the law governing lawyers - 1 of 34 © kirk sigmon may not...

The Law Governing Lawyers - 1 of 34 © KIRK SIGMON – MAY NOT BE USED WITHOUT PERMISSION

THE LAW GOVERNING LAWYERS

THE LAWYER-CLIENT RELATIONSHIP

FORMATION

o Rest. 14 – [Formation]

o M.R. 1.18 – [Prospective Client]

FEES

o Types: (1) Flat (2) Hourly (3) Proportional [of purchase price, etc] (4) Contingency

o Reasonableness

o Contingency Fees

THE SCOPE OF AUTHORITY

o M.R. 1.2 – [Consultation Rules]

o M.R. 1.4 – [Communication]

o M.R. 1.0(e) -- [Informed Consent]

ENDING THE RELATIONSHIP

o M.R. 1.6(a) – Client has unlimited right to fire.

o M.R. 1.16 – Mandatory and Permissive rights to quit

CONFIDENTIALITY

(A) ATTORNEY-CLIENT PRIVILEGE (Evidence Law)

Rest LGL 68 – [Definition and Exceptions]

o FRE 502 –

o Forms – Voluntary/Involuntary

(B) WORK PRODUCT DOCTRINE

(C) PROFESSIONAL DUTY OF CONFIDENTIALITY (Ethics/Agency Law)

M.R. 1.6 – [Confidentiality Rule]

o Joint Clients

CONCURRENT REPRESENTATION

M.R. 1.7 – [CONFLICT IN CONCURRENT REP] o Special Issues: Joint Rep, Transactional Conflicts, Criminal

SUCCESSIVE (SIDE-SWITCHING) REPRESENTATION

M.R. 1.9 – [Side-switching]

SUCESSIVE (MIGRATORY) REPRESENTATION

M.R. 1.9(b) – [Migratory]

M.R. 1.10(b) – [Lingering Taints]

PERSONAL INTEREST/BUSINESS CONFLICTS

M.R. 1.7 cmt 11 – [Family conflicts]

MR 1.8(a) –[Business transactions rules]

Bankruptcy Rule 2.1 – Requires impartiality to distribute to creditors

o Bankruptcy Rule 2014 – Requires disclosure of any connection

FORMER GOVERNMENT LAWYERS

M.R. 1.11 [Gov’t Employee Limits]

PROSPECTIVE CLIENTS

M.R. 1.18 [Duties owed prospective clients]

CONSENTABILITY AND WAIVER

Allowed, but not favored.

M.R. 1.7 cmt 22 – Accept advance waivers, but client must give informed consent + ―reasonably understand[] the material

risks that the waiver entails‖

Rest LGL 122 Cmt d – Accept advance waivers given , req informed consent

o M.R. 1.0(e) -- "Informed consent"

o STRANGER RULE

o Rest. LGL 122 com. c(i) – Multi-client informed consent]


―Open Ended‖ waivers generally barred. M.R. 1.7, &c.

Changed circumstances allow revocation. M.R. 1.7 Cmt 21, Rest 122 Cmt f.

Withdrawal of Consent hinges on whether the revocation was justified. Rest 122 cmt f

NONCONSENTABILITY

IMPUTATION AND SCREENING

M.R. 1.10(a) [GENERAL IMPUTATION TO FIRM] ―Cone of Silence‖ proper to screen lawyer THAT MOVES FROM

ANOTHER FIRM.

M.R. 1.10 – [Firm Conflicts]

IMPLIED CLIENT RELATIONSHIPS

Rest. 14 – [Formation]

PRIMARY/SECONDARY CRIMINAL/TORT LIABILITY

Always available unless statute defines otherwise. Many decisions hinge on this.

ORGANIZATION AND CONSTITUTENTS

Default presumption that attorney represents client corp only, not constituents individually

o 1.13(a) – Lawyer represents orgs

o Rest LGL 96 cmt g. -- No duty to protect one constituent from another

o Refutation of presumption of organizational rep (i.e. constituent rep) (Bevill test)

NONCLIENT/THIRD PARTY RELATIONSHIPS

Rest. LGL 51 – Duties to nonclients

o Insured/Insurer

o Class Action Issues

GENERAL PROHIBITIONS

3.3(a) Candor to Tribunal

3.4(b) Convincing or Assisting Witness to Testify falsely

3.4(e) Advancing Irrelevant Matters

4.4(a) Embarrass, Delay, or Burden a third person

8.4(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

8.4(d) Engage in conduct that is prejudicial to the administration of justice

EFFECTIVE ASSISTANCE OF COUNSEL - Strickland: (1) Error and (2) Prejudice

CLIENT PERJURY

MRPC 3.3 – [False statements of fact]

HANDLING OF EVIDENCE

MRPC 3.4 – [Evidence rules]

Rest. 119 – [Phys Evidence Rules]

ABUSIVE LITIGATION CONDUCT

M.R. 3.1 – [Must have basis in law and fact]

M.R. 3.2 -- A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

M.R. 3.5 - A lawyer shall not:

o (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;

o (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court

order;

o (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is

prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the

communication involves misrepresentation, coercion, duress or harassment; or

o (d) engage in conduct intended to disrupt a tribunal.

M.R. 3.6 – Prosecutorial Duties]

M.R. 3.7 – [L as witness]

M.R. 4.4 – [Embarrassing or harassing trial tactics]

o FR App. 38 – No frivolous appeals.

o FRCP 11


WITNESS PREP

Slotting witness into testimony/crafting story v. Helping Remember/Explain

Impeaching Legit Witnesses

o Monroe Freedman: Duty to make a truthful witness appear to be lying for client

o Harry Subin: Improper for an attorney to imply truth-telling witness is lying.

o ―Anatomy of A Murder‖ Lecture – Lecture outlining law and indicating what W should say

COMMUNICATIONS WITH THIRD PARTIES

M.R. 4.2 – [Dealing with represented party]

M.R. 4.3 – [Dealing with unrepresented party]

M.R. 3.6 -- Trial Publicity

o Application to Prosecutors

Rule 3.8 -- Special Responsibilities of A Prosecutor.

COMPETENCE

M.R. 1.1 – Competence Req’d

M.R. 1.4 – Defs of Competence

o Patrolling Methods – Privity, but Negligence, Contract, Breach/Fid Duty, etc

IMPUTATION OF RULES

M.R. 8.4 – Acts through others

M.R. 5.2 -- Responsibilities Of A Subordinate Lawyer

M.R. 5.3 -- Responsibilities Regarding Nonlawyer Assistants.

ADVERTISING

Rule 7.1 - Communications Concerning A Lawyer's Services -

Rule 7.2 Advertising

Rule 7.3 Direct Contact With Prospective Clients

Rule 7.4 Communication of Fields of Practice and Specialization

Rule 7.5 Firm Names And Letterheads

UNAUTHORIZED PRACTICE OF LAW

Prohibited where law is tailored to fact or otherwise specialized to specific needs

MULTIJURISDICTIONAL PRACTICE

M.R. 5.5 -- Unauthorized Practice Of Law; Multijurisdictional Practice Of Law

MAJOR CASES

Att’y-Cl Rel

o Togstad – Inducing woman into reliance -> Att’y-CL Rel

o Westinghouse – QC rel where LF learned of conf. info from petroleum companies

Fees o Fordham – Overpriced crim case by civil lawyer

Corp Duties o Fassihi – Imp rel with shareholder and by squeezing that shareholder out

o Upjohn – Not just control group. Factors include (1) made by UJ employees (2) to counsel for UJ (3) acting as such

(4) at the discretion of supervisors (5) in order to secure legal advice. (6) info was not available from upper level

management, (7) info concerning scope of employment, (8) given by employees with awareness being questioned

for corp legal advice. (9) Comms ided GC as author of docs, (10) contained disclaimer of policy. (11) comms were

highly confidential when made and (12) had been kept confidential by UJ

Duties to the Court

o Nix v. Whiteside – No 6th Am violation when refusing to let D take stand. (1) Warn (2) Disclose (3) Withdraw.

Conflicts

o Ficandia – Conflicts with prison and school

o Brennans – Loyalty conflict with restaurants + issues w/confidentiality


DEFINING THE CLIENT/DETERMINING DUTIES

GENERALLY

Now follows duties, formerly followed privy of contract. MacPherson focuses on foreseeability, strangely.

NORMATIVE FRAMEWORK

o Normative Dimension x Legal

Dimension

o Market or Contractarian Model – Consentual and mutually beneficiary exchange, regulation

prevents abuse. Regulation possibly unnecessary insofar as powers equal.

o Fiduciary Model – Client dependent on lawyer, superior/inferior model

o Participatory Model – Stresses lawyer abuse and paternalism, emphasizes forcing lawyers to provide information and decision-making power.

o Public Utility Model – Lawyer-Client relationship in larger context, both tasked with protecting public and private values moreso than merely ―winning‖

FORMATION

Rest. 14 – [Formation] A relationship of client and lawyer arises when: (1) a person manifests to a lawyer the person's intent

that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b)

the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person

reasonably relies on the lawyer to provide the services; or (2) a tribunal with power to do so appoints the lawyer to provide

the services.

M.R. 1.18 – [Prospective Client] (a) A person who discusses with a lawyer the possibility of forming a client-lawyer

relationship with respect to a matter is a prospective client. (b) Even when no client-lawyer relationship ensues, a lawyer who

has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule

1.9 would permit with respect to information of a former client. (c) [After consultation w/info divulging may not represent

someone with interests materially adverse. Whole firm included.] (d) When the lawyer has received disqualifying information

as defined in paragraph (c), representation is permissible if: (1) [both client and prospective client have given informed

consent], (2) [lawyer took reasonable means to avoid hearing more info] (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.

o No reliance required. Ethics 20/20 would re-require.

IMPLIED CLIENT RELATIONSHIPS

IMPLIED IN FACT (Togstad) vs. QUASI (Less duties – Westinghouse)

Implied representation – Togstad issue where lack of formal withdrawal creates legal duty. o FIDUCIARY DUTIES are the core focus

―Faith, confidence, and trust in another’s judgment and advice‖ -- Fassihi

o Reasonable reliance generally the factor. o JDAs -> Implied Relationships (Westinghouse-ish scenario)

Rest. 14 – [Formation] A relationship of client and lawyer arises when: (1) a person manifests to a lawyer the person's intent

that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b)

the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person

reasonably relies on the lawyer to provide the services; or (2) a tribunal with power to do so appoints the lawyer to provide

the services.

1.13 (f) -- In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a

lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's

interests are adverse to those of the constituents with whom the lawyer is dealing.

JOINT RELTIONSHIP ISSUES

Four Key Issues

o (A) LOSS OF ATT’Y-CL RELATIONSHIP. Possible sharing -> loss. BUT COMMON INT. DOCTRINE.

o (B) SUB. ADVERSITY DISQUALIFICATION IN SUB PROC. Brennans. DQ where parties dispute.


o (C) BREACH/FID DUTY. Fassihi. Breach of duty with past client, favoring one.

o (D) CONFLIFTING CONFIDENCES. A v. B issue, where duties of confidence and loyalty collide.

WAIVERS always seem to help, but some collisions unavoidable.

PRIMARY/SECONDARY CRIMINAL/TORT LIABILITY

Always available unless statute defines otherwise. Many decisions hinge on this.

Lawyer ―picks up‖ rights and obligations via agency law. Thus, a tort by the lawyer can exist where duty is breached.

o Ex: Harming third party

Breaching substantive law also counts

o Ex: Allowing corporate takeover, breaching insurance law, etc.

ORGANIZATION AND CONSTITUTENTS

Default presumption that attorney represents client corp only, not constituents individually

o Theories Entity Theory – Lawyer represents entity that is corp.

Breaks down with informal orgs.

Group Theory – Lawyer represents group of discrete individuals forming group (Indiana)

But can possibly retroactively become entity theory. Jesse v. Denforth

o 1.13(a) -- A lawyer employed or retained by an organization represents the organization acting through its duly

authorized constituents.

o Rest LGL 96 cmt g. -- A constituent's breach of fiduciary duty to another constituent. One constituent of an

organization may owe fiduciary duties to another such constituent, for example in some instances a majority

stockholder to a minority holder. A lawyer representing only the organization has no duty to protect one constituent

from another, including from a breach by one constituent of such fiduciary duties, unless the interests of the

lawyer's client organization are at risk.

o Refuted when: (Bevill test) (1) Party approached counsel for legal advice. (2) Approached counsel with individual

capacity clear. (3) Demonstrate counsel saw fit to communicate to individual capacities knowing conflict could

arise. (4) Prove that communications were confidential. (5) Substance did not concern matters within the company

or general affairs of the company,.

#5 requires in camera review.

Even with JDA, corp would still own privilege under Bevill, given individuality of ownership

CURRENT MANAGEMENT ALWAYS OWNS PRIVILEGES

o Thus, a change-of-hands can create an issue for employees.

NO JOINT PRIVILEGE WHERE CONSTITUTENTS HAVE INDIVIDUAL REPRESENTATION o Individual constituents may only assert privilege for matters involving individual acts (segregability).

SECONDARY LIABILITY ALWAYS AN ISSUE.

Issues o Rule 1.13 is poorly tailored to odd entities. The less hierarchy, the less it makes sense. Reporting statutes like

Sarbanes Oxley fall apart where one cannot report up the chain.

Ex: Where lawyer represented corporate members in various personal matters, no JDA existed such that statement by those

members to the same lawyer in the context of the organization could be stopped by those individual clients where the

corporation wants to disclose. In Re Grand Jury Subpoena. 50/50 split of corporation created individual (group)

representation re corp. Fassihi. 25% rep did not create Fassihi-esque individual rep. Skarbrook.

NONCLIENT/THIRD PARTY RELATIONSHIPS

Duty Structure o Imposed by Law. Criminal law, tort law, etc. Secondary liability.

o Express/Contractual Privity. Exists to create obligations.

o Implied. Rest. 51, etc.

Rest. LGL 51 o (2) – [Duty] to a nonclient when and to the extent that: (a) the lawyer or (with the lawyer's acquiescence) the

lawyer's client invites the nonclient to rely on the lawyer's opinion or provision of other legal services, and the

nonclient so relies; and (b) the nonclient is not, under applicable tort law, too remote from the lawyer to be

entitled to protection;

o (3) to a nonclient when and to the extent that: (a) the lawyer knows that a client intends as one of the primary

objectives of the representation that the lawyer's services benefit the nonclient; (b) such a duty would not

significantly impair the lawyer's performance of obligations to the client; and (c) the absence of such a duty

would make enforcement of those obligations to the client unlikely; and

o (4) to a nonclient when and to the extent that: (a) the lawyer's client is a trustee, guardian, executor, or fiduciary


acting primarily to perform similar functions for the nonclient; (b) the lawyer knows that appropriate action by the

lawyer is necessary with respect to a matter within the scope of the representation to prevent or rectify the breach

of a fiduciary duty owed by the client to the nonclient, where (i) the breach is a crime or fraud or (ii) the lawyer

has assisted or is assisting the breach; (c) the nonclient is not reasonably able to protect its rights; and (d) such a

duty would not significantly impair the performance of the lawyer's obligations to the client.

Insured/Insurer

o Rest. LGL 14 implied relationship potential, but no automatic Lawyer-Client relationship.

Some duties always owed to insurer. Especially given financial connection.

ADVERSARIAL RELATIONSHIP. Insured can tender defense to Insurer without too much worry about

fraud, onus on insurer to disprove coverage(?)

NO DUTY TO DISCLOSE on counsel

o Cf Rule 11 duties

Informed consent nearly impossible to get for conflicts.

Cumins counsel – Counsel for insured only in addition to insurer+insured counsel

Insurers like, protects from bad faith claims.

o Rest. LGL 134 cmt f – A lawyer might be designated by an insurer to represent the insured under a liability-

insurance policy in which the insurer undertakes to indemnify the insured and to provide a defense. The law

governing the relationship between the insured and the insurer is, as stated in Comment a, beyond the scope of the

Restatement. Certain practices of designated insurance-defense counsel have become customary and, in any event,

involve primarily standardized protection afforded by a regulated entity in recurring situations. Thus a particular

practice permissible for counsel representing an insured may not be permissible under this Section for a

lawyer in noninsurance arrangements with significantly different characteristics. […] Duties may be owed to a

liability-insurance company that designates a lawyer to represent the insured even if the insurer is not a client of the

lawyer, to trust beneficiaries by a lawyer representing the trustee, and to certain nonclients in other situations. What

duties are owed can be determined only by close analysis of the circumstances and the relevant law and policies.

o Rest. 134 Cmt f -- It is clear in an insurance situation that a lawyer designated to defend the insured has a client-

lawyer relationship with the insured. The insurer is not, simply by the fact that it designates the lawyer, a client of

the lawyer. Whether a client-lawyer relationship also exists between the lawyer and the insurer is determined

under § 14.

Hazard ―Triangular Relationships‖ – Triangle between lawyer, client, and guardian and/or corporation. Difference

between a fiduciary relationship or agency relationship.

Protections: At minimum, criminal law and fraud. But more exists. o SECONDARY LIABLITY always an issue.

Ex: Lawyer has duty to hiring insurer, though insurer is not a client. Paradigm Ins. V. Langerman Law Offices.

LAWYERS FOR A CLASS

CORE ISSUE: CLASS AS LAWYER CREATED ENTITY

o Named members can be manipulated and chosen, hard to find in the first place.

o Current v. Future claimants create instant diverging interests, insta-conflict.

Georgine issue – Past v. Future class members, where Ds distinctly want future class to settle, but future

class harmed by such.

DIVERGENT PERSPECTIVES

Hazard – Possible to do so without conflict, pragmatism(?) over professionalism

Cramton – MR 1.7 conflict, thus no-go.

Numerous issues. Lawyers essentially have boundless ability to enter bad settlements for personal gain, resulting in high

conflicts and low control.

o ―Small Claimant‖ case problem – Ds avoid class cert because Ps have no real alternative

o Requirement of named members discourages small settlements, limits meritorious cases, and potentially

encourages client-breeding behavior.

o Communication requirement may try to encourage control, but in fact may just discourage cheaper cases

o Objectors may face potential issue if they decline, forcing them into settlements

o Collusion rampant, especially where many contingency fees lower percentage as recovery increases

SOLUTIONS

o Subclass division. Finding reps for each individual subclass of affected parties.

But: Difficulty to subclass, lawyer still controls.

FEES

Issue of contract law vs. ethics – (1) Disciplinary sanctions and (2) Loss of entitlement o (2) usually occurs more than (1), but (2)+(1) occurs, usually not (1) w/o (2).


Types: (1) Flat (2) Hourly (3) Proportional [of purchase price, etc] (4) Contingency o QUESTION: (1) INFORMED CHOICE? (2) REASONABLE IN CIRCUMSTANCES? (3) SUBSEQUENT

CHANGE? o Retainer Fees: (1) Special – Deposit for future services (2) General – Earned upon receipt, a form of an

―engagement fee‖ Cooperman: DEPOSITS CANNOT BE MADE NON-REFUNDABLE (inhibits client’s right to fire)

o Civil Action – Unreasonable lower standard for contractual recovery

o Ethics Action – Unreasonability standard higher to justify punishment o Judicial Control limited, arguably amt cannot be freely determined by judge.

o Maximum/Minimum Fees likely disallowed due to price fixing rules

Reasonableness o M.R. 1.5(a) – No ―unreasonable fee or unreasonable amount‖ FOR ALL FEES

Factors: (1) Time and labor required, (2) Likelihood of preclusion of other opportunities, (3) customary fee

in locality, (4) the amount involved and results obtained, (5) time limitations imposed by client, (6) nature

and length of relationship, (7) experience, reputation, and ability of lawyer(s), and (8) fixed or contingency

Comment A – Sometimes loss of entitlement is punishment enough

o Restatement 34 com. C – Reasonableness (1) free & informed choice? (2) reasonable fee within community-

accepted range? (3) Substantial change make fee unconscionable?

o OBJECTIVE STANDARD. Diligence IRRELEVANT.

o Security Interests OK, subject to MR 1.8(a) on financial transactions

o Modifications

ABA Formal Op. 11-458 – K must be reasonable ex ante and with informed consent Restatement § 18(a)(1)- ―if the [fee] contract or modification is made beyond a reasonable time after

the lawyer has begun to represent the client in the matter … the client may avoid it unless the lawyer

shows that the contract and the circumstances of its formation were fair and reasonable to the client....‖

Contingency Fees

o M.R. 1.5(c) and Restatement 35(1) explicitly allow. M.R. 1.5(c) requires them to be in writing, judicial decisions usually require more.

o Factors of Excessively: (1) High likelihood of recovery so no risk, (2) Recovery so large that the fee would be

excessive, (3) Percentage too high, (4) Base against which the percentage is applied is excessive or otherwise unreasonable.

Hourly Rate helps test.

o Manhattan Institute Proposal: If settles within 60 day period 10% of first $100k and 5% of any greater.

o REASONS Lawyers better risk takers. (1) Better knowledge of risk (2) Better position to avoid loss (3)

Diversification of risk.

BUT Conflict of Interest. Early/cheap settlement, etc.

o DISCHARGE Old Rule – If discharged w/o cause, breach of contract. With cause, no recovery for lawyer.

Modern Rule – Quantum Meruit.

o LIMITATIONS M.R. 1.5(d)(1) – Divorce, domestic relations, etc [public policy worries]

M.R. 1.5(d)(2) – Criminal [public policy issues, fear of loss of con. rights]

Ex: Open-ended hourly fee for [D]UI barred when over $50,000 total. Fordham. $1m charge on settlement for otherwise $5m

contingency upheld, parties bargaining equally as client was corp. Brobeck, Phleger & Harrison v. Telex Corp. $5,000 in

1974 excessive for largely summary divorce proceedings. Bushman v. State Bar of Cali. One third interest in estate excessive.

White v. McBride. | 50% fee unreasonable. Committee on Legal Ethics of WV State Bar v. Gallaher. Despite 1/3 of $1m

judgment, no complaint, judge could not determine fee. Gagnon v. Shoblom.

THE SCOPE OF AUTHORITY

MRs have generally open definition, Restatement has objectives/means analysis.

M.R. 1.2 – (a) a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by

Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take action on behalf of

the client as is impliedly authorized to carry out the representation. A lawyer does not violate this rule by acceding to requests

of opposing counsel that do not prejudice the rights of the client, being punctual in fulfilling all professional commitments,

avoiding offensive tactics, and treating with courtesy and consideration all persons involved in the legal process. A lawyer

shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision


as to a plea to be entered, whether to waive a jury trial, and whether the client will testify. (b) Representation not

endorsement. (c) A lawyer may limit the scope of the representation if the limitation is [1] reasonable under the

circumstances [2] and the client gives informed consent. (d) No illegal or fraudulent acts. (e) No threats of criminal charges

or prof’l misconduct allegations for gain.

o Apparent Authority – When the client leads a third party to believe that the lawyer has the client’s authority

to act confirmed by actions of principle. o Actual Authority – When the client, through words or deeds, causes the agent reasonably to believe that she

has the authority to act. o Government Authority – Special case, gov’t lawyers have no authority to bind government alone

M.R. 1.4 – [Communication] (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect

to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the

client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about

the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about

any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the

Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit

the client to make informed decisions regarding the representation.

o Implies a descending continuum of duty.

M.R. 1.0(e) -- [Informed Consent] "Informed consent" denotes the agreement by a person to a proposed course of conduct

after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available

alternatives to the proposed course of conduct.

Criminal Cases o Rights: Fundamental decisions including (1) pleas, (2) waiver of jury trial, (3) whether or not to testify, and (4)

whether or not to take an appeal.

o ―Strategic‖ matters for lawyer, including witnesses, etc. o Rejection of plea bargains may result in court modifying scope of potential verdict, etc, if lawyer did so

without approval.

Disabled Clients -- M.R. 1.14 - (a) [When client capacity diminished due to minority, mental illness, etc, lawyer should as

much as possible remain normal client relationship] (b) When the lawyer reasonably believes that the client has diminished

capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the

client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or

entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a

guardian ad litem, conservator, or guardian. (c) [May reveal info about client insofar as allowable]

ENDING THE RELATIONSHIP

M.R. 1.6(a) – Client has unlimited right to fire.

M.R. 1.16 -- (a) [MANDATORY Withdraw or not represent if if:] (1) [Violation of MR or law], (2) the lawyer's physical or

mental condition materially impairs the lawyer's ability to represent the client; (3) [discharged] (b) [PERMISSIVE (may)

withdraw if:] (1) [no] 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 is illegal or fraudulent; (3) [client uses lawyer for fraud or

crime], (4) [client insists on repugnant or conduct lawyer fundamentally disagrees], (5) [client fails obligation, financial or

otherwise], (6) [representation will be financial difficult or client will create unreasonable burden], OR (7) other good cause

for withdrawal exists. (c) [TRACK 2: If permission required to withdraw from tribunal (LITIGATED), must get permission]

(d) [Lawyer must turn over documents, protect interest] (e) [Refund all unearned money]

o Why not always require no material adverse effects in (b)?

o Restatement allows for more reasons, including reasonable belief that a condition for mandatory withdrawal exists,

and informed consent withdrawal.

Discharge (Wrongful or not) o (1) May be required to get permission of tribunal, (2) Pro bono lawyers may not be easily gotten rid of, (3)

―Wrongful discharge‖ and other consequences may apply, (4) Quantum Meruit still applies.

―Hot Potato Doctrine‖ – May not dump current client to pick up new client with conflict of interest

Broad right to documents – Client presumptively has right to documents held by previous lawyer

FINANCIAL/BUSINESS TRANSACTION ISSUES – SEE CONFLICTS OF INTEREST

Ex: Signing settlement on ambit of apparent authority bound client despite change of internal structure of client. ITC v.

Teleprompter Corp. Lawyer has no duty to raise every single issue the client wants to raise. Jones v. Barnes. Lawyer that

tossed out opinion on validity of med mal case created a sort of attorney-client relationship, liable where there was a claim

and he did no research and misled ―clients‖. Togstad. | Where parties entered into a corporation together for a loan, the lawyer

abused his duty by having interest different than client and not giving client full disclosure. Comm. On Prof ’l Ethics &

Conduct of Iowa State Bar Assoc. v. Mershon.


Sources of Governing Law

TRACK 1 – INSTITUTIONS

ABA Canons (1908) → ABA Model Code (1969) [dead]

→ ABA Model Rules (1983) [few] and (2002) (―Ethics 2000‖) [most] → Ethics

20/20 [future]. + Ethics opinions

▪ ―Track One‖

inherent power – Courts adopting,

promulgating, enforcing ABA rules (vary). Delegation

by state.

State Bar associations – Bar Disciplinary Rules –

Voluntary v. Involuntary (bindingness) ◦ Remedies: are relating

to licensure – Restatement sec. 5 -- See Hale (p 1045).

TRACK 2 – TRIBUNAL-BASED

POWER

Tribunal-Based Inherent

Power

◦ ―Track Two‖ inherent power – power of a

tribunal to regulate lawyers acting within it

◦ Remedies: Disqualification, etc – tribunal-based

corrections of defects in proceeding

Disciplinary Rules factor in – used to advise

determinations – even despite different punishment

TRACK 3- OTHER LAW

Tort – Malpractice, duties to third parties ex. Fraud

Contracts – Fees, scope of representation

Agency – Confidentiality, fiduciary duties

Evidence – Attorney-client privilege

Criminal – Extortion, obstruction of justice

Civ pro – Work-product doctrine, frivolous litigation, discovery abuse

Constitutional - 6th

Am., IAC; 1

st Amend advertising

and extrajudicial speech

Conflicts of Laws Issues

Conflict between Track 3 applicable laws and Model Rules, etc. - No priority or trumping relationship

Loss prevention is thus key – avoiding conflicts, insolvable problems – Loss prevention and CYA lawyering vs. business development and client relationships


CONFIDENTIALITY

ATTORNEY-CLIENT PRIVILEGE (Evidence Law)

(1) Communication (2) Made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client

o Classic def: (1) Legal advice of any kind is sought (2) from a prof’l legal advisor in his capacity as such (3) comms relating to that purpose (4) made in confidence (5) by the client (6) are at his instance

permanently protected (7) from disclosure by himself or the legal advisor (8) except that the protection be waived.

Rationale: Open communication between clients and lawyers, serving both the interests of the client and society’s interests in having clients advised and effectively represented.

o Evidence rule in response to a demand for disclosure

o No requirement of anticipated litigation.

o Zolin in camera hearing used for judge to ―see‖ evidence before determination

Rest LGL 68 -- Except as otherwise provided in this Restatement, the attorney-client privilege may be invoked as provided in § 86 with respect to:

o (1) a communication - 69 - any expression through which a privileged person, as defined in § 70,

undertakes to convey information to another privileged person and any document or other record revealing such an expression

Directions

OLD: Only Cl. -> Att’y

NEW: Both (back and forth)

Relevance to legal subject matter paramount. Cannot ―privilege‖ unrelated info

Facts vs. Communications. ―Did Y tell you this‖ vs. ―Did X happen?‖ Latter not protected.

Not Protected

Knowledge obtained outside client communications (e.g. stuff the lawyer figures out never

communicated to him)

Identity of client not protected

o Exception: ―Last link‖ in chain to expose to liability.

o Exception: Where knowledge would infer some problem, e.g. tax law

Fee arrangements

o (2) in confidence - 71 -- [is communication] if, at the time and in the circumstances of the communication,

the communicating person reasonably believes that no one will learn the contents of the communication except a privileged person as defined in § 70 or another person with whom communications are protected

under a similar privilege. Third parties obviate privacy—knowledge of publicity relevant.

o (3) made between privileged persons - 70 - the client (including a prospective client), the client's lawyer,

agents of either who facilitate communications between them, and agents of the lawyer who facilitate the representation

Lawyer’s statements to client also protected, but old rule only covered limited parts

Kovel doctrine – ―Translators‖ for purpose of relationship protected as privileged party ―Two Hats Problem‖ – Where attorney acts as both attorney and some other party

Rest 72 Com. C – If transaction predominantly business, then no att’y-cl privilege. If

predominantly legal, privilege applies.

Joint Clients

Rest LGL 75 – (a) Comm of either co-client qualifies as privileged, any may invoke

privilege. (b) Not privileged in subsequent adverse possession between the formerly joint

parties.

Privilege extends to rest of world but not other joint clients

Confidentiality o Rest. 60 – Paramount duty

o A vs. B – Confidentiality vs. Communication w/ Joint clients

Advance Waivers of Confidentiality – Now used to waive confidentiality

issues ahead of time to avoid this issue

M.R. 1.7 Cmt. 31 – Withdraw, but violation probably already done

Duty of Confidentiality to each client (lim. Jur.)

Exception in cases: Disclosure to avoid fraud

One may not waive for the other


Exception: ―Common Interest Privilege‖. If community of interest, may disclose to further those interests.

Corporations

Rest LGL 73 – When client org, privilege extends to comms that (1) otherwise qualify as

privileged, (2) is between an agent and a privileged person, (3) concerns a legal matter of

interest to the org, and (4) is disclosed only to (a) privileged persons and (b) other agents of

the company that reasonably need to know.

Turkoglu issue – Where lesser party to corp does not wish to disclose info but corp itself

owns the privilege

o Nicolas cases – Sophistication of disclosing person factors into their perception of

the importance of the info they disclosed

o ―Corporate Miranda warnings‖ – Rule 1.13(e) -- Warnings to people as part of

corp that corp owns their disclosures, etc.

Upjohn Case-by-case to determine if person is client or not – FOCUS ON POLICY

o NOT GLOBAL. May differ based on location.

Old: ―Control group‖ of company, no-one else. o (4) for the purpose of obtaining or providing legal assistance for the client. - 72 - if it is made to or to

assist a person: (1) who is a lawyer or who the client or prospective client reasonably believes to be a lawyer; and (2) whom the client or prospective client consults for the purpose of obtaining legal assistance.

Friendly discussions, business discussions, etc. Not covered

Exceptions o (1) Disputes over decedent’s disposition of property

o (2) Client Crime or Fraud

Rest. LGL 82 -- The attorney-client privilege does not apply to a communication occurring when a

client: (a) consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a

crime or fraud or aiding a third person to do so, or (b) regardless of the client's purpose at the time of

consultation, uses the lawyer's advice or other services to engage in or assist a crime or fraud.

[Government] must prove prima facie case that: (1) Communications were in the furtherance of an

intended or present illegality and (2) some relationship between the communications and illegality.

Good faith of attorney is irrelevant.

Civil Fraud included

Even when innocent, crime or fraud can expose attorney work.

o (3) Lawyer Self-Protection

o (4) Disputes in which a Trustee or Fiduciary is charged with a breach of fiduciary duty by a beneficiary,

and

o (5) Disputes between representatives of an organizational client and constituents of it

o [6] ―Common Interest‖ (Allowed disclosure for common interest/goal, very limited, prob)

Two different clients with two different lawyers swapping info != waiver

Rest. 76 – Two or more clients with common interest can swap info, no waiver.

Not Waiver.

Procedure o Client/lawyer must invoke and prove relevance. Lawyer has duty to invoke w/o client req.

―Privilege Log‖ – Must allow adversary sufficient info to know if asserted privilege is valid.

o Rest. LGL 77 – Any time during or after representation.

Waiver o Rest. LGL 79 -- The attorney-client privilege is waived if the client, the client's lawyer, or another authorized

agent of the client voluntarily discloses the communication in a nonprivileged communication.

o FRE 502 - The following provisions apply, in the circumstances set out, to disclosure of a communication or

information covered by the attorney-client privilege or work-product protection. (a) Scope of waiver - When

the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client

privilege or work-product protection, the waiver extends to an undisclosed communication or information in a

Federal or State proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed

communications or information concern the same subject matter; and (3) they ought in fairness to be considered

together. (b) Inadvertent disclosure. - When made in a Federal proceeding or to a Federal office or agency, the

disclosure does not operate as a waiver in a Federal or State proceeding if: (1) the disclosure is inadvertent; (2)

the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly

took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure

26(b)(5)(B). (c) Disclosure Made in a State Proceeding.— When the disclosure is made in a State proceeding

and is not the subject of a State-court order concerning waiver, the disclosure does not operate as a waiver in a


Federal proceeding if the disclosure: (1) would not be a waiver under this rule if it had been made in a Federal

proceeding; or (2) is not a waiver under the law of the State where the disclosure occurred. (d) Controlling

Effect of a Court Order.- A Federal court may order that the privilege or protection is not waived by disclosure

connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any

other Federal or State proceeding. (e) Controlling effect of a party agreement.— An agreement on the effect

of disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated

into a court order. (f) Controlling Effect of This Rule.— Notwithstanding Rules 101 and 1101, this rule applies

to State proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings, in the

circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if State law provides the

rule of decision. (g) Definitions.— In this rule: (1) "attorney-client privilege" means the protection that

applicable law provides for confidential attorney-client communications; and (2) "work-product protection"

means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in

anticipation of litigation or for trial.

NEW AMENDMENTS: (1) Subject matter waiver to proving unfairness, (2) Acknowledges Lois

Sportswear contextual review of inadvertent disclaimer, (3) Gives effect to party agreements (Quick

Peek & Clawback), (4) Agreements in Record enforceable against non-parties

o Client ―owns‖, but some hold att’y has to consent too.

o Forms

VOLUNTARY

(1) Putting in Issue creating Affirmative Reliance. Forensic fairness where party ―opens the door‖ – cannot use as sword and shield

o (A) Disputes between lawyer and client. To show communications in order to discuss alleged malpractice, etc.

Reliance on advice of counsel. Where one party claims reliance on some advice of counsel, the other has access to whatever he relied upon.

Factors: (1) How relevant the communications are to the issue, and (2) the degree the opposing party will need access to respond to the issue.

o (B) Reliance on assistance of counsel as basis of claim.

(2) Selective Waiver (Approaches) o No selective waiver – All-or-nothing

o Selective waiver (i.e. to some but not others) in all situations

o Selective waiver to government – to promote disclosure, etc. – Dicta? Evidence

law, not contract, so probably vaguely incorrect.

INVOLUNTARY

(1) Failure to Object

(2) Accidental Disclosure

o Types

(A) Failure to privilege log (FRCP 26(b)(5)(a))

(B) Mixup with e-mails, faxes, etc.

(C) Doc Production Mistake

o Approaches Old Rule: Waiver – ―Crown Jewels‖ approach (protect or else)

New Rule: Preserved unless negligence

―Quick Peek and Clawback‖ Rule

Rest 79 – Waiver does not occur if inadvertent and reasonable

steps made

M.R. 4.4(b) -- A lawyer who receives a document relating to the

representation of the lawyer's client and knows or reasonably

should know that the document was inadvertently sent shall

promptly notify the sender.

ABA Formal Op. 94-382 – Receiving lawyer has duty to refrain

from reviewing, notify other lawyer, etc.

o Party agreements may change. Depends on pre-trial K.

o Restrictions

Statements in negotiations for settlement or plea bargaining not admissible Extrajudicial disclosures do not constitute waiver, no unfairness.

o Scope of Waiver

All communications of same subject matter. But scope should be limited and the court should


be persuaded there is real probative evidence available before expanding.

Ex: Case-by-case determination of whether person in corporation is client for confidentiality purposes. Upjohn. While

lawyers were innocent, their assistance fostered IRS defraudment and thus exception applied. US v. Chen. While there is

an appeal to allowing selective waiver of confidential info, all-or-nothing approach preferred mostly for administrability.

In re Columbia/HCA.

WORK PRODUCT DOCTRINE

Protects (1) reports and documents prepared by attorney or at behest of client (2) in anticipation of litigation

Protects documents prepared in anticipation of litigation that do not include communications per attorney-

client privilege.

o (1) DOCUMENTS Rest LGL 87 -- (1) [Work product anything tangible or intangible other than facts] (2) Opinion

work product consists of the opinions or mental impressions of a lawyer; all other work product is ordinary work product. (3) [Work product immune from discovery]

Lawyer mental impressions, theories, and opinions – Protected.

Exception: Absent some extreme proving of necessity. Ordinary Work Product – Discoverable for impeachment, unavailability of witness, or for delay

or expense – not prejudicial, etc.

Rest LGL 88 – Ordinary work product allowed for discovery when (1) substantial need, and (2) unable without hardship to acquire equivalent

o (2) IN ANTICIPATION OF LITIGATION Approaches

Only prepared if ―in light of the nature of the document and the factual situation of the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation‖ (US v. Adlman)

Alt: ―primary motivating purpose behind the creation of the document was to aid in future possible litigation‖ (US v. Davis)

Insurance context: Always vs. request.

Attorney work product protected from investigation o Possible exception: [Strong] ―Necessity or justification‖ per Hickman

Waiver o Client ―owns‖, but some hold att’y has to consent too. o Must be to an ―adversary‖ before waived generally

Ex: Qualified immunity of work of lawyers without showing of ―necessity or justification‖. Hickman v. Taylor.

PROFESSIONAL DUTY OF CONFIDENTIALITY (Ethics/Agency Law)

Keeps mouth shut in everyday life. o No demand required. Applies where lawyer may wish to voluntarily disclose, etc. o Not a defense to disclosure demand. Applies outside evidence law.

M.R. 1.6 -- (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives

informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is

permitted by paragraph (b)

o (b) [May disclose if]

(1) [prevent reasonably certain death or substantial bodily harm] (2) [crime or fraud reasonably certain to result in injury to financial interests or property of

another + using lawyer's services]

CRIME NEEDS ONLY BE CONTEMPLATED

o SUBSTANTIVE LAW ALWAYS APPLIES

History: Oldest: Focus on ―crime‖ definition. 1983 Model Rules: Required immediate death and sub. Bodily harm in addition to crime. 2003: Deletes criminal act and imminence requirements.

―Noisy Withdrawal‖ Now allowed by withdrawing where fraud exists and disaffirming

work (documents, opinions, affidavits, etc).

Transaction History – (1) National Student Marketing explains secondary actor liability as knowing, substantial, assistance. (2) Central Bank says one must be primarily liable for cause of action under 10(b)(5). (3) Stoneridge adds reliance and loss-causation

elements to 10(b)(5). (4) PIMCO adopts attribution standard for liability in transactions.


o 34 Act 10(b) and 10(b)(5) – (1) Material misrepresentation (2) Scienter (3)

Misrepresentation led to [purchase?] (4) Misrepresentation on reliance or omissions

(5) Economic Loss (6) Loss caused by misrepresentations

Model Rule 1.6 gives discretion to disclose for client fraud generally

o 1.6(b) Punishes over-disclosure.

M.R. 1.13 -- (a) A lawyer employed or retained by an organization represents the

organization acting through its duly authorized constituents. (b) If a lawyer for an

organization knows that an officer, employee or other person associated with the organization

is engaged in action, intends to act or refuses to act in a matter related to the representation

that is a violation of a legal obligation to the organization, or a violation of law that

reasonably might be imputed to the organization, and that is likely to result in substantial

injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best

interest of the organization. [Refer matter to highest in org] (c) [...] (1) despite the lawyer's

efforts in accordance with paragraph (b) the highest authority that can act on behalf of the

organization insists upon or fails to address in a timely and appropriate manner an action, or a

refusal to act, that is clearly a violation of law, and (2) the lawyer reasonably believes that the

violation is reasonably certain to result in substantial injury to the organization, then the

lawyer may reveal information relating to the representation whether or not Rule 1.6 permits

such disclosure, but only if and to the extent the lawyer reasonably believes necessary to

prevent substantial injury to the organization. (d) Paragraph (c) shall not apply with respect to

information relating to a lawyer's representation of an organization to investigate an alleged

violation of law, or to defend the organization or an officer, employee or other constituent

associated with the organization against a claim arising out of an alleged violation of law. (e)

[Lawyer when discharged for disclosure shall take steps to inform highest auth. In org] (f)

[Lawyer disclose ID of client when dealing with clients when org interest is adverse] (g)

[Lawyer rep org may represent any constituent, if dual rep required consent must be given by

both parties]

Model Rule 4.1 -- In the course of representing a client a lawyer shall not knowingly: (a)

make a false statement of material fact or law to a third person; or (b) fail to disclose a

material fact to a third person when disclosure is necessary to avoid assisting a criminal or

fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Rest. LGL 67 -- (1) [May use or disclose conf. info when] the lawyer reasonably believes that

its use or disclosure is necessary to prevent a crime or fraud, and: (a) the crime or fraud

threatens substantial financial loss; (b) the loss has not yet occurred; (c) the lawyer's client

intends to commit the crime or fraud either personally or through a third person; and (d) the

client has employed or is employing the lawyer's services in the matter in which the crime or

fraud is committed. (2) If a crime or fraud described in Subsection (1) has already occurred, a

lawyer may use or disclose confidential client information when the lawyer reasonably

believes its use or disclosure is necessary to prevent, rectify, or mitigate the loss. (3) Before

using or disclosing information under this Section, the lawyer must, if feasible, make a good-

faith effort to persuade the client not to act. If the client or another person has already acted,

the lawyer must, if feasible, advise the client to warn the victim or to take other action to

prevent, rectify, or mitigate the loss. The lawyer must, if feasible, also advise the client of the

lawyer's ability to use or disclose information as provided in this Section and the

consequences thereof. (4) [No liability for action or failure to take action]

Sarbanes-Oxley – Requires disclosure to chief legal officer (and optionally CEO) where

evidence of material violation (or potential?) of securities law. Legal officer has to give

reasonable response, etc. ―Punting the ball‖ approach. Low standard (―unreasonable not to

include‖).

M.R. 5.2/5.3 – Att’y liable despite firm without arguable question of interpretation after

talking to superior lawyer.

OPM issue: Where increasing levels of fraud used for Ponzi scheme, lawyers were led

through existing model rules to not disclose or do anything, leading to massive problem.

(3) [prevent, mitigate, or rectify [property injury] reasonably certain to result or that has resulted for the furtherance of which client used lawyers' services]

(4) [lawyer get legal advice for compliance] (5) [client-lawyer dispute]

Can anticipate dispute. Service technically not needed.

(6) to comply with other law or a court order.


o (c) POSSIBLE AMENDMENT: Reasonable care required.

Using Client Info – Allowed, but conflict of interest rules govern to prohibit bad use.

o Applies to former clients M.R. 1.9(c)(1) -- Exception: Publicly known info for past client.

Joint Clients o M.R. 1.7 cmt 31 – If one joint client asks one to keep info from other, withdraw and keep confidence.

o Rest LGL 60 Com. l – Explicit agreement by joint clients on whether they wish to reveal confidences to each

other binding, emphasizes withdrawing. Probably cannot disclose.

o Formal Op. 08-450 – If conflict, withdraw and do not reveal.

Consequences – Discipline, malpractice, punitive damages, securities fraud, etc.

Ex: Where lawyer properly quit law firm and disclosed fraud to SEC, there was no ethics violation such that the

prosecuting law firm against his former client was barred on the basis of conflicts of interest. Meyerhofer v. Empire Fire

and Marine. Secondary actors only liable for statements expressly attributed to them, thus law firms working on

documents are only liable where they expressly attribute some statement (ex: disclosures) to their firm (which is rare).

PIMCO. No retaliatory discharge cause of action against employer who fired in-house counsel while disregarding advice

re: trashing pharmaceuticals in violation of FDA regulation (no choice, must disclose fraud). Balla v. Gambro.


CONFLICTS OF INTEREST

DEFINITIONAL ISSUES

RISK RULE, NOT HARM RULE. Focuses on potential for risk, even if unseen. o Any potential interference with duties of confidentiality, competence, independence, etc. o BEGIN WITH FUNCTIONAL ANALYSIS. What COULD happen?

o ―Punch-pulling conflicts‖ included.

Track 2 issues. Up to power of tribunal. o Breach of Fiduciary Duty claim looms in background

o Ethics rules are discretionary. Advise tribunal, but do not govern.

―Client‖ undefined by Model Rules. Other law generally governs. o THE GRAY ZONE. Theoretically, the line between implied clients, non-clients, and actual clients fuzzy. o M.R. 1.0 (c) "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional corporation,

sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.

o Corporate Family Conflicts – Split on whether lawyer barred from representing subsidiaries or affiliates of corporations.

M.R. 1.13 (a) A lawyer employed or retained by an organization represents the organization acting through

its duly authorized constituents.

M.R. 1 cmt 34 – No automatic representation or disqualification from ―representation adverse to [an]

affiliate in an unrelated matter‖.

o QUASI-CLIENT RELATIONSHIP even without retainers possible if constant work or representation by

lawyer that info will be kept in confidence. Trade group example in Westinghouse

o Client should never have to protect self from lawyer. Never client’s fault per se

Sophisticated clients given more leeway due to in-house counsel

Size of law firm irrelevant. Conflicts imputed to all members o M.R. 1.10 – All lawyers as single entity for conflicts purposes.

o ―Firewall‖ theory arguably allowable in some districts

CONCURRENT REPRESENTATION

FLOWCHART: ID Client and Subject Matter -> Draw picture of relationships -> Cynical thinking -> Translate into

doctrinal structure

o ALWAYS REEVALUATING. Can ―snap in‖ at any point.

Rest LGL 121 -- A conflict of interest is involved if there is a substantial risk that the lawyer's representation of the client

would be materially and adversely affected by the lawyer's own interests or by the lawyer's duties to another current client, a

former client, or a third person.

M.R. 1.7 – [CONFLICT] (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation

involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be

directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be

materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest

of the lawyer.

o 1.7 cmt [8] -- ―Material Risk‖ must be significant.

(b) [WAIVER ALLOWED IF]: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and

diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not

involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other

proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.

o FIREWALLS NEVER WORK TO PROTECT.

JOINT REPRESENTATION o Focus on maintaining confidentiality while still allowing inter-party sharing

o Conflicts – 1.13(g), 1.7

o Att’y-Cl Privilege – Both can waive, but only to own info

o Conflicts – AvB issue, creates reason to withdraw.

Transactional Conflicts o LAWYER FOR THE SITUATION is the general definition

Value: (1) Lower transaction costs, (2) Protecting clients, (3) Emphasis on unity of interests

―Scrivener‖ concept of M.R. 1.2 very limited, usually liability still there.

INCREASED COMPLEXITY -> LESS IMPARTIALITY -> MORE CONFLICT


o Simultaneous Real Estate Representation generally barred without informed consent, even then very high burden

in most states.

o Third Party Neutral

M.R. 2.4 -- (a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who

are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them.

Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as

will enable the lawyer to assist the parties to resolve the matter. (b) A lawyer serving as a third-party neutral

shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or

reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall

explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who

represents a client.

o Matrimonial matters – Single lawyer cannot represent both spouses.

o Estate Planning – No representing family where lawyer would get money. Probably bad to represent all parties.

o Joint Representation in Business Ventures – Question of whether lawyer should rep all parties

IN CRIMINAL LITIGATION

o ACTUAL CONFLICT OF INTEREST must be proven proven such that the conflict of interest adversely

affected his lawyer’s performance. (Cuyler standard)

STRICKLAND STANDARD (Underlying): (1) Error (2) Prejudice

Incredibly hard to prove

―Conflict‖ – Some tangible impairment.

Alt: ―Showing of prejudice, defined as ―a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different‖. Strickland

Applies even when judge knew or should have known conflict.

State courts must investigate timely objections to multiple representation. Holloway

Failure: Per se error (Subverts Strickland to auto-reversal)

SUCCESSIVE (SIDE-SWITCHING) REPRESENTATION

FLOW: (1) Clients and matter? (2) Materially adverse interest? (3) Same or substantially related matter? (4) Informed Consent? [ALWAYS consentable]

TWO KEY DEFINITIONAL PROHIBITIONS

◦ (1) CONFIDENTIALITY – Risks involving sub. Risk that confidential info will be used ▪ ―Playbook‖ Issue: Possibly could be confidential if sufficiently idiosyncratic

▪ VIRTUAL ANALYSIS – Method to presume the nature of confidential information one would have had. In other

words, confidences are guessed at, not actually disclosed.

◦ (2) LOYALTY – ―Nest fouling‖ – Attacking own previous work.

REPRESENTATION MUST HAVE ENDED.

◦ Implied relationship may persist despite technical termination.

M.R. 1.9(a) -- A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the

same or a substantially related matter in which that person's interests are materially adverse to the interests of the former

client unless the former client gives informed consent, confirmed in writing.

o M.R. 1.9 [3] Matters are "substantially related" for purposes of this Rule if they involve the same transaction or

legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have

been obtained in the prior representation would materially advance the client's position in the subsequent matter.

Alts: Similar to RPP. (Am. Airlines). ―Patently Clear‖. (Government of India).

Rest. 132 -- [Without both clients giving informed consent,] a lawyer who has represented a client in a matter may not

thereafter represent another client in the same or a substantially related matter in which the interests of the former client

are materially adverse. The current matter is substantially related to the earlier matter if: (1) the current matter involves the

work the lawyer performed for the former client; or (2) there is a substantial risk that representation of the present client will

involve the use of information acquired in the course of representing the former client, unless that information has become

generally known.

o Rest. 132 Cmt. (d) – [Both side-switching and attacking own work prohibited). o Cmt. 3 -- Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal

dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been

obtained in the prior representation would materially advance the client's position in the subsequent matter.

DO NOT USE ―APPEARANCE OF IMPROPRIETY‖ EVER.

HOT POTATO RULE o Rest. 132(c) – Withdrawal not allowed if just for new client.

Premature withdrawal is a breach of fiduciary duty.


o M.R. 1.7(b)(4) – Can avoid with informed consent of each affected client.

o Cannot drop client like a hot potato where conflict exists.

o WITHOUT INFORMED CONSENT, WITHDRAWAL FROM BOTH REQUIRED. M.R. 1.16(a) and

1.7(b)(4).

o EXCEPTIONS TO RULE

(1) ―Thrust-Upon Conflicts‖ – Client creating unforeseeable conflict. Rest 132(j).

(2) ―Accommodation Clients‖ – Accommodating for transaction where the other client knew and

(implicitly) consented to lesser representation. Generally disfavored.

SUCESSIVE (MIGRATORY) REPRESENTATION

PRESUMPTIONS OF SHARED CONFIDENCES IN BOTH ENDS REBUTTABLE

Past: IRREBUTTABLE presumption of knowledge via presumptions about tainted lawyer's lack of knowledge. THIS

IS WHAT MATTERS. SILVER CHRYSLER RULE

Proof of actual knowledge suffices if presumptions insufficient.

Future: Screening before lawyer steps in door rebuts sharing presumption.

M.R. 1.9(b) -- A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a

firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially

adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is

material to the matter; unless the former client gives informed consent, confirmed in writing.

M..R. 1.9 Cmt. [2] The scope of a "matter" for purposes of this Rule depends on the facts of a particular situation or

transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly

involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that

transaction clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former

client is not precluded from later representing another client in a factually distinct problem of that type even though the

subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the

reassignment of military lawyers between defense and prosecution functions within the same military jurisdictions. The

underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly

regarded as a changing of sides in the matter in question.

VIRTUAL ANALYSIS – Method to presume the nature of confidential information one would have had. In other words,

confidences are guessed at, not actually disclosed.

CONSENTUAL SCREENING -- Always available

Informed consent must be acquired from all clients

NONCONSENTUAL SCREENING

(1) Is it allowed? Limited jurisdictions.

(2) Permitted in this case?

Rest. 124(2) – [Imputation does not apply where no substantial risk that info will not be used because] (a) any

confidential client info communicated to the personally prohibited lawyer is unlikely to be significant in the

subsequent matter; (b) the personally prohibited lawyer is subject to screening measures adequate to eliminate

participation by that lawyer in the representation; and (c) timely and adequate notice of the screening has been

provided to all affected clients.

(3) Screening timely and adequate? Generally requires screening before new lawyer gets in the door.

M.R. 1.10(b) – [Lingering Taints] When a lawyer has terminated an association with a firm, the firm is not prohibited from

thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated

lawyer and not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the

formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by

Rules 1.6 and 1.9(c) that is material to the matter.

PAST TAINTS o Rest. LGL cmt h. A lawyer with only a minor role in a prior representation. The specific tasks in which a lawyer

was engaged might make the access to confidential client information insignificant. The lawyer bears the burden of

persuasion as to that issue and as to the absence of opportunity to acquire confidential information. When such a

burden has been met, the lawyer is not precluded from proceeding adversely to the former client (see § 124,

Comment d, Illustration 3).

Rest 124 cmt c(ii). A non-personally-prohibited lawyer terminates the affiliation. When a lawyer leaves a firm or other

organization whose lawyers were subject to imputed prohibition owing to presence in the firm of another lawyer, the departed

lawyer becomes free of imputation so long as that lawyer obtained no material confidential client information relevant to the

matter. Similarly, lawyers in the new affiliation are free of imputed prohibition if they can carry the burden of persuading the

finder of fact that the arriving lawyer did not obtain confidential client information about a questioned representation by

another lawyer in the former affiliation.


PERSONAL INTEREST/BUSINESS CONFLICTS

M.R. 1.7 cmt 11 -- a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent

a client in a matter where that lawyer is representing another party, unless each client gives informed consent.

MR 1.8(a) –A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory,

security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the

interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be

reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable

opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a

writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including

whether the lawyer is representing the client in the transaction.

o NONWAVEABLE, APPLIES EVEN WITHOUT HARM

―Think cynically‖ as to possible harm

Idea that it protects against potential conflicts, not actual ones

o Includes: Security interests, involvement in corporations, etc.

o CF: MR 1.7(a)(2) -- (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the

representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: […] (2) there is a

significant risk that the representation of one or more clients will be materially limited by the lawyer's

responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

o Agency law also prohibits this sort of behavior.

o ―Stranger rule‖ – Att’y should give disclosure as if he/she was stranger to transaction o Breach of Fiduciary Duty Action – Negligence action for abuse, etc.

(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client

gives informed consent, except as permitted or required by these Rules.

(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client

an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of

the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent,

grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.

(d) [No sale of media rights], (e) [No financial assistance in connecting with pending or contemplated litigation UNLESS (1)

advancing costs (2) indigent client], (f) No compensation from one other than client UNLESS [(1) informed consent (2) no

interference with independence or professional relationship AND (3) info protected per 1.6]. (g) No aggregate settlement

without all informed consent. (h) No (1) prospective limitation of malpractice liability (2) no settlement for potential claim

without informed consent of getting other counsel. (i) Lawyer may not acquire proprietary interest except (1) may get lien (2)

may contract contingent fee. (j) No sexual relationship unless prior established. (k) A prohibition in A-I applies to all in firm.

o ALL MEMBERS OF ―ENTITY‖ BARRED FOR SEX RELATIONS

Bankruptcy Rule 2.1 – Requires impartiality to distribute to creditors

o Bankruptcy Rule 2014 – Requires disclosure of any connection

FORMER GOVERNMENT LAWYERS

M.R. 1.11 (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or

employee of the government: (1) is subject to Rule 1.9(c) [confidential info provision]; and (2) shall not otherwise represent

a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or

employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.

[MAT. ADVERSITY NOT REQUIRED]

Informed consent allowed, but most (if not all) agencies never give it.

Thus, personal taints are created but not (easily) imputed.

FOCUSES ON THE NATURE OF THE WORK. No real expectation of government loyalty.

(b) [Imputation] When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that

lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer

is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice

is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

Screening allowed as a general rule.

(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential

government information about a person acquired when the lawyer was a public officer or employee, may not represent a

private client whose interests are adverse to that person in a matter in which the information could be used to the material

disadvantage of that person. As used in this Rule, the term "confidential government information" means information that has

been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law

from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm

with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is

timely screened from any participation in the matter and is apportioned no part of the fee therefrom.


ACTUAL KNOWLEDGE requirement. No hypothesis.

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) is

subject to Rules 1.7 and 1.9 [not 1.8]; and (2) shall not: (i) participate in a matter in which the lawyer participated personally

and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives

its informed consent, confirmed in writing; or (ii) negotiate for private employment with any person who is involved as a

party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer

serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted

by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).

(e) As used in this Rule, the term "matter" includes: (1) any judicial or other proceeding, application, request for a ruling or

other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving

a specific party or parties, and (2) any other matter covered by the conflict of interest rules of the appropriate government

agency.

Same parties in some non-recurring event

Characteristics

Broader: No material adversity requirement, ―confidential government info‖ protected, ANY employee

Narrower: Limited to personal and substantial participation,

Requirements

(1) Agency Consent

REGARDLESS OF WHETHER OR NOT SIDE SWITCHING OCCURRED

(2) Same Matter

Same case vs. Lacking discrete, identifiable transaction or conduct

(3) Personal and Substantial Participation

FRCP 11 could govern here if papers signed, etc.

M.R. 5.1(b) -- A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

More than being head of agency.

PROSPECTIVE CLIENTS

M.R. 1.18 (a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a

matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use

or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former

client.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective

client in the same or a substantially related matter if the lawyer received information from the prospective client that could be

significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from

representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or

continue representation in such a matter, except as provided in paragraph (d).

(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.

CONSENTABILITY AND WAIVER

Allowed, but not favored.

M.R. 1.7 cmt 22 – Accept advance waivers, but client must give informed consent + ―reasonably understand[] the material risks that the waiver entails‖

Rest LGL 122 Cmt d – Accept advance waivers given , req informed consent o M.R. 1.0(e) -- "Informed consent" denotes the agreement by a person to a proposed course of conduct after

the lawyer has communicated adequate information and explanation about the material risks of and reasonably

available alternatives to the proposed course of conduct. Written confirmation required (as in confirmation of agreement) but contracting possibly safer.

o STRANGER RULE – Must be disclosed and info given like the lawyer was a stranger to the transaction.

o Factors of informed consent: Level of detail involving the type of conflicts, sophistication of the client and familiarity with the type of conflict being waived, continuity of the lawyer-client relationship, whether the


consent is limited to future conflicts unrelated to the subject of the representation, and whether the client is independently represented.

ALL INFO disclosed in a way UNDERSTANDABLE BY CLIENT

BUT MAY REQUIRE DISCLOSURE OF OTHER CLIENT’S INFO. Will result in a catch-22 that is nearly impossible to beat.

o Rest. LGL 122 com. c(i) - In a multiple-client situation [for informed consent], the information normally should

address the interests of the lawyer and other client giving rise to the conflict; contingent, optional, and tactical

considerations and alternative courses of action that would be foreclosed or made less readily available by the

conflict; the effect of the representation or the process of obtaining other clients' informed consent upon confidential

information of the client; any material reservations that a disinterested lawyer might reasonably harbor about the

arrangement if such a lawyer were representing only the client being advised; and the consequences and effects of a

future withdrawal of consent by any client, including, if relevant, the fact that the lawyer would withdraw from

representing all clients (see § 121, Comment e). Where the conflict arises solely because a proposed representation

will be adverse to an existing client in an unrelated matter, knowledge of the general nature and scope of the work

being performed for each client normally suffices to enable the clients to decide whether or not to consent.

―Open Ended‖ waivers generally barred. M.R. 1.7, &c.

Changed circumstances allow revocation. M.R. 1.7 Cmt 21, Rest 122 Cmt f.

Withdrawal of Consent hinges on whether the revocation was justified. Rest 122 cmt f

NONCONSENTABILITY

o (1) PROHIBITED BY EXTERNAL LAW. M.R. 1.7(b)(2).

o (2) CLIENT VERSUS CLIENT IN SAME LITIGATION. M.R. 1.7(b)(3).

o (3) REASONABLE LAWYER WOULD BELIEVE IT IMPOSSIBLE TO PROVIDE COMPENTENT

REPUTATION. M.R. 1.7(b)(1).

IMPUTATION AND SCREENING

IRREBUTTABLE GENERAL PRESUMPTION OF SHARED CONFIDENCES WHERE LAWYERS STAY PUT

M.R. 1.10(a) [GENERAL IMPUTATION] While lawyers are associated in a firm, none of them shall knowingly represent

a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless (1) the

prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially

limiting the representation of the client by the remaining lawyers in the firm; or (2) the prohibition is based upon Rule 1.9(a)

or (b) and arises out of the disqualified lawyer’s association with a prior firm, and (i) the disqualified lawyer is timely

screened from any participation in the matter and is apportioned no part of the fee therefrom; (ii) written notice is promptly

given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which

shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's

compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to

respond promptly to any written inquiries or objections by the former client about the screening procedures; and (iii)

certifications of compliance with these Rules and with the screening procedures are provided to the former client by the

screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon

termination of the screening procedures.

o Screening only works for migratory lawyers and only when permitted. (1) Permitted? In jurisdiction. MR 1.10 generally allows.

(2) Permitted in case? Rest. 124(2)(a) -- any confidential client information communicated to the personally prohibited lawyer is unlikely to be significant in the subsequent matter;

(3) Screening timely and adequate? 124(2)(b) -- the personally prohibited lawyer is subject to

screening measures adequate to eliminate participation by that lawyer in the representation; and

CIRCUMSTANCES – Size of firm, nature of rep, etc.

NATURE – Speed, nature of silence, etc.

Prejudice to the client a factor, given the equitable nature of remedy. Can’t DQ a lawyer that will

seriously harm client (ex: small areas, etc).

o ―Cone of Silence‖ proper to screen lawyer THAT MOVES FROM ANOTHER FIRM.

Factors: Size of firm, physical characteristics of screening and timing, nature of prior involvement, etc.

M.R. 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.

M.R. 1.0 Cmt. [9] -- The purpose of screening is to assure the affected parties that confidential

information known by the personally disqualified lawyer remains protected. The personally

disqualified lawyer should acknowledge the obligation not to communicate with any of the other

lawyers in the firm with respect to the matter. Similarly, other lawyers in the firm who are working


on the matter should be informed that the screening is in place and that they may not communicate

with the personally disqualified lawyer with respect to the matter. Additional screening measures

that are appropriate for the particular matter will depend on the circumstances. To implement,

reinforce and remind all affected lawyers of the presence of the screening, it may be appropriate

for the firm to undertake such procedures as a written undertaking by the screened lawyer to avoid

any communication with other firm personnel and any contact with any firm files or other

materials relating to the matter, written notice and instructions to all other firm personnel

forbidding any communication with the screened lawyer relating to the matter, denial of access by

the screened lawyer to firm files or other materials relating to the matter and periodic reminders of

the screen to the screened lawyer and all other firm personnel.

M.R. 1.0 Cmt. [10] -- In order to be effective, screening measures must be implemented as soon as

practical after a lawyer or law firm knows or reasonably should know that there is a need for

screening.

Merging Law Firms – All current clients of each firm become current clients within the new firm. Courts

generally refuse to allow firm to dump certain clients who do not consent to a conflict.

Non-lawyers – Usually must be screened from personal participation where they would be barred as a

lawyer. M.R 1.10 Cmt [4].

Rest. 124(2) Factors – (1) Value of info as proof or for tactical purposes is peripheral or tenuous, (2)

Whether the info in most material respects is now publicly known, (3) Whether the info was of temporary

significance, (4) the scope of the second representation, (5) the duration and degree of the personally

prohibited lawyer in the former representation.

M.R. 1.10 -- (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of

them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless (1) the prohibition is based on a personal

interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client

by the remaining lawyers in the firm; or (2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified

lawyer’s association with a prior firm, and (i) the disqualified lawyer is timely screened from any participation in the matter

and is apportioned no part of the fee therefrom; (ii) written notice is promptly given to any affected former client to enable

the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening

procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; a statement that

review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or

objections by the former client about the screening procedures; and (iii) certifications of compliance with these Rules and

with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at

reasonable intervals upon the former client's written request and upon termination of the screening procedures.

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person

with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently

represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated

lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that

is material to the matter. (c) A disqualification prescribed by this rule may be waived by the affected client under the

conditions stated in Rule 1.7. (d) The disqualification of lawyers associated in a firm with former or current government

lawyers is governed by Rule 1.11.

Positional Conflict – Contrary positions in different litigation. o Rest. LGL 128 cmt f -- Allowed unless there is a significant risk that a lawyer’s action on the behalf of one client

will materially limit the lawyer’s effectiveness in the other

o Aggregate Settlement – Question of abuse where lawyer reps class action, etc.

CURING

Hot Potato Doctrine – Can’t just drop new client like a hot potato to appease old [generally more lucrative] client. o Rest. LGL 132 -- Unless both the affected present and former clients consent to the representation under the

limitations and conditions provided in § 122, a lawyer who has represented a client in a matter may not thereafter

represent another client in the same or a substantially related matter in which the interests of the former client are

materially adverse. The current matter is substantially related to the earlier matter if: (1) the current matter involves

the work the lawyer performed for the former client; or (2) there is a substantial risk that representation of the

present client will involve the use of information acquired in the course of representing the former client, unless that

information has become generally known.

o MR 1.7 cmt 29 – More vague, indicates antagonism bad result.

Thrust-Upon Conflict -- Where

PROCEDURE OF DOCTRINE

[Delay] Abuse – Court may use doctrines like laches, etc to prevent abuse


Standing to Raise Conflict – Nowadays likely limited to where complainant has ―personal stake‖ in the issue or a ―concrete‖ or ―particularized‖ interest.

Appealability – Most courts hold no immediate appeal. States somewhat more willing to allow appeal.

Ex: Where Kirkland & Ellis helped out the API and subsequently worked against a member of the API on a claim, representation

barred. Westinghouse Elec. Corp. v. Kerr-McGee Corp. Conflict found where group litigating against state on two prison issues

intentionally did not settle on one to the benefit of another client. Ficandia. Lawyer imprisoned for making false statements to

bankruptcy court about conflicts issue. US v. Gellene. Possibility of conflict insufficient to impugn representation, actual conflict must

be proven. Cuyler v. Sullivan. Appearance of impropriety prevented representation for former joint lawyer, but this appearance did not

impute to another lawyer in same office. Brennan’s. Migratory lawyer who worked on case as an associate did not impute

disqualification to whole firm, but cone of silence necessary. Nemours Foundation v. Gilbane. Side-switching lawyer that used to be

the lead counsel on other side imputed taint to entire firm. Consent of one party irrelevant, joint defense agreement with other

defendants created series of implied att’y-cl relationships that had to ALL be waived. In re Gabapenten. | Former SEC counsel

working for client was barred because he lacked consent from SEC. SIPC v. Vigman.


DUTIES TO THE COURT GENERAL PROHIBITIONS

3.3(a) Candor to Tribunal

3.4(b) Convincing or Assisting Witness to Testify falsely

3.4(e) Advancing Irrelevant Matters

4.4(a) Embarrass, Delay, or Burden a third person

8.4(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

8.4(d) Engage in conduct that is prejudicial to the administration of justice

EFFECTIVE ASSISTANCE OF COUNSEL

Sixth Amendment requirement that a client is provided effective assistance

Strickland: o (1) Serious Attorney Error. Question of whether or not attorney’s conduct was ―reasonably effective‖. Does

not directly coincide with model rules, but they are helpful. No strict standard. o (2) Prejudice. Must be proven, usually with verdict against client. Conflicts of interest create instant prejudice.

Question of reasonable doubt of guilt

o Before: Undefined generally, though appointment required by Powell and extended to every felony case by Gideon

v. Wainwright, and McMann required performance ―within the range of competence demanded of attorneys in

criminal cases‖

Ex: Lawyer’s failure to raise some character issues within the bounds of acceptability though questionable, and in any event

no prejudice found. Strickland.

CLIENT PERJURY

Generally

o Prospective: Don’t provide false evidence or allow client to provide false evidence.

Procedure: Remonstrate client, then possibly inform tribunal (―secret knock‖).

o Retrospective: Remedial measures for false after-the-fact

MRPC 3.3 –

o (a) A lawyer shall not [actually] knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a

false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the

tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of

the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer,

the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of

its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A

lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer

reasonably believes is false.

o (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is

engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial

measures, including, if necessary, disclosure to the tribunal.

o (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if

compliance requires disclosure of information otherwise protected by Rule 1.6 [confidences]

o (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will

enable the tribunal to make an informed decision, whether or not the facts are adverse.

o Fixing/Remonstration

Cmt. [6]. If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false

evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the

persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the

false evidence. If only a portion of a witness's testimony will be false, the lawyer may call the witness to

testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is

false.

Cmt. [10] Having offered material evidence in the belief that it was true, a lawyer may subsequently come

to know that the evidence is false. [...] In such situations or if the lawyer knows of the falsity of testimony

elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such

situations, the advocate's proper course is to remonstrate with the client confidentially, advise the client of

the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the withdrawal

or correction of the false statements or evidence. If that fails, the advocate must take further remedial

action. [...]

Hierarchy: Remonstration -> Informing Tribunal

o Cmt. [13] A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to


be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation.

A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been

affirmed on appeal or the time for review has passed.

DUTIES TO THE COURT CAN TRUMP DUTIES TO CLIENT.

o But could possibly apply to pre-trial discovery.

Liabilities

o Civil/Criminal Fraud. For lying to third party for fraudulent transactions.

o Negligent Misrepresentation – Acting carelessly with representations

Ex: EPA’s knowledge of lies of witness who made admin record and who was in charge of entire cleanup, where the EPA

never disclosed to the court, resulted in forced dismissal of entire case. US v. Shaffer Equipment Co.

PERJURY IN CRIMINAL CASES

Client Entitlements: Take the stand, self-representation, right against self-incrimination, effective assistance of counsel,

presumption of innocence, proof beyond reasonable doubt.

Three Cs conflicting: Competence, Confidentiality, and Candor.

o Friedman argues that the potential for client perjury requires something here to give, as all are connected

o Something like conflicts of interest with a single client.

Lawyers cannot and should not support clients who perjure themselves

o Narrative Method – Asking witness to testify their own story, asking no questions (and thus not facilitating).

LIMITED JURISDICTIONS

o NO ENTITLEMENT TO CAPRICIOUSNESS. No right to raise bad defenses, etc.

Ex: Sixth Amendment standard of effective assistance met where lawyer refused to allow client to lie on stand, though court

emphasizes that Model Rules do not govern sixth amendment jurisprudence. Nix v. Whiteside.

HANDLING OF EVIDENCE

Generally

o Focus on lawyer not interfering with pristine, lawyerless world. D cannot put prosecutors and LEO in worse

position.

Perjury issue still looms.

o Possession of evidence requires disclosure and turnover.

―Possession‖ generally intent to control dominion over, but fact-bound

Temporary testing without disturbing evidence OK, but likely requires disclosure, BLACK LETTER

REQUIRES TURNOVER AND MOST JURISDICTIONS DO

Hinges on whether or not evidence is changed

o ―Items‖ v. ―Evidence‖ Items aren’t evidence, and thus can be changed/destroyed/etc. Inc. drugs.

Destruction of evidence requires mens rea. Post-crime communications can be limited, don’t make prosecution worse off.

Written documents generally evidence, hinge on other non-5th Am. Rules to prevent

General idea: Unless inherently testimonial, written stuff just evidence.

o Non-possession creates no duties

But accessorial liability possible if lawyer helps hide or screw up evidence.

Non-disclosure does not further a crime.

o Other party cannot subpoena re: evidence unless given by a third party OR to establish chain of custody

MRPC 3.4 -- A lawyer shall not:

o (a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document

or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any

such act.

o (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is

prohibited by law;

o (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion

that no valid obligation exists;

o (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply

with a legally proper discovery request by an opposing party;

o (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be

supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness,

or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant

or the guilt or innocence of an accused; or

o (f) request a person other than a client to refrain from voluntarily giving relevant information to another


party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably

believes that the person's interests will not be adversely affected by refraining from giving such information.

Rest. 119 -- With respect to physical evidence of a client crime, a lawyer:

o (1) may, when reasonably necessary for purposes of the representation, take possession of the evidence and retain

it for the time reasonably necessary to examine it and subject it to tests that do not alter or destroy material

characteristics of the evidence; but

o (2) following possession under Subsection (1), the lawyer must notify prosecuting authorities of the lawyer's

possession of the evidence or turn the evidence over to them.

Some evidence can be withheld. Client confession letters to lawyer, etc.

Belge case – Lawyers can examine bodies and generally make a map without disclosing pending no disturbance of evidence.

Ex: Lawyers should have turned over info about rifle stock hidden by client but turned over to lawyers, however, no

punishment given overbroadness of statute. Commonwealth v. Stenhach.

ABUSIVE LITIGATION CONDUCT

Issue: Zealous Rep v. Tribunal Duties. Always here, except trumping in 1.2(d), 1.6(b), 3.3

M.R. 3.1 -- A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in

law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or

reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could

result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

M.R. 3.2 -- A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

M.R. 3.5 - A lawyer shall not:

o (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;

o (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court

order;

o (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is

prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the

communication involves misrepresentation, coercion, duress or harassment; or

o (d) engage in conduct intended to disrupt a tribunal.

M.R. 3.6 -- The prosecutor in a criminal case shall:

o (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

o (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for

obtaining, counsel and has been given reasonable opportunity to obtain counsel;

o (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a

preliminary hearing;

o (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate

the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to

the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved

of this responsibility by a protective order of the tribunal;

o (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present

client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any

applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or

prosecution; and (3) there is no other feasible alternative to obtain the information;

o (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action

and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a

substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent

investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a

criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under

Rule 3.6 or this Rule.

o (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a

convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1)

promptly disclose that evidence to an appropriate court or authority, and (2) if the convict ion was obtained in the

prosecutor’s jurisdiction, (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii)

undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the

defendant was convicted of an offense that the defendant did not commit.

o (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s

jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the

conviction.

M.R. 3.7 – o (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1)

the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services


rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.

o (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as

a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

This is because 3.7 prevents confusion, no real conflicts problem.

M.R. 4.4 -- (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass,

delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. (b) A

lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know

that the document was inadvertently sent shall promptly notify the sender.

FR App. 38 – No frivolous appeals.

o Anders brief – Brief when party withdraws instead of filing inappropriate appeal that lists out possible reasons for

appeal.

FRCP 11

o (a) Signature. […]

o (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper — whether

by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of

the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or

needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous

argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have

evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are

reasonably based on belief or a lack of information.

POSSIBLE AMENDMENT: Removing grace period, making harsher

Can apply to whole firm and specific contentions. Avoids scapegoating, hiding.

o (c) Sanctions. [30-day safe harbor AFTER objection raised]

Frivolity – Generalized prohibition on frivolous conduct,

o (1) Judicially imposed sanctions can be levied where needed

All sanctions can be levied against lawyers directly.

Bad faith conduct (anything) punishable.

o (2) Tort remedies against infringing lawyers, such as punishing for wrongful claims

o (3) 28 USC 1927 – Unnecessarily ―multiplying‖ proceedings

―Bleak House‖ problem – Motions on motions on motions

Ex: Substantial likelihood of material prejudice under prosecutor limitations an appropriate time, place, and manner

restriction on First Amendment. Gentile v. State Bar of Nevada

WITNESS PREP

Slotting witness into testimony/crafting story v. Helping Remember/Explain

Impeaching Legit Witnesses

o Monroe Freedman: Duty to make a truthful witness appear to be lying for client

o Harry Subin: Improper for an attorney to imply truth-telling witness is lying.

o ―Anatomy of A Murder‖ Lecture – Lecture outlining law and indicating what W should say


COMMUNICATIONS WITH THIRD PARTIES

COMMUNICATIONS

M.R. 4.2 -- In representing a client, a lawyer shall not communicate about the subject of the representation with a person the

lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or

is authorized to do so by law or a court order.

o Comment [4] -- This Rule does not prohibit communication with a represented person, or an employee or agent of

such a person, concerning matters outside the representation. […] Nor does this Rule preclude communication with

a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A

lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a).

Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client

concerning a communication that the client is legally entitled to make. Also, a lawyer having independent

justification or legal authorization for communicating with a represented person is permitted to do so.

o Comment [7] In the case of a represented organization, this Rule prohibits communications with a constituent of the

organization who supervises, directs or regularly consults with the organization’s lawyer concerning the

matter or has authority to obligate the organization with respect to the matter or whose act or omission in

connection with the matter may be imputed to the organization for purposes of civil or criminal liability.

Consent of the organization’s lawyer is not required for communication with a former constituent. If a constituent of

the organization is represented in the matter by his or her own counsel, the consent by that counsel to a

communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f). In communicating with a current

or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal

rights of the organization.

Contrast Rest. 100(2) -- a current employee or other agent of an organization represented by a lawyer: (a)

if the employee or other agent supervises, directs, or regularly consults with the lawyer concerning the

matter or if the agent has power to compromise or settle the matter; (b) if the acts or omissions of the

employee or other agent may be imputed to the organization for purposes of civil or criminal liability in

the matter; or (c) if a statement of the employee or other agent, under applicable rules of evidence, would

have the effect of binding the organization with respect to proof of the matter.

Three issues protected: (1) Sewing mistrust, (2) Dumb settlements, and (3) Admissions AI

Contrasted with informal discovery, which is somewhat encouraged.

―Admissions‖ = Admissions against authorized agents like in hearsay, so basically corporate control group

per Messing

o CORE QUESTION: Is L trying to circumvent 4.2 to elicit uninformed decisions or the like?

o NOT WAVABLE BY CLIENT, BUT BY ATTORNEY.

Focus on the integrity of the lawyer-client relationship

o CAN ADVISE CLIENT TO TALK TO OTHERS PER NEW DECISION Limited generally. Can even script, but using client as mechanism probably bad.

No: Enforceable obligations, disclosure of confidences, admissions against interest, to be pulled from other

party via client

M.R. 4.3 -- In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or

imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person

misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The

lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or

reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the

interests of the client.

M.R. 3.6 -- Trial Publicity

o (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an

extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public

communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the

matter.

o (b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involved and, except when

prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an

investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for

assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior

of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an

individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the

identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended,

information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the

identity of investigating and arresting officers or agencies and the length of the investigation.

o (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is


required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer

or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is

necessary to mitigate the recent adverse publicity.

o (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a

statement prohibited by paragraph (a).

Application to Prosecutors o Generally: Prosecutors different than other lawyers. Elected, ministers of the state, etc.

Monitoring methods: (1) Investigatory misconduct charges [difficult to prove], (2) 6th Amendment

strictures [difficult to apply], (3) Misconduct charges generally [inc. various model rules provisions], (4)

Grand juries [crap], (5) Disclosure provisions

o Rule 3.8 -- Special Responsibilities Of A Prosecutor. The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the

procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the

right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that

tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing,

disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor,

except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

Brady – Right to evidence. Can be waived, unlike 3.8(d), but limited to evidence pertaining to guilt

or punishment, limited scope.

―Info‖, not evidence, so almost any information

―Tends to negate‖ broader than exculpatory, so wide breadth

o Includes impeachment evidence.

―Timely disclosure‖ = prior to plea bargaining. Contrast with previous rules where prosecutors

could hold back

NO IMPUTATION FROM COPS->PROS IN MODEL RULES, BUT IN OTHER RULES

CANNOT BE WAIVED

(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a

past or present client unless the prosecutor reasonably believes: (1) the information sought is not

protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful

completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to

obtain the information;

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's

action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments

that have a substantial likelihood of heightening public condemnation of the accused and exercise

reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting

or associated with the prosecutor in a criminal case from making an extrajudicial statement that the

prosecutor would be prohibited from making under Rule 3.6 or this Rule.

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a

convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was

obtained in the prosecutor’s jurisdiction, (i) promptly disclose that evidence to the defendant unless a court

authorizes delay, and (ii) undertake further investigation, or make reasonable efforts to cause an

investigation, to determine whether the defendant was convicted of an offense that the defendant did not

commit.

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the

prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the

prosecutor shall seek to remedy the conviction.

o 4.2 Cmt. [5] -- Communications authorized by law may include communications by a lawyer on behalf of a client

who is exercising a constitutional or other legal right to communicate with the government. Communications

authorized by law may also include investigative activities of lawyers representing governmental entities,

directly or through investigative agents, prior to the commencement of criminal or civil enforcement

proceedings. When communicating with the accused in a criminal matter, a government lawyer must comply with

this Rule in addition to honoring the constitutional rights of the accused. The fact that a communication does not

violate a state or federal constitutional right is insufficient to establish that the communication is permissible under

this Rule.

Pre-indictment contacts generally not subject to rule, but probably not good idea.

Hinges on authorization per 6th

Amendment


Generally admissible unless the situation was highly pressurized and falsified, such as in

Hammad where the pros used a fake subpoena

Post-indictment contacts with D’s consent generally prohibited, but

Ex: In accord with Comment 7 of 4.2, a lawyer cannot get in contact with someone in a supervisory role of a represented

entity, but non-supervisory non-important people can be contacted. Messing, Rudavsky, & Weliky, PC v. Harvard.


COMPETENCE

GENERALLY

M.R. 1.1 -- A lawyer shall provide competent representation to a client. Competent representation requires the legal

knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

o Cmt 1 – Competence generally requires that of the general practitioner, but sometimes it may require more than that,

like that of a specialist

o Cmt 2 – Novice can study up to be competent

M.R. 1.4

o (a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed

consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be

accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that

the client expects assistance not permitted by the Rules of Professional Conduct or other law.

o (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed

decisions regarding the representation.

Patrolling Methods o PRIVITY REQUIRED. Except for limited third party exceptions, privity acts as a general barrier.

Exceptions

Prospective Clients (15(1)(c) [fewer duties apply])

Invited Reliance (51(2), Greycas)

3d Party Beneficiaries (51(3), Lucas v. Hamm)

Aiding and Abetting Fraud (Fassihi, Murphy & Demory)

o Peer Review – Other lawyers scrutinizing. Can be formalized (clinic-like format) or normal/informal.

o Malpractice – Rarer than preferable, but used.

NEGLIGENCE

Rest. LGL 16(2) -- act with reasonable competence and diligence;

Duty to client, more than just contract, Breach of duty where ordinary skill, competence, etc not

performed (―Does X have a duty to _____‖), Causation difficult to prove but generally requires

some connection to Harm, which generally must be legally cognizable.

o Pleading key here, given variability of state definitions.

Common: Failure to recognize claim or defense, failure to prepare for trial, bad prep of

documents, etc.

BREACH OF FIDUCIARY DUTY

Rest. LGL 16(3) -- comply with obligations concerning the client's confidences and property,

avoid impermissible conflicting interests, deal honestly with the client, and not employ

advantages arising from the client-lawyer relationship in a manner adverse to the client; and

BREACH OF CONTRACT

Rest. LGL 16(4) -- fulfill valid contractual obligations to the client.

Ex: Failure to identify that retirement funds were potential community property was malpractice, esp where legal issue was

largely decided. Smith. Signing document promising that farm machinery was free of UCC liens and the like was knowingly

false, induced third party lender to lend to brother-in-law, malpractice and both negligent and fraudulent misrep. Greycas v.

Proud.

IMPUTATION OF RULES M.R. 8.4 -- Misconduct. It is professional misconduct for a lawyer to:

o (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do

so through the acts of another;

o (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in

other respects;

o (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

o (d) engage in conduct that is prejudicial to the administration of justice;

o (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means

that violate the Rules of Professional Conduct or other law; or


o (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or

other law.

M.R. 5.2 -- Responsibilities Of A Subordinate Lawyer

o (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the

direction of another person.

o (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance

with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

M.R. 5.3 -- Responsibilities Regarding Nonlawyer Assistants. With respect to a nonlawyer employed or retained by or

associated with a lawyer:

o (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial

authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving

reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

o (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that

the person's conduct is compatible with the professional obligations of the lawyer; and

o (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of

Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific

conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the

law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the

conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.


ADVERTISING

Advertising – Generic spread – Solicitation – Specific Targeting

Central Hudson: (1) Expression concerns lawful activity? (2) Government interest substantial? (3) Regulation directly

(materially) advancing government interest/ (4) More extensive than necessary?

Rule 7.1 - Communications Concerning A Lawyer's Services - A lawyer shall not make a false or misleading

communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material

misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially

misleading. Rule 7.2 Advertising

o (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or

electronic communication, including public media.

o (b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a

lawyer may

(1) pay the reasonable costs of advertisements or communications permitted by this Rule;

(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A

qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate

regulatory authority;

(3) pay for a law practice in accordance with Rule 1.17; and

(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise

prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if

(i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and

nature of the agreement. o (c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or

law firm responsible for its content. Rule 7.3 Direct Contact With Prospective Clients

o (a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment

from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless

the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the

lawyer.

o (b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic

communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by

paragraph (a), if: (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer;

or (2) the solicitation involves coercion, duress or harassment.

o (c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a

prospective client known to be in need of legal services in a particular matter shall include the words "Advertising

Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic

communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).

o (d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service

plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to

solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a

particular matter covered by the plan. Rule 7.4 Communication of Fields of Practice and Specialization

o (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.

o (b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the

designation "Patent Attorney" or a substantially similar designation.

o (c) A lawyer engaged in Admiralty practice may use the designation "Admiralty," "Proctor in Admiralty" or a

substantially similar designation.

o (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless: (1) the

lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority

or that has been accredited by the American Bar Association; and (2) the name of the certifying organization is

clearly identified in the communication. Rule 7.5 Firm Names And Letterheads

o (a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade

name may be used by a lawyer in private practice if it does not imply a connection with a government agency or

with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.

o (b) A law firm with offices in more than one jurisdiction may use the same name or other professional designation in

each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations

on those not licensed to practice in the jurisdiction where the office is located.


o (c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications

on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.

o (d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

UPL/MJP/BAR ADMISSION

UNAUTHORIZED PRACTICE OF LAW

Prohibited where law is tailored to fact or otherwise specialized to specific needs o Wide variety of definitions. Can include selection of forms, use of informed judgment, modifying a form, even the

librarian situation. Factors include discretion, judgment, law to fact. Alt idea: connection to attorney-client

relationship.

o AUTHORIZATION trumps. Representing self is always allowed, maybe same for close family.

o First Amendment usually raised, but rarely works, as the regulations typically involve activity with consequences.

Ex: Quicken Family Lawyer, by advising and providing pre-made documents for a number of different needs, constituted the

unauthorized practice of law. Parsons Technology. Woman prevented from helping people with cheap and amicable no-fault

divorces. Florida Bar v. Brumbaugh. Law firm’s arbitration and negotiations involving California somehow constituted the

unauthorized practice of law in Cali. Birbrower, Montalbano, Condon & Frank v. Superior Court.

MULTIJURISDICTIONAL PRACTICE

M.R. 5.5 -- Unauthorized Practice Of Law; Multijurisdictional Practice Of Law

o (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that

jurisdiction, or assist another in doing so.

o (b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules

or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of

law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this

jurisdiction.

o (c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any

jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: (1) [Association] are

undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates

in the matter; (2) [Pro hac vice] are in or reasonably related to a pending or potential proceeding before a tribunal in

this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear

in such proceeding or reasonably expects to be so authorized; (3) are 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 the lawyer’s practice in a jurisdiction in which the lawyer is

admitted to practice and are not services for which the forum requires pro hac vice admission; or (4) [Catch-all] 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.

Associated lawyer from jurisdiction must be more than a bag boy

o (d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any

jurisdiction, may provide legal services in this jurisdiction that: (1) are provided to the lawyer’s employer or its

organizational affiliates and are not services for which the forum requires pro hac vice admission; or (2) are

services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

BAR ADMISSION

Requirements

o (1) Completion of curriculum at ABA-accredited law school

Wide latitude. Lots of issues.

o (2) Passing the Bar

Complaints. Considered confining.

o (3) Good Character

VERY controversial. No definition, high variability.

Generally, criminal records count.

Must be germane, i.e. related somehow to the practice of law.

Typical grounds: (1) Dishonesty or moral turpitude, (2) Patterns of offenses, (3) Academic Dishonesty, (4)

Neglect of Financial Responsibilities, (5) Misuse of Legal Processes, (6) OMISSIONS (No ―Clintonian‖

answers). [7] Maybe mental illness.

Ex: Member of church and organization against blacks and jews considered unfit. In re Hale. Highly controversial member

of law school who continually personally attacked enemies and staff unfit. Converse

the law governing lawyers - 1 of 34 © kirk sigmon may not...

Documents