OUTLINE

Professional Responsibility Spring 2010

Professor Michael Ross
Introduction to Course
A. Ethics, morals, and professionalism. Moral refers to broad question of whether an act is right or wrong. Ethics is also called moral
philosophy, the discipline concerned w/what is morally good and bad, right and wrong.
a. Ethics v. morals. (Legal) ethics are rules-driven: principles of conduct that members of the profession are expected to
observe in the practice of law.
B. Truthfulness
a. Rule 8.4 prohibits dishonesty, fraud, deceit and misrepresentation.
i. Mother Rule according to Ross. General residual description of misconduct:
1. Violate or attempt to violate a rule, or to knowingly assist or induce another person to violate a rule;
2. Commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer
in other respects;
3. Engage in conduct involving dishonesty, fraud deceit or misrepresentation.
4. Engage in conduct that is prejudicial to the administration of justice;
a. E.g., boasting about relationship w/ judge
b. Typically going to be something that violates another rule
5. State or imply an ability to influence improperly a government agency or official;
6. Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct
or other law.
b. Whether a lawyer can lie or mislead someone, withhold information, shade the truth, or sit quietly and watch a client
mislead someone.
C. Lawyers duties to clients versus their duties to the justice system
a. Spectrum:
i. The prime directive of a lawyer: to advance the clients interest w/in the bounds of the law.
1. At one end, a lawyers role is almost exclusively to be the protection and advancement of client interests.
(Common for criminal defense lawyers).
ii. At the other, a lawyers primary responsibility is to protect our system of justice to ensure that proceedings are fair,
that participants play by the rules, and so on. (More common in judges).
iii. Most fall somewhere in between.

b. Lawyers personal and professional interests versus their fiduciary obligations

i. Examples:
1. Tension between duty to protect confidences and a lawyers felt need to share aspects of her working life w/
her friends.
2. Duty to provide services to clients who cannot afford to pay fees, which is in the public interest but may not
be in the lawyers financial self-interest.
c. Self interest as a theme in regulation of lawyers
i. Apparent in the rules that govern lawyers, especially ethics codes.
1. E.g., Rule 1.5(b), in explaining lawyers duty to inform clients about the basis of fees based on time spent,
requires only disclosure of the basis or rate of the fee and expenses. The lack of specificity allows lawyers
ample flexibility in billing.
Institutions and Legal Rules that Affect Lawyers
A. Institutions
a. The highest state courts
i. Self regulation: highest state court, not the legislature, is responsible for adopting the rules of conduct that govern
lawyers.
1. Most of the people involved in the writing of the ethical rules are licensed lawyers.
2. Judges bear primary responsibility for disciplining lawyers who violate rules.
3. Lawyers bear the primary responsibility for seeing that the rules are enforced.
ii. Performs these roles, or delegates them to a government agency:
1. Adopt ethics codes and court procedural rules that govern lawyers.
2. Sets and implements standards for licensing of lawyers, including what educational and moral requirements to
impose; and
3. Supervises agencies that investigate and prosecute complaints of unethical conduct by lawyers; and
4. Supervises administrative judicial bodies that impose sanctions on lawyers who violate the ethics codes.
iii. Why are courts responsible for lawyer regulation?
1. Aspect of their authority to administer the courts. Inherent or explicit (depending on state).
a. In some states the courts maintain their authority is exclusive. (Negative inherent powers doctrine).
iv. The NY Court of Appeals, however, interprets these rules all the time. They are the only body that trumps the rules. If
courts interpret a rule in a way that twists or trumps it, so be it.
1. Congress can trump it, too, thru legislation.

b. State and local bar associations

i. Most are organized as private nonprofit organizations, but some have governmental functions.
1. A state bar that accepts delegated functions from the highest court is an integrated or unified bar, rather than a
voluntary bar.
a. Integrated or unified bar: membership is mandatory
2. Historically, played a large role in establishing disciplinary systems. No longer have jx over these proceedings.
c. Lawyer disciplinary agencies
i. Often called bar counsels offices or disciplinary counsels
ii. Bear responsibility for investigating and prosecuting misconduct that violates ethics code.
iii. Possible sanctions:
1. Disbarment
2. Suspension
3. Public or private reprimand
iv. Run by the highest court, the state bar association or by both
d. Federal and state trial courts
i. Set rules for the conduct of lawyers in litigation by sanctioning lawyers who violate rules and by hearing and deciding
motions to disqualify lawyers who may have conflicts of interest that preclude their representation of particular clients.
1. E.g., FRCP Rule 11 sanctions govern frivolous conduct by lawyers
ii. Judge in a proceeding must report the misconduct to the disciplinary agency if the misconduct violates an ethical rule
that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other respects.
iii. Separate admission to practice? Yes, but normally just requires and application and fee.
B. The Law Governing Lawyers
a. State ethics codes
i. Rules governing the ethical conduct of lawyers. Usually become law by adoption by the states highest courts and are
often based on the ABA Model Rules.
ii. Ross: Disciplinary rules are NOT organic. They never trump each other. Unless rule itself states an exception or refers to
another rule, it is absolute.
b. Legal malpractice, breach of contract, and breach of fiduciary duty
i. Malpractice: case law imposing civil liability on lawyers for misconduct; based on contract law, tort law and fiduciary
law.

Bar Admission and Discipline

A. Admission to Practice
a. Requirements for admission
i. Modern requirements:
1. Graduation from an accredited undergraduate college
2. Graduation from a law school that meets the states educational standards (usually means ABA accredited)
3. Submission of an application for admission to the bar
4. Obtaining a passing score on the bar exam administered by the state: state-specific section, Multistate Bar Exam
and the MPRE
5. A finding that the applicant is of good moral character and is fit for the practice of law
ii. Once admitted, must comply with various requirements to maintain admission
iii. If lawyer seeks admission to litigate only one case, may be admitted pro hac vice by association w/ an admitted lawyer.
b. The character and fitness inquiry
i. Criteria for evaluation
1. Application.
2. Character Questionnaire. Must be scrupulously honest and must be consistent with your law school application.
a. Rule 8.1: bar admission matters. 8.1(b): shall not knowingly fail to disclose a fact, if asked. This rule
does not require disclosure of info listed in Rule 1.6.
i. If youre applying for the bar, you cannot lie.
ii. A lawyer, also, is required to tell the truth about another lawyer (as in a recommendation)
B. Professional Discipline
a. The history and process of lawyer discipline
i. Recently, the disciplinary systems have become professionalized. States have adopted procedural rules for
adjudication of lawyer discipline cases. Most are based on the Model Rules for Lawyer Disciplinary Enforcement.
ii. Process:
1. Complaint by client, lawyer or judge
2. Intake lawyers look at complaint to see if cause of action exists (more than 50% of complaints dont state one)
a. Absolute immunity provided to complainant, even if it can be shown that they acted maliciously and w/
intent to harm. Want to encourage people to make complaints.
3. If valid c/a, then bar counsel investigates complaint
a. Unless reported to the committee by a judge. Under the doctrine of collateral estoppel, you have
already had an opportunity to explain yourself fully and you dont get to re-litigate the issue.

4. If investigation warrants, charges are filed

5. Hearing committee conducts hearing, makes factual findings, recommends sanction.
a. Complaint is not dismissed but you are privately sanctioned
i. This is not considered discipline. Dont have to report to malpractice carrier. E.g., Letter of
Caution or Letter of Education
b. Private discipline: Admonition or Reprimand.
i. This IS discipline. Must report to carrier.
c. Public discipline: Public Censure
i. Published in local newspaper (by law)
d. Suspension or disbarment
i. NY suspends up to 7 yrs, most go up to 5
ii. Must re-apply for admission, take exam, etc
6. Hearing committee decision reviewed by judicial agency and/or by highest state court. Reviewing body makes
final decision on sanction.
a. Once a guilty verdict, the only appeal to states high court is on constitutional ground.
b. Grounds for discipline
i. Can be disciplined for violation of the applicable ethics code whether or not the violation occurs in the course of law
practice. E.g., Clinton for false testimony.
ii. Committing a crime
iii. For inducing or assisting another person to do something that violates the rules if done by a lawyer.
iv. Violations that occur outside the state she is licensed to practice
C. Reporting Misconduct by Other Lawyers
a. Self-Regulating Profession
i. Cornerstone of disciplinary system is the duty of lawyers to report serious misconduct by other lawyers.
ii. Rule 8.3 Reporting Professional Misconduct
1. A lawyer who knows that another lawyer committed violation of rules that raises substantial question as to
laywers honesty, etc., then inform the appropriate professional authority.
a. Objective standard of knowledge: whether a reasonable lawyer in the circumstances would have a firm
opinion that the conduct in question more likely than not occurred.
i. Knows: terminology rule 1.0F: guessing is not enough, speculation is not enough; must have
actual knowledge of the fact in question; knowledge can be inferred from the facts of the
circumstances.

iii.
iv.

v.

vi.
vii.

2. Exceptions:
a. Not all violations only those raising a substantial question of the lawyers honesty, trustworthiness and
fitness. (Substantial denotes a matter that has clear and weighty importance)
b. Have to report judges, too, by same knowledge standard.
c. Dont need to report if it would reveal information required to be kept in confidence under Rule 1.6. A
lawyer should encourage a client to waive confidentiality and permit reporting if that would not
substantially prejudice the client.
i. If during an adversary proceeding, may defer reporting until proceeding has concluded, if
deferral is necessary to protect a clients interests.
3. Failure to report results in discipline (though not common).
8.3(b): lawyer who knows a judge has done the same must report.
8.3(c): for my exam, the class, and the real world, you have to understand this, says prof. Exceptions:
1. Information protected by the confidentiality rules, and
2. Information learned in the course of service on a lawyers assistance program.
The Rat Rule. Himmel didnt report another lawyer for misconduct in order to ensure his client received the $ owed him
by the other lawyer. Himmel was sanctioned even though he was advancing his clients interest.
1. POLICY: to help break down the conspiracy of silence within the legal profession that arguably harbors
wrongdoers.
2. But if theres rivalries between firms, within firms, you have the slippery slope Gulag-esque problem.
Bottom line: duty to report other lawyers when they do something, but duty carries a very high threshold b/c must have
actual knowledge and it must raise a substantial question as to lawyers honesty, trustworthiness and fitness
Lawyers Responsibility for Ethical Misconduct by Colleagues and Superiors
1. Rule 5.1: responsibility of a partner or supervising lawyer for ensuring compliance w/ the ethical rules by
subordinate lawyers, and explains when a senior lawyer may be subject to discipline for the conduct of a
subordinate lawyer.
a. 5.1(a) Must set up systems to prevent ethical problems; including procedures to check for conflicts of
interest, to manage client funds, provide continuing education in legal ethics.
i. Applies only to partners and other managers in a law firm, but Rule 1.0 defines law firm to
include legal services organizations, legal departments of corporations, government agencies,
and other organizations.

b. 5.1(b) If a subordinate lawyer commits an ethical violation supervisor is not responsible if he did not
direct or know about it. But the violation could reveal a breach of his duty to make reasonable efforts to
prevent violations.
c. 5.1(c) Shall be responsible for the violation of rules of a partner, associate or subordinate if:
i. 5.1(c)(1) He orders or w/ knowledge of the specific conduct ratifies the conduct
ii. 5.1(c)(2) He is a partner or has comparable managerial authority in the firm, or has direct
supervisory authority, knows of the improper conduct and fails to take action to reduce or
prevent the harm.
2. RESPONSIBILITIES OF A SUBORDINATE LAWYER: Rule 5.2: when a subordinate lawyer is responsible for her own
conduct, and under what circumstances she may follow orders w/o fear of discipline.
a. 5.2(a) A lawyer is bound by the rules notwithstanding that the lawyer acted at the direction of another
person (I was just following orders doesnt cut it)
i. However, may be able to prove that she did not actually know that the action was improper.
ii. Comment 1: although a lawyer is not relieved of responsibility for a violation by the fact that the
lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a
lawyer had the knowledge reqd to render conduct a violation of the Rules.
b. 5.2(b) Not a violation if the supervisor reasonably thinks the conduct is proper, even if subordinate
believes otherwise.
i. The anti-Nuremburg rule: there must be some leeway given to underlings; if youre not sure if an
order is wrong, if it sounds wrong to you, then youre off the hook. If its absolutely not clear if
something you see a superior doing that you think might be wrong is in fact wrong, you dont
have to report it.
ii. If you disagree w/something happening in a firm, if you listen to person who is superior to you,
and theres a reasonable resolution of an arguable question, then youre given complete
protection.
1. But make a memo for yourself.
3. Rule 5.3: explains responsibilities of lawyers who supervise nonlawyer employees for ensuring that the
employees comply with the rules of professional conduct, and explains when a lawyer may be subject to
discipline based on the conduct of a nonlawyer employee.
a. Basically same language as 5.1.
b. Make sure nonlawyers follow the rules. They are the lawyers agents and the lawyer is responsible for
their behavior.

c. 5.3(c)(1): involves ratifying the conduct of someone else

viii. Legal protection available to subordinate lawyers who refuse to commit misconduct or who complaint of the
misconduct of others,
1. Initiated after the Wieder case in NY. Many states allow lawyers to sue for wrongful discharge if fired after
whistle-blowing. (Though some offer no such relief). Remember the dude who ran the Ponzi scheme.
ix. Malpractice claims: top ten:
1. Ignore conflicts of interest; 2. Sue former client for unpaid fee; 3. Accept any client and any matter that comes
along; 4. do business with your client; 5. Practice outside your area of expertise; 6. Go overboard in opening
branch offices and making lateral hires; 7. Leave partner peer review to the other firms; 8. Ignore a potential
claim and represent yourself in a professional liability dispute; 9. Settle a matter without written authorization
from your client; 10. Fail to communicate with your client.
CONFIDENTIALITY
A. The basic principle of confidentiality
Duty is express in the ethical rules, in the law of agency (requiring all agents to keep the confidences of their principals), and the
law of evidence (protecting lawyers and clients from being compelled to testify about confidential communications).
1. Protection of information relating to the representation of a client: KEEP YOUR MOUTH SHUT.
i. Rule 1.6(a) Confidentiality of information. A lawyer shall not reveal information relating to the representation of a
client (very broad) unless client gives informed consent, or the disclosure is impliedly authorized in order to carry out
the representation, OR the disclosure is permitted by 1.6(b).
1. Informed consent: client must know what is to be revealed and the ramifications of the disclosure.
2. Impliedly authorized: custom and practice, can disclose lots of information w/o explicit permission.
Depends on the kind of case, how embarrassing to client, etc.
3. Under common law, public information can be disclosed.
4. Information: means anything, docs or oral info.
5. What is informed consent? Denotes the agreement by a person to a proposed course of conduct after
the lawyer has communicated adequate information and explanation about the material risks of and
reasonably available alternatives to the proposed course of conduct.
- Means you advise client of disadvantages of a particular course of action and advise them of your
options. And you get their permission.
- It has nothing to do with privilege. It has to do with: keep your mouth shut.
6. the disclosure is impliedly authorized in order to carry out the representation:

The law recognizes that within the atty-client relationship you are an agent, but you are an agent
with power.
- In order for an agent to do the job, like a plumber fixing the bathroom, you have to have a degree of
latitude. Lawyers have an accepted scope of authority.
What information is confidential?
- All info relating to the matter on which the lawyer is representing the client, except that which is
generally known
- Personal information relating to the client that the client would not want disclosed
- Information learned from the client, and information learned from interviews, documents,
photographs, observation, etc.
- Information acquired before the representation begins (such as during a preliminary consultation)
and after representation has ended
- Notes or memoranda that the lawyer creates relating to the matter
7. POLICY: to facilitate open communication between lawyers and clients.
8. CONSULTATION: some clients dont want anyone to know that theyve consulted w/a lawyer, either.
Example: a client is considering a divorce, but hasnt decided what to do. Revelation of the fact that the
client has consulted w/a lawyer could be personally or financially disastrous for the client
B. Exceptions to the duty to protect confidences
1. Rule 1.6(b), these are permissive, NOT mandatory. A lawyer may reveal information relating to the representation of a
client to the extent the lawyer reasonably believes necessary:
i. Reasonable belief: when used in reference to a lawyer, denotes that a lawyer believes the matter in question and
that the circumstances are such that the belief is reasonable. Reasonable: reasonable prudence and competence.
ii. The risk of future injury or death
1. 1.6(b)(1)To prevent reasonably certain death or substantial bodily harm
- If it will be suffered imminently or if there is present and substantial threat that a person will suffer
harm at a later date if fails to take action necessary to eliminate the threat.
- POLICY: overriding value of life and physical integrity
- Some states impose a duty on lawyers to reveal.
- Some states follow the Model Code, allowing lawyer to reveal intention of client to commit a crime
and the info necessary to prevent the crimes
- Some states, lawyer has broad discretion in the face of future criminal act by a client
iii. Client frauds and crimes that cause financial harm
-

1. 1.6(b)(2)To prevent the client from committing a crime or fraud that is reasonably certain to result in
substantial injury to the financial interests or property of another and in furtherance of which the client has
used or is using the lawyers services (very narrow); [future crimes]
2. 1.6(b)(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 clients commission of a crime or fraud in
furtherance of which the client has used the lawyers servicesalready committed the fraud or going to
commit it using lawyers services. [past crimes]
iv. 1.6(b)(4)Revealing confidences to secure legal advice about lawyers compliance with these rules
v. 1.6(b)(5)Using a clients confidential information to protect the lawyers interests
1. To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client,
to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the
client was involved, or to respond to allegations in any proceeding concerning the lawyers representation of
the clientbetween attorney and client, only to the extent necessary to defend yourself or to collect money
2. Lawyer may reveal confidences even if the allegation is made by an injured third party rather than by a
client, and even if the lawyer is not the primary target of the allegation
3. If lawyer is about to be sued for malpractice, doesnt have to wait until lawsuit is filed to reveal info to
defend himself
4. Generally, should be no greater than the lawyer reasonably believes necessary to accomplish the purpose.
5. This provision is essentially entrepreneurial. This rule is different in NY. In NY, you can reveal info in any
controversy. Doesnt say claim; says controversy. If client, then, leaks something bad about you to NY
Post, usually before you reveal, there has to be a claim against you, but in NY you can reveal when theres a
controversy.
6. Also, if youre accused of misconduct by a controversy (i.e. SEC), even if client is not involved, you can
defend
vi. 1.6(b)(6)To comply with other law or a court order
1. Not allowed to give the info until it is ordered.
2. Under rule 1.6(b)(6) we incorporate by reference rules of evidence and all other law of U.S. May reveal to
comply with other law or court order
- Not discretionary! If theres another law, you probably gotta do it. If its a court order, you gotta do
it.
3. EXAMPLE: If court were to say to a lawyer, you are required to reveal fees. Fee-related info in US: is it
privileged?

10

Everything that is confidential is not privileged. Information relating to fees in US: not privileged.
Privileged info: unique sliver of info in the universe.
i. Must be info communicated to or from client to lawyer,
ii. No 3d parties present,
iii. Info must relate to the representation in the context of giving advice.
- Under 1.6(b)(6) if asked under deposition to grand jury or judge, required to reveal the info unless
theres a good exception. Also, gotta talk if its a court order or federal law.
i. Cant volunteer info about being paid money, but if asked in context of formal legal process,
must answer question b/c its otherwise required by law 1.6(b)(6).
Under Comment 4 of Rule 1.6, lawyer may talk hypothetically about a case so long as identity of client is protected.
Rule 1.8(b): conflict of interest: lawyer shall not use info relating to representation of a client to the disadvantage of
the client unless client gives informed consent, except as permitted or required by these Rules.
Sarbanes-Oxley Act
1. Aftermath of Enron. Tough new disclosure rules for lawyers:
2. SEC: lawyers who practice before it or advise companies regulated by it are required to report any
information about securities fraud to the highest officials of the corporation.
Other Rules relating to client fraud:
1. Prof says: he talked about confidentiality re: keep yer mouth shut; talked about it in context of 1.6 and
4.1(b) which he thinks should be part of 1.6. he wants us to take down the following rule numbers
2. Rule 1;
3. Rule 3.3 (has provisions where you have to rat out a client or witness);
4. Rule 3.4 (relating to situations where clients go into misconduct and you are obligated to reveal the info);
5. Ruel 1.16: situ when you withdraw form a case where you may be required to reveal info;
6. Rule 8.4: which defines misconduct: there maybe situs where you are reqd to reveal info.
7. Rule 4.1(b): bars lawyers from knowingly failing to disclose a non-confidential material fact when disclosure
is necessary to avoid assisting a clients fraudulent act.
REESES LEASES AND THE IMPACT OF RULE 4.1
1. Lawyer is helping them commit fraud b/c he was certifying the validity of the paper to the bank.
2. Under Rule 1.6(b)(3) he may disclose.
3. But under Rule 4.1, shall not knowingly fail to disclose a material fact to a third person when disclosure is
necessary to avoid assisting a criminal or fraudulent act by a client, unless prohibited by Rule 1.6.
-

vii.
viii.
ix.

x.

xi.

11

4. Rule 1.6 now permits revelation of confidential info to prevent, mitigate, or remedy some criminal and
fraudulent client conduct. This means that in any situation in which a lawyers failure to reveal would
constitute assisting a criminal or fraudulent act, Rule 4.1 now requires a lawyer to reveal this information.
(Prof translation: you must reveal info when its necessary to avoid a client committing a criminal or
fraudulent act so long as rule 1.6 doesnt prohibit it.)
xii. Noisy withdrawal: disaffirming documentspermitted but not required to send a letter to other person in
transaction saying you disaffirm that piece of information.
xiii. Lawyer cannot reveal info about a clients crime or fraud if the lawyer had nothing to do with it.
1. Rule 1.6 does not allow a lawyer who has not assisted a clients financial crime or fraud to make a disclosure
to protect another person from injury.
2. If client has not used and is not using the lawyers services to commit a fraud, the lawyer may not warn the
intended victim of the fraud.
Ross analyzes the rules of confidentiality
Must be a client
No 3rd party present unless 3rd person is a surrogate, P.I., translator, etc.
Information must relate to the giving of legal advice Must relate in a meaningful way. Also, must be a communication. Not a
visual (client coming to office is a visual).
Payment of money from client to attorney is not privileged b/c is a business transaction.
Must comply IF not privileged.
If a court orders to provide information contrary to privilege, you can stay the contempt to take to appellate court. MUST take it
to at least one level of appeal.
C. If lawyer fails to protect confidencesSubject to professional discipline; Liable in tort or contract for negligent or intentional breach
of duty;Disqualified from representation of one or more clients; Enjoined by a court from further revelation
D. Is the fact of representation confidential?
1. Maybe. If a lawyer reveals that she is representing a client, she must then avoid disclosing confidential information about
that clients matter.
2. Some clients do not want anyone to know that they have consulted an attorney. In such a case, the fact of consultation or
representation is confidential.
Attorney-Client Privilege and the Work Product Doctrine
A. Confidentiality and attorney-client privilege, compared

12

a. Privilege is common evidence law, which governs what kinds of evidence can be admitted in court. Instead of being
imposed by ethical rules like confidentiality.
i. Ethics v. privilege: ethics, 1.6. covers the whole world, privilege covers admissibility and client-lawyer
communication and what you might have to say in court.
b. Offer different, but overlapping, protection to lawyer-client communications. Privileged information is a subset of
information protected by confidentiality.
i. Unlike confidentiality, which is very broad, this privilege covers only the communications between lawyer and
client in which the client is seeking legal advice or other legal services.
c. POLICY FOR BOTH: both confidentiality and privilege based on the idea that a legal system in which advocates speak for
clients will work best if clients feel free to speak openly w/their attys.
Differences between confidentiality and privilege
Ethical duty to protect confidences

Atty-client privilege

SOURCE

Ethical duty, Rule 1.6

Common law evidence rule

SCOPE

Information relating to the representation of a

client (obtained from any source)

Narrower scope; confidential communication

between a lawyer and a client for the purpose of
obtaining legal advice

METHOD OF
ENFORCEMENT

Professional discipline

Quash subpoena or otherwise exclude the revelation

from evidence

When atty-client privilege is invoked

Occasions when atty-client privilege might be claimed
Type of case
Privilege might be invoked as to arguably privileged material if:
Criminal cases

A lawyer or client is subpoenaed to testify before a grand jury

A lawyer is subpoenaed to testify before a trial jury
A client is cross examined during a trial
A cleints documents are seized from his lawyer pursuant to a search warrant

13

Civil cases and

administrative adjudications
Legislative and
administrative investigations
A reporting statute appears
to compel a lawyer to
disclose information even
without an official request

Discovery is sought from a lawyer or a client through depositions, interrogatories, or a request

for production of documents
A lawyer is called to testify before a judge or jury at trial
A lawyer or client is subpoeanaed to testify before a legislative committee or an administrative
agency
A lawyer seeks to avoid disclosure by preemptive proceeding (e.g. declaratory judgment or
injunction) or invokes the privilege to defend against penalties for not having made disclosures

B. Elements of attorney-client privilege

a. Communication
i. Includes face-to-face, telephone, memo, letter, fax, email, IM, etc.
1. However, only protects against disclosure of the communication itself, not of the underlying facts that might
have been communicated.
ii. Includes communications with a prospective client or lawyer.
b. Privileged persons
i. Communications with agents of lawyers (secretaries, paralegals, investigators) are privileged as well.
ii. Interpreters, psychologists, parents, guardians, etc. can be present.
1. Though the lawyer should clarify the role of any 3rd person present so as to avoid waiving the privilege.
2. Waiver: disclosure to a third person of the contents of privileged communication waives the privilege.
c. Communication in confidence
i. Client must reasonably believe that the communication is confidential.
C. Client identity : protected?
a. Generally, no, but a 9th cirucit last link doctrine says that you can choose not to reveal clients ID if to reveal it would
inculpate them in a particular crime.
b. SCOTUS, also: if your services are used to commit a crime, whether you know they were or not, there is no privilege: crimefraud
D. Privilege for corporations
a. Who do you represent? The best interest of the entity.
i. Corporation/organization itself, and not its constituents.

14

1. Sometimes, the lawyer has obligations toward other individuals or organizations affiliated w/ a client org,
especially if financial consequences toward the other person or org will impact the client org.
b. When I communicate with the entity (E.g. BLS), who am I talking with?
i. Control group test: limits the privilege to communications from persons in the organization who have authority to
mold organizational policy or to take action in accordance with the lawyers advice
ii. Whats the other test? PUT IT HERE.
c. Atty client privilege and confidentiality.
i. Example: BLS learns that an unknown member of deans staff is changing grades.
1. Lawyer is hired. Whos his client?
a. The law school. But who under the ethics rule is my client?
ii. Upjohn
1. A lawyer representing an incorporeal entity (we understand them through their people):
a. We have to have the following arrangement: if I represent BLS, I have to talk to the employees, and
that talk, w/a corporate employee, officer, middle manager, it should be privileged
b. Who own the privilege? Upjohn court says the corporation owns the privilege. w/o it, lawyers
couldnt have a confidential relationship with the firm.
c. So long as when the lawyer speaks to a corporate employee and there are no third parties around
iii. Rule 1.13, Comment 2: when one of the constituents of an organizational client communicates with the
organizations lawyer in that persons organizational capacity, the communication is protected by 1.6. )
d. Responding to unlawful conduct by corporate officers and other employees
i. Proceed as is reasonably necessary, even if its to report to higher authority or public officials (if its still in the best
interest of the org)
E. Crime-fraud exception
a. Prof: a destroyer of privilege
b. No privilege if a client seeks assistance w/ a crime or fraud
i. Doesnt matter whether client knows the act is wrongful when he consults the lawyer. Nor does it matter whether
the client has concealed the illegality to the lawyer.
ii. What is allowed
1. Though can offer advice about whether a certain act is permitted under the law AND
2. Advice about a past act that was criminal or fraudulent.
c. Procedure for challenging the privilege on basis of exception: opposing lawyer must request docs based on guesses about
what they might contain.

15

F. Death of the Client

a. Traditionally, the atty-client privilege lives on after the clients death. But what if client dies and lawyer believes she has
good reason to seek a waiver?
i. SCOTUS says it makes no difference (V. Foster case)
ii. Testamentary exception: furthers clients intent.
G. Waiver
a. Express: by client or by lawyer if authorized by the client.
b. By inaction: must claim the privilege before client answers or it is considered waived and is irreversible.
c. By revealing privileged communication to a non-privileged person
d. By putting privileged communication into issue; e.g., suing your lawyer.
e. Waiver as to conversation by disclosure of part of it
f. Compliance with court order: this does not wiave the issue for purposes of appeal or of other litigation.
g. A consideration from prof:
i. If in discovery a lawyer inadvertently turned over a doc, say, in document production, turned over to adversary, in
certain circumstances you can claw back the document.
ii. But if a lawyer willfully hands it over, its over.
H. Work product doctrine
a. Protects the notes and other material a lawyer prepares in anticipation of litigation from discovery in pretrial civil
proceedings.
b. Not absolute: judge order disclosure if opposing party shows substantial need and inability without undue hardship to
obtain the substantial equivalent by other means.
i. Gives stronger protection to product that reveals the lawyers thoughts, strategies, or mental impressions than to
ordinary product.
ii. Work product privilege.
c. If lawyer working on case in office on Westlaw, pull up a case on Westlaw, is it covered under 1.6? yes. Why? b/c the rule is
keep your mouth shut. Is it atty-client privileged? No. not a communication between atty and client. So its protected
under 1.6. doesnt get a lot of protection.
i. W.p. privilege is work you do in legal preparation, info you learn during the course of the representation.
1. Does it have absolute protection?
a. No. its sometimes protected by disclosure.
b. In order to require it, you need som requirement of need.
I. Joint Interest Doctrine also Joint Defense

16

a. Can execute a written joint interest agreement, can agree to expand privilege so other clients can talk to other lawyers
b. Joint interest privilege: basically: two clients in like matter, each have their own lawyer, they all get together. Privileged?
Yes.
i. Two lawyers in a room, each w/different clients. But theyre working on the same case. Clients arent there. Is the
convo privileged? Yes, if they agree to joint interest privilege.
J. Investigator is a surrogate for lawyer (3d party); accountant can be, too
K. If you go into office and secretary is there that doesnt destroy the privilege (It will be on his exam)
L. 3d parties: Media consultants:
a. If Toyota hires a media consul and pres of Toyota is speaking to media consultant about favorable press if Toyota is under
the gun,
i. Not privileged.
ii. But if lawyers for Toyota call media consultants and ask for good publicity b/c theres a prob hes not a client, hes
a third party what happens?:
1. Waiver: understand for his exam that most courts recogninze that such a hiring is considered privileged if it
relates to a problem
a. Doesnt create a privilege if lawyer just talking to media consultant about how Toyota needs to buy
more cars
b. There always has to be a legal strategy purpose for conversation, purpse cant just be to make $$$
Relationships Between Lawyers and Clients
Aim to protect people who believe that you are their lawyer. So long as they reasonably believe that you are their lawyer, you are
treated as such.
A. Formation of the lawyer-client relationship
a. Rule 1.1 Competence. A lawyer shall provide competent representation to a client. Competent representation requires the
legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
i. Comment 2: dont necessarily need to have special skill or training. Be aware of this comment: it sets the table for
what is required for showing of competence. Most fundamental skill: determining what kind of legal problems a
situation may involve, which transcends specialized expertise.
ii. (You gotta be pretty miserable at your job to not be competent.)
b. Choosing clients
i. Lawyer may be precluded from taking work b/c of a conflict of interest, a lack of expertise, or another problem.

17

ii. No experience: If the lawyer compensates for inexperience through study or affiliation w/ another lawyer. Ethics
codes require lawyers to provide competent representation.
iii. In general, lawyers are allowed to be picky in taking on clients. There are three (3) caveats:
1. Lawyers duty to provide legal assistance to people who are unable to pay for it. Aspire to provide 50
hrs/year of pro bono representation.
2. A court may assign a lawyer to represent an indigent criminal defendant, even if the court does not have the
resources to pay the lawyer for the work.
3. Lawyer may not discriminate on the basis of race, religion, nationality, sex, age, disability, or another
protected category in her decisions about which clients to represent
c. Offering advice as the basis for a lawyer-client relationship
i. Principle: when dealing w/a layperson, you have to make it clear that a) I am your lawyer, or b) I am not your lawyer
ii. A person seeks legal advice/services from a lawyer, and lawyer gives these, the person may thereby become a
client. If reasonable layperson thinks youre her lawyer, then you could be on the hook.
d. Practical Considerations
i. Treat consultations as privileged in preparation of representation.
ii. A declination letter: I am not your lawyer and advise you to seek other counsel or advice.
iii. Even if not retained, what client says is confidential and can disqualify a lawyer for conflict of interest in later cases.
B. Lawyers responsibilities as agents: Agency principles from book: he wont use agency terminology on exam; at the end of the day,
the message on Agency he cares about is:
a. Rule 1.2: Scope Of Representation And Allocation Of Authority Between Client And Lawyer
i. (a)Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of
representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be
pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the
representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer
shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive
jury trial and whether the client will testify.
ii. I GOT A CHART ON THE REST OF THIS COMING UP.
b. Competence in criminal trials
i. 6th Amendment issues: guaranteed effective assistance of counsel.
ii. High threshold: must show (1) counsels performance was deficient and (2) deficient performance prejudiced the
defense, i.e. that better representation would have made a difference.
c. Candor and communication

18

i. Rule 1.4: what you have to tell the client.

Rule Language

Author Explanation

a) A lawyer shall:
1. Promptly inform the client of any decision or
circumstance w/r/t which the clients informed
consent, as defined in 1.0(e), is required by these
rules

2. Reasonably consult with the client about the

means by which the clients objectives are to be
accomplished;

3. Keep the client reasonably informed about the

status of the matter;

4. Promptly comply with reasonable requests for

information; and

5. Consult with the client about any relevant

19

1. informed consent: to settle, go to trial, waive a

conflict, take a plea, decision to testify. These are the
only times a lawyer has to promptly tell a client info.
Duty is relegated to the most important aspects of the
case.
a. So: if you move for sum judg, and case is
dismissed, at least under the rule, you dont
have to give them prompt notification. A key
witness dies. Do you have to promptly notify?
No.
Rule 1.2 gives the lawyer some discretion about the
means to be used to carry out the representation (as
opposed to the objectives, which clients are entitled
to decide).
Courts ONLY invoke this if you dont take clients calls
and dont talk to client

Status includes significant developments affecting the

timing or substance of the representation
Example: if the courts schedule delays the resolution of
a case for six months, the lawyer should inform the
client.
If the laywer cannot respond promptly, he should
explain when a response may be expected.
Client telephone calls should be promptly returned or
acknowledged
You have to respond to reasonable requests for info
Example: if client asks lawyer to claim a tax deduction that the

limitation on the lawyers conduct when the

lawyer knows that the client expects assistance
not permitted by the Rules of Professional
Conduct or other law.
b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed
decisions regarding the representation.

client is not entitled to claim, the lawyer should explain that he

cant do that.

The lawyer should give the client enough info to participate

intelligently in decisions about objectives and means. But a
lawyer ordinarily will not be expected to describe trial or
negotiation strategy in detail. (Client decisions: plead, settle,
testify, go to trial.)

d. Diligence
i. Rule 1.3: a lawyer shall act with reasonable diligence and promptness in representing a client.
1. Has the lawyer neglected client matters; i.e. did they fail to return phone calls or file court papers on time?
2. Comment 1: lawyer should pursue a matter for a client despite opposition or personal inconvenience and
take whatever measures are required to vindicate a clients cause; act with zeal in advocacy on clients
behalf
a. But we dont want lawyers to do scorched earth tactics
i. So, comment stresses lawyer is not bound to press for every advantage that might be
realized
ii. Rule 8.4: lawyer may not engage in dishonesty, fraud, misrepresentation, deceit.
1. Rule 2.1: In representing a client, a lawyer shall exercise independent professional judgment and render
candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as
moral, economic, social and political factors, that may be relevant to the clients situation.
a. Comment to the rule dealing with candor: deceit and misrepresentation not permitted. However
there is a sense that in negotiation , certain statements not construed as factual.
2. Where do we draw the line?
a. Puffery: in the context of negotiation, rules of candor do not apply. Its understood that in the
context of negotiation statements made are not factual.
i. But you cant lie to a judge about this stuff. Youll be guilty of misconduct. Or lie to an
arbitrator.
b. You cannot lie about coverage.

20

c. Also, if your witness has died, you cant lie about that.
i. The preceding two are statements of fact.
d. You cannot make an affirmative misrepresentation.
i. A half truth is no truth at all.
ii. You cant go in on the day the trial begins and they say are you ready to proceed and your
client has died, you cant say yeah, Ill proceed.
3. Rule 1.4(a)(3): Keep the client reasonably informed about the status of the matter this includes a big
mistake youve made
a. Comment 7: may not withhold to serve own interest or convenience
iii. Can a lawyer lie EVER for a good purpose?
1. Three exceptions:
a. A lawyer conducting an undercover sting operation, based upon a line of authority that began in NJ
and NY, its OK for a lawyer to direct an undercover civilian (i.e. ex-cop) to lie in order to uncover
intellectual property fraud.
b. Discrimination testers: white and black person sent to apartment to see if discrimination exists in
renting. You can send undercover operators to housing complexes to see who is discriminating. The
testers are lying and the lie was created by the lawyer.
c. Law enforcement exception: undercover operations. They, by necessity, require people to lie. In
copyright matters: fake Gucci bags in Chinatown.
iv. Rule 1.2(c): allows a lawyer to limit the scope of the representation if the limitation is reasonable under the
circumstances and the client gives informed consent.
1. EXAMPLE: a lawyer might agree to attempt to negotiate a settlement but not to file a lawsuit.
2. HOWEVER: lawyer cant enter into agreement to waive the duty of competent representation.
a. BUT: if a client asks a lawyer to perform a limited service, the lawyer would not be found
incompetent for having failed to do work that he was not asked to do.
3. Unbundling: EXAMPLE: client comes to you in matrimonial case. You rep em. They talk to you about an
issue that has tax implications and how property might be split has tax issues. Used to be if you were hired
for matrimony, you knew tax, etc., all sorts of law.
4. Now: NY rule: you must specify the matter youre repping the client for. And the lawyer is only required to
rep the person in that issue.
a. If I should have spotted an issue outside my specific issue, not a problem.
b. If I could have, not a problem.

21

c. Lawyers are permitted to narrow the scope of what they do.

C. Who calls the shots?
a. The competent adult client
i. Rule 1.2
Rule 1.2: Scope of Representation and Allocation of authority Between Client and Lawyer
Rule Language
a) Subject to paragraphs c) and d), a lawyer
shall abide by a clients decisions concerning
the objectives of representation and, as
required by the Rule 1.4, shall consult with
the client as to the means by which they are to
be pursued. A lawyer may take such action on
behalf of the client as is impliedly authorized
to carry out the representation. A lawyer shall
abide by a clients decision whether to settle a
matter. In a criminal case, the lawyer shall
abide by the clients decision, after
consultation with the lawyer, as to a plea to be
entered, whether to waive jury trial and
whether the client will testify.

b)A lawyers representation of a client,

including representation by appointment, does
not constitute an endorsement of the clients
political, economic, social or moral views or
activities.

Authors explanation

Client decides objectives of representation;

Lawyer must consult client as to means use to pursue objectives.
Civil case: client decides whether to settle.
Criminal: To plead guilty,To waive jury trial,To testify.
Shall consult: you dont have to follow what they say. consult
Jones v. Barnes, client says its his life and he wants these points on
appeal. The fundamental question is, who calls the shots on an
argument for appeal? Court holds that it is the attorneys call.
1. HYPO: Youre an appellate lawyer, client says, I want to see the
brief before it goes out.
a. Do I have to follow this instruction? No.
b. THE CASE: the court says that the client as a matter of
right is not entitled to the brief. Lawyer has a broad
range of responsibility and does not have to follow
clients directions on anything in an appeal except:
i. Once client has made decision to appeal, only
thing lawyer HAS to do is reasonably consult
w/client

Example: a lawyer might represent the American Nazi Party even if he

thought its goals were objectionable. Why is it here? Its a paid political ad.
Lawyers reminding profession of the social good of being a lawyer to
unpopular people.

22

c)a lawyer may limit the scope of the

representation if the limitation is reasonable
under the circumstances and the client gives
informed consent.

i. A lawyers representation of a client does not constitute an

endorsement of the clients political, social or moral views
A lawyer and a client may agree that the lawyer will provide less than the full
range of services. The client may prefer this arrangement to reduce costs or
for other reasons.
2. Almost all lawyers limit the scope of their representation.
3. Cant limit it in an unreasonable way.
a. You cant say Ill represent you, but Im never going to
speak to you.
b. This rule is made for lawyers who practice in
sophisticated fields (tax, trusts and estates).
4. If you can create a narrow retainer agreement, do it
Although placed in a rule about the scope of the lawyers representation, this
provision bars lawyers from advising or assisting clients in illegal or fraudulent
activity.

d)a lawyer shall not counsel a client to engage,

or assist a client, in conduct that the lawyer
knows is criminal or fraudulent, but a lawyer
may discuss the legal consequences of any
proposed course of conduct with a client and
may counsel or assist a client to make a good
faith effort to determine the validity, scope,
meaning or application of the law.
1. Comment 2: clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be
used to accomplish their objectives, particularly with respect to technical, legal, and tactical matters.
2. Rule1.14
a. (a) When a client's capacity to make adequately considered decisions in connection with a representation is
diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far
as reasonably possible, maintain a normal client-lawyer relationship with the client.
b. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical,
financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer
may take reasonably necessary protective action, including consulting with individuals or entities that have the
ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad
litem, conservator or guardian.

23

c. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When
taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal
information about the client, but only to the extent reasonably necessary to protect the client's interests.
1. Impliedly authorized to reveal info normally protected by Rule 1.6 when taking protective
action, but only to the extent reasonably necessary to protect the clients interests.
d. Comment 6: suggests that lawyer should make an assessment of clients mental capacity, consider and balance
factors such as:
i. Clients ability to articulate reasoning leading to a decision,
ii. variability of state of mind and ability to appreciate consequences of a decision
iii. substantive fairness of a decision,
iv. and consistency of a decision with the known long-term commitments and values of the client.
e. Juveniles
i. Rule 1.14 applies the same standards to minors that it applies to adults w/mental impairments. This
means lawyers should maintain normal lawyer-client relationships w/minors to the extent possible.
f. Rule 1.2 has uneasy relationship w/1.14. 1.14 describes a client with diminished capacity. If you have a client,
13, engaging in high risk behavior, wants to be freed of parents in order to have freedom to (profs example, do
meth and have unprotected sex w/an HIV positive 35 year old), sub a:
i. Deals w/diminished capacity.
ii. This client is imbued with reckless youth, not diminished capacity.
iii. So she needs to be represented like anyone else.
iv. So you follow her directives unless you believe reasonably that she has a diminished capacity (a term
which is undefined).
g. 1.14(a): some other reason: often refers to situations where the client is being coerced
3. Problem 4-5: Package Bomber
1. Must respect clients objectives of the representation. His objective is to justify what he did, yours is to get
him off. Must follow his, even when it is not what is best for him.
D. Contracts to change the duties owed to clients
a. Can limit scope of representation so long as you advise the client clearly that you will not be handling certain matters.
2. Terminating a lawyer-client relationship
a. Duties to the client at the conclusion of the relationship
i. Most relationships end when all the work on the relevant matter has been completed.

24

1. Must return any papers and property (including entire original file) and any unearned payment that the
client may have made.
2. Duty to protect confidences continues
3. Ethics rules dont specify what types of papers must be returned to a client or whether they must be
delivered to the client even if the client does not request them.
4. If client has not yet fully paid the lawyers fee, or the fee is disputed, the lawyer may retain the documents
that the lawyer created for the client, for which compensation has not been received, unless retention
would unreasonably harm the client.
b. How to withdraw?
i. When you move to withdraw on ethics grounds, you do so in camera ex parte (just you and the judge).
ii. Rule 1.6 still applies so we need to find an exception w/in it so you can present your case to the judge to withdraw.
1. Perhaps the judge can direct you to tell him/her? ;)
c. Grounds for termination before the work is completed
i. Client Fires the Lawyer
1. Must withdraw
2. Client always has right to change lawyers, except a client for whom a lawyer has been appointed may not
change w/o courts permission.
3. A lawyer must withdraw if the lawyers illness or loss of capacity would materially impair the representation
ii. When continued representation would involve unethical conduct
1. Must withdraw if representation will require the lawyer to violate the law, including the states rules of
professional conduct.
2. Rule 1.16
a. Except as stated in paragraph (c), a lawyer must withdraw from representation (or not initiate
representation in the first place) in 3 situations:
i. Representation will result in violation of professional rules
ii. Lawyers physical or mental condition materially impairs the lawyers ability to represent the
client; or
iii. The lawyer is discharged.
o Once you enter a notice of appearance, you are not out of the case until the court
discharges/excuses you. Not automatically out of a case after being fired.
b. Except as stated in paragraph (c), lawyer may withdraw if:
i. Can be accomplished w/o material adverse effect on clients interestsfor no reason at all!

25

ii. Client persists in a course of action involving the lawyers services that the lawyer
reasonably believes is criminal or fraudulent (i.e. Im not sure youve committed a fraud,
but Im reasonably sure; I quit)
iii. Client has used the lawyers services to perpetuate a crime or fraud
iv. Client insists upon taking action that the lawyer considers repugnant or with which the
lawyer has a fundamental disagreement.
v. The client fails substantially to fulfill an obligation to the lawyer regarding the lawyers
services and has been given reasonable warning that the lawyer will withdraw unless the
obligation is fulfilledbasically, if they dont pay you. Even if they cannot pay you, you can
withdraw. If substantial, no one will ever challenge you. In NY: rule is only if you are
intentionally not paid.
vi. Representation will result in an unreasonable financial burden on the lawyer or has been
rendered unreasonably difficult by the clientyou underestimated the cost of the case.
vii. Other good cause for withdrawal exists. (Rule 1.16) (One guy got to leave b/c of prepaid
vacation!)
c. Must comply with applicable law requiring notice to or permission of a tribunal.
i. Write a letter to client stating so
ii. If before a tribunal, file a petition with court asking judge to allow you to withdraw
iii. What kind of information/reasons do you give?
1. Must find a basis to reveal the information w/o violating Rule 1.6
2. most judges think theres an exception in 1.16 allowing lawyer ot divulge info to
court. Theres not. You can ONLY withdraw invoking language of 1.16. you can
withdraw, judge will ask why, but you cant be, in some cases, specific as to why b/c
of 1.6.
3. EXAMPLE OF OVERCOMING 1.6: your honor, Im not allowed to tell you why my
client and I have come to loggerheads, I cant volunteer why its unreasonably
difficult, but its not privileged, so if you ask me about it, I can tell you.
d. Upon termination, lawyer shall take steps to the extent reasonably practicable to protect a clients
interests: reasonable notice, allowing time to find other counsel, surrendering papers/property,
refunding and advance payment.
i. The work done on a file belongs, not to the lawyer, but to the client: the original, not a copy.
1. Retaining lien: can keep the file until youve been fully paid.

26

2. Must include EVERYTHING, except confidential operations of office (?)

Concurrent Conflicts of Interest

Basic principle of ethical practice is to avoid conflicts. When a lawyer undertakes representation of a client, the lawyer owes that client a duty of
loyalty and a duty to protect confidential information.
A. In general
a. Possible consequences of representing in the face of conflict: legal sanctions (disqualification, discipline, malpractice, fee
forfeiture), business repercussions (reputation, lose business, etc)
b. Conflicts with Whom?
i. Obligations to current client, former client, or some other person related to a matter (Concurrent and successive)
ii. Obligations of other lawyers with whom one works or worked (imputed)
iii. Between clients interest and lawyers own interest
B. General Principles in evaluating concurrent conflicts
a. Rule 1.7 Conflicts of Interest: Current Clients
i. Concurrent conflict exists if:
1. The representation of one client will be directly adverse to another client; OR
a. Directly adverse: acting directly against the interests of one of his clients.
i. I.e. lawyer reps client A in one matter, sues A in 2d matter on behalf of client B.
ii. Also, it may be that two companies compete generally against each other, but is a lawyer
rep of one directly adverse to another. May be that a lawyer helps one competitor gain
strategic advantage in the mkt, but thats not direct adversity.
2. There is a significant risk that the representation of one or more clients will be materially limited by the
lawyers responsibilities to another client, a former client or a third person or by a personal interest of the
lawyer.
a. If a client would receive less vigorous representation from a lawyer because of a lawyers other
responsibilities, there might be a material limitation conflict.
i. How likely is it that a difference in interests will eventuate?
ii. If there likely is such a divergence, would it materially interfere with the lawyers advice to
or representation of a client?
ii. A lawyer may still represent a client if:

27

1. Lawyer reasonably believes she will be able to provide competent and diligent representation to each
affected client;
2. The representation is not prohibited by law;
a. E.g., Some jx cannot represent more than 1 D in a capital case; EXAMPLE: Pasoni v. Ravkin: in NY,
you cant rep the driver and passenger of a car that is hit through no fault of the drivers
3. 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; (only applies in litigation) AND
4. Informed consent, must be in writing.
a. Must explain ways it could adversely affect them.
b. Sometimes requires disclosure of the confidences of another client, which depends on that clients
consent.
5. EXAMPLE: Can you execute a contract for the buyer AND seller of a business?
a. It depends; so long as there is no conflict or competing interests
b. Walk through 1.7(b)informed consent.
iii. EXAMPLE: two people come to lawyer say they want to form a partnership to open a sandwich shop. Q: do they
have different interests?
1. The interests between the two partners to be: are they differing interests, and if they are different, is it s a
waivable conflict?
2. Where the partner terms need to be negotiated, there is clear adversity.
3. You cant rep em both when negotiating the terms (adversity).
4. On the other hadn, if they come to you and say were gonna fudn it 50-50, share work equally, and write up
a partnership agreement that is 50-50, is there adversity then?
a. For the time being, not in conflict. But they may have differing interests its a waivable conflict.
Will you waive any conflict in me prepping a partnership agreement for you? Cause I cant rep you
down the road if theres a conflict (adversity).
b. How to evaluate conflicts
i. Clearly identify client(s), determine whether conflict exists
ii. Decide whether may represent despite conflict (consentable)
c. Reasonable belief: You reasonably believe you can do a good job.
i. Standard: reasonable person applying an objective test
d. Informed consent
i. Create a situation where all 4 requirements of 1.7(b) are satisfied.

28

ii. What does informed consent mean?

1. Must communicate all the adverse effects of waiving, the risks, advantages and possible alternatives.
2. Client must sign a waiver that memorializes the actual information the lawyer gave her. (Cant just say my
lawyer explained it all to me and I waive)Unless you have appetite for risk, get a waiver
3. Client may withdraw consent.
iii. Advance Consent
1. Maybe: validity depends on how well client understands, thoroughness of lawyers disclosure, clients legal
experience, whether she received independent legal advice, whether it can be solved by consent?
e. Withdrawal and disqualification
i. Can be on your own volition, but normally brought by an opposing partys motion to disqualify you.
f. Imputation of concurrent conflicts
i. Represent one client whose interests conflict with those of a client represented by his partner.
ii. Rule 1.10. Imputation of Conflicts of Interest: Generally
1. While lawyers are associated in a firm, none shall knowingly represent a client when anyone practicing alone
would be prohibited from doing so (by Rules 1.7, 1.9) unless the prohibition is based on a personal interest
of the prohibited lawyer and does not present a significant risk of materially limiting the representation of
the client by the remaining lawyers in the firm
2. Disqualification prescribed by this rule may be waived by the affect client under Rule 1.7 (GET INFORMED
CONSENT)
a. Rule that embraces the idea that if A and B work at a firm theyll share information
b. Even if there is a conflict, you can screen. If person was at former firm and has conflict w/ a client at
new firm, you contact former firm w/r/t screening requirements to sort it out and certify
compliance w/screening procedure. (NY doesnt have this; ABA does.)
iii. Rule 1.10(b)
1. When a lawyer leaves your firm, can take up action against his clients unless people left in the firm have
confidential info re: those clients
iv. Applies to ALL firms: whether its 2 lawyers or 1,500.
1. Does not apply to law clerks, paralegals, secretaries or other non-lawyer employees.
a. 1.10(a) does not preclude a firm from accepting representation of a client based on conflicts relating
to work that a lawyer in the firm did before she became a lawyer.
C. Conflicts between current clients in civil litigation
a. Suing a current client

29

i. CANNOT do it - involves direct adversity even though the cases are unrelated.
b. Cross-examining a current client
i. Cant do it if it would be directly adverse to client
c. Representation of co-plaintiffs or co-defendants in civil litigation
i. Co-Ps: if there is no present or likely future divergence of interests, then allowed. If you think maybe in the future
there could be, then put in the retainer agreement what you will do in such an event.
ii. Co-Ds: depends on what the defenses are, if interests are not adverse.
d. Representing economic competitors in unrelated matters
i. If in the matters in which you represent them they are not adversarial; e.g., represent one in a lease negotiation and
one in a civil litigation w/ a third party.
D. Conflicts in non-litigation matters: Representation of both parties to a transaction
a. Allowed to do it, but usually need informed consent.
b. Applies whenever a lawyer is approached by two clients seeking legal assistance w/ a common goal.
i. When do you need consent?
1. Whether an actual or potential conflict is reasonably apparent
a. If not, if entirely harmonious interests, then no consent required.
ii. Can a lawyer keep confidences learned from one client from the other?
1. Unclear, but probably not.
iii. If a conflict develops that will lead to litigation, may not continue to withdraw both (or all) clients.
1. If w/draw from one, still may not be able to represent the other because now it is a former v. current in the
same or a substantially related matter would need consent of former.
E. Joint representation in particular practice settings
a. Representation of criminal co-defendants
i. Case law, ethics rules, and scholarly commentary all discourage joint representation of co-Ds by a single lawyer
1. Comments to model rules counsel strongly against representing two ro more clients on charges arising out
of a single occcurrence
ii. 6th Amendment: Does joint rep violate it?
1. If a conflict significantly affected the representation.
b. Conflicts in representing family members
i. Divorce: if both parties want to get divorced and have no disagreement about child custody or property division,
then perhaps there is no actual adversity, only technical.
1. Some states allow a lawyer to rep both sides in an uncontested divorce.

30

2. Others say not for a divorce, but ok for a settlement agreement.

a. As long as clients agree and settlement is fair.
3. Some jurisdictions say you cant rep them at all for any reason.
a. POLICY: conflicting interests, financial or otherwise.
ii. Estate Planning: confidentiality issues.
1. Florida Bar Opinion: Husbands Extra-Marital Will
a. Duty of confidentiality must take precedence to duty to communicate to a client info relevant to the
representation.
i. in situations where one party reveals something like the drafting of a separate codicil for a
mistress, the lawyer must withdraw from the joint representation under these facts.
1. An adversity of interests has arisen. (joint conflict)
2. Lawyer should inform the husband and wife of withdrawal, that a conflict of interest
has arisen that makes continued representation i
c. COMMENT 30: (To Rule 1.7): factor to consider in appropriateness of common representation: effect on client-lawyer
confidentiality and atty-client privilege.
i. W/r/t atty-client privilege, rule: as between commonly repped clients, the privilege does not attach.
ii. Hence, if litigation eventuates between the clients, the privilege will not protect any such communications, and the
clients should be so advised.
1. EXAMPLE: review of the joint litigation privilege. Lawyer 1client 1. Classic relationship. Privilege.
a. Add lawyer two and client two. They gather with the 1s for a meeting.
b. Joint defense privilege, or for those who do civil litigation work, joint civil privilege.
i. Two clients talking between selves: not privilege.
ii. It is the lawyer being present which is the glue that binds.
iii. IN SUM: its always a depends except I can never rep parties with different and conflicting
interest when theyre in conflicts of interest that are non-waivable.
d. Representing both parties to an action
i. Rule 1.7 governs: depends on whether there is a direct adversity conflict or a material limitation conflict under
1.7(a).
ii. If it appears clients interests could conflict, lawyer must provide info about possible downsides of joint
representation and get consent.
1. Only has to get consent if conflict is reasonably apparent.

31

2. EXAMPLE: in 2d Dept, have case in 1st dept, but the case pending in the 1st Cir. has nothing to do with the
case in the 2d dept, no conflict of interest.
e. Rule 1.7, Comment 31: suggests a lawyer usually should not keep confidences received form one joint client from the other.
i. Informed consent process includes advising each client that info will be shared and that lawyer will have to
withdraw if one client decides that some matter material to the representation should be kept from the other.
Unless both clients agree that lawyer can keep info confidential.
F. REPRESENTING ORGANIZATIONS
RULE 1.13: ORGANIZATION AS CLIENT
RULE LANGUAGE
(a) A lawyer employed or retained by an organization
represents the organization acting through its duly authorized
constituents.
(b) If a lawyer for an organization knows that an officer,
employee or other person associated with the organization is
engaged in action, intends to act or refuses to act in a matter
related to the representation that is a violation of a legal
obligation to the organization, or a violation of law that
reasonably might be imputed to the organization, and that is
likely to result in substantial injury to the organization, then
the lawyer shall proceed as is reasonably necessary in the
best interest of the organization. Unless the lawyer
reasonably believes that it is not necessary in the best
interest of the organization to do so, the lawyer shall refer
the matter to higher authority in the organization, including,
if warranted by the circumstances, to the highest authority
that can act on behalf of the organization as determined by
applicable law.
(c) Except as provided in paragraph (d), if
(1) despite the lawyer's efforts in accordance with paragraph
(b) the highest authority that can act on behalf of the

EXPLANATION
This section addresses who is the client of a lawyer representing an
organizaiotn. The client doesnt include the officers, directors, employees,
sharelholdes, and other constituents, but is the entity itself. Comments 1
and 2.
This section explains the duties of a lawyer If someone associated with the
organization is involved in unlawful or other action that could harm the
organization and describes the circumstances under which the lawyer must
report up to the top of the corporate ladder. A lawyer ordinarily should defer
to the decisions of corporate officers in policy and operations, but if an
officers action is likely to substantially injure the organization or if the action is
unlawful, the lawyer has duties under this section. Comment 3. What action
is required of the lawyer depends on the seriousness of the violation and its
consequences, the responsibility in the organization and the apparent
motivation of the person involved, and other factors. Sometimes the lawyer
can fulfill this duty by requesting reconsideration of the matter or by having
the matter reviewed by a higher authority. Comment 4.

This section of the rule lays out the circumstances under which a lawyer is
permitted to disclose confidential information outside of the corporation to
prevent or remedy conduct by an employee that is reasonably certain to cause

32

organization insists upon or fails to address in a timely and

appropriate manner an action, or a refusal to act, that is
clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is
reasonably certain to result in substantial injury to the
organization,
then the lawyer may reveal information relating to the
representation whether or not Rule 1.6 permits such
disclosure, but only if and to the extent the lawyer reasonably
believes necessary to prevent substantial injury to the
organization.
(d) Paragraph (c) shall not apply with respect to information
relating to a lawyer's representation of an organization to
investigate an alleged violation of law, or to defend the
organization or an officer, employee or other constituent
associated with the organization against a claim arising out of
an alleged violation of law.
(e) A lawyer who reasonably believes that he or she has been
discharged because of the lawyer's actions taken pursuant to
paragraphs (b) or (c), or who withdraws under circumstances
that require or permit the lawyer to take action under either
of those paragraphs, shall proceed as the lawyer reasonably
believes necessary to assure that the organization's highest
authority is informed of the lawyer's discharge or withdrawal.
(f) In dealing with an organization's directors, officers,
employees, members, shareholders or other constituents, a
lawyer shall explain the identity of the client when the
lawyer knows or reasonably should know that the
organization's interests are adverse to those of the
constituents with whom the lawyer is dealing.
(g) A lawyer representing an organization may also represent

significant harm to the corporation. Rule 1.13(c) creates another exception

(besides those in 1.6(b)) to the rule requiring protection of confidences.
Comment 6.

This section explains that paragraph (c) does not allow revelation of
confidences as to a matter on which the lawyer has been engaged to
investigate possible illegal conduct or to defend the organization or an
employee against an allegation of illegal action.

This section describes the duties of a lawyer who is fired or who withdraws
because of action tha t the lawyer takes to prevent or remedy unlawful
conduct. The lawyer should take steps to inform the board of directors of the
lawyers firing or withdrawal.

This section requires a lawyer who represents an organization to explain her

role whenever she is dealing with constituents whose interests may conflict
with those of the organization.
The big provision: you gotta explain.
This section explains that a lawyer who represents an organization may also

33

any of its directors, officers, employees, members,

represent individuals who associate with the organization so long as the
shareholders or other constituents, subject to the provisions
representation complies with Rule 1.7. it also explains how to obtain the
of Rule 1.7. If the organization's consent to the dual
consent of the organization.
representation is required by Rule 1.7, the consent shall be
given by an appropriate official of the organization other than
the individual who is to be represented, or by the
shareholders.
a. FACTORS AFFECTING WHETHER THE RELATED ENTITY IS A CLIENT
Related entity more likely to be a client if:
Related entity less likely to be a client if:
The lawyer received confidential information from The lawyer no longer represents the initial
or provided advice to the subsidiary.
corporate client.
The entity was controlled and supervised by the
The two entities became linked (e.g. by a merger)
parent organization.
after the lawyer began representation of the
corporation.
The original client could be materially harmed by
the suit against the subsidiary.
b. Representing insurance companies and insured persons
i. Authority is divided re: representing ins cos and insured peeps
ii. Rule 1.8(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
1. The client gives informed consent
2. There is no interference w/ the lawyers independence of professional judgment or w/ the client-lawyer
relationship; and
3. Information relating to representation of a client is protected as required by Rule 1.6
iii. When is there a conflict?
1. E.g., damage award may exceed the amount covered by an ins policy
2. If conflict arises, should act in best interests of insured except may no assist client fraud. If not possible,
must withdraw from both.
3. Communications between the insurer and counsel for the insured should be regarded as privileged and
otherwise immune from discovery by the claimant or another party to the proceeding.
a. But insurer has financial stake in the proceedings and so should have the right to claim relief from
lawyer for loss proximately caused by professional negligence or other wrongful act of the lawyer.

34

b. Lawyer cannot reveal confidential info from insured person to insurer

c. Conflicts in representation of a class
i. Conflicts can be between members of the class or between class interests and lawyers own interests.
ii. EXAMPLE: class action civil rights lawsuit against prison in upstate NY. State of NY says you did a great job: heres 50
million dollars.
1. Is there a conflict? It depends. And if you dont spot a conflict on how you spend the $$$ if you dont
identify the conflict in how the prisoners spend the money, if you dont spot this issue in this retainer
agreement you will be criticized and you will get no legal fee and front page of law journal with a sanction.
2. So how would you handle it?
a. Build things into my retainer agreement when you sign on.
b. An advanced waiver.
i. EXAMPLE: if we win and get $$$, there may be a dispute about how money is divided. If
there is scuh a dispute, my firm will not be responsible beyond time when money is won.
Arbitration, mediation, or separate court action will swettle the dispersal fo fudns stuff.
d. AGGREGATE SETTLEMENTS
i. Rule 1.8(g)
1. A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the
claims of or against the clients, or in a criminal case an aggregated settlement as to guilty or nolo contendre
pleas, unless each client gives informed consent, in a writing signed by the client. The lawyers disclosure
shall include the existence and nature of all the claims or pleas involved and of the participation of each
person in the settlement.
Conflicts Involving Former Clients, Government Lawyers, and Judges
A. The nature of conflicts between present and former clients
a. If a conflict (NY doesnt use conflict; uses differing interests) exists both the former and the present could be injured:
i. Formers confidences may be betrayed and/or used adversely
ii. New clients representation may be less zealous b/c of obligation to former
B. Duties to former clients
a. Less restrictive than concurrent conflicts. Duties are limited to:
i. Protecting confidences
ii. Avoiding side-switching
iii. Refraining from attacking work you did for the former

35

b. Rule 1.9 Duties to Former clients

i. (a) lawyer who has formally represented a client in a matter shall not represent another person in the same or
substantially related matter in which persons interests are materially adverse to the interests of the former unless
the former gives informed consent, confirmed in writing.
1. Same matter: single transaction, lawsuit, document lawyer was involved in producing
2. Substantially related: Comment 3, substantial risk that confidential information as would normally have
been obtained in the prior representation would materially affect the clients position in the subsequent
matter.
a. HYPO: You worked at Disney in the employment division, policy drafting. You leave and then offer
to rep people who worked as independent contractors at Disney for work condition infringements
(no health and an onsite injury, etc.) wrong? Substantially related? Not so much: you were only
drafting policy. Not much of a connection to the complainsts of ind. contractors
3. former representation: matter need not be litigation: could just be someone coming in seeking advice and
leaving w/o paying or representation.
4. Materially adverse: HYPO: you work with Trump, want to build in an area, its shale. Cant do it. Then you
work w/someone else, same area, they dont find the shale. Can you tell them about it? Go to trump and
ask for permissions? Can you say the anme of the person you work for now? 1.6 says no. can you say
generally that you want to give info to someone about the shale? Yes. Its a possible solution, but involves
that same appetite for risk
ii. (b) shall not knowingly represent a person in the same or substantially related matter in which a firm with which the
lawyer formerly was associated had previously represented a client:
1. Whose interests are materially adverse to that person, and
2. About whom the lawyer had acquired information protected by Rules 1.6, 1.9(c) that is material to the
matter;
3. Unless the former client gives IC in writing.
a. 1.9(b): how conflicts work at a firm. Lawyer shall not knowingly rep person in same or subtan sim
matter in firm context: firm that lawyer worked in in this case had previsouly repped a K. Example:
Im at skadden, didnt work on a cig case that was there. I go to Paul Weiss: they were Pl in that
case. The fact that I worked at the firm that represented that adverse client under this rule, as
long as I didnt learn info, I can go to the new firm
i. But lawyer can be an infecting agent. Go to new firm. Have info about client that would
make it difficult to work there. But look at 1.10

36

1. Put a conflict screen around the lawyer, and they wont be disqualified, right?.
(NOTE: NY has not adopted rule 1.10.) This is a rule of maximum mobility for
lawylaers w/infecting information
a. (a) if theres one person in firm w/infecting info, everyone is. But there are
exceptions
i. Personal interest: I hate white supremacists. Can I rep one?
Probably not. Doesnt mean my firm shouldnt be allowed to if
they dont care one way or the other about white supremacists
(a)(1)
b. (a)(2) screening: no one can talk to her about case, no sharing in profits of
case, no reading up on case, and
i. (2)(ii) also have to give written notice
iii. (c) a lawyer who has formerly represented a client in a matter or whose present or former firm has formally
represented a client in a matter shall not thereafter:
1. Use info relating to the representation to the disadvantage of the former except as these Rules would
permit or require w/ respect to a client or when the information has become generally known; or
2. Reveal info relating to representation except as these Rules would permit or require w/ respect to a client.
c. Confidential information used adversely can be waived by IC
d. New client wants to sue former can be waived by IC if both former and present, unless conflict is so severe that lawyer
could not reasonably believe that he could provide competent and diligent representation to new client. (Both 1.7 & 1.9)
C. Evaluating successive conflicts
a. Questions to ask
i. Is there potential for betrayal and misuse of confidential info?
ii. Am I attacking my own work?
iii. Will there be a view by the court that I have crossed the line to attack a former client when the expectation was that
I made an implied promise not to do that?
D. Imputation of former client conflicts to affiliated lawyers
a. Rule 1.10
RULE 1.10 IMPUTATION OF CONFLICTS OF INTEREST
Rule language
Authors explanation
(a)While lawyers are associated in a firm, none of them shall General rule on imputation; if one lawyer in a firm has a
knowingly represent a client when any one of them
conflict, they all do.

37

practicing alone would be prohibited from doing so under

rules 1.7 or 1.9
Unless the prohibition is based on a personal interest of the
This part exempts from imputation conflicts that dont
prohibited lawyer and does not present a significant risk of
involve client loyalty or protection of confidences, but
materially limiting the representation of the client by the
involve only a personal matter (white supremacists)
remaining lawyers in the firm.
(b)When a lawyer has terminated an association w/a firm,
If a lawyer leaves his firm, his former firm should use this
firm is not prohibited from thereafter repping a person
rule to evaluate new business that conflicts with the former
w/interests materially adverse to those of a client repped by lawyers work at the firm. Conflict leaves the firm with the
the formerly associated lawyer and not currently repped by
lawyer unless:
the firm, unless:
(1)the matter is substantially related to that in which the
The materr is the same or substantially related and
formerly associated lawyer repped the client; and
(2)any lawyer remaining in the firm has information
A remaining lawyer knows material is confidential info.
protected by Rules 1.6 and 1.9c that is material to the
matter.
(d)a disqualification prescribed by this rule may be waived by Most imputed conflicts may be waived.
the affected client under the conditions stated in 1.7.
(e)the disqualification of lawyers associated in a firm with
the former or current govt lawyers is governed by rule 1.11.
b. GENERAL ANALYSIS:
i. Lawyer moves from firm A to firm B
1. To analyze conflicts brought into firm B: Rule 1.9(b)
2. To analyze conflicts remaining at firm A: Rule 1.10(b)
E. Successive conflicts of present and former govt lawyers
a. Conflicts of former govt lawyers in private practice
i. Rule 1.11: except as law may permita lawyer who has formerly served as a public officer or employee of the govt:
1. (a)(1)Is subject to Rule 1.9(c) and
2. (a)(2)Shall not otherwise represent a client in connection w/ a matter in which the lawyer participated
personally and substantially as a public officer or employee, unless the appropriate govt agency gives its IC.

38

3. (b) when a lawyer is disqualified from representation under (a), no lawyer in a firm w/which that lawyer is
associated may knowingly undertake or continue representation in such a matter unless:
a. Timely screened (the disqualified lawyer), and disq lawyer gets no fee;
b. Written notice to appropriate govt agency for compliance
4. If got info that was secret while working for govt cannot represent a private client whose interests are
adverse to that person.
Rule and conflicts subject to rule
Lawyer may not represent a new client without the consent of the
former client in:
Rule 1.9a: Applies to all successive conflicts except those
the same or substantially related matter if the new clients
related to former govt work
interests are materially adverse to those of the former client
Rule 1.11(a): applies to conflicts related to former govt work a matter in which the lawyer participated personally and
substantially
a. personal and substantial
i. personal means direct participation and includes the participation of a subordinate when actually directed by the
former govt employee in the matter.
ii. substantially means that the employees involvement must be of significance to the matter, or form the basis for a
reasonable appearance of such significance
b. What is a matter?
i. Rule 1.11(e):
1. As used in this rule, the term matter includes:
a. Any judicial or other proceeding, application, request for a ruling or other determination, contract,
claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a
specific party or parties, and
b. Any other matter covered by the conflict of interest rules of the appropriate govt agency.
c. Screening of former govt lawyers
i. Rule 1.11(b): When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that
lawyer is associated may knowingly undertake or continue representation in such a matter unless:
1. The disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the
fee therefrom; and
2. Written notice is promptly given to the appropriate govt agency to enable it to ascertain compliance w/the
provisions of this rule.
d. Confidential govt information

39

Rule 1.11(c)
Rule Language
Authors Explanation
Except as law may otherwise expressly permit,
A lawyer having information that the lawyer
This prohibition applies only if the lawyer has actual knowledge of the information.
knows is confidential government information
The rule is triggered only by possession of confidential government information about a
about a person acquired when the lawyer was a person
public officer or employee,
May not represent a private client whose
This type of conflict occurs only with respect to a matter in which the lawyer could use the
interests are adverse to that person in a matter information in a way that would harm the person.
in which the information could be used to the
material disadvantage of htat person.
As used in this Rule, the term confidential
The information whose possession triggers the rule must have been obtained
govt info means info that has been obtained
through govt power (i.e. thru threat of subpoena);
under govt authority and which, at the time
The govt must be barred from disclosing it or entitled to assert a privilege against
this Rule is applied, the govt is prohibited by
disclosure;
law from disclosing to the public or has a legal
The information must not be in the public domain.
privilege not to disclose and which is not
otherwise available to the public.
A firm with which that lawyer is associated may If the former govt lawyer has such info, the firm may go ahead with the representation if
undertake or continue representation in the
the conflicted lawyer is screened and doesnt earn specific fees from the work.
matter only if the disqualified lawyer is timely
screened from any participation in the matter
and is apportioned no part of the fee
therefrom.
F. Conflicts involving prospective clients
a. If in that first meeting there is confidential information is revealed, then in Rule 1.9 territory b/c the law will treat the first
interview as an attorney-client relationship

40

Conflicts of Interest Between Lawyers and Clients

A. Legal fees
a. Lawyer-client fee contracts
i. Lawyer is a fiduciary; responsibility to be punctilious in his relationship w/ client and therefore, under contract law,
any uncertainty, lack of clarity, adhesion runs in favor of the client.
1. Even if client understood what he was doing and signed the K.
b. Reasonable fees
i. Rule 1.5(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable
amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
1. the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to
perform the legal service properly;
2. the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude
other employment by the lawyer;
3. the fee customarily charged in the locality for similar legal services;
4. the amount involved and the results obtained;
5. the time limitations imposed by the client or by the circumstances;
6. the nature and length of the professional relationship with the client;
7. the experience, reputation, and ability of the lawyer or lawyers performing the services; and
8. whether the fee is fixed or contingent.
ii. Courts rely on various combos among the 8 factors listed.
iii. Much of the calculus of what is reasonable depends on norms in a particular community and a particular area of
practice.
1. Equally if not more important than receiving the fee? Keeping the fee.
c. Communication about fee arrangements
i. Many conflicts between lawyers and clients over fees caused by inadequate disclosure about fees at the outset of
the representation or inadequate consultation with the client about fees at the outset of the representation or
inadequate consultation with the client about fees as the representation progresses.
ii. Rule 1.5(b): The scope of the representation and the basis or rate of the fee and expenses for which the client will
be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after
commencing the representation, except when the lawyer will charge a regularly represented client on the same
basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

41

1. Comment says you have to disclose the general nature of the legal services to be provided. Thats not
very helpful. What you do: create real expectations for the clients up front. No expectation of winning or
losing, no expectation of how long case will take.
2. Another conflict: maximizing revenue on the law firms part v. doing a job for client that may not necessarily
jibe w/maximum collection of revenue.
3. Disclosure doesnt have to be in writing unless lawyer intends to charge a contingent fee.
4. Lawyer doesnt have to estimate the amount of time to be spent or the total fee. But you can give the client
a realistic assessment.
a. POLICY: dont want them to be blind-sided; want to engender trust.
5. Feb 1 2007: in NY, prior to this time, you were obligated to hold your client responsible for all expenses of
the case
a. Apparently not any more; Now you no longer have to, but if youre going to, you have to say it up
front and let them know
b. ABA: you can take off top or bottom as long as you inform
c. NY: only off the top w/r/t a contingency fee, and you must explain to client and set down in writing
6. PROF: mentions the information about raising the rates and when and how you do it.
a. If you put a provision in citing an undetermined rate hike is possible, do you enforce it? How?
i. You can, but maybe the client thinks this is unreasonable.
ii. 1.5b: you can do it as long as you tell the client about it: but theres no guidance as to how
to do this. Drafters saw there was no way to win on this part, so they intentionally left it
ambiguous.
d. Modification of fee agreements
i. Agreement modifying an initial K is enforceable if it is fair and equitable in view of circumstances not anticipated by
the parties when the K was made. (some jurisdictions say you cant just notify, some say you need consent)
ii. Retainer agreement will preferably be communicated to client in writing, before or after a reasonable time you
being work. Set out everything in it if its not there, presumptively youre not entitled to charge for it.
iii. Any changes must be communicated to judge and client
e. Regulation of hourly billing and billing for expenses
i. ABA guidelines:
1. No padding or time inflation: a lawyer billing by the hour may not bill for more hours than she actually
worked
2. An hour is an hour, dont round up

42

f.

3. No inventing hours that werent really worked

4. A lawyer may not bill for overhead or markup costs, lawyers fees should cover it. (i.e. cost of running a
libes, purchasing malpractice insurance)
5. No double-billing: a lawyer may not bill two clients for one period of time
6. No billing a second client for recycled work
7. No churning or running the meter: a lawyer may not do unnecessary extra work in order to justify billing
more hours
8. No billing clients or the firm for personal expenses or marking up expense receipts
9. Billing for billing? Like, billing for time spent explaining billing to a client? Not so great, but the court ruling
on it is ambiguous.
Contingent fees
i. Fee may NOT be contingent in domestic relations and criminal cases (1.5d)
1. He talks about when you cant charge a contingent fee and policy against it in a divorce case. Dont want to
incentivize bloody expensive divorce battles.
2. Also dont want to charge contingent fee in criminal case: someone says they want to take a plea and take
only two months, but thats considered a loss, the lawyer will be more apt to want to go to trial b/c more
$$$. Client feels more confident that the lawyer is invested in him and not just $$$. Differs from civil case
b/c here its not $$$, were dealing with someones life.
RULE 1.5(C)
Rule language

Explanation

A fee may be contingent on the outcome of the matter for which

the service is rendered, except in a matter in which a contingent
fee is prohibited by paragraph (d) or other law.

Rule 1.5(d) bars contingent fees in many criminal and domestic relations
cases. See section b below. Other law sometimes bars such fees. Rule
1.5(a) requires that contingent fees be reasonable. Comment 3.

A contingent fee agreement shall be in a writing signed by the

client and shall state the method by which the fee is to be
determined, including the percentage or percentages that shall
accrue to the lawyer in the event of settlement, trial or appeal;

The agreement must specify the percentage of the recovery to be earned

by the lawyer and indicate whether the percentage to be charged depends
on how the case proceeds.

litigation and other expenses to be deducted from the recovery;

The agreement must explain whether expenses are to be deducted from

43

the total settlement or judgment before or after the lawyers fee is

and whether such expenses are to be deducted before or after
calculated.
the contingent fee is calculated.
The agreement must clearly notify the client of any expenses for The agreement needs to explain which expenses the client must pay even if
which the client will be liable whether or not the client is the
she gets no recovery.
prevailing party.
Upon conclusion of a contingent fee matter, the lawyer shall
When the matter is concluded, the lawyer must provide the client with
provide the client with a written statement stating the outcome another writing explaining what fee and expenses were charged and how
of the matter and, if there is a recovery, showing the remittance they were calculated.
to the client and the method of its determination.
ii. Prof mentions the section on how it makes a difference whether you take your percentage at the front end or at the
back end; how, if you reduce the basis, it changes how much you get.
g. Forbidden and restricted fee and expense arrangements
i. Rule 1.8(e): A lawyer shall not provide financial assistance to a client in connection with pending or contemplated
litigation, except that:
1. a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on
the outcome of the matter; and
2. a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the
client.
a. COMMENT 10: prevent lawyers from having too big a stake in the outcome.
b. AND: rule allows lawyers to pay court costs and litigation expenses, including the cost of needed
medical examinations or other costs to obtain evidence.
c. BUT: You cannot advance money to a client. You cant pay a client w/cancer so he can get medicine.
ii. Rule 1.8(d): Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement
giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating
to the representation.
1. Applies to making such an arrangement before case is over. If after case the person owes a hefty fee, client
could agree to forgive all or part of debt in exchange for transfer of literary or media rights.
h. RETAINER
i. GENERALLY: When client pays retainer at the outset, lawyer has some protection against a client who becomes unwilling
or unable to pay for services the lawyer already rendered. Lawyer will charge fees against the advance payment as she

44

i.

j.

earns them.If lawyer doesnt earn the whole amount advanced, the unearned portion of the advance must be returned
to the client
ii. NY 22NYCR 1215.1: for the first time, you said you gotta have a written retainer agreement that defines scope of
agreement, fee, (dispersements off top or bottom), etc.
1. Exceptions: if fee is under 3k, you dont have to have a retainer agreement
2. If a customary case of repping the same person over and over again, and every month you get holdover
proceedings, say, you dont need separater retainer agreements each time
a. W/o retainer agreement, lawyers were being denied fees
b. New rules: w/o retainer agreement, you are subject to whatever civil issues arise w/r/t fee and
disciplinary proceedings
iii. What types of things do we want in a retainer agreement? (see Rule 1.5c)
1. What is rule w/retainer agreements if they are misconstrued later on? Who wins if there is an ambiguity? The
client. So, its incumbent upon the lawyer to follow the letter of the rule, but there are best practice issues that
go w/that.
a. AND YET: the problem with many add-ons with retainer agreements is the agreement gets longer and
more complicated and you might scare the client away. Just make sure you protect: yourself; the
reasonable fee.
iv. Nonrefundable retainer agreement: absolutely not. Matter of Cooper footnote in book. You cant charge a
nonrefundable retainer agreement. Under 1.5 though you can charge a minimum retainer agreement
Fee disputes
i. Rule 1.8(h): agreements to pay client for a mistake in litigation if you follow provisions of Rule 1.8(h). Should not
make agreement prospectively limiting liability to a client for malpractice unless client is independently represented
in making agreement. You may do it as long as there is proper disclosure and consent.
1. Can waive malpractice BUT must be represented by independent counsel
2. Cannot settle a claim w/ an unrepresented client unless that person is advised in writing of the desirability in
obtaining a lawyer AND provided an opportunity to have another lawyer.
FEE COLLECTION
i. Rule 1.8(i): can charge an otherwise contingent fee or acquire a lien authorized by law to secure lawyers
fee/expenses.
1. Subject to 1.8(a): meaning, client entitled to fair terms, clear explanation of the terms in writing, opportunity
to seek advice from independent lawyer before agreeing to give lien.
2. If lawyer violates law in this process, subject to discipline

45

ii. A lawyer should not be able to buy the cause of action of a client. (I pay you now for your cause of action, and if
there is a recovery in the case, I get the dough.)
1. Challenge: champarty: covered by 1.8(i): wherein if I own cause of action, I make decisions about it. Only a
client can own a cause of action.
2. Language of 1.8(i) is bad: of course a lawyer has an interest in the litigation. In fact, an interest in the
litigation to the extent that I have a lien on the file (in some cases?)
a. Whats in the lawyers arsenal to help us collect fees?
i. If Im fired, I have something the client needs. But I have the case file. If you want the file, I
have a retaining lien. A lien represents an interest I have in representation, so right off the
bat theres an exception to 1.8i.
1. Theres a retaining lien: pay me if you want the file.
2. Lien over proceeds of case: has lots of different names: as a lawyer, if Ive done
work on a case, I can notify insurance or others that I have a lien on the case.
General lien on the proceeds of the case.
k. Dividing fees with other firms or with nonlawyers
i. Two lawyers from different firms work on case: if hourly, calculate it.
ii. Rule 1.5(e): A division of a fee between lawyers who are not in the same firm may be made only if:
1. the division is in proportion to the services performed by each lawyer or each lawyer assumes joint
responsibility for the representation;
2. the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is
confirmed in writing; and
3. the total fee is reasonable. (Rule of thumb: 1/3, but negotiable; if its a slam dunk case, maybe 40%)
iii. COMMENT 7: if you refer a client to another matter for a specialized case, referring lawyer may collect a fee,
provided she:
1. Take on financial and ethical responsibility for the representation as if the lawyers were associated in a
partnership;
2. Proposed share must be disclosed and approved by the client,
3. Confirmed in writing,
4. Reasonable.
iv. Rule 5.4(a): Cannot share fee with a non-lawyer (you can give them a pen, or flowers)
1. Can pay the salary if they work for you but cannot have any bonus or contingency agreement as to a case.
l. Payment of fee by a third party

46

i. Rule 1.8(f): so long as there is informed consent and there is no interference with the lawyers professional
judgment and there is no disclosure of secret information w/o IC
B. Conflicts with lawyers personal or business interests
a. In general
i. Lawyer cannot have a direct ownership interest in an action where conducting litigation for the client (should be
advancing your clients interests, not your own), UNLESS:
1. Contingency fee case: by definition lawyer owns a piece
2. Possessory lien: secure the lawyers fee or expenses; owns the file until client pays.
b. Business transactions between lawyer and client
i. Rule 1.8: cannot enter into a business relationship w/ a client or acquire an ownership, possessory, security or other
pecuniary interest adverse to a client unless
1. Trx and terms on which lawyer acquires the interest are fair and reasonable to the client, and
2. Are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by
client, and
3. Client advised in writing of the desirability of seeking and is given a reasonable opp to seek the advice of
independent legal counsel on the trx, and
4. Client gives IC, in writing and signed, to the essential terms of the trx and the lawyers role in the trx,
including whether lawyer is representing the client in the trx.
ii. Rationale: clients interests should drive the litigation, not the lawyers
iii. EXAMPLE: Instead of fee, lawyer gets an apt, or a piece of gross revenue of a company
c. Gifts from clients
i. Rule 1.8(c): lawyer should not prepare an instrument giving any substantial gift to you or family. you cannot solicit
your clients, but you can accept them if theyre reasonable. BROOKE ASTOR CASE
ii. You cannot disguise a gift as a fee, a fee as a gift. You cant try to procure additional fee for self and disguise as gift
d. Sexual relationships with clients: NO. How about their sister or brother? Rule doesnt address it. Presumably not a good
idea.
i. NY rule: additional language to this: you cannot condition employment on sex: meaning, if your client says I will only
retain you if you sleep with me, you must say NO
C. Lawyer as custodian of client property and documents
a. Client trust accounts
i. Rule 1.15: the rule that governs our role as a fiduciary when we hold $$ or other physical items of value.
1. Escrow acct: special acct wherein I hold client money.

47

a. Down payment in real estate transaction: goes to sellers atty. Holds it as fiduciary in trust and puts
in it escrow account.
b. Art lawyers are often the holders of items of art. If lawyer in art sale acts as escrow agent, will take
art and put it in a vault until sale closes.
2. 1.15: lawyer is a fiduciary. If holding money belonging to client or 3d party, must put it into a segregated
escrow account. Lawyer must, when put money in escrow account, hold it inviolate. Cant be released to
anyone but the client. If theres a dispute about the $$$, it can never be paid out from an escrow acct.
must be unanimity among payees and payors or get a court order to get it out.
a. You have to retain meticulous escrow records, contemporaneous. Must segregate the stuff, too.
b. And, special thing to remember: as an escrow holder, often in a transaction, someone gives you a
down payment, client entitled to receive $$$ 1oth of the month. Client wants money ahead of time.
If you pay it out in the face of a dispute, you have breached your fiduciary duty, financially
responsible, committed an unethical act. You may never turn over disputed funds in the face of a
competing claim in the absence of a court directive. Must get an actual court order ordering you to
release the $$$,.
3. Under ABA rules, not required to have separated accounts for individual clients.
a. Banks can dump it all in one account. Or, master account with subaccounts created therein that
segregates the money into separate clients accounts, all under the same umbrella.
b. 1.15(c): a lawyer shall deposit into trust account fees and expenses that have been paid in advance
and may only be withdrawn when earned. Why isnt this in 1.5? ah well, they put it here.
c. If they pay me a retainer, I cant put it in my operating account, have to put it in escrow, and pull it
out as I earn it.
d. Lawyer cannot distribute money, however, when there is any kind of dispute. So if client says, you
didnt earn that money, I cant pull it.
e. 1.15 also says if youre fired, and you have money left, you have to tell client you have it left, issue
the hours you billed up to being fired, then give them a refund.
b. Administering estates and trusts
i. Rule 1.15 Escrow Rule and Property Holding Rule
1. (a) Stock certificate, wallet, watch, gold, jewelry, etc. to hold incident to your law practice. Must keep it
segregated from every other piece of property in your office.
2. 1.15 (b)
a. Must notify client or person that youre holding the $ (if they dont know already)

48

b. Shall promptly deliver to client or third person that they are entitled to receive
c. Upon request, must give account of what happened w/ money
3. 1.15(c)
a. If there is any dispute about funds in that account, a judge must rule on them.
4. If you borrow one penny for one minute from an escrow account you are disbarred.
a. This rule is the nuclear option. Means business.
Lawyers Duties to Courts, Adversaries, and Others
A. Can a good lawyer seek justice? Can a good person be a good lawyer? We dont care
a. Lawyers are commanded by language: lawyer must zealously advocate clients interests within in the bounds of the law.
b. Step one: do I take the case? Step two: if I take it, how zealous should I be? What are the limits of my conduct?
B. Investigation before filing a complaint
a. Required investigation by lawyers filing civil cases
i. May not file based purely on speculation. Facts need not be fully substantiated (Comment 2 lawyer may need to use
discovery), but must have some sort of evidentiary support.
ii. Rule 3.1 Meritorious Claims and Contentions
1. Lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in
law and fact for doing so that is not frivolous, which includes a good faith argument for an extension,
modification or reversal of existing law.
a. No phony causes of action, no phony defenses.
iii. FRCP 11(b): federal rule requiring that a legal theory must be warranted by existing law or by a non-frivolous argument
for extension, modification or reversal of existing law or the establishment of a new law.
iv. Differences between Rule 3.1 and FRCP 11
1. Sanctions: 3.1 results in bar disciplinary action. FRCP 11 punished by judge in civil action and can result in
nonmonetary or monetary sanctions.
2. Safe harbor: FRCP 11 has a safe harbor provision: if opposing party makes complaining motion against atty,
that atty may withdraw the allegedly frivolous pleading w/in 21 days and suffer no sanction other than paying
atty fees incurred in making the motion.
v. PENALTIES:
1. Rule 11: if groundless suit, may be subject to sanctions.
2. Attys fees: fed statute says that lawyer who multiplies proceedings in any case unreasonably may be required
to pay other partys attys fees.

49

b. Boyer v. KRS Computer & Business School, lawyer sanctioned for filing suit against employer (fired after made complaints about
him) w/o having checked w/ other employees to find out whether employer has actually eavesdropped or just been told by one
of them. It was phony stuff. (If the evidence is on its face silly, dont kick out of office: you have a duty to inquire.)
c. Parker v. Vigo County School Corp., Case turned on whether clients refusal to join the association had affected the countys
decision not to certify her. When suit was filed, no evidence that ISFSA had told her supervisor to cut her work hours. ISFSA
won SJ but lawyer was not sanctioned. Pointed to relationship and conversation between ISFSA and supervisor amounted to a
scintilla of evidence not enough to defeat SJ but enough to avoid FRCP 11 sanctions.
i. PROF: his standard on whether something is frivolous is the scintilla of evidence standard from Parker
d. Jiminez v. Madison Area Technical College, Claim of employment discrimination on race and sex. Client gave lawyer several
emails as evidence. Turned out to be forgeries. Court punished him by dismissing the case and requiring him to pay $16K:
lawyer should have realized that it was very unlikely that several professionals would make ungrammatical written
discriminatory statements. He should have subjected his client to rigorous questioning
e. Required investigation by prosecutors before charges are filed
i. Rule 3.8(a) Special Responsibilities of a prosecutor
1. The prosecutor in a criminal case shallrefrain from prosecuting a charge that the prosecutor knows is not
supported by probable cause.
a. May not file a criminal case without a belief, formed after due investigation, that there are good factual
and legal grounds for it.
ii. Defense: may nevertheless so defend the proceeding as to require that every element of case be established i.e., can
plead not guilty
C. Truth and falsity in litigation
a. The rules on candor to tribunals
i. Rule 3.3 Candor Toward the Tribunal (3.3 is a litigation driven rule. 8.4 covers everything you do as a lawyer)
1. A lawyer shall not knowingly
a. Make a false statement of material fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer;
i. Knowingly: denotes actual knowledge of the fact in question; may be inferred from
circumstantial evidence. Assume good faith of lawyer.
ii. E.g., not correcting name in case of D giving false name upon arrest.
iii. If lawyer finds out she made a mistake she must correct it.
iv. Material fact: what someone ate for breakfast is not material. Everything else in the universe is.

50

b. Fails to disclose to the tribunal legal authority in the controlling jx known to the lawyer to be directly
adverse to the position of the client and not disclosed by opposing counsel. (the opposing counsel
doesnt have Lexis or Westlaw rule)
i. Adverse controlling authority against you, your adversary doesnt cite it, must you? Yes.
c. Offer evidence that the lawyer knows to be false. If a lawyer, the lawyers 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 tribunal. A lawyer may refuse
to offer evidence, other than the testimony of a defendant in criminal matter, that the lawyer
reasonably believes is false. (MONSTER, SAYS THE PROF: HUGE. NY ADOPTED LAST YR.)
i. Must actually offer the evidence. Allowed to ask questions that may lead to a false inference.
ii. Its the rules version of knowledge. Its not strongly suspect.
1. Anything short of knowledge permits you to offer the evidence.
iii. Lawyer who knows client or other witness is gonna lie cannot allow them to.
1. If they do lie, lawyer can call on them to correct the lie, and if he doesnt, lawyer must
correct it.
2. Reasonable remedial measures: leave it open to lawyers discretion. That may mean
forget about 1.6.
iv. In crim case, lawyer must allow def to testify if the lawyer reasonably believes but isnt certain
that the evidence is false.
v. Applies to trial testimony, depositions, and other testimony related to adjudication.
d. Even broader, if you rep a client in adjudicative proceeding and know they engaged or intend to engage
in fraudulent or criminal testimony related to the proceeding, have a duty to take remedial measures,
incl, if necessary, disclosure to the tribunal.
e. Duties stated herein continue to conclusion of proceeding and apply even if compliance requires
disclosure of info otherwise protected by Rule 1.6.
i. when does my duty to correct end? They continue to the conclusion of the proceeding, even if
you must reveal info.
ii. What is a proceeding? In NY, the proceeding is through the end of the appeal
f. In ex parte proceeding, lawyer shall inform tribunal of all material facts known to the lawyer that will
enable the tribunal to make an informed decision, whether or not facts adverse.
i. i.e. when you go to get a temporary restraining order, or a search warrant, you will go alone.
There are many forms of relief where the other side is not there.

51

ii. When youre there alone, youre saddled w/a responsibility, and its this rule.
iii. Whether you like it or not, you have to put all the relevant facts before a judge
ii. Rule 8.4(c): general deceit/candor rule: it is professional misconduct to be dishonest, fraudulent, deceitful or to
misrepresent.
1. Bans on deceit and misrepresentation may be broader than Rule 3.3a1 ban on false statements.
iii. Rule 3.4(b): shall not falsify evidence, counsel or assist a witness to testify falsely.
1. Witness preparation: you may shape it, but not create it.
2. Is it OK to meet with witnesses and coach them. So long as I dont know the actually falsity of the testimony. If I
dont know theyre lying then its OK
b. Which rule applies when?
WHICH TRUTH TELLING RULE APPLIES
WHO MIGHT LIE OR DECEIVE
SITUATION (COURT, ADMIN HEARING,
LAWYERS OBLIGATION.
OR DISCOVERY)
Lawyer
Lawyer is considering making a false
The lawyer must not do it. Rules 3.3.a1,
statement of fact or law to a judge.
8.4.
Client
Lawyer knows that her client is
Lawyer must counsel client and refrain
considering testifying falsely in court or
from asking client questions that would
in a deposition.
elicit the false testimony. Rule 3.3a3.
Civil Client or witness in any proceeding
Lawyer suspects but does not know that If lawyer reasonably believes it is false,
planned testimony may be false; witness lawyer may refuse to offer the testimony
is not criminal defendant.
or may allow it. Only if actually knows
its false must lawyer refrain from
offering testimony. Rule 3.3a3.
Criminal defendant
Lawyer suspects but does not know that If defendant insists on testifying, the
planned testimony may be false; witness lawyer must allow it even if the lawyer
is criminal defendant.
reasonably believes it is false. Rule
3.3a3.
Client or witness
Lawyer knows that her client or other
Lawyers must counsel client to correct
witness has testified falsely during direct the record; consider withdrawing;
or cross-examination.
correct record if necessary to undo the
effect of the false evidence Rule 3.3b

52

and c, and Comment 10.

Witness has misled the court by making
Lawyer may have duty to counsel client
statements that are literally true but
and correct the record. Rules 3.3b, 8.4c.
deceptive.
Lawyer
Lawyer knows of directly adverse
Lawyer must bring it to courts attention
controlling legal authority that has not
(and distinguish it or explain why it is not
been disclosed by opposing counsel.
authoritative). Rule 3.3a2.
lawyer
Lawyer knows of facts adverse to clients No need to disclose unless the
interest, not requested in discovery or
proceeding is ex parte. 3.3d.
required to be disclosed by a court rule.
D. Concealment of physical evidence and documents
a. Rule 3.4(a) Fairness to Opposing Party and Counsel
i. In criminal cases, prosecutors may not use discovery to obtain info from defendants.
ii. Rule 3.4(a) Fairness to Opposing Party and Counsel:
1. A lawyer shall notunlawfully obstruct another partys access to evidence or unlawfully alter, destroy or conceal
a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another
person to do any such act.
iii. Doesnt prohibit all concealment or destruction of evidence; only unlawful concealment or destruction.
iv. Only prohibits concealment or destruction of material having potential evidentiary value.
v. Concealment of evidence is a violation of the ethical rule only if the lawyer already has some obligation to disclose it
(evidence is subject of discovery request to which no objection has been made, for example).
1. Only prohibits unlawful concealment or concealment having potential evidentiary value. What is unlawful?
a. Defined by Jx
i. APA: only if already has some obligation to disclose it or turn over to law enforcement
ii. If it would violate a criminal obstruction of justice state, a court order, or compliance with a
discovery request
2. (a) tells you that once you take evidence, youre stuck w/it. Youre a stuckee. You shall not obstruct another
partys access to evidence, you cant destroy or conceal things, alter things. Its not good for your career to
destroy evidence.
a. Shall not counsel or assist another to do this.
Client or witness

53

b. So do I have to take the pics? No. Its not in the rules. But once you take it: Im a stuck-ee. Once I have
it, I have to do certain things.
i. Also, you cant counsel another to destroy evidence. You cant suggest to person if someone
finds those pics, youre going to jail, bud.
ii. Heres what you can say: Im not asking for it. If you want to give it to me, I may not be able to
give it back to you. It may become evidence. I didnt ask for it. But if you give it to me, I will
take it.
iii. Once you touch it, youre in possession of it.
c. How about client comes in to office w/a gun and cocaine?
i. You say, I dont want it, but if I take it, I have to take it to the authorities. I become a bailee
when I take it.
ii. I cant tell you how to handle that stuff, its contraband.
1. State law: once you take it, you have to turn it over to authorities.
2. Its not unlawful under ethics, its unlawful under state law.
iii. Do you have to tell law enforcement where you got the evidence from?
1. Lawyers are rewarded for bringing in evidence.
2. You cant be a witness in case where youre repping someone.
3. So, who will prosecution call as witness in case on this?
iv. Lawyer is rewarded by court ordered stipulation forced on prosecution:
1. It is hereby stipulatedthe defendant gave to a third party the contraband that is
marked as state exhibit A, and is received in evidence.*you arent named+.
v. When might you have to take evidence or get an it depends? competence and diligence:
have the skill to understand what to do and do what you have to do, if a client says I have a
picture of myself and my kids, question becomes is not taking the evidence recognized by other
lawyers in the field as not satisfying the duty to the client? Would that see that as malpractice?
Competent and diligent lawyers would take that evidence.
vi. Rule 3.4: governs how you act inside a law office, a courtroom, etc. (stick to the evidence)
1. (a) unlawfully obstruct another partys access to evidence or unlawfully alter, destroy or conceal a doc or
other material having potential evidentiary value; a lawyer shall not counsel another person to do such act;
2. (b): dont falsify evidence, and dont counsel a witness to testify falsely, dont offer an inducement to a witness
that is prohibited by law. (CANNOT BRIBE)

54

3. (c): should not knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based
on the assertion that no valid rule exists.
4. (d): in a pretrial procedure, cannot make a frivolous discovery request or frail to make a diligent effort to
respond to a discovery request.
5. (e): shall not allude to any matter that the lawyer does not reasonably believe is relevant or that will not be
supported by admissible evidence. Cant play the religion card, the race card. Not relevant! Cant refer to
evidence that is inadmissible. Not allowed to use the I word. May not assert personal knowledge of facts in
issue, nor may you state a personal opinion.
a. Dont bring personal shit into it. The fact htat a lawyer came all the way back from Fla to rep his
nephew (prof Hypo) is interesting but also irrelevant
b. You cant stand in front of the jury and say I know the truth and you know the truth
c. You cant say your own view of the justice of a cause
d. You cant state an opinion about the credibility of a witness (you can call someone a liar, but you cant
say we all know this guy is a liar)
e. Can say the evidence will show that this guy killed his wife, for example: that way, if questioned, you
can say I was only referring to the evidence
f. In NY, (e) extends to all proceedings, not just at trial.
g. 8.4 Comment 3: (prof: by the way, a comment isnt even a rule,so one could argue that no one is bound
by it)
i. This comment frowns on bias or prejudice when such actions are prejudicial to the
administration of justice
ii. HYPO: questioning a person of Arab descent on stand and trying to incite prejudice (youre not
from this country, are you) is no go
b. Duties of criminal defense lawyers with respect to evidence of crimes
i. State v. Olwell, Defendant in murder trial gives his lawyer the murder weapon, a knife. Lawyer held in contempt for not
answering subpoena. Appellate court reversed b/c subpoena was not drafted properly, but gave guidance:
1. Olwell could have kept it for a reasonable period of time for purposes of examining it and conducting tests on it.
After, should have turned it over to prosecution at his own initiative as an officer of the court.
a. If I hold it too long its an act of concealment.
2. To encourage lawyer-client confidentiality, said the prosecutor should take extreme precautions to make certain
that the source of evidence is not disclosed in the presence of the jury.

55

ii. In re Ryder, Defendant robbed a bank. Lawyer moved evidence from Ds safe deposit box to his own so law enforcement
would not find it. Barred from practicing before federal court. Court said this is obstruction, unethical.
iii. People v. Meredith, Lawyers investigator retrieved evidence from trash can, turned it over to police. D tried to argue
the testimony of investigator was privileged, court said no. THIS IS NOT A COMMUNICATION.
iv. Morell v. State, Written kidnap plan. Lawyer withdraws from case, then helps law enforcement catch D. D appeals
claiming that lawyrs actions violated his constitutional right to counsel. Alaska S.C. says no, applied Olwell, held that
lawyer had a duty to turn it over even w/o being asked for it.
c. Evidence of wrongdoing by a non-client
i. Rule 4.4 Respect for Rights of Third Persons
1. In representing a client, a lawyer shall not use means that have no substantial purpose other than to
embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights
of such a person.
a. Mentions Subin: When in well of court making an argument, you can make arguments that seek to
deceive the jury: are lawyers entitled to defeat the truth? Lawyer must advance his or her clients
interests w/in the bounds of the law; If a trial is a search for truth, you are not on the search party
b. Can you try to make a truthful witness look like theyre mistaken or theyre lying?
i. Yes, you must do it to advance the interests of the client w/in bounds of the law.
ii. Does 8.4 prohibit you from trying to twist the truth?
1. Says not to engage in conduct involving dishonesty.
a. But this is not dishonest.
iii. How about 4.4? 4.4a: in repping a client, a lawyer shall not use MEANS that have no substantial
purpose other than to embarrass, delay
iv. But you can humiliate a witness to get your client off. Yes, you can. This rule is anti-respect for
rights of 3d persons, really. The only time well stop you from harassing the client is when
youre only harassing the client, etc.
v. use methods of obtaining evidence: can I send my client in to steal evidence from a client?
Divorce case, can I send wife in to get IMs from husband? No. you cant tell your client to steal
evidence: it will burden, harass, embarrass.
c. Rule 3.3(a)(3): cannot offer evidence that lawyer knows to be false
i. Offering a false message, but not evidence. Truthful evidence, false message. So you are okay.
d. Rule 8.4(c): professional misconduct to engage in fraud, deceit, etc.
i. Now youre getting close. You are deceiving the jury.

56

ii. Argument has been made that this is violating the rule, but this is a minority.
iii. This rule was aimed at stopping you from lying, cheating, and offering false evidence. Never
intended to stop you from arguing creatively for your client.
e. Also, can bring up a witness credibility their credibility is always relevant.
f. Majority says: as long as the evidence is in the record, you are permitted to make fair arguments.
g. So long as you dont offer false evidence you are allowed to advocate your clients position.
2. A lawyer who receives a document relating to the representation of the lawyers client and knows or
reasonably should know that the document was inadvertently sent shall promptly notify the sender.
a. A lawyer may not possess stolen property, however, if client says to me, I didnt steal it, I had a legit
reason for having it, Im allowed to say I believe my client (as absurd as that sounds)
i. He uses a racy pictures HYPO involving former employee and racy pics of millionaire boss that
he kept
b. ETHICS RULES ABSORB LOCAL LAW: might be extortion for example if NY law says it is.
d. Concealment of documents and evidence in civil cases
i. A more limited obligation than criminal. Discovery!
1. Rule 3.4(d) Fairness to Opposing Party and Counsel
a. A lawyer shall notin pretrial procedure, make a frivolous discovery request or fail to make reasonably
diligent efforts to comply w/ a legally proper discovery request by an opposing counsel.
E. Improper influences on judges and juries
a. Rule 3.5: a lawyer shall not seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
communicate ex parte w/ such a person except as permitted by law; or engage in conduct intended to disrupt a tribunal.
i. 3.5(a): dont corrupt or improperly influence a judge, a juror, or prospective juror
ii. 3.5(b): cant communicate ex parte w/such person (w/out other lawyers around) unless authorized by law or court order
iii. (c): communicate w/ a juror or prospective juror after discharge of the jury if:
1. (1) communication is prohibited by law or court orders;
2. (2) juror has made known to lawyer a desire not to communicate
3. (3) communication involves misrepresentation, coercion, duress or harassment.
4. (d): engage in conduct intended to disrupt a tribunal
a. If youre running late, common understanding you can call to let them know.
b. Each jurisdiction has different rules in this borough, you can speak to the jury after the jury is done. In
federal court: no way. Each jurisdiction is allowed to develop their own rules on that

57

iv. Sometimes can have an ex parte in camera meeting w/ a judge, under special circumstancesmust still be careful not to
violate Rule 1.6.
b. Rule 3.7: Lawyer as Witness
3.7 Lawyer as Witness (37 percent of time used to get lawyer excused from the case)
Rule Language
Authors Explanation
(a)A lawyer shall not acts as advocate at a trial in which
Maybe its a K case and I helped a company in litigation in
the lawyer is likely to be a necessary witness unless
drafting the Ks
Also, this is for a trial, not a hearing
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal
services
(3)disqualification of the lawyer would work substantial
hardship on the client

(b)a lawyer may act as advocate in a trial in which another

lawyer in the lawyers firm is likely to be called as a witness
unless precluded from doing so by 1.7 or 1.9

OK here b/c your credibility is not at stake

If a lawyer wins a case and is filing a petition for atty fees,
for example, to be paid by the losing party, may testify
about how much time he spent on the case
Lawyer who has handled the financial affairs of a client
with a mental disability might seek to testify for the client
in a small tax claim where the lawyer had personal
knowledge of the issues and was representing the client
pro bono, no one else would
you may advocate in a trial where another lawyer in my
firm is testifying b/c the jury doesnt have to know that,
they would be influenced whether they know it or not

F. Communications with lawyers and third parties

a. Cannot DIRECT nonclients but you probably could request
i. 3.4(g or f), when relative employee or agent of client an reasonably believe the clients interests would be adversely
affected
1. (f): request that a person other than a client to refrain from voluntarily giving relevant information to another
party unless:
a. person is a relative or an employee or other agent of a client; and

58

b. lawyer reasonably believes that the persons interests will not be adversely affected by refraining from
giving such information.
ii. Cannot tell them to not talk to them. Can advise them that it is up to them that they could be embarrassed, blah blah
b. Can a lawyer lie in furtherance of a case or for a good purpose? NO!!!
i. Rule 4.1 Truthfulness In Statements To Others In the course of representing a client a lawyer shall not knowingly:
1. (a) make a false statement of material fact or law to a third person
a. Can lie if its immaterial (what client had for breakfast)
ii. Does it say theres an exception for lying if its for a good purpose? No. 8.4 has no such exception either.
1. HYPO: the woman who traded places w/a civilian w/knife to throat by lying that she was an ADA, she wasnt, she
got in trouble for it. Amazing. You can never lie for a good purpose, however; you may not lie to save a life
iii. But there are 3 judge-generated exceptions:
1. Undercover investigation; law enforcement officers
2. If someone is misusing or selling intellectual property, can send an undercover investigator. Just like a cop if
its IP.
3. Permit lawyers to test for discrimination
c. What about in negotiations?
i. Depends on general conventions in the context.
1. Rule 4.1, Comment 2: puffery is a carve-out from lying rule.
a. Implied statement in all settlements that your client is ALIVE
b. Comment 2: the rules refer to statements of fact; whether its a fact depends on the circumstances
i. Certain types of statement in negotiations are not taken as statements of fact
ii. These dont have to be facts
iii. Another carve-out for the truth
iv. Lying in negotiation is such a big part of it that when youre in negotiations you assume lies are
happening
v. But a counselor cant lie about how many witnesses theyll produce at trial or how much
insurance client has, that sort of stuff, not negotiated stuff
d. Restrictions on contact with represented parties
i. Rule 4.2: in representing a client, a lawyer shall not communicate about the subject matter of representation w/ a
person the lawyer knows to be represented by another lawyer in the matter, unless
1. The lawyer has the consent of the other lawyer or (not from the client!)
2. Is authorized to do so by law or a court order.

59

3. Here, you have a kind of affirmative duty to find out if they have a lawyer
a. If it turns out that you suspected someone had a lawyer, likely the committee will decide that in your
heart of hearts, you knew
b. Remember knowledge definition: can be inferred by the circumstances
c. You cant lie: but if someone calls you up and asks you is the witness cooperating, you can say do I
look like the phonebook to you?
ii. Must ask: are you represented?
iii. Re: talking to witnesses (llike to the people who worked on brakes in Toyota case if your client is a Toyota driver who
crashed): CAN YOU talk w/someone whos repped by another
1. It is brutally simple rule 4.2: shall not communicate about subject of representation w/person lawyer knows to
be repped by another lawyer in the matter
a. Again with the knowledge standard
b. You cannot put your head in the sand, however
i. Has to be a lawyer in this matter
ii. Court can in some instances give me permission
iv. How about members of a corporation? How high do you have to be in the corporate food chain to be someone I cannot
interview if Im suing Toyota? Who can I interview?
1. Each state has a definition of how high up in food chain you have to be before you become an alter ego of the
client
2. Comment 7 to 4.2: HE SAYS YOU HAVE TO KNOW THIS ONE.
a. If youre someone at company who regularly talks with company lawyers, stranger lawyer s cannot talk
to you. Youre too important.
b. If there is something about your position that makes you high enough in organization to obligate or bind
Toyota an outside lawyer cannot talk to you
c. If your act or commissions may be imputed to the organization: if the case is about faulty brake pads
and youre in charge of brake charge operations
3. You can talk to a guy on the assembly line, though; you can ask hows quality control here at Toyota? but you
have to proceed with caution.
4. Compare With: applicable law on atty-client privilege: Upjohn: if party wants to compel corporation to produce
docs prepped by the corporations lawyer as part of an internal investigation:
a. Corp may deny access to documents reflecting communications between the corporations lawyers and
employees if the communications are within the scope of the atty-client privilege

60

5.
6.
7.
8.

Prevents end runs by lawyers around other lawyers to get info from the other lawyers clients
Applies to all contacts with represented persons, not only to parties in litigation
Applies to communications initiated by the lawyer and to those initiated by the represented person
If a represented client contacts a 2d lawyer to obtain a 2d opinion or to explore changing lawyers, the second
lawyer may talk to the represented client.
9. If a lawyer starts a convo w/another person erroneously believing that the person is unrepresented, the lawyer
must end the conversation upon learning that the person has a lawyer
10. Rule applies only to communications with persons known to be repped by a lawyer in the matter that is the
subject of the communication; lawyer may communicate w/the person about other subjects, even closely
related subjects, if they involve a different matter.
11. Lawyer cant circumvent the rules by directing someone else to talk to the person
e. Restrictions on contact w/ unrepresented persons
i. Rule 4.3
1. Do not mislead another person that you dont represent your client
2. Do not state or imply that lawyer is looking out for best interests of both other person and client
3. If you know that the person doesnt understand the lawyers role, the lawyer should correct any misimpression.
4. If there may be a conflict of interest between the client and the person with whom the lawyer is communicating,
the lawyer must refrain from giving any legal advice except the advice to obtain independent counsel.
5. Allow lawyers to give advice to that narrow group of people whose interests are aligned with our clients.
6. Cant give them legal advice except go get a lawyer
f. Trial Publicity (Rule 3.6a and 3.6b)
i. 3.6(a): a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an
extrajudicial statement that lawyer knows or reasonably should know will be disseminated by means of public
communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the
matter.
ii.

(Rules he likes: 4.1, 4.2, 8.4 and 3.3)

PRO BONO
Doing something for free or at a reduced cost.

61

Most jx not required to do it

Model Rules: every lawyer under rule 6.1 has a professional responsibility to provide legal services to those who cannot pay. You
should aspire to perform 50 hrs per year
RULES THAT IMPACT THE PRACTICE OF LAW
1. Advertisements
a. Almost every law firm has a website
b. 7.2: lawyer may advertise through written recorded electronic communication
i. 7.2b: you cant pay people money for bringing you a case: ambulance chasing;
ii. When you can pay people:
1. Reasonable costs of ads and communications;
2. Usual charges of a legal service pland or a not-for-profit or qualified lawyer referral service
3. Pay for a law practice;
4. Part 4: a new provision: reciprocal referral arrangement: what you can do is say to another lawyer: if you send
clients to me, Ill send them to you; what that means is let us assume theres another lawyer who sends me
cases, I send them cases in return; I can have a relationship w/another pro whos sending me work and I send
them work as long as its non-exclusive
a. That is, I cant send you all my work: the other lawyer may not be right for a particular case
iii. Bottom line in this rule: dont lie
2. SOLICITATION
a. 7.3: soliciting clients; you cant go up to someone and say, wow, you just got sued by the SEC, I think you should hire me; cant
send them an email, get on the phone, in person, when significant motive for that communication is gaining business
i. Can do it if:
1. can ask another lawyer for work, however; a family member; someone with whom you have a close personal
prior professional relationship; these solicitations are OK
2. You can send letters: written, recorded or electronic communications of this sort should include the words
advertising material on the outside envelope
3. 7.1: Communications Concerning a Lawyers Service:
a. problem in ads: deception and omission
b. Lawyer acc to this rule cant be false or misleading in communication
c. Material misrepresentation, or omission that causes material misrepresentation
i. The standard (whats in the ad) is measured by what the public would know
4. 7.4 (talk about absurdity, says prof): Im allowed to tell you I practice criminal law, Im allowed to tell you I dont
-

62

a. (b) lawyer who is certified and a specialist in a field can say, for example, Im a patent lawyer
b. Prof: specializes in ethics, but unethical in NY to say Im a specialist in ethics
i. In NY, hes preeminent in ethics; but in NJ, I cant say Im preeminent in ethics
MJP: Multiple Jurisdictional Practice
Travel can be a problem. Can a lawyer go to another state and practice law?
- Not admitted to practice in other states
- Each state requires lawyers to be admitted to practice law (civil and criminal provisions)
- Rule 5.5: Rule that permits lawyers some leewayits a doozie.
o (a)Lawyer shall not practice in a jx in violation of the regulations in that jx; and shall not send another to do so.
You cant open an office in the other jurisdiction
You cant hold yourself out to the public as being admitted to practice in that jurisdiction
o Exceptions:
Aimed principally at people having ongoing presence in the state
Admitted in another jx and is not disbarred or suspended, may be provide legal services on a temporary basis in
another jx when:
Services are undertaken in association with a lawyer in that jx
Services provided are reasonably related to a pending or potential proceeding in another jx when I or
another lawyer is authorized to do so.
o E.g., NJ case, doing a depo in CA, admitted in NJ
o Dont have this exception in NY
Reasonably related to the practice in which I am admitted
E.g., interview a witness in Michigan to bring a NJ lawsuit
o Basically allowed to temporarily travel to another jx if youre affiliated w/ somebody there or what youre doing is affiliated
w/ something ongoing in NY or will be ongoing in NY where you are admitted.
d) lawyer admitted in another jurisdiction and not disbarred or suspended may supply legal servicein this jurisdiction
if theyre provided to my employer or organization in this jurisdiction or if its authorized by fed law
but still not allowed to go to court: if I want to file a lawsuit, I have to be a lawyer in good standing in that state
Most states have adopted this rule. Not NY.
Traveling to another jx is something you must be aware of be sensitive to whether you can do it.
Remain subject to the most stringent rules applicable.

63

5.5d2(?) lawyer admitted in another jurisdiction and not barred or suspended from practice in any jurisdiction may provide
legal services in that jurisdiction provided:
That they are provided to the lawyers employer or its organizational affiliates and are not services for which the
forum requires pro hac vice admission; or
Are services that the lawyer is authorized to provide by fed law or the other law of this jurisdiction
b/c of supremacy clause, states cant regulate practice of law in fed ct. if Im admitted lawyer, I can go to
fed ct wherever and do what I do as long as I follow the rules, and state cts cant do a thing about it
federal law trumps state law
EXAMPLE: can go to Calif and go to fed ct, but cant go to state ct

RELATIONSHIP WITH JUDGES

1. Relationship between their rules and your rules
a. Rule 1.2: judge must promote confidence in the judiciary
i. Alter ego to advancing clients interests within the bounds of the law
ii. So a judge cant ride on a donkey dressed like a clown
iii. Cant be in a bar like a topless bar
iv. EXAMPLE: fed judge w/racy photos on his web site (nude; weird)
1. Of course, judge has life tenure
2. The judge for the website received a letter of caution: it didnt promote confidence
3. Judge cannot lend his or her prestige to any cause
a. If you want to lend money or time to a cause, you have to do it anonymously
b. Can a judge be a keynote speaker at an ASPCA event? Probably. How about the NRA?
b. There are rulings (upstate) that allow lawyers to go golfing w/judges, to dinner, etc., so long as judge prefaces time in court by
saying I went golfing with him
i. In some communities, that would knock out half the judges
ii. NY allows for some fraternization
iii. As long as judge discloses it
c. There are rules on consanguinity: not repping relatives
d. Cant rep a judge three years after appearing before him
2. Impartiality and diligence:
a. Judges must resolve cases in a timely manner.
b. State court: big load of work, little support: but you gotta get your work out.

64

3.

4.

5.

6.

i. If you dont you could get in trouble.

c. Judges dont have leeway to do silly things: get in fights, go to bar and get drunk, get into fight with state trooper, judge writes a
book lambasting certain people or expressing prejudices: none of this is good.
Judges are supposed to treat those in front of them with respect.
a. Doesnt always work that way.
b. Judges have life tenure as a federal judge: you can say what you like.
c. State court judge: you have to watch what you say a bit more. How you act. You could get reported.
i. People are reluctant to report judges. Could come back and bite em in the ass.
Judges cannot comment on a pending matter. They are not at liberty to defend themselves for public criticism.
a. If judge is defamed in NY Post: too bad.
b. Whether we like it or not, theyre gatekeepers: but they dont defend themselves.
There are rules that prevent judges from influencing the proceeding.
a. Provoke response rule: if judge yells at me, I can yell back.
b. Can judge say thats a crappy argument: we expect them to be fair and impartial, but we dont expect them to be potted
plants. Not prejudice: can represent judge fairly responding to the evidence before him.
What do we expect from judges expect via 8.3? (the reporting rule)
a. There are lots of horrible lawyers appearing in front of a judge
b. So, lawyer goes to court, sees horrible lawyer there.
i. Lots of stuff happening:
1. Lawyers going to court have lots of duties: diligent and confident
2. Do they have to be great? No. not even good, fair; can be bad, can be really bad.
ii. So if the lawyer does a horrible job, if horrible does a job that falls below the minimal level of confidence? 8.3: duty to
report unethical behavior by other attys
1. We have a duty to report misconduct
a. Misconduct can be incompetence, lack fo diligence
b. Lawyer who knows another has violated rules: raises substantial question as to that lawyer sfitness
iii. Do we report the guy?
1. Well you need knowledge, too. Do we have knowledge that this was a terrible job? We may not know.
2. Lawyer only has duty rises to level where theres a substantial question as to fitness of other lawyer.

BOTTOM LINE: FIDUCIARY!

Person in trust position who is not supposed to put their interests ahead of their clients. Always important to consider this besides the rules.

65

EXAM TIP: DONT ANSWER A QUESTION ITS YES ITS NO ITS IN THE MIDDLE. HE WANTS US TO TAKE A SIDE.
REVIEW:
GENERAL: SPOT THE CONFLICTS: ASK WHAT SORT OF CONFLICT IS AT ISSUE.
FITNESS AS A LWAYWER AND PREJUDICIAL TO ADMINSTRATION OF JUSTIC E ARE NOT FREQUENT ANSWERS ON
HIS EXAM.
CAN I VISIT CLIENT IN JAIL AN DKISS THEM? SEX W/CLIENT, VULNERABL ECLIENT, IF THERES NO CONTACT
RULE AT THE PRISON IS THIS AN 8.4 VIOLATION: GOVERN SRULE VIOLATIONS, CRIMINAL CONDUCT, CONDUCT
PREJUDICIAL TO THE ADMINISTRAIOTN OF JUSTICE
CONFLICTS
CONFIDENTIALITY
AND OTHER RULES
Can I dupe the jury? Not only can I do it, I must do it.
But speaking to judge or lawyer, I can never lie.
For the most part we cannot lie
What is our responsibility to the litigation process?
Once client says, look the truth is and youre saddled with the truth, its rule 3.3
When someone tells you something and you know something to be X, false doc or false statement, you must take reasonable remedial
steps, though we dont tell you what they are, but they are remedial
NO RULE EMBRACES MORE OF WHAT LAWYERS DO THAN CONFIDENTIALITY. HE REALLY SERVES THIS ONE UP.
Confidentiality does not equal privilege.
Under 1.6can never reveal w/out express implied authority
Everything I learn during course of lititagition: confidential. Went on lexis: confidential. Talked to secretary: confidential.

66