Professional Responsibility

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					                                                            Professional Responsibility

Chapter 1: Introduction to Legal Ethics
  1. ―Ethics‖ and ―Legal Ethics‖
          a. The Relationship Between ―Ethics‖ and ―Legal Ethics‖
          b. Utilitarianism (Greatest Happiness Principle) – holds that actions are right in proportion as they tend to promote happiness, wrong
              as they tend to produce the reverse of happiness (pleasure and freedom from pain are the only things desirable as ends)
                   i. Rule-utilitarian: what general rules of conduct tend to promote the greatest happiness
                  ii. The Theory:
                          1. actions are to be judged right or wrong solely in virtue of their consequences
                          2. in assessing consequences, the only thing that matters is the amount of happiness or unhappiness that is caused
                          3. in calculating the happiness over unhappiness that will be caused, no one‘s happiness is to be counted as more
                              important than anyone else‘s
                 iii. Objections
                          1. hedonistic – the idea that happiness is the ultimate good
                          2. Justice is not part of consideration (killing an innocent may be justified)
                          3. Rights – perverted pictures taken cause great pleasure perhaps more than the pain cause the victim whose rights were
                              violated (rights limit how an individual may be treated regardless of the good purposes that might be accomplished
                          4. Backward-Looking Responses – break promise to a friend to meet him, because can do more work at home than
                              inconvenience cause friend
                                  a. Utility only cares about the future, however considerations of past (promise) have some importance (utility
                                      makes past irrelevant)
          c. The Golden Rule – ―in everything, do to others what you would have them do to you‖ - Jesus
          d. The Categorical Imperative – treat every person as an end and not a means
                   i. Using others as means – means if what we do reflects some maxim to which they could not in principle consent (deception,
                      coercion, etc.)
                  ii. Critique – (1) human beings are not ideal rational calculators and (2) human beings have limited autonomy
          e. Hypos:
                   i. You accidentally receive fax from opposing counsel, titled ―Confidential Memo‖ re this trial,
                          1. You stop reading, what should you do?
                                  a. ABA Model Rule 4.4: Respect for Rights of third Persons – a lawyer who receives a document relating to the
                                      representation of the lawyer‘s client and know or reasonably should know that the document was inadvertently
                                      sent shall promptly notify the sender
                                  b. doesn‘t answer the question the question whether to read or not, must look to other rules (Utilitarianism, Golden
                                      Rule, Categorical Imperative)
                                           i. Golden Rule – I would want the other attorney to notify me and return the document, so I would do the
                                          ii. Utilitarian –
                               1. keeping and using the document will produce happiness for my client that outweighs the pain of
                                   the opposing counsel v.
                               2. the undermining of the system of justice and the potential sanctions for fully using the disclosed
                                   docs may result in greater pain
                      iii. Categorical Imperative –
                               1. an attorney should keep and use the inadvertently disclosed document. If this rule was universal
                                   then attorneys would act more responsibly in holding on to privileged docs, vs.
                               2. it would also result in everybody trying to read opposing counsel‘s docs, it would create great
                                   inefficiencies, no trust b/t attorneys, and attorneys could not treat each other as professionals
       2. Has adverse attorney waived attorney-client privilege? (three views):
               a. Intent (CA): there was no intent to waive privilege, thus no waiver (ex: attny accidentally sent doc, and
                   immediately requested the document, opposing attny refused to send it back, Ct enforced privilege, and even
                   sanctioned the opposing counsel, although sanction overturned)
               b. Strict Liability: Inadvertent is euphemism for negligence, attorney‘s have duty of care
               c. Multi-factor approach (middle approach): weighs factors such as (i) Precautions taken, (ii) serious attorney
                   review before disclosure, (iii) number of inadvertent disclosures, (iv) extent of disclosure (greater disclosure
                   more like public knowledge less likely to protect privilege, (v) extent attorney attempted to rectify inadvertent
                   disclosure, and (vi) overall interest in justice
                        i. Ex: SEC v. Cassano – internal SEC analysis not stamped privileged made available to private attorneys
                           (among 50 cartons of docs), a senior SEC attorney had reviewed docs before making them available, an
                           opposing counsel found the oc and got a copy of it with SEC approval. Two weeks later, SEC upon
                           discovering the ID of the doc sought to protect the doc, Ct held that privilege was waived. Rationale:
                           attorney should have taken interest to discover what the doc he approved to be taken
       3. what if the document was sent intentionally by a disgruntled person (non-lawyer), what result then? (ex: whistleblower)
               a. may have to submit it to the court have the judge decide, look to special whistleblower statutes
       4. What about in criminal cases?
               a. US v. Gangi – FBI accidentally files prosecutor‘s sensitive memo, and defense attorney shares memo with 19
                   other counsels. Court held that memo was work product, but that it had been waived, and that since some of the
                   defense attorneys had memos, all of the defense attorneys should get a copy. Government is held to a higher
                   duty, which includes a higher duty to protect its own work product
ii. Long Time Client, you find out has drug problem, sister comes to you asks you to file petition appointing guardian for him,
    which you know he will oppose. What should you do?
       1. Model Rule 1.14(b) (activist approach; majority rule) – Client with diminished capacity – when the lawyer
           reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm
           unless action is taken and cannot adequately act in the client‘s own interest, a lawyer may take reasonably necessary
           protective action, including…consulting with individuals that have the ability to take action to protect client, seeking
           the appointment of a guardian, conservator
       2. Lawyer should maintain normal atty/client relationship if possible (1.14(a)); may file petition to get guardian in
           appropriate cases (discretionary)
                          3. **Cal Opinion (conservative view; minority) – in NO circumstances may atty file the petition against the express
                             wishes of client
                                a. Policy: protect client confidences; if you can no longer effectively represent client, you must withdraw anyway,
                                    sister can get her own attorney

Chapter 2: Sources and Application of Legal Ethics Rules
  1. The Organization of the Bar
          a. Admission to Practice in the Courts of a State
                 i. Residency Requirements – in the past states imposed residency requirements, but since 1985, the SC has repeatedly struck
                    down such requirements
                        1. NH v. Piper (US) – held that NH‘s SC‘s refusal to swear in a VT resident who passed the state‘s bar examination
                           violated the Constitution‘s privileges and immunities clause
                               a. Narrow exception – if a state can demonstrate ―substantial‖ reasons for discriminating against nonresidents and
                                   can show that the difference in treatment bears a close relation to those reasons
                        2. SC of VA v. Friedman – struck down VA law that waived VA residents licensed out-of-state into the VA bar, but
                           required non-VA residents to take the state bar exam; Rationale: violated the P+I clause b/c it burdened the right to
                           practice law by discriminating among otherwise equally qualified applicants
                        3. Rule: the decisions require equality of treatment b/t in-state and out-of-state applicants to the bar, residence-based
                           waivers are no longer valid
                               a. States must either allow any nonresident admission upon waiver on the same basis as residents, or abolish
                                   waiver privilege
                               b. Result: may increase barriers to admission, rather than a relaxation of barriers for lawyers already in practice
                                   who wish to change or expand their practices (ex: IL abolished privilege rather than allowing waivers to
                ii. Character Requirements – all states require that an applicant for admission to the bar possess ―good moral character,‖
                    although enforcement of this requirement is uneven and sporadic
                        1. Factors include: honesty, respect for the law, and respect for the rights of others
                        2. Good Moral Character – absence of proven conduct or acts which have been historically considered manifestations of
                           ‗moral turpitude‘; also defined statutorily to include ―qualities of honesty, fairness, candor, trustworthiness, observance
                           of fiduciary responsibility, observance of law, respect for rights of others for judicial process
                        3. difficulty arises from: dishonesty on the bar application, recent criminal conduct, and fraud and other financial
                        4. Can‘t use ideological or political grounds to attack ―moral character‖, see Konigsberg v. State Bar (US) – rejected
                           membership in the Communist Party as proof that an applicant lacked good moral character
                        5. More difficult cases involve past criminal conduct or other misdeeds with an intervening passage of time or evidence of
                               a. Kwasnik v State Bar – P while drunk caused the death of another person, in a wrongful death suit he had a
                                   judgment against him, which P didn‘t pay, he later filed for bankruptcy and had the judgment set aside
                               i. Standard: whether the applicant is fit and proper person to be permitted to practice law, and that usually
                                  turns upon whether he has committed or is likely to continue to commit acts of moral turpitude, burden
                                  is on applicant to prove moral character
                              ii. P worked in NY as lawyer for 20 years with unblemished record, dozens of letters attesting to his
                                  character from judges and lawyers, he was admitted to florida bar
                             iii. Since the misconduct is not related to Ps practice of law it is accorded less weight than professional
                                  misconduct, thus P met his burden
     iii. Admission to Practice in California
              1. California Requires the Following:
                      a. Applicant must be at least 18 years old
                      b. Of good moral character
                      c. (i)Graduate of an accredited law school or (ii)an unaccredited law school who passed the first year law student‘s
                      d. The applicant must pass (1) the General Bar Examination and (2) must pass the MPRE (PR exam)
              2. If admitted, the applicant then takes an oath and becomes a member of the State Bar of California
              3. A member is presumed to be ―active‖ unless member requests, or is involuntarily placed, on inactive
                      a. Inactive members are not entitled to practice law
b. Admission to Practice in the Courts of Other States
       i. Pro hac vice – an attorney who has been admitted in one state and who wants to represent a particular client in a court of
          another state may also petition that court to appear pro hac vice (for this turn only) (there is no right, each case requires a
          separate petition)
      ii. In some jurisdictions, the attorney must enlist a local attorney as co-counsel (ensure compliance with local rules; some say
          economic device to protect local bar)
     iii. Most states allow some limited practice activities by lawyers admitted in another state, including limited admission for in-
          house counsel, for members of the military, for provision of pro bono services, and even for law faculty members
     iv. ABA Model Rule 5.5 – permits lawyers admitted in another state, and not disbarred or suspended from practice there, to
          provide several categories of limited or temporary service in a state in which they are not admitted to practice
              1. in a reasonably related to pending proceeding before a tribunal in another jurisdiction
              2. are in a reasonably related arbitration, mediation, or other ADR in another jurisdiction
              3. are not above, but arise out of or are reasonably related to the lawyer‘s practice in a jurisdiction in which the lawyer is
                  admitted to practice
      v. Most states (not CA) have reciprocity arrangements that allow an attorney who has practiced in one state for a set number of
          years to gain full admission to practice in another state simply by filing a petition (only applies to reciprocating states)
c. Admission to Practice in the Federal Courts
       i. Must be separately admitted to the bar of that federal court, because each federal court maintains its own separate bar
      ii. Typically, admission is granted upon a motion by an attorney who is already a member of that court‘s bar who can affirm that
          the applicant is a person of good moral character
     iii. Admission to federal district court typically requires that the applicant be admitted in the state in which the federal court sits
     iv. Court of appeals – applicant be admitted in the courts of any state
             v. Supreme Court – requires that applicant has practiced before the courts of a state for at least 3 years
      d. Membership in Bar Associations
              i. State Bar Associations –
                     1. Functions: run the lawyer discipline system, legal education programs, setting statewide certification standards,
                         lobbying regarding issues that affect the legal profession, help make legal services available to people who cannot pay
                     2. Unlike the national organizations, state bar associations are compulsory membership
                     3. Keller v. State Bar of Cal. (US) – held that an integrated (compulsory) bar must not use its members‘ mandatory dues
                         to fund ―activities of an ideological nature‖ that are not germane to ―regulating the legal profession and improving the
                         quality of legal services‖
             ii. American Bar Association – accredit law schools, rate judges, CLE programs, journals, deals on credit unions, develop rules
            iii. City, County, and Special Interest Bar Associations – voluntary; continuing education; social group, networking, etc.
2. Sources of Legal Ethics Rules
      a. State Codes of Conduct, Statutes, and Court Rules
      b. American Bar Association Model Code of Professional Responsibility (1969) -
      c. American Bar Association Model Rules of Professional Conduct (1983) – minimum standards, not intended to establish liabilty
      d. American Bar Association Code of Judicial Conduct
      e. Ethics Opinion and Ethics Hot Lines
3. Lawyer Disciplinary Proceedings -
      a. Conduct Subject to Discipline
              i. Violation of disciplinary rules and some statutes; committing a crime that reflects adversely on his or her honesty,
                 trustworthiness, or fitness as attorney; conduct that involves dishonesty, fraud, deceit, or misrepresentation
             ii. In re Mountain (Kan. 1986) – attorney represented couple in adoption proceeding, then at same time rep‘d different couple—
                 gave them the baby that was supposed to go to the first couple, lied to first couple, got lots of money out of second couple for
                 the baby (basically baby brokering). Disbarred for violation of conflict of interest rules, false statement to client, failed to
                 carry out his agreement to represent, made false statements to another attorney, served as baby broker (morally repugnant), and
                 collected a clearly excessive fee from the second couple
      b. How Discipline is Imposed
      c. Types of Discipline – disbarment, suspension, reprimand (either public or private)
      d. Discipline by Federal Courts
4. Hypos –
      a. Client asks you to defend him in an automobile negligence case pending in AZ. When can you represent him?
              i. Pro hac vice – get waived in, or may need to hire local counsel in order to comply with local rules
      b. Lawyer Lawrence has come to you for legal advice; he told you in confidence that he and a group of friends formed a real estate
         investment venture, and entrusted L with a large sum of money, but he diverted it to his own use; they have not yet discovered this.
         He asks you for your legal guidance?
              i. Is he subject to discipline by the state bar? (he is at lest not trustworthy)
                     1. ABA Rule 8.4 – Misconduct – It is professional misconduct for a lawyer to:
                             a. Violate rules of PR
                             b. Commit criminal act that reflects adversely on the lawyer‘s honesty, trustworthiness or fitness as a lawyer
                                  c. Engages in conduct involving dishonesty, fraud, deceit, or misrepresentation
                                  d. Engage in conduct prejudicial to the administration of justice
                                  e. State or imply an ability to influence improperly a government agency or official
                                  f. Knowingly assist a judge in conduct that is a violation of PR
                           2. Cal. Bus. & P. Code
                                  a. 6106 – Moral Turpitude, dishonesty, or corruption irrespective of criminal conviction
                                           i. The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is
                                              committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or
                                              misdemeanor or not, constitutes a cause for disbarment or suspension
                                  b. Other Cal. coverage justifying discipline: drug conviction, conversion, fraud, sexual assault, child pornography,
                                      advocacy of overthrow of government
                  ii. Is there an obligation to report him to the state bar?
                           1. Snitch Rule - Model Rule 8.3(a) – Reporting Prof. Misconduct – a lawyer who knows that another lawyer has
                              committed a violation of the Rules of PR that raises substantial question as to that lawyer‘s honesty, trustworthiness or
                              fitness as a lawyer in other respects, shall inform the appropriate professional authority (this doesn‘t require disclosure
                              of information otherwise protected by Rule 1.6, if you squeal and violate 1.6 you can be disciplined)
                                  a. In re Himmel – there is policy concern that the squeal rule can be used to squeeze more advantageous
                                      settlements from lawyers violating other rules
                           2. California has rejected the squeal rule – California requires each lawyer to squeal on themelves

Chapter 3: Beginning and Ending the Lawyer-Client Relationship
  1. Beginning the Lawyer-Client Relationship
          a. Duty to Take Some Kinds of Cases
                  i. General Rule: Lawyers are Not Public Utilities
                        1. a public utility has a duty to serve anybody who wants service and can pay for it
                        2. a lawyer may reject work for any reason that suits her
                               a. but once you say yes, then Kual relationship, bt also take on all the responsibilities—become fiduciary; even in
                                   formal setting—Ct looks at it from client‘s perspective
                 ii. Exceptions to the Rule
                        1. oath of attorney – promise to uphold the constitution and laws of the state and the US, and to perform the duties of an
                           attorney to the best of your ability
                        2. California‘s oath and CBPC 6068
                               a. Duty of attorney never to reject, for any consideration personal to himself, the cause of the defenseless or the
                               b. Defenseless and oppressed not necessarily about $$$; e.g. Nazi party couldn‘t get any one to rep them; inability
                                   to get representation=defenseless
                        3. CRPC 2-400 – in CA, lawyers may not unlawfully discriminate on the basis of race, national origin, sex, sexual
                           orientation, religion, age, or disability in accepting or terminating the representation of a client
                iii. Pro Bono Publico Service
                    1. ABA Model Rule 6.1 – every lawyer has a professional responsibility to provide legal service to those unable to pay.
                        A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year
                            a. However, this is not mandatory, and in fact the amount of pro bono work at the largest firms is declining
                    2. there is debate about making mandatory, but there is resistance from practicing bar
                            a. ―many poor people can‘t afford a lawyer. That is a problem of society as a whole. It outhgt to be solved by a
                                general tax to support free legal service, not by a confiscatory levy on lawyers only‖
                    3. Model Rule 6.2 – Accepting Appointments
                            a. A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
                                     i. Representation will result in violation of another rule
                                    ii. Representation is likely to result in unreasonable financial burden on lawyer
                                   iii. The client or cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship
                                        or the lawyer‘s ability to represent the client
                            b. Bothwell v. Republic Tobacco (Neb. Dist.) – the court has inherent authority to appoint an attorney to represent
                                an indigent client in civil matters
                            c. Cunningham v. Superior Ct. of Ventura County (Cal. App) – an attorney ordered to represent an indigent
                                defendant in a paternity action without compensation was denied equal protection of the law
                    4. SCOTUS – never directly considered the constitutionality of mandatory pro bono duties
                            a. Mallard v. US Dist. Ct. – court held that 1915(d) does not authorize coercive appointment, but the decision was
                                based on statute not C., thus they left open the possibility that the court possesses inherent power to require
                                lawyer to represent any indigent party w/o compensation
     b. Duty to Reject Some Kind of Cases
             i. ABA Model Rule 1.16 – an attorney must refuse employment (or must withdraw from employment) if the employment would
                require the attorney to violate a disciplinary rule or the law (frivolous claim, harassment, or when lawyer is incompetent to
                represent client)
2. Ending the Lawyer-Client Relationship (CRPC 3-700 – termination of employment)
     a. General Rule: Duty to Follow Through
             i. Krigsman v. Krigsman (NJ, App.) – when a firm accepts a retainer to conduct a legal proceeding, it impliedly agrees to
                prosecute the matter to a conclusion. The firm is not at liberty to abandon the case w/o justification or reasonable cause, or the
                consent of the client
                    1. Rationale: an attorney has certain obligations and duties to a client once representation is undertaken
                            a. obligations do not evaporate because the case becomes more complicated or the work more arduous or the
                                retainer not as profitable as first contemplated
                            b. the profession is a branch of the administration of justice and not a mere money-getting trade
     b. Mandatory Withdrawal
             i. Fired!
                    1. Ruskin v. Rodgers (IL. App.) – held that clients do not have the absolute right to replace attorney at any time with or
                        without cause; rationale – to allow a D to substitute attorneys during the trial (during cross-exam) would have been
                        extremely disruptive to the trial and would have resulted in a significant and prejudicial delay; other factors, the
                        impetus behind the firing was based on emotional whim rather than sound reason
                 ii. Client Not in Good Faith
                iii. Violation of Disciplinary Rule
                         1. ABA Model Rule 1.16 – an attorney must refuse employment (or must withdraw from employment) if the employment
                             would require the attorney to violate a disciplinary rule or the law
                iv. Lawyer’s Mental or Physical Incapacity
         c. Permissive Withdrawal
                  i. Holmes v. YJA Realty Corp (NY App.) (attorney motioned to withdraw) – an attorney‘s withdrawal from employment is
                     permissible where a client ―renders it unreasonably difficult for the lawyer to carry out his employment effectively (ex: where
                     the client repudiates a reasonable fee arrangement there is no obligation on the part of the counsel to finance the litigation or
                     render gratuitous services)
         d. ―Do I Still Get Paid?‖
                  i. Rosenberg v. Levin – held that an attorney employed under a valid K who is discharged w/o cause before the contingency has
                     occurred or before the client‘s matters have concluded can recover only the reasonable value of his services rendered prior to
                     discharge, limited by the maximum contract fee. Policy: preserve the client‘s freedom to discharge and the right of the
                     attorney to reasonable compensation for his services
   3. Frivolous Assignment
         a. ABA Model Rule 3.1 – prohibits an attorney from taking a frivolous legal position
                  i. A position that under the facts, has no basis in existing law and that cannot be supported by a good faith argument for
                     extending, modifying, or reversing the existing law
         b. CBPC §6068 – require lawyers to counsel or maintain such actions, proceedings, or defenses only as appear to him legal or just, and
             not to take legal positions that are in bad faith or that have no sound legal basis
         c. CRPC 3-200 – a member shall not accept employment if the member know or should know that the objective is to assert a position
             w/o probable cause or with the purpose of harassing or maliciously injuring
         d. other limitations – no malicious prosecution (initiation or continuation of the underlying action, which lacks probably cause, with
         e. Rule 11 as well as inherent authority to sanction lawyers
   4. Hypos –
         a. Sheila is asked to represent a large evil logging and paper company, which she abhors, must she accept employment?
                  i. General Rule: attorneys are not a utility no need to take the case
         b. Sheila is asked to represent Nazi party member
                  i. General Rule: attorney is not a utility
                 ii. CBPC 6068: duty of attorney never to reject, for any consideration personal to himself, the cause of the defenseless or the
                     oppressed. It is possible the Nazi is defenseless and oppressed if they cannot get legal representation
         c. What if court appoints Sheila to represent Nazi?
                  i. ABA Model Rule 6.2 Accepting Appointments – a lawyer shall not seek to avoid appointment, except for good cause
         d. Should clients in civil cases have the right to a free attorney
                  i. Who bears the cost of a court appointed attorney even with a statutory fee- the cost is born by the private attorney

Chapter 4: Advertising and Solicitation
1. Historical Summary
      a. Advertising – traditionally, lawyers were to be passive receivers of legal business, not active seekers of it
               1. rationale for ban:
                     1. adverse effect on professionalism – price advertising will bring about the commercialization which will undermine the
                          attorney‘s sense of dignity and self-worth, erode the client‘s trust in attorney
                     2. inherently misleading nature of attorney advertising
                     3. undesirable affect of stirring up litigation (adverse affect on the admin. of justice)
      b. Solicitation
               1. Solicitation v. Advertising: client-getting activity that involves personal contact which is initiated by a lawyer and a specific
                   potential client is called ―solicitation,‖ distinguished from ―advertising,‖ which is general communication with the public at
               2. Solicitation has traditionally been punished more harshly than advertising
                     1. Policy: bar and courts are concerned with the effects of solicitation on those solicited—especially unsophisticated lay
                          people, when under stress and unable to exercise careful, informed judgment about the hiring of a lawyer
      c. The Forces of Change—Antitrust and First Amendment
               1. Members of the bar began to argue that lay people could not select a lawyer intelligently unless they were given more
                   information than the ABA rules allowed
               2. in 1976, US DOJ sued the ABA as a conspiracy in restraint of trade
      d. The Bates Case
               1. the case involved two lawyers who violated AZ‘s ban on lawyer advertising
               2. US Court held that the advertising ban was immune from attack under the Sherman Antitrust Act because the ban had been
                   promulgated by an arm of the state government, the AZ SC. However, Bates holds that the 1st amendment commercial
                   speech doctrine protects attorney advertising that is truthful and not misleading
               3. Court finds that absence of advertising may be seen to reflect the profession‘s failure to reach out and serve the community
               4. Rule: advertising that is false, deceptive, or misleading is subject to restraint
2. Historical Summary, Continued
      a. The Ohralik and Primus Cases—Solicitation
               1. in Ohralik, the Court approved indefinite suspension from law practice for an old-fashion ambulance chaser
                     1. rationale: in person solicitation of fee-paying legal business poses significant dangers for the lay person who gets
                          solicited; the lay person can be subjected to high pressure sales pitch that demands immediate response and gives no
                          time for comparison and reflection
                     2. Held that a state may adopt prophylactic rules that forbid in-person solicitation of fee-generation legal business under
                          circumstances that are likely to produce fraud, undue influence, or similar evils
               2. In re Primus – an ACLU attorney informed Primus that it would supply free legal counsel to the women who had been
                   sterilized by one Dr. Pierce, and the South Carolina publicly reprimanded attorney for solicitation
                     1. US Court distinguished Primus from Ohralik‘s conduct, Primus had not been guilty of ―in-person solicitation for
                          pecuniary gain‖ but had simply conveyed an offer of free legal help by a recognized civil rights group. The motive was
                       2. Civil rights cases establish that the 1stA. protects collective activity undertaken to gain meaningful access to courts and
                            that government can regulate such activity only with narrow specificity
                       3. political speech is more precious than commercial speech
         b. The Adoption of ABA Model Rules (Rule 7.1 to 7.6)
                  1. Rule: a state may regulate advertising that is not misleading if the state can demonstrate that the regulation directly serves a
                     substantial state interest, and that the regulation is no more extensive than is necessary to serve that interest
         c. California Rules on Advertising and Solicitation
                  1. CRPC 1-400
         d. The Peel Case—Claims Specialization
                  1. Model Rule 7.4 allowed the lawyer to tell the public that she practices in a certain field, or that she restricts her practice to a
                     certain field
         e. The Zauderer, Shapero, and Went for It Cases—The Shadow-land Between Advertising and Solicitation
                  1. Zauderer – a lawyer placed a newspaper ad that was aimed at a narrow audience—users of the Dalkon Shield
                       1. a divided court held that Zauderer could not be disciplined simply for placing an ad that concerned a specific legal
                            problem that was designed to lure a narrow group of potential clients
                  2. Shapero – solicitation letters mailed to potential clients whom the lawyer knows faces a specific, present legal problem
                     (foreclosure); Court held that the solicitation letters were more analogous to the targeted newspaper ads in Zauderer than
                     they were to the in-person solicitation in Ohralik
                  3. Florida Bar v. Went For It, Inc (US, 1995) – FL law prohibits attnys sending targeted direct mail solicitations to victims and
                     their relatives for 30 days following an accident or disaster; court held in these circumstances doesn‘t violate 1st amendment,
                     commercial speech gets intermediate scrutiny, and state has strong interest in protecting the public (privacy of victims), this
                     is a time, place, manner restriction, which is ok
   3. Electronic Communication
         a. ABA Model Rule 7.3 – Direct Contact w/ Prospective Clients
                  1. shall not in person or live telephone, or real-time electronic solicit professional employment (when significant motive is for
                     lawyer‘s pecuniary gain), unless the person contacted is a lawyer or has family, close personal, or pas professional
                  2. shall not solicit by written, recorded, or electronic contact or by in-person, phone, real-time if: the prospective client has
                     made it known they don‘t want to be solicited or solicitation involves coercion, duress, or harassment
         b. CRPC 1-400 – views emails and chat rooms as advertisement, solicitation is only in person and live telephone conversations

Chapter 5: Attorney Fees and Fiduciary Duty
  1. Attorney Fees
          a. Setting Fees
                 i. Excessive Fees Factors in Fee Setting
                       1. Robert Wheeler v. Scott – held that attorney fees must be reasonable
                              a. Factors considered: (1) Time and labor required; (2) Novelty or difficulty of issues; (3) the skill requisite to
                                  perform; (4) loss of opportunity for other work; (5) the customary fee; (6) whether the fee is fixed or contingent;
                                  (7) time limitation imposed by the client or circumstance; (8) the amount involved and the results obtained; (9)
                                  Experience, reputation, and ability of the attorney; (10) the undesirability of the case; (11) casual or regular
                                  employment; and (12) award in similar cases
                      2. ABA Model Rule 1.5 – a lawyer shall not collect an unreasonable fee (similar factors as above
                      3. CRPC 4-200 – a lawyer ―shall not charge or collect an illegal or unconscionable fee‖ similar factors as above
                      4. ABA Formal Opinion 93-379 – a lawyer may not charge for more time then actually spent except for rounding up, a
                          lawyer may not charge for overhead expenses, however a lawyer may recoup expenses reasonably incurred in
                          connection with the client‘s matter for services actually performed (ex: photocopying, deliveries, etc.)
                      5. The practice of billing several clients for the same time or work product, since it results in the earning of an
                          unreasonable fee, therefore is contrary to the mandate of the Model Rule 1.5
                      6. Policy: lawyer and client are not in equal positions so can‘t just leave it to K-law
             ii. Contingent Fees
                      1. Rule 1.5(c) – a fee may be contingent on the outcome of the matter except 1.5(d); a contingent agreement shall be in a
                          writing signed by the client and shall state the method by which the fee is to be determined including percentage that
                          shall accrue to the lawyer in the case of settlement, trial, appeal, etc.
                      2. Rule 1.5(d) – a lawyer shall not enter into a contingent fee arrangement (1) in a domestic relations matter, which is
                          contingent on securing a divorce or upon the amount in alimony, or property settlement of divorce, or (2) for
                          representing a defendant in a criminal case
                      3. CBPC 6147 – Contingency Fee Contracts – must be inwriting
                      4. must notify client in writing of any fees outside of contingency agreement regardless of outcome; is 35% too high, not
                          necessarily, may have to go to trial, spend considerable time on case
                      5. most countries don‘t allow contingency agreement – conflict of interest, lawyer not that neutral, emotionally,
                          financially, attached to outcome
      b. Lending Money to Clients
              i. ABA Model Rule 1.8(e) – a lawyer shall not provide financial assistance to a client in connection with pending or
                 contemplated litigation, except that:
                      1. a lawyer may advance court costs and expenses of litigation, the repayment of which is contingent on the outcome
                      2. a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client
                      3. Cannot lend for living expenses
             ii. CRPC 4-210 – differs from ABA – lawyers ARE allowed to advance or loan clients money to cover living expenses during
      c. Splitting Fees With Other Lawyers
              i. Rule 1.5(e) – a division of a fee b/t lawyers who are not in the same firm may be made only if:
                      1. the division is in proportion to the services performed by each lawyer,
                      2. the client agrees to the arrangement, including the share each lawyer will receive, and confirmed in wiring, and
                      3. total fee is reasonable
2. Fiduciary Duties
      a. Commingling
                  i. Rule 1.15 requires attorneys to keep client‘ money and property separate from their own, to maintain adequate records, to
                     notify clients promptly when money or property is received on their behalf, and to deliver promptly any mponey or property
                     that belongs to clients
                 ii. Client Trust Accounts – money belongs to the client, and the attorney must put it into client trust account, must be separate
                     from the attorney‘s account and the law office account, and the attorney must never commingle personal or law office funds
                     with the client‘s trust account
                iii. When a lawyer receives a large sum to be held for a long period, the lawyer should make a specific agreement with the client
                     about how the sum is to be handled; absent a specific agreement, the lawyer should put the sum into a separate, interest-
                     bearing trust account at the bank, the interest belongs to the client
                iv. Where the lawyer receives small sums on behalf of many different clients, the lawyer traditionally lumps these sums together
                     in a single trust account
       b. Safeguarding Property
                  i. Expense advance – regarded as client‘s property (1.16(d))
                 ii. Advance on Attorney Fee – legal fees paid in advance must be put into the client trust account, to be withdrawn by lawyer
                     only as fees are earned
       c. Notifying Clients, Keeping Records, and Paying Promptly
                  i. ABA Formal Opinion 93-379 – a lawyer must disclose to a client the basis on which the client is to be billed for both
                     professional time and any other charges;
                 ii. Rule 1.5(b)
                          1. obligates lawyer to communicate to client the basis or rate of the fee preferably in writing within a reasonable time of
                              commencing representation, and
                          2. sufficient explanation in the statement so that the client may reasonably be expected to understand what fees and other
                              charges the client is actually billed
                iii. Rule 7.1 – prohibits making false or misleading communication about the lawyer or lawyer‘s services, and this includes
                     making false statements about fees
                iv. Arbitration of fee disputes is voluntary for the client but mandatory for the attorney
                 v. Records – 1.15(a) requires an attorney to keep ―complete records‖ of all clients‘ money and property that comes into the
                     attorney‘s possession; for property other than money, the attny should keep a journal that shows that the property is, for whom
                     it is held, when it was received, and when and to whom it was handed over
                vi. Client Security Fund – a source of money that can be used to reimburse hapless clients of dishonest lawyers
                          1. each practicing lawyer in CA pays $35 a year to the fund
3. Criticism of the billable hour model – doesn‘t encourage the lawyer to prepare a project plan or case plan at the outset; doesn‘t enable the
   client to predict how much the service will cost; penalizes efficient, product lawyer and rewards the slow plodder; discourage communication
   b/t client and lawyer;
4. Hypos:
       a. Lawyer hired to collect debt—debtor drops off check and keys to boat—lawyer is wrapped up in trial—puts check and keys in safe til
            trial is over—two weeks later gives to client(should have called, notified client, have secretary call)
                  i. Rule 1.15(d) – atty had FD to take care of property placed in their possession; ―lawyer shall promptly notify the client or third
                     person‖ with an interest in property received by the lawyer; and ―promptly deliver‖ any funds or property the client or third
                     party is entitled to
                 ii. CRPC 4-100(b)(1) – similar rule – a member shall promptly notify client of the receipt of client‘s funds, securities, or other
           b. Attorney reps client—tells client charges $75/hr, which ―may be deducted from proceeds of litigation…‖—client gets judgment of
              $50k, atty fee was $11.5k, check came to atty‘s office, he deposed $38,500 in client‘s account and wrote check to self for $11,500, ok?
                  i. NO – Rule 1.15(e)
                          1. if lawyer is in charge of $ which two or more people (one of whom may be the lawyer) have interest in – must wait
                             until the dispute is resolved; must get signature from client (unless have power of attny); should have deposed whole
                             check; then give client bill—if he approves then write out two checks, one to client on to self
                 ii. CRPC – 4-100(A)(2) – similar rule – if amount is in dispute—disputed portion shall not be withdrawn until dispute is resoved

Chapter 6: Competence, Diligence, and Unauthorized Practice
  1. Professional Discipline for Lack of Competence or Diligence
          a. Taking on Cases You Are Not Competent to Handle
                  i. ABA Model Rule 1.1 and CRPC require a lawyer to represent client competently and to act promptly and diligently in serving
                     a client
                 ii. Does not require possession of expertise at the beginning of representation
          b. Neglecting Cases You Have Taken On
                  i. ABA Model Rule 1.3 – lawyers are obligated to diligent in their client‘s behalf. Diligence requires a persistent pursuit of the
                     client‘s matter
                 ii. Inadequate excuses: illness w/o remedial measures, lawyer‘s personal feelings, ―my paralegal did it,‖ overwork
          c. Contracting Away Liability for Malpractice
                  i. Model Rules 1.8(h) - a lawyer shall not make an agreement prospectively limiting the lawyer‘s liability to a client for
                     malpractice unless the client is independently represented in making the agreement
                 ii. CRPC 3-400 – a member shall not contract with a client prospectively limiting the member‘s liability to the client for the
                     member‘s professional malpractice
          d. Limiting the Scope of the Representation
  2. Liability for Malpractice
          a. Relationship Between Professional Discipline and Liability for Malpractice
                  i. Legal malpractice – the attorney‘s civil liability to a client or other injured person for professional misconduct or negligence
                 ii. Differences b/t discipline and malpractice
                         1. forum: civil court v. disciplinary hearing
                         2. adversary: injured person v. disciplinary authority
                         3. Consequence/goal: compensation v. punishment/protect society
                iii. Violation of rule of statute does not necessarily mean the lawyer is liable for malpractice, although such violations are used as
                     a guide
          b. What Constitutes Legal Malpractice
             i. Theories behind malpractice liability: intentional tort (misuse of funds or misrep.); breach of FD (confidences, safeguarding
                property and money, avoiding conflicts, being honest, following client instruction); breach of K; unintentional tort (negligence)
            ii. Element: (1) duty of care, (2) breach of that duty, (3) actual cause, (4) proximate cause, (5) damages
           iii. To whom does an attorney owe a duty of care?
                    1. owes a duty of care to the client
                            a. restatement §14(1)(b) – a person can become a client simply by asking the attorney for legal help, if the attorney
                                 does not decline to give help, and if the attorney knows or should know that the person will reasonably rely on
                                 the attorney
                    2. Does an attorney owe a duty of care to non-clients? Yes, in 4 situations
                            a. Prospective client; invited reliance; non-client is intended to benefit (will/inheritance situation); and breach of
                                 FD by client
           iv. Standard of Care –
                    1. general practitioner – the skill and knowledge ordinarily possessed by attorneys under similar circumstances
                    2. specialist/or acts in specialized area of law: skill and knowledge possessed by attorneys who practice that specialty
                    3. geographic area: rural held to same standard as urban
            v. Breach of Duty of Care
                    1. attorneys are not liable for mere errors in judgment; however judgment must be well-informed not made in ignorance
                    2. lawyers expected to know the settled principles of law
                    3. attorney will not be second-guessed in a later malpractice case, so long as the tactical decision was based on a well-
                        informed judgment
                    4. breach can be found by failing to conduct a reasonable fact investigation, or failing to find and interview key witnesses,
                        or failing to consult with appropriate experts, or failing to discover pertinent statutes, regs,
           vi. Actual cause – but for the lawyers negligent act (preponderance) or substantial factor analsyisq
          vii. Firm may be vicariously liable for malpractice of an employee or principal of the firm who wsa acting in the ordinary course of
                the firm‘s business, or with actual or apparent authority
     c. Avoiding Liability for Malpractice
             i. Attorney reasonably believed the action was required by a law or legal rule (legal ethics can be a complete defense for client
                abandonment because her client insisted on committing perjury)
            ii. Comparative or contributive negligence
           iii. Following clients instructions
           iv. Assumption of the risk and failure to mitigate damages
            v. Statute of limitations (doesn‘t run until end of lawyer-client relationship, until the lawyer discloses the supposed malpractice,
                and until the alleged malpractice significantly injures the P)
           vi. Malpractice Insurance:
                    1. California requires malpractice insurance if attorney wants to participate in lawyer referral sercice
                    2. ABA and CRPC don‘t require malpractice insuracne
3. Unauthorized Practice and Other Relations with Non-Lawyers
     a. Assisting Unauthorized Practice
              i. Rule 5.5(a) – prohibiting lawyer from practicing law in a jurisdiction in violation of the regulation of the legal profession in
                 that jurisdiction, or assist another in doing so
             ii. CRPC 1-300 – a member shall not aid any person or entity in the unauthorized practice of law
     b. Splitting Fees with Non-Lawyer –
              i. Fees may not be shared with non-lawyers except under the following limited circumstances: lawyer‘s estate, retirement plan
             ii. Policy: thought to compromise the lawyer‘s independence and to inject into the lawyer-client relationship the interests of
                 someone who is not bound by the ethics code
     c. Non-Lawyers in Law Firms
              i. CRPC 1-320 – neither a member or a law firm shall directly or indirectly share legal fees with a person who is not a lawyer,
                 except that: estate of a member of the firm, non-lawyer employees can take part in profit-sharing
     d. Multi-Jurisdictional and Multi-Disciplinary Practice
              i. Rule 5.5 allows a lawyer licensed and in good standing in one jurisdiction to practice, temporarily, in another jurisdiction when
                 the lawyer
                     1. works in association with a lawyer licensed in the hose state;
                     2. represents clients in, or is participating in, an arbitration, ,ediation or other ADR proceeding;
                     3. performs non-home-state practice; and
                     4. provides litigation-related services in a state where the lawyer expects to be admitted
             ii. CA Supreme Court recently adopted recommendations of a multijurisdictional task force, thereby allowing in-house counsel
                 and public interest lawyers not yet admitted to practice in CA to practice on a limited basis without obtaining full admission t
                 the bar
            iii. Multi-disciplinary Practice (one stop shopping)
                     1. authorization of MDPs might permit lawyers, accountants, engineers, and economists to create—and work within—a
                          common organization; MDPs involve noth association and fee sharing b/t lawyers and members of other professions
                     2. ABA Model Rule 5.4 prohibits the creation of MDPs
                              a. (a) prohibits lawyers from sharing fees with non-lawyers
                              b. (b) prohibits the creation of a partnership b/t a lawyer and a non-lawyer if the partnership will engage in the
                                  practice of law
                     3. CRPC 1-310 – a member shall not form a partnership with a person who is not a lawyer if any of the activities the
                          partnership consist of practice law
                     4. CRPC 1-320 – neither a member or a law firm shall directly or indirectly share legal fees with a person who is not a
                          lawyer, except that: estate of a member of the firm, non-lawyer employees can take part in profit-sharing and retirement
                     5. Ancillary operations cause problems because clients may be confused over whether they are a client of the firm or of
                          the ancillary business (finance, lobbying, title insurance, tax, consulting, etc.) – Look to Rule 5.7 comment
4. Hypos
     a. Lawyer in state A hangs out on internet discussing legal issues with whoever, someone from state B posts a Q to anyone who will
         answer describing a claim she may have; lawyer answers without doing any research—tells her she has a claim and she has more than
         a year before the SOL runs; client lulled into inaction waits two month, then files, then finds out SOL ran a month ago
                 i. The lawyer has practiced law in State B without license (giving advice=practicing law); subject to disciplinary actions; civil
                    action for malpractice, and even criminal action in some states. Rule 1.1 requires lawyer to be competent; putting a disclaimer
                    would not help
          b. Attorney committed malpractice against client tells client don‘t worry I will just pay you $2000 more than damages out of pocket
                 i. Rule 1.8(h) – conflict of interest – current client
                        1. a lawyer, to settle a matter such as this must advise client in writing of desirability of seeking outside counsel and give
                            them reasonable opportunity to seek advice of independent counsel
          c. Office manager of firm does legal work as time permits, and she is a knowledgeable person
                 i. Brother and sister wants to keep cost down in real estate transaction. Can manager do work so long as a lawyer checks work?
                        1. NO, lawyer can take the case and assign the work to the knowledgeable nonlawyer and do it on pro bono case. Can‘t
                            have nonlawyer in charge of case no matter how knowledgeable the lawyer is
                        2. Friends of nonlawyer comes to see the law firm because of her. Lawyer can generally be rewarded financially if they
                            bring in business. Nonlawyer cannot share in a fee that goes to the lawyer of the law firm
                        3. retirement plan can include non-lawyer
                        4. Lawyer has professional corporation. All officers must be shareholder. Can nonlaweyr be treasurer of the corp. That
                            is not right, only those that can be officers are lawyers. Policy: keep the profession as independent as possible

Chapter 7: Confidential Information
  1. Comparison of Ethical Duty and Attorney-Client Privilege
          a. Compulsion v. Gossip
                 i. Elements of Privilege
                        1. communication
                        2. attorney and client (or agent and client)
                        3. in confidence
                        4. legal assistance
          b. Sources of Information
                 i. Washington v. Olwell – defense attorney came into possession of knife used to murder (unclear how it came into his possession
                    either from his own investigation or as a result of communication with client);
                        1. Rule: to be protected as privileged communication, information or objects acquired by an attorney must have been
                            communicated or delivered to him by the client, and not merely obtained by the attorney while acting in that capacity
                            for the client (if knife acquired through third party with no attorney-client relationship, then no privilege)
                        2. Attorney-client privilege prevents the attorney from being required to testify against his client
                        3. If the attorney is given such evidence by his client, he should not be able to assert the privilege against self-
                            incrimination which is personal to the client and must be claimed by the client alone
                ii. People v. Meredith – Held that 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; an observation by defense counsel or his
                    investigator, which is the product of a privileged communication, may not be admitted unless the defense by altering or
                    removing physical evidence has precluded the prosecution from making that same observation
                     1. Strategic Choice – the defense decision to remove the evidence is viewed as a tactical choice. If defense counsel
                         leaves the evidence where he discovers it, his observations derived from privileged communication are insulated from
                         revelation. If however, the counsel chooses to remove evidence to examine or test it, the original location and
                         condition of that evidence loses the protection of the privilege
                     2. MR 3.4 – a lawyer shall not unlawfully obstruct another party‘s access to evidence or unlawfully alter, destroy or
                         conceal a document or other material having potential evidentiary value
            iii. Belge – attorney learns of location of bodies by client, attorney finds bodies, and chooses to keep it secret (unlike Meredith)
                 and leaves the bodies undisturbed; the attorney argues the insanity defense, and uses the other murders as evidence of insanity
                 (attorney complied with rules of ethics)
      c. Revelation vs. Use of Information
              i. Holder of privilege is client, but attorney invokes it on behalf of client
      d. Attorney Client Privilege v. Duty of Confidentiality
              i. A-C privilege protects some communications from inquiry in a courtroom; privilege stand as a roadblock
             ii. Duty of confidentiality governs attorney conduct everywhere all the time
            iii. Both encourage a client to be honest with attorney
2. Exceptions to the Ethical Duty
      a. Client Consent or Implied Authority
              i. ABA Model Rule 1.6(a) – it allows a lawyer to reveal a client‘s confidential information if the client has given informed
                 consent, or if the nature of the representation impliedly authorizes the lawyer to reveal the confidential information
             ii. Ex: Client hires attorney to prepare and file an EIR, to do that you will have to tell the gov and public many of your
                 confidential details of the proposed project, and your client realizes that fact (implied authority to reveal those details)
      b. Prevent Future Harm/Mitigate or Rectify Financial Injury
              i. ABA Model Rule 1.6(b)(1)-(3) (permissive) – a lawyer may reveal information relating to the representation of a client to the
                 extent the lawyer reasonably believes necessary:
                     1. to prevent reasonably certain death or substantial bodily harm;
                     2. to prevent client from committing a crime or fraud that is reasonably certain to result in substantial injury to the
                         financial interests or property of another and in furtherance of which the client has used or is using the lawyers services
                     3. to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably
                         certain to result or has resulted from the client‘s commission of a crime or fraud in furtherance which the client has
                         used the lawyer‘s services
      c. Self-Defense
              i. ABA Model Rule 1.6(b)(5) – allows a lawyer to reveal a client‘s confidential information in ―self-defense,‖ for example: to
                 defend against a claim of legal malpractice or ineffective assistance of counsel; to defend against a civil or criminal charge the
                 lawyer was involved in the client‘s wrongdoing; and to obtain relief against a client who has breached a fee agreement
             ii. ABA Model Rule 1.6(b)(4) – allows a lawyer to reveal client‘s confidential information in order to get legal advice about
                 complying with the rules of legal ethics
      d. Court Order or Other Law
              i. ABA Model Rule 1.6(b)(6) – allows a lawyer to disclose a client‘s confidential information where that is necessary to comply
                 with a court order or with some other law
3. California’s Position on Exceptions to Confidentiality
      a. CBPC 6068(e)(1) – duty of attorney to maintain inviolate the confidence, and at every peril to himself or herself to preserve the
          secrets of his client
               i. (2), an attorney may, but is not required to, reveal confidential information if the attorney reasonably believes the disclosure is
                  necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of or substantial bodily harm
                  to an individual
              ii. CAL has no exception for financial harms or mitigation of harms furthered by attorney
      b. CRPC 3-100 – California‘s rule expressly requires that, if possible the lawyer first attempt to dissuade the client from committing the
          crime, or to persuade the client to take some action to attempt to prevent the threatened death or substantial bodily harm
      c. Most stringent confidentiality standard in the country
      d. Only one exception: to prevent a criminal act reasonably believed is likely to result in death or substantial bodily harm
      e. Privilege expires on death of client, and after distribution of estate
4. Hypos
      a. While standing around a PTA meeting, lawyer L gossips with a friend about the reasons L‘s client V wants to divorce her husband.
          Does attorney-client privilege apply? NO, this is a rule of evidence for a courtroom. Does the ethical duty? Yes, always.
      b. Lawyer is defending X in a drunk driving case, through investigation she learns from bartender that she is drinking every night. Does
          A-C privilege protect this information? No, not learned in privacy from client comm. Does ethical duty cover it? Yes, he learned it
          while doing investigation for client
      c. Lawyer learns from client he is going to buy blackacre, Lawyer buys the property in order to sell it to client at profit. Has A-C
          privilege been violated? No, not in a courtroom. Has L violated ethical duty? No, attorney didn‘t disclose the information, but under
          1.8 L (conflict of interest) can‘t use information from client to undermine client
      d. Lawyer buys greenacre which adjoins blackacre, knowing it will triple in value when client builds the shopping center on blackacre.
          Has ethical duty been violated? Technically 1.8 doesn‘t cover this scenario, although it looks unethical
      e. Client tells L he burned down barn to collect insurance money, L refuses to represent him. Client hires new attorney to pursue
          insurance claim. At trial insurance company called L to the witness stand and asked what client said about burning the barn.
               i. A-C privilege applies here (exception would exist if L helped client commit a crime or fraud; here L did not help)
                      1. But under changes to Model 1.6 – lawyer may speak when dealing with substantial harm to other‘s financial interest
              ii. When client left L‘s office, should L have warned the insurance company the fraud plan?
                      1. under Model Rule 1.6, L may be permitted under the substantial financial harm exception
                      2. in CAL no exception except for death and substantial bodily harm
      f. Client charged with murdering girl, and told lawyer where he hid the body as well as two other bodies, what should the lawyer do
               i. CAL, no exception except death and SBH; 1.6 exception here either (you can always try to negotiate for client to tell for a
                  more lenient sentence)
              ii. What if one of the girls is alive, but barely?
                      1. MR, death or SBH is a legitimate reason for the lawyer to tell authorities if they choose
                      2. Model Code, must reveal
      g. Client hires lawyer in a hit and run case, tells lawyer he did it, police not sure who it is. L told her to turn herself in, she chose not to.
          Parents file a Jane Doe suit, and depose the lawyer and ask her about all the people consulted on day of hit and run. Deposition is
          ancillary to court proceeding, so privilege applies as if it was a court proceeding
                   i. Does A-C privilege apply? P is trying to get around privilege, by going after ID of those who came before L that day. If he
                       had to ID he would in essence be giving up the privileged communication
           h. Tax attorney approached by clients, they think they may owe taxes but don‘t want to be know, the client paid the IRS through the
              attorney anonymously, IRS tried to force the attorney‘s to disclose ID. The court protected it as trying to get a privileged comm..
           i. A client comes in and announces he killed a probation officer. You urge him to turn himself in, he refuses, and places a gun on the
              gable. What do you do with the pistol? Obligation to provide it to authorities, you are allowed to investigate it first, but eventually
              you have to hand it over to the police (MR 3.4(a) lawyer cannot unlawfully obstruct access to evidence). Can you tell him to dump it
              in the river? That is probably accessory after the fact

Chapter 8: Candor in Litigation
  1. The Attorney’s Duty of Candor in Litigation
          a. Candor About the Law
                 i. Model Rule 3.3(a)(2) – a lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling
                    jurisdiction know to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel
                ii. CRPC 5-200 – Shall not misquote an authority or cite authority overruled
          b. Candor About the Facts [different approaches]:
                 i. Monroe Approach [completely rejected]: (1)impress upon the client the importance of telling the lawyer truthfully everything
                    that happened; (2) the L should also promise the client to keep what the client says in confidence; (3) if the client insists on
                    testifying and is bent on committing perjury, the lawyer should attempt in every way possible to convince the client not to do
                    it; (4) the lawyer should examine the client in a normal professional manner and should argue the client‘s testimony to the jury
                    in summation to the extent sound tactics justify doing so
                ii. Model Rule 3.3
                         1. (a) – a lawyer shall not knowingly
                                  a. (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law
                                     previously made to the tribunal
                                  b. (3) offer evidence the lawyer knows to be false. If a lawyer, the lawyer‘s client, or a witness called by the
                                     lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take
                                     reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer
                                     evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is
                         2. (b) a lawyer who represents a client in a adjudicative proceeding and who knows that a person intends to engage, is
                             engaging or has engaged in criminal or fraudulent conduct related to the proceeding should take reasonable remedial
                             measures, including, if necessary disclosure to the tribunal
                         3. MR 1.0(f) – knowingly denotes actual knowledge of the fact in question
               iii. Model Code – the narrative approach
               iv. California – People v. Johnson – California has adopted the narrative approach; the attorney calls the defendant to the witness
                    stand but does not engage in the usual Q&A, instead the attorney permits the defendant to testify in a free narrative manner, in
                    closing arguments the attny does not rely on any of the defendant‘s false testimony
          c. The Trilemma: Trust, Confidentiality, and Candor
             i. Horn one: we are told to seek the client‘s trust and to find out everything the client knows about the case
            ii. Horn two: we are told to preserve the client‘s confidential information (except in limited situations)
           iii. Horn three: we are told to act with candor, to refrain from presenting evidence we know is false, and (in some situations) to
                reveal our client‘s fraud
     d. Falsity in Civil Matters
             i. Civil attorneys are held to know more than a criminal attorney
            ii. ABA Formal Opinion 93-376 – the normal duty of confidentiality in Rule 1.6 is explicitly superseded by the obligation of
                candor toward the tribunal in Rule 3.3
                     1. Lawyer must first attempt to persuade the client to rectify the situation, and must ensure fraud is not perpetrated
                     2. If all else fails, direct disclosure to the court may be the only effective remedial measure for client fraud
           iii. in pretrial situation (depositions), the lawyer‘s duty of candor under Rule 3.3 qualifies her duty to keep client confidences
                under 1.6; continued participation by the lawyer in the matter w/o rectification would assist the client in committing fraud in
                violation of Rule 3.3
                     1. step 1: duty of loyalty and confidentiality require the lawyer to explore options short of outright disclosure in order to
                         rectify the situation
                     2. step 2: if efforts to persuade the client to rectify fail, the lawyer must herself act to see that a fraud is not perpetrated on
                         the tribunal (at minimum she must withdraw from the representation, so as to avoid assisting the client‘s fraud in
                         violation of 3.3 and 1.2)
                     3. step 3: direct disclosure under 3.3, to the opposing party or if need be the court, may prove to be the only reasonable
                         remedial measure in the client fraud situations most likely encountered in pretrial proceedings
           iv. Rule 4.1 – Truthfulness in statements to others – in the course of representing a client a lawyer shall not knowingly:
                     1. make a false statement of material fact or law to a third person, or
                     2. fail to disclose a material fact when disclosure is necessary to avoid assiting in criminal or fraudulent act by a client,
                         unless disclosure is prohibited by Rule 1.6
2. Hypos:
     a. L reps D in murder case, finds out D did it, is lying, and all his friends/witnesses are lying, what do you do?
             i. 10 weeks before trial? Tell client what would happen if he were lying – consequences; try to convince him not to lie; if client
                still indicates he‘s going to lie on the stand, try to withdraw [3.3 Candor toward tribunal, withdrawal]
            ii. 10 minutes before trial: ask for recess, talk to client as above; may try to ask for permission to withdraw
                     1. CAL – present testimony in narrative fashion
                     2. ABA MR 3.3, if you know client is going to testify falsely then you must threaten withdrawal and disclosure
           iii. 10 minutes after testimony already been given: talk to client witnesses—try to get them to recant/revise their testimony, if they
                won‘t tell the judge
                     1. MR 3.3 – alibi is material to case, reasonable remedial measures – must reveal perjury to judge even if reveals MR 1.6
                     2. CAL – since client already testified, and there is nothing that mentions remedial measures, only obligation is to not
                         mention alibi in the closing arguments
           iv. find out they lied 6 months after trial is over—you no longer rep the client; obligations evaporated, you‘re off the hook
     b. controlling authority goes against your client, you have to present it and bring it to the attention of the judge
             i. Model rule 3.3(a)(2)
                  ii. Controlling authority – pretty narrow, if a case is close, but slightly different, then no duty
                 iii. ***CAL, no such rule, but under 6068 – duty not to mislead
           c. You rep D, P hasn‘t found a good witness, you find a good one against D, opposing counsel doesn‘t have case w/o this witness not
              duty to tell the other atty, in terms of fact-finding, no ethical duty to bring attn of other atty facts to the caseu

Chapter 9: Fairness in Litigation
  1. The Attorney’s Duty to Be Fair in Litigation
          a. Fairness Toward Jurors (Rule 3.5/CRPC 5-32)
                  i. Before Trial
                        1. Rule 3.5 – Impartiality and Decorum of the Tribunal – A lawyer shall not (a) Seek to influence a judge, juror,
                            prospective juror or other official be means prohibited by law;
                        2. CRPC 5-320(a) – a member shall not communicate directly or indirectly with anyone the member knows to be a
                            member of the venire from which the jury will be selected for trial for that case
                 ii. During Trial
                        1. Matter of Vincenti – lawyer‘s conduct was outrageous; he insulted the judge, he intimidated witnesses, and engaged in
                            bizarre activity; he was suspended for a year.
                        2. MR 3.5(b) – no communication ex parte with judge or juror unless authorized by court order; (d) engage in conduct
                            intended to disrupt the tribunal see Vincenti
                        3. CRPC 5-320(b) – during a trial a member connected with the case shall not communicate directly or indirectly with any
                            juror; (c) even a member not connected with case shall not contact a juror
                iii. After Trial
                        1. Lind v. Medevac – atty Fong sent the juror‘s a letter explaining they need not sign any forms or cooperate with any
                            investigation by the P, basically it persuaded them not to participate with the P in overturning verdict
                        2. MR 3.5(c) – a lawyer shall not communicate with a juror or prospective juror after discharge if
                                a. Communication is prohibited by law or court order
                                b. The juror has made known to the lawyer a desire not to be communicated
                                c. The communication involves misrepresentation, coercion, duress or harassment
                        3. CRPC 5-320 – after discharge of the jury from further consideration of a case with which the member for the State Bar
                            was connected, the member shall not ask questions of or make comments to a member of that jury that are intended to
                            harass or embarrass the juror or to influence the juror‘s actions in future jury service
                        4. Issue: can you interview jurors to find out if they had access to transcript they shouldn‘t have had?
                                a. FRE 606(b) addresses this (evidence of jury misconduct)
                                b. AK supreme court has said that ethical rules should follow rule of evidence, CA has not decided yet
          b. Fairness Toward Witnesses
                  i. Paying Witnesses –
                        1. MR 3.3(b) – a lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a
                            witness that is prohibited by law
              2. Comment 3 – it is not improper to pay a witness‘s expenses or to compensate an expert witness on terms permitted by
                 law; CL rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is
                 improper to pay an expert witness a contingency fee
              3. CRPC 5-310(B) – reasonable expenses, lost time, expert fee ok, but no contingency fee
              4. Issue: let‘s say you pay former employee plane fair, hotel, lost wages, can you pay a fee on top of that of $100 as a
                 witness fee?No, this is a lay witness, only can pay if expert witness
      ii. Preparing Witnesses
              1. Witness Coaching
                      a. Standard Wisdom – a lawyer may discuss the case with the witness before they testify (ethical and legal duty to
                      b. When a lawyer discusses the case with a witness, the lawyer must not try to bend the witness‘ story or put
                         words in the witness‘ mouth
                      c. A lawyer can be disciplined by the bar for counseling or assisting a witness to testify falsely or for knowingly
                         offering testimony that the lawyer knows is false
              2. Suggestions for minimizing witness coaching
                      a. Using recall first, then recognition
                      b. Using neutral questions, and
                      c. Ordering the questions based on the pattern the witness is likely ot have used when originally storing
     iii. Witnesses for the Other Side – 3.4(f) – lawyer will not request a person other than a client to refrain from voluntarily giving
          relevant information to another party (unless family, or no interest adversely affected by refrain)
c. Fairness Toward the Adversary
       i. Communication With Adverse Party
              1. Rule 4.2 – Communication w/Person Represented by Counsel
                      a. A lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be
                         represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is
                         authorized to do so by law or a court order
      ii. Harassment –
              1. Rule 3.1 Meritorious Claims and Contentions – a lawyer shall not assert an issue unless there is a basis in law
              2. Rule 4.4 – Respect for Rights of Third Persons – (a) in representing a client, a lawyer shall not use means that have no
                 substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that
                 violate the legal rights of such a person
              3. CBPC 6068(f) – no member shall advance a fact prejudicial to the honor or reputation of a party or witness unless
                 required; (g) not to encourage either the commencement or the continuance of an action or proceeding from any corrupt
                 motive of passion or interest
     iii. Threats –
              1. ABA it is allowed to threaten: On Ethics and Professional Responsibility Opinion 92-363 (1992) (Attorney may use
                 possibility of presenting criminal charges against opposing party in civil action to gain relief for client, as long as civil
                 and criminal matters are related and attorney does not attempt to influence the criminal process).
              3. CRPC 5-100 – a member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an
                  advantage in a civil suit
     iv. Keeping Promises
      v. Hypos:
              1. docs requested during discovery were delivered with light print so hard to read
                      a. 3.4(a) and (d) – a lawyer shall not obstruct another lawyers access to evidence, lawyer will comply with
                          discovery requests
              2. ABC and Phillip Morris defamation suit – lawyers of ABC alleged that 1M pages produced by PM were printed on
                  dark red paper with squiqgily lines to make it difficult to read and that emitted fumes making it impossible to read
d. Fairness Toward the Court
       i. Ex Parte Contact – 3.5(b) lawyer shall not communicate ex parte with during the proceeding unless authorized to do so by
          law or court order
              1. Hypo – you just find out a new 9th circuit case should govern the case, can you contact the judge directly, if time is of
                  the essence? MR 3.5(b) you cannot communicate with judge during proceeding unless authorized (CRPC 5-300 is the
                  similar) (look to local rules for a provision for post hearing brief, so that opposing counsel know shat communication
                  you are giving court, if there is no provision check with the court clerk to find out how the court or judge wants it
      ii. Civility in the Courtroom – 3.5(d) – lawyer shall not engage in conduct intended to disrupt a tribunal
     iii. Adherence to the Rules – 3.4(c) – a lawyer shall not knowingly disobey an obligation under the rules of a tribunal, except for
          an open refusal based on an assertion that no valid obligation exists
e. Public Comments About Pending Litigation
       i. ABA Canon (1908) generally condemned newspaper publications by lawyers regarding pending or anticipated litigation
          because of the danger they would interfere with a fair trial
      ii. Gentile Case (US) – Gentile made several inflammatory statements accusing a detective of actually stealing the drugs and
          travelers‘ checks and framing Sanders; six months later, a jury acquitted Sanders. The court held that regulation of attorney
          speech is limited, but upheld the ―substantial likelihood of materially prejudicing that proceeding‖ test (struck down NV
          regulation that specified that attorney could make general statements without elaboration) [rule 3.6 and 3.8 was modified
     iii. Model Rule 3.6(a) – a lawyer who is participating in an investigation or litigation shall not make an extrajudicial statement
          that the lawyer should know will be disseminated by means of public communication and will have a substantial likelihood of
          materially prejudicing an adjudicative proceeding
     iv. Model Rule 3.8(f) – Special Responsibilities of a Prosecutor –
              1. imposes an additional responsibility on criminal prosecutors to ―refrain from making extrajudicial comments that have
                  a substantial likelihood of heightening public condemnation of the accused‖
              2. P also must exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons
                  assisting or associated with the P in a criminal case from making an extrajudicial statement that the P would be
                  prohibited from making under Rule 3.6 or this Rule
      v. CRPC 5-120 – same standard as MR 3.6(a)
     f. Special Duties of Prosecutors and Criminal Defense Counsel
              i. Special Duties of the Prosecutor
                    1. Model Rule 3.8(f) – Special Responsibilities of a Prosecutor –
                             a. imposes an additional responsibility on criminal prosecutors to ―refrain from making extrajudicial comments
                                 that have a substantial likelihood of heightening public condemnation of the accused‖
                             b. P also must exercise reasonable care to prevent investigators, law enforcement personnel, employees or other
                                 persons assisting or associated with the P in a criminal case from making an extrajudicial statement that the P
                                 would be prohibited from making under Rule 3.6 or this Rule
                    2. The prosecutor is asked to assume a dual role as a partisan advocate and quasi-judicial officer; ethical restraint:
                             a. Restraint in prosecuting charges without probable cause (3.8(a))
                             b. Protecting the accused‘s right to counsel and other important pretrial rights (3.8(b)(c))
                             c. Disclosing evidence that negates guilt or mitigates the offense or sentence; and (3.8(d))
                             d. Exercising restraint in litigation tactics in and out of court statements
                    3. Due Process Clause requires a prosecutor to disclose evidence that favors the defendant with respect to guilt on the
                         merits, or impeachment of prosecutor witnesses, or punishment for the offense (3.8(d))
                    4. 3.8(e) - not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence unless the P reasonably
                             a. the information sought is not protected from disclosure by any applicable privilege
                             b. the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
                             c. there is no feasible alternative to get information
                    5. Taylor’s Standard for when Prosecutor can commence prosecution:
                             a. (1) prosecutor believes conduct constitutes offense and (2) admission of evidence will probably be sufficient
                    6. Brady v. MD – D was on trial for homicide, and the issue was whether D personally committed the homicide or just
                         participated with the co-Ds; P had a confession from co-D, but didn‘t provide it. Rule: if the evidence had been
                         disclosed to the defense there is reasonable probability the result would be different
             ii. Special Duties of Criminal Defense Attorney
                    1. Model Rule 3.1 – provides an exemption to defense lawyers barring frivolous defenses
                             a. a criminal defense attorney can require the P to put on its case-in-chief even if there is no non-frivolous defense
                                 (presumption defendant is innocent)
2. Hypos:
     a. Several Ds are charged in drug conspiracy, there is good evidence against main conspirator, but against ―B‖ the evidence is limited. P
         believes that B is guilty but has no admissible evidence. Can he prosecute? No, P cannot charge ―B,‖ since there is not evidence that
         is probably sufficient
     b. You rep 12 Ds in race discrimination employment case, which is highly publicized, can you:
              i. Hire a PI to investigate potential jury members? Yes, but per
                    1. MR 3.5 ―can‘t seek to influence juror by means prohibited by las‖ or ―communicate ex parte with such person without
                         authority of law or order‖
                         2. CRPC 5-320(a) – no ex parte contacts, and no out of court investigation of jurors if it will affect state of mind in
                             present or future jury service
           c. During trial you find yourself in elevator with juror
                  i. You cannot communicate with juror (―I am sorry I am not allowed to communicate during proceedings‖)
                 ii. Peterson – the P sat at a diner table with a juror, and there was some communication
                         1. the court held that it was unclear what passed b/t them, but L was reprimanded suspended for a year, and required to
                             take the MPRE again
           d. What if you observe a female juror sitting with a part-time law student paralegal working for the firm reping D
                  i. ABA squeal rule (Model Rule 8.3(a)) – you must report misconduct to the court
                         1. there might be impropriety, better to let the court deal with it
                 ii. CRPC 5-320(g) – duty to bring to attention of judge any juror misconduct

Chapter 10: Bias in (And Out Of) The Courtroom
  1. Types of Bias Lawyers Face
         a. Gender Bias – tends to be disrespectful conduct
                  i. In re Plaza – female attorney represented trustee in bankruptcy case; lawyer representing the debtor was DQ for ―unacceptable
                     gender biased behavior including referring to her as ―Office help‖
         b. Racial and Ethnic Bias
                  i. In Re Charges of Unprofessional Conduct – Prosecutor moved for a court order prohibiting counsel for the D to have a person
                     of color as co-counsel for the sole purpose of playing on emotions of the jury. MN held that not enough to apologize, issues of
                     race bias need to be taken more seriously, lack of malice is no defense
         c. Sexual Orientation Bias
                  i. In re Vincenti – lawyer harassed and intimidated social worker; insinuated social worker was gay (because she used purple
                     paper) and had inappropriately touched the his client; 6 mo. after trial atty sent letter to conference she was attending saying
                     she was a Nazi; atty was disbarred
         d. Other Forms of Bias, Including Sexual Harassment and Bias on the Basis of Disability, Age, or Religion
  2. Settings for Bias
         a. Bias by Lawyers
                  i. In re Vincenti – because bad behavior occurred both inside and out of courtroom the court felt more inclined for steep
                     punishment (disbarment)
                 ii. In re Williams – during depo an adverse atty attacks an attorney with a racial jewish slur, SC of MN upholds reprimand
                         1. what if atty said it after depo in hallway, would that make a difference?
                iii. Koari-Perez – court sanctions both atty based on reference to national origin, it was an ongoing case, so it met the nexus of
                     administration of justice (comm.. was in filing)
                iv. Wunsch – a criminal case in the 9th, gets atty DQ for reping too many clients, atty writes letter stating that men discover truth
                     and law, and women cloud it, Dist. Ct. sanctions atty for sending letter to 9th circ. 9th overturns sanctions. Rationale: didn‘t
                     effect administration of justice, atty already DQ. It was private communication, would it have mattered if it was filed?
                 v. How close does it have to be to the legal profession before it is a violation of 8.4(d)?
                         1. reaches conduct that frustrates the fair balance and interests essential to litigation or fair proceedings
              vi. MR 5.1 – attys are responsible to make sure that lawyers under their supervision comply with rules of thiecs
                      1. partners can have 8.4(d) liability for a lawyer they supervise, they need to have controls to ensure compliance
        b. Bias by Judges
               i. In re Kirby – judge was discourteous to female attorneys, her referred to them as ―lawyerette‖ ―attorney generalette‖ but there
                  was no finding of the comments were designed to injure; he apologized, the court publicly censured him
                      1. 3A(3) CJC: ―a judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and others with
                          whom he deals in his official capacity
                      2. 3B(5) – judge shall not express bias based on race, gender, etc.
              ii. CJC 2C – judges can‘t join organizations that practices insidious discriminate
        c. Bias by Clients
   3. How Can Bias Be Remedied?
        a. Rule for lawyers
               i. MR 8.4(d) – misconduct to engage in behavior that is prejudicial to the administration of justice
                      1. Comment 3: knowingly manifests words, conduct, or prejudice based upon race, sex, religion, national origin,
                          disability, age, sexual orientation, or socioeconomic stats violates 8.4(d)
                      2. A finding that peremptory challenges were exercised on this basis does not alone establish a violation of this rule
              ii. CRPC 2-400 – in a law practice, there shall be no unlawful discrimination based on race, gender, in hiring, promoting or
                  accepting or rejecting representation of client
                      1. in order for discriminatory conduct to be actionable, it must first be found to be unlawful by an appropriate civil
                          administrative or judicial tribunal under applicable state or federal law. Until civil finding of unlawfulness, there is no
                          basis for discline

Chapter: 11: Conflicts of Interest—Lawyers, Clients, and Third Parties
  1. Respective Authority of Attorney and Client
          a. Substantial right require client consent– essential rights affecting merits of the cause (decision to settle or dismiss a cause of action)
          b. Rule: When no substantial right is implicated an attorney must be free to act independently
                  i. Policy: it is essential to the efficient conduct of the client‘s case and the accomplishment of client‘s goals; protects the
                     reputation and preserves the lawyer‘s role as an officer of the court
          c. MR 2.1 – a lawyer shall exercise independent professional judgment and render candid advice (may consider moral, economic, and
             political factors
          d. MR 1.2(a) – the decision to settle or dismiss a cause of action affects a substantial right, and an atty must obtain the client‘s consent
             before taking action, but when no substantial right is implicated, an atty must be free to act
  2. Conflicts Created by Third Party Interference With the Attorney-Client Relationship
          a. Compensation From a Third Party
                  i. MR 1.8(f) – a lawyer shall not accept compensation for representing a client from one other than the client unless:
                         1. the client gives informed consent;
                         2. there is no interference with the lawyer‘s independence of professional judgment or with C-L relationship; and
                         3. information relating to representation of a client is protected as required by Rule 1.6 (except for certain death or SBH)
      ii. ex: organized crime syndicate, and you have an attorney representing a mule but being paid by the organization, the lawyer has
          to represent the mule, and not the mob syndicate
     iii. ex: even if pimp pays for lawyer, lawyer must represent prostitute
b. Independent Legal Judgment
       i. MR Rule 5.4(c) – a lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services
          for another to direct or regulate the lawyer‘s professional judgment in rendering such legal services
              1. this comes up in insurance cases
      ii. MR 2.1 – a lawyer shall exercise independent professional judgment and render candid advice (may consider moral, economic,
          and political factors
c. Who is the ―Client‖?
       i. Insurer-Insured
              1. Rule: when the only issue is liability a lawyer can represent both since there is the same interest, but if the insurer
                  wants to question coverage than the interests diverge and there is a conflict, so there needs to be separate representation
              2. Rule: when there is dual representation a duty of loyalty is owed to both
              3. Rule: once a conflict arises there is no longer an ability for dual representation
              4. where insurer questions coverage, then insurer and insured will have their own counsel
              5. Hypos: entire suit is for a little more than the max coverage of insurance policy. After discovery P‘s lawyer makes an
                  offer to settle for $90k, which is less than the top liability limit of $100,000 and less than the $125k of damages done to
                      a. There is dual representation here, as to the liability the lawyer represents both; L has to go to both clients and
                          see how they feel, have interests started to diverge? You would have to talk to both clients, and if interest
                          diverge enough, then insurance company might have to appoint an independent counselor
      ii. Corporations and Other Entities
              1. MR 1.13 – Organization as Client –
                      a. (a) Lawyer represents the organization itself through the duly authorized constituents
                      b. (b) if the lawyer knows the constituent is acting in violation of a legal obligation or law that is likely to result in
                          substantial injury to the org, then the lawyer shall proceed as is reasonably necessary in the best interest of org.
                          Unless not necessary, this includes reporting to higher authority, and if warranted the highest authority that can
                          act on behalf of org.
                      c. (c) lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such
                          disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to
                          the org.
                      d. (d) if the lawyer is hired to determine or investigate an alleged violation of the law, then paragraph (c) does not
                          apply (can only report information to constituent)
                      e. (e) a lawyer who reasonably believes that he was fired because of actions pursuant to (b) or (c) or withdraws
                          pursuant to ethical requirements under (b) or (c) then he should inform the highest authority of withdrawal or
                      f. (f) when dealing with a constituent, the lawyer should inform them they represent the organization and not the
                          constituent (kind of awkward since the attorney works with constituent daily)
                              g. (g) you can represent both the organization and the constituent if it is consistent with Rule 1.7, if the org gives
                                   consent to the dual representation and consent is given by the constituent
                      2. CRPC 3-600(c) – CA follows the old rule – lawyer is not authorized to make disclosure, if lawyer takes it the highest
                          authority there is and no corrective action is taken, then lawyer should resign
                      3. Rule 1.7, note 34 (conflict of interest) – When the lawyer is on the board of directors – if the lawyer for the corporation
                          is on the board of directors, the interests may diverge, the lawyers first duty is to the corporation, and not just to the
                          board of directors
                      4. Hypo: in corporate setting: L has discovered a corporate liability which the inhouse L believes is a contingent liability
                          that needs to be disclosed for new stock issue. Prez doesn‘t want the new stick issue to be held up, doesn‘t want to
                          make the disclosure, and so relieves the lawyer of her duty, Prez says they will get outside counsel,
                              a. L‘s client is the corporation itself; what to do? If you are convinced it is contingent liability, and you believe
                                   you are right you have to try and convince the prez, and you cant tell him you will go above and talk to the
                              b. Should the lawyer use dilatory actions in the Adverse Pos. suit (Rule 11 sanctions for L, and if you delay in
                                   Adverse possession claim discipline under 3.4(d) diligent effort to move case along)
                              c. What if you uncover illegal brines to union officials to get away with hiring non union employees?
                                       i. Criminal acts are going on here, 1.13 need to go above the prez to the board
3. Conflicts Between the Lawyer’s Interests and the Client’s Interests (Rule 1.7 and 1.8)
      a. Analysis:
               i. First look to General Rule 1.7(a)(2), if you pass this test, then
              ii. Look to specific Rule (ex: 1.8, 3.7, 1.10)
      b. Business Transactions With the Client
               i. General Rule (apply first) – Rule 1.7(a)(2) – a lawyer shall not represent a client if the representation involves … a significant
                  risk that the representation of client will be materially limited by the lawyer‘s … personal interest
                      1. Note 3: law firm needs to setup screening process to ensure that when taking on clients there is no conflict of interest;
                          this is an affirmative duty of the firm, ignorance is not an excuse
              ii. Exception to General Rule 1.7(b) – a lawyer may represent despite conflict of interest, if
                      1. lawyer reasonably believes tht the lawyer will be able to provide competent and diligent representation to each affected
                      2. the representation is not prohibited by law
                      3. the representation does not involve the assertion of a claim by one client against another client represented by the
                          lawyer in the same litigation or other proceeding before a tribunal and
                      4. each affected client gives informed consent in writing
             iii. 1.8(a) – a lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory,
                  security, or other pecuniary interest adverse to client unless:
                      1. unless the terms are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that
                          can be reasonably understood by client, and
                      2. the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of
                          independent legal counsel on the transaction, and
               3. the client gives informed consent, in writing signed by the client, to the essential terms of the transaction and the
                   lawyer‘s role in the transaction, including whether the lawyer is representing the client in the transaction
      iv. Rule 1.7, Note 11 (family) : each client is entitled to know of the existence and implications of the relationship b/t the lawyers
           before th lawyer agrees to undertake representation. Thus a lawyer related to another lawyer (parent, child, sibling, or spouse)
           may not rep a client in a matter where the lawyer is representing another party unless each client gives informed consent
       v. Hypo: L reps W who wants to sell his property he can‘t afford his taxes on, L advises W to put it up for auction
               1. can L have her brother auction on it, and keep it secret from W (undisclosed principle)
                       a. General Rule 1.7(a)(2) – significant risk of personal interest materially limiting her ability to represent W
                       b. Specific Rule 1.8(a) – no business transaction with client unless fair and reasonable terms, signed written
                           consent by client
               2. Can L lend W the money to pay back taxes on the cottage? No, 1.8(a)
c. Adverse Ownership, Possessory, or Security Interest
        i. General Rule 1.7(a)(2) – significant risk that representation will be materially limited by lawyer‘s self-interest (see above)
               1. exception 1.7(b)
       ii. Rule 1.8(a) – a lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory,
           security, or other pecuniary interest adverse to client unless (see above for exceptions
      iii. Rule 1.8(b) – a lawyer shall not use information relating to representation of a client to the disadvantage of the client unless
           the client gives informed consent, except as permitted or required by the rules
      iv. Hypo: J and H are involved in a boundary line suit concerning 12 acres of land. L reps H in the suit
               1. May L purchase from J 30% interest in the 12 acres?
                       a. General Rule 1.7(a)(2) – would interest in the 12 acres create a problem with representing H in the 12 acres?
                           Yes, now you would want the adverse party to win, so you your property interest is valid
                       b. Specific Rule 1.8 – you can‘t acquire an interest adverse to your client
               2. May L purchase from H (own client) 30% interest in 12 acres?
                       a. General Rule 1.7(a)(2) – no material limitation, no adverse interest
                       b. Specific Rule 1.8(i) – an attorney will not acquire an interest in the subject matter of the litigation
               3. May L agree with H to do the legal work in exchange for 30% interest in 12 acres if H wins the suit? (contingency)
                       a. As long as contingency is reasonable this is allowed
                       b. This is different then prior problem where interest is not acquired until after resolution of dispute, if ever
d. Interest in the Subject of the Litigation
        i. General Rule 1.7(a)(2) – significant risk that representation will be materially limited by lawyer‘s self-interest (see above)
               1. exception 1.7(b)
       ii. Specific Rule 1.8(i) – a lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the
           lawyer is conducting for a client, except that the lawyer may:
               1. acquire a lien authorized by law to secure the lawyer‘s fee or expenses; and
               2. contract with a client for a reasonable contingent fee in a civil case
e. Trial Lawyer as Witness
        i. Rule 3.7(a) – a lawyer shall not act as advocate at a trial in which the lawyer is likely to be necessary witness unless:
               1. the testimony relates to an uncontested issue;
                     2. the testimony relates to the nature and value of legal services rendered in the case; or
                     3. DQ of the lawyer would work substantial hardship on the client
             ii. 3.7(b) – a lawyer may act as advocate in a trial in which another lawyer in the lawyer‘s firm is likely to be called a witness
                 unless precluded from doing so by Rule 1.7 or Rule 1.9
            iii. Policy: witnesses testify as to facts, and lawyers argue about facts, so acting as both presenter and arguer there is a conflict of
            iv. Hypo: L represented C in a negotiation which eventually collapsed. Collapse results in litigation, adverse party seeks to DQ L
                 because she will have to be called as a witness in the trial to discuss what was discussed during negotiations
                     1. Should the court grant the DQ? General Rule 1.7(a)(2) – is Annette as a witness materially limiting her ability to rep C?
                          If there is a disagreement over the facts her testimony may disagree with client, then yes. But, if they are in agreement
                          over the facts then there is no limitation on her ability to represent C/
                     2. MR 3.7 – is she a necessary witness? Yes she was one of 4 witnesses, the only issue is the discussion. Hardship for C
                          if she can‘t have L? C really wants L.
                     3. If L is DQ can the firm represent C? MR 1.10(a) imputed firm rule
                               a. No imputed DQ to the firm based on her inability to represent based on 3.7
      f. Gifts and Favors From a Client
              i. Rule 1.8(c) – a lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a
                 client an instrument giving the lawyer or a person related to the lawyer a substantial gift unless the lawyer or other recipient of
                 the gift is related to the client. [Only prohibits soliciting]
             ii. Hypo: L reps C an aged widower. C has asked L to prepare a new will for him
                     1. May L suggest herself as executrix?
                     2. May L accept a picture frame?
                               a. MR 1.7(a)(2) – doesn‘t materially limit ability to rep C
                               b. MR 1.8(c) – may not draft will and solicit substantial gift (frame is not a substantial gift)
                     3. May L accept C‘s valuable townhouse if given to her as a gift? What if left in the will to L?
                               a. May not solicit for it, may not write transfer document for it
                               b. CRPC 4-100 – no undue pressure or influence to make the gift
      g. Romantic Entanglements
              i. Rule 1.8(j) – a lawyer shall not have sex with client unless a consensual sexual relationship existed b/t them when the C-L
                 relationship commneced
      h. Incapacitated Clients
              i. MR 1.14 – Diminished Capacity – general rule – the lawyer is suppose to try to maintain a normal L-C relationship as best as
                     1. if you rep a minor, you should take minors hopes and wishes as best as you can as if they were an adult, if you
                          represent a sick person, you should treat them like they are not
                     2. however, if the client 1.14(b) faces substantial harm and can‘t act, lawyer is allowed to act to protect client, they can
                          consult others that have the ability to take action to protect the client, and in appropriate cases, seek a guardian
             ii. suicide threats – consult those that could help
4. Imputation of Conflicts of Interest (Rule 1.10)
           a. While lawyer is associated in a firm, none of them shall knowingly rep a client when any one of them practicing alone would be
              prohibited by Rule 1.7 or 1.9, unless prohibition is based on a personal interest and does not present a significant risk of materially
              limiting the representation of the client by the remaining lawyers in the firm
           b. When a lawyer has terminated an association with firm, the firm is not prohibited thereafter representing a person with interests
              materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm

Chapter 12: Conflicts of Interest—Conflicts Between Two Clients
  1. Conflicts Between the Interests of Two Clients
         a. Directly Adverse Representation in the Same Matter
                  1. MR 1.7(a)(1) – a lawyer shall not represent a client if the representation involves a concurrent conflict, which includes the
                       representation of one client will be directly adverse to another client; 1.7(a)(2) significant risk that the representation of one
                       or more clients will be materially limited by the lawyer‘s responsibilities to another client
                  2. Exception 1.7(b) – Waiver - a lawyer may represent a client if, reasonably believes will be able to provide competent rep,
                       not prohibited by law, does not involve a claim by one client against another client represented by lawyer in the same lit,
                       each affected client gives informed consent, confirmed in writing
                  3. Ex: buyer seller contract, can‘t represent both at the same time (issue: significant risk of materially limited representation
                       (adverse interest)
                  4. Hypo: REIC hired L to draft a form lease for members to use. Tenant wants to hire L to sue a member of the REIC. May L
                       represent T to sue a member of the REIC
                         1. ID client, was the member of the association really a client?
                         2. if so, is L still representing landlord member of the association?
                         3. lawyer has an interest in upholding his own drafted lease
                                 a. 1.7(a)(2) – materially limited adverse…
                         4. If he no longer reps association
                                 a. 1.9(a) – prohibit L from representing T with adverse position to former client in a substantially related matter
                                 b. there is a waiver position, but even with waiver, there may be material limitation in upholding his own work
         b. Prospective Client-Client
                  1. MR 1.18(c) – you can‘t rep a person with adverse interests with a prospective client in the same or substantially related
                       matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the
                  2. MR 1.18(d) – Waiver –
                         1. both the affected client and the prospective client has given informed consent, confirmed in writing, or
                         2. the lawyer who received info took measures to avoid exposure to more DQ information, and
                                 a. the DQ L is screened, and written notice is promptly given to prospective client
         c. Opposing Present Client in an Unrelated Matter
                  1. Positional Conflict – representing two clients in two separate cases, and you argue opposing positions of law to be zealous
                       advocates to each client; will one decision be precedential in the other case? Would it be detrimental to your client?
                  2. Ex: lawyer reps D against burglary charges, but L also reps grocer store against D for unpaid credit charges. Need consent
                       Rule 1.7
             1. comment 6: concern is duty of loyalty prevents you from representing D in criminal case even though it is totally
                 unrelated, because you represent the store who is adverse to D in civil case, they will feel betrayed and wonder where
                 your loyalties lie
             2. duty of loyalty is a good cause for avoiding court apointment
d. Multiple Clients in the Same Manner (Joint Representation)
        1. General Rule 1.7(a)(2) there is a significant risk that the representation of one or more clients will be materially limited by
           the lawyer‘s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer
        2. Specific Rule 1.8(g) – lawyer who reps two or more clients shall not participate in making an aggregate settlement of the
           claims of or against the clients, unless each client gives informed consent in writing
        3. Policy
             1. Positive: cost effective; both get their chosen attorney; create a unified front
             2. Downside: duty of confidentiality and privilege is smaller, must share info b/t clients; potential that interests will
                 diverge, there may be a DQ, and then the attorney would have to step away from both parties (maybe cost more)
        4. Corporate Setting – MR 1.13(g) –
             1. consent from corporation to represent directors, officers, employees, members, shareholders, etc.
             2. subject to Rule 1.7, consent must be given by appropriate official other than the individual being reped
        5. Hypo: four people in car get hit head on by truck driver—all four have injuries, go together to see L, can L rep all of them?
             1. 1.7(a)(2) – current client conflict rule (material limitation)
             2. they would all be current clients, and they have similar interests, but 3 of them may have adverse interest to drive if he
                 was negligent at all (this divergence of interest would require withdrawal)
e. Former Client’s Confidential Information (―substantially related‖ test)
        1. MR 1.9(c) a lawyer who has formerly reped a C in a matter or whose present or former firm has formerly repd a client in a
           matter shall not thereafter
             1. use information relating to the representation to the disadvantage of the former client except as these Rules would
                 permit or require or when the information becomes generally known
             2. reveal information relating to the rep except as these Rules would permit or require
        2. Rosenfeld Construction Co. Superior Court (CA) – held that attorney cannot rep clients where they previously represented
           the adverse client in substantially related matter
             1. Substantially Related Test – factual similarities, legal similarities, and nature and extent of the attorney‘s involvement
                 with the case (or look to comment 3)
        3. Policy: 1.9 is mostly about protecting former clients‘ confidentiality
f. Opposing Former Client in a Substantially Related Matter
        1. MR 1.9(a) – a lawyer who has formerly reped C in a matter shall not thereafter represent another person in the same or
           substantially related matter in which that person‘s interests are materially adverse to the interests of the former client unless
           the former client gives informed consent confirmed in writing
        2. (b) a lawyer shall not knowingly rep a person in the same or a substantially related matter in which a firm with which the
           lawyer formerly was associated had previously represented client (1) whose interests are materially adverse to that person
           and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter
       3. Hypo: two years ago you represented W in setting up a close corporation for his business and certain personal investments.
           You have not worked for him since then. Mrs. W asked you to represent her in divorce. (former client)
             1. Rule 1.9(a) – two are materially adverse; substantially related matter both involve his property
             2. may be barred from repping for Mrs. W by 1.9(c) – can‘t use his confidential information to his detriment
g. Imputation to Firm
       1. 1.9(b) NEW FIRM - MR 1.10 – if the attorney was privy to the confidential information then it could DQ new firm, unless
           informed consent
       2. MR 1.10 – Old Firm
             1. when a lawyer terminates association with firm, the firm is not prohibited thereafter from repping persons with interests
                 materially adverse to formerly associated lawyer unless the matter is substantially related to that in which the formerly
                 associated lawyer repped the client, and any lawyer remaining has information protected by Rules 1.6 and 1.9(c)
             2. May be waived by 1.7
       3. Goldberg v. Warner/Chappell Music – P had an informal consultation with a partner at the firm 3 years ago, he has since left,
           she is now suing her employer for discrimination, and that employer is being represented by the firm she had consultation
             1. Court held that an attorney‘s presumed possession of confidential information concerning a former client should not
                 automatically cause the attorney‘s former firm to be vicariously DQ where the evidence establishes that no one other
                 than the departed attorney had any dealings with the client or obtained confidential information,
             2. Rationale: firm had no access to that information
       4. Hypo: from 1991 to 1999 L was an attorney at A&B. A&B practices ins. def. work. L worked on numerous matters for
           Wazoo ins. In 1999, L left for Cumis firm where he also did defense work, including matters in which Wazoo insureds
           needed separate counsel because W reserved its rights to contest coverage of the claim. Cumis reps Duke a real estate
           developer being sued for construction defect. A&G represent W and Cumis reps Duke. W has moved to DQ Cumis from
           representation on L‘s former assc with A&G
             1. Should L personally be DQ from representing Duke
                     a. 1.9(a) – are they substantially related matters, if yes DQ
                     b. 1.9(c) – did L gain confidential information from Wazoo that could be used against W, if yes DQ
             2. If L is personally DQ, should the entire Cumis firm by DQ?
                     a. 1.10 – if the lawyer is DQ then the firm is DQ
                     b. neither model rules nor CA have a screening method to inoculate the DQ short of not hiring the L
h. Former Judges and Government Employees
       1. Government to Private Practice
             1. MR 1.11(a)(2) – former government attorney shall not represent a client in connection with a matter in which the
                 lawyer participated personally and substantially as a public officer or employee, unless the appropriate government
                 agency gives informed consent, confirmed in writing, to the representation
             2. MR 1.11(b) – when a lawyer is DQ from rep under (a) no lawyer in the firm with which that lawyer is associated may
                 knowingly undertake or continue representation in such a matter unless
                     a. DQ lawyer is timely screened from any participation and is apportioned no fee
                     b. Written notice is promptly given to the appropriate government agency to enable it to ascertain compliance
                        3. MR 1.11(c) – former gov. employee having information the lawyer know is confidential government information about
                            person acquired as public lawyer, may not represent a private client whose interests are adverse to that person on a
                            matter in which the information could be used to the material disadvantage of that person
                                a. Purpose: protect 3rd party whose confidential information the government has a legitimate reason to possess
                                b. Government cannot waive this
                                c. Firm which lawyer is associated my take representation as long as lawyer is properly screened
                        4. MR 1.11(d) – can‘t negotiate for employment while prosecuting one of that firms clients
                    2. Private Practice to Government Practice
                        1. Must comply with 1.7
                        2. Must comply with 1.9 (confidential information from prior representation)
                                a. Can‘t participate in a matter that he participated personally and substantially
                                b. Except, there is a wavier provision, consent of former client
                        3. No imputed DQ to agency or government
                                a. Policy: can‘t hinder government
                                b. New lawyer will be screened
                    3. Judge to Private Practice
                        1. MR 1.12 – a lawyer shall not represent in any manner in connection with a matter in which the lawyer participated
                            personally and substantially as a judge or neutral, unless all parties give informed consent
                        2. MR 1.12(c) – if a lawyer is DQ by (a), no lawyer in a firm which that lawyer is associated may knowingly undertake or
                            continue to represent in the matter unless
                                a. The DQ is timely screened; written notice is promptly given to the parties and tribunal to enable them to
                                    ascertain compliance
                        3. Cho v. Superior Court (CAL)– held that screening procedure are not suifficient to preserve public trust in the justice
                            system in these circumstances and therefore the firm must be DQ
                                a. Rule: DQ of both individual and his firm is required where the L has been privy to confidences of a litigant
                                    while acting as a neutral mediator
                        4. Hypo: B was an ALJ for the state. B leaves his position and enters private practice. Can B represent a toy company he
                            previously proceeded over in a subststantially related matter but only as a preliminary relief?
                                a. 1.12(a) – test – had the lawyer personally and substantially participated as a judge in a related matter
                                b. What about the firm?
                                        i. 1.12(c) – firm can‘t take the case unless: B is screened, not apportioned of fee; prompt notice

Chapter 13: Lawyers in Law Firms and Specialized Practice Areas
  1. Lawyers as Group Practitioners
         a. The Changing World of Law Practice
                i. New Forms of Legal Practice
                       1. 72% are in private practice; 10% in-house counsel; close to 10% work for gov
               ii. Law Firm Breakups—When Partners Leave
                       1. Rule 1.4 – a lawyer‘s impending departure requires notice to the lawyer‘s current clients
                              a. Notice can be in writing or in person or by telephone
                      2. Client has the right to decide whether to continue the representation with departing lawyer or the firm
                      3. Rule 5.6 limits the use of noncompetition clauses in partnership agreements, and to restrict the use of payments of the
                          departing partners as a means of limiting competition
                      4. ***CAL – is more lenient in allowing such clauses, while NY is mores strict in disapproving them
                      5. Rule 1.17 – Sale of Law Practice
                              a. Can‘t sell client, but can sell entire practice including clients
             iii. Law Firms in Combinations with Non-Lawyer Business
                      1. Rule 5.7 – lawyers are held to the rules of professional conduct even though they are not practicing law when they
                          practicing law related services, unless the lawyer explains to the client that L-C relationship doesn‘t exist
      b. Discipline of Law Firms
               i. Article 5 in the ABA MR deals with law firm issues
              ii. Civil Procedure Rule 11 allows for sanctioning firms
             iii. No state bar has adopted a rule that disciplines firms
             iv. Law firms can be sued civilly and criminally, but as of now law firms cannot be subject to discipline
2. Lawyer as Employee
      a. Respective Duties of Supervising and Subordinate Lawyers
               i. Rule 5.1 – managers of law firm have responsibility to set up policies and procedures to ensure associates are following
                  disciplinary rules, and they can be disciplined for not doing this
                      1. comment 3 – ethical atmosphere of the firm is created by managing partners
              ii. Rule 5.2 – responsibility of subordinate attorney
                      1. they are responsible for their own conduct (no Nuremberg defense, ―I was just following orders‖ won‘t fly)
                      2. (b) but there is some wiggle room; can follow superior‘s reasonable resolution of an arguable question of pro. duty
             iii. Rule 5.4 – professional independence of lawyer
             iv. Rule 5.3 – responsibility of non-lawyer assistance
      b. Lawyer-Employee Rights Upon Termination
               i. General Dynamics v. Superior Ct (right of in-house counsel to sue employer for contract and tort claims)
                      1. in-house counsel can bring ―just cause‖ Kual claim as well as ―retaliatory discharge claim‖ so long as it can be
                          established w/o breaching the A-C privilege or unduly endangering the values lying at the heart of the professional
                      2. In-house counsel may be fired at anytime by the corp and it is not possible for the attorney to seek reinstatement as a
                          remedy, but this does not mean the corp won‘t be liable for Kual or tort damages committed in firing
                      3. Policy: in-house counsel forced to choose b/t demands of employer and the requirements of a professional code of
                          ethics have a powerful claim to judicial protection than their nonprofessional colleagues
                      4. To succeed in retaliatory claim the P must allege
                              a. The conduct which allegedly led to termination was required or supported by any requirement of PR
3. Specialized Lawyer Roles
      a. Lawyer as Advisors
                 i. Rule 2.1 – in representing a C, a L shall exercise independent professional judgment and render candid advice. In rendering
                    advice, a lawyer may refer no only to law but to other considerations such as moral, economic, social and political factors, that
                    may be relevant to the client‘s situation
           b. Lawyer as Evaluators
                 i. Rule 2.3 Evaluation for Use By Third Persons
                       1. (a) a lawyer may provide an evaluation of a matter affecting a client for ht euse of someone e other than the client if the
                            lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer‘s relationship
                            with the client
                       2. (b) when the lawyer knows that the evaluation is likely to affect the client‘s interest materially and adversely, the L
                            shall not provide the evaluation unless the client gives informed consent
                       3. (c) except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation
                            is otherwise protected by Rule 1.6
           c. Lawyers as Arbitrators and Mediators
                 i. Rule 2.4 – lawyer doesn‘t represent either side, and should clarify this with both parties

Chapter 14: Judicial Conduct
  1. Standards of Conduct for Judicial Officers
         a. ABA Model Code of Judicial Conduct
                  i. Model CJC – intended to be a model for the various states to follow in promulgating their own codes conduct for judges
                         1. about 20 states have adopted the code based on the 1990 CJC, another 17 have adopted part of the CJC
                         2. a new version is expected in 2007
                 ii. CA code of Judicial Ethics is based on the 1990 CJC, but it contains many points of difference
                iii. Purpose: fairness to litigants, independence of judges from personal interest, political activities, and independence from outside
         b. How the Standards are Enforced
                  i. Federal judges in Art. III courts hold office ―during good behavior‖ and can be removed from office only by impeachment for
                     ―treason, bribery, or other high crimes and misdemeanors‖
                 ii. In 1980, Congress established a procedure that allows a panel of federal judges to discipline a fellow judge by censure and
                     other sanctions short of removal from office
         c. Integrity, Independence, and Propriety
                  i. McCulloch v. Commission on Judicial Performance (CA, 1989) (removed from office)
                         1. Issue: should Judge be removed from office?
                         2. Claims: he directed a jury to convict a D, used his position to help a friend by overseeing the case for 2 years then
                             dismissing it w/o explanation, violated D right to counsel by ordering proceeding to continue in absence of lawyers,
                             failed to advise misdemeanants of their rights to appeal, failed his duties by not disposing of a case before 6 years
                         3. Rule: Judge can be removed from office for the following reasons:
                                 a. Willful misconduct (must act in bad faith) – when a judge commits (1) acts which he know, or should know, are
                                     beyond his authority (2) for reasons other than the faithful discharge of his duties
                      b. Prejudicial conduct (no requirement of bad faith) – when a judge engages in conduct which adversely affects
                          the public opinion of the judiciary
                      c. Persistent failure – focuses on a judge‘s legal and administrative competence and omissions
                      d. Use of intoxicants and drugs
              4. Policy: Not to punish judges, but to protect the judicial system and those subject to the awesome power judges wield
       ii. Old Canon 1: an independent and honorable judiciary is indispensable
      iii. Old Canon 2: avoid impropriety and appearance of impropriety (appearance of imp. was controversial)
              1. (b) cannot volunteer to testify as a character witness, it would lend prestige of office to his testimony
              2. (c) shall not hold membership in any org that practices invidious discrimination on basis of sex, race, religion or origin
d. Litigation Responsibilities
        i. CJC 3B(4) – requires judges to be patient, dignified, and courteous to litigants, jrors, witnesses, and even lawyers
       ii. Old Canon 3
              1. B(5) – perform duties without bias or prejudice, B(6) require lawyers to do the same
              2. B(7) accord to every person who has a legal interest in a proceeding the right to be heard
                      a. Shall not consider ex parte communication (except where no party will get advantage and they have opportunity
                          to respond)
              3. B(8) be prompt in handling matters
              4. B(9) avoid public comment during proceeding
              5. D(1) and (2) – squeal rule – must report other judges and lawyers for violating PR
e. Disqualification
        i. Perpich v. Cleveland Cliffs
              1. When does a financial interest require DQ of a judge?
                      a. Any judge will DQ himself if any proceeding in which his impartiality might reasonably be questioned
                               i. Standard: only if a reasonable person with knowledge of all the facts would conclude that the judge‘s
                                  impartiality might reasonably be questioned
                              ii. Purpose: avoid the appearance of partiality
                             iii. Not intended to allow judge shopping
                      b. He shall DQ himself in the following circumstances:
                               i. Financial interest in a party to the proceeding that could be substantially affected by the outcome
                              ii. A family member has an interest in the outcome of the proceeding
              2. Issue: whether judge must be DQ or can fit into the exception (f)
              3. (f) DQ is not required if the judge divests himself of herself of the interest that provides the grounds for DQ
       ii. 3E(1) – DQ self where impartiality may be reasonably questioned
              1. (a) personal knowledge of disputed evidentiary facts concerning proceeding
              2. (b) judge served as lawyer in matter in controversy, or a lawyer with whom the judge previously practiced law served
                  during such association as a lawyer concerning the matter, or the judge has been a material witness
              3. (c) knows that he or she has an economic interest or a family member does in the proceeding
f. Administration
        i. 3C(5) can‘t appoint lawyer to compensated position if lawyer contributed $X to judges campaign
     g. Outside Activities
             i. Related to the Law
                    1. shall not hold membership in any org that practices invidious discrimination on basis of sex, race, religion or origin
                    2. 4A – conduct all extra-judicial activities so that they do not
                             a. cast reasonable doubt on the judge‘s capacity to act impartially as judge
                             b. demean the office of the judge
                             c. interfere with the performance of judicial duties
                    3. 4B – avocational activities – map speak write lecture teach subject to PR
                    4. 4C – Government Civic or Charitable activities
                    5. 4D – financial activities – shall not engage in financial and business dealings that:
                             a. may reasonably be perceived to exploit the judges judicial position
                             b. involve the judge in frequent transactions or continuing buseinss
                    6. 4E – Fiduciary activities – can‘t be executor, unless for family; can‘t practice law
            ii. No Related to the Law
     h. Judges and Politics
             i. CJC 5A(3)(1)(d)(ii) – prohibits candidate for judicial office from making ―statements that commit or appear to commit the
                candidate with respect to cases controversies, or issues that are likely to come before the court‖
            ii. Republican Part v. White – regulations on judges speech are held to the strict scrutiny standard
           iii. CJC 5A(1) – restricts political activities of judges and judicial candidates, i.e., cannot campaign on behalf of others
           iv. CJC 5A(1)(c) and (d) – if a sitting judge is not involved in a reelection or retention campaign he cannot make a speech on
                behalf of a political organization or even attend a political gathering
            v. CJC 5V(1) – cannot solicit for funds, but can form committee for that purpose
2. Hypos –
     a. L has a friend – friend decides to run for judge, can you
             i. Work for and contribute money to her campaing?
                    1. yes 5C(2) – judge should not herself solicit funds, committee should be formed; judge shouldn‘t know
                    2. in CAL, each candidate must sign and certify contributions as listed – so have to know
            ii. if she is elected
                    1. may you represent client in her court?
                             a. Yes, but if questions are raised re impartiality; judge must decide what she should do; if judge feels because of
                                 personal bias she can‘t decide the case, she should recuse herself 3E(1)(a)
                    2. Play tennis every Saturday?
                             a. Appearance of impropriety? Would people knowing the facts would a reasonable person question the judges
                                 ability to remain fair (4A)
                    3. Give gift for B-day?
                             a. Yes 4D(5)(d) – gift should be proportional to the relationship
                             b. Small gift probably ok in relation to friendship, although extravagant gifts out of proportion to the nature of the
                                 friendship probably raises some flags
                    4. can she appoint you as master?
                          a. 3C(5) – depends, if appointments are on rotating system, ok, if not then worry about compensation and amount
                               contributed to campaign (if no comp, then probably ok)
b.   Judge D is a state court judge
           i. Asked by former law partner to provide testimony as character witness
                  1. 2(B) – can‘t volunteer to be a character witness
          ii. JD‘s friend asks him to put in a call to a loan officer to put in a good word for him
                  1. 2(B) – can‘t use prestige of office to help friend
        iii. Post-graduate student offers to provide him with results of some just completed pollution experiments
                  1. B(7) – ex parte communication implicated, must give notice, and opportunity to respond
c.   J just appointed to serve as full time judge of appellate court from her job as lawyer
           i. Can she finish a case? No
          ii. Can she serve as an arbitrator? No
        iii. Can she serve on a presidentially appointed special commission on Working Women?
                  1. 4C(2) – can‘t serve if it offers advice on political issues
d.   Judge T is a federal judge his hobby is fly fishing
           i. He belongs to a non-profit conservation group, he has been elected to Board, may he serve?
                  1. it is ok, but if org comes before him, then must DQ
          ii. may he solicit funds from them? 4C(3) can‘t solicit funds from nonprofit
        iii. can he accept a debate about damming river? 4B – allows judges to speak publicly about issues; 3B(9) – can‘t comment on
              pending litigation, no matter where that litigation will be, which might affect the outcome (even if state court)
         iv. may he accept $100 for debate? 4H(1) – he can accept money because $100 is standard
          v. lifelong friend gives him fishing rod valued at $300, may judge accept it? 4E(5) – exception for lifelong friend
         vi. may T serve as executor of friend‘s estate? 4E(1) – exception only for family, so NO
e.   When should J DQ self?
           i. Antitrust trial, claim that judge has been harder on D than P witnesses (86% of rulings have been against the D) Must J DQ?
                  1. it is possibly substantively the D should have lost those motions, so probably won‘t see DQ midtrial on a claim like this
          ii. Judge is sole trustee of a trust fund established to provide scholarships for needy students. It is made up of muni bonds. Can
              judge proceed over case that will affect value of the bonds? Fiduciary 3E(c)