – Want to sue a client for a fee, can we show how difficult client was?
a. Information believed reasonably necessary to establish a claim in a controversy
b. The client’s behavior may be relevant to proving the amount if it cost you more time, etc. to
prove the amount of the fee
33. EX – Client fired M&F after M accused client of fraud. Successor counsel calls and asks why M&F was
fired. What can we disclose?
a. Explain that ACP protects that information. R1.9 explains that confidentiality to former clients
continues. No exception applies here. You cannot reveal.
34. If seeking advice from other atty’s, make sure the advice is actually about compliance with the rules, not
just a second opinion on the case; No need to reveal the client’s name.
35. Compliance with Law or Court Order 1.6(b)(6)
a. Courts have the inherent power to order disclosures consistent with the confines of the ACP
b. The MRPC recognize the power of court orders in several provisions:
i. Most prominently, MRPC 1.6(b)(6) – disclosure of confidential information where
required by a court order
ii. MRPC 3.4(c) – Lawyer’s basic obligation to obey the rules of tribunals, including court
orders
c. These recognize the legal limit of a court order – they also presume that lawyers have a clear
fiduciary and procedural obligation to properly raise and protect client interests.
i. For example, lawyers have an obligation to assert the ACP on the client’s behalf
whenever a nonfrivolous claim against disclosure can be made.
ii. Failure to do so could result in a claim of malpractice or breach of fiduciary duty.
36. Court order - Court declares that confidential information is not privileged  lawyer either must comply
with the court order to disclose, or appeal the court’s decision.

13
 a. If appeal fails, further failure to disclose would result in the enforcement of a contempt order.
b. Occasionally a lawyer will risk contempt by violating a court order for the express purpose of
challenging the validity, scope, or meaning of the court order.
37. MR 3.4 Fairness to Opposing Party and Counsel
a. Shall not:
i. Obstruct another’s access to evidence, change, destroy or conceal a document or other
piece; can’t tell someone to do it either
ii. Falsify evidence, counsel or assist a witness to testify falsely, or induce a witness
iii. Knowingly disobey an obligation under rules of court, except open refusal based on an
assertion that no valid obligation exists
iv. Make frivolous discover requests or fail to make reasonably diligent effort to respond to
discovery by opposing party
v. In trial, make irrelevant statements, state personal opinion re: case, witness, etc.
vi. Tell a witness not to testify unless:
1. Person is relative or EE or agent of client; AND
2. Atty reasonably believes person’s interests will not be adversely affected by
refraining from giving such information
38. EX - Obligation to disclose does Martyn have if her client tells her where he hid the stolen money? What
if he hands her the key to the safe deposit box where the money is?
a. We need to know the jurisdictional laws applicable here to evidence, obstruction of justice, etc.
But just knowing the location of the money is information that is protected.
b. No Crime-Fraud exception b/c the client already committed the crime and came to you after the
fact. R3.4(a) states that counsel should not assist another person in the obstruction of another
party’s access to evidence.
39. EX – Disclose that client killed two kids and Atty knows where bodies are? What if search ongoing?
a. Some states require disclosure (child abuse too). No rule in MRPC requires disclosure.
b. Search doesn’t matter – knowledge is still confidential and self-incrimination – Atty can’t waive
these rights
40. Belge – Client charged w/murder and Belge/Armani assigned to defense. Insanity – Garrow admitted to 3
other murders. Belge confirmed and found a body. Didn’t tell authorities. At trial, Garrow admitted to
murders as part of defense. DA indicted Belge under decent burial statute and not reporting a death
statute.
a. Belge - Confidential, privileged communication which prohibited disclosure.
b. Ct. held Belge conducted himself appropriately – 5th amendment more important than seldom-
used statute.
c. 5th – right to not incriminate, 6th – effective counsel
d. Court weighed ACP and the Constitution vs. minor crim. statute.
e. “Effectiveness of counsel is only as great as the confidentiality of its client-attorney relationship.”
If a lawyer cannot get all the facts about the case, he can only give his client half of a defense.
f. RULE: The client’s Fifth Amendment rights cannot be violated by his attorney. Belge was
affirmatively required to withhold disclosure.
41. Practice before a Tribunal
a. MR 3.3 Candor Towards the Court (trumps MR1.6! – not balancing, absolute)
i. Shall not knowingly (objective and subjective):
1. Make a false statement of fact or law to court or fail to correct a false statement
of material fact/law previously made by atty.
2. Fail to disclose to tribunal unfavorable legal authority, even if other side omits
(applies to binding arbitration too)
a. Failure to disclose is equivalent to affirmative misrepresentation
3. Offer evidence lawyer knows (actual or should) to be false. If someone has
offered material evidence and atty comes to know of its falsity, atty shall make
reasonable remedial measures, including disclosure (if necessary). Atty may
refuse to offer evidence, other than that of ∆ in crim matter, that lawyer

14
 reasonably believes is false.
a. Diff b/w knowledge and belief is a very fine line – what would other
lawyers have done? Don’t have to exclude if reasonably belief of falsity.
Knowledge standards vary by jurisdiction.
ii. Atty knows that a person is/has engaged in crim or fraudulent conduct related to
proceeding shall take reasonable remedial measures, including disclosure to court if
necessary (think perjury, intimidating a witness, bribing a juror).
iii. This continues to conclusion and apply even if protected by R1.6
b. What to do with ∆ who’s going to lie on stand? [Partially from Comments and Class Notes]
i. This knowledge must be based on the client’s expressed admission of intent to testify
untruthfully. It must be unambiguous and made directly to the attorney.
ii. If these conditions are met, the attorney has three options:
1. The atty must attempt to dissuade the client from the unlawful course of conduct.
2. An atty should seriously consider moving to withdraw.
3. If a motion to withdraw is denied, and the D insists on committing perjury,
counsel should then proceed in the narrative form, advising the client
beforehand of what that would entail.
42. Casey – Client lied about identity, and Atty didn’t tell court, and kept lie going.
a. Rules violated:
i. R1.2(d): counseling a client to engage, or assisting a client, in conduct that the lawyer
knows to be criminal or fraudulent.
ii. R.3.3(a)(1): knowingly making a false statement of material fact or law to a tribunal
iii. R3.3(a)(2): failure to disclose a material fact to a tribunal when disclosure is necessary to
avoid assisting a criminal or fraudulent act by the client.
iv. R8.4(c): engaging in conduct involving dishonesty, fraud, deceit or misrepresentation
v. R8.4(d): engaging in conduct prejudicial to the administration of justice
vi. R3.3(b): provides that the duty to be truthful to the court applies even if to do so requires
disclosure of otherwise confidential information. (i.e. trumps confidentiality)
b. Practically, we should try to get our client to admit to the court what is happening (disclosing by
informed consent) – if they won’t, then we should withdraw
43. Forrest – Atty didn’t notify court or other party that one party to action died, and encouraged client to lie
as well.
a. Failure to disclose a material fact to tribunal, obstructing access to evidence, engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation
44. McDowell – Atty worried client would testify dishonestly. Ct said to talk to client and convince him not
to lie or use narrative, b/c withdraw isn’t going to happen. Was going to use Q and A, but superior told
him to use narrative, so he did.
a. An attorney may not substitute narrative questioning for the traditional question and answer
format unless counsel knows that the client intends to testify falsely.
i. Different levels of “knows” standards: Knows (certainty)  down to equivocal (might).
In between: knows BARD, believing BARD, compelling, actual inferred knowledge,
firm factual basis, good cause, good faith determination
ii. Knowledge varies by jurisdiction
b. Rule: The atty must inform opposing counsel and the circuit court of the change of questioning
style prior to use of the narrative.
c. The Court must then make a record of:
i. The basis for counsel’s conclusion that the D intends to testify falsely;
ii. The D’s understanding of the right to testify, notwithstanding the intent to testify falsely;
and
iii. The D’s, and counsel’s, understanding of the nature and limitations of the narrative
questioning that will result.
45. Judge asks what’s the bottom line for settlement. How do we respond?

15
 a. Can’t lie to a judge; could issue a court order, but this probably wouldn’t happen.
b. Correct answer is that it’s confidential information... unless we get informed consent from our
client. We can kind of create a legal fiction (based on R4.1) during a settlement conference, but
can’t really lie.
46. EX - May/Must disclose the presence of a witness just outside the courtroom we know the other side has
been trying to subpoena for weeks?
a. Must respect the court, but do we have to disclose to opposing counsel? This disclosure would
hurt our client. NOT required to disclose to opposing counsel
i. If the courts asks us if we know, then we have a duty to be honest
ii. Not our job to find a witness for the other side, but we can’t obstruct
47. EX – Crim ∆ insists on testifying and insists on lying. What should we do? What if we know in
advance? What if it happens as a surprise?
a. ∆ ’s have a constitutional right to testify, but don’t have a constitution right to commit perjury
b. If we know in advance: (1) Explain the rules and encourage them to be truthful; (2) Tell them
that the jury will probably be able to tell and you’re going to lose; (3) If I know you are going to
lie, I can’t put you on the stand, and I have to notify the court or I have to withdraw; Court will
probably not allow withdrawal, because of the delay and because the new attorney will probably
deal with the same issue.
c. If it’s a surprise – duty to remediate 3.3(a)(3)
48. Mitigating/Aggravating Factors – personal gain or over-zealous representation? Degree of harm (if
any), pattern or single incident? Substance abuse/depression – treatment or not? Remorse?

CONFLICT OF INTEREST

1. MR 1.7 Conflict of Interest: Current Clients (General)

a. Except for below, shall not represent a client if the rep involves a concurrent conflict of interest.
Exists if:
i. Rep of one is directly adverse to another; OR
ii. Significant risk that the rep of one client will be materially limited by lawyer’s
responsibilities to another client/former client/3d person or by a personal interest of
lawyer
b. But, may represent if:
i. Lawyer reasonably believes that lawyer will be able to provide competent and diligent
representation to each affected client; AND
ii. The representation is not prohibited by law; AND
iii. Rep doesn’t involve the assertion of a claim by one client against another client
(basically opposite sides of the v.) represented by lawyer in the same litigation; AND
iv. Each affected client gives informed consent, confirmed in writing.
2. Requires lawyer to: (1) clearly identify the client/s; (2) determine whether a conflict of interest exists; (3)
decide whether rep may be undertaken despite the existence of a conflict (i.e. is it consentable?) AND (4)
if so, consult with clients affected and obtain their informed, written consent.
3. Special considerations in common representation:
a. If it fails, can be costly, embarrassing and recriminating. Will have to drop both if it fails.
b. Required to be impartial
c. Confidentiality issues between common reps
d. Atty should make clear the lawyer’s role is not that of partisanship normally expected
i. Clients may have to assume more responsibility for decisions
ii. Limitations on the scope needs to be fully explained at the onset.
4. MR 1.8 Conflicts of Interest: Current Clients (Specific Rules)
a. Shall not enter into a transaction w/ a client or knowingly acquire an ownership or security
interest adverse to client unless:
i. Transaction and terms are fair and reasonable to client, fully disclosed, and transmitted

16
 in writing that can reasonably be understood by client; AND
ii. Client advised in writing that he should seek and is given reasonable chance to seek
advice of independent legal counsel; AND
iii. Client gives informed consent, in writing, to essential terms
b. Shall not use information relating to representation of a client to the disadvantage of the client
unless the client gives informed consent
c. No gifts, except family
d. No media or literary rights for portrayal based on info relating to representation prior to
conclusion of representation of client
e. Can’t give financial assistance to client, except that:
i. Can advance court costs and expenses of litigation, repayment can be based on outcome
ii. Can pay for indigent clients
1. Not allowed to do this b/c atty now has even more at stake in the litigation
f. Shall not accept compensation from one other than client unless: (3d party payer situations)
i. Client gives informed consent;
ii. No interference with lawyer’s independence of prof. judgment or with A-C relationship
iii. Info related to rep is protected as required by R1.6
g. Representing two or more clients – shall not participate in making an aggregate settlement of the
claims of/against the clients unless each gives informed consent, in a writing signed. Same with a
crim case and an aggregated agreement as to guilty or nolo contendere pleas.
i. Disclosure shall include existence and nature of all claims or please involved and of the
participation of each person in the settlement
h. Shall not:
i. Prospectively limit lawyer’s liability by agreement to a client for malpractice unless
client is independently represented in making the agreement; OR
ii. Settle a claim or potential for malpractice w/ an unrepresented client/former client unless
person is advised in writing of desirability of seeking and is given a reasonable opp. to
seek the advice of independent legal counsel
i. Shall not acquire a proprietary interest in the COA or subject matter of litigation, except lawyer
may:
i. Acquire a lien auth. by law to secure fees/expenses  lien on files; and
ii. Contract w/ client for a reasonable contingent fee in civil case
j. Shan’t have sex with a client unless it existed before A-C relationship established
i. BUT still need to worry about R1.7 and whether relationship color judgment
k. (A) – (I) – imputes against the firm; sexual relations do not.

5. Four-Step Analysis:
a. Identify the client(s) – individual, organization, 3d party payer, insurance company
b. Determine whether a conflict of interest exists. 6 categories:
i. Personal Interests of a Lawyer:
i. Interests of Another Current Client:
ii. Interests of a Third Person:
iii. Interests of a Former Client:
iv. Government Lawyers
v. Imputed Conflicts – when attorney moves from one firm to another
c. Decide Whether the Conflict is consentable – can’t in a direct-adversary situation
d. If it is, consult with affected clients and obtain informed consent. (Writing preferred or required.)
6. Maritrans – Repped multiple competitors in same market. One atty knew everything, and much was
confidential and subject to ACP
a. Actionable if it constitutes a breach of fiduciary duty imposed by statute or CL. CL duty
demands undivided loyalty.
b. Fiduciary duties control over ethical rules and is independent of ethical rules
7. Disqualification Motions

17
 a. Injunctive relief – to prevent rep of the other clients; only s/be granted when urgent necessity to
avoid injury and no other legal remedy exists
b. Prevents lawyer or former lawyer from representing another client
c. Can be made by any party to the litigation, including the judge
d. B/c of the significant costs of disqualification (delays, getting new attorneys, etc) there is
potential for misuse. Courts have developed 3 ways to curb this:
i. Courts are careful to scrutinize the facts and law offered in support of disqualification
motions
ii. Courts increasingly use the doctrines of laches, estoppel, or waiver to deny motions to
disqualify when they have not been made on a timely basis
iii. Orders granting or denying disqualification usually are not appealable until a final
judgment on the merits.
8. EX - CEO of Megacorp asks M&F to draft a deed transferring vacant land owned by Mega to CEO. “It’s
just a liability for Mega,” CEO explains. What should M&F do?
a. 1) Identify the client. 2) Is there a conflict? Yes. 3) Consentable? Are the requirements of
R1.7(b) met? It’d be tough possibly. Plus it looks bad if corporation is giving property to CEO
for free. Have ceo get outside counsel.
9. Monco – Atty partnership with friend re: patent rights; dispute. Either party could exercise 100% of the
patent rights. Janus argues that Monco was his personal atty and never informed him of this consequence.
a. When at atty engages in a transaction with a client and is benefited thereby, a presumption arises
that the transaction proceeded from undue influence.
b. Once a presumption arises, the burden shifts to the atty to show by clear and convincing
evidence that the transaction was fair, equitable and just and that the benefit did not proceed from
undue influence. McFail Factors:
i. That the atty made full and frank disclosure of all relevant information
ii. That adequate consideration was given
iii. That the client had independent advice before completing the transaction
c. If the presumption of undue influence is rebutted, the burden is back on the client to show undue
influence.
d. That an atty is also a business partner of a client does not foreclose his duties as the client’s
attorney
e. (Atty-client transactions are voidable and not void) A client’s post-transaction conduct can
properly amount to an affirmation of that transaction notwithstanding that it is the product of the
atty’s undue influence.
f. The fairness of the transaction is a separate and indispensable inquiry to a ratification analysis of
an atty-client transaction
10. Halverson – had sex with clients, one during a divorce w/ child custody.
a. Materially limited by atty’s own personal interest, no informed consent, didn’t communicate
potential consequences, there was an imbalance of power. Dude wrote the book on the issue
11. EX – should we accept 1/3 stock of new start-up in lieu of payment?
a. 1.8(a) will require disclosure, communicated in writing, opportunity to consult independent
counsel. Are we representing the persons or the entity? Who do we get consent from? CYA
12. EX – Insert a clause that appoints a firm atty as fiduciary or trustee? As fiduciary, can they hire the firm
for the work?
a. Because M&F would receive a benefit from that appointment in terms of fees, M&F should fully
disclose and obtain the consent of the client. The executor role probably wouldn’t be conflicting,
especially since you drew it up pursuant to the wishes of the testator.
b. But what if executor has to hire an attorney? Can you hire someone from your firm to act as legal
counsel? (if the challenge is against the executor/drafter, obviously there is a conflict) The
conflict may exist in that we’re already collecting fees, and then we hiring our firm which will
also collect fees – looks like we’re creating more work for our firm. Need to make sure to
disclose all the costs up front.
13. EX - Failed to file a client’s case within the appropriate SOL. Should M sit down with the client, confess

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 her error, and offer to pay the entire amount of the underlying claims?
a. Must communicate, can’t settle with an unrepresented client unless they are advised in writing of
the desirability of seeking outside counsel.
b. Even so, there’s a good chance the court would allow the malpractice claim.
c. Practice tip – don’t give them the option to settle w/o an atty.
14. EX – M&F represents Acme Corp. in contested litigation against Zenon, Inc. Can a senior associate
assume a major role in the case when he is married to the lead lawyer for Zenon?
a. There are confidentiality concerns. Someone is going to lose, could compromise effectiveness.
b. Consentable? Appears to be. M&F only need to get permission from their client, Acme. Other
side would need to get permission then from their client  and they would probably try to
disqualify Senior Associate.
15. EX - M&F represents Big Bank in a wide variety of matters. A colleague tells Fox at lunch: “Did you
hear the latest? Sarah Snyder [an associate at M&F] is dating the General Counsel of Big Bank.”
a. Big Bank is a client of Sarah’s, as a part of M&F. Who’s the client? The bank, but it can only
act through constituents  GC would probably be a big constituent. So we split Sarah off the
client and say it’s not imputed to the firm
16. Insurance and Clients
a. Issues arise when ins. co. issues diverge from client issues. Who does atty represent? Ins. co. often pays.
Courts will construe language against insurance companies.
i. Need to make sure insured knows ins. is 3d party payer
b. Even when insurance co. hires atty, all jurisdictions agree that the lawyer represents the insured
c. Jurisdictions don’t agree about whether the lawyer also represents the insurer.
d. Some characterize it as a one-client/third-party payer situation – R1.8(f) and 5.4(c) – must resist pressure
from insure
e. Others adopt joint-client approach where defense atty represents both – M1.7 with respect to each client.
f. Jurisdictions are split over: who can sue for incompetence, whether insurers can use inside counsel-EEs to
represent insureds
g. AC and WP privilege – If both insured and insurer are clients, the co-client privilege protects matters of
common interest against third person, but not b/w co-clients.
h. Ins. defense lawyer must remain focused on the interests of the insured.
i. Who controls settlement? Atty has a duty of obedience.
i. Need to inform both parties of offer and relay response to insurer
ii. (see below, conflicts)
j. Confidential Information:
i. One-client/3d party payer courts rely on 1.8(f) lawyer who represents insured cannot share
insured’s confidential info without consent.
ii. Two client – face the same conflict b/w lawyer’s duty to inform one client under R1.4 and duty to
maintain confidentiality to the other client under R1.6
iii. Lawyer who discloses will be liable for breach of fiduciary duty
k. Conflicts of interest (∆ attorneys must only rep. insured):
i. (1) Using an insured’s confidences to create a policy defense
ii. (2) Where multiple claims are alleged against an insured, some of which may involve conduct that
the insurer asserts is not covered by an insurance policy
1. Two approaches:
a. Reservation of rights – insurer can reserve its right to claim any policy exclusion
later, but must provide a conflict-free defense
i. Counsel must ignore interests of insurer here
b. Declaratory judgment action on the merits to determine coverage and the
obligation to defend
2. (3) When an insured is sued for an amount in excess of policy limits
a. Insurance law requires insurer to act in good faith. If there is a reasonable
probability that insured will be found liable for an excess judgment, insurer must
take insured’s interests into account.
b. If lawyer representing insured alone would recommend settlement, and the
insured would settle, failure to settle within policy limits constitutes bad faith

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 l. Conclusion:
i. Defense lawyers owe insureds all of the 5 Cs - can’t allow insurers to interfere in the exercise of
their independent professional judgment
ii. Insurers may exert some control over fees and strategy, but can’t impose prior approval
requirements on defense counsel
iii. Flat fee arrangements or inside counsel status, if these arrangements allow insurers more
opportunity to control fees/strategy, are prohibited in some jurisdictions.
iv. Insurers may have contractual control over settlement decisions, but defense counsel has
obligation of good faith to both in communicating and responding to settlement offers.
17. EX – estate atty, “I need some help with dad, needs to change his will, can’t come downtown.”
a. Who’s client? Dad. Loyalties lie here. If incompetent – 1.14, may need to take action to protect.
b. If son is paying, 5.4(c), 1.8(f) both prohibit Son from controlling or directing prof. judg. unless
informed consent is given (1.8).
18. MR 5.4 Profession Independence of a Lawyer
a. Lawyer/firm shall not share fees w/a nonlawyer (things we didn’t discuss)
b. Can’t form a Pship with nonlawyer if practicing law
c. Shall not permit a person who recommends, employs, or pays the lawyer for another to
direct/regulate lawyer’s prof. judgment
19. MR 1.14 Client with Diminished Capacity
a. Try to maintain a normal A-C relationship
b. If reasonable belief that person is at risk of substantial physical or financial harm, may take
reasonably necessary protective action – can consult w/individual or entities that can help
Conflicts – MULTIPLE CLIENTS and Aggregate settlements
20. Burrow – Big explosion, 126-member suit settled for $190, 60 to atty. 49 bring suit for prof misconduct
and forfeiture of fees – failure to investigate, communicate, entering settlement w/o everyone’s authority
a. Actual damages are not a prerequisite to fee forfeiture for atty’s B of fiduciary duty to the client
b. Rule: A lawyer engaging in clear and serious violation of duty to a client may be required to
forfeit some or all of the lawyer’s compensation for the matter.
i. Core agency duties of obedience, disclosure, confidentiality and loyalty usually qualify
ii. Clear – whether reasonable lawyer, knowing the relevant facts and laws reasonably
accessible to the lawyer, would have known that the conduct was wrongful
iii. Serious - some require harm, most don’t. Not really defined. Many= more likely serious
iv. Factors to determine how much of fee is forfeited:
v. Gravity and timing of the violation, its willfulness, its effect on the value of the lawyer’s
work for the client, any other threatened or actual harm, and the adequacy of other
remedies, the public interest in maintaining the integrity of attorney-client relationships.
21. EX – mother died in car accident, Atty reps daughter, estate and gma. Insurer offers $1mil for all claims.
a. R1.8(g) requires each client to give written, signed informed consent.
b. Atty needs to disclose all details of settlement and allow the clients to decide whether to settle.
c. There’s also the conflict of how much each party gets from a lump settlement. So the attorney
can reasonably try to allocate appropriately, but the atty needs to disclose everything to all
parties, especially the allocations.
i. The alternative would be each person to have their own representation, but this is much
more expensive and adversarial.
Joint Representation of Multiple Clients
22. Anderson – Old widow suckered into home, atty represented all party at ∆ ’s arrangement; atty didn’t
advise her to see outside counsel, to list cottage specifics, etc. Recklessness, B of Fiduciary duty
a. Recklessness – willful, wanton, reckless
b. Atty failed to exercise due care, disregarded consequences of his actions and the rights of the P
c. MRPC – violation established prong of Conn statute, Ps pleaded facts establish that Rule 1.7 has
been violated and thus there is a valid claim for violation of CUPTA.
d. COA against atty for violation of a fiduciary duty?
e. Rule: Professional negligence alone does not give rise automatically to a claim for breach of
fiduciary duty; so, not every instance of professional negligence results in a breach of fiduciary

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 duty. A fiduciary or confidential relationship is characterized as a duty of loyalty and honesty.
f. Rule 1.7comm section: “loyalty is an essential element in the lawyer’s relationship to a client”
g. Reasoning: Atty possessed superior skill and expertise and pursuant to the MRPC he was under a
duty of loyalty and trust to the P. He acted as her attorney, and presumably acted as her trustee in
accepting the proceeds of the sale.
23. Written consents to conflicts
a. Should mention where conflicts may arise
b. Mention what happens if one does arise  in most cases you need to step out on both parties
(given all the confidential information that has been exchanged and whatnot).
c. Plus, choosing one or the other in the letter (in case of conflict) would seem to signal some
favoritism and loyalty, especially if it’s the paying party.
d. Writing does NOT supplant the need to talk to the client to explain advantages,
disadvantages, risks, and alternatives of conflicts
e. The writing is required to impress upon the clients the seriousness of the decision the client must
make
f. R1.8(a) requires written consent
g. Transactional – make sure to emphasize that role is NON-Partisan
24. Parts of an Individualized Letter
a. The material risks of the proposed course of conduct, including:
i. Conflicts created by the legal rights of the represented
ii. Conflict created by the individual facts in each representation
iii. Any prior or continuing relationship of the lawyer with either party
b. The duty of confidentiality to clients including:
i. Full disclosure of all information shared by one client with the lawyer to the others
ii. Limited disclosure of all information shared by one client with the lawyer to the others
iii. Explanation of the effect of the joint representation on the atty-client privilege
iv. In the letter, need to specify with whom info will be shared with and what will be shared.
c. Explanation about the advantages and disadvantages of the available alternatives to joint
representation, including:
i. Representation by separate lawyers, or representation of one client alone
ii. Differences in lawyer’s role in indiv and joint reps - joint rep. will require each client to
assume greater responsibility for making decisions than if individual
iii. The clients’ rights to discharge the lawyer at any time
iv. Changes in the legal rights or individual situations of the clients that might require the
lawyer to withdraw
v. An explanation of what will happen if the rep. ends before the legal service is completed.
Absent explicit and still effective consent to the contrary, the lawyer probably will be
required to withdraw from both or all of the rep causing additional expense and effort
vi. Explaining in the letter that dual rep. may not be the best option  while it’s full
disclosure, this could also be ammo that even the firm admitted this wasn’t a good setup.
25. EX – Two charged with murder – rep both? What if shooter eligible for death?
a. MR 1.7 - Rep of one will be directly adverse to other or where there is a significant risk that the
rep. of one will be materially limited by the lawyer’s responsibilities to another client.
i. Consentable though:
1. The lawyer reasonably believes that the s/he will be able to provide competent
and diligent rep. to each client;
2. The representation is not prohibited by law;
3. The representation does not involve the assertion of a claim by one client against
another represented by the same lawyer in the same litigation or other tribunal
proceeding; and
4. Each client gives informed consent, confirmed in writing
b. Need to make sure claims won’t arise pitting ∆ s against each other; some states require separate
representation for death penalty clients

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26. Viacom & Disney are both competing for an open TV channel in New York. Represent?
a. Not yet in litigation, so that exception doesn’t apply, but directly adversarial – impossible to
achieve the goals of both parties.
b. R1.7 The rep of one would be directly adverse to the other, i.e., only one will get the channel.
c. R1.10 No, because one lawyer could not represent both, no other lawyer associated with the
firm can represent both clients because the conflict is neither based on a personal conflict of
interest nor based on a conflict of a disqualified lawyer’s association with a prior firm (at least not
in the given facts).
27. MR 1.10 Imputation of Conflicts of Interests: General Rule
a. No one in the firm can knowingly represent a client when an atty practicing alone would be
prohibited by 1.7 or 1.9, unless:
i. Prohibition is based on personal interest of disqual. lawyer and doesn’t present a
significant risk of materially limiting the rep. of the client
ii. Prohibition based on R1.9(a) or (b) and from prior assoc. with firm AND
1. Timely screened, no fee
2. Written notice promptly given to former client, which discusses screen AND
3. Certs. of compliance w/ rule and screening procedures are provided to the former
client at reasonable intervals and upon termination
4. (a) – rep. another in a same or substantially related matter as former client
5. (b) – firm repped (he didn’t) in same or SRM, materially adverse interests to
former client, and atty acquired confid. info that is material.
b. After leaving firm, firm isn’t prohibited from repping a person with materially adverse interests to
those of a client (not currently repped by the firm) that former associated atty had repped, unless:
i. Matter is the same or substantially related to that in which former atty repped the client:
AND
ii. Any atty at the firm has info protected by 1.6 and 1.9(c) that is material.
c. ANY DISQUAL PRESCRIBED BY THIS RULE MAY BE WAIVED BY AFFECTED
CLIENT UNDER R1.7 WAIVER CONDITIONS
28. MR 1.09 Duty to Former Clients – goal is to protect prior client’s confidential information
a. Atty formerly repped a client in a matter shan’t represent another person in the same or
substantially related matter in which that person’s (new client’s) interest are materially adverse to
the interests of the former client, unless former gives written informed consent
i. Same or substantially the same, adverse to former client (consentable, unlikely)
b. Shall not rep client in same or SRM, in which atty’s former firm had represented a client (even
thought atty didn’t), where
i. Interests are materially adverse to [new] person; AND
ii. Atty had acquired info protected under 1.6 and 1.9(c) that is material, unless written
informed consent is given
c. If not disqualified, an atty who formerly represented a client or whose present or former firm
previously repped a client shall not:
i. Use info related to rep to disadvantage of former client, unless info has become generally
known; OR
ii. Reveal info relating to representation
d. Substantially related – involve same transaction/legal dispute or substantial risk that confidential
factual info as would normally have been obtained in prior rep would materially advance new
client’s position in subsequent matter.
i. Atty who repped a businessman learned extensive private fin. info. may not then
represent that person’s spouse in seeking a divorce
29. Mitchell v. Metro Life Ins. Co. – Atty left firm defending MetLife in EE claims, now on Π side of EE
claims at another firm. MetLife wants to disqualify firm.
a. Courts are slow to disqualify firm – interfere with party right to choose counsel and sometimes
happens for tactical purposes – so must be significant risk of trial taint
b. Besides all the info on hiring, training, promoting, etc., she knew how MetLife approached

22
 litigation (settlement strategies, how they assess exposure). Also had personally talked to
managers who may be witnesses, confidentially information.
c. Screening wasn’t adequate – not timely, extremely small firm. Needs to be immediately
30. EX – Prepped tax returns for Wife’s business, husband wants us to represent in divorce
a. Same or SRM? (can be factually related or substantively related)
b. Is there a conflict? Who was client – wife’s business or wife?  if we represented wife, bigger
issues. What’s business structure? Sole proprietor or corp? If corp, who’d we get info from?
Did we find out about her assets and income?
c. Goal is to prevent sharing of confidential information
d. Is firm disqualified as former client? Not the same matter, but could be substantially related.
e. Atty’s should pay for disqualification b/c it should have been recognized earlier
31. Conflicts Control System (might be good for extra points!) (MR1.5 – firm’s duty to follow rules)
a. Establish a database – personal conflicts, concurrent and 3d party conflicts, former client conflicts
b. Maintain – update regularly for clients, new hires, closed matters, etc.
c. Identify and respond to conflicts
d. Establish and maintain effective screens

FEES AND CLIENT PROPERTY

1. MR 1.5 Fees
a. Fees must be reasonable! So must expenses! Can’t make agreement for unreasonable fees.
Factors to consider for reasonableness:
i. Time, labor, novelty and difficulty of question, skill necessary to perform
ii. If apparent to client, taking on of this client will preclude other ET by atty
1. Retainer agreements – buying loyalty
iii. Customary fee charged in locality for similar legal services
iv. Amount involved and results obtained (scope of engagement)
v. Time limitations imposed by client/circumstances
vi. Nature and length of relationship – longer the relationship, the more likely there was lots
of negotiation and arms-length bargaining
vii. Experience, reputation and ability of atty performing services; and
viii. Whether fee is fixed or contingent
b. Scope and basis/rate of fee and expenses shall be communicated, preferably in writing, before or
shortly after commencing
c. May be contingent unless prohibited (below), but must be in a writing signed by client and shall
state the method by which fee is to be determined; how expenses will be deducted – before or
after
i. Including %’s in event of settlement, trial or appeal. When does “trial” commence?
d. Can’t do contingents:
i. Domestic relations matters where payment is contingent on securing divore or alimony or
support or property settlement; or
ii. Representing ∆ in a criminal case
e. Division of fee b/w lawyer not in same firm can only be made if:
i. Division is proportionate or each assumes joint responsibility; AND
ii. Client agrees, in writing; AND
iii. Total fee is reasonable
2. Fees should be solely to compensate atty for reasonable work performed. Conduct should promote the
client’s trust in the profession
a. R3.2A lawyer should take as much time as is reasonably required to complete a project,
motivated only by the best interest of the client.
3. Hindsight Bias - Reasonableness of fees has both "at the time" and "hindsight" aspects - for example the
results obtained are one of the many factors in the rule itself.
a. The court can and often does rewrite the fee agreement to make it more favorable to the client.

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 b. K law doesn’t apply – not freely entered into by both parties
c. Court is supposed to consider the circumstances as the lawyer knew them to be at that time, but
the court has the benefit of hindsight
4. Double billing – 1.5 is not about how much client is willing to pay, but how much atty has actually
earned.
a. Advisory Opinion – can double-billing, but need to explain billing to client and need their
consent
i. Could discount travel time but still charge some, and work on other client matters
b. Pro bono – don’t have mandatory reporting, so doesn’t really matter that other client is
“underwriting” the time
5. Fordham – DUI, ingenious defense, never did DUI before. Billed $50,000 for 227 hours of work. There
was a retroactive fee increase (something you can’t do)
a. Clients shouldn’t pay to educate the attorney.
b. What would local atty charge for DUI? Diligence, good faith, honesty aren’t defense to excessive
fee claims
c. Fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence,
experience in the area of law, would be left with a definite and firm conviction that the fee is
substantially in excess of a reasonable fee
d. The test is whether the fee is clearly excessive, not whether fee is accepted as valid or acquiesced
to by client
6. Contingency Fees – personal injury, antitrust, civil rights, patent law
a. ∆ s can use these as well – “reverse-contingency” fees – can be given a percentage of money
saved below some threshold.
i. $30 mil estimated: anything below $30, M&F get 25% of the savings. Where do we set
“the bar” to where M&F get the fees. If M&F settle for $2M, M&F would get $7M – is
this unreasonable?
ii. Court is going to focus on amount parties agree to as “the bar” to determine if this is
reasonable. For example, if treble damages are never really granted, then $30M is
unreasonable.
iii. Attorney has to do research to determine what the actual liability probably will be
(competence) and communicate this with the client. This isn’t use a whole lot.
b. Can be paired with hourly rates as well
c. Valid if appropriate for the circumstances, within the law, reasonable, and client has been
appropriately advised
7. In re Sather – Atty immediately spent prepaid fees, referred to minimum fee, non-refundable, obligation
to pay no matter what, etc., was fired from client, didn’t pay back money for a few months
a. An attorney has an obligation to keep clients’ funds separate from his own.
b. Advance fees remain the property of the client until such time as the fees are “earned.”
c. An attorney must return all unearned fees in a timely manner
d. When the money is paid, it goes into a trust account until it is earned. Atty can remove when
they earn, but they need records to justify the taking of money
e. Rule: Attorneys cannot enter into “non-refundable” retainer or fee agreements
f. Fees are always subject to refund under certain conditions (unearned, excessive) – labeling a fee
“non-refundable” misleads the client and may deter a client from exercising their rights to refunds
of unearned fees
8. Quantum Meruit - entitled to the reasonable value of your services. Usually the K itself is the outer-
limit of what atty could collect under QM. Fee must be reasonable. (see below under termination)
9. MR 1.15 Safekeeping Property
a. Keep client’s property separate from lawyer’s own. Must be kept in separate account. Complete
records necessary
b. Lawyer can put own money in trust account only to pay fees
c. Promptly notify client of receipt of funds
10. Account Management
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 a. Mismanaging funds is per se violation, and sanctionable regardless of harm (or lack thereof)
i. Knowing violationssevere discipline
ii. Inadvertent commingling, even temporary and/or not harmful is violation
b. MUST Have a client trust account – IOLTA
c. Must keep personal accounts separate from practice accounts (even for solo practitioners – not
really in the rules, but good practice for IRS purposes)
d. Practice accounts (for bills, salaries, etc.)
e. IOLTA (Interest on Lawyer Trust Account)
i. Unearned funds, Funds held in escrow (even if for a few days), Settlement amounts
ii. Separate account for client funds that cannot earn net interest
iii. Interest is paid to a central fund that is used to fund legal services for those unable to pay
f. Need Individual trust accounts for – estates, very large accounts. Estate, Guardianship, Class
action settlements, Trustee money – don’t commingle
i. Especially when holding money for extended periods of time
ii. Need detailed records of receipts, disbursements, etc.
11. “10 Commandment”
a. Have a trust account;
b. Never let anyone else sign your trust account;
c. Obtain and understand your IOLTA rules; bank and state rules
d. Immediately notify the client every time something is added to the client’s account balance and
every time something is taken from the account balance;
e. Unearned fees and unexpended costs belong in the trust account until earned or spent;
f. Do not commingle your funds with the client funds in the trust account;
g. Be sure you understand the exact nature of the item deposited or credited to the trust account;
h. Reconcile the bank trust account monthly;
i. Reconcile and examine the individual client trust account balances monthly, and do not delay
giving the clients their money;
j. Be alert to third party claims – ex. med mal representation, know that insurer has a subrogation
right to some of the money; client is the individual, and the subrogation right is b/w the client and
insurer, not the insurer. Jurisdiction-specific
12. Disciplinary Counsel v. Heiland - power of attorney over her parents, commingled personal income and
the income, stole money, indicted for felony theft
a. Panel recommended indefinite suspension. Disciplinary board can order restitution to harmed
party.
b. Atty, of course, violated several rules: conduct involving moral turpitude; fraud, deceit,
misrepresentation; conduct prejudicial to the administration of justice; fitness to practice law;
requirement not to commingle personal funds with client funds.
13. Comprehensive Engagement Letters
a. Scope walkthrough
b. Conflicts of interest
c. Personnel – lets them know that others will be working
d. Legal Fees – need explanation of calculation, how expenses are treated, etc.
e. No guarantee of fees section – probably need to ballpark it at least, can’t just be unlimited.
f. Withdrawal information
g. Arbitration of fee disputes – lots of places it needs to be signed separately
h. ACP section – important to explain to the client

CONCLUDING A-C RELATIONSHIP

1. Fees on Termination – Clients can terminate for cause or without cause
a. If terminated for cause, probably aren’t going to go after money (missed a deadline, conflict)
2. Malonis – Contingent fee for med. mal., 3 years then fired, settled, 2nd atty said he’d take care of 1st
a. Discharging an attorney terminates the right to recover on the contingent fee contract.

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 b. Still an obligation to compensate atty for the fair and reasonable value of services and skills
expended on client’s behalf based on quantum meruit; to prevent unjust enrichment of one party
at the expense of another.
c. Reasonable hours x reasonable rate = X, limited by the cap of what he could have recovered. In
this case, the attorney has to pay – b/c attorney said he’d take care of it. But it could work out
that the client could have to pay 1/3 to old atty and 1/3 to new attorney.
d. Court’s Suggestion: Before successor counsel receives the case, they should confer with the
client on the issue of fees to former attorney and to execute a written agreement unambiguously
identifying the party responsible for payment of former counsel’s reasonable attorney’s fees and
expenses. The matter should be resolved by express agreement with the client at the onset of the
new relationship.
3. Med mal suit fixed fee of $30k, + 50% of all amounts over $500k. Atty spent 100k on matter, then was
fired. 2d atty settled for 500k.
a. Can’t sue for B of K – there’s no breach b/c clients can fire attys
b. Equity – QM – reasonable value of the services that atty provided
i. Reasonable hourly rate x reasonable hours, even though not contingent
ii. Need accurate records of time spent
iii. QM is capped at its upper limits at K price. Cap here is 30k + whatever is 50% of amt.
over $500k.
1. Have to wait for atty 2 to settle the case to get paid!
4. MR 1.16 Declining or Terminating Relationship
a. SHALL WITHDRAW or shall not represent from rep, if:
i. Rep will result in violation of MRPC or other law (using services to further crime act)
ii. Lawyer’s physical or mental condition materially impairs atty ability to rep client, OR
iii. Lawyer is discharged
b. MAY WITHDRAW from rep, if:
i. Withdrawal can be accomplished w/o material adverse effect on interests of client
1. Don’t need a reason – maybe changing practice area, just don’t screw client
2. Help them find another attorney, turn over files, etc.
ii. Client persists in action involving lawyer’s services that atty reasonably believes is
criminal/fraudulent
iii. Used atty services to perpetrate a crime or fraud
1. This is when you find out it happened after the fact
iv. Client insists on taking action atty considers repugnant or which lawyer has a
fundamental disagreement – such as leaking info to the press in a messy divorce
v. Client fails substantially to fulfill an obligation to the atty (usually payment)
vi. Unreasonable financial burden or been made difficult by client (controversial – fin.
burden should be determined at onset.
1. Doesn’t matter that it’s not as profitable as expected or costs more than it’s worth
vii. Other good cause
c. Must follower rules of jurisdiction when terminating a representation
d. At termination, shall take steps to reasonably practicable to protect a client’s interests, such as
giving reasonable notice, allowing time for ET of other counsel, surrendering files, and refunding
unearned revenue
i. Must do this even if fired!
5. Need to be clear when client representation has ended, should send a letter to clarify it’s over
6. Gilles – Client slow to pay, wanted to drop med mal and her case wasn’t big, atty dropped her weeks
before SOL expired
a. Had all info to file complaint and/or decide it wasn’t profitable; Π wasn’t sophisticated
b. Letter didn’t specify the critical date
c. Not at liberty to drop a case w/o justifiable or reasonable cause, or consent of client
7. Courts struggle with Ghostwriting – atty is supposed to sign anything submitted to court
8. EX – Atty handled lit. for years, client stopped paying. May we resign?
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 a. 1.16(b)(5) – should give reasonable warning that they will withdraw unless obligation is paid
9. EX – Client doesn’t pay Social Security for her daughter’s “wonderful” nanny. Wants us to prep taxes
and she’ll just sign.
a. 1.2(d) – can’t counsel a client to engage in conduct atty knows is criminal or fraudulent
b. Client would be using our services to further the criminal act
10. When atty of record in a litigation matter, must comply with local rules of court – can’t just walk away.
Often requires a motion, a reason, and protection for the client
11. Wrongful Discharge (of in-house)
a. Most lawyers are independent contractors, where the lawyer becomes an agent, but not an EE of
the client
b. Public Policy exception to Employment at Will
i. Many courts have recognized that refusal to violate a professional ethics code may
qualify as an important public policy.
c. Initially, courts denied a wrongful discharge COA
i. Cts are starting to allow lawyers to sue under whistleblowers
ii. Competent lawyering requires any lawyer who disagrees with a decision by corporate
management first to determine the basis for the disagreement. The lawyer or other
professional who can articulate a clear public policy, embodied in a specific statute,
regulation, professional code, or constitutional provision, should communicate that policy
to reasonable decision makers. If at that point the professional loses her job, she will
have created a record that her discharge was caused by her insistence that the
organization not violate the articulated public policy.
d. Jurisdiction specific

1. Unauthorized Practice of Law – state-based rules

Topic 1: Litigation misconduct

Authorities: MR 3.1, FRCP 11, 28 U.S.C. §1927, ORCP 11, Ohio’s R.C. §2323.51, Local Rules of Court, and
courts’ inherent authority to regulate litigation prohibit attorneys from filing and advocating meritless claims or
contentions in pleadings, motions, briefs, oral arguments, etc. ; however attorney can advocate for reversal,
modification or extension of existing law.

Sanctions: Discipline, order awarding attorney fees and cost to opposing party, involuntary dismissal of some or
all claims, default judgment, civil liability for malpractice.

Avoid by: Engaging in sufficient factual and legal research prior to filing that is reasonable under the
circumstances; if time is limited (e.g. SL running) do immediately after filing.

Examples: Problem12-4. M & F are “in trouble” due to filing product liability lawsuit against chemical
manufacturer just before S/L expires, then voluntarily dismiss claim 10 months later after they finally consult
expert who reveals no proof of causation. Sanctions can be awarded after voluntary dismissal.
Christian v. Mattel: Attorney asserting that “Cool Blue” Barbie manufactured in 1991 infringed on his client’s
1996 copyright sanctioned $500,000 (R & R for reconsideration of amount).

Also note: MR 3.8 prohibits prosecutors from pursuing charges against a D when probably cause is lacking and
imposes other standards of conduct.

Topic 2: Bias

Authorities: As employer, state and federal antidiscrimination statutes. As attorney representing client, MR

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8.4(d) cmt [3] construes words or actions that manifest “bias or prejudice based on race, sex, religion, national
origin, disability, age or sexual orientation” as conduct that is potentially “prejudicial to the administration of
justice” and thus unethical. M.R. 1.7(a)(2) conflict may arise if representing client against whom you are
prejudiced.

Sanctions: As employer, civil liability per statute. As attorney, face disciplinary action.

Avoid by: Recognizing that we all have our prejudices and being honest about your own.

Examples: Problem 12-6: Male lawyer who demeans and interferes with female lawyer trying to conduct
deposition (“dear” “sweetheart”) likely violated 8.4(d), and possibly breached 4.4(a)’s prohibition of intending to
embarrass, delay, burden etc., and probably LRs of court.
In re Charges: Court affirms “admonition” of plaintiff’s attorney who files motion for mistrial and then for a new
trial based on presence of judge’s disabled law clerk in court room claiming that clerk’s competence undermined
plaintiff’s own argument re permanent disability.

Topic 3 – Communicating with Represented or Unrepresented Persons

Authorities: MR 4.2 prohibits an attorney from communicating about the subject of the representation with a
person the lawyer knows is represented by another attorney in the matter without the consent of the other lawyer
or court order.
M.R. 4.3 requires lawyer communicating with unrepresented person to reveal lawyer’s role in the matter and to
NOT provide legal advice except to suggest the person obtain their own counsel.

Sanctions: Discipline, disqualification

Avoid by: Always ask person you contact if s/he has legal counsel: if yes cannot talk with person; if no, provide
disclosure to person and follow limitations outlined in MR 4.3. If unclear as to whether communication is
permitted in litigated matter, seek clarification from court.

Examples: Problem 12-7: M & F, who represent seller, are called by buyer, who wants to talk to them without
buyer’s lawyer to help speed the transaction along. Even though buyer initiated the call, Martyn cannot talk to
buyer directly unless she is certain that buyer has terminated A-C relationship with buyer’s lawyer.
Problem 12-8: M & F and their client believe their settlement offers are not being communicated by opposing
counsel to his client. M & F cannot send letter to opposing attorney and cc it to his client. Rule does not prohibit
client from contacting opponent directly, but M & F cannot facilitate that contact.

Also note: MR 4.2 is complicated when opponent is an organization represented by counsel. See SUSAN BECKER,
DISCOVERY FROM CURRENT AND FORMER EMPLOYEES. Also note attorney cannot use agent to engage in inappropriate
contacts with represented person per MR 8.4(a).

Topic 4 – Communicating with Judges and Jurors

Authorities: MR 3.5 prohibits ex parte communications between judge and attorney during pendency of the
proceeding and limits contact with jurors to that allowed by other authorities (e.g. LRs and court orders). Code of
Judicial Conduct 2.9 prohibits ex parte communication.

Sanctions: Discipline, criminal sanctions for jury tampering or bribery, disqualification of counsel or jurors or
both.

Avoid by: Do not engage with judge unless opposing counsel present. Don’t talk to jurors.

Examples: Problem 12-15: After losing “sure winner” jury trial, M phones three jurors at home and plans to talk

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to judge in person about the case. Propriety of contact with jurors depends on LRs and any court orders in the
case, and M must respect juror’s decision to not talk with her. Conversation with judge is appropriate after “the
proceedings” are over, but not if M plans or is considering post-trial motions or appeal, or if she anticipates
opponent might file these.

Also note: Ex parte communication allowed in limited circumstances (e.g. restraining order) but attorney must
reveal all material facts even if adverse to client’s position per MR 3.3(d).

Exam
5 or 6 short answer; 1 or 2 essays
1pt. for statement of rule in issue
1pt. per correct applications
1pt. for conclusion
Some short answers will come from multiple choice

Sample Answers

Confidentiality – key fiduciary, critical to A-C and functioning of justice system. Gen rule: can’t reveal any info
related to rep, even if appears to be public’s interest. Exceptions allow, don’t require breach of client confidences
(1.6): bodily harm/death is threatened, mitigate substantial injury to others fin. int. due to client fraud  only
applies if client used services to perpetuate. If atty aided fraud, even unwittingly, crime-fraud destroys AC,
allowing opponent to compel testimony.

Opposing Counsel questioning client re: facts. Object on A-C?

AC doesn’t apply. AC = X (Upjohn & Swidler). Prevents disclosure of AC communications that contain or
relate to advice provided by atty to client. Ex – opponent not entitled to letters, emails, memos b/w atty and
client. Client can’t invoke privilege to shield facts, even harmful, from disclosure. Hiding facts told to atty would
shut down legal system. Opponent can depose or X re: questions of fact (who what where when). Should not
object.

PI suit – 1/3 Fee; settlement conference – willing to settle at 1mil, I think more – no confirmed direction. Must
accept 1mil offer?
If client’s decision unequivocal, then yes. Client has power to control and make major decisions, atty must
follow, especially settlements (1.2(a)). Contingency – personal conflict. Must not let it cloud my judgment.
Client was vague, not compelled to settle. Must communicate offer and discuss pros and cons. Can advise to
hold out, ultimately clients decision and I must abide by it w/o undue influence.

Ohio Atty, Advertises in PA, clients in PA. Violations?

May be engaging in unauth. practice of law. Each state regulates within its borders. Gen rule – can provide legal
services only in juris where licensed. Can’t have continuous presence where not licensed. There are temporary
exceptions.

Relevant Essay Talking Points – New Firm Questions Raising Ethical Concerns (Broad to Narrow)
1. Conduct must satisfy CL fiduciary duties to clients including confidentiality, competence, avoiding
conflicts, clearly and timely communications, truthfulness, diligence, etc.
2. Most CL duties are reflected throughout the MRs; only apply if state adopts them; various state variations
3. Caution re: email communications of confid. info – must safeguard disclosure (MR1.6)
4. Competent to handle such broad range of representation? (MR1.1)
5. Can’t just take every client – need to avoid conflicts, represent all competently, diligently (do you have
the time and skill necessary?)
6. Advertising – avoid accidental clients
7. New attorney – need to supervise (MR5.3)

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 a. His clients – need to check for conflicts with other clients (MR1.7)
8. Non atty – need to supervise nonlawyers, especially with client funds (MR1.15)
9. Duties to perspective clients – CCC (MR1.18)
10. Repping the 3 accident victims – multiple client conflicts, divergent interests; consider carefully (MR1.7)
11. Diminished capacity issues (MR1.14)
12. Former firm’s environmental work on opposition in current case – conflict? (MR1.9) breach of
confidentiality (MR1.6)
13. Contingency fees – must be reasonable (MR1.5), communication all terms, written statement re: outcome;
settlement (MR1.8)
14. Advancing costs of litigation (MR1.8), not loaning clients money
15. Advance meritorious claims (MR3.1), Candor to court (MR3.3), Cooperate during discovery and not false
testimony or evidence (MR3.3 & 3.4)
16. Keep clients reasonably informed about status of representation (MR1.4)
17. Clearly communicate acceptance or rejection of representation (MR1.4)
18. Make sure clients are in control of the decisions (MR1.4)
19. Clients can terminate; atty can’t just walk away unless client is protected (MR1.16)

Self-regulating – adequate to protect clients/public? Why or why not?

1. Each state has power to regulate all aspects of legal prof – limited by constitution (due process, 4th, 5th,
6th)
2. The good:
a. Screening – vigorous pre-admissions review
b. Post-bar – codes are comprehensive – rules and comments, CLE
c. Rules impose vicarious liability to supervisors, firms for misconduct
d. ABA, state bars, other entities provide range of advisory opinions, classes, etc.
e. Other regulatory mechanisms compliment MRPC, crim law, civil malpractice
3. The bad:
a. Self-regulation analogized to fox guarding hen house.
b. Lots of history of minimal discipline  poor public image
c. Rules are aspirational, not absolute (pro bono, disclosure of confid. info)
i. Alton Logan
d. Ethics rules permit lawyers significant discretion – “knowledge,” reasonable, etc.
e. Clients aren’t sophisticated and don’t necessarily recognize incompetence, etc.
f. Lawyer are required to, but rarely do, report misconduct

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