Confidentiality

Rule 1.6 – Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client
gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer
reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in
substantial injury to the financial interests or property of another and in furtherance of which
the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of
another that is reasonably certain to result or has resulted from the client's commission of a
crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer
and the client, to establish a defense to a criminal charge or civil claim against the lawyer
based upon conduct in which the client was involved, or to respond to allegations in any
proceeding concerning the lawyer's representation of the client; 

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

(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or
from changes in the composition or ownership of a firm, but only if the revealed information
would not compromise the attorney-client privilege or otherwise prejudice the client. 

(c)  A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of,
or unauthorized access to, information relating to the representation of a client.

1.6(a) - Attorneys are required to maintain confidentiality

 Elements
1) A Lawyer
2) Shall not reveal
3) Information
4) Relating to
5) The representation of a Client

UNLESS: 1.6(b) applies

 “May” is the operative word – Attorney may use discretion in maintaining confidentiality
 Focused on 1.6(b)(1), 1.6(b)(2), and 1.6(b)(6)
o 1.6(b)(6) – determines whether a legal compulsion exists
 If legal compulsion exists  Must then assess under attorney/client privilege.

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Case Example:

Spaulding v. Zimmerman

- Spaulding sued Zimmerman for injuries resulting from a car accident

- Zimmerman’s attorney knew of an aneurysm in Spaulding’s lung
o Attorney did not disclose this information
o Had the option to disclose under 1.6(b)(1)
- Spaulding took a settlement which was calculated without the knowledge of the aneurysm
o Settlement amount would have increased exponentially if aneurysm was disclosed.

Additional Rules:

Rule 1.2 – Scope of Representation and Allocation of Authority Between Client and Lawyer

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the
objectives of representation and, as required by Rule 1.4, shall consult with the client as to the
means by which they are to be pursued. A lawyer may take such action on behalf of the client as
is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision
whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after
consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether
the client will testify.

(b) A lawyer's representation of a client, including representation by appointment, does not constitute
an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the
circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is
criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of
conduct with a client and may counsel or assist a client to make a good faith effort to determine
the validity, scope, meaning or application of the law.

1.2(a) – Acceptance of settlements are the decision of the client. Lawyers cannot make this decision on
behalf of the client unless the client agrees by informed consent.

1.2(d) – An attorney cannot assist a client to commit a crime or fraudulent activity.

Rule 1.4 – Communication

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's
informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be
accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

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 (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer
knows that the client expects assistance not permitted by the Rules of Professional Conduct or
other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.

1.4(b) – Lawyer must provide informed consent to client to determine value of claim.

Attorney Client Privilege

Attorney Client privilege is used when there is a legal compulsion for an attorney to disclose confidential
information under Rule 1.6(b)(6).

- A legal compulsion exists when an attorney is called to testify about confidential information.
o Court can elicit testimony or hold attorney in contempt of court unless the attorney
client privilege exists.
- Attorney Client privilege only protects communications
- Attorney Client privilege is a limited privilege
o Based on a balancing test
 Right/Interests of the Individual v. Interests of Society
 Rights:
o Right to not incriminate
o Right to effective representation
o Preservation of dignity
 Interests:
o Interest in convicting appropriately
o Interest in protection of society
o Interest in searching for and finding the truth

Attorney/Client Privilege Rule

- 6 C’s
1) Client
a. Anyone who is a client; and,
b. Anyone who sought to become a client
2) Communicates
a. Information from client
b. Must come directly from client [reason this differs from Rule 1.6(a)]
c. Observation is permitted and still considered protected (Belge)
3) Confidentiality
a. Without the presence of strangers

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 i. If unsecured, it is not confidential (non-secure emails, cell phone calls, the
facebook, etc)cf
4) To Counsel
a. To a member of the bar; or,
b. A lawyer’s subordinate
5) For Counsel
a. For the purpose of securing an opinion on the law; or,
b. For legal services; or,
c. Assistance in a legal proceeding
6) Claimed and not waived by Client (attorney/client privilege)
a. Not the attorney’s privilege to assert or waive (client must decide)

Case Examples:

People v. Belge

- Belge is attorney from a previous murder trial

o Client told him where several bodies were hidden
o Belge investigated and determined this to be true
 Intended to use these additional murders to assist in an insanity defense
- Belge was charged with public health law violations for failure to disclose the information
o Belge claimed attorney/client privilege
 Court determined all elements of attorney/client privilege existed
 Belge was not found guilty of failure to disclose

In re Ryder

- Ryder represented a client charged with bank robbery

o Ryder knew or should’ve known his client did commit the robbery
- Client gave Ryder power of attorney over his safe deposit box
o Ryder went to bank and opened safety deposit box belonging to client
 Transferred the gun and money inside to his own safety deposit box
- Attorney client privilege did not protect Ryder in taking this action
o 2 reasons
 For counsel – actions were for concealment, not for counsel
 Possession of the items contributed to assistance with concealing the
crime
 Communication – Not allowed to alter, destroy, or possess the evidence,
instrumentality, or fruits.
 Physical possession is not the same as communication
 It goes beyond the acceptable limit of observation permitted in Belge.
- Ryder found guilty for his failure to disclose the information

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Note: Possession v. Observation

- Differences between Belge and Ryder

o 2 viewpoints
 Possession (ex. Key)
 Must physical possess an item to destroy communication
 Objective Rule: If you can “put it in your pocket”, it is possession and
not protected
 Access (ex. Combination)
 Ability to possess an item, usually “exclusive” possession
 “Similar interest treated similarly” argument
o Keys and combos both unlock things; therefore no distinction
should be made
 Subjective Rule
o Majority rule is actual possession

More Case Examples – Attorney/Client Privilege Exceptions

State v. Hansen

- Hansen contacted Youtz (an attorney) to represent him in civil claim against the Court.
o Youtz refused
o Hansen became upset and threatened to murder a judge and other court officials
- Youtz reported the threat and Hansen was arrested
o Hansen claimed the conversation was confidential because he was seeking legal counsel
from Youtz
o Court held Youtz had a legal compulsion to disclose the threat under 1.6(b)(1)
 This legal compulsion only existed because the threat was against the judiciary
- Attorney/Client Privilege is the only option because of legal compulsion to disclose
o Hansen Rule for Determining Attorney/Client Relationship
 Client must believe attorney client relationship exists (subjective test)
 Can be determined by statements and conduct
 Belief must be reasonable (objective test)
 Can be determined by attending circumstances
o Number of Communications
o Nature of Communications
 What is said and what is not said
o Location of the Communications
o Who initiates the Communications

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 o Duration of the Communications

Rule 1.18 – Duties to Prospective Clients

(a)  A person who consults with a lawyer about the possibility of forming a client-lawyer relationship
with respect to a matter is a prospective client.

(b)  Even when no client-lawyer relationship ensues, a lawyer who has learned information from a
prospective client shall not use or reveal that information, except as Rule 1.9 would permit with
respect to information of a former client.

(c)   A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to
those of a prospective client in the same or a substantially related matter if the lawyer received
information from the prospective client that could be significantly harmful to that person in the
matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under
this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake
or continue representation in such a matter, except as provided in paragraph (d).

(d)   When the lawyer has received disqualifying information as defined in paragraph (c),
representation is permissible if:

(1)   both the affected client and the prospective client have given informed consent,
confirmed in writing, or:

(2)   the lawyer who received the information took reasonable measures to avoid exposure to
more disqualifying information than was reasonably necessary to determine whether to
represent the prospective client; and

(i)    the disqualified lawyer is timely screened from any participation in the matter
and is apportioned no part of the fee therefrom; and

(ii)   written notice is promptly given to the prospective client.

1.18(a) – Elements designating a prospective client

1) Person
2) Who consults
3) With a lawyer
4) About the possibility of forming a Client-Lawyer relationship with respect to a matter

1.18(b) – Protection for prospective clients

When a client meets the requirements of 1.18(a)

- Have protection under Rule 1.9 (duties to former clients)
- 1.9 provides same protection as Rule 1.6 (duties to current clients)
- If legal compulsion exists requiring disclosure of confidential information from
prospective clients, apply Attorney/Client Privilege analysis.

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Upjohn Co. v. United States

- Who qualifies as a client in a corporate setting?

- Institutional
o Control Group Test
 Anyone in a position to take a substantial role in a decision about any action the
corporation may take upon the advice of the attorney
o Subject Matter Test
 Those people of people in corporation who can give attorney
 Protects anyone who works within the corporation and it is used to give sound
legal advice.
- Court uses the subject matter test
o Subject matter test broadens the scope of protection from just the control group to the
employees
o Legal compulsion is to release the information
- If the zone of silence is too large – companies are able to get away with a lot of illegal things.
o Supreme Ct. upheld the subject matter test and the broad zone of silence
 Reason – privilege only protects the communications and not the factual
elements
 Person seeking info can still ask the employees – just can’t get it from
the attorney.
- POLICY – if the client cannot count on an attorney to keep the info confidential, they will not
discuss the case with the attorney
o Won’t get effective advice

RULES 4.1, 4.2, and 4.3  All apply only to Persons who are not Clients

Rule 4.3 – Dealing with an Unrepresented Person

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not
state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know
that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall
make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to
an unrepresented person, other than the advice to secure counsel, if the lawyer knows or
reasonably should know that the interests of such a person are or have a reasonable possibility of
being in conflict with the interests of the client.

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 4.3 – First Sentence Elements
1) Dealing on behalf of a client
2) With person not represented by counsel
3) Lawyer should no state or imply the lawyer is disinterested

Means  A lawyer representing a client, cannot suggest they are not representing the client.

4.3 – Second Sentence Elements

1) When a lawyer KNOWS or REASONABLY SHOULD KNOW
2) When unrepresented person doesn’t realize the lawyer role, the lawyer must take
reasonable efforts to convey to the person who the lawyer represents

SUMMARY - 3 points

1) When dealing with a client not represented by counsel

a. Not allowed to state or imply disinterest
2) If attorney knows or reasonably should know person doesn’t understand the role
a. Must reasonably convey stance
3) Only advice to give person is to seek independent legal counsel

Rule 4.2 – Communication with Person Represented by Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation
with a person the lawyer knows to be represented by another lawyer in the matter, unless the
lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

4.2
When a person is represented by another person
- Unable to discuss the legal situation with the person unless the other attorney
consents unless the law authorizes the lawyer to do so.

Work Product Doctrine

- Broader than attorney client privilege

o Not restricted to communications
- Narrower than attorney client privilege
o Must be preparing the info for civil litigation
- Sometimes the info must be disclosed

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 o If the witness dies prior to the other party interviewing
- Always protects ideas, opinions, mental impressions

Togstad v. Vesley, Otto, Miller & Keefe

Legal malpractice

1) Attorney-client relationship existed

2) D acted negligently or in breach of contract
3) That such acts were proximate cause of P’s damages
a. Cause – But for D’s conduct, the P’s could have been successful in prosecution of
medical malpractice (Insert any malpractice type) suit
b. Proximate (will be a symbolic issue)

To prevail must show the jury would first have ruled in favor of the medical malpractice claim

- Then, try the legal malpractice claim

Attorney-client relationship is issue in case.

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Attorney Client Relationship: [factors, not all required] USE THIS ANYTIME ONE OF THE PROBLEMS IS
WHETHER AN ATTORNEY-CLIENT RELATIONSHIP EXISTS.

1) Plaintiff must believe an attorney-client relationship exists; AND,

2) That belief must be reasonable
a. Number of Communications
i. Did client initiate?
b. How they communicated
c. Where they communicated
d. Nature of the communication – can be what is said and what is not said (under what
circumstances)
i. Was legal advice given?
e. Would a reasonable lawyer have known client would rely on his words or actions?
i. Or, would a reasonable client have relied? (#2)
ii. Or, did the client rely? (#3)
f. Consideration given by client (monetary)

Negligence approach #1 (Note #3, bottom pg 42)

1) Lawyer rendered legal advice (not necessarily asked for)

2) Under circumstances that made it reasonably foreseeable to lawyer if advice was rendered
negligently, the individual receiving the advice might be injured thereby.

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(If advice is given under circumstances where the attorney should reasonably anticipate that if bad
advice is given and injury would occur an attorney client relationship is created)

Negligence approach #2 (tort approach)

1) Individual seeks (different from #1)

2) Individual receives
3) Legal advice
4) From an attorney
5) In circumstances in which a reasonable person would rely on such advice (reasonable person
functioning as client – not a reasonable lawyer as in #1)

Negligence approach #3 (contract approach)

1) Advice requested
2) Advice received
3) No payment to attorney
4) Client had to rely on advice
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BEGIN INFO FOR QUIZ #2

(Rule on Page 2)
Rule 1.2 – Relating to the scope of Representation and Allocation of Authority Between Client and
Lawyer

 This Rule transitions into Rule 1.16

Rule 1.2(a)

- Divides decision making responsibility between the client and attorney

- Client has control over objectives (also covers decisions affecting substantial rights)
o Decision to settle
o Decision to plea
o Whether a jury trial is held or waived
o Whether the client will testify
o Whether to enter into arbitration
o Concern for the rights of third parties adversely affected
- Lawyer has control of means (procedural decisions)
o Still in consultation with the client
o If client disagrees, has ability to fire you as the attorney
 Lawyer also may fire client if goals and objectives are questionable - 1.16(b)(1)

Rule 1.16 Declining Or Terminating Representation

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(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has
commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent
the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the
client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer
reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the
lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's
services and has been given reasonable warning that the lawyer will withdraw unless the
obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been
rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when
terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue
representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable
to protect a client's interests, such as giving reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and property to which the client is entitled and
refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer
may retain papers relating to the client to the extent permitted by other law.

Notes 1.16:

1.16(a) – Rule specifies “Shall Not Represent” (unless court mandates it.)

1.16(b) – Rule specifies “May Withdraw from Representing” (unless court mandates it.)

- IN CLASS FOCUS ON – 1.16(b)(1)

1.16(c) – Notice to Court when not representing a client. Court Mandate overrule

1.16(d) – Duties to Client if withdrawing from representation (common sense – did not
discuss in class)

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Rule 1.2 and 1.16 Case Example
- Holland
o Holland was sentenced to death and directed attorney to not follow through on
representing an appeal.
o Holland preferred smoking over life “Give me cigarettes or give me death”
o Holland’s attorney was following the
 RULE 1.2(a) -- The attorney was required to inform Holland of the options and
the possible outcomes  Provide Counsel
 RULE 1.2(d) – Holland did have the ultimate say in the outcome/objective.
 RULE 1.16(c) – Attorney was ordered by the court to represent Holland
Rule 1.7 Conflict Of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation
involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially
limited by the lawyer's responsibilities to another client, a former client or a third person or by a
personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer
may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and
diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another
client represented by the lawyer in the same litigation or other proceeding before a tribunal;
and
(4) each affected client gives informed consent, confirmed in writing.

Rule 1.7(a) - Conflict of Interest of Current Clients

An attorney may not represent 2 people who are clients when their interests are directly adverse.

Consentable v. Non-consentable – RULE 1.7(b)(4)

- If concurrent clients have conflicting interests, attorney may represent both parties
ONLY IF informed consent is obtained IN WRITING.
- Some issues may not be consentable  Consentability relies on the attorney’s ability
to maintain the utmost best interest and objectives of both clients.
o SO FAR – the default answer in class has been “No, it’s not consentable”

Consider – RULE 1.4 and 1.6 when a 1.7 issue arises (Duty to Disclose v. Duty of Confidentiality)

- Many times in order to get informed consent, it results in a breach of 1.4 or 1.6
depending on the client
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Case Example
- Hotz v. Minyard
o Case of current client conflict
o Dobson represented 2 issues within a family
 First , the will of the father
 Second, Daughter (Judy) had a long-term attorney/client relationship with
Dobson. Also sought information relating to the will created by her father.
o Father created a fake will with the family present
 Later went and revised the will to give son all of the assets (cut Judy out of will)
 Created 1.6 issue with the father
 Judy wanted info – Created a 1.2 and 1.4 issue
o Dobson faced with both 1.7(a) and 1.7(b) issues.
o Should have either refused to represent both clients on the concurrent issues or
withdrawn under Rule 1.16

Rule 1.8 Conflict Of Interest: Current Clients: Specific Rules

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an
ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable
to the client and are fully disclosed and transmitted in writing in a manner that can be
reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable
opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of
the transaction and the lawyer's role in the transaction, including whether the lawyer is
representing the client in the transaction.
(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the
client unless the client gives informed consent, except as permitted or required by these Rules.
(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare
on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial
gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this
paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative
or individual with whom the lawyer or the client maintains a close, familial relationship.
(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an
agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part
on information relating to the representation.
(e) A lawyer shall not provide financial assistance to a client in connection with pending or
contemplated litigation, except that:

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 (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be
contingent on the outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on
behalf of the client.
(f) A lawyer shall not accept compensation for representing a client from one other than the client
unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional judgment or with the
client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.
(g) A lawyer who represents two or more clients shall not participate in making an aggregate
settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to
guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the
client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved
and of the participation of each person in the settlement.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice
unless the client is independently represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client or former
client unless that person is advised in writing of the desirability of seeking and is given a
reasonable opportunity to seek the advice of independent legal counsel in connection
therewith.
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation
the lawyer is conducting for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.
(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed
between them when the client-lawyer relationship commenced.
(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that
applies to any one of them shall apply to all of them

Rule 1.8 – Conflict of Interest – Current Clients – Specific Rules

1.8(a)

- Dealing with a client in a transaction which is NOT open to the general public
- Exceptions exist (1-3)
1. Fair and reasonable manner of acquisition with full disclosure transmitted in writing;
2. Client advised of possible conflict and given reasonable opportunity to seek alternate
counsel; AND,
3. Client provides informed consent in writing including essential terms including whether the
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lawyer is representing the client.

1.8(b)
1.8(c)

- Relates to making a will.

- Unable to create a will that benefits the person (attorney) writing it unless the persons are related.

1.8(d)

- Client cannot give book or movie rights prior to the end of the representation
o Some high profile cases  this is the payment to the attorney

1.8(e)

- Lawyer cannot provide financial assistance for court costs

o Able to loan court costs and forgive if the case is lost
o Exception  Able to pay court costs and expenses if person is indigent
- Not allowed to give money or gifts for living expenses
- Rational is to not have the client feel bound to the benefits given by the attorney

1.8(f)  MAJOR FOCUS IN CLASS

- Relating to financial compensation from person other than client.

- 2 examples given
o Ex. Parents for child  Child is client, parents pay
o Ex. Insurance defense work
 Client is the insured under 1.8(f)
 Attorney wants to keep insurance defense business (may be inclined to get
insurance company a “good deal” at the expense of the client.
 Model Rule in MINORITY of jurisdictions (most follow stricter Majority Rule)
 MAJORITY  Both the insured and the insurance company are clients
o Creates a concurrent conflict of interest exists
o If conflict is non-consentable, then both clients must be forfeited.
- When law firms are contracted for representation, insurance companies may limit the nature of the
preparation and discovery for trial.
o Regardless of restrictions, must be able to provide a diligent and reasonable representation
even if it is beyond the number of services paid for by the insurance company.

1.8(g)
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- Unable to do aggregate settlements unless all clients give informed consent in writing

1.8(h)
1.8(i)

- Unable to trade value in the case in exchange for compensating the lawyer

1.8(j)

- Unable to have sex with clients unless already having sex prior to beginning representation
- Should be romantic relationship  not only sexual

Case Example – AUTOMATIC REVERSAL RULE – Derived from 6th Amendment violation
- Mickens v. Taylor
o Attorney was appointed to represent the client accused of murder of a previous client
 Attorney/client relationship with prior client was terminated as a result of the
murder.
 Court holds the primary issue is a 6th amendment constitutional problem.
 AUTOMATIC REVERSAL RULE
o Results from “Ineffective Counsel”
 RULE: Whether there is a reasonable probability but
for counsels unprofessional error the result of the
proceeding would have been different
 ELEMENTS:
 Counsels unprofessional error
 Reasonable probability that error changed the
outcome of the case
 EXCEPTIONS: (Derived from 2 cases)
 Defendant counsel objects to conflicting
interest [Holloway]
 Defendant counsel does not object [Sullivan]
o Must show a conflict of interest
(ADJECTIVE/ADVERB) affected the
representation (different than outcome

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 – easier test than showing the outcome
would have been lesser)
o Adjective/Adverb  Stated 3 different
ways in the case
 Actually - real
 Significantly - big
 Adversely – negative
o Use on any or all of the above terms
determine the burden of proof for
Automatic Reversal Rule
Rule 1.9 Duties To Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another
person in the same or a substantially related matter in which that person's interests are materially
adverse to the interests of the former client unless the former client gives informed consent,
confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in
which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is
material to the matter;
unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has
formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client
except as these Rules would permit or require with respect to a client, or when the information
has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or
require with respect to a client.

Rule 1.9(a) – Substantially Related Matters

- Elements:
o Previously represented a client
o Whose interests are materially adverse to a current client
o In the same or a substantially related matter
- 3 Things Must Be Present to raise problems 1.9 and 1.10
1) Materially adverse Interest
2) Confidential information from both sides
3) Same or substantially related matter (3 tests below)
a. Issues Test
i. Are there legal issues in the first case that are like the issues in the second
case
17
b. Actual Facts Test
i. Are there facts disclosed in the first case which are relevant in the second
case (must be disclosed facts)
 c. Westinghouse Test (Page 127)  upholds the appearance of fairness
i. Factual reconstruction of the prior representation
a. [Review of legal issues and facts relevant to the issues – Judge
creates list of these facts]
ii. Reasonable to infer that the confidential information allegedly given
would have been given to a lawyer representing a client in those
matters.
a. [Assess the list of facts – determine how much of the info is
reasonable is assume the attorney had received the info]
iii. That information is relevant to the issues raised in the litigation pending
against the former client
a. [Determine if the facts are relevant to the current case]
 IF YES  Then there is a substantial relationship

Rule 1.10 Imputation Of Conflicts Of Interest: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any
one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless
(1) the prohibition is based on a personal interest of the disqualified lawyer and does not
present a significant risk of materially limiting the representation of the client by the remaining
lawyers in the firm; or
(2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s
association with a prior firm, and
(i) the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom;
(ii) written notice is promptly given to any affected former client to enable the former client
to ascertain compliance with the provisions of this Rule, which shall include a description of
the screening procedures employed; a statement of the firm's and of the screened lawyer's
compliance with these Rules; a statement that review may be available before a tribunal;
and an agreement by the firm to respond promptly to any written inquiries or objections by
the former client about the screening procedures; and

18
 (iii) certifications of compliance with these Rules and with the screening procedures are
provided to the former client by the screened lawyer and by a partner of the firm, at
reasonable intervals upon the former client's written request and upon termination of the
screening procedures.
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from
thereafter representing a person with interests materially adverse to those of a client represented by
the formerly associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated
lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is
material to the matter.
(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions
stated in Rule 1.7.
(d) The disqualification of lawyers associated in a firm with former or current government lawyers is
governed by Rule 1.11.

Vicarious Conflict – Representation conflicts based on conflicts of partners in the firm

Conflict exists when these 3 ELEMENTS EXIST:

1) Interests are materially adverse

2) Same or substantially related matter for the clients
3) Confidential info for both sides in the same firm at the same time

Rule 1.10(a) – When working in a law firm, the client of 1 partner is the client of all partners

- Side NOTE  If 2 partner are in a firm - They MAY exchange confidential info (1.6 requires the law
firm to keep the info confidential)
- If an attorney has any contact which could have transmitted confidential info  attorney is treated
as though they were representing the client (even if they weren’t involved in the case)

Rule 1.10(a)(2)

- Prohibition of lawyers who have confidential info in a new firm

o Lawyer may be screened out of the representation
o Then firm is not disqualified from the representation of the client (enemy of previous firm)

Law Firm Composition and Screening under Rule 1.10

Typical law firms used to be partnerships

- If a partner, leaves a partnership  it is dissolved

19
o Remaining members could reform the partnership but it is a new law firm
o If all 3 things exist in this situation  firm would be able to represent the enemy client even
with confidential info (no problem because the partnership is a new law firm following
Senarios:

1) Law firm with 2 attorneys

a. Associate leaves – Partner remains
i. Enemy comes for representation
ii. Partner in law firm has confidential info about the former client
iii. Unable to represent
2) Law firm with 2 attorneys
a. Associate leaves – Partner remains
i. Enemy comes in for representation
ii. Partner does not have confidential info about former client
iii. Able to represent
3) Law firm with 2 attorneys
a. Both partners
i. One partner leaves with the client
ii. Other partner has confidential info
iii. Now, firm must screen remaining partner
1. Able to screen because a new firm is created following dissolution
iv. Able to represent with screen in place

Screening Application

Do all 3 elements (highlighted above) exist?

a. In No  No Problem
b. If Yes  Must assess 1.9 and 1.10
i. What do we want to know?
1. Is the lawyer disqualified?
a. If 3 things Present, Yes.
2. Is the firm disqualified?
a. Is the lawyer in the same firm as when representing the client and receiving
the confidential info
i. In old firm = disqualification
20
ii. In new firm = can be screened

3 points:
 2) Only fixing the problem as to the former client
a. Still have a problem with the current client
b. After this assessment  MUST then apply 1.7 for current client’s protection
3) What does screening mean?  7 elements to make effective
a. LaSalle Pg. 132
i. Notice to affected parties
ii. Implicated lawyer must be denied access to relevant files
iii. Implicated lawyer cannot share in revenue from the case
iv. Discussion of suit prohibited in presence of the implicated lawyer
v. Firm can’t show implicated lawyer documents
vi. Firm and lawyer affirm all this under oath
vii. Mechanism for affected former clients to monitor

Rule 1.11 Special Conflicts Of Interest For Former And Current Government Officers And Employees
(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer
or employee of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer
participated personally and substantially as a public officer or employee, unless the appropriate
government agency gives its informed consent, confirmed in writing, to the representation.
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with
which that lawyer is associated may knowingly undertake or continue representation in such a matter
unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to
ascertain compliance with the provisions of this rule.

21
 (c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows
is confidential government information about a person acquired when the lawyer was a public officer
or employee, may not represent a private client whose interests are adverse to that person in a matter
in which the information could be used to the material disadvantage of that person. As used in this
Rule, the term "confidential government information" means information that has been obtained
under governmental authority and which, at the time this Rule is applied, the government is
prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not
otherwise available to the public. A firm with which that lawyer is associated may undertake or
continue representation in the matter only if the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee therefrom.
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or
employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated personally and substantially
while in private practice or nongovernmental employment, unless the appropriate
government agency gives its informed consent, confirmed in writing; or
(ii) negotiate for private employment with any person who is involved as a party or as
lawyer for a party in a matter in which the lawyer is participating personally and
substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative
officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b)
and subject to the conditions stated in Rule 1.12(b).
(e) As used in this Rule, the term "matter" includes:
(1) any judicial or other proceeding, application, request for a ruling or other determination,
contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter
involving a specific party or parties, and
(2) any other matter covered by the conflict of interest rules of the appropriate government
agency.

[DID NOT DISCUSS 1.13]

[BREIF MENTION OF 1.14]

Rule 1.14 Client With Diminished Capacity

(a) When a client's capacity to make adequately considered decisions in connection with a
representation is diminished, whether because of minority, mental impairment or for some other
reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship
with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of
substantial physical, financial or other harm unless action is taken and cannot adequately act in the
client's own interest, the lawyer may take reasonably necessary protective action, including consulting

22
 with individuals or entities that have the ability to take action to protect the client and, in appropriate
cases, seeking the appointment of a guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule
1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under
Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to
protect the client's interests.

[DID NOT DISCUSS 1.15 or 1.17]

Rule 2.1 Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid
advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as
moral, economic, social and political factors, that may be relevant to the client's situation.
Rule 2.3 Evaluation For Use By Third Persons
(a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other
than the client if the lawyer reasonably believes that making the evaluation is compatible with other
aspects of the lawyer's relationship with the client.
(b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the
client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client
gives informed consent.
(c) Except as disclosure is authorized in connection with a report of an evaluation, information relating
to the evaluation is otherwise protected by Rule 1.6.
Rule 2.4 Lawyer Serving As Third-Party Neutral
(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not
clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them.
Service as a third-party neutral may include service as an arbitrator, a mediator or in such other
capacity as will enable the lawyer to assist the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not
representing them. When the lawyer knows or reasonably should know that a party does not
understand the lawyer's role in the matter, the lawyer shall explain the difference between the
lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.
__
LAWYER ADVOCACY
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another
to do so, or do so through the acts of another;

23
 (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as
a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve
results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial
conduct or other law.

A. Moral Responsibility
Case Example:
The Florida Bar v. Betts
- Focus on 8.4(c) and 8.4(d)
o Betts signed for dead man by moving his hand to indicate an “X” on a will
o Resulted in inclusion of daughter on will
o Betts action was Misconduct and he was disciplined.
- It is illegal and unethical to make decisions for clients
__
Types of Lawyers (Pg. 160)
1) Lawyer as Hired Gun  Attacks on behalf of client
2) Lawyer as Godfather  Controlling interest of client and ignoring interest of others
3) Adversary System  Theory zealous advocacy by attorneys on behalf of client makes an
effective system
4) Lawyer as Guru  Taking control of representation and making decisions based on what he/she
(the lawyer) this is right.
5) Lawyer as Friend  Preferred Method of Author. Lawyer raises and discusses moral issues
without imposing values of client.
__
B. Litigation and Other Proceedings
Rule 3.1 Meritorious Claims And Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless
there is a basis in law and fact for doing so that is not frivolous, which includes a good faith
argument for an extension, modification or reversal of existing law. A lawyer for the defendant in
a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may
nevertheless so defend the proceeding as to require that every element of the case be established.

Rule 3.2 Expediting Litigation

24
 A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the
client.

Rule 3.4 Fairness To Opposing Party And Counsel

A lawyer shall not:

(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or
conceal a document or other material having potential evidentiary value. A lawyer shall not
counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a
witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal
based on an assertion that no valid obligation exists;

(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably
diligent effort to comply with a legally proper discovery request by an opposing party;

(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that
will not be supported by admissible evidence, assert personal knowledge of facts in issue
except when testifying as a witness, or state a personal opinion as to the justness of a cause,
the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an
accused; or

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

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person's interests will not be adversely
affected by refraining from giving such information.

Case Example:

Washington State Physician Ins. Exch. & Ass’n v. Fisons Corp.

Washington State Physicians v. Fison

- Discovery Rule 26(g)

o Request for documents relating to medication overdose (overdose possibility known by
company)
o Responsibility to court – failure to meet can result in sanctions
o RULE: Discovery Responses Must Be:
 Requires a signature by attorney
 Honestly prepared in good faith (RULE 3.1)
 Not for delay or to increases litigation costs (RULE 3.2)
- Could also be Rule 3.4 violation
o Penalty would be against the license

25
 o Responsibility to the bar
o No restriction against concealment, obstruction, and destruction  just cannot be done
unlawfully
Liability

Rule 5.1 Responsibilities Of Partners,Managers, And Supervisory Lawyers

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses
comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the
firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the
Rules of Professional Conduct.

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

(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct
if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved;
or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the
other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of
the conduct at a time when its consequences can be avoided or mitigated but fails to take
reasonable remedial action.

Rule 5.1

- If ordered by boss, then the boss is also responsible

- If arguable, person who ordered will be responsible
- If unable to implicate boss, you will be responsible

o Law firm has a duty to take reasonable steps to create and

atmosphere/structure so that all lawyers will conform to the rules of
professional conduct
o 5.1(c)
 Lawyer will be responsible for the actions of another lawyer if the
lawyer knows about or ratifies it.
 Always will be pressure of lawyers in the firm as supervisors to not
want to know or order it

Rule 5.2 Responsibilities Of A Subordinate Lawyer

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted
at the direction of another person.

(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in
accordance with a supervisory lawyer's reasonable resolution of an arguable question of
professional duty.

26
 RULE 5.2

- Not a defense that someone ordered you to break the rule

- Questions that are obvious rule violations
o Being ordered to do action or fear of job loss will not insulate the
employee

5.2(b)

- If the supervisor gives a command which is reasonable explained as not being a

violations  supervisor will be punished and not the employee
o Known as an “arguable question”
o If no one will put direction in writing, probably shouldn’t do the action.

Rule 3.3 Candor Toward The Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the
lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a
witness called by the lawyer, has offered material evidence and the lawyer comes to know of
its falsity, the lawyer shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a
defendant in a criminal matter, that the lawyer reasonably believes is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person
intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the
proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the
tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and
apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the
lawyer that will enable the tribunal to make an informed decision, whether or not the facts are
adverse.

Rule 3.3(a)

- Lawyer shall not knowingly submit false evidence

1. Facts
2. Jurisdiction (must disclose legal authority to the court in front of you)
 Legal authority must be directly adverse
27
 Must be binding on the court
 If other side has disclosed, you have no obligation to disclose it.
3. Related to 1.2(a) – decision of whether a client will testify
 Rule 3.3(b) – Duty to disclose falsity

- Requires the lawyer to disclose or impeach or only allow client narrative.

Rule 3.3(c)

- All duties in (a) and (b) do to the conclusion of the proceedings (several interpretations)
o All reviews exhausted or expired (included in comment section)
o Evidence is closed
o When fact finder begins deliberation
o When trial issues judgment

Rule 3.3(d)

- Ex parte proceedings are not done individually

- Other side must be present if communicating with the tribunal

Case Example:

Nix v. Whiteside [relating to 3.3(a)]

- Attorney threatened client the court would be notified if client committed perjury.
- Client appealed for malpractice of attorney
o Back to Strickland test
 Unprofessional error which would likely change the outcome of the case
 Court looking for an unprofessional error

28
 - Strickland element implicated:
1. Must show unprofessional error
2. Reasonable the outcome would’ve been different
- Court Held not unprofessional error.
o Attorney convinced client not to commit perjury – threatened him and told him he
would impeach him at trial if he provided perjury testimony.
o Because of 1.2d, perjury is a crime (no 1.6 protection, or attorney/client privilege)

United States v. Kojayan [States RULE 3.7 – 3.9 but focus on 3.3(a)(1)]

- Model Rule 3.3(a)(1)

o “Don’t be misled that the government could have called Nourian” – Statement made by
Prosecution
 False statement, agreement existed between Nourian and the Prosecutor
 Yes, violation of 3.3(a)(1)
o “Nourian was arrest. I submit the government could have called him as a witness” –
statement made by Defense counsel. Made in closing argument
 First part is statement – not violation of 3.3(a)(1)
 Second part is not a statement – it is an invitation for the jury to draw a
conclusion  “I submit” is crucial phrase.
 Not a violation of 3.3(a)(1)

__

Rule 3.5 Impartiality And Decorum Of The Tribunal

A lawyer shall not:

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

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

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

(1) the communication is prohibited by law or court order;

(2) the juror has made known to the lawyer a desire not to communicate; or

(3) the communication involves misrepresentation, coercion, duress or harassment; or

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

Rule 3.6 Trial Publicity

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter
shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be

29
 disseminated by means of public communication and will have a substantial likelihood of materially
prejudicing an adjudicative proceeding in the matter.

(b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and, except when prohibited by law, the identity of
the persons involved;

(2) information contained in a public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to
believe that there exists the likelihood of substantial harm to an individual or to the public
interest; and

(7) in a criminal case, in addition to subparagraphs (1) through (6):

(i) the identity, residence, occupation and family status of the accused;

(ii) if the accused has not been apprehended, information necessary to aid in
apprehension of that person;

(iii) the fact, time and place of arrest; and

(iv) the identity of investigating and arresting officers or agencies and the length of
the investigation.

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer
would believe is required to protect a client from the substantial undue prejudicial effect of recent
publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this
paragraph shall be limited to such information as is necessary to mitigate the recent adverse
publicity.

(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a)
shall make a statement prohibited by paragraph (a).

United States v. Cutler

- Attorney for D, Gotti, did not abide by the gag order in place by the court.
- Rule 3.6  Rule based on things that are able to be stated (based on a substantial likelihood)
o Reasonable likelihood such dissemination will interfere with a fair trial or otherwise
prejudice the due administration of justice.
o Subsequent paragraphs of things not to say
o If something is stated in violation – it creates a rebuttable presumption
 Meaning the speaker can rebut the allegation
 Looks at the actual effect on the jury pool.
o Most people who had formed an opinion believed D was guilty

30
 o Cutler argued his comment did not interfere or influence the
thoughts of the jury.
o Must be judged at the time of the statement (not on the entire outcome)
 Could the statement prejudice the jury? – Reasonable likelihood
- Cutler then attempted to use expert witnesses who were defense lawyers
o Court states no other defense attorneys can be used because of an inherent bias
- Cutler then argues – circumstances of comments
o Stated the comments were not made close to trial
 Court held it doesn’t matter
 Only able to make comments when no one is interested or listening
- Almost never able to rebut the presumption. Not really an irrebuttable presumption

__

C. Transactions With Those Other Than the Client

Rule 4.1 Truthfulness In Statements To Others

In the course of representing a client a lawyer shall not knowingly:

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

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Rule 4.2 Communication With Person Represented By Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation
with a person the lawyer knows to be represented by another lawyer in the matter, unless the
lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Rule 4.3 Dealing With Unrepresented Person

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not
state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know
that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall
make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to
an unrepresented person, other than the advice to secure counsel, if the lawyer knows or
reasonably should know that the interests of such a person are or have a reasonable possibility of
being in conflict with the interests of the client.

Rule 4.4 Respect For Rights Of Third Persons

(a)  In representing a client, a lawyer shall not use means that have no substantial purpose other
than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that
violate the legal rights of such a person.

31
 (b)  A lawyer who receives a document or electronically stored information relating to the
representation of the lawyer's client and knows or reasonably should know that the document or
electronically stored information was inadvertently sent shall promptly notify the sender.

Case Example:

Slotkin v. Citizen’s Casualty Co. of NY

- Attorney’s representing the insurance company did not disclose the available insurance
coverage
o Also, lied about the amount available
o Attorneys were sued personally for additional damages.
- Rule 4.1
o Attorneys must be truthful in statements.
o Otherwise may be held liable for damages which occur as a result.

Brooks v. Zebre

- Attorney lied to a 3rd party to induce them into a contract

- Attorney stated he represented the client
o Required zealous advocacy for client to get best deal

__

BUSINESS PROBLEMS

Rule 8.3 Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional
Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness
as a lawyer in other respects, shall inform the appropriate professional authority.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial
conduct that raises a substantial question as to the judge's fitness for office shall inform the
appropriate authority.

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or
information gained by a lawyer or judge while participating in an approved lawyers assistance
program.

Case Examples: (Comparison of Wieder and Balla)

- Difference based on whether employee is fired by Client Employer or Legal Office Employer
o Wieder  Legal Office Employer is unable to fire for notification under 8.3
o Balla  Client Employer is able to fire for notification under 8.3.

32
Wieder v. Skala

- Attorney in firm notifies partners of failure of another attorney in same firm to complete tasks
o Rule 8.3
 Must raise a substantial question as to honesty, trustworthiness, or fitness
 Otherwise, it does not need to be reported to authority.
- Firm has a compulsive liar who regularly commits misconduct
o Reporting attorney forced firm to report issue
o Firm fires attorney shortly after
 Attorney sues to the firm for wrongful discharge

Balla v. Gambro

- In-house counsel required a shipment of defective dialysis equipment to be returned and not
accepted.
o Company did not follow and accepted equipment; Company then fired attorney
- HOLDING
o Attorney could not bring claim
o If counsel permitted to sue employer, would shift the burden of rules onto clients
- Rule 8.3
o Differs in opinion, Court states “shall”; instead of “may” under 1.6(b)
 Must begin by determining whether the discharge was wrongful
 Both Wieder and Balla were wrongfully discharged
o Is there a cause of action for it?
 Wieder = Yes
 Balla = No

Explanations for difference:

1) Burden of the rules should not fall to the clients

2) Rules alone are not enough to get attorney to behave

Majority Opinion:

- Attorneys will follow rules of professional conduct because attorneys follow the law.
- Burden of Rules should fall on the Attorney (Majority Opinion)

Dissent:

- Rules alone will not promote compliance

- Must have additional social elements
- Dissent argues (burden falling on the attorney who obeys the laws and who doesn’t obey the
laws)
o Innocent party or the wrongdoer?

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Overall Rule:

- Firms cannot dismiss their lawyers for following the rules of professional conduct but a lawyer
will never have a cause of action against a client for wrongful discharge when client requests
violation of Professional Rule

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