Professional Responsibility Outline- Erik

I. Chapter 1 What is a professional?

a. Professionalism
i. Technical professionalism
1. Practical consequences
ii. Civic professionalism
1. Consequences to the client, court, public
b. Numbers
i. 1.2M lawyers
ii. 27% female
iii. 45 median age
iv. 11% minority
v. 74% private practice
vi. 48% solo practice
vii. $110,000 median wage
viii. $72,000 starting median salary
ix. Most attorneys represent entities
x. 1 attorney for every 7,000 low income individuals
xi. 2070 mean total hours worked for 1st year lawyer
xii. 12% entry level associates leave in first 16 months
II. Chapter 2 Who should be a Lawyer?
a. Rules
i. 4.4 Respect for rights of 3rd persons
a. Shall not use means that have no substantial purpose other than to
embarrass, delay, or burden or use methods of obtaining evidence that
are unlawful.
b. If receive a document related to client knows or reasonably should know
that was inadvertently sent, shall promptly notify sender
ii. 8.1 Bar admission & discipline
1. Applicant or lawyer in connection w/ application or disciplinary matter shall not
a. Knowingly make a false statement of material fact, OR
b. Fail to disclose fact necessary to correct a misapprehension or knowingly
fail to respond to a lawful demand for information except as protected by
1.6
iii. 8.4 Misconduct for a lawyer to
a. violate or attempt to violate rules professional conduct, knowingly assist
or induce another to do so or do so through acts of another
b. commit a criminal act that reflects adversely on honesty, trust, fitness
c. conduct involving dishosty, fraud, deceit, misrepresentation
d. conduct prejudicial to administration of justice
e. state or imply ability to improperly influence agency/official or achieve
results by violating rules or law
f. knowingly assist judge/judicial officer in conduct that violates rules or law
b. Must be admitted in each state you practice
i. MO:
1. rules from S. Ct.
2. No pre-legal education required
3. No residence requirement
4. Registration of law students not required
5. can take exam before graduation but must have completed all degree
requirements
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 ii. Bar exam
1. don’t have to be JD or LLB grad
2. foreign law degrees
3. Accredited or unaccredited w/ # hours from accredited
c. Federal courts also admit attys to practice before them
d. US Patent & Trademark office maintains separate admissions stds.
i. Agency Practices Act prohibits separate stds normally
e. Admission is through state’s high court
i. Bar associations are mere private associations
1. ½ states have required state bar association membership
ii. ABA isn’t govt and model rules don’t have force of law
1. malpractice ins
2. education programs
f. Qualifications
i. Protect clients
ii. Protect courts
iii. Protect profession’s image
g. State’s power to regulate is subject to Constitutional restraint
i. Unconstitutional if violate P&I clause
1. Residence in the state requirement
2. nonresident take exam and residents get waiver
3. Residence for a year and intend to reside in future
ii. EPC protects resident aliens as well as citizens
h. Competence requirements
i. Nearly all states require law degree from accredited
ii. Some states go further w/ certain classes in and after law school
1. ethics, professionalism, basic skills training
iii. All but four states require 1st time applicants to pass MBE combined with state exam
i. Cannot discriminate based on disability
i. Must provide reasonable accommodations
j. To win ADA suit challenge to bar exam:
i. Have disability
ii. Otherwise qualified for the benefit in question
iii. Excluded from benefit by discrimination solely on the disability
k. ADA disability:
1. Physical or mental impairment that limits 1/+ major life activities
2. Record of such impairment
3. Being regarded as having such impairment
ii. Mere accommodation in previous educational setting is not enough
iii. Dr not enough if diagnosis isn’t clear and unequivocal
l. 3 Routes to admission
i. Exam & MPRE
1. diploma privilege WI & NH
ii. Motion
1. No bar exam needed if initial state required exam
2. 5 of 10 last years in practice
3. must be from ABA approved
4. reciprocity
a. limited to other motion offerors
5. diploma privilege eligible
iii. Pro hac vice
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 1. admission for purpose of just one case
2. may require association with local atty
m. Qualifications
i. Good moral character and fitness
ii. No felonies- 5 years after completion of sentence
iii. ABA law school degree
iv. Education
n. Character and Fitness
i. Specific disqualification for criminal convictions
ii. Otherwise unclear
iii. 8.1- must respond to a lawful demand for information and disclose facts necessary to
correct misapprehensions known by the applicant to have arisen
o. Lane
i. Denied admission to NE bar on basis lacked the character and fitness required
ii. Hallucinations, paranoia, dishonesty, lack of candor
iii. Applicant has burden of proof
iv. Wanted to sit w/ students at table in legal clinic hearing. When told no, “I‘ll remember
this”. She took as threat.
v. Couldn’t work with women. Another problem in CO.
vi. Freak-out at Barbri session about stolen keys and said, “ found out where you live and
take this outside”
vii. Problem with outbursts especially with women
viii. Rude to commission members at hearing
ix. Complaints in TX and CO over ethics; conspiracy theories
x. Decision
1. Egregious pattern of abusive, disruptive, hostile, intemperate intimidating,
irresponsible behavior sufficiently relevant to deny him admission
2. Lack of candor
a. Didn’t list all jobs or all former bar memberships
p. Exercise
i. States can set high standards, but qualifications must have rational connection to
applicant’s fitness or capacity to practice law
ii. A) completed probation three years ago after drug sentence
1. denied, most states require more time passage
iii. B) Didn’t update application to disclose public drunkenness charge
1. denied, lack of candor
iv. C) expelled for gay slurs
1. denied, violates 8.4(d) as misconduct
v. D) Copied paper and only grade reduction, not formal record
1. denied, Lack of candor based on question design covering all bases
vi. E) Lots of debt and bad credit, used loans to finance biz
1. denied, violates use of funds for educational purposes
vii. F) Topless dancer in law school who had affair w/ married professor
1. denied, had no relation to fitness of practicing law
viii. G) Bipolar but managed on meds
1. denied, if pattern of serious problems
III. Chapter 3 Why a Professional Monopoly?
i. Rules
1. 5.5 Unauthorized practice of law; multi jurisdictional practice of law
a. shall not practice law in a jurisdiction in violation of the regulation of the
legal profession in that jurisdiction or assist another in doing so
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 b. lawyer not admitted to this jurisdiction shall not
1. establish office or systematic continuous presence for
practice of law
2. hold out to public or otherwise represent
c. admitted elsewhere in US and not disbarred or suspended may provide
legal services on a temporary basis in this jurisdiction that:
1. undertaken in association with local lawyer who actively
participates
2. are in or reasonably related to a pending or potential
proceeding before a tribunal in this or another jurisdiction if
the lawyer, or person lawyer is assisting is authorized by
law or order to appear in such proceeding or reasonably
expect to be so authorized
3. are in or reasonably related to a pending or potential
arbitration, mediation, ADR in this or another jurisdiction if
the services arise out of or are reasonably related to the
lawyer’s practice in a jurisdiction where the lawyer is
admitted and are not services for which the forum requires
pro hac vice admission, or
4. are not w/I paragraphs (c)(2) or (c)(3), and arise out of or
are reasonably related to the lawyer’s practice in a
jurisdiction where admitted to practice
d. admitted elsewhere in US and not disbarred or suspended may provide
legal services in this jurisdiction that:
1. are provided to the lawyer’s employer or ots affiliates and
don’t require pro hac vice, or
2. are services the layer is authorized to provide by federal
law or other law
b. UPL
i. ½ states make a criminal misdemeanor
ii. can violate other criminal laws including criminal fraud
iii. most states have a civil liability statute for UPL
iv. also consumer protection statutes and common law doctrines of fraud, abuse of process
are basis for liability
c. Licensing is in primary control of state supreme court generally
i. VA legislature promulgates admission stds
ii. State bar associations play a role only if delegated by state supreme court
d. In most states, power to regulate bar admission and atty discipline is simply part of inherent
powers of the court
i. Vest in the court upon their creation
ii. Some state constitutions explicitly provide that state supreme court has power to make
rules governing atty admission and discipline
iii. Some states has UPL statues made by legislature
1. courts may apply as matter of comity or as part of legislature’s police power
e. Creasy
i. Disbarred for numerous code of professional conduct and rules of the supreme court
violations: failure to maintain client funds, failure to adequately supervise a non-lawyer,
failure to assist in bar examination, six informal reprimands
ii. Creasy and wife represented Smith in an arbitration where he probingly examined his
client’s doctor about injuries. Creasy says is pvt arbitration, was working for ins. adjuster,
denies the courts jurisdiction
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 iii. Court holds
1. jurisdiction proper b/c practice of law exclusively w/I the authority of judiciary
even if disbarred or not an atty; even more so here b/c under rule of disbarment
order
2. defined practice of law as acts whether in court or law office which lawyer
customarily performs
a. any advice or services customarily in the practice of legal professionals
b. Here, the cross examination was like a formal deposition or judicial cross
examination. Was use of legal skill and trained legal mind
3. Even if acting under ins. adjuster, cannot violate disbarment order
f. Alternative legal service providers
i. Web providers are most often challenged
1. NOLO, LegalZoom
2. most often covered in state statutes
a. consumer protection statutes
ii. Nolo
1. use sales talk coupled w/ disclaimers
2. providing info, not advice
3. not specific to anyone’s facts
4. not holding out to be atty
5. access to justice helps alternative service providers win
a. habeas preparation
i. justified b/c provides justice access that atty isn’t
g. UPL by lawyers
i. CA and NY have restrictive pro hac vice
ii. hard to pass bar
iii. expensive to be a member
h. In-house counsel practice essentially everywhere
i. single employer atty
ii. rule 5.5 safe harbor
i. Permissible
i. Atty co-counsel
ii. Pro hac vice
1. awaiting reasonably likely
iii. mediation or arbitration
1. reasonably related to
j. Prohibited
i. Office
1. systematic and continued practice
ii. holding out
k. Cannot practice KS law if not licensed there, but can advise a MO client in MO on KS law
issues, i.e. can practice the law, just not actually practice the law.
l. Multi-jurisdictional practice
i. Rule 5.5 prohibits attorneys
1. from assisting laypersons in the unauthorized practice of law
2. from practicing in jurisdictions where not admitted
ii. Birbrower
1. NY firm representing ESQ, CA subsidiary of its NY client
2. CA law issue
3. made trips to CA for negotiations, arbitration, advice, etc
4. Ct relieved ESQ of $1M in legal fees
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 iii. Authorized multi-jurisdictional practice may require
1. disclosure and informed consent
2. subject to rules of home and temporary jurisdiction
3. meet pro hac vice requirements
m. To avoid risks of UPL
i. Disclosure
ii. Research
iii. Contact state bar
n. In the Matter of Trester
i. KS atty practicing law in CA without a license. Practiced in CA for 40 years w/o passing
CA bar or being admitted
ii. Client sued for malpractice and fraud after didn’t disclose to client. Charged with 7
counts grand theft (accepting retainers w/o license to practice) and UPL
iii. Atty misconduct must be established by substantial, clear, convincing, and satisfactory
evidence
1. Trester didn’t disclose, he held out ad gave the impression a CA atty
iv. Ct held
1. violated 5.5(a) practice where doing so violates the regulations of that jurisdiction
a.
2. violated 8.4(b) commit criminal act reflects adversely on lawyer’s honesty, trust,
fitness
3. violates 8.4(c) engage in conduct involving dishonesty, fraud, deceit,
misrepresentation
4. Federal practice exception is difficult to meet b/c typically have to advise client on
state law issues also.
5. Ethics opinions are not binding on state disciplinary authorities
o. Suem Quiz
1. Who can impose discipline
a. where admitted or where practicing
b. choice of law 8.5(b)
i. federal law which would look at state law
2. best argument no practice of law
a. hard to argue but
i. consulting capacity, not of counsel, expert in area separate of
legal training, advising and directing only on strategy
considerations
3. best argument is practice of law
a. using legal mind to particularized facts
b. falls within 5.5(d)(1) broad analysis, advice, other legal assistance
4. if practice of law, best argument that not UPL
a. only one case in federal courts
b. 5.5(d)(2) federal practice exception
5. Risk for agreeing to this arrangement
a. Criminal
i. Misdemeanor, felony, fines, imprisonment
b. Disciplinary
i. Reprimand
1. public or private
ii. suspension
iii. Probation
iv. Restitution
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 v. Disbarment
vi. diversion
6. How to reduce risks
a. Pro hac vice
IV. Chapter 4 Discipline & Other Regulation
a. Rules
i. 8.3 Reporting misconduct
a. if knows another’s violation of rules that raises substantial question as to
honesty, trust, or fitness, shall inform
b. if knows judge’s violation of rules of judicial conduct that raises a
substantial question as to judge’s fitness, shall inform
c. Doesn’t require disclosure if protected by 1.6 or info gained by a lawyer
or judge in an approved lawyer’s assistance program.
ii. 2.1 Advisor
1. shall exercise indep professional judgment and render candid advice. May refer
to law an other considerations such as moral, economic, social, political factors
that may be relevant
b. Multiple sources of regulation
i. ABA model code of PR
ii. Attys were in trade or commerce and not exempt from antitrust Goldfarb
iii. Atty advertising was commercial speech protected by 1st Amen Bates
iv. Answers in rules and other sources of state and federal law, common law, rules of
procedure, or in stds of national, state, local professional associations
1. brainstorm possible sources of law
v. Disciplinary regulation
vi. Model rules of Prof conduct
vii. Model code of Prof responsibility
1. Neither have force of law unless the state or fed court adopts as official
viii. Violating any one of rules is basis for discipline but so is attempting to violate, indirectly
violating, or attempting to violate through the act of another,
ix. And conduct not expressly governed other rules
1. conduct prejudicial to eth administration of justice
c. Discipline process
i. Courts administer
1. Starts with report from judge, lawyer, client
a. Self-regulated via 8.3
2. Neither criminal nor civil, but sui generic
3. Do have basic due process protections
a. notice
b. self incrimination
4. Formal charge filed
a. respond timely or deemed admitted
b. discovery
c. hearing
d. recommendation of discipline
i. accept or appeal
5. Outcomes
a. Diversion agreement
i. on completion, no formal charges filed
b. Reprimand
i. Public or private
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 c. Suspensions
i. Notify all clients and the courts
ii. Practice no law whatsoever
iii. Contempt if violate
iv. Suspension can have probationary elements
1. Education, supervision, reporting, limits on practice
d. Disbarment
i. indefinite
1. may still be eligible later
d. Riehlmann
i. Friends with Deegan who after learning of dying admitted he had suppressed
exculpatory blood evidence. Told Deegan to fix, but neither did anything until Deegan
died. 5 yrs later, Riehlmann realized which case it was and wrote affidavit about
Deegan’s admission and reported Deegan’s misconduct. Excuse, divorce, sick kids, lost
his brother-like fried Deegan.
ii. 8.3(a) required reporting
1. absolute certainty isn’t required
2. firm belief that more likely than not
3. promptly and to appropriate tribunal or other authority
a. reported too late and not to ODC initially
iii. Ct found merely negligent and looked at mitigating and aggravating factor and gave
public reprimand.
1. factors, ignorance, seriousness, delay, effort, encouraged friend to fix
e. Reporting
i. If in your own firm
1. discipline
2. liability to clients
3. reputation harm
4. may be no wrongful discharge if fired for reporting Bohatch
ii. Rare that atty gets disciplined for not reporting
1. if we don’t police ourselves, someone else will get right and that’s bad
iii. Don’t threaten or can be extortion
iv. MO has anonymous and immunity reporting system
f. General Procedural and Substantive law
i. Have to know the law- good judgment isn’t enough
1. Rules
2. civil and criminal
3. tribunals procedural rules
4. common law standards
a. malpractice
5. Statutes
a. Legal services corporation act
6. Federal agency regulations
a. SEC
b. Office of Thrift Supervision
c. PTO
d. INS
e. Treasury/IRS
f. Bankruptcy code
7. Your boss
a. but you are always ultimately responsible; no shield
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 8. Practice area guidelines
9. Malpractice insurer
ii. Milavetz
1. Advertising and advising issues
2. Are atty debt relief agencies when provide qualified services?
a. Any person who provides any b/r assistance in return for pmt or prepares
b/r petition.
3. Milavetz asked court to hold it is not bound by provisions and may freely advise
clients to incur add’l debt
4. Court read as “fraud problem” and says attys are debt relief agencies cannot
advise to take on more debt only when the impetus of the advice to incur more
debt is the expectation of filing B/R and obtaining some relief.
V. Chapter 5 Selecting, Rejecting, Withdrawing
a. Rules
i. 1.18 Duties to prospective client
a. person discussing possibility of a/c relationship is a prospective client
b. even if no a/c ensues, shall not use/reveal info learned in consultation w/
prospective client, except as 1.9 would permit w/ respect to info of former
client- info has become generally known
c. A lawyer subject to (b) shall not represent a different client w/ interests
materially adverse to those of a prospective client in the same or a
substantially related matter if the lawyer rec’d info from the prospective
client that could be harmful to the prospective client in the matter except
as provided in (d). If disqualified under this paragraph, no lawyer in that
disqualified lawyer’s firm may knowingly undertake or continue
representation, except as allow3d in (d).
d. When lawyer has rec’d disqualifying info as defined in (c), can represent
IF
1. Both affected client and prospect have given informed
consent confirmed in writing OR
2. The lawyer who rec’d the info took reasonable measures to
avoid exposure to more disqualifying info than was
reasonably necessary to determine whether to represent
the prospective client; AND
i. Disqualified lawyer is timely screened from
any participation or fee, AND
ii. Prompt written notice to prospective client
ii. 1.13 Organization as Client
a. a lawyer employed or retained by an org. represents the organization
acting through its duly authorized constituents
b. If lawyer for org knows an officer, employee, or other associated person
is engaged in action, intends to act, or refuse to act in matter related to
the representation that is a violation of a legal obligation to the org or
violation of the law that reasonably might be imputed to the org, then
lawyer shall proceed as reasonably necessary in best interest of org.
UNLESS reasonably believes it is not necessary in org’s best interest to
do so, lawyer SHALL refer matter to higher authority in the org
c. Except as provided in (d), IF
1. despite lawyers efforts in accord w/ (b), the highest
authority fails to address in timely appropriate manner an

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 action, or refusal to act, that is clearly a violation of law,
AND
2. Lawyer reasonably believes will result in substantial injury
to the org,
THEN may reveal info whether or not 1.6 permits disclosure, but
only to extent reasonably necessary to prevent injury to org.
d. Para (c) shall NOT apply w/ respect to info relating to representation of
an org to investigate an alleged violation of law, OR to defend the org or
an officer, employee, other associate against a claim of an alleged
violation of law
e. lawyer who reasonably believes been discharged b/c actions taken
pursuant to (b) (c), or who withdraws, shall proceed as the lawyer
reasonably believes necessary to assure org’s highest authority is
informed of the withdrawal or discharge
f. When dealing with org’s actors, atty shall explain identity of client when
knows the org’s interest are adverse to those actors with whom dealing
g. Can represent org’s actors subject to 1.7. If consent req’d, shall be given
by appropriate person in org other than indiv to be represented, or by
shareholders
iii. 4.2 Talking w/ person represented
1. In representing a client, shall NOT talk about the subject of representation w/
person lawyer knows is represented by another lawyer in the matter, UNLESS
has other lawyer’s consent OR is authorized by law/order.
iv. 1.1 Competence
1. Shall provide competent representation-reasonable knowledge, skill,
thoroughness, preperation
v. 6.2 Accepting appointments
Not seek to avoid appt by tribunal except for good cause
a. likely result in rules violation or law
b. likely result in unreasonable $ burden, OR
c. client or cause is so repugnant likely to impair a/c relationship or lawyer’s
ability
vi. 1.16 Declining or Withdrawing
a. lawyer shall NOT represent or shall withdraw IF
1. representation violates rules or law
2. lawyer phys/mental condition impairs, OR
3. lawyer is discharged
b. EXCEPT as states in para (c), may withdraw IF
1. No material adverse effect on client
2. Client persists in course involving lawyer that lawyer
believes criminal or fraudulent
3. Client used lawyer to perpetrate crime or fraud
4. client insists on action regnant or fundamental
disagreement
5. fails to pay and reasonably warned will withdraw
a. can withdraw for bounced check but CANNOT tel
court why
i. say professional reasons
ii. Asked if discretionary?
iii. Yes, but very important I withdraw

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 6. unreasonable $ burden on lawyer or representation
unreasonably difficult by client, Or
7. Other good cause
c. Must comply w/ law for notice, permission. If ordered to, shall continue
notwithstanding good cause
d. Upon termination, shall take steps to protect client’s interests such as
reasonable notice, time to hire other counsel, surrender of paper, refund
of unearned fee. Can keep papers to extent permitted
e. NO permission needed if haven’t entered an appearance
b. Forming A/C relationship
i. Agreement
1. expressly agree
2. don’t have to have fee or written agreement to have be client
ii. Assumption
1. Act in way that client reasonably assumes
2. Togstad- prospective client thought hired and SOL ran cost atty $650K
a. Implied K theory of malpractice
i. Provide advice and reasonable reliance
b. Implied tort theory of malpractice
i. Advice given where atty could reasonably foresee harm to client if
advice is reasonably given
3. CAN answer general questions in purely social setting without a/c issues, just not
advice
4. EVEN if don’t represent and don’t give advice, have duty of loyalty and
confidentiality b/c rec’d confidential info
a. Conveys info in capacity as atty and has reasonable expectation that will
be confidential, have fiduciary duty to honor expectation
5. A/c can occur inadvertently when acting in other roles than as atty- biz,
investments, serving on board of nonprofit
6. When others are involved
a. Prosecutor working w/ witness/victim
b. Representing a corporation- employees, officers, shareholders
i. If no conflict b/t corp and indiv, can represent both 1.13(e)
7. Role confusion
a. Indiv or indiv as executor of estate
8. Reduce risks
a. Limit info you receive from them
b. Don’t advise
c. No interaction after declining representation- other than non-engagement
letter
iii. Appointment
1. Court’s authority to appoint
a. inherent authority of courts to control proceedings
b. constitutional guarantees of counsel
c. express statutory authority authorizing appointments
d. tradition and unique nature of atty role
2. Mo said no civil appointments Roper
3. State ex rel. Wolf- duty from oath of MO atty
a. Oath later amended
b. Status of uncompensated appts remains unclear in MO
4. Challenges
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 a. Most common is atty non-competence Easly
i. But preparation make competent and courts may say get prepared
b. Can be discipline and contempt if still refuse
c. Withdrawal
i. If not appointed, can reject potential client for any reason at all
ii. Once a client, even if later withdraw, owe duty competence, confidentiality, conflict-free
representation
1. screen for who you accept, may bar future jobs
iii. “Shall” = “Mandatory”
iv. “May” = “discretionary”
d. Clients to avoid
i. Liars
ii. Want to do it all or nothing
iii. Conflicts
iv. Trying to do something illegal
v. Non payers
vi. Can never be satisfied
e. Duties to client
i. Competence
ii. Communication
iii. Conflict free representation
iv. Confidentiality
VI. Chapter 6 Competence
a. Rules
i. 1.2 Scope and authority
a. Subject to (c) and (d), lawyer shall abide by client’s decisions concerning
objectives and as per 1.4 shall consult w/ client as to means by which
they are to be pursued. Lawyer may take action on behalf of client as is
impliedly authorized to carry out representation. In Criminal, lawyer shall
abide by clients decisions, after consultation, as to plea, waiver of jury
trial, and whether client testifies
b. Representation doesn’t constitute an endorsement of client’s political,
economic, social, moral views/activities.
c. MAY limit scope if reasonable and client gives informed consent
d. Shall NOT counsel to engage or assist in conduct llawyer knows is
criminal or fraudulent, BUT may discuss general legal consequences of
any proposed conduct and may counsel/assist to make a good faith effort
to determine validity, scope, meaning, or application of the law
ii. 1.3 Diligence
1. SHALL act w/ reasonable diligence and promptness in representing
iii. 1.4 Communication
a. SHALL
1. promptly inform of any decision or circumstance w/ respect
to which client’s informed consent, per 1.0(e) is required
2. reasonable consult about means by which client’s
objectives are accomplished
3. keep reasonably informed about status of matter
4. promptly comply w/ reasonable request for info, And,
5. consult client about relevant limits on lawyer’s conduct
when knows of client expects assistance not permitted by
the rules or law
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 b. SHALL explain a matter to extent reasonably necessary to permit client to
make informed decisions

b. MP Actions
i. Failure to communicate or unclear communications
ii. Time mgmt- Failure follow thru-missed deadlines
iii. Failure to know law/do necessary research/investigation in complex fields
iv. Dishonesty such as commingling and office theft not often basis for MP, but if so,
consequences are severe
v. Know yourself and manage your workflow to avoid!
vi. Cannot cite PR rules in MO MP case
c. You get what you pay for
i. Wrong- pro bono gets some level of competence
d. Immunity from malpractice
i. Prosecutors absolutely immune from actions w/I scope of duties
e. Mere negligence isn’t malpractice
i. Wrong- calendar errors is malpractice
1. Malpractice
a. Duty
b. Breach
c. Cause
d. Proximate cause
e. Damages
f. Civil liability
i. Most potent regulation of attorney competence
ii. Malpractice law is greatest source of civil liability
1. 20% atty face MP suit
iii. Privity rule
1. must be client of the defendant atty
a. if no privity, generally no contractual nor malpractice liability available
b. BUT fiduciary duties may attach if client entrusts atty w/ confidential info.
i. Cts forfeit fees even if no other harm occured
2. Some exceptions apply
a. 3P beneficiary doctrine applied in finding duty
i. privity conferred on a 3P
b. Balancing test to establish duty
i. Extent to which transaction was to benefit 3P
ii. Foreseeability of harm
iii. Degree of certainty of injury suffered
iv. Moral blame attached to atty’s conduct
v. Policy of preventing future harm
3. If atty promises to act for another, even if not a client, must act w/ due care
iv. Breach
1. Atty fails to act as a reasonable competent atty
2. Can be held to higher std of care if hold as specialists or practice in areas
recognized for specialized skill or knowledge
a. I.e. Patent law
3. Errors in communication can be malpractice
a. Settle w/o consulting client
4. Bad judgment in choices about strategy and thereby losing a case no sufficient to
establish breach of duty of care
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 v. Causation
1. causation element is what makes malpractice so difficult to prove
a. Showing P could have won if atty were competent creates trial w/I trial.
b. Must plead “but for” causation
vi. Damages
1. requires damages
g. Other sources of civil liability
i. Most malpractice suits based on negligence theory
ii. Occasionally based on breach of K theory
1. Doesn’t require expert testimony of reasonable atty std. b/c atty contracted for a
specific std. b/c assumed duty beyond ordinary care
2. P still has to prove breach and causation.
iii. Because agents of client, can be liable to client
1. Ex- initial consultation advise, but never became client
h. Cannot waive MP unless client is independently represented in making this agreement 1.8(h)
i. Disciplinary regulation of competence
i. Neglect & failure to communicate biggest complaint to bar authorities
1. few are sanctioned for neglect/communication; even fewer for incompetence
j. Three responses if faced w/ request for representation beyond area of competence
i. Refuse
ii. Refer
1. find mentor who can guide you as co-counsel
a. need client’s consent
iii. Research
1. ill advised to bill client excessive amounts for you acquiring competence
k. Negligence
i. Single act is rarely sufficient for discipline
ii. Typically when overall pattern
1. too much work
2. miss deadline
3. avoid communicating w/ client
4. lies and cover up
5. attempt to payoff
iii. Usually requires indifference and consistent failure to carry out obligations and duties to
client
iv. Unlike MP, in disciplinary actions, there is no defense that client wasn’t harmed or
prejudiced
l. Ineffective assistance of counsel
i. Baseline of competence
1. Strickland two Prong test
a. D must overcome a strong presumption of effectiveness
i. Prove didn’t provide reasonably effective assistance
b. D must prove reasonable probability that but for counsel’s unprofessional
errors, the results would have been different
2. Typically need to win appeal on conviction to qualify for MP claim against D atty
a. Some demand prove innocence in underlying offense
m. Relationship b/t Discipline, liability, ineffective Assistance
i. Single MP could be basis for discipline for incompetence-rarely is
1. need pattern
ii. MP civil tort designed to compensate
iii. Discipline is private regulatory system designed to protect public
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 n. Other methods to ensure competence
i. CLE
ii. Peer review/pilot mentoring
iii. MP insurance- education, guidance
iv. MP insurance not mandatory except in OR
o. Competence and personal relationships
i. Attys often obnoxious , conceited, greedy, inflexible
ii. Lack civility
p. Most important Lawyering skills
i. Honesty
ii. Integrity
iii. Capacity to act ethically
iv. Legal research
q. Important traits missing from young lawyers
i. Judgment
ii. Maturity
iii. Effective dealing w/ others
iv. Capacity to be thorough
r. Advice
i. apologize
ii. Don’t argue w/ Disciplinary counsel- not an adversary
iii. No excuse for acting on orders of another
iv. 7.2 allows reciprocal referral fee agreements
1. client is informed
2. not exclusive
VII. Chapter 7 Fees, Files, Property
a. Rules
i. 1.5 Fees
a. No agreement, charge, collection unreasonable fee/expense. Factors:
1. time/labor req’d, novelty/difficulty of issue, skill requisite
2. likelihood of preclusion of other employment
3. local custom
4. amount involved, results obtained
5. time limitations
6. nature and strength of prof relationship w/ client
7. experience, reputation, ability of atty
8. whether fixed or contingent
b. Scope of the representation and rate shall be told, preferred in writing
before or w/I reasonable time of commencing, except when charging
regular client. Any changes in basis or rate shall be told to client
c. Fee may be contingent, except per (d) or law. Contingent in writing, client
signed, state method fee determined, % for settlement, trial, or appeal;
litigation or other expnses to be deducted, whether deducted before/after
contignet fee calculated. Must clearly notify client of any expenses
whether prevailing or not. Upon conclusion, statement stating outcome
and if recovery, detailing amounts and methods
d. Shall NOT enter into, charge, collect
1. any fee in dom. Relations matter contingent on divorce,
support, property settlement
2. contingent fee in criminal case
e. fee division b/t attys NOT in same firm made ONLY if
15
 1. division in proportion to work or each assumes joint
responsibility
2. client agrees to split in writing
3. fee is reasonable
ii. 1.8(e) shall not provide fin. Assistance to client in connection w/ ending or contemplated
litigation, except
1. may advance ct costs and expenses and repayment may be contingent
2. may pay indigent on behalf of client
iii. 1.15 Safekeeping Property
a. Shall hold property separate. Complete records kept & preserved for 5 yrs
after end of representation
b. may deposit only bank service chgs of own money
c. shall deposit into trust account legal fees and expenses paid in advance
to be drawn only as earned/expensed
d. Upon receiving property/funds 3P or client has interest in, shall notify
promptly. Except per this rule or by law, shall promptly deliver to 3P or
client. Upon request, render full accounting
e. If dispute b/t two parties, shall keep separate until resolved and distribute
what not in dispute
b. Only deposit allowed in trust account of your own $ is for service charges
c. Returning files
i. Cant destroy evidence
ii. Cannot destroy things off intrinsic value
d. Timekeeping
i. Contemporaneous timekeeping
1. start/end of each task
ii. Billable time
1. CLE, networking event
a. cant charge client for overhead
b. but track to help analyze hourly rate
2. Itemized task records
a. Describe each separate task and time spent on that task
iii. Time increments
1. 1/10 hour- good practice if 3 minute call, round up to 6 minutes
iv. Unethical
1. churning
a. generating unnecessary duplicate work to run hrs up
2. chipping
a. breaking task into multiple hours that add up to more time
3. dbl charging
a. chg twice for same task
4. padding
a. chg more than actually spent of the task
e. Billing Methods
i. Hourly most common
1. may have different rate for ct appearances
2. in-house and govt generally get salary
ii. Contingent fees
1. common when substantial award possible
2. outcome dependent
3. criticized for stirring up litigation and excessive
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 a. defended- allow access to justice to who cant afford
4. 1.5 prohibits in criminal and some family law aspects
5. In writing! Specified what’s NOT contingent
6. Discharged atty may still get some $ via quantum meruit
a. Prove time spent/hours rate and reasonableness
7. can face criminal for fraudulent billing
f. Collecting fees
i. Cant curtail service or prejudice case to get pmt
ii. Can withdraw
1. not suspend, but withdraw
g. Disputes
i. State fee dispute resolution services offer mediation/arbitration
1. put provision in fee agreement
2. fee collection claims have a way of generating MP counter-claims
h. Best Practice
i. Screen
ii. Communicate clearly
iii. Written fee agreement
iv. Detailed billing statements
v. Collect in advance
1. no commingle
2. trust account until earned and refund if not earned
vi. retainer
1. nonrefundable sum paid to engage atty services
2. not allowed in some jurisdictions
a. violate pub policy and unethical unless show clear loss of work
i. Client funds & property
i. Dishonored checks and commingling can = disbar
ii. Cannot use client funds
1. restitution is no defense
iii. Client’s File
1. MO rule 1.15(h)
a. Securely store for 10 yrs after completion
i. After 10, deemed abandoned and destroyable
1. method preserves client confidentiality
b. Cannot destroy if lawyer knows
i. MP claim pending
ii. Crim or govt investigation related to representation pending
iii. Complaint pending under rule 5 related to representation
iv. Other litigation pending related to
2. items w/ intrinsic vale shall never be destroyed
a. unclaimed property agency
3. All original scanned belong to client
4. Holding file as lien until paid
a. Generally disapproved if to detriment of client
b. MO says belongs to client cover to cover and NO withholding for pmt
c. Mo later says entire file w/ notes of atty mental impressions
5. Swift
a. Client wants doc prepared during representation
b. Ct says w/p doctrine doesn’t apply when client seeks access to doc or
other tangible things created or amassed by atty during representation
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 c. Entitled to discover the memo and inspect and copy it unless good cause
can be proven on remand
VIII. Chapter 8 Who’s in charge?
a. Rules (see above)
i. 1.2
ii. 1.4
iii. 2.1
iv. 1.3
b. 1st duty to client is give them broad range of advice regarding their actions, even if that advice
requires consideration of non-legal matters
c. Role of atty
i. Directive lawyer
1. lawyer willing to assert control of moral issues that arise
a. how avoid imposing your values on client
b. atty is morally responsible for client choices?
c. What about client disagreement w/ atty’s moral choices?
ii. Client –directed
1. client in charge
a. client autonomy of paramount importance
b. lawyer is neutral and non judgmental
c. allows atty to raise moral concerns if atty believes clearly immoral, but
otherwise clients values prevail
iii. Collaborative lawyer
1. lawyer as friend
a. atty should raise difficult issues and engage in moral discourse
d. Allocating authority
i. 1.2 says client in charge of objectives and atty in charge of means
e. Authority
i. If client says no X, then no X per 1.2
ii. CYA- talk about authority and document
iii. Agency law can govern if PR doesn’t answer issue
iv. Authority atty has
1. express
2. implied
a. in fact
b. in law
v. Settlements
1. cannot settle w/o clients approval
2. 3P can reasonably assume atty has authority
a. based on client’s actions: words, silence
3. You can bind client with apparent authority even when don’t have actual authority
4. Split in MO on whether has inherent authority to settle
a. 1.2, reasonableness
vi. Actual authority R§26
1. atty’s act is considered that of client before tribunal or 3Ps when
a. client expressly or impliedly authorizes
b. authority of act reserved in R§23, or
c. client ratifies
vii. Apparent authority R§27
1. atty’s act is considered that of client before tribunal or 3Ps when

18
 a. tribunal or 3Ps reasonably assumes lawyer is authorized on basis on
client (not atty’s) manifestations
viii. Terminating atty’s authority R§31
1. must comply w/ notice to or permission of tribunal when terminating and w/ order
to continue
2. Subject to (1) and R§33, actual authority ends when
a. Discharged by client
b. Dies or org loses capacity to function
c. Atty withdraws
d. Atty dies or becomes mentally incapable, disbarred/suspended or ordered
to cease representing, or
e. Ends b/c contract completed
3. with respect to 3P, ends when other knows or should know of facts from which
can be reasonably inferred that atty lacks authority, including knowledge of any
fact in (2)
f. Defining scope
i. Need not represent on all matter client faces
1. to limit, requires informed consent of client
a. clear ltd representation agreement after advising
i. what’s not included
b. MO allows w/ 4-1.2
ii. ghostwriting
1. draft only for client depends on ct, client
2. condemned by some fed cts
3. maybe matter too complicated for trial ant too late at trial to seek help
g. Scope
i. May assist self-represented litigant on ltd basis w/o undertaking full representation
ii. Written agreement required
iii. Doesn’t exempt competent representation
iv. 2.1 not expected to give advice until asked, but may require atty to provide unsolicited
advise where to do otherwise result in substantial adverse legal consequences
h. Padilla
i. Ineffective counsel claim on ground that advice he saought about the risk of deportation
concerned only the collateral matter, i.e. matter not w/I sentencing authority of state trial
ct.
ii. If Padilla expanded broadly affects risk of atty providing ltd representation
iii. Are differences b/t criminal and civil
1. affects on collateral consequences of duty analysis
iv. Ct says client must inform client whether plea carries risk of deportation
v. Used Strickland analysis
IX. Chapter 9 Confidentiality
a. Rules
i. 1.6 Confidentiality of Info
a. shall NOT reveal info relating to the representation UNLESS client gives
informed consent, the disclosure s impliedly authorized in order to carry
out the representation or the disclosure is permitted by (b)
b. MAY reveal info relating to the representation to the extent the atty
reasonably believes necessary
1. to prevent reasonably certain death or substantial bodily
harm

19
 2. to prevent the client from committing 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 using the atty’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 atty’s services
4. to secure legal advice about the atty’s compliance with
these rules
5. to establish a claim or defense on behalf of the lawyer in
controversy between the lawyer and 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 lawyers representation, or
6. to comply w. other law or court order
b. Defining a duty
i. Is there an atty/client relationship?
1. Did the client reasonably expect that the atty was representing him?
2. Even if representation is declined, may have duty of confidentiality 1.18
a. Intentionally interviewing all the best attys usually won’t work
i. No reasonable expectation of privacy given the motive
3. Some states have allowed presumption of confidentiality to be rebutted by in-
camera inspection
4. If client using duty of confidentiality to shield otherwise criminal or fraudulent
activities, some states, not MO, would allow disclosure to prevent substantial
financial injury
a. 17 states go further to permit use or disclosure to rectify past and
completed client fraud
b. 7 states actually require disclosure in some circumstances
c. Confidential Information
i. Can be documents, things, conversations, observations, any facts or data
ii. Form doesn’t matter nor does from whom you gain this info
1. From client, investigation, adversary
iii. Nor does it matter when you gain this info
iv. Doesn’t matter why- tangential or part of objective
v. Rule automatically applies whether client asks or not
vi. Applies to all information even if not harmful or secret
vii. Information ‘generally known’ not protected
1. In some jurisdictions, always presume still covered to be safe
d. Common mistakes
i. Leaving msg on answering machine or discussing w/ spouse/roommate
ii. Identifying clients in a law firm brochure
iii. Revealing identity of client by processing credit card pmt
iv. Telling a story to friends w/o revealing identity or facts not in public record
v. Taking a client file or discovery docs to local copy shop
vi. Listing best clients in Martindale-hubbell
e. Duty of confidentiality sources:

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 i. Law of evidence
1. a/c privilege
ii. Law of agency
1. agent’s fiduciary duty to keep the principal’s secrets and not to injure the principal
iii. law of civil procedure
1. work product immunity
iv. ABA Model rules to Professional Conduct
1. 1.6 Confidentiality
f. Distinguishing Doctrines
i. In litigation or under atty client privilege, an additional set of doctrines apply to protect
some client info
1. A/C privilege from evidence rules
2. Work product from procedure rules
ii. Difference b/t doctrines DON’T MIX UP!!!!
1. Ethical duty requires atty to invoke these doctrines
2. Law or court order to disclose can force disclosure
a. Outside court-ordered disclosure, still must protect!
i. privileged
1. confidential communication b/t atty and client for purposes
of securing legal advice
ii. confidential
1. info relating to the representation
2. unless exception
iii. work product
1. documents and things prepared in anticipation of litigation
3. Neither doctrine, privilege or work product, protects the underlying facts from
disclosure Upjohn
4. Presumption in litigation is that info should be freely available UNLESS proof that
a narrow protective doctrine prevents disclosure
g. Attorney/Client Privilege
i. Common law evidentiary rule
ii. Privilege questions in federal ct shall be governed by principles of common law except
when State law provides the rule of decision FRE 501
iii. Definition
1. where legal advice of any kind is sought;
2. from a professional legal adviser in his capacity as such;
3. the communication relating to that purpose
4. made in confidence
5. by the client
6. are at his insistence permanently protected
7. from disclosure by himself or by the legal adviser
8. unless the protection is waived
h. R§69 A/C Privileged Communications
i. (d) Distinction b/t content of communication and knowledge of facts
1. Protected
a. Did you tell your atty the light was red?
2. Not protected
a. Did you see that the light was red?
b. Client tells atty about recollection of course of dealings with person

21
 i. Still has to testify at deposition/trial concerning recollection, just
not what told atty about those same facts
3. Doesn’t apply to preexisting docs or other tangible evidence
ii. (e) Communicative client acts
1. privilege extends to nonverbal communicative acts intended to convey info
a. not just in lawyers presence, but when purpose to convey to atty
iii. (f) Client’s mental state
1. testimony may be elicited that concerns client’s mode of thought, nut not if it
would disclose incriminating particulars
iv. (g) A/C privilege
1. Sometimes DOESN’T cover
a. identity of client
b. fact that consulted
c. general subject matter of consultation
d. identity of non-client who retained or paid
e. client’s whereabouts
2. UNLESS goes directly or by reasonable inference would reveal content of
confidential communication
3. Doesn’t protect against revealing a lawyers knowledge about a client solely on
ground that doing so would prejudice or incriminate the client’s interests
v. (h) Record of privileged communication
1. applies to communications when made and to lawyer’s notes on convo
vi. (i) Lawyer communications to a client
1. also protected including record of privileged communication such as memo to a
confidential file or to another lawyer or other person privileged
2. A lawyer’s communication may also be protected by the work-product immunity
3. When lawyer serves as a mere conduit for message to client, NOT privileged.
i. R§70 A/C Privileged Persons
i. Client and prospective client. Clients lawyer, agents of either who facilitate
communications b/t them, and agents of the lawyer who facilitate representation
j. R§71 A/C In Confidence
i. Communicating person reasonably believes that no one will learn of the contents of eth
communication except a privileged person
k. R§72 A/C Legal Assistance as Object of Privileged communication
i. For the purpose if it is made to or to assist a person
1. who is a lawyer or who the client reasonably believes to be a lawyer, and
2. whom the client or prospective client consults for the purpose of obtaining legal
assistance
l. R§73 A/C Privileged for Organizational Client
i. When client is corporation, unincorporated assoc, partnership, trust, estate, sole
proprietorship, or other for profit or not for profit org, the a/c privilege extends to a
communication that
1. otherwise qualifies under R§68-72
2. is b/t agent of org and a privileged person as defined by R§70
3. is disclosed only to
a. privileged person as defined by R§70, and
b. other agents of the org who reasonably need to know of the
communication in order to act for the org
m. Work Product Doctrine
i. Civil procedure doctrine

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 1. federal and state level
ii. Two levels
1. general protection for materials prepared in anticipation of litigation
a. Document or tangible thing prepared by or for a party, or by or for the
party’s representative
b. Not subject to discovery w/o showing substantially needed and
unavailable w/o substantial hardship
c. Client-authored document that is not privileged when originally composed
does not become privileged simply b/c given to his lawyer
i. Fisher
1. When client himself would be privileged from production,
either as a party at common law or as exempt from self-
incrimination, the atty having possession of doc is not
bound to produce.
2. Extends to an atty’s mental impressions
a. More akin to privilege
iii. Documents can be all three
1. confidential
2. privileged
3. and work product protected
n. Interaction of duty of confidentiality and other doctrines
i. Work product
1. Mostly to protect atty’s litigation preparation
ii. Duty of confidentiality and a/c privilege
1. both belong to and protect the client
X. Chapter 10 Exceptions to Confidentiality & Privilege
a. Don’t engage in simple withdrawal analysis on EXAM!
i. Threat of withdrawal can be tool for client control
b. Rules
i. 4.4 (b) Lawyer who receives a document relating to the representation of the lawyer’s
client and knows or reasonably should know that the document was inadvertently sent
shall promptly notify the sender.
c. Obligation to reveal client’s intent to commit suicide
i. confidential, but NOT privileged b/c not about the litigation
ii. Maybe fraud exception 1.6(b)3 (on insurance co.- real stretch)
iii. Get consent
iv. Other law exception
1. responsibility to fiduciary
v. Impliedly authorized to reveal 1.6(a)
1. cannot represent if not alive
vi. Diminished capacity 1.14(b)
1. Ask a professional psych.
a. Under major stress, child, elderly, drunk
d. Disclosing confidential info to further the representation
i. rules provide atty is impliedly authorized to disclose info in order to carry out
representation
1. Don’t need permission to disclose in negotiations, fellow attys, clerks, paralegals
etc
a. If client directs otherwise, then cannot share with others within firm
i. Absent a legal duty to disclose
2. when in doubt get informed consent
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 a. client must understand the alternatives to disclosure and the risks and
benefits of choice to consent and the disclosure
i. not just a signature; a process of communication
e. Confidentiality, Privilege, and Shared representation
i. Relationship b/t waiver of privilege and consent to disclose confidential info esp.
important in joint representation
1. When parties represented by same atty, the law implies waiver of the a/c
privilege among them. BUT, privilege is retained against the rest of the world.
2. Presence of Client B in conversations b/t Client A and her atty doesn’t waive the
privilege, even if Client B is represented by another atty. Ch 10 P3
3. The waiver of a/c privilege may not affect the duty to maintain duty of
confidentiality b/t joint and common interest clients..
a. # of authorities conclude that joint representation alone doesn’t create an
implied authorization to disclose one clients confidences to another
i. In Joint representations, should obtain express consent of each
client to share all info relating to the representation with the other
client.
1. E.g. Wills prep for hubby/wife and later paternity issue and
firm knows and hubby won’t tell her. Firm has duty to both
in tension.
2. Retainer covering info shared could become avail to the
other spouse, but no express waiver.
3. Withdraw wouldn’t cure as wills already drafted
4. Ct said atty could reveal, should have explicit sharing
agreement.
f. Waiver by inadvertent disclosure
i. Consider disclosure effects on a/c privilege or work product protections.
1. Once client, client’s lawyer, or other authorized agent of client voluntarily
discloses a privileged a/c communication in a non-privileged communication, the
privilege is lost. Smith
2. Also, disclosure of work product info may waive that protection when the
disclosure substantially increased the oppty for potential adversaries to obtain
the info.
a. E.g. disclosing docs to adversaries or potential adversaries such as govt
agencies may waive the work product protection against those agencies
and even against different adversaries in future cases. Martha Stewart
b. HOWEVER, disclosure of confidential info in one circumstance- even if
that disclosure waives a/c privilege or work product protection- does NOT
release atty from duty of confidentiality of that info in other settings
i. E.g. ct orders atty to testify to confidential client communication in
a trial/grand jury proceeding, may NOT disclose to others on
theory is no longer confidential
3. What if receiving atty seeks to use something sending atty didn’t mean to send?
a. Some hold inadvertent disclosure always destroys the privilege. Most cts
take middle ground and balance on case by case to determine waiver.
Five factor test for waiver determination from Ciba-Geigy.
i. Reasonableness of precautions taken to prevent inadvertent
disclosure
ii. # of inadvertent disclosures
iii. extent of disclosures
iv. any delay and measures taken to rectify disclosure
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 v. overriding interest of justice would or wouldn’t be served by
relieving the party of its error
b. Restatement takes intermediate approach and preserves privilege
UNLESS, in effect, client’s own negligence produced the compromising
disclosure
c. FRE 502(b) says inadvertent disclosure does NOT result in waive when
holder of privilege took reasonable steps to prevent disclosure and
reasonable steps to rectify the error.
ii. Peterson
1. Motion to compel return of inadvertently disclosed documents case.
2. Wrongful imprisoned for 18 yrs for rape/murder and chgs dropped b/c DNA
3. D argues weigh factors, no reasonable steps to prevent, volume defeat waiver,
too much delay, and not established that privileged.
4. Ct has two part analysis
a. Privileged?
b. Then if privileged (3) elements of FRE 502(b) must be met
i. Inadvertent disclosure
ii. Reasonable steps prevent
iii. Reasonable steps to rectify
c. Disclosing party has burden
5. Ct says P did NOT meet burden
a. Not all communications are a/c privileged
i. ONLY insulate when communications that assist the atty to
formulate and render legal advice
1. doesn’t apply just b/c made by or to atty nor b/c merely
legal in nature
b. Applies Five factor test of Ciba-Geigy
i. Only took minimal steps
ii. Small #
iii. Nature- should’ve been more careful
iv. Neutral on rectification
v. Interest of justice not served if relived of error
1. no unfairness or prejudice finding waiver occurred
c. BUT protect the intern’s litigation strategy and work product
iii. Must use a detailed privilege log
1. author, recipient, reason privileged
2. Unprivileged part can be produced after redaction
3. Raising non-good faith basis can be independent basis for waiver f privilege.
iv. Waiver by placing matter in evidence
1. Waiver of a/c privilege and work product can occur when atty places the
confidential communication at issue in trial. State ex rel Chase
2. In pretrial discovery, rule threatens progress as atty worries about waiver if they
don’t continuously objects
a. To prevent this disruption, fed and state procedure rules often permit
stipulation that privilege isn’t waived by failure to object during pretrial
discovery.
3. Atty and clients communication might be issue in case when in the context of a
defense based on opinion of counsel
a. E.g. defending patent infringement element of willingness when relied on
atty’s opinion

25
 i. If asserted, waives its immunity for any document or opinion that
embodies or discusses a communication to or from it whether a
patent is valid, enforceable, and infringed by the accused
4. Seagate
a. Question of whether this waiver should extend to communications w/ trial
counsel vs. opinion counsel
b. Scope of waiver
i. Applies to all other communications relating to same subject
matter
c. Ct says significantly different functions and asserting advice of counsel
defense and disclosing opinions of opinion counsel do not constitute
waiver of the a/c privilege to trial counsel
i. Certain degree of privacy
ii. Free from unnecessary intrusion needless interference
g. Corporate privilege, selective waiver, voluntary disclosure
i. Corporations and partnerships get a/c privilege
1. Which ppl w/I copr are protected by a/c privilege?
a. Two tests
i. Control group test (US Sup Ct Rejected!!!!)
1. only ppl who have authority to act on behalf of corporation
to implement atty’s advice, generally senior mgmt
ii. Subject matter test (majority and fed cts use)
1. looks at subj matter of the convo
2. purpose and direction of the contact
3. Diversified Indust. Test
a. Purpose of securing legal advice
b. Employee making did so at direction of superior
c. Superior made request so corp. could get legal
advice
d. Subject matter of communication w/I scope of
employee’s corporate duties
e. Communication not disseminated beyond persons
who b/c of corp. structure need to know contents
2. Which entity persons covered and who has power to waive different
a. Waiving a/c privilege rests w/ corp.’s mgmt and for officers and directors
3. Why would corp waive?
a. Part of plea
b. Public relations strategy
i. Mitigation in sentencing
c. Thompson, McNulty Memos on lenient treatment for cooperation
d. SEC doesn’t encourage or give credit for a/c privilege waiver through
cooperation
4. Caution- disclosure to one may waive a/c as to others later
5. FRE 502 Limitations on waiver
a. Disclosure in fed proceeding or to fed office
i. Waiver intentional
ii. Same subject matter
1. ought in fairness to be considered together
b. --
c. in state proceeding and not subject of state ct order concerning waiver,
does NOT operate as waiver in fed proceeding IF the disclosure
26
 i. wouldn’t be a waiver under this rule if made in fed proceeding; or
ii. not a waiver under law of state where disclosure occurred
d. Controlling effect of ct order- fed ct may order privilege or protection not
waived and then NOT waived in any fed or state proceeding
e. Controlling effect of party agreement- Binding ONLY on parties in
agreement UNLESS incorporated into ct order
f. Controlling effect of rule- applies to state proceedings and fed ct
arbitration. Even applies is state law provides the rule of decision
g. Definitions
i. a/c privilege means the protection that applicable law provides for
confidential a/c communications; and
ii. work-product protection means protection that applicable law
provides for tangible material (or intangible equivalent) prepared in
anticipation of litigation or for trial
XI. Chapter 11 Exceptions to confidentiality designed to protect 3rd persons
a. Model Code Exceptions for Future Crimes and Frauds
i. Older code and still some states, ONLY exception to protect 3Ps from your client’s
action is that which provided atty can disclose info to prevent a clients intent to commit a
crime or fraud
1. Logan case- since not a future crime, attys couldn’t reveal
b. R§82 client crime or fraud
i. a/c privilege doesn’t apply to a communication occurring when client:
a. consults atty for purpose, later accomplished, of obtaining assistance to
engage in a crime or fraud or aiding a 3P to do so, or
b. regardless of client’s purpose a time of consultation, uses atty advice or
other services to engage in or assist a crime or fraud
ii. BOTH exception require client must have actually carried out crime or fraud
c. Difference b/t exception to confidentiality and exception to privilege is largely one of timing
i. exception to confidentiality allows atty disclosure to prevent crime or fraud
ii. exception to privilege requires atty or client to testify to communications that furthered or
were intended to further a crime or fraud already accomplished
d. Disclosure waives privilege
i. BUT, warnings based on a client communication about crime/fraud and not actual
disclosure would preserve the privilege communication
e. Model Rule Exception for death or Substantial Bodily injury
i. Threats to kill another person fall w/I in the exception to confidentiality in nearly every
state
ii. 11 states also include substantial bodily harm as basis for disclosure
iii. McClure
1. D challenging trial conviction for three murders
2. D’s original D atty placed anonymous call concerning body locations.
3. CT said no ineffective counsel, no breach of duty of confidentiality, no actual
conflict of interest
4. D had made a Jesus saved the kids comment so thought might be alive still and
also D said info for state and wanted a plea
5. Atty had notes that D had consented to anonymous call of kid’s locations. If not
dead, then disclosure required to prevent future crime.
a. Atty inconsistent- had consent, then inferred consent
6. D denies any consent to disclosure and insists he was assured of confidentiality

27
 7. Atty didn’t advise D that potential consequence of disclosure might produce
stronger evidence against him, but ct said failure was NOT unreasonable.
8. D claims ineffective & Ct uses Strickland and says not deficient
9. D claims duty of confidentiality breached
a. Per ABA model,
i. Atty may reveal w/ consent
ii. May reveal to prevent the client from committing a criminal act
likely to result in imminent death or substantial bodily harm. 1.6
10. Ct says YES that consent was given, but wasn’t informed
a. Even though didn’t meet 2nd part of consent
1. consent by client
2. consultation by counsel concerning consent
b. but “ii” prevention exception applied
c. Consent doesn’t excuse breach of confidentiality
i. Consent must be informed
1. requires appropriate consultation regarding risks
2. w/o informed, assistance is constitutionally deficient under
6th Amen
11. Ct HOLDS Atty did NOT violate duty of confidentiality in a manner that rendered
assistance ineffective
12. On conflict of Interest
a. D claims acting primarily out of concern for children’s welfare no clients
best interests
b. Conflict of interest constitutes a constructive denial of counsel altogether
and is legally presumes to result in prejudice
c. CT says no evid of D interests being impermissibly impaired or
compromised for the benefit of another party
13. DISSENT
a. Unreasonable b/c only bare suspicion that alive; no investigation
iv. Standard for judging atty’s disclosure of client confidences under the ethical rules is “firm
factual basis”
1. must do reasonable investigation
v. Model code requires atty’s disclosure of client’s perjury
f. Client Financial Harms
i. 2003, 1.6 amended to allow disclosure in situations of client crimes or fraud that result in
financial injury
ii. Consistent w/ Restatement
g. Required by Law
i. In most jurisdictions, disclosure of a crime or fraud is NOT required, only permitted, by
the rules.
1. Some state go further and require disclosure
ii. ALL state have exception to confidentiality that allows atty to reveal confidential info in
order to comply with other law.
1. e.g. atty duty to warn under tort law
iii. If you disclose your client’s threat to police or judge, you have substantially prejudiced
your client and will be required to withdraw from representation
1. most state disciplinary rules leave to the discretion of the atty
iv. Exceptions to ethical duty of confidentiality that permit disclosure when required by law
keep atty from dilemma of liability vs. discipline.
h. Reporting up and Reporting Out when representing an Entity
i. Duty to report UP w/I corp.
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 ii. 1.13(c) gives authority to report OUT even if 1.6 doesn’t otherwise permit SO LONG AS
the corp. has not yet acted and you reasonably believe that disclosure could prevent
reasonably certain and substantial injury to the corp.
i. Beechnut
i. Tainted apple juice
ii. Violates truth in advertising law
iii. Could cause substantial injury to corp.
iv. 1st step in what is reasonably necessary
1. counsel/talk to client
v. report up and all the way up
vi. If get fired, then report that and still have duty to report UP
1. in ½ jurisdictions, can sue former employer
vii. Report out
1. can report out in ½ jurisdictions per 1.13
viii. Maybe don’t report
1. Can persuade to stop?
2. Not firm factual basis that doing?
XII. Chapter 12 The Duty of Candor to the Tribunal
a. Rules 3.3
a. A lawyer shall NOT knowingly:
1. Make false statement of fact or law to tribunal OR fail to
correct 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 D in a criminal
matter that the lawyer reasonably believes to be false.
b. A lawyer who represents a client in an adjudicative proceeding and who
knows that a person intends to engage in or has engaged in criminal or
fraudulent conduct related to eth proceeding shall take reasonable
remedial measures, including if necessary, disclosure to the tribunal
c. The duties in the (a) and (b) continue to the conclusion of the proceeding,
and apply even if compliance requires disclosure of information otherwise
protected by 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
b. Don’t lie to the ct.
i. Doesn’t have to be material
1. material not defined
a. Check comments and other law
b. Material- would affect outcome/change one’s mind
c. If lawyer reasonably knows is false
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 i. Remonstrate- attempt to dissuade
ii. Repair
iii. Report
1. Don’t have to report if you can repair
d. Dorman Hypo
i. Wants to plead guilty to create cover for another crime
ii. Plea is NOT a statement of fact or law
1. BUT no ct is going to take a plea w/o some fact
iii. CAN enter whatever plea, but CANT present false evidence to ct.
iv. Solution
1. Threaten to withdraw & counsel
e. Evidence
i. When client has evidence e.g. child porn
1. If fruits or instrumentality of the crime, then have duty
a. May NOT keep, hide, destroy, or return
2. If would constitute obstruction of justice, then have to turn it over
a. 1.6 “other” law exception
f. Client Perjury and Fraud
i. Prior to Model Rules, atty could not participate in presentation of false evidence, but
couldn’t breach confidences to prevent.
1. Was req’d to remonstrate, If failed, attempt withdrawal, All else failed, some cts
allowed disclosure.
2. Some cts allowed client to testify in free narrative and the false evid couldn’t be
any part of the summation
ii. Nix
1. MO has adopted this case’s rationale
2. 6th Amen right of criminal D to counsel violated when atty refuses to cooperate in
D presenting perjured testimony at trial
3. Atty precluded in any way assisting the client in presenting false evidence or
otherwise violating law
a. Lawyer can’t knowingly use perjured testimony or false evidence
b. Counsel or assist client in conduct that the lawyer knows to be illegal or
fraudulent
c. Lawyer has duty to disclose falsity of evidence even if disclosure
compromises client confidences 3.3
i. Required to disclose!
4. Ct says
a. No failure here to adhere to reasonably professional std to deprive 6th
Amen rights under Strickland
b. duty of confidentiality cover admission of guilt, not plans to engage in
future criminal conduct
iii. What If perjury discovered after proceeding conclusion
1. 3.3 appears to let off the hook
a. “practical time limit” cmt 13
2. 4.1 Truthfulness to others does NOT have a confidentiality override
3. 3.3 covers depositions as well
iv. Long
1. lawyer told judge D wanted to testify and told judge was concerned about D’s
testimony
2. Different from Nix
a. No finding would have testified falsely
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 i. Counsel must act if he has firm factual basis for believing D will lie
ii. Need a clear expression of intent to commit perjury before an atty
can reveal client confidences
b. Here, Jackson didn’t testify at all.
c. In Nix, atty didn’t reveal his belief about clients anticipated testimony, but
here the disclosure was quite explicit
i. Creates significant risks of unfair prejudice to the D
3. Mtn to Withdraw for unstated reason and narrative testimony are signals
4. Once bell rung, cannot unring
a. Evidentiary hearing to determine whether undue prejudice
v. Atty’s Duty
1. competence and diligence
a. NO duty to investigate client’s story
i. BUT where atty has doubts, CANT close his eyes to the truth
2. Atty can refuse to offer when reasonably believes is false
a. If uncertain, cannot disclose, but lawyer can override client’s wishes in
this circumstance
vi. Counseling or Assisting Illegality or Fraud
1. 1.2(d) prohibits counseling client to engage in or assisting in conduct the lawyer
knows is criminal or fraudulent
a. BUT, the rule does allow the lawyer to discuss the legal consequences of
any proposed course of conduct
i. Difference b/t analysis and recommending means cmt. 6
2. Completed fraud
a. May NOT disclose the fraud, but may not act in a way that advances it
either
b. In a tribunal, candor trumps loyalty to client
c. Not in a tribunal, where confidentiality and loyalty battle fairness to 3Ps,
fairness loses
i. No duty to rectify client’s fraud
ii. Cannot disclose
iii. Atty MAY disassociate himself from client and MUST do so if NOT
doing so will involve the atty in the fraud 1.16(a)(1)
1. Noisy withdrawal is still an open question
a. Don’t name reason for withdrawal.
XIII. Chapter 13 Negotiation Ethics
a. Rules
i. 4.1 Truthfulness in Statements to Others
1. In the course of representing a client, lawyer shall NOT
a. Make false statement of material fact or law to a 3P; OR
b. Fail to disclose a material fact when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, UNLESS disclosure is
prohibited by 1.6
b. Statement of fact
i. Depends on circumstances
ii. NOT statements of fact
1. estimates of price or value
2. parties intention of acceptable settlement
iii. Why allowed?
1. way negotiations work
a. ppl wouldn’t follow/enforce
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 b. best negotiations start out w/ cautious cooperativeness
c. If client lies in negotiations
i. In contracts, false statement that induces fraud that’s material can void
ii. MUST disclose a fraud by client, but CANNOT unless can find an exception to 1.6
1. i.e financial harm prevention to others, etc
d. Backbreak Acres Hypo
i. Rodent problem disclosure
ii. Can disclose, but need consent b/c confidential
iii. Talk to client- tell them they are in deep do-do if don’t disclose
1. If persist then withdraw if threat doesn’t work
iv. If disclose, full disclosure
e. Always confirm you have good law
i. If using an adoption of ABA, then have fertile ground for research b/c so many other
jurisdictions have adopted.
ii. Search key terms: disclosure, fraud, misrepresentation
iii. Use ABA BNA Lawyer’s manual
f. Roth
i. Ds lie about ins coverage to induce settlement, should cts permit the P to enforce
settlement but sue for damages growing out of the fraudulent inducement?
ii. Fraud in the factum= contract void ab initio
iii. Fraud in the inducement= render the contract voidable
1. rescind K OR
2. enforce and sue independently for eth damages resulting from the fraud
iv. Fraud Elements Joel Bianco Kawasaki
1. a representation
2. its falsity
3. its materiality
4. the speaker’s knowledge of its falsity
5. the speakers intent that it be acted on by the hearer in the manner reasonably
contemplated
6. hearer’s ignorance of the falsity of the representation
7. the hearer’s reliance on the representation being true
8. the hearer’s right to rely on the representation
9. hearer’s consequent and proximate injury
v. If parties entered into the new agreement when the facts of the fraud were known, it is
presumed that both parties acted with that question in view and the new agreement was
wiping out of old scores.
1. Here, Roth argue, wouldn’t have settled had they known of lies about coverage
vi. Misrepresentation count
1. generally, unless involving intentional torts, an attorney isn’t liable for an injury to
a non-client arising from his representation of his client
a. b/c no privity of contract or in an a/c relationship w/ 3P
2. “exceptional circumstances” rule
a. May be liable involving fraud, collusion, malicious or tortious acts by the
attorney
b. Limited to intentional torts
c. Doesn’t include negligent misrepresentation
3. The representations were in interrogatories filed out by client, not atty and court
won’t impute the representations to the atty
4. Atty doesn’t have duty to disclose his clients misrepresentations to his client’s
adversaries
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 a. Communication is a/c privileged
i. No duty to disclose privileged in anticipation client might commit a
civil offense
ii. 4.1 prohibits knowingly failing to disclose a material fact when
necessary to avoid fraud, but makes an exception in which 1.6
prohibits disclosure.
iii. 1.6 didn’t provide an exception here
iv. 8.4 prohibits atty from engaging in dishonest, fraudulent, or
deceitful conduct, it also declares that an atty cannot disclose info
protected by 1.6.
b. Rules don’t form the basis for civil cause of action, but are standards and
basis for discipline
vii. Conspiracy
1. Atty is alter ego of client, so can be usually not possible to have a conspiracy
between atty and client
a. Atty liable IF
i. atty serving own interests
ii. Acts outside scope of agency relationship
iii. Atty himself commits fraud or another intentional tort during
representation
2. Roths don’t allege atty committed fraud; but client did
a. Cannot impute that conduct to atty
g. Fairness in Negotiations
i. Difficult issue when opposing counsel is incompetent
ii. Owe client duty of competently and diligently pursuing client’s lawful objectives,
preserve the client’s info, respect client’s autonomy in decisions
iii. Owe opposing party a duty of honesty and fair dealing
iv. If duties are in conflict, 3 options (no clear rules or defined case law exist)
1. Defer to client’s resolution even if places the client and atty at risk of liability
2. Act w/o client’s authorization to resolve dilemma
3. Counsel client and agree w client on a resolution or withdraw if can’t reach
consensus
a. Choice depends on factual and legal context ad atty default std of
allocation of authority in the a/c relationship
v. Can atty capitalize on adversaries typographical error
1. capitalizing on unilateral error unlikely to arise to level of fraud as defined in rules
a. might have been a change in position by other party
2. might still rise to level of dishonesty or deceit under definitions of misconduct 8.4
b/c broader in scope than 1.2
3. At a minimum advise client on risks
4. NOT same risks to plea agreement for criminal
a. Presumption of innocence
b. Lawyer cannot refuse to offer testimony of criminal D even if atty has
reason to believe that testimony is false
c. D atty has NO basis to correct a prosecutor’s error when D atty did
nothing to induce or further that error
5. In negotiation context, risks of client accepting the offer are mush more
significant
a. If clearly a transposition of #s, would likely be basis for rescission fot
unilateral mistake

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 i. No meeting of the minds
b. If ongoing relationship
i. Good faith and fair dealings come into play
ii. Reputational values at risk
c. Required to get client’s permission to disclose error is kind of unclear
i. Atty must inform of all settlement offers or decision circumstance
promptly w/ respect to which their informed consent is necessary
1.4
ii. Rules suggest yes under cmt 2 ‘taking action’
iii. Also, suspicion of offer error would be confidential info relating to
the representation
1. Not a disclosure by checking with other atty, but a USE of
info that would violate duty of loyalty to client
iv. Two exceptions might permit disclosure IF capitalizing would be
‘fraud’
1. disclosure to prevent substantial financial harm from the
client’s fraud when the atty’s services were used to further
that fraud
2. allowing disclosure to comply with other law
d. Counter arguments
i. Not bound to pursue every advantage
ii. Lawyer has authority for professional discretion in determining
means by which matter should be pursued 1.2
iii. Reasonable diligence doesn’t require offensive tactics
iv. 3.3 requires revealing contrary authority overlooked by opposing
counsel
v. kind of analogous to inadvertent document receipt 4.4
1. atty has discretion
vi. Disciplinary probably only private reprimand
e. If client says NO, can withdraw as repugnant action 1.16
i. Upon withdrawal, atty may have option to put opposing counsel on
notice by disclaiming documents
1. Could hint at checking figures without a ‘disclosure’
f. Checking the #s is right thing to do
i. Practically
ii. Legally
iii. Economically
iv. Ethically
XIV. Chapter 14 Conflicts of Interest- The Attorney’s Interests vs. Client
a. Rules 1.8 Conflict of Interest: Current Clients
a. Lawyer shall NOT enter into a biz transaction w/ a client or knowingly
acquire 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 manner that can
be reasonably understood by the client.
2. The client is advised in writing on desirability and given
reasonable oppty to seek independent legal counsel
3. The client gives informed consent, in a signed writing, to
the essential terms of transaction and the lawyer’s role,
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 including whether the lawyer is representing the client in
the transaction
b. Lawyer shall NOT use info relating to the 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. 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 person related to the lawyer any substantial gift UNLESS
the lawyer or other recipient is related to the client. Related includes
spouse, child, grandchild, parent, grandparent or other relative or
individual w/ whom the lawyer or the client maintains a close family
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 info relating to the
representation (doesn’t have to be w/ client)
e. A lawyer shall NOT provide financial assistance to a client in connection
w/ pending or contemplated litigation, EXCEPT that:
1. Lawyer MAY advance court costs and expenses of
litigation, the repayment of which MAY be contingent on 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. 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 the representation of a client is
protected as required by 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 aggregate 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 the
participation of each person in the settlement
h. Lawyer shall NOT
i. Make an agreement prospectively limiting the lawyer’s liability to a
client for MP UNLESS the client is independently represented in
making the agreement; OR
ii. Settle a claim or potential claim for such liability w/ an
unrepresented client or former client UNLESS that person is
advised in writing of the of the desirability of seeking and is given
oppty to seek advice of independent legal counsel in connection
therewith
i. 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:

35
 i. Acquire a lien authorized by law to secure the lawyer’s fees or
expenses; and
ii. contract w/ client for reasonable contingent fee in a civil case
j. Lawyer shall NOT have sexual relations w/ a client UNLESS a
consensual sexual relationship existed b/t them when the client-lawyer
relationship commenced (can date, but no sex)
k. While lawyers are associated in a firm, a prohibition in paras (a) through
(i) that applies to any one of them shall apply to ALL of them.
b. Introduction
i. Concern for confidentiality is at the core of conflicts analysis.
ii. 1.9(c) makes clear an atty’s duty of confidentiality to former clients prevents revealing
that client’s info or using the info to the former client’s detriment UNLESS the info is
generally known.
iii. We use “same or substantially the same” as the atty’s current representation so client
doesn’t have to reveal exactly what trying to protect.
1. confidentiality is protected w/o having to reveal the confidential info
2. Atty is presumed to have confidential info that is threatened by conflict
iv. Concept of loyalty to client is also part of the core of conflicts analysis as it is in general
agency law
v. 1.8 attempts to prevent circumstances where client’s interests may be negatively
affected by atty’s own financial or personal interests
vi. 1.10 provides if one atty in a firm has a conflict of interest, all the attys in that firm have
the same conflict even if those attys practice in an entirely different geographic or
practice area
vii. The context of analysis matters
1. question of professional discipline might look at the same conduct quite
differently
2. individual standards and local professional norms also vary
3. Joint representation of hubby/wife, employer/employee changes risks analysis
c. Class notes
i. Values at stake
1. loyalty to client
2. indep. Professional judgment for client
3. confidentiality
4. Integrity of the system
ii. Sources of conflicts of interest
1. chart on Chapter 14 Page 1
iii. Remedies
1. Discipline
2. Disqualification in litigation setting
a. Can get abused in system
3. Breach of fiduciary duty
4. MP
iv. Disqualification is key when researching
1. most common method of enforcing conflicts
2. Potential for abuse, cost to client
v. Sources of authority
1. state counterparts to 1.7-1.13
2. case law on disqualification for conflicts (court’s inherent authority)
3. case law on tort actions against attys for conflicts of interest
4. Statutory restrictions on attys in certain practice areas
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 a. IRS regs so no contingent fees
b. PTO says can have contingent fees
vi. 1.7 Analysis
1. Id clients and interests
2. Are they Directly Adverse?
3. Will they be Materially Limited “DAML”
4. Is the conflict waivable?
a. Can you ask for and obtain actual informed consent
vii. When CANNOT consent, prevent, or cure conflict
1. If rules prohibit consent 1.7(b); 1.8
2. If unreasonable
3. If client cannot give informed consent
viii. Conflicts between clients
1. potential 1.18
2. current 1.7
3. former 1.9
a. Loyalty
i. Same or substantially the related matters
b. Confidentiality
i. Confidential info
d. Conflicts and the Lawyer’s Own Interests
i. Guard against outside influence that can dilute your loyalty to client. However, own
personal interest can pose greatest risks.
ii. 1.7(b) prohibits representation when an atty’s interest may materially limit the
representation of a client
iii. 1.8 prohibits literacy/media rights agreements- bars any negotiation or agreement w/
client or others
1. NO consent provision available, but CA ct said needed good atty and okay and
had overriding constitutional right to representation Maxwell
e. Positional conflicts
i. 1.2(b) independence from clients
1. representation doesn’t constitute an endorsement
ii. 1.7 allows positional conflict unless
1. representation of either client would be adversely affected
a. in same court?
b. Trial or appellate level
c. Fear of soft pedaling arguments as not to undercut position of other client
iii. Having two minds hypos:
1. Writing law review on subject and then taking client with conflicting views
a. Does position in past create conflict?
i. Cmt 24 conflicts in litigation
1. Maybe problematic if published article that year or
published the guidelines cited in the court below
b. Consider Time
c. Personal identification w/ issue- attacking own work
d. Whether substantive or procedural
e. common law or statutory
f. Interests of the client
g. expectations
2. Working as prosecutor and don’t like US prosecutor’s attack on churches who
help immigrants
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 a. How morally repugnant does it have to be? 1.16(b)(4)
i. So disgusted cannot consider reasonable alternatives
ii. Interferes w/ ability to be competent and diligent
1. A lawyer may withdraw
iv. Mendoza Toro
1. P, AUSA, seeks to enjoin boss from assigning her to prosecute persons charged
w/ trespassing on naval base. Claims would violate her 1st Amen rights to chose
not to do a legitimate work assignment
2. Ct says her work is not an expression protected by 1st Amen
a. Personal beliefs do not relieve her from legitimate work assignments
b. Fails to state a claim
3. Pickering test- 3 prongs
a. Employee speaking as citizen upon matters of public concern or as an
employee upon matters of personal interest
i. If personal and not public then not subject to fed ct challenge
ii. Here, her personal beliefs not a matter of public concern
1. Just complaints about work duties
b. Court balances employees 1st Amen rights, as well as any public interest
in the info about which the employee was speaking with the govt’s inters
tin promoting the efficient performance of the service the govt agency
seeks to provide through t its employees
i. Here, public employee has legitimate interest in completing
legitimate work assignment
c. Third prong?
4. 1.2(b) says a lawyers representation doesn’t constitute endorsement of client’s
views
5. 1.7(b) addresses conflicts of pecuniary and professional interest, not atty’s
personal beliefs and client’s legal position
f. Atty Economic interests
i. Employment searches-
1. consult w/ get consent before discussing
ii. Biz transactions w/ clients
1. Presumptively invalid
a. But can do
i. Fair/in writing
ii. Advise to get another atty in writing
iii. Client’s written consent to terms and atty’s role
2. Atty has burden in demonstrating fair and full disclosure made
3. 1.8 doesn’t apply unless there is an actual A/c relationship at the time the biz
transaction is entered into.
a. Can borrow from a former client
4. Can give a client a loan, but not in connection with litigation
a. Unless
i. indigent,
ii. contingent on outcome
iii. Only court costs/expenses
iv. Cannot loan for living expense
5. Helping start a biz in exchange for a %
a. 1.8(i) not if proprietary interest in cause of action in litigation
b. BUT, allowed if structured in cause of action as a contingent fee vs.
interest
38
 i. Still check reasonable and materially limitations
g. Boundaries
i. Atty’s interests can become too closely aligned w/ client too
ii. 1.8(j) commencing sexual relations
iii. 1.8(i) applies only to litigation, not biz transactions or non-litigation matters
iv. Patent hypo
1. Firm’s ethics committee
2. read 1.5(c) and 1.8(a) and (j)
3. Separate PTO code rules
a. CAN take an interest in patent as part of or all of his fee
v. 1.8(e) Expenses beyond cost and litigation expense are still prohibited
XV. Chapter 15 Conflicts between Current Clients
a. Rules
i. 1.18 Duties to Prospective Clients
1. See “Chapter 5”, Page 8-9 of outline
ii. 1.7 Conflicts of Interest: Current Clients
a. EXCEPT as provided in (b), lawyer shall NOT represent a client if the
representation involves a concurrent conflict of interest. A concurrent
conflict of interest exists IF:
1. 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 #P or
by a personal interests of the lawyer
b. Notwithstanding the existence of a concurrent conflict of interest under
para (a), a lawyer MAY represent a client IF:
1. 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
b. Have to treat prospective clients as actual clients for confidentiality purposes
c. Duty of Confidentiality
i. All Information rec’d
ii. Unless 1.9 exception
1. Publicly known (Use)
2. Consent (use or disclosure)
d. Conflicts IF
i. info significantly harmful
ii. materially adverse
iii. same or substantially related
1. imputed to others in form firm
a. Unless screening
e. Conflict checking
i. Check name and nature of prospective clients who call
39
 ii. Initial consultation- Warn
1. how do you get enough info w/o going to far-balance risks
iii. Informed Consent
a. CANNOT do to future typically b/c cannot foresee/appreciate
ramifications
b. Advanced Waiver allowed w/ Sophisticated clients
i. Scope of waiver
ii. Alternatives
f. 1.7 Cant sue current client in same proceeding
i. e.g. hubby/wife in same proceeding to quiet title to land
g. 1.9 Cant sue former client if matter is substantially related
h. Reduce risks in joint representations
i. Research law
ii. 1.6 provides for waiving of confidentiality
iii. informed consent
iv. factual analysis of relationship
v. probabilities
vi. may need waiver of conflicts and confidentiality
1. i.e. hubby/wife wills
vii. driver/passenger as co-defendants- NOT good
viii. Dr/hospital in malpractice- aligned interests, already planned for, sophisticated clients
i. Identifying clients
i. 1st step in conflict analysis
j. Prospective Client
i. Core of conflict of interest analysis is protection of confidential info
ii. Individual conflicts of atty are imputed to firm, unless otherwise excepted
iii. Small town Hypo
1. Didn’t hire you but knew of his facts so probably a conflict of interest when wife
calls later to hire
2. you have to treat as client for purposes of confidentiality
3. Receipt of confidential info alone can provide basis for disqualification
4. Now if hubby shopped all intentionally to run interference then likely not a conflict
k. Entity Person
i. 1.13 when you represent an entity, you represent the entity
1. NOT prohibited from also representing the persons in that entity
2. But must insure that the general 1.7 rules are followed
a. Analyze effects of dual representation
b. Obtain Informed consent of org.
i. From appropriate official in org.- not person to be jointly
represented
3. Can represent more than one division in an org, but must resolve differences
among them in org’s normal decision making procedure
4. Can represent an affiliate, but for 1.7 depends on particular circumstances
a. Whether such a relationship has been created
b. Whether parties have agreed that atty is to treat the affiliate as a client
c. Whether confidential info has been disclosed to atty by the affiliate w/ an
expectation of confidentiality
d. Sufficient unity of interest to require the atty to regard the affiliate as a
client
e. If represent both corp. and affiliate, cannot sue one and represent the
other, even in unrelated matters, w/o client consent
40
 i. Even if no direct adversity, could still have a materiality limited
issue triggering 1.7(b)
ii. Atty’s duties run to the entity, NOT to the constituents of the entity
iii. Atty must make clear to those whom dealing with that the entity is the client and that info
provided by those individuals is privileged outside the entity but NOT as to the entity
itself. 1.31(f) and 4.3.
iv. If atty obtains info from a constituent and advises a corporate constituent will not be
disqualified form representing the corp. If a conflict b/t corp. and constituent arises
1. Unless atty has failed to make role clear, then may be disqualified from
representing the corp. in a matter adverse to that constituent in the future
l. 3P Payor
i. May accept pmt from someone else, but must clarify role and protect confidentiality 1.8
ii. State law will control whether you represent insurer or insured
1. if there was an assignment of claim or direct action statute, you represent the ins.
co,
2. Otherwise, usually the insured only
m. Checking for Conflicts of Interests
i. NY has DR 5-105(e) and no other juris has anything quite like it
1. Can’t accept or knowingly continue when any one alone would be prohibited from
doing so.
a. Statute
i. Firm shall keep records of prior engagements, at or near such
time as made and implement a system of checking proposed
engagements against current and previous engagements to help
comply with 5-105(d)
ii. failure to keep records to have a policy shall be a violation by the
firm
iii. Lawyer as well as firm may be responsible for violation of DR 5-
105(d)
2. “Law Firm”
a. includes, not limited to, professional legal corporation, an LLC or
partnership engaged in the practice of law, the legal department of a corp.
or other org. and a qualified legal assistance org.,
3. Fundamentals
a. system type depends on nature/structure of firm
4. Records
a. written or electronic
b. such that can be quickly accessed
c. made at or near time of engagement
d. effective from date implemented
e. Organized in way conducive to accessing
i. Name and engagements undertaken and adverse party
f. Silent on what must be keep
i. Name
ii. Adverse party
iii. Description of engagement or prospective engagement\
g. Engagement letters may not show all new engagements
h. System
i. Shoe box
ii. 3rd P software
i. System for checking particular types of conflicts
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 i. Conflicts w/ current clients
1. Corporate family conflicts
2. Corporate constituents
3. Trade association members
ii. Conflicts w/ former clients
1. Law firms own former clients
2. Former clients of laterals
a. when atty moves from one firm to another pvt law
firm, the clients that the lawyer personally
represented at his prior law firm are potential
sources of conflict for the new law firm
iii. Conflicts not addressed (see p17 of text )
ii. Conflicts Among Clients
1. 1.7(a) and (b) address simultaneous representation of multiple clients
a. Permitted w/ informed consent
b. Atty reasonably believes interests of both clients adequately served by
joint representation
2. Opposing parties in same litigation
a. Loyalty and confidentiality problems
b. Clearly prohibited
i. Even when different lawyers from same firm work on the opposite
sides
1. Rules do NOT allow to waive the conflict
n. Dresser Industries
i. Can firm sue its own client which it concurrently represents in other matters?
ii. Ct held
1. Not here, where firm’s motivation appears to be self-interest
2. Granted mtn to disqualify
iii. Woods test
1. appearance of impropriety
2. possibility that a specific impropriety will occur
3. likelihood of public suspicion from eth impropriety outweighs any social interest
which will be served by the atty’s continued participation in the case
iv. Model rule of Prof conduct or code of Prof Responsibility don’t allow either
v. NO ‘Exceptional Circumstances’ here to allow
1. serving some social interest that outweighed public perception of impropriety
o. Disqualification
i. Drastic measure
ii. Viewed w/ disfavor
iii. Courts hesitate unless absolutely necessary
iv. Intensely fact specific
v. Wyeth
1. Courts examine totality of circumstances
a. impact
i. prejudice to P
ii. prejudice to D
iii. any access in representation to confidential info relevant to current
case
iv. time and $ costs in getting new atty
v. complexity of issues and time would take for new atty to acclimate
vi. which party, if either, was responsible for creating the conflict
42
 b. nature and degree of conflict
i. two matters and issues related in substance
ii. both matters presently active
iii. whether attys from the firm have been involved in both matters
iv. whether being handled from different offices in different
geographic locations
v. whether atty from firm work w/ different client reps for each matter
vi. relative time billed by firm fore each matter
2. Can be used for tactical reasons
a. Courts concerned about this
3. Factors in determining if disqualification is warranted
p. For discipline and disqualification
i. Courts treat firm as one unit 1.10(a), 1.7, 1.8(c), 1.9, or 2.2
q. Can resolve mega-firm dilemma with advance consent to future adverse representation
i. Waiver of future conflicts in some situations
1. Sophisticated parties
r. Hot Potato Doctrine
i. Courts disallow law firm to drop a client like a hot potato in order to shift resolution of the
conflict question from rule 1.7(current clients) to 1.9 (former clients)
1. BUT, result is different if client agrees to withdrawal
s. Representing co-parties
i. Representing co-Ps and co-Ds not prohibited
1. requires informed consent
2. high degree of caution
3. atty reasonably believes he can adequately serve all clients’ interests
ii. Problems w/ criminal co-Ds
1. when interests start to diverge
2. notify court immediately when conflict starts to emerge
3. Continuing w/o clear consent and full disclosure
a. Discipline
b. Ineffective counsel finding
iii. Problems in matrimonial cases
1. In MO, cannot represent both in divorce even if uncontested and both parties
consent
iv. Problems in settlement of multiple claims
1. in aggregate settlements
a. each client must consent after disclosure of the existence and nature of
all claims involved and participation of each person in the settlement
b. Failure to obtain consent may be grounds to void a settlement
v. Atty may have fiduciary duty to share any info relating to representation obtained from
one client w/ other jointly represented clients as part of the duties of diligence and
communication 1.3 and 1.4.
1. May include info adverse to a co-client
t. Concurrent representation
i. Key questions:
1. Would your representation of one client be less competent and diligent if you
represent the other client?
2. Would you be likely to have confidential information from one client that could be
used to harm or advantage the other client?
3. Would representing one client be viewed by the courts as a breach of your loyalty
to the other client?
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 ii. Legal not merely economic conflict - Merely because businesses are in competition does
not make them directly adverse. See Comment 6, 26 to 1.7
iii. Directly adverse clients
1. Suing your own client - even if only nominal, is always a conflict. (Loyalty) 1.7,
comment 6.
a. Never waivable if you are representing both sides of the same litigation.
1.7(b)(3)
b. Rarely waivable even if you are representing one client in a matter that is
entirely unrelated to the matter in which you are representing another
client in suing the first client.
2. Direct adversity in transactions – sitting across the table from your client.
a. No per se prohibition, but rarely would this be considered reasonable.
b. Can act as a third party neutral, Rule 2.4, but then you are not
representing either client.
iv. Materially limited representations
1. When a conflict is possible but not actual, the mere possibility can create a
conflict because it may materially limit your representation – question is one of
degree and severity (“significant risk”)
2. Any interests – whether clients, third parties, personal, professional – can
materially limit your representation.
u. Simultaneous representations – When can you represent two clients in the same matter on
the same side? (See especially comments 29-32 to Rule 1.7)
i. Pros:
1. Less expensive
2. “Circle the wagons” consistency of theory and evidence strengthens action
3. Focus on commonality rather than conflict facilitates transactions and preserves
relationships
4. Client autonomy – allows clients their choice of attorney
ii. Cons:
1. May be required to waive some claims or forego some theories
2. Recall impact on attorney-client privilege – considered waived as between co-
clients. Always obtain informed consent and waiver of confidentiality between
the two clients.
3. For attorneys, representation of co-clients constitutes a prime source of
malpractice claims and frequent source of discipline.
4. If conflict arises later that requires withdrawal, clients, courts and attorneys are all
worse off than if the clients had begun with separate counsel or pro se
representation.
iii. Ending the joint representation
1. Settlement of joint claims carries special responsibilities under Rule 1.8(g):
disclose information about each client’s claim and share of the proposed
settlement, every client must consent before the settlement may become final;
and the consent must be in a writing signed by the client
2. Clients have the right to withdraw their consent to joint representation at any
time, which requires the attorney to then withdraw from the representation
(1.16(a))
3. If an attorney withdraws from a joint representation, he or she cannot ordinarily
choose to continue to represent one or the other of the clients. All or none.
4. The Restatement allows attorney to withdraw from an “accommodation’’ client
and continue to represent the regular client with advanced, informed consent,

44
 but not all jurisdictions accept this approach. See, e.g., Koch v. Koch Industries,
798 F. Supp. 1525 (D. Kan. 1992).
iv. Co-defendants in a criminal case
1. Many possibilities of conflict: because of the common strategy of shifting blame
(“the cookie jar” defense) or because a witness may implicate one client but not
the other (so how do you cross-examine?); because one client may want to
testify and the other not; because the theory or story of the case that works well
for one client may not work well for the other; because one client’s credibility may
negatively impact the other client; because clients may have conflicting
objectives re: plea agreements, because sometimes co-defense is sought in
order to further perjury
2. Not per se a conflict unless law otherwise prohibits (as it often does for example
in capital cases)
3. Courts police waivers carefully and have broad discretion to reject waiver
(Kinder)
4. “If no timely objection to multiple representation by appointed or retained counsel
is made, a defendant seeking to overturn a conviction on conflict of interest
grounds must prove that there was an actual conflict that affected his lawyer’s
performance, but he need not show any further prejudice. A defendant may
generally waive his right to conflict-free counsel, but the waiver must be voluntary
and intelligent.” ABA/BNA 51:301
v. Co-parties in a civil case
1. Assess likelihood of conflict – if conflicts are potential rather than actual, what
would be the effect if the conflict ripened? Can you take steps to reduce that
possibility?
2. Co-defendants: Similar risks as presented by co-defendants in criminal case
except you can waive cross claims and can agree on how to split liability before
the suit is filed.
3. Co-plaintiffs –
a. Easier, but must assess the commonality of objectives and power
balance among all the plaintiffs
b. While in a separate representation, a client can appoint an agent to direct
the representation, in co-representations, there are significant risks in
having the clients delegate a spokesperson for all their interests – at a
minimum, must insure constant and complete flow of information to all
clients and consent of all to any major decisions
vi. Co-parties in transactions (Representing parties in forming a business, making an
investment, prosecuting a patent, etc.)
1. How likely are the clients able to each articulate their own interests --- are there
imbalances of power among the clients that would interfere with your ability to
represent each equally?
2. How likely is the transaction to be successful? How much information do the
clients have? How realistic are they being?
3. What are the implications if the deal falls apart?
vii. Class Actions
1. Attorneys represent only the named class representative
2. Rules for class certification mediate some of the conflicts issues -- insure
commonality, representativeness, etc.
3. “To evaluate whether a conflict is presented when disagreement arises among
co-clients that are generally aligned on one side of complex or multiparty
litigation, the Restatement suggests evaluating whether issues common to the
45
 clients’ interests predominate, whether circumstances such as the size of each
client’s interest make separate representation impracticable, and the extent of
active judicial supervision of the representation. Restatement of the Law
Governing Lawyers §128 cmt. d(iii) (2000).” ABA/BNA 51:301
v. Obtaining informed consent to conflicts – what to discuss with client (Restatement § 202,
comment c(i))
i. Interests giving rise to the conflict
ii. Contingent, optional, and tactical considerations and alternative courses of action that
would be foreclosed or made less readily available by the conflict
iii. Effect of the representation or the process of obtaining other clients' informed consent
upon confidential information of the client
iv. Any material reservations that a disinterested lawyer might reasonably harbor about the
arrangement if such a lawyer were representing only the client being advised
v. Consequences and effect of a future withdrawal of consent by the client, including, if
relevant, the fact that the lawyer would withdraw from representing all clients.
XVI. Chapter 16 Former Clients and Conflicts of Interest
a. Rules
i. 1.9 Duties to former Clients
a. Lawyer who has formerly represented a client in a matter shall NOT
thereafter represent another person in the same or substantially related
matter in which that person’s interests are materially adverse to eth
interests of the former client UNLESS the former client gives informed
consent, confirmed in writing
b. 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 the client:
i. Whose interests are materially adverse to that person; and
ii. About whom the lawyer had acquired info protected bu the 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 info relating to that representation to the disadvantage
of the former client except as these rules would permit or
require with respect to a client, OR when the info has
become generally known
2. reveal info relating to the representation except as these
rules would permit or require with respect to that client
ii. 1.10 Imputation of conflicts of Interest
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 1.7 or 1.9 UNLESS
1. the prohibition is based upon a personal interest of the
prohibited lawyer and does NOT present a significant risk
of materially limiting the representation of eth client by the
remaining lawyers in the firm; OR
2. the prohibition is based upon 1.9(a) or (b) AND
i. the disqualified atty is timely screened from
any participation and is apportioned no part
of the fee therefrom;
46
 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; a
statement of the firm’s and the screened
lawyer’s compliance w/ these rules; a
statement that review may be available
before a tribunal; and an agreement by eth
fitm to respond promptly to any written
inquiries or objections by the former client
about the screening procedure; AND
iii. Certifications of compliance with these rules
and with the screening procedures are
provided to the former client by the
screened atty and by a partner in the firm, at
reasonable intervals upon the former client’s
written request and upon the termination of
the screening procedures
b. When a atty has terminated an association w/ 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 info protected by
rules1.6 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 1.7.
d. The disqualification of lawyers associated in a firm w/ former or current
govt lawyers is governed by 1.11.
iii. 1.11 Special Conflicts of Interest for Former and Current Govt Officers and Employees
a. Except as law may otherwise expressly permit, a atty who has formerly
served as a public officer or employee of the govt:
1. is subject to 1.9(c); AND
2. shall NOT otherwise represent a client in connection with a
matter in which the atty participated personally and
substantially as a public officer or employee, UNLESS the
appropriate govt agency gives its informed consent,
confirmed in writing to the representation
b. When a lawyer is disqualified under (a), NO lawyer in a firm w/ which that
lawyer is associated may knowingly undertake or continue representation
in such a matter UNLESS:
1. the disqualified atty is timely screened from any
participation in the matter and is apportioned no part of the
fee; AND
2. written notice is promptly given to the appropriate govt
agency to enable it to ascertain compliance w/ the
provisions of this rule

47
 c. Except as law may otherwise expressly permit, lawyer having info that the
lawyer knows is confidential govt info 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
info could be sued to the material disadvantage of that person.
Confidential govt info means info that has been obtained under govt
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 w/
which that lawyer is associated MAY undertake or continue
representation in the matter ONLY IF the disqualified atty is timely
screened from any participation in the matter and is apportioned no part
of the fee.
d. Except as law may otherwise expressly permit, a lawyer currently
serving as a public officer or employee:
1. is subject to 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, UNLESS the
appropriate govt agency gives its informed
consent, confirmed in writing; OR
ii. negotiate for private employment w/ any
person who is involved as a party or as a
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 1.12(b) and
subject to conditions in 1.12(b)
e. “Matter” includes
1. any judicial or other proceeding, application, request for
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 govt agency
iv. 1.12 Former Judge, Arbitrator, Mediator, or Other Third Party Neutral
a. Except as stated in para (d), a lawyer shall NOT represent anyone in
connection w/ a matter in which the lawyer participated personally and
substantially as a judge or other adjudicative officer or law clerk to such a
person or as an arbitrator, mediator or other 3P neutral, UNLESS all
parties give informed consent, confirmed in writing
b. A lawyer shall NOT negotiate for employment w/ any person who is
involved as a party or as a lawyer for a party in a matter which the lawyer
is participating personally or substantially as a judge, or other adjudicative
officer or as an arbitrator, mediator or other 3P neutral. A lawyer serving
as a law clerk to a judge or other adjudicative officer MAY negotiate for
employment with a party or lawyer involved in a matter in which the clerk

48
 is participating personally or substantially, BUT ONLY after the lawyer
has notified the judge, or other adjudicative officer
c. If the lawyer is disqualified by (a), NO lawyer in a firm w/ which that
lawyer is associated may knowingly undertake or continue representation
in the matter UNLESS:
1. the disqualified atty is timely screened from any
participation in the matter and is apportioned no part of the
fee; AND
2. written notice is promptly given to the appropriate tribunal
to enable it to ascertain compliance w/ the provisions of
this rule
d. An arbitrator selected as a partisan of a party in a multimember arbitration
panel is NOT prohibited from subsequently representing that party
v. 6.3 Membership in Legal Services Organization
1. Lawyer MAY serve as a director, officer, member of a legal services org, apart
from the law firm in which he practices, NOTWITHSTANDING that the org serves
persons having interests adverse to a client of the lawyer. The lawyer shall NOT
knowingly participate in a decision or action of the org:
a. If participating in would be incompatible w/ the lawyer’s obligations under
1.7; OR
b. Where the decision or action could have a material adverse affect on the
representation of a client the org whose interests are adverse to a client
of the lawyer
vi. 6.4 Law Reform Activities Affecting Client Interests
1. Lawyer MAY serve as a director, officer, member of an org involved in reform of
the law or its administration NOTWITHSTANDING that the reform may affect the
interests of a client of the lawyer. When the lawyer knows that the interests of a
client may be materially benefited by a decision in which the lawyer participates,
the lawyer shall DISCLOSE that fact but need NOT identify the client.
vii. 6.5 Non-Profit and Court Annexed Limited Legal Services Programs
a. A lawyer who, under auspices of a program sponsored by a non-profit or
court, provides short-term limited leal services to a client without the
expectation by either the lawyer OR the client that the lawyer will provide
continuing representation in the matter:
1. IS subject to 1.7 and 1.9(a) ONLY if the lawyer knows that
the representation of the client involves a conflict of
interest; AND
2. IS subject to 1.10 ONLY if the lawyer knows that another
lawyer associated w/ the lawyer in a law firm is disqualified
by 1.7 or 1.9(a) w/ respect to the matter
b. Except as provided in (a)(2), rule 1.10 is INAPPLICABLE to a
representation governed by this rule
b. Substantial Relationship Test
i. Substantially related if
1. There is a substantial risk that confidential factual info. As would normally have
been obtained in the prior representation would materially advance the client’s
position in the subsequent matter. Cmt. 3 to 1.9
2. Some courts look more broadly than mere confidentiality
a. Concerns about loyalty
ii. Crispens
1. Appeal for motion to disqualify under 1.9(a)
49
 2. Factual reconstruction test
3. Issue- regarding 19(a) presumption is
a. Once matter is substantially related and all other elements of rule have
been disqualified, does result in automatic disqualification?
i. If 1.9(a) solely then irrebuttable presumption that in cases
substantially related, confidential info was revealed
b. Court reverses and remands and says disqualified!
4. Christian previous represented Coastal in cases involving pipeline leaks
5. Later, at another firm signed petition of Crispens suing Coastal w/ allegation of
injury from pipeline leak
6. Coastal tried to disqualify Christian 1.9(a) and his new firm 1.10(b)
7. Trial court held not substantially related and Christian could sue his former client
8. Ct identifies three separate approaches
a. Center on facts of each case
b. Focus on legal issues and they be identical or essentially the same
c. Westinghouse
i. Blend facts and issues in three steps
1. factual reconstruction of scope of prior representation
2. reasonable to infer confidential info would have been given
to the past attorneys
3. whether that past info is relevant o the litigation pending
against the former client
d. 1.9(a) factors
i. involved same client matters in question are relevantly
interconnected or reveal client’s pattern of conduct
ii. Atty interviewed a W key in both cases
iii. Lawyer’s knowledge of former client’s negotiation strategy was
relevant
iv. Common Ws, legal theories, biz practices of client, and location of
client
v. Common subject matter, issues, and causes of action
vi. Info existed on client’s ability to satisfy debts and its possible
defense an negotiation strategies
9. Ct adopts approach that consider the facts surrounding the two representations
10. 1.10(b) has burden to establish atty gained material and confidential during the
course of previous employment
11. Ct says 1.9(a) requires moving party to establish
a. Atty who’s disqualification is sought formerly represented them in a matter
b. Matter substantially related to matter in which atty now seeks to represent
new client
c. New client’s interest is substantially adverse to interest of party seeking
disqualification
c. Most court allow disqualified atty to turn over work product to new atty unless contains
confidential info or other improper advantage is likely
d. Confidential Info and the Former client
i. 2nd requirement of 1.9 is that atty may NOT use or disclose confidential info of a former
client even if there is not technically conflict under substantial relationship test
ii. Creasy
1. Disciplinary Counsel filed 3 count information against Carey and Danis
a. Count I: conflict of interest= yes
b. Count II: Client Confidentiality = no on 4-8.4
50
 c. Count III: false and misleading statements= purposely withheld evidence
4-3.4a, 4-3.4d, made misstatements of material fact 4-3.3a1, 4-8.4c and
4-8.4d
2. Facts- previous worked for firm that represented Chrysler
3. Ct used Crispens factors
4. Ct held
a. Violated professional misconduct by representing another person in a
substantially related matter adverse to the interest of former client in
violation of 4-1.9(a), 4-8.4(a), and making false discovery responses in
violation of 4-3.3(a)(1), 4-8.4(c), (d), 4-3.4(a) and (d). and are indefinitely
suspended w/ leave to apply for reinstatement after 1 year.
5. Atty disciplinary proceedings
a. Review is de novo
b. Preponderance of the evidence
6. Ct looked at various types of discipline
i. Reprimand
1. Merely negligent
a. doesn’t involve dishonest fraud, or deceit by atty
2. fails to take remedial action
3. causes injury
ii. Suspension
a. Indefinite Suspension
b. Suspension for fixed period
2. When knows false statement being submitted to court or
material improperly withheld
3. Takes no remedial action
4. Causing injury
iii. Disbarment
1. Intent to deceive
b. And mitigating and aggravating factors
i. What CDC wanted
ii. previous record of discipline
iii. Peer testimony
iv. Charities
v. Paid judgment $ assessed
e. Class notes
i. 1.9 doesn’t apply to former prosecutor. See 1.11
ii. 1st Step on conflicts analysis- Who is the client
1. Former client? 1.9
2. Current client? 1.7
iii. Person bring motion of disqualification has BOP
1. 1.9(a) only-
a. Individual atty
b. irrebuttable presumption
2. if 1.9(b)-
a. imputation firm rule
b. may be Rebuttable
iv. Waivable conflicts
1. No non-waivable in 1.9 so easier
2. Non waivable in 1.7 so harder
v. MP
51
 1. you can have MP form non-client
a. breaks thru privity rule
vi. 6.3 is a bad compromise to high ideals
1. ensure access
XVII. Chapter 17 Zealous Advocacy- The Juncture of Loyalty and Fairness
a. Rules
i. 3.4 Fairness to Opposing Party and Counsel
1. 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 values. A lawyer shall NOT counsel or assist another to do
any such act
b. Falsify evidence, counsel or assist a W to testify falsely or offer an
inducement to a W 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 pre-trial procedure, make a frivolous discovery request or fail to make a
reasonably diligent effort to comply w/ a legally proper discovery request
by 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 W, or
state a personal opinion as to the justness of a cause, the credibility of a
W, the culpability of a civil litigant or the guilt or innocence of an accused;
OR
f. Request a person other than the client to refrain from voluntarily giving
relevant info 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.
ii. 3.5 Impartiality and Decorum of the Tribunal
1. Lawyer shall NOT
a. Seek to influence a judge, juror, prospective juror or other official by
means prohibited by law;
b. Communicate ex parte w/ such a person during the proceeding UNLESS
authorized to do so by law or court order;
c. Communicate w/ 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.
iii. 4.2 Communications w/ persons represented by counsel
1. See “Chapter 5” page 9 of outline
iv. 4.3 Dealing with unrepresented Person
1. In dealing on behalf of client with a person who is not represented by counsel, a
lawyer shall NOT state or imply that the lawyer is disinterested. When the layer
knows or reasonably should know that the unrepresented person
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 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 w/ the interests of
the client.
v. 4.4 Respect for rights of Third Persons
1. See “Chapter 2” page 1 of outline
b. Class notes
i. Communication rules
1. Ppl w/ counsel
a. if NOT about substance of what they are being represented for, then may
be okay if no solicitation problem
i. 4.2 Communication
ii. 7.1 Solicitation
1. Atty cannot solicit a client
a. Exception for family
2. Client can solicit an Atty
b. 2nd Opinions
i. 4.2 “in representing a client” so not triggered
ii. if NOT representing, then okay, but informal golden rule is to
inform their atty what is up
c. 8.4 if cannot do it yourself, cant do through another
i. USA no exception
ii. 4.3 Duty be gone rule
1. don’t misrepresent your role or disinterest w/ ppl who are unrepresented
iii. Former employees are NOT represented parties
iv. Pigs-Talking to client
1. don’t let talk to client
2. document
3. tell them to stop
v. Pigs- Liar
1. Call them on it
2. Go to court
3. Never speak when you can write
4. Never speak privately when you can speak publicly
vi. Pig- Nasty
1. go formal
2. video deposition
vii. Don’t retaliate or wrestle
1. Respond
a. Don’t threaten—just act
b. If threaten- HAVE to follow through
c. Textbook:
i. Zealousness within the bounds of the law
1. Lawyer isn’t bound to press of every advantage for his client
ii. Communication
1. 4.2 prevents communication where atty knows person is represented
a. Also, may be inferred from eth circumstances
b. Cannot avoid 4.2 by closing eys to the obvious
c. Applies in both litigation and transactional contexts
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 d. Designed to protect overreaching by averse counsel
e. protect a/c relationship from interference by the opponent
f. protect against disclosure of protected info
g. facilitate settlement by channeling through attys
h. ONLY atty may waive the protections of the rule
i. Client may NOT waive
ii. Even if the represented person requests the communication
1. Atty may not respond w/o permission of that person’s atty
i. Rule addresses “matter” but that doesn’t limit the scope of the rule to
litigation or even dispute resolution
i. Even in a biz negotiation, DON’T speak to party in the negotiation
who are represented by counsel w/o permission of their atty
ii. While only covers the “matter” be safe even in social settings
j. What if other party not giving his client your settlement offers
i. NO exception in the rule
ii. Cannot ask client to either b/c 8.4 doing through other prohibited
iii. If client asks, Can I talk to him
1. You may tell client he is unrestricted, but may NOT coach
him
iv. Two exceptions
1. Consent of the atty
2. Court order
k. Sanctions for violating 4.2
i. Disciplinary action
ii. Disqualification from continuing representation
l. Contact with employees of a corporate party
i. If person has power to bind corp. then protected and don’t talk to
ii. If former employee, then can talk to in most juris
iii. Atty communicating w/ corporate employee should avoid inquiring
into matters that may be privileged, but is NOT necessarily
prohibited from communicating at all
iv. USA have no exception to rule Citizen protection Act
1. But fed prosecutors still permitted to direct pre-indictment
undercover communications
2. Unrepresented persons 4.3
a. Can talk, but not imply disinterested
b. Must resolve role misunderstandings
c. Rule also applies to agents of lawyers 8.4(a)
3. Contact w/ judges an jurors, prospective jurors 3.5
a. Incorporates the law of the jurisdiction and makes failure to colply with
that law a violation of the rules
b. Can lead to a contempt charge
iii. Baseless Argument and Abuse of litigation process
1. basic duty of fairness to opponent in litigation
a. act in good faith w/ basis in law an fact in raising issues, arguments,
requests for discovery
b. 3.1 prohibits frivolous actions and defenses
c. 3.2 requires reasonable efforts to expedite litigation consistent with the
interests of the client
d. 3.4(d) prohibits frivolous discovery requests and failure to respond to
discovery requests from opponent
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 2. Atty has immunity for suits for defamation in connection w/ statements made
during reasonably related court proceedings
a. Maybe liable to adversaries
i. for malicious prosecution or use of process
ii. abuse of process
iii. spoliation of evidence
iv. and standards sounding in fraud or misrepresentation
3. 4.4 Cannot harass, annoy or injure, or to cause delay or needless increase in the
cost of litigation
4. Intentional torts have established limited duty to non-clients
a. But negligence causes of action have rarely found bases for liability to
non-clients
d. Duties regarding production of evidence
i. 3.4 fairness to opposing counsel regarding evidence
ii. No duty to cooperate beyond that which law may impose
iii. 3.4(b)
1. prohibits a lawyer from counseling or assisting a W to testify falsely or from
offering an inducement prohibited by law
2. Atty who advises W, whether client to someone else, to testify falsely is subject
to discipline
3. Rule also applies to pmt of a fee to W that is not permitted by controlling law,
such as a contingent fee for Ws
iv. 3.4(f) prohibits requesting person other than client to relative to refrain from giving
relevant info to another party
1. Must comply w/ state an local laws concerning W tampering
v. Fed. Rule of Civil Procedure 26(f) and many state counterparts use a discovery plan
process that is mandatory
1. Attorneys outraged by suggestion they have a duty to disclose unfavorable facts
to one’s opponent (p.9)
vi. If atty learns of evidence only, but doesn’t take possession of it, the atty isn’t required to
advise the govt of its existence.
1. maybe different in civil cases where duty to produce as part of discovery
vii. If criminal case and take possession of evidence, must turn over to prosecutor after a
reasonable time for investigation
1. Prosecutor may not use the source of the info if atty received item from client or
agent of client
a. If from 3P, gov’t. CAN inquire into its source
b.

XVIII. Chapter 18 Advertising and Solicitation

a. MO Rules
i. 7.1
ii. 7.2 (SEE end of Text in binder)
iii. 7.3
b. Rules
i. 7.1
ii. 7.2
iii. 7.3 (SEE Rule Book p.90-97)
iv. 7.4
v. 7.5
c. Class notes
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 i. Bates 1977
1. Commercial speech protected
2. Cannot ban atty ads
3. Values related to advertising
a. image of profession
b. access to justice
i. information
ii. competence
c. honesty/choice
d. Comparisons
i. Fair competition
e. Fear
i. Overbearing
ii. Privacy
ii. Central Hudson Test 1980 Ch. 18 p.4
1. Can ban false or misleading adverting
a. Also ban if true and yet still misleading
2. Can regulate if
a. Whether expression protected by 1st Amen
b. Gov’t has a substantial interest
c. The regulation directly advance that interests
d. Narrowly tailored to address problem
3. States can regulate as long as don’t violate Constitutional guidelines
iii. In re RMJ 1982
1. Have to have proof something is misleading
iv. Mo rules
1. No comparisons unless factually substantiated
v. NY, FL, IA, MO heavily regulate
vi. Flat bans on solicitation are allowed
1. You cannot ask a client to hire you
a. over phone, in person, etc
d. Textbook
i. Ohralik
1. Atty was casually acquainted w/ accident victim and undertook representation
2. Ct held
a. state or bar acting w/ state authority may Constitutionally discipline a
lawyer for soliciting clients in person, for pecuniary gain, under
circumstances likely to pose dangers that the state has a right to prevent
3. Atty approached two young accident victims at a time when they were incapable
of making informed judgments or of assessing or protecting their own interests
4. Overreaching in-person solicitation of professional employments
ii. In re Primus
1. Result different if undertook to express political views and advance civil-liberty
objectives rather than for pecuniary gain.
iii. Targeted Advertisements
1. Zauderer
a. Newspaper ad on IUD claims
b. Charged w/ recommending employment of himself to a non-lawyer who
had not sought his advice and accepting employment from whom he had
given unsolicited advice

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 c. Ct held
i. Atty may not be disciplined for soliciting legal business through
printed advertising containing truthful and non-deceptive info and
advice regarding legal rights of potential clients
iv. Targeted Direct Mail
1. Shapero
a. I-Can a state, consistent w/ 1st and 14th Amen, categorically prohibit
lawyers from soliciting legal biz for pecuniary gain by sending truthful and
non-deceptive letters to potential clients known to face particular legal
problems?
b. F- Atty wanted to send letter to potential clients who have foreclosure
suits against them
c. Targeted Direct mail is distinguishable from in-person solicitation
i. Less risk of undue influence and overreaching
ii. Reader can avert his eyes
iii. Okay if targeted and ‘efficient’ in reaching certain audience
d. Ct held
i. As long as 1st Amen protects the right to solicit legal biz, the state
may claim no substantial interest in restricting truthful an non-
deceptive lawyer solicitations to those least likely to be read by the
recipient. Letter not false or misleading or make false assurances
v. Letters to Accident/disaster victims
1. FL Bar
a. The 30 day waiting period for sending letters withstands scrutiny as state
has interest in protecting from invasive conduct. Its narrow in scope an
duration

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