Professional Responsibility Outline

General Rule of Thumb: 1) 2) 3) 4) 5) shall vs. may distinction look at the language of the rules in the jurisdiction Always look at the commentaries after the rules Always start with the relevant rules. ONLY USE moral reaction for issues NOT solved by the rules. Other sources besides the model rules a) law of legal malpractice and fiduiciary duties; malpractice is judicially created by common law. Cts also have fiduciary duties by statute or common law ex) no person may serve two masters. This could be a tort suit. b) Federal and State Law ex) Sarbannes-Oxley imposed statutory duties on lawyers which go beyond the model rules ex) Ethics in Govt Act prevents revolving door where govt lawyers enter private sector and vice a versa outlines what they can/cant disclose c) Criminal Statutes Federal Obstruction of Justice ex) a lawyer proceeds at their own peril if he/she doesnt know the reach of the laws as to what counts as obstruction of justice d) Federal Rule of Criminal/Civil Procedure - Rule 11 most important rule. Signature of a lawyer on a pleading means it is well grounded in fact, not done just to raise costs, not frivolous, etc. e) Law of Evidence: Law of Privilege: 1) attorney-client 2) work product f) Ethics Opinions of Ethics Committees of States and ABAs - these are advisory only, NOT binding - it releases interpretations of the rules g) ABA standards on prosecution and defense functions - define both what is competency and ethical behavior of lawyers (specifically prosecutors or defense attorneys) in criminal procedures. i) Professional literature, treatises, and law review articles **There might be irreconcilable conflicts within these rules ex Rule 1.6 you cant reveal client info, but then there are 6 exception. If client sues

you for malpractice, what can you disclose to defend yourself? What happens to rule of privilege? Roles of the Lawyer: A) Common Carrier - lawyer is like a taxi cab driver and must serve anyone who can pay the fee. More common in UK than in the US because US lawyers are free to decline anyone, unless it is a ct. appointment. More public interest oriented, helping poor people in need of service by compelling service B) Medical Model everyone is entitled to a lawyer and the lawyer should sit in moral judgment over the client. The Dr. wouldnt refrain from giving medical service if personal is immoral. its up to G-d to sit in judgment of a client Bennet Williams C) Hired Gun Model its an adversarial system and actors are neutral to carry out instructions of a client, as long as its ethical. Do whatever the client wants, but for the fact that the client is not an actual lawyer. This is the mouth piece theory D) Moral/Ethicial/Ideological approach see laws as vehicles for social change and a belief system. These are usually political people and are very rare. E) Combination of some or all the models

Regulations of the legal profession

Rules that apply BEFORE you become a lawyer: 1) Rule 8.1 Bar Admission and Disciplinary Matters: an applicant for admission to the bar or a lawyer in connection with the bar admission application, or in connection with a disciplinary matter, shall not: a) knowingly make a false statement of material fact, OR b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority EXCEPT, that this rule does not require disclosure or information otherwise protected by rule 1.6 - standard under this rule is good moral conduct and character - CAN be denied admittance to bar, but CANNOT be disciplined for having bad moral character. You need to violate a specific rule. **Constitutional limitations on bar inquiries. If answers could lead to relevant information, then its OK to ask questions like have you been convicted for alcohol abuse? or have you had mental conditions. BUT, the ADA prevents employers from asking applicants certain questions; unclear If ADA applies to bar admission, which would go to the mental conditions. -- If bar examiner asked whether youre a communist, the S.C said that you dont have to answer because it would be a violation of 1st amendment rights (Prof said No, Sir.) 2) Rule 8.4 Misconduct 2

- this is a catch-all rule - section (b) commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness, or fitness as a lawyer (marijuana possession) Comment 2 => The rule is strict and does not punish an attorney simply for moral turpitude (bad character cheated on your wife, or youre just an asshole, wicked). Rather, to be in violation, the person must be dishonest in the actual practice of law. This is a more functional approach allows lawyers to do whatever they want (you can cheat on your wife, and you arent immoral). - section (c) conduct involving dishonesty, fraud, deceit or misrepresentation (could apply to student dean, or even a lawyer representing the student, depending on what they do during the admissions process.) ex) If the law student changed his name after his conviction on marijuana possession, the name change itself will not trigger denial to the bar. However, if done to conceal his past conviction, then that would create grounds for denial. Ex) The Dean cannot suppress the students cheating record - section (d) conduct that is prejudicial to the administration of justice (this is a very broad category) (bribe a juror) 3) Rule 8.3 the Snitch Rule - duty to report professional misconduct 3 Prong Test (need all 3): 1) Knowledge by the lawyer 2) violation of the rules by another lawyer 3) violation raises a substantial question as to the others lawyers honesty, trustworthiness, or fitness. **If all three are fulfilled, the lawyer inform the appropriate pro ro authority. Ex) Drunkin lawyer. Andrews (other lawyer) has knowledge of Blacks (drunkin lawyer) alcoholism because he tried the case against him. 1.0(f) knowingly, known, or knows denotes actual knowledge of the fact in question. A personal knowledge may be inferred from circumstance. So, Prong 1 is fulfilled because he has direct knowledge that he is an alcoholic Prong 2 is fulfilled because Black violated 1.1 (failed competent representation). Prong 3 - However, the violation does NOT raise a substantial question of the lawyers honesty, or trustworthiness, but it COULD get at the fitness. *if he was drunk one time, it wouldnt be a substantial question of fitness Comment 3 to make a measure of judgment on what to report. The other lawyer must decide if he thinks that there is enough of an issue or violation of rules to report. It is SO subjective!

Similarly, under rule 3.4(d) lawyers cannot make frivolous discovery requests, however, this happens all the time and requiring disclosure under the snitch rule would create streams of litigation. 5 Disciplinary Sanctions: 1) Disbarment 2) Suspension from practice 3) Public Censure 4) Private Reprimand 5) Informal Admonition slap on the wrist ***Is cheating or conviction of marijuana automatic bar from getting in? While it does reflect on character, was it youthful indiscretion? Should it ruin him forever? Covering it up can be bad if they find out, but telling them wont necessarily help you either. Problem 2 Drinking Problem affecting the worker Rule 1.1 - Duty of Competency of Lawyers A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation, reasonably necessary for the representation. *Remedy for lack of competency is usually a severe sanction like loss of attorneys fees. Ex) Attorney writes himself into a clients will. => alcoholism is not a violation, but it may go to mitigation or sanction. The alcoholism in and of itself isnt the violation, its the fact that the competency is impacted by the condition. Even if impacted (the lawyer isnt meeting the duty), the alcoholism can be used as a mitigating fact like get help, not lose license. 3 Part Test for mitigating a sanction (Kersey Case) 1) There is an addiction. EX) in the state of alcoholism (prescription drug addition. But cocaine addiction is NOT an addiction because its illegal) 2) There is a causal relationship bt. the addiction and the misconduct **this is very important 3) There must be a proven commitment to rehabilitation Other Applicable Rules: Rule 1.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client Ex) Settlement to client that was inadequate (would be a violation) *Comment 1 a lawyer has duty of zealous advocacy. A lawyer cannot settle a case just to get it off his chest so he can move on to another client.

Rule 1.4 Duty to Communicate with Clients Properly Rule 1.2(a) Lawyer CANNOT make the decision to settle. The CLIENT must make that decision.

How to determine if there is an attorney client relationship, and if the rules even apply
Rule: Clients reasonable belief or expectation that the person is her attorney. Does NOT matter what the lawyer believesONLY what the client believes. So dont do your friends legal favors because you could be subject to the rules. Rule 1.1 Competency - Comments 2 and 3 An attorney should only take on a matter for which she is not specialized when there is an emergency situation. Rule 6.2 Accepting Appointments - Comment 3 An appointed lawyer has the same obligations to the client as retained counsel does. Malpractice Liability: 2 elements: 1) must breech the duty of care, AND 2) Establish that the breech caused an actual injury ***If a client pleads guilty, than that client cannot have a malpractice action against the lawyer for claiming that the lawyer threw him to the wolves.

Scope of Attorney-Client Relationships

1. When does the attorney- Client Relationship come into existence? - when the client signs the engagement letter, however, up to the signing of the letter, the client is a prospective client, and 1.18 applies. A) Prospective Client (1.18(a)) a person who discusses with the lawyer possibility of forming a client-lawyer relationship with respect to a matter. A reasonable belief of the client in to thinking that the lawyer agrees to represent him. (lawyers perception is irrelevant) B) Duties to a prospective client: 1. Confidentiality see 1.6 2. Avoid Conflict cant represent both opposing parties 3. Lawyer must be competent see rule 1.1. **Comment to 6.2 lawyers has no duty to accept a repugnant lawyer or cause (lawyer can choose to open the door to the relationship or deny it. If they open the door, then they are bound by all the above rules)

2. What is the scope of representation? Can a lawyer seek only certain remedies and only use certain arguments or do they have to use arguments that the client wants to use? A. Under 3.1 and Rule 11, the lawyer may not make frivolous arguments to the court, even if that is what the client wanted. Rule 3.1 lawyer must bring a claim that is not frivolous, has sufficient merit in law and fact, and includes a good faith argument for an extension, modification, or reversal of existing law. This rule applies an objective test, as to whether the claim as merit. ***If the clients purpose is to retaliate, as long as it meets 3.1, it is ALLOWED B. Assuming that the argument is not frivolous, the lawyer can reasonably limit the clients objectives under the circumstances, as long as the client gives informed consent (1.2(c) Comment 6) - Rule 1.0(e) Definition of Informed Consent agreement bya person to propose course of conduct after the lawyer has communicated adequate information and explanation about the material risks of, and reasonably available alternatives to, the proposed course of conduct. Usually requires an affirmative response by the client (a lawyer cannot assume consent from silence)

Extent of Lawyer-Client Autonomy

A) Rule 1.4 You have a duty to tell client what you will say about him and Rule 1.6 prevents lawyer from pleading it without the clients consent B) Ethically, lawyer has a duty NOT to speak about client if he doesnt want you to. This is client autonomy (1.2(a) comment one) C) Lawyer can refuse to make a claim that is not solvent at all. This is lawyer autonomy. Ex) The client wants you to argue that the statute in the 1800s had an ampersands symbol, it only would have been a good argument in the 1800s, not today, so you dont have to argue. D) Professional Courtesy can be done without clients consent, when it is not a material part of the case. (Rule 1.3 comment 1 and 1.2(a) comment 1) Ex) You can grant a delay if your adversary requests one (dont need to check with client) E) Client behaves in an irrational manner.

1. Rule 1.14(b) - If the lawyer has a reasonable and bonifed belief in the clients decision-making capacity, the lawyer may take reasonably necessary protective action including the appointment of a guardian ad litem to make decisions. Ex) client wants to death penalty and wants the lawyer to avoid appeals.

Settlement
Who has the power to make settlements? 1. Rule 1.2(a) A) Civil cases - lawyer must abide by client decision to settle or not (full client autonomy) B) Criminal cases lawyer must abide by clients decision after consultation of how to plead whether to waive jury trial, and whether the client will testify. You have a duty to argue with your client about their decision and the alternatives, but ultimately the client will have the last word. Withdrawal how to get out of the attorney-client relationship? A) Rule 1.16(b) and comment 7 DOES permit withdrawal under certain circumstances: 1. Withdrawal can be completed without material adverse effect on the interest of the client 2. Lawyer reasonably believes that the client is engaging in crime or fraud 3. The client has used the lawyers services to perpetrate a crime or fraud 4. The client insists upon taking action that the lawyer is repugnant 5. The client fails substantially to fulfill and obligation to the lawyer regarding the lawyers services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled (fees) 6. Representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client 7. Other good cause exists **If case has started, you need permission from the judge **Much easier to get into the relationship than out.

Attorney Fees
Rule 1.5 (8 FACTORS) fees cannot be unreasonable or excessive *8 factors are not exhaustive A) Time and labor required novelty and difficulty and the skill requisite necessary to perform the legal service.

B) Taking the claim will not preclude other employment by the lawyer (opportunity costs if it does preclude the other employment, you can charge this client more) C) Customary fee in the locality for similar legal services. D) The amount involved and the results obtained (this is subjective) E) Time limitations imposed by client or circumstances F) Nature and length of the professional relationship with the client G) Experience, reputation, and ability of the lawyer H) Whether the fee is fixed or contingent (if contingent is split evenly between client and lawyer, then it is unreasonable) EX) Should lawyer make a settlement that requires no work, an easy $5000, where client would get 10,000, but if you do work youll get $20,000 and client would get $40,000. You should go through the factors for this. Retainers Upfront payment from client to lawyer that covers initial expenses. Once retainer is completed, attorney cannot represent another client. Non-refundable retainers lawyer keeps retainer whether or not he does any work. - economic argument is that you are dealing with lost opportunity cost - corporate clients might use this as a strategy to bind the lawyers so they cant go against them and represent competitors Rule 1.5(b) lawyer must communicate rate and basis for which he is charging. Cannot just say that I will charge the standard rate. Contingent fees MUST be written. Exceptions when you CANNOT have contingent fees 1. 1.5(d)(2) - Criminal Cases dont want lawyer to have financial stake when dealing with defendants liberty. 2. 1.5(d)(1) domestic relations cases (divorce or alimony) Illegal billable Hours Schemes: (Two Types) 1. Rule 1.8 it is illegal for lawyer to take stock in place of money because it creates a special relationship with the client. 2. Recent court attacks on hour rates plaintiffs argue it is quantity over quality, and they try to strike down you eat what you kill mentality. Claim is that the lawyers arent really doing much for them, but rather is just running up clock.

Handling Client Funds and Property

1. Rule 1.15 Presumption of automatic disbarment for intention of impermissible property taking

Ex) Lawyer cannot hold on to the ring that is part of the lawsuit. Lawyer must notify the client and deliver the ring. Ex) Lawyer cannot hold on to full settlement value. She can hold on to the portion that the client is willing to pay ONLY. 2. Rule when collecting and holding settlement funds, lawyer cannot commingle client and lawyers funds together. But you can keep all clients funds together. So, if you have 50 clients all their money may be placed in an account together.

Confidentiality
A. Attorney-Client Privilege (3 Prong Test) 1) Covers confidential communications from the client to the lawyer for the purpose of receiving legal advice from the lawyer. 2) Communication from the lawyer to the client covers the legal advice given 3) Intent to keep information confidential. If other people are involved, then the privilege is broken. **** Rule 1.6(a) a lawyer shall not reveal info relating to the representation of a client. Thus, it does not matter whether the lawyer learned it for preparation of the case or at a social function, as long as it is FROM the client. Ex) Banker tells lawyer info at a social function this is NOT privileged because this is not a client seeking legal advice from the lawyer. This is not work product either because it is not done in anticipation of litigation. Exceptions making duty of confidentiality inapplicable Rule 1.6(b): 1. Waiver express or implied: a. Express informed consent by the client to allow the lawyer to disclose b. Implied: ex) in an negotiation, the statement my client is in a bad financial state, would make sense to talk about. So, you would be given implied authorization to make that statement. Ex) rule1.6(b)(2) and comment 9 says that it allows a lawyer to use confidential information as reasonably necessary to seek legal advice about the lawyers compliance with ethics requirements Rule 1.6 lawyer must take reasonable steps in the circumstances to protect confidential client information against impermissible use or disclosures. If you make a mistake and release confidential info (like send a fax to your opponents or the wrong people), waiver does NOT result if the lawyer or the client or other disclosing person took precautions reasonable in the circumstances to guard against such disclosure (Disclosure will be presumed NOT to have been voluntary) 2. A lawyer MAY reveal info, but does not have to, if they reasonably believe it is necessary to: a. 1.6(b)(1) to prevent reasonably certain death or substantial bodily injury

b. 1.6(b)(2) to prevent the client from committing crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyers services. **This rule looks to the future, prevents client from doing something in the future. This is an Enron exception. c. 1.6(b)(3) Rectification Exception (Past Acts). To prevent, mitigate or rectify substantial injury to the financial interests of another that is reasonably certain to result or HAS resulted from the clients commission of a crime or fraud in furtherance of which the client has used the lawyers service. Another Enron exception exception looks to mitigate or rectify a bad act that the client did in the past. d. 1.6(b)(4) to secure legal advice about the lawyers compliance with the model rules. e. 1.6(b)(5) situation where client and/or 3rd party sues lawyer for fraud or another charge. Lawyer COULD, in order to show that lawyer did not know anything about the fraud, testify. Lawyer can only disclose things that are reasonably necessary to prevent fraud, or prevent the charge against the lawyer at hand (and so lawyer can get their money) ex) if client stiffs you and lawyer wants to disclose, then comment 11 allows. f. 1.6(b)(6) lawyer may disclose to comply with a law or final court order **** Be aware of cross-references to this rule, such as 8.3 (snitch rule) which does not require disclosure of info that is protected by 1.6. - Rule 3.3. Duty of Cando to Judges can override 1.6 confidentiality. 3. Choice of law which exception applies? Rule 8.5: if the predominant effect of the conduct is in a jurisdiction, the rules of that jurisdiction apply. A lawyer, however, shall not be subject to discipline if the lawyers conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of his conduct will occur. Ex) Def lived in VA and sought legal advice in DC. You have office in both VA and DC. Def could reasonably be expected to commit crime in VA and predominant effect would be in VA. So, the lawyer must follow the VA ethic rules, which call for mandatory disclosure of crime. (unlike model rules with calls from permissive disclosure you can if you want) ***See page 148-155 on various state ethics rules on disclosure of client misconduct

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***Marital Privilege, Priest-penitent, and Doctor-Patient are ABSOLUTE privileges that cannot be overcome by necessity Crime-Fraud Exception if a client consults a lawyer for the purpose of carrying out an ongoing or future crime or fraud, this is NOT privileged. Lawyer can be completely ignorant to the crime or fraud. If the fraud or crime was committed BEFORE the attorney-client relationship arose, it is merely a recollection of fraud and this WOULD be protected. (what you did in the past is protected, but not what you will do) This applies if LAWYER tells client to shred papers or commit another fraud or crime. Client can always be required to testify to underlying facts, as long as hes being asked what he knew or observed and not what he communicated to lawyer about what he knew or observed. (protects the info in the relationship) If client turns over documents, like a diary to lawyer, it is only privileged if it is for the purpose of facilitating legal services and not merely facts about the case.

Work Product Qualified Privilege

4 Prongs: 1) Anticipation of litigation 2) Preparation of the case 3) Contains lawyers opinion about a persons credibility, or otherwise 4) Privilege is qualified, so when opinion is involved with interviews, and credibility, there is usually a high level of privilege that is very hard to overcome by necessity. (a written statement given to the lawyer is still technically work product, but has less protection than oral interview) Redaction is used to make some info available to the extent that it is factual and not opinion.

Confidentiality and the Organization as the client

1. Upjohn Case S.C held that attorney-client privilege is strictly one of the company, so only the company can assert or waive permission to disclose and the individual employee has no control over his own disclosures to company attorneys. 2. 5 Prong criteria for company to preserve the privilege: a) communications made by employees to counsel for company acting as counsel for the company ex) corporate boss has a law degree. In order to privilege the information, he must talk to the employees in his capacity to dispense legal advice (the person giving the advice must be wearing the attorney hat when giving the legal advice) **** Best advice is for outside counsel to do the interviewing

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b) Privilege is definitely secure if corporate superiors direct low level employees to interview lawyers (told to act in corporate name), BUT not clear that if employees voluntarily went to lawyers there would still be / protection c) Privilege is definitively for matters within the scope of the employees duties, but not clear if employee did not have the job duty that it would be privilege ex employees speaks about something they regularly do in their employment. But if they want to disclose information about what they heard with regards to securities regulations, and they dont normally deal with that, then not necessarily privilege d) Employees must be aware that they were questioned so that the corporation could obtain legal advice. If the lawyer personally represents the employee and the questions are not on behalf of the employer, then there is no privilege. e) Need intent to keep info confidential ***** the above exceptions, like crime fraud, ALWAYS apply to the corporate setting (ex. Destroying smoking gun memo would be a clear obstruction of justice and fall within the crime-fraud exception) ***** Upjohn also applies work-product privilege to a company that is responding to an agency subpoena ***** Attorney-Client Privilege survives the death of both the attorney and the client

Loyalty to Clients (Conflicts of Interest)

no man can serve 2 masters First, you must determine which kind of representation issue you are dealing with: a) Concurrent Rule 1.7 b) Successive Rule 1.9 ***1.8 and 1.10 (Imputation) might apply with both Rule 1.7: Conflict of Interest: Current Clients ***(b) overrides (a)

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(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involved a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyers responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believed that the lawyer will be able to provide competent and diligent representation to each affected client; (objective standard) (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; AND (4) each affected client give informed consent, confirmed in writing ***for 1.7(b) in order to represent concurrently, you need not only informed consent, but also the other three prongs need to be met. These include: not representing the same clients in a litigation before the same tribunal, not including representation prohibited by law, and not if the lawyer reasonably believes that he cannot competently and diligently represent each client **TRIBUNAL def 1.0M a ct, arbitrator, legislative body, admin. agency, or any other body acting in an adjudicative capacity. 1.7(a)(1) actual conflict directly adverse 1.7(a)(2) Potential conflict significant risk. Broader than (a)(1) Comments 1-8 from 1.7 #1 lawyers always needs loyalty and independent judgment #3 conflict of interest can exist BEFORE representation is undertaken, in which event the representation must be declined, unless the lawyer obtains the informed consent of each client under conditions of paragraph b #4 If lawyer find conflict AFTER representation has been undertaken, the lawyer MUST withdraw #5 conflicts could arise midway through the representation when a company that is sued by the lawyer is bought by a company that the lawyer represents. The lawyer may have the option to withdraw. #6 Directly Adverse Conflict of Interest without consent, a lawyer cannot act in one matter against the person the lawyer represents in some other matter, even when the matters are wholly unrelated. ex)

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#8 material limitation example, lawyer representing several individuals to form a joint venture because the lawyers ability to recommend all possible positions is limited due to loyalty to all the others.

Under 1.7(b)(1) the reason it is objective is because if the lawyer subjectively had a reasonable belief that he could provide competent advocacy, then because of greed, lawyer would represent everyone. Why have these conflicts of interest laws? 3 interests underlying reasons for these rules: 1) zealous representation hard to be zealous if attorney pulls his punches. 2) 1.6 Confidences must be protected. In dual-rep cases there might be concern for breach of confidences 3) Image lawyers dont want the image as the hired gun Ex) Confidence problem 9 pg 165 Lawyer representing both husband and wife in divorce Confidence issues: 1) husband thinks that $1,000 for alimony is cheap. Lawyer knows this and now he has an incentive on behalf of the wife to try to get more. 2) Lawyers can get info about the secrets of the marriage. If he learns one was fooling around these may be temptations by the lawyers to expose it in ct. Ex) in economic cases (partnership takes you on as counsel for all of them), it is less contentious and easier for parties to consent and because it isnt a litigation, it doesnt deal with same parties before a tribunal (it would need to be transactional onlyNOT litigation). ** 1.13(g) There is NO per se rule against representing an entity, its shareholders, management and its components. But, the situation is still subject to 1.7. EX) Company has evidence that an officer of corp has been stealing $ from it. Can you represent him? 1.7(a)(1) direct adversity bt. interest of company and individual. Informed consent probably wont help have either. Remedies for when you have a conflict under the written rules A) Motion to disqualify judges dont like to do it because it derails the litigation B) Malpractice - lawyer may have to give back fees or even pay client to get a new lawyer C) Bar Authorities professional discipline ***lawyers must balance obtaining new business and following ethical rules. What is lawyer represented BOTH clients and then dropped one to represent the other?

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NO NOT ALLOWED. He couldnt represent EITHER. Because he would have confidence issues (see 1.6) Can he have other lawyers in his firm represent either of them? NO 1.10(a) Imputed disqualifications if one lawyers in firm is disqualified under 1.7 or 1.9, all lawyers in the firm are disqualified. **Screening might be a possibility (1.0(k)). But it wouldnt work with the divorcing couple. Even if the firm is so large that lawyers dont know each other, the rule is the same. Problem 10 pg 178 (see book) First issue: Can you represent 1st national and International Bolt? You have 2 rules to worry about 1.7 and 1.9. If this is a present client situation (Concurrent 1.7) There could be a way to override 1.7(a) using 1.7(b), if the matters are completely separate and different because then there is more of a chance for the lawyer to be competent and diligent. ***assuming that they are concurrent and their consenting then you can override it. If you dont have consent, then they fail 1.7(b), and then 1.7(a) controls. Now, assume that Bolts is considered a former client: turn to 1.9. 1.9 - Duties to Former Clients (a) a lawyer who has formerly represented a client in a matter SHALL NOT thereafter represent another person in the same or substantially related matter in which that persons interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) a lawyers SHALL NOT knowingly represent a person in the same or a substantially related matter in which a FIRM with which the lawyer formerly was associated had previously represented a client. (1) whose interests are materially adverse to that persons AND (2) about whom the lawyer had acquired information protected by Rule 1.6 and 1.9(c) that is material to the matter unless the former client gives informed consent, confirmed in writing (c) A lawyer who has formerly represented a client in a matter or whose present or former FIRM has formerly represented a client in a matter SHALL NOT thereafter (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; OR (2) reveal information relating to the representation except as these rules permit or require with respect to a client.

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Under 1.9(a), you can represent both without consent, if it is not the same or substantially related to the former clients previous work. 1) what is a former client? it is gray because bolt may be a present client, which would take you out of this and put you into 1.7. 2) What is a substantially related matter? **If ANY case, whether former or present client, you are NEVER relieved from the duties to uphold confidences in 1.6 **Can you represent one client and sue a previous client but it is on a different matter? It is presumed banned, but consent of the parties will make it OK. If same or substantially similar matter it will be presumptively a no no (1.9(a)), but consent will make it OK. If it is a past client but not substantially related situations, then it is fine OK even w/out consent. Positional Conflicts can you take on a matter for a new client, which is not directly against the present client but may adversely effect the present client because of your position in the matter. (look to 1.7(a)(1)) Ex) first national bank doesnt want you to bring case against second national because if you win then it could set a bad precedent for present client first national. If it is a factual issue that you arguing that is counter to your present client, then you likely cannot do that. But, legal inconsistencies are easier to rationalize Ex) harder to argue that smoking causes cancer and then in a later case argue that smoking does not cause cancer. Ex) You can argue to uphold Roe v Wade in one case for one client and then argue to reverse it in another one. It is inconsistent positions, but youd have to tell both clients. Problem 14 pg 239 Turn to rule 1.9 (Duty to Former clients) ***if the matter is not the same or substantially related you can represent and do not even need consent Ex) you previously represented in adoption case and now you are representing a different client in a medical malpractice case against the person you did the adoption for. These are NOT substantially related nor the same, so you can represent w/out consent. However, lets say when she represented the dr for the adoption she learned he had a drinking problem and argued that he should still get the child. Now she wants to use the fact that he has a drinking problem to prove that he is guilty of med malpractice.

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NOT ALLOWED under 1.9(c)(1) which says you cant use info from previous representation NOT ALLOWED because of 1.6 Confidences (ALWAYS THINK ABOUT CONFIDENCES ISSUES) So you could argue that she might be unable to do proper representation because of the restriction on info. ***1.3 comment 1 may be implicated because she might have to pull her punches because she cant attack his drinking problem because that would violate the confidences and proving a doctor has a drinking problem would be a strong case in medical malpractice.

Imputed Disqualification
Rule 1.10 Imputation of Conflicts of Interest: General Rule (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limited the representation of the client by the remaining lawyers in the firm. (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm UNLESS: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by rules 1.6 and 1.9(c) that is material to the matter. (c) a disqualification prescribed by this rule may be waived by the affected client under the conditions stated in rule 1.7. (d) the disqualification of lawyers associated in a firm with former or current govt lawyers is governed by rule 1.11. ex) Xerxes represented National Gasket in products liable in case one. Now, C&B is representing World wide in another case and the facts are the same as with N.G.. And C&B and Xerxes&W are both representing World Wild. - Xerxes has a lot of info on National Gasket. National Gasket moves to strike C&B for bringing in Xerxes&W, and Xerxes himself for prior representation, and W for imputed representation. ***World Wide could have sued claiming punch pulling First question can Xerxes represent World Wide in Case two? NO because under 1.9, the matter is the same or substantially related to the first representation, N.G did not give consent

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Can W represent World Wide? No, because under 1.10(a), if any lawyer is disqualified in the firm under 1.9 OR 1.7, then the whole firm is disqualified. X was disqualified under 1.9, so the firm W&X is disqualified. Flat disqualification regardless of whether X disclosed anything. Can C&B represent world wide in case 2? YES because under 1.10(a) because imputed liability kicks in while lawyers are associated in a firm. C&B are NOT associated in a firm because they are separate from the firm XW You can try to make the argument that they SHOULD be disqualified because they are associated in the same firm because they could have a fee sharing arrangement, share office space, even despite not having a partnership agreement. ***Screening as a possibility if you can do it before info transfers Now Xerxes left X&W firm and started a new firm himself? World Wide CANNOT hire him still disqualified under 1.9 AND the new firm he joins will have imputed disqualification under 1.10. He will forever be disqualified. (Scarlet D for 1.9) Xerxes left and W is still in the firm. Can Worldwide hire W under 1.10? There is an argument that W does not have info from Xerxes about National Gasket. BUT, W must AVOID fulfilling 1.10(b)(1) and 1.10(b)(2) because there is a presumption that when the lawyer leaves the firm can represent unless these two prongs are fulfilled: If a lawyer (Xexeres) terminates association with a firm, another attorney (W) in that firm CAN represent the client UNLESS the matter is substantially related or the same as the former case AND any lawyer remaining in the firm (like W) has info protected by 1.6 and 1.9(c) that is material to the matter. So, there is an argument that W didnt share material info so that he could represent world wide. Suppose Jones is an associate at W&X this associate IS disqualified at firm w&x under 1.9 and 1.10 because ALL lawyers in the firm are disqualified Now, Jones leaves w&x and joins firm A&P, does she taint the pool and disqualify A&P? Policy concerns that all firms will be tainted and all lawyers will be disqualified forever and ever. The solution to let her represent at A&P is that she is not personally involved in a 1.7 or 1.9 situation, she was only under 1.10, so literally she is not barred by 1.7 or 1.9. **associates DO NOT carry the imputed disqualification. What if W had left the firm and joined A&P? could he make the same argument that Jones makes as associate? Does being partner matter? W&X are definitely disqualified, but can w&x recommend a firm across the street? YES then can because 1.10 applies to only lawyers associated in firm **make bullshit argument that the two separate firms MIGHT be seen as one firm under 1.10 if they share office space or have a fee sharing agreement.

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Can w&x send the case to a firm where Xerxess wife practices? **Spouse is personally qualified from handling the matter, but spouses firm CAN represent under comment 10 of 1.7. What rule disqualified her???? Summer 1 you work for on case at B firm Summer 2 you work on case at C firm on opposite side Does that disqualify C firm? **Rules ONLY apply to lawyers and this is a law student, BUT, the law student must be screened out and cannot assist with the case. 1.0(k) Screening - screened denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these rules or other law. Ex) you work for a firm 2L summer and then you get associate job after graduation with a different law firm on the opposite side. Is there firm wide disqualification because now you are an associate? NO firm would NOT be disqualified because under comment 4 of 1.10 you were not a lawyer at the first firm during the 2L summer, but again, you would have to be screened. (see screening 1.0(k)) Problem 12 1.5 Fees If lawyer helps set up a corporation, it is not per se illegal for lawyer from accepting stock or payment. It is not per se unethical to be a lawyer for the company and companys director if acting solely as a lawyer its ok. But, if you have an interest in the company in some form, then it may be considered fraud. If you are a shareholder, you are not a disinterested party. Layer might be concerned with the short run or long run value, which might lead to adverse positions from what the client wants. Why is this fraud? How can a director be uninterested? If lawyer bought property without consulting client =>bad. Because general duty forbids a fiduciary from taking an opportunity from a client. If client says that they arent interested in the property thats ok (client consent) 1.8(B) lawyer should not use secretes to the disadvantage of the clients BUT, if it benefits lawyers AND it wont hurt the client, then the CAN do it without their consent. 1.8(c) limits a lawyers ability to prepare instruments (like wills) that the lawyers will get property and substantial gifts. 1.8(J) No lawyer/client sexual relationships UNLESS:

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A) consensual relationship arose BEFORE the lawyer/client relationship arose Conflicts in criminal cases **3 different statuses that the client may have: 1) target person or corporation likely to be charged with a crime 2) subject a suspect or person or corp whose conduct is under investigation 3) Witness person who has info about the crime but is NOT the target or subject There is an indictment against Bitter Creek. Carson at Bitter is accused of conspiring with Morton at Witchitek. Bently represents both Carson and Morton and Bitter US attorney offers Bently a deal for the two people to pled guilty without time and in return to drop the case against Bitter all together. Violations? 1) Federal govt could say that it is a criminal obstruction because the prosecution makes its cases through having people rat on each other. Bently, by representing both makes sure that they dont rat. (this is a current rep problem 1.7 and 1.9). It is directly adverse because you would have finger pointing between the clients The company would say that Carson was on a frolic and company would avoid vicarious liability while Carson would say that he was acting for the company. It is likely that lawyer could not represent all three. Consequences: obstruction of justice charge or lawyer may be barred from representing any of them. This would ALWAYS violate 1.7(b)(1) because lawyer cannot completely and diligently represent each client. 1.10 bars another attorney in the lawyers firm from representing Carson while you represent Morton. **as long as it is not the same firm, you can bring in a lawyer friend that youve cooperated with in the past to represent Morton as long as you dont call him in as a jointrep to share information with. ***if you represent a target, you cant represent a witness or subject, but it is hard to know if they are a target at the beginning of the investigation. If person BECOMES a target, and you represent a subject, you have to drop one of them. ***cannot represent multiple targets or multiple defendants. **MAY be able to represent two witnesses Joint-Defense Agreement A lawyer whose clients have common interest can share information and this is allowed. But, information is still privileged as to anyone else. But two clients cannot share the info. Alternatively, if client have falling out, and have litigation against one another, than attorney-client privilege falls away, and the info is fair game. In insurance defense cases the lawyer represents the insured policy holder ONLY, and is ONLY answerable to that client. Even though insurance company may be paying the lawyer, it would be malpractice and a 1.8(f)(2) violation for the company to call the shots on how much the effort should put in. Just because you are paying doesnt mean you are the client or can call the shots. You have to listen to your CLIENT.

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Advertising (the delivery of legal services)

Rule 7.1 Communications concerning a Lawyers Services A lawyer SHALL NOT make a false or misleading communication about the lawyer or the lawyers services. Communication is false or misleading if it contains a material misrepresentation of fact or law, OR omits a fact necessary to make the statement considered as a whole not materially misleading. comment 1- this cover ALL communications about a lawyers services, including advertising Comment 2 -intent DOES NOT matter. If you think what you are saying true, but it is materially misleading because it omits a material fact, youre screwed! Even truthful statements can be a violation. It is also misleading if it will lead a reasonable person to formulate a specific conclusion about the lawyer or his services for which there is no reasonable factual foundation Comment 3- an ad that truthfully reports a lawyers past achievements may be misleading if a reasonable person can form an unjustified expectation that the same results could be obtained in similar matters without reference to the specific legal or factual circumstances of each clients case. A lawyer also cannot compare his services or fees with other lawyers services or fees if a reasonable person would conclude that the comparison can be substantiated. Even if they look similar, that is enough to be a violation. A lawyer could include a disclaimer which could avoid unjustified expectations or otherwise mislead a prospective client Ex) Ad says my doctors degree in law is the professional degree a lawyer normally earns This is probably OK because it is not false or misleading. It is not a material misrepresentation of fact or law, nor is it an omission. Ex) Some former clients have agreed to act as references This is a violation ONLY IF he paid these people to give references. It is a violation under 7.2(b) because lawyers cannot pay for testimonials or references. Ex) I am unusual in one respect, I charge clients a flat rate of $95 per hour win or lose, big case or small case. The lawyer must show how he is unusual or else it is misleading. The lawyer has left out expenses like filing fees and how many hours he would work. It is a violation because he omitted the information about the other lawyers prices. It is materially misleading because the price makes a person think that is all they have to pay, although there are filing fees and we dont know how many hours he will work. Ex) Most of my clients have found that it saves them a great deal in legal fees like real estate and probate Misleading because he does not define what most means. He must show it is at least 51% AND he must define how much a great deal of savings is. He implies promises of superior results and that he is somehow better than others and this is misleading.

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Bates Case SC held that it was constitutionally protected under the 1st amendment for lawyers to set up a clinic and advertise in the newspaper listing conventional legal services. Ex) what if lawyer wants to read an ad on TV? What if lawyer hired a celebrity to read his ad? This may imply that the celebrity has used the lawyer, so it MAY be misleading under 7.1. Ex) Im the greatestI never lost a case This implies success for the attorney without explaining how hard the previous cases were. It also would mislead you into thinking that they will win for you. ***Quality claims need to be established and substantiated. 7.3 Solicitation is ILLEGAL UNLESS it is not for pecuniary gain. Pro Bono solicitation is legal. - solicitation is direct target against potential client and is very personal. Advertising on the other hand, is at large. - solicitation is harder to prove because there is more he said she said (solicitation is can deny I never said it, where as with advertising it is out there and you can show the paper) Ex) Attorney calls elder clients to personally solicit will drafting. He called elder clients who he previously represented. This is legal under 7.3(a)(2) which says that if they were a prior client is ok. Ex) Lawyer sends out seminar brochures to both clients and non-clients. This is probably legal because 7.3(a) only covers telephone, email, and other electronic forms of communications. Ex) lawyer sends out note to airplane crash victims families and follows up with a personal visit about his services. This is likely a violation under 7.3(b)(2) because he harassed the victims families. Also, SC has said that lawyers are personally liable for communicating in writing or in person with victims of accidents or families of victims. **Distinction between 7.3(a) and (b): (a) lawyer cant solicit using in-person, email, telephone, unless he is contacting another lawyer, family, prior client, or close personal friend (b) Lawyer cant solicit by WRITTEN, electronic, telephone, or in-person IF solicitations involves coercion, duress, or harassment OR the prospective client has made known to the lawyer a desire not to be solicited by the lawyer ***** 7.1 applies to BOTH solicitation and advertising

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Specializations Rule 7.4 7.4 (a) - a lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. (b) A patent attorney can use the designation patent attorney (c) an admiralty attorney may use admiralty or proctor of admiralty (d) a lawyer shall not state or imply that he is certified as a specialist in a particular field of law UNLESS: (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the ABA AND: (2) the name of the certifying organization is clearly identified in the communication ***You can tell the world that you practice certain kinds of law, but you cant say you specialize unless you fulfill both prongs in (d) or you are admiralty or patent law. *** General attorney CAN give a case to a specialist attorney (can refer) Ex) Should the general attorney take the case himself even if he lacks experience in personal injury? Under 1.1 competence, if this was an hourly rate, this means that the general must decline the representation because then the general has to educate himself on the clients nickel. Ex) can general fee split and take some $$ from the specialist that he refers the case to as a finders fee? NO under 1.5(e)(1) he cannot get a fee for simply finding the case because it isnt proportionate work because all youve done is say here is the case See rule 1.5(e) for rigid rules to follow in order to be allowed to fee split **each lawyer could not get a 1/3 contingent fee even if the exceptions in 1.5(e) are met because that would leave the client with only 1/3 and this is UNREASONABLE under 1.5(e)(3) (even if it passes prong 1 and 2, it is conjunctive and there for if it fails on 3rd reasonable prong, it fails) Rule 1.5(e) a division of a fee between lawyers who are not in the same firm may be made ONLY IF: 1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation 2) the client agrees to the arrangement, including the share that each lawyer will receive and the agreement is confirmed in writing AND 3) that total fee is reasonable **In a criminal representation, a retained counsel for Def can represent EVEN IF that counsel has no criminal experience (so you are absolved of the 1.1 competence requirement) BUT, in publicly appointed cases, the state CANNOT appoint an attorney

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with low experience in the particular criminal area of this charge (no first degree murder experience) AND if the stakes are high (first degree is always high stakes). The reason for the public appointment prohibition involves Habeus Corpus implications. (we brought you before the court, and heres why).

Ethics in Litigation
Rule 3.1 Governing lawyers as advocates - lawyer needs to have basis in law and fact (cant be frivolous). This includes a goof-faith argument for extension, modification, or reversal of existing law. - In a criminal case, defendant CAN requirement every element of the case be established. Make 2 types of attacks: 1) Factual For civil cases, if you can make SOME factual argument then it wont be considered frivolous factual. Criminal must be beyond a reasonable doubt 2) Legal if the SC has not ruled on it, it is definitely good-faith to bring the case because you want to challenge the legal doctrine even if a circuit has ruled against you. ***even if a lawyer believes that the clients position ultimately will not prevail, if it is brought within good-faith, then it is OK. 3.2 - Duty to Expedite litigation A lawyer SHALL make reasonable efforts to expedite litigation consistent with the interests of the client. Can lawyer bring action to delay, regardless of whether it is meritorious? Comment to Rule 3.2 says you cant do improper delay but we dont know what improper delay means. Would it be improper delay where the cts are so clogged that it will take the 6 months you need for the ct to get to it. We dont know. What about using procedures to delay? Like you seek injunction against FDA to delay them the 6 months? ***It is OK to file the motion as long as it isnt filed SOLEYL for the benefit of the delay. As long as only purpose is NOT delay, it is OK.

If it is OK, does the lawyer have to bring the case? Under 2.1, lawyer IS allowed to bring moral, economic, social, and political factors that may be relevant to the client situation. The lawyer has a DUTY to bring these factors about the FDAs negative reaction in future cases which could impact other similarly situated clients (counselor for the situation) So, assuming that you are OK under 3.1, the other rule you have to be concerned about is Rule 11 of Civil Procedure. 24

Ps obligations under Rule 11: 1) the lawyer must sign on the merits of the filing of the case. When the lawyer signs a pleading, all of the following consequences flow: a) reasonably inquire under the circumstances into factual assertions lawyer is bringing Ex) if statute of limitations will end, then you dont have to do a substantial inquiry. So you bring a case, must make a reasonable inquiry so it isnt frivolous b) Lawyer is not presenting the case for any improper purpose such as to harass, cause unnecessary delay, or to needlessly increase the cost of litigation c) Legal propositions are warranted by existing law or by a non-frivolous, objective argument for the change of law. d) factual contentions have evidentiary support or likely to have it after further investigation and discovery. 2) The ct has discretion to subject parties who dont comply with the above to sanctions which may include attorneys fees a) sanctions can be imposed on the FIRM, individual, or even actual litigants in the case regardless of whether they signed the pleading or not b) sanctions are not limited to personal liability. There is even vicarious liability now 3) If a motion for sanctions is made, the resisting party has 21 days to withdraw the pleadings and revise them to comply with rule 11 (Safe Harbor Provisions) Defendant obligations: 1) answer and counter claim must be filed within 20 days of service of complaint. This is a time-pressure on the def that is NOT on P. 2) No sanctions against criminal def for representing himself to the utmost. BUT the rule puts the lawyer and client in an adversarial relationship and there are questions about whether the lawyer has to follow the defs story. Under Rule 1.6(b)(5), if the lawyer himself is under attack, the lawyer may respond by revealing info confidential to client in order to respond to allegations concerning the lawyers representation of the client. 3) The party with the higher burden of proof in the case is held to less scrutiny under Rule 11 ****** Judges LOVE rule 11. lawyers hate it, especially P lawyers because the defendants can do more.

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Rule 26(g) Civil Procedure Rules 1) Extends rule 11 to discovery requests, objections, and responses. 2) Discovery and objections may not be unreasonable, unduly burdensome or expensive this is not really enforced (3.4(d) does the same thing but not enforced) 3) 3.4(a) adds to 26(g) by saying that lawyer cannot unlawfully obstruct another partys access to evidence. It is likely OK to advise client to see a doctor in order to delay the proceeding because its not obstruction to evidence to do so. 4) 3.4(f) adds to 26(g) lawyer CANNOT request a person other than the client to refrain from voluntarily giving relevant info to another party. You may NOT request a person (or than the client)to NOT give info to another party: UNLESS: A) the person is a relative or employee or other agent of the client B) the lawyer reasonably believes that the persons interests will not be adversely effected by refraining from such information. This exception swallows the rule. Litigation Tactics in civil cases Problem 24 8.4 Misconduct 8.4(c) lawyer cannot engage in conduct involving dishonesty, fraud, deceit, or misrepresentation Ex) wearing shabby clothing is OK Ex) It is OK under 8.4 for a lawyer to promote disunity among jurors during selection process so that they will not ultimately grant the Ps large award. BUT under Batson Case, SC said that the disunity cannot be racially motivated and that def is also subject to the rule. 3.4(e) a lawyer shall not state or imply an ability to influence improperly a government agency or official Ex) lawyer cannot bring a celebrity into the courtroom to embrace the P because this constitutes presenting matter not supported by admissible evidence because the celebrity was not a witness subject to cross-examination. Ex) CAN bring a character witness on the stand that is a reverend to preach religiosity as long as it is truthful EVEN IF it is rehearsed or staged. 4.4(a) A lawyer cannot embarrass, delay, or burden a 3rd part witness ex) it is OK to cross-examine a witness that you know is telling the truth but you try to expose them as a liar.

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****the lawyers motive does not matter at all. The inquiry is the OBJECTIVE EFFECT of what the lawyer has done. So, coaching a witness is OK under this test. ***For these problems, consider the following rules: 3.3, 3.4, 3.5, 8.4, and 4.4 ***lawyers are allowed to tell the client what the law is first and then get defs side of the story later. 3.3 Candor toward the tribunal 3.3(a)(2) this is disclosure of legal authorities - the lawyer must disclose directly adverse authorities. It may even be a tactical reason to disclose before the other side comes up with it because youll have other cases before this judge. Appearance of candor is the highest form of deception. - if no cases are from your jurisdiction then you dont disclose - you can bury damaging this in footnotes. Ex) you DONT have to reveal facts that you know could beat you. You likely CANNOT reveal these facts because you would undercut your zealous duty. 3.3(a)(3) and 3.3(b) A lawyer must take remedial measures which may include, if necessary, disclosure to the tribunal if the lawyer later comes to know of a witnesss falsity even if he did not know it to begin with. Lawyer must correct that witnesss testimony. One way a lawyer can correct under Comment 10 is to talk with client and persuade him to correct the testimony and if the client doesnt correct it then the lawyer has to threaten to withdraw from the case, and if this still doesnt work, then the lawyer must seek leave of ct from the case. If all of this fails, the lawyer must disclose the information himself, even if it conflicts with 1.6. ***if the client had been on the witness stand and testified falsely and the lawyer discovered this after the fact, the lawyer may try to persuade the client to correct the testimony. OR, this may apply if the witness was an employee of the client and the client needs to have the employee fix his testimony. (a)(3) applies to lawyers client witness and non-client witness. Must correct their statements An issue might be resolved 1.2(d) If you represented a criminal defendant who has a previous conviction and the judge doesnt know that, if the judge doesnt ask specifically, then you DONT have to disclose. BUT, the lawyer must skirt the line because he cannot lie to a ct. So, he must say judge, I want to remain silent The judge may investigate that answer. If the judge asks specifically, the lawyer MUST disclose because you can NEVER lie to the tribunal.

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Ex) under 1.2(d) there is an argument that the lawyer is aiding or abetting the client to engage in a criminal or fraudulent act. If the lawyer says that the date is fine my me when the judge asks whether it is OK to move the matter to later in the year, at which point he knows that the client would be a fugitive out of the country. It is NOT open or shut. Problem 17 Rule 1.16 Declining and Terminating Representation 1.16(a) a lawyer SHALL withdraw from representation IF: (mandatory) 1) representation will result in violation of the rules of professional conduct or other law (example 1.6) 2) the lawyers physical or mental condition materially impairs the lawyers ability to represent the client (cop out) OR 3) the lawyer is discharged (client always has a one way terminable at-will right BUT, even if he is fired the lawyer can still sue for fees) Rule 1.16(b) and comment 7 DOES permit withdrawal under certain circumstances: 1. Withdrawal can be completed without material adverse effect on the interest of the client (lawyer can leave if sick of it as long as he isnt leaving the client high and dry) 2. Lawyer reasonably believes that the client is engaging in crime or fraud 3. The client has used the lawyers services to perpetrate a crime or fraud 4. The client insists upon taking action that the lawyer is repugnant 5. The client fails substantially to fulfill and obligation to the lawyer regarding the lawyers services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled (fees) 6. Representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client 7. Other good cause exists (catch all) **If case has started, you need permission from the judge **Much easier to get into the relationship than out. ****For both mandatory and permissive, if lawyer withdraws without compliance with the above (1.16) then lawyer is vulnerable to abandonment charge which includes professional discipline and possibly malpractice. ****BEFORE you take the client on, you can always refuse the case if you are not happy with what the client has done (see 2.1) 3.9 Advocate and non-adjudicative proceedings (lobbying in a legislature) Lawyer MUST disclose that the appearance before a legislative body or admin agency is in a representative capacity (ie rulemaking) and SHALL conform to 3.3(a)-(c) (this is candor toward the tribunal) and 3.4(a)-(c) (fairness to opposing party and counsel) and

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3.5 (impartiality and decorum of the tribunal) ***under 3.3(d), lawyer in a lobbying case DOES NOT have to tell the legislature of all the material facts known to the lawyer that will enable the legislature to make an informed decision. This subsection 3.3(d) ONLY applies to actual tribunals which are court. 4.2 Communication with Person Represented by Counsel In representing a client, a lawyer SHALL NOT communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter UNLESS the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. 1) for an individual personally represented by counsel you MUST give notice under comment 2 to the other persons lawyer and get the consent of him. ***comment 2 says persons and not parties, so even if there is a non-lawsuit situation, a lawyer cannot contact people represented by other counsel. 2) comment 7 for organizational representation, there are 3 classes of communication in the organization where it is forbidden to speak unless go through corp counsel first: a) people who have managerial responsibility (for example, directors, supervisors). This is NOT limited to the control group. b) people that can obligate the organization with respect to the matter on which the info is being sought. These are really people empowered to settle the case and is usually a small group like the general counsel. The law of evidence dictates who does what. Use FRE or state evidence rules as an extrinsic source to determine whether the person saying something against the firm can actually bind the firm and make the firm liable. (would include defs party omissions) c) peoples actions or omissions may be imputed to the company for purposes of civil or criminal liability. This would be respondeat superior so you want to use state law common law. The acts or omissions have to do with the facts giving rise to the case NOT the acts or omission that occurred during the interview. Always check to see if there is a frolic because then respondeat superior doesnt apply. ****company directors and officers are definitely in category A because they are managers and in B because they can settle for the company. They MAY be in C if the directors were involved in formulating the speedy policy. Employees are not in A or B but they may be in C if they helped to make the policy. 1)When can a lawyer interview former employees or directors? A) former employees are fair game for an interview and you dont have to notify corp counsel for consent (this is a bright-line rule) B) law is unclear for former directors.

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2) Even if lawyer cannot interview because of the above rules, lawyer can get subpoenas for depositions. But depositions are costly and refereed so it is harder to obtain binding statements on the company. 3) how do communications by govt lawyers work? A) comment 3 says that the lawyer must get consent from counsel BEFORE a govt lawyer contacts a charged def or person under an investigation that wants to rat and takes the initiate to contact the govt lawyer. ***EXCEPTION some lower district cts have allowed govt attorneys to talk to the def without consent from defs counsel. B) comments 5 and 6 govt lawyer does not have to get consent BEFORE commencing a criminal proceeding. So if it is before commencement like in an investigation the govt lawyer can get at it. Also, there is a preference for govt lawyers to get court orders which mandate that the criminal defendant talk with the govt lawyer without consent. 4.3 Dealing with Unrepresented Persons If you know that the person is not represented you must advise them about what you are doing and must NOT give legal advice other than that which can secure you as counsel (I want to be your lawyer. You can advise them that they have a tort claim). 3.5 Impartiality and decorum of the tribunal There is NO per se rule against interviewing the juror after the verdict has been given. BUT there are restrictions; 1) the communication is prohibited by law or court order OR 2) the juror has made known to the lawyer a desire not to communicate OR 3) the communication involves misrepresentation, coercion, duress, or harassment the lawyer can NEVER offer $$ to have one juror impeach another it is usually an obstruction of justice to influence a juror or judge during the proceeding (see 3.5(a) and (b)) ***there is NO criminal or civil distinction in this rule.

When can you secretly tape the interview with the juror? 1) 8.4(c) forbids this but some states allow it. 2) some state laws make it illegal to use a tape of any sort and if lawyer uses it he would violate 4.4(a) which involves obtaining evidence in violation of a 3rd persons rights. When is a lawyer disqualified from being a witness when he is also an advocate in the case? 1) 3.7 is lawyer as a witness a lawyer CANNOT be an advocate where it is likely that he will become a witness EXCEPT if: a) testimony relates to an uncontested issues OR b) the testimony relates the nature and value of legal services rendered in the case

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OR c) disqualification of the lawyer would do substantial hardship on the client. For example the client would have to hire another lawyer and that other lawyer would take a long time to get up to speed. 2) there is NO automatic firm-wide imputed disqualification (always look to rule 1.10 which includes 1.7 and 1.9 but does NOT include 3.7). BUT comments 6 and 7 of 3.7 say that if there is a substantial conflict between witness and lawyer that would implicate 1.7(a)(2), then the lawyers own personal interest MAY disqualify the lawyer. ex) both lawyer and client are sued and the lawyer as witness on the stand may have a conflict with the witness and then the whole form is disqualified. 3) this is NOT waivable. The client CANNOT, unlike 1.7, consent to a lawyer being the witness. The reason is that the law wants to protect not only clients but also adversaries and the judicial system as a whole.

Ethical Problems in Criminal Litigation

1) Categories of physical items in the criminal law a) fruits of the crime ie a bag of $ b) instrumentality of the crime used to commit the crime ie the gun c) evidence of crime ie bag of $ and the gun d) contraband these are things illegally possessed. 2) the lawyer CANNOT disclose that the client came into your office and told you about the crime because the attorney-client privilege is absolute. (see also 1.6) So there is neither mandatory nor permissive disclosure allowed. 3) the lawyer may not keep the gun from the police because it is NOT a communication so it is not protected (subject to search warrant). The client has no 5th amendment privilege to keep the gun because it is NOT compelled testimonial in nature (Crawford) (this is anti-defendant). The lawyer cannot keep the gun under the privilege because 5th applies only to the CLIENT and not the lawyer (lawyer cant plead the 5th). What should the lawyers advice be? A) under 3.4(a), the lawyer SHALL NOT UNLAWFULLY obstruct another partys access to evidence OR unlawfully alter, destroy, or conceal, a document or other material having potentially evidentiary value. This means that the lawyer cannot advise the client to get rid of the gun and throw the $ in the river because this would be unlawful obstruction. B) 8.4(b), (c), and (d) misconduct C) 1.2(d) a lawyer shall not counsel a client to engage in conduct that the lawyer knows to be criminal or fraudulent. How should the lawyer advise the client on the money bag?

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A) the money bag is the fruit of the crime and belongs to the bank, so the lawyer must advise the client to give it back to the bank (a dead-drop is advised). The lawyer cannot keep the money in his safe because this would be a violation under 3.4(a) or under 1.2(d) for receiving stolen property with is a crime. ***contraband similarly must be given to police and lawyer cannot hold on to it because it is illegal(to hold things like sawed off shotgun). The following is protected by the attorney-client privilege and does NOT have to be disclosed: the client confessed to the lawyer about where he hid the bodies and this is privileged even if there are still living victims. It may be under the crime-fraud exception if the lawyer assists the client to perpetuate. Pure evidence of the offense cannot be retained by the client (lawyer must advise client to disclose the information). What does the lawyer have to do if the client has secret tapes that may have illegal info on them and he wants you to listen to them? The lawyer cannot advise the client to destroy the tapes if the lawyer listened to them and determined a crime. A lawyer cannot do this because if he thinks that it would be reasonably foreseeable that the tape would be wanted by the govt for a: a) a pending lawsuit, prosecution, or grand jury b) one of the three listed in (a) is imminent and the lawyer knows it. c) one of the three things is likely and the lawyer knows it d) one is reasonably foreseeable e) one of the three things is possible or unlikely (this is the only one that the counsel may be able to advise the client to destroy it) f) there is no govt involvement at all but the lawyer is worried about what newspapers might say about destroying the tapes.(definitely not illegal to advise the client to destroy this) If there is a subpoena for the documents of your client, the president of a company, the lawyer should advise the client to produce only business related papers and not personal papers. You should take the risk of not producing. The ct may hold you or your client in contempt but still take the risk it is unlikely that they will find out! Can you respond with box-car disclosure where you produce thousands and thousands of pages YES, you can burry them under paperwork. ****you can NEVER destroy something if you think it is likely that there will be a proceeding against you. Advising the Client who you know intends to commit perjury General rule if the lawyer KNOWS that the client will give false testimony, he MUST not allow the client to do this (see 3.3(a)(3)). Under 3.3(c), if the lawyer reasonably believes the testimony to be false, he MAY refuse to allow the client to testify. The duty to not allow perjured testimony to be used TRUMPS 1.6 confidentiality.

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*** the above rules work for ANY client A) you can NEVER assist your client in fraud under 1.2(d) and 8.4 B) under 3.3, the lawyer must take reasonable remedial measures if the lawyer comes to know of a witnesss false testimony. This may include, if necessary, disclosure to the tribunal. C) If a lawyer KNOWS that a person will engage, is engaging, or has engaged in criminal or fraudulent conduct related to the preceding. He must take reasonable remedial measures including, if necessary, disclosure to the tribunal. To know means actual knowledge or inferred from circumstances ****some skeptics think that 3.3 encourages the lawyer not to find out about the truth from the client. These skeptics think that the lawyer should be able to lawfully advise his client to perjure on the stand. ****lawyers CAN advise a client by saying if you acted in the reasonable belief of harm, then you have a defense. Did you act in a reasonable defense?? This protected by the attorney-client privilege. This is also a situation where you have the duty to acquaint your client with what the law is and also you dont know that the client will permit perjury. If you know that the client will testify falsely, you MUST take the following steps: 1) you must first dissuade the client from committing perjury 2) the lawyer must seek to withdraw under 1.16 3) the lawyer must take reasonable remedial measures if the client takes the stand and lies even though the client assured you that he would not lie. a) under the Nix case, in order to remediate, you must threaten to or actually disclose to the court. If you dont disclose it is assistance of a fraudulent act under 1.2(d). (now this is ACTUALLY trumping 1.6) b) EXCEPTION def may have the right to testify as a matter of DP and this could override the lawyers duty

Issues in Potential Litigation; Counseling and Advising

1.13 Organization as a Client If you KNOW that an officer or employee or other person is engaged in action, intends to act or refuses to act and that conduct is likely to result in substantial injury to the organization, then the lawyer must proceed as is reasonably necessary in the best interests of the organization. The lawyer SHALL refer to matter to a higher authority in the organization including, if warranted by the facts, to the highest authority that can act on behalf of the organization. The lawyer only must take this step if the lawyer does not reasonably believe that it is necessary to act in the best interest of the organization. The highest authority means that the lawyer has to go up the chain from the president to the board of directors, but the shareholders dont have to be notified.

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The lawyer can disclose to parties outside the organization and can trump 1.6 to disclose but can do so ONLY IF: 1) and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization AND 2) despite the lawyers efforts to report to the highest authority that the highest authority insists upon or fails to address in a timely an appropriate matter an action or refusal to act that is clearly a violation of law AND 3) The lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to organization. ***1.6 may not be trumped at all because sometimes what the lawyer wants to disclose will be included in an exception in 1.6(b)(2) or (3) regarding Enron disclosures. What advice does the lawyer give someone that the person may use to violate the law? 1) for malum prohibitum laws (like a store that should not be open on Sunday because of blue laws), the lawyer has the option of complying or not (like a cost-benefit analysis) 2) Under 1.2(d), you cannot advise a client to go to Brazil to avoid prosecution 3) although you cannot violate 1.2(d) by assisting in a crime, you CAN give advice to test the law by making a good-faith effort to determine the validity, scope, meaning, or application of the law. How does a lawyer advise in the midst of a shareholders derivative suit. Shareholders sue on behalf of the company against corp directors for waste, breach of fiduciary duties, etc. These are mainly strike suits by shareholders and directors usually get them dismissed as strike suits. 1) must analyze 1.7 to see if you can represent both shareholders and directors. Comment 14 says that it depends on the seriousness and meritoriousness of the charges. If there is merit (usually there is no because usually they are strike suits) of the Ps charge against directors then it IS a conflict to represent both. So really whether you can represent both depends on whether it is a strike suit or not. Tactically, if you had to choose who to represent, you should pick the shareholder (on behalf of the company) so that you dont give a law firm the opportunity to represent a company.

Ethics of negotiations
1) representation in criminal negotiations 4.1 forbids making false statement of material fact or law. Ex) if you said in a DUI case that your client had nothing to drink than it is material and false 2) apply 8.4(c) here 3) the lawyer can never say that the client will testify a certain way when you dont know if he will testify that way or he has said nothing about it.

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4) under negotiation settings, 4.1 allows lawyer more leeway in what he can say, how much he can puff, and how much he can feign anger. Civil Negotiations 1) under 4.1 comment 2, some statements are NOT ordinarily taken as statements of material fact where those statements would normally be barred under 3.3 in front of a tribunal. ex) :this case is worth a million bucks because this is an estimate of price or value placed on the subject of a transaction. ex2) talking about a partys intensions as to an acceptable settlement of a claim. ex3) the existence of an undisclosed principal amount except where non-disclosure of the principal would constitute fraud. 2) if lawyer will settle for an amount less than $1 million than it is false and illegal to say my client will never settle for less than a $1 million 3) Under 4.1(b), you cannot fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client unless disclosure is prohibited by 1.6. Ex) concealing the fact that your client or key witness has died. 4) You dont have to inform opponent about the statute of limitations running out because this is an affirmative defense and your opponent may waive it. However, if you have no intention to bring a suit, then you may not threaten that you will bring a suit. Duties to the Company that may be material to investors (like buyers and sellers of securities) 1) if there is material and averse info to a company, the lawyer MAY or MUST have to disclose it, depending on 1.6(b)(2) or (3) AND the chart on pg 148 of all the states regarding disclosure rules. 2) under 1.2(d) and 8.4(c), you cannot give an opinion letter in order to get loans alleging that the securities were validly issued when you know that there was fraud involved. (it is assisting in fraud). 3) withdrawal from these securities cases many times is MANDATORY under 1.16(a)(1) because you are usually helping to violate security law. It is also almost always permissive under 1.16(b)(2) and (4) and (7) because it is fraudulent, repugnant to the lawyer, and other good cause exists to withdraw. 4) 1.13(c) makes it permissive but not mandatory to disclose to the SEC that there has been fraud. Also, 1.6(b)(2) and (3) make it permissive, not mandatory, to disclose about future fraud or if the client commitment fraud and then tried to rectify it. SEC goes beyond this and makes it mandatory to disclose SEC turned lawyers into cops to make

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mandatory disclosures. Section 307 of Sarbanes-Oxley (SOX) 1) Requires SEC to give rules regarding standards of conduct for a lawyer before he submits before the SEC. 1.16(C) calls for the lawyer to follow applicable law, requiring notice to or permission of a tribunal when terminating representation. When ordered to do so by a tribunal (SEC), a lawyer shall continue representation despite having a good cause for terminating the representation. SOX calls for preventive disclosure to the SEC for securities frauds in the context of 1.16(c). 2) SEC regulations may override state rules because preemption and supremacy clause of constitution usually trump. 3) Section 1519 says whoever knowingly alters or destroys any document with intent to impede, destroy, or obstruct justice in any criminal or bankruptcy case is guilty of a felony and gets a penalty of 20 years. This is a huge sweep with a big penalty. When analyzing, still look at imminent/pending/etc categories but regardless of those categories, this rule generally catches and prevents any person trying to fabricate or destroy evidence. Record Retention is the most important. 4) SOX rules usually include a rule that requires the lawyer to report security violations through the chain up to the directors and perhaps to others. 5) Rule 205 of SEC says that you must report up the chain all the way to the board of directors. If they ignore you, you should nosily withdraw which means withdraw and then tell people who might rely n your previous work that you disavow it and they shouldnt rely on it.

Pro Bono and Class Action Representation

***no difference in 1.7 conflict rules pro bono clients get the same treatment 6.1 no duty to take a case, only that a lawyer should take the case 6.2 accepting appointments. A lawyer SHALL NOT avoid a ct appointment except for good cause, such as: a) it will violate a model rule b) result in unreasonable financial burden on the lawyer OR c) client or cause is so repugnant to the lawyer as to impair the client-lawyer relationship or the ability to represent the client. Minority of jurisdictions have mandatory pro bono, usually 50 a year. Class Action Representation:

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There are 2 theories for getting attorneys fees for this: A) Common Fund Theory it is attorneys job to get everyone together and win the case B) Fee Shifting statutes - like in title VII and environmental statutes Rule 23 Requires that P is a fair and adequate representative of the class. You should choose the most articulate and attractive one because shell establish that she is fair and adequate by giving the best responses at a deposition. Standards or how to get someone to bring a lawsuit: 1) the overall standard regarding false and misleading conduct in 7.1 applies. 7.2 and 7.3 also apply 2) 7.3(a) A lawyer cannot represent a client when a significant motive is the lawyers pecuniary gain (i.e. if they only want to get the common fund or fee shifting and dont care of the pro bono they really want the money and dont really care about the pro bono) BUT the SC said that cases like this give the lawyer a 1st Amendment right to solicit clients and get as much fees as they want. This usually overrides 7.3(a). However, the Ct said that there may be some limitations on communications but did not specify what they would be. 3) 4.2 says that defendant lawyers CANNOT communicate to members of the P class in order to persuade them to opt out of the case. BUT before certification, the defendant lawyers may be able to contact potential class members because they are not yet represented by counsel. Requirement of Fair and Adequate Representations Two prong test: 1) Obtain the best possible named Plantiff 2) Obtain a P that wont be vulnerable to the def (i.e you dont want a P who never paid rent or damaged their apt) 3) Lawyer must treat the named P like any other client, however most lawyers abuse this and get away with it, and regard the named client as objects of convenience to merely allow the class action to be certified. Settlements of Class Actions: 1) lawyer must communicate the offer to the client. 8.4(c) and general conflict of interest for lawyer to bring his own motive into the offer. 2) 5.6(b) a lawyer SHALL NOT participate in offering a contract in which a restriction on the lawyers right to practice is part of the settlement of a client controversy. Client can still agree not to sue but lawyer cannot be parked out. Example landlord will pay 37

the client $125 and will pay the lawyer $1,000 on the condition that he does not being the class act no no 3) It is NOT a 5.6(b) violation for the lawyer to agree as part of the settlement offer not to represent his client and then switch sides to represent the defendant after the case has concluded because although it still regards the lawyers right to practice, it is not a conditioned part of the settlement that the lawyer restricted himself from practicing. 4) Rules for payment of client expenses: a) common law lawyer cannot pay clients expenses b) model rules 1.8(e)(1) and (e)(2) lawyers CAN pay the cost of litigation and can provide financial assistance to a client for: 1) repayment of which may be contigent on the outcome of the matter AND 2) A lawyer representing an indigent client may pay court costs on behalf of his client. 5) 1.8(e) says that a lawyer cannot pay a clients living expenses 6) 3.4(b) allows states to decide whether experts can be paid by lawyers but fact witnesses can never receive contingent fees. 7) There is a split whether a lawyer can wave his right to attorneys fees in an offer/settlement. But most lawyers stop this by making a prior contract to take 1/3 more matter the settlement.

Unauthorized Practice of Law

***Two big issues to look for: 1) Lawyers engaging in activity that is NOT considered law. 2) Lawyers engaging in non-legal business activities. Free Market Approach traditional lines between law and business are breaking down and people should be able to do whatever they want. 5.5 lawyer SHALL NOT practice law where he is not permitted to do so and SHALL NOT assist a non-lawyer in the unauthorized practice of law. ex) lawyer helps insurance company draft a will or life estate policy. ***1.8(f) if third party pays fees directly to the lawyer then this activity may be lawful. 5.4(b) it is generally forbidden to allow law firm partners to be non-lawyers 5.7 ancillary services lawyers CAN do business, lobbying, and consulting work but only under limited conditions. There are no per se prohibitions but 1.6 and the other rules always apply.

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