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Professional Responsibility OutlineFall 2008, Hilliard

I. COURSE INTRODUCTION..........................................................................................................................5A. Professional Responsibility Generally.........................................................................................................5B. The Organized Bar: Models and Legally Binding Rules.............................................................................5C. History of Model Rules...............................................................................................................................5D. The Restatement..........................................................................................................................................5

II. THE CLIENT-LAWYER RELATIONSHIP..................................................................................................6A. Defining the Client-Lawyer Relationship....................................................................................................6

1. Competence.............................................................................................................................................62. Confidentiality and Secrecy.....................................................................................................................6

a) Ethically Protected Confidential Information:...................................................................................6(1) EXCEPTIONS:..............................................................................................................................7

b) Attorney-Client Privilege:.................................................................................................................7(1) Prospective Clients.........................................................................................................................8(2) Entity Clients..................................................................................................................................8

c) Confidentiality and Privilege in Multiple Client Representations...................................................113. The Duty to Inform and Advise.............................................................................................................11

a) Allocation of Authority....................................................................................................................11(1) Client’s Authority........................................................................................................................11(2) Lawyer’s Authority......................................................................................................................12(3) Problems after Representation has begun....................................................................................12(4) When Client & Lawyer Disagree.................................................................................................12

b) Loyalty & Diligence........................................................................................................................12c) Communication................................................................................................................................12

4. Termination of the Lawyer-Client Relationship....................................................................................13a) Mandatory Withdrawal....................................................................................................................13b) Permissive Withdrawal....................................................................................................................13c) Withdrawal Requirements...............................................................................................................13

III. PROTECTING THE CLIENT-RELATIONSHIP AGAINST OUTSIDE INTERFERENCE.................13A. Communicating with another Lawyer’s Clients........................................................................................13B. Improper Acquisition of Confidential Information...................................................................................14

IV. FINANCING LEGAL SERVICES...........................................................................................................14A. Reasonableness of Fees.............................................................................................................................14B. Contingent Fee Agreements......................................................................................................................15C. Special Nonrefundable Retainers..............................................................................................................15D. General Retainers.......................................................................................................................................15E. Minimum Fee Schedules...........................................................................................................................15F. Referral Fees..............................................................................................................................................15

V. CONCURRENT CONFLICTS OF INTEREST...........................................................................................16A. Conflict Types...........................................................................................................................................16B. Analysis of Current Client Conflicts Problems Generally........................................................................16

1. Identify the Client Relationship.............................................................................................................162. Identify Conflicts...................................................................................................................................16

a) MR 1.7 (a)(1)...................................................................................................................................16b) MR 1.7 (a)(2)...................................................................................................................................17

(1) Material Limitation......................................................................................................................173. Ascertain Consentability........................................................................................................................18


4. Was Consent Effective?.........................................................................................................................18C. Concurrent Conflicts Issues in Specific Contexts.....................................................................................19

1. Specific rules for current client conflicts. (1.8).....................................................................................19a) Imputation of Conflicts....................................................................................................................20

2. Client-Client Conflicts...........................................................................................................................203. Inconsistent Positions in Unrelated Suits is Allowable.........................................................................204. Representation of Multiple Clients in Transactional Matters................................................................205. Results of Violation of Conflicts Rule...................................................................................................20

D. Concurrent Conflicts Issues in Criminal Context......................................................................................21a) Overlap between Conflicts Analysis and 6th Amendment Guarantees............................................21

E. The Insurance Triangle..............................................................................................................................21F. Lawyer-Witness Rule................................................................................................................................21

VI. SUCCESSIVE CONFLICTS OF INTEREST...........................................................................................22A. Former Clients: MR 1.9(a) governs side-switching of former clients. The rule presents five distinct issues:.................................................................................................................................................................22

1. Has The Lawyer Formerly Represented A Client Who Might Complain About The Conflict?...........222. What Is The Nature Of The Matter For Which The Lawyer Formerly Provided Representation? MR 1.9(A).............................................................................................................................................................223. Is The Matter The Same Or Substantially Related To The Present Matter?.........................................224. Are the Interests of the Former and Present Client Materially Adverse? 1.9(A)..................................235. Did The Former Client Provide Informed Consent?.............................................................................23

a) Hot Potato Rule................................................................................................................................23B. Migratory Lawyers....................................................................................................................................23

1. Has the Lawyer Formerly Represented a Client Who Might Complain About the Conflict?...............232. Identify the Matter:................................................................................................................................233. The Substantial Relationship Test (1.9(b)(2)); and:..............................................................................244. Material Adversity:................................................................................................................................245. Imputation?............................................................................................................................................246. Consent..................................................................................................................................................25

C. Government Lawyers.................................................................................................................................251. Identify the Matter.................................................................................................................................252. Was the lawyer personally and substantially involved as a public employee?.....................................253. If not, is it Possible for Lawyer to Use Confidential Info to Disadvantage of Agency?.......................254. Does Lawyer Possess Confidential Gov’t Info that Can be Used to Detriment of 3rd Party Who Provided Info?...............................................................................................................................................265. Did the Appropriate Government Parties Give Informed Consent?......................................................266. If Lawyer is Personally Disqualified, Is Firm Disqualified?.................................................................267. Lawyers Entering Government Service.................................................................................................26

VII. ETHICS IN ADVOCACY........................................................................................................................26A. Duty of Candor before the Tribunal..........................................................................................................26

1. Active Participation by the Lawyer.......................................................................................................26a) Lawyer May Not “Knowingly” Make False Statements Of Fact/Law To A Court. MR 3.3(A)(1).

26b) Lawyer must correct false statements of material court to a tribunal. MR 3.3(a)(1).....................27c) Lawyer has duty to disclose directly adverse legal authority in controlling jurisdiction to the tribunal, even if opponents fail to cite it. MR 3.3(a)(2)............................................................................27d) Lawyer has duty to correct false statements of material fact/law previously made to the tribunal by the lawyer. MR 3.3(a)(1)...........................................................................................................................27e) Lawyer can’t offer evidence she knows to be false:........................................................................27


2. Passive Involvement By the Lawyer.....................................................................................................273. Exception – Criminal Defendants:.........................................................................................................27

a) In an Ex Parte Proceeding, Lawyer Shall Inform Tribunal of All the Material Facts Known to the Lawyer that Enable the Tribunal to Make an Informed Decision. MR 3.3(D).........................................28

B. Duty to Present Meritorious Claims and Contentions Only......................................................................28C. Duty to Make Reasonable Efforts to Expedite Litigation.........................................................................28D. Duty of Fairness to Opposing Party and Counsel......................................................................................28E. Lawyer’s Duty upon Acquisition of Real Evidence..................................................................................29

1. Generally................................................................................................................................................292. Real Evidence and the Atty-Client Privilege.........................................................................................29

VIII. NEGOTIATION AND TRANSACTIONAL MATTERS........................................................................29A. Mandatory Withdrawl Where:...................................................................................................................29B. Lawyer’s Duties during Negotiations:.......................................................................................................30

1. No Affirmative Misrepresentations.......................................................................................................302. Cannot Assist Crime or Fraud...............................................................................................................30

a) Withdrawl under 1.2(d)/1.16(a)(1):.................................................................................................303. May Reveal Information to Prevent Crime or Fraud.............................................................................31

C. Negotiating settlements in litigation..........................................................................................................31IX. LAWYERS FOR ENTITIES.....................................................................................................................32

A. General Rules.............................................................................................................................................321. Lawyer Represents Organization:..........................................................................................................322. “Up the Ladder reporting” MR 1.13(b).................................................................................................323. Make Disclosure outside the Entity.......................................................................................................324. No Permission to Disclose to Outside Sources if Lawyer Retained to Investigate or Defend an Alleged Wrongdoing...................................................................................................................................................335. If the lawyer is fired for complying with MR 1.13 or withdraws as rules require, he should take steps to inform the highest authority. Mr 1.13(e).................................................................................................336. Must give corporate Miranda warnings where organization’s interests are adverse to those of the constituents. MR 1.13(f)...............................................................................................................................33

B. Conflicts and Confidentiality in Entity Representation.............................................................................331. Privilege.................................................................................................................................................332. Client in entity representations..............................................................................................................333. Entity representation where partners insist you violate rules................................................................344. Retalliatory discharge............................................................................................................................34

C. Sarbanes-Oxley And The Rule 1.13 Amendments....................................................................................34X. JUDGES........................................................................................................................................................34

A. Conflicts and Disqualification...................................................................................................................34B. Expressions of Gender, Racial And Other Bias.........................................................................................34

XI. BAR ADMISSION....................................................................................................................................34A. Admission to the Bar.................................................................................................................................34

1. Geographical Restrictions......................................................................................................................342. Character and Fitness.............................................................................................................................353. Misrepresentation on Bar Application...................................................................................................354. Mandatory Pro-Bono Requirement........................................................................................................355. Mandatory Bar Requirement.................................................................................................................35

B. Transient Lawyers and Multijurisdictional Firms: Local Interests Confront a National Bar....................351. Pro Hac Vice (applies only to litigation)...............................................................................................352. Services Other Than Litigation (transactional)......................................................................................35

a) Lawyer associates with local counsel. MR 5.5(c)(1).......................................................................36


b) Lawyer provides services that are reasonably related to a pending or potential proceeding before a tribunal if lawyer is authorized by law or order to appear in such a proceeding or reasonably expects to be so authorized. MR 5.5(c)(2)..................................................................................................................36c) Lawyer is participating in ADR proceedings if services are reasonably related to the lawyer’s practice in a jurisdiction in which he is admitted to practice. MR 5.5(c)(3).............................................36

3. Catch-All/In House Counsel Mr 5.5(D)(1)............................................................................................36C. Conflicts between Legislature and Judicial Branch...................................................................................36

XII. MORE ON REGULATION/ORGANIZATION OF THE PRACTICE OF LAW...................................37A. Responsibilities..........................................................................................................................................37

1. Responsibilities of Partners, Managers, and Supervisory Lawyers.......................................................372. Responsibilities of Subordinate Lawyers..............................................................................................373. Responsibilities of Non-Lawyers..........................................................................................................37

B. Reporting Requirements............................................................................................................................37A. Malpractice and breach of fiduciary duty..................................................................................................38

1. Tort standard..........................................................................................................................................38a) Duty and standard of care................................................................................................................38b) Breach of duty..................................................................................................................................38c) Causation.........................................................................................................................................38

(1) Causation in criminal cases:.........................................................................................................38B. Beyond malpractice: other grounds for attorney liability to clients and third parties...............................39

1. Lawyer’s Liability to a Third Party.......................................................................................................392. Lawyer’s duty of care to a third party...................................................................................................393. Consumer protection laws.....................................................................................................................394. Fraud and negligent misrepresentation..................................................................................................39

a) Abuse of process..............................................................................................................................39b) Malicious prosecution and defense..................................................................................................40

XIII. CONTROL OF QUALITY: LAY PARTICIPATION IN LAW...............................................................40A. Multidisciplinary Practices........................................................................................................................40

1. Generally................................................................................................................................................402. Fee Splitting...........................................................................................................................................403. Partnerships and Corporations with Non-Lawyer Members.................................................................404. Professional Judgment...........................................................................................................................41

a) Law Firm’s Ownership of Ancillary Businesses.............................................................................41XIV. FREE SPEECH RIGHTS OF LAWYERS................................................................................................42

A. Trying a Case in the Press.........................................................................................................................421. Safe Harbor Statements (that a Lawyer May Make Without Fear of Discipline):................................422. Self Protection from Undue Prejudicial Affect.....................................................................................42

B. Defamation................................................................................................................................................43C. Public Comments about Judges and Courts...............................................................................................43

1. Criticizing the administration of justice................................................................................................432. Criticizing particular judges..................................................................................................................43

XV. MARKETING LEGAL SERVICES.........................................................................................................43A. Face to Face Solicitation May Be Barred..................................................................................................43B. Advertising Cases......................................................................................................................................44

1. Advertisements Generally May Not be Barred.....................................................................................442. Targeted Advertisements Are Also Permissible....................................................................................443. Targeted Mail Are Also Permissible.....................................................................................................444. Communications Must List Name & Address of Firm..........................................................................44

C. Restrictions on Compensation for Referrals..............................................................................................44


XVI. LAWYER’S OBLIGATIONS WITH REGARD TO GENERAL MISCONDUCT................................45


I. COURSE INTRODUCTION

A. Professional Responsibility Generally.ABA’s Model Rules of Professional Conduct – (In whatever version they are adopted in your state) are the basis for potential discipline by state bar authorities.

Day to day conduct also used as base for malpractice actions.

Many significant areas of professional responsibility law, such as conflicts of interest and the attorney-client privilege are driven almost entirely by considerations unrelated to professional discipline, such as disqualification and loss of fees in the case of conflicts, or the desire to protect client communications from disclosure in court in the case of attorney-client privilege.

PROFESSIONAL RESPONSIBILITY – The law of lawyering or the regulation of lawyers.

The highest court in a state has the power to regulate the conduct of lawyers practicing in that state.

In practice state Supreme Courts generally delegate considerable power to a state bar association, which delegates and establishes rules of conduct for lawyers and investigates and punishes violations of those rules.

Russ’s Standard: Imagine your actions will be on the front page of the Concord Monitor.

see NH cases he cited on 8.22.05 for more.

B. The Organized Bar: Models and Legally Binding Rules.Class will focus on the internal disciplinary rules of a state.

The disciplinary rules in effect in the vast majority of US jurisdictions are versions of the Model Rules of Professional Conduct, prepared by the ABA.

ABA is a trade organization – it is not empowered to make binding rules; its rules are only models.

as a general rule – the more controversial an ABA rule, the more likely states are to have “fiddled with it.”

E.g. – Rule 1.6 on confidential client information has been adopted by very few states.

State disciplinary authority, the official committee, agency, or state bar association that is empowered to draft and promulgate rules of professional conduct, to regulate admission to practice law in a state and to mete out punishment for lawyers who violate the disciplinary rules.

C. History of Model RulesMODEL CODE: Post-Watergate: The ABA promulgated its first Model Code in 1970 and tinkered around with it until 1980 when the last amended version was issued.

weaknesses of Model Code quickly became apparent and were sharply criticized. The two tiered structure of ECs and DRs was too confusing.

as a result the ABA created the Model Rules which were supposed to be more clear.

MODEL RULES: ABA adopted Model Rules in final form in1983. Most states have professional rules drawn directly on these. Only 4 states have rules still based on the Model Code (NY).

- Rules change every year.

- In 2003, the ABA proposed revisions to the Model Rules.

- Now highest court in each state must decide whether to accept them.

D. The RestatementRestatement Third Governing Lawyers (2000) – ALI used a broader spectrum of authority than that in the Rules. The result is that the Restatement differs from the Model Rules in some areas.


II. THE CLIENT-LAWYER RELATIONSHIP

A. Defining the Client-Lawyer RelationshipAnalysis begins with whether there was an attorney-client relationship.

Russ: Where there is an ambiguity – it is the lawyer’s job to clear it up.

NH Lawyer referred prospective client to TX atty because that is where the personal injury had occurred. TX atty let S of L claim run so that client’s claim was barred & TX atty didn’t have malpractice insurance. NH lawyer did. Was there an atty client relationship? (case settled).

RH didn’t think so but warns: “When declining representation make it explicitly clear” …. “Duties to prospective clients is an inherently gray area”.

MR 1.3 cmt(4) – “Doubt about whether an attorney-client relationship still exists should be clarified by the lawyer, preferably in writing so that the client will not mistakenly suppose the lawyer is looking after client’s affairs when she is not.

1. CompetenceThe very first rule in the Model Rules requires lawyers to provide clients with “competent” representation.

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

Rule 1.8(h) – A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement.

Some states are more specific – e.g. – NH. Incompetence only leads to discipline where egregious error has occurred or a pattern of neglect.

Mere mistake is not enough. Lawyers who hold themselves out as specialists will be subject to a heightened duty of care. Lawyer may not be competent to undertake representation without specialized training. Rule 1.1,

cmt (1) & (2).

Exceptions: In an emergency a lawyer may give advice or assistance in a matter in which he does not ordinarily have the skills to provide. But even in an emergency, this should be limited to that “reasonably necessary.” 1.1 cmt(3).

Restrictions: A lawyer shall not contract out of competency requirement.

2. Confidentiality and Secrecy

a) Ethically Protected Confidential Information: Russ: Remember ethical duty of confidentiality is BROADER than the evidentiary derived concept of privilege. ***

Perez v. Kirk & Cardigan – Rule: A/C privilege may arise even during preliminary consultations. Coca-Cola Case with Truck hitting School Bus. Lawyers interactions with plaintiff were sufficient to make him reasonably believe they were his attorneys. Therefore atty/client relationship formed and duty of confidentiality was breached.

Source: Stems from laws of agency and state disciplinary rules.

Scope: Information relating to “the representation of a client”. Rule 1.6. Restatement 59 excludes information that would be generally known.

Duration: Forever, survives termination of atty-client privilege and death of client. MR 1.6 cmt. 18.

Who Controls: Lawyer has duty to keep info confidential unless client consents to disclosure.


Effect: Forbids voluntary disclosure but may not be interposed in response to an official request for information. Also, use of confidential information to disadvantage of client is prohibited by MR 1.8(b).

Remedy: Lawyer may be subject to professional discipline or action by client for breach of fiduciary duty.

Waiver: Waiver obtained via informed consent. Waiver does not occur if confidential information is transmitted from client to lawyer in the presence of a third party (though this would waive privilege).

(1) EXCEPTIONS:

(a) Authorized in Order to Carry Out RepresentationMR 1.6(a): Allows disclosure of confidential information when it is “impliedly authorized in order to carry out the representation”.

This falls in line with the authority granted lawyers to make reasonable decisions regarding the course of representation, the “means.” 1.2(a).

(b) Disclosure to Prevent a Crime/FraudMR 1.6(b)(2)&(3): The lawyer may reveal information relating to the representation of a client to prevent/rectify the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the property of another and in furtherance of which the client has used the lawyer’s services.

HYPO: ALL’S NOT WELL Hypo, p.23 – Russ says this problem is written to appear reasonably certain that a substantial loss will occur. Fall 2008 Midterm was fashioned on this problem.

(c) Disclosure to Prevent Death/Substantial Physical Injury to OthersMR 1.6(b)(1): Lawyer may disclose information to prevent reasonably certain death or substantial bodily harm.

HYPO: HIV POSITIVE Hypo, p. 23 – Is death reasonably certain here – it seems clear that contraction of HIV would qualify as substantial bodily harm. Also of note: RULE 1.8(f)(3) makes it clear that the fact that Anna is paying the bill here does not affect the confidentiality analysis.

(d) Securing Legal AdviceMR 1.6(b)(4).

(e) Self DefenseMR 1.6(b)(5). lawyer may reveal client confidences to the extent necessary to establish a defense and this right arises when allegation of complicity has been made. MR 1.6 cmt (10).

(f) Compliance with LawMR 1.6(b)(6).

(g) Collection of FeesBoth the code and the Rules permit lawyers to reveal confidential information to the extent necessary when they sue to collect fees. DR 4.101(C)(4) / Rule 1.6(b)(5)

(h) Waiver


A Client may wave privilege. Waiver may be explicit or implicit. Waiver will be inferred when the client puts the confidential communication in issue in a litigation. Pg. 47 of book.

b) Attorney-Client Privilege: Source: Law of evidence.

Scope: Communications made in confidence from client to lawyer, for the purpose of obtaining legal assistance. MR 1.6 CMT 3.

Exceptions: Restatement 82, Attorney / Client privilege does not apply ot a communication occurring when client (1) consults a lawyer to engage in a crime or fraud (2) uses lawyer services to do so.

(1) Prospective ClientsIn some cases communications from prospective client learned in an initial interview with the attorney may be protected by attorney-client privilege. MR 1.18(b).

(2) Entity ClientsWill depend on which jurisdiction you are in. States are free to fashion scope of privileges under state law. Jurisdictions apply competing tests to determine whether a corporate communication was privileged.

(a) Control GroupNH follows this test.

Was the communication made by an employee of the corporation who directs the entity’s actions in response to legal advice?

Upholds the attorney-client privilege only if the individual speaking to the attorney was vested by the corporation with the authority both to seek legal advice and to participate significantly in the corporation's response to this advice.

(b) Vicarious Liability Samaritan Foundation v. Goldfarb – Rule: All communications initiated by the employee and made in confidence to counsel seeking legal advice are privileged; and where an investigation is initiated by the corp., factual communications from corporate employees to corporate counsel are within the corporation’s privilege only if they concern the employee’s own conduct within the scope of his employment and are made to assist counsel in assessing of responding to the legal consequences of that conduct for the corporate client.

Was the communication made concerning the conduct of an agent that is within the agent’s scope of employment and liability for which may be attributed to the organization? Also, must be where someone other than the employee initiated the communication.

Exclusion: communications from those who, but for their status as officers, agents, or employees are witnesses.

Has since been overruled by statute in AZ for civil law, applies in criminal cases.

(c) Subject Matter TestUpjohn v. U.S. – Rule: A/C privilege applies to entities under the “subject matter test”: communications by mid-level and lower-level employees of the corp. to attorneys representing the corporation will be protected if the information is relevant to the rendering of legal advice to the corporation.


Illegal bribes to foreign officials. Company conducted survey. SMT Applies in federal Courts because it was decided based on the Fed Rules of Evidence.

Notoriously broad & unclear, essentially extends privilege to any employee that’s communicating regarding the subject of the lawsuit.

AC applies to the Employees who do the actual work on a day-to-day basis who are most familiar with operations of the corporation.

Upjohn likely applies to government employees.

(d) Restatement 73 Broadest privilege: Extends privilege to any communications of “legal interest to the corporation” as long as they are disclosed to agents of the organization who “reasonably need know about the information in order to act on behalf of the organization.”

HYPO: Slip and Fall Hypo, P. 31. Discovery of demanded information (without resort to formal deposition process) – Rule 1.13 makes it clear that the lawyer has the same ethical duties whether client is a biological person or an entity like a corporation. Only Riveria will not fall with in the restatement.

Duration: Forever. Survives termination of atty-client relationship & death of the client.

Who controls: Client can assert or waive directly; lawyer can assert or waive as agent of the client.

Effect: Can be asserted in opposition to an official request for information, such as subpoena, or deposition request, or to deny admission of evidence at trial. Underlying facts not privileged.

Remedy: Breach of privilege operates as waiver; client has malpractice action if waiver was negligent.

Waiver: Privilege is waived when it is disclosed, intentionally or inadvertently.

Exceptions: Self defense (Rule 1.6(b)(3) by analogy) is considered an exception to attorney-client privilege.

Rule 4.2 also applies

Also known as the NO CONTACT RULE, unless you have consent. In the case where the opposing client calls you, acknowledges that he has counsel, and wants to talk to you, the rule still applies. Say, I can’t talk to you, call your lawyer and place a document in the file indicating the same. Let opposing counsel know same.

Rule 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. See comment [7] for organizational clients. See comment [8] for employing the rule, the lawyer must have actual knowledge.

1.0(f) bears on the definition of actual knowledge

Interests that are protected:

getting a damaging admission from the opposing client;

learning a fact she would not learn if counsel were present to protect the opposing client;


settling or winning a concession or gaining information protected by the attorney-client privilege and the work-product privilege;

weakening the opposing client’s resolve by casting doubt on the strength of his position; and

disparaging the opposing lawyer to the client.

Rest. § 99 - 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 or an organizational nonclient so represented in § 100, unless:

(a) communication is with a public officer or agent to the extent stated in § 101.

(b) the lawyer is a party and represents no other client in the matter.

(c) the communication is authorized by law;

(d) the communication reasonably responds to an emergency; or

(e) the other law lawyer consents.

Rest. § 100 – within the meaning of § 99, a represented nonclient includes:

(1) a natural person represented by a lawyer; and:

(2) a current employee or other agent of an organization represented by a lawyer:

(a) if the employee or other agent supervises, directs, or regularly consults with the lawyer concerning the matter or if the agent has power to compromise or settle the matter;

(b) if the acts or omissions of the employee or other agent may be imputed to the organization for purposes of civil or criminal liability in the matter; or

(c) if a statement of the ee or other agent, under applicable rules of evidence, would have the effect of binding the organization with respect to proof of the matter.

HYPO: Slip and Fall Redux (92) – constituent - see MR 1.13

Todd – Under MR 4.2 – Comment 7 – depends if he qualifies under comment 7 – that he regularly consults with the organization’s lawyer concerning the matter (he is doing one thing for an assistant GC – maybe); or if his acts or omissions in connection with the matter may be imputed to the organization for purposes of civil or criminal liability (if his scope of employment includes duties about preventing slips and falls – then yes).

Under Rest § 100 (2)(b (maybe – if within his scope – probably not), and c), yes. His statements as an ee would probably have the effect of binding the organization with respect to proof in the matter. E.g., he testifies on the stand that he heard Tim say he was going to overwax the floor and watch people fall just for fun.

Max – Under MR 4.2 – Comment 7 – May qualify as one who regularly consults with the organization’s lawyer concerning the matter – his department is directly involved; Most definitely his act or omission in connection with the

matter may be imputed to the organization for purposes of civil liability.

Under Rest. § 100 (2)(a (maybe), b, c) – yes.

Tim – Under MR 4.2 – Comment 7 – Most definitely, his act or omission in connection with the matter may be imputed to the organization for purposes of civil liability.

Under Rest. § 100 (2)(b, c) – yes.


Tina – NO. Probably not MR 4.2 – Comment 7 – doesn’t regularly consult; and her acts or omissions probably have no connection to the matter.

Under Rest. § 100 (2)(c) – probably. E.g., she could testify that Tim told her that he wanted to hurt customers by overwaxing the floor.

Rex – NO. Under MR 4.2, probably not – although he is an ee, he isn’t regularly consulting concerning the matter and his acts or omissions probably wouldn’t be imputed to the organization for purposes of civil liability, unless he was supposed to lay a rug down where the accident happened – that’s a stretch.

Under Rest. § 100 – probably under (2)(c). E.g., Rex heard Tim say he was going to overwax the floor for fun.

Delia – NO. no longer ee – probably not under MR 4.2 – Comment 7 – “consent of the organization’s lawyer is not required for communication with a

former constituent. If she is a current shareholder, she qualifies as a constituent under 1.13.

Under Rest. – I don’t know. Not employee or other agent (Austin).

Ed – NO. Not employee or formal ee – maybe a constituent (SH, not obvious) – but not regularly consulting about the matter; no act or omission.

Under Rest. § 100 (2)(b, c). Maybe an agent (big maybe – agency law). If so, may be protected. Probably no permission necessary.

Angie – NO – unless a shareholder, but no acts that would protect her and not reasonably obvious (comment 8).

c) Confidentiality and Privilege in Multiple Client Representations.Rules may vary with jurisdiction – so important to research exact rules of the forum.

General Rule: Communications between one common lawyer and two clients in these situations retain their privileged status. Restatement 75. This assumes that the communications would be privileged in the first place.

Exception: In the event of a dispute between the two clients, neither client will be able to assert privilege for communications with the common lawyer.

Joint Defense Privilege: Privileged information is not lost when two attorneys representing different defendants in a related action share information.

Common Interest Rule: Privileged information is not lost when two attorneys representing different clients communicate in pending or impending litigation.

Transactional Matters: When forming a business and using joint representation, no privilege among individuals separately and attorney. Rule 501.

Russ: make sure clients know how partnership is dissolved.

3. The Duty to Inform and Advise

a) Allocation of Authority

(1) Client’s AuthorityObjectives of Representation: this includes expenses to be incurred and effect on third persons who might be adversely affected as well wherever client informed consent as in 1.4(a)(1) is required:

In civil cases: whether to accept an offer of settlement MR 1.2(a)cmt. Olfe, whether to stipulate to facts or law that will foreclose a claim or defense, whether to settle, and whether to appeal.


In criminal cases: whether to plead guilty, waive jury trial, or take the stand. MR 1.2(a)cmt. (1)

Olfe v. Gordon. Rule – A lawyers autonomy is limited, and failure to follow the clients instructions because it is not in the client’s best interests provides no defense to a malpractice action. Olfe brought a malpractice case against her attorney, Gordon, after he disregarded her instructions in handling a real estate sale, and she lost over $25k as a result.

A lawyer cannot be sued for giving wrong advice if the law is unsettled on the point.

HYPO: I’d Rather Die – Under 1.2 the client probably determines objectives. In this case, she does not have grounds to get guardian.

Client will probably not be found to have a severely diminished mental capacity, cmt. 6.

HYPO: Accept the Offer – 1.2 – Client shall decide whether to settle a matter – applies in this case. 1.16(b)(4) would permit an attorney to withdraw. Russ says: what would happen in real life would be that attorney would threaten to withdraw and client would then recant and go her own way.

(2) Lawyer’s AuthorityMeans of the Representation: This includes the means by which the objectives of representation are to be pursued, including technical and legal tactical issues. MR 1.2(a) & cmt. (2)

Distinction: A lawyer’s representation of a client does not constitute an endorsement of the client’s views or activities. MR 1.2(c).

Taylor v. Illinois. Rule: Short of ineffective assistance of counsel, a client will be bound by the decisions his attorney makes, and the actions his attorney takes. Lawyer willfully failed to reveal identity of prospective witness. Trial court refused to let witness testify.

(3) Problems after Representation has begunLawyer may not continue assisting client after she discovers representation is illegal – must withdraw. MR 1.2 cmt (10).

The lawyer may not counsel a client to engage in criminal or fraudulent conduct or assist a client in doing something that the lawyer knows to be criminal or fraudulent. MR 1.2(d).

Cotto v. U.S. Rule – A client will be bound by the actions of his attorney, even if those acts may warrant disciplinary measures against the attorney. Court suggests client take a malpractice action against attorney as rememdy.

(4) When Client & Lawyer DisagreeLawyer should first try to consult with client. MR 1.2 cmt 2.

If such efforts are unavailing and lawyer has fundamental disagreement with client, lawyer may withdraw under MR 1.16(b)(4), cmt 2.

b) Loyalty & DiligenceThe lawyer has the duty to act with reasonable diligence and promptness in representing a client. MR 1.3.

Scope: Unless matter is terminated, a lawyer must carry through till conclusion all matters undertaken for client. MR 1.3 cmt(4)

Limit: The lawyer is not bound to press for every advantage that might be realized for her client. …The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. MR 1.3, cmt.1.


Jones v. Barnes. Rule – Attorney does not have a constitutional duty to raise every non-frivolous issue requested by the defendant. Barnes filed a petition for habeus corpus after his appointed attorney did not argue all the issues on appeal that he had asked for in pro se briefs.

HYPO: Ms. Nice Person – exemplifies the limit. The lawyer is not bound to push for every advantage for her client.

c) CommunicationThe lawyer has the duty to keep a client reasonably informed about the status of a matter, provide information when requested, and give the client sufficient information so that the client can make decisions about the representation whenever informed consent is necessary. MR 1.4(a)(1).

This includes settlements – lawyers must communicate to clients when offer to settle comes in.

Nichols v. Keller. Rule – Attorney has a duty to inform a client concerning legal claims or problems that are reasonably apparent to the lawyer, even though they are outside the scope of the retainer agreement between the attorney and client. Lawyer failed to advise clients of additional claims against 3rd parties that could be brought before SOL expired.

HYPO: In a Box – p 70. No attorney client privilege between EP & Chin. However, probably falls within guise of 1.6 = confidentially protected information. This creates a catch-22, she can’t tell JM without getting mutual informed consent. Imputation of conflicts would come up here under 1.10. However, under 1.16, can’t withdraw in a way that will be materially harmful to the client. Here, Sally probably has no choice but to withdraw.

Exceptions:

In some circumstances a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. MR 1.4 cmt 7.

During trial lawyer may have to act without prior consultation. MR 1.4 cmt 3.

4. Termination of the Lawyer-Client Relationship

a) Mandatory WithdrawalRule: MR 1.16(a) dictates that a lawyer shall withdraw where:

the representation will result in a violation of the rules of professional conduct the lawyer’s physical and mental condition materially impairs the lawyer’s ability to

represent the client the lawyer is discharged

b) Permissive WithdrawalRule: MR 1.16(b) dictates that a lawyer may withdraw where:

withdrawal can be accomplished without material adverse effect on the interest of the client

the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.

the lawyer has used the clients services to perpetrate a crime or fraud the client insists on taking a course of action the lawyer considers repugnant or with

which the lawyer has a fundamental disagreement. The client fails to substantially fulfill an obligation to the lawyer and has been warned

such a failure will result in the termination of representation. Representation would be a financial burden for lawyer Other good cause for withdrawal exists.


c) Withdrawal RequirementsRule: Upon termination, a lawyer shall take steps to the extent reasonably practicable to protect clients’ interests. See MR 1.16(d).

III. PROTECTING THE CLIENT-RELATIONSHIP AGAINST OUTSIDE INTERFERENCE.

A. Communicating with another Lawyer’s ClientsEx Parte Contacts

Rules forbid a lawyer from talking to persons who are involved in a matter, if the lawyer knows those persons are represented by counsel in connection with the matter. MR 4.2.

Contact with “persons” includes people who have not yet been made parties to a legal action.

- 4.2 cmt. (2) – rule applies to any person who is represented by counsel concerning the matter to which the communication relates.

- SCOPE: this includes contact with anyone who “prohibits, supervises, directs or regularly consults.” 4.2 cmt7

“Knows” is defined as denoting actual knowledge of the fact in question, not just circumstances that should reasonably alert a reasonable lawyer to the fact of representation. MR 1.0(f).

“Actual knowledge can be inferred from the circumstances”. MR 4.2 cmt. (8).

Waiver: Only waivable by attorney and not clients. MR 4.2(b).

Exception: Parties to a matter may communicate directly with each other. MR 4.2 cmt. (4).

Corporate Employees:

Neisig v. Team I – Rule: In NY, anti-contact rule protects the following categories of corporate employees: (1) those whose acts are binding on the corporation – equivalent to the control group. (2) Employees whose acts or omissions can be imputed to the corporation for the purposes of liability. (3) Agents who implement the advice of counsel.

Government:

Hammad – Rule: Use of informants by government prosecutors in a pre-indictment noncustodial situation, absent government misconduct, generally falls within the “authorized by law” exception to the “no contact” rule.

B. Improper Acquisition of Confidential InformationImproperly/mistakenly acquired confidential information must give notice to the opposing lawyer but leaves to substantive law whether the lawyer must comply with the opponent’s instructions. MR 4.4(b).

MR 4.4 cmts.(2)&(3) = Provides lawyers with a myriad of opportunities to address mistakenly obtained information issue.

Duty to promptly notify sender & beyond that left up to substantive law. 4.4, cmt 2.

HYPO: Something you should know, pg. 111. Linda not longer worked at Wentworth (paralegal). She asked for help. Said sorry could talk to her because suing Wentworth. She said Wentworth did not give all documents in discovery demands. She had them and offered them. Linda said not to use her name because she wants to use Wentworth as reference.

She is a former employee, not a client of Wentworth. One extreme, deny documents, note in file, and notify opposing counsel. Other extreme accepted documents. Russ: we don’t owe her anything.

HYPO: Case of the Misdirected Fax. Russ: If the misdirected information contains seminal information to the client’s case, atty may have to use it for purposes of zealous advocacy for client. Could potentially be a Rule 1.1 competency issue.


IV. FINANCING LEGAL SERVICES

A. Reasonableness of FeesRule: An attorney must charge a reasonable fee according to a prescribed set of factors. MR 1.5(a). Attorney fees can be challenged under both disciplinary rules and contract principles.

If the client had a free and informed choice before entering into the agreement, and the fee is within the range customarily charged by lawyers in similar representations, it is almost certainly reasonable.

Qualification: Where individuals are involved, particularly individuals without much experience with the legal system (such as typical personal-injury, probate, and criminal clients) courts are more likely to scrutinize fees more carefully for reasonableness.

Matter of Laurence S. Fordham – Rule: Attorney may be disciplined for charging an excessive fee even though bad faith or overreaching did not exist. Here, lawyer successfully exhonorated his clinet from drunk driving charge. He billed 227 hours and the total bill came to over $50k, well above the usual 3-10K range. They had a reasonable agreement in place. Holding: Hours spent were substantially more than were necessary for a reasonably prudent attorney to bill. A client should not be expected to pay for his lawyers education.

Brobeck – Rule: Contingency fee contract is not unconscionable and unenforceable where the client receives substantial value from attorney’s services, and there is no taking advantage of, or exerting superior bargaining power over, the client (received services bargained for and no deceptive conduct). IBM sued Brobeck, won large judgment, attorney was retained to overturn ruling, which he did; he sent them a bill for 1 Mil.

HYPO: What Are You Worth? p. 128 – Can argue that this fee is unreasonable because it falls so dramatically outside of fees customarily charged. Can respond that the fee is reasonable because lawyer came out of retirement to defend (MR 1.5(a)(1, 4, 5) & (7) = the lawyer’s fee justified it.

B. Contingent Fee AgreementsRule: Must be in writing and signed by the client and must state the method in which the fee will be determined. MR 1.5(c).

Exceptions:

NO contingent fee in family law/divorce/annulment proceeding allowed.MR 1.5(d)(1).

exception for post-judgment proceedings. Cmt 6.

NH 1.5(d)(2) – has a three narrow exceptions related to enforcing existing orders

NO contingent fee for representing a defendant in criminal case.MR 1.5(d)(2)

NH 1.5(f) also differs from the model rules in that it allows a division of fee with a forwarding lawyer, regardless of the work performed or responsibility assumed, provided that the client consents in writing to the division of fees and the total fee is not increased because of the fee division and is reasonable

C. Special Nonrefundable RetainersSpecial Non-Refundable Retainers: Pay in advance for services rendered, nonrefundable, credited against account.

General Rule: Special nonrefundable retainers are treated as per se improper in most jurisdictions because it interferes with the client’s right to fire the attorney at any time. MR 1.5, cmt(4).

In Re: Cooperman – Rule: In NY, a non-refundable retainer fee agreement violates public policy because it inappropriately compromises the client’s right to sever the fiduciary services. Special retainer = “requirement that lawyer gets to keep the fee regardless of how much work she puts into the matter.”

Underlying Principle: Client should not have to feel she has to give something up to have services provided for her.

D. General RetainersPaid in advance but only securing attorney’s availability, not compensation for hours worked.


Rule: General Fee Retainers, which compensate the lawyer for being available and ready to perform at moment’s notice, are generally considered valid. MR 1.5, cmt(4).

In Re: Cooperman – Rule: (in dicta) stating that minimum fee arrangements and general retainers that provide for fees, not laden with the nonrefundability impediment irrespective of any services, will continue to be valid and not subject in and of themselves to professional discipline.

E. Minimum Fee SchedulesGoldfarb v VA State Bar – Sherman AntiTrust Act the regulates price fixing applies to State bar and County Bar association that impose minimum fee schedules. A person has a viable cause of action against state bars for monopolistic implication of minimum fee schedules.

F. Referral FeesFor Lawyers Not In the Same Firm

Rule: Lawyer cannot be compensated for assuming an entirely passive role. NO NAKED REFERRALS

MR 1.5(e) deals with fee splitting among lawyers who are not in the same firm. Valid only if:

the division is proportional to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation (specified in writing);

the client agrees to the arrangement, including the share each lawyer will receive and the agreement is confirmed in writing; AND

the total fee is reasonable.

Russ: “Rules still don’t say the making of referral fees is okay”. Some jurisdictions have yet to adopt these rules.

V. CONCURRENT CONFLICTS OF INTEREST

A. Conflict TypesConcurrent Conflicts – Lawyer’s loyalties are divided between two or more current clients. These are generally governed by MR 1.7 (don’t have to knowingly violate this rule).

Successive Conflicts – Obligations a lawyer has to a former client may limit the lawyer’s ability to accept work for a new client. These are generally governed by MR 1.9.

Imputation of Conflicts – Should a lawyer’s conflicted status (whether based on concurrent or successive conflict) be imputed to her partners, associates or office colleagues? These questions are generally governed by MR 1.10, 1.11, 1.12. and 3.7.

Revolving Door Conflicts – Lawyers who leave one private sector firm/ government sector to practice for a competing entity in the opposite sector raise conflicts issues as well. These questions are generally governed by MR 1.11.

Advocate Witness Rule – A problem arises when a lawyer for a client in litigation will or should be a witness, called either by the client or the other side. The Rules provide the so-called Advocate Witness Rule which seeks to avoid a conflict between the lawyer’s interest in being an advocate and the interest of client, the adversary or the system of justice in having the lawyer testify. MR 3.7. As a general rule a lawyer can not occupy both roles. Id.

Entities – Conflicts can arise when a lawyer represents an entity but deals with the entity through its officers and employees. Conflicts can develop if the lawyer is deemed to represent both the entity and its agents and their interests diverge.

Jurisdictional Splits – Conflict rules vary significantly among American jurisdictions. Federal trial courts, may but need not, apply the conflicts rules of the states in which they sit. MR 8.5 provides guidance in deciding which jurisdictions’ rules apply.

Power of Waiver – Lawyers and clients may displace nearly all conflicts via written agreement. Hence, the rules provide guidance as a default and also if client waiver may NOT be obtained.


Russ: We are trying to balance two competing principles: Attorney’s duties of confidentiality and loyalty to client vs. freedom to practice law and to contract on the part of the attorney.

B. Analysis of Current Client Conflicts Problems Generally

1. Identify the Client RelationshipFirst, determine which of the parties in the dispute is a client of the lawyer or law firm.

Does firm have quasi-client obligations to one or more of the parties? (ie – “prospective clients” under MR 1.18.)

Is the client an “entity” (see MR 1.13(a): “a lawyer employed or retained by an organization represents the organization acting through its duly-authorized constituents”.

Then, look for IMPUTATION. Under 1.10 – any conflict will be imputed to other attorneys in firm.

Exception: No imputation where conflict based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

Russ: Draw a diagram of the representation scheme.

2. Identify ConflictsSecond, determine whether there are conflicting interests among the clients or between the interests of one or more clients and the lawyer personally.

a) MR 1.7 (a)(1)“The representation of one client [ie – the prospective new client] will be directly adverse to another client”. MR 1.7(a)(1)

Functionally: what will lawyer do on behalf of one client that could harm the interests of another?

Legally: does a lawyer, by performing these functions, have a conflict under either of the standards laid out in MR 1.7.

Remember: to be directly adverse it doesn’t matter if the actions are unrelated. 1.7, cmt.(6)

Exception: simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of respective clients. 1.7, cmt. (6).

Reasonable assumption that parties on the opposite ends of an adverse transaction will generally have adverse interests. See 1.7, cmt.(7)

HYPO: “May the Lawyer Be Our Client” Hypo, p 190: 1.7(a)(1) does not apply because not the same 2 clients.

HYPO: “ The Client Says We Messed Up” Hypo, p. 204: get consent from client.

Matter of Neville, p 191: Concurrent conflict of interest. Makes point as in comment 1 of 1.8. Rule applies irrespective of the sophistication of the client and applies even if unrelated to the representation. Re-read page. 192.

b) MR 1.7 (a)(2) “There is a significant risk that representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person by a personal interest of the lawyer. Mr 1.7(a)(2).

(1) Material Limitation


Material limitation - even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests. 1.7, cmt. (8).

Cmt. 24 gives list of factors in consideration of materially limited.

Lawyer’s personal interests can also be materially limiting to her ability to represent clients. MR 1.7(a)(2).

Material limitation - mere possibility of subsequent harm does not itself require disclosure and consent. 1.7, cmt.(8).

Material limitation - risk must be significant, cmt (8)

If conflict develops after representation begun, lawyer has to withdraw unless effective consent obtained. MR 1.7 cmt(4).

Fiandaca v. Cunningham – Illustrates that conflicts can arise after initial litigation has commenced – as here when settlement offers were made. (material limitation in that NHLA representing 2 classes whose interests in proposed settlement were adverse – Ct says lawyers had no grounds to reasonably believe they could represent both classes effectively.)

- CT limited the remand to the remedy

HYPO: “Karen Horowitz’s Dilemma” Hypo, p. 206.

Attorney’s beliefs about ethnic discrimination would likely be considered materially limiting under 1.7(a)(2).

Most law firms would honor the wishes of the client.

Russ says the best way to deal with this is to make reference to discrimination policies in retainer letter.

HYPO: “May the Lawyer Be Our Client” Hypo, p 190.

Jen is trying TM case, and the opposing counsel is Bellow. Bellow is Jones’ lawyer. Jen’s colleague Nola discusses case which would represent Bellow’s law firm in legal malpractice case. Nola says cases are unrelated ok to represent.

Is there a significant risk under 1.7(a)(2)? “No easy answer”. Practical consideration, information may be shared about conduct of the other side. Attorneys may ask each other for concessions. (take it easy on myclient).

Can lawyer reasonably believe not materially limited?

This is clearly a consentable conflict. But whether there even is a conflict depends on your judgment under 1.7(a)(2).

3. Ascertain ConsentabilityThird, if there are conflicts determine whether they are consentable.

General Rule: Under MR 1.7(b), Most current conflicts are waivable if:

lawyer reasonably believes (“Reasonable belief” defined in MR 1.0, contains an objective and subjective element) that she will be able to provide competent and diligent representation to each affected client;

the representation is not prohibited by law;

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

each affected client gives informed consent, confirmed in writing.

Future Waivers: Effectiveness of these determined by depth of client understanding. MR 1.7 cmt. 22.


Exception: In some places, the disciplinary rules expressly provide that a conflict may never be waived or consented to by the client.

Nonconsentable conflicts:

MR 1.8(d) - Prohibition on lawyer’s acquiring literary or media rights in client’s story during course of representation cannot be waived.

MR 1.7(b)(3) – Client cannot waive to 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.

o This reflects the modern trend to allow law firms to represent clients with adverse positions as long as the law firm is NOT representing them both in the same litigated matter.

o Exception: 1 lawyer could theoretically represent both sides in an ADR proceeding because this would not fall into the litigation or before a tribunal basket.

MR 1.7(b)(2) – The representation is prohibited by law.

MR 1.7(b)(1) – The lawyer may not represent two clients, even with informed consent, if she does not reasonably believe that she will be able to provide competent and diligent representation to each affected client.

Fiandaca v. Cunningham – Even with clients’ consent, court calls conflict, finding that interests of two classes in proposed settlement were so adverse to each other that attorneys could NOT have reasonably believed they could have impartially represented them both.

4. Was Consent Effective?Fourth, determine if the consent was effective.

General Rule: Conflict is consentable if EACH affected client has given informed consent. MR 1.7(b)(4). Check to see if informed consent accurately obtained according to the following definition:

Informed Consent: denotes agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. MR 1.0(e). See Also MR 1.7, cmt. 18.

See MR 1.0(n) for “written” definition.

Note: Consent may be revoked at any time at the client’s discretion. MR 1.7, cmt. 21.

Exception: In some circumstances it will be impossible for attorney to make the disclosure necessary to obtain consent (e.g., where too much confidential information relating to another client is involved). MR 1.7, cmt. 19.

“May the Lawyer Be Our Client” Hypo, p 190

May be difficult to give informed consent because need to give out confidential info.

Russ: “you have to be prepared when you ask for consent that if 1 client says no you will have to walk away from the case altogether”.

C. Concurrent Conflicts Issues in Specific Contexts.

1. Specific rules for current client conflicts. (1.8)No Business Transactions with Current Clients.

A lawyer shall not enter into business transactions or knowingly acquire interests adverse to the client unless MR 1.8(a)(1)-(3) are all met.

No Use of Ethically Protected Information to Disadvantage of Client.

MR 1.8(b) forbids this unless the client gives informed consent.

Cmt 5. – Info not to disadvantage of client doesn’t count.


HYPO: My client is HIV touches on this.

Lawyer Shall Not Solicit Substantial Gifts from Clients.

MR 1.8(c) prohibition includes substantial gifts to family members of attorney.

MR 1.8(d) forbids selling of Media Rights Prior To Conclusion of Representation.

HYPO: John Coffey’s Case: Attorney impermissibly sought out testamentary gift of Beach house in Rye, NH from client.

Haley’s Case: Attorney severely sanctioned for breaking above Rule in NH.

No Provision of Financial Assistance to Client in Connection with Pending Litigation

MR 1.8(e) provides an exception here where: (1) lawyer advances court costs pending contingency fee agreement; (2) lawyer representing an indigent defendant may advance court costs on behalf of client.

No Third Party Payment for Representation of Client

MR 1.8(f) provides an exception here where: (1) client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to client is protected under 1.6.

o This comes up with representation of minors which is paid for by their parents.

o DO NOT have payer present as this would kill (waive) privilege.

No Agreement Limiting Malpractice Liability

MR 1.8(h) provides an exception here where client has been represented by independent counsel in drafting the agreement.

No Acquisition of Proprietary Interest in Client Cause of Action or Subject Matter of Litigation

MR 1.8(i) provides an exception here where: (1) lien acquired to secure fees/expenses; or (2) contract exists for reasonable contingency fee.

No Sexual Relations With the Client Unless Such Relations Existed Before Representation Began.

MR 1.8(j) (this is only rule excepted from imputation)

a) Imputation of ConflictsMR 1.8(k) provides an imputation of all of the above except (j) for all lawyers associated in conflicted lawyer’s firm.

Rules no longer prohibit representation of client by attorney is immediately related to lawyer who represents the adverse client (deleted 1.8(i) – though some states may still have it).

Note: however, comments say that client should be given notice of familial relations. MR 1.7 cmt 11.

Gellman v Hilal – No per se disqualification based on spousal status – in this case both spouses “could be expected to abide by rule and hence disqualification is unnecessary). Russ disagrees “too much faith in the rules”.

2. Client-Client Conflicts.General Rule: Lawyer may be able to represent two clients in an action if she can show she passes under MR 1.7(a)(2).

Representation of 2 clients is also helped under MR 1.2(c) which allows a lawyer to limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.

Fiandaca v Cunningham – see V(B)(3) above – couldn’t 1.2(c) have helped NHLA.

HYPO: Will You Represent Us Both? Hypo p. 238.


- Is there a problem?

o There is no direct adversity (1.7(a)(1)

o Is there any material limitation?

3. Inconsistent Positions in Unrelated Suits is Allowable.General Rule: Ordinarily a lawyer may take inconsistent legal positions in different positions in different tribunals at different times on behalf of different clients. MR 1.7, cmt.(24).

Exception: A conflict of interest does exist if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case. MR 1.7, cmt.(24) (cmt 24 goes on to list a series of factors to use in determining whether client needs to be advised of that risk.

HYPO: May We Do Both Cases? Hypo p. 238.

Cali – Amicus Brief – PURA

Wis – Chicago office

This would likely fit into the general rule, 1.7 (a)(2) – cmt. 24. Argument could be made that there is a significant risk that this could materially limit lawyer’s ability to represent the other client if one of them is decided before other. Attorney can respond that these cases will be decided in different circuits and hence are unlikely to provide such threat. Remember imputation would apply here under 1.10.

- in evaluating cmt 24, you have to think about how we would deal with it in the real world

4. Representation of Multiple Clients in Transactional Matters.General Rule: Representation of multiple clients in transactional matters can present conflict. Consentability turns on whether it is possible to harmonize the parties’ positions or whether the interests of the parties are “fundamentally antagonistic to each other.” MR 1.7, cmt. 28. See also 1.7, cmt. 6.

HYPO: What Kind of Consent, p. 259. Comment 29-33. Hopefully all 3 parties will be at same level of sophistication and will have already decided the issue among themselves. Can’t advocate against 1 for another because of Rule 1.7. Probably would end up representing one against the others. Must agree to all issues together. If dispute arises later, will have to send to individual counsel and will likely have to withdraw altogether.

5. Results of Violation of Conflicts Rule Disqualification (Fiandaca)

Discipline by Bar.

Malpractice Liability.

Judgment/level of sophistication will be a factor of consideration here.

Simpson v. James – (corporation owner/widow brought suit against law firm for having conflict of interest [the representation of another client] which prevented them from acting in plaintiff’s best interest. Ct upholds as significant negligence in failing to address conflict as grounds for malpractice.)

D. Concurrent Conflicts Issues in Criminal Context.

a) Overlap between Conflicts Analysis and 6th Amendment GuaranteesSixth Amendment (Strickland Test). 6th is violated where counsel’s performance fell below an objective standard of reasonableness AND the deficient representation caused prejudice to the defendant.

Conflicts Analysis – In some cases “conflicted counsel” may pass Strickland Test and thus be grounds for 6th A claim.


eg – RUSS: Gordon Perry Case: Prosecution’s witness was a former client of the public defender’s office. Perry waived conflict but judge still said the defendant was conflicted.

HYPO: Conscientious Objectors Hypo, P. 232.

people are the client;

could be a materially limited conflict under 1.7(a)(2) ~ “no clear answer”

will be difficult for prosecutors to say they reasonably believe they will not be materially limited by their personal beliefs.

E. The Insurance TriangleWhen an insurer represents someone who is covered by a liability insurance policy, a triangular relationship of conflict results (e.g., the lawyer is hired and paid by the insurance company but charged with the responsibility of defending the policyholder’s interests in the lawsuit).

Public Service Mutual Ins Co v. Goldfarb – holding that where an insurer’s interest in defending a lawsuit is in conflict with defendant’s interest – the insurer only being liable upon some of the grounds for recovery asserted and NOT others – defendant is entitled to defense of his own choosing, whose reasonable fee is to be paid by the insurer.

Client Identification – If lawyer owes a duty to policy holder to protect his interests AND owes a duty to the insurance company to keep it informed about the progress of the case, keep defense costs low, and give the insurance company an opportunity to accept or reject settlement offers, it looks like the attorney may have two separate clients.

Different Jurisdictions Approach This Differently:

Traditional view: “Dual Client Doctrine”: Defense Lawyer represents both the policyholder and the insurance company as long as their interests coincide.

o NH views policyholder and insurance company as “co-clients”

Modern view: Policy holder is primary or sole client of attorney. Insurance Company takes a back seat.

Common Conflicts:

Problems arise where policy holder’s coverage is limited and insurance company is motivated to spend little to defend and let it go to trial and let solvent client absorb the excess above the policy limit.

Potential Solution: Some states have statutes allowing that where an insurance company had an opportunity to settle within limits of the policy and unreasonably fails to do so – then the insurance company has to pay the difference. In NH this is the Dumas doctrine.

Wasting Policy: Conflicts also arise with wasting policies because these allow that the more money and insurance company spends on defense the less they have to pay out in indemnification.

F. Lawyer-Witness RuleGeneral Rule: A lawyer shall not act as advocate at trial in which the lawyer is likely to be a necessary witness. MR 3.7.

“likely” puts a higher burden on the party seeking a disqualification.

Exceptions:

the testimony relates to an uncontested issue;

the testimony relates to the nature and value of legal services rendered OR

disqualification of the lawyer would work substantial hardship on the client.

Russ: disqualification is the most problematic to apply.

Imputation Exception: The personal disqualification of the lawyer-witness rule is NOT imputed to other lawyers in the firm. MR 3.7(b).


VI. SUCCESSIVE CONFLICTS OF INTEREST

A. Former Clients: MR 1.9(a) governs side-switching of former clients. The rule presents five distinct issues:

1. Has The Lawyer Formerly Represented A Client Who Might Complain About The Conflict?Representation is a broad concept and not limited to formal attorney – client relationships. It can include fiduciary duties owed to the client based on the course of dealing between the parties.

This can include “prospective clients” under MR 1.18(c).

Where questions of doubt about lawyer representation exist go to 1.3, cmt(4).

Westinghouse Electric v. Kerr-McGee – Lobbying firm representing an Institute was also “representing one of its individual members because it was exposed to confidential information from it.

2. What Is The Nature Of The Matter For Which The Lawyer Formerly Provided Representation? MR 1.9(A)

“Matter” is broadly construed to include deals, transactions and legal planning and advice.

Scope of a matter depends on the facts of a particular transaction or situation. MR 1.9 cmt. (2).

The details of the termination letter here are key. See MR 1.16.

3. Is The Matter The Same Or Substantially Related To The Present Matter?Substantially Related. 1.9(a) - Matters are “substantially related” for purposes of Rule 1.9 if they involve the same transaction or legal dispute or if there is otherwise a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in a subsequent matter. MR 1.9 cmt. (3).

This is primarily about confidentiality.

Analytica v. NPD (lawyer could have obtained information in the first representation that would be relevant in the second representation).

Presumption of Exposure to Confidential Info

A conclusion that lawyer has been exposed to information of past client that is substantially related to current client may be presumed from circumstances and does not require factual showing by former client. MR 1.9 cmt. (3)

Time factor may be significant here. MR 1.9 cmt. (3).

Exception: Information that has already been disclosed to the public or to adverse parties is not disqualifying. MR 1.9 cmt. (3).

Sullivan County Regional Refuse Disposal District v Town of Ackworth (NH, 1996). Even if no confidential information exists, an attorney owes a duty of loyalty to a former client that prevents that attorney from attacking or interpreting work she performed or supervised for the former client.

4. Are the Interests of the Former and Present Client Materially Adverse? 1.9(A)Important – MR 1.7 cmt. (6) may be argued that mere economic adversity not enough – “simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of respective clients.”


5. Did The Former Client Provide Informed Consent?Remember former client conflicts are always consentable.

HYPO: Divorce and Default, p.281. Former Client: Patrick; Current Client: Slipshod. Substantial Relationship: Acquired a lot of financial information in the divorce. Is financial information in any way relevant to this situation: YES. Could get consent here but probably won’t.

HYPO: Do I Still Owe the Record Store, p.281 no, but probably have a potential MR 3.7 problem down the road. Probably not a conflict. Argue Rule 1.7 cmt.6 by analogy.

a) Hot Potato RuleAlthough the rules do not expressly prohibit it, courts have consistently refused to allow firms to drop clients solely for the purpose of taking on new and more profitable matters adverse to the former client. Picker Intl v. Varian Assoc.

Premature withdrawal violates the lawyer’s obligations of loyalty to the existing client and can constitute a breach of the lawyer-client contract of employment.

Examples:

A law firm represents client A and client B on unrelated matters. Then longtime client A asks firm to appear adverse to more recent client B on matter unrelated to the representation of B. The firm seeks to withdraw from B so it can represent A – IT MAY NOT DO THIS.

A firm represents D in litigation against its insurer to determine the insurers’ liability to D. The law firm also represents another insurance company, FIGA in unrelated matters. When D’s insurer fails, FIGA becomes the successor in interest to failed insurer by operation of state law. The law firm now wants to withdraw from representing FIGA so that it may continue to rep D against FIGA in other litigation. – IT MAY DO THIS IF IT ACTS IMMEDIATELY (conflict arose because of what others did, not what law firm did).

A firm represents P against D when either a) D acquires T, another client of the law firm or b) T acquires D. The firm wants to continue rep’ing P. May it continue to rep T? – YES. (same reasoning as #2)

A law firm represents client 1 episodically for 13 yrs but has had no matters with client 1 for over a yr when client 2 asks to retain the firm to sue client1. Probably not as client 1 will be considered a current client due to nature of relationship.

B. Migratory LawyersGeneral Rule: When a lawyer moves from one firm to another, the situation is governed by Rules 1.9(b) and 1.10(b).

Framework of Analysis:

1. Has the Lawyer Formerly Represented a Client Who Might Complain About the Conflict?Representation includes prospective clients who fall under 1.18, multiple clients, etc.

2. Identify the Matter:A “matter” is not just a lawsuit, but it can include a deal, a transaction, or an issue on which the client requires legal advice.

Scope of a “matter” depends on the facts of a particular transaction/situation.

When lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited. 1.9 cmt (2).

A lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the client. 1.9 cmt (2).


3. The Substantial Relationship Test (1.9(b)(2)); and:Substantially Related involves same transaction or legal dispute or if there otherwise is a substantial risk that confidential information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter. 1.9 cmt (3).

Other party is not required to disclose confidential info to prove conflict, instead, conclusion will be made based on details of lawyer’s relationship with conflict. 1.9 cmt (3).

Specific Migratory Lawyer Concerns: 1.9 cmt (4).

Former client must be reasonably assured that the principle of loyalty to the client is not compromised.

Rule should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel.

Rule should not unreasonably hamper lawyers from forming new associations or taking on clients after having left a previous association.

Can’t apply concept of imputation with “unqualified rigor”.

Actual Knowledge Requirement 1.9, cmt 5:

Lawyers disqualified only where they have actual knowledge of information protected by Rule 1.6/1.9(c).

Will also be determined by level of exposure client had to files. Rule 1.9 cmt(6).

4. Material Adversity:The position of a new client is materially adverse to that of a former client if the lawyer would be limited in performing her professional obligation for either one. 1.9(b)(1).

Remember – 1.9(c) still prevents disclosure of confidential info even if no substantial relation/material adversity connection.

5. Imputation?Personal Disqualification: If passes both the substantial relationship and material adversity test, then presumption of shared confidences would mean that the lawyer is personally disqualified from representing the client. MR 1.10(a)

Imputation to Conflicted Attorney’s New Firm?

Jurisdictional Split:

MR have not accepted/endorsed screening. Many jurisdictions (ie – NH) do not accept screening – if lawyer exposed to substantially related materially adverse information, then irrebuttable presumption that conflicted lawyer will pass on confidential info to firm = therefore, firm is barred.

Screening. In some jurisdictions, the presumption of imputed conflict to the new firm can be rebutted by showing that the firm has put an effective screening mechanism into place in a timely manner.

Cromley v Board of Ed - recognizing screening as an effective means of rebutting the presumption of migratory lawyer conflict.

o Elements of Effective Screen:

instructions given to all members of firm of atty’s recusal

prohibited access to files

locked case file with keys

secret codes necessary to access pertinent info

prohibiting sharing in the fees derived from such litigation.


6. ConsentThese conflicts are all consentable under MR 1.10(c) provided the 4 conditions of 1.7 are met.

HYPO: Can We Hire the Guy, p.292: SM can’t work at Cricket ( a clear violation of 1.9(b)(1)&(2). Probably can’t work for Bindloo because matter is substantially related: “same toaster oven.” May also have problem that firm was part of consortium – but can argue no exposure here. Screening: Will depend on the jurisdiction.

Successive Conflicts with Non-Lawyers – Non-lawyers are also subjected to conflicts rules, though in a less stringent manner. However MR 1.10 cmt.(4) allows screening of support personnel and summer associates.

Remember, many states like NH have not adopted the comments.

Other Considerations

Hot Potato Rule Not Necessarily In Effect with Migratory Lawyers - jurisdictions are split as to whether firm can fire the one attorney who represents a client with interests that are substantially related/materially adverse to another client it wishes to hire on the understanding that client will leave with that client and thus enable it to represent the new client.

YES: Hartford Accident v RJR Nabisco (allowing firm to fire attorney on the assumption client would leave with him so that it could represent another client because it was the attorney and not the client who was fired.

NO: Teradyne v Hewlett Packard (however there was also a period of overlapping concurrent conflict in this case as well).

C. Government LawyersRevolving door cases handled by Rule 1.11

1. Identify the MatterIdentify the matter on which the lawyer worked while in gov’t service and matter from which the party is now seeking to disqualify the lawyer.

Matter is narrowly defined - includes “any judicial or other proceeding, application, request for ruling, or other particular matter involving a specific party or parties”. MR 1.11(e)(1).

This excludes rulemaking and legislation drafting.

2. Was the lawyer personally and substantially involved as a public employee?A former government lawyer is disqualified from representing a private client only where the lawyer personally and substantially participated in the matter when she was working for the government. MR 1.11(a)(2).

MR 1.11, cmt(3) – “personally” and “substantially” related apply regardless of whether a lawyer is adverse to a former client, and thus are designed to protect the lawyer from exploiting public office to help out a client.

MR 1.11, cmt(3) – imputation rules of 1.10 do not apply here.

3. If not, is it Possible for Lawyer to Use Confidential Info to Disadvantage of Agency?Government lawyers are still subject to 1.9(c)’s ban on using/revealing information relating to a former representation to the disadvantage of the client except where generally known. MR 1.11(a).


4. Does Lawyer Possess Confidential Gov’t Info that Can be Used to Detriment of 3rd Party Who Provided Info?Rule protects “confidential government information”, which is any information obtained by the government, pursuant to its authority, that it is forbidden to disclose. MR 1.11(c).

lawyer who has confidential info about a person acquired when lawyer was government agent may not represent a private client whose interests are adverse to that person in a matter in which the info could be used to the material disadvantage of that person. MR 1.11(c).

There is no consent provision for this rule, because the misuse of confidential government info affects the third parties who provided the info, not the government.

5. Did the Appropriate Government Parties Give Informed Consent?Consent is an alternative to screening. MR 1.11(a)(2). Under the Rules, only the government agency must consent.

Note: There is no textual basis in MR 1.11 for the agency’s consent to the adverse use of confidential information, but the duty of confidentiality may be generally waived by the former client. MR 1.6(a).

6. If Lawyer is Personally Disqualified, Is Firm Disqualified?The rule for former government lawyers expressly recognizes screening to cure imputed conflicts. MR 1.11(b).

As long as the private firm follows the screening procedure, it must only give written notice to the government agency not to seek its consent. MR 1.11(b)(2).

Also, screened attorney may not receive any portion of fee from client whom she is disqualified from representing. MR 1.11(b)(1).

See 1.0(k) for definition of screened.

7. Lawyers Entering Government ServiceA lawyer now in the government may not participate in a matter in which she had participated personally and substantially while in private practice. MR 1.11(d).

HYPO: Investigating Landlords (304): Not a matter (1.11(e)) because it involved rulemaking and legislation. Could have a 1.11(c) problem if she came across any confidential info.

Tenant – could be a problem with confidential info because could be used to their detriment.

Landlord – probably not a problem because interests not adverse and could not be used to his material disadvantage. Also, could use screening.

VII. ETHICS IN ADVOCACY

A. Duty of Candor before the TribunalDuty of Confidentiality Excused where duties of candor before tribunal arise. 3.3(c).

1. Active Participation by the Lawyer

a) Lawyer May Not “Knowingly” Make False Statements Of Fact/Law To A Court. MR 3.3(A)(1).Exception: Cmt 7: (a)&(b) duties apply to all lawyers, including defense. However, where state law employs narrative technique even if counsel knows testimony is false, then state law prevails.

Knowingly – A lawyer’s reasonable belief that evidence does not preclude its admission at trial. Cmt. 8.


Knowingly denotes actual knowledge of the circumstances – a person’s knowledge may be inferred from the circumstances. 1.0(f)

b) Lawyer must correct false statements of material court to a tribunal. MR 3.3(a)(1).This will turn on whether statement was material – look to what purpose of giving statement was.

c) Lawyer has duty to disclose directly adverse legal authority in controlling jurisdiction to the tribunal, even if opponents fail to cite it. MR 3.3(a)(2).Russ: Controlling jurisdiction in federal courts is only federal district ct in your state.

TEST: even if client calls your attention to case in controlling jurisdiction, you must disclose because 3.3(a)(2) supersedes 1.6 – see 3.3(c).

d) Lawyer has duty to correct false statements of material fact/law previously made to the tribunal by the lawyer. MR 3.3(a)(1).

e) Lawyer can’t offer evidence she knows to be false:Offering testimony he knows to be false. MR 3.3(a)(3).

Lawyer has duty to take reasonable remedial measures including disclosure to tribunal where he subsequently learns of the falsity of evidence he disclosed to tribunal. MR 3.3(a)(3).

Lawyer may refuse to offer evidence he reasonably believes is false, except with the testimony of a defendant in a criminal matter. MR 3.3(a)(3).

This includes DEPOSITIONS – 3.3, cmt 10.

2. Passive Involvement By the Lawyer.Lawyer may not stand and watch knowingly while client discloses an actual fraud before the tribunal. 3.3(b)

Duty to disclose imposed here. 3.3(b).

Knowing see 1.0(f)

In Re Ryder – Client told lawyer false story about how he acquired $ that he had robbed from a bank. Lawyer decided to examine contents of safety box and with client’s permission did so and discovered $ and sawed off shot gun. This is actual knowledge.

3. Exception – Criminal Defendants:Lawyer may not refuse to offer testimony of criminal defendant that he reasonably believes is false. MR 3.3(a)(3).

There must be knowing component & even this can be superseded where state recognizes narrative technique. See 3.3 cmt 7; but lawyer cannot ignore obvious falsehoods. Cmt 8. (will depend on how ct construes actual knowledge.

US v LONG (holding that trial court should impress upon defense counsel that it needs a firm factual basis for concluding knowledge that defendant will testify falsely).

Special considerations with criminal defendants – lawyer’s duty of candor before the tribunal must be balanced with duty of fair representation to criminal defendant.

HYPO: Carl’s Story, p 335.

D’ from Nix because Carl didn’t testify.


Does atty have obligation to let tribunal know that doctors may have based their opinions on false info.

Does atty have obligation to tell Carl? He could respond: i) no sister ii) sister lying iii) sister telling truth. If (iii) then lawyer must disclose to tribunal because this is likely actual knowledge.

Russ: says that this keeps circling back to what does Tanya really know and could be avoided if Tanya never met with client to begin with or if she doesn’t tell Carl. She is probably justified in not telling Carl.

a) In an Ex Parte Proceeding, Lawyer Shall Inform Tribunal of All the Material Facts Known to the Lawyer that Enable the Tribunal to Make an Informed Decision. MR 3.3(D).

B. Duty to Present Meritorious Claims and Contentions OnlyGeneral Rule: Lawyer shall not bring before tribunal any action unless there is a “good faith argument for an extension, modification or reversal of existing law” and the claims are considered “nonfrivolous”. 3.1.

Frivolous does not include the filing of an action which does not have all facts fully developed or because need to file critical facts via discovery. Frivolous does include situations where lawyer not able to make good faith argument on facts. MR 3.1, cmt 2.

Russ: This doesn’t prevent you from seeking to overturn precedent. – just need to show good faith argument.

Subordinate to 6th Amendment. MR 3.1, cmt 3.

Exception: A lawyer for a defendant in a criminal proceeding may nevertheless so defend the proceeding as to require that every element of the case be established. MR 3.1.

C. Duty to Make Reasonable Efforts to Expedite LitigationGeneral Rule: A lawyer shall make reasonable efforts to expedite litigation consistent with interests of client. MR 3.2.

D. Duty of Fairness to Opposing Party and CounselGeneral Rule: A lawyer shall not:

Unlawfully obstruct another party’s access to evidence or unlawfully destroy evidence or counsel anyone else to do so. MR 3.4(a).

o Look out for evidence that might be of future evidentiary relevance here.

Falsify evidence, counsel witness to testify falsely, or offer illegal inducement to witness. MR 3.4(b).

o 3.4 cmt (2) – this includes computer evidence.

Knowingly disobey valid obligation under tribunal. MR 3.4(c).

Make frivolous discovery requests or fail to comply with other party’s legit discovery request. MR 3.4(d).

In trial, allude to matter lawyer doesn’t reasonably believe is relevant or supported by admissible evidence. MR 3.4(e)

o false inferences:

criminal defense context: may make false inferences in criminal context – distinction between making false inference and admitting false evidence. And belief that witness is telling truth does not preclude criminal defense cross-examination. Std 4-7.6.

Eyewitness I Hypo.

criminal prosecution & all civil contexts: l’ in terms of knowingly arguing false inferences. And prosecutors should not use power of cross exam to discredit a witness if they believe witness is testifying truthfully (but doesn’t preclude cross). Std 3-5.7.


Eyewitness II Hypo.

Assert personal knowledge of facts at issue except when testifying as a witness. MR 3.4(e).

State personal opinion as to justness of cause, credibility of witness, or liabilility/guilt of party at issue. MR 3.4(e)

o Border Brook Condos v Gladstone – lawyer put his own personal opinion into closing argument and case was reversed on these grounds.

o Appeals to Bias of Jury are closely related here

LeBlanc v American Honda – anti-Japanese comments in closing argument were grounds for reversal. NH S Ct wouldn’t tolerate “appeal to bias”.

Request a person other than client voluntarily refrain from giving information. MR 3.4(f).

Exceptions:

May tell person other than client to voluntarily refrain from giving info if that person is a relative or an employee or “agent” of client AND

Lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such info. 3.4(f)(1)-(2).

o TEST: Russ says this is a common violation, look out for it on the exam.

E. Lawyer’s Duty upon Acquisition of Real Evidence

1. Generally.Lawyer’s duty upon acquisition of real evidence, a document that may have relevance to a pending or impending case controlled by case law.

Where evidence is a fruit or instrumentality of a crime, illegal in itself to possess, a lawyer cannot keep the evidence.

In Re Ryder – Attorney discovered gun and shotgun in deposit box and hid it in his own safety box, hoping to rely on “privilege” if he were found out - “knowing obstruction of justice” – not covered by privilege here atty took possession of real evidence and thus hindered govt in prosecution of its case.

Note: Ryder could have left everything in his client’s safety deposit box and said nothing. See Meredith.

MR 3.4(a) vaguely addresses a lawyer’s responsibilities in dealing with real evidence: “a lawyer shall not unlawfully alter, destroy or conceal a document or other material having potential evidentiary value”.

Difficult to define “unlawfully” see Arthur Andersen (destroying documents pursuant to document destruction policy that was in force prior to investigation is not unlawfully).

Russ points out that Sarbanes Oxley Act is probably broader in its prohibitions.

2. Real Evidence and the Atty-Client PrivilegeRule: Attorney-client privilege is not strictly limited to communications, but extends to protect observations made as a consequence of protected communications. People v Meredith.

Rule: Wherever defense counsel removes or alters evidence, statutory privilege does not bar revelation of original location or condition of evidence in question. People v Meredith.

Rule: If defense counsel leaves evidence where he discovers it, his observations derived from privilege are insulated from revelation. People v Meredith.

lawyer can escape the turn-over duty by not taking possession of the item. US v Hunter.

see also People v Belge. Russ says 1.6(b)(6) may give a safety valve: lawyer might have chosen to apply it, enabling disclosure of confidential info if violating another law – here the NY Public Health Laws.

HYPO: Vanity Ink, best to leave pen where it is and ignore it.


VIII.NEGOTIATION AND TRANSACTIONAL MATTERS

A. Mandatory Withdrawl Where:

General rule: A lawyer shall not represent a client and shall withdraw once representation has commenced if the representation will result in a violation of the rules of professional conduct or other law. MR 1.16(a)(1).

a lawyer is not obligated to withdraw just because the client suggests an improper course of action. MR 1.16, cmt(2).

a “violation of the rules of professional conduct” generally involves a violation of MR 1.2(d) (shall not assist client is conduct lawyer knows is criminal or fraudulent).

B. Lawyer’s Duties during Negotiations:

1. No Affirmative MisrepresentationsGeneral rule: Lawyer may not make an affirmative misrepresentation of material fact or proposition of law. MR 4.1(a):

“a lawyer shall not KNOWINGLY make a false statement of material fact or law to a third person” = this applies to statements of facts.

Misrepresentations can also occur by partially true or misleading statements or omissions that are the equivalent of affirmative false statements. 4.1 cmt (1).

Exception: Some statements are not taken to be representations of material fact and thus are not bound by 4.1(a). 4.1 cmt(2).

This includes: (4.1, cmt 2)

estimates of price or value placed on the subject of a transaction

a party’s intentions as to an acceptable settlement of a claim

the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.

Note, the exception applies to “puffery” ie (“my client won’t settle for less than $10k”) and should not be over-interpreted.

2. Cannot Assist Crime or FraudGeneral rule: Lawyer is prohibited from counseling or assisting a client in crime or fraud including situations where such crime or fraud takes the form of a lie or a misrepresentation. MR 4.1(b).

“fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client unless disclosure is prevented by 1.6. MR 4.1(b).

Fraudulent: “denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. MR 1.0(d).

Exception: Does not include merely negligent representation or negligent failure to apprise another of relevant information. 1.0, cmt (5).

Note: some jurisdictions (ie – NH) include negligent misrepresentation as fraud and deceit.

a) Withdrawl under 1.2(d)/1.16(a)(1):Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from representation. 4.1, cmt(3)

Sometimes, NOISY WITHDRAWL MAY BE WARRANTED. This means lawyer must “give notice of the fact of withdrawal and disaffirm a document, opinion, etc”. 4.1, cmt(3)


In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted in the client’s crime or fraud. 4.1, cmt(3)

If lawyer can avoid assisting in crime or fraud only by disclosing the info, then the lawyer is required to do so under 4.1(b) unless he is prohibited under 1.6.

3. May Reveal Information to Prevent Crime or FraudGeneral rule: A lawyer may reveal confidential information to the extent he reasonably believes necessary to prevent client from committing a fraud/crime reasonably certain to result in substantial financial injury (in furtherance of which client is using atty’s services) OR to prevent rectify or mitigate substantial injury to the financial interests of property of another…. MR 1.6(b)(2)&(3).

Lawyer not required to reveal misconduct here but CANNOT counsel or assist client in conduct he knows to be false. MR 1.6 cmt(7).

Disclosure not required under 1.6 but may be required under other rules.

Some rules require disclosure if it would be permitted by 1.6(b): (1.2(d); 4.1(b); 8.1; 8.3; 3.3)

Others allow it regardless of 1.6(b) = 3.3.

MR 1.6, cmt(15).

HYPO: Bad Builder/Good Lawyer Hypo, p. 421.

Was she compelled to mandatorily withdraw under 1.16? Need to know substantive procedural law (1.0 definition of crime/fraud) but most likely yes.

Assuming client was intentionally misrepresenting here, was she assisting in a fraud or crime? She can say that she didn’t do anything to assist in replacing the pipes and found out after drafting all the contracts, etc. Therefore no 1.2(d) or 4.1(b) violation. However, the fact that she submitted these materials to a state administrative agency, ST DRED, may put here within the auspices of 3.3. (fraud before tribunal and an administrative body acting in an adjudicatory capacity qualifies as a tribunal and permitting is generally considered an adjudication however Russ says Dred NOT A TRIBUNAL). Thus the fact that she knows makes it violation of prof rules of conduct/ laws of the forum.

Does she have a duty to do a noisy withdrawl:

She may under 3.3 but Russ says DRED not a tribunal so no mandatory duty to disclose.

May have duty to disclose if permitted by 1.6(b). – could she have been “reasonably certain” that substantial harm would have resulted? Pipes were up to Code so not totally clear,

C. Negotiating settlements in litigationGeneral rule: nondisclosure of a material fact to the plaintiff becomes non-disclosure of a material fact to the court when the defendant presented the settlement for approval. This then triggers a violation of rule 3.3 which is more serious.

Virzi v grand trunk warehouse and cold storage co (parties entered into the settlement at a pretrial conference, in the presence of a judge, so court was able to characterize the nondisclosure as fraud on the tribunal. Also relevant here is the fact that the plaintiff had died which was clearly a material fact to the settlement action)

Post-vizri rule: courts have consistently upheld the discipline of lawyers who conceal the death of their client in litigation.

General rule: attorney had ethical duty to advise the court and adversary’s attorney that she has knowledge that the deposition of one of her client’s key witnesses contained false information. Attorney is in breach of rules where she has undisclosed knowledge of this sort and allows the case to settle. E.g. Kath v. Western media (key here is that this was not knowledge of info presented to court by client or attorney (3.3) but by an independent third party. This may be a major expansion of rule 3.3 which russ does not totally agree with).

HYPO: The Case of the Complex Formula, p 422. Significant here is that Court is not involved in settlement therefore no representation being made to a court. Therefore probably no ethical duty to disclose “just accepting the numbers”


HYPO: Prosecutor Negotiating Plea Bargain, p 447

3.3 duty means that prosecutor going before tribunal eventually to discuss settlement of plea bargain and thus may have to disclose.

In terms of negotiation, doesn’t seem like it violates any of 3.8.

IX. LAWYERS FOR ENTITIESThere are specific ethical duties applicable where the lawyer represents a corporation, governmental agency, professional association, etc.

A. General Rules

1. Lawyer Represents Organization:General rule: lawyer represents the organization itself, acting through its duly authorized (ie – under terms of applicable substantive law) constituents. Mr 1.13(a).

“other constituents” means the positions equivalent to officers, directors, employees and shareholders held by persons acting for organizational clients that are not corporations. 1.13, cmt (1).

2. “Up the Ladder reporting” MR 1.13(b)General rule: a lawyer who knows that an employee of an organization is engaged in wrongdoing related to representation that is a violation of a legal obligation of the organization or a violation of law that might be reasonably imputed to the organization and that is likely to result in substantial injury to the organization, then would be harmful to the organization. Unless the lawyer reasonably believes that it is not in the best interest of the organization to do so, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. This includes reporting matter to the highest authority in the organization.

“knows” – see definition in 1.0(f).

“related to representation” – eg – in-house counsel tax lawyer overhears people talking about environmental problem does not have up the ladder reporting duty because environmental concerns are not related to his representation as a tax lawyer.

“OR” – means that either of the following two can trigger up the ladder reporting duty:

violation of a legal obligation of the organization

a violation of law that might be reasonably imputed to the organization

“AND” – means that regardless of whether you have the above 1 or 2, also need:

“that is likely to result in substantial injury to the organization, then would be harmful to the organization”

“substantial injury” determined by the seriousness of the violation and its consequences as well as the responsibility of the organization. MR 1.13 cmt (4).

“unless” – flipped in a way that there is a presumption that with showing of above elements you will have this.

“highest authority” – board of directors or a similar governing authority. MR 1.13 cmt(5). If closely held corporation will be CEO.

Other Considerations:

MR 1.13 implicates:

No substaintial injury, attorney could still resign if attorney fundamentally disagrees MR 1.16(b)(4).

Remember 1.2(d), attorney cannot participate in criminal or fraudulent activities (participating in drafting /submitting omitting documents).


3. Make Disclosure outside the EntityGeneral Rule: Permission to reveal confidential information related to representation even if not permitted by 1.6 that is clearly a violation of law IF AND TO THE EXTENT NECESSARY the lawyer reasonably believes necessary to protect the best interests of the organization and avoid substantial injury. This rule is triggered only if the highest authority in the organization, such as the Bd of Directors, fails to take appropriate remedial action. MR 1.13(c).

Remember this is a “may” = permissive disclosure and NOT a “must”.

Required:

Related to representation

Clearly a violation of law

Reasonable belief that violation is reasonably certain to result in substantial injury.

o “substantial injury” determined by the seriousness of the violation and its consequences as well as the responsibility of the organization. MR 1.13 cmt (4).

Highest authority must have failed to take appropriate remedial action.

4. No Permission to Disclose to Outside Sources if Lawyer Retained to Investigate or Defend an Alleged WrongdoingGeneral rule: lawyer may not disclose to outside source information relating to a lawyer’s representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer or constituent against a claim arising out of an alleged violation of law. Mr 1.13(d).

5. If the lawyer is fired for complying with MR 1.13 or withdraws as rules require, he should take steps to inform the highest authority. Mr 1.13(e).

6. Must give corporate Miranda warnings where organization’s interests are adverse to those of the constituents. MR 1.13(f).HYPO: contraindications hypo, p. 449

Russ: “this problem is set up to emphasize tensions for in-house counsel inherent in trying to keep job and represent organization”.

Does he “know” – yes based on what he has learned thus far. (death at hospital? May be left as open question.

Is this information related to his representation? Yes.

Violation of law? Yes.

Substantially likely to result in harm to organization? Yes.

Only after all these elements are satisfied does the duty to proceed attach. These obligations impose an obligation on him to proceed further.

However, he will probably be precluded subject to 1.13(d) because he was brought in to investigate after the fact.

If no on number 5 has already brought it to superiors and they have failed to act therefore he is could bring it forward but is not compelled to do so, and is limited in scope only to the extent he reasonably believes is necessary.


B. Conflicts and Confidentiality in Entity Representation

1. PrivilegeGeneral rule: when ownership of a corporation changes hands, and the new owner continues to manage and run a pre-existing business entity, the successor management controls attorney-client privilege. Tekni-plex inc v. Meyner & landis.

2. Client in entity representationsGeneral rule: once the corporation is created, it becomes the only client retroactively, displacing its corporate entities who become retroactive non-clients. Jesse v. Danforth.

Russ points out that this is not necessarily the majority rule but is an important part of the analysis.

3. Entity representation where partners insist you violate rulesGeneral rule: legal malpractice action lies where firm assists some constituents of organization to act in a way that is contradictory to the best interests of the corporation. Murphy & demory v. Admiral daniel murphy (violations occurred in which the junior associates spotted but partners ignored).

4. Retalliatory dischargeRule: jurisdictions are only starting to recognize cause of action for retaliatory discharge for in-house counsel. Crews v buckman labs intl

Note: not all jurisdictions recognize yet recognize retaliatory discharge cause of action for in-house counsel whistleblowers.

C. Sarbanes-Oxley And The Rule 1.13 AmendmentsRule: Sarbanes-Oxley promulgates ethics violation reporting requirements for lawyers representing issuers of publicly traded securities.

Russ did not spend any time on SO.

X. JUDGES

A. Conflicts and DisqualificationRule: Appearance of impropriety is the standard for judicial conduct. Canon 3E disqualification, Canon 1 & 2, independence and impartiality.

To get a judge to recuse himself need some kind of smoking gun, some kind of evidence of judge’s bias.

Liljeberg v Health Services Acquisition Corp (facts of judge’s assistance on board of trustees of Loyola University in their sale of property to developer who was simultaneously before the judge in a matter which was unrelated but a condition precedent for the successful sale of property created appearance of impropriety under federal statute).

B. Expressions of Gender, Racial And Other BiasRule: Statements given off the bench which reflect personal bias in matters relating to race, gender or national origin violate Code 2A of Judicial Cannon.

Rule: Judges have an obligation to prevent court room bias. Code 3(B)(5) & (6) of Judicial Cannon.

Rule: Judges shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, or national origin. Code 2(C) of Judicial Cannon.


XI. BAR ADMISSION

A. Admission to the Bar

1. Geographical RestrictionsGeneral Rule: A state may not require as a condition for admission to the bar that the applicant maintain a home address within a state. Supreme Court of NH v Piper (practice of law is a fundamental right for purposes of the privileges and immunities clause). Practice of law is important to economy and has a noncommercial role – out of state lawyer available to raise unpopular claims.

This rule has been extended to those petitioners who are experienced lawyers from other states who wish to be “waived in” or “admitted on motion” without sitting for the bar exam in that state. Supreme Court of VA v Friedman.

Exception: States may require that lawyers maintain a bona fide office within the state. Tolchin v Supreme Court of NJ; Goldfarb.

This is a response to the New Jersey problem, the fear that lawyers from out of state urban areas will come in and sweep up all business that should be going to in state lawyers.

Current Trend: Many states now permit already practicing lawyers “by motion”.

2. Character and FitnessMost states retain some kind of character and fitness review as a part of their bar admission procedures.

Generally only pattern of recent misconduct demonstrating moral character problems will lead to denial of admission.

In Re Mustafa (mishandling moot court funds shortly before application to bar is enough to deny admission for a few years. An applicant for admission to the bar must demonstrate by clear and convincing evidence that he possess good moral character at the time of admission. Look to see if conduct would of resulted in disbarment. Analogize to applicant).

HYPO: Shattered Glass Hypo

Should Stephen Glass be admitted to the bar? Yes, but probably not for a few years and only if he shows that he has done a lot of reparative work to make up for previous indiscretions.

3. Misrepresentation on Bar ApplicationRule: An applicant for admission to the bar, or a lawyer in connection with a bar application admission or in connection with a disciplinary matter shall not:

Knowingly make a false statement of material fact OR

Fail to disclose a material fact.

MR 8.1.

4. Mandatory Pro-Bono RequirementRule: Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono per year. MR 6.1(a).

Russ: says check your jurisdiction to find out what specifics are….

5. Mandatory Bar RequirementNH + 32 other states.


B. Transient Lawyers and Multijurisdictional Firms: Local Interests Confront a National BarCertain kinds of tasks can only be performed by an attorney who is admitted in a specific jurisdiction.

1. Pro Hac Vice (applies only to litigation)States have legitimate concerns with ensuring attorneys advising within their states are competent and satisfy all rules of professional conduct.

Attorneys do not have constitutional due process right to be admitted to the bar pro hac vice in a particular case. Leis v Flynt.

Generally, attorneys may be admitted pro hac vice but need to get another local attorney to supervise them.

2. Services Other Than Litigation (transactional)These place the attorney is a precarious position because no “pro hac vice” option because no court-associated activities.

Birbrower v Superior Court Bombshell:

Holding: One does not have to be physically present in CA to be practicing law there. As long as sufficient contacts / relationships with CA client attorney will be considered to have been practicing law in CA. Therefore lawyers demonstrating such contacts but not admitted to the CA bar are engaged in unauthorized practice of law according to CA statute. The fees resulting from such representation are not enforceable.

Post-Birbrower Solution:

Rule: A lawyer not admitted in a jurisdiction may not establish an office or other continuous and systematic presence in this jurisdiction for the practice of law and lawyer may not hold out to the public or otherwise represent that she is admitted to practice law. MR 5.5(b)(1)&(2).

Exception: ABA amended the 5.5 rule to provide safe harbors for occasional practice in a jurisdiction in which the lawyer is not licensed.

A lawyer not licensed in jurisdiction X may provide legal services on a temporary basis in one of four circumstances:

Note: “temporary” explained in 5.5, cmt(6).

a) Lawyer associates with local counsel. MR 5.5(c)(1).Here the lawyer must ACTIVELY PARTICIPATE in the matter and is admitted to practice in the jurisdiction.

b) Lawyer provides services that are reasonably related to a pending or potential proceeding before a tribunal if lawyer is authorized by law or order to appear in such a proceeding or reasonably expects to be so authorized. MR 5.5(c)(2).Essentially lawyer must have been admitted pro hac vice or must reasonably expect he will be admitted pro hac vice.

“Reasonably related” – may be evidenced by a variety of factors (ie – previous representation, may be resident in state where admitted or if significant portion of matter conducted in lawyer’s home jurisdiction.) MR 5.5 cmt(14).


c) Lawyer is participating in ADR proceedings if services are reasonably related to the lawyer’s practice in a jurisdiction in which he is admitted to practice. MR 5.5(c)(3). Applies to Birbrower-type of situations.

Must relate to lawyer’s practice where she is legally admitted in another jurisdiction.

d) Catch-All/In House Counsel Mr 5.5(D)(1). Lawyer may practice transactional, advising regulatory work if representation relates to lawyer’s practice in a jurisdiction in which he is licensed.

5.5(d) permits a lawyer to act as in house counsel as long as lawyer is duly authorized to practice in some jurisdiction.

Look at 5.5(d)(2) as well.

HYPO: Local Office Hypo, p. 572.

Engaged in practice of law. Attorney will argue that this is no different than what a sports agent would do. However, she is holding herself out as an attorney and is an attorney and the activities are close enough that this will be probably be enough to be considered unauthorized practice of law. See 5.5 cmt 14.

C. Conflicts between Legislature and Judicial BranchConflicts between state legislature and judicial branch regarding the unauthorized practice of law will be determined by what the state constitution says.

In New Hampshire, authority in such a dispute goes to the Supreme Court, as provided in the New Hampshire Constitution.

XII. MORE ON REGULATION/ORGANIZATION OF THE PRACTICE OF LAW

A. Responsibilities

1. Responsibilities of Partners, Managers, and Supervisory LawyersResponsibility of Partners

Rule: Partners, and lawyers who have managerial authority, in a law firm are required to “make reasonable efforts” to create procedures and structures to ensure compliance by all lawyers in the firm with the disciplinary rules. MR 5.1(a).

Responsibility of Supervising Attorneys.

Rule: Even in the absence of a failure to develop effective firm-wide training and supervision procedures, individual supervisory lawyers still may be subject to discipline for inadequate oversight of another lawyer for whom the supervisor has “direct supervisory authority”. MR 5.1(b).

Responsibility of all Lawyers.

Rule: A lawyer is also responsible for the conduct of a lawyer outside the supervisory context if the lawyer orders certain conduct OR is in a position of managerial authority and has knowledge of the conduct and an opportunity to avoid or mitigate its consequences but fails to take remedial action. 5.1(c).

2. Responsibilities of Subordinate LawyersRule: Every lawyer is individually responsible for following the disciplinary rules, even if working within a hierarchical structure like a law firm. 5.2(a).


Exception: The subordinate lawyer will not be subject to professional discipline if the action ordered by the supervisor is a “reasonable resolution of an arguable question of professional duty”. 5.2(b).

Note: Lawyer still has obligation to do research into rules to make sure the supervisor’s proposed resolution is reasonable.

3. Responsibilities of Non-Lawyers.Partners/Managers

Rule: Partners must ensure there are reasonable firm-wide procedures in place to train and supervise non-lawyers to ensure non-lawyers conduct is compatible with the professional obligations of the lawyer. 5.3(a).

Supervisory Lawyers

Rule: Lawyers with supervisory authority over non-lawyers have obligation to ensure their conduct is compatible with the professional obligations of the lawyer. 5.3(b).

All Lawyers

Rule: Lawyers shall be responsible for ordering or ratifying conduct by a non-lawyer employee that would be a violation of the disciplinary rules if engaged in by a lawyer. 5.3(c).

B. Reporting RequirementsGeneral Rule: Lawyers that KNOW of another lawyer’s violation of the rules have a duty to report it to the state disciplinary authority if such violation “raises a substantial question as to that lawyer’s honesty, trustworthiness, and fitness as a lawyer”. MR 8.3(a)

“know” is defined by 1.0(f) and can be inferred from the circumstances.

“substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. MR 8.3 cmt.(3).

Peer Assistance Exception: No disclosure required where information gained by a lawyer or judge while participating in a lawyer’s assistance program. 8.3(c).

Russ warning: Be especially careful when reporting violations by opponent, because if found not “substantial” this could be devastating for you and your client.

XIII. CONTROL OF QUALITY: REMEDIES FOR PROFESSIONAL FAILURE.

A. Malpractice and breach of fiduciary dutyRule: a client can sue a lawyer for professional negligence (a tort claim), breach of fiduciary duty (claim brought under agency law), or breach of the lawyer’s agreement to provide professional services (contract claim).

1. Tort standard

a) Duty and standard of careBefore a duty is owed there generally must be an attorney-client relationship. This may result where the attorney has consulted with an individual briefly and informally.

Togstad v velsely, otto, miller & keefe – injured man’s wife saw attorney regarding potential med mal practice claim by her husband. Miller (no experience in med mal actions) said he didn’t think there was a case but would talk it over with his partner and would contact her if there was a case. He didn’t contact her. She took this to mean no case, and the statute of limitations ran before she went to another attorney.

Post-togstad v velsely, otto, miller & keefe rule: if a reasonable person in the client’s position would think that the lawyer has undertaken to provide legal services, then the lawyer owes that person a duty of care.

Russ: miller should have told her to talk to someone else with more knowledge and should have sent her a letter terminating representation.


b) Breach of dutyGenerally this is shown by a violation of rules of professional conduct.

c) CausationGeneral rule: in order to prove the tort of professional negligence, plaintiff must show that but for the lawyer’s failure to exercise reasonable care, the outcome of the representation would have been different. (“Case within a case requirement”).

Special rule: some courts have relaxed the burden of the “but for” test in breach of fiduciary duty cases, but instead apply a “substantial factor test”.

Eg. Milbank, tweed, hadley & mccloy v. Boon (loosening stringent “but for” requirement where breach of fiduciary duty alleged).

(1) Causation in criminal cases: Rule: the “but for” causation rule applied to criminal defense cases produces an even harsher result. In most cases, the criminal defendant (the plaintiff in legal malpractice cases) must show that he was actually innocent of the crime. The criminal defendant can do this only by having the conviction set aside on direct appeal or collateral attack.

Policy concerns: are we giving criminal defense attorneys an added level of protection from accountability for ethical violations?

Peeler v. Hughes & luce – texas supreme court follows majority view that clients may negate sole proximate cause bar only via exoneration.

Philips, c.j., dissenting: shouldn’t necessarily require actual innocence to prove legal malpractice in criminal context.

HYPO: when sally left harry, p. 609

A) Current conflicts – why this lawyer can’t rep sally

Further concurrent conflict under 1.7 – this lawyer has a partner representing Brenda in a personal matter and Brenda is Adam’s (alleged tort feasor lawyer) partner. Potential materially limited conflict.

He needs to tell her s of l is running out – but in doing so is he violating a duty of loyalty owed to Brenda.

B) Adam’s malpractice via rule violation.

1) probably violated 1.4 duty to inform – given significance of prior holdings/split on subject on divorce settlement valuation – Adam had the duty to inform sally.

2) Gretchen current conflict - materially limited conflict under 1.7 – partner of Adam (Gretchen) was representing harry in limited real estate partnership, negotiating for purchase of real estate. (significant that it’s a limited partnership because that’s how they didn’t notice the conflict). Concern that Adam’s firm would have been impaired in its ability to represent sally for fear of losing Harry’s business. Even though he owns 25% of the business this is probably enough.

Probably enough for liability even though can’t prove “but-for test”. Page 637 for but for test.

B. Beyond malpractice: other grounds for attorney liability to clients and third parties.

1. Lawyer’s Liability to a Third PartyGeneral rule: a lawyer reasonably should foresee that third parties will rely on an opinion letter issued in connection with a securities offering. The purpose of the legal opinion letter is to induce reliance by others. If an attorney foresees or should foresee that reliance, the resulting duty of care can extend to non-client third parties. Once the lawyer assumes a duty, fairness suggests he should bear the loss. Petrillo v. Bachenberg (lawyer had liability for passing all misleading percolation test letter).

Restatement 51 position: lawyer has liability to a nonclient to the extent that:


(a) lawyer or lawyer’s client invites the nonclient to rely on the lawyer’s opinion or provision of services, the nonclient so relies, and

(b) the lawyer knows that a client intends as one of the primary objectives of representation that the lawyer’s services represent the non-client…..

Death and taxes hypo, p.652. Sentence was literally true; suggested amount was correct. Ask russ…

2. Lawyer’s duty of care to a third partyClassic application is where a lawyer prepares a will of which a third party is a beneficiary and messes up so that third party does not receive the inheritance as intended. E.g. Simpson, 139 N.H. 1.

3. Consumer protection lawsConsumer protection laws also provide a platform for clients to bring actions for attorney malpractice. E.g. Averill v. Cox

4. Fraud and negligent misrepresentation.Rule: negligent misrepresentation claims can also arise in connection with settlement talks. Slotkin v. Citizens Casualty Co (lawyer misrepresented his understanding of the hospital’s insurance coverage in settlement talks. He was subjected to personal liability on these grounds).

Rule: opinion letter may also be grounds for fraudulent and negligent misrepresentation action. Greycas inc v. Proud (liability flows from opinion letter where 3rd party given legal opinion).

Rule: possible limitation here – most lawyers’ insurance policies exclude coverage if the lawyer has done something fraudulent. Accordingly, it may be unwise to allege lawyer has acted fraudulently.

a) Abuse of processRule: Russ: lawyers have incredible authority to sue people, if this authority is abused, it will lead to terrible consequences. Eg. Milberg Weiss Bershad Hynes & Lerarch.

b) Malicious prosecution and defenseGeneral rule: the tort of malicious prosecution is generally established if the plaintiff can show that the defendant brought an action against her, that the plaintiff won that action, that the action was commenced without probable cause, and that the defendant initiated the action with malice.

Minority rule: New Hampshire recognizes a cause of action for malicious defense. Elements of this tort are as follows: taking an active part in the assertion of a defense with knowledge or notice that it lacks merit and is primarily for the purpose of hurting another. Proceeding must terminate in favor of defendant and there must be injury or damage in fact. E.g. Aranson v. Schroder (n.h. 1995).

XIII.CONTROL OF QUALITY: LAY PARTICIPATION IN LAW

A. Multidisciplinary Practices

1. GenerallyDefinition: An MDP is an organization consisting of at least one lawyer and at least one other professional, like an accountant or a financial planner, which is intended to provide integrated professional services to clients.

General Rule: Currently, the rules of professional conduct in every American jurisdiction, except D.C., prohibit law partnerships between lawyers and non-lawyers and prohibit lawyers from sharing legal fees with non-lawyers.


Note: Although this is the rule, big accounting firms in America have hired thousands of lawyers in recent years to work on client matters. The accounting firms maintain that the lawyers are not performing “legal services.”

2000 ABA Report re-condemned MDPs and refused to legitimatize them.

2. Fee SplittingRule: Generally, lawyers are prohibited from sharing fees with non-lawyers. MR 5.4(a). This also means that an accountant can not share in a lawyer’s profits.

Exceptions:

An agreement by lawyer with firm to pay money to lawyer’s estate or specified person over a reasonable period of time after the lawyer’s death is permissible. MR 5.4(a)(1).

A lawyer who purchases the practice of a deceased or disabled lawyer may (pursuant to MR 1.17) pay to the estate or the other agreed upon party the purchase price. MR 5.4(a)(2).

A lawyer or law firm may include non-lawyer employees in a compensation or retirement plan even where the plan is based on a profit sharing agreement. MR 5.4(a)(3).

A lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter. MR 5.4(a)(4).

Exception 4 is incorporating. NAACP v. Button (state cannot justify denial of non-profit legal representation, which gets 1st A protection because it is a form of political expression, on grounds that it wants to protect the legal profession.

3. Partnerships and Corporations with Non-Lawyer MembersRule 1: As a general rule, lawyers may not form a partnership with non-lawyers, if the activities of the partnership include practicing law. MR 5.4(a).

Rule 2: Also, they may not practice in the form of a general corporation if a non-lawyer owns any interest in the corporation, serves as an officer or director, or has the right to direct the professional judgment of the lawyer. MR 5.4(d).

Note: D.C. has a different version of MR 5.4 (DC has come closest to permitting lay participation. (allows lay participation only if partnership has as its sole purpose providing legal services to clients).

4. Professional JudgmentRule: Lawyer shall not permit a person who recommends, employs, or pays the lawyer to control the lawyer’s professional judgment. MR 5.4(c).

a) Law Firm’s Ownership of Ancillary BusinessesRule: MR 5.7(a) permits lawyers to operate “ancillary businesses” (ie – insurance brokerage) as long as the lawyer complies with the disciplinary rules.

But only if: the lawyer provides services that are or reasonably may be construed as “law related services”.

The “law related services” provided by the lawyer are NOT distinct from the lawyer’s provision of legal services to clients;

OR:

Where the lawyer or an entity controlled by the lawyer fails to take reasonable steps to assure the client that the “law related services” are NOT legal services and that the protections of the atty-client relationship do NOT exist.

“Law Related Services” means services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as UPL when provided by a non-lawyer.


Duty to Communicate: In communicating with person receiving law related services, lawyer should communicate to person receiving the services in a manner sufficient to ensure that the person understands the significance of the fact that the relationship is not an atty-client relationship. This communication should be made before entering into an agreement for the provision of law related services and preferably should be in writing. 5.7 cmt(6).

Allocation of the Burden: The burden is on the lawyer to show that she reasonably communicated the desired understanding to the client. Sophistication of the client may be a factor here. 5.7 cmt(7).

Note: Regardless of the potential sophistication of the client, lawyer still must make effort to keep the provision of law related services and legal services separate. 5.7 cmt(8).

Where impossible to distinguish between legal svcs and law related services: The lawyer will be responsible for ensuring that both the lawyer’s conduct and non-lawyer’s conduct comply with the rules of professional conduct. 5.7 cmt(8).

Referral From Separate Entity Owned by the Lawyer: When a client lawyer relationship exists with a person who is referred by a lawyer to a separate law-related service entity controlled by the lawyer, individually or with others, the lawyer must comply with 1.8(a). 5.7 cmt (5).

HYPO: How Can We Get Together. P. 745

Issue: What is the closest a law firm and a financial planning group can come

Under DC Rules which are the most liberal? Could form a partnership under DC MR 5.4(a). But 5.4(b)(1) of this standard would cause a problem because this is not the provision of “legal services” therefore they cannot share fees.

Can’t have an exclusive referral policy. See MR 7.4

Under NY rule 5-107 (NY still follows the Code)?

probably not because DC rules are most liberal…

1-107, not under that.

Can you say that is an ancillary business owned by the firm? No.

XIV. FREE SPEECH RIGHTS OF LAWYERS

A. Trying a Case in the PressGeneral Rule: A lawyer shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. MR 3.6(a).

Requirements for 3.6 to Take Effect:

lawyer must be participating or has participated in the investigation or litigation of a matter

must be an “extrajudicial statement”; one made out of court

lawyer must “know” or “reasonably should know” that

o the statement will be disseminated by means of public communication and

o information has a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter

Imputation Rule: No lawyer associated in a firm or government agency with a lawyer subject to 3.6(a) shall make a statement prohibited by 3.6(a). 3.6(d).

1. Safe Harbor Statements (that a Lawyer May Make Without Fear of Discipline):Lawyer may state publicly:


The nature of the claim, offense or defense involved, and (except where prohibited by law) the identity of the person involved. MR 3.6(b)(1)

Information contained in a public record MR 3.6(b)(2)

That an investigation of a matter is in progress. MR 3.6(b)(3)

The scheduling or result of any step in litigation. MR 3.6(b)(4)

A request for assistance in obtaining evidence and information necessary thereto; MR 3.6(b)(5)

A warning of danger concerning the behavior of the person involved, when there is reason to believe that there exists substantial likelihood of harm to an individual and public interest MR 3.6(b)(6)

In a Criminal Case, A Lawyer May State Publicly (in addition to the above):

The identity, residence, occupation and family status of the accused; MR 3.6(b)(7)(i)

If the accused has not been apprehended, information necessary to aid in the apprehension of that person; MR 3.6(b)(7)(ii)

The fact, time and place of the arrest; MR 3.6(b)(7)(iii)

The identity of the investigating and arresting officers or agencies and the length of the investigation. MR 3.6(b)(7)(iv)

2. Self Protection from Undue Prejudicial AffectProtect client from undue, non-self initiated prejudicial publicity:

Rule: As an exception to the blanket prohibitions of 3.6(a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by lawyer or lawyer’s client. Here, statement must be limited to such information as is necessary to mitigate the recent adverse publicity. MR 3.6(c).

Note: this is so vague, can likely make a claim on both sides.

Gentile v. State Bar of Nevada (lawyer held press conference to counter what he viewed as false police publicity which was prejudicial to his client. Supreme Court upheld his First Amendment right to do this. Decision served as impetus for 3.6(c) Kennedy’s majority opinion noted that an attorney in Gentile’s position is able to 1) take steps to minimize the publicity; 2) attempt to persuade the public; 3) lawyer may even have a duty to attempt to do this on behalf of client).

Russ’s Practice Pointer: Note that the lawyer documented that he had considered the relevant rule and made decision to conduct the press conference on a reasonable interpretation of that rule.

HYPO: What Can I Say, p 763.

Recognize inherent tension here in that lawyer wants to do exactly what she is prohibited from doing under 3.6(a).

Does she qualify for safe harbor under 3.6? Perhaps, 3.6(c). Can argue lab info was necessary to mitigate. 3.6(c) is so vague, can likely make a claim on both sides. May be a 3.6(b)(1) exception – may be able to say just stating claim or offense….

B. DefamationRule: Absolute privilege for everything said in court/submitted in pleadings. Absolute privilege may be asserted in defense against a defamation claim related to such proceedings.

Note: Immunity only protects statements made in connection to pending litigation. Statements palpably irrelevant to the subject matter of the controversy, such that no reasonable man can doubt their impropriety are not protected by absolute privilege.

Press Statements Not Protected: Privilege does not apply to press statements. Sending copy of complaint to press may be grounds for defamation action. It is unclear whether a lawyer’s notification of the press that an interesting complaint was filed worthy of press attention would be grounds for a defamation action.


C. Public Comments about Judges and CourtsRule: Model Rules prohibit lawyers from making statements the lawyer knows to be false, or statements that exhibit reckless disregard as to its truth or falsity concerning the qualifications of a judge or similar adjudicatory official. MR 8.2(a).

1. Criticizing the administration of justiceRule: A single incident of rudeness or lack of professional courtesy (when not extreme) does not support a finding of contemptuous conduct or a finding that the lawyer is not fit to practice law in federal courts. In Re Snyder (US, 1985) (lawyer sent letter with irritable tone asking to be excised from the No Dakota federal court’s list of indigent criminal defenders).

2. Criticizing particular judgesRule: Standard governing attorney’s public false accusation against a judge is whether that criticism adversely affects the administration of justice and adversely reflects on attorney judgment and ability to practice law. This is an objective standard of what would a reasonable attorney do under the circumstances. Matter of Holtzman (reasonable attorney std governs not actual malice NY Times v Sullivan std).

XV. MARKETING LEGAL SERVICES.Disciplinary rules dealing with advertising are always overlapping with 1st Amendment concerns. Went for It is the current line between constitutional restriction and unconstitutional restriction. Pg. 826.

A. Face to Face Solicitation May Be BarredRule: Face-to-face solicitation is given less constitutional protection than advertising, because of the danger that a trained advocate may take advantage of a vulnerable prospective client.

Face to Face solicitation: Ohralik v. OH State Bar (upholding OH ban on in-person solicitation of prospective clients by lawyers).

Exception: Some kinds of direct, in-person contact by attorneys with prospective clients is permissible as “political speech” protected under the 1st Amendment. This exception is limited to cases where:

the lawyer is motivated by her desire to “express personal political beliefs” and to advance the civil liberty aims of a non-profit organization.

(ii) the lawyer can NOT be motivated by the possibility of her own pecuniary gain.

Codified By: MR 7.3(a) – A lawyer shall not by in-person, live telephone or real time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain unless, the person contacted is:

(i) a lawyer

(ii) has a family, close personal, or prior professional relationship with the lawyer.

7.3(b) – look this up and know it as well.

Russ: If there is a private fee collected of any kind and the attorney solicited the case, it was improper

B. Advertising Cases

1. Advertisements Generally May Not be BarredRule: A state bar may not ban lawyers from circulating truthful advertisements concerning availability and terms and prices of routine legal services.

Bates v. State Bar of AZ (striking down AZ’s bar on all advertisements of legal services because truthful advertising is a form of commercial speech protected under the 1st A).

Note: State may ban false, misleading and deceptive ads; state may also make restrictions delineating extent to which claims of quality can be made in conjunction with legal services.


Rule 7.1: A lawyer shall not make false or misleading statements about the lawyer or the lawyer’s services.

Cmt. (2): Truthful statements which are also misleading are also forbidden. Lists types of permissible advertising. The lawyer’s track record is generally not included here.

Cmt. (3): Gives examples of truthful statements that are also misleading.

Russ: Author questions if Bates will remain good law.

Codifying Bates: MR 7.2(a) Enables lawyers to advertise through written, recorded, or electronic communication, including public media.

2. Targeted Advertisements Are Also PermissibleRule: State may not ban advertisements which are targeted at a specific population of clients with a specific legal problem and offers them advice.

Zauderer v. Office of Disciplinary Counsel (holding that state may not ban advice and information on a specific legal problem intended to reach a specific group of individuals because such commercial speech is protected by the 1st Amendment) (this was the Darcon Shield advertisement case).

3. Targeted Mail Are Also PermissibleRule: Targeted direct mail communications also receive constitutional protection.

Shapero v. KY Bar Association (holding that targeted direct mail solicitation is distinguishable from in person solicitation and therefore receives constitutional protection).

Also stating in dictum that state can regulate the dangers associated with targeted mail in a less restrictive manner than a total prohibition.

4. Communications Must List Name & Address of FirmRule: Any advertisement made pursuant to this rule shall include the name and address of at least one lawyer or law firm responsible for its content. MR 7.2(c).

C. Restrictions on Compensation for ReferralsRule: Beyond paying to produce advertisements and buying a law practice from another attorney, a lawyer may NOT pay for referrals, except in 2 limited circumstances:

A lawyer may pay the customary fee of a non-profit lawyer referral service established by the appropriate regulatory authority 7.2(b)(2)

Codifying NAACP v Button.

(2) lawyer A may agree to refer clients to lawyer B, in exchange for lawyer B agreeing to refer clients to lawyer A in the future, as long as the client is informed of the nature and existence of the fee agreement and it is non-exclusive. 7.2(b)(4).

7.3(a) - Ohralik

XVI. LAWYER’S OBLIGATIONS WITH REGARD TO GENERAL MISCONDUCTRule: MR 8.4 prescribes that it is professional misconduct for a lawyer to:

Violate or attempt to violate the rules or knowingly assist another to do so.

Commit a criminal act that reflects adversely on lawyer’s honesty, trustworthiness or fitness

Engage in conduct that constitutes dishonesty, fraud, deceit or misrepresentation

Engage in conduct that is prejudicial to administration of justice

State or imply an ability to falsely influence a judge.


Final6 essay questions, equal weight.

Alan Shore is a junior partner at a Boston law firm. The firm does a significant amount of legal work for the City of Boston, primarily as a result of close personal ties of its senior partners to the current mayor, Tom. The following events unfold during the mayor’s re-election campaign.

Tom is running ads that, allegedly, contain falsehoods regarding Dick, his challenger. Dick consults with Shore, seeking representation in an attempt to stop the ads [CONFLICT OF INTEREST, IMPUTED THROUGH THE FIRM, RULE 1.10, RULE 1.7(a)(1) - maybe & (2) - certainly, RULE 1.6 (MUST KEEP INFORMATION ABOUT TOM CONFIDENTIAL)]. As it happens, Dick’s wife is a former lover of Shore [PROBABLY NO CONFLICT]. Dick tells Shore that he has already consulted with several leading lawyers, all of whom have told him that he has no legal basis to seek injunctive relief against the ads [FRIVOLOUS?]. Shore nonetheless agrees to bring suit on Dick’s behalf against Tom.

Upon learning of this, the managing partner of Shore’s law firm, concerned that this may interfere with the firm’s ongoing legal work for the City, advises Shore not to undertake the matter [MORE EVIDENCE OF CONFLICT, KNOWINGLY, RULE 5.2 DOESN’T APPLY, SUPERVISING ATTORNEY SHOULD OF MADE MORE REASONABLE EFFORT, RULE 5.1]. Shore ignores the managing partner and proceeds.

Without having conducted any legal research to find support for the lawsuit [COMPETANCE & DILIGENCE, FRIVOLOUS, RULE 1.1, 1.3, 3.1], Shore appears in court at the hearing on the request for an injunction, but is unable to cite any legal basis for such a prior restraint on free speech. The judge rejects the request, but the publicity surrounding the suit improves Dick’s image, and he ultimately wins the election [NO EVIDENCE THAT THERE WAS INAPPROPRIATE PUBLICITY].

Shortly before the election, Shore learns from Dick’s wife Mary (his former lover) that Dick has been having an affair with his public relations representative. Shore, duly outraged, agrees to represent Mary [1.7(a)(2), MARY WAS HIS LOVER, WILL HIS JUDGMENT BE AFFECTED] in a divorce action against Dick [IS DICK A CURRENT CLIENT? RULE 1.7(a)(1), OTHERWISE RULE 1.9 (FORMER CLIENT) – LIKELY NOT SUBSTAINTIALLY RELATED MATTER], and prepares a draft of an extremely favorable divorce settlement agreement [ASSUMING NO CONTINGENCY FEE].

On election night, Shore confronts Dick [IS DICK REPRESENTED? IF SO EX PARTE, NOT ALLOWED BY RULE 4.2, IF NOT, RULE 4.3 APPLIES, SHORE GAVE LEGAL ADVICE, DIDN’T ADVISE DICK TO GET COUNSEL, 8.4(b) – fitness / honesty, 4.4 – RESPECT RIGHTS FOR 3rd PERSONS], demanding that he agree to the proposed terms, or Mary would “go public” with the affair [CAN’T GO PUBLIC, WOULD MATERIALLY PREJUDICE THE ADJUDICATIVE MATTER, RULE 3.6; USING OFFENSIVE TACTICS, RULE 1.3]. Dick agrees with the terms, and later that night, wins the election. Shore then immediately engages in intimate relations with Mary [NO SEXUAL RELATIONS WITH CLIENT, QUESTION IS WHEN CLIENT RELATIONSHIP ENDS, IS IT ENDED?].

These acts raise many issues regarding potential professional conduct violations. Identify at least six (6) such potential violations, and then discuss each in accordance with the 2005 version of the Model Rules.

Charlotte’s Predictions: 1.13 will be on the exam. Look at Rule 7.5; 8.1; 8.3

Documents

ProRes Hillard