Learning Center
Plans & pricing Sign in
Sign Out

Legal Profession Outline


									Lamprecht Fall 2005                                                      Legal Profession

                                LEGAL PROFESSION OUTLINE
                                  Lawyer-Client Relationship

I. Defining the Lawyer-Client Relationship

A. Is there a Client here?

   1. It is important to always focus on who the client is. This is the person or entity you owe
      duties to.

           a. Ex. 50 year old son with elderly mom who just nods to what son says. Mom is
              the client.

   2. If a person reasonably believes that a lawyer is providing legal services and lawyer acts
      in way for person to reasonably believe, there is a lawyer-client relationship.

           a. This is true even if no fees and no discussion of forming a relationship.

Togstad v. Vesley: p. 19, 612
Facts: Lawyer says I don’t think you have a case. Lawyer II investigates and finds that person
has case, but SoL has expired. Togstad sues first lawyer for malpractice.
Issue: Is there a C-L relationship upon which Togstad can sue for malpractice?
Analysis: Togstad has reasonable belief she was given advice by lawyer.
There is a duty to a potential client that is case law based. Lawyer I was negligent because he
did not investigate the claim.

   3. Rule 1.18 establishes certain duties to a prospective client. Case law says you owe duty
      of accuracy for information given to a prospective client and a duty of confidentiality.
          a. Ex: W goes to L and talks about case. Doesn’t hire L. H subsequently hires L. L
             can’t disclose any info that W gave if she was a prospective client.
          b. Comment 2: When L will not be a prospective client. Unilaterally communicates
             info to L. i.e. via email that was unsolicited by the L.

B. Competence

   1. Rule 1.1 sets forth the requirement that the lawyer must provide the client with
      competent representation.

   2. The requirements of competent representation are:

           a.   Legal knowledge
           b.   Skill
           c.   Thoroughness
           d.   Preparation necessary for representation.
Lamprecht Fall 2005                                                     Legal Profession

   3. Disciplinary action is only enforced in egregious cases.

   4. Mistakes are made (ex. SoL is blown) and proceedings under Rule 1.1 often occur when
      there is a pattern of incompetence.

   5. Expertise in a field may hold you to a higher standard.

   6. In the instance of new lawyer or lawyer not familiar with field, the lawyer may take the

           a. Comment 2: Through necessary study a new lawyer may provide competent
           b. Comment 4: The requisite level of competence can be achieved by reasonable
           c. You cannot charge for all time to get up to speed, because client assumes lawyer
              has level of competence. You have to eat educational costs. See Rule 1.5(a)
              which requires a reasonable fee must be charged.
           d. Sidebar: Rules 4.1(a) and 8.4(c) – lying and dishonesty. You can’t say you’re
              experienced if you’re not, and you can’t misrep your educational status

C. Confidentiality

   1. There are two important principles related to this:

           a. Ethical duty of confidentiality
           b. Evidence rule of attorney-client privilege.

   2. Rule 1.6(a) sets forth general rule that confidential information relating to the
      representation of the client. Any information given to the L by the client in the course of
      the relationship is probably protected by 1.6. (breach can result in civil punishment &
      discipline under the rules)
          a. May not be disclosed unless:
                   i. Informed consent
                          1. Defined in Rule 1.0 – agreement by a person to a proposed course
                              of conduct after the lawyer has communicated adequate
                              information and explanation about risks.
                  ii. Disclosure is impliedly authorized in order to carry out representation
                          1. Ex. Lawyer talks to other people in the law firm in order to better
                              serve the client.
          b. Misc: It doesn’t matter from whom you learn the information. It can apply to info
              learned after rep has concluded (comment 3). The rule applies after your rep is
              over (comment 18). It also survives death. You are entitled to belief that cell
              phone conversations are confidential and won’t be intercepted.

Hypo: Lawyer represents GM and person e-mails lawyer about wanting to bring suit. Can the
lawyer disclose to GM? Lawyer has not discussed, so no duty of confidentiality.
Lamprecht Fall 2005                                                        Legal Profession

Q: What if lawyer website says he specializes in employment discrimination?
A: L is encouraging and soliciting people to contact so there is duty of confidentiality here.

   3. Rule 1.6(b) sets forth public policy exceptions where lawyer may reveal information
      relating to the representation:

           a. (b)(1) To prevent certain death

Real Case: Client says he killed 2 and knows where the bodies are. Lawyer is negotiating for a
plea. He says client will reveal location in exchange for a break on sentencing
Can the lawyer disclose the location under 1.6(b)(1)? The death has already occurred so it would
not be preventive.

           b. (b)(2) To prevent reasonably certain financial crime or fraud
                   i. Preventative
                  ii. In furtherance language – only permits the lawyer to prevent once the
                      client has used the lawyer’s services. See Comment 7.
                 iii. PA drops the in furtherance language.

Q: Client comes to lawyer and says he wants lawyer to do something. Lawyer is not going to
disclose and continue to work for the client. Is this permitted?
A: Lawyer may not assist in conduct lawyer knows (knows – denotes actual knowledge.
Knowledge can be deferred from the circumstances) to be criminal. See Rule 1.2(d). Lawyer
may be able to withdraw under Rule 1.16.

           c. (b)(3) To prevent mitigate or rectify substantial injury to the financial interests.
                   i. Mitigating
                  ii. Also contains “in furtherance.”

Hypo: A PA lawyer is representing PA Corp in dealings with NJ bank. PA Corp admits to
lawyer false documents were submitted to bank. Under Model Rules, lawyer may disclose under
1.6(b)(3). NJ requires disclosure, but PA does notconflict of laws.
    - Under Rule 8.5(b) the rules of the jurisdiction in which the lawyer’s conduct occurred

           d. (b)(4) Lawyer seeking advice about compliance with the Rules.

           e. (b)(5) Self-defense exception - lawyer is defending by testifying about facts
              relevant to the representation.
                   i. Lawyer need not wait until commencement of action begins. Ex. Find out
                      being investigated, may go clear name.
                  ii. The greatest use of (b)(5) is when the lawyer is suing the client for
                      payment of a fee. This will necessarily entail lawyer disclosing facts
                      about representation. (b)(5) permits this “to establish a claim in
                      controversy between lawyer and the client.”
Lamprecht Fall 2005                                                          Legal Profession

           f. (b)(6) To comply with other law or a court order
                   i. Lawyer’s responsibility is to promote client interest, but court may order
                      to disclose. It is then allowed to be disclosed under 1.6(b)(6).
                  ii. A subpoena is not a court order. You object until there is a court order.

   4. The exceptions are permissive and the lawyer does not violate the Rule if information is
      not disclosed. See Comment 15.

           a. NJ requires the lawyer to disclose. See Supp p. 75.

   5. Comment 18 states that the duty of confidentiality continues after the client-lawyer
      relationship has terminated.

Real Case: Client says he killed 2 and knows where the bodies are. Lawyer is negotiating for a
plea. He says client will reveal location in exchange for a break on sentencing
Can the lawyer disclose the location under 1.6(b)(1)? The death has already occurred so it would
not be preventive.
People were outraged for holding out. They brought public health threat. Court threw out suit.

   6. It does not matter where the information came from—client or non-client—what matters
      is if it relates to the representation.

Hypo: Ethics column in Newsletter – lawyer defends guy who cannot be in bar. Lawyer quits
defense work and becomes DA. Goes to bar and sees old client. Can the lawyer go back and
inform DA about violation?
Argument for it does relate to representation: You knew he was violating probation because you
were his lawyer. Becker favors a very broad “relating to the representation.”

   7. Scope of the rule is broad. It is anything the lawyer learns by reason of client
      encountering lawyer.

   8. There is no social disclosure exception – cannot tell wife when you come home.

           a. You could tell without using the names.

   9. Violations of the confidentiality rule can lead to 2 kinds of suits:

           a. Malpractice – lawyer breached duty of care. Only economic out of pocket costs
              can be recovered.
                  i. In sex with client case, may be no economic damages.
           b. Breach of fiduciary duty – lawyer did not act as a fiduciary should. Lawyer did
              not act in way consistent with a fiduciary relationship.
                  i. Having sex with emotional client violates fiduciary duty.

   10. The purpose of the Rule is to make the client feel comfortable to reveal everything to the
       lawyer. If you have a broad rule, it facilitates communication.
Lamprecht Fall 2005                                                       Legal Profession

D. Attorney-Client Privilege

   1. Information protected under this privilege should not be confused with information
      protected under the confidentiality model rule.

   2. Privilege is a rule of evidence. Attorney-client privilege says that certain
      communications are exempt from rules that apply to normal evidence.

           a. It applies in discovery. It exempts case that is otherwise relevant to the case.
              “Although otherwise relevant and discoverable, the information is protected from
           b. Purpose: There is a higher public policy of wanting people to be candid when
              speaking with their lawyer.

   3. Virtually all privileged information will also be protected by confidentiality, but much of
      the information protected by the model rules will not be protected by privilege.

                                         Privilege Rule
 What is protected?
   1. Any communication oral or written
   2. by the client to the lawyer
   3. made in confidence
   4. for the purpose of obtaining legal advice or assistance

   4. Communications are what are protected. The underlying facts of the communication can
      be asked about. Ex. What did you send to your attorney.

           a. Does it cover a communication back to the client? If the communication would
              reveal what the client said, it must also be privileged.

   5. Client includes prospective client, also includes communications to agent of lawyer (ex.

   6. Statement must be made in confidence.

           a. Speaking with couple, anything one client tells you the other hears and the
              privilege is destroyed.

   7. Must be for the purpose of obtaining legal advice or assistance.

           a. If it is mixed business/legal, the predominate determines. Ex. House counsel: We
              want to acquire this other corp, what is the most appropriate way to do it.
Lamprecht Fall 2005                                                        Legal Profession

           b. If you are talking about things in the past, is it covered. If it relates solely to the
              past, it is not protected. If the lawyer says send me a chronology, this could be for
              providing advice and therefore protected.

   8. Lawyer’s duty under 1.6 applies to much more info. With A-C Privilege only talking
      about in judicial proceeding.

   9. If something is not privileged, the lawyer cannot blab it, because of the restrictions under
      the Model Rules.

Upjohn Co. v. U.S.: US 1981 p. 32
Facts: Lawyers for company think employees have been bribing. Upjohn lawyers conduct
interviews. Gov’t investigates and subpoenas the interviews and documents. Lawyer represents
the company and not the employees.
Issue: Is the employee deemed to be the company for purposes of the privilege?
Analysis: In Upjohn, the court discusses two tests for determining the scope of the privilege:
    - Control group test – “Only the senior mgmt” people who control the corporation.
            o This is the least protective test (protects the least amount of information).
    - Subject matter test – If the communication is given for purpose of giving advice, it is
        protected, regardless of the person.
Holding: Court rejects the control test and goes for broader privilege of subject matter.

   10. With the subject matter test, there is a zone of silence argument where information would
       be sent to lawyers just to get it privileged.

           a. Ex. Tobacco companies had copies of scientific results sent to their lawyers in
              order to hide behind the privilege and thus undiscoverable.
           b. SC rejected this zone of silence argument by saying all the privilege does is
              protect the communication. You can ask the employees about the underlying
              facts in a deposition.

Samaritan Foundation v. Goodfarb: AZ SC 1993 p. 35
Facts: Lawyer for hospital investigates and interviews nurses. Lawsuit is brought and years later
4 employees say they forget what happened
Issue: Pl lawyer know there are interviews and want the transcripts. It is the same issue as in
Analysis: Look at the two tests:
    - Control group – would not be privileged because the nurses are not part of the control
    - Subject matter test – it would be privileged because the nurses communicated with
        lawyer for him to give counsel.
Holding: Court comes up with a middle-view: If it is unsolicited and for advice, it is privileged.
If someone else sets it up, for protective purposes, it will not be privileged.
Lamprecht Fall 2005                                                       Legal Profession

   11. The Court in Samaritan could reject the SC view because the issue in Samaritan was an
       Arizona evidentiary issue. AZ legislature eventually overruled the decision

E. Exceptions to the Privilege of Ethical Duty

   1. Self-defense – both the the Model rules and privilege allow a lawyer to reveal
      information if necessary to defend him self against an accusation of wrongdoing.

   2. Waiver – a client may waive the privilege.

           a. Limited waiver – tell the SEC something, only waived to SEC. Generally this
              does not work. If you make a waiver, you make a waiver.
           b. Hot issue: Gov’t when investigating case against Corp. Gov’t encourages Corp to
              waive privilege in order to be fully complying (good faith). DOJ says just trying
              to discover all the facts. Corp lawyers say it is Blackmail. ABA is trying to work
              out agreement with DOJ for when waiver can be requested.
           c. You cannot unwaive once you waive.
           d. New Issue: Lawyer discloses to a PR person. Has the lawyer waived the
              privileged by disclosing to a public relations expert?

   3. Crime-fraud exception – communications are not privileged when the client has
      consulted the lawyer in order to further a crime or fraud, regardless of whether the crime
      or fraud is accomplished and even though the lawyer is unaware of the client objective
      and does nothing to advance it.

Hypo: Client goes to lawyer with scheme to defraud a bank. Client prepared B/S that is false.
Q: Can the lawyer act for the client?
A: No because it would violate 1.2(d).
Q: Is the lawyer permitted to disclose this to the banks?
A: Yes under Rule 1.6(b)(2). We are not talking about privilege, we are talking about disclosure
of information related to the representation.
Q: In judicial proceeding, does privilege apply?
A: Privilege does not apply if the purpose of the communication is intended to further a crime or

Is in furtherance applicable to Crime-fraud exception?

Q: Person murders and tells lawyer, can lawyer represent them?
A: Yes you can represent because not assisting in crime or fraud. You can test system, but you
cannot permit client to perjure himself

   4. Identity and Fees Exception – assertions of privilege for information relating to a client’s
      identity, the source of legal fees, the amount of fees and other information about
      representation are unsuccessful.
Lamprecht Fall 2005                                                         Legal Profession

Hypo: There is a hit and run where victim is injured. Lawyer goes to police and asks what kind
of deal can be made. No deal results. DA subpoenas the lawyer what is your client’s name.
DA argues identity is traditionally not privileged.
Court holds that notwithstanding the exception, there is exception to the exception which states if
the information would be the last link in a chain of evidence to prosecute a client, it is privileged.
Exception is it is not privileged, exception to exception is “last link” doctrine.

            a. Purpose of exception to exception is there is a higher interest when life and liberty
               are at stake.

   5. Public Policy Exception - prosecutor says there is an important public prosecution that
      should prevail over the privilege. Is there an overriding public policy?

            a. Ex. Ken Starr tried to get Clinton’s attorney’s records after suicide.
            b. It is rare to find a case where public policy requires disclosure of privileged

   6. Privilege does not end when a client or attorney are dead.

F. Agency

   1. Lawyer is agent of the client and has authority to act on behalf of client in matters related
      to the proceedings.

   2. In order to ensure, the lawyer does not exceed the retainer, it is important to define what
      the lawyer has been retained to do. This can also help to protect lawyer against

Taylor v. Illinois: US 1988 p. 57
Facts: Lawyer refused to reveal identity of a prospective witness to gain an advantage without
client knowing. Witness could not testify and client appealed.
Issue: Should unknowing client be damaged by actions of lawyer?
Holding: Lawyer is agent of client and client must accept consequences of representation.

Cotto v. U.S.: 1st Cir. 1993 p. 59
Facts: Client injured hand and filed suit. Lawyer made blunders.
Holding: Client must accept consequences.

   3. With violation of agency, the client’s remedy is suit for malpractice or disciplinary action
      against lawyer.

   4. Issues often arise in settlements where the lawyer may have settled and the client wants
      to disavow it.

            a. Under Rule 1.2(a), a lawyer shall abide by a client’s decision whether to settle a
Lamprecht Fall 2005                                                         Legal Profession

           b. Is client bound if lawyer settles without authority? Case law is that if never given
              express authority, cannot settle without client’s consent.
           c. If the client gave apparent authority by leading the side to believe, client will be

   5. The client may also be bound by vicarious admissions by the lawyer.

           a. Ex. Ford being sued in design defect case. Jury finds for PL and separate trial on
              punitive damages. Lawyer says once discovered it tried to mitigate damages.
              Other lawyers note that lawyer says Ford knew. Is this admissible in other cases?
              The admission binds the clients.

   6. In criminal context, there is ineffective assistance of counsel argument.
G. Fiduciary Duty

   1. In the fiduciary relationship between attorney and client, the attorney must place the
      client’s interests above their own in the area of representation and must treat their clients

   2. There is model rule stating this relationship, but it is black letter law.

   3. There are civil lawsuits against lawyers for breach of fiduciary duty. This is different
      than malpractice. Do not need to show economic damages as with malpractice.

           a. Perez case: Lawyer goes to Coca-Cola. Lawyer gives info to DA and truck driver
              sues. No really representing him in civil case so no out-of-pocket damages. HE
              can sue under breach of fiduciary because they gave info to the DA.

H. Loyalty and Diligence

   1. There is no explicit rule of loyalty, but rules for conflict of interests (Rules 1.7 and 1.8)
      underlie loyalty.

   2. Rule 1.3 sets forth the requirements for diligence – “lawyer shall act with reasonable
      diligence and promptness in representing a client.”

           a. The old Model Rule had language about zealous advocacy, but this has been
              relegated to Comment 1. The Comment also says the lawyer is not bound to press
              for every advantage.
           b. This represents an attitudinal change from laying waste to the adversary.

I. Duty to Inform and Advise

   1. Rule 1.4 sets forth the standards for communication with a client.
Lamprecht Fall 2005                                                       Legal Profession

           a. (a)(1) If informed consent is required for a decision, lawyer must inform client of
                that decision.
           b. (a)(2) Consult with client about means client objectives are to be accomplished.
           c. (a)(3) Keep client informed about the status of the matter
           d. (a)(4) Comply with requests for information
           e. (a)(5) Consult with client about any relevant limitation on the lawyer’s conduct
                when client requests such assistance.
           f. (b) Lawyer shall explain matter to extent reasonably necessary to permit the client
                to make informed decisions.
                      i. Guiding principle of the rule is that the lawyer should fulfill reasonable
                         client expectations for information consistent with the duty to act in the
                         client’s best interests, and the client’s overall requirements as to the
                         character of the representation.
                     ii. Must explain so that client can make an informed decision.
Hypo: (p. 69) Lawyer receives settlement offer. Lawyer refuses and does not disclose to client.
Client loses at trial. Under 1.4(a) disclosure is required to the client so the client can make an
informed decision.

Nicolas v. Keller: p. 66
Facts: Employee is injured on job. Employee comes to lawyer and want to represent him.
Lawyer does not tell him about 3rd party suit and SoL runs.
Analysis: To succeed in malpractice, must show that the Pl would have won in the underlying
Holding: Court found duty of care to tell client about alternative claim against 3rd party. Court
says lawyer has duty to advise layperson of other alternatives if available.

   2. Under Rule 1.2(a), the lawyer is bound by the client’s decision concerning the objectives
      of representation. 1.2 references 1.4’s duty to consult with client on decisions. Rule
      1.2(a) provides examples of decisions which client has right to decide:

           a. Whether to settle a matter.
           b. In criminal case,
                   i. Whether a plea shall be entered.
                  ii. Whether to waive a jury trial.
                 iii. Whether the client will testify.

Olef v. Gordon: p. 80
Lawyer must go with what the client decides for how to sell her home. A-C relationship is one
of agent to principal. As agent, the attorney must act in conformity with his authority.

Hypo: (Ms. Niceperson p. 72) Do you have to tell adversary if he does not court order, case will
be dismissed with prejudice? Must consult client because this impacts whether he wins or not. It
would not be appropriate for lawyer to make decision because he likes the adversary.
Only guidance is 1.2 and 1.4(a).
Lamprecht Fall 2005                                                     Legal Profession

Hypo: (Accept the Offer p. 79) Lawyer represents W in divorce and she wants to take low offer.
Lawyer has duty to inform and explain. Client has right to make decision. Lawyer does have
right to withdraw under certain circumstances. Rule 1.16(b)(4) if lawyer finds client decision
repugnant, may withdraw.

   3. Key thing is to put all communications in writing. Put everything in writing so that the
      client cannot come back and say there was malpractice. Cover your ass. Proof that it
      was sent and received

J. Client with Diminished Capacity

   1. Rule 1.2(a) sets forth requirement that lawyer shall abide by client decisions and Rule 1.4
      requires the lawyer to consult with the client.

   2. Rule 1.14 gives a lawyer guidance when there is a client with diminished mental

           a. (a) When client has diminished capacity, lawyer shall maintain a normal client-
              lawyer relationship.
                   i. Comment 2 – lawyer must still treat client with respect.
           b. (b) When the lawyer reasonably believes the client has diminished mental
              capacity and client cannot act in own interest, the lawyer may take protective
              action if the client is at risk of financial loss or physical injury, by
                   i. consulting individuals with powers to protect the client or
                  ii. by seeking appoint of a guardian
                 iii. Note: Comment 7 says this is last resort because of expense and trauma.
           c. Information relating to representation of client is still subject to Rule 1.6
                   i. Exception: When taking protective action, lawyer may reveal information
                      about the client to extent to protect.

   3. Rule 1.14(b) is permissive, but it should almost be read as mandatory because of the
      implications of civil liability.

   4. Under Comment 3 to Rule 1.14 if other people are present to assist the client, the
      applicability of the attorney-client privilege is not affected.

   5. Comment 6 provides a factor test for determining mental capacity:

           a.   Client ability to articulate reasoning
           b.   Variability of state of mind
           c.   Ability to appreciate consequences of a decision
           d.   Substantive fairness of a decision, etc.
           e.   Lawyer may seek guidance of a diagnostician.

   6. Diminished capacity issues also arise when a lawyer is representing a child. This
      happens in 2 instances:
Lamprecht Fall 2005                                                      Legal Profession

           a. Abuse Proceeding – lawyers are appointed to protect child’s interests
           b. Contested Custody Cases – court may appoint child a lawyer.

   7. Children under 12 are deemed to be of diminished capacity.

Matter of M.R.: p. 83
Issue: Does lawyer act in accordance with client decision when child has diminished capacity or
does the lawyer act in way he believes is in best interests of child?
Holding: Court says lawyers are not trained to decide best-interest. If someone is incapacitated,
lawyer cannot make all decision. Lawyer must protect client’s rights and can get guardian
appointed if decision is against their best interests.

K. Termination of Representation

   1. The client can terminate for any reason.
         a. Sometimes a lawyer may not be fired in middle of trial because it impedes justice
             (consequent delay/prejudice to other side).

   2. Mandatory withdrawal – under Rule 1.16, there are circumstances where the lawyer must

           a. If the representation will result in violation of Model rules or other law;
                   i. Remember Rule 1.2(d) prevents the lawyer from assisting in crime or
           b. Lawyer’s physical or mental condition impairs the lawyer’s ability to represent
              the client.
           c. Lawyer is discharged.

   3. The lawyer must comply with applicable law and provide notice

           a. If in litigation, lawyer must obtain permission of the tribunal.
           b. Confidentiality issues may arise if Tribunal asks why lawyer is withdrawing.
              Lawyer statement that professional considerations require termination should be
              accepted as sufficient.

   4. Permissive withdrawal – under Rule 1.16(b), a lawyer may withdraw if:

           a. Withdrawal can be accomplished without adverse effect on the interests of the
                   i. Client will always have an arguable adverse effect because of need to find
                      new lawyer, fees, etc.
           b. Client persists in course of action involving lawyer’s services that lawyer
              reasonably believes is criminal or fraudulent.
Lamprecht Fall 2005                                                       Legal Profession

Q: Is there a duty to investigate?
A: It is only if you know. If lawyer reasonably believes, they should withdraw to avoid civil
liabilities. There is no duty to investgate in rules, but cannot shut eyes to truth.

           c. Client has used lawyer’s services to perpetrate a crime or fraud.
                  i. Something in the past.
           d. Client takes action the lawyer finds repugnant.
                  i. Moral values can come into play.
                 ii. Under Rule 6.2(c), lawyer may avoid appointment if client or cause is so
                      repugnant to the lawyer that it will impair representation.
           e. Client fails to substantially fulfill an obligation to lawyer related to services.
                  i. Ex Not paying bill.
           f. Lawyer faces unreasonable financial burden or client is unreasonably difficult.

   5. Under Rule 1.16(d), upon termination, the client must take steps to protect a client’s
          a. Lawyer may retain papers as permitted by law. Client may request file, but there
              are some narrow exceptions. (p. 86 – firm keeps internal memos).

   6. Indigent criminal defendants have no per se right to fire lawyer though they can ask the
      court for a new lawyer.

   7. Termination sometimes raises issues with fees.

           a. If it is hourly-based, this is not a problem.
           b. If it is contingency based, majority rule is where lawyer is fired without cause,
              lawyer gets quantum meruit.
                    i. Problem is this may be a deterrent to client to fire ineffective lawyer.
                   ii. If for cause, lawyer not likely to get quantum meruit.

   8. There is a common law way to protect fees – charging a lien to the fees.

           a. With a lien, the lawyer gets first right in any funds subsequently recovered in
              matter which lawyer rendered services and is entitled to fee.
           b. You effectuate lien, by writing to other lawyer. If second lawyer does not pay out
              of award, second lawyer will be liable for lien.
           c. Used to be retaining lien where lawyer had right to retain client’s files until
              lawyer was paid.

L. Termination by Drift

   1. In some cases, it is clear when the relationship is over, but in some instances, a person
      may think you are their lawyer even if you have not seen them in a while (similar to
Hypo: Lawyer sets up client’s estate. Lawyer sends newsletter to client about tax changes.
Lawyer never contacts client and heirs sue for malpractice.
Lamprecht Fall 2005                                                      Legal Profession

Lawyer claims Z-C relationship was over, but heirs claim on going relationship as evidenced by

   2. Because of potential problems, it may be helpful to send an “end of relationship” letter.

   3. Under Rule 1.3 Comment 4, lawyer must clarify relationship when doubt exists,
      preferably in writing, so that client is not mistakenly assuming lawyer is looking after the
      client’s affairs.

   4. Lawyer will want to maintain good rapport so that client will contact lawyer if they need
      future services.
Lamprecht Fall 2005                                                        Legal Profession

II. Protecting the Client-Lawyer Relationship Against Outside Interference

A. Communicating with Another Lawyer’s Clients

Hypo: Real estate developer is represented by L1 and tenant is represented by L2. L1 cannot get
into contact with L2 so he calls tenant directly.

   1. Under Rule 4.2, in representing a client, a lawyer shall not communicate about the
      subject of the representation with a person the lawyer knows to be represented in the
      matter, unless

           a. the lawyer has consent of the other lawyer
           b. Authorized by law or court order to do so

   2. the ramifications from a possible violation of Rule 4.2 are:

           a. Evidence obtained in violation of the rule may be inadmissible.
           b. Lawyer may be disqualified from representation.
           c. There is also disciplinary implications.

   3. Policy for Rule 4.2 is in Comment 1, to prevent possible overreaching and client
      revealing things. Preserve the relationship by limiting outside influence

Q: What if the client initiates the call?
A: It does not matter because “the lawyer shall not communicate . . . .”
Q: What if lawyer calls client and asks for permission?
A: Violates Rule, must call lawyer and ask for permission.

   4. Comment 6 states a court order to permit communication may be obtained where, for
      instance, the communication is necessary to avoid reasonably certain injury.

   5. Comment 4 states that lawyer who is not representing someone in the matter can
      communicate with a represented client.

           a. Ex. C comes to lawyer’s office upset with current representation. Can you talk to
              the client? You can talk to the client. You are not representing a client and the
              Rule says, “In representing a client . . .”

Hypo: Lawyer represents person in automobile accident. No complaint is filed yet. Lawyer calls
the other driver directly asking about the facts. Insurance company later appoints lawyer for
other driver. Lawyer for ins. company looks to strike evidence and to disqualify lawyer.
Courts seem to say that you can talk to a person if they are not represented at that time, even if it
is likely the person will be represented later.

   6. Communication is what is prohibited so there is room for such things as videotaping an
      opposing company.
Lamprecht Fall 2005                                                               Legal Profession

Q: Can the lawyer representing a client in a matter hire a private investogator to go talk to the
opposing client?
A: No, under Rule 8.4(a), it is professional misconduct for a lawyer to get someone else to
violate rules for them.

    7. Opposing clients are free to talk to each other. Ex. H and W both represented in a
       divorce proceeding.

            a. Lawyer cannot act through client as prohibited by Rule 8.4(a).
            b. Middle ground is this: client asks for background on law. How much advice and
               assistance can lawyer give when client is going to talk to the other side?
                    i. Some court say cannot give any advice about forthcoming talk because
                       this would violate 4.2 through 8.4.
                   ii. Other courts say it is ok so long as clients as initiating the interaction with
                       the lawyer before going to talk to the other side.

Q: What if H is lawyer divorcing W and wants to talk to W?
A: Lawyer is not representing so free to talk, but this undermines policy of Rule 4.2.

Niesig v. Team I: p. 93
Facts: Pl is injured when falls from scaffolding. Pl is represented by counsel. Pl does not sue
employer because worker comp. Lawyer wants to interview other employees of DeTrae on the
job that day. Individuals are not represented by counsel.
Arguments: Def says cannot interview these guys unless Def lawyer consents because of 4.2.
Argument is that at least some corp employees are also deemed to be the corp so that
communication with them is barred.
Need not be a party to the case.
Holding: A communication with any employee where the corp is represented is deemed to be
communication with corp and violates 4.2. This rests on Upjohn which deals with privilege.
This is a blanket rule.

          Upjohn Approach               Control Group Approach                    Comment 7 Approach
This is a blanket rule.            High level management.                 Intermediate approach
Communication with any employee    For purposes of 4.2, the only          Cannot communicate with
where the corp is represented is   employees deemed to be the             constituent who supervises, directs
deemed to be communication with    corporation are those in the control   or regularly consults lawyer about
corp and violates 4.2              group.                                 the matter. Also include constituent
                                                                          whose actions may be imputed to
No - Pl lawyer could not           Yes - Pl lawyer could communicate      Yes - Construction workers have no
communicate with employees of      with construction worokers because     authority to sign off on corp’s behalf
corp.                              they are not high-level management.    and their actions of observing are
                                                                          not imputed on corp.
Go over this, def on exam.
   8. With the Comment 7 approach, be sure to evaluate if the constituents:

            a. Supervise, consult or regularly consult with entity’s lawyers, or
            b. Authority to obligate the organization with respect to the matter
Lamprecht Fall 2005                                                       Legal Profession

           c. Act or omission may be imputed to the entity for purposes of civil or criminal

   9. It is important to remember, you cannot ask about a privileged communication during a
      permissible private meeting with the corp employee.
           a. Ex. What did you tell the corporate lawyers?
           b. If it is Upjohn jurisdiction, this would be privileged.

   10. Under Rule 4.4(a), if you know information is privileged, you cannot ask about it.

           a. Also may violate Rule 8.4(d), violation that infers with administration of justice.

   11. If person is former employee, Rule 4.2 is not an issue. See Comment 7.

   12. If the represented entity is the government, still follow Comment 7, but there is
       constitutional right to communicate with government so it may be more broad.

Hypo: Work for public interest agency and lie who you are. 8.4(c) says lawyer cannot be guilty
of dishonesty or misrepresentation whether you are representing a client or not.

   13. In criminal law context, proceeding pending against and Def counsel wants to interview
       chief complaining witness – does 4.2 bar this communication? Does Def have to get
       prosecutor consent?

           a. General answer is no because DA does not represent complaining witness.

Q: Can prosecutor contact Def without getting consent of the Def’s counsel?
A: Look at 4.2 literally and it seems to say DA cannot contact Def without consent of Def’s
counsel. If the prosecutor cannot do it, then the DA cannot do it through agents. This violates

           b. Under Comment 5 of Rule 4.2, it says if there is no indictment yet, the prosecutor
              can contact because 4.2 has not kicked in yet.

B. Communicating with an Unrepresented Person

   1. Rule 4.3 sets forth the requirements for dealing with an unrepresented person.

           a. Lawyer shall not state or imply he is disinterested.
           b. Lawyer should clear up any misunderstanding of the unrepresented person of the
              lawyer’s role.
           c. Lawyer shall not give legal advice other than to secure counsel if there is
              possibility of conflicts of interest between client and unrepresented person.

Hypo: Matrimonial case: W is represented. H is not represented. On behalf of wife you are
negotiating with H, but can you?
Lamprecht Fall 2005                                                      Legal Profession

Q: If you represent W in divorce and H is not represented, can you negotiate with H?
A: Yes, but must follow requirements in Rule 4.3. If asked what a legal document is, can
probably explain the document.

C. Protecting Privileged Information from the Other Side

   1. What Rules are implicated if the lawyer steals information?

           a. Rule 8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty,
              fraud, deceit or misrepresentation.
                   i. This applies to a lawyer’s private life as well as his professional life.
                  ii. Fraud is only term defined in Rule 1.0 – fraudulent under jurisdiction
                      definition AND intent to deceive (makes it beyond negligence, need
                 iii. Rule is a big catch-all.
           b. Rule 8.4(d) prohibits a lawyer from engaging in conduct prejudicial to the
              administration of justice.
                   i. This is a very broad rule.
                  ii. Stealing information prevents the system from functioning in a fair way.

   2. What if opposing side erroneously turns over privileged information? Has the privilege
      been waived or not?

           a. Privilege is the client’s privileged. Can the lawyer waive it for them? Yes,
              lawyers are agents of the clients. There are 3 other views:
                   i. Can never be waived. To be waived, it must be intended and this was not
                      intentional. This is highly protective.
                  ii. Strict accountability view – If you produce it, it has been waived once
                      turned over.
           b. Factor test – There is a middle view that assesses:
                   i. reasonableness of precautions taken to prevent disclosure,
                  ii. time it took to discover disclosure,
                 iii. scope of the production,
                 iv. extent of the disclosure
                  v. overriding interest of fairness and justice

   3. An ethical issue is if you discover privileged information, do you need to tell the other

           a. Rule 4.4(b) requires the lawyer receiving the document who knows or should
              know it was inadvertent shall promptly notify the sender.
                 i. Actual knowledge is not required.

   4. Determining whether a lawyer can use it is a matter of professional judgment.
Lamprecht Fall 2005                                                      Legal Profession

           a. Rule 1.2(a) You must consent with client on the big decisions. To send it back
              without consulting the client, would probably conflict with Rule 1.2(a).
           b. Rule 1.4(b) requires you explain matters to the client. Client and lawyer may

Hypo: (Misdirected fax p. 114)
With fax, there is a disclaimer on it. Under factor approach, there is strong argument the
privilege is not waived. It is arguably not a finished communication. Privilege never attaches
because it is not a finished communication.
Lamprecht Fall 2005                                                        Legal Profession

                                     Financing Legal Services

I. Fees

A. Unethical Fees

   1. Rule 1.5(a) sets the basic rule that a lawyer shall not make an agreement for or collect an
      unreasonable fee. Factors in determining reasonableness are:

          a.   Time, labor required, difficulty of question, skill requisite to perform;
          b.   Lose of other employment by taking case
          c.   Fee customarily charged in the locality for similar work
          d.   Amount involved, results obtained
          e.   Time limitations imposed by client
          f.   Nature and length of professional relationship
          g.   Experience, reputation and ability of the lawyer
          h.   Whether fee is fixed or contingent

   2. The burden of proving a fee is unreasonable is on the client attacking the fee.

   3. In PA, the rule is the lawyer may not charge a fee that is illegal or clearly excessive. This
      language is much more favorable to lawyers.

   4. Litigation often arises where the client has no paid, the lawyer sues for the amount due
      and the client says the agreement is unenforceable because it is unreasonable (ABA) or
      clearly excessive (PA).

   5. Rule 1.5(b) requires the lawyer to communicate, preferably in writing, the scope of the
      representation or rate of the fee.

          a. Some states have writing requirement – PA.
          b. ABA did not want to make writing mandatory to avoid defenses by clients to oral
             agreement that it should have been written and is not binding.
          c. Rule 1.5(b) also requires any change in basis or rate to be communicated to the

Hypo: Lawyer takes case and gets $1500 retainer and knows this will no be sufficient. Lawyer
must communicate to client that this will not cover all the expenses.

   6. Under Rule 1.4(b), lawyer must explain to client billing arrangements so they can make
      an informed decision.

B. Hourly Fees

   1. Issues often arise with hourly fees.
Lamprecht Fall 2005                                                        Legal Profession

   2. An alternative though up is “value billing.”

Matter of Laurence S. Fordham: p. 129
Facts: Client hires lawyer for son’s DUI. Lawyer says he will accept but it will have to learn
area. Fees end up being $50k (norm for case is $10K) and lawyer gets client off.
Holding: Court finds the fee is clearly excessive. Lawyer was hurt that he charged $50k and fees
in these types of cases usually max out at $10k.

   3. In Laurence, the lawyer took two positions:

           a. Fees were charged in goof faith and the fee cannot be attacked unless it involves
              bad faith. Court rejected this argument.
           b. Client agreed to the fee arrangement and was aware lawyer had to learn. Court
              rejected this saying issue was whether it was excessive, not whether the client
              knew. This is not an per se defense.

Q: Can a client take case they know nothing about?
A: Yes, under Comment 2 to Rule 1.1, lawyer may take case. Can he charge fees for learning?

   4. In Laurence, with the lawyer disciplined, what will the lawyer be paid? A fee
      arrangement that violates a rule is void.

           a. Quantum meruit – lawyer will ask for this, but if paid then what is the

Q: What if in Laurence the father was a billionaire and hired the best?
A: Court would probably uphold fee.

   5. These is concern that the rules are too paternalistic and aimed at consumer protection.

*Likely on test: know factors, no good faith defense or per se defense.

Q: What if at courthouse for 3 clients and wait for 4 hours, bill 4 hours to each client?
A: ABA Opinion says you must split up the hours among the clients.

Q: What if you put in 30 hours on difficult issue for client A and client B walks in with the same
problem. How do you bill?
A: if you bill B hourly, it must be by hour spent—cannot bill 30 hours. Bill flat fee, but must be
reasonable according to factors in Rule 1.5(a).

   6. You often see flat fees in comparatively simple matters and they are rarely found to be

           a. Utah case charging flat fee of 1% of assets was found to be unreasonable because
              no correlation to amount of legal work done.
Lamprecht Fall 2005                                                        Legal Profession

C. Contingent Fees

   1. Rule 1.5(c) sets forth the requirements for a contingent fee arrangement:

           a. Agreement must be writing and signed by the client
           b. State whether expenses are deducted before or after the contingent fee is

Hypo: Client settles for 300k and expenses are 60. If expenses are deducted first. 240 in pot and
lawyer gets 80 and client gets 160. If deducted after, 300 in pot, lawyer gets 100 and client gets
200 less 60 = 140. Lawyer gets 20k more if deducted after

           c. Upon conclusion of the matter, lawyer must provide the client with a statement
              with outcome and fee and remittance to the client.

   2. You mostly see contingent fees in personal injury context – 1/3 of damages recovered.

           a. There are reverse contingent fees: if I save you 10k on tax bill, I get X fee.

Hypo: Lawyer retained and agrees to contingent fee for police brutality case. Police settle 2
weeks later and lawyer takes 1/3. Court found unreasonable fee.

   3. Fee reasonable at time you entered into it may be deemed to be unreasonable later.

   4. Generally, courts do not throw out contingent fees as unreasonable. Some states have
      laws that cap contingent fees.

   5. Come academics argue that in clear cut cases, contingent fees may be inappropriate.

   6. Rule 1.5(d) prohibits contingent fees in certain circumstances:

           a. Domestic relations matters – divorce, alimony, property settlement, etc.
           b. Defending criminal case.
                  i. Lawyer may reject plea bargain in order to get acquittal
                 ii. Might cause the lawyer to do something unethical. But isn’t this same in
                     tort case? Yes, but there is notion that unethical behavior in criminal case
                     is worse for society.

   7. Contingency fees used to be prohibited because there was idea that it created litigation,
      caused conflict of interests with client and it lead lawyers to do something unethical. We
      have contingency fees because people with meritorious claims could not litigate without

   8. Bonus arrangements also exist where, for example, if recover in excess of 50k, lawyer
      can take bonus on the excess.
Lamprecht Fall 2005                                                       Legal Profession

D. Referral Fee

   1. Rule 1.5(e) provides the only circumstances in which a lawyer of one firm may pay
      another lawyer a referral fee:

           a. Division is proportional to the services performed by each lawyer OR each lawyer
              jointly assumes responsibility for the representation
           b. Client agrees to the arrangement
           c. Total fee is reasonable.

   2. Not just permitted to refer and get a %. You must be involved in the case somewhat.

   3. PA Rule cannot refer unless the client does not object and fee is not illegal. So PA says
      can refer and get a % without any work, so this is different from (e)(1).

F. Safekeeping Property

   1. Rule 1.15 creates a wall between a lawyer’s funds and the client’s funds, and the rule
      also applies to other types of property.

           a. Ex. If the client pays in advance, those funds are not the lawyers so they must be
              put in escrow and withdrawn as earned.

   2. This rule is a major area of disciplinary action because lawyers often fail to separate

Hypo: Lawyer has real estate practice. He puts advance payment into trust account. He takes
money out that is unearned to pay for personal expenses. No one loses any money because he
puts back money that is unearned and keeps money earned. Nevertheless, this is a clear violation
of Rule 1.15.

Q: What if the lawyer deposited his own money into the trust account?
A: This would be a violation because funds are commingled.

Q: Client gives lawyer 5k as retainer. Lawyer performs services on monthly basis and can take
monthly earnings. Lawyer does not withdrawal till a month later. Has lawyer violated ethical
A: Yes violate Rule 1.15 because funds are intermingled because as he earned fees they became
his. Must the violation be intentional?

   3. Often client funds in a trust account will earn interest. Can the lawyer keep the interest?

           a. IOLTA (Interest on Lawyer Trust Account) – where interest that is indiscernible
              to clients, it goes to fund used to do public representation services.
           b. There have been challenges to this because eminent domain (private for public).
Lamprecht Fall 2005                                                       Legal Profession

           c. SC upheld a Washington IOLTA statute because it only applied when funds were
              too small to generate net earnings.

   4. If the lawyer receives funds as part of a settlement and client has debts that lawyer has
      received notice of, what must lawyer do with funds? 3 options:

           a. Turn money over to bank (third party).
                  i. Bank does not have a specific claim to the funds.
                 ii. Bank is not in class protected under 1.15(d) or (e).
           b. Pay it into court and let the parties fight about it.
                  i. If lien, pay it to court.
           c. Turn it over to the client.
                  i. Comment 4 to Rule 1.15 – If lien, lawyer should not arbitrate and have
                      court resolve.

   5. If the third party has no established right to the proceeds (no lien), the lawyer may turn it
      over to the client.

   6. Comment 3 – sometimes lawyer gets funds and there is dispute over lawyer’s fee.
      “Lawyer may not hold funds to coerce a client.” Put disputed funds in trust account.
      May then go to arbitration over disputed funds.

G. Non-Refundable Fees

   1. Normal (special) retainer – you receive money upfront and you bill as services are

           a. If you do this and get $10k, you must put in client trust account and then as you
              bill, you must draw down from that account. You cannot commingle your money
              and the client’s money

Q: What if $10k retainer and client discharges after $2k of work?
A: You refund the unearned amount.

   2. General retainer – payment for being available and not taking other work.

           a. Ex. Sara Bennett p. 137 – if antitrust matter comes up, Sara agrees to represent.
              They pay $10k just to be available. This is not gouging because she is promising
              to be available and not work for someone else in litigation with company.
           b. You do not see this much, but if you do, it is by large corporations.
           c. This type of retainer is always regarded as enforceable. This is enforceable when
              paid. Must put in personal account when paid because it is earned.

   3. Non-refundable fee – Cooperman provides an example of such an arrangement.
Lamprecht Fall 2005                                                       Legal Profession

Matter of Copperman: p. 138
Facts: Lawyer paid $5k fee and will be paid on an hourly basis. If discharged, he will not refund.
2 days after agreement, client discharges Cooperman and asks for refund.
Holding: NY Court of Appeals found such an arrangement to be against public policy. It may
force clients to keep inadequate counsel.

           a. The 3rd Circuit upheld a nonrefundable arrangement. PA says such an
              arrangement is not per se bad. Cohen & Brennan, p. 142. Reasonableness will
              depend on sophistication of the client.

Q: What is ethic violation for Cooperman?
A: Rule 1.5(a) cannot charge unreasonable fee. If fee violates public policy, then 1.5(a) is
clearest way to find violation.

           b. NY has the majority view (per se against public policy) and PA is minority view
              (non-refundable may be appropriate in some circumstances).
           c. The NY rules has implications for flat fee arrangements.
                  i. Ex. DUI case where fee is $15k regardless of outcome. Lawyer is
                     discharged and client was rebate on fee. Unearned portion should be
                 ii. NY would find this invalid because it indicates non-refundability.

H. Court Awarded Fees

   1. Attorneys’ fees are not normally recoverable by the party that wins. There are two
      possible exceptions:

           a. Some kinds of statutes permit winner to get attorneys fees.
                 i. RICO permits for treble damages AND attorneys’ fees.
           b. Common fund cases – you get attorney fee out of the fund.

I. Pro Bono Work

   1. Should lawyers be required to do pro bono work?

           a. Rule 6.1 suggests that the lawyer should provide at least 50 hours of pro bono
              service a year.
           b. It is a “should rule” and is not mandatory.

   2. Rule 6.1(a) provides that the 50 hours should be provided without fee primarily to:

           a. Persons of limited means
           b. Charitable organizations.

   3. PA rule is far from mandatory making it meaningless.
Lamprecht Fall 2005                                                     Legal Profession

   4. Why might it be beneficial to make it mandatory?

           a. It might influence some people to do more pro bono work.
           b. Engages the conscience.

   5. Colorado rejected mandatory reporting of hours because it was step before mandatory

J. Who Gets the Money?

   1. Rule 5.6(a) addresses restrictions on right to practice and generally prohibits agreements
      that restrict the lawyer’s right to practice.

           a. Under Comment 1 such non-compete arrangements violate a lawyer’s autonomy.

   2. A partnership agreement should deal with whether a departing lawyer has any right to
      income once departed.

   3. Rule 1.17 deals with a lawyer’s sale of a law practice.

           a. The conditions permitting a sale are:
                    i. Seller must cease to practice in the jurisdiction.
                   ii. Must be sold to lawyers.
                  iii. Clients are given written notice
           b. Such sales used to be completely restricted but this has been changed.
           c. It seems to not make sense from a business stand point because law is very
              personal relationship.

   4. Lawyer’s selling a law practice want to be able to take clients with them. In order to do
      this, you must:

           a. Tell clients you are leaving.
           b. Tell them where you are going.
           c. There are solicitation rules, but they do not bar you from someone you have had
              relationship with
           d. Bottom line – fiduciary obligation to firm leaving behind, but content of
              obligation is unclear.
                   i. You see trade secrecy litigation when lawyers leave and take people with

Reeves v. Hamilton: p. 181
Lawyer breached fiduciary duty to ex-firm when he departed and secretly solicited firm
Lamprecht Fall 2005                                                       Legal Profession

                                Concurrent Conflicts of Interests

I. Client-Lawyer Conflicts

A. Introduction

   1. More clients you represent or have represented, the more problems you may have.

   2. The basic structure for ABA approach to conflicts is:

           a. Rule 1.7 is the default rule for conflicts – prohibits lawyer from representing
              client when there is a concurrent conflict of interests.
           b. Rule 1.8 lists specific situations.

   3. The analysis is:
         a. Start with Rule 1.8 to see if specific provision on point
         b. Turn to 1.7 if 1.8 does not address issue.

   4. Under Rule 1.7(a), a concurrent conflict of interests exist if:

           a. Representation of one client will be directly adverse to another client
                   i. Ex. Cannot represent Pl and Def in matter.
           b. Significant risk that the representation of one or more clients will be materially
              limited by
                   i. the lawyer’s responsibilities to another client,
                  ii. a former client or a third person or
                 iii. by a person interests of the lawyer.
           c. Note the significant risk is an objective judgment 0 how does it appear to a
              general viewer.
                   i. Lawyer may claim there is not risk, but objectively there is.

   5. Under Rule 1.7(b), notwithstanding the existence of a concurrent conflict, the lawyer
      represent a client if: (must meet all)

           a. Lawyer reasonably believes that the lawyer will be able to provide competent and
              diligent representation to each affected client
                   i. This is an objective measurement. Even if lawyer says he reasonably
                      believes, it is measured objectively.
           b. Representation is not prohibited by law
           c. 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
           d. Each affected client give informed consent, in writing.
                   i. Comment 20 requires the informed consent to be confirmed in writing.
Lamprecht Fall 2005                                                       Legal Profession

                  ii. Rule 1.0(e) defines informed consent – agreement to a course of conduct
                      after the lawyer has communicated adequate information and explanation
                      of material risks and alternatives.

Hypo I: Lawyer is member of team of lawyers representing a celebrity defendant. Lawyer goes
to Vegas and sees odds on whether client will be guilty or innocent. Lawyer puts $10k on client
being guilty.
There is no provision in Rule 1.8 on point, so turn to Rule 1.7.
    - There is a significant risk under 1.7(a): lawyer has incentive to throw case.
    - (b)(1) prevents lawyer from representing because lawyer cannot reasonably believe will
       be able to provide competent and diligent representation.

Hypo II: Lawyer bets that client will be found not-guilty.
   - Will representation be limited? Possibly may push for plea bargain. May turn up that
       lawyer has 100k bet on acquittal.
   - Key language to evaluate – “is there a significant risk the representation will be
       materially limited” you could say no significant risk. If no significant risk, then no
   - Lawyer could probably say that he can provide competent representation at least until
       plea bargain is offered and then deal with it once plea bargain is offered.

   6. For a conflict, informed consent must be in writing. As a practical note, ensure
      everything is correct, because if it is in writing, it is permanently documented.
         a. CYA letters – cover your ass.
         b. The informed consent may be oral, but the confirmation by the client must be in
             writing. Probably want to include explanation in writing so you have
             documentation of what was explained.

B. Specific Rules on Conflicts

Hypo: Lawyer is representing client in antitrust litigation and L needs new place of business.
Client offers to sell building and they negotiate sale.

   1. Rule 1.8(a) prohibits a lawyer from entering into a business transaction with a client or to
      knowingly acquire an ownership, possessory, security or other pecuniary interest adverse
      to a client unless:

           a. The transaction and terms are:
                   i. Fair and reasonable
                  ii. Fully disclosed; and
                 iii. Transmitted in writing in a manner understood by the client (no legalese).
           b. client is
                   i. advised in writing
                  ii. of the desirability of seeking and
                 iii. is given a reasonable opportunity to seek the advice of independent
Lamprecht Fall 2005                                                        Legal Profession

           c. client gives informed consent.

Q: What happens if the lawyer screws up on the writing requirement?
A: Possibility of disciplinary action.
Q: What if it is fair, but no writing and client wants out?
A: There is no per se civil liability for a violation of the rules. Client would make public policy
argument that there are these rules and one of them was not followed.

   2. Purpose of the rule is to prevent a conflict where the lawyer is trying to get a favorable

   3. Transactions are permitted, but must follow requirements. Rule 1.8 does state absolute

           a. Rule 1.8(j) absolutely prohibits lawyer from having sexual relations with a client
              unless a consensual relationship existed beforehand.
                   i. Client can sue on breach of fiduciary duty.
                  ii. Purpose is lawyer is in position to exploit position of trust.
                 iii. Lawyer may have interest in keeping sex going.
                 iv. Old way was for Rule 1.7 to address but ABA added absolute ban.
                  v. If pre-existing relationship,. There may still be conflict under Rule 1.7.
                 vi. Another issue is what is a sexual relationship.
                vii. A final issue is lawyer who has relations with executive of corporate
                      client. Is that person a client?
               viii. There is no imputation for 1.8(j).

Matter of Neville: p. 191
Issue: If the lawyer is representing the client in a completely unrelated matter, does Rule 1.8A9)
prohibit conventional arm’s length transactions between the client and lawyer?
Holding: Lawyer owes the client a duty and client will rely on you to observe a fiduciary
standard. It does not matter if business transaction is unrelated to the representation.

Q: What if as in Neville, the representation is over, does 1.8(a) still apply?
A: Relationship continues until abandonment—when lawyer’s influence over client is
dissipated—so it applies even though no formal A-C relationship.

   4. Rule 1.8(a) will apply to a client formerly represented unless something happens so that
      relationship is expressed to be over (ex. letter).

   5. Lawyer’s obligation under Rule 1.8(a) is to treat client as if the lawyer were advising the
      client in deal with someone else.

           a. Even if the client sets the terms, this is not enough to get out of Rule 1.8(a)—
              lawyer must go over pros and cons of deal.
Lamprecht Fall 2005                                                      Legal Profession

   6. Comment 1 to Rule 1.8 says the rule does not apply to standard commercial transactions
      between the lawyer and client for products or services.

           a. Ex. Client has electronic store and lawyer buys TV. Lawyer has no advantage
              over client in dealings.

   7. Rule 1.8(a) does apply to post-retainer fee agreements. Ex. Raising retainer from 5k to
      10k. It is a business transaction under Rule 1.8(a).

           a. Normal fee agreements are not subject to Rule 1.8(a), but when property is going
              to be paid (stock in company) it becomes subject to Rule 1.8(a).
           b. If stock, must tell client about possible conflicts of interests down the road.
           c. Must be reasonable at time it is made.

   8. Rule 1.8(c) sets forth a prohibition against solicitation of gifts from client or prepare an
      instrument giving the lawyer substantial gifts.
          a. There is narrow exception for related persons (spouse, family member).
          b. Otherwise it is an absolute prohibition.
          c. Client cannot consent to.
          d. Even in non-solicitation scenario, do not want to prepare instrument or accept gift.

Q: Can the gift be given to the girlfriend of the lawyer?
A: Rule 1.8(c) says cannot go to “person related to the lawyer.” Girlfriend does not fall under
the related person definition in Rule 1.8(c).

           e. Lawyer can get another lawyer to prepare instrument that gives L1 a gift.
                 i. The other lawyer would have the duty to advise the client.

   9. Under Rule 1.8(k), if prohibitions apply to one partner in a firm, they apply to all the

           a. This is the principle of imputation whereby conflict of one lawyer is imputed to
              other lawyers. Rule 1.10 deals with imputation.
           b. Purpose is Model Rules want the clien to have independent advice regarding the
              gift to a lawyer.

Q: What if lawyer makes change to instrument giving him gift?
A: So long as change doesn’t affect the gift, should be ok.

   10. Rule 1.8(c) says “substantial gift” and this ambiguous language is open to interpretation.

   11. Rule 1.8(d) prohibits the lawyer, prior to the conclusion of representation, from giving
       himself literary or media rights based on information from the representation.

           a. Concerns criminal representation where client tell lawyer he can control the book
              and media agreements.
Lamprecht Fall 2005                                                      Legal Profession

           b. May cause lawyer to turn case around in way to make it attractive.
           c. If after the representation, lawyer must get consent regarding the confidential
              information as controlled by Rule 1.6.

   12. Rule 1.8(e) prohibits lawyer from providing financial assistance in connection with
       pending or contemplated litigation, except:

           a. As part of contingent fee arrangement
           b. For an indigent client.
Q: What if lawyer maintains apartment complex and client cannot pay rent, can lawyer offer
A: Technically, this is providing financial assistance.

           c. Criticism of Rule is that poor clients are the ones hurt.
           d. Purpose is to prevent profiteering and lawyers form buying clients.
           e. Some states have humanitarian exception rule – lawyer can make small loans for
              medical expenses, certain living expenses, so client can bring suit.

   13. Rule 1.8(f) prohibits the lawyer from accepting compensation from a third-party unless

           a. Client gives informed consent
           b. There is no interference with the lawyer’s independence of professional judgment
              of A-C relationship
           c. Information related to the representation is protected—no confidential
              information to 3rd party unless client agrees.

   14. Rule 1.8(h) prohibits the lawyer from:

           a. (h)(1) limit malpractice liability through agreement unless client has independent
                  i. Independent counsel is required because the client is not likely to be fully
                       appraised of the situation.
           b. (h)(2) settling claim or potential claim with client who is unrepresented unless
              lawyer tells client to get counsel and gives time to do so.
                  i. No independent counsel requirement under (h)(2).
           c. Comment 14 provides that lawyer may enter into arbitration agreement without
              the prohibition of Rule 1.8(h). Client must be fully informed of the scope and
              effect of the arbitration agreement.

Q: If you blow the SoL, do you need to tell client or just say sorry you lost?
A: Rule 1.4(d) requires lawyer to discuss with client so they can make informed decisions.
There is obligation to let client know of remedy available for malpractice.
Lamprecht Fall 2005                                                        Legal Profession

C. Other Issues

Gellman v. Hilal: p. 201
Facts: H with one firm will represents Pl, and W with another firm previously represented Def.
There used to be a specific rule on this in 1.8, but it has been replaced by Comment 11.

   1. Comment 11 is concerned about client confidentiality when lawyers are closely related.

           a. ABA eliminated absolute requirement of client consent and put comment.
           b. Language of Comment 11 seems to say that the client must be made aware and
              informed consent obtained. “Ordinarily” client has to know. Probably want to
              tell anyway.

   2. Model Rules are weak on discrimination. Rule 8.4(d) “conduct prejudicial to the
      administration of justice” is catch-all.

Hypo: (Jewish lawyer p. 206) Jury not likely to look favorably on Jewish lawyer. Do you keep
her on legal team? Go through applicable rules:
    - Rule 1.2(a) – lawyer is bound by client’s decisions.
    - Rule 1.4(b) – lawyer shall explain matter to the client so they can make an informed
    - Rule 1.7 – possible conflict of interests: want to fight prejudice but want to win for client.
Becker: Client must be told.
Lamprecht Fall 2005                                                        Legal Profession

II. Client-Client Conflicts

A. Criminal Cases

Hypo: Crime and 2 people are indicted and both ask L to represent them. Each person is saying
not guilty.

   1. Under Rule 1.7, must ask if there is conflict of interests or what is the potential conflict.

           a. Defenses of both clients may conflict.
           b. Comment 8 – states the general test for significant risk: critical interest is
              likelihood of a conflict.
           c. Comment 23 – states that the potential for a conflict is so great in representing co-
              defendants in a criminal case that the lawyer should decline.
           d. There is no absolute prohibition, but Comment 23 is pretty strong.
           e. May be able to represent both if you meet Rule 1.7(b) requirements.

   2. If problems arise, the lawyer can be sued for malpractice.

           a. In order to recover, the client must prove they were innocent.

   3. Violations of conflict of interests rules can lead to 6th Amendment claims.

           a. 6th Amendment provides for effective assistance or counsel. One way counsel can
              be alleged to screw up is through conflict of interests.

Q: Can a prosecutor claim disqualification for a lawyer representing co-defendants?
A: No, prosecutor has no standing to request disqualification because they do not represent
someone. Only client or former client may claims disqualification.

B. Civil Cases

   1. Under Rule 1.7(a), cannot represent a client if the representation will be directly adverse
      to that of another client.

           a. Can Lawyer’s partner do it? No, because Rule 1.10(a)(1). Because lawyer cannot
              represent under 1.7, partner cannot because of imputation in 1.10

   2. The clients cannot consent because Rule 1.7(b)(3) expressly prohibits such

Hypo I: Lawyer is hired by client to sue GM. It is a design defect case. Recovery is going to be
substantial. If you lose design defect, it applies to all cases across the board. Lawyer has a
substantial holding of GM stock. Lawyer has a lot to lose if GM loses the case. Conflict? There
is no specific rule. Under 1.8, there is argument there is a significant risk. Also, probably not
consentable under (b)(4).
Lamprecht Fall 2005                                                         Legal Profession

Hypo II: Lawyer only represents Corp X in environmental matters. Client comes to L and wants
to retain L to sue Corp X in unrelated personal injury action. Client injured when truck driven
hit client.
    3. Under Comment 6, you cannot act as counsel against a client even if it is an unrelated

           a. Aspect of loyalty is undermined. 1.7(a)(1) says this is example of directly
              adverse representation
           b. (b)(3) does not bar because it is not the same litigation. Is this correct?

   4. These rules are especially important to big firms. Ex. Environmental representation in
      San Fran and antitrust litigation in DC.

           a. Big law firm must have a good database.
           b. Large company could tactfully exploit this— Partial out business to big firms
              which would conflict them out of suing you on behalf of a client.

   5. Firms may try to use consent to conflict agreements.

           a. Argument against these are does the client understand.
           b. If the client is sophisticated and the waiver is limited, this has best shot at being

   6. Under Comment 34, a lawyer representing a corporation does not represent any
      constituent or affiliate of the corporation. Therefore, lawyer may accept adverse

Hypo III: Client is going to be a witness and lawyer wants to cross-examine client while
representing another client.

   7. Cross-examination is by nature adversarial. This is a concurrent conflict of interests and
      lawyer would have to get informed consent.

           a. LB: thinks it is consentable under Rule 1.7(b), but you would need consent of
              both clients.

Hypo: Passengers injured in collision and both sides are unaware of what happened. Is there a
conflict so that you need their consent? Possibly no significant risk.

   8. When you represent both sides in civil litigation, there may be times when you don’t need
      to obtain consent because there many not be a concurrent conflict.

Go over this!
Lamprecht Fall 2005                                                       Legal Profession

   9. Under Comment 24, lawyer can take inconsistent legal positions with respect to different
      clients. As lawyer you are acting as an advocate.

C. Imputation

   1. Rule 1.10 applies to Rule 1.7. Lawyers of firm shall not represent a client when lawyer
      practicing alone would be prohibited from doing so by Rule 1.7 unless

           a. Prohibition is based on a personal interest. Ex. Strong political interest.

Q: Is a lawyer’s stock holding in GM a personal interest?
A: Under Comment 3 of Rule 1.10, other lawyers in firm may have loyalty to lawyer and their
financial interest.

D. Conflicts in Non-Litigation Context

   1. Comment 7 of Rule 1.7 notes directly adverse conflicts can arise in transactional matters.
      Representing buyer and seller in same transaction cannot be consented to.

           a. Comment 7 also says that if you represent the seller in negotiations and have
              represented the buyer in past unrelated matters, you need to get informed consent
              of each client.

   2. Conflicts also arise when a lawyer is retained to form an entity for multiple parites.

           a. Ex. People come in and form corp. Want lawyer to draw up the documents. You
              are representing all three owners. Conflicts arise: stock options, what corp form.
           b. It is allowed, but you must obtain consent.

   3. There are two major points related to representing multiple parties on same side in a

           a. Comment 30 of Rule 1.7 Effect on A-C Privilege –
                  i. When you represent multiple parties, you often discuss things with parties.
                     In this instance, the privilege does not attach.
                 ii. If A and B sue each other, neither can assert the privilege against the
                     other. When lawyer represent multiple parties, attorney client privilege
                     does not protect them individually.
           b. Confidentiality –

Hypo: NJ lawyer is doing estate planning. H says there is illegitimate child that W does not
know of. Lawyer also represents W. You can have a duty of confidentiality to one client and a
duty to disclose to the other.

                   i. Arguable whether duty to disclose is greater than duty of confidentiality.
Lamprecht Fall 2005                                                      Legal Profession

                  ii. If you can disclose, then you are home free. One way of handing this is:
                      we only represent you if you waive confidentiality to the other.
                 iii. Restatement – clients should expect lawyer to share all information.

   4. Common Interest Rule – If A represents X and B represent Y, and interests are in
      common. This Rule states that – statement of one client to the other lawyer if it is part of
      a common interest, the statement will be regarded as privileged. Normally, statement to
      another lawyer does not have privilege attach to the statement.

Hypo: Lawyer is representing insured and is hired by All State. Lawyer is then hired by
someone to sue All State on a different matter. A-S says cannot sue on an unrelated matter
without A-S’s consent. Lawyer says insured is the client. Court would say A-S is also clinet and
cannot sue them.

   5. Main point is that if lawyer is paid by insurance company and is representing the lawyer,
      the duties are owed to the client.

E. Lawyer as Witness

   1. Under Rule 3.7, if the lawyer is likely to be a witness they cannot act as counsel. There
      are 3 exceptions to this:

           a. Testimony is uncontested.
           b. Testimony relates to the nature and value of legal services rendered in the case; or
           c. Disqualification of the lawyer would work substantial hardship on the client.

   2. There is an anti-imputation provision in Rule 3.7(b) so that a partner in a firm may act as
      advocate and another partner may act as a witness. Unless,

           a. Violation of Rule 1.7. Conflict issue – where partner B is going to be adverse,
              Partner A may hold back in cross-examination.

Hypo: Lawyer represents H in divorce litigation. Lawyer who is going to be witness does pre-
trial work and then partner will try case. This is consistent with Rule 3.7.
Lamprecht Fall 2005                                                        Legal Profession

II. Successive Conflicts of Interests

A. Private Practice

   1. Main issue is whether a lawyer is barred from taking a current client because he
      represented someone who is now a former client.

   2. Rule 1.9 governs the duties owed to former clients. Under 1.9(a), lawyer who has
      represented a client in a matter shall not thereafter represent another person in the same
      or a substantially related matter in which that person’s interests are materially adverse to
      the interests of the former client, unless

           a. Former client gives informed consent.
           b. Note: Definition of substantial relationship is: could the lawyer in the first
              representation obtain information relevant to the second representation.

Hypo: Lawyer represents Doctor X in drafting a Pship agreement with Doctor Y. Agreement is
done, but then there is latter a dispute. Y asks L to represent him in suing X. If X was a current
client, clearly L could not represent Y, but what about the fact that X is a former client.
It is same or substantially related so L would have to get informed consent from X.

   3. The Rule is intended to protect the former client because of confidentiality issues. Rule
      1.6 covers confidentiality, but the rules do not trust lawyers.

Analytica v. NPD Research: p. 276
Facts: Corp wants to give Malec 2 shares of NPD stock. Must establish value of the 2 shares.
Malec goes to lawyer named Fine. Analytica, represented by Fine’s firm, is suing NPD. NPD
moves to disqualify law firm under Rule 1.9.
Analysis: Are the representation of Malec in stock valuation and Analytic in antitrust
substantially related?
Holding; Court found representations were substantially related. Court says Fine in evaluating
stock would ask about market strength and this is at heart of antitrust action.

Hypo: Lawyer represents Doc X in Pship agreement. Doc X is getting divorce and W asks L to
represent him in divorce action where economic issues will come up.
Argument for substantially related: Information about value of practice is substantially related to
the Pship agreement.

   4. The focus for determining substantial relation is not the legal theory, but the type of
      information involved.

           a. Posner says: Test is whether the lawyer could have obtained information.
              Question is not whether lawyer did obtain confidential information. Question is
              whether the lawyer could have obtained.
           b. Asking lawyer what they did obtain would to violate confidentiality.
Lamprecht Fall 2005                                                       Legal Profession

   5. Under Comment 3 to Rule 1.9, information acquired in prior representation may have
      been rendered obsolete by the passage of time, then it is not a disqualifying factor.

Hypo: Lawyer represents corp in employment discrimination matters. Representation stops and
employee comes to lawyer and wants to sue corp in employment discrimination case.
Argument for company is Playbook information: Lawyer knows how corp handles employment
discrimination matters.

   6. Courts are generally reluctant to grant disqualification because it results in delay.

          a. Some courts have said they will not disqualify, but will refer to the disciplinary
             board when information could have been learned but was not.

   7. Under the Common Interest Rule, someone who is not technically a client may be
      protected as a former client. Is this right?

          a. Ex. Member of trade association gives lawyer information so that can help lawyer
             achieve an end. Member is treated as former client because the interest was the
          b. Someone who was not a client – protected by Rule 1.9 if deemed a former client.

   8. There are some instances where a preliminary interview (p. 286 n. 6) may lead to a A-C
          a. Can keep preliminary interview vanilla to avoid problems.

   9. Who is a former client?

          a. Payment is not controlling.
          b. If lawyer performed legal services then W is a former client.

Q: H is wage earner. W interviews top divorce lawyers and goes to #6. Can H hire 1-5?
A: W will move to disqualify, H can show she was acting in bad faith to conflict out.

   10. Under Rule 1.18, a person who discusses representation with a lawyer is deemed a
       prospective client. Under (b), lawyer may not reveal information obtained.

          a. Under Rule 1.18(c), a lawyer subject to (b) shall represent a client with interests
             materially adverse to those of the client if the information received could be
             “significantly harmful to the prospective client.”
          b. Under 1.18(d) – even if the lawyer has received disqualifying information, the
             lawyer can go ahead
                  i. Lf the clients consent in writing or
                 ii. Lawyer took reasonable measures to avoid too much information.
                iii. Disqualified lawyer is screened – lawyer’s firm may continue.
                iv. Written notice is promptly give to the prospective client.
Lamprecht Fall 2005                                                       Legal Profession

           c. “Screen” is defined in Rule 1.0 – isolation of lawyer from any participation in a
              matter through timely imposition of procedures within a firm.

   11. Comment 5 to Rule 1.18 states waiver may be used to condition preliminary interview on
       notion that any information obtained will not prohibit the lawyer from representing a
       different client in the matter.

           a. Limited waivers have best chance of being upheld.

Hypo: (Hot potato issue p. 287)
Lawyer represents client X in small matter. Y comes in to sue X in a large matter. Can lawyer
represent Y against X? No there is conflict and Rule 1.7 prohibits the representation.
Hot potato issue: Can Lawyer withdraw from X and take Y’s case? If L withdraws, X is former
client and Rule 1.9 applies. Is it same or substantially similar?

   12. Under Jelco, Case law says you cannot withdraw from one representation to permit you
       to sue the former client. You cannot drop a client like a hot potato.

           a. The doctrinal basis for saying this is lawyer cannot exercise legitimate right of
              withdraw when you are dropping client to turn 1.7 case into 1.9 case.

Q: What if you represent Pl and Def is taken over by existing client?
A: Under Comment 5 of Rule 1.7, lawyer has option to withdraw from one representation to
avoid conflict. Lawyer must seek court approval.

Q: L represents X episodically and then year goes by with nothing. Y wants to retain L to sue X.
A: L must determine if X is current client (Rule 1.7) or former client (Rule 1.9).

B. Migratory Lawyer

   1. First issue is whether the firm the migratory left is tainted by former client of the lawyer?

Hypo: L works at Able law firm. L represents Dr. Pill in negotiations with Dr. Pusher. At end of
negotiations, relationship ends. Psuher comes to Able to sue Pill in matter related to

Q: Can lawyer represent Pusher?
A: L could not represent Pusher because of Rule 1.9(a), unless Pill consents.

Q: Can other lawyer in Able represent Pusher?
A: No, under imputation of Rule 1.10, because L is barred all lawyers still in Able are also
imputed out.

   2. Under Rule 1.10(b), when a lawyer has left a firm, the firm may represent person who
      used to be an adversary of the ex-lawyer unless
         a. Matter is same or substantially the same to that the ex-lawyer was part of, AND
Lamprecht Fall 2005                                                      Legal Profession

           b. Any lawyer in firm has informed protected by Rule 1.6 (confidentiality) and

Q: L leaves Able, the Pusher comes to Able.
A: L is no longer at Able so there is no longer imputation of Rule 1.10(a). Key question for
application of Rule 1.10(b) is whether anyone in the firm has confidential information.

   3. Second issue is whether the migratory lawyer carries a “taint”?

Hypo: L leaves Able and joins Zeb Firm. Psuher comes to L and wants to sue grow. Can L

           a. Lawyer is barred regardless of firm by Rule 1.9(a), unless L obtains consent.

Q: Can another lawyer in Zeb Firm represent Pusher?
A: Under ABA Rules, other lawyers in Zeb would be imputed out.

   4. Many decisions and ethics rules permit a firm’s lawyers from representing the old
      adversary of a migratory lawyer if the migratory lawyer is screened.

           a. PA Rule 1.10(b) adopts principle of screening. Firm may represent if:
                  i. The disqualified lawyer is screened.
                 ii. Written notice is give to the client.
           b. Also, lawyer must not get portion of the fee.

   5. The third issue is if a lawyer at a firm who represented a client may move to another firm
      and represent the adversary.

           a. Lawyer is not barred by Rule 1.9 because while at firm, never directly represented
              the client. Rule 1.9(b) is not a problem so long as the lawyer did not acquire
              confidential information.

Q: What if L acquires confidential information on Pill while at Able and then goes to Zeb. Can
Zeb represent Pusher?
A: L is barred under Rule 1.9(b) and that conflict is imputed to Zeb through Rule 1.10(a).
However, PA rRule permits Zeb to represent Pusher so long as L is screened.

   6. ABA Model Rules do reject screening because they do not trust lawyers. Presumption is
      lawyers will share confidential information.

           a. It has effect on mobility of lawyers. No because of imputation. This makes it a
              lot harder for lawyers to switch firms. Conflict carried by migratory lawyer can
              cause firm to be imputed out.
Lamprecht Fall 2005                                                        Legal Profession

Cromley v. Board of Education: p. 294
Facts: Lawyer goes from representing the Pl to the firm representing the Def, but the law firm
screens him out
Analysis: Under Model Rules, this violates the ethics rules regardless of whether there is a
screen. The firm should be imputed out.
Holding: Court not bound to follow the Model Rules. In some instances, the court will find
conduct violated rules, but court will not disqualify and just make lawyer face the disciplinary

Q: A different lawyer in the firm goes elsewhere. Can the different lawyer who went elsewhere
sue Dr. Pill?
A: Rule 1.9: once lawyer leaves infected firm, lawyer is free to sue the former client of the
infected firm as long as the lawyer does not have confidential information.

   7. Rule 1.9 refers to “lawyer” so the rule would seem not to apply to a paralegal or summer
          a. Under 5.3(a), if you hire a non-lawyer, you have to make sure their ethical
             conduct is equivalent to that of a lawyer. You cannot have a non-lawyer who can
             tell you confidential information.

C. Government Service

   1. Rule 1.11 deals with conflicts of interest for former and current government offices and

   2. Rule 1.11(a) disqualifies lawyer who served in gov’t practice, and are subject to Rule

   3. If a lawyer is disqualified under (a), (a), then the whole firm is disqualified unless the
      lawyer is screened.

           a. Note: ABA permits screening here, but not in Rule 1.10.

   4. Rule 1.11(d) deals with current gov’t employees.

           a. The concern is lawyers who were in private practice and now serve gov’t.
           b. Law clerk can negotiate for private employment so long as they get consent.
Lamprecht Fall 2005                                                       Legal Profession

                                       Ethics in Advocacy

I. Impact on Lawyers

A. Introduction

   1. There are two views of the trial system:

           a. Trial in law and a search for truth
           b. Trials are adversarial system and not a search for truth.

   2. Each view would produce different ethics rules.

   3. Under Rule 6.2, a lawyer does not need to accept an appointment for a client or cause
      that is repugnant to them.

   4. Rule 3.3 requires candor to a tribunal. Tribunal includes judge, arbitrator, others who
      can make final decisions.

Hypo: If judge asks if all documents were turned over and lawyer lies and says “yes,” this
violates Rule 3.3

Hypo: Judge asks DA if there are prior convictions and DA says no, but L knows there was one.
Does L have to tell judge? Conventional answer: as long as lawyer has not made a false
statement to court or anyone, no obligation to tell judge.

   5. NJ requires that a material fact may not be withheld if it will mislead the tribunal (NJ p.

Q: If a lawyer’s client has died and L does not tell judge what is violated?
A: Rule 8.4(c) engaging in dishonesty fraud or misrepresentation. Rule 3.3(a)(1) making false
statement to tribunal—by showing up in court, you are making implied assertion to court.

   6. Under Rule 3.3(a)(2), lawyer may not knowingly fail to disclose adverse binding
      authority in the jurisdiction if opposing counsel has not disclosed it.

           a. It would be a violation of Rule 1.4(b) (must disclose to client).
           b. Know is actual knowledge inferred from the circumstances. Recklessness –
              lawyer cannot shut his/her eyes to it. You knew it if you have to shut your eyes to

B. Client Lies

   1. Under Rule 3.3(a)(3), a lawyer may not offer evidence that the lawyer knows to be false.
Lamprecht Fall 2005                                                       Legal Profession

           a. If false testimony has been offered, the lawyer must take reasonable remedial
              measures including disclosure.

   2. If the client is planning to lie there are a number of concerns:

           a. Rule 3.3(a)(3), you cannot offer false testimony into evidence.
           b. Rule 1.4(b) you cannot assist client in crime or fraud, perjury.
           c. May want to withdraw so Rule 1.16 is at issue. If in litigation you need authority
              from court, you can say professional reasons compel you to withdraw. No further
              obligations once withdrawn.
           d. Rule 3.3(b) states if lawyer knows client is about to engage in criminal act
              (perjury) lawyer shall take reasonable remedial measures.

Q: Can you disclose to a tribunal?
A: There are confidentiality issues at play here.

Nix v. Whiteside: SC p. 340
Facts: W charged with murder and claims stabs in self-defense. W never saw gun, but believed
he saw a gun and has to say he saw one. When it comes to trial, W tells lawyer he saw gun.
Lawyer says cannot permit to do it because lawyer knows it is a lie. W then appeals on
ineffective assistance of counsel.
Holding: Court says there is no error because the lawyer acted correctly and in accordance with
model rules.

   3. There are two views on preventing clients from perjuring themselves:

           a. Minority – Criminal defendants have right to testify. Lawyer may not ask
              questions where the answers will be perjurious, but lawyer can ask question and
              client may perjure. In closing arguments, lawyer may not base argument on what
              he understands to be perjurious
           b. Majority Rule – Comment 7 – Present accused as witness or give narrative
              statement even if client plans to perjure.
           How are theses different?

   4. What if the lawyer reasonably believes something to be false but does not know?

           a. You may be wrong though so you are only mandated if you know.
           b. You may not ask about the situation, but then you run risk of not doing job by
              gathering all the information.

   5. Lawyer is no under any affirmative duty to determine if the client is lying.

   6. Witness preparation is an important part of a client’s job, but must not spill over to the
      lawyer telling the client what to say.
Lamprecht Fall 2005                                                       Legal Profession

           a. Often happens that lawyer suggests to a witness what to say under the
              circumstances. There are problems with this but you do not see disciplinary

Hypo: L prepare witnesses by giving paper which says remember you saw names on the bags.
If lawyer is telling witness to lie  clearly wrong
If telling witness what to say  problematic

           b. There are ethical issues but very little enforcements if suggesting what client
              should say

Q: What if the lawyer gives the client the law then has client adapt testimony?
A: Some people defend and say you are entitled to tell the client what the law is. You would
almost never see a disciplinary action with this.

   7. Bottom line: As long as do not tell client to lie, everything else seems to be fair game in
      preparing the witness.

   8. Literal truth is not perjurious  Bronston p. 364. If you should have understood
      questioner misspoke, you may be held for perjury.

C. Other Lawyer Practices

   1. Under Rule 3.4(e), lawyer may not allude to an irrelevant mater not supported by

           a. Ex. “In closing, this is not about Pearl Harbor . . . .”
           b. Rule prevents appeals to bias.

   2. False inferences bring up ethical issues, but Becker does not know of any disciplinary
      cases for a lawyer arguing a false inference.

   3. It is not a violation fro a witness to testify truthfully, but erroneously. Ex. Dates wrong.

D. Frivolous Positions and Abusive Tactics

   1. Under Rule 3.1, a lawyer may not assert a frivolous position.

   2. Rule 3.2 requires a lawyer to make efforts to expedite litigation consistent with the
      interests of the client.

           a. It is not a justification that everyone does it. Ethical thing is whether a competent
              lawyer acting in good faith has a substantial reason other than delay.
Lamprecht Fall 2005                                                      Legal Profession

   3. Rule 3.4(b) prevents a lawyer from offering an inducement to a witness that is prohibited
      by law.

          a. You can pay an expert witness.
          b. You cannot pay a fact witness for coming in and testifying. PA rules you can pay
             fact witness to compensate them for their loss of time, ex. 2 days’ wages.
          c. ABA rules go with the local rules.

   4. Rule 3.5(b) lawyer cannot communicate ex-parte with a judge juror or backup juror
      unless expressly authorized.

          a. You can contact jurors after the trial under 3.5(c) unless the juror says leave me
             alone or the communication is harassing

   5. Restrictions on right to practice cannot be imposed under Rule 5.6.
Lamprecht Fall 2005                                                       Legal Profession

                                          Real Evidence

I. Lawyer’s Obligations with Respect to Real Evidence

A. Criminal Cases

   1. There is not a lot of ethics authority related to real evidence.

   2. Rule 8.4(d) can act as a catch to prohibit conduct that is prejudicial to the administration
      of justice.

Hypo: Client comes into office saying he shot someone and gives the lawyer the victim’s wallet.
No one knows the client is involved. Can the lawyer keep the wallet?

   3. Under Rule 3.4(a), a lawyer may not unlawfully block obstruct another party’s access to

           a. Another body of law is incorporated into the rule because of “unlawfully.”
           b. In the hypo, criminal law obstruction of justice statutes would be at issue.
                   i. PA law: unlawful obstruction of justice in acriminal statute applies to
                      destroying or concealing evidence even if there is no arrest or no
                  ii. The Federal statute is very broad and a criminal proceeding need not be
           c. In the hypo, it is unlawfully concealing evidence because it would also make
              lawyer guilty of obstruction of justice

People v. Meredith: p. 412
Facts: Def accused of conspiracy to murder. Def tells lawyer he has wallet. Lawyer’s PI gets
wallet. He cannot keep it, but what does he do with it.
Issue: Was the location of the wallet a product of a privileged conversation?
Holding: Whenever defense counsel removes or alters evidence, the statutory privilege does not
bar revelation of the original location or condition of the evidence in question.

   4. May be privileged, but there is an overriding duty to turn over fruits of crime to the police

           a. In turning over evidence, prosecution must avoid content of attorney-client
           b. Prosecution cannot let finder of fact know that the source of the information was
              the defense attorney

   5. Bottom line is there are 2 rules when dealing with evidence:

           a. Lawyer may not take evidence and keep it;
Lamprecht Fall 2005                                                         Legal Profession

           b. location of evidence must also be revealed so authorities can do the proper

Q: Client offers L wallet and L says “lose it in a river.” Is this valid?
A; No, because you are telling obstruct justice. You cannot tell someone else to do it under Rule

Q: DO you have to tell client to turn it over to police?
A: AZ decision said no obligation to tell someone to turn it over. If it is not obstruction of
justice, it does not require to be turned over.

   6. In Meredith, the mistake was for the lawyer to take the wallet out of the trash bin; this
      created an obligation to turn it over. If wallet was just observed, there is no obligation to

B. Civil Cases

   1. In civil context, there are no obstruction of justice statutes.

   2. Corporation often have policies for document retention. Justifications are storage issues.

   3. Issues arise when documents are destroyed and litigation is looming.

           a.    If it is subpoenaed, there is obligation to comply.
           b.    If suit filed and you destroy everything, Rule 3.4(a) uses word unlawfully.
           c.    A Rule not saying unlawfully did not make it into the Rules.
           d.    If unlawfully means something in context of civil litigation, there is no consensus.
           e.    May be an 8.4(d) issues.
Lamprecht Fall 2005                                                        Legal Profession

                                         Corporate Issues

I. Negotiations and Transaction Matters

A. Negotiations

   1. As far as model rules, you do not have a specific section in model rules that deals with

   2. Drawing up agreement that is premised on crime or fraud is assisting the client in crime
      or fraud and violated Rule 1.2(d).

   3. There are two major issues to think about:

          a. How far can the lawyer go in assisting the client?
                i. Under Rule 1.2(d), you may not assist in crime or fraud.
               ii. It is crime or fraud where conduct involves an intent or purpose to
          b. What are the lawyer’s ethical duties in negotiations?
                i. Must explain to your client under Rule 1.4(b) in order for client to make
                   informed decisions.

   4. If crime or fraud is at issue, lawyer may withdraw under Rule 1.16.
          a. Confidentiality issues, but crime or fraud is an exception under Rule 1.6.
          b. Remember is permissive (MAY) not mandatory (SHALL).
          c. Some states require disclose confidential information to prevent client from
              carrying out fraudulent act resulting in financial loss to another person. FL and

   5. Comment 10 of Rule 1.2 states that in some situations, withdraw may be insufficient and
      the lawyer may be required to disaffirm any opinion, document, affirmation or the like.

          a. It is good practice to disaffirm in order to avoid civil liability

   6. Academics argue Rule 4.1(b) requires more than just withdraw; must disclose to avoid
      assisting in crime or fraud by client.

   7. Lawyers want to push envelop in negotiations, but cannot engage in lies under Rule
      8.4(c). But is puffery permitted?

          a. Comment 2 to Rule 4.1(a) leaves some room for puffery in estimates of price or
             value of item in transaction. Very slight room.
          b. Lawyer may not misrepresent his authority, “ My client has not authorized me.”
Lamprecht Fall 2005                                                        Legal Profession

   8. Under Rule 4.3, lawyer may not state he is disinterested when dealing with an
      unrepresented person.

           a. In addition, Rule 4.3 prohibits the lawyer from giving legal advice to an
              unrepresented person other than the advice to secure counsel if there are interests
              in conflict.

Florida Bar v. Belleville: p. 436
Facts: Lawyer was being disciplined for agreement drawn up.
Holding: Court said two important things: (1) Lawyer must explain if the person does not
understand the lawyer’s role; and (2) attorney must explain in clear terms.
LB thinks this is dead wrong. If other side totally screws up, you have no duty to say correct
law. If you make it clear to other side that you do not represent them, there is no obligation to go
further to explain deal to the other side. It is arguable giving advice to the other side.

   9. Lawyers hate dealing with unrepresented parties because courts will bend over
      backwards to support unrepresented party.

Q: Can a prosecutor in negotiating with a fugitive claim he is a Public Defender?
A: Not this violates Rule 8.4(c) – engaging in dishonesty.

   10. In negotiating a settlement, a lawyer may not lie about policy limits.

Q: If a hospital only knows about 1 insurance policy and cuts break, must lawyer reveal 2nd
A: LB: If the client did not lie and did not conceal, there is no obligation to tell adversary
everything unfavorable to you.

   11. The Model Rules do not have a Rule on lawyer threatening criminal prosecution if person
       does not meet demands.

Hypo I: W threatens H that she will go to DA and report abuse if H does not agree to property

           a. Despite no Model Rule, there is the crime of extortion.
                  i. PA: Someone is guilty of theft if threaten anyone of a criminal defense.
                 ii. It is a defense that property obtained was honestly claimed that property
                     was restitution for accusation.

This is in hypo extortion pure and simple because the two acts are unrelated. Abuse is unrelated
to property settlement.

Hypo II: A’s car is vandalized by B. A’s lawyer says to B, here is the bill, if you do not pay,
they will tell police.
This is not extortion because it is classic example of defense. Restitution is in good faith and the
money sought is related to harm done under the circumstances.
Lamprecht Fall 2005                                                        Legal Profession

Hypo III: Lawyer represents hotel clerk who was hit by celebrity. Lawyer for clerk says client
has trauma and wants $ for suffering. Threatens reporting it to the DA.
This is kind of in the middle. Where the claim (amount of $) is not easily quantifiable (in car
accident, it is easily quantifiable), it may not be extortion if it is reasonable amount for harm

   12. If extortion is committed, Rule 8.4(b) states it is misconduct for lawyer to commit a
       criminal act that reflects adversely on lawyer’s honesty, trustworthiness.
           a. Note: getting speeding ticket is not in violation of Model Rules, only certain
               crimes are covered under Rule 8.4(b).

B. Lawyers for Entities

   1. When you are representing a corporation, you are actually dealing with individuals, but
      you represent he corporation, not the individuals.

   2. Under Rule 1.13(b) the lawyer must report any action by constituent at odds with their
      duties owed to the higher authority in the organization.

           a. There are two main elements:
                    i. Lawyer must know someone is violating duty
                   ii. Violation is likely to result in substantial injury to the corporation.
           b. Lawyer has no duty of confidentiality to the corp officer who disclosed the
              information. You do not owe a duty because they are not your client.
           c. It is also required by Rule 1.4(b) must explain matters to the client to permit
              client to make informed decisions
           d. Lawyer must only refer up, then obligation is fulfilled.

Q: Can L call media to reveal fraud by constituent?
A: Lawyer has duty of confidentiality to the corp and this is information that is relevant to the

   3. Under Rule 1.13(f), when dealing with the entity’s constituents, the lawyer must explain
      identity of the client when lawyer knows or should reasonably know the entity’s interests
      are at odds with the constituents.

   4. Under Rule 1.13(g), the lawyer may represent a constituent of the entity, but the lawyer
      is subject to conflict of interests rules – Rule 1.7. Consent must be given by corp.

Hypo: Officer asks to represent in PI case. You need conflict of interests to trigger Rule 1.7. In
case where representing in PI case, no conflict.

Hypo: Officer comes in and says being sued by SH X. X is alleging officer committed fraud in
IPO. Can lawyer represent corp and officer? You can under 1.13 under conflict analysis. There
is a concurrent conflict (that there maybe a conflict) under 1.7. There is a risk—possibility that it
Lamprecht Fall 2005                                                                  Legal Profession

will turn out that what the plaintiff said is true and you cannot do justice to both clients. No
absolute prohibition to representing both.

    5. The majority view for a lawyer representing a partnership is the lawyer does not represent
       the general partner.

    6. In close corp where lawyer works with the individual owners, there is more of a risk that
       court will hold lawyer implicitly represents SHs.

    7. Sarbanes-Oxley caused the ABA to amend 2 rules in 2003:

             a. Rule 1.6 – this now provides greater discretion for attorneys to disclose
                confidential information where financial crime or fraud.
             b. Rule 1.13 – made more responsive to corporate wrongdoing when lawyer learns
                about it. Lawyer shall refer matter to higher authority in company when
                constituent breaches duties. Lawyer only has to refer up – no other obligations.
                    i. Some say this does not go far enough because must know.

    8. There may be situations where Rule 1.13 permits disclosure and Rule 1.6 does not:

                          Rule 1.6                                                Rule 1.13
1.6(b) depends on lawyer’s services – you cannot always   Lawyer’s services do not need to be used to allow for
disclose if client has not used lawyer’s services         disclosure
Aimed to prevent crime or fraud that will injure          Disclosure is permitted to prevent injury to the
someone else                                              organization.

    9. SOX required the SEC to adopt rules regulating professional conduct of lawyers.

             a. Rules affect lawyer who work for large public companies.
             b. Mandatory reporting up obligation.
             c. Require disclosure to SEC of material violation of securities laws or breach of
                fiduciary duty.
             d. Requirements follow reasonably believes standard not know standard.
             e. Lawyer may have further duties after reporting up unlike ABA.
             f. Also, SEC provides for permissive disclosure of confidential information.

    10. Under 1.13(e), if lawyer believes they are terminated for reporting up violation, lawyer
        must still report up to the entity’s highest authority. “Retaliatory discharge.”
           a. If contract employee, can only be fired for terms of contract.
           b. Often employee will be protected for whistle-blowing.
           c. For non-lawyers, there is tort of retaliatory discharge.
           d. Associates in firm should insist on tort.

Crews v. Buckman Labs: p. 478
Issue: Can lawyer bring action for retaliatory discharge when she is terminated for whistle
Holding: Lawyer is given the at-will employee tort of retaliatory discharge.
Lamprecht Fall 2005                                                      Legal Profession

   11. In retaliatory discharge action, can the lawyer reveal confidential information?

          a. Courts have relied on Rule 1.6(b)(5) which provides for self-defense for lawyer
             where controversy between lawyer and client.

   12. Under Rule 5.2, a lawyer is bound by the Model Rules even when the lawyer acted at the
       direction of another person.

          a. Lawyer is not bound under Rule 5.2(b) if acts in accordance with supervisory
             lawyer’s reasonable resolution of an arguable question of professional duty.
Lamprecht Fall 2005                                                        Legal Profession

                                         Control of Quality

I. Mechanisms

A. Admission to the Bar

   1. In order to practice, there are certain quality control mechanisms that must be passed:

           a. Bar exam - applicants for admission have to exhibit competence
           b. Character – can focus on character before law school and after law school.

B. Practicing in Jurisdiction without a License

   1. If you are not licensed in a jurisdiction, then there are issues.

Hypo: Jackman: Person licensed in Mass and then goes to NJ and practices for 7 years then it
comes to light.

   2. States have statutes that prohibit unauthorized practice of law. These statutes make it a
      crime for person to practice law in state where not licensed to do so. Apply to lawyers
      not licensed lawyers and non-lawyers.

   3. Second form of sanction is Rule 5.5(a) “violates ethical code of the state where person is

           a. Lawyer shall not practice in jurisdiction in violation of the regulation of the legal
              profession in that jurisdiction.

   4. Third sanction – fee forfeiture.

           a. Ex. J gets 1M fee, client can refuse to pay fee and claim it is forfeited. J has
              earned his fee, but he did it in violation of public policy of NJ.

   5. Under Rule 5.5(b), lawyer not admitted to practice in this jurisdiction shall not:
         a. Establish a presence
         b. Hold out to public authorized to practice in that jurisdiction.

   6. Under Rule 8.5(a), the jurisdiction in which the lawyer is no licensed may discipline, but
      it is not clear how this would work.

           a. It is clear the jurisdiction where the lawyer is licensed can discipline.

   7. Under Rule 5.5(a)(1) – lawyer cannot assist another to practice law in violation of laws
      of jurisdiction.
Lamprecht Fall 2005                                                      Legal Profession

           a. Comment 2 permits the lawyer to delegate work to a paralegal so long as there is
              supervision and the lawyer maintains responsibility.
           b. Comment 3 permits lawyer to give non-lawyer advice on what the law is.

   8. Court can admit a lawyer pro hoc vice for certain cases which permits the lawyer to try
      cases in certain jurisdictions.

           a. There is no transactional equivalent of pro hoc vice.

Birbrower P.C. v. Superior Court: p. 574
Facts: Lawyers from BMCF travel US doing transactional work. Client claims fee forfeiture
because not licensed to practice law in PA.
Holding: BMCF ended up forfeiting a portion of fee related to conduct in state not licensed in.
Illustrates that practice of law is no clear in transactional work.

   9. Courts have found a de minimis exception for practicing law.

Q: What if work is done electronically, is this the practice of law?
A: Under Birbrower, the definition of practice of law did not depend on presence in the state.

   10. As a result Birbrower, the model rules were relaxed to permit some limited practice of
       law in non-licensed states.

   11. Under Rule 5.5(c) lawyer not licensed in a jurisdiction may provide legal services on a
       temporary basis in a jurisdiction that:

           a. Undertaken with lawyer who is admitted to practice in the jurisdiction and
              actively participants in the matter
           b. Authorized by law or order to appear in such proceeding
           c. Related to pending or potential arbitration, mediation or other alternative dispute
           d. * are not within the previous and arise out of or are reasonably related to the
              lawyer’s practice in a jurisdiction which the lawyer is admitted to practice.
                   i. This is an important BROAD exception.

   12. Under Rule 5.5(d), a non-licensed jurisdiction may provide legal services in jurisdiction

           a. Are provided to the lawyer’s employer or it organizational affiliates (house
           b. Services the lawyer is authorized by federal or other law to provide.
                  i. Ex. May represent for federal income tax practitioner. Do not need to be
                     admitted somewhere.

Q: Can a lawyer offer a client in a jurisdiction advice about law in another jurisdiction? Ex. PA
lawyer saying Cali will is not enforceable.
Lamprecht Fall 2005                                                       Legal Profession

A: Does not matter the subject is law of another jurisdiction does not mean practicing law in that

C. Non-Lawyer Practicing Law

   1. The definition of practicing law is drawn very broadly to protect lawyers.

           a. It often involves broader areas that involve legal skill or knowledge. Ex.
              Salesperson explaining warranty.
           b. Certain activities by non-lawyers that involve appearance in court or
              representation of parties usually involve the practice of law.
           c. Other aspects with giving advice or assisting can be viewed as practice of law
              under broad definition, but courts create exceptions because public interest may
              permit the activity the salesman explaining the warranty. Ex. Real estate

   2. State organized bars challenges any actions by non-lawyers that conduct actions that may
      possibly be the practice of law.

   3. There are First Amendment Issues at play.

           a. Ex. online Will preparation tools helping people do things on their own.
           b. Sellers of software have first amendment right to sell their stuff.

D. Supervisory Responsibilities

   1. Under Rule 5.1(a), managing authorities in a firm, must make reasonable efforts to
      ensure all lawyers conform to the Model Rules.

           a. Big firms often have experts to ensure Rule compliance.

   2. Under Rule 5.1(b), a direct supervising attorney must make sure subordinates comply
      with the model rules.

   3. Under Rule 5.1(c), lawyer will be responsible for another lawyer’s conduct if:

           a. The lawyer orders or ratifies the conduct
           b. Partner has responsibility, supervising lawyer has responsibility, and supervising
              lawyer can be vicariously liable.

   4. Rule 5.3 is the same as Rule 5.1, but it deals with supervision of nonlawyer assistants.

   5. Under Rule 5.2, if you are subordinate and told to violate Rule and do so, you are in
Lamprecht Fall 2005                                                       Legal Profession

E. Specialization of Lawyer

   1. Under Rule 7.4, a lawyer may communicate whether they practice in particular fields of

           a. Lawyer shall not imply a lawyer is certified in a field of law unless:
                  i. Lawyer is certified
                 ii. Name of certifying organization is identified.

Hypo: Firm says “specialty in ___.” This is OK under ABA rules because not saying certified.

           b. PA Rule –shall not state as specialist. Not limited to saying to certified. Could be
              interpreted that cannot use word specialist.

II. Remedies for Professional Failure

A. Malpractice

   1. The essential elements in a malpractice suit are:

           a. Attorney-client relationship existed– there are 2 parts to this:
                  i. Reliance by client reasonably believes that lawyer is supplying legal
                      services or will supply legal services.
                 ii. Lawyer knows of the client’s belief or reasonably should know.
           b. Lawyer must be negligent or in breach of contract – held to standard of reasonable
           c. Proximate cause – lawyers acts were proximate cause of Pl’s damages
           d. But for the lawyer’s conduct the Pl would have been successful – must show you
              would have won.
                  i. But for is more difficult to show in transactional context.
           e. Damages

   2. Many states have malpractice which permits the Pl to recover emotional distress
      damages, but not on breach of fiduciary duty action.

           a. Remember Breach of fiduciary duty is an alternative theory to malpractice.

Togstad v. Vesely, Otto, Miller & Keefe: p. 612
Facts: 14 months after a hospital accident wife goes to lawyer about possible suit. Lawyer says
let me look into it. He never calls back. She goes to another lawyer who thinks there is case.
SoL against hospital has run so she sues first lawyer.
Holding: Pl met all malpractice elements and L was liable.

   3. There are some instances where the 3rd party is the equivalent of a client.
         a. Ex. Beneficiary under will. If lawyer acted properly, heirs would have enjoyed
Lamprecht Fall 2005                                                         Legal Profession

           b. Point is sometimes people who are not clients may have standing to sue for

   4. As part of showing the standard of care, does the Pl need to introduce expert testimony?

           a. In many cases, an expert is needed at all phases, but especially for standard of
           b. Ex. Togstad – expert lawyer said you must consult hospital record and talk to
              doctor. Jury would not know that this is the standard of care.

Q: Is violation of an ethics rule dispositive proof of malpractice?
A: Violation is not per se breach of duty of care, it is evidence, however. Majority rule – it is
evidence of a duty of care if the rule was intended to protect someone in position of Pl

Viner v. Sweet: p. 633
Facts: Pls sue lawyer for provisions of transaction that are disadvantageous.
Analysis: But for is more difficult in transactional context. If requiring “but for” must show Pl
would have better deal and other side would have agreed or Pl would not have agreed without

PA Hypo: Woman enters into co-habitation with another man. H sues lawyer for not included
cut off of alimony if co-habitation. PA court said it is malpractice to not explain basic legal

B. Malpractice in Criminal Context

   1. General rule for malpractice in criminal cases – there is no causation unless the Def
      proves that the Def was innocent of the charge.

           a. If Def is in jail for life, it is because of the crime, lawyer malpractice is not the
              proximate cause.
           b. Some jurisdictions must show the conviction was reversed or overturned before
              the malpractice can proceed.

   2. Majority rule – Def must prove actual innocence to maintain a malpractice action.

Hypo: Woman charged with tax fraud. AUSA makes offer for her to testify against others
involved for immunity. W’s attorney does not relay the information. W pleads guilty in plea
bargain gets light sentence, but could have had no sentence.

           a. W sues lawyer and court says must prove innocence and she could not because
              she pled guilty.

   3. The burden of proof for showing innocence in civil case is preponderance of the
Lamprecht Fall 2005                                                       Legal Profession

C. Disciplinary Systems

   1. There must first be an act justifying discipline.

In re Austern: p. 678
Facts: Lawyer represents client. There is an escrow account where client will put $10k to fund
any additional work. Clients at closing write check. Lawyer manages escrow account. Client
tells Austern there is no money to cover the account. Lawyer does not tell anyone. It comes out
that check was worthless and Austern as lawyer was disciplined.
Holding: Disciplinary proceeding – lawyer is found liable and given light sentence.
     - Rule 1.2(d) violation for assisting client in fraudulent act.
     - Rule 8.4(c) conduct that is dishonest.

   2. Rule 8.4(c) dishonest act applies in a lawyers personal life as well as professional life.

Hypo: L tapes between P and Q. Under federal law, it is legal, but under state law, it is unlawful.
Because L violated criminal statute, he can be prosecuted. Are there Rule implications?
   - Rule 8.4(c) is not applicable because it is not deceitful, fraudulent. It could be argued
      that it is dishonest.
          o Dishonest is not defined by ethics rules. It is a common legal concept, however.
   - Rule 8.4(b) not violation to commit ANY criminal act. It is criminal act that reflects
      adversely on lawyer’s honesty, trustworthiness of fitness.

Q: What if a prosecutor files false charges?
A: Rule 8.4(c) is obvious, but also remember there is a Rule 3.3 violation for lack of candor to a

   3. Rule 4.1 prohibits:
         a. false statement to third person or
         b. failing to disclose material fact to third person when it is necessary to avoid
             assisting a criminal or fraudulent act by a client.

D. Lawyer’s Private Life

   1. Certain rules apply in a lawyer’s private life
         a. Rule 8.4(c) – prohibiting dishonesty, fraud deceit or misrepresentation;
                  i. If the lawyer files a misleading driver’s license application. Rule 8.4(c)
         b. Rule 8.4(b) – commit a crime that reflects adversely on the lawyer’s honesty,
             trustworthiness or fitness—apply to a lawyer’s personal life.

   2. Massachusetts takes Rule 8.4(c) further and says a lawyer cannot engage in conduct that
      “adversely reflects on his or her fitness to practice law.”
Lamprecht Fall 2005                                                       Legal Profession

E. Racist and Sexist Conduct

   1. You see incidents of this type of conduct from one lawyer to another. It often happens in
      depositions because adversarial situation and no court monitoring.

   2. This conduct is dealt with by court’s power to sanction conduct. However, there must be
      sufficient gravity to sanction.

   3. ABA Model Rules do not really deal with this type of conduct:

           a. Comment 3 to Rule 8.4 says racist and sexist words or conduct violates Rule
              8.4(d)—prejudicial to the admin of justice.
           b. If you interpret narrowly, must show actual prejudicial effect. However, if you
              interpret broadly (courts tend to use), is this conduct in conflict with system of
              administering justice. Is this kind of conduct good?
           c. Rule 8.4(d) does not apply to lawyer’s personal life however.
           d. Rule 3.5(d) sometimes apply the disruption to tribunal prohibition to disruptive
              conduct by a lawyer.

F. Reporting Misconduct

   1. Rule 8.3 requires a lawyer to report misconduct of another lawyer or judge.

           a. 8.3(a) If lawyer knows of misconduct that raises a question as to the lawyer’s
              honesty, trustworthiness or fitness, lawyer shall inform the appropriate authority.
           b. 8.3(b) If lawyer knows judge has committed violation, shall inform the
              appropriate authority.

   2. Rule 8.3 requires actual knowledge.

           a. If the lawyer reasonably believes, there is no obligation to report, must KNOW.
           b. “Knows” requirement seems to protect lawyers to the nth degree.

   3. Some states have “should” language and not the mandatory “shall” of the Model Rules.

   4. Lawyers are often willing to report adversaries, but not friends. Some this this rule is
      least enforced.

Hypo: Lawyer goes to party and sees lawyer sell drugs. Is there a violation of professional ethics
for selling drugs? Rule 8.4(b) lawyer has committed a criminal act that reflects adversely on
lawyer’s fitness.

Q: What if lawyer blows SoL, does another lawyer have to report?
A: This is probably Rule 1.1 competence issue and not likely necessary to be reported.
Lamprecht Fall 2005                                                   Legal Profession

   5. Rule 8.3(c) makes an exception for information that is protected by confidentiality of
      Rule 1.6.
         a. If you come by information that is protected by Rule 1.6, you are off the hook and
             do not have to report it.
Lamprecht Fall 2005                                                       Legal Profession

                                    Marketing Legal Services

I. Scope

A. Defining the Borders

   1. There is a distinction between advertising and solicitation despite neither being defined
      by the Rules.

           a. Advertising – communication you direct to the population at large, offering legal
              services or letting know where available.
                  i. Governed by Rule 7.1 and 7.2.
           b. Solicitation – addressed to specific person offering to represent them in a specific
                  i. Governed by Rule 7.3.

B. Advertising

   1. Advertising used to be in violation of the Model Rules, but Bates changed that.

Bates v. Bar of Arizona: p. 801
Holding: Court held that advertising by lawyers was commercial speech entitled to First
Amendment protection.

   2. Bates was not limited to advertising and lawyers were freed to talk to the media.

   3. Following Bates, the Bars moved into regulation of advertising.

   4. The general rule is that if it is not deceptive the ad receives commercial protection.

           a. Bates said deceptive commercial speech is not entitled to protection, but non-
              deceptive is limited to some con protection.

   5. Under Rule 7.1, lawyer shall not make false or misleading communications about the
      lawyer or lawyer’s services.

           a. Misleading – material misrepresentation of fact or law, or omits a fact necessary
              to make the statement considered as a whole not materially misleading.
           b. Comment 3 states a lawyer if lawyer reports achievements, it may be misleading
              if presented to give reasonable person to form an unjustified expectation.
                   i. Ex. I have 10 cases where $5M verdicts have been won.
                  ii. May be able to disclaim and say “results may differ.”
           c. Unsubstantiated comparison may be misleading if lead reasonable person to
              conclude that the comparison can be substantiated
Lamprecht Fall 2005                                                      Legal Profession

           d. Ex. Best trial lawyer in Phila. Statement of fact (with subjective element). No
              way for consumer to verify the statement. It is example of misleading statement.

   6. Under Rule 7.2(b), lawyer may not give anything of value to a person for recommending
      the lawyer’s services except a lawyer may:

           a. Pay costs of advertising
           b. Can refer clients to another professional under reciprocal agreement. Internet
              plans like a find a lawyer and like yellow pages, you can pay for cost of

   7. Commercial speech can be regulated if:

           a. Regulation must serve Gov’t objective.
           b. Regulation must advance that objective
           c. Regulation cannot be more extensive than necessary to protect the gov’t purpose.

Zauderer v. Office of Disciplinary Counsel: p. 811
Facts: Lawyer advertises willingness to represent women injured from use of Dalkon
contraceptive. Ohio bar Rules forbid advertisement of a truthful commercial advertisement
which deals with legal advice. Goes to US SC and Ohio says want to protect public from false
legal advice.
Holding: SC says because it is in writing, it can be monitored and there is no need for
prophylactic rule.

Q: How does Zauderer relate to electronic advertisements?
A: LB thinks electronic information comes and goes so it should be easier to make argument it is
should just be cut off.

C. Solicitations

   1. Solicitations refer to contact with a prospective client saying “employ me.”

Ohralik v. Ohio Bar: p. 805
Facts: Ohio Bar says no solicitation. Ohralik says Ohio ban is unconstitutional.
Holding: Court says the ban is not overreaching. A situation where lawyer has powers of
persuasion is a legitimate concern. State can ban any in-person solicitation.

Shapero v. Kentucky Bar Ass’n: p. 818
Facts: L wanted to send out letters to potential clients who had foreclosure action against them.
Holding: SC says written communication (solicitation by letter) cannot be prohibitively banned.
US SC says you may ban in person, but may not ban targeted mail.

   2. Rule 7.3 followed the Ohralik and Shapero opinions.
Lamprecht Fall 2005                                                       Legal Profession

   3. Rule 7.3(a) prohibits in-person, live telephone or chat room solicitation from a
      prospective client when lawyer’s motive is pecuniary gain unless:

          a.   Person is a lawyer
          b.   Person is a family member, close personal contact or prior professional contact.
          c.   Note: No pecuniary gain if it is pro bono.
          d.   Note: Rule 7.3(b) – is an exception to 7.3(a). Even if in exception for in-person,
               have to leave along if person requests so

   4. The Rule 7.3 ban has assumed that pressures that exist in face-to-face also exist in

   5. SC said state may ban in-person solicitation. State does not have to ban. One or two
      states permit in-person solicitation.

   6. Rule 7.3(b) prohibits written, recorded or electronic communication solicitation if:

          a. Prospective client has made it known a desire not to be solicited.
          b. Solicitation involves coercion.

   7. Under Rule 7.3(c), solicitations must include words “Advertising Materials.”
Lamprecht Fall 2005                                                       Legal Profession

                                          Other Issues

I. Misc

A. Defamation

   1. Under tort law, there is a privilege in legal proceeding against defamation suit.

   2. Problem is the scope must be relevant to the proceedings. What is clearly covered is
      lawyer making statement in court or in documents that would otherwise be defamatory.

   3. Gray area: If you step outside court and documents, is lawyer covered

           a. Ex. Statements made with client or witnesses. Press communications are not
              protected – even it is complaint that is mailed to reporter.

B. Free Speech Rights of Lawyer

   1. Under Rule 3.6(a), “lawyer shall not make a statement outside of proceedings (do not
      talk to press) that lawyer knows or should know will be disseminated by public
      communication and will have likelihood of prejudicing adjudicatory proceeding.

   2. Under Rule 3.6(c) can make statement to protect a client from the substantial undue
      influence. This is a huge loophole.

C. Judicial Ethics

   1. ABA has adopted rules of judicial ethics – they are in supplement

   2. Code says judge should avoid issues that cause judge to appear lacking impartiality.

   3. The test for judicial disqualification is in which judicial impartiality “might reasonably be

To top