Problem: Joe Salesman is a great salesperson at Joint Medical. Joint Medical lays Joe off, despite his great sales numbers. Believing he lost his job because of discrimination, Joe hires Rodger Law Firm to represent him in his suit. Joe settles with Joint Medical for $1 million. Once he receives his settlement check, Rich, one of the partners at Rodger Law approaches Joe about a business deal. Rich knows of a local company, Mom-&-Pop Sandwiches, that produces sandwiches sold at local gas stations. The company has gotten too big for the current owners and they are hoping to sell. Joe looks at the books and is satisfied that the company is profitable. Joe purchases the company with his lawsuit settlement.

Little did Joe know, Rich is part owner of a local chain of gas stations, many of which purchase Mom-&-Pop Sandwiches. Soon after Joe becomes owner of Mom-&-Pop’s, Rich stops using Mom-&-Pop to stock his gas stations with sandwiches.

Upset and close to bankruptcy, Joe approaches a number of law firms about representing him in a suit against Rodger Law. Joe has to go 40 miles outside of town that will even represent him in a suit against Rodger Law. Craig, Joe’s new attorney, agrees to represent Joe. Craig and Joe contact Rodger Law and the three agree to settle their claim for $1.5 million as long as Joe does not turn Rodger Law into the Bar Association. Discuss any ethical breaches you see.

Rich approaching Joe about buying Mom-&-Pop Sandwiches

Model Rule 1.7, the general rule for conflicts of interest, holds that a lawyer must not represent a client if the representation of that client will be directly adverse to the interests of another client unless:i) the lawyer reasonably believes that his representation will not adversely affect the relationship with the other client; andii) each client consents after consultation. Here, Rich violated 1.7 when he approached Joe about buying a Sandwich shop in which he had an interest. Although Rich did not have a direct conflict of interest because Rich did not, for example, supply the Sandwich shop with products, Rich should have foreseen a potential conflict since a business he owned worked directly with a business he was selling to a previous client. By not recognizing the potential for a conflict, Rich violated 1.7(b). Once he recognized a potential conflict, Rich should not have even mentioned the business transaction. 1.8 expressly prohibits doing business with clients. Even if Rich recognized the conflict but concluded that he could still participate in the transaction with Joe, Rich still violated 1.7(b) by not obtaining informed consent, confirmed in writing. Therefore, Rich failed 1.7 by i) not recognizing the potential adverse affect on he and Joes relationship and ii) but failing to obtain client consent.

1.8(a) prohibits business transactions between a lawyer and a client unless the lawyer complies with specific conditions designed to protect the client. Here, since Rich did not explicitly do a business deal with Joe, because as stated above, Rich was not a direct supplier for Mom-&-Pop, so Rich would probably conclude that 1.8(a) does not apply to him. Read broadly, however, 1.8(a) could certainly apply to Rich, especially if he planned to discontinue doing business with Mom-&-Pop before the sale to Joe was completed. A prudent lawyer, unlike Rich, would probably read the rule more broadly just to be safe. If the bar association agrees that 1.8(a) applies to this situation, which they very well could, the bar association will apply the provisions of 1.8(a). According to 1.8(a)(1), Rich should

have ensured the transaction was objectively fair and reasonable to the client. Of course Rich would argue that the sale was fair to Joe and he allowed Joe to review the book of the sandwich shop, gave him time to think the sale over, etc. Such conduct satisfies 1.8(a)(1)’s requirement that the terms of the contract be fully disclosed. Although Rich failed to disclose his own personal business interest in the company, he otherwise made the terms very clear. As in 1.7, Rich failed to meet 1.8(a)(2) and (3) because Rich did not advise Joe in writing to have a neutral 3rd party lawyer to review the terms of the sale. Of course, if Rich did not think the fact that he owned a purchaser of Mom-&-Pop was relevant, then Rich would not have thought 1.8(a)(2) even applied to him. Nevertheless, he should have disclosed in writing that Joe should consult outside counsel. Finally, Rich 1.8(a)(3) did not disclose his own role in the transaction. It is unclear from the facts whether Rich represented the original owners of Mom-&-Pop’s, but he did not disclose his own interest in the transaction.

Rich may have also violated 1.8(b) because he potentially used his representation of Joe in his first law suit to Joe’s disadvantage. Rich knew Joe had just received a large settlement and probably knew that Joe was the type of person to buy an established company. Rich arguably used this special knowledge to his benefit and to Joes disadvantage because he ultimately was part of the reason for Mom-&-Pops downfall.

It should also be noted that 1.10 would prevent anyone from Rodger Law to do business with Joe because 1.10 imputes the conflicts of one lawyer to all associates in the firm.

Law firms not representing Joe

The law firms who refused to represent Joe may have violated 1.2(b) which makes clear that a lawyer who represents a client does not necessarily agree or endorece his client’s views. An in the Sofaer case, just because Sofaer represented Gadhafi did not mean Sofaer agreed with or endorsed Gadhafi’s anti-American views. Likewise, here, just because a law firm sues another law firm does not mean that the firms are adverse or that all associates within the respectively firms are enemies. On the other hand, comment 1 of 1.16 states that a lawyer should not accept representation in a matter unless it can be performed competently and to completion. Perhaps the other local law firms shared a sense of solidarity with Rodger Law because they see Rodger lawyers in court often and fear suing Rodger will harm future interactions. When viewed in this way, these law firms are looking out for their own current clients and protecting their duty of loyalty to their own clients. I do not believe a court would find these firms violated the rules unless the court concludes the firms declined to represent Joe for another prohibited reason.

Settlement discussions

Craig perhaps has the most unclear ethical choice to make in this fact pattern. On one hand Craig has a duty to the bar association under 8.3 to report Rodger Laws lawyer for unethical conduct. On the other hand, Craig has a duty to his client to obtain the best settlement that he can under 1.3. The issue for Craig is that disclosing the information to the bar could disrupt or hinder Joe’s settlement with

Rodger Law. It seems unlikely that Rodger would settle for as high an amount without a guarantee that Joe and Craig would not turn the firm into the bar. On the other hand, 8.3 excepts information that would violate a lawyers duty of confidentiality. Since the rule specifically exempts one rule, it can be inferred that 8.3 should override all other rules. Ultimately,

Licensing of attorneys and other preliminary mattersAs a preliminary matter, licensing of attorneys is governed by the individual states.

However, being licensed by one state does not allow you to practice in other states, nor does it permit you automatically to practice before federal courts or federal agencies.Bar Admission Must you disclose juvenile records? Yes, because failure to disclose an arrest, even as a

juvenile, can be the sole basis for denying admission—even if the arrest itself would not be a valid basis for the denial. If the bar application asks for arrests and unsuccessful prosecutions, your failure to disclose this information could provide the basis for denying your admission.

Broke the law/sort of broke the law—disclose? Fix and don’t disclose: The bar application process is not a confessional. You are required

by Rule 8.1 only to "respond to a lawful demand for information" and "disclose facts necessary to correct misapprehensions known by the applicant to have arisen." On the other hand, just because you are not required to disclose the misdemeanor, doesn't mean that the character and fitness committee would ignore a [INSERT MISDEMEANOR].

Fix and disclose: While this overly cautious approach would likely not hurt you in this situation, it is not necessary. The bar application process is not a confessional. You are required by 8.1 only to "respond to a lawful demand for information" and "disclose facts necessary to correct misapprehensions known by the applicant to have arisen." . On the other hand, just because you are not required to disclose the misdemeanor, doesn't mean that the character and fitness committee would ignore [INSERT MISDEMEANOR].

Disclose controversial political views such as death with dignity programs? Even though this is speech, if it is also the unauthorized practice of law or otherwise

unlawful, it could still provide the basis for denial of admission. Even if not a crime, it may be that if the examiners believe your actions predict an inability to conform your conduct to the requirements of the profession, this may be a factor in denying your admission.

Bad financial record: Large debts and patterns of fiscal irresponsibility are treated as predictors for mishandling of

client funds. However, courts do not require applicants to be debt free. They may require some efforts at payment, however.

Adulterous behavior or other poor form Just because its private sexual behavior doesn't mean it's irrelevant to your moral character.

For example, a failure to fulfill a fundamental confidential relationship in this context can be viewed as a basis for predicting that you will be equally disloyal to your clients.

Why a character and fitness exam?Among the reasons suggested as justifications for bar admission requirements include:

To protect clients who often do not know much about the lawyer they consult; To protect courts from subversion and fraud; To protect the professional image of lawyers.

Sample exam:Most states require that applicants for admission be graduates of ABA-accredited law

schools. A candidate must also establish his knowledge and character and fitness in order to be admitted to a state bar. In addition to the education requirements ¶ will need to demonstrate his knowledge of the law through a bar examination. There are only a couple of states that allow initial applicants to be admitted to practice without an examination, and most of these require some specific educational prerequisites.

¶‘s application raises several issues as to character and fitness. These issues involve his ability to be trusted, to respect the law, and to act in a civil manner as an attorney. One way to organize these issues is according to the facts that raise questions about her character.The primary evidence of ¶‘s [INSERT GOOD QUALITY] demonstrated through [INSERT

EVIDENCE]. The facts that raise a question regarding her character and fitness include: LIST FACTORS

Given these facts as a whole, the chances for ¶‘s admission are good/not good.Good moral character:

The burden of establishing good moral character rests upon an applicant for admission to the bar. ¶ would argue that he has made a prima facie showing of good moral character based on his [INSERT EVIDENCE].

Legal but immoral past:Bar admission authorities might take the position that, regardless of the legality of an

activity, if it involves moral turpitude, it should be taken into consideration as a reason to deny bar admission. The bar admission officers would argue that…

¶ should argue that…Unpopular political beliefs:

¶‘s political advocacy on behalf of [INSERT CONTROVERSIAL ISSUE] raises this issue of whether the state can deny her application to practice law based on her membership in a political advocacy that is considered immoral/unpopular/questionable.

The state would argue that ¶… They would argue ¶‘s unpopular belief demonstrates disrespect for the law.¶ would argue that the mere fact of membership in an organization advocating legal

change would not support an inference that an applicant does not have good moral character especially if ¶ has never been arrested/charged with breaking any law. In particular, ¶ should noted that an applicant's public criticisms of legislative and judicial decisions could not be the basis for denying admission, since these expressions of political views are fundamental to a democracy.

Whether ¶‘s activities could properly be viewed as evidence of a lack of moral character is likely going to depend on whether they are viewed as advocating change in the laws or disobedience of the law.Prior arrests:

¶‘s arrests for [INSERT CHARGE] raise the issue of whether these crimes are evidence of his lack of respect of the law or otherwise are evidence of moral turpitude.

Morality of [CHARGE] aside, an arrest and/or conviction raises the additional issue of whether ¶ has a sufficient respect for the law to be admitted to practice. This issue will depend, in part, on his credibility. The court is less likely to hold these arrests (or even the conviction) against his if he can convince them that his arrests were merely [INSERT EXCUSE].

¶ should be careful to ensure his explanation is not viewed as trying to discount the seriousness of his behavior though.

¶ is in trouble, however, if the court believes that he would not have been convicted unless guilty. Continuing to maintain his innocence in the face of a conviction, especially where ¶ also believes that the laws he violated are unjust, is a risky position for a bar applicant.It seems likely that ¶‘s arrests and conviction will count strongly against his admission.Disrespect for the law:

¶‘s actions in [INSERT BAD ACT] are strong negatives in her application.The state will argue that, just as arrests can be relevant to one's bar application even

without convictions, so too, allegations in civil actions are probative evidence of one's character. Moreover, the state will argue that, just because actions don't result in civil liability, doesn't mean they are irrelevant to the character issue.

¶ will argue that his [BAD ACT] was simply political advocacy and legitimate negotiation pressure. The state will argue that this behavior went beyond those bounds and indicates disrespect for legal officials and legal process.

Here again, ¶ is unlikely to be admitted to the bar given these facts unless she can make a very strong case that she has been a target of political persecution.

Professionalism:Whether ¶‘s generally disagreeable personality will provide a basis for denying him

admission will depend in part on the court's views of the purposes of the admission process.¶ would argue that attorneys cannot be disbarred for the way they dress, the language

they use, or their personality. He could cite Model Rule 8.4 and note that dress and language cannot fit within any category of misconduct. ¶ would argue that the standards for admission to practice should be the same as the standards for discipline. If the purpose of admission screening is to identify and exclude those likely to be subject to discipline as attorneys, no one should be denied admission for behaviors that would not provide a basis for discipline in the first place.

The state would argue that admissions standards can and should be higher than those for discipline. First, the burden of proof of character and fitness is on the applicant in admission, but is the state's in discipline proceedings. Second, applicants to the bar are seeking access to a right, not a privilege, whereas practicing attorneys facing discipline have a protected interest in their license to practice law. Finally, the state would argue that even if the standards are the same for admission as for discipline, ¶‘s conduct could provide the basis for discipline, for example ¶‘s [PAST BAD ACT] could face discipline based on "conduct prejudicial to the administration of justice" under Rule 8.4.¶ would argue that the purposes of admission screening are to protect the public, the courts, and the administration of justice. He would argue that his personality and dress pose no threat to any of these; indeed, he would argue that, given his chosen career as [INSERT TYPE OF LAW] he will need to have a strong and forceful personality in order to vigorously defend his clients.

The state will emphasize that civility and professionalism are essential to the smooth and fair administration of justice. In addition, the state will note that admissions standards also protect the image of the profession as a whole. This is important, they will argue, because the public's trust in attorneys is essential to the functioning of the justice system.

Option 1: Lie (or lie and gather information) see apple corps. Pp. 735 and 769

Clearly one option you have here is to phone Flood posing as an assistant public defender and surreptitiously negotiate with Flood to obtain his surrender. Although Flood is not this prosecutor’s client, the prosecutor still owes a duty to Flood under Rules 4.1, 4.3, 4.4, and possibly 1.18. First, and perhaps most clearly, if the prosecutor chooses to pose as an assistant public defender, he has violated 4.1(a) and possibly 4.1(b). 4.1(a) provides that a “lawyer shall not knowingly make a false statement of material fact…to a third person.” Here, Flood is the third person, and by telling Flood that he is an assistant district attorney, he is knowingly lying to Flood. Comment 2 to 4.1 reminds a lawyer to be mindful to avoid criminal and tortious representation. Here, the prosecutor would be engaging in tortious fraud and criminal misrepresentation. 4.3 involves dealing with unrepresented persons. In this situation, the prosecutor knows Flood is not represented because he himself is posing as Flood’s counsel. In dealing with those not represented by counsel, a lawyer must make sure that the unrepresented person understands the lawyer’s role, correct any misunderstandings the third party believes, and is barred from rendering legal advice to such people. The prosecutor in this scenario, the prosecutor is violating 4.3 by implying that he is disinterested, or rather, as is the case here, disinterested in Flood’s representation. Comment 1 explains, “a lawyer typically need to identify the lawyer’s client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. Obviously if the prosecutor is misrepresenting to Flood that his is assisting in Flood’s defense, then the lawyer is not properly explaining who his client is and that the lawyer is acting adversely to Flood’s interests. Where a lawyer knows a client misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. Again, here by virtue of posing as Flood’s counsel, he is no making reasonable sure that Flood understands the prosecutor’s role in the matter. Finally, 4.3 bars the prosecutor from giving Flood legal advice save for advising the third person to obtain their own personal legal counsel. By counseling Flood to turn himself in, the prosecutor is pretty clearly giving Flood legal advice. In the course of a potential conversation with Flood, there is a good chance you will be offering him legal advice (i.e. “Ward, you really should turn yourself in.” “Ward, the court will go easier on you if you corporate.”). You are also violating 4.3 if you do not advise him to get a lawyer. In such a situation, not only has the prosecutor violated 4.3’s requirement that he make clear he is representing the government, he is purposefully frustrating 4.3’s goal of transparency between lawyers and adverse third parties. Additionally, the prosecutor is violating 4.4’s requirement for respecting the rights of third persons. Although 4.4 reads as though it was designed to protect parties in civil prosecution (i.e. it addresses evidence inadvertently faxed to the opposing party) it’s actual language is applicable in this case. 4.4(a) prevents a lawyer from using means that will burden a third person or using methods to obtain evidence which violate the legal rights of such a person. In the instant case, should the prosecutor lie, he will be burdening Flood, the third person, by delaying/denying his right to counsel. If Flood believes the prosecutor is his

attorney then he is not likely to seek other counsel or question the prosecutors advice.

Should this prosecutor choose to pursue this option, he should not try to obtain information to use as evidence. I believe most damaging to this prosecutor, should he pursue this option, is that Flood could very easily think the prosecutor was his court appointed attorney, making him a perspective client under 1.18. As such, any “evidence” you hoped to extract during “negotiations” would be protected under attorney-client privilege, which Flood would hold as your client or prospective client. As alluded to in Togstad, where a client believes you are her (or his) attorney, and you do not make a good faith effort to deny that belief, a court may find you are that person’s attorney. Analogizing this case to Togstad, once Flood realizes you are not his actual attorney, there is a good chance he may sue you, or worse, any evidence he voluntarily produced could be thrown out because it was obtained illegally. This could potentially jeopardize your career, your reputation, and Flood’s conviction. If 1.18 is applicable, then you would additionally be barred under 1.18(b) from revealing any information Flood revealed to you. This would obviously frustrate your attempts to secure a conviction and might actually hurt your case. If you did receive confidential information from Flood, then you would also need to withdraw from representing the government in this case because you would have a nonconsentable conflict of interest implicating 1.7, 1.8, and most likely have to withdraw under 1.16.

In a similar vein, as a prosecutor, you have a duty make reasonable efforts to assure that the accused has been advised of his right to obtain counsel and given an opportunity to do so under 3.8. It is unclear whether this rule applies to the immediate situation because Flood has yet to be charged. However, in an effort to maintain your integrity as “a minister of justice” I believe this rule, in combination with the other implicated here, is another reason to not pursue this line of attack.

4.2 may also be implicated, even though Flood is not yet represented by counsel. According to Lerham and Schrag, 4.2 “may be interpreted in favor of allowing prosecutors to have contact with suspects before they are charged (or allowing them to direct investigations, involving contact with such suspects).” Even if such interaction were allowed in this jurisdiction, I suspect 4.2 would not get a prosecutor around his duties under 4.3 and 4.4’s in this situation.

Additionally, if the prosecutor chose to negotiate with Flood without consulting with his client, the prosecutor violates 1.3’s duty of diligence. Rule 1.3’s requirement of diligence dictates that a lawyer obtain a client’s informed consent and discuss the means with which the client’s objectives are to be met. Since here, the prosecutor met neither of those responsibilities, he is subject to discipline under 1.3. Additionally, by failing to inform his client, the government, about his plan, the prosecutor is violating 1.4(b)’s requirement that a lawyer shall reasonably consult with the client about the means by which the client’s objectives are to be accomplished. The client here (the government) wants Flood to surrender, but it is

the client who should ultimately decide how the prosecutor goes about meeting those goals. One of the purposes of 1.4(b) is to allow the client sufficient information to participate intelligently in decisions concerning objectives of representation. Here, the government is not able to participate at all, and acting as the government’s agent, the prosecutor could also harm the reputation or even cause criminal claims against his own client. The facts here indicate the by calling Flood, the prosecutor would be usurping the government’s right to direct the means by which an investigation occurs. The prosecutor also violates 1.4(a)(1-5). Collectively, these rules require the prosecutor to inform the clients of the status of his representation, discuss the lawyer’s proposed actions, and consult about the lawyer’s relative limitation under the Rule of Professional Responsibility (RPR). As explained above, taking actions sua sponte is generally prohibited by the rules as is acting without explicit or implied authorization. Should this prosecutor choose to lie to Flood and negotiate his surrender, he has not just violated Rules 1.2, 1.3, 1.4, and 4.1. He has also violated his duties to Flood.

Finally, this course of action would necessarily implicate rule 8.4’s misconduct rule. If the prosecutor chose to pretend to be an assistant public defender, you would violate 8.4(a) because the prosecutor personally violated a number of the RPRs. He would also be subject to discipline under 8.4(b-d) because as a “minister of justice,” your deceitful tactics would reflect negatively on prosecutors and lawyers as a whole and lead other to question your fitness as a lawyer. 8.4(e) would also apply because your negotiations would necessarily allude to the fact you could influence an official or other government agency by promising a solo jail cell and unlimited cigs.

Besides breaking more rules than I have digits on my hand, there are collateral issues to consider. For example, if Flood doesn’t believe you, or calls your bluff, he could get mad and kill more people.

On the other hand, some of the rules a prosecutor would break pursuing this option might be defensible. If Flood believed you were his client, for example, it is reasonable under 1.16 that Flood has diminished capacity if he was willing to brutally murder 3 individuals and taunt the police. 1.14(b) allows a lawyer to “take reasonably necessary protective action” on behalf of a client which includes violating 1.6(a)’s duty of confidentiality. 1.6(b) separately allows a client to reveal confidential information that would reasonably prevent future bodily harm. Flood has murder previously and has threatened to do so again, this would satisfy the 1.6(b) standard. However, the fact that the prosecutor falsely induced Flood to reveal confidential information would still pose disciplinary actions however. And as stated above, if Flood suspects the DA is not who he claims to be (which is reasonable since murdering maniacs are often paranoid too), Flood could retaliate by killing more people.

Option 2: Collaborate with police to negotiate with Flood

On the other hand, there are a number of reasons to pursue this course of action. As stated previously, 4.2 in some jurisdictions might allow a prosecutor to direct such an investigation, although it is unclear to what extent the prosecutor may involve himself and whether he can encourage others to lie. First, this prosecutor should check applicable case law in his jurisdiction. Assuming this jurisdiction allows a prosecutor to be involved, he must be careful he is not directing others to engage in deceit. 5.1 counsels that lawyers may not have other lawyers break RPRs that they themselves could not break. 5.1(c) expressly forbids a lawyer from ratifying another lawyer’s violation of the rule. Read narrowly, it appears this rule does not apply to this situation, construed more broadly however, the spirit of the rule is clearly to encourage lawyers to oversee their subordinates and ensure their employees do not violate the RPR’s. Given the severity of the circumstances, no discipline would likely follow under 5.1(c). More likely, the prosecutor would be disciplined under 8.4(a) for encouraging others to break the RPR’s, and 8.4(c), engaging in dishonesty or misrepresentation. This option would also require the prosecutor to encourage another to unlawfully practice law without a license since presumably the fake PD would be giving legal advice.

A similar option would be to cautiously explain to the police how they could go about discussing a plea with Flood, or alternatively, how an officer could pose as an assistant DA and negotiate with Flood himself. Rule 1.6 permits (“may reveal”) revelation of confidential information to prevent, mitigate, or remedy some criminal or fraudulent client conduct in furtherance of which the client has used the lawyer’s services. Arguably, 1.4 only permits a lawyer to reveal this information and does not require him to reveal this information. Read broadly, a lawyer does not have a duty to report such fraud. This means that in any situation in which a lawyer’s failure to reveal would constitute “assisting a criminal or fraudulent act,” Rule 4.1 requires a lawyer to reveal this information unless barred by 1.6. Since 1.6 does not explicitly bar revelation, it would seem as though the prosecutor in this case, under 4.1, would be required to reveal any crime his client (the police/government) was reasonably certain to commit. The prosecutor in this case would thus have to decide whether he was “reasonably certain” his client was going to commit the fraud he discussed with the police. Given the immediacy and severity of this case, any charges brought based on 4.1 and 1.6 would certainly be mitigated by the facts here, but nevertheless, since Flood might be suspicious of speaking with an “assistant” to Baiggi which could result in retaliation, I would probably steer clear of this option.

In fact, should the prosecutor tell the police to impersonate the district attorney, the prosecutor could also be disciplined for knowingly allowing another to break 5.5’s unauthorized practice of law rule and subsequently 8.4.

Option 3: Tell the truthObviously, telling the truth is a viable option. In fact, I believe this is probably the best option for the prosecutor in this case. From the facts, it appears that Flood is willing and ready to turn himself in. It is also apparent that the police are willing to concede Flood his lone jail cell and cigarettes. Phoning Flood and making clear that

you are the DA, but willing to make a deal with him and his attorney does not appear to violate any of the rules. I believe you could also inform Flood that you were trying to locate Baiggi (assuming you were doing so). Making a deal with Flood over the phone would be inadvisable because he is an unrepresented person under 4.3 and the prosecutor may not render legal advice to such persons. Using this option, the prosecutor should ensure he complies with 4.3 as he will be dealing with an unrepresented person, but besides that, 4.3 seems like a good option.

Option 4: Try harder to find BaiggiFor the facts, it seems as though the DA half-heartedly attempted to contact Baiggi. Perhaps the prosecutor could go to Baiggi’s office or have the police locate him. If the prosecutor decides to contact Baiggi ex parte, it is a good idea that he get permission from the government under 1.6(a) to reveal confidential information. Since the DA will probably need to reveal some information to Baiggi, it would be prudent to gain informed consent from the client before even speaking with Baiggi. The RPR’s do not prevent a lawyer from contacting a lawyer ex parte, but do prevent the prosecutor from revealing any confidential. When gaining informed consent from the government (the client), the prosecutor should also be sure to meet 2.1’s duty to render candid advice. In this situation, that might mean explaining the political implications of the police being seen as “negotiating with a terrorist.” However, given the major safety concerns, this is an issue that would probably not bother the police.

As Lerman and Schrag articulate, “if a prosecutor in directing an investigation, he or she arguably violates the rule prohibiting materially false statement and the rule against contact with represented persons.”

Option 5: Do nothing—let the police find Flood themselves

This is an option, but given other available options, this should probably not be your first choice. In fact, you have a duty to provide competent representation under 1.1 and by not even considering other options that even a second year law student thought of, you are probably violating your ethical duty of thoroughness and preparation which involves conducting proper research (here, are there any similar cases in your jurisdiction that allow attorneys or police to deceive a suspect in the interest of public safety?).

Option 6: Call the bar association

This is always an option. The bar association in each state has a phone number for lawyers who have ethical questions. Given the urgency here, you might decide to pursue another option, but if you are absolutely in a bind, this is a possible avenue. However, the prosecutor should be careful to use hypotheticals and to not reveal any confidential information under 1.6.

Conflict of interest7-6

You represent both H and W in the execution of a will. H wants to leave everything to his mistress. Under rule 1.4, you are supposed to provide adequate information to your clients so they can make informed decisions. However, there is a duty under 1.6 to protect the H’s confidences. Do you tell the W or do you protect the H’s information?

Held: While a lawyer is ethically obligated to protect confidences and also has a duty to communicate to a client information that is relevant to the representation, the lawyer’s duty of confidentiality must take precedence.

The court advises an attorney in this situation to withdraw from the representing, informing the parties that a conflict of interest has arisen that precludes continued representation of both parties. The lawyer may also want to advise that each party should retain separate counsel. As such, even though the W might suspect an affair and ask the lawyer about it, the lawyer may still not reveal the separate confidences.

Consentable?

would a reasonable lawyer would be competently continue representing the client

would one of the clients would be so badly off that the reasonable person would never consent to it

argument for consento you already have the information that could be obtained

through discovery assuming that the issue is consentable

o problem with consent need to tell the parties the details of the messy

situation Jolene will be upset Hugh does not want this affair to be brought up so consent may not be relevant

you decide to withdrawo can you still represent one of the Clients?

once you withdraw from representation your client becomes your former client

the issues becomes about information that you gained from Mistress

you cannot use her confidence against her you may end up in situation where you are tempted

to reveal Mistress's info to McCarthys you continue to represent

but in estate representation it is unlikely one can use something against it in paternity case

but, may prejudice unfaithful husband in favor of Wife (by putting secret trust in Wife's favor)

so, it is possible to withdraw from paternity and continue in estate; but not vice versa

General Question:  whether you gained any confidences in one case that can be used against the client in the other case

Do you have any obligations to tell Wife about the Husband's suit?

no obligation they had an agreement regarding shared information why is it no good?

o info does not come from them, but from the law firm negligence

No duty to tell the Wife - information did not come from Husband

o should that make a difference?o Florida Bar Opinion - it was Husband's faulto That is not here

1.6 applicability regarding confidentiality?violate Husband's confidentiality