Az Mens Divorce Attorney by zuo33523

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									      Exam: Casebook, Problem book, Supplement, No Arizona Rules of Court or library
      books, Class notes, Handouts, Web materials, Any outline that you contributed to.

8-23-00
                      Chapter 2: Regulation of the Legal Profession

                  Problem 1: Character and Fitness in Admission to the Bar
                               (page 42) – Rules 8.1 and 8.4

I.    Applicant‘s & Attorney‘s Responsibility to Disclose info about Applicants
      A. False Statements prohibited: Rule 8.1: Applicant or Attny can‘t knowingly make a
         false statement of material fact about applicant.
      B. Fail to disclose relevant info
         1. Exception: No need to disclose confidential info (info that falls under M.R. 1.6)
             a. Here duty of confidentiality trumps duty to disclose
             b. Scope of Protected info is broader under the rules than the code.
              a. Fifth Amendment: Rule 8.1 is subject to the provisions of the 5th.
II.   Why have characte r and fitness tests?
      A. Rationales – Professor Deborah Rhode – pages 44- 45.
         1. Shield Clients from potential abuses – misrepresentations, misappropriations of
             funds, betrayal of confidences.
         2. Safeguard the administration of justice from those who might subvert it through
             suborning perjury, misrepresentation, bribery, and the like
         3. Less frequently articulated – Maintenance of professional image in the
             community and public.
      B. Substance of the C&F require ment under Rule 8.1
         1. Character: Notion that certain conduct/activities from a person‘s past will allow
             us to predict how they will act in the future.
         2. Fitness: Person‘s ability to practice. Is the person capable of providing valuable
             legal services?
         3. Arizona’s Rule 36 – 5 relevant traits and 13 types of relevant conduct which are
             evaluated according to 11 relevant factors – very complicated.
         4. ABA Model Rule 8.4 gives insight into generally (not specifically) what
             character and fitness may mean: this rule is for discipline, but may reflect
             admission requirement.
      C. Applied
         1. Cheating on the test – the cheating for Mr. Smith is in the past, but the lying is
             current.
             a. It is dishonest, recent
             b. Zbiegien (admitted plagiarism in law school) is rewarded for candor, Taylor
                  (admitted misleading testimony in shoplifting trial) is punished for his.
             c. If there is any law school involvement, then it must be admitted on the Bar
                  application.
             d. See new matter – Radtke
         2. Marijuana use alone
               a.  Rule 8.4
               b.  Burden of proof on the applicant; disciplinary case, the burden is on the Bar.
               c.  Not recent
               d.  On past conviction for DUI or substance abuse would not alone be able to
                   keep people out, but it would lead to a more thorough investigation.
               e. Matter of Prager (applicant formerly involved in large scale mj smuggling
                   ring, flight from the country; later returned – probation, home for AIDS, Law
                   School – law review, clerkship. Question of sufficient re habilitation and
                   image of the bar. He was deemed not suitable until more time had past.
               f. Girard
          3.   Fiscal responsibility
               a. In re Mustafa – chief justice of a law school‘s moot court team embezzles $2k
                   from the program to pay emergency expenses of sister. He repays and the
                   school support him in applying to bar. Only one year had past since the act;
                   he was denied admission.
               b. In re C.R.W. – default on loans a basis for denial; person goes into
                   bankruptcy, but had not shown that she was current on school loans. Needed
                   to show 6 months of current payments. Denied.
          4.   Crime
               a. Arizona rule 36: served with criminal summons, questioned as part of
                   investigation, etc.
               b. Hamm – There is no legal basis for keeping him out of the Bar automatically,
                   but he can be disqualified after an assessment of the evidence – and this issue
                   is rehabilitation. Are Bar image concerns valid – professor says no.
          5.   Morality offense
               a. Relationship of authority and fiduciary concerns
               b. Adultery v. Abuse – Abuse is taking advantage of the authority relationship or
                   ―position abuse‖ relating to lawyer/client relationships. Adultery apparently is
                   not as serious in the professor‘s mind.
          6.   In re Hale – personal views will affect your work. They made sure that this was a
               civil rights case and that the Supreme Court would hear it.

                                                                               Class date: 8-28-00
III.   Disciplining Lawyers
       a. 4 Basic Duties of the lawyer
          a. Competence – MR 1.1/ Diligence MR 1.3
          b. Communication – MR 1.6
          c. Confidentiality – MR 1.4
          d. Loyalty MR 1.3
       a. Why do we have lawyer discipline instead of allowing tort law to take care of the
          problem?
          a. To protect clients
          b. Those who are there are better able to judge misconduct.
          c. The profession likes to have control over these things. The criticism is that they
               are not sufficiently aggressive. In 1999 in Arizona, 37 people received censure of
               some sort.



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                Problem 2: The Disabled Lawyer and the Problem of Neglect

I.    What things are attorney‘s most often disciplined for?
      A. Incompetence: a lawye r should not take on work that he knows he is incapable
         of doing.
         1. Model Rule 1.1 Competence. ―A lawyer shall provide competent representation
             to a client. Competent representation requires the legal knowledge, skill,
             thoroughness and preparation reasonably necessary for the representation.‖
         2. DR 6-101(A)(1).          ―A lawyer shall not handle a matter ―which he knows or
             should know that he is not competent to handle without associating himself with a
             lawyer who is competent to handle it.‖
      B. Neglect – a lawyer should not take on more work than he knows he can handle.
         1. Rule 1.3: A lawyer shall act with reasonable diligence and promptness in
             representing a client. Comment 2 – delay can cause a client to lose a case (if the
             statute of limitations runs) or to experience anxiety needlessly.
         2. Old ABA: Consistent failure to carry out the obligations; conscious disregard for
             responsibility owed; more than one time – repeated. The old ABA opinion is
             stronger in its language.
         3. Model Rules 1.3 and 1.4 are particularizations of 1.1
         4. In general, ―not knowing what to do‖ is not a disciplined offense.
         5. A lawyer should not use settlement as a solution to decrease his caseload. Some
             cases need to be litigated. The attorney needs to assess his fina ncial concerns:
             sole practitioners with small firms of general practice often experience case
             overload. Administrative difficulties in the small practice: the staff often is not
             able to handle the juggling.

II.   What other kinds of conduct should subject a lawyer to professional discipline?
      A. Any provision of Rule 8.4
      B. Options:
         1. Model Rule 8.4(b): A crime that reflects adversely on the lawyers honesty,
            trustworthiness or fitness as a lawyer...Comment 1- says that the attorney should
            be professionally answerable only for offenses that indicate a lack of those
            characteristics relevant to the practice of law.
         2. DR 1-102(A)(3) ―Crimes of Moral Turpitude‖ – broader; crimes of personal
            morality, such as adultery. The model rules have moved away from that.
         3. Compare MR. 8.4 with Az.Rule51 which states, ―shall be disciplined for serious
            misdemeanors and all felonies. (This included unrelated offenses and uses the
            word shall instead of can.) Notes indicate that Rule 57 particularizes.
         4. The trend seems to be heading toward disciplining lawyers for behavior that is
            related to the profession of law.
      C. Examples.
         1. Horowitz (read page 61 again): driving on drugs and killed two officers.
            Problems: history of extensive drug abuse; killed two police officers. The
            concern about the public image played a role. Under the rules, you would have a
            hard time showing that one DUI is functionally related.
         2. In Re Bloom: assisting in selling explosives to Libya. (page 61).



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          3. People v. Musick: lawyer suspended on the basis of three incidents of physical
             assault on the woman he was living with. Overturning the lower court, the court
             of review determined that the conduct is malum in se and reflected adversely on
             his ability to practice law.
          4. Florida Bar v. Taylor: What about failure to pay child support? Isn‘t that failure
             to follow a court order? Yes, but the court said the failure constituted civil
             contempt but not a criminal act. But Florida Supreme Court has approved a new
             rule 8.4(h) making non-payment of support a specific disciplinable offense. (page
             64).

III.   Proceedings; Self – incrimination; Crossover or criminal and disciplinary proceedings
       A. If Black were to invoke right against self- incrimination in discipline proceedings,
          could that assertion be a basis for discipline as ―prejudicial to the ad ministration of
          justice?‖
          1. No. Spevack v. Klein. But information in criminal proceeding can be used in
              later disciplinary proceedings. In reSchwarz.
          2. In Massachusetts, a lawyer can be disbarred for testimony given under federal
              immunity. In re Pressman.
       B. May a lawyer who has been subjected to professional discipline later be criminally
          prosecuted for the same conduct?
          1. Maybe
              a. It depends on whether the severity of the discipline and whether it would be
                   disproportionate to the behavior to add a criminal penalty.
              b. And, it also depends on the purpose of the discipline.
          2. In Michigan, there is no double jeopardy because the purpose of lawyer discipline
              is to protect the public, the courts and the legal profession, not to punish.
       C. Pardon does not insulate an attorney from disciplinary proceedings because it cannot
          wipe out the fact that false testimony was given. In re Abrams.

IV.    If a lawyer is licensed in two or more states and their disciplinary rules differ, which
       state‘s law should be used to judge a lawyer‘s conduct?
       A. Model Rule 8.5 (b)(2)(ii) – the lawyer should be disciplined in the state where he is
            licensed where his actions have had a predominant effect. If no predominant effect,
            then the ―principle place of practice ‖ gets preference.
       B. Choice of Law: Arizona did not adopt 8.5.

V.     What should be the relevance, if any, of an Harold Black‘s alcoholism in deciding
       whether he should be subject to professional discipline? Should it be a factor in
       mitigation or aggravation? Do such defenses favor those with such problems?
       A. Your answers:
           1. It depends on the purposes of discipline – if it is to protect the public, the courts,
               and the law, then it should be an aggravating factor.
               a. Consider ADA liability (page 68) – Bi-polar/Manic Depression. It did not
                  prevent disbarment because either way the lawyer must be qualified. Florida
                  Bar v. Clement.




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         2. If we are being purely reactive, then we have to wait to see what the effect on the
              public, courts and law is.
      B. Mitigation? Matter of Walker (page 67) alcoholism was the causative factor in the
         lawyer‘s conduct. Lawyer keeps his license.
         a. ―Burn-out syndome‖ Conduct of Loew – does this defense protect clients?
      C. What is normally done in Az. is to place the attorney on disability inactive status.
         Arizona rule 59 and 73. Peer counseling is also used. 6 months and a day as a
         sanction makes it harder to get reinstated than a 6- month sanction, because of some
         jurisdiction‘s brightline rules about the results of a 6- month suspension.

VI.   Do Andrews and Black have a duty to report each other to the lawyer disciplinary
      authorities in their state?
      What is the lawyers duty to report?
      A. Model Rule 8.3 and DR 1-103
          Under the Model rules the attorney must be sure that the offender has committed a
          violation that raises a substantial question as to the offende r’s honesty,
          trustworthiness, or fitness...Other appropriate alternatives to reporting are acceptable
          if available.
           1. The lawyer must have “knowledge.” Many of the disciplinary rules have a
               cognitive aspect – mens rea. See page 7 of supplement for an ambiguous
               definition of terminology.
               a. Knowledge = actual knowledge + what you reasonably should have known.
           2. A violation must raise a substantial question as to the lawyer‘s honesty,
               trustworthiness or fitness as a lawyer – seriousness of the violation. The old code
               required that everything be reported and the result was that no one at all reported.
           3. Confidentiality to the client trumps the duty to report attorney misconduct.
               See conmment and rule 1.6. Today, Himmel would not be able to report because
               of the duty to the client.
           4. Read In re Himmel for practical problems of reporting other attorneys. A lawyer
               may not bargain away a duty to report a lawyer’s disciplinary violation in
               order to get a better settlement for a client.
      B. Judge‘s duty to report – Canon 3D(2) – it is just about the same standard as for them
          as for attorneys. Supplement , page 641-42,


         Problem 3: Regulating Lawyers outside of the Formal Disciplinary System

I.    Overview of the Law of Malpractice
      A. Tort Law as applied to attorneys – most claims contain a tort and a breach of
         fiduciary duty claim. ―Breach of contract‖ claims are less common.
         1. Duty arising with an attorney-client relation; duties to non-clients are limited (see
             problem 21).
             These duties include ―fiduciary duties.‖
         2. Breach of the duty – what is the standard of care?
         3. Causation in fact; proximate causation. ―Suit within a suit‖ – ―no causation
             because the client would have lost anyway.‖ Ironic.



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   4. Damages
   5. Defenses – Comparative Negligence, etc.

    Look at the Mallen & Smith, Legal Malpractice 551, 4th ed.1996.
Arizona Rule

B. Duty
   1. Is X a Client: Lawyer has only a duty to a client
      a. Exceptions: page 88, text
          (1.) Prospective client: liability arises for revealing confidential information or
               for failing to inform the prospective client of the soon-expiring statute of
               limitations.
          (2.) Beneficiaries of a will may hold the attorney liable for not carrying out the
               testator‘s intention.
          (3.) Non-client to whom lawyer expresses an obligation to investigate facts
               and accurately report to non-client, as when investigating a client‘s title
               for the sake of a lender (non-client).
          (4.) Liability may arise when an attorney aids a trustee-like beneficiary to
               breach an obligation to an intended benficiary. RS 3d §73; Fickett v.
               Superior Court; Franco v. Mitchell (No duty to non-client; however, it
               does not clearly overrule Fickett)
          (5.) Lawyers represent mother as ―personal representative‖ in wrongful death
               suit for child‘s father. Child‘s case prevails; lawyer give money to mother
               who misuses the funds.
   2. Basic Duties:
      a. Competence
      b. Confidentiality
      c. Communication
      d. Loyalty
C. Breach
   1 Standard of Care: ―The attorney should be required to exercise the skill and
       knowledge ordinarily possessed by attorneys under similar circumstances.‖
       Mallen & Smith.
   2 ―Adequate information‖
       a. Negligently recommending an inadequate settlement may constitute an action
          for liability.
       b. Although some courts require that the attorney fraudulently induce the client
          to take a settlement in order for client to have a basis for a claim. Muhammed
          (page 83)
       c. The attorney must tell the client of all the consequences of the settlement and
          alternatives – this is the duty of communication.
   3 Relation of Ethics duties to civil liability
      a. Competence (MR 1.1) – Even though it is not necessarily a violation of the
          ethics rules to take a client from outside your area of practice, if you think you
          cannot handle it, turn the client away – no matter what the client says. Or,
          associate with someone who can help you with the case.



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        b. Problem 3 – Tax. Fields admitted to not having the requisite skill. Tell the
            client.
        c. Effect of a violation of an ER on malpractice liability
            (1.) MR‘s states that a violation of the MRs is not a basis for civil liability.
                 (page 6, paragraph 18) But most court consider it relevant because:
                  Standard indicator – shows what a Lawyer should do.
                  Sovereign expression – of public policy
                  But the violation of the rule is not negligence per se. The disciplinary
                     violation and malpractice may not have any relation to each other.
                     Compare to statutory violations in tort law in general.
     4. If an attorney does not refer the case or seek a specialists help, it is his duty to
         have the knowledge and skill possessed and used by specialists in the same
         locality and under the same circumstances.
     5. Criminal Cases: defendants must prove innocence in order to prevail
         a. Courts are concerned about opening the floodgates of litigation from
             unsatisfied clients.
         b. For Criminal matters – you can only sue your attorney if you case was
             overturned. This is to combat the fact that no defendant will be happy with
             their case if they are not completely free at the end of the proceedings.
D.   Causation
     1. Some jurisdictions require only that the lawyer‘s malpractice be a ―substantial
        factor‖ in bringing about the plaintiff‘s loss; or that there need only be a ―causal
        connection‖ between the malpractice and the loss – not that the plaintiff would
        have been successful. Conklin v. Hannoch Weissman; Vahila v. Hall (pages 84-
        85)
E.   Damages
     1. $
     2. Punitives for Gross negligence in some jurisdictions. (page 89)
     3. Suit within a Suit: sometimes the plaintiff in a malpractice case must prove that
        they would have won the original suit and collected damages in the case.
     4. The uncollectability of any damages that the plaintiff would have won in the
        original case is an affirmative defense in a malpractice case when
        defendant/lawyer has the burden. Courts are moving away from this.
F.   Proof:
     1. The disciplinary burden is greater than that of the malpractice tort burden case.
        As far as the tax case is concerned, discipline under the model rules is not likely;
        whereas a tort would be likely.
     2. Expert testimony is almost mandatory. If, however, the malpractice is so obvious
        there is no need for an expert. Normally, the expert is one who practices in a
        certain area. Page 86. Arizona case 77 P.2d 1180.
     3. The Supreme Court rule and a statute are equally binding. The ethical rules set
        out minimal standards and therefore are valid as evidence.
     4. Most jurisdictions allow the plaintiff to use the rules as evidence; as well as a law
        professors. Vidian v. Eliot.
G.   Emerging Issues in malpractice:




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          1. Statutory defenses: Comparative negligence – what to do? Unless the statutes
             specifically exempt lawyers, they are applicable defenses in malpractice cases.
          2. Limited Liability Statutes: Abolishing Vicarious Liability; however, the firm itself
             is liable for actions of the officers.
          3. There is a growing amount of litigation on how to apply the statute of limitations.
       H. Liability Waivers/Exculpatory Clauses
          1. Rule 8.1(h) – releasing the lawyer from liability by agreement in a contract. Two
             requirements: a) permitted by law, b) independently represented. Not a popular
             thing(?) Also, waivers must be permitted by law (ambiguous)
          2. The historic fiduciary relationship underlies the harsh rule that discourages
             exculpatory clauses.

                Chapter 3: Fundamentals of the Lawyer-Client Relationship

                 Problem 4: The Relation of the Lawyer and Client (page 103)

Look at the Restatement Third of the Law Governing Lawyers §26(1) – Look at it like a treatise.
Two new books: Rotunda, The Lawyer‘s Deskbook on Responsibility and McCall, Arizona
Handbook on Ethics

I.     Formation of the Relationship: marks the point when the atty owes duties, upon which
       civil liabilities to client begin. RS §28: Loyalty, Confidentiality, Competence,
       Communication, Diligence.

       A. Hybrid Basis – governed by principles of ordinary K law + principles of agency
          (fiduciaries) + Rule 1.16.
          1. Agency law more influential than K law: Devaux v. American Home Assurance
              Co., (page 105). Agency: communications to the secretary are treated as
              communications to the lawyer. If the secretary is authorized to receive phone
              calls (and she probably is), then there is an agency.
          2. The risk rests on the lawyer, not the client. Togstad v. Vessley (page 105)
              a. Contextual analysis: There is a relationship between the client and the
                  attorney when the client reasonably believes that there is one .
              b. Sophistication: The lawyer is a more knowledgeable person and should bear
                  the duty to make clear whether there is or is not a relationship, unless the
                  client has a sufficiently high level of sophistication.
          3. Solution: use an ―engagement/retainer letter‖ and express clearly to the client that
              there is no relationship until that occurs.
          4. Duties owed prior to acceptance of the client:
              a. Confidential information? The attorney is bound to keep the information
                  confidential. See Ethics 2000 1.18 proposal.
              b. If advice is given, it must be sound
              c. Treat papers and property given to you as would a client‘s.
       B. Obligation: L‘s generally are not obligated to take C‘s case (except on ct
          appointment.)




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II.   Limiting the Scope of Representation

      A. Allocation of Decisional Authority:
         1. Model Rule 1.2
              (a) Objectives/Means – lawyer abides by client’s decision concerning
                  objectives; lawyer decides with consultation of the client the means.
                   Identification of certain decisions. ―Other law‖ – in criminal matters,
                       constitutional law trumps the ethical rules in the allocation of decisions,
                       such as the client‘s ability to testify, etc.
              (b) Representation is not an endorsement of poli, eco, soc, or moral views.
              (c) A lawye r may limit the objectives with clie nt consent after consultation.
              (d) Distinguish between giving counsel as to consequences of action and assisting
                  in commission of crime.
      B. Is it an objective or a means?
         1. Make sure to clarify the client’s objectives.
         2. If the client is giving up a substantive right, then he is giving up an objective.
      C. RS §§ 28, 32, 31-35
      D. Ethics 2000 Proposals abolish the notion of ―means‖ – improvement.
      E. Lawyer’s Duty to Consult & Client’s right to Decide
         1. Cons ultation – to what extent must the L consult b/4 acting?
              a. Rule 1.4 – duty to Communicate
              b. L‘s often don‘t b/c
                   professional arrogance
                   time consuming
              c. Cons ult on anything that affects the client’s rights, pocketbook, business
                  or possible defenses whether means or objectives.
         2. Can L pursue a ―means‖ against a client‘s wishes?
              a. Ultimately, the client has the right to say ―no.‖ The lawyer is the agent to the
                  client, who is the principle.
              b. Frinvolous theories: C cannot require L to pursue a theory that is frivolous
                  (Rule 1.3). However, it is C‘s case and he can lose if he wants to, so if there
                  is a legal basis, the L must pursue the ―losing‖ theory.
      F. Client Autonomy
         1. Underlying Principle: C is seeking advice; L has a duty to inform; but ultimately
              C has the right to reject the advice.
         2. Dilemma: Client with sufficient intellect decides whether to ask for death penalty.
              a. People v. Bloom – trial court allowed to grant motion for self- representation,
                  even though avowed purpose of defendant is to seek the death penalty.
              b. Handout in class: Jami McAlister – moral autonomy. She, following her
                  client‘s instructions, asked for the death penalty. She received a lot of flack
                  from the bar. Who has the right to make decisions about their own life?
      F. Lawyer withdrawal:
         1. Model Rules 1.16 – most interesting provision: (b) ― ...if withdrawal can be
              accomplished without material adverse effect on the interests of the client, or‖ if
              any number circumstances are met as listed in rule 1.16.
         2. RS §44 – A lawyer may withdraw under certain circumstances. See §44(3)


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          3. A client can fire a lawyer at any time. There is no breach of contract in this
             context. Rule 1.16 comment 4; RS § 44.


                      Problem 5: The Duty of Confidentiality (page 112)

I.     Introduction – Overview
       A. This is the most important area of the law of lawye ring.
       B. Duty arises from three sources.
           1. The Law of Evidence – the attorney client privilege
           2. The Law of Agency – the fiduciary duty
           3. The Law of Civil Procedure – the work product immunity.
           4. Constitution
       C. Burgeoning: Internet legal information. Generally, if there is legal advice, then there
           is an attorney-client relationship.

II.    Atty-Client Privilege, Question 1
       A. Policy:
          1. Life is complicated and attorneys are needed.
          2. They must be fully informed by the client and must fully inform the client.
          3. Without the privilege these full and frank discussions would not occur.

       B. Scope: Controversial

       C. The attorney-client privilege is in effect when someone seeks to compel the
          testimony of a lawyer, client, or their agents in the litigation process. It has
          nothing to do with voluntary disclosures outside of that process.

       D. Communications are what are protected, not the underlying facts. They cannot
          ask:
          1. What did you tell your attorney?
          2. What did your attorney tell you?
          3. They can ask: What do you know?

       E. RS (LGL) § 118
          ―Attorney-Client Privilege‖
          Except as otherwise provided in this Restatement, the attorney-client privilege may be
          invoked as provided in §135 with respect to:
          (1) a communication
          (2) made between privileged persons
          (3) in confidence
          (4) for the purpose of obtaining or providing legal assistance for the client.


III.   Work Product, Question 2
       A. Restatement: §136



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         1. Work-product: tangible material or its intangible equivalent in unwritten or oral
             form, other than underlying facts, prepared by a lawyer for litigation then in
             progress or in the reasonable anticipation of future litigation.
         2. ―Opinion work product‖ consists of the opinions or mental impressions of a
             lawyer; all other w/p is ordinary w/p
         3. Unless other law applies, w/p is not subject to discovery or other compelled
             disclosure.
      B. Sometimes the w/p is subject to disclosure if it is impossible or unreasonably difficult
         for the opposition to obtain the evidence needed. Didactions can be helpful here.

IV.   Ethical, Fiduciary Duty of Confidentiality, Question 3
      A. Model Rule 1.6 Overview and Basics – How differ from Atty-Client privilege?
          1. Broad notion – information ―relating to representation‖ is protected (very broad).
          3. [Informed] Consent – let them know that with their consent, you can disclose; and
              what the legal consequences of releasing or protecting the information.
          4. Implied authorization – settlement negotiations, etc. Comments 7,8
          5. [Not mentioned in rule] – ―Other law‖ (constitutions, legislation, court rules) such
              as a court order can trump any confidential ethical duty, attorney-client privilege,
              or work product immunity.
      B. Different than a/c or w/p – Rule 1.6, Comment 5
          1. c/l conf. applies in situations other than those where evidence is sought from the
              lawyer through compulsion of law – voluntary disclosures.
          2. c/l applies not only to communications, but to all information relating to the
              representation, whatever the source.

V.    Loss of privilege or other legal protection, Question 4
      A. If client by mistake or otherwise tells outsiders the substance of your confidential
         conversations with him, the a/c privilege is lost for all time.
      B. If the lawyer voluntarily waives the a/c by a voluntary, non-confidential disclosure,
         he could be subjected to liability. RS §128, 130
      C. Can lawyers ask other lawyers advice on a case?
         1. Rule 1.6, comment 7 implies that this is ok.
         2. ABA Formal Opinion 98-411 gives suggestions as to what the inquiring lawyer
              ought to do; and what the answering lawyer ought to do. See page 118, text.
      D. ―Implied Authorization‖ – those situations where adequate representation requires
         disclosure, such as an indisputable fact in litigation or disclosure necessary for a
         satisfactory settlement in a negotiation. Rule 1.6, comment 7
      E. Inadvertent Disclosure
         1. Three rules re inadvertent disclosure
              a. A/C Never waived: involuntary (inadvertent), therefore no waiver.
              b. A/C Always waived: confidentiality strictly construed/broad notion of waive
              c. A/C Middle Ground: law moves in this direction.
         2. Cell Phones – Illinois recommends that attorney advise clients that if they are on a
              cordless, there is a chance that the privilege may be lost to someone using a radio
              receiver.
         3. E- mail – ABA says that use of email does not violate c/l or a/c.



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          4. Damaging memo misplaced in discovery packet, found by opposing party and
               used. California says that is ok.
          5. Restatement: waiver does not result if the client or other disclosing person took
               precautions reasonable in the circumstances to guard against such disclosure.
               §129.
       F. Explain Advantages and Disadvantages to disclosure: If you think that it important to
          disclose something that the client does not want disclosed, then you need to explain to
          the client why it should be disclosed, what the advantages and disadvantages are, and
          what the legal consequences are.
       G. Example: Process in the ―past‖ abused child:
          Is it protected (voluntary/compelled)?
          Is it information relating to representation?
          Is the conduct for which representation may be necessary in the past or present?
          If past and no statute requires disclosure, then no disclosure.
          If statute, then the language of the statute dictates.
          Not many states have adopted rule 1.6

VI.    Duration, Question 5
       A. The duty of confidentiality continues after the client- lawyer relationship has
          terminated (rule1.6, comment 22), and therefore survives termination of a/c
          relationship.
       B. A/C privilege survives the death of the client. Hitt v. Stephens (nmm); Matter of
          John Doe Grand Jury Investigation (Charles Stewart- murder suspect who dies) and
          State v. Macumber (Murder defendant does not get the benefit of using atty testimony
          which includes privileged information that another person did the murders. (page
          121)
       C. But see, Swindler v. Berlin – posthumous reputation not important.
       D. But Supreme Court came back and said that knowing that a/c does not survive death
          of client, may cause client to not confide.

      Problem 6: More on the Duty of Confidentiality – Organizational Clients (page 127)

I. Atty-Client Privilege for Corporations. There was some belief at one time that
   corporations had no privilege, but now every jurisdiction recognizes the existence of one.
   The Restatement also recognizes one. Special problems result in determining how to apply
   the privilege to corporations/organizations.
   A. Upjohn Case (page 135): (1981) decided the rule for the feds, not states – different
       possibilities.
       1. Control Group – Privilege exists only between the group that controls the
           corporation and the attorney. Rejected because otherwise lawyers cannot ensure
           client‘s compliance with the law fully
       2. Middle/lowe r level employees are protected b/c conversations w/ employees with the
           relevant information that the atty‘s need to get in order to assist the corporation for he
           corporation‘s defense. Therefore communications with any employee needed to carry
           out the functions of representation, with a few restrictions.




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         3. Subject Matter: not followed in Upjohn. If the subject matter is the issue in
            litigation, then it is protected no matter who gives it. (RS § 123 approach)

         Hypo – suppose a corporation clerk, while driving to work one day, sees corporation‘s
         truck hit a person. Under Upjohn, the information is not protected by the corporation‘s
         a/c privilege because this is not a matter within the scope of employme nt. Clerk is an
         outside witness for all intents and purposes. Under RS approach it would be.

      B. Arizona:
         1. Samaritan Foundation v. Goodfarb (page 129) – Facts: small child injured in as a
             result of medical malpractice. There are a bunch of people in the operating room –
             some who are accused of negligence; others who are merely present. Every one signs
             papers saying they have an a/c relationship. The court sees through it and initiates a
             two prong test:
             a. If the employee whose conduct is at issue goes to seek advice, that is protected;
             b. Information gathered from those witnesses whose conduct is not at issue is not
                 protected.
          2. ARS 12-224 – supposedly enacted to overturn Samaritan and embody Upjohn; the
          law here is unclear at this time.

      C. Governments have a privilege -- § 124 of Restatement and most states grant it.
         1. Restrictions:
            a. Deputy White House Counsel belongs to the government and the government
               has no legitimate interest in covering up wrongdoing. Therefore, the a/c
               privilege does not apply unless the government attorney is merely acting as
               intermediary between the president and private counsel Lindsey (page 130)
            b. Hillary Clinton, In re Seal – involved 2 sets of notes following the death of
               Vincent Foster and the missing billing records of her former law firm. Notes
               were not privileged. Obligations to the office and of the special prosecutor law
               precluded privilege.
            c. Consult a private attorney; Whitehouse counsel must disclose. In re Grand Jury
               Subpoena Duces Tecum (page 135)

II.      Crime Fraud Exception to A/C Privilege

      A. The Restatement § 132. Procedure for invoking the exception is laid out in RS §132
         comment f. Interpreted in U.S. v. Richard Roe, Inc.: applies only when the client
         communication was itself in furtherance of the crime or fraud. (page 131)
      B. Crime Fraud exception to the attorney-client privilege. This extends to crimes and frauds
         – this is outside the attorney-client privilege.
      C. The Duty of Confidentiality
         1. Model Code : permissive; divulging all crimes (not fraud) DR §4-104(C)(3).
         2. Model Rules: permissive; restrict it to future crimes of imminent bodily harm or
             death. Rule 1.6. See footnote on p.18 of supplement. The criticism is that the model
             rules are too protective and not every state follows the model rules
         3. See what states follow the model rules on pages 136-137 of supplement.



                                                                                                 13
       4. Arizona Rules handout and compare with Model rules.
          a. Criticisms of Arizona Rules.
              It is mandatory when death or bodily harm is likely; and permissive for other
                 crimes.
              It fails to deal with the most problematic case – financial fraud (swindled
                 investors, etc.). It is still limited to crimes.
              Making things mandatory is wrong – this ought to be the product of
                 professional judgement.
       5. Restatement: Page 499, v.2 and Ethics 2000 (much broader, probably better
          approach) – nothing is mandated, rather it is permissive.
          a. Client Crimes: an attorney may use or disclose information...if necessary to
             prevent reasonably certain death or bodily harm. This applies to any and all
             crimes, not just client crimes. Also, this covers any information relating to any
             conduct, not just crimes.
          b. Ethics 2000 1.6 (b)(1) – follows the Restatement on crimes.
          c. §67 in the updated RS – financial harm. Ethics 2000 again follows the
             Restatement.
          d. Professor Rose does not like the Model Rule; He likes the Kutak (see footnote
             under current M.R. 1.6); He really likes the Restatement and Ethics 2000.
       6. The law in this area is neither uniform nor settled.

9-13-00
                      Problem 7: Setting Legal Fees (page 140) - Paul Eckstein
I.  Why is the money being paid?
    A. Fixed non-refundable fee
    B. Down payment on services to be rendered
    C. Payment for the attorney to be there and ready when needed. Hirschfeld and the
       ―engagement retainer fee.‖ This notion is a perfectly permissible thing to do.
II. Types of Fees and their Common Uses:
    A. Contingency: must be in writing (Rule 1.5(c)); certain percentage based on a damage
        award – many variations.
         1. High risk/reward ration in cases like class actions
         2. Defense contingent fees: ―If I get a damage award below..., by get a percentage.
         3. W/in 40 days of filing, both sides must file a disclosure statement including all people
             who have some knowledge of the case & set out your damage fee.
    B. Hourly rate : encourages thoroughness by the attorney; usually based on what the
        competition is doing. Clients like this, but it is better to base the rate on your level of
        skill in a particular area. Rule 1.5(a) – 8 subcategories.
    C. Hourly rate with a cap – hourly rate up to a certain number of hours, then no further
        charges.
    D. Retainers: client retains someone for a certain amount for a certain amount of time. Very
        common for corporate clients – most common is to retain someone to do a variety of
        matter that they will do for a set fee usually paid monthly. Raises the question of
        whether there can be a fixed retainer, especially in cases where corporations pay
        retainers to keep certain firms and certain lawyers ―on ice.‖ How does this work with the
        prohibition that lawyers‘ fees are to be reasonable? Is it reasonable to pay someone


                                                                                                 14
      $100,000 to do nothing? From the lawyer‘s point of view, the lawyer must keep
      expertise in this area and forego other clients to be available. Az. Hershel: Fixed retainer
      not violative of Rule 1.5 per se – Zlacket. Fixed non-refundable retainers need to be
      looked at very carefully. Whenever you see ―In re (lawyer‘s name)‖ you don‘t want to
      be one of those lawyers.
   E. Flat fee for service: X for a DUI, Bankruptcy, or simple will.
   F. Combination of some or all of A-E
   G. Statutory Fee: 42 U.S.C. §1988 – civil rights – awards attorney‘s fees in cases where the
      plaintiff prevails. In class actions, the court sets the fee.

III. What should be in the fee letter?
      Method of payment
      Estimate of cost to the client
      Notice of potential additional expenses (secretarial overtime, copy costs, transcripts)
      How often the client will be billed.
      Interest rates
      Who will work on the case
      Mediation clause (if things go sour)
      ―Escape hatches‖ – this is our best estimate today, but things may change.
      SCOPE OF REPRESENTATION – set out what the engagement is.
      ―Either party may terminate this agreement...‖
      Retainer in a specific amount.

IV. Setting Legal Fees – Rule 1.5
    (a.) Reasonableness – based on 8 factors.
    (b.) When L has not regularly represented the C. L must communicate the fee, preferably in
         writing, w/in a reasonable time after commencing representation.
    (c.) Contingent fee must be in writing that states the method by which the fee will be
         determined, when expenses will be deducted (b/f or aft fee is calculated). Upon
         conclusion, writing required stating outcome and client‘s remittance and method of
         determination.
       Reasonableness:
       Does the lawyer take a contingency on the net or gross?
       Undecided at this time; but it seems more ethical to take it on the net.
       Is risk to be calcu lated into reasonableness? Yes.

       Two reasons to put contingencies in writ ing:
        Because of the negative view of them
        People taking contingent fees are often less sophisticated and need the greater protection of written
             agreements.
       It is good business to put any payment fee arrangement in writ ing to the client.

   (d.) Prohibitions on contingency fees
        (1.) No contingencies in domestic relations
        (2.) No contingencies in Criminal matters.

       Policies for p rohibition of contingencies:


                                                                                                           15
          1.   Do mestic relations: PP favors marriage. Don‘t want L to have a financial stake in dissolving marriage.
               a. Some allow w/prop settlement b/c marriage already dissolved.
               b. Az ru les 1.5(d) 1993 co mment – permits use in child support cases.
          2.   Criminal Cases: concern that L may be more likely to accept plea bargain, etc.
               a. Criticis m: may just be excuse to get $ up front b/c clients won‘t pay later.
               b. Fee must be refundable to be reasonable.
               DR §2-106 Prohibits contingencies in Criminal cases
          3.   One other examp le of prohibited contingent fees: Fees that are contingent upon successfully passed
               legislation fees. A RS 12-143.

V. How much should the client‘s ability to pay come into play? Two Arizona cases: In re
   Schwartz 686 P.2d and 889 P.2d 20

VI. Is it a good idea to suggest to the client to look at another attorneys to see if the fee is
    reasonable? Note 1 in the comments to rule 1.5. The client must be able to make an
    informed choice. Rule 1.4(b)

       Something of discussion is deleted in Ethics 2000 rules of September.

                    Problem 8: Limits on Techniques for Collecting a Fee (page 152)

I.        No work No pay:

          A. Hypo: Retained attorney refuses to file an answer unless $75k is paid immediately.
             The lawyer cannot threaten withdraw and has most likely violated Rule 1.16 (b)(4).
             But what if there was no agreement? Then the ―reasonableness‖ of the fee (1.5) and
             the warning (1.16(b)(4)) will be assessed.
          B. Two solutions for the attorney
             1. Go to the other side or the court and ask for an extension for the client to give
                 them time to hire another attorney or yourself.
             2. File an answer, then ask the court to let you out.

II.       Non-refundable retainer in case where attorney has done little or no work.
          Reasons justifying:
           Client preclusion: if you take $ from client B, you cannot take client A in the same
             suit.
           Time preclusion:

III.      Taking an interest in the real estate.
          A. Never take a property interest in the cause of the matter or the subject matter of the
             action. This is a violation of Rule 1.8(j). Except the lawyer may:
             1. Acquire a lien to secure the lawyer‘s fee – Security interest is different than
                 property interest.
             2. Contract for a reasonable contingent fee in a civil case.

III.      Trust accounts: Never co-mingle your funds with your client’s funds. Rule 1.15.
          A. Segregation – secure the money by putting it into a trust account set up just for them.
          B. Notification – notify the client upon receiving funds.


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      C. Delivery – pay client what he is entitled to receive.

                   Chapter 4: The Requirement of Loyalty to the Client

              Problem 9: Representing multiple parties dealing with each other

I.    Introduction to Conflicts of Interest
      A. Various categories of Conflicts
          1. Simultaneous Conflict – two current clients
          2. Former Clients – a present client and former client(s)
          3. Personal interest and that of the client
          4. Non-client third person
      B. Code Provisions: MR 1.7 is the basic conflict; MR 1.8 is much for specific; MR 1.9
          former client; MR 1.10 Imputation
      C. Sources of Authority: The Restatement is structure differently and understandable.
          The Ethics 2000 1.7 (On the website is now a new category of the September draft.
          Compare old to new and then to the Model Rules). The comments are very helpful.
      D. Basic Rationale for conflict rules:
          1. Effect on vigorous representation,
          2. Client expectation of loyalty: subjective feeling that client believes that attorney
             will be loyal now and in the future (not sued by his attorney in another case later.
          3. Protect confidences,
          4. Interest legal system in full good faith representation.
      E. Implicate 4 basic ethical duties: Conf, Loyalty, Com, Competence
      F. Costs –
          1. increase conflict, more fighting because of attorney involvement
          2. 2 fees,
          3. Restrict client choice (few experts, etc.)
          4. Autonomy & lawyer freedom.

II.   Apply Model Rules & Restatement, Question 1

      Hypo: Potential for conflict in representing husband and wife in amicable divorce
      1. Differing interests – ―unforeseen bumps‖ (custody and support problems; what if one
         moves; substantial inflation; college; re-marriage)
      2. Confidence problem –
         a. ―common attorney or pooled information exception.‖ Presumption that
             information should be able to be disclosed in husband/wife issues.
         b. In addition there may be situation where what you are required to tell a client to
             get consent requires disclosure.

      A. The General Analytical framework under both the Ethics 2000 1.7 and the
         Restatement §§201-02 (121-22) are basically the same and far superior to the more
         confusing current model rules:
         1. Is there a Conflict of interest either current or potential?




                                                                                                17
                 a. RS 201 (121): ―substantial risk that the L‘s representation would be
                     materially and adversely affected by the L‘s interest, or by L‘s duty to
                     another current or forme r client, or a third person.
                 b. Ethics 2000 7.1(a) and (b): representation of one client will be directly
                     adverse to another cleint; or there is a significant risk that representation will
                     by materially limited by duties to another [existing] client or former client...
            2. If so, then is this a “consentable” conflict?
                 a. RS §202 (2) (122(2)) and Ethics 2000 1.7(b)
                      One not prohibited by law
                      One not involving the assertion of a claim by one client against the other
                         in the same litigation.
                      One where attorney reasonably believes that he can adequately represent
                         both clients; or where it is reasonably likely that he can...
            3. If so, how do you go about getting consent?
                 a. RS §202(a): Informed consent requires that the each client be advised of all
                     material risks of the representation.
                 b. Ethics 2000: ―Informed consent‖ in writing. Advised of all foreseeable
                     adverse effects – comment 10.
            *Note: be aware of RS §§ 209 (128), 210 (129), 211 (130).
       B.   Model Code DR 5-105 (A): Adverse effect or differing interests = conflict;
            consentable if lawyer reasonably believes he can adequately represent both; not
            consentable if not. No specific prohibitions regarding two clients in the same
            litigation or prohibitions of law.
       C.   MR 1.7 (a) & (b): Two kinds of conflicts (this division does not exist in the
            Restatement and barely in ethics 2000.). This provision was written poorly and is
            very unclear.
            1. 1.7(a) – ―direct adversity‖ – is there a direct conflict
            2. 1.7(b) – ―potential adversity‖ – is there potential for conflict with another client or
                 third person.
            3. Under each there is a consentability provision – ―representation will not be
                 adversely affected‖ (nothing specific as in 2000 and the RS).
            4. Client consent: if directly adverse, then client consent. If potentially adverse, the
                 client consent after all risks are explained.
            5. Applied to the Hypo:
                  It might be directly adverse because of laws that may be in effect
                  The potential problems may be so likely that it becomes directly adverse,
                     especially in a divorce case.
       D.   If trouble brakes out in the future, you will have to withdraw from representing either
            one of them. It turns on the likelihood of discord within the context of the emotional
            nature of divorce. Case- law is split in the divorce area regarding dual representation.
       E.   Restatement comments: if it deals with only property, then one attorney can handle it.
            Read the Reporter‘s noted in the Restatement.

III.   Consent & Conflicts, Questions
       A. What conflicts are nonconsentable?



                                                                                                    18
         1. Rule 1.7, Comments on Loyalty. Loyalty to a client prohibits the lawyer from
            undertaking representation that will have an adverse effect on the client. The
            lawyer, therefore should not ask for consent if they believe that the representation
            will be adverse to the any client. This is the non-consentability provision implicit
            in the structure of the rule.
         2. Take this rule, Model Code 5-105, the Restatement, and the Ethics 2000
            (Comments 6-9 on non-consentable conflicts); and understand that all of them are
            basically saying the same thing.

      Application to Hypo:
      Is the problem with the Greens consentable or non-consentable?
      Step 1: Can the atty represent both without adverse; can he ask for consent? If it goes
      into litigation, it has become non-consentable. If the lawyer must disclose confidential
      information to one party, then it is non-consentable. Can the lawyer reasonably believe
      that he can provide adequate representation to each client? No, this is domestic re lations,
      it will get ugly.
      Step 2: If it is not non-consentable, adequately inform the client (this is built into MR
      1.4). Ethics 2000 has a new definition section rule 1.0 – ―informed consent‖ – to make it
      clearer.
       The facts that may lead to problems: litigation could occur; problems in the
           agreement – everything. Other things might go wrong as well.
       Under joint representation, rules of confidentiality change one party can know the
           information the other party gives.
       Also give the benefits (advantages as well as disadvantage).
       Options or alternatives: two attorneys; talk to another attorney (are you ethically
           required to do this?); do it yourself.
       What will happen if a conflict breaks out? The lawyer will not be able to represent
           either.
      This is a difficult conversation to have with the clients because you want for them to trust
      you. The ―parade of horribles‖ – malpractice is always in the back of the lawyer‘s mind.
      Get the consent in writing. It is the best evidence of client understanding and protects the
      attorney‘s self interest. Under Ethics 2000, it is required.
      Frequently, in real life, the controversy involves a situation where no discussion at all
      regarding client consent. At times,
      In re Shannon, a mere mention about the possibility of conflict without more is
      inadequate to meet the demands of ethical behavior.
      Neville, the lawyer must disclose every circumstance and fact that the client needs to
      make an informed decision.

IV.   Other Contexts, Question 3 (page 171)
      A. Corporate Counseling; how do they differ
          Client Identification is more difficult
          Parties may be more aligned in their interests
          Mainly, there will be less conflicts with transactional things by their nature.
         Ethics 2000, Rule 2.2



                                                                                               19
       B. Estate Planning – multiple representation is consentable in the RS §211 under the
          same conditions as under §202
       C. Bankruptcies
          Controversy:
          Whether or not you are adverse depends to some extent on bankruptcy law.
          Comment (C)(2) to RS §209 (128)

V.     Too quick to Find Conflicts, Question 4
VI.    Remedies, Question 5 – Disqualification; Malpractice & Breach of fiduciary duty; fee
       forfeitures.

                         PROBLEM 10 – The Duty of Loyalty (page 176)
These issues usually arise on motions to disqualify. Courts want to get to the problem early to
avoid issues on appeal such as ―Ineffective assistance of Counsel.‖ Federal District courts will
usually adopt the local rules of ethics. This is good for disciplining lawyers, but there discussion
on uniform disqualification rules in the federal system. This does not mean that the law of
disqualification is subversive to this.

Rule from this proble m: adverse representation to a current client in an unrelated matter.
It is a conflict of interest to be adverse to a current client in an unrelated matter.

I. Analytical Framework
   A. Are you potentially or directly adverse; consentable?
   B. Is this an unrelated matter? Even if it is, that is not dispositive. Rule 1.7, comment 8
      says that ordinarily a lawye r may not act as an advocate against a client that the
      lawyer represents in some other matter. However, there are circumstances where will
      be proper such as in large corporations with diverse operations. RS 209 – you may not
      sue a client you represent in another matter. Where the relationship is a continuing
      one, adverse representation is prima facie improper, and the atty must show that at
      the very least, there will be no actual or apparent conflict in loyalties or diminution
      in the vigor of his representation. Cinema 5 Ltd. v. Cinema, Inc. (Conflict when large
      firms have different offices who are representing 2+ clients in litgation.)
      1. Policies: undivided loyalty and zealous/vigorous representation.
      2. This is not a ―Confidences‖ problem because in unrelated matters there is rarely a
           confidential problem.
      3. Cinema 5 – presumption of conflict must be overcome by the attorney.
   C. Is the client an individual or a corporation? (no hard and fast rule)
      1. Image Tech. Svcs v. Eastman Kodak Co: Multi-office/multi-city lawfirm. Facts:
           The law firm had participated in a Supreme Court anti-trust case against Kodak that
           had now been remanded for trial. If was discovered that the Hong Kong office of the
           firm represented a division of Kodak with respect to sales of an unrelated product in
           China. Division managers had orally consented to the representation, but the
           corporate general counsel was not consulted. The court disqualified the firm from
           all furthe r participation in the case b/c (a.) the vigor of rep might be
           undermined, (b) the re is direct adve rsity.
      2. ABA Ethics Opinion 95-390: The attorney must ask whether:



                                                                                                  20
          a. If sub and parent are acting as one corporation.
          b. There has been some agreement to treat the family as one client.
          c. If obligations to parent will limit pursuit of claim against sub.
       3. Class discussion: seems to indicate that there was no real conflict in Kodak, despite
          what the court said.There will probably be no confidence problem. What could we
          learn about the contract matter that would hurt Kodak in the anti-trust matter?
          Nothing, because they are unrelated matter.
              Is there a problem of diminished representation? Only Image technical
               services has worries, not Kodak

              This is a pure loyalty problem.

              Is this a consentable or non-consentable conflict? Who do you get consent
               from? General counsel or vice president for legal affairs in some cases.
               Figure out who is authorized. Loyalty conflicts are more likely to be
               consentable then confidentiality conflicts. Cases like IBM (page 78) and Int‘l
               Bolts should be consentable. Absolute rule? Lawyer rep of lawyers — ABA
               Op 96-406, diff egs; Flatt

   D. Curre nt client – not adverse on unrelated proble m; Former client – not adverse
      on related proble ms. Cure: terminate one relationship. Many will not want to do
      this because they want continued business. See IBM. Representing corporations
      within corporations, etc. See ABA Opinion on page 180 – no hard and fast rule.
      Conflicts can develop as a result of corporate or law firm mergers. The law firm has
      to drop one of the clients.

   E. Core Question = Client’s subjective perception
II. Client Identification, Question 2 – Former v. Current Clients. The burden is on the attorney to
prove that the relationship with a client is terminated.
   A. Inactive client is NOT necessarily a former client. If there is a continuing
      relationship, the client is current for purposes of the conflicts rules. IBM v Levin:
      Law Firm had and on-going atty-client relationship & then firm represented a client
      against IBM. Rule: although the firm had no specific assignment from IBM on
      the day that it filed the suit against IBM, and even though the firm pe rformed
      services for IBM on a fee for services basis rather than purs uant to a retainer
      arrange ment, the patterns of repeated retainers, both before and after the filing
      of the suit, supports a finding of a continuous relationship. Disqualified.

   B. If the client subjectively thinks there is a current relationship, there is one.
      When there is a repeated pattern of representation from time to time, the
      representation is assumed to be continuous until there is explicit te rmination of the
      relationship.

   C. There is no prohibition on taking a case that is adverse to a forme r client. The
      problem is in establishing the ―former‖ status of the client.




                                                                                                  21
     D. Simultaneously representing clients whose interests are generally adverse
        requires the attorney to overcome model rule 1.7.

     E. Simultaneously representing a trade association and its members . Generally, a
        firm can represent a trade association and at the same time, sue some of its members.
        However, where the firm in representing the association, receives confidential info
        from some of the members, those individuals become the firm‘s client and the firm
        cannot sue the. Westinghouse (page 181).

     F. Hot Potato Rule : Where a conflict develops between two current clients, you may
        not eliminate the conflict by choosing to represent the more favored client and
        withdrawing from representing the other one. Picker (page 182) requires withdrawal
        altogether, unless consent is obtained from all the parties to represent the favored
        firm. Strategem Dev. Corp said that a firm could not drop a subsidiary in order to file
        an unrelated claim against the parent corporation. However, some jurisdictions allow
        firms to choose one client over the other if there is an ―inadvertent conflict‖ if there is
        no adverse effect. Pennwalt Corp.

        ―Advance Waiver‖ – RS § 202(122) – depends on the sophistication of the client and
        opportunity to get independent legal advice. Worldspan (page 185) In most cases,
        under independent legal counsel, the advance waiver will be valid, but courts are
        cautious.

     G. Positional Conflict: Where two separate clients have antagonistic positions on a
        single legal question that has arisen in different cases, the lawyer may represent
        both parties unless representations of either client would be adve rsely affected.
        This is no problem for two trials, but what about a trial and an appeal? You want to
        free lawyers from not being able to represent adverse positions in unrelated matters.

                 Problem 11: Conflict of Interest in Criminal Litigation (page 194)

I.   Ordinarily a lawyer should decline to represent co-defendants. Potential for problems so
     high that normally this is a non-consentable conflict.

II. Problems that arise in representing co-defendants
     A. Strategy – shifting culpability from one onto the other
     B. Evidence – There may be evidence that hurts one and benefits the other
     C. Closing arguments – your ability to point to other possible suspects is limited.
     D. Handling witnesses – Aggressive cross may benefit one and hurt the other. Gotti: gov‘t
        successful in motion to have atty disqualified b/c they were going to call him as a
        possible witness & gov‘t was calling a witness that was an associate of Gotti‘s and was
        represented by the same atty Gotti wanted.
     E. Plea bargain – may be conditioned on one testifying against the other.
III.   Confidentiality is a major problem since there is not privilege between co-clients. Any
       breakdown in the relationship among the three, may result in voluntary disclosures that
       waive the a/c privilege. This must be explained in gaining consent.




                                                                                                      22
IV.      Withdrawal: if confidential information is shared and then a conflict arises, the atty must
         withdraw completely.
V.       Consentable with informed consent: Constitutional problems: could give rise to a later
         claim of Ineffective Assistance of Counsel.
VI.      Dealing with unrepresented persons: Rule 4.3 – an unrepresented person may assume
         that a lawyer is a disinterested party even when the lawyer represents a client. During the
         course of representing a client, a lawyer should not give legal advice to an unrepresented
         person other than the advice to obtain counsel. Comment.
VII.     Corporate Attys: Rule 1.13. The corporate attorney must be clear in dealing with
         employees of the corporation that they represent the corporation on not the employee.
         Explain to the employee: I represent the company and not you: Miranda in civil case.
         Anything you tell me, I will tell the corporation.
         A. Samaritan case employee/corporation. Employees did not need a lawyer; they were
             not the defendants. Yet, the paralegal had the employees sign on as clients. This is
             clearly impermissible.
         B. Perez: Truck drive injures people on a school bus. Lawyers from the company went
             to visit truck driver in hospital. They should have explained that they were working
             for the corporation. He thought they were working for him as well as the corporation.
             Later the information was used in a manslaughter conviction.
VIII.    Prosecutor Conflicts
         A. Atty representing party in a civil suit cannot be appointed special prosecutor for
             the criminal aspect of the same matter. Vuitton (page 202): Civil attorney for
             Vuitton wanted for court to appoint him special prosecutor in criminal contempt
             against the defendant who was violating the trademark infringement injunction. The
             court did so and it resulted in conviction. On appeal it was overturned because of
             ―actual conflict.‖
         B. Greer (page 201) – in criminal cases, the courts tend to be fairly tough, requiring
             disqualification of the entire office. But in this case they allowed prosecutor‘s office
             to take a case in which the victim‘s mother, who was going to be a witness also
             worked in the pros‘s office. Victim stood to gain custody of children if D was
             convicted.
         C. Lewis (page 201). D=auditor-controller of county going into bankruptcy, which
             results in financial disaster at prosecutor‘s office. Prosecutor took case personally
             and even called a county supervisor to tell him not to vote to pay for defendant‘s
             defense. Prosecutor‘s office disqualified.
         D. Eubanks (page 202): Corporations may not pay investigative fees of prosecutor’s
             office to obtain information to prosecute competitor.
XI.      Regarding Model Rule 2.2: Ethics 2000 has recommended that it be deleted because 1.7
         covers it.

 Problem 12: Conflicts Between Client Interests and the Lawyer‘s Personal Interest (page 204)

I. Stock instead of cash for fee, Question 1

      A. Lawyers may receive Stock as fee, but must heed rules on Conflicts and Fees




                                                                                                  23
     1. Venture Law Group – is it a law firm or a start up company? Highly lucrative firm
        where instead of taking cash they take stock as their fees. Their employees
        supposedly work less.
     2. Articlea: Who Wants to Be a Millionaire
        a. Risky for firms to take stock, because payment dependent upon success of client.
        b. Lawyer who owns stock or sits on the board of directors may be sacrificing
             objectivity and independence. The more companies you are tied to, the more
             suspect your independence.
        c. Loyalty
              some firms invest as a show of loyalty
              some client demand that the firm invest as a show of loyalty
B.   Two ways attorneys get stock in their clients:
     1. Invest – No 1.5 problems
     2. In lieu of a fee
C.   Rules implicated
      MR 1.8 (a) – Business Transactions with a Lawyer (Go back to problem 7, Hawk
        case and implication of 1.8(j)) – the lawyer is not to acquire a proprietary interest in
        the cause of action or the subject matter.
      But MR 1.5 is more on point ―reasonable‖
      MR 1.7 – avoid conflict.
D.   Business transactions with a lawyer
     1. potential harms business transactions with lawyer – impact on detached independent
        advice, overreaching, confidential info, drafting documents;
     2. Mershon case – defendant‘s burden is pretty heavy; the attorney must show that by
        active diligence, the client/business partner was fully informed of atty‘s interests and
        rights and interests; and that the client has either counsel or the same level of
        disclosure that he would have if he did have counsel.
     3. Rule 8.1
        (a)(1) – fair and reasonable; full disclosure
        (a)(2) – no requirement to affirmatively help them seek other advice; this means a
        sufficient time interval must be given before the transaction is made.
        (a)(3) – Ethics 2000 has made two changes: advise the client of the desirability of
        seeing outside counsel and it must be done in writing.
        Writing: positive (client understanding); negative (drafted by the possibly self-
        interested attorney).
     4. Should the attorney-client privilege be more flexible allowing for safeguards for the
        unsophisticated client? Low relevance of contract rules because of the fiduciary
        nature of the relationship.
     5. Why are attorneys going into business with clients
        a. Gains are dramatic in IPO‘s
        b. Keep attorneys around – not wanting them to go work for start up companies and
             other law firms
        c. Clients are demanding it – companies want you to take the risk with them.
        d. Attorneys want the business – Loyalty
E.   ABA Safeguards (handouts) that some law firms have adopted:



                                                                                              24
      1. Limit the investment to an insubstantial percentage of stock and the amount invested
          in any single client to a nonmaterial sum.
      2. Now what about investing in a client‘s competitor? Clearly a conflict of interest.
   F. Insider Trading: United States v. O‘Hagan Is there an ethical rule that deals with the
      lawyer ability to do this? Yes M.R. 1.8.Under the RS of Agency, you may not use the
      client‘s information period. The Model Code also bans the use of client information.
      Model Rules only prohibit using the information if it hurts the client, making
      insider trading in some circumstances ok, unde r 1.8(b). Ethics 2000 retains the
      adverse impact only approach. 1.8(b) is only a rule for discipline. The Restatement of
      Agency and Law Governing Lawyers do not relate to discipline. So even if it does not
      hurt the client, you are liable for the profits.

II. Sex with Clients
    A. Legally: there is no rule against it in the current model rules.
    B. Related rules: MR 1.7 (conflict of interest); 1.6 (attorney client privilege);
    C. Ethics 2000 added a flat prohibition under 1.8(k) – no sex unless there was a pre-existing,
        consensual relationship.
    D. California Rule 3-120 (page 361, Supp.) – prohibited if ―required,‖ ―coerced,‖ or causes
        attorney to perform legal services incompetently.
    E. Arizona avoided a specific rule because of interpretive problems.

                Problem 13: Representing the Insured and the Insurer (page 215)

I. Who is the client? Problem arises when an insured person is sued. The insured is always a
   client; but the insurance company may also be a client.
   A. Two Models:
       1. Both the insured and the insurer are the client
       2. Only the insured is the client, but attorney is paid by the insurer = majority view
            (Restatement §215)
   B. Why does it make a difference who the client is?
       1. Confidentiality problem – insurance company wants a lot of information.
       2. Control: Also the right to control the litigation will be affected.
       3. Consent: If both are the clients, they must consent to dual representation.
       4. Malpractice: can the insurer sue the attorney for malpractice (Langerman)
   C. 1.7 Interests with third parties – there is still a conflict of interest problem does not go
       away.
   D. What else will govern how much information the insurance company gets or how much
       right they will have in the settlement decision? Provisions in the insurance policy. The
       insured contracts away rights. This is outside the scope of the law of lawyering.

II. Confidentiality, Question 2
   A. Basic Duty - MR 1.6 - Henderson‘s views on prompt notice, confidential?

   B Duty applied to insurance representation:

       1.) Facts regarding duty to cooperate, confidential?



                                                                                                     25
       2.) Collusion - Larry statement to Henderson, other impressions re: collusion, impact
           duty to cooperate on informing insurer? The attorney may not reveal
           information gained through representation of client (insure d). Lange rman

       3.) Progress reports, discovery – the attorney may give progress reports to the
           insurance company.

   C. On all four - info relating to representation? work product? Impact on insurer of duty
      to cooperate & insurance policy generally, what can Henderson tell insurance co?
      General impact on insurer of policy provisions? Express or implied authorization?
      Holding of Parsons? LGL § 215(134) comment f – the attorney cannot do anything
      to violate the duty of confidentiality between himself and the client. Here the
      primary duty is to the insured. Anything that infringes is likely a violation.

   D. Should Henderson withdraw? Indirect disclosure? "Noisy withdrawal, MR 1.6
      comments 15 & 16 – only withdraw if it is fraudulent or criminal conduct. No
      disclosure of client‘s confidences.
III. Settlement Offers, Question 3
     Who has authority to settle? Impact of insurance policy, professional liability policies;
     Lawyer duty to disclose settlement, duty to evaluate & recommend; relevance policy limits,
     ABA Op. 96-403Professional insurance policies.
     The majority of the opinions and law seem to say that the representation to the ins ured
     is limited; and that – usually because of the contract – the insurer has the last word on
     taking a settlement. However, the insured must be informed so that they can take
     another attorney or argue with the insurance company.

IV. Control of Litigation, Question 4
   A. MR 1.8(f), impact insurance policy, relevance of policy limits, LGL § 215(134)
   comments d & f & illus 5 – Many state ethics committees hold that lawyers are to
   re main independent of the ins urer’s control.

   B. Malpractice liability, right of insur co to sue lawyer for malpractice even if not client,
   cases 221-22; Langerman, NM. Use 1.2(c) – limit the scope ahead of time if you are
   an independent attorney; otherwise the law is unclear. (see pages 221-222)
V. Impact reservation of rights, Question 5
    MR 1.7, 1.6, continued representation permissible under 1.7(b)?
VI. Othe r Third Party Payment Situations, Question 6
    Father & daughter charged with DUI; corporate director or employee; legal aid atty


                  PROBLEM 14 – The lawyer and her former client (page227)

I. Basics Former Client Conflicts, Questions 1 & 2




                                                                                                   26
   A. Gen Discussion of MR 1.9, 1.10 & Code, T.C. Theatres (judge-made law standards based
      on appearance of impropriety), 1989 ABA Amends, Az ER 1.9 & 1.10, MR 1.9(b) & Az
      ER 1.10(b);
      1. Note all 1.9 conflicts consentable (this is different than ―current client conflicts‖ in
          which there are some non-consentable conflicts. This shows a need for balancing
          because of the right of clients to choose their attorney and the right of attorneys to
          practice as they desire. Preservation of confidential information. Impaired ability
          to represent a subsequent client. Representation of current client might undermine
          duties to protect the former client.);
      2. ―Appearance of impropriety‖ std & Az. law; LGL §213(132), Comment b - 4
          policies; Note 1.9(a) prohibition despite MRs 1.8(b) & 1.9(c)(1); Contrast present &
          former client rules, IBM; Ethics 2000 Rule 1.9 & comment 1. The ―appearance of
          impropriety‖ rule has been attacked by commentators as having no value. Despite
          this, the rule has made it into the judge-made law, because of its appearance in the
          model code. After the model rules were adopted, the rule was trashed, but it was still
          in the case law. There is a gradual diminishing reliance on “appearance of
          impropriety.”

   B. Definition of "Matter" - 1.9 Comment 2; cases, pp. 228-29. Broad term: very contingent
      upon the facts of a given case and it is a question of degree. Question: was the
      lawyer so involved in the matter that the subsequent representation can justly be
      regarded as a changing of sides in the matter in question.

   C. Costs of Disqualification:
      1. The client may not get the attorney of choice.
      2. The attorney does not get to choose the client.
      3. When the client finds a new attorney, he will have to start all over again; If he uses
         information from the disqualified attorney, he risks d isqualification of the 2d
         attorney.

II. Same or Substantially Related, Question 3

A. Side switching in the same case, judge collection Ques. 3 (a); rationale - loyalty, LGL §
   213(132)(1) & Comment d(I)& (ii); cases Ques 3(a).
   1. Loyalty
       a. Damron (page 228) – L represents S in sale of business; nine years later L represented
           B and told him to stop making payments because S was not following the terms of the
           deal. Here it is a question of loyalty. You cannot change sides on the same
           matter even if the re is no risk of confidentiality proble m, because of the duty of
           loyalty.
       b. Berry (page 229) – L in P‘s law firm had served on the board of directors of D. He
           had no confidential information but had voted on their policies. this shows the risk of
           being a lawyer and on the board of directors at the same time
   2. Townsend (page 229) L wants to represent father who was trying to reduce child support
       payments. Earlier L was GAL for the child. Even though L worked for court technically
       (as GAL), it was close enough to be conflict. Here it is the question of confidentiality.



                                                                                                  27
B. Meaning s ubstantially related - Require similar legal or factual issues? Here the concerns
   are issues that are factually related. Of course 1.8b prohibits using any client‘s confidential
   information. But this rule says that you cannot even be against the former client, much less
   use any confidential information against them. “Functional test” – it is about whether
   confidential information obtained in the first matte r will hurt the client in the second
   matter.
   1. Primary concern MR 1.9 (a) Comments 6-9 - Confidentiality
       H.F. Ahmanson & Co. v. Salomon Bros. (page 231)
       a. factual similarity
       b. legal similarity
       c. extent of lawyer‘s involvement in the case
   2. Interconnected facts or transactions (not factually related or legally related issues); cases
       Ques 3(b)-(d). LGL § 213(132) comment d(iii); Ethics 2000 Rule 1.9 comment 3. Did
       the lawye r receive relevant confidential information?
   3. What if factual issues are closely related but there is no problem of confidentiality? The
       question is: Was the attorney in a position whe re he could have received
       information or acquired knowledge casting light on the significance of subsequent
       events. Chugach (page 233) – atty had been general counsel for the former client he is
       now suing for antitrust. There was a likelihood that the atty‘s knowledge of a private
       matter gained in confidence would provide him with greater insight and understanding of
       the significance of subsequent events in an anti- trust context after a promising source of
       discovery – disqualified.

C. Adoption substantially related here? Everything is discoverable, except attorney-client
   privilege and work product. The adoption and medical malpractice – there is a presumption
   that there is a similarity in the transactional facts and the attorney would have to show
   otherwise.
   Decora – should have disqualified.
   National Medical Enterprise
   Cordona (page 231)
   State ex. rel. McClanahan (page 231)
   State v. Crepeault – compare to the Cordona case; what is the harm to the lawyer here
   compared to one barred from practicing an entire area of law?

D. Nature of Protected Info
   1. What kinds of information should be significant? Anything that would breach
      the duty of confidentiality.

       a. Chugach (favorite of those moving to disqualify; general counsel for many years
          and very aware of everything that goes on there.) – reasons behind policies.

       b. Hyman (233 n2) – Confidential nformation gained from working on the same
          matter for the former client.
       c. Wal-Mart (page 232) – Whatever is discoverable or common knowledge.




                                                                                                 28
       d. Cardona (page 231) – ―Factual Nexus‖ that runs through all similar cases.
          ―Lemon law‖ hired lawyer that previously defended GM. He was disqualified.

   2. Nonclients - prior rep Co-D, recall shared confidences (adverse for cross-examination
      purposes); prior rep material witness for opponent, LGL §213(132) Comment f &
      illus. 6 & Comment g(ii) & illus. 7; Maricopa PDs & Kim Rose petition – former
      clients at the PD‘s office started to show up as witnesses for prosecution. PD‘s then
      filed their own motions to withdraw.


III. Probs of Prelim Intervie ws, Question 4
        A. Main Problem: potential clients share information with attorney in initial
           consultations. Can attorney represent another party that may be affected?
        B. Practical solutions
           1. ABA 90-358 (page 235) Limit information shared in initial interviews only to that
               necessary to run a conflicts check. Not very practical because the attorneys need
               the preliminary information;
           2. LGL § 213(132) Comment g(I),§27(15) & Comment c- "significantly harmful"
               test;
           3. Ethics 2000 MR 1.18(c) & (d)
        C. ―Beauty Contests‖ Allowing client to inte rvie w several firms is good because it
           promotes competition, but the risk is that there will be many dis qualifications.


IV. Stds Filing Motions to Disqualify, Question 5
Solomon - Ques 5(c) - relation discipline, malpractice & disqualification
V. Work Product, Question 6
Legal v. practical problem


                      PROBLEM 15 – Imputed Disqualification (page 237)
Rule 1.10
I. Basic Imputation, Question 1
        A. Break this proble m into two proble ms:
           1. How is the individual disqualified; then
              a. Rule 1.10: if disqualified under 1.7, 1.8(c), 1.9, or 2.2.
           2. How does the imputation work against the firm?
           3. In this problem, X is clearly disqualified; Willis too is disqualified because of
              1.10.
        B. MR 1.10(a); rationale
           1. confidentiality –
              a. there is a conclusive presumption that one lawyer knows, all lawyers in the
                  firm know (free exchange of information).
              b. Also there is a financial incentive to use the information.
           2. loyalty; the law firm is a unit – the lawyers should be loyal one to another;
           3. Proble ms of client proof;



                                                                                                  29
       C. Costs of conflict policies: lost clients and lost lawyers (go to the most recent Ethic
          2000 proposal – see the reporter’s observations.) A new attorney that has a conflict
          with a firm‘s client could result in the disqualification of the whole firm. Sometimes
          a highly specialized field and a certain geographical area restricts the choice of
          lawyers.
       D. Note: consentable, 1.10(c); LGL § 203(123);
       E. Imputable conflicts, compare Rule 1.10 (only those under 1.7, 1.8(c), 1.9, or 2.2),
          Restat 203(123) & Ethics 2000 1.10 & comment 7, 1.8(k)- they moved all 1.8
          conflicts are now imputed under this rule with exception of sex with clients.
       F. Two cases of personal conflict:
          1. Financial interest – D1 v. D2 (attorney‘s associate or partner in D2 owns a
              significant portion of D1)
          2. Conscience – Attorney (partner) in Firm representing abortion doctor opposes
              abortion, disqualify the entire firm?
          Under 1.7 and 1.10 the whole firm in both cases is disqualified. Ethics 2000 takes a
          different approach.

II. Extension of Imputation, Question 2
   A. Affiliated firm - C & B; double imputation(from W/X to C/B);

       1. Formal approach: what is a "firm?" If ―firm‖ means all associations, then the
          imputation is more likely. Comment 1, rule 1.10
       2. Functional approach:

          a. Factors :

                 single case, long term, ―holding out‖ (ABA Op 94-388),

                 common partner;

                 Rule 1.10 comment 1 & Ethics 2000 Rule 1.10 comment 1 - mutual
                  access to information is a factor

          b. Test-material risk or prejudice client;; LGL § 203(123)(1) & Comment c(i)-
          (iii), corporate legal offices, § 203(123) comment d(i);.

   B. Moving lawyers - Sandra Jones (disqualified at W&X from representing Worldwide)
   moves to E&F who wants to represent National Gasket against Wo rldwide. Can she do
   it? There is a rebuttable presumption of having confidential information - if the
   knowledge was imputed only and there was no actual knowledge then she is not
   disqualified whe n she moves. MR 1.9 (b) (AZ 1.10 (b)) & comments 7 & 8, actual
   knowledge v. imputed knowledge; new lawyer joining W & X, lawyer in SJ 2d firm
   moving to 3d firm?

   C. Old Firm of Moving Lawyer (same standard as for moving lawyers) - MR 1.10 (b)
   (AZ 1.10 (c)) & Comment 7 Novo case (page 240). Suppose that X (disqualified) leaves
   W&X law firm. Then can anyone in the old law firm represent Worldwide? It depends



                                                                                               30
   on whether they have actual information or if they had merely imputed knowledge .
   In Novo, the moving lawyer took the client with him. But it is much more common that
   the client does not leave resulting in disqualification of the firm because of those that
   have actual knowledge that remain at the firm.
   D. Silver Chrysler - peripheral representation doctrine,

   Example that raises the issue: Sandra Jones does work that involves purely legal or
   procedural issues. It could be affected by her position – whether a partner or associate.

       1. Confidentiality - Relation 1.9(b)? Consistent? Burden of Proof is on the firm to
          show no breach - Comme nt 7;

       2. Loyalty - What if lawyer represented old client but acquired no confidential info,
          can she be adverse to old client? 1.9(a). Meaning of Comment 10 – Though the
          attorney not represent the client, this does not extend to imputation. But this
          conflicts with 1.10(a). Thus Silver Chrysler, focuses on the confidentiality duty;
          inasfar as does not deal with loyalty, it appears to be inconsis w/1.9(b) &
          Comment 10 conflicts w/1.9(a) & 1.10(a).

   E. How much weight should we give to the mobility of young lawyers in current times
   when the associate gets no confidential information? There is a minor problem of
   loyalty. However, with a young associate there is less of a problem because of the level
   of client contact, level of involvement, etc.

   What about if the young attorney gets some information about the former client? Is the
   former client at risk? The only way to avoid disqualification is through ‗screening.‘
   Without it there is disqualification. But isn‘t confidential information just that, not open
   to disclosure?

   But this is inconsistent with the rules: 1.9(a) prohibits a lawyer ―while associated‖ that
   has represented the client formerly in the same or substantially related matter from
   representing another person‘s adverse interest. Rule 1.10 in turn prohibits the new law
   firm as well.
   Comment 10 is also inconsistent with 1.9(a) – Ethics 2000 strikes this.


III. Family Relationship, Question 3

Three scenarios
1. Husband and wife each personally representing a client against the other.
Or
2. One spouse is adverse
Or
3. Neither of the spouses are adverse, they are only in the law firm.

1.8 (i) – the adve rsity must be direct as in scenario #1 above



                                                                                                  31
No imputation 1.10 (a) & Comment 5, LGL § 203(123) Comment g; other relationships, LGL §
203(123) Comment g - relations approx marriage;
Ethics 2000 Rule 1.8(I)Proposal & 1.7 comment 15a – eliminating the rule and putting it under
1.7 with a comment that has the substance of what formerly was 1.8(i) and 1.9.

IV. Imputation Outside Traditional Law Firm, Question 4
   Practical Problem: restrictive rules applied to these entities tend to create barriers to
   attracting quality lawyers.

   Main Reason: there is not the same economic incentive for public servants. Therefore,
   confidentiality is the driving concern behind the less stringent rules for public ―firms.‖

   A. Legal Aid - critical concern? Confidentiality; test - adequacy physical separation of
      attys & financial inte rest, LGL § 203(123) (2) & (3) & Comme nt d(v).
      Communication and/or shared data bases.

   B. PD office - same concerns & test, LGL § 203(123) (2) & (3) & Comment d(iv); Mar
      Co PD Petition, Superior Court (Nelson), Sustaita (victim of former client is now
      prosecution witness). Common situation: former client is now a prosecution witness.
      Former confidential information could be used to destroy the witness. Now, PD‘s are
      moving on their own accord to withdraw: afraid of overturned conviction (ineffective
      assistance is a substantial fear); fear of ethical violations (substantial fear); and suit
      for malpractice (not a substantial fear).

   C. Prosecutor Offices - Diff prob? Higher degree of client protection? relevant factors?
      Turbin, LGL § 203(123) (2) & (3) & Comment d(iii). Gov‘t lawyers, Rules 1.9 &
      1.11.

       1. Turbin (page 245): “appearance of impropriety” (rules to judge-made law;
          trashed in the revision of the rules; now, not in the rules, but is still in the judge
          made law.)
       2. Romley (page 245)- ―Restatement‖ – screening and size of the office was an issue.

       3. Turbin took place in Kingman, which is much smaller than the Romley office.

   D. The difference between prosecutor and legal aid offices are significant-criminal v.
      civil (the penalties are greater in the criminal case).
V. Screening, Question 5
    A. What does MR 1.10 provide? Comment 5, compare MR 1.11 (rejecting screening for
        private lawyers); The model rules currently re ject screening of private lawyers
        moving from one firm to another. The reason they allow it for successive govt and
        private, is to not burden the government or prevent good attorneys from moving in
        and out of gove rnment service.
    B. Power of ct to develop CL rule? LGL § 204(123) (2) & Comments - 204(2) factors &
        comment d(i), esp on judging significance of info; relation screening, MR 1.9(b) &
        Silver Chrysler periph rep doctrine; Towne Develop Chandler (J. Fidel: judges have no
        power to allow screening, because it has been rejected by the rules. Thus, there is no


                                                                                                   32
        screening for private firms in Arizona State Courts) - power, compare Turbin, Pearson,
        Knapp; appropriate in particular case;
   C.   Ethics 2000 MR Rule 1.10 adopted & then rejected screening & now is reconsidering
        two proposals.

   D.   Argument for: allows attorneys to move freely.

   E.   See the argument against on page 246: no client is ever safe.

   F.   Restatement (page 248)—focuses on the information and whether it is significant.

   G.   What is the relation among the confidential information question, the Silver Chrysler
        idea, and screening? These three approaches are not all that dissimilar.

VI. Imputation & Non Lawyers, Question 6
Secretaries, paralegal, temps, law student, cases question 6, Smart Indus. Screening is not used
with non- lawyers.

             Problem 16: Special Problems with Government Lawyers (page 253)

Issue arises when a former federal government employee contemplates representing an adverse
client.
Applicable Rules:
 18 U.S.C. §207
 M.R. 1.11
 M.R. 1.9

Two relevant legal constructs:
18 U.S.C. §207 – bars personal communication or making a personal appearance
permanently (a)(1); because of personal and substantial involvement. In this problem, voting
constitutes personal and substantial involvement.

M.R. 1.11 – personal and substantial involvement. Prohibition is on representation. Not based
on ―adversity‖ as in all other rules. This is a narrow prohibition that prevents a former
government employee from taking advantage of the knowledge/knowledge gained from being in
office.

What about giving the ―topside look‖? As to §207(a)(1), there is no prohibition because he is
communicating or making an appearance. Under M.R. 1.11 , it is prohibited because it
constitutes ―representation.‖

Does 1.9 Apply? ABA opinion says that the personal disqualification parts do not apply, by that
the confidential parts do. Ethics 2000 makes it clear that 1.9 continues to apply.

What about imputation? Under 1.11, screening is allowed under certain conditions (a)(1) and (2)
– there is no consent requirement, notice only.


                                                                                                33
The fee requirement is targeted at removing an economic disincentive. However, there are
indirect ways to pay the attorney (ex. 1% bonus at the end of the year).

If he is a supervisor with no direct involve ment, under M.R. 1.11, he is ok. There is no barrier
under §207 (a)(1), there is no limitation for the same reason. However, under § 207(a)(2), he is
prohibited from communicating or appearing for 2 years.

As commissioner, with no personal involvement, § 207 (c) has a one year cooling off period for
high ranking government officials.

How about private attorneys going into public office? M.R. 1.11 (c) (now 1.11 (d) in Ethics
2000) and 1.9 applies. No imputation under 1.11 (c) (comment 9). Under comment 2 however,
if you are under 1.9, then some imputation may apply.

1.12 – law clerks looking for jobs while clerking.

                                   Chapter 5: Advising Clients

                     PROBLEM 17 – The Lawyer as an Advisor (page 275)

I. Role of Advisor, Question 1
    A. Nature of the role - Rule 2.1 –

       1. How differ fr/advocate? past v. future, mixture here, how affect dealing w/ &
          resolution of facts? Usually, you are helping the client with something that has
          already happened – in the past. An advisor typically helps to shape the future. In
          regards to the facts, as an advocate, you will be trying to shape the facts in favor of
          the client. The future is unknown.

       2. Zealous representation: should we view lawyers as a public servant more than in the
          private role? This has implication for how lawyers deal with clients and how they
          view their obligations to society?

       3. What is the role of a lawyer? What can they do that other services cannot do? Is
          there a public service obligation that other professions don‘t? The over riding model
          today is that of the private professional, not the public servant.

   B. Advising Marilyn –

       1. difference in long term & short term interests? Short term – get the children back;
          Long term – what will happen in the future?

       2. Is client‘s interest the only relevant one? Interests other clients - children. It is a good
          idea to counsel – advise – the client about other interests, although the client makes
          the ultimate decision.




                                                                                                    34
       3. Nature of advice - only legal? In general, problem of identifying client‘s objectives

II. As Lawyer, what can you do to help, Question 2

   A. Various difficulties in advising
      1. Problem of knowing facts; limits on lawyer‘s ability; non- legal advice, alternatives -
         restraining order, garnishment, etc.
      2. Should the lawyer give broad advice or only legal advice? Comment 2-4 of M.R. 2.1:
         It is proper for the lawyer to refer to relevant moral and ethical considerations in
         giving advice.Past child abuse: is there a substantial risk of the same behavior in the
         future?

  III. Limits on Lawyers Advice, Question 3

       A. Rule 1.2 (d) & comments 6 & 7 – that a client uses the lawyer’s advice to commit
          a fraud or crime does not make the lawyer a party to it; however, a lawye r may
          not knowingly assist in a crime or fraud. What does it mean to "counsel" or
          "assist" a crime or fraud?
          1. Chappell (page 277) – ―as a lawyer, I advise to stay; as a parent I advise to run‖ in
              order to prevent custody to father. Then L gives mother information about
              safehouses and keeps the key to her belongings. Assisted in fraud – disbarred.
          2. Hughes (277) – ―go ahead and ignore the court‘s order to get self- financed drug
              testing.‖ Then L does not file appeal as to drug testing constitutionality.
          3. Other examples - blue laws, bank robbery, tax, extradition treaties;
          4. Ethics 2000 Rule 1.2
       B. Can you give the client legal information that the client wishes to have in order to
          violate the law? No. Rule 1.16 – Withdrawal. You can do it, but is it good
          professional behavior. The attorney benefits most when he withdraws; the client
          benefits least.

IV. Creative Advice for Marilyn, Question 4
    Asset-management advice

V. Following Client Instructions, Question 5
    Must a lawyer do whatever client wishes? role of lawyer, advice, dialogue; Pressly (279),
    lawyers‘ dilemma; evid of child abuse, client‘s past child abuse, statutory duty to report,
    concern w/future child abuse.
     In re Pressly (page 279) – Client wants only supervised visiting rights for husband
       because she suspects abuse, but does not want L to tell the other side. L is in awkward
       position to explain his reasons why supervised visitation. Later he spills the beans; client
       is furious. L publicly reprimanded. The lawyer should have anticipated the question.
     Be wise about what the client is asking you to do in the first place and expla in your
       duties as an attorney.

VI. Incompetent Clients, Question 6




                                                                                                  35
   A. Rule 1.14 - as far as reasonably possible, maintain a normal lawyer-client relationship
      with the client.
   B. ABA 96-404 recognized that maintaining a ―normal client lawyer relationship‖ is not
      always feasible with a disabled person. The lawyer should take the least restictive
      action under the circumstances and request a GAL only if nothing less is possible.
   C. Amendment to Comments of Rule 1.14 – comments 6 & 7: ―Where health, safety, or
      financial interest o the person under disability is threatened w/imminent and irreparable
      harm, a lawyer may take legal action on behalf of such person‖ ... even if there is to
      lawyer client relationship, when either the disabled person or the one acting in good faith
      on the clients behalf has consulted with the lawyer.
   D. LGL § 35(24) Ethics 2000 Rule 1.14 – similar to the current standard

VII. What should to do if advice re jected?, Question 7
   A. Withdrawal?
      1. Rule 1.16(b)(3) – if client insists upon pursuing an objective that the lawyer considers
          repugnant or imprudent.
      2. Rule 1.16(b)(6) – other good cause for withdrawal – (how about for repugnant or
          imprudent means?)
      3. Who is benefitted, the lawyer or the client? What is best for Marilyn? withdrawal v.
          not taking case in first place; recommend counsel for children?

                       PROBLEM 20: The Ethics of Negotiation (page 319)

I. Basics of MR 4.1, Question 1

   A. May you claim Young had nothing to drink if he has told everyone but you that this is
      true? No. Prohibited by rule 4.1.
   B. What about "evidence will show?" Ok
   C. Should misrepresentation in negotiations be treated differently than in court statements?
   D. Is some deception inherent in negotiation? Yes.
   E. Treat settlement negotiation differently than other transactional negotiation? See also
      Rule 8.4 (c). Which type of negotiation has more freedom? In settlement negotiations,
      deception is understood to be inhe rent in the procedure. The reliance element is
      different.
   F. While you may not make a false statement, neither are you required to inform opposing
      party of relevant facts. Comment 1.

II. Are Some Lies Diff than Others, Question 2

   May you fake anger? delay? Alternatives to client? Purpose of Young‘s trip? Settlement
   limits, lawyer‘s authority?
   "Non material" facts Comment 2 – in the convention of negotiation, statements made as
   to a client’s (principle’s) are not treated as statements of “mate rial fact”. Ethics 2000
   Rule 4.1

III. Lawyers v. Non Lawyers, Question 3



                                                                                               36
        Relation of MR 4.1 & CL fraud, LGL § 157(98) & comment c.

IV. Deception Best Strategy, Question 4

V. Duty to Disclose in Negotiation, Question 5

What must you disclose in negotiation? client‘s death? Virizi, sanction: P‘s atty failed to inform
opposing counsel and the court, prior to the settlement , of the P‘s death. P had died from causes
unrelated to the lawsuit, and at no time did D‘s atty ask P‘s atty if P was still alive and available
for trial. Held: The settlement was set aside. Zealous representation does not justify
withholding of essential information, such as the death of a client, when the settlement of the
case is based lagely upon the defense atty‘s assessment of the mpacct ht eP would make upon a
jury because of his appearance at depositions. P‘s atty clearly had a duty to disclose P‘s death
both to the court and to opposing counsel prior to negotiating the final agreement.

In re Fee

VI. Plea Bargaining, Question 6

Leave to other courses, note prosecutor duty to engage in plea bargaining, Brady, Rule 3.8(d)

VII. Ethics & Type of Negotiation, Question 7

Legal settlements & transactional negotiation compared with labor & hostage negotiations.
Regulatory compliance, Kaye Scholer matter, what is lawyer‘s role, note controversy.

                         Problem 18: Advising the Business Corporation

This problem is to be distinguished from corporations that engages in fraud.

I.      Client Identity, Question 1

     A. Rule 1.13 (a) – A lawyer employed by an organization represents the organization
        through its duly authorized constituents (agents). The corporation is the client. The
        lawyer must always proceed in the best interest of the corporation. Why do the
        rules chose the entity rather than the group?
        1. The corporation is the legal entity.

        2. The group (shareholders, directors, etc) has competing interests that may harm the
           entity. The attorney must keep in mind the best interests of the corporation. This
           notion gets complicated when disputes arise within the corporation, and not so
           much when they arise from outside.

     B. Who directs lawyer? ―Constituents‖ – comment 3 Rule 1.13 – Board of Directors or
        those Authorized to make decisions,


                                                                                                   37
   C. Why is it important to identify the client? We need to know to whom the lawyer
      owes duties, conflicts, confidentiality, lawyer liability. The lawyer owes this to the
      entity; MR 1.13 overview; LGL §§ 26(14) & comment f, 201(121) comment d,
      212;

   D. Conflicts proxy fights & corporate takeover attempts, see LGL § 212(131) &
      comment h.

   E. More problems of client identification - who does lawyer represent? Rep of
      stkholders, officers, pshp, partners, close corps. Derivative suits, MR 1.13 comments
      10-11, an inherent conflict? LGL § 212 & comment g.

       Hypo #1: Outside law firm: what should the role of the law firm be in a derivative suit?
          Probably the law firm will be on the side of the directors and the entity in a non-
          controversial suit. (represent 2)
       Hypo #2: Law firm played a counseling role in the directors‘ rejection of a tender offer.
          This is not such a clearly losing lawsuit. If the board is sued, then the lawyer should
          represent the board. (represent 1)
       Hypo #3: Lawyer involved in counseling the corporate in engaging in a fraudulent
          activity. The lawyer should represent no one. (represent none)

II. Lawyer’s Duties, Question 2

Rule 1.13 (b) – more of a process to follow than it is a substantive rule.
A. Determine:
   1. Is this Violation of legal obligation to the organization, or a violation of law which might
       be imputed to the organization, and is likely to result in substantial injury to the
       organization? (The matter does not have to be related to representation. If you are the tax
       attorney and you find out that they are engaged in insider trading, you must do
       something. One purpose behind the rule is to protect the interest of the entity.) Notify the
       general counsel and generally, you have met the rule.
B. ―Proceed as is reasonably necessary in the best interest of the organization:
   1. Proceed as is reasonably necessary in the best interest of the organization. This part of the
       rule says that you must think about it. Think about the seriousness, responsibility to the
       organization of those involved; motivations of involved persons, organizational policies, ,
       etc. It does not say that you must act.
       a. Three underlying policies
            Protect the corporation
            Legal v. business advice
            Very cautious, minimalist approach
   2. Minimize Disruption: (b)(1)(2)(3) – Be very careful about going to the board of directors
       over the vice president. Do some internal investigation prior to going over the VP‘s
       head. Maybe get some outside advice, if you are inside counsel.
   3. Business-Judgement Rule: Make sure you are not trying to make a business judgement
       for the client. Consultant cost-benefit study; business v. legal judgments; Disagree w/




                                                                                                38
        VP? Further alternatives. The clients make the business judgements – Policy: define the
        distinction.
C. Withdraw if remedial measures fail (1.13 (c)). If after the lawyer‘s remedial attempts, the
   highest authority that can act on behalf of the organization insists upon action, or a refusal to
   act, that is clearly a violation of law and is likely to result in substantial injury to the
   organization, the lawyer may resign in accordance with rule 1.16.
   1.    ―Noisy Withdrawal‖ – You can say, ―I am w/drawing for ethical reasons.‖ Under (c),
        you may withdraw, but there is no provision for further action. Because this is a
        procedural provision, you can rely on 1.6. Comment 13-16 to 1.6 does not prevent
        you from waiving a red flag if the client intends to commit a fraud. The lawyer is not
        prohibited from giving notice of the fact of withdrawal, and the lawyer may disaffirm
        any opinion, document, affirmation, or the like.

   2. Alternatives - Noncrimes v. crimes; who can the lawyer approach to protect the
      entity?
        a. Loyal disclosure:

              Going to stockholders – you cannot go to the stockholders under 1.6 (b),
               because they are outsiders (not able to act on behalf of the organization).

              Directors – only after all other remedies are exhausted.

        b. Disloyal Disclosure

              Crime/Fraud exception – allows disclosure of conf info to prevent imminent
               death or substantial injury.

              CPSC, Rule 1.6 (b)(1) & (2), AZ 1.6 – Generally, a civil penalty is not a crime
               and therefore this action is not disclosable. If it were a criminal act likely to
               result in death or substantial bodily harm, then disclosable.

              LGL 117A Final Draft No. 2(66) – allows disclosure to prevent criminal or
               fraudulent acts – past frauds too, in order to mitigate the fraud.

              Ethics 2000 Rule 1.6; Civil disobedience, legal disclosure, noisy withdrawal –
               here, there is no crime requirement.

   3. Very important problem to Professor Rose. The movement in the profession is to a
      broad notion of discretionary disclosure.
IV. Lawyer Liability, Question 4
To whom? Possibilities – Corp – accessorial; RTC – Fraud; Victims – Tarasoff – generally
rejected by the law of lawyering. But by playing some role in causing a tort, the lawyer could be
liable to the victim is up in the air; Stockholders and bondholders – fraud; up in the air; Creditors

Lawyer liability, Rule 1.6(b)(2); Impact limited liability statutes, see cases pp. 292-94 & n.5;
Impact of 1.6(b)(2) on disclosure.



                                                                                                   39
V. Skip Question 5

VI. Lawyer on Bd Directors, Question 6
    A. What problems may arise? Rule 1.7 comment 14; Ethics 2000 Rule 1.7 Comment 21.
       Read the text.
       1. Conflicts,
       2. confidentiality,
       3. liability,
       4. self- interest,
    B. Can you be a director without making relevant the fact that the person is also a lawyer?
       Probably not. So why is it relatively common to be on the board of directors? Lawyers
       want to be at meetings to protect the client. Corporations want the a ttorney there for legal
       advice for a director‘s fee. Is everything said by a lawyer protected as privileged?

VII. House Counsel, Question 7
Diff than outside counsel? legal, practical
In house may have less independent judgement because of employment status
Outside counsel is supervised by inhouse counsel – hard to tell directors adverse news or advice.
VIII. Corporate Family Problems, Question 8
Lincoln Savings, ACC issues

                Problem 19: Contact with Represented and Unrepresented Persons

Principle 1: The attorney may not contact the represented person about a matter that is the
subject of representation. Rule 4.2 - The ―No Contact‖ Rule. Purpose: Ethics 2000 – Prevent
overreaching and maintaining the attorney-client privilege. Exception: authorized by law.

―person‖ – pre- filing flexibility
―matter‖ – also very flexible

Principle 2: Rule 4.3 – atty cannot mislead the unre presented person and get information by
feigning disinterest or that you are working in his favor.
 I am...I do not represent you
 You should seek other counsel
Ethics 2000 – makes explicit that you cannot give any legal advice and that the unrepresented
person should get a lawyer.

I.      Who may the plaintiff‘s attorney contact in the Corporate situation?
        Principle: lawyer may not contact those persons that
         have managerial responsibility on behalf of the corporation or
         those whose acts or omissions in connection with the matter may be imputed to
            the organization, or
         those whose statements may constitute an admission.
        A. Barry Winters - employee: yes. Under Rule 4.2 comment 4, no contact may be had
            with management, if the person‘s act may be imputed to the corporation, or if the
            person‘s statements constitute an admission.


                                                                                                  40
            1. Suppose the corporate attorney has contacted Winters first. You cannot talk to
               him because he is represented and because of the attorney-client privilege.
            2. Read Samaritan – you cannot talk to those whose conduct is at issue. Under
               Upjohn – you can talk to Winters.

       B. The Truck Driver: No, his conduct has caused the injury.

       C. Mary Speedy, president of a division of Speedy Corp.: No, because of comment 4 –
          managerial control. Ethics 2000 (comment) replaces the manager with a broader
          notion – one who regularly communicates with the corporate lawyer. Under 2000,
          you may be able to talk to Mary Speedy. Under the current rule (Rule 4.2,comment
          4), it is hard to gather information from people, because you have to do a deposition,
          which impedes information and is very costly.

       D. Assume truck driver is now a former employee: the default is that generally, you
          may contact former employees.

            1. Exceptions: Lang (826 P2d 1228) – Exceptions: former employee’s actions gave
               rise to litigation: i.e. accident happened prior to quiting; or, if former employee
               has continued relation with the corporation. If the owner quits you can question
               him too (because nothing he did gave rise to cause of action).

II.    Government Official
       Constitutional Right to Petition

       A.     Examples:
              1.  Person hurt in a slip and fall at the coliseum and brings a case. The AG
                  defends the client. Could the attorney talk to the director at the coliseum: ok.
              2.  Approaching Regulatory agency‘s director: ok
              3.  AG brings a case on behalf of ACCHS and Arizona. Attorneys for tobacco
                  go the government to persuade her to persuade ACCHS to withdraw: clo ser,
                  but ok.

III.   Criminal Cases – 4.2 Applies.

       A.     Is there anything in the languages and policies of 4.2 that would seem to allow it
              not being applied to criminal case? No, Richmond (page 316) – says that the
              Criminal Litigants are protected by the Constitution. 4.2 protects non-custodial and
              pre-action contact; Miranda deals only with custodial matters. Those these
              provisions have prohibit prosecutors, they are not the sole body of authority which
              may do so. The weight of authority is to extend 4.2 to criminal matters.

       B.     Federal Prosecutors (very important) Page 317




                                                                                                41
       Former AG, Thornburgh and AG Reno promulgate the Reno Memorandum (28 CFR pt.
       77), in which §77.6 lists various exceptions to the no-contact rule. The basis was that
       federal prosecutors are statutorily authorized to investigate crime, and thus fall under the
       ―authorized by law‖ language. Also there was some Supremacy Clause rationale
       regarding preemption of state rules by federal ones (deem poor because U.S. Attys take
       the state bar and there are no federal rules of ethics).

       How far does the statutory authority go in allowing ex parte contact? See amendments to
       4.2 (2000). Thornburg: if the AG‘s internal memorandum gives some authority – it was
       thought that it might help in giving basis for authority for ex parte contact. Criminal bar
       made this a very important issue. Reno Regulations (CFR) – appeared to give stronger
       basis because it was public.

       In McDonnell Douglas (page 318), the 8th Circuit found that the Guidelines were not
       something that Reno was authorized to issue, rendering them largely toothless.

       McDade Amendment: April 1999, federal legislation expressly made the federal
       lawyers subject to state ethics rules. United States v. Colorado Supreme Court (10th
       Circuit) – the issue is whether rule 3.8 is a procedural/substantive rule or an ethical
       requirement. The rule is directed at the prosecutor rather than the cause of action the
       court said, therefore the prosecutor must comply. In the New Matter Memo, problem 19.

       At this time it appears that the criminal defense bar is winning. Targets of investigations
       being contacted ex parte.

                           PROBLEM 21 – The lawyer as Evaluator

Rule 2.3
I. Opinion Letters – in writing opinion letters, the lawyer must investigate and give his true
opinion. He cannot write a letter with the contents that the client dictates just because the client
wants the letter. He must exercise independent judgement and the judgements must be legally
backed..

II. Evaluations for use by Third Parties – such as a bank
    A. Rule 2.3(a) – A lawyer may undertake an evaluation of a matter affecting a client for the
       use of someone other than the client if:
       (1.) The lawyer reasonably believes that making the evaluation is compatible with other
            aspects of the lawyer‘s relationship with the client; and
       (2.) The client consents after consultation.
    B. 2.3(b) – Except as disclosure is required in connection with the report of an evaluation,
       information relating to the evaluation is otherwise protected by rule 1.6.
        The attorney does have a duty to a third party to a lesser degree than to the client.
        As far as client confidentiality is concerned, the client has given consent here.
    C. If the quality of the evaluation is affected by limits on the scope of a lawyer‘s
       investigation, and such limitations material to the evaluation, the lawyer should describe
       the limitations in the report.



                                                                                                   42
       D. If you are already the client‘s ―advocate‖ in litigation, then typically, you cannot also be
          simultaneously, their ―evaluator.‖
          1. Consider the duty to ―zealous representation‖
          2. As evaluator you have a duty to the third parties.

III.       Duties to Third Persons:
       A. Tort liability. Fundamental Problem: For practical purposes, the lawyer must treat the
           third party like a client because tort law recognizes a duty to third parties and allows them
           to sue you. Negligent misrepresentation requires reliance and misrepresentation of
           material fact. There is probably no malpractice liability.
           1. You cannot lie
           2. You cannot conceal facts

       You have no special obligation to the IRS – they are not a court or regulatory agency.
       You are not advising the bank, they are not your client, but they are going to rely on your
       opinion.
       If the client has agreed to provide an opinion regarding certain matters, the lawyer cannot
       arbitrarily decide not to do it.

       B. Other considerations – Bank hypo
          1. Third parties could use their own attorneys but why wouldn‘t they?
             a. better access to facts
             b. less adversarial
             c. save money – transfer a cost to the borrower
          2. Risks by lender
             a. Inaccurate factual or legal information; or incomplete information
             b. Information that benefits the borrower.
          3. From the standpoint of a borrower – good
             a. Control over the attorney
             b. They are more likely to get a loan
          4. Risk by borrower – Honest representation may impede the granting of the loan if
             there is adverse information.
          5. Standpoint of attorney
             a. Rule 2.3 – compatible with other aspects of the lawyer‘s relationship with the
                  client. It might be incompatible if other lenders are suing the borrower for fraud
                  in making loan applications; or if a buyer asks for an opinion about the safety of a
                  product, and there is a product liability suit pending. Involvement in litigation,
                  etc., will make this incompatible.
             b. Get client consent. Did the original consent give you the freedom to disclose
                  information that you otherwise might not? Probably not. Get more consent.
                  Now what do you do if you are directed to not disclose the information? Reason –
                  fail. Refuse to write the letter – fired. Disclose the bare minimum and suffer
                  possible liability. Write the opinion with a disclaimer explaining that the opinion
                  is limited to those things given by the client (comment 5, 2.3).
          6. Application to the problem:




                                                                                                     43
           a. Tax position of the client – possible to lose against the IRS. If the IRS wins in a
              suit and the attorney did not put the potential in the letter, then you are subject to
              liability.
           b. Undiscovered product defect – the bank has asked for legal problems. Is the
              product defect a legal problem? Not yet. Two choices: you either put it in; or put
              in a disclaimer (there may be things that you have not looked into).

What must be disclosed? Adverse disclosures, Rule 2.3 & 1.6? Upjohn distinguished;
Limitations on lawyer as evaluator, Rule 2.3 comment 4; Undiscovered product defect & bank,
outside auditors compared; Scope of opinion, limited evaluation; client consent; LGL § 152(95);
Ethics 2000 Rule 2.3

V. Special Duties-Counsel to Securities Issuer, Question 5
Prob. of disclosure, Rule 1.6, AZ ER 1.6, LGL § 117B(67), Ethics 2000 Rule 1.6 (b); Rule 1.6
(b)(2)

      PROBLEM 22 – Obligations When the Client May be Engaged in Fraud (page 344)

A. What should the lawyer do when they have a client who appears to be engaging in fraud and
   refuses to disclose information the lawyer feels should be disclosed?

   1. Withdrawal: The lawyer must withdraw if his services will be used by the client in
      furthering a course of criminal or fraudulent conduct. Rule 1.13 (c); Rule 1.6 (comme nt
      16)
      a. Noisy Withdrawal: Comment 16 allows the lawyer to ―withdraw for ethical
          reasons.‖ The lawyer cannot disclose confidences, except notably disaffirm any
          opinion, documentation, affirmation or the like.
      b. Process:
          1.) Go to those committing the fraud and try to dissuade them
          2.) Use Process in rule 1.13
   2. Disclosure:
      a. Under current MR 1.6 and 1.13, the lawyer may not disclose to prevent financial
          harm. Rather, the lawyer must disclose to prevent physical harm.
      b. Under Restatment 117(B), the attorney may disclose in order to prevent financial
          harm that will result from the use of his services.
      c. Ethics 2000 – same as Restatement.
      d. Under Kutak recommendations, same as RS
      e. Under Kutak, E2k, and LGL, the lawyer is permitted to disclose in order to rectify a
          loss that has already occurred.
   3. On test if asked about this, refer to LGL handout regarding statistics: 40 jurisdictions
      have rejected the current MR 1.6 and have broadened the rule so as to permit disclosure
      to prevent financial injury. Seventeen states also permit disclosure to rectify past harms.
      LGL117B comment b.
   4. See also, chart on page 135.

How much can an attorney say?



                                                                                                  44
The SEC‘s position: lawyers are liable when information is obviously material and the attorneys‘
responsibilities to their corporate client required them to take steps to ensure that the information
should be disclosed to the shareholders. They are thus in the same position as the issuers. This
is logical because the attorney‘s statements are the gateway for the investors. The attorneys
make the documents up.

Duty of Disclosure Re: Past Acts (after the fact)- Impact of rectification & mitigation rationale,
LGL § 117B(67)(2) - see comment f & illustrations, Ethics 2000 Rule 1.6(b), state variations;
relevance of 1.6(b)(2). MR 1.6 deals only with future fraud, or ongoing fraud. LGL 117B(2) –
deals with act in the past, but continuing harm.
In terms of practicality, it is a difficult question of how often an attorney will utilize the ability to
mitigate the harm.

Problem - Should lawyer argue DOE shouldn‘t test prod? No.
S&L case - Jones, Day - go thru facts, Kaye Scholer, Peter Fishbein (328); ABA Ops. 92-366 &
93-375 (350)- adequate? What should lawyers have done? A company subject to regulation is
required to provide the information needed for the audit. The lawyer is no different than the
other employees as far as custody of documents is concerned. The other approach is that the
attorney should be able to advise clients on how best to protect their information – because of
looming litigation.
Lawyers are clearly liable to injured corporations; but liability may extend beyond to investors.

                            Chapter 6, Ethical Proble ms in Litigation

                        PROBLEM 23 – Decision to File a lawsuit (page 364)

I. Ethical Stds re: Filing Suit, Question 1
    A. Rule 3.1 – A lawyer shall not bring or defend a proceeding, or assert or controvert an
        issue therein, unless there is a basis for doing so that is not frivolous. The basis is
        frivolous if:
        a. The lawyer can‘t make a good faith argument on the merits under existing law.
        b. The lawyer can‘t make a good faith argument for an extension, modification or
            reversal of existing law.
            (good faith = objective standard)
        c. The client desires the action for the primary purpose of harassing or maliciously
            injuring a person.
        Except to say that an action is not frivolous simply because a lawyer believes that t he
        client‘s position will not prevail, the comments are not very helpful.
    B. Rule 3.2, delay – a lawyer shall make reasonable efforts to expedite litigation consistent
        with the interests of the client.
        a. It creates a positive duty to expedite. The question is whether a competent lawyer
            acting in good faith would regard the course of action as having some substantial
            purpose other than delay.
     C. Must/May dichotomy - delay good idea here? If you may do something supposedly to
        help the client, must you? Rose says no. Consider company‘s reputation; relevance
        lawyer reputation w/FDA, etc.



                                                                                                       45
II. Rule 11, Question 2
    A. General reqs, 1993 amends, AZ Rule 11
    B. Applying Rule 11 - Fact v. Law, existing v. good faith extension, Garr, Keegan
        Management; Ps & Ds; Objective, subjective, frivolous & motive; Test cases, Ps & Ds;
        Sanctions - 21 day grace period may, costs & fees, law firms, client. There is discretion
        to give a penalty. (Arizona has old rule 11)

   C. Problems with Rule 11:
      1. Over-deterrence
      2. Satellite litigation – extra litigation; rule 11 motions against rule 11 motions.
      3. Plaintiffs are more vulnerable than defendants, on the legal theories. Plaintiffs with
         novel litigation – civil rights & test cases.

   D. Rose thinks that Rules 3.1 and 3.2 are not effective. Rule 11, a court rule, is much better
      according to him. These problems are much better dealt with by the judge as far as the
      case is concerned.

III. Witness Availability & Delay, Question 3 - Rule 3.4 (a) & (f) - chemist

VI. Othe r Sanctions Litigation Misconduct, Question 6
Chambers v. Nasco (372) – inherent power (to manage proceedings) in the courts to give
monetary sanctions against lawyers and their clients for abuse of conduct even though it does not
violate any particular rule. Precision Components; Hirschfeld (Ariz. version of Chambers)

                          PROBLEM 24 – Litigation Tactics (page374)

Introduction – Problem relates to whether the Adversary System is the best system to get to the
truth. Also, the question of Judicial Capacity (courts) to control this area by imposing limits on
dress – religious expression, controlling jury selections, etc. Comparative advantage - numerous
remedies. What are things that the system has its own devices to control? What is the capacity
of the courts to deal with these matters? Religious-based peremptory challenge upheld – Batz.

Rule 3.4 – Fairness to Opposing Party and Counsel

I. Limits on Tactics, Question 1
Clothing; Jury Selection; aggressive cross examination, Rule 4.4; Improper questions, Rule
3.4(e) - Workingman at defense table (it might backfire), Attractive secretary; Body Language –
article
Two issues:
1. Respect for the court
2. Motive: using it as an advantage

II. Misconduct & Witnesses, Question 2
Thoreen; Paying witness, Rule 3.4 Comment 3, LGL § 177(117) & Comment b, experts –
paying witnesses is not prohibited.



                                                                                                  46
III. Threat of Crim Prosecution & Civil Settlements, Question 3
Model Rules & elimination of DR 7-105(A), intentionally omitted as redundant (Rules 4.4 &
8.4) & overbroad;
ABA Op. 94-383 – the lawyer may use the threat of bringing criminal charges in
negotiations of civil case, if both the civil and criminal cases are well founded in fact and
law and the threat would not constitute extortion under state law.

Threat of disciplinary charges: the lawye r may not agree to fail to re port disciplinary
violations that he would have to report under 8.3(c).

IV. Inadvertent Receipt Confidential, Question 5
A. Accidental - 2 issues - a-c privilege and ethics:
    1) Waiver, LGL § 129(79) Comment h & Rep Note (see Prob 5), negligence, "realistic
        concept;" waiver does not result if the client or othe r disclosing person took
        precautions reasonable in the circumstances to guard against such disclosure .
    2) Ethics - ABA Op. 92-368 – lawyer receiving the misdirected material should refrain
        from reading it and return it or destroy it. Ethics 2000 Rule 4.4(b)
B. Intentional - stolen documents, Don‘t use them.
    1. Documents sent from someone who was unauthorized to send them – whistleblower –
        ABA Op. 94-382 – Instructions listed on page 380 in text.
    2. Lipin (page 380): information previously stolen about addictive properties of nicotine,
        not ordered returned to defendant‘s and status as privileged will be considered at trial
        later.
    3. Castano (page 380): P steal docs from D at a hearing, photocopies and gives them to
        lawyer. Lawyer used them. Complaint to sanction P was dismissed.
VI. Civility, Question 6
Codes go beyond the Rules, Az Profess Course,
Hirschfeld (page 382) & other cases: Hirschfeld: lawyer in a custody proceeding sanctioned for
calling out and asking mother where she had hidden the child during a recess in the proceedings.
Rule 8.4 comme nt 2 – conduct must be prejuducial to administration of justice; Ethics 2000
Racist/Sexist Speech: Wunsch case (page 381) – highly sexist speech not sanctioned because of
one-time occurrence. Free Speech problems.

        PROBLEM 25- Disclosure of Law or Facts Favorable to the Other Side (page 386)
Duty of Candor to the Court: Rule 3.3
I. Disclosure of Adverse Legal Authority, Question 1
    A. Rule 3.3 (a)(3) – ―legal authority in the controlling jurisdiction‖
        1. How it is to be disclosed in not addressed.
        2. Considerations in whether to disclose
           a. Client‘s interest
           b. Never assume the court does not know
           c. Give the court any information that you think it would be interested if it
               found out about it. This includes contrary cases from other influential
               jurisdictions. Dorso ,
        3. Rule 11,



                                                                                                47
            a. Rodgers (page 387) Rule 11 sanctions appropriate in case where attorney
                persisted in trying to apply an inapplicable case.
            b. Golden Eagle (388) Rule 11 does not require counsel to differentiate between a
                position supported by existing law and one that would extend it.
II. Disclosure of Facts, Question 2
    A. Relevant rules: Rules 3.4 (a), 3.3 (a): The attorney is not obligated to disclose a witness;
        he is prohibited from unlawfully obstructing access to the witness however – 3.4(a).
        There are lawful ways to obstruct the other party‘s access.
        1. The test for whether it is unlawful is whether the action violated Rules of Civil
            Procedure, Court Orders, or other statutes.
        2. Once there is no duty under 3.4, you are forbidden to disclose under 1.6 –
            confidentiality.
    B. Disclosure rules - undiscovered witness ,
        1. FRCP 26(a)(1)(A) – you must provide the name, address, and telephone number of
            each individual likely to have discoverable information relevant to disputed facts
            "alleged w/particularity" in the pleadings.
        2. Az. Rule 26.1(a)(4) - The names and addresses of all persons whom the party
            believes may have knowledge or information relevant to the events, transactions,
            or occurrences that gave rise to the action, and the nature of the knowledge or
            information each such individual is believed to possess.
        3. This is more expansive than the federal rule. This rule doesn‘t require the
            information to be relevant to disputed facts alleged with particularity., Basics,
            Amends, Sanctions, 3 periods
        4. Az. Rule 26(b)(1) – this is a continuing obligation; must file supplemental disclosure
            statements.
        5. Az Rule 37(c) Sanctions: See Az handout.
    C. Ex parte proceedings, Rule 3.3(d), grand jury
    D. Discovery misconduct –
        1. Lying in discovery request, Rules 3.3 (a) or 3.4 (a);
        2. other discovery misconduct,
            a. Fisons (fn, page 391) – trial court fails to impose sanctions on a firm that w/held a
                smoking gun document in spite of rep that all docs had been produced.
            b. Shaffer Equip (p. 393) – personal discovery sanctions on govt. atty. for trying to
                cover up expert witness‘s misrepresentations of credentials.
            c. Pumphrey (p. 391) – verdict favorable to gun mfr set aside when ct found out only
                part of the demonstration-tape evidence was shown in discovery.
            d. Fla. Bar. (p. 392) – P fails to answer interrogatory questions about previous
                injuries in a PI suit. Lawyer blames it on paralegal; suspended for 30 days.
    E. Objections to Arizona‘s mandatory Discovery rules
        1. It is costly to client because it frontloads the case with expenses, when the case might
            otherwise have settle out without the cost.
        2. Undermines a/c privilege? No, because Az‘s rules ask for underlying facts only; the
            timing of the disclosure only is affected.




                                                                                                 48
III. Gen Discussion of Disclosure, Question 3
      Philosophy, Frankel v. Friedman. Frankel laments the lack of announced ―duty to the
        Truth.‖ Friedman likes the adversarial system, even when it lets heinous criminals go
        because of the dignity given to the people in the system.
      Plattner Petition;
      Calumny Oath – see handout.
      Public/Private Legal Profession – efficiency, truth, fairness, etc.

IV. Disclosure of Client’s Criminal Record, Question 4
Sentencing Hypo — 3 cases- false statement, client statement, clerk but no client statement, Rules
3.3 (a)(1) & (2), 1.6, 1.2(d); atty silence as corroboration; Ethics 2000 Rule 3.3(a) & (b). In re
Fee (page 392) – certain failures to disclose are treated as the equivalent of affirmative
representation.
Sentencing: you cannot say ―yes‖ to the judge‘s inquiry about a clean prior record. You cannot
say ―no‖ because of Rule 1.6 confidentiality obligations. You cannot allow the client to lie –
silence is corroboration. No easy answer – try to convince the client to allow you to disclose.
This is not a realistic hypo, given probation reports and such.
Different context: In re Fee – bifurcated settlement fee (intended to drive a wedge between client
and attorney). Approval of the settlement agreed upon in court.

                      PROBLEM 26- Handling Physical Evidence (page 404)
Introduction - Fruits & Instrumentalities-
Three bodies of law:
 A/C priv. & crime fraud excep,
 5th Amend
 ethical rules
 Statute- obstruction of justice

I. Handling Physical Evid-guns & money, Question 1
    A. Is evidence privileged when it is in the atty‘s possession in such a way to withstand a
       subpoena or search warrant?
       1. A/C privilege: No, A/C deals with communications only, evidence itself is not a
           communication.
       2. 5th Amendment: Not protected under the 5th Amendment either because this
           privilege belongs to the client, not the lawyer + gun is not communication.
       3. Subpoena for the gun: There is no general rule or principle that says a lawyer can
           never be compelled to produce incriminating evidence against the client. However, if
           the practical impact of compliance is tantamount to revealing a communication,
           there is a good argume nt for non-compliance.
       4. Warrant: turn it over or it is probably obstruction.
    B. What if no one is compelling you to turn it over? Now, the issue becomes whether taking
       the gun or money was within the crime/fraud exception to the A/C privilege (not 1.6
       exception). If it is, then turn over the gun; if not – and it is not illegal – you cannot
       resist.
    C. Be aware that the client will not draw a distinction between evidence and
       communications; but the law does indeed.


                                                                                                49
   D. Lawyer‘s alternatives?
      1. Take gun & hide? Under 3.4(a), it is unlawfully obstructing the other party‘s access.
      2. knife in Olwell – atty found in contempt for ignoring coroner‘s subpoena for knife
         allegedly used in a murder.
      3. kidnaping plan in Morrell- Cases, obstruction & Rule 3.4(a)
      4. To destroy or hide evidence is obstruction of justice. Turn the evidence over to the
         prosecutor in a ―non-prejudicial‖ way. The lawyer cannot do anything to make the job
         of the police or prosecutor harder.
      5. Problem for prosecutor: chain of custody or evidence. Under the LGL – the defense
         attorney may not object to a poor foundation for the chain.
      6. In civil cases, short of an interrogatory or discovery request, the attorney need not
         deliver evidence.

II. Fruits & Instrume ntalities of a crime: Advice to Client & Communications w/lawyer,
Question 2
   A. Communications –

      1. Morrell (page 406) – kidnapping plan turned over by d‘s friend to atty; atty helps
         friend turn it in to the police. This was deemed proper because atty would
         have been obliged to turn ove r evidence anyway.

      2. Meredith (page 407) – client‘s disclosure regarding whereabouts of victim‘s
         wallet was privileged. However, when investigator removed the victim‘s wallet
         from the crime scene, it ceased to be privileged. When counsel removes or
         alters evidence, he necessarily deprives the prosecution of the opportunity to
         observe that evidence in its original condition or location.

      3. Cluchette (page 407)– wife working for husband‘s attorney as an investigator;
         retrieves receipts an turns them over to prosecution. No violation of a/c, because
         the receipts had been moved. If atty had left the receipts there, they would not
         have had to disclose them.

      4. Fairbank (page 407) – if a lawyer takes possession of stolen property, the lawyer
         must inform the court of the action. The court, exercising care to shield
         privileged communications and defense strategies, must take appropriate
         action to ensure that the prosecution has timely access to physical evidence
         and any alteration thereof.

      5.    Dean (page 408) – lawyer ordered to not disclose identity of burglar who
           returned stolen goods; public policy is to encourage people to return stolen goods,

      6.    Decker (NM) – privilege does not extend to relationship between withdrawn atty
           and man who has stolen his child from mother.

   B. Advise D re: gun - Gen duties of lawyer re: fruits & instrumentalities - What can
      lawyer do w/evidence? How long keep? Examine? Run tests? LGL § 179(119) &
      comments b & c; custody cases-crime fraud exception.



                                                                                                 50
       Constraint: the defense attorney must be careful that none of the tests you run
       can impair the police or prosecutor’s investigation. You can keep it for a
       reasonable amount of time.
       Lawyer take gun? Tell D hide gun? Obstruction stats; communications w/lawyer; linking
       to client, foundation; Crim v. civil cases; General conclusion

III. Buried Bodies Case, Question 3
Client or lawyer photos; In re Ryder; Victim still alive
Ryder: atty took possession of sawed off shotgun and stolen money, knowing that the money had
been stolen and the shotgun used in a robbery. He intended to retain possession of the evidence
unless the government discovered it, so he had transferred from the client‘s safe deposit box to
his safe deposit box. Held: In helping his client to conceal the shotgun and money, he acted
without the bounds of the law. Concealment of the stolen money and shotgun to secure his
client‘s acquittal was wrong whether property was in his or his client‘s possession. Diminished
sanction – he got off easy.

IV. Recorded Conversations, Question 4
No suit filed or subpoena (if you know that a suit will be filed or that one is foreseeable, then it
would be obstruction to destroy, etc.)- How advise client? Generally, it is an obstruction of
justice to stifle, suppress, or destroy evidence knowing that it may by wanted in a judicial
proceeding or is being sought by investigating office rs.
1. Listen to the tapes
2. You must tell the client that they may have committed a crime – the ―relevance of the
    evidence.‖ That it may have exculpatory value or value in a plea situation.
3. Alternatives –
     Put them back in the file
     Destroy? No
     Document retention & destruction (destroying all documents of the same year/vintage –
        this is not obstruction of justice), legitimate destruction->
     Unlawful obstruction, fed & state obstruction statutes, LGL § 178(118) & comment c.
4. Pros and cons – the fact of the tape‘s existence may be detrimental to the case
5. Let client decide after giving them the pros and cons of destroying the documents.
Dilemma? Conflict lawyer‘s self- interest & client‘s interest? Plea bargain option.
The client may later blame you as the attorney, for the destruction of documents.

V. Privilege & Client Identity, Question 5
Intro - Rule 1.6 — info relating to rep, auth; A/C privilege — LGL 119(69) comment g & Rep
Note
Baird & Baltes, Dietz - rationale: communication v. last link, payor — benefactors; Payment
counterfeit bill.
 IRS charges client, 26 USC 60501 – The client‘s identity, fee, and the fact of communication
    are not privileged because they are not the communication itself.
 When would revealing the identity have the practical impact of revealing the
    communication? Tax and draft problems, etc. ―Last Link‖ -- Baird v. Koerner (page 412) –
    one case where the court allowed the attorney to withhold the client‘s identity against the
    IRS‘s demands, because disclosure of identity would lead to guilt.


                                                                                                   51
   Bail jumping: Nackson (page 413) – you may not reveal the whereabouts of the client. But
    the conduct depends completely on the local criminal law. If it is treated as a past offense,
    then the attorney may withhold the location. If it is a continuing offense, then the location is
    within the crime fraud exception.

                Problem 27- The client who intends to commit perjury (page 417)

I. Basic Rules, Question 1
Rule 3.3, definitional problems — "knows," term section – actual knowledge; "false evid," –
client fabrication.
Ethics 2000 Rule 3.3 – under comment 7, knowledge can be inferred from the circumstances.
Preparing witness — Rule 3.4(b), Anatomy of Murder prob(400, n.66; cases (418-19)
In this rule, the client’s interests are subordinate to the duty to the court.

II. T.P. Witnesses & Perjury, Question 2
MR 3.3 (a)(4) & (c), cases (419-21)
Third party perjury is clearly out – Reasonable belief.
Not ineffective assistance of counsel – Tibbs (page 420) Usually, these issues are hammered out
in court proceedings, rather than in disciplinary procedures.

III. Client Perjury, Question 3
Early - Nix, lawyer‘s approach, consulting client & effect of perjury; Late & actual -practical
problems; Friedman Trilemma; W/drawl - what can lawyer say? Client‘s right to testify, whose
decision? Ethics 2000 Rule 3.3
There is no constitutional right to testify falsely.

Three time periods of discovery for perjury
 Early
Helping the witness to lie or advising them of what needs to be established.
Tell the client that they cannot offer perjured testimony, and the consequences if they do.
Ineffective assistance of counsel:
Serious attorney error – links Nix to ethical rules.
Prejudice the defendant
Could the withdrawing attorney testify in the defendant‘s retrial for the prosecution? Yes,
crime/fraud.

 late – eve of trial
Withdrawal option gone and there is great time pressure.
Try to convince the client to tell the truth – warn. In a jury trial, you may talk to the court if you
know. The court may ask you if you are sure.
Then, put them on the stand and let them tell a narrative, question the m in the ordinary manner,
don‘t ask any questions about self-defense or refuse to call them.

 After the fact
If the defendant takes the stand and lies. Then you disclose it if you know it is false.




                                                                                                    52
IV. Meaning of Nix, Question 4
If no w/drawl, what does Nix say lawyer should do? Disclose. Cases (422-23); Issue - ethics or
con law, relation of two? Nix & Rule 3.3, Comment 12; Nix on remand if had gone other way, D
testify new trial -saw gun, call D‘s original counsel?
Nix as ethical rules for fed cts , Rule 3.3(a)(4)&(b), what if state has diff rule? Constit & other
remedial approaches to late discovered or past perjury, constit of Rule 3.3?
LGL § 180(120) & comments; Ethics 2000 Rule 3.3
There is not a set of ethical rules for the federal court.

V. Remedial Measures, Questions 4-6
Late discovered perjury - Not call; Go to judge, what prerequisite for lawyer? what risks? what if
client disagrees? what should judge do? Cases (424-25); Put on stand; Narrative; AZ 3.3; Post
Nix & 3.3 cases; LGL § 180(120) comments 8-10; Ethics 2000 Rule 3.3.
Actual perjury; Judge‘s Alternatives; Actual practice - lawyers & judges; 3.3 (a) & (b) &
adversary system; Friedman; "Knows"

                         Problem 29: The Crusading Prosecutor (page 450)
Issue arises when Prosecutors make pre-trial statements in the press.
Pre-trial Publicity: Rules 3.6 and 3.8 (g) – Gentile (page 452) ―without elaboration‖ – void for
vagueness.

Policy for the rule: prevent infection of the jury pool.

3.6(a.) General statement
 Materially prejudice
 Dissemination
3.6(b.) Safe harbors
3.6(c.) Rebuttal from opposing counsel - counteract
3.8(g.) Avoid heightening public condemnation.

How effective do these rules seem to be? Not very. Is that a big problem? No. Another view:
voir dire; judge remedies – gag orders; libel suits

Az. Rule 3.6 has retained the language rejected in Gentile and as such is probably
unconstitutional.

Attorney subpoenas –Rule 3.8(f); See problem 19
Feds – Thornburg,Reno regs, McDade amendments.
McDade Amendment – U.S. v. Colorado State Court (new matter memo)

                        Problem 31 – Professional Advertising (page 486)

Intro — Practice, controversy, constitutional v. ethics, inherent v. actual — prophylactic rule v.
proven harm

Bar associations – too hard to police; absolute ban



                                                                                                   53
Opponents – proven harm in particular cases

I. Is Jerry’s Ad Constit protected? Question 1
   A. Test - Bates, various statements; General Discussion constit, Bates & Zauderer, what
       constit protected in latter

       Holding: Bar association may not flatly prohibit advertising the name, location,
       and identified legal tasks at identified fees. A state bar may regulate reasonable
       time, place, manner; and may prohibit misleading adve rtisements.

       [When there are private restraints on advertising, they are antitrust cases. When the
       state bans it, it is a constitutional issue.]

       The large firms generally oppose advertising because of the image projected to the
       public.
       Small firms and solos generally favor advertising to break into the market.

       Non-advertising competition opposes advertising (DR, Criminal law, PI,
       Immigration). Usually, opposition is driven by self- interest.

   B. Jerry‘s ad - what statements raise constitutional issues? What are substantial state
      interests- inherently misleading, overreaching- undue influence, invasion of privacy,
      dignity prof.

   C. C. AZ ER 7.1(b) & 7.(1)q — constitutional? ―Predominantly Informational‖ – what is
      ―factual information?‖ This tends to be void for vagueness. To the extent that there
      has been any enforcement at all, the advertisements were misleading. Thus, the rule
      has not been challenged.
   D. Disclaimers - Zauderer (507), Ibanez; Az ER 7.1(e),(g).

       Zauderer - a state may constitutionally require disclaime rs that serve the state’s
       substantial and legitimate interests. An advertiser’s rights are adequately
       protected as long as disclosure requirements are reasonably related to the state’s
       interest in preventing deception of consume rs.

       Zauderer – Holding: specific information about the existence of a certain kind of
       claim is protected; an illustration is protected.

       In the AZ rules you can see a regression in the style. It is a throwback to the Model
       Code – it is very complex.

   E. Style & Nature of Adv Rules — Rules v. Code, Az reversion Code style, ER 7.1, 7.2
       & 7.3 & their structure; Ethics 2000 Rule 7.1

II. Basics of Rules 7.1 & 7.2, Question 2
   A. Evaluation of Jerry‘s Ad under Rules; note Code - go thru ad, what statements cause
       problems?


                                                                                               54
   B. Go thru AZ Rules

   C. Other ad features: Attention devices, pictures, Zauderer (444); endorsements; quality
      claims, won- lost records, inherently misleading? Shane; use disclaimer? Az 7.1(l);
      Lawyers v. CPAs, Ibanez & Edenfield; Ethics 2000 Rule 7.1

       Quality claims and win/loss records may raise expectations. Rule 7.1 may violate the
       ―unjust expectation‖ of the consumer. Compromise: use a disclaimer. Ethics 2000 is
       more permissive: 1. Simpler and less restrictive rules;

III. TV & Internet Ads, Question 3

       Rule 7.2 (a) & (b); Context, endorsements, Dramatizations, tombstone ads, Recent Az
       Consumer Fraud; AZ ER

       7.1(q)(1)&(2) constit? Bates – sensitity to advertising on television; Zauderer,
       Humphrey; Fla. Bar, Jacobs, various state restrictions
       Internet & Home Pages; Az Op. 97-04; Ethics 2000 Rule 7.2

       In Bates, the court said that the paternalism of the bar is misplaced – there is some
       responsibility on the consumer to ask questions.

       “Tombstone” ads: reading the newspape r ad on television – Iowa.

       Adds should further the informational purposes. See book, pages 490-491.

       Critically important: In re Griese. What is practicing law? Is making a recommendation
       in favor of a certain attorney (ad) practicing law?

IV. Trade Names, Question 4
Rule 7.5; Definitions-what is a "trade name?" diff fact patterns, deceased partners, national
firms; AZ 7.5 & Comment - Az says you cannot use trade names, but you can use names of
deceased partners.


                   PROBLEM 32 – Solicitation of Legal Business (page 508)
I. Basics of Rule 7.3(a) & (b), Question 1
   Existing Clients-you have a duty to contact existing clients and keep them informed on
   updates in the law;

   New Clients, "prior professional relationship," meaning? fact patterns; Az ER 7.3; Ethics
   2000 Rule 7.3 – adds ―close personal relationship.‖

   Line: ―In person‖ or live telephone contact and ―real time‖ or electronic contact.
   7.1 is a general rule that covers all communications.
II. Law Firm Se minar, Question 2


                                                                                                55
   "Solicit," "In-person," "Signif motive;" Constit? Client or t.p. recommendations, Rule
   7.2(c) & ER 7.1(j).

   Seminar informing about potential legal problems for a group of people, offering services
   – not necessarily directly – to help with problems. This is a close call. Steps:
   1.   Is this ―in-person‖
   2.   Is this for family or prior professional relationship?

   3.   Is it motivated by pecuniary gain?

   Question: who is soliciting whom? Who initiates?

   7.3 This rule is prophylactic (flat prohibition) because of the inherently overreaching
   nature.

   To place a brochure on the table, after giving a talk, is not one on one, but is it ―in
   person?‖ This seems like a helpful situation.
                          n3
   Airline crash - visiting relative, problem facts, Ohralik & Primus; Actual effects
   relevant?

   Edenfield v. Kane (449-50); Ethics 2000, 7.3(a)(3),Alt 2- Me, Mass, NJ, Rep Memo p. 5;
   Az ER 7.3(d)(4).
   Hanging the ad on a relative‘s door – is not in person.

   Talking to the client at the door – clearly prohibited.

   Ohralik’s evil deed: visiting the victim in the hospital – it does not matter what good
   things he may have done, because this is an absolute prohibition.
   Primus:

   Rehnquist: there are public interest ideals that may override the protection of the client –
   this is bad.

   Edenfield (page 510): is it different with CPA‘s? They are not trained in the art of
   persuasion. Many CPA‘s are lawyers and can be just as persuasive. All of these rules are
   premised on the powerful economically savvy lawyer and the client that is just the
   opposite - Another argument against the flat prohibition.
IV. Targeted Direct Mail, Question 4
   Shapero; MR 7.3 & amends; AZ ER 7.3 & Shapero comment

   Live & recorded telephone messages; Internet communications & 7.3, Az Op. 97-04 (5);
   Handbills - solit or adv? This is an in-person solicitation; but it may be Constitutionally
   protected.



                                                                                                  56
   Fla v. Went For It (page 513) - substantial state interest – invade privacy tied to lawyer
   reputation, Shapero distinc. & direct & material advance, narrowly drawn; Dissent; cases
   (514-15); Ethics 2000 Rule 7.3(a)(3). Rebuttal to an objection to the Free Speech
   violations: Time to reflect and throw it away. See cases 514-515. In light of these cases,
   is there a question about Arizona 7.3 (d)(4)? Yes, the statute is a bit broad.

   "Pay to Play" – Paragraph (f), page 516 – making contributions to legal officials and then
   being awarded with business.
   How about a mass mailing to certain types of persons? OK, under an exception.

   Norris (page 513)- sending the wreath violates no rule; but attaching the brochure to the
   wreath was very tacky.
V. Solicitation & No Fee, Question 5
    Primus - Rehnquist point
VI. Sanctions for Disqualification
Disqualification, disbarment?


                       PROBLEM 33- The Ethics of Referral to a Specialist
Policy: protect the public.
I. Specialization, Questions 1-3
   A. General Review of Competence : disciplinary standard in rule 1.1 not very high:
   knowledge, skill, thoroughness, preparation. Not as high as the malpractice standard.
   One can learn on the job.

   B. Specialization - purpose, competence v. experience, what types of programs, various
   distinctions (p. 3), impact on specialist & nonspecialist right to practice, what fields, Rule
   7.4, Az ER 7.4, Az system

   Practical: Interest, referrals, resources, efficiency dictates doing those things that
   you are best at. At the large firm, there are several divisions. At the small firm, you may
   have to associate another lawyer or turn the client away.

   Does it make sense for states to license specialists? Practically good for attorneys as
   stated above. Good for clients: better service; advertising of specialties helpful in
   locating a suitable attorney.

   These certifications certify that the attorney is ―experienced‖ but make no guarantees of
   ―competence.‖ Competent knowledge is certified. No test is required for certification in
   practice areas in Arizona.

   C. Holding Out - Constit issues — Bates, RMJ & Peel; "Experience," "specialist;" Rule
   7.4 – 1989 (RMJ), 1992(Peel) & 1994 amendments, secondary meaning, "Specialist" -
   Comment 1; Az ER 7.4, Az Bd Gov NBTA; Disclaimers - 7.4(c) & (d); Az, contrast ER
   7.4 & 7.1-7.3; Malpractice




                                                                                                    57
   RMJ disciplined for saying ―real estate‖ and ―personal injury‖ rather than the permitted
   ―property‖ and ―tort‖ language. The former are more helpful. The court struck the law
   down because there was nothing misleading or abusive. What can you say when you
   hold yourself out? My practice is limited to...I concentrate in...I am certified by the
   board of ... in that state.

   Peel, ―Gary E. Peel; Certified Civil Trial Specialist By the National Board of Trial
   Advocacy; Licensed: Illinois, Missouri, Arizona‖ Was this misleading? This is not
   inherently misleading, but possibly misleading. So the state could require a disclaimer
   (―not affiliated with the federal government or state government‖) ―Certified by...‖ –
   notice disclaimers in Rule 7.4.

   Still up in the air: ―I specialize in...‖ The model rules seem to allow this, but be careful.
   You cannot say that you are a certified specialist. Arizona rules: you are not permitted to
   say that you specialize. You can say ―limited‖ or ―concentrate.‖
II. Fee Splitting, Questions 4-5
   A. Basics of Rule 1.5(e) - Concerns; Impact of specialization on referrals & referral fees
   (referral fees not allowed by this rule); How secure referral fee Rules, association of
   lawyer,

   Problems with referral fees: shopping for the best referral fee; not having them may result
   in no referrals. In big law firms, rainmakers share in the fees; among small firms referral
   fees are prohibited.

   Purpose, effect & evasion - discourage referrals? easily evaded? greater or lesser
   competence? impact malpractice? better for clients-help choosing attys? Ethics 2000 MR
   1.1 Proposal, Comments & Principles (would have required a referral to a specialist – no
   longer in 1.1); Model Code v. Model Rules; Client knowledge of each lawyer‘s share,
   Best for client: get the expert for the client. Good for Ramirez‘s client: they know him;
   bad because he may not do the best job.

   "Joint responsibility"- meaning? Comment 4, Rule 5.1 = malpractice liability. This
   also requires the consent of the client. MR 1.5(e)(2) & comment 4; Ethics 2000 Rule
   1.5(e). See case on page 536.
   Enforceability between lawyers - auth split

   Splitting with non-lawyers, MR 5.4(a)
   B. What should Ramirez do? What‘s best for client? Impact specialization on referrals here?
   Lawyer as marketing agent; Fee splitting a problem here?

                 PROBLEM 35 – Duty to Work for No Compensation (561)
I. Mandatory Pro Bono, Question 1
   Rule 6.1, Az ER 6.1; Ethics 2000 Rule 6.1 – essential question: mandatory or voluntary.
   MR – voluntary; Kutak – mandatory. As it stands now, voluntary.
   Should lawyers be obligated – go read the memo on the professor‘s web-site.


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   Is this more than altruism?
II. Compelled Representation, Questions 2-4
   Pay & competence; Civil & crim cases; Zarabia – for years Yuma county refused to have
   PD or Legal aid office. This was ruled a violation of ARS, not unconstitutional. See also,
   Joe E. Smith
III. IOLTA, Question 5
ABA Opinion; Az Rule 44; Constit - Phillips, remand NM
Interest on Lawyer Trust Accounts – the main feature was that you did not need to get client
consent. Constitutional concerns: If the interest on the account is the property of the client, was
this an uncompensated taking? Should you have to ask the client? I think so.
   Phillips – 5-4 Supreme Court decision: inte rest on trust accounts is the property of
   the client even if bank charges would mean the client could never spend it, re mand
   NM. No ruling on whether the IOLTA account constituted an unconstitutional
   taking.

                 Problem 34: Responsibilities of Lawyers to others in their Firm
                                           Page 546

MR 5.1-3: Notable, not so much their substance, but that those types of things would be included
in the model rules.

Sale of a Practice: solo and very small firms at a disadvantage to large ones. In a large firm, you
buy an equity interest in the firm. But the notion that you could not sell the practice because
clients are not commodities has been largely rejected – Except in Arizona. The problems
involve confidentiality, notification and consent by the client. In response, the ABA adopted
MR 1.17 – according to the reporter‘s notes, the rule is in limbo.

Question 3: How to treat lawyers in a law firm
Fairness: value of certain persons over others is permissible, based on performance, etc.
Discrimination Based on Race, gender, sexual preference: Comment 2 – MR 8.4. A pattern of
conduct will get a lawyer in trouble, but enforcement of the rules is murky. But there are
other remedies: Title VII claims. Note 3(g) – page 552.

Retaliatory Discharge – Question 2
Herbster v. North American Company for Life and Health Ins. (page 547)
Policy: clients have the right to choose or fire and attorney.
Conflicting: public policy exception to ―at will‖ employment – firing because of not doing
something that is wrong. This is a basis for a lawsuit.
If the client is requiring the attorney to do something illegal, then should ther e be a suit for
wrongful discharge? This could give rise to a confidentiality problem – to what point could the
lawyer use information in the cause of action? But if an outside attorney can use the information
to collect a fee, then it seems that the employee/atty should be able to use it in a cause. Also
there is the crime fraud exception.
The cases now seem to moving toward a trend to protect the corporate employees/lawyers .
(Early cases favored the employer because they imposed the ethical cost onto the client.)


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Reinstatement is clearly not a remedy in a case like Balla v. Gambro (page 548) To the degree
that the attorney client relationship is different than a typical employee-employer relationship,
the arguments are stronger regarding this remedy.

Should the situation be different when a law firm fires an attorney? The analysis is different
because at a law firm the client is not firing the attorney, the firm is. So how do you find an
action? This is not a tort, it is a contract claim. It is a breach of contract to fire one for doing
their ethical duty. Weider v. Skala (page 549)

Question 4
―Grabbing and Leaving‖ – Attorneys leaving and taking clients with them.
Variations:
 A whole practice group leaves the firm
 A rainmaker picks up and goes to another firm
 Groups of associates leave and go elsewhere

What can partners do after they have left the firm?
 Inform the client of the move – this is an obligation under MR 1.4. ABA opinion 99-414 in
  the new matter memo.
 Solicitation Problem: MR 7.3(a); and 7.1. They had a prior professional relationship,
  therefore, they can solicit their business.
 The client can do whatever they want.

What can the partners do before they leave the firm?
 Lease space; make contracts for overhead.
 Negotiate with new firm.
 Letters informing clients of impending exit is permissible. Soliciting the clients is probably
  not permissible - Meehan v. Shaughnessy (page 554) because they breach their fiduciary
  duties to partners.
 Under notions of fiduciary, law of agency, parntership agreements, torts of unfair
  competition, there may be causes of action.
 Cannot copy the firm‘s client list – breach of fiduciary duty and company secrets.
 Is it firm property, whether physical or informational?
 They should transition the cases they currently working on. Meehan v. Shaughnessy.
 Ultimately, the client‘s choice is the fundamental issue.

Question 5: Covenants not to compete.
Direct covenants not to compete violates MR 5.6
Indirect covenants: have been found to violate 5.6 as well beca use they restrict autonomy of
attorneys and client‘s ability to choose attorney.
In other professions there is a rule of reasonableness because the employer has a legitimate
interest that requires protection. Doesn‘t a law firm have a legitimate interest? See Howard v.
Babcock (page 558) for a lesser stringent standard.




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                      PROBLEM 38- Unauthorized Practice (Page 599)
I. General Discussion of Unauthorized Practice of Law, Questions 1-3
   A. Rule 5.5 - Definition, types of conduct - Advice by accountants, real estate brokers,
   immigration advisors, debt counselors and others; law students; kits, books, etc - practice
   of law? desirable or undesirable? benefits? harms? anticompetitive? Scope of "practice of
   law;" Federal admin agencies, supremacy cl. – non- lawyers; LGL § 4;

   B. AZ — AZ Title & Constit amend — Art XXVI (real estate agents are entitled to
   practice law) & current situation(there is no statute prohibiting the practice of law by
   non- lawyers), litig; Decisions re: admin agencies. Various Az Rules-Az S. Ct. 31(a)(4),
   33(f), 38, 39 & 40

   Arizona has a very broad definition of what the practice of law is: ―What lawyers do is
   the practice of law.‖ Arizona does not allow non-lawyers to practice in front of an
   administrative agency.

   C. Extra-jurisdictional practice - Recent cases (602-03), LGL § 3. Ethics 2000 Rule
   5.5(b) & Comments 2-6 & Reporter‘s memo
II. Lawyer & Non Lawyer Associations, Questions 3-6
   A. Rule 5.4(a)-(d); Non lawyers in firms — 5.4(a)(3); DC 5.4(b); profit sharing
   paralegals; Ethics 2000 Rule 5.4

   B. Law Firm Subs & Ancillary Services - Rule 5.7 controversy — 1991,1992, 1994;
   Types of services-Comment 9; Az; Relation 5.7 & 5.4, Ethics 2000 Rule 5.7 Reporter‘s
   Observations; Lawyer owned businesses

   C. MDPs, US & Europe; Ethics 2000 Rules 5.4 5.7 memo & Rule 5.7 Reporter‘s
   Observations; ABA & Az MDP Reports

   Multi-disciplinary practice – ancillary services. ABA rejected them. Arizona permits the
   MDP, which rules are under the draft, then must be sent to the Supreme Court.
III. Disbarred lawyers & Nonlawye rs, Question 7
   Az. developments; In re Creasy - NM




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