Legal Professions

Professor Basset
Spring 2016

Legal Professions Outline

Introduction to Legal Ethics (Chapter 1)
o History and Purpose
This class is a relatively recent development. Before 1970s, didnt have this course.
Watergate Scandal
Watergate Scandal was the a reason why this class started.
That scandal had a lot of lawyers who masterminded and was carried out by attorneys.
o **The Three Tenets**
Ethical provision for lawyer comes from 3 basic tenets:
Honesty
Loyalty
Confidentiality
o Sources of Regulation
People believed that the practice of law was very self regulated. However, law review excerpts
contend that the legal profession is not as self-regulated as is commonly asserted.
The State
The practice of law, like other professions and businesses, affects the public interest and
is subjection to regulation by the states in the exercise of their police powers.
Courts
o Because the practice of law is intimately connected with the administration of
justice, the courts have an inherent power to regulate the legal profession in and
out of court. The ultimate power thus rests with the highest court in the state, not
the state legislature. The highest court generally promulgates the ethics rules and
oversees the discipline of lawyers.
o Ethics Rules- The American Bar Association (ABA) Model Rules of
Professional Conduct and Judicial Code
Every state has professional ethics rules that govern the conduct of
lawyers. In most states, the ethics rules are patterned after models created
by the ABA. A large majority of states have now adopted some version of
the ABA Model Rules of Professional Conduct, with most of the
remaining states following some version of its predecessor, the ABA
Model Code of Professional Responsibility.
These are ethical rules that applies to lawyers.
If attorney breaks or violates rules does not mean that the attorney
can be sued. But it does mean that the attorney can be
reprimanded by being disbarred or another penalty.
Likewise, most of the states have adopted some version of the ABA
Model Code of Judicial Conduct.
State- to State
Rules are not the same from state to state. Just because something
is done properly in one state does not mean it would be proper to
be done in another state.
ABA Model Rules are the same but states have other rules as well.

States will revise ABA rules to make their own rules.

o Case Law
Every state has a body of judge-made case law concerning the rights and
duties of lawyers.
Bar Associations
o Each state has an association of lawyers, commonly called the state bar
association. A majority of the states have an integrated bar system, meaning
that every lawyer who is admitted to practice in the state must be a member of
the state bar association. Common functions of a state bar association are to
administer the states bar examination, to provide continuing education
programs for practicing lawyers, and to assist the state courts in regulating and
imposing professional discipline on lawyers.
The Legislature
o Every state has a body of statutes that govern some aspects of the practice of law.
For example, a state evidence statute may define the scope of the attorney-client
privilege.
The Federal System
Courts
o A lawyer who practices in a federal court or agency is also constrained by federal
statutes, federal case law, and the rules of that particular court or agency. Each
federal court has its own bar, and a lawyer cannot practice before a particular
court without first becoming a member of its bar.
o When attorney passes CA bar, that attorney can practice in CA state courts. But
to practice in Federal Court, must be separately admitted to the federal courts.
No extra exam- just a small application.
o For the Supreme Court, attorney must be practicing for 3 years, must be in good
standing, need 2 references who have been admitted to practice before that court,
and must pay a fee.
Government Attorneys
o An attorney for the federal government is subject to state laws and rules (as well
as local federal court rules)governing attorneys in each state in which the
attorney engages in her duties.
Regulation by Multiple States
A lawyer is subject to regulation by each state in which the lawyer is admitted to
practice, regardless of where the lawyer actually practices law. If the rules of the states in
which the lawyer is admitted are in conflict, choice of law rules apply.
Other Regulators of the Legal Profession
Clients
o Clients worry about lawyers breaking their honor. Clients have said that if you
dont treat me right, Ill take my business elsewhere.
o Clients have shaped lawyers behaviors.
Sophisticated clients (like big corporations) are savvy in knowing where
things are done efficiently.
Insurance Companies
o Tough to function without insurance
o Insurance has shaped lawyers behavior.
Insurance companies are repeat players- they are in court a lot. They are
very sophisticated clients.
Governmental Interventions

Protection of the governments own interests is a striking feature of recent governmental

interventions.
Forfeiture
o Forfeiture of Defendants Assets
Forfeiture of defendants assets have affected attorneys fees. Because of
new laws, the older practices included those charged for crimes can go to
the attorney (prosecutor) and pay the attorney off.
Now, defendants assets frozen when charged to avoid this from
happening.
o Beginning Considerations
Inadvertently Receiving Privileged Information
Rico v. Mitsubishi Motors
o Rule: An attorney who receives privileged documents may not read a
document more closely than is necessary to ascertain that it is privileged.
Once it becomes apparent than content is privileged and not intended for
you, counsel must immediately notify opposing counsel and try to resolve the
situation.
o Facts
Attorney receives privileged documents through inadvertence.
o An attorney is not supposed to read document when it is not intended for them,
even if the attorney accidently received it or got a hold of it.
Rule 4.4(b)
o A lawyer who receives a document relating to the representation of a lawyers
client and knows or reasonably show know that the document was
inadvertently sent shall promptly notify the sender.
Lawyers sometimes receive documents that were mistakenly sent or
produced by opposing parties or their lawyers. If a lawyer knows or
reasonably should know that such a document was sent inadvertently,
then this rule requires the lawyer to promptly notify the sender in order
to permit that person to take protective measures.
Document includes email or other electronic modes of transmission
subject to being read or put into readable form.
Although not required by this rule, attorney should return privileged
document or inform the other side that the attorney will get rid of the
document without reading it.
Client with Diminished Capacity
Rule 1.14(b)
o When the lawyer reasonably believes that the a client has diminished capacity,
is at risk of substantial physical, financial or other harm and cannot protect his
own interests, the lawyer may take reasonably necessary protective action,
including consulting with individuals or entities that have the ability to take
action to protect the client and may seek appointment of a guardian ad litem,
conservator, or guardian.
Comment [1]- The normal client-lawyer relationship is based on the
assumption that the client, when properly advised and assisted, is capable
of making decisions about important matters. When the client is a
minor or suffers from a diminished mental capacity, however, maintaining
the ordinary client-lawyer relationship may not be possible. A severely
incapacitated person may have no power to make legally binding

decisions. However, a client with diminished capacity often has the

ability to understand, deliberate upon, and reach conclusions about
matters affecting the clients own well-being.
Regulating Lawyers Ethics (Chapter 2)
o The Organization of the Bar
Admission to the Practice of Law
In most states, to be admitted to the practice of law, a person must have successfully
completed college and law school, passed a bar exam, and submitted to a bar admission
committee an application for admission, which generally includes proof of good moral
character. If the committee approves the application, the candidate is sworn in to practice
before the highest court of the state.
Each state has its own bar (roster of lawyers who are admitted to practice), and
admission to the bar of one state does not entitle a person to practice law in another state.
o May have to pass another bar exam or meet certain requirements.
Unauthorized Practice of Law
o In CA, cannot practice law until admitted to the state bar.
o When one is taking the bar exam, taking it for one state. Only can practice within
that state. If want to practice law in another states, have to see what that state
requires to practice law (maybe take their bar exam).
o Rule 5.5
(a) A lawyer shall not practice law in a jurisdiction in violation of the
regulation of the legal profession in that jurisdiction, or assist another in
doing so.
This is to protect the public against legal services by unqualified
people. Rule does not prohibit a lawyer from employing services
of paralegals and delegating functions to them, so long as the
lawyer supervises and delegated work and retains responsibility
for their work.
Comment 1- a lawyer may practice law only in a jurisdiction in
which the lawyer is authorized to practice.
o A lawyer may be admitted to practice law in a jurisdiction
on a regular basis or may be authorized by court order to
practice for a limited purpose.
o If lawyer did not pass the bar in that state and practices
law in the state, guilty of unauthorized practice of law.
o Also arises if an individual does not have license to
practice law at all and still practices law.
(b) a lawyer who is not admitted to practice in this jurisdiction shall not:
establish an office or other systematic and continuous presence in
this jurisdiction for the practice of law, or
Hold out to the public or otherwise represent that the lawyer is
admitted to practice law in this jurisdiction.
(c) a lawyer admitted in another state, and not disbarred or suspended
from practice in any jurisdiction, may provide legal services on a
temporary basis in this jurisdiction if: 4 temporary exceptions to
general rule: that the lawyer must be admitted in that state to
practice law in that state:

(1) that lawyer is working on the case in association with a lawyer

who is admitted to practice in that jurisdiction (local lawyer) and
who actively participates in the matter,
o the interest of the clients and the public are protected if a
lawyer admitted only in another jurisdiction associates
with a lawyer licensed to practice in this jurisdiction.
o But for this paragraph to apply, the lawyer admitted to
practice in this jurisdiction must actively participate in
and share responsibility for the representation of the
client.
(2) lawyer is authorized to appear before a tribunal and has
received authorization by law to appear.
o The lawyer may be authorized to practice law for a limited
purpose or restricted basis. This means pro hac viceAuthority to appear before tribunal may be granted
pursuant to formal rules governing admission pro hac vice
or pursuant to informal practice of tribunal or agency.
Thus to appear before tribunal, lawyer must obtain
admission pro hac vice (for this term only)
before appearing before tribunal.
o This rule also allows a lawyer who is rendering legal
service on temporary basis to engage in conduct in
anticipation of proceeding or hearing in jurisdiction where
lawyer reasonably expects to be admitted pro hac vice.
Ex. Meetings with the client, interviews of
potential witnesses, review of documents.
(3) Lawyer is in arbitration, mediation, or other ADR proceedings
and the services given in that state are reasonably related to the
lawyers practice in a jurisdiction where the lawyer is admitted to
practice and are not services which the forum requires pro hac
vice admission.
(4) Or legal services arise out of or are reasonable related to the
lawyers practice in a jurisdiction in which the lawyer is admitted
to practice.
o This includes:
Lawyers client may have been previously
represented by the lawyer, or may be resident in or
have substantial contacts with the jurisdiction in
which lawyer is admitted.
Or the matter may have significant connection with
that jurisdiction.
*Note*- Services may be temporary even though the lawyer
provides services in this jurisdiction on a recurring basis, or for an
extended period of time, as when the lawyer is representing a
client in a single lengthy negotiation or litigation.
Cannot assume that the other state will allow you to practice.
Must make sure that they adopted this rule in order to
practice.

(d) A lawyer admitted in another US jurisdiction and not disbarred or

suspended from practice in any jurisdiction, may provide legal services in
this jurisdiction that: 2 permanent exceptions:
(1) in house counsel; or
o But if in house counsel wants to litigate, they usually
contract out litigation.
o If attorney who is not authorized to practice in that state
wants to litigate for in house counsel, may be able to get
pro hoc vice from the court.
(2) authorized to practice federal law.
o Once you are authorized to practice federal law, can
practice federal law in any state.
o But must be authorized to practice federal law, even if
authorized to practice state law in that state.
o What are the preconditions to temporary and permanent exceptions?
Cannot be disbarred or suspended,
Have to be admitted to practice the law in a state in the US
o Sheller v. Superior Court (Pro Hac Vice)
Rule: The court has the authority to revoke an attorneys pro hac
vice statuts when that attorney has engaged in conduct that would be
sufficient to disqualify a California attorney.
Pro Hac Vice- for this term only.
Pro hac vice is routinely granted but encompasses narrow
circumstances. It is an exception to needing to be admitted in the
state before practicing.
Asking for this one case- it is not as narrow as for one court
appearance, but state will grant pro hac vice for one particular
case.

The MPRE
o Test offered 3 times/year- March, August, and November.
o Contains 60 multiple choice and gives you 2 hrs and 5 minutes to complete.
Out of the 60, only 50 will be scored but you dont know which 50.
o In CA, to pass the test, need scaled score of 86. You cannot know for sure how
much you need to get right.
But on average, need at least in the high 30s to pass.
o Most states require MPRE except Maryland, Puerto Rico, Washington, or
Wisconsin.
o For the exam, students need to know ABA Rules of Professional Conduct,
Judicial Conduct, and cases.

Residency Requirements
o A state cannot require that a person be a United States citizen to be admitted to
the practice of law. Such a requirement violates the Equal Protection Clause.
Similarly, a requirement that a bar applicant be a resident of the state in which he
is seeking admission to practice law violates Privileges and Immunities Clause.
o Cannot require that person be US citizen or resident of the state where seeking to
practice law.

The Moral Character Application/ Character Requirements

o An applicant for admission to the bar must respond truthfully and completely to
inquiries made on the application or otherwise by the admissions committee. The
state has an interest in insuring that lawyers admitted to practice possess high
moral standards and are mentally and emotionally stable.
Part of application to be attorney.
Required in every state.
o ***Good moral character includes***
Honesty
Respect for the law
Respects for rights of others
o Investigative Procedure
A bar applicant is usually required to fill out a detailed questionnaire and
list a number of references as part of his application. This information is
then checked either by letter or personal investigation. If there is a
question concerning the applicants moral fitness, the applicant may be
asked to appear at a hearing before the committee.
o Conduct relevant to Moral Character
All aspects of an applicants past conduct that reflect on his honesty and
integrity are relevant to an evaluation of moral character. The committee
may consider any conduct or charges against the applicant- including
those charges of which the applicant was acquitted- and any litigation to
which the applicant was a party.
Criminal Conduct
Mere conviction of any crime is not sufficient to deny the
admission of an applicant to practice law. To cause
disqualification of an applicant, the crime in question must
involve moral turpitude, such as a crime involving intentional
dishonesty for the purpose of personal gain. (e.g. forgery, bribery,
theft, perjury, robbery) or a crime involving violence (e.g. murder,
rape).
Adolescent Misbehavior and Civil Disobedience
o Examples of criminal behavior that do not rise to a level of
moral turpitude include an applicants arrest when he was
youth for fistfight and applicants arrest for nonviolent
civil disobedience.
o If crime happened years ago, it will be thought of as
adolescent indiscretion and will not be weighed as heavily
as if someone had recently broken the law.
Rehabilitation
An applicant may still gain admission to the legal profession
despite past conduct involving moral turpitude if he can
demonstrate sufficient rehabilitation of his character and a present
fitness to practice law.
Concealment of Past Conduct = Moral Turpitude
False statements or concealment of facts in response to an inquiry
by the admissions committee is itself evidence of sufficient lack of
moral character to deny admission- even if the underlying conduct
does not involve moral turpitude.

o The lying about it and hiding the facts is the moral

turpitude.
o False Statements and Failure to Disclose- Rule 8.1
(a) An applicant for admission to the bar must not knowingly make a
false statement of material fact or
Ex. In Re Debartolo
o Facts
Debartolo incurred 200-400 parking tickets,
impersonated police officer, lied about his
residence, and said he attended wrong high school.
o Listing addresses (residence)
Need to track and figure out all addresses lived.
MPRE is looking for Candor- truthfulness. Bar
wants to see if you are being honest. Here, he did
not do so.
o 200-400 parking tickets
Committee was worried that he does not have
respect for the law because he had 200-400.
o Timing
It matters when an event happens. If it happened
recently, it will be given more weight than if it
happened years ago. If it happened years ago, it
will be thought of as adolescent indiscretion and
will not be weighed as heavily as if someone had
recently broken the law.
**Timing is very important**
If an individual knowingly makes a false statement and does not
answer all the questions truthfully, that is grounds for denying his
bar admission. But if the failure to reveal is discovered after
individual admitted to bar, that individual is subject to discipline.
(b) An applicant (or a lawyer in connection with an applicants
application for admission to the bar) must not: Fail to disclose a fact
necessary to correct a misunderstanding known by the person to have
arisen in the matter, or knowingly fail to respond to a lawful demand for
information from admissions or disciplinary authority.
Ex. Bar application B applied for admission using a forged
certificate of graduation from the State University School of Law.
Attorney A knew about Bs forgery, and she knew that the forgery
had not been detected by the bar admission officials. A must
voluntarily tell the bar admission officials about the forgery.
Membership in Bar Associations
Lawyers organize themselves into formal groups. The Preamble to the ABA Model
Rules suggests the goals sought by lawyer associations: to improve the law, legal
education, the administration of justice, and the quality of services rendered by the legal
progression, to promote law reform, to increase the availability of adequate legal
assistance to those who cannot afford it, and to help preserve the independence of legal
profession by assuring that self-regulation is conducted in the public interest.
Nationwide Organizations
o There are dozens of nationwide organizations of lawyers.

Ex.. The National Bar Association, National Lawyers Guild, American

Law Institute.
o American Bar Association
The largest of the nationwide bar organizations is the American Bar
Association.
ABA functions through an elaborate structure consisting of its officers,
the House of Delegates, the Board of Governors, and the Assembly.
Much of ABAs work is accomplished through subgroups. The largest of
these groups are called sections. They are devoted to distinct areas of
practice or professional interest such as natural resources law, public
utility law, etc.
In addition to the sections, there are approximately 70 smaller groups.
ABA publications include the monthly American Bar Association Journal,
which is distributed regularly to all members.
State Bar Associations
o Each state has a statewide bar association, organized like the American Bar
Association.
o Typical functions of state bar association include helping the states highest court
run the lawyer discipline system, conducting continuing legal education
programs for the members, establishing and interpreting legal ethics rules, setting
statewide certification standards for legal specialists, lobbying and conducting
other political activities regarding issues that affect the legal profession, helping
make legal services available to people who cannot pay, etc.
o Significant distinction between national organizations and many state bar
associations is compulsory membership.
Membership in all of the national orgs is voluntary. By contract, many
states require that all lawyers practicing in the state belong to the state bar
association. The lawyers license to practice law is membership in the
state bar, which must be renewed annually by payment of dues. This form
of compulsory membership is usually described as mandatory or
integrated bar.
City, County, and Special Interest Bar Associations
o Bar associations organized on a local level, such as county or city, are voluntary
in membership.
o Some are organized along subject or special interest lines such as trial practice.
These orgs provide continuing professional education, act as a public voice on
legal issues, serve as a medium for new lawyers to become acquainted with other
practitioners and function as social groups.
o Sources of Legal Ethics Rules
State Codes of Conduct, Statutes, and Court Rules
Each state has a set of ethics rules that govern the lawyers in that state.
In addition, some states have special statutes that govern the conduct of lawyers, and
most courts have local rules that apply to all layers who appear before them.
Includes Statues such as CA Bus & Prof Code.
American Bar Association Model Code of Professional Conduct
ABA Rules designed to replace ABA Code.
Most states follow ABA Rules today.
American Bar Association Code of Judicial Conduct

ABA has created Model Code of Judicial Conduct as a model for the various states to
follow in adopting their own sets of rules for judges.
Advisory Opinions of Ethics Committees
The ABA and many state and local bar associations have ethics committees- groups of
lawyers who meet to consider, debate, and write opinions about questions of legal ethics.
Some ethics committees publish their opinion.
They are not binding on any court or disciplinary body but are often cited as authority.
The opinions are meant for guidance- persuasive authority.
Ethics Opinions and Ethics Hot Lines
Some state and local bar associations provide quick ethics research service by telephone.
An attorney who has an ethics question can call the hotline. The hotline will refer the
caller to the relevant cases, opinions and other authorities but the stuff does not give
advice.
o They do not want to be liable but they will give you the rules.
o Lawyer Disciplinary Proceedings
Discipline refers to the penalties imposed by a disciplining agency on an attorney who has
breached a rule or statute for which discipline can be imposed.
Types of Discipline
Disciplinary action is meant to protect the public. Both transaction lawyers and litigation
lawyers subject to rules.
Three types of discipline are common:
o Disbarment
The most serious type of discipline is disbarment. Although disbarment
typically means permanent removal from practice of law, in some states a
disbarred attorney may subsequently petition for readmission.
o Suspension
More stringent level of punishment because the attorney is prohibited
from practicing law for the term of the suspension, which can range from
several months to several years.
Suspension may include the requirement that the attorney take and pass a
legal ethics bar exam before being readmitted to active practice.
Sometimes the suspension is stayed and the attorney is placed on
conditional probation.
Ex. An attorney recovering from addiction to alcohol or other
drugs may be permitted to continue practicing law but required to
undergo psychiatric or other specialized supportive or
rehabilitative help and make progress reports on that help.
o Reprimand (either public or private)
The mildest form of discipline. Such discipline does not limit the
attorneys right to practice law.
Private reprimand
is unpublished, private communication in writing from the agency
to the attorney.
Goes to state bar website
Public reprimand
Reprimand that is published- usually in publications aimed only at
attorneys, but sometimes in the public press as well.
It names the attorney and describes the improper conduct, thus
serving both an educational and a warning function.

Can come up in e-jounrals.

Conduct Subject to Discipline
Violation of disciplinary rules and some statutes constitutes grounds for imposition of
discipline.
An attorney can be disciplined for committing a crime that reflects adversely on his or
her honesty, trustworthiness, or fitness as an attorney. The crime need not be committed
in ones role as an attorney, but can be totally unrelated to the practice of law.
An attorney can be disciplined for conduct that involves dishonesty, fraud, deceit, or
misrepresentation or that prejudices the administration of justice.
Discipline can also be imposed for specific statutory violations, for example statutes that
prohibit ambulance chasing, having improper sexual relations with clients, or advocating
violent overthrow of the government.
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.
(b) commit a criminal act that reflects adversely on the lawyers honesty,
trustworthiness or fitness as a lawyer in other respects,
Many kind of illegal conduct reflect adversely on fitness to
practice law (e.g. fraud and the offense of willful failure to file
income tax return).
Lawyer should be professionally answerable only for offenses that
indicate lack of those characteristics relevant to practice law. (e.g.
violence, dishonesty, breach of trust, or serious interference with
the administration of justice)
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation,
A lawyer will argue that they did not act in capacity of lawyer but
in personal capacity. But that will not work. Even if the dishonesty
occurred in personal capacity, it is still against the rules.
(d) engage in conduct that is prejudicial to administration of justice,
A lawyer who, in the course of representing a client, knowingly
manifests by words or conduct, bias or prejudice based upon
race, sex, religion, national origin, disability, age, sexual
orientation or socioeconomic status, violates this section when
such acts are prejudicial to the administration of justice.
Legitimate advocacy respecting the foregoing factors does not
violate this.
A trial judges finding that peremptory challenges were exercised
on a discriminatory basis does not alone establish a violation of
this rule.
(e) state or imply an ability to influence improperly a government agency
or official or to achieve results by means that violate Rules of
Professional Conduct or other law, or
(f) knowingly assist a judge or judicial officer in conduct that is a
violation of applicable rules of judicial conduct or other law.
Rule 8.3. Reporting Professional Misconduct

o (a) A lawyer that knows that another lawyer has committed a violation of the
Rules of Professional Conduct that raises a substantial question as to the
lawyers honesty, trustworthiness, or fitness as a lawyer, shall inform the
appropriate professional authority.
Self-regulation of the legal profession requires that members of the
profession initiate disciplinary investigation when they know of a
violation of the Rules of Professional Conduct. Lawyers have a similar
obligation with respect to judicial misconduct.
substantial- refers to the seriousness of the possible offense.
Report should be made to the bar disciplinary agency unless some other
agency is more appropriate in the circumstances.
This can include alcohol and drug abuse if the fitness of a lawyer is in
question.
Person who knows about this is obligated to inform authority.
o (b) A lawyer who knows that a judge has committed a violation of applicable
rules of judicial conduct that raises substantial question as to the judges fitness
for office shall inform the appropriate authority.
o (c) this rule does not require information protected by confidentiality or
information gained by a lawyer or judge while participating in an approved
lawyers assistance program.
Elements for reporting
o Raises substantial question to fitness
o Actual knowledge
o Making report must not violate ethical duty of confidentiality
o Consuming their life and injuring their professional career
How Discipline is Imposed
Each state has procedural rules for attorney discipline cases.
o First, a disciplinary matter must be brought to the attention of the disciplinary
agency. Usually, the matter is reported by an unhappy client, an adversary party
or attorney, or a judge. Can also happen if attorneys hear about misconduct from
a non-privileged source.
In most jurisdictions, such an attorney is required to report the
misconduct to the disciplinary agency if the misconduct raises a
substantial question about the other attorneys honesty, trustworthiness, or
fitness to practice.
o First, an investigator looks into conduct that has been brought to the attention of
the disciplinary agency. The investigator then reports to a disciplinary board the
results of the investigation and recommendations for the disposition of the
matter.
o The board reviews the recommendations for disposition of the matter. The board
reviews the recommendations and then, either dismissed the matter, requests
additional investigation or issues a private or public reprimand upon consent of
attorney. Additionally, the board may file a formal complaint with the state
supreme court, seeking specific action such as reprimand, suspension,
disbarment, or other sanctions.
o The supreme court then appoints a referee to conduct hearings and make findings
and recommendations, which can be either for dismissal or imposition of
discipline.
o Both the board or the attorney may appeal the referees report, typically to the
state supreme court, which makes a final disposition of the case.

Rule 8.5- Disciplinary Authority: Choice of Law

o (a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is
subject to the disciplinary authority of this jurisdiction, regardless of where the
lawyers conduct occurs. A lawyer not admitted in this jurisdiction is also subject
to the disciplinary authority of this jurisdiction if the lawyer provides or offers to
provide any legal services in this jurisdiction. A lawyer may be subject to the
disciplinary authority of both this jurisdiction and another jurisdiction for the
same conduct.
Ex. Attorney in CA gives legal advice in Florida, attorney can be
disciplined in CA and Florida, or can be simultaneously disciplined in
both states for some act.
Florida is where act had impact.
o (b) Choice of Law. For disciplinary authority of this jurisdiction, applied as
follows:
(1) for conduct in connection with a matter pending before a tribunal, the
rules of the jurisdiction in which the tribunal sits, and
a lawyers conduct relating to a proceeding pending before a
tribunal, the lawyer shall be subject only to the rules of the
jurisdiction in which the tribunal sits, unless rules of tribunal
provides otherwise.
(2) for any other conduct, the rules of the jurisdiction in which the
lawyers conduct occurred, or, if the predominant effect of the conduct is
in a different jurisdiction, the rules of that jurisdiction shall be applied to
the conduct. A lawyer shall not be subject to discipline if the lawyers
conduct conforms to the rules of a jurisdiction in which the lawyer
reasonably believes the predominant effect of the lawyers conduct will
occur.
Advertising and Solicitation
o Advertising generally refers to a lawyers general communications with the public at large or a
segment of the public. In contract, solicitation generally refers to individual contact with a layperson,
initiated by a lawyer (or lawyers agent), that is designed to entice the layperson to hire the lawyer. A
blatant form of solicitation is ambulance chasing in which a lawyer (or lawyers agent) seeks out
injured people and urges them to hire the lawyer to represent them.
o Solicitation has traditionally been punished more harshly than advertising, and for good reason. The bar
and courts are concerned with the effect of solicitation on those solicited, especially unsophisticated lay
people, when under stress and unable to exercise careful, informed judgment about the hiring of a
lawyer.
o Advertising
Historical Summary
Historically, lawyers were to be passive receivers of legal business, not active seekers of
it. A person who needed a lawyer could simply ask a friend or neighbor to recommend a
good one, and in that fashion the trade of honest, competent lawyers would grow and
prosper.
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.
o This rule governs all communications about a lawyers services, including
advertising.

o Truthful statements that are misleading are also prohibited by this rule. A truthful
statement is misleading if it omits a fact necessary to make the lawyers
communication considered as a whole not materially misleading. A truthful
statement is also misleading if there is a substantial likelihood that it will lead a
reasonable person to formulate a specific conclusion about the lawyer or the
lawyers services for which there is no reasonable factual foundation.
Basic Rule- Communications must be true and not misleading
o A lawyer is subject to discipline for any type of communication about the lawyer
or the lawyers services that is false or misleading.
This applies to all kinds of communications, including advertisements,
personal communications, office signs, professional cards, professional
announcements, letterheads, brochures, letters sent my post or email, and
recorded telephone messages.
Types of False or Misleading Communications
o Outright Falsehoods
A lawyer must not use a communication that is simply false.
Ex. Attorney As office letterhead lists him as Trial CounselExxonMobil Corp. Indeed, A used to do trial work in the inhouse law department of ExxonMobil, but no member of that
department carries the title Trial Counsel. A left Exxon 18
months ago. The listing is outright false.
o True Communications that Mislead
A communication can be true but misleading if it omits a fact that is
necessary to make the communication as a whole not materially
misleading.
Ex. Lawyer Ls display advertisement in the telephone book
Yellow Pages includes the phrase Yale Law School- 1987.
Indeed, L did attend a 2-week summer program at Yale Law
School in 1987, but he earned his law degree at a school of
considerably less distinction. The statement is misleading.
Ex. Ads that state cases that have very large verdict- people may
be mislead to believe that all verdicts result in high money
damages. However, if there is astrix and disclaimer, this saves the
ad from being misleading.
o Communications that Create Unjustified Expectations
A true communication about a lawyers accomplishments in past cases is
misleading if it could make a reasonable person think that the lawyer
could do as well in a similar case, without regard to the facts and law in
that case.
Ex. Attorney A won jury verdicts in excess of $500,000 in the last three
asbestos cases she took to trial. Her television advertisement includes that
truthful statement without explaining that the recovery in asbestos cases
varies dramatically, depending on the precise facts surrounding plaintiffs
exposure to asbestos. As statement is misleading.
o Unsubstantiated Comparisons
An unsubstantiated comparison of a lawyers services or fees with those
of other lawyers is misleading if it could make a reasonable person think
that it can be substantiated.

Ex. Lawyer L advertises that her fees for estate planning services are 15%
lower than then prevailing rate in Fairmont County. If L cannot
substantiate that statement with hard data, she is subject to discipline.
Use of Disclaimer
o The inclusion of an appropriate disclaimer or qualifying language may preclude
a finding that a statement is likely to create unjustified expectations or otherwise
mislead a prospective client.
o A disclaimer can only save a true statement that may be misleading. It cannot
save a false statement.
Limitations on Advertising
Rule 7.2(a) gives lawyers broad latitude in advertising their services in a true and nonmisleading manner.
Rule 7.2- Advertising
o (a) Subject to requirements of 7.1 and 7.3, a lawyer may advertise services
through written, recorded, or electronic communication, including public
media.
o (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
(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 a
lawyer referral service that has been approved by an appropriate
regulatory authority.
A legal service plan is a prepaid or group legal service plan or a
similar delivery system that assists prospective clients to secure
legal representation. A lawyer referral service, on the other hand,
is any organization that holds itself out to the public as a lawyer
referral service. Such referral services are understood by
laypersons to be consumer-oriented organizations that provide
unbiased referrals to lawyers with appropriate experience in the
subject matter of the representation and afford other client
protections.
A qualified lawyer referral service is one that is approved by an
appropriate regulatory authority as affording adequate protections
for prospective clients.
(3) pay for a law practice in accordance with Rule 1.17, and
if selling part of practice
(4) refer clients to another lawyer or a nonlawyer professional pursuant to
an agreement that provides for the other person to refer clients or
customers to the lawyer, if: (2 part test)
the reciprocal referral agreement is not exclusive and
o Lawyer cannot pay someone a referral fee. Not allowed to
give referral fee. But what is allowed: if attorney gets
someone that needs criminal defense and attorney is not a
criminal defense attorney, can refer the client but only if
you give multiple names. This is what exclusive means.
the client is informed of he existence and nature of the
agreement

o If an arrangement creates a conflict of interest for either

the referring or the receiving lawyer, then that lawyer must
obtain the clients informed, written consent.
A reciprocal referral arrangement may create a
conflict because it gives the referring lawyer a
personal financial interest in sending the case to his
referral counterpart rather than to some other
lawyer.
o There cannot be an exchange of money.
o (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 7.4- Communication of Fields of Practice and Specialization
o (a) A lawyer may communicate the fact that the lawyer does or does not practice
in particular fields of law.
o (b) A lawyer admitted to engage in patent practice before the US Patent and
Trademark Office may use the designation Patent Attorney or a substantially
similar designation.
o (c) A lawyer engaged in Admiralty practice may use the designation Admiralty,
Proctor in Admiralty or substantially similar designation.
o **(d) A lawyer shall not state or imply that a lawyer is certified as a specialist in
a particular field of law, unless: ** (2 requirements)
(1) the lawyer has been certified as a specialist by an organization
that has been approved by an appropriate state authority or that has
been accredited by the American Bar Association, and
(2) the name of the certifying organization is clearly identified in the
communication.
Consent of Named Clients
o If a lawyer wishes to identify some regular clients in an advertisement, the
lawyer should first obtain the clients consent. [ Rule 7.2, comment 2]. Such
information is confidential.
Identification of Advertiser
o Every advertisement must include the name and office address of at least one
lawyer or law firm that is responsible for its content. [Rule 7.2(c)]
Payments for Recommending Lawyers Services
o A lawyer must not give anything of value to a person for recommending the
lawyers services. [ABA 7.2(b)] But this rule does not prohibit a lawyer from
paying reasonable cost of advertising, nor does it prohibit a lawyer from paying
people to prepare and disseminate the advertising. Furthermore, it does not
prohibit an organization from advertising the services offered by the
organization. Finally, it does not prevent a lawyer from paying the usual charges
of a legal service plan or a nonprofit or qualified lawyer referral service.
Qualified means that the lawyer referral service has been approved by
the appropriate regulatory authority.
Reciprocal Referral Arrangements
o Despite the general rule that a lawyer must not pay someone for the referral of a
case, the ABA Model Rules permit a lawyer to set up a reciprocal referral
arrangement with another lawyer or with a nonlawyer professional.
I.e. I will refer potential clients, patients or customers to you if you do
likewise for me.

o Such reciprocal arrangements subject to the following restrictions:

The arrangement must not be exclusive
(i.e. the lawyer must not promise to refer all potential estate
planning clients to his friend F and to no one else. Must also refer
other attorneys in the list.)
The referred client must be told about the arrangement
If the arrangement creates a conflict of interest for either the
referring or receiving lawyer, then that lawyer must obtain the
clients informed, written consent.
The reciprocal arrangement must not interfere with the lawyers
professional judgment as to making referrals.
Reciprocal referral arrangements should not be of indefinite duration
and should be reviewed periodically.
The Bates Case
Rule: First Amendment commercial speech doctrine protects attorney advertising
that is truthful and not misleading.
Facts
o Two Arizona lawyers violated Arizonas ban on lawyer advertising.
o Attorneys opened legal clinic that was low cost. They wanted to increase their
volume by running a newspaper ad.
Reasoning
o Anti-trust flavor
o Free competition among lawyers raises quality and reduces prices, and
competition works best when consumers are well informed about their choices.
o The court believes that advertising would make legal services more accessible to
the general public
In Re RMJ
Rule: The Court ruled that under the commercial speech doctrine a state may flatly
prohibit lawyer advertising that is false or misleading, and that a state may regulate
advertising that is not misleading if the state can demonstrate that the regulation
directly serves a substantial state interest, and that the regulation is no more
extensive than is necessary to serve that interest.
The Peel Case
Rule: A lawyer who is certified may call himself a certified specialist, provided that
he identifies the organization that certified him and takes related steps to avoid
misleading the public.
Facts
o Lawyer was certified as a specialist in trial advocacy, not by the bar of his state,
but by the National Board of Trial Advocacy, a private org that uses high,
rigorously-enforced standards for certifying trial advocates.
Zauderer
Rule: Narrowly targeted newspaper ads are permissible as long as the ads are not
misleading.
o Zauderer could not be disciplined simply for placing an ad that concerned a
specific legal problem and that was designed to lure a narrow group of potential
clients.
Facts
o Lawyer placed a newspaper ad that was aimed at a narrow audience- users of
Dalkon Shield, an IUD device that allegedly injured many women.

o Solicitation
Basic Rule: A lawyer must not seek fee-paying work by initiating personal or live
telephone contact, or real-time electronic contact, with a nonlawyer prospect with whom
the lawyer has no family, close personal, or prior professional relationship.
Thus, an attorney who hangs around in the hallway of the courthouse, offering legal services for
a fee to criminal defendants who are not represented by counsel, is subject to discipline.
Likewise, a lawyer who hears on the radio that a person was badly injured in an accident and
promptly telephones that persons spouse offering legal services for a fee is subject to discipline.
Use of Agents to Solicit
Rule 8.4(a) prohibits a lawyer from using an agent to do that which the lawyer must not
do. Thus, a lawyer must not use an agent to contact prospective clients in a manner that
would violate Rule 7.3.
o Ex. Lawyer L hired R to be a claims investigator. Rs work involved checking
accident and crime reports at the local police station and then personally
contacting those involved to advise them of their legal rights. L furnishes R
with copies of her standard for retainer agreement and instructs R to sign up
clients when possible. L is subject to discipline.
Limits on Solicitation
Rule 7.3- Direct Contact with Prospective Clients
o (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
(financial gain), unless the person contact:
(1) Is a lawyer, or
(2) Has a family, close personal, or prior professional relationship with
the lawyer.
What is allowed
Fliers
Recorded telephone message
Emails
Why this prohibition?
There is potential for abuse inhere in direct in-person, live
telephone or real time electronic contact by a lawyer with a
prospective client known to need legal services. The prospective
client, who may already feel overwhelmed by the circumstances
giving rise to the need for legal services, may find it difficult fully
to evaluate all available alternatives with reasoned judgment and
appropriate self-interest in the face of the lawyers presence and
insistence upon being retained immediately.
o (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: (exceptions to exceptions)
(1) the 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.
o (c) Every 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
lawyer or family, or person with close personal or professional relationship
with lawyer.
o (d) A lawyer may participate with a prepaid group legal service plan operated by
an organization not owned or directed by the lawyer that uses in-person or
telephone contact to solicit memberships or subscriptions for the plan from
persons who are not known to need legal services in a particular matter covered
by the plan.
Ex. The X, Y, and Z law firm learns that the Lincoln Teachers
Association wants to form a group legal service program for
schoolteachers. In such a program, the association would contract with a
local law firm to provide a specified yearly amount of legal service to
each teacher subscriber. The X, Y, Z firm may initiate personal contact
with the association to present a proposed plan. Furthermore, if the
association ends up hiring the X, Y Z firm, it is proper for the association
to make personal contact and live telephone contact with schoolteachers
to urge them to subscribe to the plan.
Offers of Free Legal Service
The basic rule in 7.3(a) applies only when a significant motive for the lawyers
solicitation is the lawyers pecuniary gain. But a lawyer who volunteers to represent
someone without a fee, and without other hope of pecuniary gain, is not subject to
discipline of solicitation.
Ohralik Case
Rule: Lawyers or their agents are not allowed to ambulance chase. No in-person
solicitation.
Facts
o Lawyer Oralik learned about a car accident in which two 18 year old girls had
been injured. After visiting one of the girls parents, he went to go visit the girl in
the hospital. At the hospital, he offered to represent her and asked her to sign a
fee agreement. A few days later, the girl called him and told him that he can
represent her.
o He went to visit the second girl and offered to represent her but she told him that
she didnt know what was going on. He offered to represent her for 1/3
contingent fee agreement and she said O.K. The next day, the mom of that girl
told Oralik that they didnt want to sue anyone but he insisted that the girl
entered into a binding agreement with him.
Reasoning
o The First Amendment does not protect attorneys conduct here. The court said
that in-person solicitation of fee-paying legal business poses significant dangers
for the lay person who gets solicited. The lay person can be subjected to a high
pressure sales pitch that demands immediate response and gives no time for
comparison and reflection. Further, in- person solicitation gives no opportunity
for counter-information by the organized bar, or others who might offer calmer
advice.
o Attorney approached the girls when they were especially vulnerable. He was
subjecting them to undue pressure. There are people who have trouble with
saying no and an attorney may coerce someone to agree to representation, even if
its not what they really want. This is danger with in-person solicitation.

In person solicitation creates a grave risk that the lawyer will invade the
clients privacy, overreach, or use undue influence.

Primus Case
Rule: Solicitation of prospective litigants by nonprofit organizations that engage in
litigation as a form of political expression and political association constitutes
expressive and associational conduct entitled to First Amendment protection.
Facts
o Primus, a private practitioner, was a member of ACLU. She met with some
women who allegedly had been sterilized or threatened with sterilization as a
condition of receiving Medicaid benefits. She informed the women of their legal
rights and later ACLU informed Primus that it would supply free legal counsel to
the women who had been sterilized. Primus wrote the letter to one of the women
to inform her of the ACLU offer.
o South Carolina then publicly reprimanded Primus for solicitation.
Reasoning
o Court said that Primus had not been guilty of in-person solicitation for
pecuniary gain, but had simply conveyed an offer of free legal help by a
recognized civil rights group. Also, the motive was partly political. There was no
pecuniary gain here for the attorney.
o Since there was no evidence that Primus had overreached, or misrepresented, or
invaded someones privacy, the court decided that the discipline imposed on her
was unconstitutional.
Shapero Case
Rule: Solicitation letters are allowed. A state cannot ban solicitation letters outright,
but it can impose reasonable regulations on their use. If using mailing, must include
the words advertising material on the front of the envelope so that people no its
an ad.
Rule: Court said that need to have reasonable time, place and manner restrictions.
Cannot have blanket restriction.
Facts
o Lawyer Shapero wanted to mail solicitation letters to people he knew were facing
foreclosure on their homes for failure to pay their debts.
Reasoning
o Court said that solicitation letters more analogous to targeted newspaper ads in
Zauderer than in person solicitation in Ohralik. In person solicitation creates a
grave risk that lawyer will invade the clients privacy, overreach or use undue
influence. That risk is far less with a letter, which the recipient can set aside for
later study, ignore, or throw away in the trash.
You do not feel the pressure with solicitation letter.
Went for It Case
Rule: The court said that a 30 day waiting period before sending out solicitation
materials is reasonable.
Facts
o An attorney challenged rule prohibiting attorneys from sending solicitation letters
to injury victims or their relatives until after 30 days elapsed.
But the court does not say that there has to be a 30 day waiting period for solicitation
materials. There is nothing in ABA rules that says that attorney must wait 30 days. This
is just something that Florida implemented.
o Firm Names and Letterheads

Names of Law Firms

A private law partnership may be designated by the names of one or more of the
partners. When partners due or retire, their names may be carried over to successor
partnerships. For example, a law partnership may properly continue to practice under the
name the X partnership, even though lawyer X is not retired. The firms letterhead may
list Xs name as a retired partner.
Trade Names [Rule 7.5(a)]
o Trade names (e.g. The Smith Firm)- even ones that do not include the names of
one or more partners- are permitted, provided the name is not misleading and
does not imply a connection with a governmental agency or with a public or
charitable legal services organization.
Multistate Firms [Rule 7.5(b)]
A law firm that has offices in more than on jurisdiction may use the same name, Internet
address, or other professional designation in each jurisdiction. However, when the
lawyers in a particular office are identified, the identification must indicate the
jurisdictional limitations on those lawyers not licensed in the jurisdiction where the
office is located.
Ex. The firm of Diaz and Farnsworth has offices in NYC, Washington and Texas. The
letterhead used in the Texas office lists all of the firms partners, not just those who
practice in Texas. The letterhead must indicate which partners are not licensed in Texas.
For example: Ruben Diaz (admitted in NY only).
Using Names of Lawyers Who Have Entered Public Service [Rule 7.5(c)]
A private law firm must not use the name of a lawyer who holds public office (either as
part of the firm name or in communications on the firms behalf) during any substantial
period in which the lawyer is not regularly and actively practicing with the firm.
o Ex. Attorney Tzao took an indefinite leave of absence from Tazo, Dean &
Goldberg firm to serve as commissioner on FTC. The firm must remove Tzaos
name from the firm name until he returns to regular, active practice.
False Indications of Partnerships [Rule 7.5(d)]
Lawyers must not imply that they are partners or are otherwise associated with each
other in a law firm unless they really are.
o Ex. Attorneys A and B share office space, secretarial services, and a common law
library. They frequently refer cases to one another, and they continually consult
each other on difficult legal questions. The sign on their office door says:
Offices of A and B, Attorneys at Law. The sign is not proper; it implies that
they are in a partnership when they are not.
Associated and Affiliated Law Firms
Two law firms may hold themselves out to the public as being associated or
affiliated if they have a close, regular, ongoing relationship and if the designation is
not misleading. But using such a designation has significant drawback- ordinarily the
two firms would be treated as a single unit for conflict of interest purposes.
The Lawyer- Client Relationship
o Beginning the Lawyer-Client Relationship
Meritorious Claim
Rule 3.1. Meritorious Claims and Contentions
o A lawyer shall not bring or defend a proceeding, or assert an issue unless there
is a basis in law and fact for doing so that is not frivolous, which includes a good
faith argument for an extension, modification or reversal of existing law. A
lawyer for the defendant in criminal proceeding, or respondent in proceeding that

could result in incarceration, may nevertheless defend the proceeding as to

require that every element of the case be established.
An attorney cannot take on a frivolous claim.
Duties to Prospective Clients
Even if attorney does not retain client, still has duty towards the prospective client.
Attorney has to treat prospective clients in a very similar way to actual clients.
o This is to protect prospective clients.
Rule 1.18- Prospective Clients
o (a) A person who discusses with a lawyer the possibility of forming a clientlawyer relationship with respect to a matter is a prospective client.
Comment 2- a person who communicates information unilaterally to a
lawyer, without any reasonable expectation that the lawyer is willing to
discuss the possibility of forming a client-lawyer relationship, is not a
prospective client.
o (b) Even when no client-lawyer relationship ensues, a lawyer who has had
discussions with a prospective client shall not use or reveal information
learned in the consultation.
This duty exists regardless of how brief the initial conference may be.
o (c) A lawyer subject to paragraph (b) shall not represent a client with interests
materially adverse to those of a prospective client in the same or a
substantially related matter if the lawyer received information from the
prospective client that could be significantly harmful to that person in the matter,
except as provided in paragraph (d). If a lawyer is disqualified from
representation, no lawyer in a firm with which that lawyer is associated may
knowingly undertake or continue representation, except as provided in (d).
Comment 6- Even in the absence of an agreement, the lawyer is not
prohibited from representing a client with interests adverse to those of the
prospective client in the same or a substantially related matter unless the
lawyer has received from the prospective client information that could be
significantly harmful if used in the matter.
Comment 7- Imputation of other lawyers in the firm may be avoided if
the lawyer obtains the informed consent, confirmed in writing, of both
the prospective and affected clients.
In the alternative, imputation may be avoided if the conditions of
paragraph (d)(2) are met and all disqualified lawyers are timely
screened and written notice is promptly given to the prospective
client.
o (d) When the lawyer has received disqualifying information as defined in (c),
representation is permissible if: (exceptions)
(1) both the affected client and the prospective client have given
informed consent, confirmed in writing, or
(2) the lawyer who received the information took reasonable measure
to avoid exposure to more disqualifying information that was
reasonably necessary to determine whether to represent the prospective
client; and
(i) the disqualified lawyer is timely screened from
participation in the matter and is apportioned no part of the fee;
and
(ii) written notice is promptly given to the prospective client.

o Comment 5- a lawyer may condition conversations with a prospective client on

the persons informed consent that no information disclosed during the
consultation will prohibit the lawyer from representing a different client in the
matter.
Appointments
Rule 6.2 Accepting Appointments
o A lawyer shall not seek to avoid appointment by a tribunal to represent a person
except for good cause, such as:
Good cause exists if the lawyer could not handle the matter
competently or if undertaking representation would result in an
improper conflict of interest.
When its court appointments, there is a lot less flexibility in
rejecting representation.
(a) representing the client is likely to result in violation of the Rules of
Professional Conduct or other law;
Includes conflict of interest- like someone with the same matter.
(b) representing the client is likely to result in an unreasonable financial
burden on the lawyer; or
Ex. Trial of pro bono is 4 weeks and you cannot pay your own
mortgage and bills.
(c) the client or the cause is so repugnant to the lawyer as to be likely to
impair the lawyer- client relationship or the lawyers ability to
represent the client.
Client is notorious.
Ex. A lot of people cannot represent child molestors.
o Comment 1- A lawyer may be subject to appointment by a court to serve
unpopular clients or persons unable to afford legal services.
o Comment 3- An appointed lawyer has the same obligations to the client as
retained counsel, including obligations of loyalty and confidentiality, and is
subject to the same limitations on the client-lawyer relationship.
General Rule: Lawyers Are Not Public Utilities
The general rule is that lawyers are not public utilities. A public utility has a duty to
serve anybody who wants service and can pay for it. A lawyer need not serve just anyone
who walks into the office with money in hand. Subject to exceptions, a lawyer may
reject work for any reasons that suits her.
Exceptions to the General Rule
o
Who Should Pay When the Client Cannot?
Giving pro bono service to those who cannot afford to pay a lawyer is not required, but
the ABA Ethics Commission wants to encourage lawyers to give free services. Theyve
included in Rule 6.1- Every lawyer has a professional responsibility to provide legal
services to those unable to pay. Commission does not want to require attorneys to
render a minimum amount of hours, but Commission believes that the voluntary system
as it is now is not working.
In criminal matters, public funds are generally available to provide modest
compensation to private lawyers who represent indigent criminal defendants. But public
funds are generally not available to compensate private lawyers who represent indigent
persons in civil matters.
Bothwell v. Republic Tobacco Co.

o Rule: The federal court cannot require an unwilling attorney to represent an

indigent litigant in a civil case. But the court may request an attorney to accept
a court appointment. However, request does not mean require.
o Facts
Bothwell was smoker who switched from rolled cigarettes to loose cigs
because he believed them to be safer since they did not have a warning
label. In 1986, he suffered from emphysema, asthma, heart disease, and
other respiratory disease.
Judge appointed Metcalf as plaintiffs counsel.
Plaintiff counsel argued that appointment erroneous because the federal
court has no statutory or inherent authority to force attorney to take a civil
case for no compensation.
Pro Bono Public Service
Rule 6.1 Voluntary Pro Bono Public Service
o Every lawyer has a professional responsibility to provide legal services to those
unable to pay. A lawyer should aspire (not required) to render at least 50 hours
of pro bono public legal services per year. In fulfilling this responsibility, the
lawyer should:
Aspiration goal- not mandatory goal. Want people to do pro bono
work from the heart.
But in NY (only NY has this), cannot be admitted to state bar
unless already did 50 hours of pro bono service. They think it will
make people more inclined to work pro bono in the future.
(a) provide a substantial majority of the 50 hours of legal services
without fee or expectation of fee to:
(1) persons or limited means or
(2) charitable, religious, civil, governmental and educational
organizations in matters that are designed primarily to address the
needs of persons of limited means; and
o Under (a)(1) and (a)(2), the intent of the lawyer to render
free legal services is essential for the work performed to
fall within pro bono. This means that the lawyer must
intend from the beginning of representation to give free
legal service. Services rendered cannot be considered pro
bono if an anticipated fee is uncollected.
But the award of statutory attorneys fees in a case
originally accepted as pro bono would not
disqualify such services from inclusion under this
section.
(b) provide any additional services through:
(1) delivery of legal services at no fee or substantially reduced
fee to individuals, groups or organizations seeking to secure or
protect civil rights, civil liberties, or public rights, or charitable,
religious, civic, community, governmental and education
organizations in matters in furtherance of their organizational
purposes, where the payment of standard legal fees would
significantly deplete the organizations economic resources or
would be otherwise inappropriate; or
(2) delivery of legal services at a substantially reduced fee to
persons of limited means; or

o This covers instances in which lawyers agree to and

receive a modest fee for furnishing legal services to
persons of limited means.
(3) participation in activities for improving the law, the legal
system or the legal profession. In addition, a lawyer should
voluntarily contribute financial support to organizations that
provide legal services to persons of limited means.
o Comment 8- This paragraph recognizes the value of
lawyers engaging in activities that improve the law, the
legal system or the legal profession. Serving on bar
association committees, serving on boards of pro bono or
legal services programs, taking part in Law Day activities,
acting as a continuing legal education instructor, a
mediator or an arbitrator and engaging in legislative
lobbying to improve the law are some examples that fall
under this.
o Comment 1- Every lawyer, regardless of professional prominence or professional
work load, has a responsibility to provide legal services to those unable to pay,
and personal involvement in the problems of the disadvantaged can be one of the
most rewarding experiences in the life of a lawyer. It is recognized that in some
years a lawyer may render greater or fewer hours than the annual standard
specified, but during the course of his or her legal career, each lawyer should
render an average (of 50) per year. Services can be civil or criminal matters.
o Comment 9- There may be times when it is not feasible for a lawyer to engage in
pro bono service. At such times, a lawyer may discharge the pro bono
responsibility by proving financial support to organizations providing free legal
services to persons of limited means. Such financial support (donations) should
be reasonably equivalent to the value of the hours of service that would have
otherwise been provided.
o **Comment 12**- The pro bono responsibility is not intended to be enforced
through disciplinary process.
Duty to Reject Some Kinds of Cases
Rule 1.16 Declining or Terminating Representation
o (a) A lawyer shall not represent a client or, where representation has started,
shall withdraw from representation of a client if: (mandatory)
(1) the representation will result in violation of the rules of professional
conduct or other law;
A lawyer ordinarily must decline or withdraw from representation
if the client demands that the lawyer engage in conduct that is
illegal or violates the Rules of Professional Conduct or other law.
The lawyer is not obliged to decline or withdraw simply because
the client suggests a certain course or conduct.
From appointments
o When a lawyer has been appointed to represent a client,
withdrawal ordinarily requires approval of the appointing
authority.
o Court approval or notice to court often required by
applicable law before lawyer withdraws from pending
litigation.

(2) the lawyers physical or mental condition materially impairs the

lawyers ability to represent the client; or
Includes alcohol or drug problem where such activities materially
impairs the lawyer and cannot do job competently.
If someone drinks everyday but does not materially impair them,
its ok.
Also includes mental disorder or depression, dementia, etc.
Comment 1- a lawyer should not accept representation in a matter
unless it can be performed competently, promptly, without
improper conflict of interest and to completion. Ordinarily, a
representation in a matter is completed when the agreed-upon
assistance has been concluded.
(3) the lawyer is fired.
A client has the right to discharge a lawyer at any time, with or
without cause, subject to liability for payment for lawyers
services.
Even if the lawyer has been unfairly discharged by the client, a
lawyer must take all reasonable steps to mitigate the consequences
to the client.
o (b) A lawyer may withdraw from representing a client if: (permissive)
(1) withdrawal can be accomplished without material adverse effect on
the interests of the client; or
This means that attorney needs to be withdrawing at an early stage
in litigation.
o Ex. No trial date set. When go further down with case, it
will be hard to show that it wont adversely affect the case.
Like cannot withdraw right before trial and especially not
during trial. (Like Devils Advocate)
(2) the client persists in a course of action involving the lawyers services
that the lawyer reasonably believes is criminal or fraudulent; or
(3) the client has used the lawyers services to perpetrate a crime or fraud;
or
(4) the client insists upon taking action that the lawyer considers
repugnant or with which the lawyer has a fundamental disagreement; or
(5) the client fails substantially to fulfill an obligation to the lawyer
regarding the lawyers services and has been given reasonable warning
that the lawyer will withdraw unless the obligation is fulfilled; or

**When seeking to withdraw because attorney is not getting paid,

contrast Holmes and Kriegsman.**
Ex. Holmes Case- Rule: Where a client repudiates a
reasonable fee arrangement there is no obligation on the part
of counsel to finance the litigation or render gratuitous
services. However, the withdrawal cannot prejudice or delay
the trial.
o Attorney can withdraw from representation if client
disregards an agreement or obligation. This includes if
client refuses to pay attorney.

o Here, because the case has not had a trial date yet, the
defendants will have ample time to retain new counsel and
client will not be prejudiced by any delay in trial.
o *Here, client can pay but client is mad and chooses not
to pay.*
But See Kriegsman
o Rule: Attorney cannot withdraw from a case just
because client can no longer pay when such withdrawal
will prejudice the client.
o Rule: When a firm accepts a retainer to conduct legal
proceeding, it impliedly agrees to prosecute the matter
to a conclusion. The firm is not at liberty to abandon
the case without justifiable or reasonable cause.
o Facts
Plaintiff paid attorney retainer but with all the court
hearings and with plaintiff not following all of
attorney was saying, case became expensive.
Plaintiff then was unable to pay attorney bills and
attorney wanted to withdraw himself from case
because she was unable to pay.
o Court says that attorney did not have cause to abandon
plaintiffs case. Here, attorney knows her financial
situation and chose to retain her case anyway. The firm
should not be relieved at a far stage in litigation merely
because plaintiff is unable to pay all the fees the firm
demands. An attorney has certain obligations and duties to
a client once representation starts.
o **Court said attorneys cannot withdraw because they
knew clients situation and promised to retain and
work on her case.**
(6) the representation will result in an unreasonable financial burden on
the lawyer or has been rendered unreasonably difficult by the client; or
Lack of payment will not fit it. It has to be an unreasonable
financial burden. Like an unreasonably difficult client if client lies
to attorney.
other good cause for withdrawal exists.
o (c) A lawyer must comply with applicable law requiring notice to or permission
of a tribunal when terminating a representation. When ordered to do so by a
tribunal, a lawyer shall continue representation notwithstanding good cause for
terminating the representation.
o (d) Upon termination of representation, lawyer shall take steps to the extent
reasonably practicable to protect a clients interests, such as giving reasonable
notice to the client, allowing time for employment of other counsel, surrendering
papers and property to which the client is entitled and refunding any advance
payment of fee or expense that has not been earned or incurred. The lawyer may
retain papers relating to the client to the extent permitted by other law.
o Ending the Lawyer- Client Relationship
Client Discharging the Attorney
Ruskin Case

o Rule: A client cannot discharge attorney during trial because it is extremely

disruptive to the trial and would result in significant and prejudicial delay.
o Rule: A client does not have absolute right to replace attorney with or
without cause.
o Facts
Defendant attempted to discharge his attorney during the course of the
trial. The attorney was at the time cross-examining the first witness.
o If client wants different lawyer and its early in the case, its n problem. But if trial
started, it would delay court proceedings.
General Rule: Duty to Follow Through
Attorney has a general duty to follow through and finish/complete the case.
Once an attorney takes on a case, the attorney is expected to commit to the case until
representation ends. Even if it takes more time that attorney thought or the case is not as
lucrative as other cases (or costs more money), attorney still needs to continue
representation.
o Permissive withdrawal will not work here.
Usually when attorney takes case, the attorney is expected to take the case all the way
through.
Attorneys Fees and Fiduciary Duties
o Attorney Fees
Setting Fees
The nature and amount of an attorneys fees are subjects for contractual agreement
between the attorney and the client.
Fees vs. Expenses
o Fees- charges for lawyers personal service.
o Expenses- everything else like copying, messaging service, etc.
Contingent Fee
o The client does not have to pay anything unless get settlement or judgment.
o Lawyer does not get paid until contingency occurs.
o This is very risky for attorney because attorney may not get money for their work
if they cannot settle or win the case.
Rule 1.5 Fees- Hourly Rates vs. Contingent Fee
o How to determine the fee
(a) A court will not enforce a contract for an unreasonably high attorneys
fee or an unreasonably high amount for expenses, and the attorney is
subject to discipline for trying to exact an unreasonably high fee or
expense. The factors considered in determining the reasonableness of a
fee are:
o A lawyer may seek reimbursement for the cost of services
performed in-house, such as copying, or for other expenses
incurred in house, such as telephone charges, either by
charging a reasonable amount to which the client has
agreed in advance or by charging an amount that
reasonably reflects the cost incurred by the lawyer.
1. The time and labor required;
o The most visible and most readily explainable portion of a
bill.
o But fees cannot be awarded on basis of time alone. If an
attorney is taking on a case in an area that he or she is

totally unfamiliar or inexperienced, the client should not

have to pay for every minute of the lawyers preparation.
Such a lawyer will have to take his own time to research in
order to be caught up to speed and bill a time that an
experienced attorney in that area of law will bill.
2. The novelty and difficulty of the questions involved;
o Substance must control over form. The intricacy and
difficulty of the questions involved, and not necessarily the
amount of the manual legal work exhibited by the number
of papers in the file of the case, must control.
3. The skill needed to perform the legal services properly;
o Whether the services are routine, or whether exceptional
skill or effort is required.
4. The likelihood, if apparent to the client, that the work for this
client will preclude the lawyer from doing fee-paying work for
others;
o The court must consider not only the loss of other
employment because of the time taken by the matter at
hand, but also the fact that there may be involved in the
matter certain elements which might cause the attorney to
lose future business because of an association with the
case. (think conflict of interest)
5. The fee customarily charged in the locality for similar legal
work;
o Generally, courts consider the amounts customarily
charged or allowed for similar services in the same
locality.
6. The amount at stake and the results obtained for the client;
o In establishing reasonable attorneys fees, the court may
properly consider the amount involved in litigation.
But if the amount implicated, even though large in
denomination, neither increases measurably the
work nor enlarges the principles of law, it cannot
be the deciding factor in setting a very high fee.
o The court must also contemplate the benefit to the client as
a result of the services.
7. The time limitations imposed by the client or the
circumstances;
o This element is pertinent if an attorney must adjust the
firms other work load to accommodate the particular
pressing needs of a client. Generally, additional fees have
been allowed when the client failed timely to notify the
attorney of such problems.
8. The nature and length of the relationship between the lawyer
and the client;
o Clients who do not routinely employ the attorney should
not expect the lower legal fees normally negotiated with
clients who regularly hire or retain counsel.
9. The experience, reputation, and ability of the lawyer
performing the services; and

o Attorneys standing in the profession for learning, ability,

skill and integrity is recognized as a proper matter for
consideration in assessing the value of the services
provided and can be a basis for a higher award.
o Also, inexperience, apparent lack of ability or poor
performance may reduce an award.
10. Whether the fee is fixed or contingent (a contingent fee can
be higher because it requires the lawyer to take a gamble).
o Although contingent fee contracts are subject to
restrictions, agreements have generally been enforced
unless the contract is unreasonable. The contingent fee
system allows persons who could not otherwise afford to
assert their claims to have their day in Court.
Note
o All the factors will not be relevant in each instance.
o This is not an exhaustive list. Other factors may also be
relevant in determining fees.
o When to Agree on Fee
(b) When a lawyer has not regularly represented the client, the basis or
rate of the fee and the expenses for which the client will be responsible
must be communicated to the client, preferably in writing, before or
within a reasonable time after commencing the representation. Any
changes in the basis or rate of the fee or expenses shall also be
communicated to the client.
In a new client- lawyer relationship, an understanding as to fees
and expenses must be promptly established.
o Contingent Fees
(c) A fee may be contingent on the outcome of the matter for which the
service is rendered, except if contingent fee is prohibited by (d) or other
law. A contingent fee agreement shall (must be) be in writing signed by
the client and shall state the method by which the fee is to be determined,
including:
o Contingent fees are subject to the reasonableness standard
of paragraph (a).
the percentage or percentages that shall accrue to the lawyer in the
event of settlement, trial or appeal;
litigation and other expenses to be deduced from the recovery; and
whether such expenses are to be deducted before or after the
contingent fee is calculated.
The agreement must clearly notify the client of any expenses for which
the client will be liable whether or not the client is the prevailing party.
Upon conclusion of the matter, the lawyer shall provide the client with a
written statement stating the outcome of the matter, and, if there is a
recovery, showing the remittance to the client and the method of its
determination.
o What is Prohibited for Lawyer To Do
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or
amount of which is contingent upon the securing of a divorce

or upon the amount of alimony or support, or property

settlement in lieu thereof, or
o Lawyer cannot charge contingent fee that is contingent on
the amount of alimony received, property received in
divorce, or upon securing a divorce.
(2) a contingent fee for representing a defendant in a criminal
case.
o Division of Fee
(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; and
(2) the client agrees to the arrangement, including the share each
lawyers will receive, and the agreement is confirmed in
writing; and
(3) the total fee is reasonable.
o Terms of Payment
Comment 4- A lawyer may require advance payment of a fee, but is
obliged to return any unearned portion. A lawyer may accept property in
payment for services, such as an ownership interest in an enterprise, as
long as it does not involve acquisition of a proprietary interest in the
cause of action or subject matter of the litigation. However, fee paid in
property instead of money may be subject to Rule 1.8(a).
Lawyer can be paid in property interest as long as that property
was not the subject of the case.
Items That May and May Not Be Billed
o The attorney must disclose the basis on which a client will be charged for legal
services and expenses, and the attorneys bill should clearly show how the
amount due has been computed.
o What Attorney May Not Charge
The attorney must not charge the client for ordinary overhead expenses
associated with staffing, equipping, and running the attorneys office.
Attorney must bit charge the client more than her actual cost for services
provided by third parties, such as court reporters, travel agents, and expert
witnesses.
Attorney must not double bill her time.
o What Attorney May Charge
The attorney may charge the client for the actual cost to the attorney of
special services such as photocopying, long distance calls, computer
research, special deliveries, secretarial overtime, and the like.
Alternatively, the attorney may charge a reasonable amount to which the
client has agreed in advance.
Note- What is Right is from the clients perspective
o If you were the client and you heard this from a lawyer, would think that the
practice is fair?
If no, then cannot do it.
What is right is what is right from the clients perspective.
Other Charges than Professional Fees

o In addition to charging clients fees for professional services, lawyers typically

charge their clients for certain additional items which are often referred to
variously as disbursements, out-of-pocket expenses or additional charges.
o The reasonableness standard from Rule 1.5(a) is applicable to these charges as
well.
o General Overhead
This includes cost of maintaining a library, securing malpractice
insurance, renting of office space, purchasing utilities.
Lawyer should not charge client general overhead!!
o Disbursements
A the beginning of the engagement lawyers typically tell their clients that
they will be charged for disbursements. Clients should expect that the
lawyer will be passing on to the client those actual payments of funds
made by the lawyer on the clients behalf.
Ex. If the lawyer hires a court stenographer to transcribe a
deposition, the client can reasonably expect to be billed as a
disbursement the amount the lawyer pays to the court reporting
service.
Ex. If the lawyer flies to LA for the client, the client can
reasonably expect to be billed as a disbursement the amount of the
airfare, taxicabs, meals and hotel room.
o But lawyer cannot fly first class and charge that on the
client. Again, these fees must be reasonable.
If the attorney receives a discounted rate from a third-party provider, it
would be improper if she did not pass along the benefit of the discount to
her client rather than charge the client the full rate and reserve the profits
to herself.
o In-House Provisions of Services
The lawyer may pass on reasonable charges for such services like
photocopying, computer research, on-site meals, deliveries, etc.
A lawyer and client may agree in advance that the client is reasonable for
printing fees, etc. (i.e. photocopying will be charged at $.15/page).
When the client and attorney has not agreed to a certain amount in
advance, the lawyer is obliged to charge the client no more than the
direct cost associated with the service (i.e. the actual cost of making a
copy on the photocopying machine) plus a reasonable allocation of
overhead expenses directly associated with the provision of service
(e.g. the salary of a photocopy machine operator).
How Often Are Clients Billed?
o Clients are usually billed on a monthly basis.
This is so because of the psychology of monthly billing. It is easier to pay
a bill in smaller amounts. Will lead to prompt payments and easier
relationship (like installments).
Problems with Billable Hours
o Raise Inefficiency and Cost
Billable hours model doesnt encourage lawyer to prepare a project plan
or case plan at the outset. The lawyer can simply start working and
reporting hours. Such lack of planning can produce inefficiency and raise
clients cost.

o Client Cant Predict Cost of Suit

Billable hours model doesnt allow the client to predict how much the
legal services will cost.
o Penalizes the Efficient Lawyer and Rewards the Inexperienced
This model penalizes the efficient, productive lawyer and rewards the
slow plodder who racks up many billable hours.
Billable hours discourages lawyers from taking advantage of research on
the shelf.
o Discourage Communication Between Lawyer and Client
The billable hours model may discourage communication between the
lawyer and the client.
Ex. If lawyer charges client for client calling to ask about the case, the
client may not want to call lawyer anymore.
Changing Fee During Representation (Rule 1.5(b))
If billing rates go up within representation of clients case, any charged on the basis of
rate of fee or expense shall be communicated to the client. Fee must be reasonable.
Whenever hired by client, preferable that fee agreement in writing.
If fee agreement is contingency fee, agreement MUST be in writing.
Lending Money to Clients
Rule 1.8(e)- Loans to Clients
o (e) A lawyer shall not provide financial assistance to a client in connection with
pending or contemplated litigation, except that: (exceptions)
Prohibition only in a litigation context
(1) A lawyer may advance court costs and expenses of litigation, the
repayment of which may be contingent on the outcome of the matter;
and
But not other expenses like food, shelter, medical care, etc.
(2) A lawyer representing an indigent client may pay court costs and
expenses of litigation on behalf of the client
Without expecting to be repaid.
Client Trust Accounts
Rule 1.15 requires attorneys to keep clients money and property separate from their
own, to maintain adequate records, to notify clients promptly when money or property is
received on their behalf, and to deliver promptly any money or property that belongs to
clients.
What is Client Trust Account?
o A bank account in which clients money goes into.
o The client trust account must be separate from the attorneys personal account
and the law office account, and the attorney must never commingle personal or
law office funds with the clients funds in the trust account.
The attorney, may, however, put enough of her personal funds or office
funds into the client trust account to pay the banks service charges on
that account.
o If lawyer receives a large sum of money and there is no specific agreement with
client on how to handle money, attorney should put the sum into an interestbearing trust account at a bank.
The interest belongs to the client, not the lawyer.
o Typically, however, a lawyer receives relatively small sums, to be held for
relatively short periods, on behalf of many different clients. The lawyer

traditionally lumps these sums together in a single trust account in a bank.

Usually this account is a checking account, not a savings account, because a
checking account makes transactions easier and provides a simple, clean record
of what went where.
This is a pooled trust account. This type of account is totally legitimate
but one has to take particular care. Record keeping is very important.
o What goes in Client Trust Accounts?
Expense Advance
This is an advance on expenses that will incur such as court filing
fees, sheriffs fees for serving the complaint, deposition travel,
etc.
Advance on Attorney Fees
Legal fees paid in advance must be put into the client trust
account to be withdrawn by the lawyer only as fees are earned.
Retainer
o This word has different senses.
o Sometimes lawyers use retainer to describe the contract
by which a client hires a lawyer.
o Other times, true retainer means a fee that the client pays
the attorney simply to be available should the client need
legal assistance during a specified period or with respect to
a specified matter.
The attorney earns that kind of fee by agreeing to
be available, not by performing services.
From the clients point of view, one benefit of such
a fee is to make a particular attorney unavailable to
a potential adversary in the event of litigation.
That kind of fee belongs to the lawyer when it is
paid and should NOT be put into the client trust
account.
This kind of fee should be reasonable in amount. If
it is excessive, attorney subject to discipline.
When and if the client actually needs legal
services, the attorney will provide them for an
additional hourly fee that is often lower than the
attorneys ordinary rate.
This is for attorneys with a special skill.
o Retainer can also mean a lump sum paid by a client at
the outset of a matter.
Sometimes the fee arrangement states that the
retainer is to cover a specified amount of work and
if more work is needed, the client will pay for it at
a specified rate. A retainer of that sort belongs to
the attorney when it is paid and it does not go into
the client trust account.
o Attorneys also use retainer to mean an advance payment
of fees for work that the lawyer will perform in the future.
If the attorney withdraws or is fired before completing
work, the attorney must refund the unearned portion of the

advance. Thus the attorney must put the advance in the

client trust account.
Deposit does not make it your money. Until the
attorney earns it, the money stays in the clients
trust account.
Rule 1.15 Safekeeping Property
o (a) A lawyer shall hold property of clients or third persons that is in a lawyers
possession in connection with representation separate from the lawyers own
property. Funds shall be kept in a separate account maintained in the state
where the lawyers office is situated, or elsewhere with the consent of the client
or third person. Other property shall be identified as such as appropriately
safeguarded. Complete records of such account funds and other property shall be
kept by the lawyer and shall be preserved for a period of five years after
termination of the representation.
A lawyer should hold property of others with the care required pf a
professional fiduciary.
Securities should be kept in a safe deposit box.
All property that is the property of clients or third persons, including
prospective clients, must be kept separate from the lawyers business and
personal property.
A lawyer should maintain on a current basis books and records in
accordance with generally accepted accounting practice and comply with
any recordkeeping rules.
o (b) A lawyer may deposit the lawyers own funds in a client trust account for the
sole purpose of paying bank service charges on that account, but only in an
amount necessary for that purpose.
o (c) A lawyer shall deposit into a client trust account legal fees and expenses that
have been paid in advance, to be withdrawn by the lawyer only as fees are
earned or expenses incurred.
o (d) Upon receiving funds or other property in which a client or third person has
an interest, a lawyer shall promptly notify the client or third person. A lawyer
shall promptly deliver to the client or third person any funds or other property
that the client or third person is entitled to receive, and upon the request by the
client or third person, shall promptly render a full accounting regarding such
property.
o (e) When in the course of representation a lawyer is in possession of property in
which two or more persons (one of whom may be the lawyer) claim interests, the
property shall be kept separate by the lawyer until the dispute is resolved.
The lawyer shall promptly distribute all portions of the property as to which the
interests are not in dispute.
Third parties may have lawful claims against specific funds or property in
a lawyers custody, such as a clients creditor who has a lien on funds
recovered in a personal injury action. A lawyer may have a duty to protect
such third party claims against wrongful interference by the client. In
such cases, when the third-party claim is not frivolous, lawyer must
refuse to surrender the property until the claims are resolved.
Responsibility CANNOT Be Delegated
o Any lawyer who is in day-to-day charge has responsibility of the trust account.
This responsibility cannot be delegated.

The task can be delegated to secretary but the RESPONSIBILITY cannot

be delegated to secretary.
o The attorney can be disciplined for failure to review trust accounts if the money
ends up missing.
Attorney can be disciplined for failing to manage accounts. Even if client
was not harmed or did not lose money, attorney can still be disciplined.
Cannot Borrow Money from Client Trust Account
o Attorneys cannot borrow money from Client Trust Account with the intent to pay
it back.
Attorneys can be disciplined if they borrow money.
Competence and Diligence
o Professional Discipline for Lack of Competence or Diligence
Competence
How Can New Lawyer Be Incompetent to Handle Matter?
o If the new lawyer does not have enough skill or knowledge.
Rule 1.1- Competence
o A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.
You can take on a case that you have never handled as long as you can
commit to learning the law in that area.
An experienced attorney can still be incompetent if he does not have
experience or skill in another practice area.
Legal Knowledge and Skill
In determining whether a lawyer has the requisite knowledge and
skill in a particular matter, relevant factors include:
o The relative complexity and specialized nature of the
matter
o The lawyers general experience
o The lawyers training and experience in the field in
question
o The preparation and study the lawyer is able to give the
matter, and
o Whether it is feasible to refer the matter to, or associate or
consult with, a lawyer of established competence in the
field in question.
The required proficiency is that of a general practitioner.
A lawyer need not necessarily have special training or prior
experience to handle legal problems of a type with which the
lawyer is unfamiliar. A lawyer can provide adequate
representation in a wholly novel field through necessary study.
Competent representation can also be provided through the
association of a lawyer of established competence in the field in
question.
**Comment 3**- In an emergency, a lawyer may give advice or
assistance on a matter in which the lawyer does not have the skill
ordinarily required where referral or consultation with another
lawyer is impracticable. However, assistance should be limited to
that reasonably necessary in the circumstances.

Thoroughness and Preparation

Competent handling of a particular matter includes inquiry into
and analysis of the factual and legal elements of the problem, and
use of methods and procedures meeting the standards of
competent practitioners. It also includes adequate preparation.
To maintain the requisite knowledge and skill, a lawyer should
keep up with the changes in the law and its practice, engage in
continuing study and education and comply with all continuing
legal education requirements to which the lawyer is subject.
Scope of Representation
Rule 1.2- Scope of Representation and Allocation of Authority Between Lawyer and
Client
o (a) A lawyer shall abide by a clients decisions concerning the objectives of
representation and shall consult with the client as to the means by which they are
to be pursued. A lawyer may take such action on behalf of the client as is
impliedly authorized to carry out the representation. A lawyer shall abide by a
clients decision whether to settle a matter. In a criminal case, the lawyer shall
abide by the clients decision, after consultation with the layer, as to a plea to be
entered, whether to waive jury trial and whether the client will testify.
This paragraph confers on the client the ultimate authority to determine
the purposes to be served by legal representation.
At the outset of representation, the client may authorize the lawyer to take
specific action on the clients behalf without further consultation. Absent
a material change in circumstances and subject to Rule 1.4, a lawyer may
rely on such an advance authorization.
The client may revoke this authorization at any time.
o (b) A lawyers representation of a client, including representation by
appointment, does not constitute an endorsement of the clients political,
economic, social or moral views or activities.
o (c) A lawyer may limit the scope of the representation if the limitation is
reasonable under the circumstances and the client gives informed consent.
o (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that
the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal
consequences of any proposed course of conduct with a client and may counsel
or assist a client to make a good faith effort to determine the validity, scope,
meaning or application of the law.
The prohibition from assisting crime or fraud does not preclude the
lawyer from giving an honest opinion about the actual consequences that
appear likely to result from a clients conduct.
If client uses advice from lawyer for something criminal or fraudulent, it
does not make the lawyer a party to the crime or fraud.
When the clients course of action has already begun and is continuing,
the lawyers responsibility is especially delicate. The lawyer is required to
avoid assisting the client, for example, by drafting or delivering docs that
the lawyer knows are fraudulent or by suggesting how the wrongdoing
might be concealed. A lawyer may not continue assisting a client in
conduct that the lawyer finds out is criminal or fraudulent. The lawyer
must therefore withdraw from the representation of the client.
Diligence
Rule 1.3- Diligence

o A lawyer shall act with reasonable diligence and promptness in representing a

client.
A lawyer must act with commitment and dedication to the interests of the
client and with zeal in advocacy upon the clients behalf.
Must represent client zealously within bounds of law and ethical
rules.
Lawyers duty to act with reasonable diligence does not require the use of
offensive tactics or preclude the treating of all persons involved in the
legal process with courtesy and respect.
A lawyers workload must be controlled so that each matter can be
handled competently.
If an attorney has too much of a workload, attorney must speak
up and let the boss know.
No professional shortcoming is more widely resented than
procrastination.
Matters are extremely time-sensitive. A clients interests often can
be adversely affected by the passage of time or the change of
conditions. In extreme instances, as when a lawyer overlooks a
statute of limitations, the clients legal position may be destroyed.
Even when the clients interests are not affect, unreasonable delay
can cause a client needless anxiety and undermine confidence in
the lawyers trustworthiness.
A lawyer should carry through to conclusion all matters undertaken for a
client. If a lawyers employment is limited to a specific matter, the
relationship terminates when the matter has been resolved.
Doubt about whether a client-lawyer relationship exists should be
clarified by the lawyer, preferably in writing, so that the client will not
mistakenly suppose the lawyer is looking after the clients affairs when
the lawyer has ceased to do so.
A lawyer may become disabled and have diminished capacity where
attorney cannot handle workload anymore. For such situations, there
should be an emergency plan if someone happens to you, especially if
you have sole practice.
Communication
Rule 1.4- Communication
o (a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with
respect to which the clients informed consent is required;
(2) reasonably consult with the client about the means by which the
clients objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyers
conduct when the lawyer knows that the client expects assistance not
permitted by the rules.
o (b) A lawyer shall explain a matter to the extent reasonably necessary to permit
the client to make informed decisions regarding the representation.
Client should be kept informed, such that client does not have to call and
ask what is going on with the case. Must keep the client informed!

In litigation a lawyer should explain the general strategy and prospects of

success and ordinarily should consult with the client on tactics that are
likely to result in significant expense or to injure or coerce others. On the
other hand, a lawyer ordinarily will not be expected to describe trial or
negotiation strategy in detail.
Under Rule 1.16(b), client can withdraw representation if attorney does
not call back client and does not cooperate with the client.

o Liability for Malpractice

Legal Malpractice vs. Disciplinary Actions
Different Location
o Disciplinary Action
Head in state bar court
o Legal Malpractice
Head by superior court of county
Different Outcome
o Disciplinary Action
Can get public or private reprimand, suspended or disbarred.
Court looks at if attorney violated ethical rule.
o Malpractice
Sued for money.
ABA not determinative. This is more like tort law.
Four Theories of Legal Malpractice
The Theories
o Tort
o Breach of Fiduciary Duty
o Breach of Contract (second most common)
o ***Negligence (most common)***
Duty
o Attorney has a duty of care to a client.
o Does attorney have duty of care to non-client?
Yes- in four situations
Prospective client
Invited reliance
o An attorney owes a duty of care to a non-client if the
attorney invites the non-client to rely on work the attorney
does for a client, and if the non-client does rely.
Non-client is intended to benefit
o An attorney owes a duty of care to a non-client is the
attorney knows that one of the clients primary reasons for
getting the legal service is to benefit the non-client.
Breach of fiduciary duty by client
Standard of Care
o An attorney is expected to have the skill and knowledge ordinarily possessed by
attorneys under similar circumstances.
o The relevant geographic area for defining the standard of care is jurisdiction
(state-wide) in which lawyer rendered questioned legal services.
If one is a specialist, person should make sure to know that area of law
like other specialists.

Breach of Duty of Care

o
Actual Cause
o As in ordinary negligence litigation, a malpractice plaintiff must prove actual
cause- which means proof that the injury would not have happened but for the
defendants negligent act.
o If but for inadequate, court can use the substantial factor analysis.
Where several acts unite to cause an injury- and any one of them alone
would have been sufficient to cause it- the malpractice plaintiff can
prevail by showing that the defendant lawyers negligence was a
substantial factor in causing the injury.
Proximate Cause
o Malpractice plaintiff must prove the proximate cause- that it is fair to hold
defendant liable for unexpected injuries or for expected injuries that happened in
unexpected ways.
Damages
o Legal malpractice plaintiffs usually seek monetary compensation for their
injuries, and they must plead and prove damages.
o Direct damages are those for the immediate, natural, and anticipated
consequences of the wrong.
o Malpractice plaintiff can also collect consequential damages- damages for loss
that flows indirectly but foreseeably from defendants negligence.
Defenses to Legal Malpractice Claims
One defense to legal malpractice claim is that the attorney reasonably believed that the
action was required by a law or a legal ethics rule.
o Ex. Suppose that the applicable legal ethics rule requires a lawyer in a civil case
to try to withdraw if her client insists on giving perjurious testimony. The legal
ethics rule would be a complete defense in a malpractice action for client
abandonment brought against a lawyer who withdrew because her client insisting
on committing perjury.
A client cannot base legal malpractice case on something that the client, after receiving
proper advice, instructed the lawyer to do or not to do.
o For example, suppose lawyer carefully explains to her client why she needs to
interview all the witnesses who might know about the matter at hand. If the client
specifically instructs the lawyer not to interview witness x, the client cannot later
claim that the lawyer was negligent in not interviewing x.
Statute of limitations
o Three principles
1. The statute of limitations ordinarily does not run on a clients
malpractice claim while the lawyer continues to represent the client in a
matter at hand or a substantially related matter
2. Even though the statute of limitations in an ordinary case would start to
run when the harm occurs, the statute of limitations in a legal malpractice
case does not start to run until the lawyer discloses the supposed
malpractice to the client, or the facts that the client knows- or reasonably
should know- clearly indicate that the malpractice occurred.
3. The statute of limitations does not start to run until the alleged
malpractice significantly injures the plaintiff.

Ex. Suppose lawyer L drafts and supervises the signing of a land

sale contract in which client c agrees to buy Red Ranch from
seller S. C and S signed the k without witnesses, and state law
makes a land sale k voidable if its signed without witnesses.
Client C is not injured until S refuses to sell the ranch- up to then,
C has not been injured by Ls malpractice.
Limiting Liability for Malpractice
Rule 1.8(h)
o (h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyers liability to a
client for malpractice unless the client is independently represented in
making the agreement; or
But no attorney would agree to let their client contract away their
right to sue for malpractice.
This does not prohibit a lawyer from entering into an agreement
with the client to arbitrate legal malpractice claims, provided that
agreement enforceable and client is fully informed of the scope
and effect of the agreement.
(2) settle a claim or potential claim for such liability with an
unrepresented client or former client unless that persons is advised in
writing of the desirability of seeking and is given a reasonable
opportunity to seek the advice or independent legal counsel.
This arises if attorney made a bad mistake and wanted to settle
with client. But have to give client ability to get advice by another
lawyer to make sure the settlement is appropriate.
Malpractice Insurance
The ABA Model Rules do not require lawyers to carry malpractice insurance.
o But only Oregon requires attorney to carry malpractice insurance.
However, a growing minority of states require lawyers to tell potential clients whether
they do or dont carry malpractice insurance.
But these days prudent lawyers regard malpractice coverage as an essential part of law
practice.
Malpractice insurance is very expensive.
Most common reason for malpractice claims: missed deadlines for filing papers.
Insurance companies will look at conflict of interest.
Insurance companies want lawyers to have written free agreements.
There are different features for different policies and different costs.
o Such as covered claims, limits on the policy limit, etc.
o Unauthorized Practice of Law and Other Relations with Non-Lawyers
Rule 5.5 (see above)
Rule 5.4 Professional Independence of Lawyer
(a) Fee Sharing: a lawyer or law firm shall not share legal fees with a nonlawyer except:
o (1) an agreement by a lawyer with the lawyers firm, partner or associate may
provide money for payment of money, over a reasonable period of time after the
death of the lawyer, to the lawyers estate or to a specified person(s).
o (2) a lawyer who purchases the practice of deceased, disabled or disappeared
lawyer may pay to the estate or other representative of that lawyer the agreedupon purchase price;

o (3) a lawyer or law firm may include nonlawyer employees in a compensation or

retirement plan, even though the plan is based on a profit-sharing arrangement;
and
o (4) a lawyer may share court-awarded legal fees with nonprofit organization that
employed, retained or recommended employment of the lawyer in a matter.
Like how LAFLA won legal fees in a case.
(b) a lawyer shall not form partnership with nonlawyer if any of the activities of
partnership consist of practice of law.
o Ex. The firm name is Jake and Smith. If Smith is not a lawyer, cannot have this
law firm name because it looks like a partnership.
(c) A lawyer shall not permit a person who recommends, employs or pays the lawyer to
direct or regulate the lawyers professional judgment in rendering such legal services.
o Ex. Parent wants to pay attorneys fees for service that child requires. The third
party payor is not the client but paying the legal fees. We do not want the person
paying the bills to control the services of the attorney.
(d) A lawyer shall not practice with a professional corporation if the lawyer is authorized
to practice law for profit if:
o (1) a nonlawyer owns any interest in the corporation
o (2) a nonlawyer is a corporate director or officer of the corporation or occupies
some kind of similar position
o (3) a nonlawyer has the right to direct or control the professional judgment of a
lawyer.
o We do not want non-lawyers telling a lawyer what to do when the non-lawyer
doesnt know the law.
Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
For a nonlawyer employed or retained by a lawyer:
o (a) a partner or lawyer who manages firm shall make reasonable efforts to make
sure that the firm has effective measures to make sure that the persons conduct is
compatible with the professional obligations of the lawyer;
o (b) a lawyer that supervises a nonlawyer shall make reasonable efforts to make
sure that the persons conduct is compatible with the professional obligations of
the lawyer.
o (c) a lawyer shall be responsible for the conduct of a nonlawyer that would be a
violation of the professional rules if that conduct was engaged by the lawyer if:
(1) the lawyer order or, with knowledge of the specific conduct, ratifies
the conduct; or
(2) the lawyer is a partner, has managing authority of firm, or is
supervisor in which the person works, and knows of the conduct at a time
when the consequences can be avoided but fails to take reasonable
remedial actions.
o Judicial Code for Competence and Diligence
Rule 2.5 Competence, Diligence and Cooperation
(a) a judge shall perform judicial and administrative duties competently and diligently.
o Competence in the performance of judicial duties requires legal knowledge, skill,
thoroughness and preparation reasonably necessary to perform a judges
responsibilities.
(b) a judge shall cooperate with other judges and court officials in the administration of
court business.

o Prompt disposition of the courts business requires a judge to devote adequate

time to judicial duties, to be punctual in attending court and expeditious in
determining matters under submission, and to take reasonable measures to ensure
that court officials, litigants and their lawyers cooperate with the judge to that
end.
Bias In (and Out of) the Courtroom
o Misconduct
Rule 8.4- See above
o Types of Bias
Gender Bias
Gender bias still happens today and bias has been undertaken by younger lawyers.
o The more aware people are of bias, the greater the possibility that bias will be
combatted.
In Re Plaza Hotel Corp Case
o Rule: Gender bias in the courtroom can lead to disqualification of the case.
o Facts
Counsel was acting condescendingly towards a female lawyer. He was
condescending because opposing counsel was a woman.
o The court said the gender-biased remarks interfere with orderly conduct of
litigation and is unjust in an environment of equal justice.
o Because of gender bias, attorney was disqualified from the case.
Racial and ethnic Bias
Overtness of behavior of bias or prejudice towards race and ethnicity more subtle.
People are still biased but discrimination a lot more subtle.
In Re Charges of Unprofessional Conduct
o Rule: The apologies of an attorney who showed bias and prejudice cannot
transform conduct from serious to nonserious. Will not get attorney off the
hook.
o Facts
Attorney brought a motion that sought to prohibit another attorney from
participating in the case based solely on color of his skin.
o Court said that a counsels race should never be used as a basis for calling or
placing limits on counsels participation in a court proceeding.
Sexual Oriental Bias
We still have problems with people making fun of gays and lesbians.
In Re Vincenti
o Rule: When behavior or attorney rises to such unacceptable behavior such
as harassing and intimidation due to other persons sexual orientation, race,
or sex, attorney can be disbarred.
Other forms (Sexual Harassment and Bias on Disability, Age or Religion)
Rule 1.8(j)
o A lawyer shall not have sexual relations with a client unless a consensual sexual
relationship already existed between them when the client-lawyer relationship
started.
Because of lawyers emotional involvement with client, lawyer will be
unable to represent client without impairment of professional judgment.
Can also be seen as sexual harassment to client.
o Bias by Lawyers

Lawyers cannot be biased or prejudiced against opposing counsel. Lawyer must be fair to
opposing party and opposing counsel.
Ex. Cannot disobey an attorney obligation to OC because OC is black or is a woman.
Rule 3.5 Impartiality of Tribunal
A lawyer shall not:
o (a) seek to influence a judge, juror or prospective juror by means prohibited by
law.
Cannot be biased or prejudiced and try to influence judge or juror on the
basis of such prejudice.
o Bias by Judges- Judicial Conduct Rules
Canon 1
A judge shall uphold and promote the independence, integrity, and impartiality of the
judiciary, and shall avoid impropriety and the appearance of impropriety.
o Judges have highest standards of ethical conduct. To preserve the public
confidence in the courts, it is not enough that judges avoid actual improprietythey must avoid the appearance of impropriety as well.
Rule 1.2 Promoting Confidence in Judiciary
o A judge shall act at all times in a manner that promotes public confidence in the
independence, integrity, and impartiality or the judiciary, and shall avoid
impropriety and the appearance of impropriety.
Public confidence eroded by improper conduct and conduct that creates
appearance of impropriety.
Inside the Courtroom
These rules apply to the federal court judges only.
o The Superior Court judges have their own rules and these rules do not apply to
them.
Cannon 2
o A judge shall perform the duties of judicial office impartially, competently, and
diligently.
Rule 2.2 Impartiality and Fairness
o A judge shall uphold and apply the law, and shall perform all duties of judicial
office fairly and impartially.
To ensure impartiality and fairness to all parties, a judge must be
objective and open-minded.
Rule 2.3 Bias, Prejudice and Harassment
o (a) A judge shall perform the duties of judicial office without bias or prejudice.
Comment 1- a judge who manifests bias or prejudice in a proceeding
impairs the fairness of the proceeding gives the courts a bad reputation.
Examples of manifestations of bias or prejudice:
Slurs, demeaning nicknames, negative stereotyping, attempted
humor based on stereotypes, threatening, intimidating or hostile
acts, suggestions of connections between race, ethnicity, or
nationality and crime. Even facial expressions and body language
o (b) A judge shall not, in the performance of judicial duties, by words or conduct
manifest bias or prejudice, or engage in harassment including bias, prejudice or
harassment based on: race, sex, gender, religion, national origin, ethnicity,
disability, age, sexual orientation, marital status, socioeconomic status, or
political affiliation. The judge shall not permit court staff, court officials or
others subject to judges direction and control to be bias or prejudiced.

Judge cannot allow bailiff, court clerk, lawyers appearing before the
judge to be bias or prejudiced either.
Sexual harassment includes sexual advances, requests for sexual favors,
etc.
Rule 2.11 Disqualification
o (a) A judge shall disqualify himself or herself if any proceeding in which the
judges impartiality might be questioned including the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a
partys lawyer or personal knowledge of facts that are in dispute in the
proceeding.
This means a dislike that may go to the level that a judge may be
impartial to the case. The judge may dislike or hate the person so
much that he could not rule fairly.
Rule 2.12 Supervisory Duties
o (a) A judge shall require court staff, court officials, and others subject to the
judges direction and control to act in a manner consistent with the judges
obligation under this code.
Bailiff, clerk, etc. but not be biased or prejudiced. Must be impartial.
o (b) a judge with supervisory authority for the performance of other judges shall
take reasonable measures to ensure that those judges properly discharge their
judicial responsibilities.
Outside the Courtroom
Canon 3
o A judge shall conduct the judges personal and extrajudicial activities to
minimize the risk of conflict with the obligations of judicial office.
As a judge cannot be biased or prejudicial inside the courtroom, the judge
cannot show such partiality outside the courtroom either.
Rule 3.1 Extrajudicial Activities in General
o A judge may engage in activities outside his responsibility as judge. This rule
focuses on what a judge does outside the courtroom in his personal capacity.
Because of the important role that judges play, Judges are held by a higher
standard, even conduct outside of the courtroom.
o The judge shall not:
(a) participate in activities that will interfere with the proper performance
of judges judicial duties.
(b) participate in activities that would lead to frequent disqualification of
the judge.
**(c) participate in activities that would appear to a reasonable
person to undermine the judges independence, integrity or
impartiality, or **
(d) engage in conduct that would appear to a reasonable person to be
coercive.
o Comment 3- Discriminatory actions and expressions of bias of prejudice, even
outside the courtroom, are likely to appear to a reasonable person to call into
question the judges integrity and impartiality.
Rule 3.6 Affiliation with Discriminatory Organizations
o (a) A judge shall not hold membership is any org that practices invidious
discrimination on the basis of race, sex, gender, religion, national origin,
ethnicity or sexual orientation.

Comment 1- A judges manifestation of approval of discrimination gives

diminishes public confidence in the courts. A judges membership in an
org that practices discrimination creates perception that judges
impartiality is impaired.
**Comment 2- Whether org practices invidious discrimination is a
complex question. The answer cannot be determined from mere
examination of orgs current membership rolls, but rather depends on how
the org selects members as well as other factors, such as whether the org
is dedicated to the preservation of religious, ethnic or cultural values of
legitimate common interest to its members. **
If org has black people apply but are all rejected, that says a lot
more than if the org just didnt have black people.
Comment 3- When a judge learns that an org to which judge belongs
engages in invidious discrimination, the judge must resign
IMMEDIATELY.
Comment 4- A judges membership in a religious org as a lawful exercise
of freedom of religion is not violation of rule.
If membership is rejected by tradition, it will be unacceptable
discrimination.
Exception- girl scouts and boy scouts are ok.
o (b) A judge shall not use the benefits or facilities of an organization if the judge
knows or should know that the organization practices invidious discrimination.
A judges attendance at an event of an organization that judge not allowed
to join is not a violation of this rule when judges attendance is an isolated
event that cannot be thought of as an endorsement of the orgs practices.
Confidential Information and Candor
o Confidentiality
A fundamental principle in the client- lawyer relationship is that, in the absence of the clients
informed consent, the lawyer must not reveal information relating to the representation. This
contributes to the trust that is the hallmark of the client-lawyer relationship.
The client is encouraged to seek legal assistance and to communicate fully and frankly
with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer
needs this information to represent the client effectively and to advice the client to
refrain from wrongful conduct.
Difference between attorney-client privilege and confidentiality
The attorney-client privilege and work-product doctrine apply in judicial and other
proceedings in which a lawyer may be called as a witness or otherwise required to
produce evidence concerning a client.
The rule of client-lawyer confidentiality applies in situations other than those where
evidence is sought from the lawyer.
o The confidentiality rule applies not only to matters communicated in confidence
by the client but also to all information relating to the representation, whatever its
source.
o Lawyer may not disclose such information except as authorized by the rules.
Before disclosure, the lawyer should first seek to persuade the client to take suitable action in
order to avoid the need to disclose information. If the client does not take such action, then the
lawyer may disclose information. But the disclosure adverse to the clients interest should not be
greater than what the lawyer reasonably believes necessary to accomplish the purpose.

The exceptions in (b)(1)- (b)(6) are not required- they are permissive. The lawyer will not get
in trouble if he/she does not disclose information. It only allows the lawyer to disclose
information if the lawyer chooses to disclose.
***Rule 1.6 THE Confidentiality Rule***
(a) A lawyer shall not reveal information relating to the representation of a client unless
the client gives informed consent, the disclosure is impliedly authorized in order to
carry out the representation or the disclosure is permitted by (b).
o Prohibition also applies to disclosures by a layer that do not in themselves reveal
protected information but could reasonably lead to the discovery of such
information by a third person.
o Informed consent- client says its ok to reveal the information.
o impliedly authorized in order to carry out the representation- this means
secretary can write letter for your case, research that requires paralegal to do,
hiring private investigator, etc. The attorney does not have to keep confidential
information from these people because they are helping out with the case.
Otherwise, the attorney would never be able to have support staff.
(b) A lawyer may reveal information relating to the representation of a client to the
extent the lawyer reasonably believes necessary: Exceptions- are permissive, not
mandatory. Permissive means the attorney cannot be brought on ethical charges for
failing to disclose information that could prevent things below.
o (1) to prevent reasonably certain death or substantial bodily harm;
Harm is reasonably certain to occur if it will be suffered imminently or if
there is a present and substantial threat that a person will suffer such harm
at a later date if the lawyer fails to take action necessary to eliminate the
threat.
Ex. A lawyer who knows that a client has accidently discharged
toxic waste into a towns water supply may reveal this information
to the authorities if there is a present and substantial risk that a
person who drinks the water will contract a life-threatening or
debilitating disease and the lawyers disclosure is necessary to
eliminate the threat or reduce the number of victims.
o (2) to prevent the client from committing a crime or fraud that is reasonably
certain to result in substantial injury to the financial interests or property of
another and in furtherance of which the client has used or is using the lawyers
services;
This means using the attorneys services in order to carry out a crime or
fraud. Such a serious abuse of the client-lawyer relationship by the client
forfeits the protection of confidentiality rule.
The client can prevent the disclosure by refraining from the wrongful
conduct.
Although this rule does not require (permissive not mandatory) the
lawyer to reveal the clients misconduct, the lawyer may not counsel or
assist the client in conduct the lawyer knows is criminal or fraudulent.
Ex. A client goes to his lawyer and, in confidence, asks for some
legal advice in conjunction with his plan to commit two future
crimes: (2) fraud that will bilk innocent people of life savings and
(2) a brutal murder, to cover up fraud. Attorney tries to talk him
out of it but is unsuccessful and client leaves.
o (3) to prevent, mitigate or rectify substantial injury to the financial interests or
property of another that is reasonably certain to result or has resulted from the

clients commission of a crime or fraud in furtherance of which the client has

used the lawyers services;
This exception is triggered when the lawyer does not know of the clients
crime or fraud until after it has occurred. In such situation, the lawyer
may disclose information relating to the representation to the extent
necessary to enable the affected persons to prevent or mitigate reasonably
certain losses or to attempt to recoup their losses.
o (4) to secure legal advice about the lawyers compliance with these rules;
This rule allows a lawyer to reveal a clients confidential information in
order to get legal advice about complying with the rules of legal ethics.
Ex. A lawyer might call the state bar association ethics hotline or
an outside legal ethics expert and pose an ethics question that is
based on clients confidential information.
o (5) to establish a claim or defense on behalf of the lawyer in a controversy
between the lawyer and the client, to establish a defense to a criminal charge or
civil claim against the lawyer based upon conduct in which the client was
involved, or to respond to allegations in any proceeding concerning the lawyers
representation of the client; or
Where a legal claim or disciplinary charge alleges complicity of the
lawyer in a clients conduct or other misconduct of the lawyer involving
representation of the client, the lawyer may respond to the extent the
lawyer reasonably believes necessary to establish a defense.
This section allows a lawyer to reveal a clients confidential information
in self-defense.
Ex. To defend against a claim or legal malpractice or ineffective
assistance of counsel.
Ex. To defend against a civil or criminal charge that the lawyer
was involved in the clients wrongdoing.
A lawyer entitled to a fee is permitted to prove the services rendered in an
action to collect it.
o (b) to comply with other law or court order.
Rule 1.8(b)
A lawyer shall not use information relating to representation of a client to the
disadvantage of the client unless the client gives informed consent.
Confidentiality even applies to the revelation of a clients name.
The client may not want you to even reveal his name. May not want others to know that
he has or had lawsuit.
o Candor
A lawyer had dual responsibility- has responsibility to represent the client zealously but lawyer
is also officer of the court.
Candor is about honesty!
Rule 3.3 Candor Toward the Tribunal
This also applies when the lawyer is representing a client in an ancillary proceeding,
such as a deposition.
(a) A lawyer shall not knowingly:
o (1) make a false statement of fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the lawyer.
Cannot lie to the court.

The prohibition against offering false evidence only applies if the lawyer
knows that the evidence is false. A lawyers reasonable belief that
evidence is false does not preclude its presentation to trier of fact.
o (2) 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; or
if the lawyer found a bad case for the client, lawyer still has to bring it to
the courts attention.
o (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyers
client, or a witness called by the lawyer, has offered material evidence and the
lawyer comes to know if its falsity, the lawyer shall take reasonable remedial
measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse
to offer evidence, other than the testimony of a defendant in a criminal matter,
that the lawyer reasonably believes is false.
If a lawyer knows that the client intends to testify falsely or wants the
lawyer to introduce false evidence, the lawyer should seek to persuade the
client that the evidence should not be offered. If the persuasion is
ineffective and the lawyer continues to represent the client, the lawyer
must refuse to offer the false evidence. If only a portion of a witnesss
testimony will be false, the lawyer may call the witness to testify but may
not elicit or otherwise permit the witness to present the testimony that the
lawyer knows is false.
(b) a lawyer who represents a client in an adjudicative proceeding and who knows that a
person intends to engage in criminal or fraudulent conduct related to the proceeding shall
take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in (a) and (b) continue to the conclusion of the proceeding, and
apply even if compliance requires disclosure of information otherwise protected by Rule
1.6.
o Even if something falls under 1.6 confidentiality, this rule trumps 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts
known to the lawyer that will enable the tribunal to make an informed decision, whether
or not the facts are adverse.
Note
o The duties stated in (a) and (b) apply to all lawyers, including defense counsel in
criminal cases. In some jurisdictions, courts have required counsel to present the
accused as a witness or to give a narrative statement if the accused desires, even
if counsel knows that the testimony or statement will be false.
This rule does not permit a lawyer to refuse to offer the testimony of such
a client where the lawyer reasonably believes but does not know that the
testimony will be false. Unless the lawyer knows the testimony will be
false, the lawyer must honor the clients decision to testify.
o What happens if before trial the defendant insists on taking the stand and commit
perjury?
The lawyer may withdraw from the case, if it is feasible and the case isnt
too far in litigation where withdrawing from the case can negatively
affect the client.
If withdrawal is not feasible or permitted by the court, or if the situation
arises immediately preceding trial or during trial and defendant insists on
lying on the stand, the lawyer cannot withdraw nor shall the lawyer aid in
the perjury. Rather, before the defendant takes the stand the lawyer should

make a record of the fact that the defendant is taking the stand against
advice of counsel without revealing the perjury to the court. The lawyer
then may ask questions to defendant that will not lead to perjurious
answers
As to the matters which will lead to perjury, the attorney should seek to
avoid direct examination of the defendant. Instead, the lawyer should ask
the defendant if he or she wishes to make any additional statements
concerning the case to the trier of facts.
The perjury story/ facts by defendant may then not be used in the
lawyers closing argument. (Narrative testimony).
Thus, if the defendant wants to lie under oath and insists on taking the
stand at his trial, the lawyer must allow the defendant to testify because
criminal defendants have a right to testify at their own trial but the
attorney cannot ask questions that would directly lead to the perjury.
Rather, the defendant can tell a narrative of the facts. The attorney may
not then use the false version of the story in the attorneys closing
argument. (Narrative testimony).
**Note- the narrative testimony only applies to criminal defendants
and does not apply to any other witnesses other than the defendant
himself**
o What happens if the lawyer is surprised when the attorneys client, or another
witness, offers testimony that the lawyer knows to be false?
In such situations, the lawyer must take reasonable remedial measures.
The advocates proper course is to remonstrate with client confidentially
to fix the problem, advise the client of the lawyers duty of candor and
honesty to the tribunal and ask the client to withdraw the false testimony
or correct the testimony. If that fails, the advocate must take further
remedial action. They attorney will tell the client the responsibilities of
the attorney and try to withdraw from the case. If lawyer cannot withdraw
from representation, the attorney must then tell the judge that the client
testified to false information in order for the situation to be remedied.
o Duration of obligation
The conclusion of the proceeding is a definite point for the termination of
the obligation. A proceeding has concluded when a final judgment has
been affirmed on appeal or the time for review has passed.
Rule 4.1 Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
o (a) make a false statement of material fact or law to a third person, or
A lawyer is required to be truthful when dealing with others on a clients
behalf, but generally has no affirmative duty to inform an opposing party
of relevant facts.
A misrepresentation can occur if the lawyer incorporates or affirms a
statement of another person that the lawyer knows is false.
o fail to disclose a material fact when disclosure is necessary to avoid assisting a
criminal or fraudulent act by a client, unless disclosure prohibited by Rule 1.6.
In Re Braun
Facts
o Braun was admitted to practice law in NY and DC. She wanted to be a member
of the NC bar.

o In NC, she opened a food and catering shop and she claimed in the NC bar
application that she did law-related activities at the business. She tried to pass her
work at the shop as legal services but instructions on application explained that is
she states legal work, the legal work has to be substantial. She was trying to
avoid taking the bar exam.
The application said she was supposed to be actively and substantially
engaged in the practice of law in that state to avoid taking bar exam. But
she was not working as attorney everyday. Rather, she was running a
bakery. She misrepresented here and lacked candor.
Misrepresentation and misleading inconsistent with truthfulness an condor which is
required of a practicing attorney.
o Attorney must be truthful.
Negotiations
Rule 4.1, Comment 1- do not have to give every piece of information during a
negotiation.
4.1, comment 2- Truthfulness in statement rule refers to statements of fact. Whether a
particular statement should be regarded as one of fact can depend on the circumstances.
Under generally accepted conventions in negotiation, certain types of statements
ordinarily are not taken as statements of material fact.
Estimates of price or value placed on the subject of a transaction and a
partys intentions as to an acceptable settlement of a claim are not
statements of material fact.
Ex. Can say things like My client thinks claim is worth $5k. Lawyers
know opening in negotiation.
Cannot say board refuses to pay more than when the board
would pay more than stated amount. This would be considered
active misrepresentation.
Cannot lie in negotiations.
Must be truthful when saying statements that are statements of fact.
o Estimates of price or value or settlement level are not considered statements of
fact.
Fairness in Litigation
o Civility Toolbox
Purpose: to encourage lawyers to be more courteous and civil to each other.
o Matter of Vincenti Case
Rule: A lawyer must be courteous and civil. The lawyer must be courteous and not disrespectful
towards opposing counsel or witnesses in the trial. The lawyer must also be respectful and
courteous towards the court and the judge. The lawyer should not insult the court, nor make
baseless accusations against the court.
Rule: Lawyer must also be respectful to opposing client and witnesses outside the courtroom.
Here, the lawyer was crazy. He was frequently sarcastic, disrespectful and irrational and accused
the court that judge was racist, judge was conducting a kangaroo court, conducting a sham
hearing, the judge was prejudice and was a bigot, etc. He made a lot of outrageous and
disrespectful charges.
Here, the lawyers behavior was not acceptable and so the court suspended him until the court
decided to reinstatement him (indefinite suspension).
o Special Duties/Responsibilities of Prosecutors
Why should prosecutors have their own ethical rule?

Because they are acting on behalf of the government and they have discretion to decide
what cases to pursue and what cases not to pursue.
Also because they have a lot of power. Prosecutors are acting on behalf of the people and
justice.
Prosecutors must exercise their power in a responsible fashion.
Rule 3.8
The prosecutor in a CRIMINAL CASE SHALL:
o (a) refrain from prosecuting a charge that the prosecutor knows is not supported
by probable cause
do not want to accuse an innocent person if there is doubt that person
committed crime.
Prosecutor should be looking for justice- should really look for the right
person who committed the crime. They do not want a false convictiondont want to pin the crime on someone just to pin the crime and to look
like they did their job.
o (b) make reasonable efforts to assure that accused has been advised of the right to
obtain counsel and the procedures to obtain counsel. The accused must be given
reasonable opportunity to obtain counsel.
o (c) not seek to obtain from an unrepresented accused a waiver of important
pretrial rights such as the right to a preliminary hearing.
o (d) make timely disclosure to the defense of all evidence or information known
to the prosecutor that tends to negate the guilt of the accused or mitigates the
offense. In connection with sentencing, must disclose to the defense and tribunal
all unprivileged mitigating information known to the prosecutor.
Cannot hide information. Not fair. Peoples lives are in the hands of
prosecutor and want to be totally fair to the accused.
Prosecutor may have better access to witnesses and reports so they may
get more access to information that defense counsel may not have access
to.
Prosecutor must disclose anything favorable to the defense, even if the
prosecutor thinks that the information is not believable or persuasive and
must disclose as soon as possible so that the defense can make the best
use of the information.
o MUST NOT subpoena a lawyer in grand jury or other criminal proceeding to
present evidence about a past or present client UNLESS prosecutor reasonably
believes:
The information is NOT protected from disclosure
The evidence sought is essential to the successful completion of an
ongoing investigation or prosecution, AND
There is not other feasible alternative to obtain the information.
Note- this paragraph is intended to limit the issuance of lawyer subpoenas
to grand jury and other criminal proceedings to those situations which
there is a genuine need to intrude into the client-lawyer privilege.
When the prosecutor knows of new, credible and material evidence creating a reasonable
likelihood that a already convicted defendant did not commit an offense of which the
defendant was convicted, the prosecutor SHALL:
o Promptly disclose that evidence to an appropriate court or authority, AND
o If the conviction was obtained in the prosecutors jurisdiction,

Promptly disclose that evidence to the defendant unless court authorizes

delay, AND
Undertake further investigation, either himself or authorize someone else
to investigation, to determine whether the defendant was convicted of an
offense that defendant did not commit.
When a prosecutor knows of clear and convincing evidence establishing that a
defendant in the prosecutors jurisdiction was convicted of an offense that the defendant
did not commit, the prosecutor SHALL seek to remedy the conviction.
o Duties of Defense Attorneys
Rule 3.1- Litigation should be fair and Claims Must not be Frivolous
A lawyer shall not bring or defend a proceeding, or asset an issue, unless there is a basis
in law and in fact for doing so that is not frivolous, which includes a good faith argument
for an extension, modification or reversal of existing law.
o If there is no good faith defense you can offer for the defendant of a criminal
case, then cannot offer a frivolous defense.
o Fairness to Opposing Party and Counsel
Rule 3.4
A lawyer SHALL NOT:
o (a) unlawfully obstruct another partys access to evidence or unlawfully alter,
destroy or conceal a document or other material having potential evidentiary
value. And lawyer shall not tell someone else to destroy or conceal evidence.
o (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an
inducement to a witness that is prohibited by law.
o (c) knowingly disobey an obligation under the rules of tribunal.
o (d) before trial, making frivolous discovery request or failing to make reasonably
diligent effort to comply with a legally proper discovery request by an opposing
party.
Must really try to get discovery for opposing party. Cannot just be lazy
and decline to give what was asked for or say that its not accessible to
you when the information really is.
o (f) request a person other than a client to refrain from voluntarily giving relevant
information to another party unless:
the person is a relative or an employee or other agent of a client, AND
the lawyer reasonably believes that the persons interests will not be
adversely affected by refraining from giving such information.
Witness Coaching (Rule 3.4(b))
A lawyer cannot coach a witness to testify falsely. Some coaching is ok as long as the
attorney doesnt induce overtly or covertly to change story and lie.
A lawyer MAY discuss the case with the witnesses before they testify. The adversary
system benefits by allowing lawyers to prepare witnesses so that they can deliver their
testimony efficiently, persuasively, comfortably, and in conformity with the rules of
evidence.
When a lawyer discusses the case with a witness, the lawyer MUST NOT try to bend the
witnesss story or put words in the witnesss mouth.
o Lawyer is to learn what the witness knows, not what the witness ought to know.
A lawyer can be disciplined by the bar for counseling or assisting a witness to testify
falsely or for knowingly offering testimony that lawyer knows is false.
When lawyer interviews and prepares a witness, lawyer typically does these things:

o Discuss the witnesss perception, recollection, and possible testimony about the
events in question.
o Review documents and other tangible items to refresh witnesss memory or to
point out conflicts and inconsistencies with witnesss story.
o Explain how the law applies to events in question.
o Reviews the factual context into which witnesss testimony will fit.
o Rehearse witnesss testimony by role playing or other means.
Three grades of coaching:
o Grade 1- where a lawyer knowingly and overtly induces a witness to testify
falsely.
Overtly in used to mean that the lawyers conduct is openly or on its
face an inducement to testify falsely.
This kind of coaching interferes with the courts truth-seeking function
and corrodes the morals of the witness and the lawyer.
If this kind of coaching is detected, lawyer can be punished under
disciplinary rules.
Unacceptable coaching because telling client to lie.
o Grade 2- lawyer knowingly but covertly induces witness to testifying falsely.
This would be when a lawyer is not literally telling the person what to say
but is giving him huge hints.
Covertly is used to mean that the lawyers inducement is masked.
Like- you killed someonewhat do you need in order for it to be
justifiable- trying to get the client to come up with self defense
excuse when killing was not self defense.
This type of coaching, like grade 1, is harmful to the courts truth-seeking
function and is also a breach if lawyer disciplinary rules.
Unacceptable coaching because telling client to lie.
o Grade 3- lawyer doesnt knowingly induce the witness, but nevertheless alters
the witnesss story.
This happens regularly. When preparing witness for testimony, asking
individual questions.
Hard to avoid but lacks the element of corruption that other two have.
When a lawyers conversation with witness serves proper purpose, such
as refreshing the witnesss memory, the lawyer should nonetheless
conduct the conversation in the manner that is least likely to produce
inaccurate testimony.
This is usually fine as long as the attorney does not intent to get the
witness to testify falsely.
Making Threats
Using threats to again advantage in civil case
o A lawyer MAY bring, or threaten to bring, criminal charges against her
adversary in order to gain an advantage in a civil case, provided that the criminal
and civil matters are closely related and that both the civil case and criminal
charges are warranted by the law and the facts.
o However, a lawyer MUST NOT threaten to report adversary counsel for a
disciplinary violation in order to gain an advantage for her client in a civil case.
If the adversary counsels disciplinary violation is the kind that must be reported,
the lawyer should simply report it- she should not use it as a bargaining chip in
the civil case.

o Ex. Lawyer L has personal knowledge that adversary counsel lied to the judge
about a certain document that L had requested in discovery. Lying to a judge is
the kind of conduct that raises a substantial question about a persons fitness to
practice, and L therefore must report it. L told adversary counsel: If you accept
my clients settlement proposal, then I will not report you for lying to the judge
about that document. Ls conduct is improper; she should simply have reported
adversary counsel, not used the misconduct as a bargaining chip in the civil case.
o Duty to Preserve Impartiality of Tribunal
Rule 3.5
A lawyer SHALL NOT:
o (a) seek to influence a judge, juror, prospective juror or other official by means
prohibited by law;
o (b) communicate ex parte with such a person during the proceeding unless
authorized to do so by law or court order;
may not communicate by one party alone without presence of the other
party with persons serving in an official capacity in the proceeding such
as judges, masters or jurors, unless authorized by law.
o (c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order
(2) the juror has made known to the lawyer a desire not to communicate,
OR
(3) the communication involves misrepresentation, coercion, duress of
harassment, OR
o (d) engage in conduct intended to disrupt tribunal.
Ex. Despite repeated warnings by the trial judge, attorney A persisted in
banging on the counsel table, interrupting the judge in mid-sentence,
making sour faces while witnesses were examined, and learning over the
jury rail in an intimidating manner. A is subject to discipline.
More on Jurors
o Before or during the trial of a case, a lawyer who is connected with the case
MUST NOT communicate (outside of official proceedings) with a juror or
member of the panel from which the jurors will be chosen.
This rule forbids communication on ANY SUBJECT even the weather.
It does not matter who initiates the communication.
If a juror or prospective juror attempts to communicate with a lawyer, the
lawyer must refuse.
However, a lawyer NOT CONNECTED TO THE CASE may talk to a
juror or prospective juror but not about the case.
o Trial Publicity
The litigants in a trial have a Fifth Amendment right to have their dispute resolved on
admissible evidence, by fair procedures, in a tribunal that is not influenced by public sentiment
or outcry. Protection of that right requires some limits on the kind of information that can be
disseminated to the public before trial- particularly where the trial is to be by jury. On the other
hand, the public and the press have countervailing rights under First Amendment. The public has
a right to know about threats to its safety, and it has an interest in knowing about the conduct of
judicial proceedings.
General Rule: A lawyer who is connected with a case MUST NOT make a public statement
outside the courtroom that the lawyer reasonably should know would have a substantial
likelihood of materially prejudicing the case. (e.g. discussing the character or credibility of a

party or witness, performance or results of an examination, possibility of a guilty plea, or

existence or contents of a confession).
Right of Reply
A lawyer MAY, however, make a public statement that a reasonable lawyer would
believe is required to protect a client from the substantial undue prejudicial effect
of recent publicity not initiated by the lawyer or the lawyers client.
o So this would be to protect the reputation or the interest of the client due to an
outside statement made to the media by someone else that had a prejudicial effect
on the client.
Additional constraint on criminal procedures- there is an additional constraint on the
prosecutor in a criminal case. The prosecutor MUST NOT make extrajudicial comments that
have a substantial likelihood of heightening public condemnation of the accused.
Dry facts about case permitted
A lawyer who is connected with the case MAY publicly state the following dry facts
about the case:
o The claim, charge or defense involved- provided that the lawyer said this with an
accompanying statement that the charge is only accusation and the party is
deemed innocent til proven guilty.
o The names of persons involved (unless law prohibits it)
o Any information that is already in the public record
o The scheduling or result of any step in litigation
o The fact that an investigation is ongoing, a request for help in getting
information, and a warning of danger (if appropriate), AND
o Routine booking information about a criminal defendant, such as his name,
address, occupation, family status, the time and place of arrest, the names of
arresting officers, and the names of investigating officers or agencies.
These rules apply equally to other lawyers who are associated in a law firm or agency with the
lawyers participating in the case.
o Lawyer As Witness
Rule 3.7
A lawyer SHALL NOT act as advocate at a trial in which the lawyer is likely to be a
necessary witness UNLESS:
o The testimony related to an uncontested issue
o The testimony relates to the nature and value of legal services rendered in the
case, or
o Disqualification of the lawyer would work substantial hardship on the client.
Note- when you testify at witness, its personal. A lawyer testifying as witness doesnt
work because you will seem biased if you do. You will be hurting client because either
your testimony will not be believed or youll testify against the client.
***Conflict of Interest***
o Very important part of legal pro! Always tested on the bar and MPRE!!
o Introduction
Loyalty is the essential element in the relationship between a lawyer and client. The lawyers
professional judgment must be exercised solely for the benefit of the client, free of
compromising influences and loyalties. Thus, absent the necessary informed consent, a
lawyer MUST NOT represent a client if a conflict of interest exists.
A conflict of interest arises when there is a substantial risk that the lawyers representation of the
client will be materially and adversely affected by the lawyers own interests or the lawyers
duties to another current client, former client, or a third person.

Consequences of Conflict of Interest

If a conflict of interest is apparent BEFORE a lawyer takes on a clients matter, then the
lawyer must not take it on or must get informed consent of each client the conflict
affects.
If a conflict becomes apparent only AFTER the lawyer has taken on the client, and if the
informed consent of the affect client(s) will NOT solve the problem, then the lawyer
MUST withdraw.
A lawyers failure to handle conflict properly can have three unpleasant consequences:
o Disqualification as counsel in a litigated matter
o Professional discipline
o Civil liability for legal malpractice
Imputed Conflict of Interest
Generally, lawyers who practice together in a firm are treated as a single unit for conflict
of interest purposes. When one of the lawyers cannot take on a matter because of a
conflict of interest, the other lawyers in the firm are also bared from taking on that
matter. The conflict is said to be imputed from the first lawyer to the other lawyers.
o Firm- includes not only an ordinary private law firm, but also other groups of
lawyers who practice closely together such as lawyers in corporate law
department, prosecutors or public defenders.
Whether a group of lawyers should be regarded as a firm for conflict of
interest purposes depends on these factors:
1. Do the lawyers have a formal agreement among themselves
2. Do they hold themselves out in a way that would make the
public think they practice together as a firm
3. Do they share their revenues and responsibilities
4. Do they have physical access to each others client files
5. Do they routinely talk among themselves about the matters they
are handling, AND
6. Would the purpose of the particular conflict rule be served by
imputing one lawyers conflict to other lawyers in the group
o protecting the loyalty and interest of the client
Exceptions
o Personal Interest of lawyer
Some kinds of conflicts are NOT imputed to other lawyers in the firm.
Generally, these conflicts are uniquely personal to the lawyer in question,
which makes it unlikely that other lawyers in the firm would have divided
loyalties.
o Screening of Disqualified lawyer
A lawyers conflict will not be imputed to the firm if the lawyers
prohibition is based on Rule 1.9 (a) or (b) (relating to conflict of interest
duties owed to former clients) and arises out of her association with a
prior firm provided the disqualified lawyer is timely screened from
participation in the matter and is apportioned no part of the fee from the
matter.
Notice and Certifications to Former Client
Prompt written notice must be given to any affected former client
detailing: Need all 4
o 1. A description of screening procedures

o 2. A statement of the firms and lawyers compliance with

the requirements
o 3. A statement that review before a tribunal may be
available AND
o 4. An agreement by the firm to respond promptly to
written inquiries or objections by the former client
concerning the screening procedures.
The disqualified lawyer and a partner of the firm must provide the
former client with certifications of compliance with the ABA
Model Rules and with the screening procedures at reasonable
intervals upon written request and upon termination of screening
procedures.

o Current Clients
Rule 1.7
(a) A lawyer SHALL NOT represent a client if the representation involves a conflict of
interest. A conflict of interests with respect to current clients if:
o (1) the representation of one client will be DIRECTLY ADVERSE to another
client; OR
Directly adverse Could arise when lawyer is asked to represent someone in
litigation against another person and that other person is already
the attorneys client either in that same matter or another matter.
o If lawyer wants to take representation of someone that is
against a current client, may be able to get consent.
o Attorney can definitely NOT get consent if he will be
representing both clients in the same matter.
o Ex. Lawyer L represents patent owner O in connection
with the licensing of Os patent (that O has valid
patents). Manufacturer M is one of Os licensees, but M
does not realize that L represents O. M asks Ls law partner
P to sue O for declaratory judgment that Os patent is
invalid and that Os license agreements are void.
Here, L herself could not represent M because Ms
interests are directly adverse to Os interests. Ls
conflict is imputed to her law partner P. A
reasonable lawyer would advice O and M NOT to
consent to this conflict. Consent will not solve the
conflict when one client sues another client
represented by the lawyer in the same litigation.
Can also arise if attorney is representing one client and the witness
list for opposing counsel includes already a client of his. This may
be a problem, especially if lawyer can potentially use confidential
information learned by the client against him during cross exam of
other client.
o Ex. Lawyer L is defending D, who is accused of armed
robbery of liquor store. L is stunned when he sees the
prosecutors witness list because it includes Z, a purported
eyewitness to the armed robbery. L knows Z very well
because he is defending Z in a dunk driving case. From
confidential info L gathered in drunk driving case, L

knows that Z is an alcoholic who sometimes sees things

that are not there and sometimes remembers things that did
not happen. In defending D, L will have to cross-examine
Z about his capacity to perceive, remember, and relate
events accurately. If L cross-examines Z vigorously, he
might seem to be using information about Z that he
learned in confidence, or at least Z might think so. On the
other hand, if L soft-pedals the cross-examination of Z, D
might think he is not getting effective counsel. If D doesnt
know about conflict, will surely feel betrayed by lawyer.
A reasonable lawyer would have to advise D and Z
not to consent to this conflict of interest. L must
seek the courts permission to withdraw from one
case or the other, preferably the case in which his
withdrawal will be least harmful to the client.
Directly adversity can also arise in transactional matters.
o Ex. If a lawyer is asked to represent the seller of a business
in negotiations with a buyer represented by the lawyer, not
in the same transaction but in another, unrelated matter, the
lawyer could not undertake the representation without
informed consent of each client.
However, simultaneous representation in unrelated matters of
clients whose interests are only economically adverse, such as
representation of competing economic enterprises in unrelated
litigation, does NOT constitute a conflict of interests and thus
MAY NOT REQUIRE consent of respective clients.
o But can get consent if you want.
o Ex. Attorney A represents GenCorp, a genetic engineering
company that is working on a cure for melanoma. As law
partner P represents Biotek, another genetic engineering
company that is working on an entirely different way to
cure melanoma. Biotek and GenCorp are head-to-head
adversaries in an economic sense, but their interests are
not adverse in any legal sense.
If A and her partner P can disclose the situation to
their respective clients without revealing
confidential information, they may do so for the
sake of client goodwill, but would not be subject to
discipline for failing to do so.
Without informed consent, if attorney takes on representation that is
directly adverse, the client as to whom representation is clearly adverse is
likely to feel betrayed and can damage client-lawyer relationship where
lawyer may not be able to adequately represent clients interests.
o (2) there is a significant risk that the representation of one or more clients will be
MATERIALLY LIMITED by the lawyers responsibilities to another client, a
former client or a third person or by a personal interest of the lawyer.
Even if there is no direct adverseness, a conflict of interest exists if there
is a significant risk that a lawyers ability to consider, recommend or
carry out an appropriate course of action for the client will be materially
limited as a result of the lawyers other responsibilities or interests.

This is basically when the lawyer cannot represent clients interests

zealously because of lawyers responsibilities and duties to other clients
or due to personal interest of lawyer.
If the personal interests of lawyer is affected in representation of
client, it may be difficult or impossible for lawyer to give a client
detached advice.
Ex. A lawyer asked to represent several individuals seeking to form a
joint venture is likely to be materially limited in the lawyers ability to
recommend or advocate all possible positions that each might take
because of the lawyers duty of loyalty to the others. The conflict
deprives alternatives that would otherwise be available to the client. The
critical questions are:
The likelihood that a difference of interests will eventuate and, if
it does, whether it will materially interfere with the lawyers
independent professional judgment in considering alternatives or
deprives courses of action that reasonably should be pursued on
behalf of the client.
Ex. Client C asked attorney A to defend her in a vehicle manslaughter
case in which C is charged with killing victim V while drunk driving.
Unknown to C, V was As college roommate and they remained best
friends until Vs death.
There is a significant risk that As efforts to Cs behalf would be
materially limited by As personal grief at the loss of his best
friend. Therefore, A must not take on Cs case.
Specific Conflict Situations Concerning Material Limitation
Representing Co-Parties in Litigation
o Advantages of having a single lawyer: the cost will be
lower than having two lawyers and the single lawyer can
present a united front for both clients.
o The disadvantages: the interests of the two clients may be
mostly harmonious but partly or potentially in conflict.
o Criminal litigation
Because the interest of criminal co-defendants are
likely to diverse, a lawyer should not try to defend
two people in a criminal case.
These can arise: one defendant seeks to put blame
on the other, the story told by one defendant is
inconsistent with the story told by the other, one
defendant has a strong has a strong defense that is
compromised to protect the other, and trial tactics
would help one but harm another.
o Civil litigation
One lawyer MAY represent two plaintiffs or two
defendants whose interests are potentially in
conflict, but only if the two clients give informed,
written consent.
1. First, lawyer should analyze the facts of the case
and applicable law. If she concludes that she can
effectively represent both clients, despite their

potentially conflicting interests, then she can move

to second step.
2. The lawyer should disclose the potential conflict
to each client and explain how it can harm each
client, the reasonable available alternatives, and the
disadvantages of having only one lawyer for both
of them.
3. When clients fully understand the situation,
lawyer may invite their informed, written consent
to joint representation.
4. If the potential conflict eventually ripens into
present conflict, must repeat steps 1,2,3. The
lawyer must withdraw from joint representation if a
reasonable lawyer would have to advise either of
the two clients not to consent. The lawyer may
continue to represent one consenting client, but
only if the client who is dropped gives informed,
written consent to the continuation.
By withdrawing, can result in additional cost,
embarrassment and recrimination. Ordinarily,
lawyer will be forced to withdraw from
representing ALL the clients if common
representation fails.
Confidentiality and Privilege Problems
o In litigation between two people who were formerly joint
clients of a single lawyer, neither of them can claim the
attorney-client privilege for their communications with the
lawyer. That is one disadvantage of having one lawyer for
multiple clients, and the lawyer should warn the clients
about it before undertaking multiple representation.
o Multiple representation unlikely to work if one client
wants to disclose material to the lawyer in confidence and
wants to keep it confidential from other clients. Therefore,
the lawyer should ordinarily make clear to all clients at the
outset that whatever one client discloses will be shared
with all of the other clients.
o In special situations, however, the clients may agree that
one of them may disclose a given item of information to
the lawyer but not to the other clients.
There can also be a problem where lawyers representing different clients
in the same matter or substantially related matter are closely related by
blood or marriage. In these instances, there may be a significant risk that
client confidences will be revealed and that the lawyers family
relationship will interfere with both loyalty and independent professional
judgment. As a result, each client is entitled to know of the existence and
implications of the relationship between the lawyers before the lawyer
agrees to undertake the representation. Thus, a lawyer related to another
lawyer (parent, child, sibling, spouse) may not represent client unless
each client gives informed consent.

The disqualification arising from a close family relationship is

personal and ordinarily is not imputed to members of firms with
whom lawyers are associated.
(b) Exceptions- Even though there may be a conflict of interest, a lawyer MAY(but
doesnt have to) still represent a client if: Need all 4 conditions
o (1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
o (2) the representation is NOT prohibited by law
o (3) the representation does NOT involve asserting a claim by one client against
another client represented by that SAME lawyer in the SAME litigation; AND
o (4) each affect client gives informed consent, confirmed in writing.
Informed consent- the affect client is aware of all the relevant
circumstances, reasonable alternatives, and foreseeable ways the conflict
might harm her.
Writing- the consent must be in writing. A consent merely oral does not
solve the conflict. So that means either of two things:
1. There is a tangible or electronic record that is physically or
electronically signed by the client; OR
2. There is an oral consent that is promptly memorialized in a
tangible or electronic record that is promptly sent to the client.
Note- the clients consent to an aggregate settlement or business
transaction with the lawyer MUST be signed by the client.
Revocation- the client can almost always revoke a previously given
consent to a conflict. Client can revoke consent and may terminate
lawyers representation at any time. The revocation may or may not mean
that the lawyer can continue representing other clients in the matter,
depending on the particular facts.
Consent to future conflicts (Advance Conflict Waivers) - a lawyer may
properly ask a client to consent to conflicts that may arise in the future,
but only if it is reasonable to do so, and only if the client truly
understands the particular kinds of conflicts that may arise and the
consequences of consenting. The more comprehensive the explanation
of the types of future representations that might arise and the actual and
reasonably foreseeable adverse consequences of those representations, the
greater the likelihood that client will have the requisite understanding.
The court wants to make sure that client understood the waiver and what
a conflict is in order to protect the client.
When determining whether to enforce waiver, courts look at:
Client received comprehensive explanation about conflict of
interest and when it arises;
Client sophistication level
o If client unsophisticated who would not understand
conflict, likely the court will stroke down the waiver.
If attorney gives client opportunity to have waiver reviewed
by outside counsel
Note- the consent rule creates a reasonable lawyer standard. If a reasonable lawyer
looking at the facts would conclude that the clients interests would not be adequately
protected in light of the conflict, then the conflict is UNCONSENTABLE- so clients
consent will not solve the conflict.

o Consentability is typically determined by considering whether the interests of

the clients will be adequately protected if the clients are permitted to give their
informed consent to representation burdened by a conflict of interest.
o Ex. General practitioner G represents husband H in legal matters arising out of
the investment of Hs inherited fortune. G has represented H for many years, and
he knows all of Hs innermost secrets, both financial and personal. Now wife W
has asked G to represent her in obtaining divorce from H.
In light of all the confidential information G has learned about H over the
years, a reasonable lawyer would have to advise H NOT to consent to the
conflict of interest. Thus, even if H did consent, the consent would not
solve the conflict. The lawyer G knows too much about H for litigation to
be fair.
Steps for resolution of a conflict:
o 1. Clearly identify the client or clients;
o 2. Determine whether a conflict of interest exists;
o 3. Decide whether the representation may be undertaken despite the existence of
a conflict (i.e. whether the conflict is consentable);
o 4. If so, consult with the clients and obtain their informed consent, confirmed in
writing.
If cannot do so, cannot represent client with the conflict.
o Current Clients: Specific Rules
Rule 1.8
(a) A lawyer SHALL NOT enter into a business transaction with a client or knowingly
acquire an ownership, possessory, security or other pecuniary interest adverse to a client
unless:
o (1) the transaction and terms on which lawyer acquires interest are fair to the
client
o (2) terms are fully disclosed to the client in writing, expressed in a manner that
the client can reasonably understand. The lawyers disclosure to the client must
cover the essential terms of the transaction and the lawyers role in the
transaction; AND
o (3) the client is advised in writing that he should get the advice of an independent
lawyer about the arrangement before entering into it (and the client must be given
a reasonable chance to obtain advice); AND
o (4) the client gives informed consent, in a writing that client signs.
(b) A lawyer SHALL NOT use information relating to representation of a client to the
disadvantage of the client unless the client gives informed consent.
o Must not disclose information relating to representation of a client.
o Same rules apply to former or prospective clients confidential information.
o Cannot use information for lawyers benefit or benefit to someone else, like
another client or third party.
o However, if a lawyer uses confidential info (not to the disadvantage of client but
for his own pecuniary gain), lawyer may be subject to civil liability.
Ex. Insider trading!
(c) A lawyer SHALL NOT solicit or accept 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 is related to the client.
(spouse, child, grandchild, parent, grandparent, or other individual with whom lawyer or
client maintains a close, familial relationship).

o However, lawyer may accept a small gift from a client, such as a token of
appreciation or an appropriate holiday gift.
o Legal instrument here includes will or a deed of gift- lawyer cannot prepare legal
instrument that creates substantial gift to the layer except when donor is a
relative.
(d) BEFORE representation of client ends, a lawyer SHALL NOT make or negotiate an
agreement giving the lawyer literary or media rights to a portrayal or account based in
substantial part on information relating to the representation of a client.
o However, a lawyer may acquire such rights AFTER the clients legal matter is
entirely completed, appeals and all.
o The reason is that the clients interest in effective representation may conflict
with lawyers interest in maximizing value of the literary or media rights.
(e) A lawyer SHALL NOT provide financial assistance to a client in connection with
pending or contemplated litigation.
o Exceptions:
(1) lawyer may advance court costs and expenses of litigation, the
repayment of which may be contingent on outcome of mater, AND
(2) a lawyer representing indigent client may pay court costs and
expenses of litigation on behalf of client without expecting to be repaid.
(f) A lawyer SHALL NOT accept compensation for representing a client from one other
than the client unless:
o (1) client gives informed consent
o (2) there is no interference with the lawyers independence of professional
judgment or with the client-lawyer relationship, AND
payment in exchange for trying to control the way attorney handles the
case.
o (3) information relating to representation of client protected by Rule 1.6.
(g) Aggregate Settlement Agreements- when a lawyer represents several co-parties in a
matter, the adversary sometimes makes an aggregate settlement offer, for example an
offer to settle all claims for a lump sum of $1 million. That creates a potential conflict of
interest among the lawyers several clients. Some of them may want to settle for that
amount, but others may want to hold out for a better offer. Also, the several clients may
disagree about how the lump sum is to be allocated- who pays how much or who
receives how much. Because of the potential conflict, the lawyer MUST NOT
participate in the making of an aggregate settlement agreement unless all of the
following conditions met:
o (1) the lawyer MUST assure that the clients have come to an agreement among
themselves about how the aggregate sum will be shared (who gets how much)
o (2) the lawyer must disclose to each client all of the terms of the aggregate
settlement, including: AND
(a) the total amount that will be paid or received
(b) the existence and nature of all the claims, defenses and pleas involved
in settlement,
(c) the details of every other clients participation in the settlement,
including how much each will contribute or receive and how each
criminal charge will be resolved, AND
(d) how the lawyers fees and costs will be paid and by whom
o (3) each client must give informed consent to the aggregate settlement agreement
in a writing signed by the client.

o Note- same rules apply to both a civil and criminal case (although usually one
lawyer will not represent more than one defendant in criminal case).
(h) A lawyer SHALL NOT:
o (1) make an agreement prospectively limiting the lawyers ability to a client for
malpractice unless the client is independently represented in making the
agreement, OR
But layer may agree with client to arbitrate all legal malpractice claims,
provided that agreement is proper under local law and client understands
the scope and effect of agreement.
o (2) settle a claim or potential claim for such liability with an unrepresented client
or former client unless that person is advised in writing of the desirability of
seeking and is given a reasonable opportunity to seek the advice of independent
legal counsel.
o However lawyer MAY
Lawyer may practice in a limited liability entity, provided that lawyer
remains personally liable to the client for her own malpractice and entity
complies with legal requirements for notice, insurance coverage, etc.
A lawyer may enter into agreement with his client that reasonably limits
the scope of the lawyers representation.
Ex. Client C is thinking of purchasing the worldwide distribution
rights to a strain of pest- resistant rice. C asks lawyer L to find out
whether any nation imposes trade restrictions on that kind of rice.
L tells C that to research the laws of every nation could take as
much as 300 hours and cost $60,000 but C said he could not
afford that much. C and L agreed that L would research as many
nations as he could in 100, starting with Cs mist likely markets.
This agreement is proper.
(i) A lawyer SHALL NOT acquire a proprietary interest in the cause of action or
subject matter of litigation the lawyer is conducting for a client, except that lawyer
MAY:
o (1) acquire a lien authorized by law to secure the lawyers fee or expenses, AND
o (2) contract with client for a reasonable contingent fee in civil case.
This gives lawyer reasonable stake in outcome.
o Ex. Lawyer L regularly does consumer loan collection work for American
Consumer Finance Company. When one of the Americans debtors defaults,
American assigns the debt and cause of action to L. In return, L immediately
pays American 50% of the face value of the debt. If L ultimately collects more
than 50%, she pays half of the excess to American and keeps the other half. L is
subject to discipline.
(j) A lawyer SHALL NOT have sexual relations with a client UNLESS a consensual
sexual relationship existed between them before the client-lawyer relationship started.
o Duties to Former Clients
Rule 1.9
(a) A lawyer who has formerly represented a client in a matter SHALL NOT thereafter
represent another person in the same or substantially related matter in which that
persons interests are materially adverse to the interest of the former client, UNLESS
former client gives informed consent, confirmed in writing.
o Substantially related Whether a matter is substantially related depends on
the facts of the particular situation. Matters are substantially related when they
involve the same transaction or legal dispute or if there otherwise is a substantial

risk that confidential factual information as would have been obtained in prior
representation would materially advance the clients position in the subsequent
matter.
o Ex. For many years, Lawyer L represented client H in matters relating to Hs
business and personal finances. Then L and H had sharp disagreement and came
to a parting of ways. Later, X asked L to represent her in a civil case against H. If
any information that L obtained in confidence about Hs business and personal
finances would be relevant in Xs suit against H, then L must not represent X
unless H gives informed, written consent.
(b) A lawyers duties may extend not only to the clients she represented personally, but
also to clients of the lawyers former firm. A lawyer whose firm formerly represented a
client in a matter and who acquired protected confidential information or information
pertaining to the representation may not thereafter represent another person in the same
or a substantially related matter if that persons interests are materially adverse to
those of the former client, unless former client gives informed written consent.
(c) A lawyer who has formerly represented a client in a matter or whose present or
former firm has formerly represented a client in a matter shall not thereafter:
o (1) use information relating to the representation to the disadvantage of the
former client, OR
o (2) reveal information relating to the representation.
Note- if a lawyer who is disqualified from representing a client joins a new firm, the new
firm may be disqualified as well unless the lawyer is properly screened. (i.e. the
disqualified lawyer does not work on the case, discuss it with those who do, or have
access to case files) and does not share fees from the matter, and the former client is
given notice.
Disqualification of lawyers former firm
o A lawyers former firm is prohibited from representing a person with interests
materially adverse to those of a client of the formerly associated lawyer if:
1. The matter is the same or substantially related to that in which the
formerly associated lawyer represented the client, AND
2. A lawyer remaining in the firm has information protected by 1.6 and
1.9(c) that is material to the matter.
Example:
Look at pg. 69 of BABRI for example
o Conflicts Involving Prospective Clients (Rule 1.18)
Lawyers duty Concerning Confidential Information
A prospective client is someone who discuses with a lawyer the possibility of forming a
lawyer-client relationship. The attorney-client privilege protects confidential
communications between a lawyer and a prospective client. The ethical duty of
confidentiality also applies to discussions between a lawyer and prospective client. Thus,
the lawyer must not reveal or use information learned during those discussions, unless an
exception to the duty of confidentiality applies.
Lawyers Duty Concerning Conflict of Interest
A lawyer who obtains confidential information during preliminary discussions with
prospective client must not later represent a different person in the same or substantially
related matter in confidential information could significantly harm prospective client.
This conflict is imputed to others in the lawyers firm, but the imputation can be
overcome by screening.
How to Overcome Prospective Client Conflict

One way to overcome conflict above is to obtain informed, written consent from both
the affected client and the prospective client.
A second way to overcome conflict is to satisfy all of the following conditions:
o (1) Demonstrate that the lawyer who held discussions with prospective client
took care to avoid exposure to any more confidential information that was
necessary to determine whether to represent prospective client,
o (2) Demonstrate that the disqualified lawyer is timely screened from any
participation in the matter and will not share the fee (but can take ordinary salary
or partnership share) AND
o (3) give written notice to the prospective client.
o Imputation of Conflicts of Interest
Rule 1.10
(a) While lawyers are associated in a firm, none of them shall knowingly represent a
client when any one of them practicing alone would be prohibited from doing so unless:
o (1) prohibition is based upon a personal interest of the disqualified lawyer and
does not present a significant risk of materially limiting the representation of the
client by the remaining lawyers in the firm, OR
o (2) the prohibition based on lawyer on Rule 1.9(a) or (b) and arises out of the
disqualified lawyers association with a prior firm, AND
(1) the disqualified lawyer is timely screened from any participation on
the matter
(2) written notice given to affected former client
not asking for permission from client, just notice that its
happening (not consent)
(3) certifications of compliance with these rules and with the screening
procedures are provided to the former client by the screened lawyer and
by a partner of the firm.
(b) When lawyer has terminated association with a firm, the firm is not prohibited from
thereafter representing a person with interests materially adverse to those of a client
represented by the formerly associated lawyer and not currently represented by firm
unless:
o (1) the matter is the same or substantially related to that in which the formerly
associated lawyer represented and client, AND
o (2) any lawyer remaining in the firm has information protected by Rules 1.6 and
1.9(c) that is material to the matter.
o Former Judge, Arbitrator, Mediator or Other Third-Party Neutral (Rule 1.12)
(a) 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
proceeding give informed consent, confirmed in writing.
(c) if a lawyer is disqualified by (a), no lawyer in a firm with which that lawyer is associated
may knowingly undertake or continue representation in the matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee, AND
(2) written notice is promptly given to the parties and any appropriate tribunal to enable
them to ascertain compliance with the rule.
o Organization As a Client
Who is the client?
Organizations best interest wins.

Rule 1.13
Duty of Loyalty to the Org
o A corporation, governmental agency, etc., is a legal entity, but it must act through
the people who make up the organization- the directors, officers, agency
employees, shareholders, etc. A lawyer who represents an organization must
work through those people. However, the organization is the lawyers client, the
lawyer owes the duty of loyalty to the organization- not to the people who are its
constituents.
Conflicts Between the Org and its Constituents
o Ordinarily, there is no conflict between the interests of the org and the interests of
the people who make up the org. Sometimes, however, their interests do come
into conflict. When they do, the lawyer for the org should caution the person
in question that the attorney represents the organization, not the person. For
instance, the lawyer should warn the person that communications between them
may not be protected by attorney-client privilege. Also when appropriate, the
lawyer should advise the person to obtain independent legal counsel.
When representing org, lawyer will see contact person as client but
lawyer needs to remember that the client is the organization, not the
contact person. Lawyer is orgs lawyer, not the employees lawyer.
When talking to employee, make sure employee understands youre not
their attorney but rather orgs attorney.
Protecting the Orgs Interests
o If the lawyer for an org learns that a person associated with the org has acted, or
is about to act, in a way that violates a duty to the org or a law in a way that
might be imputed to the org, and if the violation is likely to cause substantial
injury to the org, the lawyer must proceed as is reasonably necessary to protect
the interests of the org.
o (b) Duty to Report to Higher Authority in Org
In situation described above, the lawyer must ordinarily report the
violation to a higher authority in the org. If necessary, the lawyer must
report it to the orgs highest authority (e.g. a corps outside directors).
However, this rule gives the lawyer a narrow range of discretion- she
need not report the violation if she reasonably believes that the orgs best
interests do not require the violation to be reported.
o (c) Duty to Report Outside the Org
If the lawyer reports violation to the orgs highest authority, but the
highest authority fails to take timely, appropriate action, the lawyer MAY
report the relevant information to appropriate persons outside of the org.
This is true even if the information would otherwise be protected by the
duty of confidentiality (rule 1.6). However, the lawyers authority to
report to outsiders applies only if the lawyer reasonably believes that
reporting is necessary to prevent substantial injury to the org. The
authority to report to outsiders does not apply to a lawyer who is hired by
the organization to investigate an alleged violation of law or to defend the
org or its constituents against a claimed violation of law.
o Whistle Blower Protection
A lawyer who reasonably believes that she has been fired because she
acted pursuant to (b) or (c) or who withdraws under circumstances that
require or permit her to act pursuant to either of those paragraphs, must

proceed as she reasonably believes necessary to assure that the orgs

highest authority is informed of the firing or withdrawal.
Representing Both the Org and an Associated Person
o The lawyer for an org may represent both the org and one or more of the
directors, officers, employees, or other persons associated with the org, provided
that the ordinary conflict of interest rules satisfied. When dual representation
requires the consent of the org, the consent must be given by an appropriate
person other than the person to be represented.
Serving As Both Director and Lawyer
o The ABA Model Rules do not forbid a lawyer from serving as both director of an
org and as lawyer for the org, but the dual role can create conflicts of interest. For
instance, when the lawyer participates in a meeting as a director (rather than as
the orgs lawyer), the attorney-client privilege will not apply to communications
at the meeting, but some of the other directors may not realize that. If there is
substantial risk that the dual role will compromise the lawyers professional
judgment, the lawyer should either resign as director or not act as the orgs
lawyer when a conflict arises.
Securities Lawyers Duties Under Sarbanes- Oxley Act
o Sarbanes- Oxley Act makes rules for securities lawyers who discover their clients
violating the federal or state securities laws or similar laws.
o Pg. 77 of BARBRI

o Insurance Companies and Conflict of Interest

When insurance company gets involved in the case, there can be a conflict of interest.
Insurance companies have two duties:
Duty to defend
o Insurance co has to pay attorneys fees. When lawyer does insurance defense,
lawyer represents insured (policy holders)
o Duty to defend is broader than duty to indemnify.
Duty to indemnify
o How much money to pay out for settlement or judgment.
o Clients with Diminished Capacity
Who is the client?
Treat client directly as your client. Even if more things handled by guardian, still treat
disabled client like a regular client.
Even if parents are 3rd party payors, still need to treat minor as client and go to client
first.
Rule 1.14
(a) When a clients capacity to make adequately considered decisions in connection with
a representation is diminished, whether because of minority, mental impairment or other
reasons, the lawyer shall maintain a normal client-lawyer relationship with the client.
o A severely incapacitated person may have no power to make legally binding
decisions. Nevertheless, a client with diminished capacity often has the ability to
understand, deliberate upon, and reach conclusions about matters affecting the
clients own well-being.
o The fact that a client suffers a disability does not diminish the lawyers obligation
to treat the client with attention and respect.

(b) when the lawyer reasonably believes that the client has diminished capacity, is at risk
of substantial physical, financial or other harm unless action is taken and cannot
adequately act in the clients own interest, the lawyer may take reasonably necessary
protective action, including consulting with individuals or entities that have the ability to
take action to protect the client, and, in appropriate cases, seeking the appointment of a
guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity is
protected by Rule 1.6 (confidentiality). When taking protective action, the lawyer is
impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to
the extent reasonably necessary to protect the clients interests.
o So attorney must maintain confidentiality as much as he can however is
impliedly authorized to break the confidentiality if taking protective action.
o Protective action includes: consulting with family members, professional
services, and other agencies/entities that have the ability to protect the client.

The Lawyers Roles

o Introduction
What is a firm?
Firm denotes a lawyer or lawyers in a law partnership, professional corporation, sole
proprietorship or other association authorized to practice law, or lawyers employed in a
legal services organization or the legal department of a corporation or other organization.
Issues in law firm practice
Supervising vs. Subordinate lawyers
Initial hire issues
Discussing employment with another firm
Lateral moves
Issues when leaving a firm
Sale of law firm/ retirement
Initial Hire Issues
Discrimination
Make sure that applicant hasnt done anything unethical.
Make sure misrepresentations were not made
o Make sure that the applicant didnt lie on the application or resume.
Ex. Make sure that applicant went to law school, employers should be
checking credentials and references.
Discussing Employment with Another Firm
Start watching out for conflicts of interest
Make sure to bear in mind what your client will worry about- if OC offers you job
opportunity
o If attorney leaves to go to opposing counsel, it looks disloyal to the client. The
client will worry that the attorney is not looking out for the clients interest. It
may be interpreted that you are not zealously representing the client.
o If opposing counsel approaches attorney, the attorney should talk to his client and
as for his clients consent to talk to opposing counsel about job opportunity with
them. If client does not consent, tell opposing counsel to wait until the matter
ended in order to respect the client.
Issues in Leaving a Firm
New firm will want detailed info like references, credentials, etc.

Conflict of Interest concerns (most violated)

o In wanting to change firms, understandable why firm will want as much info as
possible because if there is a conflict, they can close you off- put a wall around
you.
However, there is a concern that attorneys may talk too much and may
accidentally break ethical rules.
How do you get around this? Talk to client and ask if you can reveal their
name and small summary about the matter.
Sometimes attorneys want to bring their clients with them.
o Clients are not property. Cant just decide to take a client.
o Timing of leaving
If attorney is a partner, bound by terms of partnership agreement. Its
important to tell the firm first that you want to leave before talking to
clients. If dont tell firm first but rather tells client first, it will be seen by
the firm as solicitation.
If attorney is associate, also important to tell the firm first that you want
to leave before talking to clients about it.
Attorney cannot use clients as references if the attorney didnt get the consent first
because the name of clients are confidential. Thus, if attorney wants client as reference,
ask for their consent to give out their name and to put them down.
What happens to the client files?
o If your client goes with you to the new firm, the attorney can make copies of the
file.
o If the client stays with old firm, the file says with old firm.
If you want to take a memo as your work-product, tell the firm and the
firm will probably let you.
But there will be docs that attorney cannot take for fear of breaking client
confidences.
Issues that come up in Retirement
If attorney is retiring, the attorney needs to let the clients know.
o If attorney recommends people, thats fine but clients show have options to get
new legal help so give a list of attorneys- not just one.
If sole practitioner, always running risk that if something happens to you, wont be able
to handle clients cases.
o Need to make sure to have backup plan in place ALWAYS to protect the clients.
o To avoid this issue, sole practitioners work out deal with small firm or other sole
practitioner that if something happens to the attorney, the other attorney can take
on the clients. This is very important to have a deal like this in order to protect
the clients!
Responsibilities of Partners, Managers and Supervisory Lawyers
Rule 5.1
o (a) The partners or managing lawyers of a law firm (and the supervisory lawyers
in a governmental agency, business or other group of lawyers) must make
reasonable efforts to assure that the other layers adhere to the Rules of
Professional Conduct.
Must establish policies and procedures in the firm designed to provide
reasonable assurance that all lawyers in the firm will conform the Rules
of Professional Conduct.

Other measures needed to be taken in order to fulfill this responsibility

can also depend on the size of practice.
A small firm of experiences lawyers can have informal
supervision and periodic review of compliance with the required
systems.
In a large firm or in practice situations in which difficult ethical
problems frequently arise, more elaborate measures may be
necessary.
o (b) A lawyer having direct supervisory authority over another lawyer SHALL
make reasonable efforts to ensure that the other lawyer conforms to Rules of
Professional Conduct.
o (c) A lawyer shall be responsible for another lawyers violation of the Rules of
Professional Conduct if:
(1) the lawyer, with knowledge of the specific conduct, orders the conduct
involved OR the lawyer, with knowledge of the specific conduct, ratifies
the conduct involved; OR
so if the supervising attorney orders or ratifies conduct for another
attorney and that conduct was in violation of the these rules, that
supervising attorney will also be in violation of the rules.
(2) the lawyer is a partner or has comparable managerial and/or
supervisory authority in the law firm and knows of the conduct at the
time when its consequences can be avoided or mitigated but fails to take
reasonable remedial action.
Responsibilities of a Subordinate Lawyer
Orders from a supervisory lawyer are no excuse for clearly unethical conduct- a lawyer
must follow the ethics rules even when acting under the directions of another person.
However, the fact that a subordinate lawyer was acting on directors from a supervisor
may be relevant in determining whether the subordinate ha the knowledge that is
required for some ethics violations.
Rule 5.2
o (a) A lawyer is bound by the Rules of Professional Conduct even though the
lawyer acted at the direction of another person.
Its not a defense to say that conduct bad but not responsible for it because
supervisor ordered me to do it.
o (b) A subordinate lawyer does NOT violate the Rules of Professional Conduct if
that lawyer acts in accordance with a supervisory lawyers reasonable resolution
of an arguable question of professional duty.
When a debatable ethics question arises, someone must decide on a
course of action, and that responsibility must rest with the supervisory
lawyer. If the supervisors judgment turns out to have been wrong, the
subordinate lawyer should NOT be disciplined for doing what supervisor
directed.
So if you can argue that the decision made can go either way, then
protected if you follow the way supervisor told you.
Responsibilities Regarding Nonlawyer Assistants (Rule 5.3)
Duty to Educate and Guide in Ethics Matters
o Law firms, governmental and business law departments, and other groups of
lawyers employ many kinds of nonlawyers- secretaries, investigators, paralegals,
law clerks, messengers, and law student interns. Lawyers who work with such

employees must instruct them concerning the ethics of the profession and
should be ultimately responsible for their work.
Duty of Partners Respecting Nonlawyer Employees
o The partners and managers in a law firm (and the supervisory lawyers in a
governmental agency, business, or other group of lawyers) must make reasonable
efforts to assure that the conduct of the nonlawyers is compatible with the
obligations of the profession.
Duties of Direct Supervisor Respecting Nonlawyer Employees
o A lawyer who directly supervises the work of a nonlawyer employee must make
reasonable efforts to assure that the conduct of the nonlawyer is compatible with
the obligations of the profession.
Ethical Responsibility of Nonlawyers Misconduct
o A lawyer is subject to discipline in two situations when a nonlawyer does
something that, if done by a lawyer, would violate a disciplinary rule. The lawyer
is subject to discipline if:
The lawyer ordered the conduct or knew about it and ratified it, OR
The lawyer is a partner or manager or has direct supervisory
responsibility over the nonlawyer, AND the lawyer knows about the
misconduct at the time when its consequences can be avoided or
mitigated and fails to take reasonable remedial action.
Professional Independence of a Lawyer
Rule 5.4
o Fee Splitting with Non-lawyers and temporary lawyers
(a) A lawyer or a law firm SHALL NOT share legal fees with a
nonlawyer, except that:
(1) An agreement by a lawyer with the lawyers firm, partner or
associate may provide for the payment of money, over a
reasonable period of time after lawyers death, to the lawyers
estate or to one of more specified persons.
o Because the payment is still technically going to the
lawyer but hes dead.
(2) a lawyer who purchases the practice of a deceased, disabled or
disappeared lawyer may pay to the estate or other representative
of that lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a
compensation or retirement plan, even though the plan is based in
whole or in part on a profit-sharing arrangement; AND
(4) a lawyer may share court-awarded legal fees with a nonprofit
organization that employed, retained, or recommended
employment of the lawyer in that matter.
A firm can employ temporary lawyers through a placement agency
without violating the fee-splitting rule.
o (b) A lawyer SHALL NOT form a partnership with a nonlawyer if any of the
activities of the partnership consist of the practice of law.
So cannot have a partnership where there is part of office that practices
law and other part of office does accounting work.
o (c) A lawyer SHALL NOT allow a person who recommends, employs, or pays
her for serving a client to direct or regulate the lawyers professional judgment.

Ex. Federal Life Insurance Company employs lawyer L to prepare estate

plans for potential life insurance customers. The potential customer pays
nothing for the estate planning service. L works on a flat salary paid by
Federated. L, realizing who provides his daily bread, makes sure that
every estate plan includes a careful explanation of the benefits of
balancing protection through Federateds term and whole life policies. L
is subject to discipline.
o (d) A lawyer SHALL NOT practice in an incorporated law firm or association
authorized to practice law for profit if:
(1) A nonlawyer owns any interest in the firm or association (but when
lawyer dies, her estate may hold an interest during the administration of
the estate)
ex. Nonlawyer cannot be a stockholder in firm.
(2) A nonlawyer is a corporate director or officer or the equivalent;
OR
(3) A nonlawyer has the right to direct or control the professional
judgment of a lawyer.
Sale of a Practice of Law
Rule 1.17
o A lawyer or a law firm may sell or purchase a law practice or the a field of law
practice if the following conditions are met:
(a) the seller ceases to engage in the PRIVATE practice of law or in the
sold field of practice in which the area where the practice has been
conducted;
however, lawyer may still be employed as a lawyer on the staff of
a public agency or legal services entity that provides legal services
to the poor, or as in-house counsel to a business.
Also, lawyers return to private practice because of unanticipated
change in circumstances does not violate the rule.
(b) the entire practice, or the entire field of practice, must be sold to one
or more lawyers or firms; AND
Cannot sell off one or two clients. If trying to sell firm, must sell
entire firm.
(c) written notice must be given to the sellers client regarding the sale,
the clients right to retain other counsel or to take possession of their files,
and the fact that consent to the transfer of clients files will be presumed if
a client takes no action within 90 days of receipt of the notice.
If notice cannot be given to a client, a court order is required to
authorize the transfer of the representation of that client to the
purchaser.
Also, the seller must exercise competence in identifying a
purchaser qualified to undertake the representation competently.
o Note
The purchaser MUST undertake ALL client matters in the practice, and
not just those that generate substantial fees (subject to client consent and
conflict of interest rules).
Clients fees must not be increased because of the sale. The purchaser
must honor existing fee agreements made by the seller.

Retirement from a law partnership or association, retirement plans, and a

sale of tangible assets of a law practice do not constitute a sale or
purchase governed by this rule.
Restrictions on Right to Practice (Rule 5.6)
Restrictive Partnership and Employment Agreements
o A lawyer MUST NEITHER MAKE NOR OFFER a partnership or employment
or similar agreement that restricts a lawyers right to practice after
termination of the relationship, except for an agreement concerning benefits
upon retirement. Such agreements not only limit a lawyers autonomy but also
limit the freedom of clients to choose a lawyer.
If a lawyer does offer such an agreement the other lawyer accepts the
agreement, both lawyers will be subject to discipline- even the one
accepting the offer.
Ex- benefits upon retirement- 64 year old solo practitioner S took young
lawyer Y in as partner. Their partnership agreement provided that after S
retired, the firm would pay S a retirement benefit of $5,000 per month so
long as S did not re-enter the practice of law. This agreement is proper.
Restrictive Settlement Agreements
o A lawyer MUST NEITHER MAKE NOR OFFER an agreement in which a
restriction on the lawyers right to practice is part of the settlement of a client
controversy.
Ex. Over a period of several years, Attorney A represented a series of
federal employees in personal injury suits against the federal government
concerning cancers allegedly caused by working in Dos Araboles
Radition Lab. The government settled each suit as it came along, but the
more suits the government settled, the more new plaintiffs A was able to
find. Ultimately, the government offered to settle all then-pending suits
for generous sums, provided that A would never again represent a
claimant in Dos Araboles Radiation case. If A agrees to settle on those
terms, A will be subject to discipline.
o Law- Related Services (Rule 5.7)
Lawyers are permitted to provide law-related services. Law-related services are services that
might reasonably be performed in conjunction with (and are related to) the provision of legal
services and that are not prohibited as unauthorized practice of law when provided by a
nonlawyer.
Examples of law-related services include financial planning, accounting, lobbying, trust
services, real estate counseling, preparing tax returns.
Even though law-related services are not legal services, a lawyer who provides such services is
subject to Rules of Professional Conduct in two situations:
Nonlegal Services and Legal Services Provided Together
o If a lawyer provides nonlegal services in circumstances that are not distinct from
her provision of legal services, then the Rules of Professional Conduct apply to
both the legal and nonlegal services.
Example: Attorney A is an expert in setting up new business ventures. He
also knows many wealthy people who invest money in untried business
ventures- so called venture capitalists. When A draws up the articles of
incorporation for client Cs new business venture and also finds some
willing investors for C, A is subject to the Rules of Professional Conduct
in both activities.
Nonlegal Services Provided by Entity that is Controlled by the Lawyer

o If a nonlawyer provides nonlegal services through an entity that is not her law
office that she controls (either alone or with other lawyers), that lawyer must take
reasonable steps to assure that people who receive the nonlegal services
understand that those services are not legal services and that the Rules of
Professional Conduct do not cover those services. For instance, the attorneyclient privilege does not apply to the nonlegal services. If the lawyer does not
take those reasonable steps, then the lawyer is subject to Rules of Professional
Conduct with respect to the nonlegal services.
Proving Nonlegal Services to Clients
o When a client-lawyer relationship exists between the lawyer and the individual
receiving the law-related services, the lawyer must comply with Rule 1.8(a),
which specifies the conditions a lawyer must satisfy when she enters into a
business transaction with her own client.
Specifically, the transaction must meet the following requirements: the
terms of the transaction must be fair to the client, the terms must be fully
disclosed to the client in writing, and such disclosure must cover the
essential terms of the transaction and the lawyers role in the transaction,
the client must be advised in writing that he should seek advice from an
independent lawyer regarding the arrangement, and the client must give
informed consent in a writing signed by the client.
o Evaluation for Use by Third Parties
Rule 2.3
(a) A lawyer MAY provide an evaluation of a matter affecting a client for the use of
someone other than the client if the lawyer reasonably believes that making the
evaluation is compatible with other aspects of the lawyers relationship with the client.
o
(b) When the lawyer knows or reasonably should know that the evaluation is likely to
affect the clients interests materially and adversely, the lawyer SHALL NOT provide
the evaluation UNLESS the client gives informed consent.
(c) Except as disclosure is authorized in connection with a report of an evaluation,
information relating to the evaluation is otherwise protected by Rule 1.6.
o Lawyer Serving as a Third-Party Neutral
Rule 2.4
(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons
who are not clients of the lawyer to reach a resolution of a dispute or other matter that
has arisen between them. Service as third-party neutral may include service as an
arbitrator, a mediator, or in such other capacity as will enable lawyer to assist the parties
to resolve the matter.
(b) A lawyer serving as a third-party neutral SHALL inform unrepresented parties that
the lawyer is not representing them. When the lawyer knows or reasonably should know
that a party does not understand the lawyers role in the matter, the lawyer shall explain
the difference between the lawyers role as a third-party neutral and a lawyers role as
one who represents a client.
o Unrepresented parties may get confused with the role of lawyer as third-party
neutral thus lawyers must inform the parties that they are not their lawyer and
representing their interest, but rather only helping in resolving the dispute among
the parties.
Judicial Conduct
o Some judicial rules have already been addressed in other portions of the outline like under bias topic.