Process

1. Start with your instincts will help you recognize a problem, but
not always.
2. Identify the interests and duties involved (client, 3rd party, public,
self)
*General duty to act for the clients interest -> up to the limits of
the law
3. Seeking the guidance of legal authority
4. Return to your own instincts
Sources of Professional Regulation
Each state has its own ethical rules promulgated by the states highest
court
These rules are derived from the Model Rules.
Types of Sanctions
Disbarred excluded from the profession altogether
Suspension
Public Reprimand
Private Reprimand
Probation
Rule 8.4: Misconduct
Can be sanctioned even if they were never found guilty of a crime, the
lower burden of proof does this.
Examples:
John is admitted to practice, thereafter he is convicted of perjury and
convicted.
Guilty under 8.4a, b, c, d.
What if the charge was assault with a deadly weapon?
Comment under 8.4 lists violence. Should be disciplined under 8.4(b)
How about soliciting a prostitute?
Comment: Concept can be construed to include offenses concerning
some matters of personal morality, such as adultery and comparable
offenses, that have no specific connection to fitness for the practice of
law. A lawyer should be professionaly answerable only for offenses that
indicate lack of those characteristics relevant to law practice. No
discipline
Possession of marijuana?
Maybe repeated convictions, because of indifference to legal
obligation. Might also be an indicator of a drug problem.

John is admitted in two jdx, A&B, but not in C.

John clearly violates a rule in JDX B, can he be sanctioned in A?
Sanctioned. 8.5(a). Purpose of these rules are to protect the public and
the integrity of the profession. Can get sanctioned in any JDX, and the
sanction does not have to be the same. The punishment can go up or
down.
February 4, 2016
ACP prevents forced disclosure
Lynch
Rule 1.6 creates a duty on the part of the attorney to preserve attorney
client privilege.
In general, a third party who is present is not a privileged eliminates
ACP because there is no expectation of privacy. Therefore, there is no
confidential communication.
Third parties that aid in the communication process do not destroy ACP.
They are necessary parties.
Common Interest Doctrine
Is ordinarily limited to two different situations
Two different lawyers who represent two different clients in situations
of co-defendants who have a joint defense who decide to work
together.
Multiple clients who share the same attorney if they have the same
interest.
Crime-Fraud Exception to ACP
1) Clients purpose of communicating w/ lawyer is to
2) Use the lawyers advice or assistance
3) To further an intended or continuing
4) Crime or fraud
It is not any discussion of future crimes, it must for the purpose of
furthering an intended or continuing crime. Not in the past.
Exceptions to Ethical Duty
1.6(b)(1)
(b)(2)
(b)(3)
Creates no duty anywhere. This is all in the zone of discretion.

In some ways 1.6 is narrower, and some ways broader.

Question:
Client says hes going to grow weed. Is it against the law for the police
to use a thermal imaging?
Under 1.6 do you have an ethical duty not to reveal this?
Yes you have an ethical duty not to disclose it. But could be forced to
disclose it due to a subpoena because it falls under the crime-fraud
exception.
My cordless phone has been picking up a neighbors voice, and I over
heard him say that hes going to beat his wife to a pulp. Covered by
ACP?
Yes, it applies because the wire-tapping has already y happened, and
your client is the one committing the crime.
Is there an ethical duty not to reveal it?
No. Can disclose it if it can avert reasonably bodily harm. You do not
have to disclose it.
Spaulding
Vacated the settlement because he was a minor.
Can let him die, do not have to disclose this.
Purcell
Crime-fraud exception does not apply because the statement of an
intention to commit a crime was without using advice to further the
crime.
The reason to protect all these things is because an informed lawyer
may be able to dissuade the client from improper future conduct. Want
an open, candid discussion between the client and attorney.
Attorney may never disclose anything if they were going to be forced
on the stand. Basically, stabbing their clients in the back.
Waiver
In general, when you voluntarily disclose information to an outsider it
does serve to waive ACP, as long as you are functioning as your clients
agent. Must be authorized and in the pursuit of the clients
interest. This doesnt apply to unauthorized acts and acts not in the
pursuit in the clients interest.

You can also inadvertently pass on information. Inadvertent disclosure

does not waive so long as reasonable precautions are taken to prevent
disclosure. If you dont do that it waives ACP.
February 18
Evidence
3.4a
Discipline is not the only potential punishment, she
While running away from the scene, he dropped his handgun and told
me where the gun is?
Dont have to disclose it, is covered under 1.6 and doesnt fall under
any exception.
Observations that come from information provided from your client is
protected under ACP.
If you discovered the dead body as a direct result from what you were
told, is anything different?
No, still a direct product of information provided from the client and
that is privileged.
What if the body was not dead but dying, must you reveal that
information?
It is discretionary, falls under the exception to prevent bodily harm or
death. Cannot be forced to provide that information.
Could you be forced the location of the gun if you picked it up and
turned it over?
You are destroying the evidentiary value. Therefore, you must tell them
the location. You also have a general duty not to destroy anything of
evidentiary value.
When dealing with the tribunal, you may have an affirmative duty to
disclose facts that are damaging to your client.
There is a pervasive expectation, that there must be committed
advocacy for your client up until these few exceptions.
Candor regarding the law
Rule 3.3 a lawyer shall not knowingly make a false statement about
fact or law to the tribunal or fail to correct a statement made by the
lawyer.
A2 A lawyer shall not knowingly fail to disclose to the tribunal
legal authority in the controlling jurisdiction known to the

lawyer to be directly adverse to the position of the client and

not disclosed by opposing counsel
Why is there a reason to do this?
Promotes judicial economy
1.
2.
3.
4.

Legal Authority
In the controlling jurisdiction
Known to be directly adverse
Not disclosed by opposing counsel

Hypo: You represent a tax evader in the 4th Circuit. He tells you that
he feels guilty for his crimes and asks you to anonymously send him
what he owes to the IRS. The IRS sues and demands you reveal who
sent it. In court you argue based on a leading 9th Circuit case that says
it would be privileged in these circumstances, but dont disclose an old
4th Circuit case thats adverse but arguably distinguishable.
Yes, you have to disclose it. It flatly states a contrary rule in the
controlling jdx.
What does directly adverse mean?
Is the decision one which the court should clearly consider when
deciding the case. The court can be directly adverse even though the
lawyer believes the case is factually distinguishable.
A hornbook does not count as legal authority that needs to be
disclosed.
Frivolous Claims
3.1 and Rule 11
A claim can be dismissed, but that doesnt mean its frivolous. The
standard is absolute no chance of success under existing precedent.
A reasonable attorney in like circumstances could not have believed
his actions to be legally justified.
2 cases: 1920 directly adverse, 1940 directly supportive
Would it be frivolous to argue against 1920? No because you have a
more recent opinion in your favor.
What if it was flipped but 1940 doesnt actually overrule the 1920
opinion could you argue against the 1940? Not frivolous,

If 1920 was the only case and was adverse? Could argue that it was
old, outdated, etc. Should not be subject to any sanctions.
Does the violation of this duty does it always amount to a rule 11
violation?
No, not always.
Why is it a rule 11 in Jorgenson?
Had no chance of success because they disregarded the recent
adverse rulings that they actually worked on.
What is the ethical requirements when it comes to ex parte discussion
in the court?
Have to disclose all material facts known to the lawyer. Have an
affirmative responsibility to come forth with all material information
that a judge should know.
February 25, 2016
Focusing on 4.1, 4.2, 4.3
4.2
A lawyer shall not
1. in representing a client
2. Communicate about the subject of representation
3. With a person known to be represented in the matter
4. Without consent of the other lawyer
5. Unless authorized by law or court order
4.3
Cannot imply that you are neutral. If the third party seems to
misunderstand have an affirmative duty to clear that up.
Hypo: you represent the defendant in a criminal hit and run case.
Assume there is no civil suit involved. Learn that the victim hangs out
at a particular bar by the scene. Before even talking to the prosecutor
you go to the bar, and you see the victim. Can you talk to him?
Is the prosecutor representing him? No so 4.2 does not apply.
Is it a false statement if you dont disclose youre a attorney? Not
forbidden under 4.1. No affirmative misrepsentation.
Comment 1 Generally has no affirmative duty to inform an opposing
party of relevant facts.
Might have a problem under 4.3 this a situation that can be
construed that the lawyer is disinterested. Duty to take reasonable

efforts to correct this misunderstanding. Most people would not

assume that youre not involved in the case without an introduction.
Could you use an investigator to do this? Under 5.3/8.4(a) you are
responsible for the conduct of a person who acts on your behalf.
Undercover investigations, do they violate?
1998 McDade Act Attorney for the gvmt should be subject to laws
and rules to the same extent and manner of other lawyers in that
state. This includes the anti-conduct rules. DOJ argues that it is
authorized by law, See Comment 5. Page 494 in the book.
What about an exception for civil law for misrepresentation during
investigations?
Greater leeway in Civil Rights cases and intellectual property cases
Hypo: Same hit and run case. Know the victim has retained a lawyer
but not in this criminal but to file a parallel civil claim.
May you interview the victim after identifying yourself about the event
without the securing the consent of the lawyer in the civil case?
concerning the matter to which the communication relates so not the
legal matter. Here, are we attempting to talk to the person about the
subject to which he has legal representation? Yes so we must get
consent.
Could you interview that person in another case, an unrelated case of
domestic violence?
Its not the same subject matter in which he is represented. Therefore,
it is safe to interview him
Hypo: Representing the plaintiff in a civil suit against the dealership
for fraud. You know the dealership has retained counsel. You also know
that no individual employee has separate representation. Without
speaking to the business lawyer, could you speak to an employee who
heard the misrepresentation?
It would depend on if they were upper level management.
Why do we have a rule like this?
He sought representation so he is saying in effect that he needs help
and needs counseled through the event. This could be potentially
exploiting this vulnerability. Plus could potentially waive privilege by
protect the attorney client relationship.
Patriarca Case
When is an employee represented by the entitys lawyer?

If they exercise managerial responsibilities in the matter

or alleged to have performed the wrongful acts at issues
or has authority to direct the litigation
Kentucky Bar Case
Negotiations are viewed differently, normal things arent taken as
statements of material facts. This is because it is assumed that there
will be some sense of falsity to further your clients position.
March 3, 2016
Conflicts of Interest
Types
1. L/C Conflict
2. Concurrent Client Conflicts
3. Successive Client Conflicts
4. 3rd Party Conflict
Imputed disqualification lawyers working with a lawyer with a conflict
are disqualified.
How does imputed conflict affect a lawyer and firm when that lawyer
switches firms? Revolving Door Problem
Conflicts between the interest of lawyers and their current
clients
To deal with the infinite variations, there is a general rule (1.7). Then to
deal with common specific conflicts there are provisions that provide
brighter line rules.
Business Transactions
Neither the common law, nor the model rules flatly prohibit this. But
they are discouraged very strongly. Scrutinized very strongly for
fairness. There is a potential for the line to be blurred by the
relationship, the relationship is based on trust so the client may view
the attorney as a protector and advisor, but in a business dealing the
attorney should actually be viewed as an adversary.
Mershon Case
You have to explain everything, see to it that they seek independent
advice, or give advice that independent counsel would. All business
transactions are going to be scrutinized strictly.
A lawyer shall not enter into a transaction with a client if they have
differing interests therein and if the client expects the lawyer to
exercise his professional judgment therein for the protection of the
client, unless the client has consented after full disclosure.

Court says: Best thing to do would not be to participate in business

transactions with a client.
1.8(a)
1) Cant get a good deal, must be fair and reasonable
2) Advise in writing to seek independent counsel and give a reasonable
opportunity
3) Informed Consent
Rule
No Business transaction with a client UNLESS:
1) Terms are fair and reasonable and full disclosure in writing
2) Written advice (+reas opp) to seek independent counsel
3) Informed written consent to essential terms and the lawyers role
Exception to standard commercial transactions for products or services
in which the client is usually involved.
Hypo: Client wants to build a mall. Doesnt want to buy anymore land,
so you buy the adjoining land because you expect the value to sky
rocket.
Rule does not prohibit the attorney from using the information to
benefit yourself if there is truly no case of disadvantage. 1.6(b)
Beyond the disciplinary issue? Could get sued for fiduciary duty.
HYPO: You represent a wealthy client on an ongoing basis, you are
working on a real estate venture. Your client comes to you and tries to
give you a new BMW as a gift. Youre shocked and delighted. May you
accept?
1.8(c) You cant solicit any substantial gifts. If you dont solicit, you
should be able to accept the gifts. Has to be fair. Special responsibility
not to take advantage of a vulnerable client.
What if he says he wants to leave it in the will?
Cant do it. Because you would be preparing the testamentary will. If
you try to pass it on to an attorney within your firm? Cant do it due to
imputed disqualification under 1.8(k)
Sexual Relationships
HYPO: You are representing a client. You meet several times. Your client
invites you over to discuss the case. Once at the apartment the client
ask to show you the scar, and you end up staying the night and a
relationship develops.

You are no longer independent. You may not want to tell them any bad
information that an independent attorney would disclose. Might be
more likely to cut corners or overzealous to win the case for your
client/significant other. The client may be reluctant to question the
attorneys advice. Blurs the line between attorney client, hard to
discern when privilege would apply because of the random
conversations they would have.
What if it goes bad?
You might not want to help them in anyway, or may even have the
incentive to do things that are affirmatively bad. Communication is
going to drop, so representation would be worse but it might be too
late to withdraw. But you have the duty to provide competent
representation.
In re Rinella
1.8(j) flatly prohibits sexual relationships with a client, unless it existed
before the client/lawyer relationship commences.
Is this a good idea?
Cant really use a consent approach because it is impossible to
distinguish actual consent with subtle sexual coercion. Cant really
distinguish that.
Most of the problems are eliminated when there is a pre-existing
consensual sexual relationship.
What if another lawyer in your firm is representing a client who you
find extremely attractive, can you?
Imputed DQ does not imply to j, only I-J.
March 24, 2016
Streamlined version of 1.7
Lawyer cant represent a client if...
1) Representation will be directly adverse to another client; or
2)Significant risk that representation will be materially limited
UNLESS
1)Reasonable belief that representation will be competent and diligent
2)Not prohibited by law
3)Not a representation of both sides in the same proceeding before a
tribunal; AND
4)Each affected client gives informed consent, confirmed in writing
Can have an oral confirmed consent transmitted to the client without a
signed reply from the client.

Why wouldnt all concurrent representation be consentable?

We may not be confident about the outcome, have to preserve the
system.
Materially limited is much more likely to be consentable
HYPO:
You represent C1 on retainer in all matters. C1 has a car accident with
C2, and C2 comes to you to sue C1 for them. Can you represent them?
Obviously not, it is directly adverse. Go through the exceptions: cant
be competent and diligent, repping both sides in the same proceeding
so consent would not be enough.
Competence 1.1
Diligenct - 1.3
Represent C1 in real estate venture, and the same thing happens as
above. Can you represent C2 in the car accident?
Case of direct adversity would have to go through the checklist again.
Your personal interest in trying to preserve your deal with the real
estate could affect your diligence. Also may affect C1s openness with
the attorney because of fears of confidentiality. Thus it fails at #1.
C1 is driving a car in which C2 is a passenger. The car gets rammed by
a truck, both want you to represent them. Can you do it?
No direct adversity, but could potentially be materially limited in the
future because of settlements, differing strategies, etc. Should
probably seek informed consent because of the possible inconsistent
interests. However, if it should be constantly re-evaluated, and you
may seek to withdraw if it becomes directly adverse.
Cant just withdraw from one client because there is a conflict of
interest with a former client. Hot potato doctrine get consent or
withdraw from both.
Criminal case HYPO
Appointed to three co-defendants charged with robbery and rape. As a
general matter, whats the potential problem?
The probability of a plea bargain offer which would lead you there to
be an immediate conflict. Have to pursue that plea bargain, but also
should advocate for your other clients. Could also be a tactical choice
to blame another one of the defendants.

Not consentable because there is no reasonable belief that you will be

competent and diligent. Check the comments for 1.7 ordinarily
should not represent a group of codefendents.
Dresser Industries
April 14, 2016
Process to look for imputed DQs
1. Look at individual lawyers for disqualifications under 1.7/1.9
If 1.7 -> will it materially affect the rest?
If 1.9 -> screen/notice/confidentiality
Consent
Mobile carries actual, not imputed knowledge