Problem: Joe Salesman is a great salesperson at Joint Medical.

Joint
Medical lays Joe off, despite his great sales numbers. Believing he lost
his job because of discrimination, Joe hires Rodger Law Firm to
represent him in his suit. Joe settles with Joint Medical for $1 million.
Once he receives his settlement check, Rich, one of the partners at
Rodger Law approaches Joe about a business deal. Rich knows of a
local company, Mom-&-Pop Sandwiches, that produces sandwiches sold
at local gas stations. The company has gotten too big for the current
owners and they are hoping to sell. Joe looks at the books and is
satisfied that the company is profitable. Joe purchases the company
with his lawsuit settlement.
Little did Joe know, Rich is part owner of a local chain of gas stations,
many of which purchase Mom-&-Pop Sandwiches. Soon after Joe
becomes owner of Mom-&-Pops, Rich stops using Mom-&-Pop to stock
his gas stations with sandwiches.
Upset and close to bankruptcy, Joe approaches a number of law firms
about representing him in a suit against Rodger Law. Joe has to go 40
miles outside of town that will even represent him in a suit against
Rodger Law. Craig, Joes new attorney, agrees to represent Joe. Craig
and Joe contact Rodger Law and the three agree to settle their claim
for $1.5 million as long as Joe does not turn Rodger Law into the Bar
Association. Discuss any ethical breaches you see.
Rich approaching Joe about buying Mom-&-Pop Sandwiches
Model Rule 1.7, the general rule for conflicts of interest, holds that a lawyer
must not represent a client if the representation of that client will be directly
adverse to the interests of another client unless:i) the lawyer reasonably
believes that his representation will not adversely affect the relationship with
the other client; andii) each client consents after consultation. Here, Rich
violated 1.7 when he approached Joe about buying a Sandwich shop in which
he had an interest. Although Rich did not have a direct conflict of interest
because Rich did not, for example, supply the Sandwich shop with products,
Rich should have foreseen a potential conflict since a business he owned
worked directly with a business he was selling to a previous client. By not
recognizing the potential for a conflict, Rich violated 1.7(b). Once he
recognized a potential conflict, Rich should not have even mentioned the
business transaction. 1.8 expressly prohibits doing business with clients.
Even if Rich recognized the conflict but concluded that he could still
participate in the transaction with Joe, Rich still violated 1.7(b) by not
obtaining informed consent, confirmed in writing. Therefore, Rich failed 1.7
by i) not recognizing the potential adverse affect on he and Joes relationship
and ii) but failing to obtain client consent.
1.8(a) prohibits business transactions between a lawyer and a client unless
the lawyer complies with specific conditions designed to protect the client.

Here, since Rich did not explicitly do a business deal with Joe, because as
stated above, Rich was not a direct supplier for Mom-&-Pop, so Rich would
probably conclude that 1.8(a) does not apply to him. Read broadly, however,
1.8(a) could certainly apply to Rich, especially if he planned to discontinue
doing business with Mom-&-Pop before the sale to Joe was completed. A
prudent lawyer, unlike Rich, would probably read the rule more broadly just to
be safe. If the bar association agrees that 1.8(a) applies to this situation,
which they very well could, the bar association will apply the provisions of
1.8(a). According to 1.8(a)(1), Rich should have ensured the transaction was
objectively fair and reasonable to the client. Of course Rich would argue that
the sale was fair to Joe and he allowed Joe to review the book of the sandwich
shop, gave him time to think the sale over, etc. Such conduct satisfies 1.8(a)
(1)s requirement that the terms of the contract be fully disclosed. Although
Rich failed to disclose his own personal business interest in the company, he
otherwise made the terms very clear. As in 1.7, Rich failed to meet 1.8(a)(2)
and (3) because Rich did not advise Joe in writing to have a neutral 3 rd party
lawyer to review the terms of the sale. Of course, if Rich did not think the
fact that he owned a purchaser of Mom-&-Pop was relevant, then Rich would
not have thought 1.8(a)(2) even applied to him. Nevertheless, he should
have disclosed in writing that Joe should consult outside counsel. Finally, Rich
1.8(a)(3) did not disclose his own role in the transaction. It is unclear from
the facts whether Rich represented the original owners of Mom-&-Pops, but
he did not disclose his own interest in the transaction.
Rich may have also violated 1.8(b) because he potentially used his
representation of Joe in his first law suit to Joes disadvantage. Rich knew Joe
had just received a large settlement and probably knew that Joe was the type
of person to buy an established company. Rich arguably used this special
knowledge to his benefit and to Joes disadvantage because he ultimately was
part of the reason for Mom-&-Pops downfall.
It should also be noted that 1.10 would prevent anyone from Rodger Law to
do business with Joe because 1.10 imputes the conflicts of one lawyer to all
associates in the firm.

Law firms not representing Joe

The law firms who refused to represent Joe may have violated 1.2(b)
which makes clear that a lawyer who represents a client does not
necessarily agree or endorece his clients views. An in the Sofaer case,
just because Sofaer represented Gadhafi did not mean Sofaer agreed
with or endorsed Gadhafis anti-American views. Likewise, here, just
because a law firm sues another law firm does not mean that the firms
are adverse or that all associates within the respectively firms are
enemies. On the other hand, comment 1 of 1.16 states that a lawyer
should not accept representation in a matter unless it can be
performed competently and to completion. Perhaps the other local law
firms shared a sense of solidarity with Rodger Law because they see
Rodger lawyers in court often and fear suing Rodger will harm future

interactions. When viewed in this way, these law firms are looking out
for their own current clients and protecting their duty of loyalty to their
own clients. I do not believe a court would find these firms violated the
rules unless the court concludes the firms declined to represent Joe for
another prohibited reason.
Settlement discussions
Craig perhaps has the most unclear ethical choice to make in this fact
pattern. On one hand Craig has a duty to the bar association under 8.3
to report Rodger Laws lawyer for unethical conduct. On the other
hand, Craig has a duty to his client to obtain the best settlement that
he can under 1.3. The issue for Craig is that disclosing the information
to the bar could disrupt or hinder Joes settlement with Rodger Law. It
seems unlikely that Rodger would settle for as high an amount without
a guarantee that Joe and Craig would not turn the firm into the bar. On
the other hand, 8.3 excepts information that would violate a lawyers
duty of confidentiality. Since the rule specifically exempts one rule, it
can be inferred that 8.3 should override all other rules. Ultimately,

Licensing of attorneys and other preliminary matters

As a preliminary matter, licensing of attorneys is governed by the individual states.
However, being licensed by one state does not allow you to practice in other states, nor does it
permit you automatically to practice before federal courts or federal agencies.
Bar Admission
Must you disclose juvenile records? Yes, because failure to disclose an arrest, even as a
juvenile, can be the sole basis for denying admissioneven if the arrest itself would not be a
valid basis for the denial. If the bar application asks for arrests and unsuccessful
prosecutions, your failure to disclose this information could provide the basis for denying
your admission.
Broke the law/sort of broke the lawdisclose?
Fix and dont disclose: The bar application process is not a confessional. You are required
by Rule 8.1 only to "respond to a lawful demand for information" and "disclose facts
necessary to correct misapprehensions known by the applicant to have arisen." On the other
hand, just because you are not required to disclose the misdemeanor, doesn't mean that the
character and fitness committee would ignore a [INSERT MISDEMEANOR].
Fix and disclose: While this overly cautious approach would likely not hurt you in this
situation, it is not necessary. The bar application process is not a confessional. You are
required by 8.1 only to "respond to a lawful demand for information" and "disclose facts
necessary to correct misapprehensions known by the applicant to have arisen." . On the other
hand, just because you are not required to disclose the misdemeanor, doesn't mean that the
character and fitness committee would ignore [INSERT MISDEMEANOR].
Disclose controversial political views such as death with dignity programs?
Even though this is speech, if it is also the unauthorized practice of law or otherwise
unlawful, it could still provide the basis for denial of admission. Even if not a crime, it may
be that if the examiners believe your actions predict an inability to conform your conduct to
the requirements of the profession, this may be a factor in denying your admission.
Bad financial record:
Large debts and patterns of fiscal irresponsibility are treated as predictors for mishandling of
client funds. However, courts do not require applicants to be debt free. They may require
some efforts at payment, however.
Adulterous behavior or other poor form
Just because its private sexual behavior doesn't mean it's irrelevant to your moral character.
For example, a failure to fulfill a fundamental confidential relationship in this context can be
viewed as a basis for predicting that you will be equally disloyal to your clients.
Why a character and fitness exam?
Among the reasons suggested as justifications for bar admission requirements include:
To protect clients who often do not know much about the lawyer they consult;
To protect courts from subversion and fraud;
To protect the professional image of lawyers.
Sample exam:
Most states require that applicants for admission be graduates of ABA-accredited law
schools. A candidate must also establish his knowledge and character and fitness in order to be
admitted to a state bar. In addition to the education requirements will need to demonstrate his
knowledge of the law through a bar examination. There are only a couple of states that allow
initial applicants to be admitted to practice without an examination, and most of these require
some specific educational prerequisites.
s application raises several issues as to character and fitness. These issues involve his
ability to be trusted, to respect the law, and to act in a civil manner as an attorney. One way to
organize these issues is according to the facts that raise questions about her character.

The primary evidence of s [INSERT GOOD QUALITY] demonstrated through [INSERT

EVIDENCE]. The facts that raise a question regarding her character and fitness include:
LIST FACTORS
Given these facts as a whole, the chances for s admission are good/not good.
Good moral character:
The burden of establishing good moral character rests upon an applicant for admission to
the bar. would argue that he has made a prima facie showing of good moral character
based on his [INSERT EVIDENCE].
Legal but immoral past:
Bar admission authorities might take the position that, regardless of the legality of an
activity, if it involves moral turpitude, it should be taken into consideration as a reason to deny
bar admission. The bar admission officers would argue that
should argue that
Unpopular political beliefs:
s political advocacy on behalf of [INSERT CONTROVERSIAL ISSUE] raises this
issue of whether the state can deny her application to practice law based on her membership in a
political advocacy that is considered immoral/unpopular/questionable.
The state would argue that
They would argue s unpopular belief demonstrates disrespect for the law.
would argue that the mere fact of membership in an organization advocating legal
change would not support an inference that an applicant does not have good moral character
especially if has never been arrested/charged with breaking any law. In particular, should
noted that an applicant's public criticisms of legislative and judicial decisions could not be the
basis for denying admission, since these expressions of political views are fundamental to a
democracy.
Whether s activities could properly be viewed as evidence of a lack of moral character
is likely going to depend on whether they are viewed as advocating change in the laws or
disobedience of the law.
Prior arrests:
s arrests for [INSERT CHARGE] raise the issue of whether these crimes are evidence
of his lack of respect of the law or otherwise are evidence of moral turpitude.
Morality of [CHARGE] aside, an arrest and/or conviction raises the additional issue of
whether has a sufficient respect for the law to be admitted to practice. This issue will depend,
in part, on his credibility. The court is less likely to hold these arrests (or even the conviction)
against his if he can convince them that his arrests were merely [INSERT EXCUSE].
should be careful to ensure his explanation is not viewed as trying to discount the
seriousness of his behavior though.
is in trouble, however, if the court believes that he would not have been convicted
unless guilty. Continuing to maintain his innocence in the face of a conviction, especially where
also believes that the laws he violated are unjust, is a risky position for a bar applicant.
It seems likely that s arrests and conviction will count strongly against his admission.
Disrespect for the law:
s actions in [INSERT BAD ACT] are strong negatives in her application.
The state will argue that, just as arrests can be relevant to one's bar application even
without convictions, so too, allegations in civil actions are probative evidence of one's character.
Moreover, the state will argue that, just because actions don't result in civil liability, doesn't mean
they are irrelevant to the character issue.
will argue that his [BAD ACT] was simply political advocacy and legitimate
negotiation pressure. The state will argue that this behavior went beyond those bounds and
indicates disrespect for legal officials and legal process.

Here again, is unlikely to be admitted to the bar given these facts unless she can make a
very strong case that she has been a target of political persecution.
Professionalism:
Whether s generally disagreeable personality will provide a basis for denying him
admission will depend in part on the court's views of the purposes of the admission process.
would argue that attorneys cannot be disbarred for the way they dress, the language
they use, or their personality. He could cite Model Rule 8.4 and note that dress and language
cannot fit within any category of misconduct. would argue that the standards for admission to
practice should be the same as the standards for discipline. If the purpose of admission screening
is to identify and exclude those likely to be subject to discipline as attorneys, no one should be
denied admission for behaviors that would not provide a basis for discipline in the first place.
The state would argue that admissions standards can and should be higher than those for
discipline. First, the burden of proof of character and fitness is on the applicant in admission, but
is the state's in discipline proceedings. Second, applicants to the bar are seeking access to a right,
not a privilege, whereas practicing attorneys facing discipline have a protected interest in their
license to practice law. Finally, the state would argue that even if the standards are the same for
admission as for discipline, s conduct could provide the basis for discipline, for example s
[PAST BAD ACT] could face discipline based on "conduct prejudicial to the administration of
justice" under Rule 8.4.
would argue that the purposes of admission screening are to protect the public, the courts, and
the administration of justice. He would argue that his personality and dress pose no threat to any
of these; indeed, he would argue that, given his chosen career as [INSERT TYPE OF LAW] he
will need to have a strong and forceful personality in order to vigorously defend his clients.
The state will emphasize that civility and professionalism are essential to the smooth and
fair administration of justice. In addition, the state will note that admissions standards also
protect the image of the profession as a whole. This is important, they will argue, because the
public's trust in attorneys is essential to the functioning of the justice system.

Option 1: Lie (or lie and gather information) see apple corps. Pp. 735
and 769
Clearly one option you have here is to phone Flood posing as an
assistant public defender and surreptitiously negotiate with Flood to
obtain his surrender. Although Flood is not this prosecutors client, the
prosecutor still owes a duty to Flood under Rules 4.1, 4.3, 4.4, and
possibly 1.18. First, and perhaps most clearly, if the prosecutor
chooses to pose as an assistant public defender, he has violated 4.1(a)
and possibly 4.1(b). 4.1(a) provides that a lawyer shall not knowingly
make a false statement of material factto a third person. Here,
Flood is the third person, and by telling Flood that he is an assistant
district attorney, he is knowingly lying to Flood. Comment 2 to 4.1
reminds a lawyer to be mindful to avoid criminal and tortious
representation. Here, the prosecutor would be engaging in tortious
fraud and criminal misrepresentation. 4.3 involves dealing with
unrepresented persons. In this situation, the prosecutor knows Flood is
not represented because he himself is posing as Floods counsel. In
dealing with those not represented by counsel, a lawyer must make
sure that the unrepresented person understands the lawyers role,
correct any misunderstandings the third party believes, and is barred
from rendering legal advice to such people. The prosecutor in this
scenario, the prosecutor is violating 4.3 by implying that he is
disinterested, or rather, as is the case here, disinterested in Floods
representation. Comment 1 explains, a lawyer typically need to
identify the lawyers client and, where necessary, explain that the
client has interests opposed to those of the unrepresented person.
Obviously if the prosecutor is misrepresenting to Flood that his is
assisting in Floods defense, then the lawyer is not properly explaining
who his client is and that the lawyer is acting adversely to Floods
interests. Where a lawyer knows a client misunderstands the lawyers
role in the matter, the lawyer shall make reasonable efforts to correct
the misunderstanding. Again, here by virtue of posing as Floods
counsel, he is no making reasonable sure that Flood understands the
prosecutors role in the matter. Finally, 4.3 bars the prosecutor from
giving Flood legal advice save for advising the third person to obtain
their own personal legal counsel. By counseling Flood to turn himself
in, the prosecutor is pretty clearly giving Flood legal advice. In the
course of a potential conversation with Flood, there is a good chance
you will be offering him legal advice (i.e. Ward, you really should turn
yourself in. Ward, the court will go easier on you if you corporate.).
You are also violating 4.3 if you do not advise him to get a lawyer. In
such a situation, not only has the prosecutor violated 4.3s requirement
that he make clear he is representing the government, he is
purposefully frustrating 4.3s goal of transparency between lawyers

and adverse third parties. Additionally, the prosecutor is violating 4.4s

requirement for respecting the rights of third persons. Although 4.4
reads as though it was designed to protect parties in civil prosecution
(i.e. it addresses evidence inadvertently faxed to the opposing party)
its actual language is applicable in this case. 4.4(a) prevents a lawyer
from using means that will burden a third person or using methods to
obtain evidence which violate the legal rights of such a person. In the
instant case, should the prosecutor lie, he will be burdening Flood, the
third person, by delaying/denying his right to counsel. If Flood believes
the prosecutor is his attorney then he is not likely to seek other
counsel or question the prosecutors advice.
Should this prosecutor choose to pursue this option, he should not try
to obtain information to use as evidence. I believe most damaging to
this prosecutor, should he pursue this option, is that Flood could very
easily think the prosecutor was his court appointed attorney, making
him a perspective client under 1.18. As such, any evidence you
hoped to extract during negotiations would be protected under
attorney-client privilege, which Flood would hold as your client or
prospective client. As alluded to in Togstad, where a client believes
you are her (or his) attorney, and you do not make a good faith effort
to deny that belief, a court may find you are that persons attorney.
Analogizing this case to Togstad, once Flood realizes you are not his
actual attorney, there is a good chance he may sue you, or worse, any
evidence he voluntarily produced could be thrown out because it was
obtained illegally. This could potentially jeopardize your career, your
reputation, and Floods conviction. If 1.18 is applicable, then you
would additionally be barred under 1.18(b) from revealing any
information Flood revealed to you. This would obviously frustrate your
attempts to secure a conviction and might actually hurt your case. If
you did receive confidential information from Flood, then you would
also need to withdraw from representing the government in this case
because you would have a nonconsentable conflict of interest
implicating 1.7, 1.8, and most likely have to withdraw under 1.16.
In a similar vein, as a prosecutor, you have a duty make reasonable
efforts to assure that the accused has been advised of his right to
obtain counsel and given an opportunity to do so under 3.8. It is
unclear whether this rule applies to the immediate situation because
Flood has yet to be charged. However, in an effort to maintain your
integrity as a minister of justice I believe this rule, in combination
with the other implicated here, is another reason to not pursue this line
of attack.
4.2 may also be implicated, even though Flood is not yet represented
by counsel. According to Lerham and Schrag, 4.2 may be interpreted

in favor of allowing prosecutors to have contact with suspects before

they are charged (or allowing them to direct investigations, involving
contact with such suspects). Even if such interaction were allowed in
this jurisdiction, I suspect 4.2 would not get a prosecutor around his
duties under 4.3 and 4.4s in this situation.
Additionally, if the prosecutor chose to negotiate with Flood without
consulting with his client, the prosecutor violates 1.3s duty of
diligence. Rule 1.3s requirement of diligence dictates that a lawyer
obtain a clients informed consent and discuss the means with which
the clients objectives are to be met. Since here, the prosecutor met
neither of those responsibilities, he is subject to discipline under 1.3.
Additionally, by failing to inform his client, the government, about his
plan, the prosecutor is violating 1.4(b)s requirement that a lawyer
shall reasonably consult with the client about the means by which the
clients objectives are to be accomplished. The client here (the
government) wants Flood to surrender, but it is the client who should
ultimately decide how the prosecutor goes about meeting those goals.
One of the purposes of 1.4(b) is to allow the client sufficient
information to participate intelligently in decisions concerning
objectives of representation. Here, the government is not able to
participate at all, and acting as the governments agent, the prosecutor
could also harm the reputation or even cause criminal claims against
his own client. The facts here indicate the by calling Flood, the
prosecutor would be usurping the governments right to direct the
means by which an investigation occurs. The prosecutor also violates
1.4(a)(1-5). Collectively, these rules require the prosecutor to inform
the clients of the status of his representation, discuss the lawyers
proposed actions, and consult about the lawyers relative limitation
under the Rule of Professional Responsibility (RPR). As explained
above, taking actions sua sponte is generally prohibited by the rules as
is acting without explicit or implied authorization. Should this
prosecutor choose to lie to Flood and negotiate his surrender, he has
not just violated Rules 1.2, 1.3, 1.4, and 4.1. He has also violated his
duties to Flood.
Finally, this course of action would necessarily implicate rule 8.4s
misconduct rule. If the prosecutor chose to pretend to be an assistant
public defender, you would violate 8.4(a) because the prosecutor
personally violated a number of the RPRs. He would also be subject to
discipline under 8.4(b-d) because as a minister of justice, your
deceitful tactics would reflect negatively on prosecutors and lawyers as
a whole and lead other to question your fitness as a lawyer. 8.4(e)
would also apply because your negotiations would necessarily allude to
the fact you could influence an official or other government agency by
promising a solo jail cell and unlimited cigs.

Besides breaking more rules than I have digits on my hand, there are
collateral issues to consider. For example, if Flood doesnt believe you,
or calls your bluff, he could get mad and kill more people.
On the other hand, some of the rules a prosecutor would break
pursuing this option might be defensible. If Flood believed you were
his client, for example, it is reasonable under 1.16 that Flood has
diminished capacity if he was willing to brutally murder 3 individuals
and taunt the police. 1.14(b) allows a lawyer to take reasonably
necessary protective action on behalf of a client which includes
violating 1.6(a)s duty of confidentiality. 1.6(b) separately allows a
client to reveal confidential information that would reasonably prevent
future bodily harm. Flood has murder previously and has threatened to
do so again, this would satisfy the 1.6(b) standard. However, the fact
that the prosecutor falsely induced Flood to reveal confidential
information would still pose disciplinary actions however. And as
stated above, if Flood suspects the DA is not who he claims to be
(which is reasonable since murdering maniacs are often paranoid too),
Flood could retaliate by killing more people.
Option 2: Collaborate with police to negotiate with Flood
On the other hand, there are a number of reasons to pursue this course
of action. As stated previously, 4.2 in some jurisdictions might allow a
prosecutor to direct such an investigation, although it is unclear to
what extent the prosecutor may involve himself and whether he can
encourage others to lie. First, this prosecutor should check applicable
case law in his jurisdiction. Assuming this jurisdiction allows a
prosecutor to be involved, he must be careful he is not directing others
to engage in deceit. 5.1 counsels that lawyers may not have other
lawyers break RPRs that they themselves could not break. 5.1(c)
expressly forbids a lawyer from ratifying another lawyers violation of
the rule. Read narrowly, it appears this rule does not apply to this
situation, construed more broadly however, the spirit of the rule is
clearly to encourage lawyers to oversee their subordinates and ensure
their employees do not violate the RPRs. Given the severity of the
circumstances, no discipline would likely follow under 5.1(c). More
likely, the prosecutor would be disciplined under 8.4(a) for encouraging
others to break the RPRs, and 8.4(c), engaging in dishonesty or
misrepresentation. This option would also require the prosecutor to
encourage another to unlawfully practice law without a license since
presumably the fake PD would be giving legal advice.
A similar option would be to cautiously explain to the police how they
could go about discussing a plea with Flood, or alternatively, how an
officer could pose as an assistant DA and negotiate with Flood himself.

Rule 1.6 permits (may reveal) revelation of confidential information

to prevent, mitigate, or remedy some criminal or fraudulent client
conduct in furtherance of which the client has used the lawyers
services. Arguably, 1.4 only permits a lawyer to reveal this information
and does not require him to reveal this information. Read broadly, a
lawyer does not have a duty to report such fraud. This means that in
any situation in which a lawyers failure to reveal would constitute
assisting a criminal or fraudulent act, Rule 4.1 requires a lawyer to
reveal this information unless barred by 1.6. Since 1.6 does not
explicitly bar revelation, it would seem as though the prosecutor in this
case, under 4.1, would be required to reveal any crime his client (the
police/government) was reasonably certain to commit. The prosecutor
in this case would thus have to decide whether he was reasonably
certain his client was going to commit the fraud he discussed with the
police. Given the immediacy and severity of this case, any charges
brought based on 4.1 and 1.6 would certainly be mitigated by the facts
here, but nevertheless, since Flood might be suspicious of speaking
with an assistant to Baiggi which could result in retaliation, I would
probably steer clear of this option.
In fact, should the prosecutor tell the police to impersonate the district
attorney, the prosecutor could also be disciplined for knowingly
allowing another to break 5.5s unauthorized practice of law rule and
subsequently 8.4.
Option 3: Tell the truth
Obviously, telling the truth is a viable option. In fact, I believe this is
probably the best option for the prosecutor in this case. From the
facts, it appears that Flood is willing and ready to turn himself in. It is
also apparent that the police are willing to concede Flood his lone jail
cell and cigarettes. Phoning Flood and making clear that you are the
DA, but willing to make a deal with him and his attorney does not
appear to violate any of the rules. I believe you could also inform
Flood that you were trying to locate Baiggi (assuming you were doing
so). Making a deal with Flood over the phone would be inadvisable
because he is an unrepresented person under 4.3 and the prosecutor
may not render legal advice to such persons. Using this option, the
prosecutor should ensure he complies with 4.3 as he will be dealing
with an unrepresented person, but besides that, 4.3 seems like a good
option.
Option 4: Try harder to find Baiggi
For the facts, it seems as though the DA half-heartedly attempted to
contact Baiggi. Perhaps the prosecutor could go to Baiggis office or
have the police locate him. If the prosecutor decides to contact Baiggi
ex parte, it is a good idea that he get permission from the government

under 1.6(a) to reveal confidential information. Since the DA will

probably need to reveal some information to Baiggi, it would be
prudent to gain informed consent from the client before even speaking
with Baiggi. The RPRs do not prevent a lawyer from contacting a
lawyer ex parte, but do prevent the prosecutor from revealing any
confidential. When gaining informed consent from the government
(the client), the prosecutor should also be sure to meet 2.1s duty to
render candid advice. In this situation, that might mean explaining the
political implications of the police being seen as negotiating with a
terrorist. However, given the major safety concerns, this is an issue
that would probably not bother the police.
As Lerman and Schrag articulate, if a prosecutor in directing an
investigation, he or she arguably violates the rule prohibiting
materially false statement and the rule against contact with
represented persons.
Option 5: Do nothinglet the police find Flood themselves
This is an option, but given other available options, this should
probably not be your first choice. In fact, you have a duty to provide
competent representation under 1.1 and by not even considering other
options that even a second year law student thought of, you are
probably violating your ethical duty of thoroughness and preparation
which involves conducting proper research (here, are there any similar
cases in your jurisdiction that allow attorneys or police to deceive a
suspect in the interest of public safety?).
Option 6: Call the bar association
This is always an option. The bar association in each state has a phone
number for lawyers who have ethical questions. Given the urgency
here, you might decide to pursue another option, but if you are
absolutely in a bind, this is a possible avenue. However, the
prosecutor should be careful to use hypotheticals and to not reveal any
confidential information under 1.6.

Conflict of interest
7-6
You represent both H and W in the execution of a will. H wants to
leave everything to his mistress. Under rule 1.4, you are
supposed to provide adequate information to your clients so they
can make informed decisions. However, there is a duty under 1.6
to protect the Hs confidences. Do you tell the W or do you
protect the Hs information?
Held: While a lawyer is ethically obligated to protect confidences
and also has a duty to communicate to a client information that
is relevant to the representation, the lawyers duty of
confidentiality must take precedence.
The court advises an attorney in this situation to withdraw from
the representing, informing the parties that a conflict of interest
has arisen that precludes continued representation of both
parties. The lawyer may also want to advise that each party
should retain separate counsel. As such, even though the W
might suspect an affair and ask the lawyer about it, the lawyer
may still not reveal the separate confidences.

Consentable?
would a reasonable lawyer would be competently continue
representing the client
would one of the clients would be so badly off that the
reasonable person would never consent to it
argument for consent
o you already have the information that could be obtained
through discovery
assuming that the issue is consentable
o problem with consent
need to tell the parties the details of the messy
situation
Jolene will be upset
Hugh does not want this affair to be brought up
so consent may not be relevant
you decide to withdraw
o can you still represent one of the Clients?
once you withdraw from representation your client
becomes your former client
the issues becomes about information that you
gained from Mistress

 you cannot use her confidence against her

you may end up in situation where you are tempted
to reveal Mistress's info to McCarthys you continue
to represent
but in estate representation it is unlikely one can
use something against it in paternity case
but, may prejudice unfaithful husband in favor
of Wife (by putting secret trust in Wife's
favor)
so, it is possible to withdraw from paternity and
continue in estate; but not vice versa
General Question: whether you gained any confidences in
one case that can be used against the client in the other case
Do you have any obligations to tell Wife about the Husband's
suit?
no obligation
they had an agreement regarding shared information
why is it no good?
o info does not come from them, but from the law
firm negligence
No duty to tell the Wife - information did not come from
Husband
o should that make a difference?
o Florida Bar Opinion - it was Husband's fault
o That is not here
1.6 applicability regarding confidentiality?
violate Husband's confidentiality