LIMITATIONS ON ZEALOUS REPRESENTATION

FRIVOLOUS CLAIMS, DEFENSES & MOTIONS

Rule 3.1 Requires that lawyers do not engage in frivolous legal proceedings
Frivolity applies to not only complaints but answers, motions and other steps
o Does NOT apply to criminal defendants
A lawyer can advance any non-frivolous interpretation/claim of law that favors a client
o Cannot present frivolous claims, defenses, or motions
o Cannot make frivolous discovery requests or fail to make a reasonably diligent effort to
comply with discovery requests
o A good faith argument for extending, modifying, or reversing existing law is permitted
Court Powers
o Courts can hold a lawyer in contempt for violations
Because something was unsuccessful does not make it frivolous
o FRCP 11 requests that every pleading and motion must be signed by the lawyer, this
signature certifies that it is accurate in fact and law, and it is not filed for improper reasons
Criminal Trials, Special Duties
o The prosecutors obligation is not to bring charges if she knows that they are not supported
by probable cause
o The defense counsel, advocates for their clients position so as to put the burden of proving
advocacy is not frivolous on the prosecution
Expediting Litigation
o Rule 3.2 A lawyer must make reasonable efforts to expedite litigation that is consistent
with the interests of the client [very weak rule]
o If delay may harm your clients interests, you should inform your client about your need for
delay
Tort Liability for Frivolous Law Suits
o Malicious Prosecution
Originally you could not get the lawyer or malicious prosecution, but now in many
states you can
With medical negligence make sure you get an expert in the industry before you
file
Fairness to Opposing Counsel
o You cannot unlawfully obstruct access to, alter, or conceal evidence or witnesses, you
cannot encourage a witness to testify falsely
If a client asks you to take possession of physical evidence of a crime, you may do
so for a reasonable amount of time in order to look at it
However, you must not alter or destroy it, and after you have had the opportunity to
examine it, you must either return it to the site or notify the prosecutor that you
have the evidence
INVESTIGATION: CONTACTS WITH EMPLOYEES
HYPO; Investigation: Contacts with Employees
Had fire at restaurant, lawyer representing people suing restaurant. Employees have been told
not to talk to you, and restaurant is represented by counsel
There is a former employee, was a manager, whistle blower
Prohibition of Communication with a Person Represented by Counsel: Purpose and Scope
Cannot mislead them, cannot have your investigator mislead them

If you cannot talk to them, no agency of yours can either

o Exception: client can approach other client directly
Off Limits Without Opposing Counsel
o Management is counted as off limits from investigation without going trough opposing
counsel
o Employees that may have personal responsibility, been an actor in the event, are likely off
limits without opposing counsel
Maybe Off Limits
o Employees not associated with the event which occurred, so ordinarily not off limits
o Vicarious admissions old comments are not okay, new comments are okay to contact
Not Off Limits
o Former employees
Not off limits, generally
o Employees not directly involved in the event
Rule 4.2 New Comments
o Comment 7 states: in the case of a represented organization, rules prohibit
communication with the constituents that communicate with representation on a
regular basis or whose acts or omissions may impose civil liability on the organization
[says nothing of vicarious admissions by employees not associated with the event]
o Consent of the organizations lawyer is not required to communicate with former
constituents
Ex Parte
o Interviewing without opposing counsel present; do this as much as possible
Cheaper and easier to get information; just make sure you are not interviewing
someone that you have to get consent before or opposing counsel must be present
Application of the Prohibition on the Communications with an Opposing Person to Former
Corporate Employees
Rule 4.2 with the new comments, the rule does not prohibit communications without consent of
opposing counsel to communicate with former employees default rule
o If they are possessed of attorney-client privileged information, you should not induce a
breach of confidentiality
o You should make an inquiry on the offset if there is a confidentiality agreement binding
the former employee
COMMUNICATIONS WITH NON-CLIENTS
Truthfulness in Statements to Others
You cannot knowingly make a false or misleading statement of material law or fact to a third party
o Your statement cannot pass along false information provided by others if you know it is
false
o Rule 4.1[a] applies only to statements of material fact, not opinions
Communications with Represented Persons
If you represent a client and you know that another person is represented by their own lawyer, you
cannot communicate with that person about the matter, unless the other attorney consents or the
contact is authorized by the court or law, Rule 4.2
Rule 4.2 does not bar the client from communicating to the other party directly
o And you can/should advise your client about contacting them
Rule 4.2 stops you from being able to contact current employees, but it does not apply to former
employees

Communications with Unrepresented Persons

If a person has no lawyer, on behalf of your client, you cannot state or imply you are disinterested
Ordinarily, you should not provide legal advice to an unrepresented person if you know or
reasonably should know that the interests of your client and the unrepresented person have a
reasonable possibility of being in conflict
Respect for Rights of Third Parties
You cannot use means that serve no substantial purpose other than to embarrass, delay, or burden
third parties
SECRET RECORDINGS
Legality of Secret Tape Recording
Before secretly recording if legal, you can likely have the client do it. Must check in the state
you are in, most common: a one party consent state
Secret Tape Recording
o ABA Opinion 337
Lawyer could not secretly tape record relied on Rule 8.4
o ABA narrowed 337
Ok for criminal defense attorney to record witness testimony secretly
Client can secretly tape record and lawyer can advise as long as legal
The Ethical Propriety Of Participation By Lawyers In Secret Tape Recording That Is Not Illegal
ABA Opinion 01-222
o Overruled 337
Said that its ok to secretly record, cant lie if asked, as long as its not illegal
Still cant secretly record client, have to have consent for that
o Many states still follow the no secret recording rules
01-222 is still new
Counseling Or Assisting A Client In Secret Tape Recording
Legality
Fed & KY One Party Consent
o Its legal to secretly to tape record as long as you are a party to the conversation
So cant tap phone line- b/c not a party to conversation
On this doesnt matter if spouses, still cant tap
In some states everyone has to consent
o Cal is a felony its a felony to secretly record
o Maryland its illegal if you know the law, if you dont know the law youre ok
Use of the Internet to Gather Information
Great place to get discovery cannot use deceit or lies to get information
DISCOVERY ABUSE
The Problem of Discovery Abuse Common Abuses
Lawyer constantly interrupting to clue the client in to what they should be saying
Private off the record conferences
To fix, let it continue, get on record, this will strengthen your position when you go to the judge
Discovery Abuse in Connection with Interrogatories and Requests for Production of Documents
Constantly interrupting to communicate with client
o Attempting to control what responses are given
o Making too many private, off the record, conferences

Discovery Abuse in Deposition Practice

Can prepare for deposition, cannot coach
o Cannot give document telling client how they should respond to questions
Basic Instructions Guidelines
o Can instruct witness to ask questions of you, so they are not constantly asking their lawyer
what the questions means, decreases the number of situations where the opposing lawyer
can interpose
o All objections except those that would be waived if not made at the deposition shall be
preserved
o Not supposed to tell the client not to answer certain questions, unless counsel believes the
answer is protected by privilege
o Counsel shall not make an objection or statement which suggests an answer to the witness
o Should not have private, off the record, conference unless its about whether to assert
privilege
If private conference is in violation, then the lawyer can ask questions to ascertain
if coaching occurred
Violations shall be noted in the record
o Deposing counsel shall provide to the witnesss counsel a copy of all documents shown to
the witness during the deposition
Professional Standards for Conducting Discovery and Techniques for Dealing with Discovery
Abuse
o Judicial Sanctions
o Exploitation: destruction of evidence
o Fines
o Some States have Tort Liability
INADVERTENT DISCLOSURES: ETHICAL AND LEGAL ISSUES
Ethical Obligations of a Lawyer who Receives Inadvertent Disclosure
ABA opinion 92-368
o If a lawyer receives information which appears to be privileged or confidential and was not
intended for the lawyers
The lawyer should not examine the materials, should notify the sender, and should
comply with the senders instructions
o New 2002 opinion says should just notify the sender, Rule 4.4[b]
Restatement rejects ABA 92-368
o States the receiving lawyers ability to use the inadvertently disclosed material turns on
whether the disclosure ends the legal protection for the material
Rule 4.4 Respect For Rights Of Third Persons
o [b] A lawyer who receives a document relating to the representation of the lawyer's
client and knows or reasonably should know that the document was inadvertently
sent shall promptly notify the sender.
Comment 2 states that additional steps can be made, but not required
This rule does not deal with inadvertent receipt of information which the sending
lawyer did not have a right to posses
Comment 3, Some lawyers may choose to return without reading, but it is their
own judgment, not required

WAIVER OF PRIVILEGE BY INADVERTENT DISCLOSURE OF CONFIDENTIAL

INFORMATION
Some States only require negligence in disclosing to inadvertently to kill privilege
o Most require at least recklessness to dispel privilege of the information
FRE, Rule 502 Attorney-Client Privilege and Work Product; Limitations on Waiver
o Intentional Disclosure waives Attorney-client privilege, work product, and
undisclosed info, disclosure must be:
[1] the waiver is intentional;
[2] the disclosed and undisclosed communications or information concern the
same subject matter; and
[3] they ought in fairness to be considered together.
FRE, Rule 503
o Inadvertent Disclosure does not operate as a waiver in a federal or state proceeding
if:
[1] the disclosure is inadvertent;
[2] the holder of the privilege or protection took reasonable steps to prevent
disclosure; and
[3] the holder promptly took reasonable steps to rectify the error, including [if
applicable] following Federal Rule of Civil Procedure 26 [b][5][B].
WORK PRODUCT DOCTRINE
Two aspects of the work product doctrine should be noted.
o [1] For the doctrine to apply, the material must be prepared in anticipation of
litigation.
o [2] A party may obtain discovery of work product material by showing substantial
need coupled with undue hardship.
Work product is the tangible material other than underlying facts, prepared by the lawyer either in
current litigation or in anticipation for future litigation
o Opinion work product is the opinion or mental impression of the lawyer
Opinion work product receives greater protection than ordinary work
product.
o Other work product is known as ordinary work product. Subject to exceptions,
ordinary work product is not discoverable
NEGOTIATIONS
Alternative Dispute Resolution
Saying you are authorized to settle for 50K is not lying, even though you are authorized up to
100K. The other attorney lied when he said he was only authorized to accept less than 75K,
because he was authorized to accept 60K
Honesty in Negotiation: the Duty Not to Engage in Misrepresentation
Rule 4.1[a] in representing a client, a lawyer shall not knowingly make a false statement of
material fact or law to a third person
Honesty in Negotiation: the Duty of Disclosure
If your client dies, you must disclose the information

o This is because if you are trying to recover for an injury and your client dies, you may
be able to recover more money
o It is fraud not to disclose
Improper Threats
Threatening Prosecution ABA rule says nothing about it
o ABA Opinion says there is not an anti-threat rule in the rules, however it cannot violate
8.4[b]: commit a criminal act that reflects adversely on the lawyers honesty,
trustworthiness, or fitness as a lawyer in other respects;
o Not a violation to threaten when honestly claimed as restitution for harm caused
o May be a violation in a civil case if it violates Rule 4.4
Rule 4.4[a]: In representing a client, a lawyer shall not use means that have no
substantial purpose other than to embarrass, delay or burden a third person, or
use methods of obtaining evidence that violate the legal rights of such a person
o Old Rule DR 7-105[A]: makes it punishable as extortion
TRIAL PUBLICITY
The general standard is to restrict speech that will have a substantial likelihood of materially
prejudicing an adjudicative proceeding in the matter
o Standard = from the view that the reasonable lawyer making the statement, rather than
a reasonable person
o The statement in question must be one reasonably likely to affect the outcome of the
proceeding
You can make certain extrajudicial statements
o Like information in public record, scheduling or steps in ligation, general scope of
investigation, identities of the accused and arresting officers and investigating officers
You can also make statements that a reasonable lawyer would believe is required to protect
your client from the substantial undue prejudicial effect of recent publicity not initiated by
you or your client
o Limited to the information necessary to mitigate the adverse publicity

TRIAL TACTICS
Investigative Contacts With Potential Witnesses Or Potential Defendants Prior To Filing Suit
Remember if the person has an attorney you cant contact directly, must go through lawyer
If not represented the rules regarding unrepresented persons applies
Cannot misrepresent self to witnesses to get info.
If agent/investigator misrepresents self, lawyer liable
o Rule 8.4 Misconduct
o It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly
assist or induce another to do so, or do so through the acts of another;
Other Applications Of The Rule 4.2: Settlement Offers, Expert Witnesses, And Treating Physicians
Settlement Agreements
Lawyer cant by-pass opposing counsel
o No by-pass does not apply to clients
Sometimes this will facilitate settlement
But this may cause problems

This comes up when one side is making offer, and the other lawyer is blocking
for their own purposes. So the client can directly contact the other client
Happens most often in divorce cases
However there is still a problem b/c one party may be in a weaker
position than the other
o Another way to get around is to place it before the court
This will get somebodies attention, and if the other lawyer continue to try to
block will be subject to liability
o New ABA opinion 11-461
If it was believed that the defense lawyer is blocking the offer, it is ok to have
the client approach with the offer, and it was ok for the lawyer to script a
strategy on how to get agreement and even arm with a copy of a binding
agreement for settlement
Controversial
Expert Witness
Technically not represented by opposing counsel
o But should not interview expert ex parte
Improper under the discovery rules
Doctors
Treating physicians
o In some districts its okay to interview ex parte, in others they are off limits, and in
others you have to approach the court and get permission
o Must find out what the custom and local rules are in your area

ETHICAL PROBLEMS IN PARTICULAR AREAS OF PRACTICE

GOVERNMENT ATTORNEYS
Rule 1.11 Special Conflicts of Interest For Former and Current Government Officers and
Employees
[a] Except as a law may otherwise expressly permit, a lawyer who has formerly served as a public officer
or employee of the government:
[1] is subject to Rule 1.9[c] [Former Client Rule]; and
[2] shall not otherwise represent a client in connection with a matter in which the lawyer
participated personally and substantially as a public officer or employee, unless the appropriate
government agency gives its informed consent, confirmed in writing, to the representation
[b] When a lawyer is disqualified from representation under paragraph [a], no lawyer in a firm with which
that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
[1] the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
[2] written notice is promptly given to the appropriate government agency to enable it to
ascertain compliance with the provisions of this rule.
[c] Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is
confidential government information about a person acquired when the lawyer was a public officer or
employee, may not represent a private client whose interest are adverse to that person in a matter in which
the information could be used to the material disadvantage of that person. As used in this Rule, the term
confidential government information means information that has been obtained under governmental
authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing
to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A

firm with which that lawyer is associated may undertake or continue representation in the matter only if
the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part
of the fee therefrom.
[e] As used in this Rule, the term "matter" includes:
[1] any judicial or other proceeding, application, request for a ruling or other determination,
contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter
involving a specific party or parties, and
[2] any other matter covered by the conflict of interest rules of the appropriate government agency.
Would NOT apply to drafting of a rule. [may be a trick question on the MPRE]
Notes:
Screening is important for the firm to still be able to represent
Rule 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral
[a] Except as stated in paragraph [d], a lawyer shall not represent anyone in connection with a matter in
which the lawyer participated personally and substantially as a judge or other adjudicative officer or law
clerk to such a person or as an arbitrator, mediator, or other third-party neutral, unless all parties to the
proceeding give informed written consent
[c] If a lawyer is disqualified by paragraph [a], no lawyer in a firm with which the lawyer is associated
may knowingly undertake or continue representation in 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 parties and any appropriate tribunal to enable
them to ascertain compliance with the provisions of this rule.
[d] An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from
subsequently representing that party
FAMILY PRACTICE
Minority attempt to treat them like any other client
If 3rd party paying, you still treat client as the client protect confidentiality and loyalty. The
person paying is not the client
Cannot represent both parties in a divorce if there is any conflict
o If there at first doesnt appear to be a conflict, one will likely develop
Hard to represent both spouses in estate planning
o Make sure you disclose everything and have them consent
Lawyer can act as intermediary
o Once the negotiation breaks down you cannot take sides, must withdraw
Divorce where only one side has an attorney
o Cannot advise unrepresented party other than to seek counsel
Shouldnt represent both the birth mother and adoptive parents
REAL ESTATE PRACTICE
An area with a lot of malpractice
Remember conflicts of interest and informed consent
Lawyer being named in the will
o Rule 1.8
[c] A lawyer shall not solicit any substantial gift from a client, including a
testamentary gift, or prepare on behalf of a client an instrument giving the lawyer
or a person related to the lawyer any substantial gift unless the lawyer or the other

recipient of the gift is related to the client. For purposes of this paragraph, related
persons include a spouse, child, grandchild, parent, grandparent or other relative or
individual with whom the lawyer or client maintains a close, familial relationship
Rule says you can receive a gift or property in a will, you just cannot write it
up unless you are related

ADVERTISING
Notes:
Advertising
o Bates determined that advertising is a protected form of commercial speech
o General Advertisement: cannot target an individual, and cannot lie or be misleading
Direct Contact with Prospective Clients
o
Solicitation
o Cannot directly interact with prospective clients if goal is to make money
This suggests indirect, non-interactive means are acceptable
New Forms
o The indirect non-interactive means: direct mail; as long as its not false or
misleading then it is okay
Names
o If using a traditional partnership name, i.e. Billings, Jones & Rollin:
All must be partners;
All must be lawyers;
All most be regularly related to the firm
If they die, they can still be in the name
o Office Sharing
Names should be like this: Law Offices, Underwood, Jones, Cain
Rule 7.1 Communications Concerning a Lawyers Services
A lawyer shall not make a false or misleading communication about the lawyer or the lawyers services.
A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits
a fact necessary to make the statement considered as a whole not materially misleading.
Applies to all forms of media
Rule 7.2 Advertising
[a] Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written,
recorded or electronic communication, including public media
[b] A lawyer shall not give anything of value to a person for recommending the lawyers services except
that a lawyer may
[1] pay the reasonable costs of advertisements or communications permitted by this Rule;
[2] pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral
service. A qualified lawyer referral service is one that has been approved by appropriate regulatory
authority;
[3] pay for a law practice in accordance with Rule 1.17; and
[4] refer clients to another lawyer or non-lawyer professional pursuant to an agreement not
otherwise prohibited under these Rules that provides for the other person to refer clients or
customers to the lawyer, if
[i] the reciprocal referral agreement is not exclusive, and

[ii] the client is informed of the existence and nature of the agreement
[c] Any communication made pursuant to this rule shall include the name and office address of at least
one lawyer or law firm responsible for its content
Rule 7.3 Direct Contact with Prospective Clients
[a] A lawyer shall not, by in-person, live telephone, or real-time electronic contact, solicit professional
employment from a prospective client when a significant motive for the lawyers doing so is the lawyers
pecuniary gain, unless the person contacted:
[1] is a lawyer, or
[2] has a family, close personal, or prior professional relationship with the lawyer
[b] A lawyer shall not solicit professional employment from a prospective client by written, recorded or
electronic communication or by in-person, telephone or real-time electronic contact even when not
otherwise prohibited by paragraph [a] if:
[1] prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
[2] the solicitation involves coercion, duress or harassment
[c] even written, recorded or electronic communication from a lawyer soliciting professional employment
from a prospective client known to be in need of legal services in a particular matter shall include the
words Advertising Material on the outside envelope, if any, and at the beginning and ending of any
recorded or electronic communication, unless the recipient of the communication is a person specified in
paragraphs [a][1] or [a][2]
Departing Lawyer
Rule 5.7 Responsibilities Regarding Law-Related Services
[a] A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of lawrelated services, as defined in paragraph [b], if the law-related services are provided:
[1] by the lawyer in circumstances that are not distinct from the lawyers provision of legal
services to clients; or
[2] in other circumstances by an entity controlled by the lawyer individually or with others if the
lawyer fails to take reasonable measures to assure that a person obtaining the law-related services
knows that the services are not legal services and the protections of the client-attorney relationship
does not exist.
[b] The term law-related services denotes services that might reasonably be performed in conjunction
with and in substance are related to the provision of legal services, and that are not prohibited as
unauthorized practices of law when provided by a nonlawyer.