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					                                Professional Responsibility
                                    Fox – Spring 2010

I.   BEGINNING THE CLIENT-LAWYER RELATIONSHIP
       a. Court Appointments
              i. Provisions
                     1. MR 6.1: Voluntary Pro Bono Public Service
                     2. MR 6.2: Court appointments.
                             a. If a judge appoints you a case, you have to take it
                                  UNLESS:
                                       i. representing the client is likely to result in violation
                                          of the Rules or other law,
                                      ii. representing the client is likely to result in an
                                          unreasonable financial burden on the lawyer, or
                                     iii. the client or the cause is so repugnant to the lawyer
                                          as to be likely to impair the client-lawyer
                                          relationship or the lawyer’s ability to represent the
                                          client.
             ii. Bothwell v. Republic Tobacco Co., 912 f. Supp 1221 (D. Neb. 1995) (pg.
                 59) – court has legal authority to order court appointments for indigent
                 parties; here, lack of lawyer was not caused by indigence, but by lack of
                 marketability for the claim. Should not try to seek to avoid representing a
                 person except for a good cause.
       b. Pro Bono Service
              i. Provisions
                     1. MR 6.1: Voluntary Pro Bono Public Service
                             a. Every lawyer has a professional responsibility to provide
                                  legal services to those unable to pay. A lawyer should
                                  aspire to render at least (50) hours of pro bono publico
                                  legal services per year. In fulfilling this responsibility, the
                                  lawyer should:
                             b. (a) provide a substantial majority of the (50) hours of legal
                                  services without fee or expectation of fee to:
                                       i. (1) persons of limited means or
                                      ii. (2) charitable, religious, civic, community,
                                          governmental and educational organizations in
                                          matters that are designed primarily to address the
                                          needs of persons of limited means; and
                             c. (b) provide any additional services through:
                                       i. (1) delivery of legal services at no fee or
                                          substantially reduced fee to individuals, groups or
                                          organizations seeking to secure or protect civil
                                          rights, civil liberties or public rights, or charitable,
                                          religious, civic, community, governmental and
                                          educational organizations in matters in furtherance
                                          of their organizational purposes, where the payment
                                          of standard legal fees would significantly deplete
                                          the organization's economic resources or would be
                                          otherwise inappropriate;

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                             ii. (2) delivery of legal services at a substantially
                                 reduced fee to persons of limited means; or
                            iii. (3) participation in activities for improving the law,
                                 the legal system or the legal profession.
              2. In addition, a lawyer should voluntarily contribute financial
                 support to organizations that provide legal services to persons of
                 limited means.
      ii. 3 approaches
              1. Legal right to representation
              2. Duty of individual lawyers
              3. Deregulation so that non-lawyers can provide assistance
c. Fiduciary Duty to Clients
       i. Five duties
              1. Control over object of representation
              2. Communication
              3. Competence
              4. Confidentiality
              5. Conflict of interest resolution
      ii. Unbundling duties, or limiting scope of representation, is permitted under
          MR 1.2(c), but only if reasonable and client gives informed consent.
              1. Implicates 3 duties: control (client takes more), communication,
                 competence
d. Repugnant Clients/Issues
       i. Provisions
              1. MR 1.2(b) - Representation does not constitute endorsement.
                      a. A lawyer's representation of a client, including
                         representation by appointment, does not constitute an
                         endorsement of the client's political, economic, social or
                         moral views or activities.
              2. MR 1.2(c): Limiting Representation
                      a. A lawyer may limit the scope of the representation if the
                         limitation is reasonable under the circumstances and the
                         client gives informed consent.
                      b. Takeaway: must be reasonable, client must give
                         informed consent.
      ii. Must be basis in law or fact for making the argument
              1. MR 3.1: Meritorious Claims and Contentions
                      a. A lawyer shall not bring or defend a proceeding, or assert
                         or controvert an issue therein, unless there is a basis in law
                         and fact for doing so that is not frivolous, which includes a
                         good faith argument for an extension, modification or
                         reversal of existing law. A lawyer for the defendant in a
                         criminal proceeding, or the respondent in a proceeding that
                         could result in incarceration, may nevertheless so defend
                         the proceeding as to require that every element of the case
                         be established.

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              iii. Is a way to avoid court appointments (see above MR 6.2)
II. LAWYERS, ROLE, AND LAW
        a. Role of lawyers
                i. 3 options for role of lawyer
                       1. Instrumental – do what client wants (Fox, Freedman, pg. 3)
                       2. Directive – lawyers use moral background to aid clients and direct
                          their decisions (Rhode, pg. 6)
                       3. Collaborative – middle ground, counsel/reason together and come
                          up with plan of action
               ii. Can get advice that goes beyond legal advice.
                       1. MR 2.1: Advisor
                               a. In representing a client, a lawyer shall exercise independent
                                   professional judgment and render candid advice. In
                                   rendering advice, a lawyer may refer not only to law but to
                                   other considerations such as moral, economic, social and
                                   political factors, that may be relevant to the client's
                                   situation.
III. JUDICIAL AND PROFESSIONAL REGULATION OF LAWYERS
        a. Bar Admission
                i. Provisions
                       1. MR 8.1: Bar Admission and Disciplinary Matters
                               a. An applicant for admission to the bar, or a lawyer in
                                   connection with a bar admission application or in
                                   connection with a disciplinary matter, shall not:
                                         i. (a) knowingly make a false statement of material
                                            fact; or
                                        ii. (b) fail to disclose a fact necessary to correct a
                                            misapprehension known by the person to have
                                            arisen in the matter, or knowingly fail to respond to
                                            a lawful demand for information from an
                                            admissions or disciplinary authority, except that this
                                            rule does not require disclosure of information
                                            otherwise protected by Rule 1.6.
                       2. MR 8.4: Misconduct
                               a. It is professional misconduct for a lawyer to:
                                         i. (a) violate or attempt to violate the Rules of
                                            Professional Conduct, knowingly assist or induce
                                            another to do so, or do so through the acts of
                                            another;
                                        ii. (b) commit a criminal act that reflects adversely on
                                            the lawyer's honesty, trustworthiness or fitness as a
                                            lawyer in other respects;
                                      iii. (c) engage in conduct involving dishonesty, fraud,
                                            deceit or misrepresentation;
                                       iv. (d) engage in conduct that is prejudicial to the
                                            administration of justice;

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                              v. (e) state or imply an ability to influence improperly
                                  a government agency or official or to achieve
                                  results by means that violate the Rules of
                                  Professional Conduct or other law; or
                             vi. (f) knowingly assist a judge or judicial officer in
                                  conduct that is a violation of applicable rules of
                                  judicial conduct or other law.
      ii. In re Application of Converse, 1999, pg. 24 – challenged bar admission;
          Court: state can conduct inquiry into moral character and past conduct, not
          limited by First Amendment freedoms—what he said is evidence of moral
          character, and must examine this. State can require high standards of
          qualification. Not allow conduct for those applying to admission that
          would not be allowed if person were already attorney.
b. Professional Discipline
       i. Provisions
              1. MR 1.6 (Confidentiality), 3.8 (Special Duty of Prosecutor),i 8.4
                  (Misconduct)
              2. MR 5.1: Responsibilities Of Partners, Managers, And
                  Supervisory Lawyers
                      a. a) A partner in a law firm, and a lawyer who individually or
                         together with other lawyers possesses comparable
                         managerial authority in a law firm, shall make reasonable
                         efforts to ensure that the firm has in effect measures giving
                         reasonable assurance that all lawyers in the firm conform to
                         the Rules of Professional Conduct.
                      b. (b) A lawyer having direct supervisory authority over
                         another lawyer shall make reasonable efforts to ensure that
                         the other lawyer conforms to the Rules of Professional
                         Conduct.
                      c. (c) A lawyer shall be responsible for another lawyer's
                         violation of the Rules of Professional Conduct if:
                              i. (1) the lawyer orders or, with knowledge of the
                                  specific conduct, ratifies the conduct involved; or
                             ii. (2) the lawyer is a partner or has comparable
                                  managerial authority in the law firm in which the
                                  other lawyer practices, or has direct supervisory
                                  authority over the other lawyer, and knows of the
                                  conduct at a time when its consequences can be
                                  avoided or mitigated but fails to take reasonable
                                  remedial action.
              3. MR 8.3: Reporting Professional Misconduct
                      a. (a) A lawyer who knows that another lawyer has committed
                         a violation of the Rules of Professional Conduct that raises
                         a substantial question as to that lawyer's honesty,
                         trustworthiness or fitness as a lawyer in other respects,
                         shall inform the appropriate professional authority.

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                            b. (b) A lawyer who knows that a judge has committed a
                                violation of applicable rules of judicial conduct that raises a
                                substantial question as to the judge's fitness for office shall
                                inform the appropriate authority.
                            c. (c) This Rule does not require disclosure of information
                                otherwise protected by Rule 1.6 or information gained by a
                                lawyer or judge while participating in an approved lawyers
                                assistance program.
                     4. Restatement §48-52 – Lawyer’s Civil Liability (pg. 196 of LGL)
             ii. Lawyers can be subject to professional discipline or judicial remedies or
                 both.
            iii. Responsibility of supervisors for work of younger attorneys:
                     1. Decisions not to seek charges against Bybee/Yoo for torture
                        memos – b/c Bybee relied on Yoo.
                            a. Competence requirement seems to have been violated.
                                Should say you can do x, y, or z but you should be aware
                                that it’s risky.
                            b. Yoo’s ideology dictated results of memo, not the law. Did
                                not give balanced advice.
                            c. Intent—no intent requirement so sincerely held belief
                                should not matter.
                     2. His defense seems to violate 5.1(a).
            iv. Duty to Report
                     1. If knowledge of misconduct, obligated to report it if it raises a
                        substantial question as to that lawyer’s honesty, trustworthiness, or
                        fitness as a lawyer. Even if not related to practice of law.
                            a. 2 requirements:
                                     i. Reporting lawyer must ―know‖
                                    ii. Must raise ―substantial question‖ re: lawyer’s
                                         honesty, trustworthiness or fitness as a lawyer
                     2. Confidentiality trumps obligation to report.
                            a. B/c of 8.3(c) & 1.6 (confidentiality) – for lawyer to inform
                                w/ information relating to representation of a client, the
                                lawyer must obtain the client’s informed consent before
                                making a report.
                            b. Should try to get client to consent, but must make them
                                aware of potential adverse impact of disclosing.
             v. State ex rel. Oklahoma Bar Association v. Busch (OK, 1996) (pg. 41) –
                 atty completely incompetent; argues that ADD should mitigate; court
                 imposes punishment anyway b/c of seriousness of misconduct
      c. Firm-wide discipline for individual lawyer’s mistakes only in NY, NJ.

IV. LAWYERS AND CLIENTS: FIDUCIARY DUTY
      a. Control and Communication
             i. 4 themes


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             1. Clients repose trust in lawyers, which gives lawyers power and
                 makes them fiduciaries
             2. Authority vested in a lawyer to represent a client always remains
                 subject to the client’s control over the goals of the representation
             3. Lawyers assume a fiduciary duty of communication to assure that
                 the client’s interests are properly identified and well served.
             4. The law governing lawyers provides for multiple remedies when
                 professional duties of control or communication are breached.
     ii. Lawyer is agent for the client (principle)
b. Control
      i. Provisions
             1. MR 1.2: Scope Of Representation And Allocation Of Authority
                 Between Client And Lawyer
                     a. (a) Subject to paragraphs (c) and (d), a lawyer shall abide
                         by a client's decisions concerning the objectives of
                         representation and, as required by Rule 1.4, shall consult
                         with the client as to the means by which they are to be
                         pursued. A lawyer may take such action on behalf of the
                         client as is impliedly authorized to carry out the
                         representation. A lawyer shall abide by a client's decision
                         whether to settle a matter. In a criminal case, the lawyer
                         shall abide by the client's decision, after consultation with
                         the lawyer, as to a plea to be entered, whether to waive jury
                         trial and whether the client will testify.
                     b. (b) A lawyer's representation of a client, including
                         representation by appointment, does not constitute an
                         endorsement of the client's political, economic, social or
                         moral views or activities.
                     c. (c) A lawyer may limit the scope of the representation if the
                         limitation is reasonable under the circumstances and the
                         client gives informed consent.
                     d. (d) A lawyer shall not counsel a client to engage, or assist a
                         client, in conduct that the lawyer knows is criminal or
                         fraudulent, but a lawyer may discuss the legal
                         consequences of any proposed course of conduct with a
                         client and may counsel or assist a client to make a good
                         faith effort to determine the validity, scope, meaning or
                         application of the law.
             2. MR 1.4 (Communication)
             3. RLGL §§20-23, 25-27
                     a. §20 – A lawyer’s duty to inform and consult w/ a client
                     b. §21 – Allocating the authority to decide between a client
                         and a lawyer
                     c. §22 – authority reserved to a client
                     d. §23 – authority reserved to a lawyer
     ii. Clients retain sole authority re:

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           1.    Settling
           2.    Appealing
           3.    Pleading
           4.    Waiving jury trial
           5.    Testifying
           6.    *can authorize lawyers to make decision, but ultimate authority
                 must remain w/ client.
 iii.   Lawyer retains sole authority
             1. Must refuse to perform, counsel, or assist unlawful act of a client.
             2. Lawyer may take actions in tribunals he or she reasonably believes
                 to be required by law or court
 iv.    For other decisions, lawyer must reasonably consult w/ client about
        means to be used to achieve goals, keep client reasonably informed
        about status, promptly respond to client requests for information, and
        provide enough information to enable client to make informed decisions
        re: representation
  v.    Lawyer must promptly inform/consult w/ client about decision
 vi.    If client insists on illegal conduct, lawyer must promptly inform client that
        conduct is not permitted, explain why.
vii.    Machado v. Statewide Grievance Committee (Conn. App. 2006) (pg. 78) -
        ∏ appealing reprimand issued by grievance committee; Court held that he
        violated rule 1.2(a) & 1.4(a) of MR.
viii.   Informed consent – means client has understood information, appreciated
        consequences of a choice, and used reason to evaluate this information
             1. Model rules has 6 occasions where lawyers must initiate
                 information & consent process
                     a. When decision requires client consent about objectives of
                         the representation, such as decision to settle or appeal a
                         matter.
                     b. When seeking any waiver of a client fiduciary obligation,
                         especially confidentiality and conflicts of interest
                     c. When decisions require client consent about the means to
                         be used to accomplish client objectives. Whether to
                         litigate, mediate, etc.
                     d. When necessary to periodically update clients on the status
                         of a matter, including information about important
                         developments, as well as changes in lawyer’s practice
                     e. When client requests information
                     f. When client expects assistance but lawyer cannot give it
                         due to legal limitations on lawyer’s conduct
             2. Must disclose material facts as well as explanation of their legal
                 significance. Generally obligation to disclose and explain all
                 material relevant information
             3. Limitations to informed consent
                     a. When undue influence makes voluntary consent nearly
                         impossible.

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                              i. Sexual relationships
                      b. Other duties whose absence would cause great harm to
                         clients—holding property in trust, obligations to courts,
                         third parties,
                      c. When incapacity to give authentic informed consent
                              i. Best interests in the face of incapacity justifies
                                 action on behalf of clients w/ diminished capacity
                                 who face imminent harm;
                      d. Organization clients whose managers fail to refrain from
                         unlawful activity, threatening substantial harm to
                         organization
c. Communication
      i. Provisions
             1. MR 1.2 (Scope, Allocation of Authority), 2.1(Advisor)
             2. MR 1.4 - Communication
                     a. (a) A lawyer shall:
                              i. (1) promptly inform the client of any decision or
                                 circumstance with respect to which the client's
                                 informed consent, as defined in Rule 1.0(e), is
                                 required by these Rules;
                             ii. (2) reasonably consult with the client about the
                                 means by which the client's objectives are to be
                                 accomplished;
                            iii. (3) keep the client reasonably informed about the
                                 status of the matter;
                            iv. (4) promptly comply with reasonable requests for
                                 information; and
                             v. (5) consult with the client about any relevant
                                 limitation on the lawyer's conduct when the lawyer
                                 knows that the client expects assistance not
                                 permitted by the Rules of Professional Conduct or
                                 other law.
                     b. (b) A lawyer shall explain a matter to the extent reasonably
                         necessary to permit the client to make informed decisions
                         regarding the representation.
             3. RLGL §§16, 20-23 (above), 49
                     a. §16 – A Lawyer’s Duties to a Client-In General (pg.
                         179)
                     b. §49 – Breach of Fiduciary Duty – Generally (pg. 196)
                              i. Civil liability if
                                     1. Breach (§16(3))
                                     2. Breach is legal cause of injury (§53)
                                     3. Lawyer has no defense under §54
     ii. dePape v. Trinity Health Systems, Inc.(N.D. Iowa 2003) (pg. 88) – law
         firm failed to communicate w/ ∏ about immigration options, had him


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                                  Fox – Spring 2010

                 attempt to move to US w/o proper visa, etc. Court found that firm had
                 breached duty of communication and awarded him damages
                     1. For lawyer to be on hook for damages, must prove
                             a. Lawyer-client relationship
                             b. Duty (rule 1.2 – autonomy of client), §16
                             c. Breach of duty
                             d. But-for causation
                             e. Damages
                                      i. *confidential information could be used here
       d. Actual vs. Accidental Clients
              i. Actual clients easy to spot b/c express agreement to represent them. No
                 payment necessary.
             ii. Accidental clients – lawyer did not expect, but recognized by law as
                 being owed same fiduciary duties lawyers owe clients they intend to
                 represent. Intent doesn’t matter – once a legally recognized client-lawyer
                 relationship begins, full fiduciary duties attach. Restatement §16;
                     1. Likely places: court appointments, implied client-lawyer
                         relationships, prospective clients, joint clients, third-person
                         direction, insurance defense, organizations, clients who morph,
                         quasi-clients, imputed clients
V. COMPETENCE
     a. Provisions
             i. MR 1.1 – Competence
                   1. A lawyer shall provide competent representation to a client.
                        Competent representation requires the legal knowledge, skill,
                        thoroughness and preparation reasonably necessary for the
                        representation
            ii. RLGL §16 (above)
     b. Remedies for incompetence
             i. Professional discipline
            ii. Civil liability
           iii. Reversal of conviction/sentence for ineffective assistance of counsel
     c. Malpractice and Breach of Fiduciary Duty
             i. Provisions
                   1. MR 1.1-1.4, 5.1 (above)
                   2. MR 1.18: Duties to Prospective Client
                             a. (a) A person who discusses with a lawyer the possibility of
                                forming a client-lawyer relationship with respect to a
                                matter is a prospective client.
                             b. (b) Even when no client-lawyer relationship ensues, a
                                lawyer who has had discussions with a prospective client
                                shall not use or reveal information learned in the
                                consultation, except as Rule 1.9 would permit with respect
                                to information of a former client.
                                (c) A lawyer subject to paragraph (b) shall not represent a
                                client with interests materially adverse to those of a

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                      prospective client in the same or a substantially related
                      matter if the lawyer received information from the
                      prospective client that could be significantly harmful to that
                      person in the matter, except as provided in paragraph (d). If
                      a lawyer is disqualified from representation under this
                      paragraph, no lawyer in a firm with which that lawyer is
                      associated may knowingly undertake or continue
                      representation in such a matter, except as provided in
                      paragraph (d).
                 c. (d) When the lawyer has received disqualifying information
                      as defined in paragraph (c), representation is permissible if:
                           i. (1) both the affected client and the prospective
                              client have given informed consent, confirmed in
                              writing, or:
                          ii. (2) the lawyer who received the information took
                              reasonable measures to avoid exposure to more
                              disqualifying information than was reasonably
                              necessary to determine whether to represent the
                              prospective client; and
                                  1. (i) the disqualified lawyer is timely screened
                                      from any participation in the matter and is
                                      apportioned no part of the fee therefrom;
                                      and
                                  2. (ii) written notice is promptly given to the
                                      prospective client.
         3. RLGL §51, comment d - prospective client – lawyer may be
             liable for failure to use reasonable care to the extent the lawyer
             advisees or provides other legal
 ii. Togstad v. Vesely, Otto, Miller & Keefe (1980, Minn.) (pg. 102) – Facts
     clearly established medical malpractice, but atty told ∏ no, and she took
     his advice until she talked w/ another atty over a year later when statute of
     limitations had expired; Court held that atty provided incompetent advice
     and thus legal malpractice. Defense: no atty-client relationship here so no
     duty of competence, but b/c she went to him for legal advice and he did
     not (a) refer to another atty or (b) inform her re: his lack of experience in
     medical malpractice area – court found that reasonably foreseeable that
     she would be injured if advice were negligently given. Violation of duty
     even though only prospective client.
iii. Good Practice – Letters
         1. Non-engagement letters
                 a. To clarify that no atty-client relationship was formed
         2. Retainer letters
                 a. Not required by professional rules, but useful to:
                           i. Clarify who the client is
                          ii. Define scope of service


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                              iii. Basis on which lawyer expects to be compensation
                                    & what will happen if not compensated
                      b. If brag, can hold to hire standard. If promise results, can be
                           held to this.
              3. Disengagement Letters
                      a. To establish when clients are former clients. Less loyalty
                           to former clients.
                      b. Can keep on mailing list to market services to.
      iv. Tort liability to clients
              1. Not most likely – typically clients pursue malpractice claims or
                  breach of fiduciary duty.
d. Ineffective Assistance of Counsel
        i. Provisions
              1. MR 1.1-1.4
              2. MR 1.3 – Diligence
                      a. A lawyer shall act with reasonable diligence and
                           promptness in representing a client.
              3. RLGL §§21-23, 53 comment d
                      a. §53 comment d –malpractice toward criminal defendant
       ii. Roe v. Flores-Ortega (2000) (pg. 116)
              1. Strickland v. Washington (1984) – Sixth Amendment right to
                  reasonably effective legal assistance. To prove ineffective
                  assistance of counsel, ∆ must show
                      a. Representation fell below an objective standard of
                           reasonableness
                      b. Counsel’s’ deficient performance prejudiced the defendant
              2. Holds that this test applies to claims that counsel was
                  constitutionally ineffective for failing to file a notice of appeal.
              3. 2 questions here
                      a. If consultation re: appeal, then failure to follow
                           instructions from client = professionally unreasonable
                                i. No bright line rule that a consultation is always
                                    necessary, but counsel has a constitutionally
                                    imposed duty to consult w/ ∆ about appeal when
                                    reason to think
                                        1. Rational ∆ would want to appeal OR
                                        2. This particular ∆ reasonably demonstrated to
                                            counsel that he was interested in appealing
                               ii. In vast majority of cases – unreasonable not to
                                    consult
                      b. If no consultation, does this failure to consult constitute
                           deficient performance?
                                i. When counsel’s constitutionally deficient
                                    performance deprives a ∆ of an appeal that he
                                    otherwise would have taken, ∆ had made out


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                                 successful ineffective assistance of counsel claim
                                 entitling him to appeal
                     c. Remands for more re: first prong
     iii. Especially problematic for criminal clients b/c of public defense system
e. Duties to Nonclients
       i. Misrepresentation
              1. Provisions
                     a. MR 1.1, 2.3, 4.1, 8.4(c)
                     b. MR 2.3: Evaluation For Use By Third Persons
                              i. (a) A lawyer may provide an evaluation of a matter
                                 affecting a client for the use of someone other than
                                 the client if the lawyer reasonably believes that
                                 making the evaluation is compatible with other
                                 aspects of the lawyer's relationship with the client.
                             ii. (b) When the lawyer knows or reasonably should
                                 know that the evaluation is likely to affect the
                                 client's interests materially and adversely, the
                                 lawyer shall not provide the evaluation unless the
                                 client gives informed consent.
                            iii. (c) Except as disclosure is authorized in connection
                                 with a report of an evaluation, information relating
                                 to the evaluation is otherwise protected by Rule 1.6.
                     c. MR 4.1: Truthfulness in Statements to Others
                              i. In the course of representing a client a lawyer shall
                                 not knowingly:
                                     1. (a) make a false statement of material fact or
                                          law to a third person; or
                                     2. (b) fail to disclose a material fact to a third
                                          person when disclosure is necessary to avoid
                                          assisting a criminal or fraudulent act by a
                                          client, unless disclosure is prohibited by
                                          Rule 1.6.
                             ii. But list of exceptions (judicially created?)
                     d. MR 8.4(c): attorney must not knowingly :engage in
                         conduct involving dishonesty, fraud, deceit or
                         misrepresentation;
                     e. RLGL §51- Duty of Care to Certain Nonclients (pg. 197)
                              i. Duty to nonclient when:
                                     1. Prospective client
                                     2. Invites reliance
                                     3. Knows intent is to share advice w/ 3rd party
                                     4. Client is trustee, guardian, executor, or
                                          fiduciary
              2. If nonclients relied on the advice and there was an invitation for
                 the nonclients to rely on the advice, then the law firm can be sued.


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             a. Example: writing opinion that bonds are compliant w/
                 existing law—so that people would buy bonds. Inviting
                 reliance.
      3. Greycas, Inc. v. Proud (7th Cir. 1987)(pg. 134) – said did search,
         but didn’t; lots of equipment w/ liens on them. Sued, but defended
         self by saying no duty to third party—they should have done own
         search. Posner: this is inefficient. Shouldn’t have to assume that
         opposing party will be completely incompetent.
ii. Lawyer Dishonesty, Fraud, Deceit, and Misrepresentation –
      1. Model rules 1.2(d), 3.3, 4.1(a), and 8.4(c) incorporate civil,
         criminal law of fraud and misrepresentation into professional
         obligations.
             a. MR 3.3: Candor Toward the Tribunal
                      i. (a) A lawyer shall not knowingly:
                              1. (1) make a false statement of fact or law to a
                                 tribunal or fail to correct a false statement of
                                 material fact or law previously made to the
                                 tribunal by the lawyer;
                              2. (2) fail to disclose to the tribunal legal
                                 authority in the controlling jurisdiction
                                 known to the lawyer to be directly adverse
                                 to the position of the client and not disclosed
                                 by opposing counsel; or
                              3. (3) offer evidence that the lawyer knows to
                                 be false. If a lawyer, the lawyer’s client, or a
                                 witness called by the lawyer, has offered
                                 material evidence and the lawyer comes to
                                 know of its falsity, the lawyer shall take
                                 reasonable remedial measures, including, if
                                 necessary, disclosure to the tribunal. A
                                 lawyer may refuse to offer evidence, other
                                 than the testimony of a defendant in a
                                 criminal matter, that the lawyer reasonably
                                 believes is false.
                     ii. (b) A lawyer who represents a client in an
                         adjudicative proceeding and who knows that a
                         person intends to engage, is engaging or has
                         engaged in criminal or fraudulent conduct related to
                         the proceeding shall take reasonable remedial
                         measures, including, if necessary, disclosure to the
                         tribunal.
                    iii. (c) The duties stated in paragraphs (a) and (b)
                         continue to the conclusion of the proceeding, and
                         apply even if compliance requires disclosure of
                         information otherwise protected by Rule 1.6. This
                         duty trumps confidentiality.

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                      iv. (d) In an ex parte proceeding, a lawyer shall inform
                           the tribunal of all material facts known to the
                           lawyer that will enable the tribunal to make an
                           informed decision, whether or not the facts are
                           adverse.
              b. Pgs. 139-144
iii. Aiding & Abetting
        1. Provisions
              a. MR 1.1, 1.2(d), 4.1, 8.4(c)
              b. RLGL §51
        2. An attorney can be liable to nonclient where counsel aids and
           abets a client ∆’s breach of fiduciary duty.
              a. Chem-Age Indus. v. Glover (SD 2002)(pg. 145): Lawyer
                   who prepared corporation’s incorporation documents on
                   behalf of a client may be liable to the corporation.
        3. Duty to nonclients only where will foster client’s intent and not
           harm the professional-client relationship
        4. Duty to clients does not allow lawyers to escape generally
           applicable law b/c representing client.
              a. Intentional torts
              b. Negligence—financial harm in 4 circumstances
                        i. Invitation to rely
                       ii. Negligent misrepresentation – lawyer’s failure to
                           exercise reasonable care.
                               1. Privity may be required here. usually privity
                                   required if misrepresentation made
                                   intentionally or recklessly, but other
                                   jurisdictions have replaced that requirement
                                   w/ one of foreseeability or limited
                                   foreseeability (limited group of persons for
                                   whose benefit and guidance the professional
                                   intends to supply the information)
                      iii. Third-party beneficiaries – those whom the client
                           intends to benefit in documents created by the
                           lawyer for the client
                               1. Potential adversaries or incidental (not
                                   intended) beneficiaries will likely not
                                   qualify
                      iv. Representing fiduciaries – duty to nonclients to
                           refrain from aiding and abetting a client’s breach of
                           fiduciary duty. Lawyers know fiduciaries of their
                           clients and they become liable for the client’s
                           breach when they know about it and give substantial
                           assistance to breach. Substantial assistance >
                           routine professional services. Basis of Glover,
                           where he committed crime to help, accepted ―gift‖

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                            from client knowing about financial problems,
                            benefited from legal fees from client;
                                1. Requires Knowledge
                                         a. That client owes fiduciary duties
                                         b. Of client’s breach
               c. Other professional obligations, i.e. confidentiality, likely
                    mean that no duty to 3d party, except if important public
                    policy in a statute or professional code.
                         i. Example: Tarasoff v. Regents of University of
                            California –duty on counseling professionals to
                            warn identifiable victims of a patient’s serious
                            threat of harm.
                        ii. RLGL does not include any similar obligation for
                            lawyers—may, but no requirement, to disclose
                            threats of serious bodily harm or death. §66(3)
iv. Can inform party re: ability to breach a K
       1. §57(3) of Restatement—right to advise client to breach K; can’t be
           liable to 3rd party for this. ―if the lawyer acts to advance the
           client’s objectives without using wrongful means.‖
 v. Trend: increasing lawyer’s duty to non-clients




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VI. CONFIDENTIALITY
                              CLIENT CONFIDENTIALITY
                                 Evidentiary protections Ethical/Fiduciary Duty
        Source of Law            Statute, Common law of  Agency law; MR 1.6,
                                 evidence                1.8(b), 1.9, 1.18; CPR
                                                         Canon 4
        Definition               A/C privilege:          MR 1.6(a): Information
                                 communications between relating to the
                                 privileged persons in   representation of a client
                                 confidence for the
                                 purpose of obtaining or
                                 providing legal
                                 assistance. RLGL §§68-
                                 77
        Client consent           Waiver: RLGL §78-81;    Client consent, express,
                                 91-92                   or implied: MR 1.6(a),
                                                         1.13(c), 1.14(c), RLGL
                                                         §61-2
                                      EXCEPTIONS
        Physical Harm            Future and continuing   Future serious bodily
                                 crime or fraud – RLGL   harm (crime): MR
                                 §82                     1.6(b)(1); RLGL §66
        Financial Harm/client    Future and continuing   Future crime, prevent,
        Crime or Fraud           crime or fraud: RLGL    rectify, mitigate
                                 §82, 93                 substantial financial loss:
                                                         MR 1.6(b)(2)(3); RLGL
                                                         §67
        Seeking advice           None                    MR 1.6(b)(4)
        Lawyer Self-Defense & Lawyer self-protection – Lawyer self-defense: MR
        compensation             RLGL §83                16(b)(5); RLGL §64, 65
        Required by Law or       Invoking the privilege: Required by law or court
        Court Order              RLGL §86                order: MR 1.6(b)(6);
                                                         RLGL §63

     a. Fiduciary Duty
            i. Provisions
                  1. MR 1.4, 1.6, 1.18
                          a. 1.8(b): Conflict Of Interest: Current Clients: Specific
                             Rules
                                 i. (b) A lawyer shall not use information relating to
                                     representation of a client to the disadvantage of the
                                     client unless the client gives informed consent,
                                     except as permitted or required by these Rules.

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                b. MR 1.6 - Confidentiality
                         i. (a) A lawyer shall not reveal information relating to
                            the representation of a client unless the client gives
                            informed consent, the disclosure is impliedly
                            authorized in order to carry out the representation or
                            the disclosure is permitted by paragraph (b)
                        ii. (b) A lawyer may reveal information relating to the
                            representation of a client to the extent the lawyer
                            reasonably believes necessary:
                                1. (1) to prevent reasonably certain death or
                                    substantial bodily harm;
                                2. (2) to prevent the client from committing a
                                    crime or fraud that is reasonably certain to
                                    result in substantial injury to the financial
                                    interests or property of another and in
                                    furtherance of which the client has used or is
                                    using the lawyer's services;
                                3. (3) to prevent, mitigate or rectify
                                    substantial injury to the financial
                                    interests or property of another that is
                                    reasonably certain to result or has resulted
                                    from the client's commission of a crime or
                                    fraud in furtherance of which the client
                                    has used the lawyer's services;
                                4. (4) to secure legal advice about the lawyer's
                                    compliance with these Rules;
                                5. (5) to establish a claim or defense on
                                    behalf of the lawyer in a controversy
                                    between the lawyer and the client, to
                                    establish a defense to a criminal charge or
                                    civil claim against the lawyer based upon
                                    conduct in which the client was involved, or
                                    to respond to allegations in any proceeding
                                    concerning the lawyer's representation of the
                                    client; or
                                6. (6) to comply with other law or a court
                                    order.
        2. RLGL
                a. § 15 – A Lawyer’s Duty to a Prospective Client (pg. 179)
                b. § 20 – A Lawyer’s Duty to Inform and consult with a
                     Client (pg. 182)
                c. § 59 – Definition of ―Confidential Client Information‖
                d. § 60 – A Lawyer’s Duty to Safeguard Confidential
                     Client Information
ii. Even if it’s in public domain, lawyer is barred from disclosing confidential
    information.

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              1. Exception for information generally known, but unknown what
                  this entails. Fox says this means that unless above the fold on
                  WSJ, not generally known. But not law.
     iii. Client gets to decide what to release, not the lawyer—must give informed
          consent.
     iv. Can never tell anyone about past crimes that client has committed.
      v. Matter of Anonymous (1995, Ind.) (pg. 164) – lawyer violated 1.6(a) (by
          revealing information relating to representation w/out her consent); 1.8(b)
          (by using that information to her disadvantage w/out her consent); hired
          for child support against father, but also worked for welfare department &
          the couple owed welfare department money. Revealed information from
          mother to get money for welfare department.
     vi. Perez v. Kirk & Carrigan (Tex. App. 1991) – truck/bus accident, lawyer’s
          took Perez’s statement. Law firm turns over statement, and he sues them.
          Law firm says no privilege b/c other people in the room. Law firm
          voluntarily turns over statement to DA where Perez thinks he’s liable for
          the accident. Breached fiduciary duty to Perez by wrongfully
          disclosing his statement, whether privileged or just confidential, to the
          DA. Suffered emotional distress & mental anguish.
b. Evidentiary Protections: Attorney-Client Privilege and Work Product
   Immunity
       i. Privilege
              1. Provisions
                      a. §68 (Attorney-Client Privilege)
                               i. A-C privilege may be invoked for:
                                       1. Communication
                                       2. Between privileged persons
                                       3. In confidence
                                       4. For the purpose of obtaining or providing
                                           legal assistance for the client.
                      b. §69 – communication – any expression through which a
                          privileged person undertakes to convey information to
                          another privileged person and any document or other record
                          revealing such an expression.
                      c. §70 – privileged person – client (including a prospective
                          client), the client’s lawyer, agents of either who facilitate
                          communications between them, and agents of the lawyer
                          who facilitate the representation
                      d. §71 – in confidence – at the time and in the circumstances
                          – the communicating person reasonably believes that no
                          one will learn the contents of the communication except a
                          privileged person or another person with whom
                          communications are protected under a similar privilege.
                      e. §72 – Legal Assistance as the object of a privileged
                          communication – if made to or to assist a person: who is a
                          lawyer or who the client or prospective client reasonably

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              believes to be a lawyer; whom the client or prospective
              client consults for the purpose of obtaining legal assistance
         f. §73 – privilege for an organization client (pg. 219)
         g. §74 - privilege for a governmental client – (pg. 223)
         h. §75 – privilege of co-clients (pg. 224)
         i. §76 – privilege in common-interests arrangements
         j. §77 – duration of the privilege – may be invoked at any
              time during or after termination of the relationship.
         k. FRCP 26(b)(3)
2.   If not providing legal advice, no privilege. Have to meet all
     requirements
         a. Lawyer/client relationship
         b. Confidential
         c. Communication
         d. Giving/receiving legal advice
         e. No one else there present –if other people, confidential, not
              privileged.
3.   Ethical obligation to create a privileged environment that’s as large
     as possible.
         a. Ex: in Pennsylvania—only information that comes from the
              client is privileged, so in all communication, try to include
              information from client to make it privileged/confidential.
         b. But mustn’t overclaim privilege b/c courts depend on
              lawyers. Don’t want to lose credibility or have privilege
              stricken.
4.   Hughes v. Meade (Ky. 1970) (pg. 173) – stolen typewriter left on
     atty’s porch. Knows who left it, was paid for it, but refused to tell
     court based on atty-client privilege; Court held that this was not an
     act in the professional capacity of petitioner. To qualify for A-C
     privilege:
         a. Legal advice must be sought
         b. From a professional legal adviser in his capacity as such
         c. If those two reqs met – then communications relating to
              that purpose are privileged
5.   Dean v. Dean (Fla. App. 1992) (pg. 175) – stolen property; burglar
     consults w/ lawyers; Court finds that since the person consulted
     lawyer in his capacity seeking legal advice about a specific
     matter—and that the crime had already been committed—and that
     the person insisted on confidence—is sufficient to constitute
     privilege, even if no further legal proceedings undertaken by
     lawyer on the client’s behalf.
6.   Upjohn Co. v. United States (1981) (pg. 177) - If, to give
     corporation advice, you need to talk to a lot of EE, those
     conversations are all privileged, regardless of their station in the
     workplace. Work product doesn’t apply b/c frequently not in
     anticipation of litigation.

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      ii. Work Product
             1. Provisions
                     a. RLGL § 87-89;
                     b. §87 – Lawyer Work-Product Immunity (pg. 233)
                     c. §88- Ordinary Work Product
                     d. §89 – Opinion Work Product
     iii. Representing Organizations
             1. MR 1.13(a) – assumes that organization has distinct legal
                 personality apart from any individual constituent or aggregate of
                 individual constituents within the whole.
             2. Lawyer-client relationship is w/ organization as a whole, not with
                 individual. Constituents of the organization are not client.
             3. 1.13(b) – lawyer who knows an agent/constituent is violating a
                 legal obligation of the organization must not remain silent, and if
                 necessary, must pursue the matter beyond that person or group to a
                 higher authority in the organization.
             4. 1.13 + 1.6 – confidentiality extends to the organization, not to any
                 individuals within it (i.e. what individuals within the organization
                 can be shared with other sin the organization but not with people or
                 entities outside organization)
             5. 1.13(c) – allows lawyer to disclose information the lawyer
                 reasonably believes necessary to prevent substantial injury to the
                 organization, if the lawyer’s efforts in pursuing a matter up the
                 organizational ladder have failed to prevent the organization’s
                 clear violation of law.
             6. 1.13(f) & 4.3 – require warning to EE to prevent any
                 misunderstanding of lawyer’s role. Have to be extremely careful
                 not to make interviewees/EE think that lawyer is representing
                 them.
             7. 1.13(g) – allows organization’s lawyer to represent constituents as
                 well, but subject to same loyalty obligations in 1.7
             8. Different law – Sarbanes Oxley Act (pg. 188)
             9. Document Destruction policy – only in anticipation of litigation
                 (like with work product).
c. Express or Implied Authority/Waiver
       i. Provisions
             1. MR 1.0(e), 1.6, 1.13(c),
             2. MR 1.14: client with diminished capacity
                     a. (a) When a client's capacity to make adequately considered
                         decisions in connection with a representation is diminished,
                         whether because of minority, mental impairment or for
                         some other reason, the lawyer shall, as far as reasonably
                         possible, maintain a normal client-lawyer relationship with
                         the client.
                     b. (b) When the lawyer reasonably believes that the client has
                         diminished capacity, is at risk of substantial physical,

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                     financial or other harm unless action is taken and cannot
                     adequately act in the client's own interest, the lawyer may
                     take reasonably necessary protective action, including
                     consulting with individuals or entities that have the ability
                     to take action to protect the client and, in appropriate cases,
                     seeking the appointment of a guardian ad litem, conservator
                     or guardian.
                 c. (c) Information relating to the representation of a client
                     with diminished capacity is protected by Rule 1.6. When
                     taking protective action pursuant to paragraph (b), the
                     lawyer is impliedly authorized under Rule 1.6(a) to reveal
                     information about the client, but only to the extent
                     reasonably necessary to protect the client's interests.
        3. MR 4.4(b) – Respect for the Rights of Third Persons
                 a. (a) In representing a client, a lawyer shall not use means
                     that have no substantial purpose other than to embarrass,
                     delay, or burden a third person, or use methods of obtaining
                     evidence that violate the legal rights of such a person.
                 b. (b) A lawyer who receives a document relating to the
                     representation of the lawyer's client and knows or
                     reasonably should know that the document was
                     inadvertently sent shall promptly notify the sender.
        4. RLGL
                 a. §19 – Agreements Limiting Client or Lawyer Duties (pg.
                     180)
                 b. §24 – Client with Diminished Capacity (pg. 183)
                 c. §61 – Using or Disclosing Information to advance Client
                     Interests (pg. 208)
                 d. §62 – Using or Disclosing Information with Client
                     Consent (pg. 208)
                 e. §78 – Agreement, Disclaimer, or Failure to Object (pg.
                     227)
                 f. §79 – Subsequent Disclosure (pg. 227)
                 g. §80 – Putting Assistance or a Communication in Issue
                     (pg. 229)
                 h. §81 – A Dispute concerning a Decedent’s Disposition of
                     Property (pg. 230)
                 i. §86 – Invoking the Privilege and Its Exceptions (pg.
                     233)
                 j. §91 – Voluntary Acts (pg. 237)
                 k. §92 – Use of Lawyer Work Product in Litigation (pg.
                     237)
ii. In re Pressly (Vt. 1993) (pg. 189) – atty told opposing atty in divorce case
    that his client (wife) suspected her ex-husband of sexually molesting their
    daughter after she explicitly told him not to tell the opposing side; this


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                 violates rule ―a lawyer shall not knowingly reveal a confidence or secret of
                 his client‖
            iii. United States v. Citgo Petroleum corporation (S.D. Tex, 2007)(pg. 192) –
                 Citgo inadvertently disclosed privileged documents; Government claimed
                 this meant Citgo had waived its privilege; To determine whether
                 inadvertent disclosure waives privilege, must consider on case-by-case
                 basis:
                     1. 5 factors
                             a. Reasonableness of precautions taken to prevent disclosure,
                             b. Amount of time taken to remedy the error
                             c. Scope of discovery
                             d. Extent of disclosure
                             e. Overriding issue of fairness
                     2. Work product can also be waived, not automatically waived by
                         disclosure to 3rd party, only to adversary.
                     3. Here, privilege waived—careless in submitting then (multiple
                         times), did not seek relief from court immediately
                     4. Scope of waiver – limited to the documents disclosed b/c
                         inadvertent. Generally—disclosure is strategic; when that’s the
                         case, then all privilege is waived.
VII.   CONFIDENTIALITY EXCEPTIONS
       a. Physical Harm
              i. Provisions
                     1. MR 1.6(b)(1)
                     2. RLGL
                             a. §66 – Using or Disclosing Information to Prevent Death
                                  or Serious Bodily Harm (pg. 208)
                             b. §77 – Duration of the Privilege (pg. 226)
                             c. §82 – Client Crime or Fraud (pg. 230)
             ii. Hawkins v. King County (Wash. App. 1979) (pg. 198) – atty advocated for
                 boy’s release from custody after being told he was dangerous. Boy then
                 assaulted mother & tried to commit suicide. Court finds that no duty to
                 warn unless it appears beyond a reasonable doubt that the client has
                 formed a firm intention to inflict serious personal injuries on an
                 unknowing third person.
            iii. Purcell v. District Attorney for the Suffolk District (Mass. 1997) (pg. 200)
                 – client told atty about intent to burn down apt building. Atty told police.
                 Prevented, but put on trial, where atty was subpoenaed. Statement of
                 intent to commit crime is protected by A-C privilege, unless crime-
                 fraud exception, which only applies where seeks advice/assistance in
                 furtherance of criminal conduct.
            iv. Spaulding v. Zimmerman (Minn. 1962) (pg. 204) - ∆ had information re:
                 ∏’s health that ∏ did not know, & that resulted from accident caused by
                 ∆. Settled. ∏ sought to reopen and vacate settlement. Court allows this.
                 No duty to disclose but a settlement that relies on a unilateral mistake


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          that is known to one party & materially affects negotiation may be
          vacated.
       v. Swidler & Berlin v. United States (1998) (pg. 207) – privilege carries on
          even after client’s death.
      vi. Court Orders
             1. Provisions
                      a. MR 1.6(b)(6) – allows lawyers to disclose confidential
                          information where required by a court order
                      b. MR 3.4(c) – lawyer’s basic obligation to obey rules of
                          tribunals, including court orders
             2. Contempt Power
                      a. Can find lawyer in contempt if does not comply with court
                          order, including re: confidentiality
                      b. can use court orders to do things otherwise prohibited, like
                          talk to a juror
             3. Court Orders & Client Advocacy
                      a. Court orders + court’s contempt power limit duties to a
                          client.
b. Financial Harm
       i. Provisions
             1. MR 1.0(d), 1.2(d), 1.6(b),(2-3), 1.13, 1.16, 2.1, 4.1, 8.4(c) (see pgs.
                  237-8)
             2. RLGL
                      a. §67 – Using or Disclosing Information to Prevent,
                          Rectify, or Mitigate Substantial Financial Loss (pg. 210)
                      b. §93 – Client Crime or Fraud (Work product immunity)
                          (pg. 237)
                      c. §98 – Statements to a Nonclient (pg. 243)
             3. 1.2(d) - (d) A lawyer shall not counsel a client to engage, or assist
                  a client, in conduct that the lawyer knows is criminal or fraudulent,
                  but a lawyer may discuss the legal consequences of any proposed
                  course of conduct with a client and may counsel or assist a client to
                  make a good faith effort to determine the validity, scope, meaning
                  or application of the law.
             4. 1.6(b) – permission to disclose
                      a. (2) to prevent the client from committing a crime or fraud
                          that is reasonably certain to result in substantial injury to
                          the financial interests or property of another and in
                          furtherance of which the client has used or is using the
                          lawyer's services;
                      b. (3) to prevent, mitigate or rectify substantial injury to the
                          financial interests or property of another that is reasonably
                          certain to result or has resulted from the client's
                          commission of a crime or fraud in furtherance of which the
                          client has used the lawyer's services;
             5. 1.16 – may withdraw

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                     a. (2) the client persists in a course of action involving the
                        lawyer's services that the lawyer reasonably believes is
                        criminal or fraudulent;
                     b. (3) the client has used the lawyer's services to perpetrate a
                        crime or fraud;
           6. 4.1 – shall not knowingly
                     a. (b) fail to disclose a material fact to a third person when
                        disclosure is necessary to avoid assisting a criminal or
                        fraudulent act by a client, unless disclosure is prohibited by
                        Rule 1.6.
ii.    In re American Continental Corporation/Lincoln Savings & Loan
       Securities Litigation (D. Ariz. 1992)(pg. 220) – once discovers
       criminal/fraudulent conduct, must counsel client to stop. If does not stop,
       must withdraw. An attorney may not continue to provide services to
       corporate clients when the attorney knows the client is engaged in a course
       of conduct designed to deceive others, and where it is obvious that the
       atty’s compliant legal services may be a substantial factor in permitting
       the deceit to continue.
iii.   Limit on fiduciary relationship – must be within bounds of the law. Both
       principal and agent remain responsible for the consequences of their own
       conduct.
iv.    United States v. Chen, (9th Cir. 1996)(pg. 230) – A-C privilege can’t be
       used to shield ongoing or intended future criminal conduct. To determine
       whether A-C privilege applies, atty must be hired for his/her legal
       knowledge. To submit privileged communication, must make preliminary
       showing that crime-fraud exception applies and how materials (in camera)
       will further that showing. To invoke crime-fraud exception – must show
       that communications were in furtherance of an intended or present
       illegality and that there is some relationship b/w the communications and
       the illegality. Lawyer’s innocence does not shield privilege from crime-
       fraud exception.
 v.    Lawyer must KNOW of client’s activity (but that not that it constitutes a
       fraud or crime).
           1. If knowledge, must withdraw from representation (1.16(a)) b/c not
                withdrawing would violate 1.2(d).
           2. If only reasonably believes that conduct is criminal/fraudulent,
                may but not required to withdraw. MR 1.16(b)(2)
vi.    Disclosure
           1. MR 3.3(b) – fraud to tribunals – must disclose if that is
                necessary to a avoid assisting the client’s criminal or fraudulent
                act.
           2. MR 4.1(b) – duty to disclose conditioned on exceptions in MR 1.6
                re: confidential information.
           3. MR 1.13 – specifically grants the lawyer for an entity discretion to
                disclose regardless of 1.6 exceptions where the lawyer reasonably


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                  believes this is necessary to prevent substantial injury to the
                  organization.
              4. RLGL §67 – allows lawyers to use or disclose client information
                  to prevent, rectify, or mitigate substantial financial loss.
     vii. Takeaways
              1. Must be competent, know whether it is fraud/crime.
              2. Must clearly communicate findings to client
              3. If retained to defend client’s wrongful activity that is completely
                  ended & not continuing, not assisting or counseling it.
              4. If client wants to use your services to assist in future/ongoing
                  criminal or fraudulent activity, failure to withdraw will subject you
                  to professional discipline as well as potential civil and criminal
                  liability
              5. If you represent an entity, you have special obligations to address
                  serious legal violations w/ others beyond your immediate
                  supervisor, going to higher authorities, such as corporate boards,
                  for reconsideration.
c. Seeking Advice & Self-Defense
       i. Provisions
              1. MR 1.6(b)(4-5)
                      a. (b) A lawyer may reveal information relating to the
                           representation of a client to the extent the lawyer
                           reasonably believes necessary:
                                i. (4) to secure legal advice about the lawyer's
                                   compliance with these Rules;
                               ii. (5) to establish a claim or defense on behalf of the
                                   lawyer in a controversy between the lawyer and the
                                   client, to establish a defense to a criminal charge or
                                   civil claim against the lawyer based upon conduct in
                                   which the client was involved, or to respond to
                                   allegations in any proceeding concerning the
                                   lawyer's representation of the client; or
              2. RLGL
                      a. §64 – Using or Disclosing information in a lawyer’s self
                           defense (pg. 208)
                      b. §65 – Using or Disclosing information in a
                           compensation dispute (pg. 208)
                      c. § 83 – Lawyer Self-Protection (pg. 232)
      ii. Meyerhofer v. Empire Fire & Marine Insurance Co. (2nd Cir. 1974)(pg.
          243) – accused atty submitted affidavit written for SEC to ∏’s attys to
          prove his innocence in the matter. ∆ tried to bar ∏’s firm from
          participating based on this, but court held that he was entitled to submit
          evidence to prove innocence & this was the best way of doing it.
d. Compliance with Law or Court Order: Physical Evidence
       i. Provisions
              1. MR 1.6(b)(6), 3.4(a), 8.4(b)

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                      a. 3.4(b) - (b) falsify evidence, counsel or assist a witness to
                          testify falsely, or offer an inducement to a witness that is
                          prohibited by law;
                      b. 8.4(b) - (b) commit a criminal act that reflects adversely on
                          the lawyer's honesty, trustworthiness or fitness as a lawyer
                          in other respects;
     ii. People v. Belge (NY 1975) (pg. 248) – atty whose client told him of
         another person he’d murdered went and confirmed body/death, but did not
         report it. Charged with public health crimes re: burial and reporting of
         deaths. Court held that the atty’s client’s 5th amendment right to be
         free from self-incrimination forbade his atty from reporting the body.
         If his atty was forced to report the crime, no effective 5th amendment right
         if he had to tell his lawyer. Need for ∆s to tell attys everything for their
         right to defense.
e. Compliance with Law or Court Order: Practice Before a Tribunal
      i. Provisions
             1. 1.0(m), 1.2(d), 1.6(b)(6), 3.3 (candor towards a tribunal), 4.1,
                  8.4(c-d)
             2. 3.4 – Fairness to Opposing Party and Counsel
                      a. A lawyer shall not:
                               i. (a) unlawfully obstruct another party' s access to
                                   evidence or unlawfully alter, destroy or conceal a
                                   document or other material having potential
                                   evidentiary value. A lawyer shall not counsel or
                                   assist another person to do any such act;
                              ii. (b) falsify evidence, counsel or assist a witness to
                                   testify falsely, or offer an inducement to a witness
                                   that is prohibited by law;
                             iii. (c) knowingly disobey an obligation under the
                                   rules of a tribunal except for an open refusal based
                                   on an assertion that no valid obligation exists;
                             iv. (d) in pretrial procedure, make a frivolous
                                   discovery request or fail to make reasonably
                                   diligent effort to comply with a legally proper
                                   discovery request by an opposing party;
                              v. (e) in trial, allude to any matter that the lawyer
                                   does not reasonably believe is relevant or that will
                                   not be supported by admissible evidence, assert
                                   personal knowledge of facts in issue except when
                                   testifying as a witness, or state a personal opinion as
                                   to the justness of a cause, the credibility of a
                                   witness, the culpability of a civil litigant or the guilt
                                   or innocence of an accused; or
                             vi. (f) request a person other than a client to refrain
                                   from voluntarily giving relevant information to
                                   another party unless:

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                                              1. (1) the person is a relative or an employee or
                                                  other agent of a client; and
                                              2. (2) the lawyer reasonably believes that the
                                                  person's interests will not be adversely
                                                  affected by refraining from giving such
                                                  information.
                     3. 3.9 – Advocate in Nonadjudicative Proceedings –
                             a. A lawyer representing a client before a legislative body or
                                 administrative agency in a nonadjudicative proceeding shall
                                 disclose that the appearance is in a representative
                                 capacity and shall conform to the provisions of Rules
                                 3.3(a) through (c), 3.4(a) through (c), and 3.5.
                     4. RLGL
                             a. §63 – using or disclosing information when required by
                                 law
                             b. §98
                             c. §111 – Disclosure of Legal Authority
                             d. §120 – False Testimony or Evidence
             ii. People v. Casey (Colo. 1997)(pg. 251) – duty to be truthful to the court
                 applies even if to do so requires disclosure of otherwise confidential
                 information; atty represented his client under another girl’s name.
            iii. In re Forrest (NJ 1999) (pg. 259) – atty concealed ∏’s death from ∆,
                 misrepresenting facts to an arbitrator; Court held that being motivated by
                 the best interests of his clients did not justify this. Was violation of rules,
                 and 6 months suspension from the practice of law.
            iv. Matter of Hendrix (7th Cir. 1993)(pg. 262) – failure to cite a case that was
                 directly on point & adverse to atty’s position is professional misconduct
                 (knowingly concealing dispositive adverse authority)
             v. United States v. Shaffer Equipment Co. (4th Cir. 1993) – EPA sued Shaffer
                 b/c of high costs of cleanup of toxic materials. Key player in the dispute
                 misrepresented his credentials – didn’t have degrees he claimed. EPA
                 failed to disclose. Court held they violated rule 3.3 (candor toward
                 tribunal)
            vi. Wisconsin v. McDowell (Wis. 2004)(pg. 271) - ∆ atty switched to narrative
                 mode w/o knowing client was going to testify untruthfully and w/out
                 notifying him. Court held that in order to use narrative style of
                 questioning, must know that client intends to testify falsely – b/c of
                 expressed admission of intent to testify untruthfully. Unambiguous and
                 made directly to the atty. Must inform client and court. But here, not
                 ineffective assistance of counsel b/c no prejudice, though conduct of atty
                 was deficient.
VIII. CONFLICTS OF INTEREST: CLIENTS, LAWYERS, AND THIRD PERSONS
      a. Introduction
              i. 6 categories of conflict of interest
                     1. Personal interests of a lawyer
                             a. General rule – 1.7

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                      b. Specific rules
                                  i. 1.8(a) – business transactions w/ clients
                                 ii. 1.8(b) – use of client information
                               iii. 1.8(c) – client gifts to lawyer
                                iv. 1.8(d) – literary rights
                                 v. 1.8(e) – financial assistance to client
                                vi. 1.8(h) – limitation of liability to client
                               vii. 1.8(i) – proprietary interest in litigation
                             viii. 1.8(j) – lawyer/client sexual relationship
                                ix. 3.7 – lawyer as witness
              2. Interests of another current client
                      a. General rule – 1.7
                      b. Specific rules
                                  i. 1.8(g)
                                 ii. 1.13(g)
              3. Interests of a Third Person
                      a. General Rule – 1.7
                      b. Specific rules: 1.8(f), 5.4(c), 1.13(a)
              4. Interests of a Former Client
                      a. General rule – 1.9
              5. Government lawyers
                      a. General rule – 1.11
                      b. Specific Rule – 1.12
              6. Imputed Conflicts
                      a. General Rule – 1.10
                      b. Specific Rules – 1.8(k), 1.11, 1.12
       ii. Maritrans GP Inc. v. Pepper, Hamilton & Scheetz (PA 1992) (pg. 285) -
           An attorney's representation of a subsequent client whose interests are
           materially adverse to a former client in a matter substantially related to
           matters in which he represented the former client is impermissible.
      iii. Remedies to conflicts of interest
              1. Injunctive relief – only granted where there is urgent necessity to
                  avoid injury and no adequate legal remedy exists.
              2. Disqualification – prevents a lawyer/former lawyer (lawyer’s
                  current law firm) from representing another client.
b. Client and Lawyer Interests
        i. Provisions
              1. MR 1.4, 1.8 (Specific Rules—Conflict of Interest-Current
                  Clients),ii 1.10 (Imputation of Conflicts of Interest: General
                  Rule)iii
              2. MR 1.7: Conflict of Interest: Current Clients
                      a. (a) Except as provided in paragraph (b), a lawyer shall not
                           represent a client if the representation involves a concurrent
                           conflict of interest. A concurrent conflict of interest exists
                           if:


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                          i. (1) the representation of one client will be directly
                             adverse to another client; or
                         ii. (2) there is a significant risk that the representation
                             of one or more clients will be materially limited by
                             the lawyer's responsibilities to another client, a
                             former client or a third person or by a personal
                             interest of the lawyer.
                  b. (b) Notwithstanding the existence of a concurrent
                     conflict of interest under paragraph (a), a lawyer may
                     represent a client if:
                          i. (1) the lawyer reasonably believes that the lawyer
                             will be able to provide competent and diligent
                             representation to each affected client;
                         ii. (2) the representation is not prohibited by law;
                        iii. (3) the representation does not involve the assertion
                             of a claim by one client against another client
                             represented by the lawyer in the same litigation or
                             other proceeding before a tribunal; and
                        iv. (4) each affected client gives informed consent,
                             confirmed in writing.
         3. RLGL
                  a. §6 – Judicial Remedies Available to a Client or
                     Nonclient for Lawyer Wrongs (pg. 172)
                  b. §36 – Forbidden Client-Lawyer Financial
                     Arrangements (pg. 191)
                  c. §54 – Defenses; Prospective Liability Waiver;
                     Settlement with a Client (pg. 204)
                  d. §126 – Business Transactions Between a Lawyer and a
                     Client (pg. 269)
                  e. §127 – A client gift to a lawyer (pg. 270)
 ii. Monco v. Janus (Ill. App. 1991) (pg. 294) - Attorney-client transactions
     are not void per se, but are merely presumptably fraudulent. A client may
     ratify an attorney-client transaction which is the product of the attorney's
     undue influence. 3 McFail factors: (1) full & frank disclosure of all
     relevant information‖ (2) clear & convincing evidence to show that he
     gave adequate consideration (3) independent counsel.
iii. In re Halverson (Wash. 2000)(pg. 305) – sexual relationship with client in
     divorce proceedings. Violates MR 1.7(b) (conflict of interest – need to get
     written informed consent), MR 1.4(b) – duty to communicate), MR 2.1
     (duty to exercise independent professional judgment)
         1. Concurrence/dissent –arguably violated 1.7(b), but not 1.4(b) or
             2.1. argues that women are not victims that have sex w/ their
             lawyers b/c of the personal power dynamic.
iv. Criminal statutes prohibiting sexual activities with a client do not extend
     to lawyers. But lawyers are subject to civil remedies and professional
     discipline.

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      c. Client and Third-Person Interests
              i. Provisions
                     1. MR 1.7, 1.8(f), 1.14,
                     2. 5.4(c) - A lawyer shall not permit a person who recommends,
                         employs, or pays the lawyer to render legal services for another to
                         direct or regulate the lawyer's professional judgment in rendering
                         such legal services.
                     3. RLGL §134 – Compensation or Direction of a Lawyer by a
                         Third Person (pg. 284)
             ii. Paradigm Insurance Co. v. the Langerman Law Offices, P.A. (Ariz.
                 2001)(pg. 319) – lawyer to insurance company had a duty of care to the
                 insurer even though it was not his client.
            iii. Every jurisdiction: insured is client. Most others: one client, 3rd party
                 payer situation. Arizona’s holding in Paradigm (joint-client approach) is
                 less common.
IX. CONFLICTS OF INTEREST: MULTIPLE CLIENTS
      a. Current Clients
              i. Provisions
                     1. MR 1.8(g) - A lawyer who represents two or more clients shall not
                         participate in making an aggregate settlement of the claims of or
                         against the clients, or in a criminal case an aggregated agreement
                         as to guilty or nolo contendere pleas, unless each client gives
                         informed consent, in a writing signed by the client. The lawyer's
                         disclosure shall include the existence and nature of all the claims
                         or pleas involved and of the participation of each person in the
                         settlement.
                     2. RLGL
                             a. §6
                             b. §37 – Partial or Complete Forfeiture of a Lawyer’s
                                 Compensation (pg. 191)
             ii. Burrow v. Arce (Tex. 1999) (pg. 333) – atty who breaches his fiduciary
                 duty to his client may be required to forfeit all or part of his fee,
                 irrespective of whether the breach caused the client actual damages.
                 Forfeiture not limited to cases of actual harm. Violation must be clear &
                 serious.
            iii. Fee forfeiture may be mandated by statute
      b. Joint clients
              i. Provisions
                     1. MR 1.7, 1.8(b), 1.8(f), 1.10, 1.12, 1.13, 2.4
                     2. RLGL §§75
                             a. §128 - Representing clients with Conflicting Interests in
                                 Civil Litigation – pg. 270
                             b. §129 – Conflicts of Interest in Criminal Litigation – pg.
                                 272
                             c. §130 – Multiple Representation in a Nonlitigated
                                 Matter – pg. 273

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                        d. §131 – Conflicts of Interest in Representing an
                            Organization – pg. 275
       ii. ABA Formal Opinion 07-447 – collaborative law – must explain benefits
           and risks of participation in the process. Client must give informed
           consent.
     iii. Wolpaw v. General Accident Insurance Co. (NJ Super. 1994)(pg. 348) –
           insurer has obligation to acquire different lawyers for ∆s who have
           conflicting interests.
      iv. Anderson v. O’Brien (2005 Conn Supper) (pg. 350) – atty represented
           buyers and seller (elderly lady who didn’t want to sell house) in sale of her
           home; this was reckless, violation of Connecticut Unfair Trade Practices
           Act, breach of fiduciary duty (or could be—denied dismissal of these
           claims)
       v. A v. B (NJ 1999)(pg. 355) – 1.6(c) exception allows atty to disclose
           information to co-client whose inheritance could go to her husband’s
           illegitimate child w/out her knowledge. Reasons why: 1.6(c) – exception
           for fraudulent act in furtherance of which lawyer’s services had been used;
           husband did not tell atty of information (thus not confidential?), and
           agreement suggesting intent to share all information w/ each other.
      vi. Written informed consent required by the rules. Re:
               1. Material risks of proposed course of conduct
               2. Duty of confidentiality to clients
               3. Explanation of the advantages and disadvantages of the available
                    alternatives to joint representation.
     vii. Critical to tell clients how going to deal w/ confidential information at the
           beginning. Default rule varies by jurisdiction
               1. Fox: default rule should be to disclose, but need to make this clear.
               2. Can either:
                        a. Withdraw b/c have conflict, can’t disclose
                        b. Disclose, deal with consequences
                        c. *should look to law of jurisdiction, but may not be decided
                        d. Rule 1.4 – should require disclosure
    viii. Obligation to disclose
               1. Hawkins: future conduct by a client to an unknown third party—
                    knowledge beyond a reasonable doubt.
               2. Ensure that clients make informed decision re: disclosure
               3. Must consult w/ both clients—if one says you absolutely cannot
                    disclose, you still may disclose. Client can’t take away discretion
                    to disclose.
      ix. Must determine if conflict of interest between the two parties.
       x. If huge group of defendants, then generally they join forces to defeat
           plaintiff’s claim, but after, will pursue cross-claims against each other.
      xi. Joint defense privilege—to extent that ∆ have joint interests, they can
           talk to each other’s lawyers so that they can present a common defense
     xii. Buyer-seller can’t be represented by same lawyer. Termite clause.
c. Simultaneous Representation of Adversaries

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        i. Provisions
              1. MR 1.7, comment 34; 1.10, 1.13
                      a. Comment 34: [34] A lawyer who represents a corporation
                           or other organization does not, by virtue of that
                           representation, necessarily represent any constituent or
                           affiliated organization, such as a parent or subsidiary. See
                           Rule 1.13(a). Thus, the lawyer for an organization is not
                           barred from accepting representation adverse to an affiliate
                           in an unrelated matter, unless the circumstances are such
                           that the affiliate should also be considered a client of the
                           lawyer, there is an understanding between the lawyer and
                           the organizational client that the lawyer will avoid
                           representation adverse to the client's affiliates, or the
                           lawyer's obligations to either the organizational client or the
                           new client are likely to limit materially the lawyer's
                           representation of the other client.
              2. RLGL §
                      a. §97 – Representing a Governmental Client (pg. 241)
                      b. 121, comment 3 –Basic Prohibition of Conflicts of
                          Interest (pg. 257)
                      c. 122 – Client Consent to a Conflict of Interest (pg. 260)
                      d. 128 –Representing Clients w/ Conflicting Interests in
                          Civil Litigation (pg. 270).
      ii. Eastman Kodak Company v. Sony Corporation (2004 WDNY)(pg. 364) –
          Kodak swallowed Heidelberg, which was rep’d by firm that is rep’ing
          parties against Kodak. Inquiry for conflict requiring disqualification: 1)
          are both current clients? ―close and interdependent relationship‖ test; 2) is
          there a conflict? Prima facie improper b/c rep’ing other parties against
          Kodak while Kodak is its client (unintended); 3) decision to grant motion
          to disqualify is w/in discretion of the court—to avoid it once a conflict is
          prove to exist, atty must either 1) obtain consent or 2) show there will be
          no actual or apparent conflict in loyalties or diminution in the vigor of his
          representation. Can’t drop a disfavored client ―like a hot potato‖ but here
          uses flexible test. Still finds that atty must drop other reps b/c it’s rep’ing
          Kodak.
d. Positional Conflicts
       i. Provisions
              1. MR 1.7
      ii. Decision in one case that has significant impact on another. Arguing one
          case impairs effectiveness of lawyer in another case.
     iii. One way to solve is by representing one side exclusively in certain issues:
          labor law, environment, securities.
     iv. Only hold people responsible for conflicts in situations where they know
          of them.
e. Former Clients
       i. Provisions
              1. MR 1.0(k), 1.10, 1.18

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             2. MR 1.9: Duties to Former Clients
                     a. (a) A lawyer who has formerly represented a client in a
                        matter shall not thereafter represent another person in the
                        same or a substantially related matter in which that person's
                        interests are materially adverse to the interests of the
                        former client unless the former client gives informed
                        consent, confirmed in writing.
                     b. (b) A lawyer shall not knowingly represent a person in the
                        same or a substantially related matter in which a firm with
                        which the lawyer formerly was associated had previously
                        represented a client
                              i. (1) whose interests are materially adverse to that
                                 person; and
                             ii. (2) about whom the lawyer had acquired
                                 information protected by Rules 1.6 and 1.9(c) that is
                                 material to the matter;
                            iii. unless the former client gives informed consent,
                                 confirmed in writing.
                     c. (c) A lawyer who has formerly represented a client in a
                        matter or whose present or former firm has formerly
                        represented a client in a matter shall not thereafter:
                              i. (1) use information relating to the representation to
                                 the disadvantage of the former client except as these
                                 Rules would permit or require with respect to a
                                 client, or when the information has become
                                 generally known; or
                             ii. (2) reveal information relating to the representation
                                 except as these Rules would permit or require with
                                 respect to a client.
             3. RLGL
                     a. § 15 – A Lawyer’s Duty to a Prospective client (pg. 179)
                     b. §132 – A Representation Adverse to the Interests of a
                        Former Client (pg. 278)
     ii. Mitchell v. Metropolitan Life Insurance Company (2002 SDNY)(pg. 373)
         – ―substantial relationship‖ (facts giving rise to an issue are the same, as
         a practical matter) required to disqualify former atty. Lawyer who had
         extensive experience rep’ing ∆ in a suit at previous firm was disqualified
         from rep’ing π at new firm. The whole firm was disqualified.
f. Government lawyers
      i. Provisions
             1. MR 1.11iv - Special Conflicts of Interest for Former and
                 Current Government Officers and Employees
             2. MR 1.12- Former Judge, Arbitrator, Mediator Or Other
                 Third-Party Neutral
                     a. (a) Except as stated in paragraph (d), a lawyer shall not
                        represent anyone in connection with a matter in which the

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         lawyer participated personally and substantially as a judge
         or other adjudicative officer or law clerk to such a person
         or as an arbitrator, mediator or other third-party neutral,
         unless all parties to the proceeding give informed consent,
         confirmed in writing.
      b. (b) A lawyer shall not negotiate for employment with any
         person who is involved as a party or as lawyer for a party in
         a matter in which the lawyer is participating personally and
         substantially as a judge or other adjudicative officer or as
         an arbitrator, mediator or other third-party neutral. A
         lawyer serving as a law clerk to a judge or other
         adjudicative officer may negotiate for employment with a
         party or lawyer involved in a matter in which the clerk is
         participating personally and substantially, but only after the
         lawyer has notified the judge or other adjudicative officer.
      c. (c) If a lawyer is disqualified by paragraph (a), no lawyer in
         a firm with which that lawyer is associated may knowingly
         undertake or continue representation in the matter unless:
      d. (1) the disqualified lawyer is timely screened from any
         participation in the matter and is apportioned no part of the
         fee therefrom; and
      e. (2) written notice is promptly given to the parties and any
         appropriate tribunal to enable them to ascertain compliance
         with the provisions of this rule.
      f. (d) An arbitrator selected as a partisan of a party in a
         multimember arbitration panel is not prohibited from
         subsequently representing that party.
3. MR 2.4 – Lawyer Serving as Third-Party Neutral
      a. (a) A lawyer serves as a third-party neutral when the lawyer
         assists two or more persons who are not clients of the
         lawyer to reach a resolution of a dispute or other matter that
         has arisen between them. Service as a third-party neutral
         may include service as an arbitrator, a mediator or in such
         other capacity as will enable the lawyer to assist the parties
         to resolve the matter.
      b. (b) A lawyer serving as a third-party neutral shall inform
         unrepresented parties that the lawyer is not representing
         them. When the lawyer knows or reasonably should know
         that a party does not understand the lawyer's role in the
         matter, the lawyer shall explain the difference between the
         lawyer's role as a third-party neutral and a lawyer's role as
         one who represents a client.
4. MR7.6 - Political Contributions To Obtain Legal
   Engagements Or Appointments By Judges
      a. A lawyer or law firm shall not accept a government legal
         engagement or an appointment by a judge if the lawyer or

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                                 law firm makes a political contribution or solicits political
                                 contributions for the purpose of obtaining or being
                                 considered for that type of legal engagement or
                                 appointment.
                     5. RLGL §133 – A Former Government Lawyer or Officer (pg.
                         283)
                     6. There are also federal and state statutes, as well as regulations, that
                         govern conduct of government lawyers.
X. FESS AND CLIENT PROPERTY
      a. Hourly Fees
              i. Provisions
                     1. MR 1.5v
             ii. ABA Formal Opinion 93-379 – Billing for Professional Fees,
                 Disbursement and Other Expenses
                     1. Practice of billing several clients for the same time or work
                         product, since it results in the earning of an unreasonable fee,
                         therefore is contrary to the mandate of MR 1.5
                     2. Can’t spend more time on a project than necessary in order to bill
                         more hours. MR 3.2.
                     3. Can use other fees to make up for this ground, but cannot bill it as
                         hours worked.
                     4. Overhead to be included in base fee (or paid for out of hourly rate)
                     5. Disbursements only for cost of them – no surcharges
                     6. In house provision of services – must be reasonable, should be
                         agreed upon in advance, if not agreed upon, no more than direct
                         cost
            iii. In re Fordham (Mass. 1996)(pg. 405) – billed $50k to defend OUI case;
                 Court found this unreasonable based on witness’ testimony re: number of
                 hours, fees typically charged. Public sanction.
      b. Contingent Fees
              i. Provisions
                     1. MR 1.5
             ii. ABA Formal Opinion 94-389 – Contingent Fees
                     1. Contingent fees okay as long as it
                             a. Does not violate ethical standards
                             b. Fee is appropriate
                             c. Reasonable in amount
                             d. Client must be fully advised of availiability of altnerative
                                 fee arrangements
                     2. Can get percentage of recovery
                     3. Fee can increase—from 25-33 if case goes to court, etc. or with the
                         amount of recovery.
      c. Flat Fees
              i. Provisions
                     1. MR 1.5
                     2. MR 1.15 – Safekeeping Property

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                      a. (a) A lawyer shall hold property of clients or third persons
                          that is in a lawyer's possession in connection with a
                          representation separate from the lawyer's own property.
                          Funds shall be kept in a separate account maintained in the
                          state where the lawyer's office is situated, or elsewhere
                          with the consent of the client or third person. Other
                          property shall be identified as such and appropriately
                          safeguarded. Complete records of such account funds and
                          other property shall be kept by the lawyer and shall be
                          preserved for a period of [five years] after termination of
                          the representation.
                      b. (b) A lawyer may deposit the lawyer's own funds in a client
                          trust account for the sole purpose of paying bank service
                          charges on that account, but only in an amount necessary
                          for that purpose.
                      c. (c) A lawyer shall deposit into a client trust account legal
                          fees and expenses that have been paid in advance, to be
                          withdrawn by the lawyer only as fees are earned or
                          expenses incurred.
                      d. (d) Upon receiving funds or other property in which a client
                          or third person has an interest, a lawyer shall promptly
                          notify the client or third person. Except as stated in this
                          rule or otherwise permitted by law or by agreement with
                          the client, a lawyer shall promptly deliver to the client or
                          third person any funds or other property that the client or
                          third person is entitled to receive and, upon request by the
                          client or third person, shall promptly render a full
                          accounting regarding such property.
                      e. (e) When in the course of representation a lawyer is in
                          possession of property in which two or more persons (one
                          of whom may be the lawyer) claim interests, the property
                          shall be kept separate by the lawyer until the dispute is
                          resolved. The lawyer shall promptly distribute all portions
                          of the property as to which the interests are not in dispute.
              3. RLGL §40 – Fees on Termination (pg. 194)
      ii. In re Sather (Colo. 2000)(pg. 425) – atty put advance fee in his own
          account, not trust; did not return after being discharged. Violation of MR
          1.16(d) ; an atty earns fees by providing a service on the client. Can’t
          comingle funds. Can’t say that funds are ―non-refundable.‖
d. Fees on Termination
       i. Provisions
              1. MR 1.5
              2. RLGL §§40
              3. §43 – Lawyer Liens (pg. 195)
      ii. Malonis v. Harrington (Mass. 2004)(pg. 433) – discharged lawyer
          contributed considerably to the settlement of the case. Typical rule is that

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                 client owes duty to pay discharged duty, but here court held that the
                 second lawyer had taken on the duty to pay original lawyer and thus owed
                 the money.
      e. Statutory Fees
              i. Provisions
                     1. MR 1.5
                     2. RLGL §38 – Client-Lawyer Fee Contracts
             ii. Nilsen v. York County (D. Me. 2005)(pg. 438) – conducted varied analysis
                 of fees. Decided on 25% for class action.
      f. Reverse contingent fees – gone out of favor, but people still using them.
              i. Lawyer charges client for the money he saved.
             ii. Must decide: benchmark, % of the benchmark that will be given to lawyer
XI. Ending the Client-Lawyer Relationship
      a. Provisions
              i. MR 1.2, 1.6, 1.7,
             ii. §1.16 – Declining Or Terminating Representation
                     1. (a) Except as stated in paragraph (c), a lawyer shall not represent a
                         client or, where representation has commenced, shall withdraw
                         from the representation of a client if:
                             a. (1) the representation will result in violation of the rules of
                                 professional conduct or other law;
                             b. (2) the lawyer's physical or mental condition materially
                                 impairs the lawyer's ability to represent the client; or
                             c. (3) the lawyer is discharged.
                     2. (b) Except as stated in paragraph (c), a lawyer may withdraw from
                         representing a client if:
                             a. (1) withdrawal can be accomplished without material
                                 adverse effect on the interests of the client;
                             b. (2) the client persists in a course of action involving the
                                 lawyer's services that the lawyer reasonably believes is
                                 criminal or fraudulent;
                             c. (3) the client has used the lawyer's services to perpetrate a
                                 crime or fraud;
                             d. (4) the client insists upon taking action that the lawyer
                                 considers repugnant or with which the lawyer has a
                                 fundamental disagreement;
                             e. (5) the client fails substantially to fulfill an obligation to the
                                 lawyer regarding the lawyer's services and has been given
                                 reasonable warning that the lawyer will withdraw unless
                                 the obligation is fulfilled;
                             f. (6) the representation will result in an unreasonable
                                 financial burden on the lawyer or has been rendered
                                 unreasonably difficult by the client; or
                             g. (7) other good cause for withdrawal exists.
                     3. (c) A lawyer must comply with applicable law requiring notice to
                         or permission of a tribunal when terminating a representation.

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                               Professional Responsibility
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                           When ordered to do so by a tribunal, a lawyer shall continue
                           representation notwithstanding good cause for terminating the
                           representation.
                      4. (d) Upon termination of representation, a lawyer shall take steps to
                           the extent reasonably practicable to protect a client's interests, such
                           as giving reasonable notice to the client, allowing time for
                           employment of other counsel, surrendering papers and property to
                           which the client is entitled and refunding any advance payment of
                           fee or expense that has not been earned or incurred. The lawyer
                           may retain papers relating to the client to the extent permitted by
                           other law.
             iii. RLGL §
                      1. §14 – Formation of a client-Lawyer Relationship (pg. 177)
                      2. §32 – Discharge by a Client and Withdrawal by a Lawyer (pg.
                           189)
                      3. §33 – A Lawyer’s Duties When a Representation Terminates
                           (pg. 190)
       b. Gilles v. Wiley, Malehorn & Sirota (NJ App 2001)(pg. 454) – based on MR
          1.16(b)(1) & (d) – if withdrawal was accomplished w/out material adverse effect
          on plaintiff’s interests in that it was attended by those steps reasonably practicable
          to protect her interests (the test); here atty terminated r-ship b/c of unprofitability
          of π’s types of cases. Left 3 weeks to file. Statute of limitations ran. ∆ guilty of
          malpractice.
       c. Crews v. Buckman Laboratories International (Tenn. 2002)(pg. 458) - ∆
          retaliated against by supervisor for reporting supervisor’s unauthorized practice of
          law; retaliatory discharge.
XII.   THE BOUNDS OF THE LAW
       a. Constraints on lawyer’s advocacy
                i. Tort, including fraud – Greycas
               ii. Negligence – Hawkins
             iii. Evidence – Purcell
              iv. Court orders issued pursuant to inherent powers of a court
               v. Procedure rules of civil or appellate procedure – Hendrix
              vi. Securities law – Meyerhofer
             vii. General criminal statutes – Casey, Belge
            viii. Insurance law – Wolpaw
       b. Frivolous Claims
                i. Provisions
                      1. MR 3.1, 3.4
                      2. FRCP 11
               ii. Christian v. Mattel, Inc. (9th Cir. 2002) (pg. 478) – rule 11 violations,
                   remanded to ensure sanctions/fees were complaint with the rule
       c. Discovery Abuse
                i. Provisions
                      1. MR 3.2, 3.4, 5.2
                      2. FRCP 26, 37

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                       Professional Responsibility
                           Fox – Spring 2010

      ii. In re Tutu Wells Contamination Litigation (3d Cir. 1997)(pg. 485) - ∆
          atties suppressed evidence that made discovery much longer and more
          expensive than necessary. Court ordered suspension, but that was
          overturned b/c insufficient notice to ∆ that suspension was being
          considered. Community service sanction vacated b/c court does not have
          inherent authority to require it. Monetary sanctions upheld.
d. Bias
       i. Provisions
               1. MR 4.4, 8.4
      ii. In re Charges of Unprofessional Conduct Contained in Panel Case No.
          15976 (Minn. 2002) (pg. 493) – no discrimination based on disability to
          limit participation in courts (π wanted disabled law clerk to be banned
          from courtroom b/c of unfavorable comparisons b/w the clerk and the π).
          Still, motion to ask for another judge/ban the clerk was non-serious.
e. Communication with Unrepresented and Represented persons
       i. Provisions
               1. MR 4.1, 4.2, 4.3, 5.3, 8.4(a)
               2. RLGL §§99-103
               3. MR 4.2: In representing a client, a lawyer shall not communicate
                   about the subject of the representation with a person the lawyer
                   knows to be represented by another lawyer in the matter, unless the
                   lawyer has the consent of the other lawyer or is authorized to do so
                   by law or a court order.
                       a. Comment to 4.2
                               i. In the case of a represented organization, this Rule
                                   prohibits communications with a constituent of the
                                   organization who supervises, directs or regularly
                                   consults with the organization’s lawyer concerning
                                   the matter or has authority to obligate the
                                   organization with respect to the matter or whose act
                                   or omission in connection with the matter may be
                                   imputed to the organization for purposes of civil or
                                   criminal liability. Consent of the organization’s
                                   lawyer is not required for communication with a
                                   former constituent. If a constituent of the
                                   organization is represented in the matter by his or
                                   her own counsel, the consent by that counsel to a
                                   communication will be sufficient for purposes of
                                   this Rule. Compare Rule 3.4(f). In communicating
                                   with a current or former constituent of an
                                   organization, a lawyer must not use methods of
                                   obtaining evidence that violate the legal rights of
                                   the organization. See Rule 4.4.
               4. Burden is on lawyer to figure out if the individual is someone that
                   they can talk to. Defense doesn’t have to tell them.


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                   ii. Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard
                       College (Mass. 2002)(pg. 496) - Only able to protect certain groups of EE.
                           1. People that deal w/ lawyer
                           2. People that can make admissions/obligations for client
                           3. People involved in misconduct.
                  iii. Can’t give legal advice to someone on other side. Only advice is that they
                       get their own atty.
                  iv. Can have two parties talk to each other.
                   v. If there’s a way that you can phrase conversation as something other than
                       communication—redress of grievances, attempt to change public policy,
                       then it’s protected by first amendment.
             f. Communication with Judges and Jurors
                    i. Provisions
                           1. MR 3.3(d), 3.5
                   ii. In the Matter of Disciplinary Proceedings Against Ragatz (Wis. 1988) –
                       lawyer prohibited from ex parte communications on the merits of a case
                       with a judge before whom the case is pending.
             g. Lawyer as Witness
                    i. Provisions
                           1. MR 3.7
                   ii. D.J. Investment Group, L.L.C. v. DAE/Westbrook, L.L.C.(Utah 2006)(pg.
                       504) - ∆ wanted π’s lawyer disqualified b/c wanted to call him as witness.
                       But court found exception to rule in 3.7 b/c it would cause substantial
                       financial hardship. Thus, did not disqualify him.



i
 Rule 3.8 Special Responsibilities Of A Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for
obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a
preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate
the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to
the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved
of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present
client unless the prosecutor reasonably believes:
     (1) the information sought is not protected from disclosure by any applicable privilege;
     (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
     (3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action
and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a
substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent
investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a
criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under
Rule 3.6 or this Rule.

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(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a
convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
     (1) promptly disclose that evidence to an appropriate court or authority, and
     (2) if the conviction was obtained in the prosecutor’s jurisdiction,
           (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
           (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine
           whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s
jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the
conviction.
ii
  Rule1.8:
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory,
security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are
fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the
advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and
the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.
(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless
the client gives informed consent, except as permitted or required by these Rules.
(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of
a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or
other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse,
child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a
close, familial relationship.
(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the
lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the
representation.
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation,
except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the
outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer
relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.
(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the
claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas,
unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the
existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is
independently represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person
is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of
independent legal counsel in connection therewith.
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is
conducting for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and


                                                    Page 41 of 43
                                          Professional Responsibility
                                              Fox – Spring 2010


(2) contract with a client for a reasonable contingent fee in a civil case.
(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between
them when the client-lawyer relationship commenced.
(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to
any one of them shall apply to all of them.
iii
    Rule 1.10
(a)        While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of
them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless
(1)        the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant
risk of materially limiting the representation of the client by the remaining lawyers in the firm; or
(2)        the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with
a prior firm, and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the
fee therefrom;
(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance
with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement
of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available
before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the
former client about the screening procedures; and
(iii) certifications of compliance with these Rules and with the screening procedures are provided to the former
client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written
request and upon termination of the screening procedures.
(b)        When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter
representing a person with interests materially adverse to those of a client represented by the formerly associated
lawyer and not currently represented by the firm, unless:
(1)        the matter is the same or substantially related to that in which the formerly associated lawyer represented
the client; and
(2)        any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the
matter.
(c)        A disqualification prescribed by this rule may be waived by the affected client under the conditions stated
in Rule 1.7.
(d)        The disqualification of lawyers associated in a firm with former or current government lawyers is governed
by Rule 1.11.
iv
    (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or
employee of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and
substantially as a public officer or employee, unless the appropriate government agency gives its informed consent,
confirmed in writing, to the representation.
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that
lawyer is associated may knowingly undertake or continue representation in such a matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the
fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with
the provisions of this rule.
(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential
government information about a person acquired when the lawyer was a public officer or employee, may not
represent a private client whose interests are adverse to that person in a matter in which the information could be
used to the material disadvantage of that person. As used in this Rule, the term "confidential government
information" means information that has been obtained under governmental authority and which, at the time this
Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to
disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may
undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee therefrom.


                                                   Page 42 of 43
                                          Professional Responsibility
                                              Fox – Spring 2010


(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or
nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in
writing; or
(ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter
in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a
judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b)
and subject to the conditions stated in Rule 1.12(b).
(e) As used in this Rule, the term "matter" includes:
(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim,
controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties,
and
(2) any other matter covered by the conflict of interest rules of the appropriate government agency.
v
  (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount
for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform
the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other
employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be
responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after
commencing the representation, except when the lawyer will charge a regularly represented client on the same basis
or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in
which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing
signed by the client and shall state the method by which the fee is to be determined, including the percentage or
percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to
be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is
calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether
or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the
client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance
to the client and the method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a
divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility
for the representation;
(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is
confirmed in writing; and
(3) the total fee is reasonable.




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