I.

Introduction
a. Overview
i. Regulatory body and rules
1. Self-regulated: ultimate authority is state supreme court (not
legislature)
2. ABA Model Rules (as adopted by states) provide basis for
disciplinary action
3. Lawyers may also be subject to civil or criminal liability
ii. Lawyers have a duty to report violations of professional misconduct
1. If you know that another lawyer did something that raises a
substantial question about his fitness to practice law, you must
report it.
2. Must report to the appropriate authority usually, state bar;
possibly, police
iii. Supervisory and subordinate lawyers have special responsibilities
1. Supervisors
a. Must create an internal structure to prevent ethical
problems
b. Must make reasonable efforts to ensure that subordinates
dont violate ethical rules
c. If subordinate does break a rule, supervisor is liable if he
knows about it and either ratifies it or fails to take
remedial action that wouldve helped.
d. Must also make sure that non-lawyer employees follow the
rules.
2. Subordinates
a. Liable for own conduct unless they act in accordance with
a supervisors reasonable resolution of an ethical
question.
b. Rules
i. 8.1 Bar Admission and Disciplinary Matters
1. No false statements of material fact in connection with bar
admission application.
2. Cant fail to disclose a relevant fact that is not protected by 1.6
ii. 8.3 Reporting Professional Misconduct
1. Must report other lawyers violation of an ethical rule if:
a. You know they committed the violation of the Rule, AND
i. Know = less than absolute certainty, but more than
mere suspicion
ii. Himmell knowledge of theft due to bounced check
and the fact that the lawyer hadnt paid him
b. That violation raises a substantial question of
trustworthiness, honesty, or fitness as a lawyer
2. Must report to appropriate authority
3. Can wait a reasonable amount of time before reporting
4. Dont have to report if its protected by 1.6. Though you scan
and should encourage waiver if no prejudice. Dont have to
report if you were participating in a lawyer assistance program
iii. 8.4 Misconduct
1. It is misconduct to:

II.

a. Violate or try to violate an ethical rule

b. Commit a criminal act adversely reflecting on your
honesty, trustworthiness, or fitness as a lawyer. There is
no conviction requirement.
c. Engage in dishonesty, fraud, deceit, or misrepresentation
d. Engage in conduct prejudicial to justice
e. State or imply an ability to improperly influence the
administration of justice
f. Knowingly assist a judge in violating ethical rules or the
law
iv. 5.1 Responsibilities of Supervisors
1. Must create some structure in their firm to prevent ethical rule
violations
2. Also must make reasonable efforts to ensure subordinates dont
violate rules
3. Supervisors are liable for subordinate conduct if the supervisor:
a. Orders or rarities the conduct OR
b. Knows of the conduct and doesnt take a reasonable
remedial action and knew of the conduct at a time when
the remedial action wouldve helped.
v. 5.2 Responsibilities of Subordinate Lawyers
1. Subordinates are responsible for their own conduct, generally
2. Exception: if you follow supervisors reasonable resolution of
ethical question.
a. Outright order to lie is obviously not reasonable
b. If you file an order that might be frivolous, youre
probably ok.
vi. 5.3 Responsibilities Regarding Non-lawyer Assistants
1. Same as with 5.1
2. Cant just use non-lawyers to do unethical bidding.
3. Cant use non-lawyers to do legal work in general.
c. Other Information
i. Civil liability of lawyers is legal malpractice
1. Elements of legal malpractice
a. Duty
b. Reasonable Care
c. Harm
2. Hard to win for plaintiffs because harm is difficult to prove
a. Usually have to show that but for the mistake, you
wouldve won the case
b. Often have to try a Case within a case to win legal
malpractice claims
c. Sometimes framed as breach of contract or breach of
fiduciary duty
d. Can also be civilly liable for other types of actions
ii. Criminal Liability Can Also Happen
Attorney Client Relationship
a. Overview
i. How is the A/C relationship formed, and why do we care when it does?

ii.

iii.

iv.

v.

vi.

1. Lawyers have special duties to client that they dont have to

others.
2. To determine if the relationship has formed, consider from the
clients perspective
a. If they believe the relationship exists, and that belief is
reasonable, its formed.
i. Unsolicited email probably not reasonable
ii. Might be reasonable if you respond though.
b. Dont even have to contemplate a fee arrangement for
relationship to form.
c. Togstad: legal advice related to specific facts = A/C
relationship
i. Despite no fee discussion
3. Follow up with a client to be very clear about non-engagement
if not relationship
Lawyers have duties to prospective clients.
1. To be a prospective client, client must have reasonable
expectation that the lawyer is interested in forming a
relationship while discussing that possibility with him
2. Duties include confidentiality and conflicts check.
Duties to clients (each of these has a separate rule)
1. Competence
2. Diligence
3. Communication
4. Confidentiality
Allocation of authority between client and lawyer
1. Client decides objectives of representation. Lawyer decides
means.
2. Client makes big choices: when to settle, when to accept a plea
bargain, whether to waive right to a jury trial, whether to
appeal.
a. Can give a range in which lawyer is authorized to settle.
Clients with diminished capacity
1. If they have the ability to participate, must involve in
relationship as normal
2. If very severe can get someone appointed to represent them.
Terminating the relationship
1. Clients can always fire their lawyer. With or without cause.
2. Lawyers dont have the same right. Look to 1.16 for reasons for
withdrawal.

b. Rules
i. 1.18 Duties to Prospective Clients
ii. 1.2 Allocation of Authority Between Lawyer and Client
iii. 1.14 Clients with Diminished Capacity
iv. 1.16 Declining or Terminating Representation
v. 1.1 Competence
vi. 1.3 Diligence
vii. 1.4 Communication
c. Other Information
i. Ineffective Assistance of Counsel

1. Strickland: lawyers must avoid conflicts of interest, must

advocate for Ds cause, must consult with D for important
decisions, and must keep D informed
2. Must bring to bear such skill and knowledge as will render the
trial a reliable adversarial testing process.
3. Must tell client about plea offers (6A)
ii. A bit of agency law: you can have express, implied or apparent
authority
1. Apparent requires reliance by a third party if client by act or
statement, makes it seem like lawyer has authority and third
party relies on that authority.
III.

CONFIDENTIALITY
a. Overview
i. Confidentiality: lawyers cant reveal information related to client
unless:
1. Client gives informed consent
a. Informed consent: lawyer must communicate adequate
information and explanation about material risks and
reasonable alternatives
2. Disclosure is impliedly authorized in order to carry out
representation
3. Disclosure is permitted by an exception to rule 1.6
a. These disclosures are permissive (dont HAVE to disclose,
but have option)
b. Additionally, must only reveal as much info as reasonable
necessary
ii. Rule 1.6: very strict standard
1. By its terms, basically never allows any disclosure of
confidential information
2. Restatement is more lenient: cant reveal confidential
information if there is a reasonable prospect that doing so will
adversely affect the client.
iii. Must also make reasonable efforts to protect CI from intrusion
iv. A/C privilege: a narrower (bust strong) protection than 1.6
1. Applicability
a. In court or other proceedigns where lawyer is called to
produce evidence regardint eh client (e.g., deposition)
b. May be invoked to protect:
i. A communication (oral, written, non-verbal)
1. Does not apply to preexisting documents
2. Underlying facts arent privileged; same with
physical evidence.
ii. Made between privileged persons includes agents or
lawyer/client)
iii. In confidence (cant have lots of other people around
and claim it)
iv. For the purpose of obtaining/providing legal
assistance

1. Cant just assay anything to the lawyer and

have it be protected.
c. Limits on the privilege (always can be waived by client)
i. Multiple clients simultaneously: statements are still
privileged
1. If clients turn on each other (dispute),
privilege is waived.
2. One client can talk about what was said in that
room.
ii. When client wants to use lawyers services to futehr
crime/fraud
iii. When the court orders you to disclose something

IV.

b. Rules
i. 1.6 Confidentiality of Information
ii. 1.13 Organization as a Client
iii. 1.0 Definition of Fraud
c. Other Information
i. 1.13 and Sarbanes-Oxley: similar duties though less broadly
applicable to lawyers)
1. SOX requires you to report up, too, if:
a. Youre representing a public company, AND
b. Youre a securities lawyer.
2. Further, if the fraud is likely to harm investors, you may report
to the SEC.
ii. Confidentiality intersects with other rules:
1. Can disclose CI in the event of client fraud using your services
2. 4.1(b) Cant knowingly fail to disclose a material fact when
failing to disclose would result in your helping a fraud (so,
disclosure may be required under this)
3. 1.2(d) Cant help a client do something you know is fraud
4. 1.16(a) You can withdraw if client insist on using your
services for fraud
5. 8.4(c) Its misconduct for you to carry out or assist in fraud.
CONFLICTS OF INTEREST AMONG CLIENTS
A. Overview
I. Background on conflicts
1. Arise due to competing interests of multiple clients or former
clients
2. No such thing as potential conflicts if interests might
eventually conflict, analyze as a conflict of interest.
3. Ramifcations of conflicts for lawyers
A. Disqualification
B. Civil suit
C. Sanction by court
D. Disciplinary proceeding
E. For govt lawyers: criminal sanctions
4. Can often get client consent to work despite conflicts
A. Always can for successive conflicts
B. Soemtimes cannot for concurrent conflicts
II. Concurrent Conflicts (Rule 1.7)

1. Whom do they involve?

A. Two current clients
B. Two prospective clients
C. One prospective and one current client
D. Lawyers own interest and current client
2. Main Concerns: duties of loyalty and diligence degree of
adversity between clients
A. Contrast with successive conflicts, where concern is with
confidentiality
3. Analyze concurrent conflicts
A. Clearly identify clients
B. Determine whether conflict exists
I. Is there direct adversity? If yes, conflict exists
1. Direct adversity: lawyers actions taken in
course of representation of one client can
directly harm other client
2. Ex: Suing a current client, even if unrelated
matter
II. If no direct adversity, is there a significant risk that
representation of one of the clients that will be
materially limited by lawyers other responsibilities?
1. Ex: Lawyer representing several people who
are forming a joint venture. Cant push for all
of them to get the best terms at the expense of
the others
C. If theres a conflict, determine if it is consentable
I. Unconsentable conflicts:
1. Where prohibited by law;
2. Client v. Client in the same case;
3. If you cant reasonable expect to represent
both parties with diligence and competence
A. Ex: Zero-sum negotiations (negotiations
for adverse parties)
D. If consentable, get clients informed consent in writing
I. Basically must communicate to client all information
to understand pitfalls of continuing with
representation (risks, etc.)
II. Rule 1.0(e) defines informed consent
4. Common types of conflict in litigation
A. Suing current client
B. Cross-examining current client
C. Representing co-Ps or co-Ds
D. Representing economic competitors
E. Positional (i.e., making opposite arguments) conflicts
usually ok
5. Screening lawyer from concurrent conflict does not work (works
for successive, though)
6. Organizational clients: you can represent the organization and
an employee or SH, but must get consent for dual
representation

Successive Clients (Rule 1.9)

1. Who do they involve?
A. Former client and current client
B. Former client and prospective client
2. Main concerns: confidentiality and similarity between matters
a. Cant be put in position where youd attack former work
3. Analyze:
a. Is there a former client?
b. What is the relationship between the matters?
i. Look at subject matter of the matters
ii. Are the matters substantially related
1. SR if you would have ordinarily learned
something in old matter that you could use
against them in current matter. Consider:
a. Factual similarities
b. Similarity of legal questions
c. Nature and extent of lawyers
involvement in froemr representation
d. Whether same witnesses are involved
e. Knowledge of former clients playbook
2. Actual knowledge doesnt matter
3. If not SR, then no conflict
iii. Material adverse interests between old and current
client?
iv. Can you get consent of former client?
1. If so, good. There are no non-consentable
successive conflicts.
v. Is imputation an issue?
1. Same lawyer, same firm: rule 1.10(a)(1) its
the same for whole firm, unless the conflict is
borne out of the lwawyers personal interests.
2. Same lawyer, new firm: rule 1.10(a)(2) you
can screen lawyer
4. Hot Potato Rule: you cant fire your client merely to lower the
conflicts bar on a new client.
iv. Changing Law Firms (Rules 1.9 and 1.10)
1. 1.9(b) Cant knowingly represent a client in the same or
substantially related matter in which a former firm had a client
that both:
a. Had materially adverse interests to new client, AND
b. About who you acquired protected info under 1.6
i. Not looking at any client of your former firm only
those with materially adverse interests that you got
protected information about
2. 1.10(a)(2): You can screen a lawyer who is conflicted out based
on 1.9(b)
a. Must set up screen, give notice to former client, and give
no part of fee to the screened lawyer
v. Imputation of Conflicts (Rule 1.10)

III.

1. General rule: one lawyer in a firm cant take a client if another

lawyer in the firm would be prevented from working on the
same client.
2. Exception: You can screen out a lawyer who is prevented form
working on client due to 1.9(b) former client was with an old
firm for that lawyer. Screens also work with non-lawyer
employees.

V.

b. Rules
i. 1.7 Concurrent Conflicts of Interest
ii. 1.13 Organization as Client
iii. 1.9 Successive Conflicts of Interest
iv. 1.10 Imputation of Conflicts
v. 1.8(f)-(g) Special Conflicts
vi. 1.11 Successive conflicts for former government lawyers
CONFLICTS OF INTEREST BETWEEN LAWYER AND CLIENT
A. Overview
I. Lawyers entering into business transaction with clients must make
sure:
1. The transaction is fair and reasonable to the client
2. The terms are fully disclosed in writing in a way the client can
understand
3. The client is advised in writing that he should seek independent
counsel, and is given reasonable opportunity to seek that advice
4. The client gives written informed consent
II. In addition to the above, Rule 1.8 imposes many other specific
conflict of interest rules
1. Dont acquire a proprietary interest in clients legal claims
A. Exceptions: contingency fees, liens authorized by law to
secure fees.
2. Dont provide financial assistance to a client in connection with
litigation.
A. Exception: Advance court costs / litigation expenses
3. Dont make an agreement to acquire publication rights about
representation until after representation is complete.
4. Dont solicit gifts or prepare an instrument giving yourself a
substantial gift
A. Exception: family members.
5. Dont make prospective agreements with clients to limit
malpractice liability, unless theyre represented by independent
counsel
A. And dont settle a claim for malpractice liability unless
theyre told in writing that they should get counsel and
given time to counsel.
6. Dont fuck the client unless youve already been fucking them.
May include kissing.
7. Dont settle the claims of multiple clients that youre
representing together unless each client gives written informed
consent.
iii. Except for fucking, all rules are imputed through a law firm.

VI.

iv. Judges, law clerks and former government lawyers have different
more relaxed rules. Rule 1.11
b. Rules:
i. 1.8 Conflicts of Interest: Current Clients. Specific Rules
ii. 1.11 Conflicts of Interest for Government Lawyers
iii. 1.12 Former Judge, Arbitrator, Mediator, or Other Third-Party
Neutral
FEES AND CLIENT FUNDS
A. Overview
I. Fees must be reasonable, both when you charge them and when you
collect them
1. Consider these factors:
A. Time, labor, novelty, difficulty, requisite skill
B. Likelihood to preclude other matters
C. Local for fees in similar cases
D. Amount at stake and likelihood of results
E. Time constraints (it is urgent?)
F. Nature/length of relationship w/ client
G. Lawyers experience, reputation, and capabilities
H. Whether fee is contingent or fixed
2. A couple of additional factors in corporate cases
A. Sophistication of the client
B. Size and complexity of the matter
II. Hourly fee arrangements
1. Can only charge for the work you actually did.
2. Cant charge two clients for the same work or same time unless
consent
a. Can split fees between multiple, if they consent and total
fee is fair.
b. Cant charge Client B for work that you did for Client A,
even if its applicable for Client B
3. Can charge for expenses, but only at cost; cant charge
overhead to clients
4. Cant charge them for getting up to speed or general legal area
5. Dont make up hours. This is billing fraud.
iii. Contingent fee arrangements
1. Must be in writing.
a. Signed by client
b. Explain to client what the contingency is
c. Explain to client what expenses he is charged for
regardless of outcome
2. No contingency fee for domestic relationship matters or in
criminal defense
3. If you get fired prior to contingency, can usually charge an
hourly quantum merit
a. Occasionally can get contingency fee
4. Can charge a reverse contingency, subject to reasonable
analysis
a. Fee based on amount you save client (i.e., tax assessment
attorney)

VII.

iv. Alternative fee arrangements are OK too take clients stock; barter.
v. Sharing fees: cant do it with non-lawyers, except as salary or benefits
1. Can share fees with other lawyers, though (even outside your
firm)
vi. Handling Client Funds
1. When holding client funds, you act as a fiduciary and must keep
client money separate from other moneyno commingling.
a. Keep accounting and always be prepared to tell client how
much they have
b. If you mix client funds together make sure you know
whose is whose.
i. For pooled accounts, interest goes to state bar
association.
ii. Cant put into your own account.
b. Rules
i. 1.5 Fees
ii. 1.15 Safekeeping Property
iii. 1.8(h) and (i): A Couple of Specific Issues
LITIGATION ISSUES
A. Overview
I. Frivolous claims: dont make them
1. Some overlap with FRCP 11. Differences is Rule 11 gives safe
harbor if withdrawn
II. Candor to tribunal. Preventing and Rectifying Perjury. Witness
preparation.
1. Rules to disclose earlier false statements trumps confidentiality
rule
2. Dont lie to the tribunal, and if you found out later that you lied
earlier about a material fact or law, correct it.
3. Dont falsify evidence or assist/counsel witness to testify falsely.
A. If you think theyre going to be truthful, but they lie, 5
Rs:
I. Recess
II. Remonstrate
III. Rectify
IV. Resign. If client wont rectify.
V. Reveal
4. Dont offer evidence you know to be false.
A. If its a criminal trial and youre representing the
defendant, you must offer evidence if you dont know it to
be false.
B. If its civil trial, you may refuse to offer evidence that you
reasonable believe to be false.
III. Concealment of physical evidence or documents.
1. Cant obstruct other partys access to evidence. Dont destruct
or alter it either.
2. Dont do things that are solely used to embarrass a third person
or use methods of obtaining evidence that violate the rights of
other people.

3. If you get evidence/documents by error of the other side, tell

them immediately.
IV. Duty to disclose legal authority: if of controlling jurisdiction and
directly adverse.
V. Negotiations: youre allowed to puff in this context.
1. Dont lie about a material point of fact or law.
2. What is material? E.g., insurance policy limits, inability to get a
certain expert, Ps aterial status all might be material
contextual issue.
VI. Contact with represented persons. Cant talk to them about subject of
representation without getting their lawyers permission first.
1. Applies only when youre representing a client.
2. Applies when you know the other person is represented.
3. Parties, OTOH, can talk to each other, and lawyers can
encourage them to
4. Be careful with social media.
A. Can use social media as an investigative tool, but
friending counts as communication, so can only use to
the extent that you dont friend them.
B. Same with social media w/r/t communication w/ juror or
judge. R. 3.5
b. Rules
i. 1.2(d) Cant tell client to do something criminal or fraudulent
or assist w/ that.
ii. 3.1 Meritorious Claims and Contentions
iii. 3.2 Expediting Litigation
iv. 3.3 Candor Toward the Tribunal
v. 3.4 Fairness to Opposing Party or Counsel
vi. 3.5 Impartiality and Decorum of the Tribunal
vii. 3.6 Trial Publicity
viii. 3.7 Lawyer as Witness
ix. 3.8 Special Responsibilities of a Prosecutor
x. 4.1 Truthfulness in Statements to Others
xi. 4.2 Communications with Person Represented by Counsel
xii. 4.3 Dealing with Unrepresented Person
xiii. 4.4 Respect for Rights of Third Persons
xiv. 8.4 -- Misconduct
VIII. BUSINESS OF LAW: ADVERTISING AND SOLICITATION
A. Overview
I. Lawyer advertising. Greatly reduced restrictions in recent years.
1. Now, under rules 7.1 and 7.2, you can pretty much advertise
however you want to as long as its not false or misleading
A. Can use actors in ads
B. Can use client testimonials
C. Can advertise on social networking
D. Can use trade names
2. Still cant do direct solitications
II. Solicitation of clients: under 7.3 when your motive is financial, cant
solicit through in-person, phone, or real-time electronic ontact unless
its family, another lawyer, or prior professional relationship

1. Cant contact someone directly if you know they dont want to

be contacted orr if the contact involves coercion, duress, etc.
2. Why the limit on in-person solicitation? Client protection hard
to say no.
III. Non-lawyers.
1. 5.4: Cant share fees with them.
2. 5.5: Unauthorized practice of law in general, cant practice
outside of your jurisdiction, and you shouldnt help non-lawyers
practice law.
IV. Professional obligations
1. Pro Bono. 6.1
2. Accepting appointments. Do it unless you have a really good
reason. 6.2
B. Rules:
I. 5.3 Responsibilities of Non-Lawyer Assistants
II. 5.4 Professional Independence of a Lawyer
III. 5.5 Unauthorized Practice of Law; Multijurisdictional Practice
of Law
IV. 5.7 Responsibilities Regarding Law-Related Services
V. 6.1 Voluntary Pro Bono Public Service
VI. 6.2 Accepting Appointments
VII. 7.1 Communications Concerning a Lawyers Service
VIII. 7.2 Advertising
IX. 7.3 Solicitation of Clients
X. 7.4 Communication of Fields of Practice and Specialization
XI. 7.5 Firm Names and Letterheads
XII. 8.4 Misconduct
XIII. 8.5 Disciplinary Authority/Choice of Law