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Professional Responsibility

VIEWS: 37 PAGES: 49

  • pg 1
									                                                                 Professional Responsibility
                                                                   Outline By Dan Branum
                                                                Compiled using various sources.
                                                                    www.danbranum.com
I.    Intro ......................................................................................................................................................................... 2
II.     Establishing & Ending Attorney-Client Relationship.................................................................................... 2
   a. Formation of Relationship – What constitutes a atty-client relationship?............................................................ 2
   b. Ending the Relationship ....................................................................................................................................... 2
III.    Duty of Competence ........................................................................................................................................... 2
   a. RULES................................................................................................................................................................. 2
   b. First rule in Model Rules requires lawyers to provide clients w/ “competent” representation. Generally
   this means 2 things: ..................................................................................................................................................... 3
IV.     Confidentiality .................................................................................................................................................... 3
   a. Intro ..................................................................................................................................................................... 3
   b. Attorney-Client Privilege ................................................................................................................................... 4
   c. Obligation to Maintain Confidentiality ............................................................................................................ 6
V. Zealousness in Advocacy ........................................................................................................................................ 9
   a. Intro ..................................................................................................................................................................... 9
   b. The Perjurious Client/Witness .......................................................................................................................... 9
   c. Disclosing Adverse Authority .......................................................................................................................... 11
   d. Possession or Destruction of Potential Evidence ............................................................................................... 12
   e. Paying a Witness............................................................................................................................................... 14
VI.     Attorney-Client Relationship .......................................................................................................................... 14
   a. Duty to Inform & Advise ................................................................................................................................... 14
   b. Agency & Autonomy ........................................................................................................................................ 15
VII.    Protecting Attorney-Client Relationship Against Outside Interference ..................................................... 17
   a. Anti-Contact Rule ............................................................................................................................................ 17
   b. Improper Acquisition of Confidential Info .................................................................................................... 18
VIII.      Loyalty & Conflicts of Interest ................................................................................................................... 19
   a. Intro .................................................................................................................................................................... 19
   b. Concurrent Conflict between Lawyer & Client ............................................................................................ 20
   c. Concurrent Conflict between 2 Clients .......................................................................................................... 20
   d. Advocate-Witness Rule .................................................................................................................................... 24
   e. Successive Conflicts – Side Switching ............................................................................................................. 25
   f.   Successive Conflicts – Migratory Lawyers..................................................................................................... 27
   g. Government Practice ....................................................................................................................................... 29
   h. Entity Representation ...................................................................................................................................... 31
   i.   Sarbanes-Oxley & MR 1.13 ............................................................................................................................. 34
IX.     Attorney Fees & Client Property .................................................................................................................... 34
   a. RULES............................................................................................................................................................... 34
   b. General info ...................................................................................................................................................... 37
   c. MR vs. TR ......................................................................................................................................................... 38
   d. History ............................................................................................................................................................... 39
   e. Contingent Fees ................................................................................................................................................ 39
   f.   Fee Splitting ...................................................................................................................................................... 40
   g. Holding Client Funds for Future Work ......................................................................................................... 40
X. Marketing Legal Services..................................................................................................................................... 40
   a. RULES............................................................................................................................................................... 40
   b. General Info........................................................................................................................................................ 46
   c. TEXAS ............................................................................................................................................................... 46
XI.     Geographic Restrictions in Practicing Law ................................................................................................... 47
   a. RULES............................................................................................................................................................... 47
   b. General Info........................................................................................................................................................ 48


                                                                                                                                                                                     1
I.     Intro
       a. Lawyer owes duties of 4 Cs:
                 i. Competence, Communication, Confidentiality & Conflicts
II.    Establishing & Ending Attorney-Client Relationship
       a. Formation of Relationship – What constitutes a atty-client relationship?
                 i. Norm is obvious whether relationship exists, but can be fuzzy, especially w/new regs.
                ii. According to Restatement §14, atty-client relationships formed if 2 conditions met:
                         1. “Client” behaved in way reasonable person in lawyer‟s position would believe that he
                             was being asked to provide legal services; &
                         2. “Lawyer” behaved in way that reasonable person in client‟s position would believe
                             that lawyer has either agreed to provide legal services or at least not refused to do so.
              iii. Togstad v. Vesley: lawyer held to have professional; relationship w/client for purposes of
                    malpractice although declined to accept case. Client‟s spouse also client though never met.
                         1. Lady went to ptf lawyer who told her she didn‟t have case & that he‟d consult partner.
                             Atty claimed he said she didn‟t have case that firm would be interested in.
                             Regardless, Togstad didn‟t consult anyone until Statute of Limitations had ran.
                         2. Crt said relationship existed b/c she relied on him for legal advice & he didn‟t even do
                             most basic of research about her case. He didn‟t even advise her to seek a 2nd opinion
                             from an office which had experience in that type of case.
               iv. No magic words or doc required
                v. No payment required, but $ is good proof that relationship exists.
                         1. Ex: relationship existed when client called 1-900 lawyer hotline.
               vi. Quasi-Client Relationship / Implied atty-client relationship = lawyer owes same kind of duties
                    that he owes to clients w/formal relationships even though lawyer has less formal relationship.
              vii. Relationship not formed when:
                         1. US v. Weinstein - dist crt appointed counsel to rep 23 fugitive dfts. But, judge vacated
                             order concluding he had no power to create client-atty relationship b/c w/out dft‟s
                             knowledge or consent atty couldn‟t bind fugitive dft.
                         2. Telling legal probs to a friend lawyer isn‟t enough.
                         3. Lawyer can‟t charge for services rendered that just happened to benefit someone if
                             client didn‟t consent to relationship being formed prior to work completed.
             viii. Internet poses new problems to show when/how relationships are formed;
               ix. Lawyer should be careful not to learn confidential info when speaking w/potential clients b/c
                    even if you don‟t take case, that knowledge may prevent you from working on other side too.
                x. A lawyer can be sued even by a non-client on a number of theories, so what‟s the big deal
                    about showing this relationship does or does not exist? 2 reasons:
                         1. Some jurisdictions hesitant to expand bases for liability to non-clients
                         2. Even where non-clients have lots of room to sue lawyers, clients enjoy more room.
       b. Ending the Relationship
                 i. Relationship continues unless & until client understands, or reasonably should understand,
                    that he can no longer depend on it.

III.   Duty of Competence
       a. RULES
                 MR 1.1 COMPETENCE: L shall provide competent representation to C. “Competent Representation”
                 requires the legal knowledge, skill, thoroughness & preparation reasonably necessary for the
                 representation.

                 MR 1.3 DILIGENCE:: L shall act with reasonable diligence and promptness in representing a client.

                 TR 1.01 COMPETENT & DILIGENT REPRESENTATION:
                 (a) L shall not continue work on legal matter where L should know its beyond competence unless::
                          (1) joins w/another L who is competent, or gets client‟s prior informed consent, or is in
                          association w/another competent L.
                          (2) the legal work is reasonably required in an emergency & L limits his work to only what is
                          reasonably nec in the circumstances.
                                                                                                                          2
                   (b) In representing a client, a lawyer shall not:
                             (1) neglect a legal matter entrusted to the lawyer; or
                             (2) frequently fail to complete obligations that L owes to C.
                   (c) Neglect = inattentiveness involving a conscious disregard for responsibilities owed to C.

      b. First rule in Model Rules requires lawyers to provide clients w/ “competent” representation.
         Generally this means 2 things:
              i. First, lawyer may be unqualified to accept type of case/work
                      1. Lawyer‟s general education & experience may or may not be sufficient to enable him
                          to provide competent representation on some matter
                      2. If lawyer doesn‟t have sufficient ed & exp then he should either “get up to speed,”
                          associate w/another L who has expertise or pass on the client‟s work.
             ii. Lawyer also has obligation to “act with reasonable diligence & promptness.”
                      1. This means returning phone calls right away, not missing filing deadlines & not
                          getting so busy that it is impossible to provide effective service to each client.
                      2. Lawyer has duty to turn down work that he cannot competently handle.
            iii. “Mere error of judgment” ≠ malpractice
                      1. L can‟t guarantee results; L‟s performance is weighed against skills of other Ls in
                          jurisdiction.
                      2. We purport to test competence w/ bar exam, or at least capacity to learn what must be
                          learned to be competent.
                      3. In Togstad, crt said that “mere error of judgment” doesn‟t constitute malpractice.
                               a. Instead crt looked at what “an ordinarily prudent atty would do before rendering legal
                                     advice in a case of this nature” & concluded that Miller failed to do “Minimal
                                     research” nec to satisfy that standard. Ordinary prudence is the standard; here failure
                                     to do the research violated it.
              iv. Competency requirement is rarely used as basis for discipline
                    1. Rare for lawyer to face discipline for incompetence or procrastination alone.
                    2. But, lawyer may be disciplined for making 1 major mistake like not filing suit in time
                    3. If client & not state disciplinary authority brings claim, crt analyzes case in terms of
                        tort law (negligence) & agency law (fiduciary duty) principles.
                    4. Willful vs. Non-willful
                             a. Crt has distinguished between willful failure to perform legal services & a
                                 negligent failure. Willful ones represent lacking of personal ethics.
                             b. One crt found that mere ignorance of law in conducting affairs of client in
                                 good faith is not a cause for discipline.
                             c. However, one crt has held that lawyer could be disciplined for representing
                                 client in field which lawyer lacks expertise

IV.   Confidentiality
      a. Intro
              i. Policy behind confidentiality Rule & its Exceptions
                      1. 1st - confidentiality encourages client to trust atty & be forthcoming w/info & sources
                         of info, which lawyer needs to do a best job he can.
                      2. 2nd - client autonomy. When C hires L, C has right to control access to that info & L
                         may disclose info only when client gives him authority to do so or make choice.
                      3. Most of the disagreement about this subject concerns the exceptions & leeway, etc.
             ii. Difference between Atty-Client Privilege & Confidentiality Rules
                      1. Atty-Client Privilege is info protected by the law of evidence. This is info between
                         client & atty which crt cannot force them to reveal due to their atty-client relationship.
                      2. Duty of Confidentiality is included in MR, TR & DR and covers more info than just
                         what atty learned inside of the atty-client relationship.
                      3. Atty-Client Priv doesn‟t apply to the gym, that‟s where the duty to confidentiality
                         requires that you keep your trap shut when talking to friends, etc.


                                                                                                                           3
b. Attorney-Client Privilege
        i. Atty-Client Priv seeks to strike balance among all policies. It protects info communicated by
           C to L for purpose of seeking legal advice. Privilege lasts forever, not just until client‟s death.
           (some states have exceptions for when its very helpful to heirs to have some info, etc.)
       ii. Rule is same regardless as to if client is a person, entity, corporation, etc.
      iii. Rationale
               1. Lawyers need full & accurate info from clients in order to advise them.
               2. Ex: What if C was too scarred to tell L what really happened in murder trial? Client
                    might stick w/implausible story instead of truth that L can spin the right way, etc.
               3. Some think that this just lets wrongdoers confide & get aid from Lawyers.
      iv. Elements of the privilege from Restatement §68
               1. Communication;
               2. Made between privileged Persons;
               3. In confidence;
               4. For the purpose of obtaining or providing legal assistance for the client.
       v. Communication
               1. Significance here is what isn‟t covered by privilege.
               2. Info obtained by lawyer through observation or investigation isn‟t protected by atty-
                    client priv, b/c it wasn‟t communicated by client to lawyer.
               3. Identity of client or client‟s appearance, car, etc was not privilege. Atty can be
                    compelled to authenticate photo of client or handwriting sample.
               4. Info learned from non-client witness isn‟t covered.
                        a. Info learned in witness interview isn‟t covered, but Docs “prepared in
                             anticipation of litigation” are covered under work product doctrine
      vi. Who is a privileged person?
               1. Priv persons include lawyer, client, agents of either who facilitate communication
                    between 2 like interpreters & paralegals & retained experts like accountants or
                    economists retained by L for purpose of facilitating lawyer‟s legal representation.
               2. Doesn‟t include persons not nec to rep or communication between lawyer & client.
               3. C must consult w/L in professional capacity for communication to be covered. Q
                    norm arises when L also holds another type of position like a board of director to corp.
                    Also when dealing w/L friend, info may or may not be priv depending on if dealing
                    w/L in his prof capacity including subjective belief of person seeking advice, nature of
                    advice & expectations of confidentiality.
               4. Prospective Clients?
                        a. Gen rule: if client believes he‟s consulting lawyer in prof capacity & it‟s
                             reasonable under circumstances to believe L is acting to protect his interests.
                             Ex: If lawyer assures confidentiality then lawyer has obligation to keep secret
     vii. In Confidence?
               1. Communication must be made between client & lawyer in private, w/no persons
                    present who aren‟t “privileged persons” as discussed above. Ex:
                                                                                                            4
            2. On exams watch for unprivileged 3rd parties like friends that come w/client for support
            3. There is a separate marital communication privilege
            4. Its important that communication remain confidential & not be disclosed by either L
                or C. L must exercise reasonable care to ensure that confidential info is not disclosed.
                Carelessness by either may operate as a waiver of privilege.
viii.   Purpose
            1. Communication must be made for purpose of obtaining legal advice – not business
                advice, PR strategies, or friendly counseling. If multiple kinds of advise given, only
                legal communications are covered.
 ix.    Facts are not protected
            1. Adversaries in lit can get discovery info contained in atty-client communications
                through interrogatories & depos & client may not refuse to answer Qs on basis of priv.
  x.    WAIVER
            1. Client may waive privilege either explicitly or implicitly.
            2. Waiver is inferred when client puts confidential communication in issue in litigation.
                     a. Ex: dft who claims he did x on L‟s advice will be forced to show letter that
                          gave advice even though otherwise covered by priv.
            3. Waiver exists when client releases info to others or the public.
            4. Some jurisdictions recognize a “limited waiver” where corp that releases info to gov
                agency like SEC is seen as only releasing info for limited purpose & isn‟t waiving
                rights in gen. Other jurisdictions don‟t recognize the limited waiver.
            5. Ex case: murder dft wrote book about murder & ptf in civil trial used it against dft
                claiming dft waived his privilege. Crt said dft waived priv over info actually in book,
                but that doesn‟t force him to reveal any more info or context surrounding book.
                     a. But, if limited info is released, in crt the “Fairness Doctrine” dictates
                          production of the remainder of info.
            6. If info is shared w/3rd party who is involved for purpose of rendering legal services to
                client, then it‟s priv, but some jurisdictions require 3rd part be “nearly indispensable”
                in facilitating the atty-client communications
                     a. Recently a case has been cited that protects communications between counsel
                          & PR experts in high-profile lit cases.
 xi.    Crime-Fraud Exception to Privilege
            1. Communications aren‟t priv when C consulted L to further crime or fraud, regardless
                of whether crime is accomplished & even though L is unaware of C‟s objectives &
                does nothing to advance them.
                     a. Some crts will hold that discussions of crt misconduct counts, like if they are
                          plotting how to file pointless motions to slow it up, etc. Other jurs say that
                          there has to be actual or attempted intentional misrepresentation for exception.
            2. Exception only applies when crt determines that client communication in Q was itself
                in furtherance of crime or fraud.
            3. Exception is not just something prosecutors invoke. Parties in civil lit also may seek
                to discover communications otherwise protected if they can show the adversary‟s
                purpose in obtaining legal assistance was to commit crime or fraud.
            4. Third party‟s bad intent can‟t remove protection of priv.
            5. Chicken or Egg Problem
                     a. Must other side actually prove a crime or fraud to discover the allegedly
                          privileged info? Sometimes ultimate issue in case w/in which priv Q arises
                          will be same alleged crime or fraud. This creates prob.
                     b. Gen crime or fraud has to have been objective of client‟s communication &
                          the fraudulent nature of objective doesn‟t have to be proved; there only needs
                          to be presented a reasonable basis for believing that objective was fraudulent.
            6. May crt review the info in question?
                     a. Yes, but only if opponent of priv meets 3rd (still lesser) burden: showing of
                          factual basis adequate to support good faith belief by a reasonable person
                     b. It gets complicated when you start deciding what judge can then look at.
                                                                                                        5
      xii. Work Product Doctrine (most info here from Civ Pro Outline)
             1. Major exception to broad scope of discovery under Rule 26(b)(1) is the work product
                 privilege, which bars production of certain materials developed in anticipation of
                 litigation. Exception first recognized in Hickman v. Taylor in 1947 where counsel in
                 wrongful death case sought discovery of defense‟s notes/interviews w/witnesses as
                 well as even info on thoughts of the defense L. Formerly no explicit basis for
                 exception, but Sup Crt wouldn‟t allow for many reasons including that it provides
                 unfair advantage & tempts Ls to ride on opponents coat tails & not do own work.
             2. 20 yrs after Hickman, FRCP codified “work product” doctrine in 26(b)(3). It provides
                 that “docs & tangible things…prepared in anticipation of lit by or for another party or
                 by or for that other party‟s representative” can only be obtained in discovery if the
                 requesting party demonstrates that there‟s substantial need for materials & cannot get
                 equivalent info through other means w/out undue hardship. & Even when such a
                 showing is made, the “mental impressions, conclusions, opinions or legal theories of
                 an attorney” shall be protected from disclosure.
             3. Narrower than atty-client priv b/c that applies to all confidential communications
                 between lawyers & clients for purpose of seeking legal advice. Work product
                 doctrine also narrower in that it extends only to docs.

c. Obligation to Maintain Confidentiality
       i. RULES
                   MR 1.6 CONFIDENTIALITY OF INFORMATION:
                   (a) L shall not reveal info relating to representation of C unless C gives informed consent, OR
                   is impliedly authorized in order to carry out representation, OR permitted by (b).
                   (b) L may reveal info related to representation of C to extent L reasonably believes nec:
                            (1) to prevent reasonably certain death or substantial bodily harm;
                            (2) to prevent C from committing crime or fraud that is reasonably certain to result in
                            substantial injury to financial interests or property of another & in furtherance of
                            which C has used or is using L‟s services;
                            (3) to prevent, mitigate or rectify substantial injury to financial interests or property of
                            another that is reasonably certain to result or has resulted from C‟s commission of
                            crime or fraud in furtherance of which C used L‟s services;
                            (4) to secure legal advice about the lawyer's compliance with these Rules;
                            (5) to establish a claim or defense on behalf of L in conflict between L & C, to
                            establish defense to criminal charge or civil claim against L based upon conduct in
                            which C was involved, or to respond to allegations in any proceeding concerning the
                            L‟s representation of C; or
                            (6) to comply with other law or a court order.

                   TR 1.02 SCOPE AND OBJECTIVES OF REPRESENTATION:
                   (a) Subject to the rest of this rule, L shall abide by C‟s decisions:
                             (1) concerning objectives & general methods of representation;
                             (2) whether to accept an offer of settlement of a matter, except as otherwise
                             authorized by law;
                             (3) In a criminal case, after consultation w/L, as to a plea to be entered, whether to
                             waive jury trial, &d whether C will testify.
                   (b) L may limit scope, objectives & gen methods of rep if C consents after consultation.
                   (c) L shall not assist or counsel C to engage in conduct that L knows is criminal or fraudulent.
                   L may discuss legal consequences of any proposed conduct w/client & may counsel &
                   represent a C in connection w/making of a good faith effort to determine the validity, scope,
                   meaning or application of the law.
                   (d) When L has confidential info clearly establishing C is likely to commit crime/fraud that‟s
                   likely to result in substantial injury to financial interests or property of another, L should
                   promptly make reasonable efforts under circumstances to dissuade C from doing it.
                   (e) When L had confidential info clearly establishing that C has committed a crime or fraud in
                   the commission of which L‟s services were used, L shall make reasonable efforts under
                   circumstances to persuade C to take corrective action.


                                                                                                                      6
            (f ) When L knows C expects representation not permitted by rules of PR or other law, L shall
            consult w/C regarding relevant limits on L‟s conduct.
            (g) L shall take reasonable action to secure the appointment of a guardian or other legal rep for,
            or seek other protective orders w/respect to, a C whenever L reasonably believes that C lacks
            legal competence & that such action should be taken to protect C.

            TR 1.05 CONFIDENTIALITY OF INFORMATION:
            (a) Confidential info includes privileged info & unprivileged C info.
                      Privileged info = info protected by Atty-C privilege by laws of TX.
                      Unprivileged info = all info relating to C or furnished by C acquired by L during
                      course of or by reason of representation of C.
            (b) Except as permitted below, L shall not knowingly:
                      (1) Reveal confidential info of C or former C to:
                                (i) a person that C has instructed isn‟t to receive info; or
                                (ii) anyone else, other than C, C‟s representatives, or employees law firm
                      (2) Use confidential info of C to disadvantage of C unless C consents w/consultation
                      (3) Use confidential info of former C to his disadvantage unless former C consents
                      after consultation or info has become generally known.
                      (4) Use privileged info of client for advantage of L or 3 rd person, unless C consents
                      after consultation.
            (c) A lawyer may reveal confidential information:
                      (1) When L has been expressly authorized to do so to carry out the representation.
                      (2) When client consents after consultation.
                      (3) To C, C‟s representatives or firm employees, except when C says otherwise
                      (4) When L has reason to believe it is nec to do so in order to comply w/a crt order,
                      TX Disciplinary Rule of Professional Conduct, or other law.
                      (5) To extent reasonably nec to enforce a claim or establish a defense on behalf of the
                      L in a controversy between L & C.
                      (6) To establish a defense to a criminal charge, civil claim or disciplinary complaint
                      against L or L‟s associates based upon conduct involving C
                      (7) When L has reason to believe nec in order to prevent C from committing crime or
                      fraud
                      (8) To extent revelation reasonably appears nec to rectify consequences of a C‟s
                      crime or fraud in commission of which L‟s services had been used.
            (d) A lawyer also may reveal unprivileged client info
                      (1) When impliedly authorized to do so in order to carry out the representation.
                      (2) When L believes nec in order to:
                                (i) carry out representation effectively;
                                (ii) defend L or associates against claim of wrongful conduct;
                                (iii) respond to allegations in any proceeding concerning L‟s representation
                                of C; or
                                (iv) prove the services rendered to C, or the reasonable value thereof, in an
                                action against another person or org responsible for payment of fees for
                                services rendered to C.
            (e) When L has confidential info clearly establishing that C is likely to committee crime or
            fraud that is likely to result in death or substantial bodily harm, L shall reveal it to the extent
            revelation reasonably appears nec to prevent.
             (f) L shall reveal confidential info when required to do so by Rule 3.03(a)(2), 3.03(b), or by
            Rule 4.01(b).

ii. Technicalities of Confidentiality
       1. Atty-client priv protects info from being taken by opposition in legal proceedings, but
           confidentiality protects client from having atty blab info anywhere.
       2. Duty comes out of fiduciary relationship between L & C. Law of agency requires any
           agent, to keep principal‟s secrets, but lawyer‟s duty is more stringent.
       3. Rationale: L-C relationship wouldn‟t work if client had to fear that info shared might
           not remain private. This secret info might be key to legal success!
       4. No one questions duty. Controversy surrounds the exceptions.
       5. Duty continues after relationship ends & even after client‟s death.

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        6. Prospective Client – MR 1.18(b)
               a. MR 1.18 (b) Even when no client-lawyer relationship ensues, a lawyer who has had
                     discussions with a prospective client shall not use or reveal info learned in the
                     consultation, except as Rule 1.9 would permit w/ respect to info of a former client.
              b. There‟s a duty to prospective client if person believed L to be acting in prof
                  capacity in furtherance of person‟s interests. L has obligation to keep info
                  confidential even if relationship not formalized, continued or paid.
        7. TR 1.05 vs. MR 1.6
              a. Very similar, but MR protects “info relating to representation of client,”
                     TR says “info relating to the client or furnished by client.”
                 b. “Use” of confidential info
                        i. All rules forbid from using confidential info against interests of client
                       ii. TR 1.05(b)(4) goes further prohibiting use [of] privileged info of Client
                              for advantage of L or of a third person, unlessC consents after consultation.
iii. Exceptions to Confidentiality Requirement
        1. Authorized in Order to Carry Out Representation – MR 1.6(a)
                a. L can‟t ask permission every time he reveals something. MR 1.2(a) says L
                    has authority to make decisions respecting means of representation. Must
                    “reasonably consult” w/client though.
                b. There‟s an implied authority to act on behalf of client as long as L pursues
                    client‟s ends as client defines them.
        2. Disclosure to Prevent Wrong doing – MR 1.6(b)(1)
                a. Generally
                          i. Critics argue that obligation should be modified to permit/require Ls
                             to disclose confidential info nec to prevent client‟s wrongdoing.
                         ii. Rule Defenders emphasize values served by confidentiality & warn of
                             erosion of trust in A-C relationship.
                        iii. Controversy surrounds both future harms by client where L‟s
                             services have been used, or past frauds where L was innocent at time
                             of transaction but subsequently learns of fraud.
                                  1. Info relating to past harms - there‟s nearly universal
                                      agreement that L is required to keep facts secret.
                                  2. Orig Model Code permitted L to reveal intention of C to
                                      commit any crime no matter size & info nec to prevent crime.
                                  3. MR tightened exception: now criminal act requirement is
                                      removed so that little turns on criminality. Now focus is on
                                      the seriousness of resulting physical harm. MR 1.6(b)(1).
                                      Doesn‟t permit disclosure of non-physical harms like
                                      financial frauds, regardless of criminality.
                b. Physical Harm yyy
                          i. In past atty couldn‟t reveal confidential info that wasn‟t criminal even
                             if doing so could prevent certain death of someone else. Ex: Dft
                             discovers ptf has latent injury that will cause death if not noticed.
                         ii. Here MR relaxed so that L can reveal info “(1) to prevent reasonably
                             certain death or substantial bodily harm;” in addition to “(2) to prevent C
                             from committing a crime” that will result in substantial injury to financial
                             interests or property of another & in furtherance of which the client has used
                             or is using the lawyer's services;
                        iii. Best idea as urged by Restatement §66 that requires atty to first engage client
                             in “moral conversation” & seek to persuade client to prevent harm himself.
                 c. Financial Harm
                        i. Things get more complicated when you factor in disclosure duties
                            that are imposed on lawyer by other applicable laws like securities
                            regs. Ex: when only way to avoid civil liability to 3rd P is to disclose


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                                          confidential client info which may not be disclosed w/out subjective
                                          lawyer to professional discipline.
                                      ii. Complicated solution called “noisy withdrawal” but just remember
                                          that a complete analysis of disclosure to prevent, mitigate, or rectify
                                          client fraud must go beyond black letter law of MR 1.6
                                     iii. More pages 167-169 E&E
                    3. Securing Legal Advice – MR 1.6(b)(2)
                            a. New rule permits atty to disclose confidential info to extent nec to secure
                                 legal advice for atty concerning compliance w/disciplinary rules.
                    4. Self Defense – MR 1.6(b)(3)
                            a. Exception allows L to disclose info in order to defend himself against charge
                                 of wrongdoing connected w/atty‟s representation of client. It would be unfair
                                 to disallow L to reveal this info in cases like mal practice.
                            b. Critique: Ls think they should be required to keep secrets where disclosure
                                 could avoid grievous harm or massive financial fraud, but should be permitted
                                 to disclose info to save their own tails. But if L couldn‟t self defend, then C
                                 could falsely accuse L of mal practice & L couldn‟t defend. & Ls draft rules!
                    5. Compliance w/Law – MR 1.6(b)(4)
                            a. MR recognizes common sense rule that if L is required to provide info in
                                 order to comply w/crt order or other law, he is permitted to do so.
V.   Zealousness in Advocacy
     a. Intro
            i. “Trilemma” competence, candor & confidentiality - Law of perjury embodies delicate balance
               among 3 prof duties of lawyer: First, to learn as much as possible about client‟s case to
               provide competent representation; Second, to keep divulged info confidential; & Third not to
               participate in fraud on crt. MR emphasize third duties but states take diff approaches.
     b. The Perjurious Client/Witness
            i. RULES
                         MR 3.3 CANDOR TOWARD THE TRIBUNAL
                         (a) L shall not knowingly:
                                   (1) make false statement of fact or law to tribunal or fail to correct false statement of
                                   material fact or law previously made by L;
                                   (2) fail to disclose to tribunal legal authority in the controlling jurisdiction known to L
                                   to be directly adverse to position of C & not disclosed by opposing counsel; or
                                   (3) offer evidence that L knows false. If L, L‟s C or a witness called by L has offered
                                   material evidence & L finds out its false, L shall take reasonable remedial measures,
                                   including if nec, disclosure to tribunal. L may refuse to offer evidence, other than the
                                   testimony of dft in criminal matter, that L reasonably believes is false.
                         (b) L who represents C in an adjudicative proceeding & knows that a person intends to engage
                         in criminal conduct relating to proceeding shall take reasonable remedial measures, including,
                         if nec, disclosure to tribunal.
                         (c) These duties shall continue to conclusion of proceeding, & apply even if compliance
                         requires disclosure of info otherwise protected by Rule 1.6.
                         (d) In an ex parte proceeding, L shall inform tribunal of all material facts known to L that will
                         enable it to make informed decision, whether or not the facts are adverse.

                         MR 8.4 MISCONDUCT
                         It is professional misconduct for a lawyer to:
                         (a) attempt to violate the Prof Rules or knowingly assist or induce another to do so;
                         (b) commit crime that reflects poorly on L‟s honesty, trustworthiness or fitness as L;
                         (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
                         (d) engage in conduct that is prejudicial to the administration of justice;
                         (e) imply ability to improperly influence officials to achieve results that break rules or laws
                         (f) knowingly assist judge or officer in conduct that violates rules or laws

                         TR 3.03 CANDOR TOWARD THE TRIBUNAL
                         (a) L shall not knowingly:

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                      (1) make a false statement of material fact or law to a tribunal;
                      (2) fail to disclose fact to tribunal when disclosure is nec to avoid assisting a criminal
                      or fraudulent act;
                      (3) in an ex parte proceeding, fail to disclose to tribunal an unprivileged fact which L
                      reasonably believes should be known by that entity for it to make informed decision;
                      (4) fail to disclose to tribunal authority in the controlling jurisdiction known to L to be
                      directly adverse to C‟s position & not disclosed by opposing counsel; or
                      (5) offer or use evidence that L knows to be false.
            (b) If L has offered material evidence finds out it is false, L shall make good faith effort to
            persuade C to authorize L to correct or withdraw false evidence. If efforts are unsuccessful, L
            shall take reasonable remedial measures, including disclosure of the true facts.
            (c) These duties continue until remedial legal measures are no longer reasonably possible.

            TR 8.04 MISCONDUCT
            (a) L shall not:
                     (1) violate PR rules, knowingly help another to do so, or do so through acts of
                     another, whether or not violation occurred in course of a client-lawyer relationship;
                     (2) commit a serious crime or commit any other criminal act that reflects adversely on
                     the L‟s honesty, trustworthiness or fitness as L in other respects;
                     (3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
                     (4) engage in conduct constituting obstruction of justice;
                     (5) state or imply an ability to influence improperly a government agency or official;
                     (6) knowingly assist judicial officer in conduct that‟s violation of applicable rules of
                     judicial conduct or other law;
                     (7) violate any disciplinary or disability order or judgment;
                     (8) fail to timely furnish to Chief Disciplinary Counsels office or a district grievance
                     committee a response or other info as required by TR, unless he in good faith timely
                     asserts a privilege or other legal reason not to do so;
                     (9) engage in conduct that constitutes barratry as defined by the law of this state;
                     (10) fail to comply w/TR 13.01 relating to notification of an L‟s cessation of practice;
                     (11) engage in practice of law when L is on inactive status or when L‟s right to
                     practice has been suspended, including situations where L‟s right have been
                     suspended for failure to pay required fees or to take CLE classes.
                      (12) violate any other state laws relating to prof conduct of L
            (b) Serious Crime = any felony involving moral turpitude; any misdemeanor involving theft,
            embezzlement, or fraudulent or reckless misappropriation of money or other property; or any
            attempt, conspiracy, or solicitation of another to commit any of the foregoing crimes.

ii. MR’s Treatment Depends on Timing
      1. Prospective
              a. Active Participation of Lawyer
                      i. 1st, L must not knowingly make false statements of material fact or
                         law to a crt. MR 3.3(a)(1).
                     ii. When lie isn‟t L‟s but C‟s, L must not assist C‟s perjury in any way.
                         MR 3.3(a)(3).
                    iii. This applies both to material & non-material evidence
              b. Passive Involvement of Lawyer
                      i. Lawyer can‟t just stand by while client lies & do nothing even if
                         lawyer has no involvement in creating or telling lie.
                     ii. What must L do? First (as in Nix v. Whiteside, 475 US 157, 1986) L
                         must warn C of consequences of perjury & if L can‟t persuade C, he
                         should seek to w/draw as atty. If unable to w/draw, then try to avoid
                         perjury in questioning or not call C as witness at all. If C insists on
                         testifying in criminal case b/c he has const right to do so & C may lie
                         & L is forced to take some remedial action.
              c. Actual Knowledge of Falsity
                      i. Atty must not offer evid he knows false & atty can‟t turn blind eye to
                         the obvious; or claim that nothing is ever known for sure.

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                               ii. In re Ryder, 263 F. Supp. 360, ED VA 1967 – L examined C‟s box &
                                   found stolen money & unique gun – can he claim he doesn‟t know
                                   client is a bank robber.
                             iii. L can give C benefit of the doubt, but at some pt when fact is proven.
                              iv. Distinct minority of crts are unwilling to accept that L knows C is
                                   lying unless there is absolute & incontrovertible proof.
             2. Retrospective yyy
                     a. If lawyer or client or witness offers material evid that L later learns is false,
                         even w/out L‟s encouragement or involvement, L must take remdial
                         measures. Duty continues through “termination of proceedings” (when crt
                         enters final judgment & judgment is either affirmed on appeal or deadline for
                         filing notice of appeal has passed.
                     b. What to do? The Four R‟s
                                i. Don‟t immediately assume revealing perjury to crt is best method.
                                   Use series of increasingly dramatic steps:
                               ii. Recess proceedings. If client lies in depo take break. If lie occurs in
                                   trial, ask to approach bench & seek recess from proceedings.
                             iii. Remonstrate w/client – try to persuade client to correct perjury
                                   himself
                              iv. Resign but only if withdrawal will remedy perjury. Important! Don‟t
                                   assume withdrawal solves prob. Ex: in civil case, L withdraws week
                                   after depo & client obtains new counsel. New L may have no idea
                                   that C lied at depo. Then, C can continue to maintain same lie & prob
                                   of perjury isn‟t fixed.
                               v. Reveal perjury if it is the only effect response.
     iii. Perjury in Criminal law
             1. Policy debate is hottest here b/c client‟s procedural rights conflict w/the truth-seeking
                 function of the adversarial system.
             2. Even when client doesn‟t confess, sometimes an L will be persuaded “beyond
                 reasonable doubt” that client is guilty.
             3. Sometimes Ls will remain purposely ignorant on certain topics, but then that hurts
                 their competency level.
                     a. To make competency highest you‟d had to make confidentiality absolute.
                     b. In MR candor wins! MR insures that Ls wont legally participate in perjury.
             4. Narrative Solution
                     a. ABA had proposed, but later rejected approach where lawyer stops
                         questioning witness in normal manor & instead lets witness just ramble on
                         w/out questioning. This way witness/client can tell story as he wishes (lying)
                         & lawyer supposedly keeps his hands clean of the perjury
                     b. Effect varies depending on who is the trier of fact. Judges know what is
                         going on & know that witness islying, but jury may be fooled.
                     c. Some places like DC rules of prof conduct allow & in others, requesting to
                         use this approach is tantamount to impermissible disclosure of client perjury.
             5. Withdrawing
                     a. Withdrawal is a superficially satisfying response to prospect that client will
                         commit perjuy & is mandated by MR 1.16(a)(1) when nec.
                     b. Many crts will be reluctant to let atty w/drawl b/c it looks like an attempt to
                         delay proceedings, etc. If lawyer can‟t w/draw then he is stuck.
                     c. Even if lawyer is allowed to w/draw, he is really just passing the buck to the
                         next atty who may or may not recognize that he is an accomplice to perjury.

c. Disclosing Adverse Authority
       i. RULES
                 MR 3.3 (SEE ABOVE)
                 TR 3.03 (SEE ABOVE)
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       ii. Duty to Disclose Directly Adverse Authority
               1. L has no duty to help adversary avoid mistakes. If there‟s a promising legal theory
                   that helps other side, you are free to say nothing & let them blow case.
               2. Exception [MR 3.3(a)(2)]: when opponent presents legal arg to crt, if opponent fails
                   to cite legal authority in controlling jurisdiction for position that would be directly
                   adverse to lawyer‟s case, lawyer has duty to disclose it to crt..
                        a. Rationale: judges rely on attys‟ legal research & if controlling case isn‟t
                             brought to crt‟s attention resulting decision is wrong on the law, doing a
                             disservice to all who rely on accuracy of crt‟s decision.
                        b. Rule isn‟t limited to cases; L must disclose adverse authority including
                             statutes & regs not disclosed by opposing council.
               3. Tempting to say rule doesn‟t mean much b/c good L can always distinguish cases &
                   therefore isn‟t required to bring case up; old joke about lawyer who distinguished
                   horse theft cases by colors of horses
                        a. 1949 ABA ethics opinion: if authority would be considered important by
                             judge or he might feel misled if case later came to light, lawyer must disclose.
                        b. Best test from Hazard & Hodes treatise stating: “The more unhappy a lawyer
                             is that he found an adverse precedent, the clearer it is that he must reveal it.
               4. Rule compliance overlaps w/good practice: when faced w/adverse authority, if there‟s
                   a clear distinction, cite & distinguish it – if you can‟t distinguish, then you clearly
                   have legal obligation to reveal legal authority to crt.
      iii. Ability to Take Advantage of Opponent’s Mistake
               1. (I need to add more here probably)
               2. If opposing council makes mistake that isn‟t going to constitute a fraudulent act on
                   your part to the crt & it isn‟t a failure to cite adverse authority then don‟t have a duty.
               3. Classic Example
                        a. You file suit after statute of limitations has run & opposing clueless lawyer
                             doesn‟t know – ABA says you don‟t have duty to inform b/c filing a suit after
                             statute of limitations has run doesn‟t constitute a fraudulent act upon the crt.
d. Possession or Destruction of Potential Evidence
        i. RULES
                     MR 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
                     A lawyer shall not:
                     (a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or
                     conceal docs or other things w/evidentiary value. L shall not assist another in doing so either;
                     (b) falsify evidence, assist witness to testify falsely, or offer inducement to witness that is
                     prohibited by law;
                     (c) knowingly disobey obligation under crt rules except for an open refusal based on an
                     assertion that no valid obligation exists;
                     (d) make frivolous discovery request or fail to make good effort to comply w/opposing party‟s
                     proper discovery request;
                     (e) in trial, allude to irrelevant matter or matter that wont be supported by admissible evidence,
                     assert personal knowledge of facts in issue except when testifying as witness, or state personal
                     opinion as to justness of a cause, credibility of a witness, culpability of a civil litigant or the
                     guilt or innocence of an accused; or
                     (f) request a person other than C to refrain from voluntarily giving relevant info to another
                     party unless:
                                (1) the person is a relative or an employee or other agent of a client; &
                                (2) the L reasonably believes that the person's interests will not be adversely affected
                                by refraining from giving such information.

                     TR 3.04 FAIRNESS IN ADJUDICATORY PROCEEDINGS
                     A lawyer shall not:
                     (a) unlawfully obstruct access to evid; in prop for dispute illegally alter or conceal evid that
                     competent L would believe has potential evidentiary value; or assist another doing it.
                     (b) falsify evid, assist witness to testify falsely, or offer to pay a witness contingent upon the
                     content of testimony or case outcome. Except, L may pay:

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                      (1) expenses reasonably incurred by a witness in attending or testifying;
                      (2) reasonable compensation to a witness for loss of time in attending or testifying;
                      (3) reasonable fee for expert.
            (c) except as stated in paragraph (d), in representing a client before crt:
                      (1) habitually violate an established rule of procedure or of evidence;
                      (2) allude to any matter that L doesn‟t believe is relevant to proceeding or that isn‟t
                      supported by evid, or assert personal knowledge except when testifying as a witness;
                      (3) state a personal opinion of justness of a cause, witness credibility, culpability of a
                      civil litigant or guilt/innocence of an accused, except that L may argue on his analysis
                      of the evid & other permissible considerations for any position or conclusion with
                      respect to the matters stated herein;
                      (4) ask any Q intended to degrade person except where L believes Q will lead to
                      admissible evidence; or
                      (5) engage in conduct intended to disrupt the proceedings.
            (d) knowingly disobey, or advise C to disobey obligation under the standing rules of or a ruling
            by a tribunal except for an open refusal based either on an assertion that no valid obligation
            exists or on the client‟s willingness to accept any sanctions arising from such disobedience.
            (e) request person except C to refrain from volunteering relevant info to another party unless:
                      (1) the person is a relative or an employee or other agent of a client; and
                      (2) the L reasonably believes that the persons interests will not be adversely affected
                      by refraining from giving such information.

            TR 37.09 TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE
            add

ii. MISSED DAY HERE
       1. The MR is pretty unhelpful. By saying that lawyer can‟t “unlawfully” do something
          doesn‟t tell us a whole lot b/c it pushes lawfulness onto another set of laws, etc.
       2.   Text quotes 17 U.S.C. §1512(b) which says: “(b) Whoever…corruptly persuades another person, or
            attempts to do so, or engages in misleading conduct toward another person, with intent to – (1) influence,
            delay or prevent the testimony of any person in any official proceeding; (2) cause or induce any person to
            – (A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
            (B) alter, destroy, mutilate, or conceal an object with intent to impair the object‟s integrity or availability
            for use in an official proceeding… shall be fined under this title or imprisoned not more than ten years, or
            both. (c) Whoever corruptly – (1) alters, destroys, mutilates, or conceals a record, document, or other
            object, or attempts to do so, with the intent to impair the object‟s integrity or availability for use in an
            official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts
            to do so, shall be fined under this title or imprisoned not more than 20 years or both.”
              a. Arthur Anderson (from Enron mess) was convicted in part based on this
                   statute, but was reversed by Sup Crt b/c the crt hadn‟t correctly described
                   “knowingly” requirement to jury.
              b. However, since then the “knowingly” requirement has been weakened by
                   adding (c) that doesn‟t have it.
       3. There are lots of other statues that will tell you if what is done is a crime or not
              a. TR 37.09 – once you know that an offense has been committed and you
                   change this stuff, then you have committed a crime.
       4. Hypo from p.401 where you have a pen w/unusual ink that client gave you which you
          find out is evidence. What do you do? Give it back or hold it or something else?
              a. According to §1512(c) if you conceal or get rid of it then you are in trouble
                   even if you don‟t know that it is evidence. You don‟t want to hold onto it too
                   long b/c if gov finds out you got it they‟ll think your concealing it.
              b. Case we didn‟t read where client told atty about wallet behind house. Lawyer
                   found it & gave to police but would not testify in crt about where it came
                   from due to atty/client priv. Cal Sup Crt said that while he didn‟t have to
                   reveal privileged conversation w/client, atty did have to reveal where it was
                   found b/c otherwise attys would be allowed to race police to conceal evid
                   location.


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                                c. Prof says it would be best to just give it back and not say anything. That way
                                    you aren‟t destroying or concealing. If prosecution finds it fine, otherwise not
                                    your job to tell them.
            iii. In Re Ryder, 263 F. Supp. 360 (E.D. Va. 1967)
                      1. What makes Ryder such an easy case is that the gun was something which itself was
                          illegal to possess & therefore was obviously “unlawful.” The above hypo is more
                          difficult b/c the pen is itself not illegal to possess.
             iv. This becomes particularly pertinent w/modern technology like emails, gps info, hard drives,
                  etc and all the places that evid can be stored & how hard it is to destroy it, etc. “E Discovery”
              v. There are new federal discovery rules “Zubelecker” every crt that looks at this issue will be
                  looking at Zubelacker.
                      1. The lawyers tried to deal w/the issue and did an ok job, but that wasn‟t good enough.
                          They got hit w/29 million judgment in part b/c of adverse destruction of documents.
                      2. We don‟t have to worry about the details, but this case goes into all sorts of detail
                          about what needs to be backed up, technicalities of E Discovery, etc.
             vi. Wal-Mart v. Johnson (Reindeer Case)
                      1. Case where a reindeer fell off and hit someone. Wal-Mart had disposed of reindeer.
                          Q is whether Wal-Mart should have antincipated litigation. The TX Sup Crt said that
                          the evid should be kept as soon as reasonable to expect likelihood of litigation. Crt
                          said there was no duty to preserve evid at time of injury b/c it seemed like minor
                          injury and not reasonable to expect lit.
            vii. “Litigation Hold” should be put on potentially relevant evidence. Difficulty here is
                  determining what is relevant evid.
      e. Paying a Witness
               i. MR 3.4(b) – you may only pay a witnesses for his expenses, but you can compensate an expert
                  witness beyond just expenses. However, you cannot compensate either w/ a contingent fee
                  based on winning the case.
                      1. An ABA opinion: you could reimburse witness for time spent preparing or time spent
                          at pre-trial, trial, depo, etc, but if you do that you have to make it clear what the nature
                          of the compensation is and is not. The money isn‟t “payment for testimony” nor is it
                          “payment for expenses.” It is just comp for “time lost.” You can only pay up to
                          reasonable amount: if they miss work, pay what they get paid, if on weekend just
                          estimate it.
              ii. TR 3.04(b) – you may “advance, guarantee, or acquiesce in payment” for reasonable expenses,
                  reasonable loss of time & reasonable fee for professional services of expert witness.
VI.   Attorney-Client Relationship
      a. Duty to Inform & Advise
               i. RULES
                           MR 1.4 COMMUNICATION
                           (a) A lawyer shall:
                                    (1) promptly inform C of decisions & circumstance requiring C „s informed consent;
                                    (2) reasonably consult w/C about means that C‟s objectives will be accomplished;
                                    (3) keep C reasonably informed about the status of the matter;
                                    (4) promptly comply w/reasonable requests for info; and
                                    (5) consult w/C about any relevant limits on L‟s conduct when L knows that C
                                    expects assistance not allowed by law or rule.
                           (b) L shall reasonably explain everything to client to permit him to make informed decisions.

                           MR 2.1 ADVISOR
                           In representing a client, L shall exercise independent professional judgment & render candid
                           advice. In rendering advice, L may refer to law & other considerations like moral, economic,
                           social & political factors that may be relevant to client‟s situation.

                           TR 1.03 COMMUNICATION
                           (a) L shall keep C reasonably informed about status & promptly comply w/reasonable requests
                           for info.

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                    (b) L shall explain matter to extent reasonably nec to permit C to make informed decisions

      ii. Reasonableness of Communication
             1. You have general obligation to communicate w/client but now we are so tethered to
                 our Black Berrys that it‟s hard to say how far this duty goes.
             2. The key is reasonableness. You have to inform client to extent he can make an
                 informed decision, but it is very general duty.
             3. If something very important in case happens you must communicate that to client.
             4. You can always spell out in retainer what methods you can/may use & what things
                 you are representing client concerning.
             5. On close questions, crts almost always find for clients.
     iii. Moral & Ethical Advice
             1. If lawyer believes client‟s decisions foolish or immoral, but client has legal authority
                 to make those decisions, lawyer is entitled to try to talk client out of them. Lawyers
                 are required to be candid w/clients & exercise independent judgment under MR 2.1.
b. Agency & Autonomy
       i. RULES
                    MR 1.2 SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY
                    BETWEEN CLIENT AND LAWYER
                    (a) Subject to (c) & (d), L shall abide by C‟s decisions concerning objectives of representation
                    & shall consult w/C about the means. L may take actions for C as impliedly authorized to
                    carry out the rep. L shall abide by C‟s decision whether to settle, plea in criminal case, & L
                    shall abide by crt‟s decision.
                    (b) L‟s representation of a C, including rep by appointment, doesn‟t constitute an endorsement
                    of the C‟s views or activities.
                    (c) L may limit scope of rep if limits are reasonable & client gives informed consent.
                    (d) L shall no counsel or assist client in crime or fraud, but L may discuss legal consequences
                    of any proposed conduct.

                    TR 1.02 SCOPE AND OBJECTIVES OF REPRESENTATION
                    (a) Subject to (b), (c), (d), & (e), (f), & (g), L shall abide by a client‟s decisions:
                              (1) concerning objectives & general methods of representation;
                              (2) settlement;
                              (3) Plea, waiver of jury trial, decision to testify – after consultation w/L
                    (b) L may limit scope, objectives & gen methods of rep w/client consent & consultation
                    (c) L shall not assist/counsel C to crime or fraud. L may discuss consequences of conduct &
                    may counsel & represent C in connection w/the making of a good faith effort to determine the
                    validity, scope, meaning or application of the law.
                    (d) When L has confidential info establishing C will commit crime or fraud that will likely
                    cause substantial injury to financial interests or prop of another, L shall promptly make
                    reasonable efforts under circumstances to dissuade C.
                    (e) When L has confidential info that C committed crime or fraud in commission of which L‟s
                    services were used, L shall make reasonable efforts to persuade C to take corrective action.
                    (f ) When L knows that C expects representation not permitted by rules or law, L shall consult
                    w/C regarding limits on L‟s conduct.
                    (g) L shall take reasonable action to get appointment of guardian, other legal rep for, or seek
                    protective orders for C when L reasonably believes C lacks nec competence.

        ii. Fiduciary Relationship in General
               1. Whole pt of professional relationship is that client willingly cedes authority over some
                   part of his affairs to prof, trusting that he will use expertise & training to further the
                   client‟s interests.
               2. Then, there are certain things that client has control over and certain things that
                   professional can do w/out client‟s permission. Client keeps ultimate control over the
                   most important issues. Ex: Doctor
               3. MR 1.2(a) requires lawyer to abide by client‟s decisions concerning the objectives of
                   representation & to consult w/client (but not nec obtain client‟s permission) regarding
                   the means by which client‟s objectives are pursued.
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iii. 3 Forms of Authority: Express, Implied or Apparent
         1. Express Authority granted by actual engagement letter. W/in certain limits the lawyer
            & client may agree to modify or limit the scope of representation. See MR 1.2(c)
         2. Implied Authority (default position) is the authority that must be conferred upon the
            agent as a result of the creation of a particular kind of principal-agent relationship
                 a. There would be no pt in having an atty-client relationship if atty couldn‟t do
                     things like speak on behalf of client, enter into agreements w/others
                     w/consent, or refuse to commit illegal acts.
                 b. Ex: If lawyer signs a K on behalf of client, it‟s as though client signed it. If
                     atty is negligent in performing some act or fails to do something beneficial for
                     client, client is bound by atty‟s actions, but naturally client may sue for
                     malpractice.
         3. Apparent Authority (least encountered) is created by an action of the client, not the
            agent. Ex: client in negotiation says to other party “I agree, my atty will draft & sign
            for me.” Then client regrets decision but doesn‟t communicate regret to atty & atty
            goes forward & signs on client‟s behalf. The agreement stands b/c atty had apparent
            authority to sign.
                 a. However, a few crts don‟t recognize an atty‟s apparent authority to settle a
                     case b/c its so important.
iv. Under Client’s Authority (MR 1.2):
         1. Objectives of Representation: including expendses to be incurred & effect on third
            persons who might be adversely affected, as well as more specifically:
                 a. In Civil Case: whether & on what terms to settle
                 b. In Criminal Case: how to plea, whether to have jury trial & whether to testify
         2. Restatements add the choice of whether to appeal or not in civil & criminal cases.
 v. Under Attorney’s Authority (MR 1.2):
         1. Means by which the objectives of representation are to be pursued including technical
            legal & tactical issues.
         2. Lawyer must refuse to counsel or assist a client in committing a criminal or fraudulent
            act. MR 1.2(d).
         3. Thus, many things atty may do w/out consent that makes or breaks case - tactical
            decisions about trial, etc.
                 a. Sup Crt: sometimes lawyer must go against client‟s desire to include
                     frivolous claims or args into suit, etc.
                 b. Even though client doesn‟t have formal veto power, always possible for client
                     to latter claim atty‟s decision was departure from required standard of care.
                 c. Some hold it‟s violation of fiduciary duty not to follow explicit instructions.
                 d. Limit malpractice by getting written consent for risky decisions.
vi. CLASS: Issue 1: To what extent do we want to bind a client to actions of his lawyer?
         1. Taylor v. IL
                 a. Here atty makes tactical choice to not tell crt about witness until too late & crt
                     doesn‟t allow witness. Client claims he shouldn‟t be bound by his lawyer‟s
                     misconduct.
                 b. Stevens & Brennan take diff opinions; Stevens says that client must be held to
                     atty‟s decision b/c client always has to be held to atty‟s lit decisions. Ptf can
                     maybe sue lawyer, but that‟s a diff issue. Brennan thinks this is diff b/c this
                     was lawyer misconduct, not just a reg tactical decision.
         2. Client & Atty have contract so the Q becomes one of agency law b/c when the lawyer
            does something for client it is binding if lawyer was acting as the agent of client then
            it‟s binding.
                 a. If lawyer had “actual authority,” to do something then it is binding & it is
                     binding if atty had “apparent authority.” Authority may be hard to prove b/c
                     one party will be seeking to deny granting it.
         3. Restatement §27 A Lawyer‟s Apparent Authority – “A lawyer‟s act is considered to
            be that of the client in proceeding before a tribunal or in dealings w/third person if the
                                                                                                   16
                         tribunal or third person reasonably assumes that the lawyer is authorized to do the act
                         on the basis of the client‟s (and not the lawyer‟s) manifestations of such
                         authorizations.”
                              a. Generally restatement says that atty/client relationship does give broad
                                  apparent authority except w/regard to matters reserved to client.
                      4. Restatement §22 Authority Reserved to Client – “(1) As between client & lawyer,…
                         the following and comparable decisions are reserved to the client except when the
                         client has validly authorized the lawyer to make the particular decision: whether and
                         on what terms to settle a claim; how a criminal dft should plead; whether a criminal
                         dft should waive jury trial; whether a criminal dft should testify; and whether to
                         appeal in a civil proceeding or criminal prosecution.”
                              a. Very often lawyers don‟t have authority to settle cases.

VII.   Protecting Attorney-Client Relationship Against Outside Interference
       a. Anti-Contact Rule
               i. RULES
                          MR 4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL
                          L should not communicate about subject of rep w/person the L knows to be represented by
                          another L in the matter, unless L has consent of other L.

                          MR 4.3DEALING WITH UNREPRESENTED PERSON
                          When dealing for one C w/another unrepresented party, L shall not imply that L is
                          disinterested. When L should know that unrepresented person misunderstands the L‟s role, L
                          shall correct the misunderstanding. L shall not give legal advice to an unrepresented person
                          other than advice to secure counsel, if L knows that the person‟s interests are possibly in
                          conflict w/his client‟s interests.

                          TR 4.02 COMMUNICATION WITH ONE REPRESENTED BY COUNSEL
                          (a) L shall no communicate about subject of rep w/person, org or gov entity that L knows is
                          represented by another L regarding that subject, unless L has consent of other L.
                          (b) L shall not communicate about subject of rep w/person or org that L knows to be employed
                          or retained for purpose of conferring w/or advising another L about the subject of the rep,
                          unless L has consent of other L.
                          (c) Org & Gov Entity = (1) persons presently having managerial responsibility w/an org or gov
                          entity that relates to subject of rep; or (2) persons presently employed by org or entity and
                          whose act or omission in connection w/subject of rep may make the org or entity of gov
                          vicariously liable.
                          (d) When person, org or gov entity that is represented by L in a matter seeks advice regarding
                          that matter from another L, 2nd L is not prohibited by (a) from giving such advice w/out
                          notifying the first L.

                          TR 4.03 DEALING WITH UNREPRESENTED PERSON
                          In dealing for C w/person who isn‟t represented, L shall not imply that L is disinterested.
                          When L knows that person misunderstands L‟s role, he shall make reasonable effort to correct.

              ii. General Info - People hire lawyers to avoid dealing directly w/legal probs & to protect from
                  other lawyers. Rule relieves represented people from pressure from opposing Ls, to settle, etc
                      1. MR 4.2 applies to co-dfts & co-ptfs as well.
                      2. MR 4.2 has a mens rea component in that the L must know that the person to whom he
                          speaks is represented in the matter – but this required actual knowledge can be
                          inferred from circumstances & L shouldn‟t willfully blind himself to the obvious
                      3. To be barred by rule, communication must occur while L is “representing a client.”
                      4. L is only forbidden to communicate about the “subject” of the other lawyer‟s
                          representation. Anything else is fine.
                      5. Though it may not be advisable, clients are free to talk to one another.
                      6. Rule is highly protective of atty-client relationship in that rule‟s protection is not
                          waivable by client. Only the L may consent to direct contact between C & opposing L

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              7.     Direct contact prohibited even if initiated by opposing client. If called by opposing
                     client you should say: “Sorry, but I’m forbidden to talk to you directly w/out your lawyer’s
                     permission. If your lawyer agrees, tell her to call me and give me ;permission to talk to you.
                     But we cannot continue this conversation now.”
              8. If L is prohibited from speaking to party so is his agents.
                       a. Thus, Rule also applies to 3rd parties, secretaries, paralegals, etc
              9. What sort of things are prohibited:
                       a. Getting damaging admission or info from opposing client
                       b. Settling or winning concession in matter from opposing client
                       c. Learning client‟s true position in negotiations
                       d. Learning opponent‟s strategy or learning privileged info
                       e. Weakening opposing client‟s resolve by casting doubt on strength of claim
                       f. Disparaging the L to the C
              10. There is some disagreement whether this rule prohibits L from using “testers”
                       a. Tester = person who pretends to be what he is not to learn whether opposition
                            is doing particular prohibited conduct. Ex: applies for job w/disability, etc.
                       b. Gen allowed b/c L only gets info anyone in public can get, but technically
                            action violates this rule & MR 8.4(c) that prohibits misrepresentation
              11. Who Counts?
                       a. “Persons” in MR 4.2 includes artificial persons like corporations. Prob is
                            figuring out which employees of a corp are under protective scope of anti-
                            contact rule.
                       b. Broadest/easiest rule would be to say all employees of corp, but this prohibits
                            informal discovery process & makes all discovery formal/slower/pricier.
                       c. Narrowest would confine rule to top execs.
                       d. Instead, rule covers all employees who can cause company to be vicariously
                            liable for their actions.
                       e. Former employees are generally not covered by the rule.
      iii. Anti-Contact Rule in Criminal Cases
              1. Couldn‟t a mob boss hire a permanent in house lawyer to represent him in all criminal
                  investigations and thereby eliminate fear of police trying to wire tap him? That might
                  be a reasonable way to apply the anti-contact rule, but law today allows prosecutors a
                  lot of latitude to talk to people who are represented by counsel as long as they don‟t
                  violate the 6th amendment.
              2. Authorized by Law Exception – MR 4.2 allows hat lawyer may engage in otherwise
                  forbidden ex parte contacts if the lawyer is authorized by law to do so.
                       a. There are formalized constitutional limits on what contacts are not authorized
                            in criminal proceedings.
                       b. The right to counsel attaches upon the commencement of formal judicial
                            proceedings: indictment or arraignment.
                       c. B/c gov does not violate 6th by interrogating an unindicted person out of the
                            presence of counsel, the natural reading of the “authorized by law exception”
                            is that pre-indictment interviews are not covered by the anti-contact rule.
                       d. Nevertheless, some crts occasionally have expressed impatience w/gov agents
                            interviewing unindicted criminal suspects in absence of counsel.

b. Improper Acquisition of Confidential Info
      i. RULES
                     MR 4.4 RESPECT FOR RIGHTS OF THIRD PERSONS
                   (a) L shall not use means that have no substantial purpose other than to embarrass, delay or
                   burden a 3rd person, or use methods of getting evid that violate the legal rights of such person.
                   (b) L who receives doc relating to rep & knows it was accidental, shall promptly notify sender

       ii. Examples of info barred by (a)


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                        1. Ptf fatty receives unsolicited info over the phone from the dft‟s employee indicating
                            that the dft had not covered up docs that were supposed to be turned over in discovery
                        2. L for one client tries to debrief or neutralize an expert retained by the other side & use
                            as his expert instead. Crt didn‟t allow expert to testify.
                        3. L learns confidential info from expert previously interviewed by opposing side, L &
                            firm may be disqualified.
                        4. Crts have dismissed claims where litigant participates in the invasion of opponent‟s
                            confidential relationships.
               iii. Discussion of (b)
                        1. Any manor (mail, fax, email, etc) where firm for one party has accidentally given
                            confidential info to opposition.
                        2. Rule requires that notice be given but leaves to substantive law whether L must
                            comply w/opponent‟s instructions of what to do w/doc. If receiving L accidentally
                            reads doc, then he is not allowed to use info.
                        3. There is debate about whether party has waived right to confidentiality if it was too
                            careless with it, etc.
                        4. There‟s no specific TR on this, but Meador deals w/topic & TX Sup Crt says that it
                            looks to MR for some guidance. Says that if info is revealed accidentally through
                            normal course of discovery then normally the party receiving extra info has no
                            obligation, but depending on several factors there is an obligation to confidentiality
                            when info received outside of discovery.

VIII.   Loyalty & Conflicts of Interest
        a. Intro
                 i. Some categories of conflicts:
                        1. Concurrent Conflict of Interest
                                 a. Client/Client = L finds loyalties divided between current clients. Examples:
                                           i. L representing co-dfts in case & C wants to blame the other
                                          ii. L represents 2 Cs in criminal matter & prosecutor wants to cut deal
                                         iii. L has 2 clients that want him to draft K between them
                                         iv. L has 2 clients on completely different matters but he has to argue pt
                                              of law one way for one & one way for the other.
                                 b. Client/Lawyer – L finds conflict between his or firm‟s interests & a clients
                                           i. Client wants to challenge a tax reg that benefits firm
                        2. Successive Conflict
                                 a. When L gets a client whose interests conflict w/that of the L‟s former client.
                ii. “Revolving Door” problem
                        1. When a L moves from one firm to another, do his conflicts travel to new firm? Do
                            they remain at old one? How long do conflicts last?
               iii. All these rules are what exists if lawyers and clients don‟t agree otherwise. Of course Ls & Cs
                    may make arrangements providing more or less protections to the clients and their interests.
               iv. 3 Reasons for strictly construing the rules
                        1. Client Loyalty – Cs invest tons of trust/confident in Ls & in turn L has fiduciary
                            obligations including undivided loyalty – meaning that loyalty shouldn‟t be tempered
                            by other obligations or interests. Ex: L shouldn‟t be tempted to “pull his punches” for
                            C to help another C
                        2. Confidentiality – C shouldn‟t have to worry that info given to L will be used for other
                            purposes or used against him or her in later litigation, etc.
                        3. Process Integrity – crts desire to have hard hitting adversaries b/c it helps truth get
                            out. When loyalties are compromised its like lawyer playing both sides in chess.
                v. Reasons against overly strict rules
                        1. Limits Client Choice & Availability of Council
                                 a. In a world w/huge firms, huge businesses & great interconnectedness, Cs can
                                     find themselves w/out ability to get a qualified L who doesn‟t have a conflict.

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                     b. Also rich Cs could “buy up” the good legal teams by creating conflicts in the
                         good firms against opposition.
              2. Economic Liberty of Lawyers – if rules were so extreme that firm couldn‟t represent
                 anyone w/conflict of any lawyer that had worked for firm who‟d represented the
                 opposition, etc it would make it almost impossible for lawyers to switch firms.
              3. Avoiding Game-Playing w/Conflict Rules – lawyers try to use these rules as a strategic
                 weapon against their opposition but crts will try to prevent this. If it is apparent that
                 one party is merely using them as an attack tool, crt may not allow it. For example if
                 one side waits until right before a trial to point out a violation crt may realize that the
                 side was purposely waiting in order to delay proceedings & crt may overlook violation

b. Concurrent Conflict between Lawyer & Client
      i. RULES
                  TR 1.08 CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS
                  (a) L shall not enter into business transaction w/C unless:
                             (1) transaction & terms are fair & reasonable to C & fully to C & in reasonable way
                             (2) C is given reasonable opportunity tget outside counsel in the transaction; and
                             (3) C consents in writing thereto.
                  (b) L shall not prepare doc giving unrelated L (or L‟s relative) a big gift from client.
                  (c) Prior to end of L‟s employment, L shall not negotiate agreement w/C, prospective C or
                  former C to get literary rights to info in representation.
                  (d) L shall not give financial assistance to C in connection w/litigation or administrative
                  proceedings, except that:
                             (1) L may advance crt costs, expenses of lit or administrative proceedings, &
                             reasonably nec medical & living expenses, the repayment of which may be contingent
                             on outcome of matter; &
                             (2) L representing indigent C may pay crt costs & expenses of lit for C.
                  (e) L shall not accept compensation for representing C from one other than C unless:
                             (1) C consents;
                             (2) there is no interference with L‟s independence of prof judgment or w/C-L
                             relationship; and
                             (3) info relating to representation of a client is protected as required by Rule 1.05.
                  (f) L representing 2 or more Cs shall not aggregate settlement of claims; nor in criminal case
                  aggregate agreement to plea guilty, unless each C consented after consultation, including
                  disclosure of nature of all claims or pleas involved & nature a& extent of the participation of
                  each person in the settlement.
                  (g) L shall not prospectively enter agreement limiting L’s liability to C for malpractice
                  unless permitted by law & C is independently represented in making the agreement, or settle a
                  claim for such liability with an unrepresented C or former C w/out first advising that person in
                  writing that independent representation is appropriate in connection therewith.
                  (h) 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 granted by law to secure the lawyer‟s fee or expenses; and
                             (2) contract in a civil case with a client for a contingent fee that is permissible under
                             Rule 1.04.
                  (i) If L is prohibited by this Rule, the whole firm is.
                  (j) Rule doesn’t apply to standard commercial transactions between L & C for products
                  normally sold to others.
       ii. Lawyer & Client Conflict
              (VERY IMPORTANT; more MPRE questions on this than anything else)

c. Concurrent Conflict between 2 Clients
      i. RULES
                  MR 1.7 CONFLICT OF INTEREST: CURRENT CLIENTS
                  (a) L shall not represent C if representation involves a concurrent conflict of interest.
                           A concurrent conflict of interest exists if:
                           (1) the representation of one C will be directly adverse to another C; or
                           (2) there is a significant risk that the representation of one C will be materially limited
                           by L‟s responsibilities to another C, former C, 3 rd person or L himself.
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(b) Notwithstanding concurrent conflict of interest under (a), L may represent a C if:
        (1) L reasonably believes he can provide competent & diligent rep to each affected C;
        (2) rep isn‟t prohibited by law;
        (3) rep doesn‟t involve assertion of claim by one C against another C represented by
        L in same litigation or other proceeding before a tribunal; &
        (4) each affected C gives informed consent, confirmed in writing.

MR 1.8 CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES
(a) L shall not enter into business transaction w/C or knowingly acquire ownership,
possessory, security or other pecuniary interest adverse to C unless:
          (1) the transaction & terms on which L acquires interest are fair & reasonable to the C
          & are fully disclosed & given in writing in manner than C can understand;
          (2) C advised in writing that he may want to get other legal counsel on transaction; &
          (3) C gives written informed consent w/C signature, essential terms & L‟s role in
          transaction.
(b) L shall not use info relating to representation of C to disadvantage of C unless C gives
informed consent, except as permitted or required by these Rules.
(c) L shall not solicit any big gift from C, including a testamentary gift, or prepare for C an
instrument giving L (or his relative) a big gift unless L is related to C. “Related” = spouse,
child, grandchild, parent, grandparent or other person w/whom L or C maintains a close
familial relationship.
(d) Prior to conclusion of rep, L shall not make or negotiate an agreement giving L literary or
media rights to a portrayal or account based in substantial part on info relating to the rep.
(e) L shall not provide financial assistance to C in connection w/pending or contemplated
litigation, except that:
          (1) L may advance crt costs & expenses of lit, repayment of which may be contingent
          on outcome of matter; &
          (2) L representing an indigent client may pay crt costs & expenses for C.
(f) L shall not take compensation for representing a C from one other than C unless:
          (1) C gives informed consent;
          (2) There‟s no interference w/L‟s independence of professional judgment or w/client-
          lawyer relationship; &
          (3) info relating to rep of C is protected as required by Rule 1.6.
(g) L who represents 2 or more Cs shall not participate in making an aggregate settlement of
claims of or against Cs, or in a criminal case an aggregated agreement as to guilty or nolo
contendere pleas, unless C gives written informed consent. L‟s disclosure shall include the
existence & nature of all claims or pleas involved & participation of each person in settlement.
(h) L shall not::
          (1) make agreement prospectively limiting L‟s liability to a C for malpractice unless
          C is independently represented in making the agreement; or
          (2) settle potential claim for such liability w/unrepresented C or former C unless C is
          advised in writing of desirability of getting outside council & given opportunity get it.
(i) L shall not get a proprietary interest in the cause of action or subject matter of litigation the
L is conducting for C, except that L may:
          (1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
          (2) contract with a client for a reasonable contingent fee in a civil case.
(j) L shall not have sexual relations w/a C unless a consensual sexual relationship existed when
C-L relationship started.
(k) While Ls are in firm, prohibition in the foregoing paragraphs (a) through (i) that applies to
any one of them shall apply to all of them.

MR 1.10 IMPUTATION OF CONFLICTS OF INTEREST:
GENERAL RULE
(a) While Ls are in firm, none shall knowingly rep a C when any of them alone would be
prohibited from doing so by MR 1.7 or 1.9 unless prohibition is based on a personal interest of
the prohibited L & it doesn‟t present a significant risk of materially limiting the rep of the C by
remaining Ls in the firm.
(b) When L leaves firm, firm isn‟t prohibited from representing person w/interests materially
adverse to those of C represented by formerly associated L & not currently represented by
firm, unless:

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                     (1) matter is the same or substantially related to that in which the formerly associated
                     lawyer represented the client; &
                     (2) any L remaining infirm has info protected by MR 1.6 & 1.9(c) that is material
            (c) A disqualification prescribed by this rule may be waived by affected C under MR 1.7
            (d) Disqualification of Ls associated in firm w/former or current gov Ls is governed by MR
            1.11

            TR 1.06 CONFLICT OF INTEREST: GENERAL RULE
            (a) L shall not rep opposing parties in same litigation.
            (b) L shall not rep a person if the rep of that person:
                       (1) involves a substantially related matter where that person‟s interests are materially
                       & directly adverse to interests of another C of the L or the L‟s firm; or
                       (2) reasonably appears to be or become adversely limited by L‟s or firm‟s
                       responsibilities to another C or 3rd Party, or by L‟s or firm‟s the lawyer‟s or law firms
                       own interests.
            (c) A lawyer may represent a client in the circumstances described in (b) if:
                       (1) the lawyer reasonably believes the representation of each client will not be
                       materially affected; and
                       (2) each affected or potentially affected client consents to such representation after
                       full disclosure of the existence, nature, implications, and possible adverse
                       consequences of the common representation and the advantages involved, if any.
            (d) A lawyer who has represented multiple parties in a matter shall not thereafter represent any
            of such parties in a dispute among the parties arising out of the matter, unless prior consent is
            obtained from all such parties to the dispute.
            (e) If a lawyer has accepted representation in violation of this Rule, or if multiple
            representation properly accepted becomes improper under this Rule, the lawyer shall promptly
            withdraw from one or more representations to the extent necessary for any remaining
            representation not to be in violation of these Rules.
            (f) If a lawyer would be prohibited by this Rule from engaging in particular conduct, no other
            lawyer while a member or associated with that lawyer's firm may engage in that conduct.


ii. 4 Steps - Any current client conflicts prob can be handled by breaking it into 4 steps:
        1. Step One: ID client relationships
                a. First determine which party is a C of L or firm.
                b. Remember firm may have “quasi-client” obligations even w/out formal
                    arrangement. Quasi-clients = parties who were just potential clients who
                    discussed private info. Also can be constituents of Cs like members of trade
                    association, subsidiaries of corporate clients, or even individual corporate
                    officers or employees. Here watch for facts suggesting that L suggested to an
                    individual in corp that he could represent him individually or that L acquired
                    individual‟s private info through representation of corp.
                c. But, MR 1.13(a) says L retained by org represents org itself acting through
                    authorized agents – not any of its human constituents.
                d. Draw a diagram to help!
        2. Step Two: ID conflicts (draw a picture!)
                a. Second, determine whether there are conflicting interests among the clients,
                    or between clients & lawyer.
                b. Think in both functional and legal terms.
                         i. Functionally, think what L could do on behalf of one C that could
                             harm interests of another. Think how Lawyer‟s ability to represent
                             each would be impaired.
                        ii. Legally consider the 2 ways there can be conflict in MR 1.7(a)
                c. Direct Adversity Conflicts - includes Dft vs. Ptf & Dft vs. Dft & Ptf vs. Ptf
                         i. Often times parties on same side will want to blame one another or be
                             harsh business competitors
                d. Material Limitation Conflicts –

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               i. More subtle; they arise out of some other interest that interferes w/L‟s
                  ability to provide effective, diligent, impartial rep for C. Thus, if
                  there‟s anything that makes L pause & think “Hmm, I wonder if that‟s
                  ok,” there‟s probably a material limitation conflict.
              ii. There are plenty of gray areas & you can drive yourself nuts trying to
                  figure out whether a particular conflict is a “direct conflict” or a
                  “material” one, but it doesn‟t matter, any conflict requires consent.
       e. Actual vs. Potential Conflicts
               i. W/ potential conflicts a L has obligation to keep an eye on
                  developments in a representation, b/c conflict may arise where there
                  was not one before.
              ii. In Fiandaca v. Cunningham, 1987 a firm represented handicapped
                  children seeking better facilities & a female prison seeking better
                  facilities. There seemed to be no conflict until the gov offered to
                  settle w/females by building a new facility where the children wanted
                  their new hospital. Thus, conflict created.
             iii. If for some reason L can foresee at outset the risk that the interests of
                  2 classes might diverge at some pt, L must explain that risk to
                  affected Cs and get their consent. Risk must be significant in order to
                  create a conflict under MR 1.7(a)(2).
3. Step Three: Ascertain consentability/waivable
       a. Most current conflicts are consentable if C is making an informed decision.
          All successive conflicts are consentable.
       b. Non-consentable conflicts are those where L cannot in any way
            properly represent both clients. Includes:
       c. When prohibited by law MR 1.7(b)(2)
       d. Client vs. Client Conflict
               i. MR 1.7(b)(3) – client vs. client in same litigation
                        1. Trad rule: firm may not represent C in matter which C‟s
                            position would be adverse to another existing C. Doesn‟t
                            matter if 2 matters are unrelated.
                        2. Modern trend: let firm represent both Cs w/consent provided
                            firm isn‟t representing them in same litigated matter.
              ii. Ex: MR 1.8(d) prohibits L getting media rights from C
       e. Zero-Sum = when L can‟t help one C w/out hurting another C
               i. Catch-all - L may not rep 2 clients even w/informed consent unless L
                   reasonably believes he can provide competent & diligent rep for each.
                   MR 1.7(b)(1).
              ii. Unless C has same opportunity to achieve good result w/”conflicted L
                   as w/independent L, L cannot represent both clients.
       f. Also, client can‟t waive advocate-witness rule
4. Step Four: See if there has been effective consent
       a. Finally, if conflicts are consentable, have all affected clients given informed
          consent? The prerequisite for informed consent is full disclosure. L must
          give the kind of info that an impartial L (not laboring under a conflict) would
          give to C. IF there‟s a risk to C, L must say so. If consent would foreclose a
          particular strategic move, C must be told so.
       b. Remember that each affected C must consent after consultation.
       c. List of factors from Restatement which should be discussed:
               i. The interests of the L & C giving rise to conflict.
              ii. Contingent, optional, & tactical considerations & alternative courses
                   of action that would be foreclosed by conflict.
             iii. Effect of rep or the process of obtaining other Cs‟ informed consent
                   upon confidential info of C.

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                               iv. Any material reservations that a disinterested L might harbor about
                                    the arrangement if such L were represented only the C being advised.
                                v. Consequences & effects of a future w/draw of consent by any C,
                                    including, if relevant, that L would w/draw from representing all Cs.
             5. Withdraw of Consent
             6. Requirement of Written Consent
             7. Advance Waivers
                      a. When firm gets a HUGE client that would cause all sorts of conflicts across
                           the board can firm get client‟s advance waiver of future conflicts that will
                           likely arise?
                      b. ABA & restatements give cautious endorsement of advance waivers, but best
                           if L had some good idea of the actual potential conflicts that might arise
                           instead of a blanket waiver
     iii. Imputation
             1. Once you go through the analysis w/1 lawyer you need to determine whether the
                  conflict is imputed to other lawyers in the same firm.
             2. MR 1.10 imputes all current & former client conflicts to lawyers working together in
                  the same firm, unless conflict is based on a personal interest of lawyer & “does not
                  present a significant risk of materially limiting the representation of the client by the
                  remaining lawyers in the firm.”
                      a. Branch offices of a big firm are all included in definition of “firm.”
             3. But, lawyers are not in a firm if they don‟t hold themselves out to public as such
             4. It‟s an ongoing duty under MR 1.7 to monitor conflicts b/c they can arise during the
                  course of a representation.
             5. Discipline
                      a. Representing conflicting interests is theoretically basis for prof discipline but
                           b/c conflict Qs are so fact-intensive & often can only be resolved in light of
                           legal issues, vast majority of conflicts cases arise either on a motion to
                           disqualify one of Ls from representing a C or in an action for malpractice or
                           breach of fiduciary duty.
                      b. Disqualification
                                 i. Crts can regulate who practices before them. Crt can disqualify L on
                                    grounds that conflicting loyalties undermines effectiveness of
                                    adversary process. Crt can then demand L return fees, or C can seek
                                    them through suit for malpractice.
                                ii. B/c crts have this independent source of authority to disqualify Ls
                                    they are not obligate dot follow the disciplinary rules exactly.
                      c. Malpractice
                                 i. If firm is disqualified for conflict, C is stuck w/having paid for
                                    something that didn‟t deliver & now has to rush to get another L.
                                ii. C will probably sue for either negligence (for failure to discover
                                    conflict) or breach of fiduciary duty.
                               iii. Damages include the amount paid to L while L was violating duty &
                                    amount of extra legal fees need to hire someone so late in the game.
     iv. P.190-204
      v. P. 238 - 252
     vi.
d. Advocate-Witness Rule
       i. RULES
                    MR 3.7 LAWYER AS WITNESS
                    (a) Can‟t be L for trial where L is likely to be a nec witness unless::
                             (1) the testimony relates to an uncontested issue;
                            (2) the testimony relates to the nature & value of legal services rendered in case; or
                             (3) disqualification of L would work substantial hardship on the client.
                    (b) L may L in trial where L at L‟s firm will be called unless not allowed under MR 1.7 or 1.9

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                     TR 3.08 LAWYER AS WITNESS
                     (a) L shall not continue being advocate before crt for pending proceeding if L believes that L
                     may be a witness nec to establish an essential fact on behalf of L‟s C, unless:
                               (1) the testimony relates to an uncontested issue;
                               (2) testimony will relate solely to matter of formality & no belief that substantial evid
                               will be offered in opposition to the testimony;
                               (3) the testimony relates to the nature and value of legal services rendered in the case;
                               (4) the lawyer is a party to the action and is appearing pro se; or
                               (5) L has promptly notifed opposing counsel that L expects to testify &
                               disqualification of L works to substantial hardship on the client.
                     (b) L shall not continue advocating in pending proceeding if L believes L will be compelled to
                     give testimony substantially adverse to L‟s C unless C consents after full disclosure.
                     (c) W/out C‟s informed consent, L may not act as advocate in proceeding in which another L
                     in L‟s firm is prohibited by (a) or (b) from advocating. If L to be called as a witness could not
                     also serve as an advocate under this Rule, L shall not take active presenting role before the crt.

       ii. General
               1. Client can‟t waive this rule
               2. Rule applies even if L is testifying favorably for client.
               3. TR 3.08 is more complicated than MR3.7
                      a. Saunders – wife call‟s husband‟s L to testify. L argues that TR 3.08(a)
                           prohibits, but 3.08(a) only applies when L believes he will testify for C‟s
                           benefit. This case is where L is being asked to testify on things adverse to C.
                           Instead 3.08(b) applies b/c that‟s why L will be asked to testify against C, but
                           C can consent & allow L to testify to (b).
                      b. Another difference is that law firm is imputed in TR but not MR
                      c. Lesson to learn from this:
                                 i. Don‟t get in position where you may have to testify at trial.
                                ii. To avoid that: if you go & interview employees in civil suit by
                                    yourself & then employee skips town, then you may be only one to
                                    testify to any really good evidence that you got in interview. But, if
                                    you bring someone else along like investigator or a young associate to
                                    interview they can offer evidence if need be. You need to bring
                                    someone who wont need to be trial council.
                               iii. Basically you don‟t want to be an evidence receptacle
                      d. Crts don‟t allow you to abuse rule as tactical matter. Don‟t count on being
                           able to call on opposing council.
                                 i. There‟s a case where ptf called dft‟s atty to stand to testify about how
                                    he crossed someone
                                ii. Crt isn‟t bound by rules (takes only as guidelines), so if L is
                                    discovered to need to after being in middle of trial, crt may let him
                                    step down or let him testify. If party calls L as tactical matter, crt can
                                    just decide to let him testify & be L at same time.
      iii. xxx
      iv. p.270-273
       v.
e. Successive Conflicts – Side Switching
        i. RULES
                     MR 1.9 DUTIES TO FORMER CLIENTS
                     (a) L who has formerly represented C in matter shall not afterwards rep another party in a
                     substantially related mater where the two‟s interests are adverse to each other, unless former C
                     gives written informed consent.
                     (b) L shall not knowingly rep a person in a substantially related matter in which L‟s former
                     firm was associated had previously represented a C
                              (1) whose interests are materially adverse to that person; and


                                                                                                                     25
                     (2) about whom L had acquired info protected by Rules 1.6 and 1.9(c) that is material
                     to matter; unless the former C gives written informed consent.
            (c) L who has formerly represented a C in matter or whose present or former firm has formerly
            represented a client in a matter shall not thereafter:
                     (1) use info relating to the rep to the disadvantage of former C except as Rules would
                     permit or require, or when info has become generally known; or
                     (2) reveal info relating to rep except as Rules permit or require

            MR 1.10 (See Above)


            MR 1.18 DUTIES TO PROSPECTIVE CLIENT
            (a) Prospective Client = one who talks to L about forming C/L relationship w/respect to matter
            (b) Even when no C/L relationship ensues, L who has had discussions w/prospective C shall
            not use or reveal info learned, except as MR 1.9 allows (concerns former C‟s info)
            (c) L shall not rep C w/interests materially adverse to those of a prospective client in
            substantially related matter if L got info that would be significantly harmful to party, except as
            allowed in (d). If L is disqualified, no L in firm may knowingly continue to rep
            (d) When the lawyer has received disqualifying information as defined in paragraph (c),
            representation is permissible if:
                     (1) both the affected client and the prospective client have given informed consent,
                     confirmed in writing, or:
                     (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
                     (i) the disqualified lawyer is timely screened from any participation in the matter and
                     is apportioned no part of the fee therefrom; and
                     (ii) written notice is promptly given to the prospective client.

            TR 1.09 CONFLICT OF INTEREST: FORMER CLIENT
            (a) W/prior consent, L who personally rep a C in matter shall not thereafter rep another person
            in a matter adverse to former client:
                     (1) in which such other person questions the validity of L‟s work for former C;
                     (2) if rep wil likely involve violation of Rule 1.05; or
                     (3) if it is the same or a substantially related matter.
            (b) Except as authorized by MR 1.10, when Ls have been members of firm, none of them shall
            knowingly rep a C if any of them practicing alone would be prohibited from doing so by (a).
            (c) When L has quit firm, Ls remaining in firm shall not knowingly rep a C if the quitting L
            would be prohibited from doing so by (a)(1) or if the rep will probably violate MR 1.05.

ii. 5 Issues Presented in MR 1.9(a)
        1. Has the L formerly represented C who might complain about the conflict?
                a. Can be confusion about whether there was ever an L/C relationship
                         i. MR 1.18 deals w C was a “prospective client”
                b. Also can be confusion over whether C is current or former
                         i. Ex: C1 hires L 1-2 jobs per yr, but there‟s no formal agreement.
                             Then C2 asks L to rep him against C1 in unrelated matter.
                                 1. If C1 is current client then L can‟t take C2‟s job
                                 2. & Crts are reluctant to let L fire C1 to take new job.
        2. What is the nature of the matter for which L formerly provided rep?
                a. Matter = deal, transaction, issue on which C requires counseling & legal
                    advice. Does not include a legal position taken for C, so L can argue for one
                    C that statute x means y and argue for another C that x means z.
                b. If matters are “substantially related” then L can‟t rep both Cs.
        3. Is that matter the same or substantially related to the present matter?
                a. There are different standards for determining whether matters are
                    “substantially related.” The best way to understand the test is to think


                                                                                                           26
                             functionally in terms of the two client interests that are threatened if Ls are
                             permitted to rep new C against old C: confidentiality & loyalty
                          b. Crts most concerned w/confidentiality but at times concerned w/loyalty.
                             Loyalty is big issue w/concurrent conflicts. Confidentiality is bigger here.
                          c. Confidentiality
                                   i. This is the “follow the secrets” approach.
                                  ii. Note to MR 1.9 says that 2 matters are substantially related if there is
                                      a substantial risk that confidential info as would normally have been
                                      obtained in prior rep would materially help C‟s position in new matter
                                 iii. Former C doesn‟t have to prove that L actually received the info – b/c
                                      that would require former C to reveal said confidential info.
                                 iv. Crts follow the secrets not by attempting to discover the actual
                                      transmission of confidential C info, but by comparing the 2 matters &
                                      making educated guess as to whether there would be some overlap of
                                      factual info relevant to both.
                          d. Loyalty
                                   i. Confidentiality is the main concern b/c it doesn‟t really matter if L
                                      has changed his loyalties.
                                  ii. This rationale recognizes that C would feel betrayed if her previous L
                                      turned and represented an adversary. But, this is a dangerous ground
                                      for justifying rule b/c it may be used to create a broad zone of
                                      prohibition on future representation by L. There‟s certainly a pt
                                      where L & C will be so distance in time from each other that L has no
                                      relevant info, but C will still feel hurt.
                 4. Are the interest of the present & former C materially adverse?
                          a. Position of new C is materially adverse to that of former C if L would be
                             limited in performing her prof obligations for either one.
                 5. Did the former client provide informed consent?
                          a. All former client conflicts are consentable/waivable w/proper info, etc.
                 6. Appearance of Impropriety is not the standard
                          a. Before MR this was the standard, but its indefinable & no longer the standard.
                          b. If a former C gives you permission to take on a new C (in situation where you
                             had to ask former C permission) but the former C makes you assure him that
                             you can‟t share confidential info. This solves the successive conflict problem,
                             but creates a concurrent conflict b/c now you have a duty of confidentiality to
                             former client and full duties to new C.
                 7. xxx
        iii. P. 292 - 304
        iv.
f.   Successive Conflicts – Migratory Lawyers
          i. RULES
                     MR 1.9 (See Above)
                     MR 1.10 (See Above)
                     MR 1.18 (See Above)
                     TR 1.09 (See Above)
         ii. The Problem
                1. General Rule: When Ls are currently in firm, all confidential info known by any is
                    imputed to all lawyers in firm (including distant branches).
                2. But, when Lawyer leaves, he may be able to avoid some of those imputations &
                    remaining firm may be able to avoid imputations it got from the lawyer.
                3. The following 3 questions must be analyzed for any migrating lawyer problem:

        iii. First: While working at the previous firm, did the moving L represent a C whose interests
             are adverse to those of a C of the new firm? (Irrebuttable or Rebuttable Presumption?)


                                                                                                           27
       1. In all jurisdictions there‟s an irrebuttable presumption that lawyers within firm have
           shared confidential client info, if the Q is whether L within firm can take on a new
           client whose interests are adverse to another firm client.
               a. Some jurisdictions extend this irrebuttable presumption to lawyers changing
                   firms. Thus, L can‟t disclaim having confidential C info of former firm‟s Cs.
       2. Silver Chrysler Rule
               a. Maj & MR is diff; creates a rebuttable presumption that L gained confidential
                   C info from former firm. If L can make a specific showing that he learned
                   nothing from former firm about matter, L can move w/out disqualifying new
                   firm from representing new client.
               b. In Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d
                   Cir. 1975) – L migrated and went from firm representing one party in case to
                   other party. But, L didn‟t work on particular matter & in all matters he
                   worked on, he only did basic legal research as a junior associate. 2nd Cir held
                   that L had not “represented” Chrysler for the purposes of the former client
                   conflicts rule b/c he hadn‟t been in a position to aquire confidential info that
                   would be helpful to other side.
               c. Crts look to L‟s acc3ss to confidential info, not the actual confidential info
                   itself. They make educated guesses.
               d. Either side may use timesheets or other evidence of L‟s involvement or not.
       3. MR 1.9(b) embodies Silver Chrysler Rule. (b) is really an application of (a) aimed at
           Ls changing firms. (b) doesn‟t add anything.
iv. Second: Are the 2 matters in question the same or substantially related?
       1. This is the same test as w/side-switching former client conflicts. Migrating L is
           disqualified if matters were substantially related.
       2. Again, crts use the “follow the secrets” approach & analyze where L likely had
            access to material confidential info.
       3. Comments to MR warn that taking loyalty too far in this situation can cripple any
            lawyer‟s ability to migrate. Best way is to think of it is a “client‟s reasonable
            expectation of loyalty.”
v. Third: Is the moving L’s “taint” imputed to the other Ls in the new firm, so that the entire
   firm is disqualified if the moving L would be personally disqualified?
       1. To impute entire firm would make new firms very wary to hire new guys b/c he would
            carry “Typhoid Mary” disease that he would pass on to firm.
                a. Crts want to soften imputation rule to avoid unduly limiting job mobility.
       2. Most jurs (including TX) have an irrebuttable presumption that new L would/will
            share all the confidential info he knew w/new firm.
       3. Minority has a rebuttable presumption instead.
       4. To rebut the presumption, 2 things must be true:
                a. First the jurs must recognize “screening” either by amendment to the rules or
                     by judicial decision.
                b. Second, elements of an effective screen must be satisfied.
                           i. MR doesn‟t include screening
                          ii. Minority of states have screening
                         iii. Extremely controversial & lots of variation between states.
                         iv. Screening only applies to migrating lawyer!

       Confidential Info Possessed                                 Effect
     Significant Confidences            L is personally disqualified & screening isn‟t effective
                                        even in jurisdictions that recognize screening.
     Some, but nothing that is likely   L personal disqualified but in jurs w/screening L can be
     to matter                          screened off; “taint” of incoming L not imputed to firm
     Virtually none; insignificant      Silver Chrysler – L not personally disqualified; L can
     contact w/former C                 rep a new client in same or substantially related matter.

                                                                                                    28
                 5. Allowing screening isn‟t based on ethics, but on practicalities of wanting to allow
                      lawyers some job mobility.
      vi.    MR 1.0(k) "Screened" denotes the isolation of a lawyer from any participation in a matter
             through the timely imposition of procedures within a firm that are reasonably adequate under
             the circumstances to protect information that the isolated lawyer is obligated to protect under
             these Rules or other law.
     vii.    Elements of an Effective Screen
                 1. Varies by jurs, but generally these are the requirements
                 2. Strict segregation of paper & electronic docs
                 3. Instructions to Ls representing C not to talk to screened L about case
                 4. No sharing of fees w/screened L.
                 5. Notice to opposition of the lateral move so that it can keep an eye on situation. If
                      opposition begins to suspect secrets leaked it can file motion to disqualify.
                 6. Timing is everything – screen must be up before L could share info
     viii.   Even if firm follows all of the steps, crt may say that it just isn‟t enough.
                 1. Mostly depends on firm‟s size. Smaller firms need thicker screens b/c no distance
      ix.    Reverse: When Lawyer Takes Client with Him
                 1. This is “reverse imputation problem” : Once L leaves firm w/client, may firm
                      represent the other side?
                          a. Yes, even in the same or substantially related matter, so long as no layer
                               remaining in the firm retains confidential client info pertaining to matter.
       x.    What about other migrating employees?
                 1. Paralegals, clerks & secretaries can carry info too, but some crts are more likely to
                      tolerate screens.
                 2. Pheonix – case where clerk went from x to y and back. Worked on case for 36
                      minutes at y and x tried to get council dismissed. Crt allowed a screen.
                 3. TX tolerates screens here, but not for lawyers. That seems counter-intuitive: not
                      allowing Lawyers to be screened even though they are professionals who would be
                      violating their ethical duties & then allowing an employee to be screened who doesn‟t
                      have much on the line, no professional duty & may be more tempted to obey orders.
                 4. But, employees are less likely to have quantity & quality info.
                 5. Main reason for this is that we don‟t want to make it too difficult for paralegals
                    to get jobs. This is a very pragmatic decision.
                 6. Twist Case: In Mass tort case, paralegal goes from manufacturer to ptf.
                    Manufacturer moves to disqualify firm. Crt says that paralegal must be
                    screened. But, then the ptf‟s lawyer didn‟t take the correct steps & was
                    imputed. This is just like Phoenix, but here dozens of other lawyers as co-
                    council for thousands of claimants
                        a. Crt sets up elaborate rules to decide if all lawyers should be imputed &
                            determined not. Crt looked at kinds of communications between
                            employee & co-counsel, etc.
                        b. Basically dfts asked for double-imputation & crt says no.
                        c. Crt balances practicalities & realizes that it would cause too much arm
                            to employees‟ job mobility to go that far.
                 7. Also comes up w/expert witnesses if they get confidential info from one &
                    then other side hires him.
g. Government Practice
      i. RULES
                     MR 1.11 SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT
                     GOVERNMENT OFFICERS AND EMPLOYEES
                     (a) Except as law otherwise expressly permits, L who formerly served as gov employee:
                             (1) is subject to Rule 1.9(c); &

                                                                                                             29
          (2) shall not rep C in connection w/a matter which L personally & substantially
          worked on as gov employee, unless that gov agency gives informed consent.
(b) When L under (a) is disqualified, nobody in firm may continue rep of the C unless:
          (1) the disqualified L is timely screened from any participation & gets no fee; &
          (2) written notice (not consent!) given to agency so it can ensure compliance w/rules
(c) L w/confidential gov info about a person acquired when L was a gov employee, may not
represent C whose interests are adverse to that person & info relates to matter.
          “Confidential government info" = info that was obtained under gov authority (not just
info which has to be made public if requested by anyone) & which at the time this Rule is
applied, the gov is prohibited by law from disclosing to public a legal privilege not otherwise
available to the public. L‟s firm may undertake or continue rep in mater only if disqualified L
is timely screened from & gets no fee.
(d) 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 matter which L participated personally & substantially
                    while in private practice or nongov employment, unless the appropriate gov
                    agency gives written, informed consent; or
                    (ii) negotiate for private employment w/any person who is involved as a
                    party or as L for a party in a matter in which L is participating personally &
                    substantially, except that L serving as a law clerk to 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) “Matter” = (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, & (2) any other matter covered by the
conflict of interest rules of the appropriate government agency.

TR 1.10 SUCCESSIVE GOVERNMENT AND PRIVATE EMPLOYMENT
(a) L shall not rep C in connection w/matter that L participated personally & substantially as a
public officer or employee, unless gov agency gives informed consent.
(b) The lawyers in L‟s firm may not knowingly continue rep of C in such matter unless:
          (1) L subject to (a) is screened & gets no fee; and
          (2) written notice (not consent!) is given w/reasonable promptness to appropriate gov
          agency.
(c) When L leaves gov entity for private practice: L w/confidential gov info about person
acquired when L was a gov employee may not rep a private C whose interests are adverse to
that person or legal entity.
(d) After learning that firm L is subject to (c) w/respect to a particular matter, a firm may
undertake or continue rep in that matter only if disqualified lawyer is screened & gets no fee.
(e) L currently serving as a public officer or employee shall not:
          (1) Participate in a matter involving a private C when L had represented the clients in
          the same way in private or nongovernmental emplacement, unless under applicable
          law no one is, or b one is, or by lawful delegation may be, authorized to act in the
          lawyer‟s stead in the matter; or
          (2) Negotiate for private employment with any person who is involved as a party or as
          attorney for a party in a matter in which the lawyer is participating personally and
          substantially.
(f) “Matter” does not include regulation-making or rule-making proceedings or assignments,
but includes:
          (1) Any adjudicatory proceeding, application, request for a ruling or other
          determination, contract, claim, controversy, investigation, charge accusation, arrest or
          other similar particular transaction involving a specific party or parties; and
          (2) any other action or transaction covered by the conflict of interest rules of the
          appropriate gov agency.
(g) As used in this rule, “confidential gov info” = info obtained under gov authority where by
law gov is prohibited from revealing to public & isn‟t available to public
(h) As used in this Rule, Private Client includes not only a private party but also a gov agency
if the lawyer is not a public officer or employee of that agency.


                                                                                                 30
                    (i) If gov L moves from one gov entity to next, he shall comply w/ (a) & (c) as if 2 nd entity
                    were a private client.

       ii. Revolving Door Problem = prob caused by lawyers moving in and out of gov practice.
              1. Creates diff kind of former client conflict situation as covered by separate rules. Here
                  the “client” is the particular agency, not gov as whole or branch of gov.
              2. All conflicts rules are aimed at preventing corruption of some kind. Here we have 2
                  main threats of possible corruption:
                       a. Gov L throws a case to get in good w/private firm
                       b. Use of insider info, contacts or intimate familiarity w/internal workings of
                           gov agency to get results for C that similar L w/out the previous experience in
                           gov would be unable to get.
                                 i. Second threat can‟t be taken too far b/c the whole reason that private-
                                     sector firms hire former gov Ls is that they have useful knowledge.
                                     Also limiting too heavily here prevents good Ls from working in gov.
              3. MR 1.11 strikes a balance between competing policies. It incorporates the Silver
                  Chrysler rule into the txt of the rule.
                       a. Here a former gov L is disqualified from representing private C only when L
                           participated personally & substantially in matter when working for gov.
                       b. A L is personally & substantially involved where his involvement goes
                           beyond “mere perfunctory approval or disapproval of the matter in Q and
                           rises to the level of “important, material” work in connection w/matter.
              4. Also 1.11 defines “matter” narrower than 1.9. Here “matter” = “any judicial or other
                  proceeding, application, request for a ruling… or other particular matter involving a
                  specific party or parties.” That rules out something general, like rulemaking
                  proceeding where definition of a statutory term is at issue, or enforcement of a
                  particular set of regs. As long as private C wasn‟t involved in proceeding then there‟s
                  no prob.
              5. MR 1.11 is broader than MR1.9 in one way b/c MR 1.11 is not limited to cases where
                  the new client (in private sector) is taking a position that is materially adverse to the
                  gov. If L participated personally & Substantially in the matter he cannot subsequently
                  represent private clients who were mixed-up in the matter regardless of the alignment
                  of interests of the parities. Ex: L worked w/SEC & then wants to work w/private firm
                  “on the same side” of the lit as when he worked w/SEC.
              6. Rule is consentable! But some agencies have the policy to never consent.
              7. Door goes both ways; lawyer not in gov may not participate in matter that he formerly
                  participated personally & substantially while in private practice. (for MR & TR)
              8. Finally, rule provides independent protection to “confidential gov info,” like financial
                  info from income tax returns, etc.
     iii. Steps to solving revolving door problem:
              1. ID the matter on which the L worked while in gov service & the matter from which
                  party is now seeking to disqualify the L. See 1.11(e) for definition of “matter.”
              2. Was the L personally & substantially involved as public employee? 1.11(a)(2)
              3. If not, is it possible for L to use info relating to the representation of the gov agency to
                  the disadvantage of that agency? 1.11(a)(1)
              4. Does L possess “confidential gov info” that can be used to detriment of third party?
                  1.11(c). There’s no consent provision for this rule b/c misuse of this info effects third
                  parties, not gov.
              5. Did the appropriate gov agency give informed consent? 1.11(a)(2).
              6. If L is personally disqualified, is the new law firm disqualified by imputation? New
                  firm can avoid disqualification by timely screening & giving written notice to the gov
                  agency so it can ascertain compliance w/screen. 1.11(b)
      iv. P. 304-312
h. Entity Representation
        i. RULES
                                                                                                                     31
MR 1.13 ORGANIZATION AS CLIENT
(a) L employed by org represents org acting through its duly authorized constituents.
(b) If L knows that an officer, employee or other person associated is engaged in action,
intends to or refuses to act in a matter that is a violation of Legal obligation to the org, or
violation of law that reasonably might be imputed to org, & action is likely to result in
substantial injury to org, then L shall proceed as reasonably necessary in best interest of org.
Unless L reasonably believes not nec in best interest of org, L shall refer matter to higher
authority in org, including, if warranted, to the highest authority of org. [aka “up the ladder”]
(c) Except as provided in paragraph (d), if
    (1) despite L's efforts in accordance with (b) the highest authority that can act on behalf of
    org insists upon or fails to address in a timely & appropriate manner an action or a refusal
    to act, that is clearly a violation of law, &
    (2) the L reasonably believes that the violation is reasonably certain to result in substantial
    injury to org, then L may reveal info to public relating to representation whether or not
    Rule 1.6 permits it, but only if & to extent the L reasonably believes nec to prevent
    substantial injury to org. [after Enron]
(d) Paragraph (c) shall not apply with respect to info relating to L's rep of an org to investigate
an alleged violation of law, or to defend org or an officer, employee or other constituent
associated with the organization against a claim arising out of an alleged violation of law.
(e) L who reasonably believes that he has been discharged b/c of the L's actions taken pursuant
to (b) or (c), or who withdraws under circumstances that require or permit the L to take action
under either of those paragraphs, shall proceed as the L reasonably believes necessary to assure
that the organization's highest authority is informed of the L's discharge or withdrawal.

(f) In dealing w/org‟s directors, officers, employees, members, shareholders or other
constituents, L shall explain identity of the client when L reasonably should know that the
org‟s interests are adverse to those of the constituents w/whom L is dealing.
(g) L representing an org may also represent any of its directors, officers, employees,
members, shareholders or constituents, subject to Rule 1.7. If org's consent to the dual
representation is required by Rule 1.7, the consent shall be given by an appropriate official of
org other than the individual who is to be represented, or by the shareholders.


TR 1.12 ORGANIZATION AS A CLIENT
(a) L employed or retained by org represents the entity. While L may report to & accept
direction from entity‟s duly authorized leaders in situations described in (b), the L shall
proceed as reasonably nec in the best interests of org w/out involving unreasonable risks of
disrupting the org & of revealing info relating to representation to persons outside org.
(b) L representing an org must take reasonable remedial actions when L learns that:
         (1) officer, employee, or other associate w/org committed or intends to commit
         violation of legal obligation to org or violation of law that might be imputed to org; &
         (2) the violation is likely to result in substantial injury to org; &
         (3) the violation is related to a matter w/in scope of L‟s rep of org.
(c) Except where other rule or law says otherwise, L shall first attempt to resolve a violation by
taking measures w/in org. In determining the internal procedures, actions or measures that are
reasonably nec in order to comply with (a) & (b), a L shall give due consideration to the
seriousness of the violation & its consequences, the scope & nature of L‟s rep, the
responsibility in the org & the apparent motivation of the person involved, the policies of the
organization concerning such matters, & any other relevant considerations. Such procedures,
actions and measures may include, but are not limited to, the following:
         (1) asking reconsideration of the matter;
         (2) advising that a separate legal opinion on the matter be sought for presentation to
         appropriate authority in the organization; and
         (3) referring matter to higher authority in org; when warranted, refer to highest
         authority in org.
(d) Upon L‟s resignation or termination of the relationship in compliance with Rule 1.15, a L is
excused from further proceeding as required by paragraphs (a), (b) and (c), and any further
obligations of the lawyer are determined by Rule 1.05.
(e) In dealing with an org‟s directors, officers, employees, members, shareholders or others, L
shall explain the identity of the client when it is apparent that the org‟s interests are adverse to

                                                                                                32
             those of the constituents w/whom L is dealing or when explanation appears nec to avoid
             misunderstanding. [Sometimes called “corporate Miranda rights.”]

 ii. Group Theory vs. Entity Theory
        1. Group Theory - says that when L represents an entity as a client, he is basically
             representing a group of individuals. This means L has to juggle all the internal
             conflicts of interest, etc. Some crts have adhered to this theory, but most don‟t‟
        2. Entity Theory – law in most states (TX) is that a L representing an org represents
             entity & not the individuals. The difficulty here is that when L represents a
             corporation he‟s representing a fictional individual who acts through the actions of
             other non-client individuals.
iii. Publicly Traded Corporations
        1. Good news about representing large, publicly held corps is that the lines of authority
             are fairly clear. Corp is owned by shareholders who elect directors to represent their
             interests. Directors constitute a board of directors which have one or more
             committees like an audit committee or a compensation committee. Directors delegate
             much of the day-to-day operations to the corp‟s officers like the CEO, CFO & general
             counsel. Officers & lower-level employees are all agents of the corp. The L is an
             agent too. Some agents like corporate officers & directors & lawyers have heightened
             fiduciary duties to corp meaning that they owe enhanced duties of loyalty & care &
             must refrain from self-dealing or laboring under conflicts of interest.
        2. Bad news is that the many diff people at corp will have diff ideas about what is best
             for corp. L may get different directions from diff people & may even get directions
             from people who are breaking their own duties.
        3. Key is for L to determine who he owes professional duties to.
        4. Corporate Wrongdoing
                 a. When there‟s wrongdoing going on the L must report the problem up the
                      ladder up to the top unless he can fix it himself. L must keep going up &
                      eventually report it to Board of Directors if necessary.
                 b. If board refuses to act, L can review confidential info
                 c. L shouldn‟t act to quickly b/c hopefully he can find someone internally who
                      has best & law abiding ambitions for corp in mind & can fix prob.
                 d. But L is civilly liable for not going up the ladder if in best interests of the corp
        5. Shareholder Derivative Actions
                 a. These are suits against corp as a nominal dft, but really aimed at redressing
                      breaches of duty committee by corporate officers or directors.
                 b. To fully understand issues you‟d have to take account state corporate law
                 c. Side note: ptfs may get their hands on stuff that would ordinarily be under
                      atty-client privileged b/c they are under same corporate umbrella.
        6. Corporate Families
                 a. ABA has taken position that representing one member of a corporate family
                      ordinarily doesn‟t create an atty-client relationship w/other affiliated entities.
                 b. But there were big dissents to this & ABA is just advisory anyway
        7. Closely Held Corporations & Partnerships
                 a. In theory MR 1.13(a) applies to closely held corps & partnerships as well as
                      to publicly traded corps. But, in practice the informality of the org puts some
                      pressure on this strict “entity theory” approach. L may find himself juggling
                      multiple atty-client relationships due to frequent informal interactions
                      w/constituents.
                 b. Whether L‟s client will be deemed to be the entity or the individuals depends
                      on the reasonable expectation of the constituents.
        8. Government Agencies
                 a. If L represents one gov agency, does that prohibit him from suing any gov
                      agency w/another case & situation?

                                                                                                      33
                              b. Gen rule is that absent facts indicating a relationship only w/ a particular gov
                                  agency, C should be regarded as the gov as a whole. But, where initial K w/L
                                  & gov stated that the firm would have contract w/specific dept w/specific pts
                                  of contact & limited info, then firm can represent other parties in opposition
                                  to gov.
                      9. L should be careful not to acquire “quasi-clients” b/c he can acquire his full
                          professional obligations & duties to clients he doesn‟t intend to have.
                              a. To do this, L should make sure that people don‟t mistakenly believe that the L
                                  is acting to protect their personal legal interests.
                              b. MR (f) & TR (g) is known as the “corporate Miranda warning,” where L tells
                                  person that any statements can be used for corporate purposes.
                      10. Accommodation Client – This comes about when a corporate client wants L to
                          represent an employee to save money b/c the corp client is going to have to pay for
                          another L & this L is already acquainted with issues, etc.
                              a. Here there is probably an implied knowledge that if a conflict of interest
                                  arises between the two clients, that the L will drop the accommodation client
                                  & go w/corp client. But, the only support for this comes from Restatement &
                                  gen crts would make L quit working for both parties due to shared info &
                                  conflict of interest.
              iv. P.450-460, 462-468, 489-492

      i.   Sarbanes-Oxley & MR 1.13
                i. SEC adopted 17 C.F.R. §205.3 to comply w/Sarbanes-Oxley. This only applies to SEC, but it
                   applies to anyone who will “appear & practice before the commission.” It applies Ls who
                   give advice to client in reference to any doc that may end up in the SEC‟s hands. This reaches
                   out and touches a lot of Ls who don‟t think they practice securities law.
               ii. S.O. has “reporting up” requirement that requires L to report likely violations up the ladder.
                   After reporting, chief legal officer has to get back w/you. If his response doesn‟t convince
                   you that the course of conduct is appropriate, you must keep going up to the auditor committee
                   or board of directors. There is no “reporting out” requirement to go to public. But, you are
                   allowed to withdraw under MR 1.06.
                       1. Violations include any securities law, state or fed breach of fiduciary duty, etc.
                       2. If L discovers any evidence of these things it triggers the reporting up requirement.
              iii. However, even though S.O. doesn‟t require “reporting out,” it does give permission to report
                   out. The language is very similar to MR 1.6.
              iv. ABA passed revision to MR 1.6 & MR 1.13 after S.O. came out. MR 1.13 is broader than
                   S.O. in that it applies to everyone, not just those under SEC.
               v. S.O. vs. MR 1.13
                       1. MR 1.13 is broader than SEC requirement. It is a reporting up requirement so long as
                            it is in the corp‟s best interests are at stake. This rule is broader, but in MR the rule
                            only applies whenever the discovered violation is relevant to the L‟s representation.
                            S.O. is not the same. In S.O. once the L is aware he has obligation to act even if
                            violation is outside the scope of L‟s representation.
                       2. The big diff is what triggers obligation b/c in both rules, L is the one who has the
                            discretion to decide.
                       3. Also the MR has a substantial obligation to third parities.
              vi. MR 1.13(c) also has a reporting standard over and above what is in MR 1.03(c).
             vii. Subordinate Attorney
                       1. If you become aware you can comply by going to your supervising attorney. If he
                            doesn‟t take steps, you are permitted to keep going up the ladder but you are not
                            required to do so.

IX.   Attorney Fees & Client Property
      a. RULES
                   MR 1.5 FEES
                                                                                                                  34
(a) L shall not charge unreasonable fee or unreasonable amount for expenses. Factors to consider:
         (1) time & labor , novelty & difficulty of issues & skill req to do job properly;
         (2) likelihood, if apparent to C, that acceptance of employment will preclude other work;
         (3) fee customarily charged in locality;
         (4) amount involved & results obtained;
         (5) client‟s time limits;
         (6) nature & length of professional relationship w/client;
         (7) experience, reputation & ability of L; &
         (8) whether fee is fixed or contingent.
(b) Scope of rep & basis of fee & expenses must be told to C, preferably in writing w/in reasonable time
after commencing rep, except when it‟s continuing C & same rate. Rate changes must also be told.
(c) Fee may be contingent on outcome, except in matter where a contingent fee is prohibited by (d) or
law. Contingent fee agreement must be in writing, signed by C & shall state method fee is determined
including %s that shall accrue to L in cases of settlement, trial or appeal; litigation & other expenses to
be deducted from recovery & whether expenses are deducted before or after fee is calculated.
Agreement must tell C of any expenses which C is liable if C looses. At conclusion of contingent fee
matter, L shall provide C w/a written statement stating outcome & showing the remittance to C &
method of determination.
(d) L shall not collect:
         (1) contingent fee for divorce case contingent upon getting D, alimony or property amounts;
         (2) contingent fee for representing a dft in criminal case.
(e) Division of fee between Ls who are not in same firm may only occur if:
         (1) division in proportion to services by each or each assumes joint responsibility for rep;
         (2) C agrees to arrangement in writing; &
         (3) total fee is reasonable.

MR 1.15 SAFEKEEPING PROPERTY
(a) L shall hold C or third person‟s property in connection w/rep separate from L‟s own. Funds kept in
separate account maintained in state where L‟s office is, or elsewhere w/consent. Other prop shall be
identified and appropriately safeguarded. Complete records of account funds & prop shall be kept for 5
yrs after rep.
(b) L may deposit own funds in C trust account in amount & for purpose of paying bank service charges
(c) L shall deposit into C trust account legal fees & expenses that have been paid in advance, to be
w/drawn by L only as fees are earned.
(d) Upon receiving funds or other prop which a C or third person has interest, L shall promptly notify C
or third person. Except as in rule, law or C agreement, L shall promptly deliver to C or 3P any funds or
other prop that C or 3Party is entitled & upon C or 3P‟s request promptly render full accounting.
(e) When in course of rep, L is in possession of prop in which 2 or more people (one may be L) claim
interests, the prop shall be kept separate by L until dispute is resolved. L shall promptly distribute all
portions of prop as to which the interests are not in dispute.

MR 1.16 DECLINING OR TERMINATING REPRESENTATION
(a) Except as stated in paragraph (c), L shall not represent C or, where representation has commenced,
shall withdraw from the representation of a client if:
         (1) the representation will result in violation of the rules of professional conduct or other law;
         (2) the L‟s physical or mental condition materially impairs L‟s ability to represent C; or
         (3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
         (1) withdrawal can be accomplished without material adverse effect on C‟s interests;
         (2) the client persists in a course of action involving the lawyer's services that the lawyer
         reasonably believes is criminal or fraudulent;
         (3) the client has used the lawyer's services to perpetrate a crime or fraud;
         (4) the client insists upon taking action that the lawyer considers repugnant or with which the
         lawyer has a fundamental disagreement;
         (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;
         (6) the representation will result in an unreasonable financial burden on the lawyer or has been
         rendered unreasonably difficult by the client; or
         (7) other good cause for withdrawal exists.

                                                                                                        35
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when
terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue
representation notwithstanding good cause for terminating the representation.
(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.

TR 1.04 Fees (Amended March 1, 2005)
(a) L shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A
fee is unconscionable if a competent lawyer could not form a reasonable belief that fee is reasonable.
(b) Factors that may be considered in determining the reasonableness of a fee include, but not to the
exclusion of other relevant factors, 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 on results obtained or uncertainty of collection before
          the legal services have been rendered.
(c) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be
communicated to the client, preferably in writing, before or within a reasonable time after commencing
the representation.
(d) 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 (e) or other law. A contingent fee agreement
shall be in writing and shall state the method by which the fee is to be determined. If there is to be a
differentiation in the percentage or percentages that shall accrue to the lawyer in the event of settlement,
trial or appeal, the percentage for each shall be stated. The agreement shall state the 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. Upon conclusion of a contingent fee matter, the lawyer shall
provide the client with a written statement describing the outcome of the matter and, if there is a
recovery, showing the remittance to the client and the method of its determination.
(e) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing
a defendant in a criminal case.
(f) A division or arrangement for division of a fee between lawyers who are not in the same firm may
be made only if:
          (1) the division is:
                    (i) in proportion to the professional services performed by each lawyer; or
                    (ii) made between lawyers who assume joint responsibility for the representation; and
          (2) the client consents in writing to the terms of the arrangement prior to the time of the
          association or referral proposed, including
                    (i) the identity of all lawyers or law firms who will participate in the fee-sharing
                    arrangement, and
                    (ii) whether fees will be divided based on the proportion of services performed or by
                    lawyers agreeing to assume joint responsibility for the representation, and
                    (iii) the share of the fee that each lawyer or law firm will receive or, if the division is
                    based on the proportion of services performed, the basis on which the division will be
                    made; and
          (3) the aggregate fee does not violate paragraph (a).
(g) Every agreement that allows a lawyer or law firm to associate other counsel in the representation of
a person, or to refer the person to other counsel for such representation, and that results in such an
association with or referral to a different law firm or a lawyer in such a different firm, shall be
confirmed by an arrangement conforming to paragraph (g). Consent by a client or a prospective client
without knowledge of the information specified in subparagraph (f)(2) does not constitute a


                                                                                                           36
           confirmation within the meaning of this rule. No attorney shall collect or seek to collect fees or
           expenses in connection with any such agreement that is not confirmed in that way, except for:
                    (1) the reasonable value of legal services provided to that person; and
                    (2) the reasonable and necessary expenses actually incurred on behalf of that person.
           (h) Paragraph (f) of this rule does not apply to payment to a former partner or associate pursuant to a
           separation or retirement agreement, or to a lawyer referral program certified by the State Bar of Texas
           in accordance with the Texas Lawyer Referral Service Quality Act, Tex. Occ. Code 952.001 et seq., or
           any amendments or recodifications thereof.

           TR 1.1 (Cannot Locate)

           TR 1.15 DECLINING OR TERMINATING REPRESENTATION
           (a) A lawyer shall decline to represent a client or, where representation has commenced, shall withdraw,
           except as stated in paragraph (c), from the representation of a client, if:
                     (1) the representation will result in violation of Rule 3.08, other applicable rules of
                     professional conduct or other law;
                     (2) the lawyer‟s physical, mental or psychological condition materially impairs the lawyer‟s
                     fitness to represent the client; or
                     (3) the lawyer is discharged, with or without good cause.
           (b) Except as required by paragraph (a), a lawyer shall not withdraw from representing a client unless:
                     (1) withdrawal can be accomplished without material adverse effect on the interests of the
                     client;
                     (2) the client persists in a course of action involving the lawyer‟s services that the lawyer
                     reasonably believes may be criminal or fraudulent;
                     (3) the client has used the lawyer‟s services to perpetrate a crime or fraud;
                     (4) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent
                     or with which the lawyer has fundamental disagreement;
                     (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer‟s
                     services, including an obligation to pay the lawyer‟s fee as agreed, and has been given
                     reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
                     (6) the representation will result in an unreasonable financial burden on the lawyer or has been
                     rendered unreasonably difficult by the client; or
                     (7) other good cause for withdrawal exists.
           (c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good
           cause for terminating the representation.
           (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 payments of fee that has not been earned. The lawyer may retain papers relating to the client to
           the extent permitted by other law only if such retention will not prejudice the client in the subject matter
           of the representation.
b. General info
       i. Casebook 128-29; 135-49
      ii. Basic Rule: atty must charge a reasonable fee. Reasonableness varies on circumstances
              1. Atty Fees can be challenged under both contract law principles & disciplinary rules.
              2. Contract law has defenses like unconscionability for client to assert in action by
                  lawyer for his fee. Also there are numerous implied terms of reasonableness in a
                  typical atty-client engagement K.
              3. However, when it comes to professional discipline, bar authorities aren‟t so quick to
                  impose it even when found unreasonable under K law. This makes sense b/c bar has
                  limited resources & K law norm does good job here of fixing prob.
     iii. The big Q: What is it that the L is charging for?
     iv. Factors to be taken into account
              1. Nature of the Matter- (a)(1) L should be permitted to charge more for services that
                  require a great deal of skill & experience & should be permitted to spend more time
                  on complex case.
              2. Opportunity Costs- (2) L should be allowed to charge a premium for foregoing other
                  sources of business when this case will distract from ability to take others

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              3. Local Custom – (3) Not an absolute rule, but local crt raises eyebrows at extremely
                  high rates. Ex: 50k to defend DUI instead of typically 3-15k.
              4. Stakes for the Client - (4) when client has more on the line the fee can be bigger
              5. Emergencies – (5) when L drops everything to help w/emergency matter fee can be
                  higher
              6. One-shot v. Repeat Players – (6) L‟s get benefit of the doubt when they‟ve had a
                  lengthy relationship w/client, but when it‟s a one-shot client crts expect L might have
                  incentive to jack up the rate b/c it‟s his one shot to get fees.
              7. You get what you pay for – (7) expected to pay more for atty w/better credentials
                  specific to case; but atty must charge same rate no matter if just making copies or if
                  writing a case-winning brief w/novel idea.
              8. Who bears the risk – (8) whether hourly or contingency fee, when L bears risk he can
                  get more money.
       v. Fee isn‟t okay just b/c it adheres to contract principles
              1. If fee is unreasonable TX crts will not award the fee!
              2. Sophistication level of client is taken into account but isn‟t the only factor.
              3. Termination provision from Hoover Slovacek LLP v. Walton, 206 S.W.3d 557 (2006)
                  - You may terminate the Firm’s legal representation at any time… Upon termination
                  by You, You agree to immediately pay the Firm the then present value of the
                  Contingent Fee described [herein], plus all Costs then owed to the Firm, plus
                  subsequent legal fees [incurred to transfer the representation to another firm and
                  withdraw from the litigation].
                       a. Here C fires Firm & hires another firm that gets a settlement of like $600k.
                           The first firm wants to charge $1.5 million. First firm claims that was their
                           cut of present value of case (the amount allowed to settle for). Jury found for
                           lawyers b/c they were fired w/out cause. Eventually, on appeal crt says that
                           legal contracts are not just examined w/contract principles.
                       b. This termination clause is not legit for various reasons.
      vi. Discharge of Atty in TX
              1. If L discharged w/out cause they get fee based on what C finally recovers. (don‟t
                  want to always give this it would encourage Ls to get fired at end).
              2. Crts doesn‟t discuss what would have been given if L was discharged w/good cause.
                  Sometimes if discharged w/cause then fee is lost.
     vii. No requirement that fee arrangements generally be in writing
              1. Required in contingency fee cases & many have suggested it needs to be in writing all
                  the time, but amendment has been repeatedly rejected.
    viii. Matter of Cooperman, 83 N.Y.2d 465, 1994
              1. Facts: L charges $10k minimal fee but money for hours will be taken out of that
                  retainer. K says minimum applies no matter how little work is done. C fires L &
                  wants refund.
              2. Crt sides w/C. Crt says that we don‟t want to prevent C‟s ability to change L if nec.
                  & they determine that this is a “fee which has been paid in advance that hasn‟t been
                  earned.”
              3. A true retainer agreement isn‟t a payment for work L will do, but a payment for L to
                  make himself available, etc. What is being sold is the forgone opportunities & not for
                  work. Crt says this is fine, so long as it is reasonable. L doesn‟t make this arg though
                  b/c he doesn‟t charge any additional amount, just this. Therefore it is for work in the
                  future. If money is paid for work to be done in the future, then it is the client‟s
                  money! L must refund any money that “has not been earned.”
c. MR vs. TR
       i. Retainer in TR
              1. To have a non-refundable / true retainer, in TX, you must be taking money truly as
                  charge to not take conflicting work & keeping yourself available to client.


                                                                                                       38
                2. However, if the retainer in any way pays for future services, then the amount counts as
                   a pre-paid fee & not as a true retainer. Also this amount must not be co-mingled if it
                   is pre-paid fee & not a retainer.
d. History
        i. In Roman times, Ls gave legal advice w/out compensation
       ii. 204BC a statute was passed the prohibited anyone for getting money for pleading a case. 2
           centuries latter there was another such law. Then another emperor allowed w/a fee schedule.
      iii. Fee Schedules were very common in early America. In 1813 NY passed maximum fees.
           $1.25 for special motion. You could get $3.75 for arguing an appeal!
      iv. As 1800s went on fee schedules started to be heavily criticized. Then in early 1900s as ABAs
           got establishes, fee schedules came back in at the county level. These were voluntary, but
           most Ls adhered to it.
       v. Hourly billing wasn‟t the standard until 1950s and 1960s. As hourly billing became popular
           so the numbers of hours rose. Now we work almost 2x as many hours as they did back then.
           There are enormous pressures to bill more hours.
e. Contingent Fees
        i. Requirements
               1. Must be in writing!
               2. add the rest here
               3. Contingency Fee must still be reasonable!
                        a. The fact that something is contingent is considered in analysis of if a fee is
                             reasonable. A lot of factors go in here. Ex: If amount of recovery is set from
                             the beginning, what is the pt of having contingency fee?
       ii. When allowed
               1. All states don‟t allow in criminal cases.
               2. Some states don‟t allow in domestic relations matters, MR allow in limited situations.
                   TR doesn‟t ban them in domestic relations matters.
      iii. Types
               1. Basic Form: C doesn‟t pay unless C wins, then L is paid from them.
               2. Reverse-Contingency Fee: when L takes appeals case and gets paid based on the
                   amount he gets the judgment reduced.
               3. There are all sorts of ways these can be used.
      iv. Differences between hourly fees & contingency fees
               1. This type of fee is just treated differently.
                        a. Writing Requirement not required w/hourly fees
                        b. Special rule here b/c this type can get stickier. Also, arrangement can cause
                             conflict between interests of L & C. Contingency Fee links L to C‟s
                             motivation to get more money, but can encourage L to get big bang for buck
                             early instead of watching for C‟s long term interests.
               2. Hourly Fees can encourage L to falsify hours spent & purposely cause more work
               3. There is a lot of statistics showing lawyers in general, huge percentages greed client‟s
                   out of money no matter method of billing. They double bill, etc.
       v. Pros
               1. Contingency fees give the L an incentive to win the case & to do it efficiently b/c they
                   are getting paid the same, no mater how they win the case.
               2. This makes the L less likely to do things that are basically a way to rack up the hours.
                   This makes the L the gatekeeper.
      vi. Negatives
               1. Another reason these may be disfavored is b/c Ls using these appear to be less-than
                   well thought of in the bars.
               2. Tort-Reform Efforts in states like NV, FL & TX
     vii. Mechanics
               1. Typically L can advance costs of litigation expenses, and may arrange to get
                   reimbursed for this.
               2. The L‟s % cut comes out of gross award for client.
                                                                                                        39
                           3. Ex:     $100k client recovery -33k (33% for L) -$5k reimbursement for expenses
                                      = $62 net for client.
              viii. I‟m not going into much more detail b/c it doesn‟t appear that it is nec for this class.
         f. Fee Splitting
                 i. MR 1.5(e) deals w/lawyers that are not in the same firm only!
                ii. Basic rule is that L cannot be compensated for assuming an entirely passive role. If fee is
                    divided between L1 & L2 on basis of amount of work they put into case, the division is
                    permissible as long as C agrees in writing to fee division & total fee is reasonable.
               iii. But, if C doesn‟t agree in writing & L doesn‟t do any work, then fee can‟t be split
               iv. Many Ls have arrangements where they give each other work, but under the table fee
                    forwarding isn‟t allowed. Client must be informed!
                v. TEXAS
                        1. Referral fees used to be allowed in TX, but in 2005 referenda was passed that made
                             TR match MR rules. Now referral fees are not allowed in their classic sense where
                             used-to, someone could advertise, get C, refer & get a cut.
                        2. C must assent to fee splitting arrangement prior to the time of referral.
         g. Holding Client Funds for Future Work
                 i. Commingling funds is most frequently disciplined offense.
                ii. Ls must exercise extreme car w/client funds & cannot commingle them w/personal money.
                    The most reliable way to get disbarred in many states is to fail to maintain separate trust
                    account for client funds.
               iii. For tangible property that means renting a safety deposit box.
               iv. State rules often require that accounts bear interest. Where amounts are too smaller stay in
                    account too short of time to permit accurate accounting of interest, the interest goes into a
                    common fund to help w/indigent clients.
                v. 2 reasons
                        1. When L receives retainer he must deposit it in trust & then write himself a check from
                             trust as he earns the fees
                        2. When L receives settlement proceeds in PI case. Similarly L write himself a check
                             once fee is determined.
               vi. L can‟t write checks on client trust account to cover personal or business expenses.

X.       Marketing Legal Services
         a. RULES
                      TR 7.01 FIRM NAMES AND LETTERHEAD
                      (a) L shall not practice under a trade name (name that is misleading as to identity of L or lawyers) or
                      firm name that contains names other than those of lawyers in firm, except names indicating nature of
                      organization (P.C., P.A., L.L.P., P.L.L.C., or similar symbols) & also firm may continue to use names
                      of deceased or retired members. Married woman can practice under maiden name.
                       (b) Firm w/offices in more than one place may use same name in each, but must identify lawyers in
                      each office by indicating the jurisdictional limitations on those not licensed to practice in area where
                      office is located.
                      (c) Name of L serving as judicial, legislative or public exec or administrative position shall not be used
                      in name or communications on its behalf during any substantial period when L is not actively &
                      regularly practicing in firm.
                      (d) L shall not hold himself out as partner, shareholder, or associate w/anyone he isn‟t in fact such.
                      (e) L shall not advertise in public media or seek professional employment by written communication
                      under a trade or fictitious name, except as authorized above & only if name appears on L‟s letterhead,
                      business cards, office sign, fee Ks & w/l‟s signature on pleadings & other legal docs.
                      (f) A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule
                      7.02(a).

     7.02 COMMUNICATIONS CONCERNING A LAWYER'S SERVICES
     (a) A lawyer shall not make or sponsor a false or misleading communication about the qualifications or the services of
     any lawyer or firm. A communication is false or misleading if it:
              (1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement
              considered as a whole not materially misleading;
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          (2) contains any reference in a public media advertisement to past successes or results obtained unless
                     (i) the communicating lawyer or member of the law firm served as lead counsel in the matter giving rise
                     to the recovery, or was primarily responsible for the settlement or verdict,
                     (ii) the amount involved was actually received by the client,
                     (iii) the reference is accompanied by adequate information regarding the nature of the case or matter
                     and the damages or injuries sustained by the client, and
                     (iv) if the gross amount received is stated, the attorney‟s fees and litigation expenses withheld from the
                     amount are stated as well;
          (3) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the
          lawyer can achieve results by means that violate these rules or other law;
          (4) compares the lawyer‟s services with other lawyers‟ services, unless the comparison can be substantiated by
          reference to verifiable, objective data;
          (5) states or implies that the lawyer is able to influence improperly or upon irrelevant grounds any tribunal,
          legislative body, or public official;
          (6) designates one or more specific areas of practice in an advertisement in the public media or in a solicitation
          communication unless the advertising or soliciting lawyer is competent to handle legal matters in each such area
          of practice; or
          (7) uses an actor or model to portray a client of the lawyer or law firm.
(b) Rule 7.02 (a)(6) does not require that a lawyer be certified by the Texas Board of Legal Specialization at the time of
advertising in a specific area of practice, but such certification shall conclusively establish that such lawyer satisfies the
requirements of Rule 7.02 (a)(6) with respect to the area(s) of practice in which such lawyer is certified.
(c) A lawyer shall not advertise in the public media or state in a solicitation communication that the lawyer is a specialist
except as permitted under Rule 7.04.
(d) Any statement or disclaimer required by these rules shall be made in each language used in the advertisement or
solicitation communication with respect to which such required statement or disclaimer relates; provided however, the
mere statement that a particular language is spoken or understood shall not alone result in the need for a statement or
disclaimer in that language.

                  TR 7.03 PROHIBITED SOLICITATIONS & PAYMENTS
                  (a) L shall not by in-person or telephone contact seek professional employment concerning a matter
                  arising out of a particular occurrence or event, or series of occurrences or events, from a prospective
                  client or nonclient who has not sought the lawyer‟s advice regarding employment or with whom the
                  lawyer has no family or past or present attorney-client relationship when a significant motive for the
                  lawyers doing so is the lawyer‟s pecuniary gain. Notwithstanding the provisions of this paragraph, a
                  lawyer for a qualified nonprofit organization may communicate with the organizations members for the
                  purpose of educating the members to understand the law, to recognize legal problems, to make
                  intelligent selection of counsel, or to use legal services. In those situations where in-person or telephone
                  contact is permitted by this paragraph, a lawyer shall not have such a contact with a prospective client
                  if:
                            (1) the communication involves coercion, duress, fraud, overreaching, intimidation, undue
                            influence, or harassment;
                            (2) the communication contains information prohibited by Rule 7.02(a); or
                            (3) the communication contains a false, fraudulent, misleading, deceptive, or unfair statement
                            or claim.
                  (b) L shall not offer to pay or give anything of value to person not licensed to practice law for soliciting
                  prospective clients for, or referring clients to, any L or firm, except that L may pay reasonable fees for
                  advertising & public relations services rendered in accordance w/this Rule & may pay the usual charges
                  of a L referral service that meets the requirements of Article 320d, Revised Statutes.
                  (c) L, in order to solicit professional employment, shall not pay, give, advance, anything of value, other
                  than actual litigation expenses & other financial assistance as permitted by Rule 1.08(d), to a
                  prospective client or any other person; provided however, this provision does not prohibit the payment
                  of legitimate referral fees as permitted by paragraph (b) of this Rule.
                  (d) A lawyer shall not enter into an agreement for, charge for, or collect a fee for professional
                  employment obtained in violation of Rule 7.03(a), (b), or (c).
                  (e) A lawyer shall not participate with or accept referrals from a lawyer referral service unless the
                  lawyer knows or reasonably believes that the lawyer referral service meets the requirements of Article
                  320d, Revised Statutes.

                  TR 7.04 ADVERTISEMENTS IN THE PUBLIC MEDIA
                  (a) L can‟t advertise in public media that L is a specialist, except as allowed here.

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          (1) L admitted to practice before the US Patent Office may use designation Patents, Patent
          Attorney, or Patent Lawyer, or any combination of those terms.
          L engaged in the trademark practice may use the designation Trademark, Trademark Attorney,
          or Trademark Lawyer, or any combination of those terms.
          L engaged in patent & trademark practice may hold himself or herself out as specializing in
          Intellectual Property Law, Patent, Trademark, Copyright Law and Unfair Competition, or any
          of those terms.
          (2) L may permit his or her name to be listed in L referral service offices that meet the
          requirements of Article 320d, Revised Statutes, according to the areas of law in which the
          lawyer will accept referrals.
          (3) L available to practice in a particular area of law may distribute to other Ls & publish in
          legal directories & legal newspapers a listing of such availability. Listing shall not contain a
          false or misleading representation of special competence or experience, but may contain the
          kind of information that traditionally has been included in such publications.
(b) A lawyer who advertises in the public media:
          (1) shall publish or broadcast the name of at least one lawyer who is responsible for the content
          of such advertisement;
          (2) shall not include a statement that the lawyer has been certified or designated by an
          organization as possessing special competence or a statement that the lawyer is a member of an
          organization the name of which implies that its members possess special competence, except
          that:
                    (i) a lawyer who has been awarded a Certificate of Special Competence by the Texas
                    Board of Legal Specialization in the area so advertised, may state with respect to each
                    such area, Board Certified, [area of specialization] Texas Board of Legal
                    Specialization; and
                    (ii) a lawyer who is a member of an organization the name of which implies that its
                    members possess special competence, or who has been certified or designated by an
                    organization as possessing special competence, may include a factually accurate
                    statement of such membership or may include a factually accurate statement,
                    Certified [area of specialization] [name of certifying organization], but such
                    statements may be made only if that organization has been accredited by the Texas
                    Board of Legal Specialization as a bona fide organization that admits to membership
                    or grants certification only on the basis of objective, exacting, publicly available
                    standards (including high standards of individual character, conduct, and reputation)
                    that are reasonably relevant to the special training or special competence that is
                    implied and that are in excess of the level of training and competence generally
                    required for admission to the Bar; and
          (3) shall state with respect to each area advertised in which the lawyer has not been awarded a
          Certificate of Special Competence by the Texas Board of Legal Specialization, Not Certified
          by the Texas Board of Legal Specialization. However, if an area of law so advertised has not
          been designated as an area in which a lawyer may be awarded a Certificate of Special
          Competence by the Texas Board of Legal Specialization, the lawyer may also state, No
          designation has been made by the Texas Board of Legal Specialization for a Certificate of
          Special Competence in this area.
(c) Separate and apart from any other statements, the statements referred to in paragraph (b) shall be
displayed conspicuously with no abbreviations, changes, or additions in the quoted language set forth in
paragraph (b) so as to be easily seen or understood by an ordinary consumer.
(d) Subject to the requirements of Rule 7.02 and of paragraphs (a), (b), and (c) of this Rule, a lawyer
may, either directly or through a public relations or advertising representative, advertise services in the
public media, such as (but not limited to) a telephone directory, legal directory, newspaper or other
periodical, outdoor display, radio, or television.
(e) All advertisements in the public media for a lawyer or firm must be reviewed and approved in
writing by the lawyer or a lawyer in the firm.
(f) A copy or recording of each advertisement in the public media and relevant approval referred to in
paragraph (e), and a record of when and where the advertisement was used, shall be kept by the lawyer
or firm for four years after its last dissemination.
(g) In advertisements utilizing video or comparable visual images, any person who portrays a lawyer
whose services or whose firms services are being advertised, or who narrates an advertisement as if he
or she were such a lawyer, shall be one or more of the lawyers whose services are being advertised. In
advertisements utilizing audio recordings, any person who narrates an advertisement as if he or she

                                                                                                        42
were a lawyer whose services or whose firms services are being advertised, shall be one or more of the
lawyers whose services are being advertised.
(h) If an advertisement in the public media by a lawyer or firm discloses the willingness or potential
willingness of the lawyer or firm to render services on a contingent fee basis, the advertisement must
state whether the client will be obligated to pay all or any portion of the court costs and, if a client may
be liable for other expenses, this fact must be disclosed. If specific percentage fees or fee ranges of
contingent fee work are disclosed in such advertisement, it must also disclose whether the percentage is
computed before or after expenses are deducted from the recovery.
(i) A lawyer who advertises in the public media a specific fee or range of fees for a particular service
shall conform to the advertised fee or range of fees for the period during which the advertisement is
reasonably expected to be in circulation or otherwise expected to be effective in attracting clients,
unless the advertisement specifies a shorter period; but in no instance is the lawyer bound to conform to
the advertised fee or range of fees for a period of more than one year after the date of publication. (h &
I deal w/bait & switch on fees, can‟t advertising & change rates immediately).
(j) (Editors Note: This rule was found to be unconstitutional as applied to one plaintiff in Texans
Against Censorship, Inc., et al v. State Bar of Texas, et al, U.S. District Court, Eastern District of Texas.
The State Bar Board of Directors has approved the petitioning of the Supreme Court of Texas asking
that the rule be modified. The Supreme Court will consider the following revision to the rule:
           L/firm advertising in public media must disclose location, by city, of Ls or firms principal
           office. L or firm shall not advertise existence of any office other than principal office unless:
           1. that other office is staffed by L at least 3 days a week; or
           2. the advertisement discloses states:
           (i) the days and times during which a lawyer will be present at that office, or
           (ii) that meetings with lawyers will be by appointment only.
(k) L may not directly or indicrctly pay any cost of ad for L not in same firm unless ad discloses name
& address of financing L, relationship between advertising L & financing L, & whether the advertising
L is likely to refer cases received through advertisement to financing lawyer. (bait & switch where a
well known local L would advertise & refer to someone else)
(l) If an advertising lawyer knows or should know at the time of an advertisement in the public media
that a case or matter will likely be referred to another lawyer or firm, a statement of such fact shall be
conspicuously included in such advertisement.
(m) No motto, slogan or jingle that is false or misleading may be used in an ad in public media.
(n) L can‟t include ad in public media w/a L referral service unless the L knows or reasonably believes
that the L referral service meets requirements of Art 320d, Revised Statutes.
(o) A lawyer may not advertise in the public media as part of an advertising cooperative or venture of
two or more lawyers not in the same firm unless each such advertisement:
           (1) states that the advertisement is paid for by the cooperating lawyers;
           (2) names each of the cooperating lawyers;
           (3) sets forth conspicuously the special competency requirements required by Rule 7.04(b) of
           lawyers who advertise in the public media;
           (4) does not state or imply that the lawyers participating in the advertising cooperative or
           venture possess professional superiority, are able to perform services in a superior manner, or
           possess special competence in any area of law advertised, except that the advertisement may
           contain the information permitted by Rule 7.04(b)(2); and
           (5) does not otherwise violate the Texas Disciplinary Rules of Professional Conduct.
(p) Each lawyer who advertises in the public media as part of an advertising cooperative or venture
shall be individually responsible for:
           (1) ensuring that each advertisement does not violate this Rule; and
           (2) complying with the filing requirements of Rule 7.07.

TR 7.05 PROHIBITED WRITTEN SOLICITATIONS
(a) A lawyer shall not send or deliver, or knowingly permit or cause another person to send or deliver
on the lawyer‟s behalf, a written communication to a prospective client for the purpose of obtaining
professional employment if:
         (1) the communication involves coercion, duress, fraud, overreaching, intimidation, undue
         influence, or harassment;
         (2) the communication contains information prohibited by Rule 7.02 or fails to satisfy each of
         the requirements of Rule 7.04(a) through (c), and (h) through (o) that would be applicable to
         the communication if it were an advertisement in the public media; or


                                                                                                          43
          (3) the communication contains a false, fraudulent, misleading, deceptive, or unfair statement
          or claim.
(b) Except as provided in paragraph (e) of this Rule, a written solicitation communication to prospective
clients for the purpose of obtaining professional employment:
          (1) shall conform to the provisions of Rule 7.04(a) through (c);
          (2) shall be plainly marked ADVERTISEMENT on the first page of the written
          communication, and the face of the envelope also shall be plainly marked
          ADVERTISEMENT. If the written communication is in the form of a self-mailing brochure or
          pamphlet, the word ADVERTISEMENT shall be:
                    (i) in a color that contrasts sharply with the background color; and
                    (ii) in a size of at least 3/8 vertically or three times the vertical height of the letters
                    used in the body of such communication, whichever is larger.
          (3) shall not be made to resemble legal pleadings or other legal documents;
          (4) (Editors Note: This rule was found unconstitutional in Texans Against Censorship, Inc., et
          al v. State Bar of Texas, et al, U.S. District Court, Eastern District of Texas. The Supreme
          Court of Texas will consider deletion of the rule which currently reads:
          shall not contain a statement or implication that the written communication has received any
          kind of authorization or approval from the State Bar of Texas or from the Advertising Review
          Committee);
          (5) (Editors Note: This rule was found unconstitutional, Texans Against Censorship, Inc., et al
          v. State Bar of Texas, et al, U.S. District Court, Eastern District of Texas. The Supreme Court
          of Texas will consider deletion of the rule which currently reads:
          shall not be sent in a manner, such as by registered mail, that requires personal delivery to a
          particular individual);
          (6) shall not reveal on the envelope used for the communication or on the outside of a self-
          mailing brochure or pamphlet, the nature of the legal problem of the prospective client or non-
          client; and
          (7) shall disclose how the lawyer obtained the information prompting such written
          communication to solicit professional employment if such contact was prompted by a specific
          occurrence involving the recipient of the communication or a family member of such
          person(s).
(c) All written communications to a prospective client for the purpose of obtaining professional
employment must be reviewed and either signed by or approved in writing by the lawyer or a lawyer in
the firm.
(d) A copy of each written solicitation communication, the relevant approval thereof, and a record of
the date of each such communication; the name and address to which each such communication was
sent; and the means by which each such communication was sent shall be kept by the lawyer or firm for
four years after its dissemination.
(e) The provisions of paragraph (b) of this Rule do not apply to a written solicitation communication:
          (1) directed to a family member or a person with whom the lawyer had or has an attorney-
          client relationship;
          (2) that is not motivated by or concerned with a particular past occurrence or event or a
          particular series of past occurrences or events, and also is not motivated by or concerned with
          the prospective clients specific existing legal problem of which the lawyer is aware;
          (3) if the lawyer‟s use of the communication to secure professional employment was not
          significantly motivated by a desire for, or by the possibility of obtaining, pecuniary gain; or
          (4) that is requested by the prospective client.

TR 7.06 PROHIBITED EMPLOYMENT
A lawyer shall not accept or continue employment when the lawyer knows or reasonably should know
that the person who seeks the lawyer‟s services does so as a result of conduct prohibited by these rules.

TR 7.07 FILING REQUIREMENTS FOR PUBLIC ADVERTISEMENTS AND WRITTEN
SOLICITATIONS
(a) Except as provided in paragraph (d), L shall file w/Advertising Review Committee of TX State Bar,
before or concurrently w/the mailing or sending of a written solicitation communication:
         (1) a copy of the written solicitation communication being sent to one or more prospective
         clients for purpose of obtaining prof employment, together w/a representative sample of the
         envelopes in which communications are enclosed; &


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         (2) a check or money order payable to TX Bar for fee set by Bd of Directors. Fee shall be for
         sole purpose of defraying expense of enforcing rules related to such solicitations.
(b) Except as provided in (d), L shall file w/Advertising Review Committee, either before or
concurrently w/the first dissemination of an advertisement in public media, a copy of each of the L‟s
ads. Filing must include:
         (1) a copy in form it appears, such as a videotape, an audiotape, a print copy, or a photograph
         of outdoor advertising;
         (2) a production script of the advertisement setting forth all words used and describing in detail
         the actions, events, scenes, and background sounds used in such advertisement together with a
         listing of the names and addresses of persons portrayed or heard to speak, if the advertisement
         is in or will be in a form in which the advertised message is not fully revealed by a print copy
         or photograph;
         (3) a statement of when and where the advertisement has been, is, or will be used; and
         (4) a check or money order payable to the State Bar of Texas for the fee set by the Board of
         Directors. Such fee shall be for the sole purpose of defraying the expense of enforcing the rules
         related to such advertisements.
(c) A lawyer who desires to secure an advance advisory opinion concerning compliance of a
contemplated written solicitation communication or advertisement may submit to the Advertising
Review Committee, not less than thirty (30) days prior to the date of first dissemination, the material
specified in paragraph (a) or (b) of this Rule, including the required fee; provided however, it shall not
be necessary to submit a videotape if the videotape has not then been prepared and the production script
submitted reflects in detail and accurately the actions, events, scenes, and background sounds that will
be depicted or contained on such videotapes, when prepared, as well as the narrative transcript of the
verbal and printed portions of such advertisement. An advisory opinion of the Advertising Review
Committee of noncompliance is not binding in a disciplinary proceeding or disciplinary action but a
finding of compliance is binding in favor of the submitting lawyer if the representations, statements,
materials, facts and written assurances received in connection therewith are true and are not misleading.
The finding constitutes admissible evidence if offered by a party.
(d) The filing requirements of paragraphs (a) and (b) do not extend to any of the following materials:
         (1) an advertisement in the public media that contains only part or all of the following
         information, provided the information is not false or misleading:
                    (i) the name of the lawyer or firm and lawyers associated with the firm, with office
                    addresses, telephone numbers, office and telephone service hours, telecopier numbers,
                    and a designation of the profession such as attorney , lawyer , law office , or firm;
                    (ii) the fields of law in which the lawyer or firm advertises specialization and the
                    statements required by Rule 7.04 (a) through (c);
                    (iii) the date of admission of the lawyer or lawyers to the State Bar of Texas, to
                    particular federal courts, and to the bars of other jurisdictions;
                    (iv) technical and professional licenses granted by this state and other recognized
                    licensing authorities;
                    (v) foreign language ability;
                    (vi) fields of law in which one or more lawyers are certified or designated, provided
                    the statement of this information is in compliance with Rule 7.02(a) through (c);
                    (vii) identification of prepaid or group legal service plans in which the lawyer
                    participates;
                    (viii) the acceptance or nonacceptance of credit cards;
                    (ix) any fee for initial consultation and fee schedule;
                    (x) that the lawyer or firm is a sponsor of a charitable, civic, or community program
                    or event, or is a sponsor of a public service announcement;
                    (xi) any disclosure or statement required by these rules; and
                    (xii) any other information specified from time to time in orders promulgated by the
                    Supreme Court of Texas;
         (2) an advertisement in the public media that:
                    (i) identifies one or more lawyers or a firm as a contributor to a specified charity or as
                    a sponsor of a specified charitable, community, or public interest program, activity, or
                    event; and
                    (ii) contains no information about the lawyers or firm other than names of the lawyers
                    or firm or both, location of the law offices, and the fact of the sponsorship or
                    contribution;
         (3) a listing or entry in a regularly published law list;

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                      (4) an announcement card stating new or changed associations, new offices, or similar changes
                      relating to a lawyer or firm, or a tombstone professional card;
                      (5) a newsletter mailed only to:
                                (i) existing or former clients;
                                (ii) other lawyers or professionals; and
                                (iii) members of a nonprofit organization that meets the following conditions: the
                                primary purposes of the organization do not include the rendition of legal services;
                                the recommending, furnishing, paying for, or educating persons regarding legal
                                services is incidental and reasonably related to the primary purposes of the
                                organization; the organization does not derive a financial benefit from the rendition of
                                legal services by a lawyer; and the person for whom the legal services are rendered,
                                and not the organization, is recognized as the client of the lawyer who is
                                recommended, furnished, or paid by the organization;
                      (6) a written solicitation communication that is not motivated by or concerned with a particular
                      past occurrence or event or a particular series of past occurrences or events, and also is not
                      motivated by or concerned with the prospective clients specific existing legal problem of
                      which the lawyer is aware;
                      (7) a written solicitation communication if the lawyer‟s use of the communication to secure
                      professional employment was not significantly motivated by a desire for, or by the possibility
                      of obtaining, pecuniary gain; or
                      (8) a written solicitation communication that is requested by the prospective client.
            (e) If requested by the Advertising Review Committee, a lawyer shall promptly submit information to
            substantiate statements or representations made or implied in any advertisement in the public media
            and/or written solicitation.

b. General Info
        i. History
               1. In the past advertising was really frowned upon. For a long time lawyer advertising
                   was effectively barred until a series of cases by Sup Crt changed this. Sup Crt
                   originally recognized that commercial speech is protected. Recently it dealt w/a case
                   from FL dealing w/solicitation.
       ii. Most lawyers now advertise in one way or another.
               1. 1 Billion Dollars goes into Yellow Page advertising, biggest client of yellow pages.
               2. Now internet is bringing about all sorts of new issues.
c. TEXAS
        i. General Info
               1. Focus on TR b/c they are more detailed & each state really has their own rules here.
               2. TR has changed frequently. Rules are not well organized and are repetitive.
               3. These rules have been changed to keep up w/technology, etc.
               4. 7.02 is the heart of the rules. Nothing can be false or misleading, etc.
       ii. No Trade Names in TX! 7.01
               1. (e) says no trade names in ads
     iii. TR 7.02(a) says that Ls cannot have ads that are false or misleading, including have actors
           portray clients, or actors to portray lawyers.
      iv. You can‟t advertise using a comparison between yourself & other attorneys unless there is
           good proof that it is true. This is meant to ban ads where Ls say things like “I am the toughest
           lawyer in town.”
       v. Advertising Recovery
               1. There are rules about how L can advertise for recovery. He must say how much
                   money the C actually got, L must have worked on case, etc.
      vi. Specializations
               1.
     vii. Solicitations
               1. Rules for All Types
                        a. 7.02 – you can‟t solicit w/false, misleading, threatening, etc. Must conform to
                             basic standards.

                                                                                                                     46
                             b. 7.03 – L can‟t pay, give, advance, or offer to pay, give or advance anything of
                                 value, other than actual litigation expenses & other assistance permitted by
                                 1.08(d)….
                    2. Rules for Soliciting based on events & not former relationship
                             a. The motive here is employment for peculiarly gain only. No familiar
                                 relationship
                             b. Here, no interactive solicitation is allowed unless peculiarly gain is not the
                                 main motive.
                                       i. Interactive Solicitation =
                             c. One way solicitation is allowed, but only when it is clear that the solicitation
                                 is just an advertisement! It must be plainly marked advertising in certain size.
                                       i. If the doc is writing like a legal pleading, it is considered inherently
                                          misleading.
                             d. TX Penal Code
                                       i. TX Penal Code had rules against the solicitation of professional
                                          employment if in violation of the PR rules.
                                      ii. TX Penal Code also strictly forbids sending ad w/in 30 days after
                                          incident, including accidents, break up of couple, etc.
                                     iii. TX Penal Code forbids sending ad if there‟s reason to know person is
                                          already represented.
                                     iv. These are either 3rd class felonies or 1st class misdemeanor
                                      v. 8.04 says that L can‟t commit serious crime which these count as
                    3. Solicitations of someone w/former relationships & when not for peculiarly gain
           viii. Lawyer “Internet Dating Services”
                    1. This is where hooks up with internet site to refer certain cases to them based on
                        geographical info, etc.
                    2. In some jurisdictions this works & in others it does not. The first opinion in TX said
                        this was not ok, but an opinion in 2006 said that in certain circumstances it was okay.
                             a. One of the circumstances was that the system couldn‟t favor one L in a
                                 geographic area over another & C must know that the L paid a fee to be
                                 included on the site & that the service does not claim that this is any
                                 representation of the quality level of the L.
                             b. The site must not limit the number of Ls to be included from one area.
                             c. L must not interact w/ potential Cs on the site.
            ix. Ads & Solicitations
                    1. They must be retained for 4 yrs
                    2. Ad must be looked at by L in firm & approved by a L in writing.
                    3. This includes copies of front homepages. Before you put up a new webpage you must
                        get approval from the state bar.
                    4. There is an advertising review committee that must review & approve of the
                        advertisement.
             x. 7.06 says that L cannot accept employment as a result of the violation of these rules.
XI.   Geographic Restrictions in Practicing Law
      a. RULES
             MR 5.5 UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW
                (a) L shall not practice law in jurisdiction in violation of regulation of legal profession in that
                jurisdiction, or assist another in doing so.
                (b) L who isn‟t admitted to practice in this jurisdiction shall not:
                          (1) except as authorized by MR or other law, establish office or other systematic and
                          continuous presence in this jurisdiction for practice of law; or
                          (2) hold out to public or otherwise represent that L is admitted in this jurisdiction.
                (c) L admitted in another US jurisdiction & not suspended from practice, may provide legal services on
                a temporary basis in this jurisdiction that are:
                          (1) undertaken in association w/L who is admitted in jurs & is actively participating in matter;



                                                                                                                       47
                     (2) reasonably related to potential proceeding before tribunal in this or another jurs, if L or a
                     person L is assisting, is authorized by law or order to appear in proceeding or reasonably
                     expects to be so authorized;
                     (3) in or reasonably related to a pending or potential arbitration, mediation, or other alternative
                     dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are
                     reasonably related to L‟s practice in another jurisdiction where L is admitted & are not services
                     for which the forum requires pro hac vice admission; or
                     (4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the
                     lawyer‟s practice in a jurisdiction in which the lawyer is admitted to practice.
            (d) L‟s admitted in a US jurs & not suspended in any jurs may provide legal services in this jurs that:
                     (1) are provided to L‟s employer or its organizational affiliates & are not services for which the
                     forum requires pro hac vice admission; or
                     (2) are services that L is authorized to provide by fed law or other law of this jurisdiction.

            MR 8.5 DISCIPLINARY AUTHORITY; CHOICE OF LAW
            (a) Disciplinary Authority. L admitted in this jurs is subject to disciplinary authority of this jurs,
            regardless of where L‟s conduct occurs. L not admitted in this jurs is also subject to disciplinary
            authority of this jurs if L provides or offers to provide any legal services in this jurs. L may be subject
            to disciplinary authority fo both this jurs & another jurs for same conduct.
            (b) Choice of Law: in any exercise of the disciplinary authority of this jurs, the rules of professional
            conduct to be applied shall be as follows:
                      (1) for conduct in connection w/matter pending before a tribunal, the rules of the jurs in which
                      the tribunal sits, unless the rules of the tribunal provide otherwise; &
                      (2) for any other conduct, the rules of the jurs in which L‟s conduct occurred, or, if the
                      predominant effect of the conduct is in a diff jurs, the rules of that jurs shall be applied to the
                      conduct. L shall not be subject to discipline if the L‟s conduct conforms to the rules of a jurs in
                      which L reasonably believes the predominant effect of the lawyer‟s conduct will occur.

            TR 5.05 UNAUTHORIZED PRACTICE OF LAW
            A lawyer shall not:
            (a) practice law in a jurs where doing so violates the regulation of legal profession in that jurs; or
            (b) assist person who isn‟t member of bar in performance of activity that constitutes the unauthorized
            practice of law.

            TR 8.05 JURISDICTION
            (a) L is subject to the disciplinary authority of TX, if admitted in TX or if specially admitted by a TX
            crt for a particular proceeding. In addition to being answerable for his conduct occurring in TX, any
            such L may be disciplined in TX for conduct occurring in another jurs or resulting in L discipline in
            another rjurs, if it is professional misconduct under Rule 8.04.
            (b) L admitted to practice in TX is also subject to the disciplinary authority of TX for:
                      (1) an advertisement that doesn‟t comply w/rules & is broadcast in another jurs, even if ad
                      complies w/rules in that jurs, if the broadcast is intended to be received by prospective clients
                      in TX & is intended to secure employment to be performed in TX; &
                      (2) a written solicitation communication that doesn‟t comply w/rules & that is mailed in
                      another jurs, even if communication complies w/ rules in that jurs, if the communication is
                      mailed to an addressee in TX or is intended to secure employment to be performed in TX.
b. General Info
        i. In the past law was a local thing b/c access to local law was very limited. To get TX law in
           PA you had to go to a substantial law library to get it. Now Westlaw & Lexis have greatly
           changed that. Now that is tons of pressure to practice law across state and international
           boundaries.
c. Big Q: What extent do states have power to limit the power of who practices law in that jurisdiction?
        i. This question goes back to 1872 state bar restriction that said women couldn‟t practice law –
           this was declared unconstitutional.
d. Important Decision
        i. NH v. Piper , 1985
                1. Sup Crt said NH could not exclude from bar non-residents. Of course, ptf in this case
                   lived 400 ft over the board.
       ii. VA
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                1. Rule said that permanent citizens could get admitted into bar by motion, but someone
                   who from out of state couldn‟t get admitted by motion. Here there was another
                   sympathetic person who used to live in VA & moved across border
e. Reciprocity
        i. 16 States still do not have full reciprocity of lawyers, but some of these have special exams
           that don‟t require a full bar exam.
       ii. TX allows on motion if L practiced L for 5 of 7 past years.
f. Bigger Q: How should states use its power?
        i. TX lets L practice pro hac vice, but not all do.
                1. Pro Hac Vice = When L has been allowed to do legal work “for this event.”
       ii. Lease v. Flint
                1. Sup Crt isn‟t going to frown on state that doesn‟t allow L to practice pro hac vice.
g. Where you are subject to rules
        i. Doesn‟t matter where the conduct occurred. You are subject to discipline in jurisdiction
           where you are admitted to practice law. And you are subject to discipline in jurisdiction
           where you held yourself out to give legal services.
       ii. You use rules of the jurisdiction for where the tribunal is sitting, unless the specific tribunal
           says it is going to use a different rule.
h. Unauthorized Practice of Law
        i. All states have restrictions on who can practice law. Some have criminal statutes & in others
           rule is a crt rule. These regulations only apply where one person performs a task on behalf of
           another person. People can represent themselves.
       ii. You don‟t need to enter formal appearance before crt to “practice law.” Definition includes
           anything that can be characterized as application of legal knowledge, judgment, training or
           skill in advising or otherwise assisting another to analyze or solve a particular legal need.
      iii. This is very broad & many accountants & friends probably step over this line on a regular
           basis, but there isn‟t a bright line here.
      iv. Many would prefer to just rely on tort law here.
       v. This is hot area now & it isn‟t really settled as to what will count as practicing law in a state.
      vi. Temporary Practice of Law
                1. Most Ls don‟t worry about practicing L temporarily in a state like Colorado or giving
                     advice about California law
                2. Most Ls know they can travel to other places & do work that is relevant to work at
                     home. Ls feel free to do out-of-crt stuff in other states
                3. But, it is unclear where the line is.
                4. MR 5.5 allows L to practice temporarily in state that he isn‟t licensed in, and 35 states
                     have adopted this, but TX is still studying it.
i. Multi-Jurisdictional Practice
        i. Trends are leading lawyers to develop national practices in scope. These include the
           nationalization & globalization of the economy as well as specialization of legal knowledge
           where Ls are develop very specialized knowledge on particular subject that is helpful to have
           nationally. Also uniformity of state laws is helping make it easier to cross borders w/out
           changing what general laws are.
       ii. Thus rule was recently reformed. Best to just look at rule for details.




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