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Outline
I. Introduction to Professional Responsibility FOUNDATIONS of Professional Responsibility A. 3 Roles of a LAWYER *the tension of a L's roles requires the professional rules to navigate the tensions (1) Lawyer-CLIENT i. FIDUCIARY Relationship = L owes C a DUTY to act in their C's best interests, w. special obligations to care for & protect the C's interests *vs arms-length business relationship where each party protects their own interest 3 Specic Fiduciary Duties OWED to CLIENT: a. (1) Duty of COMPETENCE MR 1.1: Competence i L SHALL provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness & preparation reasonably necessary for the representation. REQUIRED L have Knowledge / Skill / Preparation / Diligence = full understanding equivalent to the most seasoned L in that area of law - NOT just licensed as a Lawyer or to the best of the L's ability - L will be held to full competency of that area, NOT JUST what they know from day one b. (2) Duty of LOYALTY such can be in jeopardy when L confronted with: i Conicts of Interest EX: Current Cs that become adverse; Current & former C that are adverse -> if have adverse Cs, at some point L will not be able to be loyal to both as is necessary ii Breach of Condentiality c. (2) Duty of CONFIDENTIALITY *when breach condentiality, also breach loyalty Ethical Duty of Condentiality Owed vs A-C Privilege (Rule of Evidence) & Work-Product Doctrine (Discovery Rule) i MR 1.6: Condentiality of Information (a) L SHALL NOT reveal info relating to the representation of C UNLESS / EXCEPTIONS... ! [1] C gives informed consent - informed = L must ensure C fully understands the repercussions of allowing L to revealing the info at issue - consent = not required to be in writing unless rules specify, but good idea to have to prevent future issue/CYA ! [2] the disclosure is impliedly authorized in order to carry out OR - impliedly authorized = info L must disclose in order to represent the C (EX: info to support an answer led) ! [3] the representation of the disclosure is PERMITTED [allowed, but not required] by PARA(b) (b) L MAY reveal info relating to the representation of a C to the extent the L reasonably believes necessary: [ may, not a shall > disclosure is not required by L if following situations exist, but L has the option to do so reasonably believes necessary...L may only disclose as much is needed to x issue presented] ! (1) to prevent reasonably certain death or substantial bodily harm; [*FUTURE LOOKING > if L is aware C is reasonably certain to commit a crime causing death/bodily harm in the future, L MAY reveal info only the necessary info to prevent it] ! (2) [CRIME / FRAUD Exception] to prevent C from committing a CRIME or FRAUD that is reasonably certain to result in substantial injury to the nancial interests or property of another AND in furtherance of which C has used or is using L's services; [*FUTURE LOOKING > to present C from committing a crime/fraud via use of L's services] ! (3) to prevent, mitigate or rectify substantial injury to the nancial interests or property of another that is reasonably certain to result or has resulted from the C's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; [*PAST LOOKING > builds on (2) to include past commissions of crime/fraud by C via use of L's services] ! (4) to secure legal advice about the lawyer's compliance w. these Rules; [*USE: allows L to secure legal advice in re to ethical compliance w. Rules] ! (5) to est. a claim or defense on behalf of L in a controversy btw L & C, to est. a defense to a criminal charge or civil claim against L based upon conduct in which C was involved, or to respond to allegations in any proceeding concerning L's representation of C; OR [*USE: if L enters suit OPPOSING C (ex: legal malpractice; C doesn't pay) -> L may disclose info necessary to demonstrate/justify actions or fees] ! (6) to comply w. other law or a court order (2) Lawyer-JUSTICE SYSTEM...L is functioning as an OFFICER of the court in an Adversarial System of Justice

i. Adversarial System of Justice: characterized by: (1) Neutral / Independent Decision-maker (ex: Judge / Jury / Arbitrator / Mediator) (2) Competent Advocates zealously presenting the positions of each of the interested parties; & a. = Lawyers GOAL > in order for the system to work, there must be Equally COMPETENT, ZEALOUS Advocates on both sides i FLAW: weakness of the systems is that > rarely are the advocates of each side equally competent & zealous Solution = the BAR (test) > sets the minimum level of competency required to competently advocate *BUT awed solution > sets minimum, but still does not make the advocates even ii UNOBTAINABLE > justice is not always served b/c not all Ls are not equal (competently or zeal), BUT the closer to this goal both advocates are, the better the system works (3) Rules of Procedure fairly designed to allow the presentation of relevant evidence to the decisionmaker a. Many sources of Rules all in the system MUST comply with & that level the playing eld: Model Rules: i 3.1: no frivolous suits > duty imposed on those who le suits/documents, to ensure that there is an issue of materiality Federal Rule 11 / FL Rule 57.105 ii 3.3: L may NOT put, facilitate or assist a lie in front of the court iii 3.5: L may not try to inuence judges, jurors or other ofcials by improper means - judge...bribe or ex parti communicating - jurors...cannot communicate at ALL with (look at; speak to; niceties; etc) iv 3.6: engage in trial publicity that has a substantial likelihood of materially prejudicing a proceeding Rules of Evidence: intended to level the playing eld by allowing presentation of only relevant info that will not prejudice the court Pre-Trial Discovery Rules: levels playing eld by allowing access to opposing party info Rules of Civil Procedure (3) Lawyer-HIMSELF...L as a person w. personal & nancial interests presents realities in owning a business & moral delimias i. Moral Dilemma: Guidance in the fact of Imminent Public Harm In re Paulter (CO 2002): Dist. Atty that impersonated Public Defender for the purposes of getting a murderer to surrender ISSUE: does the DA's actions violate MR 8.4? MR 8.4: "It is professional misconduct for L to:...(c) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation" a. Imminent Public Harm Exception > possible exists, but is not available to those death is not certain to reult MR 4.3: "...when the L knows or reasonably should know that the unrepresented person misunderstands the L's role in the matter, the L shall make reasonable efforts to correct the misunderstanding" HOLDING: Guilty on both accounts - 8.4: even if there was an imminent public harm exception, DA had options that would of complied with the rules & might of not resulted in any public harm - 4.3: DA deceived Neil; knew he misunderstood their relationship & took no steps to correct the misunderstanding TAKE AWAY: If L is presented with choices one of which complies w. the rules, L MUST chose the option that conforms - In situations of possible imminent public harm, an exception may exist but ONLY if there is NO option that (a) conforms with the rules AND (b) MAY not result in harm - Guiding principle when presented with MORAL DILEMMAS B. Determining L's Professional Obligation: SOURCES of Guidance DILEMMA: L's 3 Roles creates a tension that makes it hard to decipher which takes precedent in making decisions SOLUTION: Creation of Rules/Standards & Legal obligations that set forth a L's professional obligation 2 Applicable Categories of Rules: i. (1) Professional Rules & Standards Types: ABA Codes of Ethics... Evolution: (1) 1908: ABA's Canons of Ethics (2) 1969: ABA's Model Code of Professional Responsibility -> FLAWS...(1) confusing structure; (2) presented Ls as advocates only (3) 1983/2002: ABA's Model Rules of Professional Conduct Ethics Advisory Opinions: deals w. issues of interpretation of the rules - 2 Types of Opinions (all are NON-binding, but can usually be relied on in good faith): (1) formal opinions: those that the committee considers to be of widespread interest or unusual importance (2) informal opinions: most others Specialized Codes Practice Norms ii. (2) Law Governing Lawyers TYPES a. Court Decisions...IMPORTANT source of obligations of professional conduct (judiciary regulates Ls) - render decisions in 5 categories: disciplinary...proceedings brought against lawyers charged w. violates of the rules malpractice...civil lawsuits brought by clients/3P seeking damages based on legal causes of action disqualication...motions led as part of civil or criminal actions to disqualifying L of the opposing party from representing their C b/c of some ethical violation sanctions....motion led as part of civil or criminal actions seeking damages for some form of litigation misconduct criminal...cause of action for misconduct (i.e., contempt of court) b. Statutory Law...less signicant b/c regulation of lawyers & judges is a judicial obligation c. Administrative Rules & Regulations...gov agencies that have rules governing admission of practitioners & rules of conduct for practitioners before it (ex. IRS; SEC; PTO)

Administrative Rules & Regulations...gov agencies that have rules governing admission of practitioners & rules of conduct for practitioners before it (ex. IRS; SEC; PTO) d. Procedural Rules...applicable court rules e. Restatement (3d) of the Law Governing Lawyers...NOT law & ABA rules supersede - BUT, when restatements & rules differ, it may serve as the basis for revision of the rules Other Source of Guidance: PHILOSOPHIES of Lawyering i. Operates on 3 interrelated levels: PERSONAL...focuses on how lawyers integrate their personal & professional lives PRACTICE...provides guidance to L on how to resolve difcult issues that arise when practicing law that are not clearly answered by rules of conduct or the law governing lawyers INSTITUTIONAL...looks at L's involvement in & position re issues as if facing the profession AS A WHOLE rather than the individual L ii. TYPES Client-Centered Philosophy (Neutral Partisanship aka Hired Gun)...L takes any action that will advance C's interest so long as the action is not a clear ethics violation a. FLAW: morally unsound > requires L to engage in conduct violating conventional morality Philosophy of Morality (based on SUBJECTIVE Morals)...L are morally/personally accountable for the actions they take on behalf of their C & must be prepared to defend the morality of what they do a. FLAW: some Cs are morally indefensible, but are still entitled to a fair trial Philosophy of Institutional Values (based on OBJECTIVE morals)...based on social/professional values/norms Philosophy of Self-Interest (defensive lawyering)...L who act in their own interest when confronted w. discretionary decisions iii. The Morality Question of Lawyering: How can L defend what is otherwise morally indefensible? Monroe Freeman vs Michael Tigar: a. Guilty vs Not Guilty...it is easy to defend those that are positively not guilty no matter the charge; the challenge comes when it is unknown or possible the person IS GUILTY Freeman...there are certain circumstances which are so morally repugnant that L should not defend a C in such circumstances Tigar...even those that are accused of morally repugnant conduct need defense & deserve to be defended in the legal system i For the system to WORK, need competent zealous advocates on both sides requiring the parties w. their respective burdens Society has decided that if the state cannot prove by the facts of the case beyond a reasonable doubt D is guilty, then he walks -> THUS, the state should be held to this by opposing counsel ii True Moral Basis of Lawyering: EVERYONE is Entitled to a Fair Trial *everyone is entitled to be put through the legal process to be found guilty or not > COPPOCK feels strongly in favor of in order for our system to work best, there must be equally competent, zealous lawyers on each side in order for each to be equally zealous there must be lawyers that are zealous about getting each person a fair trial C. Methods of Regulating Attorney Conduct (1) Admission to Practice i. 3 General requirements: (1) Graduate from law school (generally ABA accredited) (2) Pass the state's bar examination - Exceptions...(a) reciprocity btw states; (b) pro hac vice...practice in a state for purpose of handling a particular matter *held to the standards of whichever state/jurisdiction in (3) Applicants must be of "good moral character" (precise meaning is unclear) - CON...the Bar should only regulate those activities done after being admitted to the Bar (2) The Disciplinary System: SELF-REGULATING...L's regulate each other *Criticisms > Public Control Needed: system controlled by lawyers can never properly regulate lawyers i. MR 8.3(A): Reporting Professional Misconduct - Afrmative DUTY imposed on Ls to report misconduct by other Ls - FL's rules is VERBATIM to this rule (a) [NARKING Rule] a L who KNOWS that another L has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that L's honesty, trustworthiness or tness as a L in other respects, SHALL inform the appropriate professional authority. - Knows...important distinction from 'reasonable should know' > requires actual conrmed knowledge to enact the duty - Shall...mandating term > indicates an obligatory duty - ISSUE: some debate whether there should be an afrmative duty to nark on fellow lawyers (b) [re JUDGES] a L who KNOWS that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's tness for ofce SHALL inform the appropriate authority - ONLY difference from (a) is the application: (a) = lawyers; (b) = judges - Fitness...only tness listed, but in re to judges, encompasses honesty & trustworthiness (c) [EXCEPTIONS] this Rules does NOT require disclosure of info otherwise protected by Rule 1.6 OR info gained by a L or judge while participating in an approved L's assistance program - MR 1.6 TRUMPS 8.3 > this rules does not require disclosure of info otherwise protected by rule 1.6 (condentiality to the C) - application: if L-L = C-L...if the violating L is the C to the obligated L, then the obligated L is NOT required to disclose - makes important: HOW the info is discovered > under the guise of getting counsel or happened upon? Role violating L acting in > if CLIENT...1.6 applies / if COUNSEL...8.3 applies

ii. Application in the Law Firm Weider v. Skala: associate at rm (at will Ee) had another associate help him purchase condo; A2 lied & neglected case, but A1 onto fact A2 did so with several other cases; A1 tried to get rm to reprimand &/or report him; rm refused & red A1 for pressing issue ISSUE: Does the rm breach A1's contract by ring him for his insistence to follow the rules? a. Firm PoV: A1 was an at will Ee & was not contractually obligated to comply with the Professional Rules of Conduct TAKE AWAY: A law rm, despite employing Ls at will, CANNOT re a L for complying w. the Rules - Implied in all L's employment K an obligation to comply w. the Rules & ring someone for complying w. that obligation is a breach of K - WHY: puts an associate in position of comply w. Rules or comply w. Er -> no such decision; RULES ALWAYS SHOULD BE COMPLIED WITH (3) Civil Liability & Criminal Punishment i. Civil Liability Methods Legal Malpractice...catch-all phrase that refers to a group of causes of action by which C, & in some cases 3rd P, can recover damages from L (or their malpractice insurers) for some form of L misconduct - ALL L have legal malpractice insurance - Violation of the Model Rules in NOT PER SE malpractice, but ONLY EVIDENCE of malpractice. - Legal malpractice requires an EXPERT WITNESS Disqualication Motions...motions led seeking a court order that the opposing party's counsel not continue to represent that party b/c of some violation of the Rules typically a conict of interest Monetary Sanction...for litigation abuse is another form of civil liability that in recent yrs has come to have an increasingly important impact on L conduct a. MAIN RULE APPLIES TO: Rule 11 of the Federal Rules of Civil Procedure -> rule forbidding frivolous law suits ii. Criminal Law...plays role directly (vioaltes criminal standards) & indirectly (inuence disciplinary standards) Contempt of Court a. Criminal CoC...when order is intended to punish misconduct, vindicate the court's authority or deter future conduct - due process safeguards apply (hearing/notice) b. Civil CoC...intended to coerce compliance w. a court's order rather than punish for violation II. Criminal Law: Ethical Obligations of the Defense & Prosecution Client-Lawyer Relationship A. POLICY: Justications for Defending the Guilty...why take a case where know D is likely guilty? Charles P. Curtis: The Ethis of Advocacy i. Practice of law is like free speech -> it defends what we hate as well as what we most love this LAW does not know if the D is guilty or not, & it trying to nd out -> in order for it to be able to do that, it needs each side to advocate & defend their side so that all the pros/cons come out & the LAW can then decide which side prevails a. does not matter what the Lawyer or Judge think > they are there to facilitate their role Monroe H. Freedman & Abbe Smith: Understanding Lawyers' Ethics i. the role of our system, as an adversarial system, is to protect our fundamental constitutional rights ii. in order to protect these rights, the system must rst protect the RIGHT to COUNSEl, b/c it affects one's access to all other rights constitutional rights of the accused: personal autonomy / effective assistance of counsel / equal protection of the laws / trial by jury confront witnesses / require the gov to prove guilt beyond a reasonable doubt & w/o the use of compelled self-incrimination John B. Mitchell: The Ethics of the Criminal Defense Attorney - New Answers to Old Questions i. Justice System = SCREENING System > sorts out those whose deviancy has gone beyond what society considers tolerable, to criminal process: neighbors --who report to--> police --decide whether to arrest--> prosecutors --decide to charge--> courts --decide to convict--> juries a. quality of the system: ONLY as good as those who make it work, requires the performance of Ls - including CRIMINAL DEFENSE Attys that ensure all those accused of intolerable acts receive a fair trial b. system is weighted to protect the innocent's dignity & autonomy (even at the cost of not catching the guilty) ii. Barry Winston: Stranger Than True - Why I Defend Guilty Clients You can't be sure of an accused person's guilt > even if they think they are guilty, a person might not be B. Defense Counsel's DUTY of COMPETENCY = ethical mandate L provide competent representation applies to criminal cases to *reality...not often given b/c of inadequate compensation for indigent clients i. MR 1.1: Competence...L SHALL provide competent representation to C. - Competent representation requires the legal knowledge, skill, thoroughness & preparation reasonably necessary for the representation. BREACH of DUTY i. 2 Causes of Action: (1) Criminal Appeal: Ineffective Assistance of Counsel = when ineffective representation requires reversal of a conviction a. REMEDY: reversal of conviction b. STANDARD: Strickland v. Washington Test...THE standard Oversimplyed...(1) Did L mess up? / (2) If yes, did L's mess up matter? - D carries the burden of proof

STANDARD: Strickland v. Washington Test...THE standard Oversimplyed...(1) Did L mess up? / (2) If yes, did L's mess up matter? - D carries the burden of proof (1) [L MESS UP?] D must show that L's performance fell below the OBJ. standard of "reasonably effective assistance" - did L's conduct being challenged fall below the acceptable standard of what a reasonable L would do in the same situation? i evidence: can use all facts & circumstances, including prevailing norms of the profession breach of a model rule is evidence of poor conduct, BUT it is NOT despositive ii standard of scrutiny: court gives HIGH judicial deference to counsel w. a strong rebutable presumption that L's conduct was reasonable (aka effective) *in doing hypos, must consider reasons WHY DC might of acted as they did > offense to jury; witness might have good answer; D trying to lie on stand; witness D wants is lying (Problem 2-2) policy...court hesitant to 2nd guess counsel b/c may be unknown & not obvious, but good reasons for his choices of tactics (2) [L's MESS UP MATTER?] Any deciencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance - aka is there a reasonable chance the outcome would of been different w/o the mess ups? i policy...causation argument > if, despite L's mess up, D was going to be convicted any way, no harm was done ii prejudice = D must show there is a reasonable probability (aka probability sufcient to undermine condence in the outcome) that, BUT FOR counsel's unprofessional errors, the result of the proceeding would have been different EXCEPTIONS...situations were prejudice is presumed: ! Def counsel has an actual conict of interest that affects the representation ! Def counsel fails to follow the D's instruction to le an appeal ! Def counsel entirely/completly (no refuting at all) fails to subject the Pr's case to meaningful adversarial testing (2) Civil Case: Legal Malpractice via Ineffective Assistance of Counsel = ineffective representation amounts to negligence by DC *same cause of action, different remedy sought a. REMEDY: damages b. often more difcult to attain b/c of hurdles erected by courts (CA: D must prove actually innocent w/in statute of limitations) C. LEGAL FEEs in Criminal Defense Cases Legals Fees: Acceptable Rates/Types & When to Set i. MR 1.5: Fees (a) [No UNREASONABLE Fees] L SHALL NOT make an agreement for, charge, or collect an UNREASONABLE fee or an unreasonable amount for expenses. - [1-8] are factors for determining the reasonableness of a fee: a. (1) [Time & Effort] the TIME & LABOR required, the NOVELTY & DIFFICULTY of the questions involved, & the SKILL requisite to perform the legal service properly; b. (2) [LIKELY LOSS of Additional Business] likelihodd, if apparent to C, that the acceptance of the particular employment will preclude other employment by L c. (3) the fee CUSTOMARILY charged in the locality for similar legal services; d. (4) the AMOUNT involved & the results obtained; e. (5) [Turn-Around Time or Time Sucking Cs] the TIME LIMITATIONS imposed by the client or by the circumstances; f. (6) the NATURE & LENGTH of the professional relationship w. C *coppock...don't like > hard to explain to judge why charge a friend less than a new C; better to frame as a discount g. (7) the EXPERIENCE, REPUTATION & ABILITY of the L or Ls performing the services; AND *higher price truly should reect value of service > important NOT to undervalue services b/c assumed that is all you are worth h. (8) whether the fee is xed or contingent (b) [SETTING of SCOPE & RATE] the scope of the rep. & the basis or rate of the fee & expenses for which C will be responsible SHALL be communicated to C, preferably in writing, before or w/in a reasonable time after communcing the rep., - EXCEPT when L will charge a regularly represented C on the same basis or rate. - Any changes in the basis or rate of the fee or expenses shall also be communicated to C (c) OMITTED re Contingent Fees (d) L SHALL NOT enter into an arrangement for, charge, or collect: a. (2) a contingent fee for representing a D in a CRIMINAL case [POLICY...would put L's interest opposing C's interest > would pursuad L not to plea bargain OR take only not guilty Cs] (e) Division of a fee btw Ls who are NOT in the same rm may be made only if: a. (1) the division is in proportion to the services performed by each L or each L assumes joint responsibility for the representation b. (2) C agrees to the arrangement, including the share each lawyer will receive, & the agreement is conrmed in writing; AND c. (3) the total fee is reasonable C/3P Property: L's Obligations re Trust Accounts & Client Property i. MR 1.15: Safekeeping Property (*single biggest reason why L's get in trouble) (a) L SHALL hold property of C or 3P that is in a L's possession in connection w. a rep. separate from L's own property. Funds SHALL be kept in a separate account maintained in the state where L's ofce is situated, or elsewhere w. the consent of C or 3P. Other property SHALL be ID as such & appropriately safeguarded. Complete records of such account funds & other property shall be kept by L & SHALL be preserved for...5 yrs after termination of rep. a. (1) Duty NOT to COMMINGLE L & C's funds: L must keep C & 3P money/property separate from own personal & rm funds POLICY: (1) Prophylactic against L misuse of C funds & (2) Protects such funds from being subject to the claims of L's creditors - VERY serious duty > Ls punished even when no harm resulted or done innocently METHOD to deal: Escrow or Trust Accounts (a) each L can have one general trust account w. all their Cs $ in together > just have to keep accounting of whose $ is whose 5 (b) L w/draws fees earned or expenses incurred from these funds as they are earned/occured

METHOD to deal: Escrow or Trust Accounts (a) each L can have one general trust account w. all their Cs $ in together > just have to keep accounting of whose $ is whose (b) L w/draws fees earned or expenses incurred from these funds as they are earned/occured b. (2) Duty to Maintain Records: L must keep careful records of C's money/property that comes into their possession (b) [BANK SERVICE CHARGES] L MAY deposit L's own funds in a C trust account for the sole purpose of paying bank service charges on that account, BUT ONLY in an amount necessary for that purpose (c) [WHEN can WITHDRAWAL] L SHALL deposit into a C trust account legal fees & expenses that have been paid in advance, to be w/ drawn by L ONLY as fees are EARNED or EXPENSES incurred (d) Upon receiving funds or other property in which a C or 3P has an interest, L SHALL promptly notify C or 3P. EXCEPT as stated in this rule or otherwise permitted by law or by agreement w. C, L SHALL promptly deliver to C or 3P any funds or other property that C or 3P is entitled to receive &, upon request by C or 3P, SHALL promptly render a full accounting regarding such property a. = (3) Duty to Notify Promptly C or 3P when Ls receive money or property in which C or 3P have an interest (4) Duty to Deliver Promptly to C or 3P any funds or other property in which such person has an interest (5) Duty to Render Full Accounting: if requested, obligated to regarding such money & property (e) [MULT. CLAIMS of INTEREST] When in the course of rep. L is in possession of property in which 2 or more persons (one of whom MAY be L) claim interests, the property SHALL be kept separate by L until the dispute is resolved. L shall promptly distribute all portions or the property as to which the interests are not in dispute [EX: nursing home neglect cases > medicaid would le a lien on any settlement elderly negelected person recieved b/c right to recover $ originally paid out given back] ETHICAL ISSUES Re Certain Types of FEEs i. (1) Retainers TYPES: a. General Retainers = fee paid on a regular & continuing basis in exchange for L making his services available whenever needed Option K w. the Consideration = L's availability on a continuing & regular basis for any legal issue C has When EARNED: when fee paid > b/c consideration for the payment is L's availability i MUST be kept in rm's general account b/c L's money (must be kept seperate from C's $) b. Special Retainer = covers payment of funds for a specic service C's money until earned > MUST be deposited in Client Trust Account (to be kept seperate from Attorney's $), BUT must be taken out right away when earned or expenses occurred (otherwise L & C $ is commingling) When EARNED: when L earns his fee, usually as hours are put in or services rendered (*still must place in C Trust Fund & only withdrawal the $ as it is earned) Other types of SR: i Advance Fee Payments = if C/L agree fee to be paid in advance ii Flat / Fixed Fee...fee that embraces all work to be done whether it's relatively simple & short duration or complex & protracted c. Expense Deposit = an amount paid by C to L to be applied against future expenses in C's case *not a retainer, but usually paid along w. one MUST be placed in C's trust account & any unused portion repaid to C Ethical OBLIGATIONS re Retainer Fees a. (1) L are required to deposit ALL advance payment of fees in a C trust account, EXCEPT general retainer fees WHY: MR 1.5(a) > Duty not to Commingle Funds...L's money & C's money are to be kept separate b. (2) ALL special retainers paid in advanced (including at fees) must be deposited in the C's trust fund UNTIL EARNED POLICY: - preserve C's property from the reach of the L's creditors -> very important to keep unavailable to 3Ps who may have a claim of right in L's property - enables C to realistically dispute a fee where the funds are already in L's possession by disallowing L of a self-help resolution by L's possession instead preserving the disputed funds intact until the dispute is resolved EARNED vs UNEARNED...basis for est. whose money (C or L) an advanced fee is i earned...L's $ > becomes such not when paid, but when services are rendered ii unearned...C's $ > any portion of a special retainer paid in advance remains the the C's Trust Fund it it has been earned by L, upon which it should be transferred to the L's General Fund c. (3) L who w/draws from employment SHALL refund promptly any part of a fee or costs paid in advance that has not been earned = NONREFUNDABLE fees are NOT allowed (*in re to special retainers; ok for general retainers b/c earned upon payment) FEEs vs COSTs... fees...are what L gets paid when earned costs...are what L writes a check for to pay on the behalf of the C EX: $150K settlement; fee is 30% & costs are $10K > C gets $90K...fee comes off the top (30% of TOTAL settlement) d. (4) Possible...PRESUMPTION of special retainer w. L having the burden to rebut the presumption by a convincing preponderance of the evidence POLICY: presumption re Hybrid Agreements (those that contain elements of GR & SR), by protecting C's unqualied right to discharge L w. only paying a reasonable amount for services received e. Application Iowa SC Board of Prof Ethics & Conduct v. Apland (IA 1998): truck driver charged at fee, but no signed agreement & deposit of $ ISSUE: (1) When charging a at fee, it is the C's money or L's money prior to completion of services? (2) Are non-refundable fee advances ethical?

 HOLDING: All special retainer fees are C's money until earned, aka completion of service; this is even such for at fees as there is a public interest in protecting the C's right to chose their attorney & re those that do not properly render services. This is mirrored by the presumption favoring special retains over general retainers. It is unethical to have non-refundable fee advances for these same reasons. TAKE AWAY: Use common sense > smartly handle fees; have Ks; deposit $ in account & keep records. Must take $ out of the trust as it is earned & as it is spent b/c funds can't commingle f. FL > IOTA (Interest On Trust Account)...interest earned from these accounts taken by FL Bar & pays those cheated by their L ii. (2) Contingent Fees > Model Rule 1.5(d) prohibit contingent fees in criminal casses iii. (3) Literary or Media Rights to portrayal of case > Model Rule 1.8(d) prohibits giving L such rights PRIOR to the conclusion of representation of a client MR 1.8(d): Prior to the conclusion of rep. of a C, a L SHALL NOT make or negotiate an agreement giving L literary or media rights to a portrayal or account based in substantial part on info. relating to the representation a. POLICY: prevents L from having a nancial interest that would interfere w. their independent professional judgement ex...L might be included to forgo plea bargain & make a theatrical court case - ALSO...many states prohibit criminal defendants from proting from commercial exploitation of their crimes CONFIDENTIALITY: Scope & Limitations A. Rules Re: MR 1.2: Scope of Representation & Allocation of Authority Between Client & Lawyer i. (a) [DELEGATION of Authority btw C & L] Subject to para (c) & (d), L SHALL abide by C's decisions concerning the OBJECTIVES of rep. &, as required by Rule 1.4, SHALL consult w. C as to the means by which they are to be pursued. - L MAY take such action on behalf of C as is impliedly authorized to carry out the representation. - L SHALL abide by C's decision whether to settle a matter (CIVIL CASE). In a criminal case, L SHALL abide by C's decision, after consultation w. L, as to a plea to be entered, whether to waive jury trial & whether C will testify. Delegates AUTHORITY btw C & L...if authority belongs to C, L must advise but ultimately MUST abide by C's choice a. CLIENT's calls... (1) objectives of representation = ultimate goals C wants out of the legal dispute (2) (civil / criminal) settlement / plea > L must advise C of ANY offer made (3) (criminal) bench trial vs jury trial > both sides have a constitutional right to a jury trial, so either D or Pr can envoke that right - bench may be preferable for either highly sympathetic cases; legally technical or bias cases (4) (criminal) whether C will testify > HUGE decision...C has constitutional right to testify - BUT...L cannot facilitate C perjuring herself (5) whether to appeal the case ii. (b) [NO IMPUTATION] L's rep. of C, including rep. by appointment, does not constitute an endorsement of C's political, economic, social or moral views or activities [= it cannot be imputed to L what defending / advocating on behalf of C...COPPOCK...not a necessary rule] iii. (c) L MAY LIMIT SCOPE of the rep. if the limitation is reasonable under the circumstances & C gives informed consent EX: H ling for divorce & wants to le for bankruptcy, but L wants to limit the scope of rep. to divorce b/c not competant in bankruptcy - incompetency is reasonable reason, & ok as long as C consents iv. (d) L SHALL NOT counsel C to engage, or assist a C, in conduct that L knows is CRIMINAL or FRAUDULENT, but L may discuss the legal consequences of any proposed course of conduct w. C & may counsel or assist a C to make a good faith effort to determine the validity, scope, meaning or application of the law. = L cannot tell C how to do criminal or fraudulent conduct, BUT may tell C if conduct proposed is criminal or not MR 1.16: Declining or Terminating Representation i. (a) [When L MUST Withdraw] EXCEPT as stated in para (c), L SHALL NOT rep C or, where rep. has commenced, SHALL w/draw from rep. of C if: (1) representation will result in violation of the rules of professional conduct or other law; (2) L's physical or mental condition materially impairs L's ability to represent C; OR (3) L is discharged ii. (b) [When L MAY Withdraw] EXCEPT as stated in para (c), L MAY w/draw from rep. C if: (1) w/drawl can be accomplished w/o material adverse effect on the interests of C; (2) C persists in a course of action involving L's services that L reasonably believes is criminal or fradulent; (3) C has used L's services to perpetrate a crime or fraud; (4) C insists upon taking action that L considers repugnant or w. which L has a fundamental disagreement; (5) C fails substantially to fulll an obligation to L regarding L's services & has been given reasonable warning that L will w/draw unless the obligation is fullled; (6) representation will result in an unreasonable nancial burden on L or has been rendered unreasonably difcult by C; OR (7) other good cause for w/drawal exists iii. (c) L must comply w. applicable law requiring notice to or permission or a tribunal when terminating a rep. When ordered to do so by a tribunal, L SHALL continue representation [in spite of] good cause for terminating the representation iv. (d) Upon termination of rep., L SHALL take steps to the extent reasonably practicable to protect a C's interests, such as giving reasonable notice to C, allowing time for employment of other counsel, surrendering papers & property of fee or expense that has not been earned or incurred. L may retain papers relating to C to the extent permitted by other law. B. Communications re PAST & FUTURE CRIMES

Communications re PAST & FUTURE CRIMES 3 Distinct Concepts of Condentiality: (ALL VERY IMPORTANT) i. (1) Ethical Duty of Condentiality (Model Rule 1.6) = Ls must maintain the condentiality of info relating to the REPRESENTATION under all circumstances, whether in connection w. court proceedings or otherwise LIMITATIONs re Past & Future Crimes a. (1) Informed Consent (MR 1.6a): L may reveal condential info if the C gives informed consent b. (2) Prevention of FUTURE Harm (MR 1.6(b)(1)): L MAY when disclosure would prevent C from committing a wrongful act c. (3) PAST Wrongful Conduct (MR 1.6(b)(2)): disclosure of past conduct ONLY when such will PREVENT reasonably certain death or substantial bodily harm -> cannot disclose past conduct unless there is a future reasonably certain harm ii. (2) Attorney-Client Privilege (rule of EVIDENCE): deals w. the question of when L may be compelled in court or other ofcial proceedings or investigations to reveal info received in condence from C POLICY: founded on the necessity that C be free to reveal info to L w/o fear of its disclosure so that C can obtain proper & funny informed legal advice AC Crime Fraud EXCEPTION vs Ethical Duty Crime-Fraud Exception: Purcell v. District Attorney for the Suffolk District: T asked advice from P; P told police T likely to commit arson; T arrested > DA tried to compell P to testify; ISSUE: is T entitled to the protection of the attorney-client privilege in the circumstances? a. Attorney-Client Privilege SCOPE: applies only when C's communication was for the purpose of obtaining of legal advise i burden: person asserting the privilege must prove it is applicable EXCEPTION: L can be compelled to testify only if C's communication seeks assist. in or furtherance of FUTURE criminal conduct i policy...no public interest in the preservation of the secrecy of legal advise for committing criminal conduct ii burden...opponent trying to compel testimony must prove the exception applies iii vs. Ethical Duty of Condentiatility Crime/Fraud Exception DoC...allows L to reveal C's communication to the extent necessary to stop a reasonable certain crime ACP...can compel L to testify IF advise was sought in the furtherance of future criminal conduct **BIG DIF...when L can be compelled to testify about C committing future criminal conduct > advise sought in furtherance - if C reveals possible future criminal conduct w/o seeking advice regarding it, L may reveal such info to stop the crime BUT cannot be compelled to testify b. HOLDING: P did not have to testify b/c there was no evidence T sought L's advice to facilitate the crime, ONLY that T told P about the crime while obtaining advise regarding another situation. THUS, P could still assert the A-C privilege to keep from testifying. c. TAKE AWAY: Big Question re if L can be compelled to testify OR only ethically disclose condential info - did C seek out L's advise for the purpose facilitating a crime/fraud? L ethically may disclose condential info to prevent C from committing a crime that will harm another W/O being compelled to testify about the communication, as long as advise was not sought to help facilitate the crime iii. (3) Work Product Doctrine (DISCOVERY rule): preventing discovery of material prepared in anticipation of litigation UNLESS party seeking discovery makes a special showing that... (1) he has a substantial need for the materials & (2) he can't obtain equivalent materials w/o undue hardship C. Possession of TANGIBLE CRIMINAL MATERIAL - Tangible Criminal Material = fruits of criminal conduct (stolen money); instrumentalities of crimes (weapons); contraband (possession is illegal, i.e., drugs) OR tangible evidence of crimes (incriminating documents or tape recordings) GENERAL OBLIGATION: MR 3.4(a): A L SHALL NOT unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. L SHALL NOT counsel or assist another person to do any such acts *such an obligation does NOT apply if L is only aware of where the evidence is, but does not have it in his possession - in such case, L's ONLY obligation is to NOT tell others of knowledge b/c would violate Duty of Condentiality, BUT can advise C to give up, use as bargaining tool or turn it in annoymously (aws w. each) i. Why take POSSESSION? (1) could exculpate (clear) C (2) to prevent Pr from nding the material in the normal course of the investigations, & use it as a bargaining chip for "Use Immunity" a. if Pr rejects Use Immunity, L could either (a) le a motion in limine seeking to prevent use of the material based on the 5A privilege OR (b) hold the material until supoenad, & move to quash the subpoena based on the 5A privilege (3) involuntarily came into possession (delivered annomously) ii. 3 Levels of Approaches when L comes into possession of Tangible Criminal Material: (1) Active Concealment...L taking the evidence & concealing; hiding or destroying it a. UNETHICAL...goes far beyond & abuses obligations of a L in protecting his C to the point L has committed a crime of his own (accessory after the fact) (2) Passive Concealment...if L has materials, is subpenaed to give them up, but still refuses to do so a. UNETHICAL...for same reasons as active concealment some states diffe... do not require an afrmative obligation to turn materials over to authorities, but only ask Ls to refrain from active concealment which contributes to the crime (3) Turn Material in Possession OVER to Authorities a. ETHICAL...such is required by the MR; though some states may allow L temporary possession for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence

ETHICAL...such is required by the MR; though some states may allow L temporary possession for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence IF given evidence via 3rd Party...L can refuse the evidence or advise the 3rd party to hand over themselves - BUT if 3P leaves evidence, L has an obligation to turn over iii. ABILITY to CONCEAL the SOURCE: A-C PRIVILEGE: Application after criminal material turned over to authorities a. Depends on ORGINATING SOURCE... client...when give to Pr, might be able to conceal where it came from as evidence b/c A-C PRIVILEGE applicable i 2 Approaches: (1) A-C Stands...in most circumstances, the evidence's source are protected by the A-C Privilege so that it may not be revealed to the jury ! POLICY: law's attempt to balance protection of 2 conicting interests (discovery of pertinent evidence & A-C privilege) - protecting C & L allows the prosecution to recover more evidence, by which the public interest is better served - AND by refusing the prosecution an opportunity to disclose the source of the evidence, the C's privilege is preserved (2) Chain of Custody Stipulation...the D might have to stipulate to the chain of custody OR the privilege is waived ! POLICY: Pr needs to be able to prove the chain of custody of the evidence that comes into their possession in order for the evidence to be admissible. If D, by altering or removing the evidence has precluded the Pr from discovering the it, then the court is likely to protect Pr's need to show a chain of custody. - D L is precluded from arguing against the chain of custody > b/c w/o the chain of custody the evidence is useless 3rd party...NO A-C Privilege - evidence given to L by a 3P must be immediately turned over & the source cannot be concealed - L can refuse to accept the evidence &/or advice 3P to turn evidence over themselves i EXCEPTION: 3P working for L - if info protected under the A-C privilege is revealed by L to a 3P working for him in order for the 3P to retrieve that evidence, then the privilege extends to that 3P (3P can't be compelled to disclose the source) 5th Amendment Privilege Against Self-Incrimination a. Testimony, NOT evidence: 5A Privilege protects a D from being compelled to give incriminating testimony only > it does NOT bar the use of incriminating purely evidential material (nontestimonial) against a person D. FALSE TESTIMONY by the Criminal Defendent contemplated false testimony...D that insists on taking the stand & testifying falsely completed false testimony...D that has testied falsely, of which L learns afterwards POLICY: 5 Approaches Defense Counsel can take... i. (1) Full Representation (by Monroe Freedman)...even if DC KNOWS a C is/will lie, DC should do nothing & continue as if testimony were truthful (base arguments on C's statements, etc.) PRO: obligations of DC are rooted in the condentiality of communications btw L & C CON: unethical & undermines the integrity of the adversarial system > COPPOCK hates...very unethical ii. (2) Full Disclosure to the Court (by Cheif Justice Warren Burger)...L could never under any circumstances participate in a fraud on the court - opposite of Freedman > requires DC to expose ANY lie a C may or intends to tell PRO: integrity of the adversarial system outweighs all other things CON: ignores the importance of C condentiality to individual liberty > COPPOCK...thoughtful, but goes a little far iii. (3) Withdrawal w/o Disclsoure...L withdraws from the case & still protects the condentiality of client communications PRO: Protects client condentiality CON: a. (1) Passes problem along > next counsel either faces same dilemma OR C now knows what can/cannot be told to a L, resulting in ability of false testimony to take place b. (2) Great transaction costs > costs more money than handling it yourself c. (3) If close to trial, likely a Judge will deny motion to withdrawl as counsel or Judge may order L to reveal reason for w/draw, still violating the condentiality of C communication iv. (4) Narrative Testimony...DC allows C to take the stand to make a statement concerning the case to the triers of fact > does not ask Qs - BEST USE: where w/drawal is not feasible, & C insists upon testifying perjuriously - Requirements of DC...(1) DC must state for the record C is taking the stand against the advice of counsel; (2) DC can ask some Q if believes C will not give perjurous answer to; (3) DC may not later argue C's known false version of the facts PRO: honors C's right to take the stand & balances both interest by infringing on both -> prejury may takes place & condentiality is infringed upon, b/c Judge/Jury likely know that DC does not trust his own C's testimony CON: (a) both interests infringed upon & (b) allows C to possibly perjure himself w/o DC knowing if so v. (5) Avoidance of Knowledge...DC should avoid knowing that C intends to testify falsely > use particular phrases to obtain all the facts w/o committing their Cs to a particular version of what occurred EX: "what the prosecution is likely to say" & "your memory of what happened" (as opposed to "what happened"); "don't tell me if you did it or not b/c that attaches to me certain obligations that I do not otherwise have" PRO: allows C to freely testify & L to advocate C's version of the facts free of obligations CON: could undermine the integrity of the adversarial system RULES re: i. MR 3.3(a)(3): (Candor) L SHALL NOT knowingly... (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 L - re LAWYER's statements > L cannot (1) KNOWINGLY make false statements to the tribunal, OR 9 (2) FAIL to CORRECT material statements it nds out are false

(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 L - re LAWYER's statements > L cannot (1) KNOWINGLY make false statements to the tribunal, OR (2) FAIL to CORRECT material statements it nds out are false (3) offer evidence that L knows to be false. If a L, the L's C, or a witness called by L, has offered material evidence & L comes to know of its falsity, L SHALL take reasonable remedial measures including, if necessary, disclosure to the tribunal. L MAY refuse to offer evidence, other than the testimony of a D in a criminal matter, that L reasonably believes is false - L's DUTY re EVIDENCE he offers... (1) Pre-Offering: L cannot offer evidence it KNOWS is false (including testimony) (2) Post-Offering: If L nds out material evidence offered is false, L MUST take reasonable remedial measures to correct the false impression (options explored below) (3) L can prevent ANY evidence, including 3P witnesses C wants, from entering the trial, EXCEPT C's testimony (right to testify) *3P Witness > if L knows will testify falsely, L has a duty to refuse to call the witness ii. KNOWLEDGE under MR 3.3 = MR 1.0(f) "KNOWINGLY...denotes [1] actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances ( [2] = constructive knowledge). OPTIONS DC can take if C insists on testifying falsely *POLICY...right to testify does not include a right to lie > L can zealously rep. their C w/o initiating or facilitating a lie i. (1) REMONSTRATION = make an effort to dissuade the C from testifying *always do 1st - even if L just believes C's testimony lacks credibility, L has obligation to counsel C on ramications of false testimony Factors to point out: a. (1) Illegal to testify falsely (2) false testimony could prove unsuccessful due to vigorous cross-examinaiton or rejection by the jury; (3) Judge may factor in belief D testied perjuriously when sentencing (4) could be prosecuted for perjury (5) forced ethical withdraw of L or disclosure to tribunal of false testimony ii. (2) WITHDRAWAL from representation > option if allowed to under the rules in the particular situation MR 1.16(b)(2): if L has reasonable belief C intents to testify falsely (criminal action) & cannot be deterred, L MAY withdraw iii. (3) DISCLOSURE to the TRIBUNAL to prevent false testimony from being offered - stated as option in MR 3.3(a)(3) iv. (4) REFUSING to CALL THE CRIMINAL DEFENDANT as a WITNESS CON: would be denying C his constitutional right to testify > creates conict btw the 2 issues (ethical duty & constitutional right) *not really an option v. (5) NARRATIVE TESTIMONY (see above for more) Prevents L from facilitating the lie, BUT L still has a DUTY to correct/prevent false testimony from being presented - THUS, if C falsely testies & L is aware, L still has an obligation to remedy it vi. (6) REMDIAL MEASURES after false testimony has been offered Remedial measures: a. NO withdraw...doesn't x problem b. L persuade C to take the stand & correct his false testimony c. L move to strike/withdraw the evidence d. LAST RESORT: disclosure of condential into to the tribunal MR 3.3 Cmt 10: Court's options re false testimony are wide > may make a statement to the trier of fact, order a mistrial or nothing Application: LIMITATIONs of the Right to Testify Nix v. Whiteside (US 1986): W killed Love by stabbing; switched story to DC from he BELIEVED Love had gun > he saw a gun; DC threatened to withdrawal or disclose to tribunal W was lying if he testied to such; W convicted & appeals i. ISSUE: Was DC's response to W's change in testimony qualify as ineffective assistance of counsel b/c prevented W from testifying ii. RULES: Scope of Right to Testify: the accused's right to testify OR refusal to do so cannot be construed to include the right to commit perjury a. POLICY: the legal profession has accepted that L's ethical duty to advance the interests of his C is limited by an equally solemn duty to comply w. the law & standards of professional conduct, ensuring that C may not use false evidence b. THUS... (1) L must take all reasonable lawful means to attain the objectives C sets out, BUT L is precluded from assisting C in unlawfully presenting false evidence (2) EXCEPTION to A-C Privilege for disclosure of perjury that C intends to commit or has committed (MR & Model Code) iii. HOLDING: DC's attempts to dissuade were appropriate - C cannot say he had an impermissible choice btw his right to counsel & his right to testify. C has a right to testify, but does not have a right to commit perjury. - COPPOCK: DC did the right thing, but might of been wrong to "threaten"; should of told W w/o threatening iv. TAKE AWAY: L must balance MRs > (1) L may not allow false testimony into trial & (2) L must put C on stand if insists on testifying despite knowing might lie, using above options to approach; (3) Responsibilities of L after becomes aware C lied on the stand are UNCLEAR, though L must do something. C has right testify but no right to commit perjury! E. INITIAL INTERVIEW: Avoidance of Coaching - the initial interview is where L nds out the facts as the C presents them; provides basis for facts L presents in court Coaching = getting C to testify a certain way > unethical approach to interactions w. C where L tells C the laws prior to asking C what happened, in order to allow C to tailor version of story to t with the law i. UNETHICAL > WHY...telling accused laws (what is accepted/not accepted) before asking what happened, may effect their testimony of what happened; L may not put words in C's mouth ETHICAL Appraochs to Take: *L's main goal is to steer clear that will effect what C tells him

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ETHICAL Appraochs to Take: *L's main goal is to steer clear that will effect what C tells him i. (1) Straight Forward: "what happened?" ii. (2) Levels of beating around the bush "What do you think/believed happened?" "What do you remember?" "What is the police report / prosecutor going to say?" > way of asking w/o asking what accused of w/o asking if did it CONFLICTS of INTEREST A. Clients w. Diminished Capacity Model Rule 1.14: Client w. Diminished Capacity i. (a) When C's capcity to make adequately considered decisions in connection w. a representation is diminished, whether b/c of minoirty, mental impairment or for some other reason, L SHALL, as far as reasonably possible, maintain a normal C-L relationship w. C - DUTY to maintain a normal relationship w. C to the extent able to considering their diminished capacity = must listen to decisions & follow, as long as believe will not greatly harm C ii. (b) When L reasonably believes that C has diminished capcity, is at risk of substantial physical, nancial or other harm unless action is taken & cannot adequately act in C's own interest, L MAY take reasonably necessary protective action, including consulting w. individuals or entites that have the ability to take action to protect C &, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian - If L REASONABLY BELIEVES C's capcity is risking her substantial harm, the L MAY get help (*COP...may not strong enough) iii. (c) Info relating to the rep. of a C w. diminsihed capacity is protected by Rule 1.6. When taking protective action pursuant to para(b), L is impliedly authorized under Rule 1.6(a) to reveal info about the C, but only to the extent reasonably necessary to protect C's interests = in seeking help for C b/c of reasonable belief C a substantial harm to self, L may reveal info normally protected by 1.6 BUT only to the extent necessary to get C help - 1.14(b) trumps 1.6, but only to the extent necessary to protect C's interest Determining C's COMPETENCY: Impaired vs Incompetant i. Types of Diminshed Capacity (1) Impaired Clients: C that suffers from diminished capacity BUT can participate in an Attorney-Client relationship to some degree a. L's DUTY if C impairs (1.14(a))...as far as reasonably possible, must maintain a normal A-C relationship (2) Incapacitated Clients: diminished capacity so severe that C is at risk of substantial harm unless action is taken & C "cannot adequately act in his own best interest" a. L's DUTY if C incapacitated: L MAY do what thinks is needed to protect C, even if C disagrees 1.14(b)...L MAY take reasonably necessary protective action, including consulting w. individuals or entities (family or physiologist) that have the ability to take action to protect the C &, in appropriate cases, seeking the appointment of a surrogate decision-maker ii. FACTORS used in determining the extent of C's diminished capacity (MR 1.14 Cmt 6) (1) C's ability to articulate reasoning leading to a decision a. EX: if C's reasons are (1) doesn't want to go to jail & (2) her husband wants her to join him in heaven > (1) is rationale, but (2) is not (2) Variability of state of mind a. = FLUCTUATING state of mind -> is C able to lock into one decision or does it constantly change? (3) Ability to appreciate consequences of a decision -> is C able to understand the consequences (jail; death penalty; reason why what did was wrong) (4) Consistency of a decision w. the known long-term commitments & value of the C a. might need to speak with C's family to est. this Multiple Representations A. POLICY: Pro vs Con Pros: (1) desire to present a united front; (2) the need to share expenses; (3) condence in the L & (4) expertise in a certain eld; Cons: (1) grave chances for conict of interest (factors that est. below); (2) no privilege btw the 2D, if seperate B. Co-Defendants Conict of Interest FACTORs... -> does an ACTUAL or a SERIOUS POTENTIAL for conict of interest exist? If yes, NO multiple rep (1) Does one D have evidence to offer that incriminates the other codefendant? (2) Is one D more culpable / blameful than the other? [YES = CoI b/c Pr likely to offer only that one a deal] EX: murdered person together, but one person pulled the trigger, while the other was just there (3) INCONSISTENT defenses; distinctions in closing arguments or sentencing b/c of either D's blameworthy backgrounds? EX Sentencing: D1 is a felon & D2 has never committed a crime before; a 10-20-life statute would require different sentences EX Defenses: D1 says it was an accident; D2 says it was self-defense / D1 says it was self-defense; D2 is mentally incapacitated (4) Will one testify & not the other? [YES = CoI b/c calls attention to the failure of the other D to testify] i. jury wants to hear the accused say he did not do the crime > only 1 D testifying shines spotlight to the one that does not testify (5) Does Pr's evidence strike the Ds unequally, so L must attack it on one defendants behalf & support it on the other? i. EX: Pr's Witness implicates A, but not B > to zealously advocate for both L SHOULD attacking the witness on behalf of A, but implying that he is telling the truth about B TAKE AWAY: it is an issue to take codefendants > a problem will almost always come up C. ALTERNATIVES to Multiple Representation

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 appointment of separate counsel one party continue pro se joint defense agreement = allows separately represented D to coordinate their defenses & to share info without loss of the A-C Privilege i. PRO: similar advantages of a multiple representation w/o the conict of interest issue (1) expertise of both attorneys; (2) can share costs of discovery ii. Explicit Requirements: (1) Signed Written Agreement: JDAs must be committed to WRITING, signed by Ds & their Ls & submitted in camera to the court for review PRIOR to going into effect (2) No Duty of Loyalty: must state it does NOT create an Attorney-Client relationship btw an A & any D other than his C a. POLICY: if L owed a duty of loyalty to D via a JDA, it would create the same sort of CoI issues multiple representation does (3) Conditional Waiver of Condentiality: must contain limited waiver of condentiality that lets Ds that chose to testify know that L's subject to JDA can still cross examine them & use any material or info contributed under the JDA a. POLICY: (1) Places loss of the JDA benets on the D who chooses to testify (D losing little > likely testifying under grant of immunity OR is waiving right against self-incrimination) (2) Provides both Ds NOTICE that their condences may be used in cross > each can choose what to reveal & not (4) Withdrawal: Must allow withdrawal upon notice to the other Ds LIMITATIONs on LITIGATION Tactics by the Pr & by the D A. Limitations on SPEECH (1) Trial Publicity i. POLICY: interests on both sides re the extent of regulation of trial publicity (1) Public a. PRO Reg: reasonable restrictions on publicity to prevent prejudice from being done, further fair functioning of the legal proceedings b. CON Reg: the public/media have a legitimate interest in obtaining info about the legal proceedings (2) Litigants a. PRO Reg: interest in preventing having their trials prejudiced by publicity (interest, AND CONSITUTIONAL RIGHT) b. CON Reg: use publicity as a forum to sway/change existing public info or perceptions they feel is inaccurate (3) Ofcial Participants in legal proceeding a. PRO Reg: interest in preventing having their trials prejudiced by publicity b. CON Reg: use as a forum for issues they may feel strongly about ii. RULES re Defense & Prosecution Model Rule 3.6: Trial Publicity a. (a) [Blanket Ban on Public Statements by Ls] A L who is participating OR has participated in the investigation or litigation of a matter SHALL NOT make an extrajudicial statement that L knows or reasonably should know will be disseminated by means of public communication & will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter DUTY = L is NOT to talk publicly about a case if (1) L knows / reasonable should know such will be published / disseminated AND (2) (STANDARD) such a statement has a SUBSTANTIAL LIKELIHOOD of MATERIALLY prejudicing the case/proceeding b. (b) [EXCEPTIONs to (a)] In spite of paragraph (a), a L MAY state: [1-6 = civil & criminal cases / 7 = additional info may release re criminal cases] (1) the CLAIM, OFFENSE, or DEFENSE involved &, EXCPET when prohibited by law, the ID of the PERSONs involved (2) info contained in a PUBLIC RECORD; (3) that an INVESTIGATION of a matter is in PROGRESS; (4) the SCHEDULING or result of any step in litigation; (ex: trial date) (5) a REQUEST for ASSISTANCE in obtaining evidence & info necessary thereto; (I.e., crime stoppers; anonymous tips) (6) a WARNING of DANGER concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest (i.e., "armed & dangerous"); AND (7) in a CRIMINAL case, in addition to subparagraphs (1)-(6): i (i) the ID, residence, occupation & family status of the accused; ii (ii) if the accused has not been apprehended, info necessary to aid in apprehension of that person; iii (iii) the fact, time & place of arrest; AND iv (iv) the ID of investigating & arresting ofcers or agencies & the length of the investigation c. (c) [DAMAGE CONTROL] In spite of para (a), L MAY make a statement that a REASONABLE L would believe is required to protect a C from the substantial undue prejudicial effect of recent publicity NOT initiated by L or L's C. A statement made pursuant to this paragraph SHALL be limited to such info as is necessary to mitigate the recent adverse publicity Right to Reply = gives L ability to reply bad publicity INITIATED BY OTHERS (big qualier > cannot be L or L's C) - D has a right and obligation to level the eld if misleading comments are made - LIMITED: L's response must be limited to info necessary to mitigate the adverse of effects of the bad publicity d. (d) [L's Obligations IMPUTED to Firm] No L associated in a rm or gov agency w. a L subject to paragraph (a) SHALL make a statement prohibited by paragraph (a) re Prosecution ONLY Model Rule 3.8: Special Responsibilities of a Prosecutor a. The Pr in a criminal case SHALL:

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 (f) [Pr Specic Rule re Pre-Trial Publicity] EXCEPT for statements that are necessary to inform the public of the nature & extent of the Pr's action & that serve a legitimate law enforcement purpose, REFRAIN from making extrajudicial comments that have a SUBSTANTIAL LIKELIHOOD of HEIGHTENING public condemnation of the accused & exercise reasonable care to prevent investigators, law enforcement personnel, Ees or other persons assisting or associated w. the Pr in a criminal case from making an extrajudicial statement that the Pr would be prohibited from making under MR 3.6 or this Rules i = Pr acts as a minister of justice & NOT just an advocate > obligations towards defense - POLICY (Cmt 1): as such, Pr have a heightened responsibility as a L > must advocate, BUT also must ensure the DEFENSE is afforded procedural justice & that guilty is decided upon the basis of sufcient evidence (not public prejudice) iii. Methods to Preventing Prejudicial Pretrial Publicity: Court Rules & Gag Orders some courts have taken the following steps a. COURT RULES...standing court rules prohibiting trial publicity b. GAG ORDERs...judge's order directing parties, Ls, witnesses or journalists to refrain from publicly discussing the facts of a case 2 Views re the Constitutionality of both: a. MINORITY VIEW > Stringent Prior Restraint on Speech Doctrine -> heavy presumption AGAINST constitutionality Limitations on speech must be no broader than necessary to protect the integrity of the judicial system & the D's right to a fair trial Encourages courts to look at OTHER OPTIONS b. MAJORITY VIEW > Liberal...Court Rules & Gag Orders are CONSTITUTIONAL (2) Judge Criticism: i. Model Rule 8.2: Judicial & Legal Ofcials (a) [L CAN Criticize a Judge, BUT cannot say anything FALSE] A L SHALL NOT make a statement that the L knows to be false or w. reckless disregard as to its truth or falsity concerning the qualications or integrity of a judge, adjudicatory ofcer or public legal ofcier, or of a candidate for election or appointment to judicial or legal ofce (b) A L who is a candidate for judicial ofce SHALL comply w. the applicable provisions of the Code of Judicial Conduct B. Limitations on TRIAL TACTICS (1) JURIES: i. Improper Jury Contact...MRs provide a little guidance (1) During Trial: NO Communication AT ALL is allowed (2) Post-Trial: Communication OK w. some limitations Rule: a. Model Rule 3.5: Impartiality & Decorum of the Tribunal A L SHALL NOT: i (a) [re Inuence] seek to inuence a judge, JUROR, PROSPECTIVE JUROR or other ofciel by means prohibited by law; ii (b) [NO Communication DURING Trial] communicate ex parte w. such a person during the proceeding UNLESS authorized to do so by law or court order; (a) + (b) = L should NEVER interact w. a juror once they have been sworn in, including niceties (hello; hold door) - ANY form of communication w. jurors or prospective jurors, EXCEPT in the course of ofcial proceedings or UNLESS SPECIFICALLY authorized by law, is improper - includes both communications relating to the case and pleasantries iii (c) [Re Communication POST-Trial] communicate w. a juror or prospective juror after discharge or the jury if: = Post-Discharge Communication OK w. some limitations - POLICY...why allow? (1) Ls can improve their trial skills; OR (2) to determine if the jury acted improperly in reaching its decision the communication is prohibited by law or court order; OR - WHY do some states allow...allows Ls to learn how they did in trial & become better Ls the juror has made known to the L a desire not to communicate; OR the communication involves misrepresentation, coercion, duress or harassment; OR iv (d) engage in conduct intended to disrupt a tribunal ii. Improper Methods of Jury Selection (1) INVESTIGATION of Potential Jurors > L may investigate the backgrounds of jurors for the purpose of jury selection, IF THERE IS... (a) no communication w. the juror AND (b) the investigation does not violate other law a. HUGE industry > some consider it one of the most important aspects of the case & most important to spend money on (2) DISCRIMINATION against Potential Jurors a. Batson Rule = Prohibition on the Discriminatory Use of Peremptory Challenges based solely on GENDER or RACE (*FL = Neil Challenge) 2 Types of Juror Challenges (= Ls ability to prevent a potential juror from being selected) *BURDEN = on the L that does not want the potential juror i Cause Challenges...L must state a cause why the potential juror should not be selected HIGHER Standard, but each L gets an unlimited number per issue ii Preemptory Challenges...L can get rid of potential juror for ANY reason, EXCEPT RACE or GENDER

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 LOWER Standard > L only gets 3...must still give a reason, but any is acceptable as long as it is gender or race neutral TAKE AWAY: No one has a constitutional right to be on a jury, BUT a person has a constitutional right NOT to be stricken from a jury for race or gender. iii. Jury Misconduct: L has DUTY to DISCLOSE juror misconduct to tribunals (MR 3.3(b)) Model Rule 3.3(b): A L who represents a C in an adjudicative proceeding & who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding SHALL take reasonable remedial measures, including, if necessary disclosure to the tribunal (2) DUTY TO DISCLOSE...ADVERSE FACTS & ADVERSE LAW i. Re Adverse FACTS: GEN Rule: DC has NO duty to disclose adverse FACTS, even if material & unknown by the court or opposing counsel, W. EXCEPTIONS POLICY: Requiring a duty to disclose runs directly in opposistion to... a. (1) an adversarial system of justice, where each side has an obligaiton to investigate & present its case b. (2) the ability of clients to communicate adverse information in condence to their lawyers c. (3) a D's privilege against self-incrimination & other constitutional rights EXCEPTIONS: rules the re disclosing facts w/o imposing an absolute duty a. MR 3.4(d): L & Cs have an obligation to comply w. various discovery rules requiring production of info in response to inquiries from the opposing side b. MR 8.4(b) & 1.2(d): L have a duty NOT to engage personally or assist a C in FRAUDULENT or CRIMINAL CONDUCT c. MR 3.3 (a)(3): L is obligated to take reasonable remedial measures, including disclosure to the tribunal if necessary, when the L, L's C or a witness called by the L offered FALSE TESTIMONY & L comes to know of its falsity d. MR 3.3(b) & Comment 12: L is obligated to take reasonable remedial measures, including disclosure to the tribunal if necessary, if L knows that any person has or plans to engage in criminal or fraudulent conduct related to the proceeding e. MR 3.3(d): In EX PARTE proceedings, L must disclose ALL MATERIAL FACTS (WHY...adversarial process not involved) f. MR 3.8(d): Pr have a duty to disclose to DC EXCULPATORY MATERIAL ii. Re Adverse LAW: LIMTED Duty to disclose adverse law I. Model Rule 3.3: Candor Toward the Tribunal [candor diff from honest > includes lying, but also not telling the whole truth] (a) a L SHALL not knowingly: i (2) [DUTY to Disclose Adverse Law] fail to disclose to the tribunal legal authority in the controlling jurisdiction known to L to be directly adverse to the position of C & not disclosed by opposing counsel; OR = L MUST disclose adverse law if meets 3 Qualiers: (1) from the controlling jurisdiction; = state law...same state / federal law...same district or circuit, w. the SUPREME COURT superseding both (2) directly adverse to L's position; AND - POLICY: L can still take the opposing position, but candid to the tribunal is more than not lying, but about being upfront & honest, THUS if the law that is controlling is not favorable to L's C, then such is the case - directly adverse = unclear, but there are 2 views (strict vs broad) strict...any case that cannot be distinguished [FLAW: a good L can always distinguish a case] broad...if (a) the decision is one which the court should clearly consider in deciding the case, (b) if the judge might consider himself misled by the L's silence OR (c) if a reasonable judge would consider an L who advanced a proposition contrary to the undisclosed opinion lacking in candor & fairness to him (3) not already disclosed by opposing counsel - WHEN to MENTION: do not have to mention right away > can give Pr a change to bring up, but MUST disclose prior to the time it is necessary for the judge to make a decision - can work in L's favor > other side must present law adverse to them that L may be unaware of (c) [Length of Duty to Disclose] the duties states in para(a) & (b) continue to the conclusion of the proceeding, & apply even if compliance requires disclosure of info otherwise protected by Rule 1.6 = Duty to Disclose Adverse Law lasts until the CONCLUSION of the PROCEEDING (3) DUTIES re IMPROPER ARGUMENT i. GENERAL RULES: (sparse but case law supports) Defense Counsel vs Prosecutor...different levels of standards a. DC...may (1) cross-examine a witness the L knows is telling the truth & (2) argue for inferences that the L knows are false but that are reasonably supported by the evidence b. Pr...may not do either of the above Improper Inferences of the FACTS US v. Latimer: bank robbery > DC argued pics from camera not shown b/c C not on them; though know really b/c cam broken i ISSUE: is Pr telling jury in closing argument cams not working unethical b/c not in evidence? ii HOLDING: YES > (1) Pr may ONLY argue facts that are in evidence, thus he violated the rules. (2) In contrast, DC may argue ANY reasonable inference from the facts, EVEN if DC is personally aware such is untrue.

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iii COPPOCK: Pr...argument was correctly overturned > incorrect to argue facts not in evidence in closing. DC...not sure correct > DC not truly being candid (MR 3.3) if arguing inference KNEW is false - criminal cases dif, but in civil case would never dream of presenting an argument knew was false iv TAKE AWAY: Attorneys CANNOT argue facts that are not in evidence, they cannot argue personal knowledge & must be careful to balance arguing inferences they are aware are not true though supported by the facts & the duty to be candid. ii. Improper Inferences of the LAW GENERAL RULE: looking at the policy objective of the law, it is unethical to argue an inference of the law that would beat its objective - it is improper to try to nd a loophole in the law that essentially undermines the entire purpose of the law a. POLICY...the legislature has spoken on the issue & passed the law for a reason > that reason should be honored b. EX: Evidentiary Rape Rule...doesn't allow D to put into evidence a Victim's past sexual history, in hopes of encouraging Victims to come forward w/o fear of embarassment IMPROPER: it is unethical for DC to try to introduce evidence obviously precluded by the rape shield law under another route C. Limitations on PROSECUTORs: Special Duties POLICY: Pr has an overriding ethical guideline to do justice > Pr is not an advocate, but a minister of justice & seeks to do justice rst i. Pr's AIM: twofold...guilt shall not escape nor innocence suffer ii. vs DC...DC is obligated to rep their Cs zealously w/in the bounds of law - Pr instead are obligated to zealously seeking JUSTICE, not their Cs ARES of CONFLICT: i. (1) Disclosure of Exculpatory Evidence DUTY: Pr have a constitutional & professional obligation to disclose "exculpatory" material (a) Professional Obligation - MR's Ethical Duty to Disclose a. Model Rule 3.8: Special Responsibilities of a Prosecutor The Pr in a criminal case SHALL: i (d) [DUTY to DISCLOSE EXCULPATORY EVIDENCE] make timely disclosure to the defense of all evidence or info known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, &, in connection w. sentencing, disclose to the D & to the tribunal all UNPRIVILEGED mitigting info KNOWN to the Pr, **EXCEPT when the Pr is relieved of this responsibility by a protective order of the tribunal; b. = AFFIRMATIVE DUTY to disclose evidence that TENDS to NEGATE D's GUILTY or MITIGATES the offense *no requirement for D to ask for the evidence > if Pr knows of the evidence, that enacts the duty to hand over SCOPE: only evidence or information KNOWN to the PROSECUTOR EXCEPTION: when the Pr is relieved of this reponsibility > EX: victim that must be in secrecy PRESUMPTION: a prudent prosecutor will resolve doubtful questions in favor of disclosure c. vs Constitutional: the ethical duty applies only to evidence or info known to the Pr (Constitutional...applies to all evidence in the gov's hands) the "tends to" negate standard of the rule appears to require greater disclosure than the constitutional standard (b) Constitutional Duty - Brady Rule/Motion a. ORIGINAL: suppression by the Pr of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution b. CURRENT: the duty has expanded in: timing > applies EVEN IF...Pr has not suppressed the evidence OR it has not been requested (via a Brady Motion); AND SCOPE: i Impeachment Evidence of Gov Witnesses > Pr must tell D anything that CASTS DOUBT on Pr's witness' testimony EX: Witness positively ID the D, but confused the name > possibly undermines the witness' credibility; must tell D ii Exculpatory Evidence iii APPLIES to all evidence in GOV's POSSESSION (including police, etc.) > Pr has duty to learn of ANY favorable evidence known to others acting on the gov's behalf in the case c. EXCEPTIONs: Afrmative Defenses: Evidence re D's afrmative defenses if the D has waived these rights pursuant to a plea agreement i EX: D has an alibi for a crime; Pr has evidence that the alibi is false > Pr does not have to disclose that evidence if the D enters a plea bargain w. the Pr (which = the D waiving the right) On APPEAL, a conviction will be set aside only if the evidence is MATERIAL i TEST: material evidence = when there is a reasonable probability that the outcome would have been different had the evidence been disclosed Grad jury proceedings ii. (2) Charging: Requirement of PROBABLE CAUSE Model Rule 3.8: Special Responsibilities of a Prosecutor a. (a) Pr in a criminal case SHALL refrain from prosecuting a charge that the Pr knows is NOT supported by PROBABLE CAUSE POLICY: if no probable cause, then no reason to bring charge b/c no case to present b. 7 FACTORS...Prs should take into account in making the decision whether to charge: (i) the Pr's REASONABLE DOUBT that the accused is in fact guilty - BIG...doesn't matter what Pr thinks, but if Pr has doubt should NOT bring the charge (ii) the EXTENT of the SOCIAL HARM caused by the offense (ii) *PUNISHMENT: the disproportion of the authorized punishment in relation to the particular offense of the offender - Coppock > WRONG...Pr doesn't get to decide this, the Legislature (aka "the people") do - if factor in, improper separation of powers > Legislature decides the punishment that ts the crime (iv) *IMPROPER MOTIVES: possible improper motives of a complainant (aka spite) - Coppock > WRONG...goes back to #1; if Pr believes that D did it, complainant's spiteful motives or not should not matter

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 (v) *RELUCTANCE of Victim to testify - Coppock > WRONG...goes back to #1; if Pr satised D did it, V's reluctance to testify should not matter - factor could be especially daming in domestic violence cases or whistle blowing cases (vi) COOPERATION of D: cooperation of the accused in the apprehension or conviction of others; AND - if accused willing to ip/nark, may not trump up charges to black mail (vii) availability & likelihood of prosecution by another jurisdiction - ASKs: does another jurisdiction have a CHARGE that better ts the crime? EX: DC Snipers > use state w. death penalty OVERALL: V can be afraid, complainant can be angry, BUT as long as Pr is convinced D did it then should prosecute iii. (3) Contact w. Persons REPRESENTED by COUNSEL Model Rule 4.2: Communication w. Person Represented by Counsel a. In representing a C, A L SHALL NOT communicate about the subject of the representation w. a person the L knows to be represented by another L in the matter, UNLESS the L has the consent of the other L OR is AUTHORIZED to do so BY LAW or a court order - APPLIES to Pr same as regular Lawyers EXCEPTION: a. (1) Consent of Other L b. (2) Authorize by LAW or Court ORder Thornburgh Memo...exempting Justice Department Lawyers from the No-Contact Rule on 2 grounds: i investigative activities of federal prosecutors where "authorized by law" within the meaning of the rule 2 Approaches: ! Pre-indictment investigative contacts w. people who are represented by counsel are authorized by law so long as the contact does not violate the person's constitutional rights ! Case-by-case approach > examine the facts of the case to determine whether the Pr engaged in legitimate investigative techniques ii [NO MORE] the authority of the Justice Dept. to investigate federal crimes preempted state ethics rules *SINCE overruled by the McDADE ACT...subjecting US Attorneys to the full authority of state courts c. (3) Pr's Whistle-Blower Exception: MR 4.3 does not ban contact w. a Er D's Ee WHO APPROACHED the Pr to speak to them if going to testify against Er, OTHERWISE the Pr cannot speak to the Ees of a D - Ee MUST appraoch Pr > Pr cannot approach Ee about speaking - Pr should advise Ee to seek independent counsel, as can no longer be represented by Er's counsel (conict of interest) WHY...protects whistle-blowers > encourages those that know of wrongdoing to come forward i purpose of no contact rule is to protect the administration of justice via the A-C privilege; using it to allow subornation of perjury would effectively defeat this goal & add no meaningful protection to the A-C relationship iv. (4) Courtroom MISCONDUCT by Pr Berger Rule: in closing arguments either attorney... a. Cannot offer their opinion or personal knowledge OR testify b. Cannot break the golden rule > "how would you feel if you were in the D's chair w. the state coming after you with all its power" c. Cannot attack/imdenify opposing counsel III. The Civil Advocate: Ethical Issues in Civil Litigation The Client-Lawyer Relationship A. Ethical Obligations re FEEs *Applicable Model Rule, 1.5: Fees, split amongst the next few categories (1) Duty to Charge Reasonable Fees & Amount for expenses i. Model Rule 1.5(a): L SHALL NOT make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. [1-8 are FACTORs to determine REASONABLENESS of a fee]: (1) the TIME & LABOR required, the NOVELTY & DIFFICULTY of the questions involved, & the SKILL requisite to perform the legal service properly; (2) [OPPORTUNITY Costs] the likelihodd, if apparent to the C, that the acceptance of the particular employment will preclude other employment by L (3) the fee CUSTOMARILY charged in the locality for similar legal services; (4) the AMOUNT involved & the results obtained; [= Size of case / Results (appeal; trial; settle)] (5) the TIME LIMITATIONS imposed by the C or by the circumstances; [= quickness (SoL?) & turn around or if C is a time suckers] (6) the NATURE & LENGTH of the professional relationship w. C [*Coppock: troubled...hard to tell judge why charge friend less] (7) the EXPERIENCE, REPUTATION & ABILITY of the L or Ls performing the services; AND - more expensive reects value of service > important NOT to undervalue - experience & reputation everything > (1) huge > built upon a person's skill & ethics; goes far in making a person successful (2) game changer > who is on the on the other side can change how Ls will carry out cases (8) whether the fee is xed or contingent ii. Courts regulate the reasonableness of L's fees in 3 ways: (1) Courts can discipline Ls for charging excessive fees (2) Courts have the power to reduce the amount of fees charged by Ls if the court nds the fee to be unreasonable (3) Court est. reasonable fee > used when the fee will be paid by the D pursuant to statute, court rule or contract (2) Duty to Inform the CLIENT of the Basis OR Rate of the Fee & Expenses i. Model Rule 1.5(b): the scope of the rep & the basis or rate of the fee & expenses for which C will be responsible SHALL BE communicated to C, preferably in writing, before or w/in a reasonable time after communcing the rep., EXCEPT when L will charge a regularly represented C on the same basis or rate. Any changes in the basis or rate of the fee or expenses SHALL also be communicated to C = Obligation on L to reach CLEAR AGREEMENT w. C at very beginning of relationship regarding... (1) SCOPE...how far taking case (negotiations / trial / appeal) one vs multiple issues > if there are 16 aspects (criminal & civil, etc), L may chose to only take ONE aspect mult (2) Basis or Rate of the Fee...how will the fee be charged & how will expenses be paid (upfront; later; contingency; hourly, etc) - also, if LATER modications are made, such MUST be discussed w. the C

the same basis or rate. Any changes in the basis or rate of the fee or expenses SHALL also be communicated to C = Obligation on L to reach CLEAR AGREEMENT w. C at very beginning of relationship regarding... (1) SCOPE...how far taking case (negotiations / trial / appeal) one vs multiple issues > if there are mult aspects (criminal & civil, etc), L may chose to only take ONE aspect (2) Basis or Rate of the Fee...how will the fee be charged & how will expenses be paid (upfront; later; contingency; hourly, etc) - also, if LATER modications are made, such MUST be discussed w. the C - *Courts PREFER all to be put in WRITING, but such is not required > GOOD IDEA; CYA ii. Methods of Charging Fees: (1) Hourly Basis...computed by multiplying the # of hrs worked on the matter by each L or paralegal times the respective hourly rate (2) Contingent Fees...L's right to receive compensation is contingent on the C's receiving an award, either by settlement or judgment - Based on % of amount recovered, usually varying depending on the stage at which the matter is concluded a. POLICY: allows access to people who could not afford a L > justied that L deserves a higher % b/c took a risk he would not recover b. SCOPE: civil only w. limitations Limits: morally, CF NOT ok to charge when... i Suit is a SURE THING: ex: Settlment $100K & L only had to write a letter ot get it; woul be wrong to take 1/3 ii Settlement SO BIG, % recovered would be MUCH MORE than a REASONABLE AMOUNT; ex: tabbaco settlement (3) Fixed fees (ordering of a menu)...at fees based on the service provided OR based on a % of the transaction value - USED Most: estate planning & real estate matters (4) Value-Billing...L determines the fee at the conclusion of the matter (vs usually in advance), taking into account a variety of factors a. Don't USE...Causes BIG ISSUE > determining fee after the trial is concluded might bias both L & C as to what each SHOULD get C's often, even if agreed to in the beginning, dispute the L's fee > if do it at the end, will have even more disputes (5) Blended Rate...a single rate that applies to both L & paralegals a. PRO...attractive to C b/c of hourly rate less & attrative to L b/c allows L to have work done by Ee who cost the least (3) CONTINGENCY FEEs: Special Ethical Duties Re i. Model Rules 1.5(c) - (d): (c) [CF AGREEMENT Requirements] a fee may be contingent on the outcome of the matter for which the service is rendered, EXCEPT in a matter in which a CF is prohibited by paragraph (D) or other law. A CF agreement SHALL... (1) be in a WRITING signed by C (2) state the method by which the fee is to be determined, including the %(s) that SHALL accrue to L in the event of settlement, trial or appeal; (3) [ID whether] litigation & other expenses to be deducted from the recovery; (4) [state] whether such expenses are to be DEDUCTED BEFORE of AFTER the CF is calculated. (5) clearly notify the C of any expenses for which C will be LIABLE whether or not the C is the PREVAILING PARTY. (6) Upon CONCLUSION of a CF matter, L SHALL provide the C w. a WRITTEN [settlement] STATEMENT stating the outcome of the matter &, if there is a recovery, showing how C's remittance to the C & other fees are CALCULATED (d) [EXCEPTIONs: when CFs not allowed] L SHALL NOT enter into an arrangement for, charge, or collect: a. (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 = NO CFs in Divorce proceedings > POLICY: public policy favors marriage; not in society's best interest to discourage reconciliation b. (2) a CF for representing a D in a CRIMINAL case POLICY: adverse interest- would be persuaded to not plea bargain or take guilty C c. Other Areas CFs are PROHIBITED: Expert Witness Defense Contingent Fee in Civil: % based on = P's demanded amount in (-MINUS-) amount the D was required to pay i POLICY: disfavored as against public policy > not per se illegal, but disfavored WHY: the 2 #s (amount demanded & recovered) bears no logical relationship to each other. In negotiating, P's L asks for a demand much higher than expected. Thus, the amount "saved" is not a realistic rep of a reasonable amount to recover ii. re Structured Settlements...C receives a lump-sum payment coupled w. periodic payments OK for L's CF to come out of the any lump-sum fee IF SUCH IS AGREED *absence of agreement means L's CF will be paid PRO RATA out of each payment received by C (4) Expenses i. Expenses = things charged in the production of a law suit (copies, paper, ink) INCLUDED: copies, paper, ink, specialists that review cases (i.e., nurses in med-mal) EXCLUDED: overhead (rent, lighting, staff, etc), lawyer (= fee) ii. General Rule: (a) C is responsible for the expenses (in addition to fees) of the litigation (including those order on C's behalf by L) & (b) L SHALL NOT provide nancial assistance EXCEPTION: Advancement of Expenses...L MAY advance C expenses, with limits a. MR 1.8(e): A L SHALL NOT provide nancial assistance to a C in connection w. pending or contemplated litigation, EXCEPT that: (1) L MAY advance court costs & expenses of litigation, the repayment of which MAY be contingent on the outcome of the matter; & - Maintains L Protection: no requirement to advance $; bar on fees & general advances (living expenses for C, etc.) (2) a L representing an indigent C may pay court costs & expenses of litigation on behalf of the C b. policy....common law...very disfavored > law suits were discouraged & believed advancing encouraged frivolous law suits modern law: (a) believe L should be able to decide whether to take the risk; & (b) outlook on law suits changed > C can be advanced $ in hopes that those that were wronged will rightfully recover (c) expenses & recovery often very high > most Cs couldn't bring case w/o an advancement, (d) BUT ONLY allow expenses, NOT fees > too many sob stories; need a buffer iii. re L's OBLIGATION to 3P over CLIENTS

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 DUTY: L must promptly deliver to 3P ANY funds of other property they are entitled to receive - if 3P interest is DISPUTED, L must hold the funds until the dispute is resolved a. MR 1.15(d)-(e): (d) [OBLIGATION to pay 3P's RIGHTFUL INTEREST] Upon receiving funds or other property in which a C or 3P has an interest, L shall promptly notify C or 3P. EXCEPT as stated in this rule or otherwise permitted by law or by agreement w. C, L shall promptly deliver to C or 3P any funds or other property that the C or 3P is entitled to receive &, upon request by C or 3P, SHALL promptly render a full accounting regarding such property (e) [IF INTEREST is DISPUTED] When in the course of rep. L is in possession of property in which 2 or more persons (one of whom MAY be L) claim interests, the property SHALL be kept separate by L until the dispute is resolved. L shall promptly distribute all portions or the property as to which the interests are not in dispute POLICY: other parties than C may have an interest in the $ out of the settlement; - applicable law recognizes that precludes L from surrending funds to the C IF there are VALID CONTRACTUAL ASSIGNMENTS or STATUTORY LIENS of which the L has received notice EX: Medicare has lien on any med-mal negligence cases to recover $ it paid for prior to the case settling iv. re Witness Fees GENERAL RULE: Ls may not pay witnesses fees that are prohibited by law MR 3.4(b): A L shall NOT...offer an inducement to a witness that is prohibited by law a. 2 Types of Witnesses & fee legality: Fact Witnesses...cannot be paid a fee for testifying, but may be paid expenses & any lost wages b/c of time spent in testifying Expert Witnesses...may be paid REASONABLE fees for testifying, BUT may not be paid a fee contingent on their testimony or on the outcome of the case - though, it may be a % of the recovery, w. the alternative being a minimum (instead the all or nothing of a reg CF) (5) Fee Splitting i. = (btw Ls) occurs when Ls who are not members of a rm divide a fee in a matter EX: referral fee (standard 25% of L's fee) association of attorneys in a case to handle diff aspects of the matter completion of a case by a 2nd L after the rst L withdrew from representation or after the C discharged the L continuation of compensation to a retired member by the L's former rm ii. Model Rule 1.5: Fees (e) Division of a fee btw Ls who are NOT in the same rm may be made ONLY IF (must have all 3): a. (1) [a] the division is in PROPORTION to the services performed by each L OR [b] (MAJ) each L assumes JOINT RESPONSIBILITY for the rep. - JR = each as nancial & ethical responsibility as the next for the rep, as if the Ls were associated in a partnership b. (2) C AGREES to the arrangement, including the share each L will receive, & the agreement is conrmed in writing; AND c. (3) the total fee is REASONABLE iii. POLICY: PROs: (1) Avoids competency issues > encouages Ls from taking cases knowing nothing about & sending them to someone that does (2) Arbitrary discrimination against sole practitioners & small rms (Rule only applies to members NOT of a rm); - if in big rm, can split fees & know nothing more of it > NOT allowing excpetions discriminates against small rms Cons: Referral fees encourage unethical practices of solicitation of business (i.e., Ambulance Chasers; encourage FINDING cases) - some argue Cs end up paying excess fees (b/c pay referral fee too) > WRONG...referral fees come out of the L's portion (6) Security for Nonpayment of Fees - ALLOWED under strict regulations *EX: Security Ks ( & Post-engagment Fee Modications i. RULE...3 Requirements of Ls who enter into business transactions w. Cs: MR 1.8(a): L SHALL NOT enter into a business transaction w. a C OR knowingly acquire an ownership, possessory, security or other pecuniary interest ADVERSE to a C UNLESS: a. (1) [Terms FAIR & REASONABLE] The terms of the transaction MUST be fair & reasonable to the C & must be fully disclosed in a writing that can be reasonably understood by the C b. (2) [Advise of INDEPENDENT COUNSEL in WRITING] L MUST advise the C in writing of the desirability of seeking independent legal advice about the transaction AND the C MUST have a reasonable opportunity to seek such advice c. (3) [WRITTEN CONSENT] C must give informed consent in writing signed by the C to the essential terms of the transaction including an explanation of whether the L is representing the C in the transaction ii. POLICY: heightened ethical obligation b/c of the risks it puts the C in & the L's DUTIES towards the C; - vs Ordinary Fees (subject to MR 1.5): the heightened ethical obligation requires greater regulation - EX: security K...L obtaining an interest in C's property as security for a fee is directly adverse to C's interest post-engagement fee modication...C already under a duciary relationship w. L & might be vulnerable to coercion or dependent iii. Presumption of Invalidity: transactions btw A-C is presumptively INVALID, w. the burden of est transaction's validity on the LAWYER Resolved AGAINST the L > transaction is INVALID if it runs afoul of ethical rules (duty to make sure C aware of risks) (7) Liens i. Model Rule 1.8(i): PROHIBITION on L having a proprietary interest in the outcome of the case he is conducting for C EXCEPT for: (1) a lien authorized by law to secure the L's fee or expenses; AND a. 2 Types of LIENS recognized: Retaining Lien: L's right to retain C papers or other C property in the L's possession as security for any unpaid amount owed Charging Lien: applied against the proceeds of any settlement or judgement for any unpaid fees or expenses due the L b. Security Agreements: K w. C in which they obtain a security interest or mortgage in the C's property to secure payment of their fees (2) [CONTINGENT FEEs] for reasonable contingent fees in civil cases

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B. Engagement Agreements (1) Non-Engagement Letters = letter rejecting a case > after meeting w. potential C, must be CLEAR if not accepting case & alert to any SoL otherwise might be subject to legal malpractice i. Elements of a Legal Malpractice Cause of Action: - P MUST show...underlying case lost b/c of L's negligence (otherwise L's negligence doesn't matter) (1) DUTY Existed: an A-C relationship existed - Afrmative Presumption > if C believed one existed or detrimentally relied believing it existed, then court will likely nd one did (2) D acted negligently or in breach of contract a. Evidence: EXPERT testimony re the standard handling a typical L would use of such a legal situation EX: did L research the case; inform C of SoL; refer to a specialized attorney; returned call or sent letter (most use standard letter) (3) Such acts were the proximate cause of the P's damages > did such acts cause the P to lose the underlying case? (4) BUT for D's conduct the Ps would have been successful in the prosecution/defense of their previous claim a. Evidence: EXPERT testimony re proof of change outcome of the "case w/in a case" (2) SCOPE of Representation: i. RULE: L must set a CLEAR & AGREED upon scope of representation w. the C at the beginning of the relationship - must be clear...courts are likely to interpret any ambiguities against the L Model Rule 1.5(b): the SCOPE of the rep...for which C will be responsible SHALL BE communicated to C, preferably in writing, before or w/ in a reasonable time after communcing the rep. L may LIMIT the Scope if...(1) reasonable & (2) C gives informed consent a. MR 1.2(c):L MAY limit scope of the rep. if the limitation is REASONABLE under the circumstances & C gives informed consent EXCEPTIONS: i No LIMITING a Lawyer's LIABILITY (can't K to be negligence) MR 1.8(h): L SHALL NOT... (1) make an agreement w. C prospectively limiting L's liability for malpractice, UNLESS C is independently rep in making it [= C cannot agree to forgo his right to sue L for negligence UNLESS he has sought independent rep] (2) settle a claim or potential claim for such liability w. an unrep. C or former C unless that person is advised in writing of the desirability of seeking & is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. ii Limited Engagement Agreements (i.e., limiting # of hours) TIME Limitations...NOT reasonable if it were not sufcient to allow the L to provide advice on which the C could rely (3) Allocation of AUTHORITY between L & C i. LAWYER vs CLIENT Authoirty Generally > COOPERATIVE Relationship...C sets the overall objectives of rep & L chooses the means for achieving those goals a. CLIENT...sets the overall OBJECTIVE of the representation (civil & criminal) gets to decide if accept settlement/plea or appeal > L must discuss ANYTHING offered w. C MR 1.2(a): L SHALL abide by C's decisions concerning the objectives of represetnation i EXCEPTIONS: Authorization: C may authorize L to make decisions that the C is entitled to make, UNLESS the L requires the decision to be made personally by the C 1.2(d) Crime/Fraud: L may be not counsel/assist Cs to engage in conduct that hte L knows to be criminal/fradulent MR 1.4: L shall consult w. C as to the means by which C's objectives are pursued, and must i (a) DUTY to COUNSULT: L shall (1) consult w. the C about the means by which C's objectives are to be accomplished (2) give sufcient info to enable the C to give informed consent when required by the rules DUTY to COMMUNICATE/keep INFORMED (*biggest reason C get upset w. Ls): (3) keep the C reasonably informed about the status of the matter (4) promptly comply w. reasonable requests for info (aka return calls) ii (b) Duty to COUNSEL: L shall explain a matter to the extent reasonably necessary to permit the C to make informed decisions MR 2.1: In consulting w. C, L has a duty to COUNSEL C regarding the matters, and may not only refer to law but ot other considerations as well (ie moral, economic social & policital) b. LAWYER...broad authority to make STRATEGIC & TACTICAL decisions in connection w. the rep to advance their C's interests - includes...Expert witness needed (*costs discussed w. C, but L decides how many should be retained) Discovery that should be done Witnesses (besides C) that will be called ot testify Causes of Action included in the complaint Whether & what counsel should object to in a trial LIMITATIONS: L is bound to follow C's instructions re strategic & tactical decisions, unless... i Contractual > C&L are free to allocate the authority to make strategic & tactical decisions by K ii Unethical / Illegal > C directs the L to act unethical or illegally iii Immediacy > where tactical decisions require immediate action, i.e., whether to object at trial, where consultation w. the C is impractical, L has the authoity to make the decision w/o C consultation DISAGREEMENT: if L believes the C's decisions are "tying his hands" so L cant effectively carry out rep, L's only options are: i (1) Cousel...L may counsel C about the wisdom of the C's decision (MR 2.1) ii (2) Advance Expenses...if re litigation expense C is unwilling to incur, L can advance the expense (1.8(e)) iii (3) Withdraw...L can move to withdraw from the matter if C's instructions make it unreasonably difcult for L to carry out the representation LAWYER"s ability to BIND CLIENT to 3P a. Yes, if...L acted w. EXPRESS, IMPLIED or APPARENT authority C RATIFIES the agent's conduct C is ESTOPPED from denying the agent's authority

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 EXCEPTIONS: when L has a known duty to consult C i Settlement...C has the prerogative to decide whether to settle a case (MR 1.2(a)) b. If L acts W/O AUTHORITY, L is subject to disciplinary action, legal liability to C & 3Ps harmed by L's unauthorized action (4) Termination of the C-L Relationship i. DISCHARGE Rule: Cs have the absolute right to discharge an L, regardless of cause Compensation: Quantum Meriut Rule...discharged Ls are allowed to recover the reasonable value of their services a. EXTREME CASES: L Misconduct...court might nd that fee forfeiture is appropriate C bad faith...court might allow L to receive the full contractual amount ii. WITHDRAWAL Rule MR 1.16: Declining or Terminating Representation a. GUIDING PRINCIPLE: L must protect the C's INTEREST, by taking reasonable steps to protect C's interest when terminating rep (d) Upon termination of rep, a L SHALL take steps to the extent reasonably practicable to protect a C's interests, such as giving reasonable notice to C, allowing time for employment of other counsel, surrendering papers & property to which C is entitled & refunding any advance payment of fee or expense that has not been earned or incurred. L MAY retain papers relating to C to the extent permitted by other law. b. 2 TYPES: MANDATORY: MR1.16(a) L MUST withdraw from representation if the following circumstances exist... i (a1) if representation will result in violate of the Rules of Conduct (conict of interest; illegal conduct) ii (a2) if L's physical or mental condition MATERIALLY impairs L's ability to represent the C iii (a3) if C discharges L PERMISSIVE MR 1.16(b): L MAY withdraw from rep. a C if... i (1) W/drawal can be accomplished W/O MATERIAL ADVERSE EFFECT on the interests of the C; - EX: adverse effect on C's interest > attorney day prior to trial beginning ii (2) the C persists in a course of action involving the L's services that the L reasonably believes is CRIMINAL or FRAUDULENT; iii (3) the C has used the L's services to PERPETRATE a CRIME or FRAUD; iv (4) the C insists upon taking action that the L considers REPUGNANT or w. which the L has a fundamental disagreement; - EX: C wants unreasonable delay; sue D w/o good cause just b/c mad v (5) [C has not PAID his BILL] the C fails substantially to FULFILL an OBLIGATION to L re L's services & has been given reasonable warning that L will w/draw unless the obligation is fullled vi (6) the rep will result in an unreasonable FINANCIAL BURDEN on the L or has been rendered unreasonably difcult by C; OR - if becomes too expensive for C & L can't/wont help vii (7) other good cause for w/drawal exists EXCEPTIONS to both (a) Mandatory & (b) Permissive W/DRAWs i (c) A L MUST comply w. applicable law requiring notice to or permission of a tribual when terminating a rep. When ordered to do so by a tribunal, a L SHALL continue representation [in spite of] good cause for terminating the representation = (i) L must obtain COURT PERMISSION, if applicable (ii) Court CAN FORCE L to continue representation, in spite of good cause for terminating - TAKE AWAY: be careful when you take a C, when you get money > once get in its VERY difcult to get out Condentiality: 3 General Doctrines of Condentiality A. (1) ETHICAL DUTY of Condentiality (MR 1.6) = MR 1.6(a): L SHALL NOT reveal info relating to the representation of a C UNLESS the C gives informed consent, the disclosure is impliedly authorized in order to carry ou tthe representation OR the disclosure is permitted by paragraph (b) STANDARD of Precaution L's must take: i. Reasonable Expectation of Privacy > does NOT impose strict liability on Ls, but interpreted as having a negligence standard - Ls must take reasonable steps to preserve C condentiality OK Methods of Communication a. RULE: L may use methods of communication that have a reasonable expectation of privacy w/o additional securities, EVEN though some methods (i.e., email/fax) may have the risk of unauthorized interception BUT, Prudent Ls may want to take the following additional steps: i Re SENSITIVE INFO...Refrain from using a method of communication or adopt additional precautions (scrambling devises or encryption technology) for particularly sensitive info ii ENGAGEMENT Agreements...Obtain C consent in their engagement agreements about which various forms of communication will be used & with appropriate warnings to the C iii CONFIDENTIALITY NOTICES...Reinforce claims of condentiality by containing condentiality notices in faxes & emails B. (2) Attorney-Client Privilege POLICY: intended to encourage full & frank communication btw A & C, so C feels comfortable opening up & being honest. - C honesty serves the broader public interests of honoring the law & administering justice SCOPE: rule of evidence that applies ONLY to the following situations where ALL of the elements exist: i. The attorney-client privilege MAY be invoked...with respect to: (1) a communication (oral/written, etc. ok > NO observations though) (2) made between privileged persons (attorney & client) (3) in condence (*BIG qualier) = when C has a reasonable expectation what is being communicated will be kept in secret - i.e., if C or L (SHOULD) KNOW someone is listening to conversation, the privilege is waived (4) for the purpose of obtaining or providing LEGAL ASSISTANCE for the C

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 EXCEPTIONs (= when L can be forced to testify): i. (1) Waiver...several ways in which the CLIENT can waive the privilege (aka allows the L to testify on the issue): agreement, disclaimer or failure to object via 3P > voluntary conversations w. 3P are NOT privileged by raising as an issue in the proceeding ii. (2) Crime-Fraud Exception...privilege is waived IF advise was sought OR used in the furtherance of future criminal conduct Procedure for determining application (American Tobacco Co. v. State) a. (1) Crime-Fraud Exception RAISED (ex: claim privileged doc would show tobacco co defrauded public about the risks of smoking) b. (2) Adversarial HEARING held > each party presents evidence & argument (Burden of Production) Exception Asserting Party must show PRIMA FACIE evidence of the why applies (Burden of Persuasion) If prima facie case, burden shifts to D to EXPLAIN away (standard: preponderance of the evidence) Related Privilege: CORPORATE ATTORNEY-CLIENT Privilege & Internal Investigations i. "WHO" does the privilege apply to in corporation? Approaches: a. (1) Control Group = Upper Managment ONLY > the people that have the responsibility for what is going on, though maybe not the knowledge (knowledge likely held w. workers on the ground) FLAW: in order for L to give advice to "control group", should be able to investigate w/in corporation w/o worrying whether conversations w. lower Ee is privileged or not (Upjohn v. US) b. (2) Subject Matter Test (MAJ (FL) / Restatements...b/c more specic) 5 Part Test - Southern Bell Telephone & Telegraph Co. v. Deason i the communication would not have been made BUT FOR the contemplation of LEGAL SERVICES ii the Ee making the communication did so at the direction of his or her corporate superior; iii the superior made the request of the Ee as part of the corporation's effort to secure legal advice or services; iv the content of the communication relates to the legal services being rendered, & the subject matter of the communication is within the scope of the Ee's duties v the communication is not disseminated beyond those persons who, b/c of the corporate structure, need to know its contents C. (3) Work Product Doctrine [*Seminole Case: Hickman v. Taylor...wrongful death of seaman; D took written statements of crew members] POLICY: proper preparation w/o fear of opposing party being able to have access to NOTEs & mental IMPRESSIONS of case - proper preparation demands L work w. a certain degree of privacy, free from unnecessary intrusion by opposing parties & that he be able to sift what he considers to be relevant from irrelevant facts, prepare legal theories & plan strategy i. to properly prepare, L likely will need to conduct interviews, statements, memoranda, correspondence, briefs, mental impression, etc. ii. IF L were forced to hand these docs over to opposing counsel, they might NEVER by CREATED (hurting L's rep of the C) SCOPE: materials prepared in anticipation of litigation i. Rule 26(b)(3) of the Federal Rules of Civil Procedure (*most used rule) Trial Preparation: Materials a. (A) Documents & Tangible Things > ordinarily, a party may NOT discover documents & tangible things that are (SCOPE) prepared in anticipation of litigation OR for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer or agent). - (EXCEPTIONs) BUT subject to Rule 26(b)(4), those materials MAY be discovered if: (i) they are otherwise discoverabel under Rule 26(b)(1); AND (ii) (re Ordinary Work Product) the party hows that it has substantial need for the materials to prepare its case & cannot, w/o undue hardship, obtain their substantial equivalent by other means b. (b) (re Opinion Work Product) Protection Against Disclosure > if the court orders discovery of those materials, it must protect against disclosure of the mental impression, conclusions, opinions or legal theories of a party's attorney or other rep. concerning the litigation EXCEPTIONs: i. (1) Work Product Exception (ABOVE) 2 Types of Work Product > allowed discovery under the exception clause, BUT STANDARDS for discovery vastly different *POLICY: opinion protected more than ordinary > documents w. the clear mental impressions of the L should be protected more a. For ORDINARY Work Product...if can be shows that a party has SUBSTANTIAL NEED for the documents, which they cannot otherwise obtain w/o UNDUE HARDSHIP b. For OPINION Work Product...a party may only obtain if EXTRAORDINARY CIRCUMSTANCES JUSTIFY DISCLOSURE - Strictly protected > (Coppock) very hard to get & can't imagine the situation that would justify this type of disclosure; ii. (3) Waiver iii. (4) Crime-Fraud Exception Conicts of Interest *if the rules prohibit a L's conduct, that prohibition extends to all members of the L's rm A. (1) Representation Against CURRENT CLIENTs MR 1.7: Conict of Interest: Current Clients i. (a) [Bar to Conicts of Interest] L SHALL NOT represent C if the representation involves a concurrent conict of interest. A concurrent CONFLICT of INTEREST exists if = (1) [Current ONLY] the representation of one C will be directly adverse to another [CURRENT] C; OR (2) [Current & Former] there is a signicant risk that the rep. of one or more C will be materially limited by L's responsibilities to another [CURRENT] C, a former C or a 3rdP or by a personal interest of L - materially limited > referring to if what KNOWLEDGE L has gotten via those relationships (Cs / 3P / Personal), will effect HOW L can represent a current C] ii. (b) [EXCEPTIONS to (a)] In spite of the existence of a concurrent conict of interest under para(a), L may represent C if: (1) L reasonably believes that L will be able to provide competent & diligent representation to each affected C; - reasonable = JURY question > if gets to this, must feel condent can defend decision in court (& win) (2) the representation is not prohibited by law;

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(3) [SINGLE vs UNRELATED MATTERS] the rep does not inolve the assertion of a claim by one C against another C represented by L in the same litigation or other proceeding before a tribunal; AND (4) each affected C gives informed consent, conrmed in writing (a) Current Client = i. (1) Current Case...a C L is currently doing work for; OR ii. (2) Continuous Relationship...when an ongoing prof. relationship exists btw C & the rm, such that C reasonably expects the rm is its L; TYPES... (a) General Retainer (b) Pattern of repeated retainers that suggests a continuous relationship a. do NOT have to have a current case w. rm in order to be a "current client" IBM v. Levin: current C b/c pattern of repeated retainers + L did work for C both BEOFRE & AFTER ling of adverse complaint (b) ENTITY Representation = L employed by an entity represents IT rather than any of its members or constituents (MR 1.13(a)) i. MR 1.13: Organization as Client (a) A L employed or retained by an ORG represents the Org acting through its duly authorized constituents = answers WHO L's current client is > the ENTITY, as a whole - Whose the C...if L is employed by an Org, they ANSWER & take DIRECTION only from duly appointed people in the Org - L reps org as a WHOLE > not each person employed by it; thus don't take direction from just anyone (b) if a L for an Org. knows that an ofcer, Ee or other person associated w. the Org. is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the Org., or a violation of law that reasonably might be imputed to the org., AND that is likely to result in a substantial injury to the org., then the L SHALL proceed as is reasonably necessary in the best interest of the org. UNLESS the L reasonably believes that it is not necessary in the best interest of the Org. to do so, the L SHALL refer the matter to higher authority in the Org., including, if warranted by the circumstances, to the highest authority that can act on behalf of the Org. as determined by applicable law = REPORT IT UP - if L aware anybody in the org is going to commit an illegal act that will substantially/materially harm the org, L MUST report it to higher ups in the Org (& can go up the chain of command until reach the very top) (c) EXCEPT as provided in Para(d), IF, a. (1) despite the L's efforts in accordance w. para(b), the highest authority that can act on behalf of the Org. insists upon or fails to address in a timely & appropriate manner an action, or a refusal to act, that is clearly a violation of the law, AND b. (2) the L reasonably believes that the violation is reasonably certain to result in substantial injury to the Org., then the L may reveal info relating to the representation whether or not Rule 1.6 permits such disclosure, BUT ONLY if and to the extent the L reasonably believes necessary to prevent substantial injury to the Org. (c)(1)-(2) = Trumps 1.6 = REPORT IT OUT - IF...(1) warnings to higher-ups are not headed + (2) L reasonable believes a substantial injury to Org is reasonably certain = L MAY reveal info to outside authorities required, BUT only to extent reasonable necessary to prevent the harm - Likely best to rst report up, and then tell will report out if nothing is done ii. OTHER Corporations: SINGLE vs MULTIPLE Corporations for Conict Reasons - when do sub-sidiaries corporations qualify as having a C-L relationship with the same law rm? 3 Approaches: a. (1) Per Se Rule = L who represents a member of a corporate group will be treated as having an C-L relationship w. ALL subsidiaries, afliates or other members of the group b. (2) Alter Ego Test = the L of one entity is considered to have C-L relationships with any entites consider to be its alter egos Alter Ego = i there is such a unity of interest that the serparate personalities of the corporations no longer exist; AND ii inequitable results will follow if the corporate separateness is respected c. (3) Facts-&-Circumstances Test: the court must examine all the fact & circumstances to determine whether the entites in question are so closely related as to amount to one C Discotrade Ltd v. Wyeth-Ayerst Intrnl (2002): 2 corp share same board of directors; senior ofcers; president; computer network; email; travel dept; health benets & legal counsel > effectively this deems them a SINGLE ENTITY for CONFLICT REASONS (c) Single/Related Matter vs Unrelated Matters...L may be able to rep both adverse Current Cs in litigation depending on ISSUE of the cases i. IF Single / Related Matters...NO > L may NOT undertake rep that involves a claim against another current C in the SAME litigation or proceeding before a tribunal, EVEN if the Cs consent (MR 1.7(b)(3)) POLICY: a. (1) Duty of Loyalty...L cannot carry out the duty of loyalty owed to both Cs if in same matter; whatever L does for one harms the other b. (2) Undermines the Adversarial System...zealous rep on both sides is needed for the adversarial system to work properly; cannot be done if the same L is representing both Cs ii. IF Unrelated Matters...Only if both give INFORMED Consent in WRITING -> L may only undertake rep. that involves a claim that is adverse to another current C in UNRELATED matters if both Cs give informed consent in writing POLICY: a. Same reasons for disallowing rep in a single matter apply BUT, both are mitigated by the separate matters & informed consent to the point that the risk is allowed : (1) Impact on the duty of loyalty is decreased b/c different matters; AND (2) adverse representation in unrelated matters does not undermine the integrity of an adversarial presentation (d) Positional Conicts of Interest...additional conicts that adversity to current Cs i. Legal Positions = conicts when L takes a position on behalf of one C that is adverse to the interest of another GENERALLY: ok...L may take inconsistent legal positions in diff. tribunals at diff. times on behalf of diff. C - mere fact that an adverse precedent may result does not create a conict of interest a. EXCEPTION: if there is a SIGNIFICANT RISK that L's action in one case will MATERIALLY LIMIT the L's effectiveness in a diff. case, then L may NOT proceed w/o the informed consent of both Cs ii. C's w. Competing Economic Interests (taking 2 Cs w. competing interest...ex: Publix & Whole Foods)

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 GENERALLY: ok...as long as there is no ordinary conict of interest (unrelated matters; unrelated litigation) (e) CONSENT i. POLICY: when C should / should not be able to consent to a conict is based on a balance of C interests why should L EVER be able to UNDERTAKE such representation? a. Allowing L such promotes the interests of BOTH clients... C seeking services > right to Counsel of CHOICE C against whom L undertakes rep > duty of future LOYALTY of counsel b. NOT allowing such would place unreasonable limitations on the opportunities of both C & L why can't ALL conicts be subject to consent? a. only those situations where it would be impossible for a L to comply with the duty of loyalty to both C are not allowed are barred ii. Effective Consent: Fundamental Issue: does the C reasonably understand the material risks that the waiver entails? Informed...must ensure to fully explain all possible conicts & risks Prospective Waivers = waivers obtain at the time of engagement agreeing to give consent to FUTURE conicts a. Ethical BUT in limited use > mere fact that C gave consent is not conclusive to consent holding up Factors considered in whether consent will hold up in court: i Specicity > in using a prospective waiver, it being narrowly tailored is crucial to showing C understood the material risks (as opposed to General & Open-Ended) ii Experience of C > if C is an experienced user of legal services & is informed of the risk that a conict may arise iii Independent Legal Counsel > if C has own legal counsel that is advising in re to giving consent B. (2) Representation Against FORMER CLIENTs MR 1.9(a): L MAY undertake representation against a FORMER C, if... (i) if the current & former matters are NOT SUBSTANTIALLY RELATED (no consent from either C needed); OR (ii) if are substantially related, the former C gives INFORMED CONSENT, conrmed in WRITING i. POLICY: Rep against a former C is permissible, even w/o the CONSENT, if the matters are not substantially related b/c: (1) C's Right to Chose Counsel > a duty of ABSOLUTE loyalty to all former Cs would substantially limt the ability of other Cs to select counsel of their choice; presumption that public policy favors Cs choosing who rep. them (2) Deterrent of Small Claims > a Per Se prohibition on rep. against former C would deter Ls from taking on rep in relatively small matters (3) Increase of Legal Fees > Unless limitations est, L would owe former Cs a LIFETIME duty of LOYALTY, in turn substantially increasing legal fees b/c Ls would be forced to take into account future lost opportunity (4) Agency Law > L's are agents for their C; under agency law, after termination of employment an agent may not use condential info against the principal, BUT the agent is not prevented from competing w. the principal - analogizing lawyers to agents > this used to show that this is not the only time in life that this concept ii. Substantially Relationship Test (MR 1.9 Cmt 3) = (i) if the 2 matters involve the SAME transaction or legal dispute; OR (ii) if there otherwise is a substantial risk that condential factual info as would normally have been obtained in the prior representation would [STANDARD] materially advance the C's position in the subsequent matter To satisfy the test, ONLY have to show the two are substantially related; do NOT have to show harm - if NOT sub. related, L can undertake representation w/o ANY discussion w/ former C Irrebuttable PRESUMPTION = legal presumption that sensitive materials WERE disclosed by the former C AND that such materials WILL be used by the L against the former C for the current C, if applicable a. WHY...must be assumed to uphold the spirit of the rule > otherwise, the extent & subject of what was condential must be exposed, defeating the purpose of a duty of condentiality EXCEPTION: a. (1) if info in question has become generally known OR b. (2) the passage of time has made the info gained in the prior representation stale iii. Related ISSUES: (1) No Duty of Loyalty > fundamental justication of the substantial relationship test is protection of the former C's right to condentiality, and NOT on any duty of loyalty (for reasons discussed above) a. LIMITED Duty of Loyalty...L precluded from attacking work product L prepared for former C (2) "Playbook Info" > L's knowledge of a C's litigation strategy, approaches to negotiation, business practices or key personnel does NOT qualify to create a substantial relationship (MR 1.9 Cmt 3) (3) Potential Former Clients...is a preliminary consultation w. a C sufcient to invoke the former C disqualication rule? a. MR 1.18: Duties to Prospective Clients (b) L who is unengaged MAY NOT use or reveal condential info gained in consultation (c) L who conducted the consultation PERSONALLY invokes the former C disqualication rule; (d) [EXCEPTION to (c)] the L's rm is not disqualied if... i both the affected C & the prospective C have given informed consent, conrmed in writing; OR ii the L took reasonable steps to avoid being exposed to more condential info than was necessary to determine whether to represent the prospective C, AND the personally disqualied L is screened from any participation in the matter AND the prospective C is promptly given written notice about the matter C. (3) Imputation: L's disqualication = Firm's disqualication GENERAL RULE i. MR 1.10: Imputation of Conicts of Interest: General Rule - Former Cs & Imputation...If there is a 1.9 issue, then there is a 1.10 issue (a) [GENERAL RULE] While Ls are associated in a rm, none of them SHALL knowingly represent a C when any one of them practicing along would be prohibited from doing so by Rules 1.7 or 1.9, UNLESS - Imputation Rule = if new L at rm is disqualed b/c of 1.7 (CoI current) or 1.9 (CoI former), then the rest of the 23 rm cannot take the case either, w. exceptions *FL...same until 1.9, then "except as provdied elsewhere in these rules OR..."

(a) [GENERAL RULE] While Ls are associated in a rm, none of them SHALL knowingly represent a C when any one of them practicing along would be prohibited from doing so by Rules 1.7 or 1.9, UNLESS - Imputation Rule = if new L at rm is disqualed b/c of 1.7 (CoI current) or 1.9 (CoI former), then the rest of the rm cannot take the case either, w. exceptions *FL...same until 1.9, then "except as provdied elsewhere in these rules OR..." a. EXCEPTIONS: even if L is disqualied under 1.7 or 1.9, L's new rm may take the case if... (1) [Personal Belief] the prohibition is based upon a personal interest of the disqualied L & does not present a signicant risk of materially limiting the representation of the C by the remaining Ls in the rm; OR = when a L's strong feelings (political/personal belief), & no other Rule, disqualies him from a case, his strong feelings do not impute to the rest of the rm from taking the case b. (2) [Screening] the prohibition if based upon MR 1.9(a or b) & arises out of the disqualied L's association w. a prior rm & (i) the disqualied L is timely screened from any participation in the matter & is apportioned no part of the fee therefrom; (ii) WRITTEN NOTICE is promptly given to any affected former C to enabel the former C to ascertain compliance w. the provisions of this Rule, which SHALL include: - a description of the screening procedures employed; - a statement of the rm's & of the screened L's compliance w. these Rules; - a state that review MAY be available before a tribunal; AND - an agreement by the rm to respond promptly to any written inquiries or objections by former C about the screening procedures; AND (iii) certications of compliance w. these Rules & w. the screening procedures are provided to the former C by the screened L & by a partner of the rm, at reasonable intervals upon the former C's written request & upon termination of the screening procedures (b) [L's OLD FIRM] When a L has terminated an association w. a rm, the rm is not prohibited from thereafter representing a person w. interests materially adverse to those of a C represented by the formerly associated L & not currently represented by the rm, UNLESS = w. L goes his baggage > any of L's PREVIOUSLY imputed disqualication's on the rm are LIFTED, once the L leaves a. EXCEPTIONs: L's old rm CANNOT rep previously imputed C, if... (1) the matter is the same or substantially related to that in which the formerly associated L represented the C; AND b. (2) any L remaining in the rm has info protected by Rules 1.6 & 1.9(c) that is material to the matter (c) [WAIVER by C] A disqualication prescribed by this rules may be waived by the affected C under the conditions stated in Rule 1.7 (d) The disqualication of Ls associated in a rm w. former or current government Ls is governed by Rule 1.11 POLICY: imputation balances same police interest of disqualication due to current/former Cs > right of C to choose counsel & duty of loyalty i. Pros...Ls have access to rm les & mutual nancial interests > thus assumed any condential info one member of the rm has is accessible to other members of the rm ii. CONs...strict application of imputation principle would result in double disqualication (= rms disqualied from all OWN former Cs & all new L's former Cs) > an unsound public policy decision & highly DISFAVORED THUS, permit SCREENING > but only in the context of former Cs of laterally hired Ls from other private law ofces a. (1) risk of misuse of condential info is small b/c Ls of large rms generally are not directly privy to all condential info b. (2) would unfairly restrict the mobility of Ls between rms & unnecessarily limit C free choice of counsel Imputation By Situations & Solutions... i. (1) MOVED Lawyer re FORMER Cs - Disqualication governed by MR 1.9(b) - re L's handling of is disqualied from handling a matter involving an OLD FIRM C a. Results If NOT disqualied > L & rm can continue work on the case If L PERSONALLY disqualied > debatable re the new rms choices...Absolute Disqualication of rm OR Screening i Absolute Disqualication CONs: (1) Based on unreasonable assumption that the moved L would violate his ethical obligation to maintain condences (2) Unfairly penalizes Cs of the new rm who are deprived of counsel of their choice (3) Unfairly penalizes L seeking to change employment b/c new rms may be unwilling to risk disqualifying (4) Screening deemed appropriate in other situations ii Screening = the new rm is not disqualied, but instead personally disqualied L is kept from involvement in the matter *RECENT CHANGE: 2009 review rule allowed in MR Steps to take: ! (1) Appropriate measures to prevent disclosure of condential info BY disqualied L, such as: - DQ'd L should acknowledge her obligation not to disclose condential info; - L/staff working on matter should be informed & aware not to communicate w. affected L w. respect to the matter; - conrm situation in writing - physical / oral / mental separation > make sure all Ls know to keep clear of each other Scope of Information: anything specic to the C & learned FROM the C (if learned from diff source, may not apply) ! (2) Screeding measures instituted in TIMELY FASION ! (3) DQ'd L should receive NO PORTION of the FEE relating to the matter ! (4) Written notice given to the affected C Re Former PROSPECTIVE Cs...MR authorize broaders use of screening when a moved L obtained condential info a. If info signicantly harmful, L must be screened from participation b. If into NOT signciantly harmful, L can personally undertake representation against former prospective C ii. (2) MOVED NON-LAWYER Ee (MR) Screening appropriate to prevent disqualication of a rm when it hires a nonlawyer iii. (3) Re OLD FIRM & Moved C MR 1.10(b): Old Firm NOT disqualed from handling a matter against a former C when the matter was handled by a departed L a. UNLESS...(1) the current matter is substantially related to the prior representaiton AND (2) Some L still remaining w. the rm actually received material condential info regarding the former C

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UNLESS...(1) the current matter is substantially related to the prior representaiton AND (2) Some L still remaining w. the rm actually received material condential info regarding the former C D. (4) Advocate ! WITNESS in same trial MR 3.7: Lawyer as Witness i. (a) A L shall NOT act as advocate at a trial in which the L is likely to be a necessary witness UNLESS: (1) the testimony related to an uncontested issue (= no further evidence is needed to est; usually stipulated as true); (2) the testimony related to the nature & value of legal services rendered in the case; OR (3) disqualication of the L would work substantial hardship of the C - substantial hardship...requires balancing factors, but predominately refers to the extent & involvedness of CURRENT case at hand ii. (b) L1 MAY act as an advocate in a trial in which another L in L1's rm is likely to be called as a witness UNLESS precluded from doing so by Rule 1.7 or 1.9 (= conicts in interest) - Relief to (a) = 2nd L in rm can rep rm's C if 1st L has to testify, UNLESS there is a conict of interest w. a former/current C POLICY: very controversial rule re whether it should be implemented or not - justication for it: i. (1) Calls into question CREDIBILITY of the Witness > may confuse jury whether L is speaking as advocate or witness (neutral fact source) -> rule prevents prejudice to the interests of the tribunal & opposing party reects (a) of the rule > C cannot consent away CONFLICT b/c proctecting tribunal's interest are put above harm to the C ii. (2) Avoiding Harm to C...serving as both advocate & witness may create a conict of interest btw L & C reects (b) of the rule > C may consent where this is applicable b/c deals with SELF-HARM USE: where L is likely to be a necessary witness i. necessary = L is not disqualied from serving as an advocate if the L's testimony would be cumulative w. that of other witnesses ii. substantial hardship = broader interpretation than in the past by balancing various factors iii. no imputation of disqualication, unless a conict of interest presents itself E. (5) Multiple Representation: Plaintiffs in Tort Cases GOVERNING RULE: MR 1.7 (a)(2) & (b): Conicts of Interest btw Current Clients i. (a)(2) L SHALL NOT represent C if the rep involves a concurrent conict of interest. - concurrent conict of interest = if there is a signicant risk that the rep of one or more C will be materially limited by L's responsibilities to another C, a former C or a 3rdP or by a personal interest of L ii. (b) [EXCEPTIONs] In spite of the existence of a concurrent conict of interest under para(a), L may represent C if: (1) L reasonably believes that L will be able to provide competent & diligent rep to each affected C; [JURY Question] (2) the rep is not prohibited by law; (3) the rep does not inolve the assertion of a claim by one C against another C represented by L in the same litigation or other proceeding before a tribunal; AND (4) each affected C gives informed consent, conrmed in writing *VERY Important in Multiple Representations > must make sure C are aware of the possible effects on loyalty; condentiality; the A-C privilege; & the advantages & risks involved If DECIDING whether to represent Co-Parties in Tort Litigation.... i. IF...only a POSSIBLE Conict of Interest exists...multiple rep is PERMITTED, provided that both co-parties consent to the rep after the L fully discloses the advantages & risks involved ii. IF...an ACTUAL Conict of Interest exists...multiple representation is... if not engaged yet, NOT PERMITTED if engaged, L must WITHDRAWAL from representing both Cs a. L can only precede to can represent one of the parties POLICY re taking multiple representations i. Pros: (1) reduction of legal fees > NOT really...pro in crim cases, but in tort cases contingency fees are most likely charged - so price same for Cs either way; & actually better for L (can get multiple recoveries in one) (2) expense sharing > could be signicant; cost advantage is pretty certain (3) expediting of the case > dealing w. opposing sides & insurance co can be simplied if only one attorney on the plaintiff's side - most insurance companies would like to settle it at one time, rather than as a piece meal (4) honor C's right to choice their counsel > presumption that both Cs should have the right to choose their counsel ii. Cons: (1) during progess of the case a conict may arise, forcing L to withdrawl from representing both > causes longer case (2) aggregate settlement a. MR 1.8(g): [AGGREGATE Settlements] L who represents 2 or more Cs SHALL NOT participate in making an aggregate settlement of the claims of or against the Cs, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, UNLESS each C gives informed consent, in a writing signed by the C. L's disclosure SHALL include the existence & nature of all the claims or pleas involved & of the participation of each person in the settlement - aggregate settlement = a lump settlement...in order to accept, L MUST... (a) get both C's approval to ACCEPT; (b) get both C's agreement on HOW to SPLIT (no indication WHO sets the #, but some how must come to an agreement (c) ALL must be disclosed in WRITING (including how much each got), SIGNED by both Cs (3) impact of the A-C privilege > no A-C privlege exist btw joint Cs as to communications made by either C to the L should a dispute develop btw the joint Cs - communications made while 3P is present not privileged if 3P ever decides to get separate L F. (6) Insurance Defense Practice *unique area of law fraught w. peril, but some how it continues to work Triangular Relationship: Insured (INd) - Insurer (INr) - Defense Counsel i. (1) INsureD - INsureR: DUTIES: (Contractual Relationship)

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a. INR to IND: the standard liability policy agrees for a premium, the insurance company will: (a) duty to defend: defend any suit against the insured w/in the coverage of the policy regardless of the merit of the suit; AND (b) pay any judgment against the insured up to the applicable policy limit b. IND to INR: give right to control the defense, including ability to accept/reject any settlement & select counsel Main Conicting Issues: a. (i) Coverage disputes: when there is something that INR does not want to cover when INR almost always will NOT cover: i contractual limitations ii intentional torts iii punitive damages... [*WHY > matter of public policy; would defeat the purpose of by allowing the punishment to not effect those its intended for] b. (ii) Excess Claims: when P seeks damages that exceed the policy limits, BUT make a settlement offer that is w/in the policy limits notice should be given to the IND that an excess claim is being asked or offered, so aware if open to liability for the difference c. (iii) Settlement: standard liability policy allows INR to settle the case over the objections of the IND - other issues: (a) Bad Faith to Settle (INR doesn't really try to settle when could); (b) if one wants to settle & the other doesn't d. (iv) Litigation guidelines & audits: to control litigation costs, IRs have begun est. guidelines for defense counsel w. regard to handling cases & requires DC to provide info to independent auditors for their review ISSUE: (1) may interfere w. ability of DC to provide a competent defense to IND (directs DC how to do job or how to limit it) (2) bill audits interfere w. the A-C privilege > L must write down in bill all doing for C & provide to audit group, who does not have a right to view the condential info e. (v) Uninsured or underinsured motorist claims: some policies cover IND if other driver doesn't have or has too little insurance Issue: INR can end up defending both sides f. (vi) Counterclaims g. (vii) Fraud or collusion by the IND...NOT allowed; illegal colluding = circumstance under which people concede liability or conspire to get more $ from the rightfully owed from INR - happens a lot to INR > people tend to unload when believing an insurance co is paying - such a sensitive issue, cannot mention an insurance co is involved in trial or automatic mistrial > would skew the jury h. (viii) Multiple Insureds: when insurance co may have multiple insureds in a single matter the insureds may have conicting interests if their degrees of fault or amount of coverage differ i. (ix) Subrogation: policies typically provide that the INR is "subrogated" to the rights of the IND = if INR makes payments out to the IND for a damage, INR automatically gets IND's rights to sue the 3P to recover costs - conict may develop btw the IND & INR, IFf the IND also has claims against the 3P that are not covered by the policy ii. (2) Defense Counsel (DC) - Insurer (INeR) CONTROVERSIAL > blurs who should be able to call the shots in the case & who the duty of loyalty is owed to iii. (3) Defense Counsel (DC) - Insured (IND) Duty to Defend > while INeR picks the counsel, there is most certainly an A-C relationship w. the insured Main ISSUE: DCs protect the interests of the INeR over the INeD a. WHY: INeR repeat customers for DCs & pay the bill / INeD are there only once & do not pay the bill b. SOLUTIONS: Best SOLUTION: Retain Independent Counsel - INeD NEEDs to retain independant counsel, to look out for their own interests Modied Two-Client Model: DC treat as multiple representation (w. slight modication), treating both the INeD & the INeR as Cs i WHY Modify...many of the principles of mult. rep. do not apply > no discussion of risks; no informed consent; no withdrawal ii Condential Statements by INeD UNAWARE to INeR if evidence INeD is engaged in FRAUD or COLLUSION, DC should w/draw & possibly disclose info to INeR if evidence that est. a coverage defense, DC should continue rep w/o revealing the INeD's condeces to the INeR iii CONS: blurs the ethics obligations of the DC One-Client Model: DC represents only the INeD, w. the INeR being treated as a 3P payee i PRO: DC's ethical obligations are much clearer & fall in line with set standards ii CON: Ignores the fact that INeR-INeD relationship is based on a CONTRACT iii MR 1.8(f)[3P PAYERS]: A L SHALL NOT accept compensation for rep a C from one other than the C UNLESS: *indicates preference for 1C model > requires L-C relationship take precedent no matter who pays (1) C gives informed consent; (2) there is no interference w. L's independence of professional judgement or w. C-L relationship; AND = DUTY of L to always in the in interest of their CLIENT, not the PAYER (3) info relating to rep of a C is protected as required by Rule 1.6 = 1.6 trumps PAYER's interest > payer cannot interject themselves in C-L relationship G. (7) Diminished Capacity vs Criminal i. criminal...usually regards competency to stand trial or insanity - Constitutional REQUIREMENT D be competent to stand trial ii. civil...many domestic cases (custody of minor children; abuse & neglect cases; C w. dementia) NO Constitutional requirement or deferral of the trial until a party is competent to stand trial usual solution: guardian ad litem...if a party is incompetent, the court may appoint a guardian ad litem to protect its interests GENERAL RULE: MR 1.14: Client w. Diminished Capacity i. (a) [NORMAL Relationship] When C's capcity to make adequately considered decisions in connection w. a rep is diminished, whether b/c of minoirty, mental impairment or for some other reason, L SHALL, as far as reasonably possible, maintain a normal C-L relationship w. C = DUTY to Maintain NORMAL RELATIONSHIP...L must maintain, as close as possible, a normal relationship (i.e. same as others) w. a C of diminished capacity ii. (b) [WHEN can get HELP] When L reasonably believes that C has diminished capcity, is at risk of substantial physical, nancial or other harm unless action is taken & cannot adequately act in C's own interest, L MAY take reasonably necessary protective action, including consulting w. individuals or entites that have the ability to take action to protect C &, in appropriate cases, seeking the appointment of a 26 guardian ad litem, conservator or guardian - if L REASONABLE BELIEVES... (1) C has diminished capacity + (2) such capacity puts the C at risk of SUBSTANTIAL HARM + (3) C cannot act in own interest

(b) [WHEN can get HELP] When L reasonably believes that C has diminished capcity, is at risk of substantial physical, nancial or other harm unless action is taken & cannot adequately act in C's own interest, L MAY take reasonably necessary protective action, including consulting w. individuals or entites that have the ability to take action to protect C &, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian - if L REASONABLE BELIEVES... (1) C has diminished capacity + (2) such capacity puts the C at risk of SUBSTANTIAL HARM + (3) C cannot act in own interest = L MAY get help to protect C, but is LIMITED to only the extent necessary to protect C including revealing MR1.6 info - ex. of substantial harm...C cannot respond to L's questions or help w. his defense iii. (c) Info relating to the rep of a C w. diminished capacity is protected by MR 1.6. When taking protective action pursuant to para(b), L is impliedly authorized under Rule 1.6(a) to reveal info about C, but only to the extent reasonably necessary to protect C's interests = 1.14(b) trumps 1.6, BUT only to the extent necessary to get C help 4 Potential (Court Appointed) Roles of a L in re to C w. Diminished Capacity in Domestic Cases i. (1) Guardian ad Litem...if a court appoints a L to serve as a guardian, his role is no longer a legal capacity BUT to determine what is in the best interest of the ward & to report those ndings to the court ii. (2) L reps the Guardian ad Litem in Court...if a court appoints both a guardian & a L for the guardian, this claries the L's responsibilities L acting in a legal capacity as Guardian's L, but ALL recommendations affecting the Ward should be left to the guardian a. HOWEVER, if there is misconduct by Guardian, L might have to circumvent Guardian to protect the interests of the ward iii. (3) Attorney for the WARD, Attorney for the Guardian & a Guardian ad Litem court may appoint 3 representatives > Likely WHY...if the ward strongly disagrees w. the guardian's recommendations Ward L's Role: advocate position of Ward, EVEN IF disagrees w. it, so the court can deicde btw the guardian's recommendation & the Ward's desires iv. (4) Attorney for C W/O Guardian ad Litem Most Difcult Position = L is not authorized to make recommendations on the C's behalf, BUT C is also not fully competent to make decisions for himself POLICY: a. PROs...(1) Dif. degrees of impairment > from mild to incapacitating; many can still participate in decisions affectiong their lives (2) Normative...C still is entitled to exercise personal liberty to the maximum extent possible *BIG CON of appointing a guardian ad litem > such deprives the C of a substantial degree of personal liberty b. CON...Risk of substnatial harm to the C b/c of inability to make decisions regarding his representation Attorney's DUTY (MR 1.14(a)): L should maintain a normal C-L relationship w. an impaired C to the maximum extent possible - i.e., L must communication info to C & assist C in making deicisions a. L's Options: if take action, must take one that balances...the least restriction on C's autonomy AND will adequately protect C in rep Seek appointment of a general guardian for the C's property or a Guardian ad Litem Consult w. family members (1.14(b)) Using a reconsideration person to permit claricaiton or improvement of circumstances Limitations on Zealous Representation - POLICY: there are societal interests in placing limitations on how far L can take his zealousness in representing C (1) tribunal EFFICIENCY & RESPECTABILITY > served best by removing time-wasting & costly-to-police high jinks at their source (2) ensuring process IS & IS PERCEIVED to be EVEN-HANDED & fair > a fair system is more likely to ensure litigations w. the more meritorious claims & defenses will prevail & NOT those represented by Ls who stray beyond the bounds of law A. Bringing ACTIONs (1) Frivolous Claims *the concept of frivolous applies to all things in legal proceedings > causes; complaints, answers, motions, etc i. DELAYs MR 3.2: Expediting Litigation = L SHALL make reasonable efforts to expedite litigation consistent w. the interests of the C = if L needs delay, must give a REASON that is (i) Legitimate & (ii) consistent w. the C's interest (can't be to force settlement) - expediting litigation might not always be in the interest of L's C (why delay...forcing to settle; value of claim for death vs injury) ii. Causes of ACTIONs & MOTIONs GENERAL RULE: MR 3.1: Meritorious Claims & Contentions a. [NO Frivolous Claims Rule] L SHALL not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law & fact for doing so that is not frivolous, which includes a good faith argument for an extension, modication or reversal of existing law. [EXCEPTION] L for the D in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. (1) = DUTY not to engage in frivolous legal proceedings - frivolous = argument either (i) has a basis in LAW and FACT or (2) L is able to make a GOOD FAITH ARGUMENT - GFA (objective standard)...asks whether a reasonable L would agree a legitimate argument can be made (2) = EXCEPTION: criminal defense proceedings > reects the D's constitutional right to a presumption of innocence - DC can force the state to jump through EVERY hoop to prove their case against the DEFENDANT, WHY: Pr must overcome the 100% presumption of innocence b. Denition of FRIVOLOUS...no exact denition but 3.1 Cmt 2 gives guidance Frivolous ! (1) if claim re ects facts that have not been fully developed or L expects to develop more during discovery (2) if L believes the action will ultimately LOSE > only must believe making a GFA iii. Federal Rule 11 of Civil Procedure POLICY: meant to eliminate the "empty-head pure-heart" justication for a frivolous argument a. bulk of litigation re frivolous law suits developed from this > provides a MONETARY SANCTIONS for V to frivolous proceedings b. many states model anti-frivolous state of this rule (FL 57.105) 4 Specic Obligations of Lawyers: a. STANDARD: Objective > to the best of the L's knowledge, info & belief, formed after an inquiry reasonable under the circumstances (1) Doc not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation

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(1) Doc not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation (2) LEGAL CONTENTIONs are warranted by existing law or by a nonfrivolous argument for extending, modifying or reversing existing law or for est. new law [*same as MR 3.1] (3) The FACTUAL CONTENTIONS have evidentiary support or, if specically so identied, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery [= must have a factual basis to support the #2, even if do not have NOW but believe will AFTER DISCOVERY] (4) The denials of factual contentions are warranted on the evidence or, if specically so identied, are reasonably based on belief or a lack of info b. *1993 Amendments: BIG changes... (1) 21 Day Notice to Correct Any Violation > rule sanctions can't be imposed until party has been served a notice to x issue (2) Sanctions must be IMPUTED to rm as well (unless exceptional circumstances) > L's rm should take responsibility (3) De-emphasized the monetary awards & authorized court-issued sanctions (non-monetary) to deter misconduct - WHY...purpose is to DETER, not raise $; allows courts to be specic about what did wrong so can be avoided in the future (4) Sanctions discretionary w. the court (5) The rule requires specicity in court order imposing sanctions (2) Communication w. Non-Cs...re a Ls contact w. people, not his C, involved in a suit if REPRESENTED...bar on communication / if NOT represented...allowed to communicate w. strict limits i. Rule re Represented Persons POLICY: Protects the integrity of the A-C relationship from interference by a L representing another person in the matter MR 4.2: Communication w. Person Represented by Counsel a. [No Contact Rule] In rep. a C, a L SHALL NOT communicate about the subject of the rep. w. a person the L KNOWs to be represented by another L in the matter, UNLESS the L has the consent of the other L or is authorized to do so by law or a court order = Bar on L contact w. another L's CLIENT EXCEPTIONS: communications authorized by LAW (ex: court order) OR C's attorney applies only to L's, NOT Cs > 2 Cs could get together & speak emergency ii. Rule re Unrepresented Persons MR 4.3: Dealing w. Unrepresented Person a. In dealing on behalf of a C w. a person who is NOT represented by counsel, a L SHALL NOT state or imply that the L is disinterested. When the L knows or reasonably should know that the unrepresented person misunderstands the L's role in the matter, the L SHALL make reasonable efforts to correct the misunderstanding. L SHALL NOT give legal advice to an unrepresented person, other than the advice to secure counsel, if L knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conict w. the interests of the C 3 Obligations of L = (1) L cannot misrepresent or mislead a person re their position (MUST reveal have a dog in the ght) (2) L cannot give legal advice to person EXCEPT to seek independent counsel (3) if person MISUNDERSTANDS the L's role, L MUST make reasonable efforts to correct misunderstanding EX of Use...Divorce; Car accident w. 2 passengers iii. USE: re Investigation Contacts...informal interviews of pertinent people to C's case a. POLICY: a L's ethical duties towards persons represented by legal counsel (no-contact) &/or those NOT represented by counsel, can run counter-intuitive to L's legal obligation to investigate the facts of a case before ling suit to determine the action's merit b. SCOPE: use of above rules in investigating a C's case Pre-Suit Investigation: P's Counsel may engage in investigation prior to ling suit so long as they do not have ACTUAL KNOWLEDGE that the person is actually represented by counsel AT THAT TIME - investigation can be undertaken before suit led, EVEN though it is EXPECTED Er/Ee may obtain counsel at a future time Mid-Case: applies even if...(1) represented person INITIATES or CONSENTs to the communication (2) ALL legal stages (prior; during; transactional) re Governmental Ee: people have a constitutional right to communicate w. the government, thus governmental Ee may be required to communicate w. opposing counsel if done on behalf of a C who is exercising a constitutional right to communicate w. the gov re Corporate Entity's Ee (where the Corporation is represented): i 3 Approaches to look at the Scope of the No Contact Rule (Rep People) re Corporate Ees (1) BROAD: Blanket Preclusion...L can speak to NONE of the entity's Ee - pro...clear rule / con...closes off too many necessary aves of informal discovery of info, slowing down process (2) NARROW: Control Group...L can ONLY not speak to senior management - con...too limited > overlooks the fact that corporate Ee, other than senior mgmt can bind the corporation (3) MEDIUM: Alter Ego Test = control group + Ee involved in the situation that CAUSED this litigation, - BUT L can speak to those Ee that were only witnesses to the incident ! policy...allows the opposing L to be responsible in making a case & nding the truth, while protecting the entity too why not just use deposition?...L can depose ANYONE post-sanctions beginning, costs too big a deterrent -> much more cost effective to allow informal interviews rst & decide if need to depose ! suggested followed by Model Rules under MR 4.2 COMMENT 7 ! COPPOCK...AVOID current Ee > can speak in some circumstances, but best just to avoid re Silencing OWN Ee i MR 3.4: Fairness to Opposing Party & Counsel: (f) [L SHALL NOT] request a person other than a C to refrain from voluntarily giving relevant info to another party ! UNLESS.... (1) the person is a relative or an Ee or other agent of a C; AND = if C has some kind of association w. 3P, then L can ask them to please refrain

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! (2) L reasonably believes that the person's interests will NOT be adversely affected by refraining from giving such info re Former Ee: consent from former employment's L is NOT required, BUT L still must... (1) NOT use methods of obtaining evidence that violate the legal rights of the org (2) follow rules re UNREPRESENTED parties...make sure Ee is aware of L's purpose, who L represents & NOT give advice i MR 4.4(a): In rep a C, a L SHALL NOT...use methods obtaining evidence that violate the legal rights of such a person ii MR 4.3: Deal w. UNREPRESENTED Parties re Settlement Offers: L's may NOT directly communicate settlement offers to the opposing party, even if L believes Opposing Counsel has not conveyed the settlement offer made a. ALTERNATIVE OPTIONS if believe counsel has not communicated settlment offer to C: (1) Serve an "Offer of Judgment", if authorized by rules of civil procedure (2) File a copy of the settlement offer w. the court (3) Advise own C of his right to convey a settlement offer DIRECTLY to the opposing party re Expert Witnesses: PROHIBITED w/o opposing counsel's consent - specic limitations under discovery rules prohibits informally interviewing an opposing party's expert w/o consent from opposing counsel re Treating Physicians: jurisdictions are divided evenly on whether DC may informally interview an Injured Party's treating physician a. if ruled IMPROPER...courts emphasize the physican-patient privilege b. if rule PROPER...patients waived condentiality by bringing the lawsuit & thereby putting his physical condition in issue (3) Secret Tape Recording i. OK if...LAWFUL recording for legitimate purposes w/o the consent of the other person does - states differ on when a recording is lawful > some require both parties consent, while some require on one party MR 4.4(a): In rep a C, a L SHALL NOT...use methods obtaining evidence that violate the legal rights of such a person ii. L advising C re Secret Recording L may advise C, if C asks, about the LEGALITY of taping activity; - if illegal for L to secretly record, BUT LEGAL for C > L need not discourage the recording but he also may not assist, direct or participate in it in any way; WHY...effectively he would be using the C as a vehicle to do what he cannot do iii. MR 8.4: Misconduct It is professional misconduct for a L to: a. (a) violate or attempt to violate the RPC, knowingly assist or induce another to do so, or do so through the acts of another; - re L or L's agent only > does not re L's advice to a C - (a) covers (b)-(f) > the rest are not permitted under the RPC, which (a) says cannot vioalte b. (b) commit a criminal act that reects adversely on the L's honesty, trustworthiness or tness as a L in other respects; [*ex. crime that does NOT reect badly in honesty, etc. > trafc crimes] c. (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; d. (d) engage in conduct that is prejudicial to the administration of justice; e. (e) state or imply an ability to inuence improperly a gov agency or ofcial or to achieve results by means that violate the RPC or other law; OR [ex: L telling C he knows a judge well & not to worry] f. (f) knowingly assist a judge or judicial ofcer in conduct that is a violation of applicable rules of judicial conduct or other law

(4) Discovery: i. 3 Discovery Tools Use: Interrogatories...questions sent by opposing party, to which a party must answer in a sworn statement (can be used to impeach) Requests to Produce (i.e., Document Production) Depositions ii. GENERAL RULE re: MR 3.4: Fairness to Opposing Party & Counsel A L SHALL NOT: a. (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A L SHALL NOT counsel or assist another person to do any such act = no OBSTRUCT or DESTROY evidence > unethical & illegal...ex: modication of doc b. (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; c. (c) knowingly disobey an obligation under the rules of a tribunal, EXCEPT for an open refusal based on an assertion that no valid obligation exists; d. (d) [re Discovery] in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply w. a legally proper discovery request by an opposing party - re unethical discovery = overly burdensome & unreasonable discovery requests or delays (i.e., trying to stall) - may only ask for what you NEED & only what you need > avoid wasting time e. (e) [re L's SPEECH in trial - 3 Limitations:] in trial, allude to any matter... [1] that the L does not reasonably believe is relevant or that will not be supported by admissible evidence, - happens often in opening statements, if L believes evidence will be admitted but isn't > results in MISTRIAL - opening statement signicant > if when jury then, likely win the case; thus VITAL not to misstate then [2] assert personal knowledge of facts in issue EXCEPT when testifying as a witness, OR - L always knows things the jury does not; juries may ONLY based nding on admissible evidence [3] state a personal opinion as to the justness of a cause, the credibility of a witness, (end of civil case) the culpability of a civil litigant or (end of crim case) the guilty or innocence of an accused; OR f. (f) SEE ABOVE - re asking 3P to refrain from speaking iii. Discovery Abuse = behavior motivated by goals other than the exchange of info fairly related to the issues in dispute - rare, but most frequent occurrence...high-stakes, high-conict cases GENERALLY 2 Catagories: a. (1) Propounding unnecessarily broad discovery requests; AND b. (2) W/holding info from the propounding party to which that party is entitled

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 Courts SANCTIONS: a. (1) nes against the offending L b. (2) permission for the opposing party to engage in liberal cross-examination of witnesses on issues related to the abuse c. (3) striking afrmative defenses > court prevention of D's ability to use some afrmative defenses if do not comply w. discovery d. (4) exclusion of evidence > court may KEEP D/P from allowing in certain evidence if do not produce at time of discovery e. (5) disqualication of counsel who engaged in discovery abuse f. (6) dismissal of the action (extreme cases) g. (7) response to spoliation (= tampering or concealing relevant evidence) (a) adverse inference instruction = court shifts the burden to offending party to DISPROVE what the "spoiled" record should have shown (EX: doctored medical records...spoiler must show the V was NOT given negligent care) *BIG...hard to prove a negative (b) tort liability h. (8) jury instructions indicating the NON-BIAS nature of the non-producing party EX: absence of a requested doc can be brought into evidence, allowing the P to argue & jury to infer that D is hiding something re Depositions Discovery Abuse a. Coaching...illegally swaying or attempting to have a witness testify in a way they would not have on their own Proper Witness Preparation i MR...provides little guidance on what is/is not proper, BUT Ls generally have substantial leeway in preparing a witness to testify as long as L does NOT attempt to have a witness testify falsely ii Restatements: in preparaing the witness, L properly MAY... (1) invite the witness to provide truthful testimony favorable to the L's C (can suggest things he is looking for) (2) discuss W's role & effective courtroom demeanor (3) discuss W's recollection & probable testimony (4) discussing the applicability of law to events in issue (ex: law recognizes V's activity level before & after an accident) (5) review the factual context into which the W's observations or opinions will t (6) review docs or other physical evidence that may be introduced (7) discuss probable lines of hostile cross-examination that the W should be prepared to meet - hostile cross = what opposing L might ask to negate W's testimony; tell W that the cross is going to come after you (8) suggest choice of words that might be employed to make the W's meaning more clear (9) L MAY NOT ASSIT THE WITNESS TO TESTIFY FALSELY AS TO A MATERIAL FACT (10) reveal to W other testimony or evidence that WILL be presented & asking W to reconsider their recollection or recounting of events in the light of that evidence ! QUESTIONABLE ETHICAL...normally, a W is kept from knowing what other Ws WILL testify to, in order to prevent it from swaying their testimony (= the sequester rule) coppock things it feels a little funny > rest are good guidance; this one is off b. Guidelines for Conducting Depositions (Hall v. Clifton Precision) (1) Deposee (DE) should ask all QUESTIONS of Deposer (DR), NOT anyone else including DE's lawyer (2) Objections need not & shall not be made during the course of depositions i EXCEPTION: (main) privileged info OR to any irregularity about the deposition itself objection of relevance - zero effect > noted in record & then forced to ask; *can stop depo & go to judge to get ruling, but bad idea > very costly for L acting badly (has to pay to re-set up) (3) Counsel SHALL not make objections or statements which might suggest an answer to a DE -> anything other than "objection to form" might give an answer to the question; must be careful (5) Counsel & their W-Clients SHALL NOT engage in private, off-the-record conferences during depositions or during breaks or recesses, EXCEPT for the purpose of deciding whether to assert a privilege (6) Any violation of (5) is a proper subject for inquiry by DR to ascertain whether there was any coaching &, if so, what (7) Any violation of (5) may be put on the record (8) DR must give Witness' counsel all documents that are shown to the W during the deposition - MUST give doc, but do not have to talk about it; DE & Counsel may NOT discuss doc privately beforehand c. Techniques for Dealing w. Discovery Abuse FORMAL RESPONSES i Motion for Sanctions > issues...(i) difcult to obtain judicial time & judges likely impatient w. discovery spats (ii) courts usually unwilling to impose harsh sanctions on L except in extreme cases ii Court Issued Order Dening the Scope of Discovery OR Appoint Special Masters to oversee Discovery & resolve disputes INFORMAL RESPONSES i Mutual Agreement of Counsel** - coppock...ineffective; if person going to be a butt, remonstrating w. them will not help ii Use of Bar Association's Committees to deal w. Discovery Disputes iii Responding in Kind > very uneffective & forces L to engage in misconduct iv Use discovery abuse against opposing party > unreasonable responses may be used in cross to undermine credibility B. Alternative Dispute Resolution (1) Negotiation i. 2 Catagories of Ethical Issues: HONESTY a. MR 4.1: Truthfulness in Statements to Others = In the course of rep a C a L SHALL NOT knowingly: (a) make a false statement of material fact or law to a 3P; OR (b) fail to disclose a material fact to a 3P when disclosure is necessary to avoid assisting a criminal or fraudulent act by a C, UNLESS disclosure is prohibited by Rule 1.6 2 DUTIES: (1) Duty NOT to engage in MISREPRESENTATION re material facts 30 - includes both...(1) overt statements AND (2) material omissions (2) LIMITED Duty to DISCLOSE, EXCEPT 1.6 trumps 4.1

(b) fail to disclose a material fact to a 3P when disclosure is necessary to avoid assisting a criminal or fraudulent act by a C, UNLESS disclosure is prohibited by Rule 1.6 2 DUTIES: (1) Duty NOT to engage in MISREPRESENTATION re material facts - includes both...(1) overt statements AND (2) material omissions (2) LIMITED Duty to DISCLOSE, EXCEPT 1.6 trumps 4.1 i Possible REMEDY if Misrepresent or don't Disclose > court may VACATE the settlement b. re MISREPRESENTATIONs Improper vs Proper Misrepresentations i Improper...afrmative false statement about the MATERIAL facts; qualifying... (1) testimony of a witness; (2) existence or contents of a document; (3) the effect of provisions of an agreement; (4) about procedural aspects of the case (5) insurance coverage ii Proper Misrepresentations... L's OPINIONS, including strength of their case or favorable interpretations of the law Settlement Authority > MR 4.1 Cmt 2 suggests L may make misreps about a party's intentions re settlement acceptability ! **Coppock > may be ethically acceptable, BUT important not to misrep anything during negotiations b/c the price to your reputation later is TOO great; ways to be as effective w/o misrepresenting False Demands = contention requested in negotiations not b/c P truly wants the demand but b/c this false demand can be used as a bargaining chip to improve the overall settlement c. re Duty to DISCLOSE...additional duty to disclose MISTAKE of fundamental information (1) Corrective Disclosure = correcting a rep L made, that later learned was false when made OR has since become false (2) Fundamental Mistake re Contents of a Writing...L has a duty to disclose the mistake to the other party (3) Fiduciary Duty to the Opposing Party...RARE, but can exist w. unrepresented party > disclose material info in negotiation (4) Good Faith & Fair Dealing...necessary disclosure to correct mistakes by the other party about basic aspects of the transaction - EX: where C has died; mistakes re AMOUNT of insurance coverage & recantation of testimony by a signicant witness FAIRNESS: NO duty or general obligation of fairness in negotiations a. WHY... (1) no objective standard for fairness to use to determine if an agreement was fair (2) component of fairness in other rules > rules already impose a substantial obligation of fairness, by prohibiting L from lying / cheating / stealing; fairness rule not needed (3) inconsistent w. the adversarial system > the system judges fairness by the PROCESS & not the outcome - neither counsel has a duciary duty towards the opposing side > inconsistent w. being a zealous advocate - BUT, since no standard to judge a fair outcome by, the process is what ensures us all parties get a fair trial ii. Limitations on Negotiation Tactics: (1) IMPROPER THREATs a. Threats of Criminal Prosecution > MRs do not directly ban such threats when improper b/c believe: (1) it's REDUNDANT...such behavior is covered by other rules if INCORRECT - MR 8.4(b) > L's conduct violates if amounts to extortion or compounds a crime *could threaten to le criminal charge IF have founded ability to, but a misstatement of ability could be extortion - MR 4.4 > proibits a L from using means that have no substantial purpose other than to embarrass, delay or burden a 3P - MR 4.1 > duty on L to be truthful - MR 3.1 > prohibits an advocate from asserting frivolous claims (2) If NOT covered by the rules, then likely a proper threat of criminal prosecution that L should be allowed to use to protect C's legitimate interests (2) Ban on Restrictions of RIGHT to PRACTICE...can NOT prevent L from taking future cases concerning the same subject matter policy...strong presumption in favor of C's right to freely choose their counsel a. MR 5.6: Restrictions on Right to Practice: (b) L SHALL NOT participate in offering or making an agreement in which a restriction on the L's right to practice is part of the settlement of a C controversy - per se ban on settlements including agreement L will NOT sue opposing party again in the future BUT, more narrower restrictions may be allowed: D could probably... i require P's counsel to agree not to disclose the terms of the settlement ii require P's counsel to turn over any discovery material produced during litigation C. Delivery of Legal Services (1) Advertising & Solicitation i. Model Rules: 7.1 - 7.5 regulate the communication & advertising of legal services MR 7.1: re ALL communication > prohibits false & misleading in communication, regardless of form = L can't lie in advertising MR 7.2: re Advertising (= communicating directly to the public at large) a. (a) [OK Methods of Advertising] Subject to the requirements of 7.1 & 7.3, a L MAY advertise services through written, recorded or electronic communication, including public media b. (b) L SHALL NOT give anything of value to a person for recommending the L's services EXCEPT that a L MAY = no bird dog fees > can't pay money or give anything of value for referrals EXCEPT for the following... (1) [Pay for Ad] pay the reasonable costs of advertisements or communications permitted by this Rule; (2) [Pay for 1-800-Ask-Gary Charges] pay the usual charges of a legal services plan or a not-for-prot or qualied L referral service. A qualied L referral service is a L referral service that has been approved by an appropriate regulatory authority;

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 (3) [Purchase Law Firm] pay for a law practice in accordance w. 1.17; AND (4) [Reciprocal Referral Agreement] refer Cs to another L or a NonL professional pursuant to an agreement not otherwise prohibited under these Rules that provdies for the other person to refer C or customers to the L, if i (i) the reciprocal referral agreement is not exclusive, AND ii (ii) the C is informed to the existence & nature of the agreement c. (c) Any communication made pursuant to this rule SHALL include the name & ofce address of at least one lawyer or law rm responsible for its content MR 7.3: Direct Contact w. Prospective Clients re Solicitation (= communication directed to specic people) - 2 Types: (a) & (b) re soliciation involing person contact / (c) re direct mail solicitation a. (a) L SHALL NOT by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective C when a signicant motice for the L's doing so is the L's pecuniary gain, UNLESS the person contacted: = if for MONETARY GAINS, ban on aggressive in-person / real time solicitation tactics - EXCEPT of another L / family / close person or prior professional relationship w. L (1) is a L; OR (2) has a family, close personal, or prior professional relationship w. the L b. (b) L SHALL NOT solicit professional employment from a prospective C by written, recorded or electronic communication or by inperson, telephone or real-time electronic contact even when not otherwise prohibited by para(a), if: = EVEN if ok to contact under (a), cannot if (1) & (2) applies (1) the prospective C has made known to the L a desire not to be solicited by the L; OR (2) the solicitation involves coercion, duress or harassment c. (c) Every written, recorded or electronic communication from a L soliciting professional employment from a prospective C known to be in need of legal services in a particular matter SHALL include the works "Advertising Material" on the outside envelope, if any, & at the beginning & ending of any recorded or electronic communication, UNLESS the recipient of the communication is a person specied in paragraphs (a)(1) & (a)(2) = (re Direct Mail) any advertising must be crystal clear of what it is d. (d) [Legal Service Plans OK] In spite of the prohibitions in para(a), L MAY participate w. a prepaid or group legal service plan operated by an organization not owned or directed by the L 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 MR 7.4: Communication of Fields of Practice & Specialization MR 7.5: Firm Names & Letterheads ii. Basic Constitutional Priciples Governing Lawyer ADVERTISING a. Start: Ban on Commercial advertising or solicitation as being unprofessional b. Evolving: States may NOT ban L advertising, but they may regulate it Bates v. AZ State Bar: 2 Ls advertised their "legal clinic" where they offered legal services at modest fees to low income HOLDING: Commercial speech serves a social interest (letting public know whats available) & should not be banned i Ls may advertise, BUT there are limitations that the State may regulate... (1) false, deceptive or misleading advertising (2) in-person solicitation (3) warnings or supplementations might be required to prevent consumers from being misled (4) reasonable "time, place & manner" restrictions (to keep professional - i.e., delayed mail) (5) advertising concerning illegal transactions could be prohibited (6) electronic broadcast media warrants special consideration Governing IN-PERSON SOLICITATION a. (1) States MAY adopt per se bans on in-person commercial solicitation Ohralik v. Ohio Bar: (Seminol case) should In person soliciation be treated the same as advertising? i In-person Solicitation vs Advertising: IP Solicitation diff. b/c CONDUCT + SPEECH Conduct could involve fraud, intimidation, undue inuence > THUS state can use greater restrictions to regulate b. (2) Such a ban only applies to L ADERVERTISING, not all commercial Edeneld v. Fane: Does Ohralik apply to CPAs? NO; L differ from CPAs b/c: i Unlike L, CPAs are not trained in the art of persuasion > a L's job is to persuad ii A CPA's typical is far less susceptible to manipulation than the young accident victim in Ohralik iii However, Edeneld approach might be used for Ls if Ls ONLY solicited sophisticated C rather than those like in Ohralike iii. Further Application & Development of Constitutional Principles TARGETED Advertising > should be regulated as regular advertising a. Zauderer: is targeted advertising similar to in person solicitation? NO, why... Same concerns w. Soliciation are not here > L is NOT present, thus possibility of overreaching not present Does not "stir up litigation" b/c cannot endorse the proposition that a lawsuit, as such, is an evil Fact it might be hard to regulate is unpersuasive justication for prohibiting free speech DIRECT MAIL Advertising > some regulation ok if justied w. a state interest a. Florida Bar v. Went for It: is time moritorium on direct mail advertising constitutional? YES... Central Hudson Test: gov may freely regulate commercial speech that concerns unlawful activity or is misleading - if neither of those (which direct mail ad is not), the it MAY only be regulated if the following 3 satised: i Gov MUST assert a substantial interest in support of its regulation ii Gov must demonstrate that the restriction ADVANCES the state interest iii Regulation must be NARROWLY TAILORED to achieve the state interest HERE: 30 wait time on direct mail communication to wrongful death & person injury cases SATISFIES ABOVE ***NOT ON TEST > re constitutional law

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 INTERNET Marketing: generally, rules governing advertising & solicitation apply to internet communications a. re Advertising MR 7.2(a): L may advertise their services through electronic communications, subject to the restrictions of MR 7.1 & 7.3 i = law rm web pages & other internet communications must not be FALSE or MISLEADING in violation of MR 7.1 b. re Solicitation: MR 7.3(a)...any REAL-TIME communication (i.e., chat rooms) is subject to solicitation laws c. BIG ISSUE: web accessibility to L's webpage & other advertising from OUTSIDE the jurisdiction in which L practices Unauthorized practice of law & rules from jurisdiction advertising in MAY APPLY FIX: L SHOULD indicate the geographical limitations on their practice to avoid misleading (2) Restrictions on the Unauthorized Practice of Law - History: NonL have not always been prohibited from practicing law > developed in 1930s (great depression) for job security i. POLICY: does broad restirctions on the unauthorized practice of law serve the public interest? Pro Reg = PROTECTION of the public > legal services are complex Con Reg = not all legal services are THAT complex & low income individuals need for legal services is VASTLY unmet a. **COPPOCK: there are times to go after people (if threat to public) & there are times not too (helping another out) No Threat...individual person, helping someone > not a threat; not likely to do it again Threat...crosses the line when person starts to COUNSEL or does it REPEATEDLY > hard line to decipher i EX: A shows B a form needed to le a motion > NOT counsel; A telling B what to put on the form IS counsel ii. 4 Approaches to to REGULATING: (1) Dene Narrowly > practice of law includes only appearances before courts of record; thus NonLs would be allowed to provide legal services in transactional or administrative matters but could not hold themselves out as Ls (2) Dene Broadly > practice of law includes appearances before court & admin bodies, preparation of documents, legal advice & negotiation, BUT develop a list of speic exceptions (3) Case-by-Case Basis > allow denitions & exceptions to the unauthorized practice doctrine to develope as they come up (4) Procedure to petition the Supreme Court > can get allowance to do unauthorized practice in ADVANCE by the court by showing that the benets to the public from the exception are likely to exceed the costs iii. Ways to ENFORCE: (1) Courts > hold that they have the inherent power to determine who is admitted to practice law (2) State Law > maj of legislatures have enacted statutes making the unauthorized practice of law a crime (3) MR 5.5(a): Unauthorized Practice of Law & Multi-jurisdictional Practice of Law a. (a) [INDIRECT Prohibition] L 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 > indirectly prohibits the unauthorized practice of law b. (b): 2 General Rules: re Ls NOT admitted to practice in a jurisdiction (1) Shall NOT: est. an ofce or have systematic & continuous presence in the jurisdiction for the practice of law (2) Shall NOT: hold out to the public or rep. that the L is admitted to practice in the jurisdiction c. (c) 4 Exceptions: Allows Ls out-of-jurisdiction to provide services on a temporary basis (1) in association w. a L who is admitted in the jurisdiction (2) in connection w. a proceeding in which the L reasonably anticipates to be admitted pro hac vice (3) in connection w. an ADR proceeding for which the jurisdiction does not require pro hac vice admission (4) arise out of or are reasonably related ot the L's practice in a jurisdiction in which the L is admitted to practice d. (d) EXCEPTIONs to (b) > 2 Situations in which a L not admitted in the jurisdiction may have an ofce or continuous presence (1) typical in-house counsel who provides legal services ot an org. or its afliates (2) to provide legal services in the jurisdiction when permitted by federal law or by other law of the jurisdiction (3) Delivery of Legal Services to Indigents in Civil Cases i. Pro Bono: means of delivery legal services in civil cases to indigents MR 6.1: Voluntary Pro Bono Publico Service a. [Pro Bono Hrs] Every L has a professional responsibility to provide legal services to those unable to pay. L SHOULD aspire to render at least (50) hours of pro bono publico legal services per year. In fullling this responsibility, L SHOULD: - Controversial: aspirational requirement is an oxymoron (debated below) (a) [MAJ of Hours] provide a substantial majority of the (50) hrs of legal services w/o fee or expectation of fee to: i persons of limited means OR [= people who CAN'T afford it, not just those who don't WANT to afford] ii [Non-Prots/Legal Aid Org] charitable, religious, civic, community, governmental & educational organizations in matters that are designed primarily to address the needs of persons of limited means; AND (b) [Possible Additional Hrs] provide any additional services through: i 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 & educational org. in matters in furtherance of their org. purposes, where the payment of standard legal fees would signicantly deplete the org's economic resources or would be otherwise inappropriate; ii delivery of legal services at a substantially reduced fee to person of limited means; OR iii participation in activities for improving the law, the legal system or the legal profession b. [Donations] In addition, L should voluntarily contribute nancial support to org that provide legal services to persons of limited means = in addition to the 50 hrs, Ls SHOULD VOLUNTARILY contribute MONEY to indigent legal service org. ISSUE: Mandatory Pro Bono Services > should pro bono by mandated? - Coppock...most Ls feel a strong sense of duty to give, BUT it should still be voluntary; mandating is just too strong a. PRO... (1) HUGE Unmet Need > vastly unmet legal need for services for low income households

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 (2) Lack of Counsel undermines the legitimacy of the legal system > system works best if advocates equal (3) STRONGEST: Ls have closed the system to where ONLY Ls can practice in it > if want it exclusive, have to provide services to ALL that need access to it b. CON... (1) Societal need that ONLY L are baring (2) STRONGEST: Involuntary Servitude > if mandatory, this is a taking w/o compensation (unconstitutional) IV. Ethical Issues in Ofce Practices Special Ethical Problems of LAW FIRMS A. (A) Regulation WITHIN Firms (1) Duty to Supervise ALL (Senior Ls / Subordinate Ls / NonLs / Independent Consultants) i. Model Rules re Other L & NonLs 3 Supervisory Principles (MR 5.1 & 5.3) a. (1) Duty to Put Measures in Place MR 5.1(a) & 5.3(a):Partners in a rm have a DUTY to make reasonable efforts to ensure that the rm has in place measures giving reasonable assurance that the conduct of other partners, associates & NonL employed or retained by the rm conforms to the MRs WHY: insulates the rm & management, by showing the court efforts were made to prevent violations b. (2) Duty of Direct Supervisory Responsibilities (= MUST have supervisor in place that makes reasonable efforts to supervise) MR 5.1(b) & 5.3(b): L having direct supervisory responsibility over another L or NonL has a duty to use reasonable efforts to ensure that the conduct of the other L or NonL conforms to the MRs c. (3) WHEN a L is subject to discipline for ANOTHER Ls or NonLs ethics violatin MR 5.1(c) & 5.3(c): L is subject to discpline for the conduct of another L or NonL if the L i [If Orders/Raties Conduct] orders the L or NonL to engage in conduct that vioaltes the MRs or w. knowledge raties such conduct, OR ii [Knows & Fails to Fix] is a partner, L w. comparable managerial authority or a supervising L who KNOWs of misconduct by the other L or nonL & fails to take corrective action when the consequences of misconduct could be avoided or mitigated MR 5.2: Governs the Duties of SUBORDINATE LAWYERS = if CLEAR violation...must follow (a) / if AMBIGUOUS if violation...may follow (b) a. (a) Personal Reponsibility: SL is personally responsible for comply w. rules, EVEN IF the acting at direct of senior L b. (b) Exception to (a): SL often lack the judment & experience of senior Ls, thus SL may rely on a senior Ls reasonable resolution of an arguable question of professional duty ii. re INDEPENDENT CONTRACTORs General Rule: Agent of the L > L CANNOT have them do things that the L himself could not do EX: speak w. those represented by counsel OR unrepresented (violates MR 4.3) (2) Regulation of SEXUAL RELATIONSHIPs i. re Laywers-Clients: Banned, except if existed prior to the C-L relationship MR 1.8(j): L SHALL NOT have sexual relations w. a C UNLESS a consensual sexual relationship existed btw them when the C-L relationship commenced a. possible conict of interest > L should consider if representing a person in a relationship w. is a conict of interest under MR 1.7(a)(2) that would materially impair his ability to represent C? **MRs does not speak to other inter-ofce romantic relationships, BUT ALL RULES STILL APPLY (i.e., can't share privileged info)** B. (B) Organizational Form Model Rule 5.4: Professional Independence of a Lawyer Heart of 5.4: a NonLAWYER cannot direct a LAWYER at how to do his job (reected in (d)(3)) - L must be able to keep independent professional judgment - Rule forces L to prevent putting themselves in a spot where a NonL is telling them legally what should do i. (a) [Can't SHARE Legal Fees w. NonL] A L or law rm SHALL NOT share legal fees w. a NonL EXCEPT THAT: (1) an agreement by a L w. the L's rm, partner, or associate may provide for the payment of $, over a reasonable period of time after the L's death, to the L's estate or to one or more specied persons; = if L DIES, can share any interest in fees YET to COME IN w. his descendants (2) [Selling a Firm] L who purchases the practice of a deceased disabled or disappeared L may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that L the agreed-upon purchase price; (3) [Retirement Plan for Firm Ees] L or law rm may include nonL Ee in a compensation or retirement plan, even though the plan is based in whole or in part on the prot-sharing arrangement; AND (4) [Nonprot Related w. the Matter] L may share court-awarded legal fees w. a nonprot org that emplyed, retained or recommended employment of the L in the matter ii. (b) [Ban on L-NonL Partnerships, IF LAW services offered] L SHALL NOT form a partnership w. a NonL if any of the activities of the partnership consist of the practice of law iii. (c) [If PAYER ! C, Payer can't call shots] L SHALL NOT permit a person who recommends, employs, or pays the L to render legal services for another to direct or regulate the L's professional judgement in rendering such legal services iv. (d) L SHALL NOT practice w. or in the form of a professional corporation or association authorized to practice law for a prot if: (1)[NonL can't own STOCK in Law Firm] NonL owns any interest therein, EXCEPT that a duciary rep. of the estate of a L may hold the stock or interest of the L for a reasonable time during administration; (2) [NonL can't DIRECT Law Firm] NonL is a corporate director or ofcer thereof or occupies the position of similar responsibility in any form of association other than a corporation; OR

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(2) [NonL can't DIRECT Law Firm] NonL is a corporate director or ofcer thereof or occupies the position of similar responsibility in any form of association other than a corporation; OR (3) NonL has the right to direct or control the professional judgment of a L C. (C) Departing LAWYERS IMPLICITY Fiduciary Duty to Former Firm i. No EXPLICIT rule requiring Ls to be candid & fair w. their parners or Er, BUT an obligation is IMPLICIT in the MR 8.4(c)'s prohibition of dishonesty, fraud, deceit or misrepresentation 3 Signicant Issues: i. (1) NOTIFYING Cs > to what extent may departing Ls notify rm Cs of departure? RULE: Obligation & Right of L to notify Cs - WHY: Fundamental right of C's to choose their counsel supports the right & obligation of the L / former rm to notify Cs - "both must recognize that Cs do not 'belong' to either of them > CLIENTS get to choose Options on HOW to notify: joint letter from rm & L (if can agree) OR L on his own a. (1) BEST: Joint Letter from Firm & L; but if can't agree b. (2) Letter from L on his own WHAT L can ethically put in the notication: i scope: notice should be limited to current Cs ii context: departing L should not ask the C to end its relationship w. the rm but the notice could state the departing L's availability to provide services iii notice must make clear that the C has the ultimate right to decide who will handle the C's matter *most often missed & under emphasized > NEEDS to be put in, but its the policy this right rests on iv departing L must not disparage the former rm > can't trash rm that L is leaving ii. (2) SPLITTING FEEs > for Cs who decide to employ departing Ls, how are fees received allocated btw the departed L & the old rm? - source of constant tension when L leaves a rm > people get greedy (1) Litigation OR (2) Resolve (best way > work through it) a. how to divide... costs...belong to the rm; easy to break down & should be paid fees...gets harder b/c based on what the L "earned" i if billing by the hour > easy to divide by how many hours worked on when L was at each rm ii if contingency fee > harder b/c time worked on the case is not tracked factor to consider...rm deserves some fee for the price of their name iii. (3) Covenants NOT to COMPETE > per se ban POLICY: generally not favored in ANY eld, BUT in legal eld the C's right to choose counsel honored over all MR 5.6: Restrictions on Right to Practice a. L SHALL NOT participate in offering or making: (a) [Covenants Not to Compete] a partnership, shareholders, operating, employment, OR other similar type of agreement that restricts the right of a L to practice after termination of the relationship, EXCEPT an agreement concerning benets upon retirement; OR (b) an agreement in which a restriction on the L's right to practice is part of the settlement of a C controversy SPECIALIZED AREAs of Ofce Practice A. Real Estate Practice MAIN ISSUE: Attorney's fail to CLARIFY whose their C i. SINGLE vs MULTIPLE Representation If single client...L reps only one party in the transaction, likely to be the BUYER (why...lender more sophisticated w. in-house counsel) a. (1) Speaking to UNREPRESENTED persons - must comply w. MR 4.3 > make clear WHO rep & advise to get independant counsel BUT, L MAY draft documents to be executed by SELLER & give opinion of a document's meaning/legal obligations Later Disputes: L could handle matter on behalf of that same C against any of the other parties If multiple client...possible rep BUYER / SELLER / LENDER / TITLE Co a. (1) MR 1.7 applies: allows L to rep multiple Cs in a BUSINESS TRANSACTION under some circumstance b. (2) Later Disputes > could be potentially adverse interests; likely L could not represent one party against another - EX: instituting foreclosure actions in the future ISSUE (2): MR 5.4(c) Use of the lender's forms is NOT IMPROPER > usually just a condition to the loan ISSUE (3): Financial relationship w. TITLE INSURANCE Co > Ls are frequently agents for TIs (commission) or have ownership interest i. OK > Ls may property advise Cs about TI availability even if get commission or have ownership interest, AS LONG AS L fully discloses such relationship & gets consent by the C ISSUE (4): MUST check what the paralegals do > supervise everything they do B. Estate Planning Main Issues i. (1) Multiple Representation (i.e., married couples) re Married Couples a. INFORMED CONSENT...MR 1.7 not clear on if necessary to get informed consent for married couples Con...shouldn't assume there's an issue where one does not visually exist Pro...getting it could be a litmus test for if the is something wrong btw the couple *COPPOCK endorses: just get it > doesn't hurt anything, and if refuse then know discord is present (conict of interest)

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Pro...getting it could be a litmus test for if the is something wrong btw the couple *COPPOCK endorses: just get it > doesn't hurt anything, and if refuse then know discord is present (conict of interest) b. CONFIDENTIALITY of Statements: - What are L's ethical obligations if L receives condential info from one spouse that is material to the other spouse's estate plan? A. v. B. (NJ 1999): estate planning & husband's illegitimate child i ISSUE: may a law rm disclose condential info of one co-client to another co-client Conict btw 2 fundamental obligations of Ls: ! MR 1.6(a): Duty of Condentiality vs MR 1.4(b): Duty to Inform Cs of MATERIAL FACTS ii HOLDING: Duty of CONFIDENTIALITY takes precedence, UNLESS one of the exceptions of MR 1.6 applies (such as using L's services to induce a fraud or crime) iii TAKE AWAY: Hard decision to make, but obtaining a WAIVER of CONFLICT in the beginning might help avoid vs Florida case > held Duty of CONFIDENTIALITY takes precedence over the duty to communicate all relevant info to a client i DIFFERENCE from A v. B > (1) info was not learned from the client in condence & (2) the husband tried to defraud the wife & (3) there was a signed waiver stating that condential info might be passed ii BIGGEST deciding factor here: FRAUD...father using rm to defraud the wife ii. (2) Gifts & BEQUESTS by C to Lawyer MR 1.8(c): A L SHALL NOT solicit any substantial gift from a C, including a testamentary gift, or prepare on behalf of a C an instrument giving the L or a person related to the L any substantial gift UNLESS L or other recipient of the gift is related to the C. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual w. whom the L or the C maintains a close, familiar relationship = Per Se BAN on L preparing documents for C giving L (or L's relatives) anything of SUBSTANTIAL value a. - EXCEPTION: C's Relatives...L CAN do so if he (or L's relatives) are the relative of C - IMPUTES to L's rm iii. (3) Drafting L as FIDUCIARY *MR criticized for NOT providing guidance > MR 1.8C doesn't apply b/c L not receiving a gift RULE: Drafting L may serve as FIDUCIARY (= executor of a will) a. However, ethical obligations exist > L should explain the following to C before accepting: (1) COUNSEL: L must counsel C about the advantages, disadvantages & alt to the L serving as duciary (2) CONFLICT of INTEREST: IF L's rep materially limited by the interest of other Cs/3P/L himself, then the L must obtain the C's informed consent in writing (3) FEEs: L may possible receive compensation for serving as duciary & hire his rm to provide legal services, BUT issues may arise re the reasonableness of the fee (MR 1.5(a)). V. Lawyers in Public Service: JUDICIAL ETHICS (A) Limitations on EXTRA-JUDICIAL ACTIVITIES A. POLICY: the regulations try to strike a balancing act btw keeping judges measured so to maintain the perception of being unbiased AND not keeping them isolated from the community, so to help keep them integrated in their communities B. Judicial CANON 3: A Judge shall conduct the Judge's personal & extrajudicial activities to minimize the risk of conict w. the obligations of judicial ofce 3.1: Extrajudicial Activies In General i. A judge may engage in extrajudical activites, except as prohibited by law or this Code. However, when engaging in extrajudicial activites a judge SHALL NOT: (A) participate in activities that will interfere w. the proper performance of the judge's judicial duties; (B) participate in activities that will lead in frequent disqualication of the judge; - types of activities speaking to...politics / close relationships w. lots of L / broad spectrum investing / NRA (C) partcipate in activities that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality - activity does not have to be to the extent of a disqualier to be an issue (D) engage in conduct that would appear to a reasonable person to be coercive; OR = must be VERY careful not to say anything that sounds as if they are throwing their weight around EX: judge raising $ for non-prot > can do it, BUT must be measured in how (E) [Ofce NOT for Personal Use] make use of court premises, staff, stationery, equipment, or other resources, EXCEPT for incidental use for activities that concern the law, the legal system, or the administration of justice, or unless such additional use is permitted by law 3.5: Use of Nonpublic Information i. = a judge SHALL NOT intentionally disclose or use nonpublic info. acquired in a judicial capacity for any purpose unrelated to the judge's judicial duties - nonpublic info = anything the judge learns via his job that isn't public, he SHALL NOT use it for any person unrelated to his duties 3.6: Afiation w. Discriminatory Organizations i. (A) A judge SHALL NOT hold membership in any org. htat practice invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity or sexual orientation - EX: country club that has a race based membership ii. (B) [Incidental Attendance OK] A judge SHALL NOT use the benets or facilities of an org if the judge knows or should know that the org practices invidious discrimination on one or more of the bases ID in (A). A judge's attendance at an event in a facility of an org that the judge is not permitted to join is NOT a violation of this Rule when the judge's attendance is an isolated event that could not reasonably be perceived as an endorsement of the org's practices 3.7: Particiation in Educational, Regligious, Chartiable, Fraternal or Civil Organizations & Activities i. (A) Subject to the requirements of R3.1, a judge MAY participate in activities sponsored by org. or governmental entities concerned w. the law, the legal system, or the admin. of justice, AND those sponsored by or on behalf of educational religious, charitable, fraternal, or civic org. not conduct for prot, including but not limited to the36 following activities: = Judge MAY participate in legal system or non-prot org as long as don't violate 3.1 (1)-(6): enumerate types of activities judge may do, but judges are not limited to the list

(A) Subject to the requirements of R3.1, a judge MAY participate in activities sponsored by org. or governmental entities concerned w. the law, the legal system, or the admin. of justice, AND those sponsored by or on behalf of educational religious, charitable, fraternal, or civic org. not conduct for prot, including but not limited to the following activities: = Judge MAY participate in legal system or non-prot org as long as don't violate 3.1 (1)-(6): enumerate types of activities judge may do, but judges are not limited to the list 3.8: Appointments to Fiduciary Positions i. (A) A judge SHALL NOT accept appointment to serve in a duciary position, such as executor, administrator, trustee, guardian, attorney in fact, or other personal rep, EXCEPT for the estate, trust, or person of a member of the judge's family, & then only if such service will not interfere w. the proper performance of judicial duties = Judge CAN'T be a duciary, EXCEPT for family which (B) & (C) further restrict ii. (B) A judge SHALL NOT serve in a duciary position if the judge as duciary will likely be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves, or one under its appellate jurisdiction iii. (C) A judge acting in a duciary capacity SHALL be subject to the same restrictions on engaged in nancial activities that apply to a judge personally. iv. (D) if a person who is serving in a duciary position becomes a judge, he or she MUST comply w. this Rule as soon as reasonably practicable, but in no event later than [one yr] after becoming a judge = if duciary WHEN become a Judge, must get out of being duciary ASAP (no later than 1 yr) 3.10: Practice of Law i. = a judge SHALL not practice law. A judge may act pro se & may, w/o compensation, give legal advice to & draft or review documents for a member of the judge's family, but is prohibited from servicing as the family member's L in any forum 3.12: Compensation for Extrajudicial Activities i. = a judge may accept reasonable compensation for extrajudicial activites permitted by this Code or other law UNLESS such acceptance would appear to a reasonable person to undermine the judge's independence, integrity or impartiality 3.13: Acceptance & Reporting of Gifts, Loans, Bequests, Benetrs, or Other Things of Value i. (A) [Ban on judge accepting gifts] a judge SHALL NOT accept any gifts, loans, bequests, benets, or other things of value, if acceptance is prohibited by law OR would appear to a reasonable person to undermine the judge's independence integrity or impartiality ii. (B) = EXCEPTIONs from (A) re small things or equally offered things judges can accept iii. (C) = Gifts / Invitations Judges MAY accept, but must report if do

(B) Judges & Political Activity A. Judicial Canon 4 = A judge or candidate for judicial ofce SHALL NOT engage in political or campaign activity that is inconsistent w. the independence, integrity or impartiality of the judiciary 4.1: Political & Campaign Activities of Judges & Judicial Candidates in General *applies to both general political activity & those that are running for ofce i. (A) EXCEPT as permitted by law, or by Rules 4.2, 4.3, & 4.4, a judge or judicial candidate SHALL NOT: (1) act as a leader in, or hold an ofce in, a political organization; a. (2) - (9): prohibit all kinds of political activity > campaigning; political dinners; speeches; endorse; fundraise; etc. (10) use court staff, facilities or other court resources in a campaign for judicial ofce; (11) knowingly, or w. reckless disregard for the truth, make any false or misleading statements (12) make any statement that would reasonable be expected to affect the outcome or impair the fairness of a matter pending or impending in any court; OR = statement by judge that gives a clear indication of a BIAS > le a motion of recusal (13) in connection w. cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent w. the impartial performance of the adjudicative duties of judicial ofce = Prohibits Judges from stating prior to a case coming before them, how they might rule in the future - EX when happens: supreme court judicial nomination proceedings ii. (B) A judge or judicial candidate SHALL take reasonable measures to ensure that other persons do not undertake, on behalf of the judge a judicial candidate, any activities prohibited under paragraph (A)

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