CHAPTER 1: WHERE DO ETHICS RULES COME FROM?

Theory or Uniformity?
No overarching theory rules arise from particular problems attorneys encounter. Rules reflect
consensus reached by professional community re: how situation should be handled. Empirical focus.
No uniformity No state has adopted all model rules. Most use as models (except CA). R 5.5
CHOICE OF LAW conflicts, lawyer admitted to state A doing work in state B, which rules govern?
Complicated! Probably most restrictive rule will be applicable. R 8.5

Politics?
Rules written by committee overseen by Supreme Court.
Rules often proposed by state Bar, promulgated by state Supreme Cout.
Fed govt could but they dont.
Rules today adopted by ABA in 1983 with relatively minor changes.
ABA has Committee on Pro Rep, as do state Bars. Attorneys can seek guidance from these
committees via ethics hotlines.
Model rules not intuitively obvious. Must learn them!
General rule about practicing outside your jurisdiction Team up w/local attorney.
Different rules for different specialties w/in the law? NO. ABA has resisted except in field of
prosecution b/c carries w/it the authority of the state.
WARNING: Restatement Law Governing Lawyers is one of the few Restatements not very well done. As
such, it is less authoritative than other Restatements. This is one is treated more like an ALI.

History
Before 1983 had totally different set of rules. NOW called Model Rules of Professional Conduct.
THEN called Model Code of Professional Responsibility (adopted in 1970, based on Canons of
Professional Ethics from 1908). Some differences important: New set more comprehensive, fills in gaps.
Some things have been taken out entirely. 1970s Law schools required to teach legal ethics.
Watergate!
Kutak Commission
1977 ABA inaugurated commission when Codes ambiguity and gaps became apparent. Adoption
of Model Rules very slow (especially compared to adopting the Model Code, which was pretty quick). NY
and Maine didnt jump on until 2009 (and CA still hasnt).
Ethics 2000 Commission
1997 ABA appointed commission to study and recommend amendments to Model Rules.
Charged to report in year 200, hence name (AKA E2K Commission). Reported Nov. 2002, then made
significant changes. House of Delegates adopted nearly all recommendations.
Task Force on Corporate Responsibility
July 2002 response to Enron, Tyco, Worldcom scandals. Fed govt told SEC to adopt certain
rules governing lawyers. Alarming to Bar-defensive effort to show SEC that profession could react.
20/20 Commission
2009 focused on adapting rules to new technology and globalization.

Part One The Attorney Client Relationship

CHAPTER 2: DEFINING THE ATTORNEY-CLIENT RELATIONSHIP
Who Is a Client?
Is there a client here? When do duties begin? R 1.18
The U.S. Supreme Court weighed in on the issue in Westinghouse Electric Corp. v. Kerr-McGee Corp.
when it said, The fiduciary relationship existing between lawyer and client extends to preliminary
consultation by a prospective client with a view to retention of the lawyer, although actual employment
does not result.
In another case, the U.S. Supreme Court also held that the elements of attorney client privilege are: (1) a
communication between client and counsel, (2) intended to be and in fact kept confidential, and (3)
made for the purpose of obtaining or providing legal advice. Fisher v. United States, 425 U.S. 391 (1976).
Moreover, according to the Federal Circuit, the central inquiry in determining whether a
communication is privileged is whether the communication is one that was made by a client to an
attorney for the purpose of obtaining legal advice or services. In re Spalding Sports Worldwide, Inc., 203
F.3d 800, 805 (Fed. Cir.) (2000).
Prospective Clients
o No A-C relationship is formed, BUT
o Prohibited from using or disclosing info learned in the consultation.
o Prohibition on taking on another CL in same or substantially related matter
- Applies only if lawyer received info that could be significantly harmful
- Firm disqualified unless complies w/ 1.18(d):
Both CL and prospective CLs sign waivers or
Original lawyer avoided receiving unnecessary info from prospective CL
and:
Screening
No share in fee
Written, prompt notice to prospective CL
POINT: Ambiguous!!! Written agreement memorializes, does not create privilege or A/C Relationship!
Agreement may be implied.
Comment 2 Be careful about advertising/how you advertise!!!!

A Lawyers Duties to Clients

COMPETENCE

CONFIDENTIALITY

LOYALTY

DILIGENCE

INFORM & ADVISE

Competence
R 1.1
What makes a lawyer competent? Legal knowledge, skill, thoroughness, preparation.

Generally, re: legal knowledge, shouldnt charge to research background knowledge that you
should have. But if particular expertise is required for this case, it is appropriate to charge CL for that.
Generally expect specialist to be held to higher degree of competence than non-specialist.
Competence Perfection

Lawyers make mistakes. Do what you can to correct it.

Emergency situations do the best you can and thats usually good
enough. Competence standard doesnt apply quite as hardily.
3AM Phone Call I dont know much, by my best guess is

Confidentiality
R 1.6
Basic Rule: A lawyer shall not reveal information relating to the representation of a client.
Purpose: Full disclosure by client, to facilitate adequate representation.
Confidentiality Privilege

PRIVILEGE has to do w/testimony. Topic for Evidence.

Confidential Absolutely Protected.

Exceptions aplenty.
Informed Consent (defined in R1.0)
Impliedly authorized to carry out representation
Permitted by 1.6(b)
Idea: Nothing in the rules prevents you from
adequately doing your job.
Right of confidentiality belongs to CLIENT!
Some revelation of info is inherent in representation and thus impliedly authorized (ex.
Communication of settlement offer). Discovery Rules = implied authority to disclose what is required.
Assumption of free flow of information. If you learn something from a client, you can tell other lawyers
in your firm - passing info on to other attorney is fine.

Identity of clients is not typically confidential information.

Exceptions: confidential merger, certain tax problems,
bankruptcy attorneys.
Perez v. Kirk & Carrigan Tx. Ct. App. 1991

Note: R 1.18 adopted in 2002

Coke attorneys told truck driver involved in accident his statement would be kept confidential. They then
turned it over to prosecutor. SJ for attorneys not appropriate such behavior is actionable.
Introduces the operation of confidentiality rules that limit what information a lawyer may voluntarily
reveal about a client.
A-C privilege applies to all confidential communications made to an attorney during preliminary
discussions of the prospective professional employment, as well as those made during the course of any
professional relationship resulting from such discussions.

PRIVILEGED VS. ETHICALLY PROTECTED INFO

Ethically protected = FORBIDDEN to reveal. Broader than privilege more info is confidential than is
privileged.
Privileged = ENTITLED to hide or reveal. Serves as a shield.

POLICY
Empirical Encourage client to trust attorney, allows attorney to do better job. Serves broader
public interest in the observance on law and administration of justice.
Normative Lawyers should respect CL confidences just b/c it is right to do so. Respect for CLs
autonomy and privacy.
ENTITY CLIENTS
Confidentiality duties are the same.
Difficulty arises when asking whose communications w/company counsel are privileged?
Who would you speak to if/when representing a corporation?
General rule president of corporation (who typically delegates the responsibilities re: legal
issues.)
Three tests have evolved in different states for determining who constitutes the client:
(1) The control-group test results in the most narrow application of privilege. It provides that the
client is only someone from the group of people who can control or be significantly involved in
the direction of the company.
(2) Under the subject-matter test, an employee is a client for purposes of attorney-client privilege if
the communication occurred at the direction of the employee's superior and the subject matter
of the communication falls within the scope of the employee's duties.
(3) The Upjohn test is similar to the subject-matter test but slightly more flexible. Under this test, an
employee is a client for purposes of attorney-client privilege if the employee made the
communication to in-house counsel at the direction of the employee's superior, the
communication related to the employee's duties, individuals within the control group did not
possess the information, and the employee knew that the communication was being made so
that the company could obtain legal advice.
Upjohn v. U.S. 1981
Corporate counsel represent the corporation, not merely the control group of officers and directors.
Any employee capable of making a decision that would substantially affect the corporations legal
position must be granted this privilege so that counsel may properly assess the corporations liabilities. If
attorneys are to be retained to represent the interests of an entire corporation, it stands to reason that
the corporations employees should enjoy the full benefits of attorney-client privilege in their
communications with counsel. Any other holding would have significantly chilled corporate counsels
ability to properly investigate possible liabilities and therefore impaired their effectiveness.
Privilege case
Control group test rejected
Privilege extended to employees who:
o Possess relevant info, or
o Are responsible for implementing corporate policy.
Protects only communications, NOT the info itself.
Government A-C privilege exists, but does not get as much protection as Upjohn.
RESTATEMENTs position on entity clients organizational client include communication b/t agent of
entity if it concerns a legal matter of interest to the organization. Says it is relevant who initiates the
contact.

Exceptions to the Privilege or Ethical Duty

Self-Defense and Legal Claims
o Reasonable Necessity
Collection of Fees
Waiver
To Comply w/Other Law
The Crime-Fraud Exception to the Privilege
o Applies only when court determines that client communication in question was itself in
furtherance of the crime or fraud.
o Might say no true professional relationship, so no privilege to begin with.
Future Crimes or Frauds
The Fiduciary Exception
Noisy Withdrawal
o Not full-blown exception, just provides for retraction of something lawyer previously
said or wrote.
Identity and Fees
Public Policy?
Is There a Professional Relationship?

Agency
R 1.2
Authority that lawyers have to act and speak for the client on the subject of the retainer.
*Avoid ambiguous retainers!
Apparent authority lawyers statements can bind CL
Managing a trial (w/a few exceptions) is completely w/in lawyers authority.
The law of agency applies
General agency rule a principal is bound by the acts of an agent w/in the scope of the agents
authority or apparent authority
Scope of agency A lawyer must have full authority to manage a trial, and conduct of a lawyer is
often imputed to CL
R 1.2

CL determines the objectives of the representation

Lawyer must consult w/CL as to the means
CL decides on whether to accept a settlement
Criminal cases CL decides on
o Plea to be entered
o Jury trial waiver
o Whether CL will testify
All CLs are entitled to legal representation from somebody.
Counseling on criminal or fraudulent activity (1.2(d))
o May not counsel or assist client in such conduct
o May advise CL on how to act lawfully.

Taylor v. Illinois 1988

Attorney willfully failed to reveal identity of prospective witness to gain "tactical advantage." CL says
Court's exclusion of that witness's testimony violates his 6A Compulsory Process clause.
Scotus: Majority: Lawyer has, and must have, full authority to manage conduct of the trial. Necessary for
adversarial system. Provided privilege and extreme cases of collusion, highly impracticable to require
investigation into a-c relationship/knowledge flow before applying sanction of preclusion. Clients must
live w/attorney choices how to CX, whether to CX, etc. Whether to conceal identity or not is similar
choice, client has no greater right to disavow.
Dissent: Wrong to punish a client for an attorney's misconduct. Fundamental difference b/t
misconduct and tactical errors. Client has no authority to approve misconduct.
Bakery Machinery v. Traditional Baking 7th Cir. 2009
Lawyer didn't respond to discovery, but told client (BMF) case was going well. Default judgment
against BMF, BMF seeks relief from final judgment.
A lawyer who inexcusably neglects his client's obligations does not present exceptional
circumstances (to fall w/in FRCP60 relief from judgment). Beef is w/lawyer, not opposing party (or
court). Wont overturn judgment for that.
VICARIOUS ADMISSIONS - Nonhearsay. Can be used against client, but do not bind client (whereas
judicial admissions do bind client). Assertions in opening arguments are judicial admissions (statement
made in open court or pleadings that are not superseded).
PROCEDURAL DEFAULTS - Failure to raise Constitutional rights in compliance w/state procedures will
generally prevent defendant from asserting rights collaterally in fed court unless actual innocence. Also
if "waiver" due to lawyer abandoning client, or if amounts to ineffective assistance of counsel.
CONFIDENTIALITY DUTIES IN AGENCY LAW - Overlap w/other confidentiality duties.
Restatement (3rd) of Agency "An agent has a duty . . . (2) not to use or communicate confidential
information of the principal for the agent's own purposes or those of a third party." Info must be
protected even if not related to the purpose of the agency

Fiduciary
Some fiduciaries have higher obligations than other fiduciaries, and lawyers have among the highest.
3 Reasons for imposing fiduciary duties on attorneys:
1. Client expects it; lowers guard, so to speak.
2. Lawyer may acquire info about client that gives lawyer unfair advantage in dealings w/client.
3. Many clients will not be in position to change attorneys.
Lawyer as fiduciary
What does it mean to say that a lawyer is a fiduciary of the CL?
Lawyers occupies a unique position of trust and confidence toward the CL
Among fiduciaries, lawyer occupies the highest level of obligation
CLs are very dependent on lawyers
Lawyers have expertise CLs lack
Lawyer must treat CL fairly.

Loyalty & Diligence

R 1.3
*considered together since they somewhat overlap*
Loyalty - requires lawyer to pursue, and be free to pursue, client's objectives unfettered by
conflicting responsibilities or interests. Loyalty + Confidentiality form basis of conflict-of-interest
rules. Loyalty survives termination of relationship.
Diligence - obligation to pursue client's interests w/out delay. Divided loyalties may undermine
lawyer's diligence (although undivided loyalty will not ensure diligence).

Inform & Advise

R 1.4
Inform CL of any matter where CL's informed consent is req'd
Consult w/CL about means to obtain objectives of representation
Keep CL reasonably informed of status of matter
Respond to requests for info
Explain a matter sufficiently that the CL may make informed decisions re: the representation
Nichols v. Keller Cal. App. 1993
Keller (atty) represented Nichols (cl) in workers comp case. Keller didn't tell Nichols he had potential civil
tort claims against 3rd parties. Nichols didn't discover the possibility of those claims until after statute of
limitations. N sued K for malpractice. Trial court found for K. CoA reversed.
One of an attorney's basic functions is to advice. Liability can exist b/c attorney failed to provide advice.
- Used in a later case to say: If prudence dictates that a claim beyond the scope of the retention
agreement be pursued, the client can then consider whether to expand retention or pursue additional
claim in some other manner.
Rule 1.0(e) informed consent
(e) "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.
THE CLIENT'S RIGHT TO KNOW
Failure to inform can lead to monetary liability (pony up the amount of the settlement offer you
didn't pass on to CL and then lost at trial).
Can lead to finding of ineffective assistance of counsel in criminal case (Padilla).
Disciplinary action

Autonomy of Attorneys and Clients

The Lawyers Autonomy
Think of autonomy as right to live one's life as one choose w/in the law even if others find the
choices imprudent, repugnant, or morally unprincipled.
A lawyer necessarily cedes some of her autonomy when she agrees to represent a client.

Jones v. Barnes, 1983

Whether defense counsel assigned to prosecute an appeal from a criminal conviction has a
constitutional duty to raise every nonfrivolous issue requested by defendant.
No decision of this Court suggests that the indigent defendant has a constitutional right to compel
appointed counsel to press nonfrivolous points requested by the client if counsel, as a matter of
professional judgment, decides not to present those points.
"Legal contentions, like currency, depreciate through over-issue."
Dissent: Right to assistance of counsel entails right to decide against advice of counsel if DF so chooses.

The Clients Autonomy

THE SCOPE OF THE CLIENT'S AUTONOMY
Decision to request jury instruction on lesser offence - strategic/tactical?
NY No. (With autonomy comes responsibility)
CO - Yes.

Client Autonomy
o Determine the objectives of the representation
o Decide whether to accept a settlement offer (however inappropriate)
o Staffing with minority or female lawyers
o Criminal cases
Enter a plea
Testify
Counsel must advise CL whether CL testifying will help/hinder, but
decision to testify belongs to CL alone. Also CL has right to accept plea
offer, even over attorney's strenuous objections.
Abandon appeal (even if a death sentence is pending)

J. Holmes - law is what judges do in fact.

Lawyers are hired to make these predictions. When they err, doctrine of judgmental immunity may
protect them from immunity.
Doctrine of Judgmental Immunity - a lawyer's "judgment or recommendation on an unsettled point of
law is immune from suit" even if it turns out wrong, so long as it is reasonable. (Neb. 1999).
BUT: The decision to settle controversy is the CL's. Attorney cannot unilaterally make decision
between two unsettled area of law - must allow CL to choose b/t reasonable alternatives.
CLIENTS WITH DIMINISHED CAPACITY
Protect CL's rights, including right to make decisions on specific matters. Generally should
advocate any decision made by CL. On perceiving conflict b/t wishes and Cl's best interests,
attorney may inform court of need for possible GAL, whose concerns are best interest.

Ending the Relationship

Termination by the Client
May fire attorneys for any reason or no reason - even race. <--BUT limited.
Employed lawyers have basic employment rights.

CL may not fire appointed counsel, but may ask court to assign new lawyer.
Too close to trial, court may not permit CL to fire counsel.
Withdrawal requirements in active litigation.
At termination of relationship, CL is presumptively entitled to entire case file - but attorney can make
argument to retain internal documents.
Attorney's retaining lien <-- in PA, can withhold documents until payment is rendered.
If CL has hired someone else to take over representation, general rule is have to turn over files
w/exception if practice in state w/retaining lien. Can (perhaps should?) make copies of everything for
your records, but copies are made at your expense.

Termination by the Lawyer

R 1.16
16(a) --> SHALL withdraw from representation if:
Representation will result in violation of ethical rules or other law
Lawyer's mental/physical condition materially impairs ability to represent client
Client discharges lawyer
If next lawyer is lined up, just need stipulation
If not lined up, need to make motion to the court.
If judge says no, have to tell CL "Sorry, guess you're stuck w/me."
16(b) --> MAY withdraw from representation
Without adversely affecting CL
Withdrawal without justification (abandonment) is forfeiture of all fees.
CL's failure to pay fees (seriously delinquent) courts will allow withdrawal.
CL misconduct.

Termination by Drift
Where work, or case, ends but relationship itself does not necessarily end w/work. Must fully advise
CL of future implications based on matter of representation.
EPISODIC CLIENTS Questions of fact, looks at frequency with which CL has called on firm and over what
period of time. Kind of like asking, Whose your dentist?

CHAPTER 3: PROTECTING THE ATTORNEY-CLIENT RELATIONSHIP AGAINST

INVASION
Communicating With Another Lawyers Clients

A client dissatisfied with a lawyer's representation can get a second opinion w/out anyone running
afoul of this rule.
Lawyer must know (or reasonably deduce) person is represented by another lawyer.
Members of uncertified class not represented by counsel.

Communication prohibition applies only to subject of representation - other communication is

permitted.
Some courts say right belongs to counsel, not the client - so client cannot waive it w/out counsel's
consent.
Communication is prohibited - videotaping and other activities are ok (taping store employees to
gather evidence)
Communication through 3rd parties is prohibited. Negligent failure to protect from prohibited
contact can land attorney in hot water.

Rule 4.2 prevents a lawyer from (through advising on communications b/t CL and OP):
getting a damaging admission from OP (client)
learning a fact or getting a document would not learn or get if OC were present
settling or winning a concession or learning OP's true position in negotiation
learning OP's strategy or gaining info protected by A-C privilege or work product doctrine
weakening OP's resolve by casting doubt on strength of his position
disparaging OC to OP
If it's another lawyer working for the same company, generally can speak w/client.
Speaking w/in-house counsel while representing an employee of the corporation not prohibited.
Rule 4.3 Dealing With Unrepresented Person
Rule 3.4 Fairness to Opposing Party And Counsel

Civil Matters
Different problems depending on whether OP is person or entity.
If person, key Q is whether communication was "communication" w/in meaning of rule - but there
should be no difficulty IDing the CL.
If entity, however, questions arise b/c entities only exist through actions of employees and not all
employees at all times fall w/in Upjohn.

Nieseg v. Team I NY 1990

Are employees of a corporate party also considered "parties" under [Ethics Rules] which prohibit lawyer
from communicating directly with a party known to have counsel in the matter?
**SCOPE OF NO CONTACT RULE** Issue
P was injured at work, fell from scaffolding at construction site. Worked for DeTrae Enterprises.
Defendant Frederick was general contractor, and Team I is property owner. P moved for counsel to be
able to interview, ex parte, all DeTrae employees who were at site (witnesses) - not control group.
A corporate employee who may be a client for purposes of A-C privilege is not necessarily a party for
purposes of [Ethics Rules prohibiting contact with represented parties]. Blanket rule too broad. Control
group test overlooks fact that non-senior level management can also legally bind corporation in an
admission intended to be protected from by this rule.
Court settles on: Include corporate employees whose acts or omission in matter under inquiry are
binding on corporation or imputed to corporation for purposes of its liability, or employees

implementing the advice of counsel. All other employees may be interviewed informally - i.e. not
covered by rule.
Result: Allows ex parte interviews with nonmanagerial witnesses employed by a corporate
defendant.
Privilege rule NOT same as no contact rule!
HOW LARGE THE CIRCLE OF SECRECY?
Is it wise to use the vicarious admission rule to define the no-contact rule?
The two rules are supposed to advance different policies.
Restatement says to permit interviews even with those who can bind via
vicarious admissions in order to facilitate candid and informal access to info.
Rule does NOT prohibit contact w/former employees. BUT most not seek "to elicit privileged or
confidential information from an opponent's former employee."
WHEN THE GOVERNMENT IS THE ADVERSARY
Competing interests: Gov't's interest as a litigant vs. First Amendment right to petition the gov't.
Generally, can consider rule is limited as to government parties
TESTERS
"sting" operation to learn whether prohibited action is being performed (discrimination, bad
references, etc.)
Accepted investigative technique or misrepresentation? Courts vary.

Criminal Matters
When you're a prosecutor, you don't really have a client. But prosecutors still have duties re: A-C.
U.S. v. Hammad 2d. Cir. 1988
Note Case
Using fake subpoenas during wired convos to
induce incriminating statements in appropriate - violates ethics rules.
U.S. v. Carona 9th Cir. 2011
Haidl was bribing Carona (Orange County Sheriff) for "the complete power of the sheriff's department"
and to not accept bribes from others. Federal investigation, Haidl admitted misconduct and cooperative
plea agreement. Haidl had conversations w/Carona while wired. Gov't gave Haidl some fake subpoenas
to induce Carona to say incriminating things.
Whether pre-indictment, non-custodial communications by federal prosecutors and investigators with
represented parties violate no-contact rules. <-- Case-by-case decisions.
Considerations in Carona:
- There were no direct communications between the prosecutors and defendant.
- The indirect communications did not resemble an interrogation.
- Prosecutors' use of fake subpoena attachments make their informant the alter ego of the prosecutor.
- The court noted that defendant's state of mind appeared to have involved both the intent to
"influence" a witness's testimony and the intent for the witness to "withhold" testimony, based on the
dictionary definitions of these words.

- Defendant intended to "modify" or "affect" the testimony by encouraging the witness to testify that
no bribes occurred, as well as to "omit" testimony regarding the bribes.
General rule: prosecutors do have a higher ethical standard.

Improper or Accidental Acquisition of Confidential Information

Duty to inform sender --> R 4.4(b)

o Returning original document - issue of law not governed by rules - comment[2].
o Issue of law whether privilege has been waived.
Waiver requires knowing, informed action on part of waiving party. If done
accidentally, NOT a waiver.

Generally matter of state law whether confidential document(s) have to be returned to sender or
destroyed.
Metadata - states differ - know what your state has to say!

CHAPTER 4: LAWYERS, MONEY, AND THE ETHICS OF LEGAL FEES

Fees Rule 1.5
Required Communications to client - R 1.5(b)
o Scope of representation
o Basis for calculating fees and expenses
o Preferably in writing
o Before or within reasonable time after commencing representation
o Exception - same basis to regular client
o Any change in rate must be communicated to client!!
Is not REQUIRED to be in writing - but in practice - do it. If not ahead of time, has to be w/in reasonable
time.
If raise fees AFTER commencement of representation, notice to client is sufficient. If client has problem
w/it, burden is on client to raise issue w/lawyer.
Retainer fees - often used for hiring specialists.
Contingent fees HAVE to be in writing. U.S. is just about only country in the world that permits
contingent fee arrangements, and generally speaking the legal profession is the only one where such a
practice is permitted.
Bankruptcy is special - fees are usually determined by the court. Can work out w/client, but court will
ultimately determine.
PA Rule for Fees - cannot be illegal or clearly excessive

The Role of the Marketplace

Brobeck (et. al) v. Telex Corp. 9th Cir. 1979
Telex was in trouble. Wanted Brobeck - did their research and wanted Brobeck. Brobeck usually charged
hourly. Telex wanted to pay contingent. Negotiated back and forth a bit - wound up with a finely
negotiated contingent fee with both a floor and a ceiling, some aspects depending upon success, etc. different contingencies covered.
Unconscionable language in opinion - contract analysis usually, but used here b/c CA ethics rules are
bloody weird.
Rule analysis re: unreasonable.
Takeaway - Telex is large company, in-house counsel negotiated fees with Brobeck, they wanted him,
demanded him, just had to have him, well understood the terms.

Unethical Fees
In re Laurence S. Fordham, MassSC 1996
CL had DUI - had spoken with a few attorneys, estimated range of like $3K - $10K. CL's dad did work on
Fordham's home, chatted about CL's arrest to wife, who facilitated discussion where Fordham was hired
after telling CL's dad that it wasn't his expertise, yadda yadda. Total bill for Fordhams services over $50K
Standard here: "clearly excessive." <-- had standard until model code was adopted.
Case brought by DISCIPLINARY COMMITTEE - not brought by CL, so no decision requiring fees get
reduced/paid back.
Public censure.
Factors for clearly excessive (in this case):
The novelty and difficulty of the questions involves, and the skill requisite to person the legal
service properly.
The fee customarily charged in the locality for similar legal services.

Contingent Fees
Special note: NO contingency fees permitted for domestic relations / family matters, nor for
representing a criminal defendant. R 1.5(d)
Rule 1.8 makes the contingent fee an exception to the general prohibition against a lawyer acquiring an
interest in the clients claim.

Minimum Fee Schedules

Goldfarb v. Virginia State Bar 1975
Petitioners claim: state and county bar associations, violated the Sherman Act by promulgating and
enforcing a minimum fee schedule for lawyers.
Petitioners, a husband and wife who contracted to purchase a home, contacted a lawyer to provide a
title examination. The lawyer quoted the fee suggested in a minimum fee schedule published by
respondent county bar association. When petitioners were unable to find a lawyer who would examine
\the title for less than the fee fixed by the schedule, they brought suit.

Petitioners challenged court of appeals ruling reversing a district court decision in favor of petitioners,
on grounds those respondents were immune from antitrust liability. The court reversed the court of
appeals decision because anti-competitive conduct by lawyers was within the reach of the Sherman Act.
The court noted that the fact that the state bar association was a state agency for some limited
purposes did not create an antitrust shield.
Hence, the court ruled that respondents were liable since their activities involved blatant price-fixing,
which restrained competition and harmed consumers.
Rule 6.1 Voluntary Pro Bono Publico Service Rule 6.3 Membership in Legal Services Organization
Rule 6.4 Law Reform Activities Affecting Client Interests

Who Gets the Money?

DIVIDING MONEY (OR CLIENTS) WITHIN A FIRM
AR/WIP - accounts receivable work in progress
Idea: Collection of fees lags behind work completed so leaving partner entitled to some future fees
(although firm can deny exiting partner fees if so chosen in partnership agreement).
Lawyers have no right to divide their clients
Clients are entitled to lawyers of their choice
DIVISION OF FEES BETWEEN FIRMS
R1.5(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;
Unless 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.
What does "confirmed in writing" mean?
Does not require a signature! Client has to be informed, must consent, consent need not be in writing.

Restrictions on Right to Practice

R5.6
Prohibits restrictions on practice after lawyer leaves a firm
Partnership agreement must be competition neutral
Promotes lawyer mobility
Permitted in 1 circumstance:
Benefits upon retirement
NOT permitted in a settlement of a client controversy
Most states permit agreements in connection w/sale of a business that prohibit "down the street"
competition. Some states limit the extent of such limitations, some states say you can't make it nationwide or even state-wide. OK says only 15 miles. Duration is also often limited to 1-2 years.
Common solution in buyout: if you don't want them to compete, hire them on for a few to 5 years!
General principle: part of lawyer's job is to structure transactions to make them legal, including rules of
professional responsibility.

Part Two Conflicts of Interest

CHAPTER 5 CONCURRENT CONFLICTS OF INTEREST
CHAPTER 6 SUCCESSIVE CONFLICTS OF INTEREST
CHAPTER 7 ETHICS IN ADVOCACY

Part Three Avoiding Professional Failure

CHAPTER 12 CONTROL OF QUALITY: REDUCING THE LIKELIHOOD OF
PROFESSIONAL FAILURE

Part Four Special Lawyer Roles

CHAPTER 9 NEGOTIATION AND TRANSACTIONAL MATTERS
CHAPTER 10 LAWYERS FOR COMPANIES AND OTHER ORGANIZATIONS
CHAPTER 11 - JUDGES

Part Five Redressing Professional Failure

CHAPTER 13 SECTION D: DISCIPLINE

Part Six Lawyers Rights

CHAPTER 16 MARKETING LEGAL SERVICES