Professional Responsibility: Winkler

Table of Contents
1. The Bar and Regulation of Lawyers______________________________________________________________2
a. The Lawyers Role
b. Philosophies of Lawyering
c. Admission to the BAR
d. Duty to Report Misconduct
2. Establishing an Attorney-Client Relationship______________________________________________________4
a. Formation of the Attorney-Client Relationship
b. Termination of the Attorney-Client Relationship
c. Allocation of Authority
d. Fees
e. Solicitation, Advertising, and Marketing
3. Secrecy in the Attorney-Client relationship________________________________________________________8
a. Duty of Confidentiality
b. Attorney-Client Privilege
c. Physical Evidence
d. Perjury
e. Revealing Business Fraud
4. Conflicts of Interest__________________________________________________________________________13
a. Current Clients
b. Joint Representation
c. Former Clients
d. Conflict Avoidance
5. Responsibilities to Third Parties, the Public, and the Profession_____________________________________16
a. Frivolous Claims
b. Communicating with 3rd parties
c. Public Interest Law
d. Pro Bono Services
e. Trial Publicity

Professional Responsibility: Winkler

1
1

The Bar and the Regulation of Lawyers

The Lawyers Role

A.

Fiduciary of the Client (3 duties)

a. Duty of Competence
i. Competent Representation MR1.1: Legal knowledge, skill, thoroughness, and preparation reasonably
necessary for representation
ii. Diligence and Promptness MR 1.3
iii. NOT WAIVABLE
b. Duty of Loyalty
i. Conflict of interest rules MR 1.7-1.9
c. Duty of Confidentiality
i. Protection of communication between lawyer and client
ii. Confidentiality MR 1.6
d. Take into account:
i. Agency costs = Costs of separated interests + costs of monitoring agent
1. Lawyer is an agent for client
ii. Client sophistication
1. The more sophisticated the client, the more capable of overseeing the lawyers activities
2. Duties are somewhat dependent on how sophisticated the client is

B.

Officer of the Court

a. Adversarial System of justice
i. Neutral decision maker
ii. Advocates for zealous and vigorous representation of opposing parties
iii. Rules of procedure
b. Must be honest and open
i. Obligation not to destroy evidence, lie to court & inhibit court system

C.

Persons with Their Own Interest

a. Avoiding repugnant clients or responding to the marketplace:
i. Right to decline representing a client if afraid of losing clients, financial concerns
b. At the end of the day rules recognize that persons have bills to pay and want rules to be effective

D.

Determinants of the lawyer's role

a. Legal sources
i. Professional Standards: ABA MRs, Restatement, States professional responsibility rules
ii. General Legal Principals: Tort, contract law, rules of evidence, Court rules (FRCP 11)
b. Non-legal sources
i. General principles of ethics or morality
ii. Marketplace

Philosophies of Lawyering
A.

B.

C.

Neutral partisanship (a.k.a. zealous advocacy)

a. Clients interests predominatePursue clients interests up to the limits of the law
b. No moral accountability
c. Externalities: impact on 3rd parties is ignored
d. Costs: encourages litigation
Philosophy of morality (a.k.a. personal values)
a. Morally accountable
i. Personal moral judgment is influential
ii. Personal values as a guidepost
b. Attorney role: counselor
Philosophy of social values
a. Social normsmore objective than personal morality
b. Attorney role: counselor
c. Lawyer chooses which social norms to follow

Admission to the Bar

A.

Graduated from ABA accredited law school

a.

B.

California:
i. Not required to be ABA accredited (can be just state bar registered school)
ii. Can be an apprentice for a lawyer for 4 years before passing the bar exam

Pass the bar exam: MPRE, multistate, state bar exam (e.g. CA)

Professional Responsibility: Winkler

C.

Good Moral Character

a. Applicant must meet the requirements of good moral character
i. Test: Whether a reasonable person could find that there were substantial doubts about the applicants
honesty, fairness, and respect for the rights of others and the laws of the state and nation.
1. Does this violation really mean that the individual is unfit to practice law?
2. Appropriate to have an inquiry if reasonable doubt
b. Rationale:
i. Elevate the image/content of the profession
ii. Enhance the reliability/integrity of the judicial process
iii. Standard for regulating the profession after admission
c.

Most common activity leading to inadmission:

i. Criminal activity, especially if engaged in criminal conduct that involves honesty and integrity
1. Acquittal from criminal conduct does not mean that a person can be admitted to the bar w/out
problems
a. For the bar the applicant need to prove by clear and convincing evidence that he has
GMC to practice law burden of proof in criminal case is higher (beyond reasonable
doubt)
ii. Academic dishonesty
iii. Substance abuse or dependency
iv. Dishonesty in the application process treated more seriously than anything else
v. Financial Misconduct
1. In re Mustafa DC circuit court denied admission to Mustafa who took money from moot court
account to pay for bail for his sister
a. Reasoning: lawyers are always entrusted with clients money (threat that would do
financial fraud w clients money)
vi. Ideology
1. Cannot deny admission for political beliefs (e.g. communist party membership)
a. Except: if refuse to serve allegiance to constitution; and those who actively affiliate with
organization knowing of their illegal activities and/or have specific intent to further such
activities
i. Ex: Mathew Hale, a white supremacist who preaches hate for minorities- the
Illinois bar denied admission even though he had not done any harm yet. Wrote a
letter indicating violence.

Duty to Report Misconduct

D.

Rule 8.3: Reporting

a. L who knows another L has committed a violation of the Rules that raises a substantial question as to that Ls
honesty/trustworthiness/fitness shall inform the proper professional authority
i. Requires Actual knowledge that another lawyer committed a violation of rule of professional conduct.
1. Knowledge can be inferred from the circumstances.
ii. Duty to report misconduct unless protected by duty of confidentiality

E.

Rule 8.4: Professional Misconduct (default rule)

a. Professional Misconduct for a L to:
i. (a) Violate or attempt to violate the Rules, assist/induce another to do so, or do so through acts of another;
1. If 3rd party violates a Rule for a L, L is equally culpable
ii. (b) Commit a criminal act that reflects adversely on the Ls honesty, trustworthiness or fitness as a L;
iii. (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
1. Ex: calling up someone and pretending to be someone else; plagiarism
iv. (d) Engage in conduct that is prejudicial to the administration of justice;
1. Ex: destroying evidence
v. (e) State/imply an ability to influence improperly a govt agency/official or achieve results by means that
violate the rules;
vi. (f) Knowingly assist a judge in conduct that is a violation of applicable rules of judicial conduct or other law.
b. Ex: It is professional misconduct to knowingly manifest by words or action bias or prejudice based on race, religion,
etc when such actions are prejudicial to administration of justice.
i. California:
1. Extends this rule: it is a violation in CA to accept or terminate a client on basis of race, gender,
etc.
California:
a. No duty to report misconduct
i. Encourages attorneys to seek counsel regarding professional conduct

F.

Professional Responsibility: Winkler

2
1

Establishing an Attorney-Client Relationship

Formation of the Attorney-Client Relationship

A.

Accepting representation
a. Mutual Consent - Attorney may choose whether or not to accept a case
i. Exception: if a court-appointed attorney, no choice but to represent

B.

Rule 6.2: Court Appointment

a. Attorney shall not seek to avoid appointment by the court
i. Exception: good cause
1. Representation will result in violation of rules of professional conduct
2. Client is so repugnant to the lawyer that it will impair the AC relationship (cannot be clients zealous
advocate)
3. Result in unreasonable financial burden of the lawyer. Financial burden has to be great threatens
the continuance of practice of law
4. Cannot fulfill fiduciary duties for other clients (e.g. too high of a caseload to handle more and do
competent work)

C.

Restatement: Implied Formation

a. A relationship between client-lawyer arises when
i. Person manifests intent AND EITHER
1. Lawyer manifests to the person consent to do so
2. Lawyer does NOT manifest intent BUT the attorney
a. Reasonably should know that the person reasonably relies on the lawyer to provide the
services
b. OR Tribunal with the power to do so appoints the lawyer to provide the services

D.

Declining representation
a. Cases:
i. Togstad Consults an attorney about a legal claim. Attorney does not think she has a case but tells her that
hell talk to people.
1. Court took issue that lawyer was not explicit about not taking the case
a. Burden on the attorney to NOT mislead clients
2. Ways that attorney can be held liable based on declining representation
a. Failure to inform of statute of limitations
b. Advice without adequate investigation
ii. Case: Letter sent to L and gets misfiled, no L sees the letter; SofL runs and C sues for malpractice. Found
that might be malpractice. RE changed after that - does not allow malpractice for such conduct.
1. Ex: C emails from the L website and no-one contacts the C; differs from letter bc the website itself
is a solicitation of clients so upon lawyer to answer timely.
b. Non-engagement letters (help to clarify that L does not represent)
i. Recognize statute of limitations issue
ii. Advise to seeking counsel
iii. Clear statement of non-engagement
iv. Advice client that have NOT done any adequate investigation
v. Do not include reasons for declining case (more say more trouble)
c. Malpractice: Attorney may NOT limit lawyers liability for malpractice
d. Duty to decline cases
i. Unable to vigorously represent
ii. Clients motive is harassment MR 4.4
iii. Client is pursuing an unsupportable legal position MR 3.1
1. High burden to meet because an innovative legal challenge is supportable
a. Unless no good faith argument for extension/modification/reversal or existing law
iv. If representation would lead to violation of professional responsibility rules or other law

Termination of the Attorney-Client Relationship

E.

Discharge
a. Absolute right (nearly) to discharge a lawyer (RE 32)
i. Client has a right to discharge a lawyer at any time, with or without cause
1. MR 1.16: A lawyer shall not represent the client when the lawyer is discharged (has to withdraw
from the case)
ii. Attorney must file a motion for withdrawal with the court
1. Tribunal must approve the withdrawal. In some cases not allowed to withdraw e.g. when trial is
going on, right before jury verdict, etc.

Professional Responsibility: Winkler

iii.

b.

F.

If the client is of diminished capacity, atty MAY take this to the court. (MR 1.15)
1. When client has diminished capacity, the atty has to make an effort to try to maintain normal attyclient relationship.
2. Lawyer may make reasonable action as necessary:
a. Can disclose information when necessary when protective action needed, e.g. to try to
appoint a legal guardian (MR 1.14)
Compensation: Client is responsible for the reasonable value of services rendered
i. Court will look to the circumstances to determine reasonableness
1. If attorney engaged in misconduct likely that attorney will get $0
2. If client engaged in misconduct likely that attorney will get more

Withdrawal - 2 Types under MR 1.16

a. Mandatory (required to withdraw):
i. When client discharges a lawyer (MR 1.16); or
ii. Continued representation will result in a violation of professional conduct or other law; or
1. Example: Crime, fraud, clients motive of harassment, clients case based on unsupportable legal
position, or if attys license gets suspended (MR 5.5)
iii. Lawyers physical or mental condition materially impairs lawyers ability to represent the client
b. Permissive:
i. May be done without material adverse impact on the interests of the client
1. Even looking for another L can be materially adverse
ii. Lawyer reasonably believes clients course of action involves criminal or fraudulent conduct
1. Reasonable suspicion / level of knowledge of what Client is doing
iii. Client used lawyers services to perpetuate a crime or fraud
1. Has to involve lawyers services (e.g. burning house down would not count)
a. Ex: preparing docs, providing means by which the fraud is possible, etc.
iv. Client insists on pursuing an objective that lawyer considers repugnant or imprudent
1. Action with what the lawyer has a fundamental disagreement
v. Client fails substantially to fulfill an obligation to the lawyer AND given reasonable warning of intent to
withdraw (i.e., failing to pay bills)
vi. Representation will result in unreasonable financial burden on the lawyer OR rendered unreasonably
difficult by the client
vii. Other good cause
viii. EXCEPTION: if in courts jurisdiction, then have to get court approval
c. Duties upon termination
i. Take steps reasonably practicable to protect clients interest
1. Reasonable notice
2. Allowing time for employment of other counsel
3. Surrender any property belonging to client or 3rd parties (documents related to representation)
4. Refund any unearned fees that may have collected
ii. Attorney entitled to reasonable value of services rendered but may not be entitled to full contractual fee

Allocation of Authority
A.

Means vs. ends:

a. MR 1.2mandatory language
i. Means (lawyer decides) = technical legal issue (procedural) OR tactical strategic issue (jurisdiction)
1. Attorney must consult w/ client (ACTING AS A COUNSELOR)
a. May refer not only to law but other considerations like moral, economic, social, and
political that are relevant to clients situation
2. Do NOT have to follow clients wishes (re tactics)
3. Client must be well informed
4. Examples of where courts have upheld attorney conduct
a. Deciding to call witnesses against clients wishes
b. Insanity defenses
c. Summary judgment
5. EXCEPTIONS
a. Where particular decision will be expensive to the client
b. Where there is an impact on a 3rd party that client is concerned about
6. Lawyer shall not counsel a client to engage, or assist a client, in conduct that lawyer knows is
criminal or fraudulent
a. MAY discuss legal consequences of proposed courses of conduct with client /counsel or
assist client to make good faith effort to determine the validity, scope, meaning or
application of the law.

Professional Responsibility: Winkler

ii.

Ends (client decides) = Objectives

1. Objective: ultimate determination of the case, profoundly affects the substantive rights of the client
2. Attorney must follow clients wishes
a. EXCEPTIONS
i. Objectives would involve the assistance to commit a fraud or crime
ii. Attorney-client may limit their objectives ex ante (at the beginning)
1. Client must consent after consultation
3. Examples
a. Accepting a settlement offer
b. Plea in criminal case
c. Waive a jury trial
d. Whether to take a stand and testify
4. Remedy:
a. If disagreement decline representation
5. Rationale
a. Agency costs considerations
i. Contingent Fee arrangements may have an incentive to settle early
ii. Billing per hour incentive to go to trial
iii. Repeat players v. one-shot players - Repeat players are less likely to take
advantage of their clients
b. Client dignity: client should make the ultimate choices and what will end their case
6. Criminal cases: A lawyer may discuss legal consequence of proposed course of conduct
7. Settlement in Civil Cases
a. Clients decision whether or not to accept an offer of settlement
b. Duty on lawyer to convey information to the client about a settlement offer
c. No apparent authority (Client can give express authority for a lawyer to accept)

Fees
B.

Rule 1.5: Fees

a. Fees charged must be reasonable (MR 1.5(a))
i. Factors in determining reasonableness:
1. Time and labor
2. Novelty and difficulty of the issue represented, skill requisite
3. Likelihood that it will preclude other employment
4. Fee customarily charged in the locality
5. Amount involved and results obtained
6. Time limitations imposed by the client OR circumstances
7. Nature and length of the professional relationship
8. Experience, reputation, and ability of the lawyer
9. Whether fee is fixed or contingent
ii. Preferably in writing
1. California
a. Fee agreements in CA MUST be in writing for anything over $1000
i. Exception: if client is a corporation; if repeat client; or if emergency
b. Failure to get it in writing, or setting fees that are unreasonably high, will void agreement;
still get reasonable fees in quantum meruit (unjust enrichment) determined by court.
iii. Atty has a duty to communicate to the client the basis in which the fee / expenses are determined
b.

Contingent fees MR 1.5(c) must be reasonable

i. Must be in writing and signed by the client
1. Method by which the fee is determined
a. The percentage that will accrue in the event of settlement, trial, appeal, litigation
i. E.g. 25% when settled before trial / 30% if trial / more if appealed
b. Other expenses that will be deducted from recovery
i. Whether expenses will be deducted before or after determining contingent fee
2. At conclusion, lawyer must provide a written statement
a. Remittance and the method of determination
3. (Unreasonable when little or no work completed by attorney; e.g. settling case w/in a month for 5.5
mil)
ii. Prohibited contingent fees
1. Not allowed in Criminal Defense (thought to discourage plea deals)
2. In certain states not allowed in family law:
a. Domestic relations matter (custody, alimony, divorce)
i. Rationale: Public policy to encourage reconciliation; Often the court will order
the spouse with assets to pay the attorneys fees
iii. California:
1. Obtaining Contingency fee in domestic relations matters is ok in CA

Professional Responsibility: Winkler

C.

D.

E.

Literary and Media Rights

a. Prior to the conclusion of representation, a lawyer shall not make/negotiate an agreement giving the literary or
medial rights to a portrayal or account based in substantial part on information relating to the representation (MR
1.8(d))
i. Only applies to an agreement negotiated prior to conclusion
ii. Purpose: Prevent financial interest that would interfere with independent professional judgment (might
create an incentive to make a case more dramatic distort lawyers incentive)
iii. Prior representation: selling the rights to prior representation is ok
b. California
i. Defendant can sell media rights as part of a fee arrangement IF necessary to secure first rate representation
(D must be able to seek other counsel before deal conducted fair & reasonable)
Fee Splitting: Division of a fee between lawyers not in the same firm
a. Allowed only if 3 requirements are met
i. Either
1. In proportion to the services performed by each lawyer OR
2. By written agreement with the client that each lawyer assumes joint responsibility
ii. Client is advised of and does not object
iii. Total fee is reasonable
b. Referral Fees
i. Modern trend: Allowed if meet requirements (not exclusive, etc), including written agreement by client
Expenses and Client Money
a. Expenses
i. Witnesses
1. Expert witnesses
a. Cannot be paid a contingent fee
b. Can charge for their testimony + travel & lodging
2. Ordinary Fact Witnesses
a. May pay expenses
b. CANNOT pay a fee for testimony
ii. Actual cost
1. Basic Rule: Only charge for actual costs
a. UNLESS: client consents otherwise
2. Cannot charge for overhead (library, insurance, rent, utilities...) WITHOUT disclosure
iii. Litigation expenses (copying, filing fees, depositions, expert witnesses, travel, communications, research
fees (Lexis/WestLaw)
b. Trust accounts and Client Property
i. Client money must go in a separate account
1. CANNOT commingle clients property with firms property
a. Can have money on account to pay for reasonable account fees
2. CAN commingle different clients money
c. Lawyers CANNOT make general advances or loans to clients
i. Lawyers MAY advance litigation expenses

Solicitation, Advertising, and Marketing

A.

Three types of communications:

a. General Advertising (MR 7.2): through TV, radio, print media (for general public)
b. In-person Solicitation / Real Time Solicitation (MR 7.3): includes live telephone, and live chat on the web
c. Targeted or Direct Mail Advertising: directed to group that is known or suspected to have suffered a particular type of
injury and are in need of legal services

B.

Traditional bars on advertising and their demise

a. Rationale
i. Protect integrity of the profession
ii. Protect clients from unfair pressure
b. Bates Supreme Court held that attorney advertising had some level of 1st Amendment protection
i. Claims about the quality of legal services are NOT protected because inherently subjective
ii. States may ban false and misleading advertising
iii. Relied upon consumer need for additional information to make informed legal decision
1. Lack of advertising may have increased prices

C.

Rule 7.1: No False or Misleading Communications about lawyer or lawyers services (applies to all communication)
a. False or Misleading IF (3 different definitions)
i. Material misrepresentations or omissions
1. Material misrepresentation of fact or law
2. Omits a fact necessary for someone to make an informed judgment

Professional Responsibility: Winkler

ii.

Unjustified expectations
1. Likely to create an unjustified expectation about results the lawyer can achieve; OR
a. Preclude advertising based on results obtained on behalf of a client because create
unjustified expectation without reference to the specific factual and legal circumstances
i. E.g. Cannot use nickname to create unjustified expectation: heavy hitter can
imply that L can win any case; losing is not an option etc.
b. Assertions of quality of legal services is inherently subjective and potentially misleading
2. States or implies the lawyer can achieve results by means that violate profession conduct or other
law

D.

Rule 7.2: Requirements for ethical advertising

a. May advertise through public media
i. Can advertise w written recorded communication (subject to 7.1)
ii. Must include the address and name of L responsible
b. If advertise, must keep a copy of the communication
c. Advertisement cannot contain a paid endorsement (cannot bay for recommendation)

E.

Rule 7.3: In-Person and Targeted Solicitations

a. Lawyer CANNOT make in-person or live telephone/chat contact soliciting professional employment (In person
solicitation is rife with possibilities for overreaching, invasion of privacy, exercise of undue influence, and fraud)
i. EXCEPTION
1. Family
2. Close personal relationship (friendship)
3. Prior professional relationship (past client)
4. Soliciting another lawyer
b. Pecuniary Motive Requirement
i. If pecuniary gain is not a significant motive, then allowed to solicit (e.g. offering legal services for free)
ii. In re Primus - Public interest attorney may solicit with a personally targeted letter (ACLU targeted letter for a
person in need of legal services)
c. CANNOT solicit IF
i. Client has made known a desire NOT to be solicited
ii. Involves coercion, duress, or harassment
d. Disclaimers: Must have a disclaimer that information is ADVERTISING on all written communications (outside of
envelope or beginning and end of the message)
e. Targeted Solicitations: Absent knowledge that prospective clients does not want to receive, attorney is NOT
prohibited from sending truthful, non-deceptive letters
i. Must be labeled as advertising
Additional Advertising Issues:
a. Certifications MR 7.4: May NOT state or imply that certified as a specialist UNLESS
i. State allows use of certification OR
1. Cannot say certified unless approved by e.g. ABA
ii. If in state without regulations of certification, then must communicate that no procedure for approving
certifying organizations
b. California:
i. Any claim using a specialization can be made IF approved by the Board of Legal Specialization
c. Firm Names and Firm Letterheads (MR 7.5)
i. A lawyer cant use a firm name, letterhead or other designation in violation of Rule 7.1 (false or misleading
advertising)
ii. The name of a lawyer holding a public office shall not be used in the name of the law firm during any
substantial period in which the lawyer is not actively and regularly practicing with the firm.

F.

Professional Responsibility: Winkler

3
1

Secrecy in the Attorney-Client Relationship

Duty of Confidentiality
A.

Background:
a. Rule 1.6: Confidentiality of Information
i. Duty of confidentiality that attorney must respect in ALL information relating to representation
1. Any information relating to the representation of a client is protected; applies to 3rd parties, research
about the case, etc.
2. Extremely Broad duty and applies more broadly than Atty-Client relationship
b. Rationale for rule to protect these categories:
i. Zealous advocacy fiduciary relationship btw attorney and client (can be current or prospective client)
1. Opens up means of communication between lawyers and their clients for adequate representation

ii.

B.

C.

Conform with the law: Helps clients conform to the law can ask advice from the atty w/out being afraid of
being turned in by atty. Legal guidance to know what is allowed and not allowed
1. MR 2.4: lawyer is an advisor, appropriate role is to give counsel, advice re issue
a. BUT it is a violation of legal ethics to help to contribute to clients fraud or crime (MR 1.2)
iii. Privacy: client does not want their info out there
iv. Constitutional concerns: Client had a 5th Amendment right against self-incrimination
1. Disclosure would undermine this right
v. Promotes the profession: more trust in lawyers; lawyer then more attractive option for clients
Contrasted with attorney-client privilege
a. Fiduciary Duty: an ethical rule (more broadly applicable)
b. Applies to all info relating to representation
c. Always binding: owe confidentiality forever to your client
d. Multiple Exceptions: many exceptions, much broader than A/C privilege (self-defense, imminent death/substantial
bodily injury, etc.)
EXCEPTIONS to Confidentiality (MR 1.6)
a. Informed Consent:
i. Client has to give explicit informed consent and the L must explain all of the reasonable alternatives and
possible problems
1. McCure v. Thompson: lawyer did not discuss the harmful consequences w the client when got the
consent to disclose the info about location of kids bodies
ii. Not required to be in writing (but better to have in writing)
b. Implied Authorization:
i. Can use information relating to representation when required by law in order to represent, in order to do
basics for the case.
1. E.g. Impliedly authorize that can file a complaint against the defendant in a tort case
c. Reasonably certain death or substantial bodily harm:
i. A lawyer may reveal to the extent reasonably necessary (permissive)
1. Disclosure is not mandatory
ii. Lawyer may reveal info if L reasonably certain that death or substantial bodily injury will occur
1. ONLY applies to bodily injury (not psychological, etc.); does not have to be criminal
d. Harm to financial interest or harm to property:
i. Prevent client from committing a crime or fraud reasonably certain to result in subst injury to the financial
interests or property of another when client is using lawyers services to carry it out or aid in it
1. When client is using or has used L services to carry out or aid crime or fraud If C did not use L in
furtherance of the crime, then cannot reveal.
2. Otherwise, would be a serious abuse of the attorney-client relationship
e. Compliance with the Law
i. E.g. court order to reveal the information
ii. Some states have statutes reporting certain info, like child abuse
iii. California:
1. Not mandatory to report child abuse
f.

Self-Defense:
i. Establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client
1. To collect fees (e.g. reveal that C has secret bank acct in Swiss)
ii. Establish a defense to a criminal charge or civil claim against lawyer based upon conduct in which the client
was involved
1. Give info to exonerate himself
iii. Respond to allegations in any proceeding concerning the lawyers representation of the client

Professional Responsibility: Winkler

1.
D.

Once there is assertion of wrongdoing the lawyer can defend himself even f no charges are filed to
protect his reputation

California Duty of Confidentiality

a. Only permitted to disclose info to prevent criminal act when there is reasonably certain death or bodily injury
i. Does not have to be a clients criminal act, if learn about it
b. Self-defense exception is part of a common law in CA
c. Can only reveal C info if financial damages against a lawyer, NOT to other types of damages

Attorney-Client Privilege
A.

Contrasted with the duty of confidentiality

a. Evidentiary rule
b. Communications in confidence: between attorney and client
c. In Court / Deposition: applies in much more limited circumstances when L requested to testify or give evidence; tied
into judicial process
d. Few exceptions: e.g. crime-fraud, waiver
e. Purcell v. Suffolk County Client told attorney that he would commit arson. Attorney uses the exception to duty of
confidentiality to warn the police. In court, attorney could NOT testify to his clients statements because of the
attorney-client privilege.

B.

4 elements must be met to show that communication is privileged (RE):

a. (1) Has to be a communication
i. Cannot be an independent discovery - can be confidential but not privileged
b. (2) Among privileged parties
i. atty/client; other people working w attorneys (e.g. paralegals, secretaries); also covers prospective clients
ii. Many 3rd parties not covered
1. ASK: whether someone serving for purposes of underlying representation vs. not (case re atty
communicating w accountant re accounting purposes, then not covered)
c. (3) Made in confidence
i. When expectation that info would be and remain confidential then satisfied
1. If not intended to be secret then not applicable; if client believes info revealed to others not
considered privileged
d. (4) For the purpose of seeking legal advice
i. Applies any time the communication or information arises from atty/client relationship (very broad)

C.

Work Product Doctrine

a. Evidentiary rule that provides privilege to materials prepared in anticipation of litigation (e.g. memos, notes,
documents)
i. Only applies to material prepared in anticipation of litigation (not necessarily to transactions)
ii. Provides mechanism for free client attorney communication and allows atty to prep case adequately
1. Also applies to communication with 3rd parties, as long as docs prepared in anticipation of litigation
iii. Can release part of the doc while withholding the part protected by work product doctrine
b. Exception
i. A party can obtain information if
1. Substantial need by an opposing party and
2. Undue hardship to obtain info from other source
(does not apply to expenditure of money or
difficulty of interviewing a witness)
EXCEPTION to Attorney-Client Privilege
a. Crime / Fraud
i. Client seeks out legal advice for the purpose, later achieved, of committing a crime or fraud
1. This can be satisfied by an attempt to commit crime or fraud
ii. Can happen inadvertently: gets advice that opens up possibility in clients eyes and uses that info to commit
crime or fraud
1. Does not apply when atty talks client out of committing crime/fraud
2. discourages criminal conduct: client knows that L possibly called to testify; protect abuse of L
services
b. Waiver
i. Client holds the privilege so its client ONLY who can decide if to waive the privilege or not
1. Atty must assert it in every situation where it applies
2. BUT atty conduct CAN sometimes result in waiver of actions
a. Any atty conduct that results in waiver subjects the atty to a malpractice action
ii. Express waiver (consent):
1. Client is the holder of the privilege; can tell atty that free to reveal info
iii. Partial waiver:
1. If a significant portion of a communication is revealed, the entire communication might be waived
(atty conduct waving the privilege)
iv. Forced Waiver:

D.

10

Professional Responsibility: Winkler

c.

1. Gov enforcing the corporation to waive the privilege for an investigation/prosecution

v. Inadvertent Waiver: reveal privileged info by mistake
1. MR 4.4: atty who receives inadvertently disclosed material should notify the sender promptly (does
not say what to do w the evidence)
2. Increasingly courts are saying atty cant use this in court
a. California:
i. Early cases: if info in the doc is helpful in your clients case, have a legal duty to
use if for you client
ii. More recent cases go the other way: if know or reasonably should know that doc
inadvertently disclosed, then have to stop reading the document, and return the
doc to sender (not able to use this doc in any way) [decided in CofA only]
vi. Waiver by Successors:
1. If company taken over by other company then for some purpose have a reason to waive the A/C
privileged information
a. Case: trustee taking over the company; decided to waive the information revealed law
firms info showing advice that they gave to company to commit fraudulent acts
Death of a client
i. Death does not waive atty-client privilege; privilege then held by the estate

Physical Evidence
A.
B.

C.

D.

Physical Evidence: any tangible item that could be introduced into evidence (e.g. books, contraband, docs)
Possession creates duty
a. In re Ryder Attorney goes to clients safe deposit box and puts stolen money and gun into his own safe deposit box
i. Court holds that it is an abuse of professional responsibility to knowingly take possession of evidence of
a crime
1. No reasonable relation to the privilege
2. Became an accessory after the fact
Should attorneys take possession of physical evidence?
a. Cases have held that required to turnover evidence after a reasonable amount of time
b. Advantage: authenticationprosecutor will not have corresponding testimony to authenticate the evidence
Rule 3.4: Fairness to Opposing Party and Counsel (Lawyers duty as an officer of the court)
a. Cant unlawfully obstruct opponents access to evidence or unlawfully alter/destroy/conceal a document having
potential evidentiary value. Cant counsel someone to commit such an act (e.g. counsel client to destroy or materially
alter the evidence)
b. Cant falsify evidence, counsel/assist a witness to testify falsely, offer an inducement to witness that is prohibited (to
get them to lie)
c. Cant knowingly disobey an obligation under the rules of the tribunal, unless asserting that the obligation doesnt
exist;
d. Cant make a frivolous discovery request or fail to make reasonable effort to comply with discovery request;
e. Elude to irrelevant matters during trial, assert personal knowledge of facts when not a witness, or state other personal
opinions
f. Cant request a person other than the client to refrain from giving relevant info unless (1) that person is a
relative/employee/agent of a client; and (2) the L reasonably believes the persons interests wont be adversely
affected by refraining from giving the info.
g. applies in civil and criminal context (w crim cases, also 5th am right against incriminating himself)

E.

Restatement 179
a. Attorney may take possession for a reasonable amount of time so long as no alteration of the evidence in order
to examine and test the evidence
i. If alters or destroys, then violates MR 3.4
ii. Allowed to test bc helps L to better prepare his case (testing changes evidence slightly but not materially)
b. Following possession: (1) return evidence; or (2) notify the prosecution
i. Atty has an obligation to take remedial measures if possesses: must notify authorities or turn it over to
authorities
1. L can also negotiate to use immunity before turning over evidence
2. L can turn in evidence anonymously
F. Attorney-client privilege once attorneys possess
a. Prosecution should be aware of the existence of attorney-client privilege
i. State must make certain that the source of the evidence is NOT disclosed
1. If 3rd party brings in the physical evidence (gun) not a privileged party (might be info related to
representation then confidential, but not privileged)
G. California
a. If lawyer comes into possession of the evidence, CA requires immediate notification of the authorities (but can
possess)
i. Differs from RE: does not require immediate notification

11

Professional Responsibility: Winkler

4

Perjury
A.
B.
C.

D.

Perjury: creates a conflict between lawyer-client privilege and lawyer as an officer of the court
Right to testify: Lawyer must abide by clients decision, after consultation, regarding testimony and plea - MR 1.2(a)
Rule 3.3: Candor Toward the Tribunal
a. Lawyer must not knowingly offer evidence that knows to be false
i. If a lawyer later learns that has offered material evidence that is false remedial measures
ii. Comment 7: Counsel client of duty to testify truthfully
iii. Lawyer can choose not to have a witness testify if L has reasonable suspicion that witness does not tell the
truth (L does not have to actually know that W is lying)
1. BUT should resolve doubts in favor of clients interest
b. Knowledge: Determining whether client committed perjury
i. Criminal cases:
1. MR: Actual knowledge needed, which may be inferred from circumstances
a. Requires very good actual knowledge (have to be certain) just doubts about the story or
no affirmative confirmation that will lie on stand (e.g. if I have to lie I will to save myself) is
not enough certainty
b. Even if L believes C is lying have to allow to testify bc have a constitutional right to
decide whether to take a stand in his defense.
c. If L knows client is lying: cannot call client to take the stand; instead can say my client
wishes to address the court
ii. Civil cases:
1. L can refuse to call civil client to testify; if client does not like it, can fire the atty
Remedial Measures
a. Remedial steps MUST be taken if client has committed perjury
i. Discuss with client to disavow evidence (that misspoke to the jury, etc)
ii. If client refuses Withdrawal from the case
1. What if not granted?
2. May require disclosure of reason for withdrawal (issue w atty-client privilege)
iii. If court does not allow withdrawal Disclose to the court to rectify
iv. Problem: Balancing duty of confidentiality and clients right to effective assistance of counsel with duty of
candor to the court
v. After Proceedings: lawyer has no obligation to fix previous court cases
1. If appeals process, then case not terminated, and lawyers duty remains strong
b. Narrative testimony (allowed in CA):
i. Allows client to testify while L not assisting in perjury
1. Call client to the stand and open ended questions, e.g. tell me what happened.
ii. Narrative approach: Cannot make reference to perjured testimony in closing statement

Revealing Business Fraud

A.

Rule 1.13: Organization as Client

a. Who is the client?
i. Attorney represents the entity and NOT any of its constituents parts
1. Constituents include directors, officers, employees, members, and shareholders
a. No attorney-client relationship
b. IF a constituent is engaged in action that is a violation, the lawyer should proceed as reasonably necessary in
the best interest of the corporation MR 1.13(b)
i. Either violation of legal obligation to the corporation OR a violation of law
1. L shall proceed for the best interest of the organization enables L to use his or her judgment
ii. Knowledge requirement
1. L must have 100% knowledge
iii. Substantial Injury Requirement:
1. De minimis violations do not count
a. L should give due consideration for seriousness of violation and its consequences
iv. Best Interest of the Organization (reporting up)
1. Lawyer must refer a matter to a higher authority of an organization unless reasonably believes that
it is NOT in the best interest of the organization
a. L has to have actual knowledge in order to have a duty to report up!
b. L cannot assist client in committing a fraud
i. better err on the side of reporting: permissive reporting up the ladder Cmt 4
1. Risk: assisting C in fraud vs mistaken report
2. MR: duty usually ends once have reported up (differs in Fed Law)
c. Duty to Warn Constituents
i. Lawyer must explain the identity of client when apparent that the organizations interests are adverse to
those that the member of the organization/constituent has

12

Professional Responsibility: Winkler

1.
d.

e.

B.

L has to explain that L represents organization not a member of organization, when L should
reasonably know that the member has adverse interest (e.g. tell constituent that the conversation
might not be privileged)

Higher Authority
i. If all the other elements are satisfied, should report to a higher authority (e.g. head of division, CEO, etc)
ii. If no satisfactory outcome, then can continue to go up to ladder until get to entitys highest authority (usually
board of directors)
Reporting Out
i. When highest authority has not acted appropriately after getting the information, the L may (not mandatory)
report out if the action is clearly a violation of law and then report as L reasonably believes necessary to
prevent reasonably certain substantial injury to the organization (differs under Fed Rules)

Federal Rules/ Sarbanes Oxley

a. Under Fed Rules there is duty to report to supervisory lawyer report up to your own ladder (mandatory). The duty
ends at that point (differs in MR duty to go up within the entity, next person up in the latter)
i. Fed Rules distinguish btw subordinate lawyers and supervisory lawyers
ii. Supervisory attys have obligation to report up to the entitys ladder until get appropriate response
b.

C.

Under Fed Rules supervisory L has to keep on reporting up until get appropriate response to the problem (e.g.
that violation, and next step)
i. Appropriate response: L has to be persuaded that it is an appropriate response, if not have to keep going up
the ladder can go to audit committee of the firm, or independent committee.
ii. If go up to QLCC then duty to report is ceased as a supervisory lawyer. Duty ends there.
1. Clear when the duty ends (more so than in MR)
c. Mandatory reporting kicks in when atty can conclude that it is reasonably likely that violation has occurred (differs
from MR where actual knowledge is needed)
i. Reasonably likely more than a mere possibility that fraud will happen (but not to level: more likely than
not)
d. Oxley permits reporting out if highest authority does not act appropriately re the misconduct L has specified (not
mandatory)
i. May report to SEC ones supposed to be put in notice; supposed to go to regulatory agency
e. Criticism of the Oxley rule driving the mack truck through confidentiality
i. But similar conduct ok in trial court if L puts false evidence into a trial
California
a. Duty to report out
i. There is no duty to report out in CA
b. Duty to warn
i. No duty to warn constituents about identity of client if adverse interests

13

Professional Responsibility: Winkler

4
1

Conflicts of Interest

Current Clients
A.
B.

C.

Concurrent Conflicts: Most frequently confronted in practice

Vicarious Conflict:
a. No lawyer in a firm shall represent a client when one lawyer has a conflict with the client
i. Every attorney inherits others conflicts in a firm: If one member of a law firm is disqualified, then whole firm
is disqualified
b. Many lawyers have to turn away clients bc of these conflicts (anywhere from 30-50% of potential clients)
i. Firms do conflict checks before taking on a client
Rule 1.7: Conflict of Interest - Current Clients
a. AnalysisConflicts involving 2 or more current clients
i. Are they directly adverse clients?
1. Yes, NO representation
2. No, is it reasonable to believe that relationship will remain affected?
a. Yes, NO representation
b. No, Do BOTH clients consent?
i. Yes, Representation is OKAY
ii. No, NO representation
ii. No, will representation be materially limited by duties to other clients, lawyers own interests, or 3rd party?
1. No, Representation is OKAY
2. Yes, is it reasonable to belief that representation will be materially affected?
a. Yes, NO representation
b. No, does the affected client consent?
i. Yes, Representation is OKAY
ii. No, NO representation
b. Determining if a client is a current client
i. Continuous Relationship
1. If currently doing work current
2. Look to on-going relationship between firm and client
a. IBM Court found on-going relationship because handled IBM cases prior and after
accepting engagement
3. Fee Agreementis there a retainer?
ii. Reasonable expectations of client
c. Directly adverse interests
i. Conflict exists when one client is directly adverse to another client
1. Direct adversity: atty advocates for one client and also represents another client, even in unrelated
matter
2. Same matter: Attorney CANNOT represent both sides, even with consent of both parties
a. Impossible to comply with duty of loyalty
b. California: one atty can represent both clients in family law/divorce case as long as both
parties consent
3. Unrelated matter: A v. B represent B; B v. C represent C
Materially limited by lawyers responsibilities to another client, 3rd persons, or lawyers own interests
i. Does not require 2 clients
ii. Not limited to litigation
iii. Where own interests are a stake
Special Types of Conflicts
a. Intimate relationships (MR 1.8):
i. Bars representing a client if intimate relationship arises during the course of a representation (have to
resign)
ii. Exception: Allowed when intimate relationship pre-existed the representation
1. There are diminished dangers when the intimate relationship pre-exist to attorney-client relationship
(otherwise worried about atty abusing his or her position)
b. Positional conflicts:
i. A lawyer may represent parties having antagonistic positions on a legal position in different cases (e.g. L
representing 2 clients in front of the same court in different cases and argue exact opposite legal positions)
1. UNLESS representation of either client would be adversely affected
a. E.g. may make the inconsistent arguments at different courts, different times but not when
precedent created would directly adversely affect another client
2. California: free to make inconsistent legal positions with no duty to disclose; not seen as conflict of
interest bc in todays legal world impossible to avoid.
c. Economic or political conflicts:
i. Economic, moral, political conflicts: NOT considered directly adverse (no conflict)
Waiver can wave when:
d.

D.

E.

14

Professional Responsibility: Winkler

a.

b.

c.

Lawyer has a reasonable belief that can maintain competent and diligent representation of a client; AND
i. When not fatal conflict & reasonable atty believes can represent competently
1. If cannot do the job, should stop representing
ii. The fact that the lawyer is materially limited does not mean that cannot be competent and diligent
representation
Representation is not otherwise prohibited by law; AND
i. Can be waved:
1. if sexual relationship pre-exists atty-client relationship
ii. Cannot be waved:
1. if sexual relationship arises later then prohibited by rule of legal ethics
2. if both parties that u represent are parties to a case prohibited
3. Fatal conflicts representation must die
Obtain the consent of a client
i. Informed consent from both parties, confirmed in writing (have to be confirmed in writing e.g. atty can
write down the process of getting informed consent)
1. Informed consent:
a. Should not persuade a client but lay out and explain all the consequences, possible
scenarios, etc. in order to get informed consent where the client makes an informed
consent while understanding risk, potential consequences, etc.

Joint Representation
A.

B.

Litigation
a. Civil Litigation
i. Can represent multiple parties if obvious that attorney can adequately represent the interest of each
1. NB! Better not to represent both, e.g. problems with settlements
ii. Requires client consent need to get a waiver
iii. Exception: criminal case
b. Criminal Co-Defendants
i. MR 1.7: should not ordinarily represent co-defendants (might be unethical and result in discipline)
1. Only allowed in extreme or unusual circumstances when know that conflict does not arise
2. Problems: different pleas, settlement agreements; also one co-defendant can accept a plea and
testify against the other co-defendant
Transactions
a. Joint representation: common representation permissible when there is common alignment btw the parties, can have
some (small) differentiation
i. Have to assess whether the parties are fundamentally antagonistic then should not represent
ii. Need to be able to see the problems before they arise and get consent, or decide not to represent jointly
b. Pros:
i. Lower fees; make the deal happen more smoothly, e.g. can more easily bring the parties together and deal
with conflicts better
c. Cons:
i. Information has to be shared - less protection
ii. Attorney-client privilege:
1. There is none btw the 2 parties who are represented together if there is a dispute btw the 2
parties, the lawyer cannot be stopped from testifying by either client (still effective to 3 rd parties)
2. Effect on atty-client privilege: absolutely essential that discuss it w clients; also if conflicts arise
what would be the procedure
iii. Threat to due care: the lawyers ability to take care of each of his clients is somewhat tenuous when
representing 2 parties
iv. Discharge: either party can fire, and even if just one fires, attorney has to withdraw from representing the
other party as well
1. Substantial relationship otherwise to the previous clients representation
2. Explain this to the clients in advance

Former Clients
A.

B.

Generally
a. There is generally no formal ending of the relationship, so it is often unclear whether a person is a former client
b. Why limit: With regard to former clients can come to know the strategies the client uses, inside procedures, and it can
be an important part of information
c. Hot potato doctrine: when firm drops a current client in order to make them former clients, so that they can take a
new client with potential conflicts of interest not allowed.
i. Courts can step in and disqualify the representation of the new client.
ii. BUT if no intent to take advantage, then likely allowed (if interests are not adverse)
Analysis: Material conflict between former client and current client
a. Does the former client consent?
i. Yes, Representation is OKAY
ii. No, are the matters substantially related?

15

Professional Responsibility: Winkler

1.
2.

C.

Yes, NO representation
No, does the attorney have confidential information?
a. Yes, Representation is OKAY IF NO use of confidential information
b. No, Representation OKAY
MR 1.9(a): No representation of another person against a former client in
a. Same matter
b. Substantially related matter where the persons interests are materially adverse to interests of former client
i. Exception: former client consents after consultation
ii. Substantial relationship tests: If 2 matters involve same or substantially related facts
1. No clear rules to determine substantial relationship: look at the duration of the relationship (the
longer the relationship the more info L has), similarity of facts of the case, nature of legal claims
(same legal issues), relationship btw parties, etc.
2. Ex: environmental matter in getting the permit for shopping center vs. representing a tenant in
eviction proceedings in a shopping center (not substantially related)
3. Reason: most likely you have confidential info when same or substantially related case that can be
useful to a new client (so should not acquire into the confidential info)
c. Confidential information
i. Cannot reveal confidential information
ii. Cannot share confidential information to help current client
1. Exception: client consent

Conflict Avoidance
A.

B.

Prospective Waivers:
a. Get a waiver when anticipate future conflicts bc once a conflict has arisen, hard to get a waiver from the client
i. Puts implicit social pressure on client once conflict arises not to fire an atty
b. Controversial: the protection is much more limited than thought; courts do not look favorably upon them
i. Courts also look at sophistication of the client if frequent consumers in the market of legal services then
waiver might have more effect in court
ii. BUT can still use as negotiation tool later on when conflict arises (rather than foolproof protection)
Screening of Lawyers Within a Firm
a. If one person in the firm has conflict of interest, he can be screened off from the case in the office (usually one
lawyers conflicts are shared by every lawyer in the law firm)
i. Screening lawyers now seen as ok; most files electronic so more realistic to screen someone from the case
b. Must provide notice to the former client: provides them with info and they can police the screening to make sure
everything is done properly
c. Rationale: Reflect the dominance of confidentiality over other values, and speak to the power of big law firms
(became a real problem to national firms)

16

Professional Responsibility: Winkler

Responsibilities to Third Parties, the Public, and the Profession

Frivolous Claims

1
A.

B.

C.

Rule 3.1: Meritorious Claims and Contentions

a. Lawyer shall NOT assert or defend an issue UNLESS
i. Basis for doing so
ii. That is NOT frivolous
1. Not frivolous: Good faith argument for an extension, modification, or reversal of law
a. Can bring a case in good faith to change the law
2. Lawyers MUST inform themselves of basic facts and applicable law, and determine whether there
is cause of action based on law and facts
a. Do not need to have all the facts to prove the case BUT have to know that not frivolous
claim filed in court
FRCP 11:
a. Principle of reasonable inquiry
i. Lawyer must ensure that not done for improper purpose
1. E.g. Harassing people rather than using legally appropriate redress not ok
ii. Warranted by the law or nonfrivolous argument for challenging the law
iii. Must determine that factual allegation supportable after discovery
1. Can do reasonable inquiry under the circumstances, e.g. if statute of limitation runs soon
iv. Denials for factual allegations must also be warranted
b. Benefit of FRCP
i. Under this rule client can benefit from monetary sanctions (not available under MR) so gives bigger incentive
to complain under rule 11 (similar rule under state law); so more likely to bring Rule 11 motion than MR
complaint
c. Rationale:
i. People do abuse the court system and lie about the facts creates an extra check on improper purposes to
bring a claim.
1. E.g. do not bring the case for wrongful death if do not know the cause of death
ii. Keeps a high level of standard in court proceedings: judiciary dependent on lawyers to bring the facts; can
look up the law but cannot do independent fact investigation.
iii. Proxy for lawyer competence: challenge for frivolous claims is a measure to bring in to light incompetent
lawyers
1. E.g. White v GM: slander case; atty failed to interview the employer who was alleged to have
received this slanderous statement of persons character. Just relied on clients statement to file a
claim. What made the claim frivolous was that atty was completely incompetent by not doing
investigation before bringing the case.
Improper Purpose
a. Proper Purpose: Proper purposes limited to seeking redress of your legal claim
i. FRCP 11:
1. Requires independently that the case should not be brought for improper purpose
a. if case brought for improper purpose it is a violation of Rule 11 no matter if there are
merits of the case
ii. MR new comment:
1. Improper purpose does not matter if meritorious claim
iii. Split in the courts:
1. Some say if case brought for improper purpose (bad publication, to harass the party, etc.) not ok
2. Others do not look into purpose if the claim is meritorious
b. NO Improper threats (threaten to reveal fraud in order to get settlements)
i. Criminal Process
1. Traditional Rule: cannot threaten criminal prosecution for a favorable settlement
2. ABA Formal Opinion: May threaten criminal process in certain circumstances
a. Where goal is restitution of embezzled funds (to get them back)
b. If criminal prosecution is related to the civil claims (if not related, not ok)
3. Threat that constitutes a tort

Communicating with 3rd parties

2
D.

MR 4.2: Communication with Person Represented by Counsel

a. The No Contact Rule: A lawyer CANNOT communicate
i. About the subject of the representation
ii. With a person the lawyer knows to be represented by another lawyer in the matter
iii. UNLESS
1. Has the consent of the other lawyer OR
2. Authorized by law to do so
b. Application:
i. Have to have actual knowledge that the person is represented by another lawyer

17

Professional Responsibility: Winkler

E.

1. Once receive a notice, have a knowledge that person represented

2. If the lawsuit not filed yet, most likely no representation
ii. Cannot have a 3rd party do for you that you cannot do it yourself (cannot instruct an investigator to question
someone in your place)
iii. Clients CAN communicate with the represented parties BUT lawyer cannot advise the client about that
conversation
1. Lawyer can protect clients own interest when advising how to handle that situation - allow a lawyer
to advise, and tell them to ask to settle the case, etc. creates a loophole in a way re 3rd party
questioning.
MR 4.3: Dealing with Unrepresented Person
a. Atty, in dealing with an unrepresented party, should NOT state that disinterested
i. Lawyer should correct any misunderstanding
ii. If unrepresented party with a conflicted interest from client, must advice that cannot advise because of the
conflict
1. Advise that get separate counsel
b. Application:
i. Disinterested: L cannot imply that he is on that unrepresented persons side (implicit in that rule)
ii. Correct Misunderstanding: If the lawyer knows or should have known that party has misunderstanding about
the representation of a lawyer even if lawyer is not really responsible for that misunderstanding,
1. Any kind of deceit, fraud, or misrepresentation is a violation of the Rules
iii. Lawyer cannot advise or give legal advice to the unrepresented party BUT can negotiate and sign a contract
with a party who is unrepresented.

Public Interest Law

3
A.

B.

Public Interest Practice:

a. Organizations that are seeking to vindicate some public policy to promote a larger cause (often class action,
injunctive relief, test suits, etc)
b. There is a tension btw individual clients zealous representation and broader public interest
c. What counts as a public interest firm? Tax exempt - IRS
i. IRS rules: Pursue cases with a broad public interest and not a private interest
1. Private interest CANNOT be a substantial part of the representation
a. Private interest: actions between private persons where financial interest at stake
i. Interests are private: when can get privately financed representation, rather
than public interest firm representation
2. Requirements
a. Policies and programs must be decided by committee/board, not by client
b. Fees limited to the actual cost of litigation (no profits)
c. No substantial lobbying or political activity
ii. Conservative legal foundations
1. If funded by business
2. Equality perspective
Ethical Dilemmas of Public Interest Attorneys
a. Solicitation:
i. Generally: no solicitation for pecuniary claim
ii. BUT public interest firm can send personally targeted letter because there is no pecuniary claim
1. SCOTUS: ACLU case re solicitation
b. Primary Problem: conflict of interest
i. Public interest firms have an agenda outside of servicing clients
ii. Conflicts can arise between clients and firm
c. Settlement of claims
i. Scope of authority MR 1.2: A lawyer must abide by clients decision whether to accept an offer of
settlement of a matter
1. Duty to inform client about a settlement
2. Advice client about the choice of settlement
a. Problem: if C chooses to accept the settlement offer it is a problem in pub interest bc it is
not for the broader public good (and goes against Ls goals)
b. Cannot limit the scope of representation to waive the C power to settle a case BUT can
advise client on any issues that are relevant, including moral, political
ii. Confidentiality Agreements
1. In settlements, defendants typically demand confidentiality
2. May not restrict the lawyers ability to represent future clients
iii. Limited engagement agreements: May limit the objectives of the representation if client consents after
consultation so that if C accepts a settlement then have to pay for attys fees.
1. Cannot limit the right to terminate lawyers services or to settle
a. No distinction for public interest firms
2. May provide for awarding fees
a. If a client accepts a settlement waiving fees, then client is responsible for the fees
iv. Conflict of Interest:

18

Professional Responsibility: Winkler

1.

L has strong personal interest to reject a settlement if advises the C not to accept a settlement
then there is a conflict of interest. L may have to advise and get informed consent from C to
represent C further.
v. Tax exemption:
1. Issue with tax exception from IRS: if accept too many settlements IRS may remove the tax-exempt
status
vi. Remedies:
1. Withdrawal: can withdraw from representation when fundamental disagreement or lawyer finds
repugnant (both would be satisfied)
a. BUT: Often courts approval that asserts jurisdiction over a case is needed
2. Waiver: Prospective waiver of conflict of interest
a. Hard to know, to foresee conflict in advance
C.

Fees:
a.

Most public interest lawyers do not normally charge fees; if they do, then only charge actual costs
i. Rather they seek court awarded fees or use statutes that shift fees to D

Pro Bono Services

4
A.

B.

Pro Bono Practice

a. Usually constitute regular legal services (e.g. criminal cases, etc)
b. Generally thought not to involve public interest at large but public interest indirectly
c. Do not involve charging of fees seek to protect and serve the interest of individual client
Pro Bono Legal Services:
a. Distinguished from public interest
i. Public Interest
1. Seeks compensation from the opposing party
2. Designed to solve a larger social problem
ii. Pro Bono
1. Not seeking any form of compensation
2. Litigation for an individual problem
b. MR 6.1: A lawyer should aspire to render 50 hours of pro bono legal services per year
i. People of limited means OR
ii. Charitable, religious, civic, community, governmental and educational organizations in matters designed to
address needs of persons with limited means
c. Should pro bono be mandatory?
i. Alternative: require firms to do pro bono work
ii. If mandatory problem with competence
iii. California: no mandatory requirement BUT much broader acceptance of pro bono work in firms

Trial Publicity

5
A.

B.

C.

D.

Free Speech and Fair Trials Generally

a. Fair trials are fundamental goals to US legal system BUT may be inhibited by media coverage of cases can be
prejudicial to juries, etc.
b. Issue: free speech and 1A rights balanced with a Ds right to fair trial
c. Vast majority of cases not subject to any kind of media attention -- if there is such publicity, then it is generally about
public vengeance, or high profile parties, facts, etc.
MRs inspired by Sheppard v Maxwell Case:
a. Massive trial coverage in early 60s. Media presence was such that the SCOTUS said that he had not received a fair
trial bc there was carnival atmosphere surrounding the trial. So, judge should do more to protect the courtroom from
media to get a fair trial.
Rule 3.6: Trial Publicity
a. Prohibition on extrajudicial statementselements
i. A lawyer participating in an investigation/litigation shall NOT
1. Exempts attorneys who are not involved in the litigation so only apply to lawyers who participate
or previously participated in the case (affects very few L)
ii. Make an extrajudicial statement
iii. That a reasonable person would expect to be disseminated by public communication
iv. IF Lawyer knows/should know
v. Substantial likelihood of material prejudice
1. Critique: ambiguous and effect on freedom of speech
2. Function of how much press coverage has already been
a. Lots of publicity less likely to materially prejudice
b. More publicity more likely to materially prejudice
Safe havens & prejudicial statements:
a. Prejudicial Comments Comment 5: Dangerous Harbor
i. Character, credibility, or reputation assertions
ii. Criminal record of a party

19

Professional Responsibility: Winkler

iii.

E.

Referring to inadmissible evidence

1. Knows or reasonably should know that likely inadmissible and creates a substantial risk of
prejudicing an impartial trial
iv. Any opinion as to the guilt or innocence
v. Discussing possibility of a plea (of guilty) in criminal case
vi. The existence or contents of any confession, admission, or statement given by defendant
vii. Fact that defendant has been charged with a crime
1. UNLESS explain that it is an accusation and the defendant is presumed innocent until and unless
proven guilty
viii. Performance or results on any examination or test (test results) and any physical evidence expected to be
presented
ix. P.S. This list is not exhaustive
b. Safe Harbor Comments MR 3.6(b) not prejudicial
i. Claim, offence, or defense involved
ii. Identity of the parties
iii. Investigation is in progress
iv. Information that is public record
v. Scheduling or result of any step in litigation
vi. Make a request for assistance in obtaining evidence and information (e.g. hotline)
vii. Warning of danger concerning behavior of a person involved if likelihood of substantial harm
viii. Plus in a criminal case:
1. the identity, residence, occupation and family status of the accused;
2. if the accused has not been apprehended, information necessary to aid in the apprehension of that
person;
3. the fact, time and place of arrest; and
4. the identity of investigating and arresting officers or agencies and the length of the investigation.
Right of reply MR 3.6(c): loophole
a. L may make a statement that:
i. A reasonable lawyer would believe is required to protect a client
ii. From substantial undue prejudicial effect
iii. Of recent publicity NOT initiated by the lawyer or client
iv. Limitation: Information necessary to mitigate recent adverse publicity
b. The exception that swallows the rule SINCE right to reply does not restrict L to reply only for statements made
by opposing party; can reply to any talking head commentators.

20