The Attorney-Client Relationsip (ACR)

I. DEFINING THE ACR A) Is there an Attorney-Client Relationship? o 1) Implied ACR: an ACR can arise through implication client believes it is Rx to rely on attys advice (rx expectation + reliance)see Perez v. Kirk. o 2) Togstad: atty1 tells potential client that she doesnt have a case; after SOL runs, atty2 says she did have a case; she sues atty1 for malpractice atty1, as the party w/ superior knowledge, had a duty to make clear that he wasnt representing her (or clarify the scope of the advice/relationship). o 3) Duties to Potential ClientsMR 1.18: atty/firm shall not represent a client w/ interests materially adverse to those of a prospective client in the same or substantially related matter if he recd info f/ the prospie that could be harmful to the prospie in that matter UNLESS (1) both clients give written informed consent; or (2) atty who recd info took rx measures to avoid exposure to more disqualifying info than was rxly necessary to determine whether to represent the prospie, AND the DQd atty is timely screed f/ participation in the matter and receives no part of the fee, AND written notice is promptly given to the prospie. B) What are an Attorneys Duties to the Client? o 1) COMPETENCYMR 1.1: a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Legal Knowledge & Skill (5 factors): Relative complexity and specialized nature of the matter; Attys general experience; Attys training and experience in the field in question; The preparation and study atty is able to give to the matter; Whether or not it was possible to refer the matter or associate w/ an atty competent in the field in question. ***Emergency Exception: an atty can give advice/assistance in a matter where he lacks the skill ordinarily reqd if referral or consutation w/ an expert atty is impractical. Assistance should be limited to that rxly necessary under the circumstances. Thoroughness & Preparation: atty is able to research and prepare. The attn and prep reqd is partly determined by what is at stake (i.e., major litig and complex transaxts ordinarily require more extensive treatment than matters of less complexity/consequence). o 2) CONFIDENTIALITYMR 1.6(a): a lawyer shall not reveal info 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 paragraph (b). MR 1.6(b): a lawyer may reveal info relating to the representation of a client to the extent he rxly believes it is necessary to: (1) Prevent rxly certain death or substantial bodily harm. 1

(2) Prevent client f/ commiting a crime or fraud that is rxly certain to result in substantial injury to financial interests or property of another AND in furtherance of which the client has used or is using the lawyers services. (3) Prevent, mitigate, or rectify substantial injury to the financial interest or property of another that is rxly certain to result or has resulted f/ the clients commission of a crime or fraud in furtherance of which the client has used or is using the lawyers services. (4) Secure legal advice about the attys compliance w/ these Rules. (5) Establish a claim or defense on behalf of the atty in a controversy btwn the atty and the client; establish a defense to a crim charge or civ claim against the atty based on conduct in which client was involved; or respond to allegations in any proceeding concerning the attys representation of the client. (6) Comply w/ other law or a court order. Privileged CommunicationsType of Client: Individual ClientPerez v. Kirk & Carrigan: agreement to form ACR implied f/ the conduct of the parties. o Bus driver caused accident; his employers attys came to his hospital room to s/w him; he rxly believed they were his attys and told them lots of info, which they told the DA. He sued (and won) for breach of duty of confidentiality. Entity Client (Corp)5 Tests for Privilege: (less ppl protectedmore) o (1) Control Group Test: only those ppl who are the human alter egos of the corp (officers, upper mgmt) can have privileged commns w/ the atty for the corp. o (2) Samaritan Hosp. Scope of Employment Test: privilege only applies to employees if the commn concerns the emps own conduct w/in scope of employment. o (3) Upjohn Subject Matter Test: (fed rule) privilege covers all internal commns that are the subj matter of the lawsuit (info needed for atty to give legal advice to entity). o (4) Ariz. LegislationFor the Purpose Test: any info given for purpose of obtaining legal advice is protected. o (5) Restatement Matter of Legal Interest Test: any commns btwn employees and co. is protected if it concerns a legal matter of interest to the org.

o 3) AGENCYTaylor v. Illinois: client bound by atty errors. It is not unfair to hold petitioner responsible for his attys misconduct. Atty necessarily has full auth to manage the conduct of the trial, and the client must accept the consequences of attys trial decisions; attributed to client. o 4) FIDUCIARY DUTY: honor, integrity, trust. Atty must have clients best interests at heart (w/in scope of representation) and pursue those interests w/o conflicting duties to others or self-interest. 2

Reasons for fiduciary relationship after status is formed: (1) encourage client dependence and trust, (2) promote client confidence, (3) difficult to chx atty.

o 5) LOYALTY & DILIGENCEMR 1.3: a lawyer shall act w/ rx diligence and promptness in representing a client. Atty should pursue a matter on behalf of client despite opposition, obstruction, or personal inconvenience and take whatever lawful and ethical measures are reqd to vindicate clients case. But atty is not bound to press for every advtg that might be realized by client; duty to act w/ rx diligence does not require use of offensive tactics. Atty must maintain caseload to ensure competent handling of each case. If doubt about whether ACR still exists, atty should clarify, pref in writing. (If client loses, may be to discuss appeal before terminating ACR, unless scope of representation previously limited ACR to trial work only.) o 6) TO INFORM & ADVISEMR 1.4 (Communication): (a) Atty shall: (1) promptly inform client of any decision or circumstance where clients informed consent is reqd. o Must consult re: settlement or plea unless prior auth. (2) rxly consult about means to be used to accomplish Cs objctvs. (3) keep client rxly informed about status of matter. (4) promptly comply w/ rx requests for info (5) consult about relevant limitation on atty conduct when aware that client expects assistance not permitted by MRs or other law. (b) Atty shall explain matter to extent rxly necessary to permit client to make informed decisions regarding the representation. Note: adequacy of commn depends in part on kind of assistance involved (i.e., time to review/discuss contract v. objection during trial). Withholding Information: atty may be justified in delaying transmission of info to client if client is likely to react imprudently; atty must comply w/ rule of ct/ct order prohibiting disclosure of info to client. Atty cannot w/hold to serve self-interest or convenience/interest of another person. C) What is the Scope of Representation & Allocation of Authority? o 1) MR 1.2: AUTH: client sets objectives; atty consults re: means (can fire/ withdraw if fundamental disagreement re: means); atty may take impliedly authorized actions; civ client decides re: settlement; crim client decides re: plea, jury trial, and testifying. SCOPE: atty may limit if rx + informed consent. NO: assist/counsel re: crim/fraudulent conduct; may discuss consequence of course of axt and may assist to determine validity, scope, meaning, or application of law. o 2) Nichols v. Kellerscope: may be liable for profl neglig for failing to provide advice; should provide requested info & volunteer opinions necessary to clients objectives (i.e., workers comp atty should advise re: possibility of other tort claim). o Jones v. Barnesauth: need not make every nonfriv argu client wants (discretion). o Olfe v. Gordonauth: liable for failure to follow client instruction re: real estate K. Expert testimony not reqd to estab std of care in case where atty neg is apparent.

D) How to Terminate the ACR: o 1) MR 1.16: (a) when must withdraw (violates rules, impaired condition, discharged); (b) when may withdraw; (c) give notice/get permission f/ tribunal; and (d) takes steps to protect clients interests. o Failure to comply no fees. o If terminate when work ends, send a termination ltr to be sure.

II.

PROTECTING THE ACR AGAINST OUTSIDE INTERFERENCE

A) Communicating with Another Lawyers ClientsMR 4.2 (No Contact Rule): o Atty shall not communicate about the subject of the representation w/ a person the lawyer knows to represented by another lawyer, UNLESS atty has consent of other lawyer or is authorized to do so by law or a court order. This rule only applies if atty has actual knowledge of the representation. o Applies even if represented person initiates commn or consents to commn. o Atty not involved in the matter may communicate w/ represented person. o For ENTITIES, dont need corp attys consent to s/w former employee. B) Who is a Represented Party? o 1) Civil MattersNiesig v. Team I: corporate employee who may be client for purposes of atty-client privilege is not necessarily party for purposes of disciplinary rule prohibiting atty f/ communicating directly w/ party known to have counsel. Party includes corporate employees whose acts or admissions in matter under inquiry are binding on corp or imputed to corp for purposes of its liability, or employees implementing advice of counsel; all other employees may be interviewed informally. Government Parties: cant contact someone w/ authority to bind the govt, or who is working closely w/ the other counsel, narrowly construed. (???) o 2) Criminal MattersU.S. v. Hammad: No Contact Rule applies in crim cases to prosecutors and non-lawyers acting as the alter ego of the prosecutors (informants). D can contact victim and other witnesses b/c they are not State parties. Rule may also apply to investigation stage before D is formally chargedbut NOT if suspect is unaware of investig and has permanent counsel. C) Dealing with an Unrepresented PersonMR 4.3: o Atty shall not state or imply that he is disinterested. If unrepresented person misunderstands attys role, atty shall make rx efforts to correct misundrstnding. Atty shall not give legal advice (other than advice to secure counsel) if persons interest are or have a rx possibility of being in conflict w/ clients interests. D) Even if Okay to Contact, Still Must Follow these Rules: o MR 4.1Truthfulness in Statements to Others; MR 4.4Respect for the Rights of Others; MR 8.4No Misconduct.

E) Improper Acquisition of Confidential InformationRico v. Mitsubishi: o Atty who inadvertently receives materials obviously appearing to be confidential and privileged should refrain f/ examining materials any more than is essential to ascertain if they are privileged, and shall immediately notify sender that he possesses material that appears to be privileged; parties may then proceed to resolve situation by agreement or may resort to ct for protective order or other judicial intervention.

III.

FINANCING LEGAL SERVICES (& DIVIDING THE MONEY)

A) FEESMR 1.5: o (a) No unreasonable fees (cant make agreement, charge, or collect) or expenses. Time and labor reqd, novelty and difficult of questions, and skill to perform. Apparent likelihood that this employment will preclude other emp by atty. Fee customarily charged in locality for similar svc. Amt involved and result obtained. Time limitations imposed by client or circumstances. Nature and length of professional relationship w/ client. Experience, reputation, and ability of lawyer(s) performing svcs. Whether fee is fixed or contingent. o (b) Scope of representation and fee/expense basis shall be communicated to client, preferably in writing, before or w/in a rx time after commencing representation (except for regularly represented client) + chx in fee/expense basis. o (c) Contingent fee agreement shall be in writing signed by client AND state method of determining fee incl . . . Notify of expenses due for regardless of outcome. At end of case, written statement of outcome, recovery (if any), and method of determnation. o (d) No contingent fees: (1) in a domestic relations matter, where the payment or amt is contingent upon (a) the securing of a divorce or (b) the amt of alimony or support, or property settlement in lieu thereof; or (2) for representing a D in a criminal case. **But you can have a contingency fee for collection of post-judgment balances due under support, alimony, etc. o (e) Attys not in same firm can divide fee only if: (1) divided in proportion to svcs rendered, or each assumes joint responsibility for the representation; (2) client agrees to arrangement, incl shares of each, confirmed in writing; and (3) total fee is rx. B) Role of the MarketplaceBrobeck, Phleger & Harrison v. Telex Corp.: o Although min. fee of $1M was high, contingent fee K was not unconscionable client was multi-million corp, atty was great S.Ct. atty, representation involved petition for cert. in complex antitrust axt, client insistent on contingent fee K, petition filed by atty provided client w/ leverage to secure advantageous settlement. C) Unethical FeesIn Re Laurence S. v. Fordham: o Atty successfully represents kid in DUI charge, but bills $50k for svcs. He did all the work billed for, and kid agreed to fee beforehand, but so excessive that violated MRs. o Client not expected to pay for edu of lawyer (excessive time on routine tasks).

D) Nonrefundable FeesMatter of Cooperman: o No nonrefundable special retainer fee agreementseven if not clearly excessive. o If client discharges atty after some svc but prior to completion of svc for which fee was agreed upon, atty is entitled to recover in quantum meruit for fair and rx value. o Min. fee agreements and general retainers are valid if not laden w/ nonrefundability. o McQueen, Rains & Trexch LLP v. Citgo Petroleum Corp: liquidated dmgs clause in fee agreement is okay when agreed to ahead of time, both parties are sophisticated, fees are rx, OR where atty, in entering into the K, has chxed positions or incurred expense to meet client needs. E) Contingent Fees & Statutory Limits: o 5 Factors re: desirability of contingency fee over hourly fee: Likelihood contingency will occur; When is contingency likely to occur; Probable size of recovery; Amt of work reqd; and Size of lawyers %. o Contingent amt that is rx when the deal is made can be unrx when award is entered. F) Minimum Fee SchedulesGoldfarb v. Va. State Bar: o Min. fees for specific legal work set by the state bar constitute price fixing in violation of the Sherman Act; P wanted RE title verified, but couldnt find an atty to verify title for less than min. set by state bar; sued state bar and won. G) Voluntary Pro BonoMR 6.1: o Every lawyer has a profl responsibility to provide legal svs to those unable to pay. Atty should aspire to render 50+ hours of pro bono legal svcs per yr H) SAFEKEEPING PROPERTYMR 1.15: o (a) Atty shall hold client/3P property separate f/ attys own property o (b) Atty may deposit his own funds in client trust acct for sole purpose of paying bank svc charges on that account (and only appropriate amt for that purpose). o (c) Atty shall deposit into C trust acct fes/expenses pd in advance (w/draw after earn). o (d) Atty shall promptly notify client/3P upon receipt of funds C/3P has interest in; atty shall promptly deliver funds/property; upon request, shall render full accounting. o (e) In possession of property when 2+ ppl claim interest, keep separate until resolved.

Conflicts of Interest
IV. A) B) V. A) B) CONCURRENT CONFLICTS OF INTEREST

SUCCESSIVE CONFLICTS OF INTEREST

Current Client Conflicts 1.7 (a) L. cant rep a cl if rep involves a current client conflict (unless its okay under 1.7(b)). conflict exists if: 1) Rep of one cl = directly adverse to another cl; or [can never take a case that is directly adverse to a current client]. 2) Significant risk the rep of a cl will materially limit ls responsibilities to another cl, former cl, 3rd person, or personal interest of the lawyer. (b) Even though current conflict exists L can rep if: 1. L Rx believes can provide competent rep to each cl; and 2. Rep is not prohibited by law; and 3. Rep does not involve an assertion of a claim by one cl against another; and 4. Each cl consents in writing. 1.7 and Litigation Cant rep opposing parties in the same lit. but (a)(2) allows for reping co-s or co-s,but if one files a cross-claim against the other L will likely have to withdraw under (b)(3). Precedent arguing a position that may create precedent adverse to another cl generally conflict; BUT is there is a significant likelihood that precedent will materially hinder another cl may = conflict. (look at jurisdiction; is issue procedural or substantive) Class actions Unnamed members of a class are typically not clients for 1.7 purpose so class L can be adverse to them in another action. Transactional Is there a conflict b/w cls? Factors: 1) duration and intimacy of l and cl; 2) function L is performing (merger or dissolving?); 3) likelihood that a disagreement will arise; 4) likelihood that one of the cls or both will be prejudiced if a disagreement does arise. 5) is conflict consentable ( fundamentally adverse = probably not; generally aligned = probably okay). Note: There is no att/cl confidentiality b/w parties in common rep if one cl tells L not to tell other cl something L likely to have to withdraw (unless parties worked that out ahead of time). Corp L. can generally be adverse to the parent or subsidiary of a corp that he represents. Lawyer Client Conflicts 1.8 (a) Business transactions cant do it unless 1) fair and Rx and disclosed to Cl in writing; 2) cl is advised to get independnat counsel to go over deal and is given Rx time to do so; 3) cl gives informed consent in writing. (Does apply to lawyer mixing business in to rep selling title ins. Along with a title search. Doesnt apply to commercial transactions that the cl generally markets can buy fruit from farmer cl.) (b) Disadvantage - Cant use infor learned in rep to disadvantage Cl w/o informed consent. (c) Gifts - Ask for a substantial gift or draft an instrument giving L (or one of his family members) a substantial gift (unless L is Cls family). 7

(d) Media Rights negotiate media rights (book deals) w/ cl prior to conclusion of rep. (e) Money to Client Give $ to assist cl in connection w/ pending lit. except: 1) pay ct cost and lit fees if case is contingency fee and will get $ back, or 2) pay costs on behalf of an indigent cl. (f) 3rd Party Payments - Accept payment from a 3rd party unless: 1) Cl = informed consent; 2) 3rd party doesnt interfere w/ Ls judgment; and 3) the 1.6 (confidentiality) of Cl is protected. (g) Aggregate Settlement- Settle based on aggregate vote when reping two or more clients unless informed consent and each cl knows what the other is going to get in settlement. (h) Mal Practice Settlement - Agree b/f to limit liability for mal practice unless cl was reped by indept counsel b/f hand; or settle mal practice w/cl unless 1st tell cl to get reped by indept counsel and give them time to do it. (i) Property interest in Suit - Aquire a property interest in the lawsuit except: 1) lien to secure fees, 2) contingent fees in a civil case. (j) Sex - No sex w/ cl unless had sex with them b/f they were a cl. Corp lawyer (inside or outside counsel) cant have sex w/ the people from the corp that deal w/ the lawyers. (k) Firm - If in firm everything but sex if apply to one L applies to all cls. (firm treated as one cl).

Lawyer as Witness (conflict) 3.7 L cant be an advocate in a trial where he is likely to be a necessary witness unless: 1) testimony relates to an uncontested issue; 2) testimony involves the nature and value of legal services; or 3) disqualification of the L will work a substantial hardship on the Cl. (b) L can be the advocate at a trial where another L from his firm is likely to testify unless it will violate 1.7 (current client conflicts), or 1.9 (duties to former cls). In re Neville Business Conflict 1.8(a) L goes into real estate deal w/ Cl that he had done a lot of work for and Cl was disadvantaged by deal. Ct = L had a duty to disclose disadvantages b/c relationship lead Cl to believe L would lookout for Cls best interest. Gellman v. Hilal Imputed Knowledge 1.8(k) married Ls. doc moves to have s L DQd b/c his wife had reped Doc in previous case involving same procedure. CT = married does not per se mean they will violate 1.9 duties of confidentiality. Conflicts and Criminal defense Ls Cuyler v. Sullivan multiple rep conflict. claims that multiple rep violated 6th amendment right to counsel. CT = did not object and ct was not obligated to ask if he was okay with multiple rep. In absence of objection must show actual conflict that affected Ls ability to rep cl, not just possible conflict.

Holloway v. Arkansas Criminal L given 3 co-s and he askes the ct to get other Ls b/c of conflicts, ct denies request w/o investigation into conflict. CT = refusal to investigate conflict requires reversal w/o need to show actual conflict. Wheat v. US refusal of counsel of choice b/c of a conflict 6th amend violation. wanted to have the same counsel as co-s and Ct said no b/c they would need to test at each others trials = conflict. Conflicts and Prosecutors Young v. US ex rel Vuitton 6th gives right to an impartial prosecutor. Judge seeking to enforce criminal fine for violating injunction appoints as prosecutor the counsel that had been opposing counsel in the civil case that lead to the injunction in the 1st place. Test for ineffective assistance of counsel 1) Was counsels performance Rx considering the circumstances 2) If not: is there a Rx probability that but for errors the result would have been different. Strickland v. Washington - sentenced to death claims ineffective asst of counsel b/c L failed to raise certain issues in sentencing phase. Ct= shut up and die. Imputed Conflicts - 1.10(a) No L. at a firm shall knowingly rep a cl if any L at the firm would be prohibited from reping b/c of 1.7 or 1.9. Unless prohibited based on personal interest AND doesnt present a significant risk of materially limiting rep. (Ex. L1 doesnt agree w/ cls politics okay for L2 to rep as long as sig risk). 1.10(b) Not Imputed when L w/ conflict leaves firm then conflict leaves firm Unless 1) matter is the same or substantially similar to the one that cause the conflict AND 2) any L still st firm has privileged info. Client/Client Conflicts Fiandaca v. Cunningham (Litigation) L tunrs down settlement offer for new site of womens prison b/c she also reps the mental patients at the hospital that was offered as the new site. L should have been kicked off the case (unless evidence that shows that city manufactured the conflict). Simpson v. James (Transactional) Ls repboth buyer and seller of catfish rest. Buyers are struggling to pay and L gets seller lien on stock but not property (b/c it would have disadvantaged buyer client) Co goes bankrupt stock is worthless and seller is jacked b/c no lien on actual property b/c of the conflict. Duties to Former Clients 1.9 Cant rep someone in the same or sub related matter if interest are materially adverse to former client. Unless: Informed consent from Former cl in writing. Sub Related = confidential factual

info that would normally be learned in the previous rep and can be used against the former cl. (If previously confidential info is now public knowledge then no conflict. (L. cant use info previously learned info to disadvantage of former cl and has a continuing duty to keep info confidential). Analytica v. NPD (Sub. Related): Cl, Melac, worked for NPD and hired L to rep in stock transaction. Melac left and went to work for Analytica and they sue NPD for anti-trust. Info that Ls learned in stock transaction (profits, sales etc..) could be used against NPD in anti-trust case Ls bounced. Kerr Mcgee (case explains why NPD = former client even though Melac- not NPD was actual cl). KM was a member of a trade assn that L reped and later L sues KM bounced because got inside info about KM through rep of trade assn. = sub. Related. Conflicts Reping Corp Sarbiens Oxley -1.13 (a) L is L for corp not the officers. (b) If someone at the corp is breaking the law in a way likely to result in sub. Injury to corp then L shall report it up chain of command to highest person who can do something about it. (c) If boss fails to act and failure = clear violation of law and L rx believes violation rx certain to result in sub injury to corp then L can violate rule 1.6 to report it. (d) (c) does not apply to corps investigation of violation of law or setting up a defense for itself. (f) If L is talking to employee that L rx believes has interests adverse to corp L must tell employee I rep corp not you. (g) L can rep both Corp and employee but needs consent from someone at corp other than employee needing rep. Tekin-Plex New owner of TP sues Old owner of TP and old wants to hire the TPs L. Confidentiality was sold with business L is L for TP not old owner. In re Grand Jury Former AOL employee moves to stop AOL from giving grand jury docs he made. CT = privilege is AOLs not employees. 7th circuit view of imputed knowledge They allow screening of Ls at firms. Cromley sued school board and after reping her for two years in the matter her L goes to work for firm that reps school board 7th Circuit = timely screened conflict. Government Lawyers Govt. Lawyers MR 1.11 Former govt L can be screened. (written notice of screening needs to be given to former agency). Former govt L cant rep a cl adverse to someone that the L got confidential info about while with the govt, in a matter where the info could be used against person.

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Current govt L Subject to 1.7 and 1.9; shall not participate in a matter he personally and sub participated in while in private practice unless govt gives informed consent. Or negotiate for private employment w/ party or opposing counsel in a matter hes pers & sub involved with. Armstrong v. McAlpin Former govt L works for firm that is trying to enforce judgment that L got while w/ govt. Ct = timely screened. Judges, Mediators, Clerks etc - 1.12 Former cant rep a party connected to a matter they participated in pers and sub while judge etc unless all parties consent in writing. (b) Judge etc cant negotiate private employment Clerk can but must tell judge 1st. (c) Firm is DQd unless screened. (d) Arbitrator selected by a partisan party in a multimember panel is not prohibited from subsequently reping the party.

Special Lawyer Roles

VI. ETHICS IN ADVOCACY A) Meritorious Claims & ContentionsMR 3.1: o Need basis in law and fact (not frivolous); okay to have good faith argument for extension, modification, or reversal of existing law. Not frivolous if insufficient evidence to support the claim if good faith belief that evidence will be produced in discovery. B) Expediting LitigationMR 3.2: o Atty shall make rx efforts to expedite litig consistent w/ interests of client. C) Candor Toward the TribunalMR 3.3: o NO false statement of fact or law to tribunal; no failure to correct previous false stmt. o NO failure to disclose to tribunal legal authority in the controlling JD known to atty to be directly adverse to clients position and not disclosed by opposing counsel. Matter of Thonert: duty to disclose if knows about adverse legal auth. o NO evidence known to be false; if atty learns evid offered is false, shall take rx remediate measures, incl, if necessary, disclosure to the tribunal; atty may refuse to offer evidence, other than testimony of D in a criminal matter, if rxly believes false. Nix v. Whiteside: dissuading client f/ committing perjury not ineffective assist of counsel under 6th Amd (atty threatened to withdraw if D testified falsely). o (b) If atty knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding, he shall take rx remedial measures, incl, if necessary, disclosure to the tribunal. I.e., client is bribing jurors, threatening witnesses, destroying evidence, etc. o (c) Duties in (a) and (b) continue to conclusion of proceeding and apply even if compliance requires disclosure of info otherwise protected by MR 1.6. Obligation ends once appeal is denied or time for review ends. o (d) In ex parte proceeding, atty shall inform tribunal of material facts known to atty that will enable tribunal to make informed decision, whether or not facts are adverse. 11

o Remedial Measures: if client starts lying on stand, (1) ask client to correct lie, (2) withdraw f/ representation, (3) if cant withdraw or it wont correct the error, inform the court of the lieeven if otherwise confidential under MR 1.6. VII. REAL EVIDENCE A) Fairness to Opposing Party & CounselMR 3.4: Atty shall not: o (a) Unlawfully obstruct access to evidence; alter, destroy, or conceal docs/evidence. o (b) Falsify evidence, counsel/assist W to testify false, offer illegal inducement to a W. Cant pay lay witness; cant pay expert on contingency fee. o (c) Knwngly disobey oblig under tribunal rules, except open refusal if no valid oblig. o (d) In pretrial procedr, frivolous discov req; not rxly diligent effort to comply w/ req. o (e) In trial, allude to matter w/o rx belief of relevance or support by admissible evid; assert personal knowledge of facts in issue; state personal opinion o (f) Request non-client to not give info unless Cs relative/empye & rxly believes B) No Concealing of EvidenceIn re Ryder: atty cant protect clients interest via illegal possession; ACP applies only to commns, not to objects. o Atty transferred $ and guns f/ Ds safe deposit box to his own disciplined. C) Location of evidencePeople v. Meredith: ACP does not apply to info re: location. o Atty retrieves victims wallet f/ trash behind Ds house; turned it over to cops. o If defense counsel removes evidence, no ACP for his observations. o If client gives evid directly to atty, atty may not need to reveal source. D) Litigation Holds--: once a party suspects litigation, it must suspend routine destruction of documents, incl electronic docs, to ensure preservation of relevant evidence. o Only exception = inaccessible backups. E) Special Responsibilities of a ProsecutorMR 3.8: o (a) Dont prosecute if know charge isnt supported by probable cause. o (b) Do make rx efforts to ensure D has access to counsel. o (c) Dont seek waiver of pretrial rights f/ unrepresented D. o (d) Do make timely disclosure of known evid/info that tends to negate guilt/mitigate. o (e) Dont subpoena atty to present evidence about past/present client unless rx belief: (1) info sought is not protected f/ disclosure by any applicable privilege; (2) evid sought is essential to successful investig or prosecution; and (3) no other feasible alternative to obtain info. o (f) Dont make extrajudicial comments that have substantial likelihood of heightening public condemnation of D. Do exercise rx care to prevent others statements. o ***Prosecutor must tell ct about new exonerating evidence if ct is outside of his JD; if inside his JD, Pros must tell ct, start investigating, and tell D.

Avoiding & Redressing Professional Failure

VIII. CONTROL OF QUALITY: REDUCING THE LIKELIHOOD OF PROFESSIONAL FAILURE 12

A) Unauthorized Practice of Law: o MR 5.5: may practice only where admitted. o (b) Cant establish office or other systematic and continuous presence if not admitted. o (c) May provide legal svcs on a temporary basis if (1) associated w/ admitted lawyer who actively participates, (2) arise out of matter where atty is admitted to practice, (3) arise out of pending arbitration, mediation, or other ADR in JD where licensed Temporary can go on for a long time (i.e., rep client in long litigation). o (d) In-House Counsel. B) Admission to the Bar: o Geographical ExclusionSupreme Ct of N.H. v. Piper: NH imposed residency req for admission; if atty meets every other req, must be allowed to practice. o Geographical RestrictionsSupreme Ct of Va. v. Friedman: Va. only wanted to give reciprocity to Va. residents violates P&I clause. o Education and Examination. o Character InquiriesIn re Mustafa: embezzled moot ct funds; denied admission b/c bad conduct was too close in time to taking the bar. MR 8.1: no false statement; no failure to correct misapprehension or respond to lawful demand for info. o Experiential Requirements. o Admission in Federal System. C) Disciplinary Authority: o MR 8.5(a): subject to discipline where admitted regardless of where conduct occurs. Also subj to discipline in JD where not admitted if provides/offers legal svcs. May be subject to discipline in more than one JD for same conduct. o (b): Choice of Law: (1) conduct in JD JDs rules; (2) other conduct rules of JD where conduct occurred, or, if predominant effect is in a different JD, that JDs rules. Not subj to discipline if conduct conforms to rules of a JD in which atty rxly believes the predominant effect of attys conduct will occur. D) Transient Lawyers & Multijurisdictional (National) Law Firms: (local interest/natl bar) o Admissions Pro Hac ViceLeis v. Flynt: temporary admission for the purpose of trying a particular case. Oh. denied PHV to Flynts NY lawyers. No const rt to PHV. o Services other than LitigationBirbrower, et al. v. Superior Ct: NY attys engaged in unauthorized practice of law in Cal. by interviewing, negotiating, drafting in connection w/ an arbitration (but never went to arbitration); atty fee K reqd Cal. law to govern denied their fees. Virtual presence (phone, fax, etc.) counts as practice of law. D) Ethical Duty of Competence/Continuing Legal Education: E) Supervisory Responsibilities: o MR 5.3: can delegate functions to staff if atty supervises and retains responsibility. F) Professional Independence of a Lawyer:

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o MR 5.4(a): no sharing of fees w/ nonlawyers, except: (1) by agreement, to deceased attys estate, (2) purchase price to deceased attys estate, (3) compensation of nonlawyer employees, (4) ct-awarded legal fees w/ nonprofit org in the matter. o (b): No pship w/ nonlawyer if any of the pship activities entail practice of law. o (c): 3P who recommends, employs, or pays atty cant direct attys profl judgment. o (d): May not practice in PC if nonlawyer (1) owns interest, (2) is an officer, or (3) has the right to direct or control the profl judgment of a lawyer.

IX. CONTROL OF QUALITY: REMEDIES FOR PROFESSIONAL FAILURE A) Malpractice & Breach of Fiduciary Duty: B) Liability to ClientsTogstad: C) Breach of Fiduciary DutiesTante v. Herring: D) Thirds Parties as Client Equivalents:

X.

CONTROL OF QUALITY: LAY PARTICIPATION IN LAW BUSINESS (Law Firm Ancillary Services) A) Nonprofit Entities and Intermediaries: o Public Interest OrgsNAACP v. Button: layperson can solicit business for an atty only if (1) it is a non-profit org, and (2) it is to vindicate a Const rt (i.e., free speech). A Va. law prohibited laypersons f/ advising another that his legal rts had been violated and referring him to a particular atty (soliciting business for atty). This violated orgs Free Speech rt (where litig is a form of polit expression). Atty may share ct-ordered fee w/ the non-profit org. o Labor UnionsUnited Transp. Union v. State Bar of Mich.: Can employ an atty to represent its members; a ban on this would abridge members freedom of speech, petition, and assembly. B) For-Profit Enterprises: o ABA Opinion 355: No Firms Owned or Managed by Nonlawyerssee MR 5.4.

XI. MARKETING LEGAL SERVICES A) CommnsMR 7.1: not false or misleading; dont create unjustified expectations. B) AdvertisingMR 7.2: (a) ok through written, recorded, or electronic commn (incl public media); (b) cant give value for recommendation (except rx ad costs, legal svc plan or approved non-profit referral svc, buy law practice, and non-exclusive reciprocal referral agreement); (c) incl name and office address of lawyer or firm; (d) ok for prepaid or group legal service plan. o Bates v. State Bar of Ariz: atty advertising is commercial speech (1st amd protection). o Zauderer v. Office of Disciplinary Counsel: (targeted ads) newspaper ad says atty will represent women injured by Dalcon Shield birth control ok. o Shapero v. Ky. Bar: (targeted mail) ltrs to ppl w/ homes in foreclosure ok.

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C) SolicitationMR 7.3: (a) no in-person, live phone, real-time electronic solicitation for personal gain unless person contacted is a lawyer or has family, close personal, or prior profl relationship w/ atty; (b) no solicitation at all if person had made it known to atty that he doesnt want to be solicited, or solicitation involves coercion, duress, or harassment; (c) if person is known to be in need of legal svcs, written, recorded, or electronic commn must include Advertising Material on outside of envelope (or beginning/end of recording) unless person is a lawyer, family, close personal, or prior profl. o Ohralik c. Ohio State Bar: can advertise, but cant solicit (in person) prospies for pecuniary gain under circumstances likely to pose dangers of undue influence, etc. o Edenfeld v. Fane: ?? o In re Primus: ??

XII. FREE SPEECH RIGHTS OF LAWYERS A) Trial PublicityMR 3.6: dont make extrajudicial statements that might prejudice case o Gentile v. Nevada: (public comments about pending case) the substantial likelihood of material prejudice std is a constitutionally permissible balance btwn 1st amd rts of attys in pending cases and the States interest in fair trials. Ct can regulate atty free speech in pending cases to maintain impartial jury pool. o ProsecutorsMR 3.8(f): Special rule re: extrajudicial statements. B) Judicial & Legal OfficialsMR 8.2: no false/reckless stmts re: judge, officer, candidate. o Matter of Holtzman: (criticizing judges and courts) in determining whether std set forth in Code of Profl Resp is impermissibly vague, guiding principle must be whether rx att, familiar w/ Code and its ethical strictures, would have notice of what conduct is proscribed. Here, atty sent ltr to judicial counsel and newspaper claiming judge mistreated a W by making her get on ground and show the ct the position she was in when molestednever actually happened reprimanded.

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