ASSUMING DUTIES

Lawyers assume duties to clients through acts that give clients reason to believe the lawyer
agrees to assume duties. The relation of principal and agent can be created although neither party
receives consideration. A lawyer owes a duty of confidentiality where she accepts confidential
information in circumstances justifying the client in believing that she will keep that information
confidential. If such a duty is formed, it implies a duty of loyalty pertaining to the confidences. A
lawyer assumes a duty of care to the extent she gives advice or reasonably may be perceived as
having done so. Lawyers may also owe duties to prospective clients (i.e. persons who discuss
matters with a lawyer with an eye toward possibly forming an AC relationship with that lawyer).

 Model Rule 1.18 Duties to Prospective Clients

o Rule
 Anyone can be a prospective client by consulting a lawyer
 Information exchanged is confidential
 He should not represent conflicted clients and that’s imputed upon the
firm
 If he is DQ’d by conflict, representation is permissible with
 Informed consent by both parties or
 Avoid exposure to more DQing information than was reasonably
necessary to determine whether to represent prospective client; and
o The DQ lawyer is timely screened and receives no fee; and
o Written notice is promptly provided to the client
o Comment
 A consultation does not occur if a person provides information to a lawyer
in response to advertising that merely describes the lawyer’s education,
experience, areas of practice, and contact information, or provides legal
information of general interest

Advertising
 Model Rule 7.1 Communication Concerning a Lawyer’s Services
o Rule
 “A lawyer shall not make a false or misleading communication about the
lawyer or the lawyer’s services. A communication is false or misleading if
it contains a material misrepresentation of fact or law, or omits a fact
necessary to make the statement considered as a whole not materially
misleading.”
o Comment
 This Rule governs all communications about a lawyer’s services,
including advertising.
 A truthful statement is misleading if it omits a fact necessary to make the
lawyer’s communication considered as a whole not materially misleading
 An advertisement is misleading if it makes clients thinks they can get the
same result without analysis or factual comparison
 Misleading statements may be disclaimed and thus preclude a violation
 Model Rule 7.2 Advertising
o Rule
 A lawyer may advertise
A lawyer shall not give anything of value to a person for recommending
her services except that a lawyer may
 Pay the reasonable costs of advertisements;
 Pay the usual charges of a legal service plan or a not for profit or
referral service
 Pay for a law practice ; and
 Refer clients to another lawyer if
o The reciprocal referral agreement is not exclusive, and
o The client is informed of the existence and nature of the
agreement
 Any communication shall include the name and office address of at least
one lawyer or law firm responsible for its conduct
 Model Rule 7.3 Solicitation of Clients
o Rule
 A lawyer shall not solicit professional employment unless the person
contacted:
 is a lawyer; or
 has a close relationship with the lawyer
 A lawyer shall not solicit professional employment from prospective
clients even when not otherwise prohibited by paragraph (a) if:
 The target has made known to the lawyer the desire not to be
solicited; or
 The solicitation involves coercion, duress or harassment
 All solicitations shall include the words “Advertising Material”
 A lawyer may participate in a prepaid service plan operated by an
organization that solicits memberships/subscriptions for the plan from
persons who are not known to need legal services in a particular matter
covered by the plan

The rules about advertising are not complex, but they become nuanced. Up until the early 1900s,
lawyers could advertise freely, but then things began changing because it became a way to bar
entry to the industry. The goal was to keep the attorneys older white males and no one else.
 There are two distinctions to make:
o Namely:
 In print v. in person
 For profit or not for profit
o Today, it is probably easier to operate as a non-profit (v. profit) with in print (v. in
person) advertising. The relevant CA rule (1-400) breaks down what
communication versus solicitation is. It also allows more leniency with
communication than with solicitations, which are basically banned with a few
exceptions. Solicitations are basically communications in-person or by phone to
particular people.
 Barton v. State Bar – Barton decides to run an ad, which was just a free consultation. In
exchange, he was suspended from the state bar for three months. That was knocked down
 to a reprimand, but it was still held that he violated the rule against advertising. “No
amount of preaching can alter the fact that the law has ceased to be a sacrosanct
profession, it has become a competitive business.”
 Virginia Pharmacy Board – first holding that there’s a First Amendment commercial
speech right. Basically, pharmacists wanted to advertise the prices of their drugs. The
Court was concerned that that would impinge upon the profession and make it a business.
Further, the Court feared that it would create a race to the bottom, which would diminish
the quality of the products.
 Bates v. State Bar – the Court does not allow an all-out bar on attorney advertising, but
does allow regulation of in-person solicitations and representations about the quality of
the firm/specific attorneys.
 Ohralik v. State Bar – Orlich does personal injury work and solicits an injured in their
hospital bed; they try to fire him and he sues them for breach of contract; the Court
distinguishes this from the Bates case by saying that in-person solicitations are different
from print advertising. The reason is that attorneys are “master persuaders” and the Court
fears that they will take the client for all their worth. It’s a bit presumptuous, but there is a
time difference. In-person solicitations require immediate responses, but advertisements
do not. Also, advertisements permit trails where in-person solicitations do not.
 In re Primus – attorney in the South where there is a policy that for public assistance, you
have to get sterilized. The council on human relations retain attorney to help women who
find themselves in that predicament. The attorney says she has good authority that the
ACLU will fund a suit if they bring one. She gets in trouble for that, but fights it. This is
more like informing them of their rights then it is of soliciting them. The major
distinction is that it was not for the attorney’s pecuniary gain. If she were trying to make
money out of it, it would be different.
 Central Hudson Gas v. Public Service Commission set out a four part test for regulating
protected speech:
o The speech concerns lawful, not misleading conduct
o The government interest in regulating the speech is substantial
 An attorney may have to make further disclosures even if his commercial
speech is protected (Zauderer)
 In Florida, attorneys may not directly solicit accident victims or their
families within 30 days of the accident (Ibanez v. Florida)
o Regulation directly affects the government’s interest
o There’s a reasonable fit between the scope of their regulation and the scope of the
interest

Internet Duties
 The AC privilege is only the client’s to waive, which the potential clients did not waive
as it was no different from walking into a law firm and speaking to a lawyer; normally,
these conversations would be privileged. (Barton)
 Where a law firm sought information about potential class members relating to Paxil
from potential class members and their loved ones online, advised those individuals to
not disclose medical records, and required them to agree that the questionnaire did not
constitute legal advice or create an AC relationship, an AC privilege may be maintained
 because the disclaimer did not waive confidentiality and a lay person would think the
information was confidential. (Barton v. United States District Court)
o Once it is determined that a communication was made in “the course of the
lawyer-client relationship, the communication is presumed to have been made in
confidence and the opponent of the claim of privilege has the burden of proof to
establish that the communication was not confidential.”
o “When the communication between a lawyer and possible client proceeds
‘beyond initial or peripheral contacts’ to acquisition by the lawyer of information
that would be confidential were there to be representation, the privilege applies.”
(SpeeDee Oil)
 Model Rule 1.18 applies to lawyers who learn information from a prospective client
regardless of the form via which the information is transmitted. It does not extend to
cases where a person provides information to a lawyer in response to advertising that
merely describes the lawyer’s education, experience, etc.

Confidences from Parties Related to Clients

The duty of confidentiality extends to persons who provide confidences to you under
circumstances justifying them in believing that you will keep the information confidential.
 In Westinghouse Electric, an AC relationship arose when the lay party submitted
confidential information to the law party with reasonable belief that the latter was acting
as the former’s attorney.
 Size and geographical scope of a law firm do not exempt it from the ordinary ethical
considerations applicable to lawyers generally. (Westinghouse)

Creating a Duty of Care

Even when you do not accept a case, you can acquire a duty of care. You can create a duty by
giving advice even if the duty is not limited to that advice.
 In Togstad, the court found that the attorney acted negligently by telling the potential
client, “I do not think you have a legal case, however, I will discuss it with my partner,”
and never called her back particularly because a reasonable attorney in that situation
would have performed minimal research and inform the potential client about the statute
of limitations.
o He should have followed up after the meeting in writing clearly stating that he is
not representing her, but that there is a statute of limitations issue and
recommending she find an attorney.
o There was no AC privilege because the potential client was accompanied by a
third-party.
o Even if the lawyer says one thing with a certain purpose, what matters is what the
client reasonably thinks it means.
 In Flatt, the court found that the attorney had no duty to give a potential client advice
even after looking at the potential client’s confidential documents and noting his claim,
because she had a conflict with the person the potential client wanted to sue. She acted
appropriately by writing him to that affect and she had no duty to inform him of the
statute of limitations because it would have run counter to her client’s interests.

Do Not Advance Clients Money

The Model Rules strictly prohibit granting loans to clients. Clients should not be forced or
allowed to choose among lawyers on the basis of which lawyer offers them the most.
 In Oklahoma Bar Association v. Smolen, the court held that the attorney should be
punished for loaning his client money for living expenses because there is no exception
for loans within the AC relationship even though it mitigates the risk.
O Model Rule 1.8(e), adopted by 29 states, forbids advances to clients for living
expenses.
 There is a distinction between humanitarian loans (prohibited) and litigation costs
(permitted). (Oklahoma Bar Ass.)
 In CA, you can give loans once the litigation has commenced (i.e. once an attorney is
retained).

Do Not Violate the ADA

 In Stopnicky v. Nathanson, the attorney violated the ADA by refusing to help a man with
his divorce agreement under the argument that she only represents women in divorce
proceedings because law firms are places of public accommodation and an attorney may
not reject a potential client solely on the basis of gender or some other class.
 You could accomplish the same goal by just not saying that’s the reason.
 A lawyer can specialize as long as it does not discriminate against a specific protected
class.
TERMINATING DUTIES
A client may terminate a lawyer and his duties at will. A lawyer may terminate them if:
1. The lawyer can terminate the relationship without material harm to the client; or
2. There is good cause to do so, so long as:
a. Where a tribunal’s consent to termination is necessary, the tribunal gives it
A lawyer must terminate the duties if any of the conditions of Rule 1.16(a) exist subject to some
exceptions including the duty of confidentiality.
 In Hanlin v. Mitchelson, it was not clear that the AC relationship between the attorney
and client ended because the attorney was hired to handle the case “as far as it has to go,”
and although they won, the client wanted to appeal the arbitral award.
 In Whiting v. Lacara, the court held that an attorney could be relieved as counsel for a
client that repeatedly failed to follow his advice and wanted to dictate legal strategy
because it placed him in an impossible position.
You have to be really clear with the client when the relationship is over. Sending a letter saying,
“Thank you, we’ve completed the representation,” is sufficient. Some attorneys are reluctant to
do that because they don’t want to foreclose on future business. This also starts the
representation for malpractice. The other option is to make the end of termination clear in the fee
agreement, especially when it’s a flat fee. Test: the behavior of the client demonstrating an
“unmistakable purpose” to terminate

Voluntary Withdrawal
 Generally, an attorney may withdraw from a case if the client didn’t pay
o It’s easier to withdraw on money issues when it’s about hourly fees and not a
contingency fee agreement:
 Haines v. Liggett Group, Inc. - Litigation firm was litigating against tobacco
companies. It became apparent that it was no longer financially savvy to
continue representing the plaintiffs. They wanted to cut their losses. The
Court says that because there was a contingency fee agreement, that’s part of
the risk you assume. Further, the Court states it may be difficult if not
impossible for the client to find new representation.
 Attorney cannot recover anything if you “unjustifiably withdraw”
 Attorney may recover the value of the services if they “justifiably withdraw”
 Need to adhere to a mandatory ethics rule
 If it’s a “permissive withdraw,” the judge will look at it harder; a stricter level
of scrutiny. The attorney will not be paid if the judge thinks he shouldn’t.
 An attorney cannot just withdraw because he thinks it’s meritless or the client
is difficult/not accepting settlements
 Estate of Falco – C leaves his estate to his secretary instead of his four
sisters. The attorney worked out a deal to give the sisters 50%. They
don’t accept it. He withdrew saying it had no merit. Then the sisters
settled for less than 50%. He’s petitioning for his unpaid fees. The
Court says that he can’t recoup since he voluntarily withdrew simply
because he thought the case lacked merit, but he is eligible of some
because the sisters ended up accepting a deal he basically set up.

 Model Rule 1.16 Declining or Terminating Representation

o Rule
 A lawyer shall not represent or withdraw from representation if:
 The representation will violate the rules;
 The lawyer’s condition materially impairs his representation abilities;
or
 The lawyer is discharged
 A lawyer may withdraw if:
 It can be accomplished without material adverse effect on the client;s
interests;
 The client persists in a course of action involving the lawyer’s
services that the lawyer reasonably believes is criminal/fraudulent;
 The client used the lawyer’s services to perpetrate a crime/fraud;
 The client insists upon taking action that the lawyer considers
repugnant or with which the lawyer has a fundamental disagreement;
 The client fails substantially to fulfill an obligation to the lawyer
regarding services and has been given warning of withdrawal;
 The representation will financially burden the lawyer unreasonably or
will be unreasonably difficult for the client; or
 Other good cause for withdrawal exists
 A lawyer must give notice and seek permission
 A lawyer shall protect a client’s interests such as:
 Giving reasonable notice
 Allowing time for employment of other counsel
 Surrendering papers and property
 Refunding any advance payment of fee or expense that hasn’t been
earned
o Comment
 A lawyer must decline or withdraw when the client demands the lawyer
engage in illegal conduct
 Courts may request an explanation
 Saying that professional considerations require termination should
ordinarily be sufficient
 A client may fire his attorney at any time with or without cause
 A lawyer has the option to withdraw when it can be accomplished without
material adverse effect on the client’s interests
 Lawyer must take all reasonable steps necessary to mitigate the consequences
to the client
DUTY OF LOYALTY
Place client interests ahead of your own, within the bounds of the law, and do nothing to harm them.

A breach of fiduciary duty case will typically look like this:

a. Self-interested conduct by the lawyer either
1. At the expense of the client, or
2. Making use of the client’s information or other resources to profit the lawyer;
resulting in
b. A claim in which the client seeks either
1. Damages for harm done or
2. Disgorgement of the lawyer’s profits

Rules:
 Model Rules:
o 1.8 Conflict of Interest: Current Clients: Specific Rules

o 1.2 Scope of Representation and Allocation of Authority Between Lawyer and
Client
 Common Law:
o The duty comes about when the disparity between the parties in knowledge or
power relevant to the performance of an undertaking is so vast that it is a
reasonable inference that had the parties in advance negotiated expressly over the
issue they would have agreed that the agent owed the principal the high duty that
we have described, because otherwise the principal would be placing himself at
the agent’s mercy (Burdett v. Miller)
o A woman whose attorney took advantage of confidential information regarding
her emotional and mental condition to engage in sexual relations with her had a
viable breach of fiduciary duty claim because the attorney was a fiduciary by
virtue of his representation and breached that duty by using information he
obtained in that capacity for his personal benefit. (Tante v. Herring)
o An attorney’s fiduciary duty does not extend to their consensual romantic
relationship. A confidential relationship can arise from a romantic relationship
wherein one side offers confidential information on the belief that there was some
sort of trust involved and the other side accepted as such, but it is not legally
recognized. If a legally recognized fiduciary relationship extended to the social
relationship, there would be a rebuttable presumption that the one holding the
trust and confidence has exerted undue influence and that shifts the burden of
proof to the fiduciary. (Barbara A. v. John G.)
 The judge decides if there is a fiduciary duty
 The jury decides if there is a confidential relationship (may include
spouses, children, friends, business partners, etc.)
 Restatement 3d of Agency
o The fiduciary relationship arises when a principal manifests asset to another
person (an “agent”) that the agent shall act on the principal’s behalf and subject to
the principal’s control, and the agent manifests assent or otherwise consents so to
act
Lawyers are fiduciaries and they owe clients fiduciary duties. The fiduciary duty lies under the
Duty of Loyalty, which encompasses implied agent restrictions such as:
 Agents may not acquire a material benefit from a third-party in connection with the
agent’s actions as an agent;
 Agents may not take a position adverse to the principal, or on behalf of a party adverse to
the principal, regarding a matter related to the scope of the agency;
 Agents may not, while an agent, compete with the principal or assist the principal’s
competitors;
 Agents may not use the principal’s property, or either use or communicate the principal’s
confidential information for the benefit of the agent or a third-party;
 Agent may not engage in conduct that is likely to damage the principal’s enterprise;
 Fiduciaries must segregate the principal’s property from their own and keep and render
an account of money or property received or paid by the agent for the principal
The expiration of the Duty of Loyalty expires at the end of representation. Spot this duty by
looking for lawyers who acted out of self-interest rather than for the client’s interest.

Who is the Client?

When you represent a corporation, you represent the entity, NOT the individuals therein.
 Model Rule 4.3 states that in dealing on behalf of a client with a person who is not
represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.
If there is confusion as to who you are, you have an obligation to clear it up.
o In Perez v. Kirk & Carrigan, the court said that a man who killed 21 kids while
driving a company truck and accidentally gave a statement to his employer’s
attorney thinking it was confidential had a valid claim because the employer did
not adequately inform him that their attorneys were not his attorneys and they led
him to believe it was confidential.

Relations with Third Parties on Behalf of Clients

General Rule: Don’t communicate with represented persons without the consent of their lawyer.
(Model Rule 4.2 Communication with Persons Represented by Counsel)
 A lawyer must immediately terminate communications after learning s/he is represented
 This rule does not cover communication about matters outside the scope of representation
 Actual knowledge is required, but may be inferred from the circumstances
 If there is confusion about whether or not you are representing a person, it is the
attorney’s responsibility to clear that up. If a person’s interests do not align with your
client’s, you must inform the other person to consult independent counsel.
o In Hopkins v. Troutner, the attorney overreached by giving an unrepresented
party whose interests did not align with her client’s interests legal advice
regarding the value of the case in order to proffer a settlement.
General Rule: You can tell your client/relative/employee/agent to not speak with someone
without going to you first, but no one else.
1. In representing corporations, you can go to former employees and ask him questions, but
you cannot tell him to not speak with plaintiff’s counsel. However, if that employee was
still at the company, you could tell him as such because he’s an “agent.”
 2. Sometimes there’s strategic analysis with what to do with former employees while the
cases are still pending because if the company fires the employee for their conduct, they
can go speak to whomever they want and you cannot advise them not to.
General Rule: You cannot suppress evidence or tell someone else to suppress evidence (with
very limited exceptions).

 Model Rule 4.3 Dealing with Unrepresented Persons

o Rule
 A lawyer shall not state/imply that the lawyer is disinterested. When the
lawyer knows/reasonably should know that the unrepresented person
misunderstands the lawyer’s role in the matter, the lawyer shall make
reasonable efforts to correct the misunderstanding. The lawyer shall not
give legal advice to an unrepresented person other than to secure counsel
if the lawyer knows/reasonably should know that the interests of such a
person are or have a reasonable possibility of conflicting with his/her
client’s interests.
o Comment
 A lawyer will typically need to identify his/her client and explain that
his/her client’s interests are opposed to the unrepresented person
 This rule does not prohibit a lawyer from negotiating the terms of a
transaction or settling a dispute with an unrepresented person.
 Model Rule 4.4 Respect for Rights of Third Persons
o Rule
 A lawyer shall not use means that have no substantial purpose other than
to embarrass, delay, or burden a third person, or use methods of obtaining
evidence that violate such person’s legal rights
 A lawyer receiving information inadvertently shall promptly notify the
sender.
o Comment
 Whether the lawyer must take additional steps such as returning or
deleting the document is a matter of law beyond the scope of the Rules as
is the question of whether the privileged status of such documents has
been waived.
 The matter is one of professional judgment ordinarily reserved to
the lawyer.
 Metadata creates an obligation only if the lawyer knows or reasonably
should know that the metadata was inadvertently sent to the receiving
lawyer.

 In Snider v. Superior Court, the court held that Snider’s attorney should not be
disqualified for speaking with the suing company’s employees because he can contact
non-management personnel so long as the communication does not involve the
employee’s act/omission in connection with the matter that may bind the corporation,
which this did not.
o Managing agents can make statements on behalf of the company, can bind the
company, and can be contacted. They are called “covered” employees.
 o For purposes of punitive damages, managing agents are those with “substantial
discretionary authority over significant aspects of a corporation’s business.” That
means the person that directs corporate policy (i.e. not just someone who
supervises other people; division heads, etc.). This becomes a fact-based inquiry.
Ask, if that individual says/does something, would it be binding on the company?

When dealing with a corporation:

1. ask the employee what they do for the company/what their status is at the company to
determine if they may qualify under one of the prongs;
2. if they have spoken to counsel or if they are represented by counsel;
a. if they ask if they should have counsel, you should always tell them, “If you have
questions about that, you should probably find an attorney and ask him.” However, if
their interests do not align with your clients’ you must advise him to seek legal advice
so it does not look like you are giving legal advice to him contrary to his interests.
The Court advises corporations to tell its employees not to speak with plaintiff’s counsel. You
could also inform plaintiff’s counsel that all the employees are represented (however, then you
assume duties to all of them).

No Contact Rule/Undercover Investigations

Model Rule 8.4 – prohibits lawyers from using third parties from doing things that the rules
prevent you from doing
Model Rule 4.1 – prohibits material false statements
Model Rule 4.2 – prohibits contact to represented parties

Because of these rules, a lawyer’s ability to conduct undercover investigations are severely
limited. For example, in Hommad, a government attorney prepared a sham subpoena, handed it
to an informer who used it to get the guy to talk even though he was represented by counsel,
which was improper.

Soliciting Former Clients/Colleagues

 In Reeves v. Hanlon, the Court held that an attorney may not solicit clients/colleagues
with an indecently wrongful act such as a “campaign of destruction” where in they left
abruptly land without warning and took nearly all of the employees and clients.

DUTY OF CARE
Act reasonably and live up to the standards of care of a reasonable lawyer doing work in similar
circumstances.

Model Rules at Play:

 Model Rule 1.1 Competence
o Rule: “A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation.”
o Comment:
 Determine whether a lawyer employs the requisite knowledge and skill in a
particular matter by considering the following factors:
 Relative complexity and specialized nature of the matter
 The lawyer’s general experience
 The lawyer’s training and experience in the field in question
 The preparation and study the lawyer is able to give the matter
 Whether it is feasible to refer the matter to, or associate or consult with, a
lawyer of established competence in the field in question
 A lawyer need not have expertise in the field in question. He can provide
adequate representation through necessary study or by associating with a lawyer
of established competence in the field.
 Before a lawyer retains or contracts with other lawyers outside the
lawyer’s own firm to assist, he should ordinarily obtain informed consent
from the client and must reasonably believe that the other lawyers’
services will contribute to the competent and ethical representation of the
client.
 Model Rule 1.2 Scope of Representation and Allocation of Authority Between Lawyer and
Client
o Rule:
 The client gets to control the ends; the lawyer gets to control the means
 A lawyer may limit the scope of representation (1) if the limitation is reasonable
under the circumstances and (2) the client gives informed consent
 A lawyer shall not counsel a client to engage, or assist a client in conduct that the
lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal
consequences of any proposed course of conduct with a client and may counsel
or assist a client to make a good faith effort to determine the validity, scope,
meaning or application of the law.
o Comment:
 A client may give the lawyer authority to act without his/her consultation for a
period of time, but may revoke that authority at any time.
 If, for example, a client’s objective is to secure general information about the law
the client needs in order to handle a common and typically uncomplicated legal
problem, the lawyer and client may agree to limit the lawyer’s services to a brief
telephone conversation. However, that would not be reasonable if the time
allotted was not sufficient to yield advice upon which the client could rely.
 Lawyers may not knowingly counsel or assist clients to commit crimes/fraud, but
may give an honest opinion about the actual consequences that appear likely to
result from a client’s conduct, which does not make the lawyer a party to the
action.
  A lawyer may not continue assisting a client in conduct that the lawyer
originally supposed was legally proper but later discovered to be criminal
or fraudulent.
 A lawyer must consult with a client when he knows or reasonably should
know that the client expects assistance not permitted by the Rules.
 Model Rule 1.3 Diligence
o Rule: “A lawyer shall act with reasonable diligence and promptness in
representing a client.”
o Comment:
 “A lawyer should pursue a matter on behalf of a client despite opposition,
obstruction, or personal inconvenience to the lawyer, and take whatever
lawful and ethical measures are required to vindicate a client’s cause or
endeavor.”
 A lawyer’s workload must be controlled
 Unreasonable delay can cause a client needless anxiety and undermine
confidence in the lawyer’s trustworthiness. Thus, the lawyer should not
procrastinate.
 A lawyer should carry through to conclusion all matters undertaken for a
client.
 Ex: whether a lawyer is obligated to prosecute an appeal for the
client depends on the scope of representation agreed upon (rule
1.2).
 Lawyers should clarify whether an AC relationship still exists, preferably
in writing.
 Model Rule 1.4 Communication
o Rule:
 A lawyer must keep a client reasonable informed about everything.
o Comment:
 Clients must be able to effectively participate in the representation.
 In litigation, a lawyer should explain the general strategy and prospects of
success and ordinarily should consult the client on tactics that are likely to
result in significant expense or to injure or coerce others. However, a
lawyer is not expected to describe trial or negotiation strategy in detail.
 The lawyer should fulfill “reasonable client expectations for information
consistent with the duty to act in the client’s best interest.”
 Lawyers may occasionally withhold information when the client would be
likely to react imprudently to an immediate communication, but may not
withhold information to serve the lawyer’s own interest or convenience or
the interests or convenience of another person.
 Model Rule 1.5 Fees
o Rule:
 A lawyer may only charge reasonable fees.
 A lawyer must communicate the fee rate, expenses, and scope.
 A lawyer may impose contingent fees.
 A lawyer may not impose contingent fees when:
 It’s a domestic matter
  It’s a criminal defendant
 A lawyer may only divide fees among lawyers in different firms when:
 It’s proportional
 The client agrees to the arrangement (confirmed in writing)
 The total fee is reasonable
o Comment:
 A lawyer may seek reasonable reimbursement for cost of services (e.g.
printing) so long as the client agreed to it in advance or by charging an
amount that reasonably reflects the cost incurred to the lawyer.
 When the lawyer regularly represents a client, they usually have an
understanding regarding fee rates and expenses.
 Contingent fees’ reasonableness turn on the relevant factors under the
circumstances.
 Look to 1.8 when fees are paid in property.
 Model Rule 1.14 Client with Diminished Capacity
o Rule
 The lawyer should maintain a normal AC relationship with such clients.
 The lawyer may take reasonable protective action where the lawyer
reasonably believes the client is at risk of substantial physical, financial, or
other harm.
 Information related to such representation is protected by 1.6.
o Comment
 The lawyer may have family members present (usually without risking the
AC privilege), but must look to the client, not the family, to make
decisions.
 If a legal representative has already been appointed, the lawyer should
look to him/her to make decisions.
 In determining the extent of the client’s diminished capacity, the lawyer
should consider:
 The client’s ability to articulate reasoning leading to a decision
 Variability of state of mind and ability to appreciate consequences
of a decision
 The substantive fairness doctrine
 The consistency of a decision with the known long-term
commitments and values of the client
 Model Rule 3.1 Meritorious Claims and Contention
o A lawyer mustn’t bring frivolous lawsuits, which is when the lawyer is unable to
make a good faith argument on the merits of the action taken or to support the
action taken by a good faith argument for an extension, modification, or reversal
of existing law
 Model Rule 3.2 Expediting Litigation
o A lawyer should make reasonable efforts to expedite litigation consistent with the
client’s interests.
 Ask, “Would a competent lawyer acting in good faith regard the course of
action as having some substantial purpose other than delay.”

Care is judged by the “prevailing standards of professional competence in the relevant field of
law and geographic region.” It manifests itself as follows:
 Agents must comply with the express and implied terms of any contract with the
principal;
 Agents must act only within the scope of their actual authority, and comply with all
lawful instructions from the principal regarding the agent’s actions for the principal;
 Agents must inform the principal of all facts material to the agency relation and all facts
the agent knows or has reason to know the principal would want to have
This is not a fiduciary duty. Spot this duty by looking for lawyers who are foolish, lazy,
overextended, or debilitated.

Negligent Attorneys
 Common Law
o A client chooses counsel at his peril (Boogaerts v. Bank of Bradley)
o Clients are not afforded another opportunity to litigate solely because their former
attorney was grossly negligent in handling their forfeiture proceeding by failing to
file timely claims, failing to appear, and many other failures because clients must
also be responsible for the lawyer’s deeds to ensure that both clients and lawyers
alike “take care to comply.” If clients could be protected by negligent lawyers,
lawyers would be inclined to act negligently to protect their clients. (United
States v. 7108 W. Grand Avenue)
o A party or a party’s legal representative may be relieved from a judgment or order if the
court finds “excusable neglect” contributed to the entry of the judgment or order. Neglect
is an equitable issue that is only excusable after considering the following factors:
(Pioneer Investment Services Co. v. Brunswick)
 The danger of prejudice to the debtor
 The length of the delay and its potential impact on judicial proceedings
 The reason for the delay, including whether it was within the reasonable control
of the movant and whether the movant acted in bad faith

Client Participation v. Lawyer Participation

 Model Rule 1.2(a) establishes the continuum on what the client gets to decide, what the
lawyer gets to decide, and what they may decide together.
o Rule:
 Client decides the “ends” (i.e. settlement, pleading guilty, testifying)
 Lawyer decides the “means” (motions to file, objections, opening/closing
statements)
o Case Examples:
 In Arko v. Colorado, the court stated that the attorney, not the client, may
decide of whether to request a lesser offense instruction because it’s not
like a decision to plead guilty, it’s just opening up the possibility for him
to be found guilty.
 In Blanton v. Womancare, the court stated that the client, not the attorney,
may decide whether to go to arbitration because arbitration has different
rules and procedures than court.
 o Model Rule 5.1 Responsibilities of Partners, Managers, and Supervisory
Lawyers; a lawyer shall be responsible for another lawyer’s violation of the rules
if the lawyer orders or ratifies the conduct or the lawyer is a partner or has
comparable managerial authority or direct supervisory authority and knows the
conduct at the time when its consequences can be avoided or mitigated but fails to
so remedy (a lawyer does not have disciplinary liability for the conduct of a
partner, associate or subordinate)
o Model Rule 5.2 Responsibilities of a Subordinate Lawyer; a lawyer is bound by
the Rules notwithstanding acting under the direction of another; she does not
violate the Rules if she acts in accordance with a supervisory lawyer’s reasonable
resolution of an arguable question of professional duty
 In Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribicoff and Kotkin,
the court found that a junior associate engaged in legal malpractice by
failing to seek appropriate supervision and assuming someone was
watching over her work because lawyers with minimal relevant experience
should consult with an experienced attorney, not just send the partners
copies of their work.
 It may be advisable to contract with an outside lawyer for
guidance. You must disclose this to the client, who will be
confused by it, because it is a matter of agency and because your
client will need to agree to your disclosure of privileged
information.
 In Nichols v. Keller, the court found that the lawyers owed the client who
had been injured on a construction job a duty of care to advise him on
additional available remedies, including third-party actions.
 Attorneys must make it expressly clear to the client that her
representation is limited and advise the client to seek outside
counsel regarding other remedies
 Foreseeability of harm is the chief factor in a duty analysis. As
applied, it is reasonably foreseeable that a client will offer
incomplete recitation of the facts underlying the claim, request
legal assistance by using terms such as “disability” and
“unemployment” and rely upon the lawyer to describe available
remedies and potential problems. If the lawyer fails to advise the
client, it is reasonably foreseeable that he will fail to ask relevant
questions regarding the existence of other remedies.
 Power v. Authority
o Power is the ability of a person to produce a change in a given legal relation by
doing or not doing something (Restatement of Agency § 6)
o Authority is the power of the agent to affect the legal relations of the principal by
acts done in accordance with the principal’s manifestations of consent to him
(Restatement of Agency)
 Actual Authority – at the time of taking action that has legal consequences
for the principal, the agent reasonably believes, in accordance with the
principal’s manifestations to the agent, that the principal wishes the agent
so to act
  In Louis Fennell v. TLB Kent Company, a client’s two attorneys
(associate and partner) agree to settle the case for $10,000. The
client sends a letter to the court refusing to settle and alleging that
he repeatedly told the lawyers that he did not want to settle for that
amount. He fires one of the attorneys. The associate writes the
court and states that the client later decided the settlement amount
was no longer sufficient. The Court approved the settlement
because the associate had actual authority to settle at that figure.
 A client is not bound by her attorney’s signature binding her to
arbitration that he purportedly signed on her behalf unless the
attorney had implied or actual authority to enter into the agreement
on the client’s behalf. An attorney may not waive all save minimal
judicial review absent express authority. (Blanton v. Womancare
Inc.)
 Apparent Authority – the power held by an agent or other actor to affect a
principal’s legal relations with third parties when a third party reasonably
believes the actor has authority to act on behalf of the principal and that
belief is traceable to the principal’s manifestations
 i.e. what the client tells the third-party about the lawyer; what the
principal tells the third party irrelevant of what the third party sees
based on the agent’s actions (i.e. “My attorney can do that because
that’s what attorneys normally do.”)
 Inherent Authority
 Special Agents – someone who does one transaction or a series of
distinct transactions has no inherent authority (i.e. traditional
lawyers as opposed to in-house counsel)
 General Agents – someone who is doing a series of actions has
inherent authority (i.e. store clerks constantly sell things for the
business)
o The Doctrine of Ratification
 This allows the principal to accept the benefits of actions their agents have
taken without authority or apparent authority. Granted, they must accept
the cost of those decisions.
 An attorney was found liable for binding his client to arbitration without
her consent because she did not ratify that decision later, but instead fired
him. (Blanton v. Womancare Inc.)

Settlement Negotiations for Groups of Clients

 Rule 1.8(g) states that where a lawyer represents several clients, each one of them must
consent to a settlement or a plea; the lawyer for the group may not participate in any
settlement that purports to bind the group by majority consent or some means other than
individual consent of each affected client
 An attorney’s fee agreement that (1) delegated to Respondent complete discretion with
respect to any settlement offers, (2) authorized him to reject settlement offers in his sole
discretion, for any reason whatsoever, and (3) waived any requirement that he
communicate such settlement offer(s) to the client violated the Rules. The Comments to
 Rule 1.2 indicate that a client may not be asked to surrender the right to settle litigation.
Further, Rule 1.4 requires a lawyer to inform his or her client of a settlement offer unless
the client previously decided that the offer would be unacceptable. However, the attorney
in this case was not liable because he stopped using the prohibited language quickly and
never actually relied upon it. (In Re Grievance Proceeding)
o Rule 1.2 requires attorneys to communicate settlement decisions. If the rule
doesn’t explicitly say you can’t do it, it is still implied.

Unbundling
This is an agreement between the attorney and client for the attorney to only complete one piece
of a case. California allows it, but not all jurisdictions do. The limitation on service must be
reasonable and the client must provide consent.

Typically, sole practitioner attorneys conduct limited representation cases because the client
cannot afford them for more than a limited scope representation. In that case, the client is not
considered “represented” for purposes of Rule 4.2 (CO ruling). Presumably that makes sense and
would likely be the standard.

Framing
Framing can go from explaining an issue to manipulating the client into making a particular
decision. As an attorney, you have an extraordinary amount of power of your clients. Many
clients are just not sophisticated enough to make the decisions themselves. Therefore, the lawyer
must be sure to keep within his or her fiduciary duties when confronting these issues.

Liability to Non-Clients
Model Rule 4.1
In course of representing Client, Lawyer shall not knowingly make false statements of material
fact to third parties (no Model Rule 4.1 in California, but same idea in other laws, which gives
the same effect). You potentially owe duties to non-clients. Some of these are avoidable based on
conduct. For example, in Meighan v. Shore, the court said the attorney had a duty to inform his
client’s spouse of her potential loss of consortium claim. Lack of privity does not preclude a
legal malpractice claim. They can continue to recover on a third party liability theory.

 Model Rule 2.3 Evaluation for Use by Third Persons

o Rule
 A client may ask the attorney for evaluation of a matter affecting a client
for the use of someone other than the client
 If it is materially adverse to his clients’ interests, the lawyer needs
informed consent
o Comment
 Whom the lawyer’s duties are owed to should be disclosed to everyone
 Model Rule 2.4 Lawyer Serving as a Third-Party Neutral
o A lawyer serving as a third-party neutral shall inform unrepresented parties that
the lawyer is not representing them. The lawyer should explain the difference
between his role and a lawyer’s role when there is confusion.
 Model Rule 4.1 Truthfulness in Statements to Others
 o A lawyer shall not knowingly (a) make a false statement of material fact/law to a
third person; or (b) fail to disclose a material fact when the disclosure is necessary
to avoid assisting crime/fraud by a client unless prohibited by 1.6
o Comments
 Generally, the lawyer has no duty to inform an opposing party of relevant
facts

Five (Six) Point Test:

 Extent to which the transaction was intended to affect the plaintiff
 Foreseeability of harm to plaintiff
 Degree of certainty plaintiff suffered injury
 The closeness of the connection between the defendant’s conduct and injury
suffered
 Moral blame attached to defendant’s conduct
 Whether recognition of liability under the circumstances would impose an
undue burden on the profession (Lucas)

Other case examples:

 In Cicone v. URS Corporation, the court stated that an attorney owes a duty of care to
opposing counsel such that he will not engage in deceit and will take pains to avoid
negligent misrepresentation.
o Negligence in reliance upon misrepresentation is not a defense, but the court
will not say that a lawyer cannot, as a matter of law, reasonably rely on
opposing counsel’s statements in negotiations.
o Silence is only actionable when a lawyer doesn’t speak after telling part of the
truth or if a lawyer lied or misrepresented a material fact, but he has no
general duty to speak to another party. As a general matter, there must be a
confidential relationship between the parties.

Secondary Liability; Aiding and Abetting & Conspiracy

If you tell the client what the law is and then the client acts on that, you cannot be liable. If you
help him, however, it’s more like aiding and abetting.
 In Reynolds v. Shrock, a naturopathic physician bought parcels of land with Shrock and
slept with her. Later, they agree that the physician will transfer ½ of the land to Shrock
and sell his other 1/2, but the proceeds of that sale would go to Shrock. If the property
didn’t sell for the right amount, the physician would have to reimburse Shrock. Shrock’s
lawyer advises her to withhold consent to selling his ½. The Court states that the
physician must show that the lawyer acted outside the scope of the AC relationship to
have a valid claim for breach of fiduciary duty.
 In United States v. Sarantos, an attorney processed immigration paperwork for sham
marriages. The Court states that he could not have acted as an ostrich and bury his head
in the sand when so many red flags would have caused a reasonable attorney to ask
questions.
 In Matter of Scionti, the attorney was found liable for advising his client to ignore
unfavorable custody orders and withheld the child from his mother because of alleged
molestation.
DUTY OF CONFIDENTIALITY
Do not use client confidences learned while representing a client for your benefit or to the client’s
detriment—unless the information has become generally known—and do not disclose client information
unless required to do so by law.

Attorney-
Client
Privilege

Duty of
Confidentiality

Attorney Client Privilege

The attorney client privilege (“AC”) is just a narrow rule of evidence. The duty of
confidentiality, however, is a more broad rule and requirement of a duty to client. Something
that is Attorney-Client privilege protected is almost always subsumed from the duty of
confidentiality; but the opposite is not true.
 Elements of the AC Privilege:
1. The asserted holder of the privilege is or sought to become a client
2. The person to whom the communication was made
a. Is a member of the bar of a court, or his or her subordinate, and
b. In connection with this communication is acting as a lawyer;
3. The communication relates to a fact of which the attorney was informed
a. By his client
b. Without the presence of strangers
c. For the purpose of securing primarily either
i. An opinion of law or
ii. Legal services of
iii. Assistance in some legal proceeding, and
d. Not for the purpose of committing a crime or tort; and
4. The privilege has been
a. Claimed and
b. Not waived by the client.
 Facts are not privileged, but communications are
o In Lefcourt v. United States, the court found that the firm had no reasonable basis
to withhold the client’s name in an IRS paperwork because a client’s identity and
fee information are not privileged. Possible or even likely client incrimination
does not account for a “special circumstance” that would justify nondisclosure.
The “legal advice exception”, which is of questionable validity, has not once been
accepted in the circuit.
 There is no privilege when third parties are present
 o In Minnesota v. Rhodes, the court found that evidence of an alleged extramarital
affair and of a meeting with a past attorney to discuss possible divorce and child
support is not privileged because there is no privilege when a third party is present
(i.e. the client’s wife).
 The privilege extends to the attorney’s team
o In United States v. Kovel, the court found that the AC privilege can’t be limited to
the attorneys because of how many people help attorneys on cases. A secretary
may not be deposed and neither can the accountant. The accountant is like an
interpreter that explains to the attorney what is going on.
 The privilege does not cover communications engaged in primarily for a business
purpose
o In Neuder v. Battelle Pacifc Northwest National Laboratory, the court held that
most of the documents were not privileged because the company was just hiding
them by presenting them in a meeting with a business purpose where the attorney
was present. The documents that were privileged were the ones that the attorney
gave legal advice regarding.
 An individual privilege may exist for corporate officers, but only to the extent that the
communications made in a corporate officer’s personal capacity are separable from those
made in his corporate capacity. (In Re Grand Jury)
o The Bevel Test:
 The communication must be seeking legal advice
 They must have approached counsel and made it clear that they received
legal advice in their individual capacities, not as their constitutent
capacities
 They must demonstrate that the lawyer thought it was okay to represent
them in their individual capacities knowing that there could be a conflict
of interest
 They must prove that their conversations were confidential
 They must show that the substance of the conversations did not concern
matters of the company
 Crime Fraud Exception
o Communications in connection with consultation are not privileged if they are
used to commit a crime or fraud
 The company was obliged to turn over documents, but failed to turn them
all over. If the attorney is ever asked legal questions (such as, “Hey, I
found this document, is it privileged?”) then the communication is
privileged. Otherwise, it is not. (Feldberg)
o There are two elements to the exception (In re Sealed Case)
 The client must have received the information with the intent to do
something unlawful,
 The client must have carried out the crime or fraud
o The burden is on the party seeking to overcome the exception (In Re Sealed Case)
o CA Difference:
 CA requires a preponderance of the evidence standard, but most circuits
require the “enough evidence to meet the elements of the crime” standard
 Transferring of the AC Privilege
 o In Tekni-Plex, the court stated that the new business was entitled to any relevant
pre-merger legal advice rendered to the old business that it might need to defend
against liabilities or pursue rights. The court decided that the new business
essentially “stood in the shoes” of the old business.
o In Goodrich v. Goodrich, the court stated that the privilege presumptively
transfers with control of an entity and any party arguing otherwise bears the
burden of rebutting that presumption. It articulated a “Practical Consequences”
analysis wherein the court should distinguish between the transfer of assets alone
and the transfer of rights and liabilities to which pre-transfer legal advice might be
relevant and thus where the AC privilege is transferred.
 Effect of Potential Conflict
o An attorney may not represent a client in a matter against his old business that is
now owned by new individuals when: (Tekni-Plex)
 There was a prior AC relationship between the moving party and opposing
counsel,
 The matters involved in both representations are substantially related, and
 The interests of the present and former clients are materially adverse
 Work Product Doctrine
o The work product doctrine protects from discovery writings that contain an
attorney’s impressions, conclusions, opinions, or legal research or theories. That
protection extends to notes about a witness’s statements so long as the attorney’s
impressions and the statement are inextricably intertwined.
 In Rico v. Mitsubishi Motors Corp, the facts and attorney’s notes were
“inextricably intertwined” because they are not a verbatim record of the
statements, but summary points that the lawyer edited to add his own
thoughts.
 In Hickman v. Taylor, the attorney’s interview notes of the individuals at
the public trial were privileged work product. The other side could have
gotten the same information from the public trial or their own interviews.
 In Upjohn Co. v. United States, the subsidiary employee’s questionnaire
responses and the attorneys interview notes were privileged work product.
The court stated that work product cannot be disclosed without a showing
of substantial need and inability to obtain the equivalent without undue
hardship.
o There are two types:
 Opinion Work Product – that which reflects your impressions, opinions,
research, conclusions, or theories
 Ex: taking notes of interview questions
 This is protected from discovery unless the party requesting the
information meets the Upjohn standard
 Fact Work Product – everything else
 Ex. client’s statement written per attorney’s request and focused as
attorney requested
 It is nearly impossible to discover this
 A document created because of anticipated litigation, which tends
to reveal mental impressions, conclusions, opinions or theories
 concerning the litigation, does not lose work-product protection
merely because it is intended to assist in the making of a business
decision influenced by the likely outcome of the anticipated
litigation. (United States v. Adlman)
o “Anticipated litigation” may mean:
 Prepared primarily or exclusively to assist in
litigation
 Prepared “because of” existing or expected
litigation adopted by the Adlman court
o The burden is on the one invading the privacy to establish adequate reasons to
justify production (Hickman v. Taylor)
o Limited disclosure does not waive protection unless it is likely to reveal work
product material to an opponent (i.e. drafts created by attorneys for third parties).
Some courts find these documents discoverable, but others say they are protected
so long as they are not shared widely or with adverse parties.
o CA v. Fed.
 Opinion Work Product
 In California, opinion work product is not discoverable under any
circumstances; it is essentially “absolute” protection. Exceptions to
the doctrine include a client’s criminal or fraudulent activity.
 Federal law generally gives near absolute protection to opinion
work product, but it’s not quite absolute because of the Upjohn
standard
 Generally
 In California, all work product (anything you generate while
working for a client) is protected
 Under Federal law, work product is only protected if it’s created
“in anticipation of litigation”
 Criminal Conduct
 In California, a client’s criminal conduct related to the attorney’s
representation does not annihilate the work product protection
unless the attorney knows he is participating in the criminal
activity by creating the document because the client holds the AC
privilege and the attorney holds the WP privilege
 Under Federal law, a client’s criminal conduct related to the
attorney’s representation may annihilate the WP protection
(circuits are split); but most likely will if the attorney knows his
work product is part of a fraud
o WP Waiver
 Work product protection is waived if the work product is placed at issue or
disclosed to a testifying expert.
 Limited disclosure of work product material does not waive protection
unless the disclosure is likely to reveal work product material to an
opponent.
 Waiver
o You can waive your AC privilege, but not another person’s AC privilege
o You can waive your AC privilege intentionally or through a lack of care
o Joint privilege does not survive one half’s waiver (In Re Grand Jury)
o A corporation may unilaterally waive AC with respect to a corporate officer in his
corporate capacity with regard to the communications between him and corporate
counsel
o Publishing a book that includes confidential information is a waiver (In Re Von
Bulow)
o Extrajudicial communications are not waived (In Re Von Bulow)
 Compare to in-court communications & waiver:
 Subject matter waiver – allows attacking party to reach all
privileged conversations regarding a particular conversation once
the door is open
 The Fairness Doctrine only applies to conversations occurring in
court
o Selective v. Partial Waiver
 Selective Waiver – client discloses communications to one party, but
asserts the privilege to prevent disclosure to other parties
 Partial Wavier – client discloses a portion of the communications, but
asserts the privilege to the rest of the communication
o Inadvertent Disclosure
 If disclosure amounts to a waiver, the party receiving the information may
regard it without penalty. If disclosure does not amount to a waiver, the
party receiving it may be disqualified from further involvement in the case
if he or she studies the information.
 In Rico v. Mitsubishi Motors Corp, the court held that an attorney
may not read a document any more closely than is necessary to
ascertain that it is privileged. Once it becomes apparent that the
content is privileged, counsel must immediately notify opposing
counsel and try to resolve the situation. Mere exposure to an
adversary’s confidences is sufficient to warrant a disqualification.
o After notification, the parties have to agree what to do with
the document. If they can’t, the Court will get involved.
o Ask, “What would a reasonably competent attorney do
knowing the circumstances of the case?”
o Note: It does not say that you cannot read the document.
The comment to MR 4.4 states that the attorney’s next step
is determined by individual state and common law. Thus, in
CA, the attorney couldn’t read it.
 This brings two principles into conflict:
 That the privilege belongs to the client and only the client can
waive it; and
 That the lawyer is the client’s agent and the client is bound by the
agent’s actions
 Rule 502 states when and where inadvertent disclosure amounts to a
waiver
  Inadvertent disclosure does not amount to waiver in a federal case
when:
o The disclosure was unintentional
o The disclosing party took reasonable steps to guard against
disclosure, and
o The disclosing party promptly took reasonable steps to
rectify the error
 Inadvertent disclosure does not amount to waiver in a state case
when:
o If neither rule 502 nor state law would find waiver
 A federal court may order that inadvertent disclosure “connected
with the litigation” pending in federal court is not waiver in either
a federal or a state proceeding (502(d))
 Parties to a federal proceeding may agree among themselves on the
effects of disclosure in a federal proceeding, but the agreement
binds only the parties to it unless a court embodies the agreement
in an order (502(e))
 Metadata may cause inadvertent disclosure because it is information
contained in a digital file
 Some jurisdictions say it’s not privileged
 Some jurisdictions prohibit searching for metadata
o The court can react to waiver in the following ways:
 “Strict Responsibility” Approach
 Hold the client strictly liable for their attorney’s actions
 The client’s intent is irrelevant
 “Balancing” Approach
 Use some sort of a balancing approach
 Several objective factors may be considered in rendering a
decision
 “Intent” Approach
 Focus specifically on the client’s intent to or to not waive the
privilege
 Whether the client intended to waive the privilege
 Concurrent Clients
o This happens when there are two people with the same attorney and a similar
matter (i.e. representing two plaintiffs against the same defendant). The difference
from joint clients is that the AC privilege is not shared between the two.
 Common Interest Exception
o As opposed to joint representation, where the same counsel represents two people,
common interests are when each client has their own counsel, but a common
defense and want to work together on their defense
 In U.S. v. Stepney, the court states that a joint defense agreement must
include a clause that states that normal confidential information from
clients to other attorneys will be waived if the client withdraws
 o How the joint defense agreement is structured makes a big difference in terms of
duties

Model Rules at Play:

 Model Rule 1.6 Confidentiality of Information
o Rule:
 A lawyer shall not reveal information relating to the representation of a
client unless the client gives informed consent, the disclosure is impliedly
authorized in order to carry out the representation or the disclosure is
permitted by paragraph (b).
 A lawyer may reveal information to the extent the lawyer reasonably
believes necessary:
 To prevent reasonably certain death or substantial bodily harm;
 To prevent the client from committing a crime or fraud that is
reasonably certain to result in substantial injury to the financial
interests or property of another and in furtherance of which the
client has used or is using the lawyer’s services;
 To prevent, mitigate or rectify substantial injury to the financial
interests or property of another that is reasonably certain to result
or has resulted from the client’s commission of a crime or fraud in
furtherance of which the client has used the lawyer’s services;
 To secure legal advice about the lawyer’s compliance with these
Rules;
 To establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and the client, to establish a
defense to a criminal charge or civil claim against the lawyer based
upon conduct in which the client was involved or to respond to
allegations in any proceeding concerning the lawyer’s
representation of the client; or
 To comply with other law or a court order\; or
 To detect and resolve conflicts of interests arising from the
lawyer’s change of employment or from changes in the
composition or ownership of a firm, but only if the revealed
information would not compromise the AC privilege or otherwise
prejudice the client.
 A lawyer shall make reasonable efforts to prevent the inadvertent or
unauthorized disclosure of, or unauthorized access to, information relating
to the representation of a client.
o Comment:
 Generally
 We want clients to communicate to their lawyer’s fully and frankly
so the lawyer can represent the client effectively.
 This rule is given effect by the AC privilege and the WP privilege,
which prevent the lawyer from producing evidence concerning a
client when called as a witness.
  Lawyers may not reveal information relating to the representation
of a client or information that could reasonably lead to the
discovery of such information.
 Authorized Disclosure
 A lawyer may be impliedly authorized to disclose information.
 Disclosure Adverse to Client
 Harm is reasonably certain to occur if it will be suffered
imminently or if there is a present and substantial threat that a
person will suffer such harm at a later date if the lawyer fails to
take action necessary to eliminate the threat.
 Serious abuses of the AC relationship by the client forfeits the
protection of the rule.
 A lawyer may reveal information post-fraud to prevent, rectify, or
mitigate it.
 A lawyer may disclose info to secure advice necessary to carry out
the representation.
 In situations where a client or former client makes claims such as
the lawyer defrauded me, the lawyer may reveal information as
necessary to establish a defense to that claim.
 A lawyer may prove the services rendered in order to collect a fee.
 Lawyer may make necessary disclosures to comply with the law
(to the extent required by 1.4).
 Detection of Conflicts of Interest
 Disclosure in order to detect and resolve conflicts of interest is
permitted, but limited to the identity of the persons/entities
involved, a brief summary of the general issues involved, and
information as to whether the matter has terminated. It is
prevented, however, if it would compromise the AC privilege or
otherwise prejudice the client.
 Lawyers within a firm may speak to one another about confidential
information to detect and resolve conflicts of interest.
 When called upon to disclose confidential information to a court,
absent informed client consent, the attorney should assert privilege.
 Disclosure adverse to a client’s interests should be no greater than
the attorney reasonably believes necessary to accomplish the
purpose.
 When considering whether to disclose information, a lawyer may
consider:
o The nature of the AC relationship and those who may be
injured by the client
o The lawyer’s own involvement in the transaction
o Factors that may extenuate the conduct in question
 Acting Competently to Preserve Confidentiality
 Lawyers should act competently in safeguarding information.
  Inadvertent disclosure does not violate paragraph (c) if the lawyer
made reasonable efforts to prevent the access or disclosure.
Consider the following factors in determining reasonableness of
the lawyer’s efforts:
o The sensitivity of the information
o The likelihood of disclosure if additional safeguards are not
employed
o The cost of emplouing additional safeguards,
o The difficulty of implementing the safeguards,
o The extent to which the safeguards adversely affect the
lawyer’s ability to represent clients
 When transmitting communication, factors to be considered in
determining the reasonableness of the lawyer’s expectation of
confidentiality include:
o The sensitivity of the information
o The extent to which the privacy of the communication is
protected by law or by a confidentiality agreement
 Former Client
 The duty of confidentiality continues after the client-lawyer
relationship has terminated.
 Model Rule 1.13 Organization as Client
o Rule
 If the lawyer knows the organization may be liable for some illegal
behavior of one of its employees or associates, he should act “as is
reasonably necessary in the best interest of the organization.” The lawyer
shall refer the matter to the organization’s highest authority.
 The lawyer may reveal information related to representation only if the
higher officer refuses to act in clear violation of the law and the lawyer
reasonably believes that the violation is reasonably certain to result in
substantial injury to the organization and only in so much as necessary to
prevent substantial injury to the organization.
 An organization’s lawyer may also represent its constituents subject to 1.7
upon the organization’s consent.
o Comment
 This duty applies to government agencies
 The lawyer may advise constituents with interests adverse to the
organization that she cannot represent him and that he may wish to seek
independent counsel

The Duty of Confidentiality is broader than the Attorney-Client Privilege. It manifests itself as
follows:
 Agents have a duty not to use or communicate confidential information of the principal
for the agent’s own purpose or those of a third party, but the agent may reveal otherwise
privileged information to protect a superior interest of the agent or a third-party.
(Restatement 3d of Agency § 8.05(2))
  Lawyers may only disclose when a lawyer reasonably believes a client intends to commit
an act reasonably certain to result in injury or death, or when the client is using or has
used the lawyer’s services to commit a crime or fraud that has harmed the financial
interests of a third party. (Model Rule of Professional Conduct 1.6(b)(1)-(3))

Is The Information Truly Confidential?

 In David Welch Co. v. Erskine & Tulley, the court stated that the attorney breached its
fiduciary duty by using the procedural information it acquired via its representation of its
client to later apply to collection accounts it also acquired from client. The Court found
that the fee structure, proprietary method, and client list were confidential.
 In Wood’s Case, the attorney breached his duty of confidentiality by mentioning to the
press that his former-client was looking to build a mall at a different location than they
had disclosed because he only obtained that information via his representation.
 In In Re Pressley, the attorney violated his AC relationship and breached his duty of
confidentiality by telling opposing counsel that his client suspected the opposing party of
molesting their daughter.
 In A v. B., the court impliedly allowed attorney to disclose that she was accidentally
representing husband-client’s secret illegitimate child’s mother in an action against him
because husband-client was using the attorney to commit a fraud against wife-client.

Self-Defense Exception
 Model Rule 1.6(b)(1) allows disclosure of confidential information when necessary to
prevent reasonable death or bodily injury
 This exists to combat a breach of the duty of confidentiality claim, but the relevant
unfavorable information disclosed must be reasonably necessary to the issues in the case.
(First Federal Savings & Loan v. Oppenheim, Appel, Dixon)
o In the past a self-defense exception has been permitted where:
 the attorney sued the client to collect a fee
 the client sued the attorney for malpractice
 the client challenged the attorney’s competence or integrity even though
he was not a party to the lawsuit
 the attorney proved he was not involved in his client’s fraud (Meyerhofer)
o Case Examples:
 In McClure v. Thompson, the attorney acted on implied information from
his client to locate the bodies of the missing children, because he
reasonably believed the revelation was necessary to prevent the client
from committing a criminal act that the attorney believed was likely to
result in imminent death or substantial bodily harm.
 Limitations:
o Using a standard of reasonable necessity derived from Rule 1.6, disclosure is
proper for items that seem likely to provide significant assistance to the attorney’s
defense. One cannot only disclose “as much as he pleases.” He must be compelled
to disclose relevant unfavorable information. (First Federal Savings & Loan v.
Oppenheim, Appel, Dixon)
 Tension with CA
o CA Evidence Code § 958 seems to allow the introduction of otherwise
confidential information when there is a breach of a duty arising out of the AC
relationship. However, the Model Rules state the opposite. Brockway v. State Bar
addresses the narrow exception (p. 146).
RAMIFICATIONS
A client may sue for breach of fiduciary duty and legal malpractice. They sue for both because
they may lose the malpractice claim because an attorney’s breach did not affect his legal
performance as evidenced by a satisfactory result, but still win the breach of fiduciary duty claim
(Tante v. Herring). Disciplinary rules do not create a separate cause of action. Disciplinary rules
establish a standard of care, not a separate cause of action

Civil Malpractice
A satisfactory result precludes a claim for legal malpractice. Proving an attorney violated a
disciplinary rule (malpractice) does not, by itself, establish civil liability (breach of fiduciary
duty).

Legal malpractice includes the following elements:

1. The defendant attorney owed the plaintiff a duty
2. The defendant attorney breached its duty by conduct falling below the standard of care
3. The breach was the actual and legal cause of damage suffered by the plaintiff
You must also have an expert affidavit that explains why the attorney was negligent.

Just as in litigation malpractice actions, a plaintiff in a transactional malpractice action must

show that but for the alleged malpractice, it is more likely than not that the plaintiff would have
obtained a more favorable result. (Viner v. Sweet)

Statutes of Limitations
The statute of limitations in California requires the malpractice action to be brought with one
year “after the plaintiff discovers, or through the use of reasonable diligence should have
discovered, the facts constituting the [malpractice].” [CCP 3.036(A).] In no event shall it exceed
four years except that the period shall be tolled during the time that any of the following exist:
1. The plaintiff has not sustained actual injury
a. Frequently questioned
2. The attorney continues to represent the plaintiff regarding the specific subject matter
a. Frequently questioned
3. The attorney willfully conceals the facts constituting the malpractice when they are
known to the attorney (except that this subdivision shall toll only the four year
limitation); and
4. The plaintiff is under a legal or physical disability which restricts him from filing suit

Tolling
 The period is tolled until the plaintiff sustains actual injury (Fritz v. Ehrmann)
 Continuous representation tolls the limitations period even if the client is aware of the
malpractice at issue in order to minimize disruption of the AC relationship that may occur
because of the malpractice; it could continue after the client replaces the attorney, but
continues to seek his advice (Fritz v. Ehrmann)
o Representation ends when the client actually has or reasonably should have no
expectation that the attorney will provide further legal services (Gonzalez v. Kalu)
o Beal Bank stated that the limitations period is tolled against a law firm if that firm
continues to represent the client, but only against that attorney so long as that
 attorney continues representation. Thus, an attorney that has left the firm no
longer represents the client and the limitations period is no longer tolled against
him.

Doubling Down
This is the idea that when an attorney realizes she has violated some rule or duty, he or she will
decide to violate another rule or duty in the hope that the second violation will cover up the first.

Criminal Malpractice
This is different from civil malpractice because a plaintiff must “plead and prove that he or she
was actually innocent of the crime alleged,” which bars most claims against criminal defense
counsel.
 Pleading guilty in a criminal case bars a malpractice suit because you cannot pass the
actual innocence rule (Peeler v. Hughes)
 In Winniczek v. Nagelberg, where an attorney seduced the client into hiring him, took the
client’s money, and failed to help him with his legal matter that another attorney
successfully did aid him with, the court held that the actual-innocence rule did not bar
recovery of the overcharge
o Actual Innocence Rule:
 “A criminal defendant cannot bring a suit for malpractice against his
attorney merely upon proof that the attorney failed to meet minimum
standards of professional competence and that had he done so the
defendant would have been acquitted on some technicality; he must also
prove that he was actually innocent of the crime.”
 The reasoning behind this rule is that the scope for collateral attacks on
judgments is broader in criminal matters because the criminal defendant
wants to get his conviction vacated and could do so in cases where the
ground for his acquittal was unrelated to his innocence.
 Attorney malpractice insurance is almost always much lower for criminal
defense attorneys than for civil attorneys because it’s more difficult for
criminal defendants to prove malpractice because of the actual innocence
rule.
o Ineffective Assistance of Counsel
 There is an ineffective assistance of counsel remedy for guilty criminal
malpractice plaintiffs, which they assert instead of malpractice, which will
result in an overturned conviction with a win.

Ineffective Assistance of Counsel Doctrine

 The right to counsel requires lawyers who meet a certain minimum level of competence,
judged in part by prevailing professional standards and in part by whether the lawyer’s
conduct affect the result of a proceeding. This right does not apply to civil disputes.
 These are cases that deal with the constitutional right to counsel as explained by the
Supreme Court. The lawyers are required to meet a minimum level of competence. This
is a purely criminal issue. It’s judged in part by two prongs:
1. Did the attorney meet the prevailing professional standard?
 2. To what extent did the lawyer’s professional errors actually affect the result of the
proceeding and our belief that it was a fair trial?
 All convicted criminal defendants are inclined to blame their attorneys. Which cases are
meritorious? It’s important to note that this is distinct from legal malpractice and attorney
discipline proceedings. An attorney can be found not liable for malpractice, but liable
under the ineffective assistance prong (e.g. when the client doesn’t pass the actual
innocence test). You can also be considered professionally deficient by the BAR, but still
effective under Strickland (e.g. your deficiency didn’t affect the outcome).
 Strickland Standard:
o “Whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result”
o Elements:
 The defendant must show that counsel’s performance was deficient in
some way considering all the circumstances and the presumption of
effectiveness created from the necessity for finality of convictions
 Standard: reasonably effective assistance considering all the
circumstances
 The defendant must show that the deficient performance prejudiced the
defense in some way evidenced by showing that, by a reasonable
probability, but for counsel’s unprofessional errors, the result of the
proceeding would have been different
 Errors are insufficient to set aside judgments if they did not affect
the judgment
 Conceivable effect is insufficient, it must be an actual adverse
effect. Thus, the defendant must show that “but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.”
o Cases
 Rompilla v. Beard – counsel in a murder trial was ineffective for failure to
investigate evidence of the defendant’s childhood, which would have
revealed that he suffered from organic brain damage that impaired his
cognitive functions (The cost of investigation does play a role in
evaluating the reasonableness of counsel’s conduct.)
 Wiggins v. Smith – counsel was ineffective for failure to investigate the
facts of the client’s childhood, which included abandonment, molestation,
homelessness, rape, and privation
 Miller v. Anderson – counsel in a murder trial was ineffective for not
presenting his own expert, and failing to subpoena bank records that
would have contradicted testimony there was a legitimate, although not
greater than 50%, albeit not negligible, chance that the defendant could
have been found innocent)
 Schriro v. Landrigan – counsel in a murder trial was not ineffective for
failure to bring forth testimony from defendant’s mother and ex-wife on
defendant’s request
 Cullen v. Pinholster – counsel was not ineffective for failing to present
mitigation evidence pertaining to Pinholster himself in addition to his
mother, which was an existing common practice in California
 Florida v. Nixon – counsel in a murder trial was not ineffective for failing
to get defendant to verbally agree to his strategy
SPECIAL OBLIGATIONS OF PROSECUTORS

Model Rule 3.8 Special Responsibilities of a Prosecutor

 Rule
o A prosecutor shall:
 Not bringing charges he or she knows are not supported by probable cause
 Making reasonable efforts to ensure an accused has been advised of the
right to counsel
 Not seeking from an unrepresented person a waiver of important rights
 Timely disclosing all information he or she knows that tends to show the
accused is guilty or mitigates the level of guilt
 Not subpoena a lawyer to present evidence about a past or present client
 Refraining from making extrajudicial comments that will heighten public
condemnation of the accused
 Disclosing evidence that shows the convicted is innocent
 Remedying convictions of the innocent
 Comment
o Prosecutors are responsible for administering justice
o

A lawyer has no obligation to make sure his or her opponent takes advantage of procedural
devices that may benefit the opponent. Prosecutors, however, work under stricter rules. He has
the responsibility to administer justice, not be just an advocate. Prosecutors can get in trouble
for:
 Misstating evidence
 Misstating facts
 Misstating the law
 Blaming the defense counsel for the defendant
 Intimidating witnesses
 Refer to convictions that are not coming in for some purpose on the case
 State a personal opinion
 Appeal to the passions of the jury or the public (i.e. “put yourself in the victim’s shoes”
or make reference to their duty to prevent monsters from being unleashed on the
community)

The Brady Doctrine

Suppression by the prosecution 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. Material evidence is that with a reasonably probability to
change the outcome of the proceeding. Prosecutors can’t hide potentially exculpatory or
mitigating evidence if it’s been asked for. Defense attorneys should thus always ask the
prosecutor for all exculpatory evidence.

Rules
 Imbler v. Pachtman – in initiating a prosecution and presenting the state’s case, the
prosecutor is immune from a civil suit for damages
 Connick v. Thompson – there is no liability on the basis for failure-to-train because the
lawyers themselves are subject to an ethical regime
 In re Howes – a prosecutor may not listen, but not ask questions, to a defendant that calls
him and discloses damming information.
CONFLICTS OF INTEREST

Substantial Relationship
Courts tend not to evaluate
substantive significance of overlap
beyond materiality

Material facts of Material facts of

matter including facts matter including facts
of a lawyer ordinarily a lawyer ordinarily
would learn in a case Matter 1 Matter 2 would learn in a case
of this type; of this type;

Overlap invokes the conflict

articulated in Model Rule 1.9
 Substantially Related Test
o If an attorney reasonably would have obtained confidential information in the first
representation that would have been relevant in the second, it does not matter
whether he actually obtained such information and used it against former client, he
may not represent an adversary of his former client if the subject matter of the two
representations are substantially related. (Analytica, Inc. v. NPD Research, Inc.)
o A case-by-case factor analysis will determine whether there was a substantial
relationship between the attorney’s former and current clients. (Maritrans v. Pepper)
 Timing is everything
 Two kinds:
o Concurrent conflicts – attorney is representing two adverse clients at the same time
 This becomes confusing when you are not representing them on the same
matter or claim
 We are worried about breaches of loyalty; the client may fear the attorney is
helping one client at the expense of the other
 Automatic disqualification - it is irrelevant if there is a substantial
relationship
 Case examples:
 IBM – during a period on break of representation, P’s counsel files a
claim against their former client. The Court says the open-ended
representation made was concurring and the counsel is disqualified.
 William H. Raley, Co v. Superior Court – plaintiff’s partner is a
director at a bank that oversees trustees at opposing party’s buildings;
you can be conflicted out based on a relationship the firm or a person
with the firm has with an opposing party that you don’t actually
represent
 o Successive conflicts – attorney represented A and then represented his adversary, B,
at a later time
 We are worried about breaches of confidentiality
 It is irrelevant if the attorneys actually get the confidential information
 The worry extends to the attorney and the form [See pages 545-547]
 The client who is trying to disqualify the attorney will have to demonstrate a
substantial relationship between the two representations
 For example, representing adverse party A on a trademark case and
adverse party B on a family matter case are not substantially related
 There is a non-rebuttable presumption of __?
 Relevant Model Rules:
 Model Rule 1.7 Conflict of Interest: Current Clients
o Rule:
 A lawyer may not have concurrent representation, which is:
 When the representation is directly adverse to her client’s interests, or
 There is a significant risk that the representation will be materially
limited by the responsibilities to another client
 Exception when:
 Lawyer reasonably believes that she can provide competent and
diligent representation to each affected client;
 The representation is not prohibited by law;
 The representation is not in the same matter; and
 Each client gives informed consent in writing.
o Comment:
 Generally
 Resolving a conflict requires the lawyer to:
o Clearly identify the client/clients
o Determine whether a conflict of interest exists;
o Decide whether the representation may be undertaken despite
the existence of a client
o If it is, consult with the clients affected and obtain their
informed consent, confirmed in writing
 Clients affected include one or more clients whose
representation might be materially limited
 If a conflict exists before the representation is undertaken, the lawyer
must decline representation unless she obtains informed consent from
each affected client
 If the conflict arises after representation, the lawyer must withdraw
from representation unless she obtains informed consent from each
affected client
o The client must consider continuing representation by her
ability to comply with the duties owed to the former client and
her ability to represent the remaining clients given her duties
to the former client(s)
  If the conflict arises from an unforeseeable development, the lawyer
may be able to withdraw if she
o Seeks court approval
o Takes steps to minimize the harm to the clients; and
o Continues to protect the client’s confidences
 Identifying Conflicts of Interest: Directly Adverse
 Cannot represent both sides of the “V” because clients will feel
betrayed
 Also must consider conflicts that arise when a lawyer is required to
cross a client who appears as a witness in a lawsuit involving another
client
 Simultaneous representation in unrelated matters of clients whose
interests are only economically adverse may not be conflicting and
thus may not require written and informed consent
 Conflicts may also arise in transactional matters (i.e. buying and
selling a business)
 Identifying Conflicts of Interest: Material Limitation
 Mere possibility of subsequent harm does not itself require disclosure
and consent
 Ask, “what is the likelihood that a difference in interests will
eventuate and, if it does, whether it will materially interfere with the
lawyer’s independent professional judgment in considering
alternatives or foreclose courses of action that reasonably should be
pursued on behalf of the client.”
 Lawyer’s Responsibilities to Former Clients and Other Third Persons
 A lawyer’s duties of loyalty and independence may be materially
limited by responsibilities to former clients under Rule 1.0 or by the
lawyer’s responsibilities to other persons, such as fiduciary duties
arising from a lawyer’s service as a trustee, executor, or corporate
director
 Personal Interest Conflicts
 The lawyer’s own interests may not have an adverse effect on client
representation
o E.g. referring clients to an enterprise in which the lawyer has
an undisclosed financial interest
 Clients are entitled to know of the existence and implications of the
relationship etween the lawyers before the lawyer agrees to undertake
the representation
 A lawyer is prohibited from engaging in sexual relationships with a
client unless the sexual relationship predates the formation of the AC
relationship
 Interest of Person Paying for a Lawyer’s Services
 A lawyer may be paid from another source if the client is informed of
that fact and consents thereto and the arrangement does not
 compromise the lawyer’s duty of loyalty or independent judgment to
the client
 Prohibited Representations
 Some conflicts are nonconsentable
 Consentability is determined by considering whether the interests of
the clients will be adequately protected if the clients are permitted to
give their informed consent to representation burdened by a conflict
of interest (prohibited if a lawyer cannot reasonably conclude that she
will be able to provide competent and diligent representation)
 Substantive law may prohibit some representation
o Ex: some jurisdictions prohibit representation of more than
one defendant in a capital case (even with consent)
o Ex: Federal criminal statutes prohibit representations by a
former government lawyer despite informed consent of the
former client
o Ex: Some states limit the ability of a governmental client to
consent to conflicts
 Whether clients are aligned directly against each other requires
examination of the context of the proceeding
 Informed Consent
 Each client must be aware of the relevant circumstances of the
material and reasonably foreseeable ways that the conflict could have
adverse effects on the interests of that client
 Information required depends on the nature of the conflict and the
risks involved
 Sometimes it’s impossible to make necessary disclosure (i.e. one
client refuses to consent to the disclosure necessary to permit the other
client to make an informed decision)
 In determining whether common representation is in the client’s
interests, a lawyer may consider the costs and benefits of securing
separate representation
 Consent Confirmed in Writing
 Either the client or lawyer may execute the document
 If it cannot happen when the client consents, the lawyer must obtain
or transmit if within a reasonable time thereafter
 The lawyer will almost always have to speak with the client
 The writing exists to impress upon the clients the seriousness of the
issue and to avoid disputes or ambiguities
 Revoking Consent
 A client may revoke consent and terminate representation at any time
 It may or may not preclude the lawyer from continuing to represent
the other client(s)
 Consent to Future Conflict
 Whether a lawyer may ask a client to waive future conflicts is subject
to the test in paragraph (b)
  The effectiveness of such waivers is determined by the extent to
which the client reasonably understands the material risks that the
waiver entails
o General, open-ended consent is likely ineffective
o Specific conflicts with which the client is already familiar may
be effective
 Conflicts in Litigation
 Conflicts may exist when representing coplaintiffs or codefendants if
there is a substantial discrepancy in the parties’ testimony,
incompatibility in positions in relation to the opposing party, or there
are substantially different possibilities of settlement of the claims or
liabilities; ordinarily, a lawyer should decline to represent more than
one codefendant
 A lawyer may take inconsistent legal positions in different tribunals at
different times on behalf of different clients UNLESS there’s a
significant risk that a lawyer’s action on behalf of one client will
materially limit the lawyer’s effectiveness in representation of another
client in a different case (i.e. set precedent)
o Whether the client needs to be advised of the risk depend on:
 Whether the issue is substantive or procedural
 The temporal relationship between the matters
 The significance of the issue to the immediate and
long-term interests of the client involved and the
clients’ reasonable expectations in retaining the lawyer.
 If there are significant material risks, informed
consent from the affected clients is required or
the lawyer must refuse one representation or
withdraw from one/both matters
 In regards to class actions, unnamed members do not pose the same
risk and typically consent is not required on either side
 Nonlitigation Conflicts
 Facotrs in determining whether there is significant potential for
material limitation include:
o The duration and intimacy of the lawyer’s relationship with
the client(s) involved
o The functions being performed by the lawyer
o The likelihood that disagreements will arise
o The likely prejudice to the client from the conflict
 Conflict questions may arise in estate planning/administration; the
lawyer should make clear the lawyer’s relationship to the parties
involved
 Consentablity depends on the circumstances
o Lawyer may not represent multiple parties to a negotiation
whose interests are fundamentally antagonistic
 o Common representation is permissible when clients are
generally aligned in interests
o Costs of separate representation may cause clients to want one
lawyer to represent them all
 Special Considerations in Common Representation
 Lawyers must consider the risk of additional cost, embarrassment, and
recrimination
 Ordinarily, a lawyer must withdraw from all representations if the
common representation fails
 In determining the appropriateness of common representation, the
lawyer must consider the effect on AC confidentiality and privilege;
the privilege does not attach to commonly represented clients so they
must be so advised
 Consider whether one client asks the lawyer not to disclose to the
other common client information that is relevant to the common
representation; the lawyer has an equal duty of loyalty to each
o The lawyer should at the outset advise all clients that
information will be shared and threaten to withdraw if one
client decides that some matter material to the representation
should be kept from the other
 Organizational Clients
 Representing an organization does not necessarily mean the lawyer
represents constituents, affiliates, or subsidiaries. Thus, lawyers may
accept representation of adverse clients in unrelated matters unless
otherwise agreed.
 A lawyer that is also on the board must consider if there’s a conflict
o The lawyer should advise the other members of the board that
in some circumstances matters discussed at board meetings
while the lawyer is present in the capacity of director may not
be protected by AC privilege and that conflict of interest
considerations might require the lawyer’s recusal or decline of
representation
o Model Rule 1.8 Conflict of Interest: Current Clients: Specific Rules:
 Rule:
 (a) do not do business with clients unless:
o (1) the terms are fair and fully disclosed in writing to the client
o (2) the client is advised in writing to seek independent legal
counsel
o (3) the client gives informed consent in writing
 (b) do not use information to the detriment of the client without the
client’s informed consent except when required by the rules
 (c) do not solicit gifts from clients
 (d) do not negotiate agreements giving the lawyer rights based on
information relating to a representation
 (e) do not provide financial assistance to a client except
 o (1) a client may advance court costs and expenses of litigation;
and
o (2) a lawyer representing an indigent client may pay court
costs and litigation expenses on the client’s behalf
 (f) Do not accept compensation for representation from non-clients for
clients unless
o (1) the client gives informed consent
o (2) there is no interference with the lawyer’s independence of
professional judgment or with the AC relationship; and
o Information relating to representation of a client is protected
per 1.6
 (g) when representing two or more clients, do not participate in
settlement claims without client’s informed consent
 (h) do not limit your liability for malpractice or settle a malpractice
claim with unrepresented persons unless they are so advised to seek
independent counsel and had the time to do so
 (i) do not acquire a proprietary interest in a claim except
o (1) a legal lien to secure fees or expenses; and
o (2) contract for reasonable contingent fees in civil cases
 (j) do not have sex with clients unless a consensual relationship pre-
existed the AC relationship
 (k) while associated with a firm, a prohibition that applies to one
lawyer applies to all lawyers in the firm
 Comment:
 The rule does not prohibit using information obtained in the
representation in a way that does not disadvantage the client
 Lawyers may accept gifts from clients if it meets “general standards
of fairness”
o Substantial gifts may be voidable by the client under the
doctrine of undue influence, which treats client gifts as
presumptively fraudulent
 Before any settlement offer or plea bargain is made or accepted on
behalf of multiple clients, the lawyer must inform each of them about
all the material terms of the settlement, including what the other
clients will receive or pay if the settlement or plea offer is accepted
 Lawyers may enter agreements with clients to arbitrate malpractice
claims so long as the agreement is enforceable and the client is fully
informed of the scope and effect of the agreement
 Agreements settling a claim or potential claim for malpractice are not
prohibited by the rule; but the lawyer must first advise such person in
writing of the appropriateness of independent representation in
connection with such settlement and give them time to do so
 Sleeping with clients risks emotional involvement that may cause
them to be unable to represent the client without impairment of the
exercise of independent professional judgment
o Model Rule 1.9 Duties to Former Clients
 Rule
 Do not represent another person in the same or substantially similar
matter as a former client whose interests are materially adverse to the
former client’s without the former client’s informed written consent
 Do not knowingly represent a person were the lawyer’s previous firm
represented another client
o Whose interests were materially adverse; and
o About whom the lawyer had acquired confidential information
 Do not
o Use a former client’s information to his disadvantage except as
permitted by the rules or when it has become generally known;
o Reveal information relating to the representation except as the
rules would permit
 Comment
 A “matter” depends on the facts of a particular situation or transaction
 Ask whether the lawyer was so involved in the matter that the
subsequent representation can be justly regarded as a changing of
sides in the matter in question
 A matter is “substantially related” if they involve the same transaction
or legal dispute or if there otherwise is a substantial risk that
confidential factual information as would normally have been
obtained in the prior representation would materially advance the
client’s position in the subsequent matter
 General information (disclosed to the public) is not disqualifying
 Lawyers Moving Between Firms
o Whether a lawyer should undertake representation requires
considering:
 The client previously represented by the former firm
must be reasonably assured that the principle of loyalty
to the client is not compromised
 The rule should not be so broadly cast as to preclude
other persons from having reasonable choice of legal
counsel
 The rule should not unreasonably hamper lawyers from
forming new associations and taking on new clients
after having left a previous association
o A lawyer that acquired no knowledge or information relating
to a particular client at one firm is not disqualified from
representing another client at a new firm in the same or a
related matter even though the interests of the two clients
conflict
 This requires a fact intensive inquiry
 The burden of proof is upon the firm whose
disqualification is sought
o Model Rule 1.10 Imputation of Conflicts of Interest: General Rule
 Rule
 If one lawyer would be prohibited from representing a client, the
whole firm is; unless
o The prohibition is based upon a personal interest and does not
present a significant risk of materially limiting the
representation; or
o The prohibition is based upon 1.9(a) or (b) and arises out of
the DQ lawyer’s association with another firm and,
 The DQ lawyer is timely screened from the matter;
 Written notice is promptly fiven to any affected former
client, which must include a description of the
procedures, a statement of the firm and lawyer’s
compliance, a statement that review may be made
before a tribunal, and an agreement to respond
promptly to written inquiries or objections by the
former client; and
 Certifications of compliance with these rules are
provided to the former client by the screened lawyer
and a partner of the firm upon the former client’s
written request
 When a lawyer terminates his association with a firm, the firm is not
prohibited with representing clients with materially adverse interests
unless;
o The matter is the same or substantially related to that in which
the former associated lawyer represented the client; and
o Any lawyer remaining in the firm has material information
protected by the rules
 A client may waive disqualification under the conditions in 1.7
 1.1 governs disqualification of lawyers associated in a firm with
former or current government lawyers
 Comment
 There is no restriction when there are no questions of client loyalty or
protection of confidential information
 There is no prohibition when the person prohibited from involvement
is a paralegal or legal secretary (nonlawyer)
 The risk can be so severe that it is not cured by client consent
o Model Rule 1.11 Special Conflicts of Interest for Former and Current Government
Officers and Employees
 Rule
 Pre-government employees are subject to 1.9(c) and shall not
represent a client in connection with a matter in which the lawyer
participated personally and substantially unless the appropriate agency
gives its informed consent, confirmed in writing, to the representation
 Disqualification from paragraph (a) is imputed upon the entire firm
unless:
o The lawyer is timely screened
o Written notice is promptly given to the appropriate
government agency
 A lawyer may not represent a client whose interests are adverse to
confidential information obtained while a government agent. The
lawyer’s firm may continue representation if the DQ’d lawyer is
timely screened and receives no fee therefrom.
 A lawyer currently serving as a public officer/employee is subject to
1.7 and 1.9 and shall not participate in a matter in which the lawyer
participated as a non-government agent without government agency’s
informed consent; or negotiate for private employment with any
person who is involved as a party or as a lawyer for a party in a matter
in which the lawyer is participating, except lawyers serving as law
clerks to judges
 Comment
 The rules cannot be so strict to keep lawyers in government agencies
forever because then they could never attract attorneys
 The second agency in subsequent government employment is not
required to screen the attorney like a firm would have to, but whether
they should be considered the same or different clients for conflict of
interest purposes is not addressed in the rules
o Model Rule 1.12 Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral
 Rule
 A lawyer shall not represent anyone in connection with a matter in
which he substantially as a judge or other adjudicative officer, unless
all parties to the proceeding give informed consent, confirmed in
writing
 A lawyer shall not negotiate for employment with any person who is
involved as a party or as a lawyer for a party in a matter in which the
lawyer is participating personally and substantially as a judge or other
adjudicative officer (law clerks may negotiate after the lawyer has
notified the judge)
 DQ’d lawyers impute the prohibition on the firm unless:
o The DQ’d lawyer is timely screened and receives no portion of
the fee therefrom; and
o Written notice is promptly given to the parties
 An arbitrator selected as a partisan of a party in a multimember
arbitration panel is not prohibited from subsequently representing that
party
 Comment
 While there is no duty of loyalty concern, there is an obligation of
confidentiality under law or codes of ethics governing third-party
neutrals
o Model Rule 1.7(b) & Model Rule 1.9(a) – clients can provide written consent to
allow their lawyer or formal lawyer to take conflicts. However, concurrent conflicts
can only be sought if the attorney reasonably believes that representing both clients
concurrently will not preclude them from fulfilling all their obligations to both
clients. 1.7(b)(3) precludes attorneys from representing both parties on the opposite
sides of one case.
 In Klemm v. Superior Court, the court permitted the attorney to represent
both the husband and the wife in a divorce settlement because there was no
actual conflict; they agreed on everything. Had there been an actual conflict,
she could not have represented them both.
 Conflict Letters
 Use simple words
 Be clear
 Give all the information
 Don’t advise the client on the request
o You should tell the client that you have an interest in them
waiving the conflict, but you must recommend that they
consult another attorney
o Before Representation
 1.18
o During Representation
 1.7 and 1.8
 1.7(a)
o Truck Ins. Exchange v. Fireman’s Fund Ins. Co. – Kaiser
Construction Company and Truck Insurance, Kaiser’s
insurance company, are suing Fireman’s Insurance for
indemnification for asbestos claims. Initially, Ropers
represented Truck. Fireman’s gets Ropers disqualified. Truck
tries to get Crosby to represent it, but Crosby was representing
Fireman’s affiliate on wrongful termination cases. Crosby
offers Fireman’s a good deal in exchange for allowing him to
withdraw from the wrongful termination cases. Fireman’s says
Crosby can’t withdraw. Crosby took on Truck as a client and
petitioned to withdraw from the wrongful termination cases.
Fireman’s tries to disqualify Crosby in the Truck case arguing
concurrent representation. The Court states that the adverse
concurrent representation existed and withdrawing from the
wrongful termination did not change that status, so the
disqualification of Crosby is warranted. The Court goes to
grant lengths to explain that Crosby did not just stumble upon
the predicament; if he had, it may have been a different
scenario. Crosby could have gotten informed written consent
from both parties, but that’s not what happened.
o After Representation
 1.9
  You cannot act subversive to them in a manner that’s substantially
related
 You cannot use information obtained in a previous representation
adverse to them at a later time

Business deals with clients:

Model Rule 1.8 states that attorneys cannot make deals with clients unless:
 The transaction/terms/structure of the deal are disclosed in writing to the client;
o Professor’s Notes: The courts will look to see if the terms are fair, but there is a
predisposition to find that they are not
 The client is advised in writing that there is a likelihood that they will want to consult an
independent lawyer about the deal (lawyer must give them a reasonable amount of time
to consult an independent lawyer)
 The client has to consent in the writing that sets forth the actual terms of the deal
 The client has to consent to the lawyer’s role in the deal
o Professor’s Notes: If the deal goes bad, the client will argue that the lawyers
advised him to accept the deal
 Other Notes:
o Ensure the client understands that you do not represent their interests in the
business
 Advise them to seek counsel
 Give them time to seek counsel; Demonstrate the fairness of the deal
o Ex: You’re an attorney working in a business office and representing the owners
of the property in other matters. It can be legitimate, but you have to be aware of
it. It can’t look like you took advantage of the client.
o Imputation of presumed knowledge:
o There are the same type of conflict problems, but the attorney leaves and
brings the client to the new firm. Is the old firm still in a conflict? Is the
firm still in a conflict with matters at the old firm?
o In Beery v. State Bar, an attorney advised his client to invest the client’s
settlement monies in his satellite venture without disclosing the business’
financial problems and the company went under. The court stated that the
attorney was liable because there was likely an AC relationship and he didn’t
advise the client to seek independent legal advice or give him sufficient time to
do so.

What interests are directly adverse?

 It may be okay to represent two business competitors unless they constantly sue each other
or it would be a poor business choice
 North Star Hotels Corp. v. Mid-City Hotel Associates (1987)
o N.S.H. and M.C.H. are in conflict over a separate conflict dealing with the
management of a hotel. Faegre represents N.S.H., but also represents St. Louis
Center Partners, which also has components of AP and Rosewood. M.C.H. has two
GPs: Harry Johnson and Helen Johnson. Harry has interests in Moss & Barnett,
Pineapple, Rosewood, and AP.
 o Takeaway: although there’s no obvious conflict for Faegre, one still exists because
his representation of N.S.H. is “directly adverse” to the financial interest
o If it were an LLC or Corp., there would have been enough of a buffer to not make
Harry personally responsible

Positional conflicts
 attorneys interpreting rules in different ways for different clients
o This is okay unless you could create precedent or inflict material harm, you could
create a conflict, but it has to be pretty direct
o Williamson v. Delaware – O’Donnel, crim. Def. attorney, has a client with a 10-2
jury recommendation for death, and then in another case, a 10-2 jury
recommendation for life. On the one hand he had to argue that the jury
recommendation should not be considered and on the other hand arguing that it
should be. He’s basically going to kill one client depending on how it shakes out.
Thus, he has to withdraw.

Limitations on Counsel’s Ability to Represent Zealously

Fiandaca v. Cunningham (1987)
Prison conditions for women are not held to the same standard as the men. Some of the women
sue. A clinic represents them. As it progresses, there’s a potential for settlement. The State offers
to build a county facility, but it will take 5 years. The State then offers to give them some of the
grounds on the mental disabilities area. The clinic represents those groups as well, so is opposed
to that idea because they don’t have enough room there already. The State says that the clinic
must be DQ for conflict. The Court denies it. The prisoners win. The judge says that counsel
should have been DQ’d, but they do not have to re-try the whole case – just the remedy portion.
However, arguably, the conflict was a bit irrelevant because the judge said he would have never
let the state use that property. The appellate court doesn’t buy that argument.

 Business v. Legal Conflicts

o If the firm is acting more like in-house counsel and less like a retained attorney for a
limited matter, it’s probably becoming more of a business conflict than a legal
conflict.
o Business conflicts can be resolved in the market (e.g. labor costs can be resolved in
the labor market). Conversely, legal conflicts are resolved in the courtroom.
o If the cost component is huge for the industry and there’s a risk that confidential
information will be provided to the other party, it looks more like a legal conflict.
 Conflicts in Criminal Cases
o There is a presumption in favor of allowing a criminal defendant to have the counsel
of his choice, but it may be overcome by a showing of not only actual, but also
potential conflict. (Wheat v. United States)
 Imputation of Knowledge and Screening:
o Firms to Lawyers
 There is a rebuttable presumption that if you had no knowledge, no access,
and no reasonable person would have had knowledge or access, neither you
nor the new firm have a conflict of interest.
 In Aerojet, the court held that confidential knowledge was not
imputed on the attorney that worked at a firm that worked for Aerojet
and thus he did not need to be disqualified because he never worked
with Aerojet himself at the old firm, had no knowledge of it, and no
interactions with it.
o In these circumstances, the court should apply a “modified
version of the substantial relationship test.” That means, would
the firm’s knowledge normally be imputed onto the attorney in
that context?
o Lawyers to Firms
 Lawyers are screened at new firms when there is confidential information
involved. The relevant rules are derived off of Model Rule 1.10(a)(2). Not all
states have adopted the Model Rule. There are different rules in cases of
private firm to private firm and cases of government position to government
position.
 Attorneys that switch sides with confidential information will be
automatically DQ’d. Otherwise, in CA, there will be a case-by-case analysis
based on the circumstances and the policy considerations implicated in that
case. (Kirk v. First American Title Ins. Co.)
 Upon the claim that an attorney is tainted, the burden will shift to the attorney
about to be DQ’d to show that there was a screen in place, no information
actually flowed to the other attorneys of the firm, and no information is going
to flow to the other attorneys of the firm. The Court says there are two
“essential elements” to an effective screen: (Kirk v. First American Title Ins.
Co.)
 Timely imposed
 Preventative measures
ECONOMICS OF PRACTICE

 Model Rule 1.15 Safekeeping Property

o Rule
 The lawyer must keep the property separate from his own (funds in a separate
account; other property identified as such and appropriately safeguarded).
Complete records of such account funds and property shall be kept by the
lawyer and preserved for five years from termination.
 A lawyer may only deposit his own funds in an IOLTA to pay bank service
charges and only for the amount necessary to pay such charges.
 Upon receiving funds or other property in which a client or third person has
an interest, the attorney must promptly notify those individuals. Except as
otherwise stated, a lawyer shall promptly deliver the individuals’ entitled
funds and render full accounting regarding such property upon request.
 If there is a dispute as to property, the property shall be kept separate by the
lawyer until the dispute is resolved and when it becomes resolved, the lawyer
shall promptly distribute all portion of the property.
o Comment
 Securities should be kept in a safe deposit box except in special
circumstances
 Disputed portions of funds must be kept in a trust account and the lawyer
should suggest means for prompt resolution
 When a third-party claim to funds is not frivolous, the lawyer must refuse to
surrender the property to the client until the claims are resolved

Model Rule 1.15 – Safekeeping Property

1.15(a) – client property in your possession must be held separate from your own property (don’t
co-mingle funds)
 example: floating loans from client trust account to meet payroll when they’re waiting a
settlement check
1.15(b) – prevents attorneys from putting their own money into the client trust account;
exceptions for covering service charges
1.15(c) – monies may only be withdrawn from the client trust account when they’re earned

Types of Retainers
 Classic/True Retainer
o Sometimes, clients will keep an attorney on retainer indefinitely to keep him from
being on a competitor’s legal team
o This is your money from the get-go; you’re paid to be available
 Security Retainer
o Clients pay attorneys a retainer to ensure that their fees will be paid
o This money must be deposited in the client trust account
 This has to be an IOLTA account
 The interest goes to the bar, which funds the legal clinics
  If the client deposits an extraordinary amount of money, you may need to
establish an alternative account so the client can reap the interest benefits
of the account
o This is still the client’s money
o You create bills that ultimately get counted against that retainer. As long as the
bill isn’t disputed, you can take the money you earned. If the client disputes the
bill, the monies must be frozen in the trust account until the matter is settled. How
long they have to pay the bill or dispute it has to do with how you structure the
agreement. It also depends on whether you required them to replenish the retainer
or not.
o The lawyer must pay for the service fees in the trust account

True Retainer Security Retainer

Purpose Secure availability (no work Provide lawyer assurance that money will be there
required) when earned
Belongs to L, on receipt C…L takes only when earned
Deposit in Firm or lawyer’s account Trust account only

Trust Account Basics

1. Don’t co-mingle funds
2. Don’t take out non-earned funds
3. If a client asks you to safeguard, you have to safeguard (ex. safeguard jewels)
a. If there are fees involved in such safeguarding, you likely could push them to the
client
b. It’d probably be wise to just not agree to safeguard valuables
c. When the client asks for them, you have to give them back
4. IOLTA account interest goes back to the state bar

Reasonability of Fees
 Retainers may never be “non-refundable” because clients will not be sophisticated
enough to know that they are actually refundable. (In re Sather)
 An attorney cannot take small advances out of his client trust account for personal
matters even if he replaces the money as soon as he can. Punishment = disbarred (Matter
of Warhafrig)
 MR 1.5: Lawyers may not make an agreement for, charge, or collect an unreasonable fee.
The Court must consider the following factors:
o The time and labor required, the novelty and difficulty of the questions involved,
and the skill requisite to perform the legal service properly
o The likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
o The fee customarily charged in the locality for similar legal services;
o The amount involved and the results obtained;
o The time limitations imposed by the client or by the circumstances;
o The nature and length of the professional relationship with the client;
o The experience, reputation, and ability of the lawyer or lawyers performing the
services; and
 o Whether the fee is fixed or contingent
 Contingency agreements are not allowed in family law cases because there is a state
interest in keeping people married and contingency agreements would drive people to
divorce
 A lawyer cannot bill for an excessive time educating himself despite good faith and
diligence resulting in $50,000 for a case that typically costs no more than $15,000.
(Matter of Fordham)

“Practicing Law”
 Software that completes legal forms upon a user’s input of information is sufficiently
“practicing law” despite multiple disclaimers. (Parsons Technology)
o Generally, you can ask yourself, “Whether what is being done by the software
was done by a person without a license would be considered ‘practicing law.’”
ETHICS IN ADVOCACY

 In Flatley v. Mauro, the court found that a woman’s claim that an attorney raped her and
demand for a settlement was “per-se extortion.”
o Anti-SLAPP suits exist to allow attorneys to have their fees paid if the other side
discloses some type of protected speech.
o The Court says we have to look at (1) whether this is protected speech and (2) the
likelihood that the defendant will prevail.
o Per-se extortion is not protected speech and the woman’s Anti-SLAPP motion
fails.
 In Suzman, the court found that an attorney’s predicting that Israel’s non-compliance
would cause them financial trouble as a method to her advocacy was not improper.
o Pre-litigation letters threatening litigation are commonplace
 Candor Toward the Tribunal
o Model Rule 3.3 Candor Toward the Tribunal
 Rule:
 A lawyer shall not knowingly:
o Make a false statement of fact/law or correct a false
statement of fact/law
o Fail to disclose legal authority in the controlling
jurisdiction known to be directly adverse to his client’s
position that has not been disclosed by the other party; or
o Offer evidence the lawyer knows to be false
 If he later learns of its falsity, he must take
reasonable remedial measures, including disclosure
to the tribunal
 A lawyer should take reasonable remedial measures possibly
including disclosure to the tribunal for a client that is engaging in
criminal/fraudulent conduct
 In an ex parte proceeding, the lawyer shall inform the tribunal of
all material facts that will allow it to make an informed decision
 Comment:
 A lawyer is not usually required to have personal knowledge of the
matters asserted in pleadings or other documents
 [PERJURY] If a client wants to testify falsely, the lawyer should
persuade him not to. If that’s ineffective, the lawyer must refuse to
offer the evidence. If only a portion of his testimony will be false,
the lawyer may call him to testify but may not elicit or otherwise
permit the witness to present the testimony that the lawyer knows
is false. Some jurisdictions follow the narrative approach. The
lawyer must have actual knowledge of falsity.
 [EVIDENCE] a lawyer mustn’t unlawfully destroy or conceal
documents
 A proceeding has concluded when a final judgment has been
affirmed on appeal or the time for review has passed
  A lawyer may be required to seek withdrawal if the AC
relationship has deteriorated so much so that he can no longer
competently represent the client
 Case:
 In Colorado v. Casey, the court held that the attorney had a duty to
disclose that his client was impersonating someone else in a
criminal proceeding. Punishment = suspension and MPRE
o Model Rule 3.5 Impartiality and Decorum of the Tribunal
 Rule
 A lawyer shall not
o Seek to illegally influence a judge, juror, or prospective
juror
o Communicate ex parte with such a person during the
proceeding
o Communicate with a juror or prospective juror after
discharge if
 The communication is illegal
 The juror has made known to the lawyer the desire
not to communicate; or
 The communication involves misrepresentation,
coercion, duress or harassment; or
o Engage in conduct intended to disrupt a tribunal
 Comment

 Handling Evidence
o Model Rule 3.4 Fairness to Opposing Party and Counsel
 Rule
 A lawyer shall not:
o Obstruct another party’s access to evidence or unlawfully
alter, destroy or conceal a document or other material
having potential evidentiary value (or assist another person
to do so)
o Falsify evidence
o Knowingly disobey an obligation under the rules
o Make a frivolous discovery request or fail to make
reasonably diligent effort to comply with a legally proper
discovery request by an opposing party;
o Allude to any matter that the lawyer does not reasonably
believe relevant or that will not be supported by evidence;
state a personal opinion
o Request a person to refrain from voluntarily giving relevant
information unless
 The person is a relative or employee or agent of the
client; and
  The lawyer reasonably believes that the person’s
interests will not be adversely affected by refraining
to give such information
 Comment
 In most jurisdictions it’s improper to pay witnesses for testifying or
paying expert witnesses contingent fees
o Model Rule 3.4(a) – prohibits an attorney from obstructing another party’s access
to evidence or altering/destroying or having someone alter/destroy evidence
 In People v. Meredith, the court held that the AC privilege extends to the
communications from client to lawyer and from lawyer to investigator.
Further, the investigator’s observations of the victim’s wallet in the
garbage was based on that privilege.
 As a policy consideration, we may be concerned to extend the
privilege to moving or touching the evidence because the party
getting to it first could take it or hide it and prevent the other party
from being able to access the evidence. Essentially, everything
would become a race to the evidence. Where the evidence was tells
the story just as much as the evidence itself. Here, the location tells
the whole story. If it was right next to the victim, it doesn’t mean
much. Since it was in the defendant’s backyard, it means a lot
more
 The defense counsel now has to ask if they will check out the site
and if they decide to, if they will do anything about discovered
evidence. For example, if you find a knife with blood on it, you
can test it (as long as there’s enough for the other side to test it),
but if it’s the defendant’s blood you have to turn it over to the other
side. In another example, a defense investigator that takes pictures
of the victims in the well does not have to turn over the pictures
unless he frustrated the evidence.
 Discovery Conduct
o In Redwood v. Dobson, the court held that attorneys may not tell clients not to
answer deposition questions. If a party or opposing counsel is being abusive, the
attorneys should end the deposition and seek a protective order as required by the
rules.
o Today, you must ask your client what they did to find the documents. They cannot
rely on in-house counsel. Many large companies also outsource the document
review to less expensive outside counsel.
 Witness Coaching
o There is a fine line between coaching and preparation. Preparation is explaining to
a client what kinds of questions might be and what a deposition is. The line is
drawn when you start telling the client what to say in order to win. Prepping is
telling the client to say the same thing a little bit differently. You have to enforce
that the client must tell the truth.
 Introducing Perjury
o Model Rule 3.3(a)(3) - prohibits you from offering testimony you know to be
false and requires you to take steps to remedy false testimony; that could include
 disclosure to the tribunal and overrides the regular obligations of Model Rule 1.6.
The remediation requirement continues until the matter is over. [INSERT
CHART FROM PAGE 980]
 In People v. Johnson (CA), the court held that the narrative approach is the
proper standard to defendants that are going to perjure themselves.
Essentially, the attorney must put him on the stand and let him tell his side
of the story, but mustn’t ask questions
 In Nix v. Whiteside, the court held that the client whose attorney did not
allow to perjure himself was not denied his right to competent counsel in a
criminal matter
 In U.S. v. Williams, the court held that the attorney did the right thing
when he received a note from his client that included a note to the client’s
cousin asking for an alibi and the attorney withdrew from representation,
gave the letter to the government, and agreed to testify against Williams at
trial.
o In California, you have to actually know the client is going to perjure himself.
o In California, we don’t have a duty to remediate the false testimony that you
would find under Model Rule 3.3(b). Also, the duty to remedy does not trump
what would normally be covered by 1.6. California is much more protective of
confidentiality.
 Duty to Correct
o You have to encourage the client to correct his/her testimony
o If they don’t correct, you have to disclose just as much as necessary to allow the
tribunal to remedy the situation
o In Idaho State Bar v. Warrick, the court held that the defendant that worked out a
deal with the prosecutor, but refused to say as much on the stand despite multiple
lines of questioning, did not take reasonable remedial measures to correct himself.
Punishment = MPRE
 The Ostrich Principle
o You cannot just stick your head in the sand and say you didn’t know what’s going
on. This avoidance of lying, however, seems to be counter to that. There’s no easy
way to reconcile attorneys preventing perjury with the Ostrich Principle.

 Model Rule 3.6 Trial Publicity

o Rule
 A lawyer may not make an extrajudicial statement that he knows or
reasonably should know will be disseminated by means of public
communication and will have a substantial likelihood of materially
prejudicing an adjudicative proceeding in the matter
 A lawyer may state:
 The claim, offense, or defense (except when prohibited) and the
identity of those involved;
 Public information;
 That an investigation is in progress;
 The scheduling or result of any step in litigation
  The request for assistance in obtaining evidence and information
necessary thereto;
 A warning of dancer concerning the behavior involved when
reason to believe there is a likelihood of substantial harm to an
individual or the public
 In a criminal case,
o The identiy, residence, occupation and family status of the
accused;
o Info necessary to apprehend the accused;
o The fact, time and place of arrest; and
o The identity of investigating and arresting officers or
agencies and the length of that investigation
 A lawyer may make a statement that a reasonable lawyer would believe is
required to protect a client from the substantial undue prejudicial effect of
recent publicity not initiated by the lawyer or the lawyer’s client. A
statement made pursuant to this paragraph shall be limited to such
information as is necessary to mitigate the recent adverse publicity
o Comment
 Likelihood of prejudice may be different depending on the type of
proceeding
 Extrajudicial comments otherwise impermissible may be permissible
when made in response to public statements of another party where a
reasonable lawyer would believe a public response is required in order to
avoid prejudice to the lawyer’s client
 Model Rule 3.7 Lawyer as Witness
o Rule
 A lawyer shall not advocate where he is likely to be a necessary witness
unless
 The testimony relates to an uncontested issue
 The testimony relates to the nature/value of legal services
rendered; or
 DQ of the lawyer would work substantial hardship on the client
 A lawyer may act as an advocate in a trial in which another lawyer in the
lawyer’s firm is likely to be called as a witness unless precluded by 1.7 or
1.9
o Comment
 The jury may be confused by an advocate-witness
 Model Rule 5.4 Professional Independence of a Lawyer
o Rule
 A lawyer shall not share legal fees with a nonlawyer
 A lawyer shall not form a partnership with a nonlawyer if any of the
activities of the partnership consist of the practice of law
 A lawyer shall not permit a person who recommends, employs, or pays a
lawyer to render legal services for another to direct or regulate the
lawyer’s professional judgment in rendering such services
  A lawyer shall not practice with or in the form of a professional
corporation or association authorized to practice law for profit it
 A nonlawyer owns interest therein;
 A nonlawyer is a corporate director or officer thereof; or
 A nonlawyer has the right to direct or control the professional
judgment of the lawyer
 Model Rule 5.5 Unauthorized Practice of Law
o A lawyer must have a license to practice
 Model Rule 5.7 Responsibilities Regarding Law-Related Services
o Law-related services that might reasonably be performed with and in substance
are related to the provision of legal services, and that are not prohibited as
unauthorized practice of law when provided by a nonlawyer, may cause a lawyer
to be subject to the Rules if the law-related services are provided
 By the lawyer in circumstances not distinct from the lawyer’s provision of
legal services to clients; or
 In other circumstances by an entity controlled by the lawyer individually
or with others if the lawyer fails to take reasonable measure to assure that
a person obtaining the law-related services knows that the services are not
legal services and that the protections of the AC relationship do not exist
