LEGAL PROFESSION OUTLINE

Professor Stier

1. Values of a good lawyer?

a. Confidentiality
i. Attorney-Client Privilege
ii. Work Product Doctrine
iii. Ethical Duty of Confidentiality
b. Competence
i. listening, attentive, legal analysis, oral advocacy, due diligence, interpersonal
skills in interviewing
c. Independence
i. Advice and counseling
ii. Disagreements with the client
1. Strategic
2. Values
a. Client autonomy
iii. Public citizen
1. Lawyer has his own set of ethics
2. Improving law
3. Public involvement
d. Loyalty
i. Conflict of interest
1. When you can take clients on
ii. Have to be loyal to the client but also yourself
e. Honesty
2. Zimmerman Case
a. Facts: P is suing his employer for joint car accident (insurance); Defense doctor
examines him and finds an aneurysm (writes it up gives it to D’s L); D’s L doesn’t
give it to P (P’s L could have requested a copy, but he didn’t bc it could be financially
damaging for the C
i. Procedurally, the case was reopened, so this wasn’t a good move
ii. Application for settlement was a misrepresentation
1. OPTIONS
a. Talk to C and try and get him to disclose (Best option)
b. Screw the rules, do what you think is right
b. If you disclose confidential information without permission, you can be sued for
malpractice by your client and could also be disbarred by ethics committee for not
following confidentiality
i. In your own malpractice trial, you could say that it wasn’t malpractice to save
someones life by disclosing this confidential information and that the rule is
misguided.
c. Because of cases like Zimmerman and discussions regarding ethics, the Modern
Rules have exceptions in confidential related issues.
i. Also have a death and bodily injury exception now (also, there is a modern
trend to require disclosure where L is aware of wrongdoing)
3. Where do ethical rules come from?
a. Canons of Professional Ethics
i. Put together from a variety of discussions by the ABA
ii. In effect till the 1970s
iii. Reform happened and got us the Model Code
iv. These are not meant the standard for malpractice; rather, they are the standard
of review for the bar
b. ABA Model Code
i. Started in 1970s from a reform of Canons
ii. Ethical questions are growing and changing over time and there was another
reform
c. ABA Modern Rules of Professional Conduct
i. Started in 1980s from a reform of Model Codes
ii. When ABA adopts these rules, it doesn’t have binding enforcement on states
and has no effects on states to follow. It has to be adopted by states in order
for it to be binding on lawyers in that particular state.
1. States can adopt it and change it to make it more to their liking.
d. [NOW] Almost every jurisdiction has adopted some version of the Modern Rules of
Professional Conduct
i. 47 states and district of Colombia
ii. NY adopted the Modern Rules on Dec. 18, 2008 and goes into affect on April
1, 2009.
iii. CA developed it own standard to ethics not taken from these above rules, but
now is joining and is going to adopt the Modern Rules?
1. By the time we graduate law school, CA will have Modern Rules
iv. MPRE EXAM
1. Is Modern Rules based
o Restatement of Law Governing Lawyers
 Put together by scholars in the ALI (American Law Institute) that states what
the general principals of the law is in particular fields of law.
• Best informed view of what law is
 Modern Rules were developed as ethic principals in the abstract with policy
considerations
 Restatements were developed from what the practice is in cases
e. How to inform how rules are used in cases
4. The ethical thing to do is the best thing to do all things considered.  ultimate test on ethics.
5. Modern rules say you can counsel on anything but ultimately its the clients decision to do
whatever they want.
a. Keep moral dialogue behind the scenes with client, but it’s the clients autonomy that
ultimately overrules your advice
6. Lawyer as bad man – Holmesian Bad Man Theory
a. Client only wants to save money in a short term sense and doesn’t have broader
sense.
b. Tend to assume that client wants most money or most freedom in criminal scenario.
c. Not really doing your job though because maybe client has more complex desires
than money or freedom.
CONFIDENTIALITY

1. Sources or rules that govern confidentiality

a. Model Rule 1.6: Confidentiality of Information
i. (a) A lawyer shall not reveal information relating to the representation of a
client unless the client gives informed consent, the disclosure is impliedly
authorized in order to carry out the representation or the disclosure is
permitted by paragraph (b).
ii. (b) A lawyer may reveal information relating to the representation of a client
to the extent the lawyer reasonably believes necessary:
1. (1) to prevent reasonably certain death or substantial bodily harm;
2. (2) to prevent the client from committing a crime or fraud that is
reasonably certain to result in substantial injury to the financial
interests or property of another and in furtherance of which the client
has used or is using the lawyer’s services;
3. (3) to prevent, mitigate or rectify substantial injury to the financial
interests or property of another that is reasonably certain to result or
has resulted from the client’s commission of a crime or fraud in
furtherance of which the client has used the lawyer’s services;
4. (4) to secure legal advice about the lawyer’s compliance with these
Rules
5. (5) to establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and the client, to establish a defense to
a criminal charge or civil claim against the lawyer based upon conduct
in which the client was involved, or to respond to allegations in any
proceeding concerning the lawyer’s representation of the client; or
6. (6) to comply with other law or a court order
b. Attorney-Client Privilege
i. 2 categories for confidentiality
1. Model Rules creating the ethical duty of confidentiality
2. Evidentiary Privileges based on confidentiality
a. AC and WP doctrine (based on NOT producing information)
ii. The Restatement of Law Governing Lawyers §68 defines the attorney-client
privilege as protecting:
1. Communication
a. Expression through which a privileged person undertakes to
convey information to another privileged person and any
document or other record revealing such an expression
i. Words, email, notes
b. If you can categorize it as a communication, the trend is to
protect the privilege
2. Made between privileged persons
a. Client (including a prospective client), the clients lawyer,
agents of either who facilitate communications between them,
and agents of the lawyer who facilitate the representation
 b. Mention the privilege bubble: the people in the bubble can
freely communicate, but those on the outside cannot get the
information unless someone on the inside breaks the bubble
c. If the C is talking to someone and reasonably thinks they are an
L, this would be protected bc of the policy behind AC privilege
i. Standard is whether a RP would think it was an L
3. In Confidence
a. At the time and in the circumstances of the communication, the
communicating person reasonably believes that no one will
learn the contents of the communication except a privileged
person or another person with whom communications are
protected under a similar privilege
b. Has to be made in context of confidence in different settings
c. If in a bar setting, you client starts talking about something
privileged, you would tell the client not to talk about that here
and go to your office to discuss it.
d. Is there a reasonable expectation that someone will hear what
your discussing?
e. Are there steps to prevent the communication from getting out
there
i. You can talk in code without divulging information to
outside sources on a cell phone
4. For the purpose of obtaining or providing legal assistance to the client
a. Was the communication really for the purpose of obtaining or
providing legal assistance to the client
i. Not everything they say to you is automatically going
to be privileged, they have to talk to you in the hopes of
obtaining legal assistance from you.
ii. If a friend comes up to you and wants to get advice on a
legal issue you have to say I can talk with you but know
that I am not your lawyer
1. Find ways to preserve the privilege in different
situations
iii. Communication between lawyers is protected, not facts of the case
1. Underlining facts are not protected, but document the facts are in is
protected if opposing lawyers ask for document in discovery
iii. Policy underlying AC privilege
1. Want to foster full and frank communication between the the C & L
2. Without AC, the client may self-censure
iv. Hypo: there is a document that the company did in the past and is now being
sued about content of document and they give you the document, the
document is not protected because even though it was shown to lawyer it
is still a fact from the past.
iv. If the company prepares a document now to help the lawyer in the case after
the case has been filed, it is protected
1. If communication is for preparation of litigation it is protected
 2. What’s not protected:
a. If it was prepared before the AC relationship started
b. Drafts of a K prepared by the C in the normal course of
business before he got the L
c. Aren’t interested in protecting the C who gives everything to
the L to protect it during discovery
v. Procedures for invoking the privilege
1. In camera (court scrutinizes documents to see if privilege applies)
2. Discovery--make a privilege log invoking AP and WC
v. Client’s Identity
1. The fact that a lawyer represents a person, is that privileged
information?
a. No
b. Except in extreme situations
i. Last link doctrine (9th Cir)
1. Client came in to disclose they did a hit and run
and ran from the accident
2. Gray area as to whether it is privileged
3. Last-link--who your C is is not privileged--but if
the last link in showing that they committed the
crime is your representation, that identity is AC
protected
c. Cannot aid and abet; normally where the C is isn’t privileged
vi. Client’s Physical Characteristics
1. A clients physical characteristics (complexion, demeanor and dress)
are not privileged
a. If there is a tattoo that says “I did it”, it is now being used as a
communication and therefore, it is privileged
2. Only communications are privileged
vii. Joint Clients
1. A joint client is when you represent two clients in something related;
when two clients jointly retain the L
a. Ex: real estate – lawyer represents both buyer and seller so they
don’t have to both get lawyers
2. Communication made by any of the clients to the lawyer are privileged
against the rest of the world but not privileged between the two clients
viii. Common Interest Privilege
1. If you have multiple parties in a lawsuit with different attorney’s the
disclosure of communication between them is privileged (both work
product information and attorney-client privilege). It is not a waiver of
attorney-client privilege
2. Allows for sharing of information between litigants that have similar
interest
a. Eg: Tobacco companies sued for conspiracy; they can have
their own privilege bubble and can communicate without
bursting
 3. Usually seen on defense cases
4. At some point, there is not a common interest anymore
5. If you’re in the same general litigation position, the whole industry
would get together and share information and those communication
between them is privileged
a. Pharmaceutical corporations, tobacco corporations
6. When parties are acting under the common interest assumption, firms
will usually execute an agreement of what they are sharing and that
they cannot divulge information to outside parties
7. Joint Defense Privilege
a. When multiple defendants in common interest share
communications with each other, it is not a waiver of attorney-
client privilege
8. Joint Prosecution Privilege
a. When multiple plaintiff’s lawyers’ that have related claims
against a common defendant share information, it is not a
waiver of attorney-client privilege
ix. Exceptions to Attorney-Client Privilege
1. Dispute Concerning a Decedent’s Disposition of Property (Will Issues)
2. Client Crime or Fraud
a. The attorney-client privilege does not apply to a
communication occurring when a client:
i. Consults a lawyer for the purpose, later accomplished,
of obtaining assistance to engage in a crime or fraud or
aiding a third person to do so, or
ii. Regardless of the client’s purpose at the time of
consultation, uses the lawyer’s advice or other services
to engage in or assist a crime or fraud.
b. In camera review – hearing in judges chambers
i. If judge thinks there is a potential for this waiver, judge
will take evidence and determine
c. Ongoing Crime/Fraud
i. If it’s a past crime/fraud, crime-fraud exception doesn’t
apply and attorney-client privilege applies
ii. If the crime/fraud started in the past and is still ongoing
and the client is using lawyers advice to further the
crime/fraud, the crime-fraud exception applies
1. Ex: crime/fraud hasn’t come to light means the
crime/fraud may still be ongoing and the
crime/fraud exception applies
iii. If client comes in for sole purpose of advice to commit
crime/fraud, crime-fraud exception applies
iv. In cases where lawyer is spotting illegality and
consulting them not to do it, courts will say that
communication will be privileged
 v. In cases where lawyer is empowering clients fraud or
illegality, courts will say that communication will not
be privileged and crime-fraud exception applies.
vi. If client goes to lawyer seeking advice and lawyer says
there are this and that but that may be illegal but the law
is unclear and it turns out to be illegal, that
communication is protected
1. If there was a good faith advice and it turns out
to be illegal than that communication is
protected by attorney client privilege and not
subject to crime-fraud exception
vii. Hit and run cases are past crimes and not ongoing
crime.
viii. Last-Link
1. Normally client identity is not privileged unless
it’s the link that could form a chain of testimony
necessary to convict that individual of a crime.
3. Lawyer Self-Protection
a. Fee dispute
b. Malpractice disputes
4. Disputes in which a trustee or other fiduciary is charged with a breach
of fiduciary duty by a beneficiary
a. Fiduciary means a relationship between two people that is
really strong
5. Disputes between representatives of an organizational client and
constituents of the organization
a. Derivative suits – CEO is supposed to be acting in best interest
of company and company sues CEO for not having best
interest of company
b. Actions on behalf of share holders suing board of directors
x. Corporations and the Attorney-Client Privilege
1. In order for general counsel in corporations to properly advise their
client they would need to know everything and if the lower level
employees aren’t privileged, that information won’t be known because
lower level employees are the ones that know the most about certain
information.
2. They extend privilege to lower level employees as well as middle level
and high level employees
3. Model Rule 4.2: Communication with Person
Represented by Counsel
a. prohibits communications with person known to be represented
by a lawyer unless you have permission by opposing lawyer.
4. Model Rule 3.4: Fairness of Opposing Party and Counsel
a. lawyer shall not request a person other than client to refrain
from voluntarily giving relevant information to another party
unless the person is a relative or an employee or other agent of
 a client and the lawyer reasonably believes that the persons
interests will not be adversely affected by refraining from
giving such information.
5. Upjohn: accountants at the pharmaceutical company discovered some
managers were paying off foreign gov’ts to break into the business in that
country; against the law but the agents doing it were benefiting; Upjohn’s
in house counsel sent out questionnaires and reported the problem to the
IRS; IRS submitted a production request to get the investigatory
documents; the biggest question became whether these were privileged
persons:
a. General counsel doesn’t represent the personal interests of
employees; court rejects the IRS attempts to get the questionnaires
b. Summaries on notes of gov’t officials are WP; lower employees‘
communications are WP and AC
x. The Government’s AC Privilege
1. Generally, a government official talking to their L is just like a client
2. Clinton communications with White House Counsel was more of an
exception (typically, the idea that the executive branch has some separate
rule is a red herring)

xi. Waiver of Attorney-Client Privilege

1. A client loses the privilege with respect to a particular communication
either by consent or by conduct inconsistent with maintaining the
privilege.
a. Consent usually takes the form of disclosure of a privileged
communication in an unprivileged setting;
b. conduct inconsistent with maintaining the privilege includes a
failure to object to an attempt by another to obtain or provide
evidence of a privileged communication.
i. Columbia HCA: Medical Co settles with the DOJ (give
UpJohn privileged documents over to settle the fraud--
consent to waive the privilege as to the gov’t); puts
blood in the water and other companies start thinking
Medical Co might have defrauded them. One sues and
requests the audits they prepared for the DOJ/they
counter AC and WP. P claims they waived the privilege
period, Columbia claims selective waiver
1. AC privilege is not to be used as a sword;
selective waiver undermines the purpose of AC
which is full and frank disclosure--Cs might
start censuring themselves)
2. This court says there is no such thing as
selective waiver: AC is a CL doctrine--its not up
to the parties to contract around
c. Frequently, consent will come up in a malpractice action
 i. Lawyer seeking advice from another practicing L (not
the adversary) doesn’t waive the privilege
2. Only the client may waive the privilege, but because a lawyer has
implied authority to waive the client’s confidentiality rights in the
course of representation, waiver may flow from a lawyer’s action even
though the client was not consulted
3. Selective Waiver
a. Court rejects argument of selective waiver and says its all or
nothing
b. Downside to not allowing selective waiver
i. Stifles disclosure to government which causes them to
do their own discovery of issues, which would make the
government to use more resources in doing that
discovery
ii. Cost going up for government and less disclosures
c. Upside to not allowing selective waiver
i. Makes it easier to enforce for courts in determining
whom they selectively waived to
ii. If government is aware of wrong doing it is odd for
them to keep that information to themselves
d. Only 8th circuit is saying selective waiver is allowed but most
jurisdiction do not permit selective waiver
e. Whole basis of privilege is for full disclosure between attorney
and client and if the government is compelling lawyers to
waive on a continuous basis than clients may be reluctant to
fully disclose information to their lawyers
i. Impedes effective representation
4. Settlement Negotiations
a. No waiver when there is settlement negotiations
b. Discussions pursuant to settlement negotiations is not a waiver
of privilege
c. Ways to get around waiver:
i. Saying things in hypothetical form or saying this
statement made without prejudice
ii. If your C blabs, that can waive the privilege if they are
saying something inconsistent with maintaining the
privilege
4. Subject Matter Waiver
a. When a statement is made on a subject, you can waive
everything as to that subject
b. The further you are from the litigation back and forth/exchange
of information, the more likely there will not be subject matter
waiver (screams out in public--not likely subject matter waiver,
and more likely it is a waiver of the AC privilege--worse)
c. Subject Matter Waiver
 iii. If you waive privilege on some issue, the whole subject
matter is considered waived
iv. The closer you get to in court/in litigation waiver, the
more the risk the court is going to do a subject matter
waiver on you.
v. Disclosure to spouse--won’t likely be a subject matter
waiver; L can talk in generalities. The more high
profile the litigation, the harder this is
5. Scope of Waiver
a. One cannot waive a privilege to introduce into evidence
favorable material while simultaneously invoking the privilege
on the same subject matter to hide unfavorable material
6. Waiver by Putting-In-Issue
a. When the client is putting your conduct at issue, the client
waives the privilege…such as in malpractice suit, disciplinary
charge (fairness requires L can use client communications in
his defense)
7. Inadvertent Disclosure
a. When you make disclosure on accident
b. Traditional Rule was this resulted in a waiver
c. Federal Rule 502b
i. If you took reasonable steps prevent the disclosure and
to rectify the inadvertent disclosure in a timely manner,
there is no waiver of privilege in a federal proceeding
ii. Levi Strausse factors:
1. Reasonableness of precautions to prevent
disclosure
2. The time taken to rectify the error
3. The scope of the discovery
4. The extent of disclosure
5. The overriding issues of fairness
c. Work Product Doctrine
i. Any memos, briefs, notes made by lawyer for anticipation or assistance in
litigation are protected under this doctrine
ii. Policy for protecting
1. Borrowed wits (don’t want the other side borrowing your work)
iii. Documents protected
1. Memo’s or briefs
2. Notes from prospective client interview
3. Words exchanged during interview or advice giving sessions
iv. Covers materials that is not covered by attorney-client privilege
1. Compare with AC
a. AC if it is a talk between you and the C; WP if the L writes up
what he and C talked about
v. You would invoke this protection during document production in the
discovery stage
vi. If memo includes communications between client and attorney, than it is
protected by work product and attorney-client privilege
vii. FRCP 26(b)(3)
1. Work product documents are protected from discovery but if other
party can show substantial need of documents and cannot without
undue hardship obtain that information from somewhere else than
work product documents are not protected, however the attorney’s
impressions and theories are protected.
a. If you do have these impressions and theories in the document,
you would re-dact that stuff and disclose documents according
to court order
2. Hickman: WP is:
a. Prepared by an L
b. Which is then in progress or in reasonable anticipation of
litigation
viii. Ordinary/Fact work product
1. Facts from depositions (basically everything not Opinion WP)
2. Ls interviews of 3rd party witnesses
3. The other side can get access to your ordinary WP if they can
a. Show a substantial need under FRCP 26 (meaning they cannot
obtain its substantial equivalent without undue hardship) AND
b. The material is relevant to litigation (and it can’t be opinion
WP)
ix. Opinion work product
1. Lawyer’s mental impressions, theories and opinions
a. This gets greater protections bc opinions are at the heart of the
legal profession
x. Material prepared in anticipation of litigation
1. Two theories of when it kicks in:
a. MAJORITY RULE: If primary motivating purpose behind the
creation of the document was to aid in possible future litigation
than it is in anticipation of litigation (more narrow)
b. Primary Purpose Test: document could fairly been said to been
prepared because of prospect of litigation than it is in
anticipation of litigation. (more broad)
xi. Insurance situations
1. Only when an attorney comes into play is it in anticipation of
litigation. (majority position)
2. Any information that an insurance adjuster prepares is protected under
work product
xii. Who may invoke Attorney-Client privilege and work product doctrine
1. The attorney client privilege is for client so it is the clients decision to
make something privileged
a. Client can waive a-c privilege
2. For work product doctrine, the lawyer can object to it being disclosed.
3. Accountants have something similar EXCEPT:
 a. Not in a criminal tax matter before the IRS
b. Doesn’t apply to advice about corporate tax shelters given or
requested by the
d. Crime Fraud Section 82 of the Restatement
i. “The AC privilege does not apply to a communication occurring when a
client:
1. Consults a L for the purpose, later accomplished, of obtaining assistance
to engage in a crime or fraud or aiding a third person to do so, OR
a. “later accomplished”--steps towards it might be enough
b. “crime or fraud” means generally any illegal conduct
2. Regardless of the C’s purpose at the time of consultation, uses the L’s
advice or other services to engage in or assist in a crime or fraud
a. So if C forms the idea to commit the crime after the advice, this
can come in.
ii. In Re Sealed Case (Lewinsky): Lewinsky called to testify in Paula Jones case,
she filled out an affidavit saying she never slept with Clinton with the purpose of
preventing a subpoena. Star (brought on to investigate whether Lewinsky had
committed perjury) sent Carter (Lewinsky’s attorney) asking for documents
between Carter and Lewinsky for preparing the affidavit/Carter objects AC
privilege/US attorney counters with the crime-fraud exception. If there was
perjury and it was material to the Paula Jones action, the crime-fraud exception
applies
1. The court held that since the lie effected a judge’s ruling, it was material
and enough to implicate the crime-fraud exception
2. When CF is met, the AC privilege gets opened up
3. The L and standing to challenge this
i. Generally, only the C can appeal bc he is the holder of the
privilege
ii. Only time the L can appeal is if there is a contempt finding
iii. Some hypos on CF
1. If L has a C who committed a fraud, tells L, but the fraud isn’t
exposed yet
i. Doesn’t count as CF (Cat is out of the bag) and the exception
isn’t concerned with past crimes
ii. We are looking for future or ongoing crimes (grey area where
there is a past crime but also ongoing)
iii. L needs to make a determination of whether it is past or
ongoing. If the crime is the crime of fraud:
a. Ongoing: can’t give any advice/not protected by AC
b. In the past--can give advice. The turning point is
whether the injured party is still relying on the fraud
2. C comes to L and says I did the embezzlement and I want to come clean
i. Most courts would say this is protected bc want to encourage this
type (L can go to the DA and negotiate); however if it gets strung
out could go into CF
3. C has a bad motive, but what he is doing isn’t yet illegal
 i. Courts would say this is protected
ii. There is still a chance what he did won’t be illegal; he’s
asserting his rights in the process
4. Some courts are split on the outcome where the L gives C advice not to
break the law, but the C does so anyways

PROFESSIONAL DUTY OF CONFIDENTIALITY (this is broader (not just materials prepared

for litigation, but rather anything learned in the L/C relationship)
Compared with AC and WP (which are enforced through evidence, this is based in ethics)
1. Model Rule 1.6: Confidentiality of Information (Duty of Confidentiality)
a. A lawyer shall not reveal information relating to the representation of a client unless
the client gives informed consent, the disclosure is impliedly authorized in order to
carry out the representation or the disclosure is permitted by paragraph b.
b. A lawyer may reveal information relating to the representation of a client to the extent
the lawyer reasonably believes necessary:
i. To prevent reasonably certain death or substantial bodily harm;
ii. 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;
iii. 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;
iv. To secure legal advice about the lawyer’s compliance with these Rules;
v. 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
vi. To comply with other law or a court order
2. Notes on this rule:
a. “disclosure is impliedly authorized”--allowed to use your general knowledge of the law
to benefit all your clients
b. Keep in mind MR 4.1 (Truth in statements to others)
2. Publicly known information
a. According to MR 1.6, even if information is already publicly known, you still cannot
disclose that information and it is considered confidential.
b. According to Restatement 59, information that is generally known can be disclosed
c. In practice, the state’s ethics codes would tell you whether you can disclose or not
3. Relying on confidential information without disclosing it
a. MR 1.8(b) prohibits using confidential information concerning a present client to
the disadvantage of that client without the client’s informed consent, except as
authorized or permitted by another section of the rules
 b. MR 1.9 (c)(1) prohibits using confidential information of a former client to that
client’s disadvantage except as required or permitted by another rule or until the
information has become generally known
i. Allows the use of generally known information against a former client
c. Cant use confidential information for your own use and benefit unless the information
is generally known
4. Consent of client
a. Can disclose confidential information with the consent of your client
5. Implied Authority
a. In court lawyer has to make quick decision on use of information gotten from
representation so that is implied and you can disclose confidential information in
those settings
6. Exceptions to revealing confidential information (when you can reveal information)
a. (5) Self-Defense
i. When a client charges their lawyer with wrongdoing in the course of
representation
1. Client v. Lawyer
a. malpractice
b. Use this exception to get evidence in necessary to the action
(fee agreement, terms of representation, etc.
c. 1.6(b)(5)--there needs to be some criminal, civil, or proceeding
for this exception to kick in
i. Comment 10--Doesn’t require the commencement of a
proceeding (it can be preliminary) so that the L can
establish a defense. However, he can only divulge what
is necessary to defend himself.
ii. When a lawyer sues a client to enforce some duty owed to the lawyer, such as
payment of fee
1. Lawyer v. Client
a. Fee dispute/recovery
iii. When a third person accuses a lawyer of wrongdoing in the course of
representing a client, perhaps in complicity with the client
1. 3rd person v. Lawyer
a. Government investigation
b. Civil plaintiffs suing lawyer in torts to get compensation for
your crime/fraud
iv. Meyerhofer v. Empire Fire Case
1. According to comment 10 of MR 1.6 - Doesn’t have to get to stage of
lawsuit against lawyer but if there is assertions of misconduct or an
investigation against you, you can reveal information as a self defense
exception even prior to actual lawsuit being announced
2. Facts: Goldberg (working for Bernson) thinks the firm needs to report
something to the SEC, they didn’t, so he gave an affidavit to the SEC
to tell them his firm didn’t disclose; subsequently Ps bring action
against Bernson naming Goldberg as a defendant; Goldberg gives the
Ps the affidavit to show he wasn’t involved
 a. Under 8.4 the L listening wouldn’t be allowed to let Goldberg
tell them everything (just what is necessary for him to
exculpate himself
b. Court’s holding: Goldberg couldn’t represent the Ps firm; as
long as the disclosure of the SEC affidavit was under the
exception, there is no reason to disqualify the Ps firm
3. Comment 14 to MR 1.6 states: Always advisable to go to client first
before blowing the whistle because it helps the client-lawyer
relationship and helps the client by coming forth and accepting the
responsibility.
a. M.R. 1.13: Organization as Client
i. If a lawyer for an organization knows that an employee
is committing fraud at the company and it is likely to
result in substantial injury to the organization than the
lawyer shall proceed as reasonably as necessary and
proceed in the best interest of the organization. Unless
the lawyer reasonably believes that it is not necessary in
the best interest of the organization to do so, the lawyer
shall refer the matter to higher authority in the
organization (all the way to CEO than to Board of
Directors)
ii. If the CEO or board of directors fails to act or address
the action, the lawyer may reveal information whether
or not rule 1.6 permits such disclosure, but only if and
to the extent the lawyer reasonably believes necessary
to prevent substantial injury to the organization.
b. “Reasonably necessary” means doing what is in the C’s best
interest, and you’re looking for something that has possibility of
causing “substantial injury”
i. L has to refer the matter to the higher authority or the
highest authority. If the highest says they won’t do the
right thing, under 1.13(c) the L may reveal to authorities
(need to have a clear violation of the law)
b. (2) Crime/Fraud Exception
i. A lawyer may reveal information relating to the representation of a client to
the extent the lawyer reasonably believes necessary 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.
ii. Lawyer may withdraw from representation upon learning of ongoing
crime/fraud of client
iii. Does not apply to past crimes/frauds only ongoing
iv. MR 4.1: In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or (b) fail
to disclose a material fact to a third person when disclosure is necessary to
 avoid assisting a criminal or fraudulent act by a client, unless disclosure is
prohibited by rule 1.6
1. OPM case: OPM was lying to get loans for contracts, Ls knew about it
but turning a blind eye. Could the Ls have revealed the
communication?
a. 1.6(B)(2)(3)--L can reveal to prevent client from committing a
crime or fraud that is reasonably certain to result in harm to a
person/business; the rule says MAY
b. Other provisions aren’t MAY, such as MUST disclose material
fact to a 3rd person when necessary to prevent assisting in
criminal/fraudulent act by client (Don’t want to get involved
with these types of Cs, 1.6 is the only MAY, but don’t take it
lightly)
2. Remember, this is something that happens in the course of representing
a client
b. (3) Crime/Fraud Exception (1.6)
v. A lawyer may reveal information relating to the representation of a client to
the extent the lawyer reasonably believes necessary 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
c. (1) Death or substantial bodily harm Exception (1.6)
i. A lawyer may reveal information relating to the representation of a client to
the extent the lawyer reasonably believes necessary: to prevent reasonably
certain death or substantial bodily harm
ii. So long as you are reasonably certain of it, you don’t have to wait till it is
about to happen.
iii. Harm must be substantial not minor/looking for something big/substantially
certain to result
1. Death Row hypo: C says to L I did it and the guy on death row didn’t,
the L can still disclose even though the threat isn’t imminent
iv. Ex: Balla Case
1. Lawyer for drug company is aware that the company is selling broken
equipment to the public and tells FDA about it which would normally
be a violation of disclosure of confidential information however, since
it was reasonably certain that this equipment was going to cause harm
to its users, fill disclosure falls under death or substantial bodily harm
exception of M.R. 1.6 (confidentiality)
a. Law firms cannot use retaliatory discharge against a company
that fires them because they are not employees of the company
but independent contractors.
i. Court said he couldn’t sue for discharge when
disclosure was what the law required him to do
ii. Under 1.16 L has to keep climbing up the ladder
 b. General counsel in states that say a lawyer may reveal
confidential information when crime/fraud is being used by
company may be able to use retaliatory discharge.
v. Hawkins: Rule--the L does not have an affirmitive duty to warn like the
Tarasoff duty
vi. Hanson: there is a duty to disclose if a juge is being threatened by a
client (idea is Ls are officers of the court)
7. When there is crime/fraud going on, when do you have to withdraw your representation?
a. According to M.R. 1.2(d), a lawyer shall not counsel a client to engage, or assist a
client in conduct the lawyer knows is criminal or fraudulent.
i. Consider 8.4 along with this in the confidentiality analysis
b. M.R. 1.16(a): A lawyer shall not represent a client or when representation has
already begun, a lawyer shall withdraw from the representation of the client if:
i. (1) the representation will result in violation of the rules of professional
conduct or other law
1. (My notes) You are required to withdraw if continued representation
results in violation of the ethical rules or the law. You MAY withdraw
if the C insists in using the L’s services in a way that the L reasonably
believes will result in the using of his services in committing a fraud
2. Policy arguments with these types of rules
a. May harm full and frank disclosure (clients may self-censure)
b. Makes it more complicated for the L
c. Before Model Rules, the SEC was beginning to step in and
regulate Ls, the bar didn’t like, so it started regulating
8. M.R. 1.14 - When a lawyer reasonably believes a client has diminished capacity, a lawyer
may reveal confidential information pursuant to M.R. 1.6(a) but only to the extent reasonably
necessary to protect the client’s interest.
9. M.R. 8.4: Misconduct
a. It is professional misconduct for a lawyer to:
i. Violate or attempt to violate the rules of professional conduct; knowingly
assist or induce another to do so, or do so through the acts of another
ii. Commit a criminal act that reflect adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects
iii. Engage in conduct involving dishonest, fraud, deceit or misrepresentation
iv. Engage in conduct that is prejudicial to the administration of justice
v. State or imply an ability to influence improperly a government agency or
official or achieve results by violating rule of professional conduct
vi. Knowingly assist a judge or judicial office in conduct that is a violation of
applicable rules of judicial conduct or other law

CONFLICTS OF INTEREST

1. Rules governing conflict of interest

a. M.R. 1.7 (concurrent clients)
b. M.R. 1.8 (conflicts between a client’s interest and the lawyer’s interests)
c. M.R. 1.9 (successive conflicts)
 d. M.R. 1.10 (conflict of interest – imputation)
2. Conflicts of Interest deal with value of loyalty
a. Loyalty to your client v. loyalty to the rules
b. Loyalty to your client v. loyalty to the law
3. What we are trying to prevent?
a. Breach of confidentiality (L misusing the C’s information)
b. Misuse of confidential information (L using C’s info to C’s disadvantage)

Concurrent Conflicts of Interest

1. M.R. 1.7: Conflict of Interest: Current Clients

a. A lawyer shall not represent a client if the representation involves a concurrent
conflict of interest. A concurrent conflict of interest exists if:
i. The representation of one client will be directly adverse to another client;
or
1. Directly adverse means that the lawyer is advocating for A in one
matter against B, whom he represents in some other matter. Matters
don’t have to be related.
ii. There is a significant risk that the representation of one or more clients will
be materially limited by the lawyer’s responsibilities to:
1. another client
2. former client
3. third person
4. personal interest of the lawyer.
b. Even if a concurrent conflict of interest exists, a lawyer may represent a client if:
i. The lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client; AND
ii. The representation is not prohibited by law; AND
1. (My notes) Like statutes controlling government Ls
iii. The representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or other
proceeding before a tribunal; AND
1. (My notes) can’t go from P table to D table in same case
iv. Each affected client gives informed written consent
2. The representation of one client against another client in the same litigation is non-
consentable because the representation will always be materially limited and directly adverse.
3. Concurrent conflict broken down:
a. Representing the one client will be directly adverse to another client OR
i. This is like representing a P & D in the same lawsuit
ii. Or if you rep C1, call C2 to the stand as a W, and then make C2 look like crap
to help C1’s case
b. There is a significant risk that the representation of one or more clients will be
materially limited by the Ls’ responsibilities to:
i. Another client
ii. A former client
iii. Or a 3rd person
 iv. OR a personal interest of the L
1. Materially limited: the idea is that L might be pulling punches/can’t
fully commit to a case because has an interest in the outcome
4. Positional conflicts
a. When a lawyer’s legal position of client A is directly contrary to the legal position of
client B in an unrelated matter, that is a positional conflict
i. Court generally allow this even though it is a conflict of interest
ii. Only when it becomes a big problem should the lawyer withdraw
representation
5. When does a lawyer-client relationship exist?
a. Lawyer-client relationship is either expressly agreed to or impliedly agreed to if the
client reasonably believes you are their lawyer
i. Lawyer must inform a person or organization that they are not their lawyer so
that this problem doesn’t exist
b. Office in different cities for one law firm count as one law firm
c. Corporate family conflicts
i. A lawyer for a corporation does not automatically represent any affiliate
(parent, subsidiary, or sibling corporation)
1. Ex: just because you represent the big corporation doesn’t mean you
represent the subsidiary corporations of the big parent corporation
2. Have to do a separate analysis for each potential client
d. Clients on Retainers
i. So long as the lawyer is on retainer, there exists a lawyer-client relationship.
1. Even if there isn’t a current/pending matter--the relationship continues
ii. Retainer – lump sum of money that is applied to the cost of representation that
is given up front
iii. If a client uses a firm on a multiple continuous, repeated relationship, the
court may hold that there is a current lawyer-client relationship
e. Westinghouse Electric v. Kerr-McGee: Westinghouse is C1, API is C2, and K&E
represents both (DC office reps API and Chicago office reps Westinghouse). K&E wrote
a report for API to give to Congress on how it didn’t need to worry about oil and anti-
trust issues; Westinghouse retains K&E to assert its subjected to a monopoly. K&E
tries to argue API isn’t a real client (just drew up the report)
i. Restatement Section 14: L/C relationship arises when:
1. A person manifests intent to have the L represent him; and either
a. The L manifests to the person consent to do so; or
b. The L fails to manifest lack of consent, and the L knows or
reasonably should know that the person reasonably relies on the L
to provide the services
2. A tribunal appoints the L
ii. Court here says there is enough of professional relationship to create a conflict
(if there aren’t formal AC relationships, basic duties of Confidentiality/
Loyalty and Honesty still apply)
iii. Practically speaking, even though there are different offices--could still get
information in between; should have checked their current client before taking on
the new one
6. How to avoid disqualification for conflicts of interest
a. Advance waiver of conflicts
i. Advanced waiver – in retainer agreements, the client agrees to waive certain
future conflicts should they arise.
1. Advanced consent for a conflict of interest before the conflict arises
ii. Problem with this is it may not be informed consent because they don’t know
what conflict will arise in the future.
iii. Court are generally skeptical of advanced waivers but sometimes uphold them
so long as there was contemplation of conflict before hand by client and
lawyer, if the client is sophisticated (perhaps general counsel of a corporation)
1. Courts are inclined to strike down broad waivers
iv. Can still invoke advanced waiver if there is a change in circumstances that
were unknown to client at the time.
b. Screening is not usually allowed in concurrent conflicts of interest
7. Procedures to discover conflicts of interest
a. Lawyer should adopt reasonable procedures to discover conflicts on their own
i. Large and mid-sized firms use computer software
b. When law firms merge, clients of each merging firm becomes the client of the merged
law firm
8. Who can raise conflict of interest arguments?
a. The directly affected party is permitted to raise a conflict of interest argument
b. Courts are split on whether non-clients can raise conflict of interest arguments
i. Some courts will allow non-clients standing to raise this disqualification
conflict of interest issue
ii. Some courts will NOT allow non-clients standing to raise the disqualification
conflict of interest issue
c. If there is an undue delay for the raising of a conflict of interest by a party, the court
will say that the conflict has been “waived” and sometimes cite the doctrine of laches
or estoppel.
i. The moving party must have intentionally delayed filing the motion despite
knowing of the conflict.
d. Courts are weary of conflict of interest arguments being raised by opposing counsel
because they may have caused the conflict in their strategy.
9. Can a conflict of interest be appealed right away or do you have to wait till after the trail
court is done?
a. Trial court has to let you bring the appeal right away through an interlocutory appeal
and many times trial court doesn’t let you
b. In federal court, generally it will have to be brought up on appeal after the trial court
has finished
10. Hot Potato Doctrine
a. When a lawyer is faced with a conflict of interest, they drop one of the clients so that
the conflict of interest no longer exists because they aren’t a current client anymore
b. Cannot drop the less important client but you should drop both clients for the sake of
loyalty to clients
 c. If clients merge and create conflicts of their own, court will usually allow lawyers to
drop one of the clients because it was not a foreseeable conflict.
i. However, if two firms merge, cannot drop the less important client and keep
the lucrative one--courts say the firm created the COI
11. Personal Interest Conflicts
a. A personal interest conflict is one created by a lawyer’s interests other than those
arising from the representation of other clients or the owing of fiduciary duties to
some third party.
b. Personal value issues, religion, going up against family, lawyers financial interests
with a client
i. This would include if what the C wants from the litigation conflicts with your
own personal belief. If you think you can do a good job:
1. Make sure your belief is reasonable
2. Get informed consent
ii. 1.7 comment 11--where there is a blood relation, you can’t represent a C
suing them unless each party gives informed consent
c. M.R. 1.8(j) prohibits a lawyer from having sexual relations with a client unless a
sexual relationship predated the relationship.
i. Best to get informed written consent from client
d. Personal interest conflict of interest are not imputed to the entire firm
12. M.R. 1.8: Conflict of Interest: Current Clients: Specific Rules
a. A lawyer shall not enter into a business transaction with a client or knowingly acquire
an ownership/interest adverse to a client unless:
i. The terms and transaction of the interest is fair and reasonable to the client
and are fully disclosed and transmitted in writing
ii. The client is advised in writing that they should seek independent counsel on
the transaction
iii. The client gives informed consent of the transaction involved
b. A lawyer shall not use information relating to the representation of a client to the
disadvantage of the client unless the client gives informed consent
c. A lawyer shall not solicit any substantial gift from a client unless that client is related
d. A lawyer shall not negotiate an agreement with the client to obtain rights to the
interest of the client from information obtained throughout the representation
e. A lawyer shall not provide financial assistance to a client except that
i. A lawyer may advance court costs and expenses of litigation through
contingency fees
ii. A lawyer representing an indigent client may pay court costs and expenses of
litigation for the client
f. A lawyer shall not accept compensation from someone different that the client unless
i. The client gives informed consent
ii. There is no interference with the lawyer-client relationship
g. A lawyer who represents two or more clients shall not participate in making an
aggregate settlement of the claims of or against the clients unless each client gives
informed consent in writing
h. A lawyer shall not:
 i. Make an agreement limiting their liability for malpractice unless the client
does so independently
ii. Settle a malpractice issue with the client without them being represented and
if you have informed them that they should seek independent counsel and a
reasonable time has passed without them doing so, you may settle with them
i. A lawyer shall not acquire a proprietary interest in the cause of action of subject
matter of litigation except that the lawyer may:
i. Acquire a lien authorized by law to secure the lawyer’s fee
ii. Contract with a client for a reasonable contingent fee
j. A lawyer shall not have sex with a client unless the sexual relationship predates the
representation
k. All these prohibitions except for (j) are imputed to the entire firm
i. (My notes) BC one L in the firm is representing the C, the other Ls could have
a relationship with the C, but not the exact L representing them
12. Fiandaca v. Cunningham (1st Cir. 1987): Female inmates brought a claim for better facilities
(represented by NHLA--legal aid group); NLHA also represents LHS (a mentally
challenged facility); State makes an offer to inmates (will fix in 3 years), females reject
(want in 6 months); 2nd offer will move female inmates to LHS, NHLA rejects bc don’t
want to hurt their LHS clients; 1.7 analysis
i. If it’s a concurrent COI, you go to 1.7(b) to see if it’s consentable
ii. Not direct adversity (K&E set-up), rather it’s materially limiting the L’s
responsibilities (rejected a good settlement to benefit another client)
iii. Is it consentable? The L cannot reasonably believe he can competently and
diligently represent both
1. Once you get through 1.7(b)(1-3), still need to get through 1.7(b)(4)
2. Releasing yourself from one class creates a loyalty issue--IF IT CAN”T
BE CURED BY CONSENT, the L needs to drop out against both; the idea
is it screws them equally. Either withdraw or get consent
3. The ethical violation here was rejecting the 2nd settlement offer
4. Bringing the motion to disqualify counsel for COI
a. Some courts allow non-clients to bring/others say it has to be
client
13. Remedies for Conflicts of Interest
a. Conflict of interest violations may lead to a number of sanctions and remedies
i. Malpractice action
ii. Punitive Damages
iii. Fee forfeiture
iv. Disbarment by the bar
v. Disqualifications in that client
b. Disqualified Lawyer’s Work
i. Court looks to see if there is confidential information in the work product
from the conflicted party that was gained due to the conflict of interest.
ii. Make sure new counsel doesn’t have tainted information because of the
conflict of interest.
14. Corporate family conflicts
 a. An L doesn’t automatically represent a parent company when he represents the
subsidiary, but is easy to impliedly walk into an L/C relationship

Joint Representation in Conflicts of Interest

1. M.R. 1.7 applies to joint representations

a. When a lawyer represents clients jointly in the same matter such as a business
transaction
i. There is a risk involved because the lawyer could start taking the side of one
client more than the other (favoritism)
b. Why does the law allow any joint representation?
i. Mainly about cost – lower transaction costs to the clients involved
ii. See frequently in real estate, divorce agreements, wills, business Ks
1. Cons:
a. Potential COIs--1.7(a)(2)--may not have direct adversity, but
there can still be loyalty concerns
b. Ls wanting to represent clients jointly need to have the
conversation with the C and get informed consent; explain the
perimeters of representation
2. Confidentiality Concerns
a. What one joint C tells the L, the L can tell to the other joint C
b. Otherwise you are creating too many issues inside the bubble
i. Small exception--protecting the KFC secret recipe
iii. Fulton:
2. If you were the lawyer in a joint representation, you would need to do a M.R. 1.7 analysis
and then get informed written consent.
a. Are they directly adverse?
i. Well they aren’t suing each other
b. Is representation materially limited?
i. There is a risk of materially limiting the representation of one of the clients
because there could be disagreements between the two clients.
c. Even though there is an existence of a conflict of interest, may I represent the client?
i. Have to reasonably believe that you will be able to provide competent and
diligent representation to both clients, the representation is not prohibited by
law, the representation does not involve the assertion of a claim by one client
against another client in the same litigation, and I have to get written informed
consent by both clients
ii. Even if you get that informed written consent at the outset of the transaction,
there still could be a conflict of interest that arises during the transaction that
would not allow you to continue to represent both clients
1. Have to tell the client that you cannot represent one over the other and
you would have to withdraw from representing both of them unless
they can resolve the issue right away.
3. Attorney-Client Privilege with Joint Representation
a. The attorney-client privilege protects all information discussed throughout the joint
representation from outside parties.
 b. If the joint represented clients get into a dispute, the attorney-client privilege no
longer protects that information in the joint representation between the two clients but
it is still protected from outside parties.
i. Meaning: Joint clients have no attorney-client privilege to assert against one
another in any later litigation involving the subject matter of the prior joint
representation
ii. The L should explain this when sketching out the nature of joint
representation
c. When you were getting the informed written consent at beginning of joint
representation, you would have to tell them about the attorney-client privilege duties.
d. All information would be shared between the joint clients and any information that
would not be discussed freely between the joint clients would need to be agreed to
prior to beginning of joint representation
e. If one client in a joint representation insists that critical information be kept from the
other, the lawyer would be bound to keep that confidence but must resign from the
joint representation which at least puts the other client on notice that something was
amiss
i. One court held the L was right to tell the other spouse about an unknown child
when drafting a will (joint C using L to commit a joint-fraud on his wife); the
court said the L had a right to tell the wife bc the L could be sued for fraud
4. Lawyer serving as Third-Party Neutral
a. M.R. 2.4
i. A lawyer serves as a third-party neutral when he assists two or more person
who are not clients to reach a resolution outside of litigation
ii. Lawyer must inform them that he is not their lawyer and is acting as a neutral
third party.
5. Joint Representation in Real Estate Transactions
a. Some courts do not allow joint representation in complex commercial real estate
transactions
b. Ex: State v. Callahan
i. Callahan was personal lawyer of A who wanted to buy land from B. Callahan
became lawyer of B in the transaction, so A and B were jointly represented by
Callahan.
1. There was a M.R. 1.7 conflict of interest and Callahan didn’t get
informed consent from B regarding the prior representation for A.
2. There was a M.R. 8.4 violation because Callahan was being deceitful
to B
a. Never had the talk to explain scope of joint representation
b. This is a concurrent materially limited COI (significant risk the
representation will be limited by L’s responsibilities to another
C or personal interest); L and A have been business partners in
the past--L never went through 1.7(b)(1-4) hoops.
c. L lied, told B she had a secured lien; he hides the knowledge of
what B really has when A defaults (implicates 8.4)
6. Joint Representation in Martial Matters
 a. Some courts allow a lawyer to engage in joint representation on some aspects of
divorce, such as negotiating a separation arrangement or drafting other papers dealing
with property division or child custody for subsequent submission to the divorce court
b. Cannot have joint representation of wife and husband in divorce litigation
7. Joint Representation in Estate Planning
a. Involves preparing wills, trust instruments, and other estate planning documents for a
husband and wife who want to plan jointly for the distribution of their assets after
their deaths.
b. Joint representation is allowed
i. Lawyer should make clear the lawyer’s relationship to the parties involved
8. Joint Representation in the formation of business ventures
a. It is possible to do joint business ventures
b. The more complex the business venture is, the harder it is to do a joint representation
9. Aggregate Settlement Rule
a. M.R. 1.8(g)
i. A lawyer who represents two or more clients shall not participate in making
aggregate settlement of the claims of or against the clients unless a lawyer
participating in the aggregate settlement of clients’ claims obtains the
informed consent of each client in a writing signed by the clients.
ii. The disclosure (for informed consent purposes) shall include the existence and
nature of all the claims or pleas involved and of the participation of each
person in the settlement.
1. Example situation: Mass torts(lots of Cs suing one entity; can’t make
an aggregate settlement unless each C gives written informed consent;
these are jointly represented Cs but rather single Ps and you want to
aggregate their settlement)
a. Generally, one veto on behalf of all Cs means no settlement
b. Courts are increasingly interpreting as allowing persons to opt
in and out rather than a single veto
Successive Conflicts of Interest - Conflicts of interest between current client and former
client that you used to represent

1. M.R. 1.9: Duties to Former Clients

a. A lawyer who represented a former client in a matter shall not represent a current
client in the same or a substantially related matter in which the current client’s
interests are materially adverse to the interest of the former client unless the
former client gives informed written consent.
i. Should get informed written consent from current client also
ii. (My notes) Talking about former Cs, not current
iii. Purpose: maintain loyalty; (compare with concurrent where 2 Cs suing one
another at same time), former and new C suing one another. If the matter isn’t
substantially related, even if their interests are materially adverse, don’t need
consent
1. Rule is loser so firms will have autonomy to take on new Cs/Cs have
freedom to pick Ls
iv. Values: Loyalty and confidentiality
 b. A lawyer shall not knowingly represent a person (new client) in the same or a
substantially related matter that the lawyers former firm had represented
i. Whose interest are materially adverse to that former client; and
ii. About whom the lawyer had acquired information protected by confidentiality
(m.r. 1.6) unless the former client gives informed written consent
1. [[a lawyer who goes to a new firm is not disqualified from
representing a client that is materially adverse to a client of your
former firm so long as you didn’t acquire confidential information
about that former client while working at the former firm]]
c. A lawyer who has formerly represented a client in a matter or whose present or
former firm has formerly represented a client in a matter shall not:
i. Use information relating to the representation to the disadvantage of the
former client except as the rules would permit
1. (My notes)--these rules that permit are CF 1.6, and 1.13 for
corporations
2. If you don’t have one of these exceptions, can’t use the information
ii. Reveal information relating to the representation except as the rules would
permit
1. (My notes) 1.9(c) is an independent bar from using the information
against that person if you are representing a former C in a substantially
related matter
2. Same or substantially related looks at a number of things (look at the
information--is there a chance it will be pilfered)
2. Successive Representation of Joint Clients
a. Ex: Brennan Family Case
i. Lawyer jointly represented family and when they split he choose one of the
sides of the family. Former client (other side of family) moved to disqualify
lawyer basing his actions as a violation of M.R. 1.9.
ii. Court said you still get disqualified because 1.9 still holds true in joint
representations because of loyalty issue and duty of confidentiality
iii. Loyalty problem bc L is using the information from the previous joint
representation to disadvantage the other
iv. 2nd L brought on--court remanded to see if he was tainted by initial L
3. Other Successive Representation Issues
a. Primary and Secondary (Accommodation) Clients
i. Some courts hold that when a joint representation terminates, the lawyer may
continue representing a primary client against a secondary or accommodation
client
1. Ex: doing a business deal for a long time client (corporation)
2. Mini-client can’t require you get their informed consent (rationale is
that the accommodation is impliedly giving informed consent for you
taking them on in this one instance)
b. Substantially Related Matters
i. matters are 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.
1. There are some splits on what substantially related means
a. (5th Cir.) Reasonable person standard
i. To be substantially related, the prior representation need
only be akin to the present action in a way reasonable
persons would understand as important to the issues
involved
b. Relationship must be patently clear/issues almost identical
c. Restatement (which influenced comment 3 to MR 1.9(p. 468)
i. The current matter involves the work the L performed
for the former client
ii. There is a substantial risk that represented of the
present client will involve the use of information
acquired in the course of representing the former client,
unless that information has become generally known
2. The main thing to remember/backdrop is whether there is the risk
confidential information is being used
c. Competition as an Adverse Interest
i. Being mere business competitors doesn’t mean it will be materially adverse,
has to be something more
d. Taint Shopping
i. The problem of a potential client contacting a lawyer and revealing
confidential information to the lawyer, but then not hiring the lawyer, solely
for the purpose of ensuring that the lawyer usually a prominent lawyer will
not be available to represent the potential client’s adversary.
ii. M.R. 1.18 comment 2: A person who communicated information unilaterally
to a lawyer without any reasonable expectation that the lawyer is willing to
discuss the possibility of forming a lawyer-client relationship is not a
prospective client.
1. A prospective client is entitled to the protection of attorney-client
privilege but someone who is taint shopping is not really a prospective
client (no intent to hire that lawyer) and is not entitled to the protection
of attorney-client privilege.
2. So, if a C comes in and tries to create a conflict, they aren’t a client; if
they aren’t a client, then 1.18 requirements aren’t implicated
iii. Taint shopping not allowed
e. Duties to Prospective Clients
i. M.R. 1.18: Duties to Prospective Clients
1. A person who discusses with a lawyer the possibility of forming a
client-lawyer relationship with respect to a matter is a prospective
client.
2. Lawyer shall not represent a client with interests materially adverse to
those of a prospective client in the same or a substantially related
matter if the lawyer received information from the prospective client
that could be significantly harmful to that person in the matter.
 3. The conflict is imputed to the lawyer’s firm but the imputation can be
overcome by informed consent in writing of both the current and
prospective clients, or by screening the disqualified lawyer and
notifying the prospective client.
a. Screening consists of memo stating not to talk about case with
certain lawyer, files are segregated against that lawyer
b. Screening not permitted for current clients

Imputed Conflicts and the Migratory Lawyer – Conflicts of Interest are imputed to the
entire firm (except for personal interest conflicts of interest)
a. Migratory L: an L who changes firms/lateral hire.
b. The issue here is if an L migrates, he can impute the COI on the new firm
i. Purposes for the rule: Ls have a professional and financial interest in promoting
their firm; may be tempted to share confidential information to further this
interest.
c. Practical effect: it doesn’t matter if there are 100 Ls in the firm, when its imputed to the
firm it’s as it’s one person

1. M.R. 1.10: Imputation of Conflicts of Interest: General Rule

a. Lawyer who are associated in a firm shall not knowingly represent a client when any
of them practicing alone would not be able to because of conflicts of interest (M.R.
1.7 or M.R. 1.9) unless the conflict of interest is a personal interest and does not
present a significant risk of materially limiting the representation of the client by the
remaining lawyers in the firm
i. (My notes) means that associates/partners can’t knowingly represent a C when
any one practicing alone would be prohibited from doing so by 1.7 & 1.9
ii. (My notes) Personal COI (representing a family member, etc.) are not imputed
to the rest of the firm--may have issues if the L with COI is paying salary of
the one representing his mom--still have to do a separate analysis of the COI
b. When a lawyer has terminated an association with a firm, the firm is not prohibited
from thereafter representing a person with interest materially adverse to those of a
client represented by the formerly associated lawyer and not currently represented by
the firm, unless:
i. the matter is the same or substantially related to that in which the formerly
associated lawyer represented the client and
ii. any lawyer remaining in the firm has information protected by rules 1.6 and
1.9(c) that is material to the matter
c. disqualification may be waived by the affected client under the conditions stated in
M.R. 1.7
d. M.R. 1.11 governs disqualification of lawyers associated in a firm with former or
current government lawyers.
2. What constitutes a firm for imputation reasons?
a. Two practitioners who share office space and occasionally consult or assist each other
ordinarily would not be regarded as constituting a firm. However, if they present
themselves to the public in a way that suggests that they are a firm or conduct
themselves as a firm, they should be regarded as a firm for the purposes of the Rules.
 b. Depends on factual details, especially those concerning how the lawyers’ relationship
has been presented to potential clients.
3. Screening is allowed in migratory lawyer situation!!
a. Screened means that the L that talked with the prospective C who is causing the COI
can’t share that information with anyone else at the firm; infected L should keep all
memos in his personal files; other Ls should know not to ask about it; large firms
need to internationally bc they can access the firm’s databases to get the information
4. CHANGE IN THE RULES THIS YEAR
a. Set-up: Traditional rule was Typhoid Mary--when L comes to the firm and represented
a C at the old firm with interests adverse to new firm’s C, the conflict was imputed
b. Under Revised 1.10, it’s no longer so harsh; you can screen to avoid this
5. The New 1.10:
(a) While lawyers are associated in a firm, none of them shall knowingly represent a
client when any one of them practicing alone would be prohibited from doing so by Rules
1.7 or 1.9, unless
(1) the prohibition is based on a personal interest of the disqualified
lawyer and does not present a significant risk of materially limiting the
representation of the client by the remaining lawyers in the firm; or
(2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the
disqualified lawyer’s association with a prior firm, and
(i) the disqualified lawyer is timely screened from any participation in the
matter and is apportioned no part of the fee therefrom;
(ii) written notice is promptly given to any affected former client to enable
the former client to ascertain compliance with the provisions of this Rule,
which shall include a description of the screening procedures employed; a
statement of the firm's and of the screened lawyer's compliance with these
Rules; a statement that review may be available before a tribunal; and an
agreement by the firm to respond promptly to any written inquiries or
objections by the former client about the screening procedures; and
(iii) certifications of compliance with these Rules and with the screening
procedures are provided to the former client by the screened lawyer and by
a partner of the firm, at reasonable intervals upon the former client's
written request and upon termination of the screening procedures.
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited
from thereafter representing a person with interests materially adverse to those of a client
represented by the formerly associated lawyer and not currently represented by the firm,
unless:
(1) the matter is the same or substantially related to that in which the
formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules
1.6 and 1.9(c) that is material to the matter.
(c) A disqualification prescribed by this rule may be waived by the affected client under
the conditions stated in Rule 1.7.
(d) The disqualification of lawyers associated in a firm with former or current
government lawyers is governed by Rule 1.11.
 i. (My notes on the rule) Retains the personal interest exception and allows
guidelines for screening and what is required to ensure compliance.
ii. Restatement Section 121 influenced this, but it is a little stricter bc wouldn’t
allow partners to be screened (under new 1.10 you can screen any L)
a. Policy--if we don’t allow screens, it will impede Ls abilities to move
b. Comment 5 to 1.10: [5] Rule 1.10(b) operates to permit a law firm,
under certain circumstances, to represent a person with interests directly
adverse to those of a client represented by a lawyer for formerly was
associated with the firm. The Rule applies regardless of when the formerly
associated lawyer represented the client. However, the law firm may not
represent a person with interests adverse to those of a present client of the
firm, which would violate Rule 1.7. Moreover, the firm may not represent
the person where the matter is the same or substantially related to that in
which the formerly associated lawyer represented the client and any other
lawyer currently in the firm has material information protected by Rules
1.6 and 1.9(c). (Idea is I didn’t work on it, it was imputed to me, but I
don’t have any information so I can switch sides)
4. Hypo:
a. Mr. Gulliver is a lawyer of First & First. (Motor Corp wants to sue Sewer Corp in a
substantially related matter). Ms. First is a lawyer of First & First (represented Sewer
Corp in suit against Bland Construction)
i. Mr. Gulliver cannot represent Motor Corp.
ii. Sewer is not a current client COI (1.7 problems) but it is a former client COI
(1.9 problems)
1. A former client conflict is defined by something that is materially
adverse and substantially related matter
iii. Gulliver cannot represent Motor Corp. unless it gets informed consent from
former client (Sewer Corp.) and gets informed consent from current client
(Motor Corp.) because it would be a good idea to protect yourself from a 1.7
COI violation.
iv. According to 1.10, since Gulliver and First are lawyers in the same firm, any
COI is imputed to the whole firm.
b. Now Gulliver leaves First & First and joins Second & Second. Motor Corp. is a
client of Second & Second and has sued Sewer Corp.
i. Is Gulliver disqualified from representing Motor Corp?
1. According to 1.9(b), if Gulliver has confidential information that is
material to the Motor-Sewer suit, then Gulliver would be disqualified.
ii. Is Second & Second disqualified from representing Motor Corp because
Gulliver is disqualified?
1. Since Gulliver has confidential information that is material we are
worried about that info being given to rest of firm.
2. Second & Second has to screen off Gulliver in order for their firm to
not be imputed of Gulliver’s COI.
a. Restatement §124 authorizes screening
i. Under Restatement 124, if Gulliver comes over to
Second & Second, they can screen him if he has some
 confidential information (not killer confidential info.)
and Second & Second can still represent Motor.
b. M.R. 1.10 authorizes screening
iii. Is Second & Second disqualified from representing Motor Corp if Gulliver is
not disqualified because he has no confidential information material to the
related matter?
1. Since Gulliver has no confidential information on the former client,
Second & Second is not disqualified because 1.9(b) is not triggered.
iv. Can Gulliver represent Motor for Second & Second against Sewer?
1. So long as Gulliver has no confidential information of Sewer,
according to 1.9(b), he can represented Motor.
2. There is a conflicting interest in that the basic value of Loyalty may be
hindered against Sewer. (not in rules but just a thought of scholars)
4. Nemours: Nemours wants to disqualify defense counsel (the Biggs firm) bc Biggs has
Bradley as an associate (switched sides). Bradley worked on a mini-trial, attended a brief
settlement discussion. Biggs found out about the conflict after it hired Bradley. Biggs
firm implements a cone of silence.
i. Under 1.9(a), Bradley is clearly disqualified
ii. Under new 1.10, the firm isn’t disqualified so long as Bradley is timely
screened. The court here thought the cone of silence was fine (case was ahead of
the MR)
a. Aside: other areas where the MRs allow screening--1.18(duties to
prospective clients)
5. WHO IS THE CLIENT

1. When the client is an organization/corporation

a. Your client is the corporation, not the individuals employed by the corporation
b. It is possible to represent the corporation and an employee of the corporation but it
does pose conflict of interest problems
i. If you do represent both, get informed written consent from both of them
2. Insured and Insurer situation – Is the client the insured or the insurance company who hired
you to represent the insured
a. Loyalty issues exist over the interests of the insured and insurer
i. Problems exist when the amount you get back from settlement of the case is
more or less than what your insurance coverage allows for.
1. Insured may want settlement that is lower than what his coverage
allows for so he doesn’t have to pay out of pocket expenses for
anything over his coverage.
b. The client is the insured but the insurer is the one paying the attorney fees
c. May still have a duty to insurer even if they aren’t a client because they have an
interest in the affairs of the client and lawyer
d. Bad faith failure to settle is a mechanism insured can use against insurer when the
case goes to trial and the damages amount is more than the coverage amount
i. Keeps insurance company in line when settling cases
e. When not sure if there is an A-C relationship present:
i. Look to see if there is an express agreement of A-C relationship
 ii. Look to see if there is implied agreement of A-C relationship
iii. Lawyer can still be liable to non-client/3rd party because they may have a duty
to them if it is foreseeable that the interests of the insurer are tied to the
insured client.
f. The lawyer can accept compensation for representing the insured from the insurance
company because of M.R. 1.8(f)
g. M.R. 5.4(c)
i. A lawyer shall not permit a person who recommends, employs, or pays the
lawyer to render legal service for another to direct or regulate the lawyer’s
professional judgment in rendering the legal services.
1. Problem arises when insurance company wants to settle or not settle
and the insured client wants to settle or not settle
3. Lawyers for a Class
a. Who is the client in a class
i. Every single person in the class or the representative?
b. A class exists when there are multiple plaintiffs suing a common defendant for the
same claims
c. Payment for class lawyers
i. Plaintiff lawyer is paid through the settlement or defendants lawyer says they
will pay reasonable attorney fees with court supervision
ii. Lodestar Method
1. Class counsel will record the hours spent working and submit the
hours to the court at the end of the suit for defendants to reimburse him
at a billable rate (of a top defense counsel rate)
a. Ex: spent 3000 hours at a billable rate (of a top defense counsel
rate) + Lodestar multiplier(1-4 times)
i. Ex: 4000 hours at a rate of $500 plus a multiplier (x2)
d. Conflicts between class counsel and the class
i. Payment of lawyer
1. Lawyer may want to settle (to get paid) when not in the best interest of
class
a. Lawyer may delay the settlement to gain more billable hours to
increase their pay
i. Ways to defeat the conflict:
1. Judicial review of class settlements
a. Court must approve
b. Occurs in class action suits and suits
with/against minors
b. May settle for lower amount because of concern of going to
trial (don’t get paid if lose in trial) even though class may not
want that amount on settlement
ii. When there are both class action pending and individual action pending
against same defendant with same claim
1. Lawyer may look at the different cases as a package even though
evaluations are different in order to maximize plaintiff firms payment
 a. There is a concurrent conflict of interest between your clients
which would materially limit the lawyer
2. Lawyer may settle the class actions quickly and against interests of
class in order to get agreement to settle the individual cases quickly so
that that lawyer can get the fee from the settlement of the individual
cases.

LITIGATION AND NEGOTIATION (Begin Honesty)

A. Concerns: L’s honesty in bringing actions; not assisting clients in lying

1. Client Perjury
a. Perjury is lying under oath
i. For a client, it is a criminal offense to commit perjury
ii. As a lawyer, advise client not to lie because it is a criminal offense but also
the lawyer is responsible not to lie to court.
iii. Cary case: L sleeping with C who he was representing in a divorce
proceeding; during C’s depo she lies about where she was when L knew she
was with him; L tells a fellow partner, they help C find another L. Potential
problems for the firm include COI, dis-barrment, malpractice; the sex isn’t the
biggest problem--it’s that he sat silent while C perjured herself
1. The Court’s say that if W commits perjury and L knows, he is aiding in
C committing perjury
2. The optimal thing would have been for L to call a break as soon as she
stopped her sentence
3. Remonstrate, rectify, resign, reveal (under 3.1 and 3.3, if you stop it,
not offering evidence you know to be false); Something about may
reveal in 1.6 as compared to when you reveal the information to a
court its a shall? (see 10/13 notes at the end)
b. Model Rules affecting issues of lawyer and client lying
i. M.R. 1.2(d)
1. 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
ii. M.R. 1.6(b)(2) (1.6(b) says “A L may revewal information
relating to the representation of a C to the extent the L
reasonably believes necessary:
1. 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
iii. M.R. 1.6(b)(3)
1. 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
iv. M.R. 3.3: Candor Toward the Tribunal
 1. A lawyer shall not knowingly make a false statement or fail to correct
a false statement of fact or law to a tribunal.
2. A lawyer shall not knowingly fail to disclose to the tribunal legal
authority in the controlling jurisdiction known to the lawyer to be
directly adverse to the position of the client and not disclosed by
opposing counsel
3. A lawyer shall not knowingly offer evidence that the lawyer knows to
be false. If a lawyer, client, or a witness called by the lawyer has
offered false material evidence that is later learned, lawyer shall take
reasonable remedial measures, including disclosure to tribunal.
4. If a lawyer knows a client will engage in criminal or fraudulent
conduct related to the proceeding shall take remedial measures,
including disclosure to tribunal
a. Inform the client not to do it and if they don’t listen, lawyer has
to withdraw representation because if they didn’t, they would
be assisting with a fraud
5. In an ex parte proceeding, a lawyer shall inform the tribunal of all
material facts known to the lawyer that will enable the tribunal to
make an informed decision, whether or not the facts are adverse.
a. (My notes) Slight variation--if an L is offering information on
cross that the L knows to be false:
i. A literal reading of the rules would say no
ii. However, in practice, it’s allowed bc exposing a
lie/deterring false testimony
iii. Going in, you have a duty to not offer false information
1. If the W blurts out something false (you haven’t
assisted/prepared them), the question becomes
whether it is material--if so it triggers
reasonable measures (*it has to be material
evidence to trigger the L’s right to rectify the
situation)
b. Duties of candor end with litigation; if C comes later and tells
you he was lying--don’t have to expose
v. M.R. 3.4: Fairness to Opposing Party and Counsel
1. A lawyer shall not
a. Obstruct or destroy evidence
b. Falsify evidence, counsel or assist a witness to testify falsely,
or induce a witness
c. Knowingly disobey an obligation under the rules of the tribunal
d. Make frivolous discovery requests or fail to comply with a
discovery request
e. Assert personal knowledge of facts except when testifying as a
witness, state a personal opinion, allude to any matter that the
lawyer does not reasonable believe is relevant or will not be
supported by evidence
 f. Request another person other than client to refrain from
voluntarily giving relevant information unless:
i. The person is a relative or employee or other agent of
the client; and
ii. The lawyer reasonably believes that the person’s
interests will not be adversely affected by refraining
from giving such information.
vi. M.R. 4.1: Truthfulness in Statements to Others
1. In the course of representing a client, a lawyer shall not knowingly
make false statements of material fact or law to a third person or fail to
disclose a material fact to a third person when disclosure is necessary
to avoid assisting a criminal or fraudulent act by a client, unless
disclosure is prohibited by Rule 1.6
vii.M.R. 8.4(c)
1. It is professional misconduct for a lawyer to engage in conduct
involving dishonesty, fraud, deceit or misrepresentation
2. Remedies for Abusive Litigation
a. Fees in terms of abusive litigation
i. American Rule: each side pays their own fees
1. Pro argument (contingency fees agreements in America have the same
deterrent effect on frivolous lawsuits)
2. Cons: Ps may exploit Ds desire not to spend the money litigating and
will bring frivolous suits to induce settlement (nuisance value
settlement); lower rules are an attempt to remedy this predicament
ii. British rule: loser pays
1. Pro argument--prevents frivolous lawsuits
b. Abusive litigation can be frivolousness (Making claims or arguments that have no
legal or factual basis)
i. M.R. 3.1
1. A lawyer shall not bring or defend a proceeding, or assert or controvert
an issue therein, unless there is a basis in law and fact for doing so that
is not frivolous, which includes a good faith argument for an
extension, modification or reversal of existing law.
a. A lawyer can bring an argument that has no precedent in that
jurisdiction so long as you explain yourself and provide
precedent from other jurisdiction or claim it is unconstitutional
or ask for it to be overruled for these reasons (modernization,
etc…)
2. In criminal context, lawyer can defend proceeding even if arguments
may not be correct because policy of people have counsel overrides
ii. When client comes to you and tells you the facts, you have to make a good
faith reasonable inquiry into the clients facts to determine the validity of their
claims
1. Do some investigation but be weary of statute of limitations
2. If D thinks P has brought a frivolous suit, he can call up the bars
“ethics enfocement devision”
 3. Solerwitz: President tells air traffic controllers they can’t strike, they
sued. The Federal Circuit ruled their claims were invalid, and said if
they wanted to appeal they needed to make sure their claims were
different; Solerwitz proceeded without making his different. Held this
was frivolous
iii. 3.1 comment 2: It isn’t frivolous if the L files an action for a C merely
because the facts haven’t first been fully substantiated or because the L expects to
develop vital evidence only by discovery; what is required of Ls is that they
inform themselves about the facts of their cases and the applicable law and
determine that they can make good faith arguments in support of their client’s
positions.
1. If C is asserting something, that’s probably enough to get you over the
3.1 hump to bring the litigation (allow you to trust what your C says is
true)
2. Stier Rule: everything you do in practice from research to filing the
complaint, you should be comfortable defending what you did and why,
and should have a good reason

Abusive litigation can be harassment (Making claims or arguments that have no legal or factual
basis)
iii. M.R. 4.4
1. In representing a client, 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 the legal
rights of such a person
iv. Can’t make “scorched-earth” motions so that plaintiff has to use all their
money to defend it and would have to drop the lawsuit
c. Abusive litigation can be delay (Using procedures not in the way they were meant but
to hurt your opponent by delaying the process)
i. M.R. 4.4
1. In representing a client, 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 the legal
rights of such a person
ii. M.R. 3.2
1. A lawyer shall make reasonable efforts to expedite litigation consistent
with the interest of the client
a. (My notes) If you do intend to delay litigation, but you have an
articulable reason for filing other than delay, that would be ok
under the rules
3. FRCP Rule 11 (Federal Courts)
a. (a) Anything given to the court by the attorney must be signed and by signing you are
subject to rule 11 sanctions
b. (b) By presenting to the court a pleading, written motion, or other paper — whether
by signing, filing, submitting, or later advocating it — an attorney or unrepresented
 party certifies that to the best of the person's knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances:
i. (1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
ii. (2) the claims, defenses, and other legal contentions are warranted by existing
law or by a nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law;
iii. (3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity
for further investigation or discovery; and
iv. (4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of
information.
c. (c) Sanctions
i. If any of 11(b) has been violated, court may impose sanctions on the attorney
who signed, the law firm, or party that violated the rule.
1. Law firm is held accountable for their attorney who signed the
document
ii. “21 day safe harbor”
1. Opposing party must notify the party in violation of rule 11 at least 21
days before they can file a motion for rule 11 sanctions.
iii. Courts can impose rule 11 sanctions on their own initiative (sua sponte)
iv. Sanctions should be to deter violations from happening again
1. Usually attorney fees
v. If the violation goes to legal violations, attorney gets sanctions
vi. If the violation goes to factual violations, client can get sanctioned as well as
attorney for not making a reasonable inquiry
vii. Doesn’t apply to discovery rules (rule 26 and 37)
d. The 1983 amendment to rule 11 required the courts to impose sanctions
i. Brought further litigation because parties starting bringing rule 11 motions as
a way to harass
1. Prior to 1983, Rule 11 wasn’t strenuously enforced; rule was changed
that year from subjective to objective
2. 80s litigation was consuming costs/taking up time--led to “safe
harbor”
ii. As a result to that, in 1993, they reformed the rule to what it currently is now
1. P needs to have some basis for legal contentions made, and the D has
to respond and make any denials on a good faith basis
iii. Golden Eagle debate: extended back and forth between a trial court--K&E
represented to the court a forum non conveins argument that didn’t discuss the
court held the other way.
1. Rule 11 violations arguments: legal contention not warranted by
existing law; they are saying its the law, but its not
2. K&E argued they are trying to get the court to extend the law this way
 i. 9th circuit decided there weren’t sanctions (in favor of rigorous
advocacy); K&E was supported by the ABA; however this was
pre-Rule 11
2. 3.3(a)(2)--you have to disclose legal authority within the jurisdiction
known to the L (seems like a subjective test--harder to enforce; may be
subjective bc legal research is hard to find--may have a competence
problem)
i. In general, cite adverse authority because it helps your credibility
ii. Rubber band analogy--don’t stretch your band so that it is so far
skewed toward your side that it snaps
iii. Remember there are other state corollary rules
e. In securities cases, there is no “safe harbor” rule and sanctions are mandatory and not
dependent on motions from opposing party
4. Other rules for sanctions of lawyer misconduct
a. 28 U.S.C. §1927
i. In federal court, any lawyer who multiplies the proceedings unreasonably and
vexatiously is sanctioned by paying attorney fees of opposing counsel
ii. No “safe harbor” rule
b. Inherent Judicial Authority to Sanction Bad Faith Conduct of lawyer
i. Courts have an inherent power to not allow bad faith by lawyers and if so,
sanctions in attorney fees will be imposed.
c. Sanctions for discovery abuse
i. FRCP Rule 37
d. Sanctions at the appellate level
i. FRAP Rule 38
ii. Simple carveout: on appeal a criminal defense L can submit a frivolous brief
so that he can illicit the other side’s argument
e. Anders Brief
i. If in a criminal appeal a court-appointed lawyer doesn’t feel the appeal will
work, they still have to submit a brief arguing the points but then withdraw.
5. Witness Preparation (Coaching)
a. Coaching a witness is not allowed by the ethics rules, but a lawyer may prepare a
witness for certain questions
i. Suggesting of language that witness should use in testimony is fine so long as
it is not misleading or lying.
1. Lawyer is not allowed to offer evidence the lawyer knows is false or
induce perjury by the client or witness (M.R. 3.4(b))
a. You can’t assert thoughts that wouldn’t have been there
otherwise
b. Barron and Budd memo: telling asbestos Ps to remember what
brands they saw (giving them brands to remember). This was
telling them the best answer before they answered. They
managed to avoid sanctions, but suffered a lot of flack
b. What if a non-lawyer is doing the coaching?
i. M.R. 5.3: Responsibilities Regarding Non-lawyer Assistants
 1. Lawyer has to make reasonable efforts to make sure that non-lawyer
whom they supervise in the firm follows ethical obligations of the
lawyer if they are aware of the action of the non-lawyer.
a. If they find out about this stuff, they may have to inform the
court or provide memo to other side if trial is going on and it
may be false evidence/testimony.
6. Fostering Falsity
a. If there is a truthful witness taking the stand and want to cross examine them to make
them sound like they are lying
i. If your asking questions of witness, they are giving evidence so lawyer is not
giving false evidence
ii. May have a problem of deceitfulness
1. These are areas where independence and justice come in to play; cold
honest truth can be better in the long-run (Devil’s advocate clip--L’s
have an ethical duty not to put a fraud on the court, but also have
privilege and confidentiality concerns--the attitude of “I don’t want to
know” can hurt you).
a. If you are forwarding a theory in your cross that is false (say a
V misidentifies the time, you know the real time bc your C told
you what time was the real time)
i. Commentators are divided; if C wants to press it, try
and get them to do the right thing and confess
ii. You are not in violation of 3.3 bc the evidence is
technically true
iii. Unclear in rules whether it is allowed
b. Using truthful evidence that will leave misrepresentation to jury
i. Unclear in rules whether it is allowed
c. If you are a criminal defense L, C gets up there and wants to lie about not doing it (L
knows it’s a lie)
i. Put him on the stand and say he will address the jury in narrative (L doesn’t
ask questions so that he’s not aiding in perjury)
7. Dirty Tricks in Court
a. Asserting personal knowledge, belief or opinion
i. M.R. 3.4(e)
1. A lawyer shall not assert personal knowledge of facts in issue except
when testifying as a witness.
a. (my notes) Can’t slip things in on cross--that’s disobeying the
rules of the proceeding
b. Don’t lead when it’s inappropriate; don’t bring up things that
the judge has ruled excluded in limine (even if there is a
tactical advantage to doing so--it may back fire)
2. A lawyer shall not state a personal opinion as to the justness of a
cause, the credibility of a witness, the culpability of a civil litigant or
the guilt or innocence of an accused.
a. Can’t say “I as the attorney for the D, know that the D is
innocent.”
 i. If you were on the stand, you would have to claim AC
privilege; thus, you can’t “testify” when representing
ii. M.R. 3.6
1. A lawyer who is participating or has participated in the investigation or
litigation shall not make extrajudicial statements that the lawyer knows
or reasonably should know will be disseminated by means of public
communication that will materially prejudicing to the client. However,
can do this if other lawyer has done it or the media is painting a bad
picture of your client.
b. Trickery
i. Don’t use trickery during trial as it may show dishonesty toward the court.
ii. Blaming the victim may make the jury hate you
8. Special Responsibilities of Prosecutors
a. M.R. 3.8
i. Rule requires prosecutors to refrain from prosecuting a charge not supported
by probable cause; take reasonable efforts to advise and assure that the
accused has been given a reasonable opportunity to obtain counsel; avoid
attempts to obtain a waiver of important pretrial rights from an unrepresented
accused; and to make timely disclosure to the defense of all evidence or
information known to the prosecution
b. Brady Rule
i. Prosecutor must turn over material exculpatory evidence
c. Duty to preserve evidence
9. Using Improper Means in Gathering Information
a. A lawyer may not use illegal means to gather information
i. Also consider 8.4--can’t misrepresent who you are to get information (can’t
call up and say you’re conducting a survey, etc.)
ii. Also, you can’t use an agent to get around the rules (can’t have a PI
misrepresent who he is for you)
b. M.R. 8.4(c) which prohibits dishonesty, fraud, deceit or misrepresentation places
limits on the ways in which lawyers may gather evidence
10. Lawyers Relationship with Non-Clients
a. M.R. 4.2: (No Contact Rule)
i. In representing a client, a lawyer shall not communicate about the subject of
the representation with a person the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has consent from the other
lawyer or is authorized by law or court order.
1. Client cannot waive this protection
2. If a lawyer knows that his opposing lawyer hasn’t told his client about
a proposed settlement offer that lawyer still can’t contact the client.
a. However, your client can call their client and inform them
b. Can go to judge and ask for order for settlement meeting
3. Subject of the litigation:
a. Can ask opposing counsel’s C how they are doing
b. Purpose: if you are talking to them about the litigation, you may
use your superior knowledge to get AC privileged stuff
 c. Don’t push the envelope--don’t take opposing counsel’s C to
lunch (if you are seen with them, the court could look poorly on
that)
4. Hypo: If you believe opposing L isn’t giving C information on
settlement offers:
a. Can’t call them (violation without consent)
b. Try and get a court order
c. Could have your C call the other C *not prohibited and may be
necessary); however, there may be concerns if you are having them
act as your agent
5. Messing v. President and Fellows of Harvard: employment
discrimination; P’s counsel represent the female PO employee suing for
gender discrimination; D’s counsel talks to 5 employees of the HUPD
(part of rule 11 reasonable investigation); is this a violation of the no
contact rule?
i. 4.2 Comment 7: In the case of a represented organization, the
Rule prohibits communications with a constituent of the
organization who supervises, directs or regularly consults with the
organization’s L concerning the matter or has authority to obligate
the organization with respect to the matter or whose act or
omission in connection with the matter may be imputed to the
organization for purposes of civil or criminal liability.”
ii. In Messing, this would be whoever supervises and directs on
behalf of the organization--usually in-house counsel
iii. Authority to obligate the organization with respect to the matter
1. Complicated for Messing; this would refer to someone
who is high up enough that could bindingly speak for
Harvard in the matter
b. Employees that are protected from meeting with opposing counsel without their own
counsel being present (meaning these people cannot be met with without their own
counsel being there or consent from their counsel to allow opposing side to talk to
them without them there)
i. Employees that can make binding admissions for a corporation
1. Ex: president of corporation
ii. Employees that are the subject to the suit (people that did the act that is the
substance of the suit)
1. Witnesses to the acts do not count
iii. Employees that are managing the litigation that is the subject of the suit
1. Ex: people in general counsel office, outside counsel office
c. When opposing party is a class
i. Can defense counsel contact the absent class members in a certified class?
1. Can talk to absent members but cannot encourage opposing class to
opt out of the suit
2. In practice, it is best not to talk to them
3. Can go to court to get them to allow you to talk to them
 4. Law is a little unclear of what type of contacts can be made (is there a
point where the L/C relationship becomes too attenuated)
d. When represented person is a government agency
i. Can speak to government employees so long as it is not about the subject of
the pending lawsuit
ii. Gives you the right to petition your government even if you are suing them;
generally, the presumption is contact is ok because you have a right to contact
the gov’t
e. No-Contact Rule for Prosecutors
i. Can prosecutors meet with criminal defendant without the defense counsel
present?
1. Once charges have been brought and you know they have a lawyer,
then their lawyer must be present
2. In pre-indictment
a. Need to accommodate valid investigation of law agencies and
should be able to meet with guy without counsel present
b. Also, Prosecutors need broader ability to get information when
dealing with cops.
11. Fairness to Persons not Represented by Counsel
a. Purposes:
i. If you are dealing with an unrepresented 3rd person, you can’t state you’re
uninterested in the action
ii. Ls have superpowers and shouldn’t take advantage of unrepresented 3rd
persons
iii. If you are talking to an unrepresented person with interests adverse to your
C’s, you CANNOT give them advice, even if they ask for it
iv. Mass torts: if D is trying to hurry and get settlements, D’s L can knock on
doors; as long as they understand that the L has bias, L can inform him the
terms on which his C will settle
1. Don’t want to force persons who don’t want Ls into having Ls
2. Double standard because Plaintiffs attorneys can’t walk up to C’s after
an accident and recruit; Ps Ls can write letters, but they can’t go in
person; however, D can go to their door and see if they want to settle
b. M.R. 4.3: Dealing with Unrepresented Person
i. When a lawyer deals with a person who is not represented, the lawyer shall
not state or imply that the lawyer is disinterested.
ii. If the lawyer knows or 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.
iii. A lawyer shall not give legal advice to an unrepresented person, other than the
advice to seek counsel.
iv. can approach an unrepresented person to negotiate a settlement agreement
1. Quick 4.3 breakdown:
a. If you’re dealing with an unrepresented person, you can’t
imply or state you’re uninterested in the action
b. Introduce yourself as representing one side
 c. Don’t call and lie about who you are (all the first part)
d. (2nd part) If you are talking to an unrepresented person with
interests contrary to your C, you CANNOT give them advice
12. The Advocate Witness Rule
a. M.R. 3.7: Lawyer as Witness
i. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be
a necessary witness unless:
1. The testimony relates to an uncontested issue
2. The testimony relates to the nature and value of legal services rendered
in the case
a. Fee disputes
3. Disqualification of the lawyer would work substantial hardship on the
client
ii. A lawyer may act as advocate in a trial in which another lawyer in the
lawyer’s firm is likely to be called as a witness unless precluded from doing
so by conflict rules
iii. Purposes for 3.7--if the L testifies, it could infringe his loyalty duties; if he
takes the stand, jury may think L is vouching which is prohibited
1. Carvout in the rule for where the testimony:
a. Goes to some uncontested issue
b. Testimony relates to the nature and value of legal services
rendered (malpractice
c. Or where disqualification would be a substantial hardship on C
d. Or where the L’s firm is likely to be called as a W
i. Under this exception, if the L taking the stand is a
senior partner and the junior associate has to cross-
examine him, Junior may be materially limited by his
duty to his C and himself (personal COI)
iv. Rule 3.4(f) A L shall not: request a person other than a client to refrain from
voluntarily giving relevant information to another party unless:
1. the person is a relative or an employee or other agent of a client; and
2. the L reasonably believes that the person’s interests will not be
adversely affected by refraining from giving such information.
13. Law and Ethics of Negotiating
a. Estimates of price or value and intentions of a potential settlement are not
misrepresentations of material fact which would violate M.R. 4.1 but more opinions
i. Shifting language so that you are not expressing an opinion that you know to
be false is the best way to avoid ethics violations in negotiations
ii. Can’t make up facts, but can spin situations in your best favor (light)
b. 8.4(c)--It is professional misconduct for a L to engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation
i. Basic rule for negotiations: Factual misstatements violate the ethical/honesty
rules (also consider 1.2(d), 4.1)
ii. Comment 2 to MR 4.1 says that negotiation estimations of price or value are
not statements of fact, as are non-disclosed principles except where
non-disclosure of the principle would be fraud
 a. Empirical evidence suggests the adversary system gives us the best
results
COMPETENCE:
1. Competence means doing your research; communication with the client (MR 1.4--L
has to inform the has to inform the C when he needs to give informed consent, need to
promptly comply with requests.)
2. How do we ensure competency?
a. Malpractice Lawsuits
b. Bar (admissions, law schools, character and fitness requirements)
i. Comment to 8.4(c) comments, the bar looks for conduct not just in
relation to being a L, but all conduct
c. Continuing Legal Education
d. Reputation (market forces, etc.)
e. Ethical Rules 1.1, 1.3, 1.4

LAWYER-CLIENT RELATIONSHIP (Independence)

1. Types of Lawyer-Client Relationships

a. Market or Contractarian Model
i. Consensual exchange that benefits both lawyer and client
1. Client benefits from receiving services conforming to contract terms
and market standards, and the lawyer benefits from receiving payment
for services rendered
ii. Client is an equal to lawyer – bargaining for the lawyer
iii. No special “looking out for client”
iv. Lawyer-client rules should be default rules that can be “contract around”
1. Allows people to negotiate around ethic rules between themselves
2. We don’t not have a market approach currently
b. Fiduciary Model
i. Agency relationship with the client dependent upon her lawyer’s skill and
knowledge
ii. There is a power relationship and since lawyer has a greater bargaining power,
there needs to be ethic rules so that lawyer doesn’t abuse client due to their
power over client
iii. Lawyer needs to place clients interests ahead of others, especially their self-
interests
iv. Participatory model
1. Wants lawyer to have client participate and be in the decision making
process so that they don’t impose the lawyers values onto the client
c. Regulatory or Public Utility Model
i. Views lawyers as quasi-public officials who perform public functions which
greatly affect parties outside the lawyer-client relationship.
ii. Lawyer-client relationship should be regulated to protect professional and
public values
 d. Critical Model--perspective that Ls should push their Cs to do things that benefit
society
d. Each of these models may have different utility depending on context the lawyer-
client relationship is in
i. Sophistication of client
ii. In reality, empirical evidence shows that Cs want helpers, commitment,
integrity, competence and a fair affordable fee
2. Fees
a. Types of Fees
i. Flat Fee
1. Flat fee for a particular legal matter
ii. Hourly Fee
1. A fee rate per hour that a lawyer works on a legal matter
a. Multiply the rate per hour you have worked
i. $400 per hour worked for 2 hours is $800
iii. Proportional Fee
1. A fee that is a percentage of a transaction
iv. Contingent Fee
1. A fee that one gets if particular result occurs – if something happens,
you get paid (if your client wins, you get a percentage of their
winnings)
2. May be a flat fee, hourly fee, or proportional fee
3. The traditional contingency fee is proportional and contingent (33%
but only get paid if you win)
4. With contingency fees, L hires the experts/makes investments
b. Model Rules governing fees
i. M.R. 1.5: Fees
1. (a) no unreasonable fees or unreasonable amount for expenses.
Factors in determining reasonableness of a fee include:
a. Time and labor involved, novelty and difficulty of the
questions involved, the skill requisite to perform the legal
service properly
b. Likelihood that the acceptance of the particular employment
will preclude other employment by the lawyer
c. Customarily fee charged
d. Amount involved and the results obtained
e. Time limitations imposed by the client or the circumstances
f. Nature and length of the professional relationship with the
client
g. First time dealing with someone may bring some skepticism
h. Experience, reputation, and ability of the lawyer performing
the services
i. Whether fee is fixed or contingent
2. (b) obligation to communicate to the client the scope of the
representation and the basis or rate of the fee and expenses for which
 the client will be responsible for, preferably in writing, except when
the lawyer will charge a regular client on the same basis or rate.
a. Some states require the fee agreement to be in writing
3. (c) A contingent fee must be made in writing signed by the client and
shall state method by which fee is determined; shall state expenses to
be deducted from the recovery and whether they are deducted before
or after the contingent fee is calculated. Upon conclusion of a
contingent fee matter, the lawyer shall provide the client with a written
statement stating the outcome of the matter and, if there is a recovery,
showing the remittance to the client and the method of its
determination.
4. (d) A lawyer shall not make a contingent fee for:
a. A domestic relations matter, the payment of amount of which is
contingent upon the securing of a divorce or upon the amount
of alimony or support, or property settlement in lieu thereof; or
b. Representing a defendant in a criminal case
5. (e) fees can be divided among lawyer not in the same firm only if:
a. The division is proportional to the services performed by each
lawyer
b. Client agrees to the arrangement and share each lawyer will
receive in writing
c. Total fee is reasonable
c. Fees can’t be unreasonable
i. Sophistication of client and benefit received by the client helps determine
whether a fee is reasonable or excessive
1. The more sophisticated and greater benefit, less likely it will be
excessive
ii. Lawyer generally has the burden of justifying the fee
iii. Courts have jurisdiction to review or determine the lawyer’s fee
iv. In the Matter of Fordham: Son charged with DUI, father hired L after meeting
Ls wife; L used to work for a big firm; doesn’t have experience in criminal
matters; they agree to $200 per hour billing rate; L comes up with novel
argument, gets C off, then wants to bill $50,000
1. Under 1.5 it’s customary to bill only $10,000; not a high degree of
sophistication; spent too much time; novelty--DUI not novel but the
theory was
2. Court held it was unreasonable
3. Takeaway: sophistication is the single-most deciding factor for the
courts
v. Brobeck: Telex wins judgement against IBM; IBM gets counterclaim on
appeal; Telex wants to go to the SC, hire L. Develop a pay structure for L based
on what he does, and when the parties settle he wants to charge $1 mil.
1. Holding: Reasonable--comes down to C sophistication
vi. Aside rule: Sometimes the fee needs to be judged in terms of the result
1. If the court thinks that it looked ok in the beginning but it turns out to be
exorbitant
 2. E.g. tobacco cos hired Ps Ls to settle with the state AGs; it was
speculative, but when they did--courts forced them into arbitration to get
their fees

d. Retainer Fees
i. Special Retainer
1. An advance payment for performance of specific work to be charged
against it.
2. Most jurisdictions require the lawyer to deposit the advance payment
in the client trust account that the lawyer must maintain.
3. Whatever money not used by the lawyer to represent the client goes
back to the client after the representation is done.
ii. General retainer
1. An advance payment by a client that is deemed earned when received
whether or not the client subsequently calls on the lawyer to perform
specific work
a. (I will be at your beckon call, but I need the $ to be upfront)
2. Whatever money not used by the lawyer to represent the client is kept
by the lawyer
iii. *Any retainer is considered a special retainer (deposit against future services),
unless the client and lawyer agree that it is a general retainer
e. Minimum Fees
i. Minimum fees (the minimum amount a lawyer can charge for a particular
service) for common services is not allowed anymore because it violates
antitrust laws and now lawyers can set their fees as low as they want to
compete with other lawyers.
f. Illegal Fees
i. Illegal fees are fraudulent fees, violations of statutory limits on fees, fees
collected by a public official, fees from the proceeds of criminal activity
1. So the 2 types of illegal fees are those that violate statutory fee
maximums and fraudulent billing
ii. Illegal fees are prohibited implicitly by M.R. 1.5(a) and 8.4
iii. Fraudulent Billing
1. Fraudulent billing is a crime under both state and federal law and
unethical
2. Can’t bill for work you haven’t done…cant bill for lunch
a. May be tempted to round up when worked 8 minutes but can
only bill in increments of 15
b. Don’t bill for time you’re not spending
3. Pressures of meeting quota for billable hours is prevalent
4. Can’t Double bill
a. Billing two clients for the same amount of work
i. Ex: flying on plane to deposition (can bill travel time)
to one client and then work on another clients work on
that plane…cant bill for other client.
5. Safeguards on fraudulent billing
 a. M.R. 5.1: Responsibilities of Partners, Managers,
and Supervisory Lawyers
i. A lawyer who is a supervisor shall make reasonable
efforts to ensure that the firm has in effect measures
giving reasonable Assurant that all lawyer in the firm
conform to the rules of professional conduct.
ii. A lawyer shall be responsible for another lawyer’s
violation of the Rules of Professional Conduct if:
1. The lawyer orders or, with knowledge of the
specific conduct, ratifies the conduct involved;
or
2. The supervising lawyer knows of the conduct
when it could have been avoided and fails to
take reasonable remedial action
b. M.R. 5.2: Responsibilities of a Subordinate Lawyer
i. A lawyer is bound by the Rule of Professional Conduct
notwithstanding that the lawyer acted at the direction of
another person
ii. A subordinate lawyer does not violate the Rules of
Professional Conduct if that lawyer acts in accordance
with a supervisory lawyer’s reasonable resolution of an
arguable question of professional duty
iv. Statutory Fee Limits
1. Various federal and state statutes limit the fees a lawyer can charge in
particular types of legal work
2. Fee limits are upheld if they are limiting how much a lawyer can make
so long as they are by statute.
g. Fee Disputes
i. Either a lawyer or client may bring a lawsuit to enforce or challenge a fee
agreement
ii. Fee arbitration
1. In a retainer agreement, lawyers and clients can agree to binding fee
arbitration if there is a dispute regarding fees
2. Quicker and less expensive to do arbitration than go to court
3. If a client request arbitration, 11 states require their lawyers to do it
iii. According to M.R. 1.6(b)(5), a lawyer may reveal client confidences to collect
a fee or establish a defense in a dispute with the client over the fee, but only to
the extent necessary to support the lawyer’s claim or defense.
h. Contingent Fees
i. In a contingent fee arrangement, the fee amount is contingent on the result the
lawyer obtains.
1. The fee is usually calculated as a percentage of a plaintiff client’s
recovery, so that if the client receives no money, neither does the
lawyer.
a. Usually a third or 33.3 percent of the recovery
 2. A contract calling for the lawyer to receive a fixed amount if the client
prevails is also a contingent fee contract
3. Galager: car accident where the mother is suing the son for medical
bills (insurance co.), L ays he will charge 50% and that a settlement
will be easy
a. Court holds that this is excessive bc there is little chance it will
go to trial
4. Gangnon: L gets a $3 million settlement for car accident guy; $1 million
is his fees; trial court reverses; appellate reverses
a. Did extensive discovery--could have gone to jury and gotten
nothing
ii. M.R. 1.5(c) (generally allows contingency fees, but is stricter
about the provisions)
1. Contingent fee must be in writing, signed by the client and it shall state
the method by which the fee is determined.
a. Shall included percentage, litigation and other expenses to be
deducted from recovery and whether any expenses are to be
deducted before the fee is to be calculated.
i. (This means it will state the percentage/fee schedule)
ii. Need to let C know what expenses he will be liable for
2. At the end of the representation, lawyer must provide a written
statement of the fees (how he came to those fees)
iii. Valuable functions of contingent fees
1. Allows people who are injured to gain access to justice
2. Encourages lawyer to screen out bad cases
a. Provides judicial efficiency by not taking bad cases
3. Aligns lawyer’s interest with the clients
a. Lawyer wants to win the case as much as client because they
will only get paid if the client wins
4.Risk-bearing function (if L loses, he internalizes the cost) so it creates a
screening mechanism where L won’t take cases that are frivolous

iv. Negative aspects of contingent fees

1. Potential incentive to bend rules
a. If they don’t win they could be out of a job
b. They may have everything riding on this one big case
2. Concern about nuisance value settlements
a. The cost to the defendant is less than taking it to trial
3. May be incentivized to settle early
v. Contingency fees have to be reasonable and not excessive
1. Four problems in finding contingent fees to be excessive
a. High likelihood of substantial recovery by trial or settlement,
so that the lawyer bore little risk of nonpayment
b. Client’s recovery likely to be so large that the lawyer’s fee
would clearly exceed the sum appropriate to pay for services
performed and risks assumed
 c. Percentage rate is excessive
d. Base against which the percentage is applied is excessive or
otherwise unreasonable
vi. Contingency Reform
1. Lower transaction costs in case, or portions of cases, where no real
controversy exists between the parties (situations in which a
substantial contingency fee is not justified by the risk because no real
value-adding services are required of claimants’ counsel)
vii. Prohibitions on the use of contingency fees – cannot charge contingent fees
for these type of cases
1. Divorce Cases
a. M.R. 1.5(d)(1) prohibits any fee in a domestic relations matter,
the payment or amount of which is contingent upon the
securing of a divorce or upon the amount of alimony or
support, or property settlement in lieu thereof
b. Comment 6: If there has been a divorce and additional
litigation to modify it, a contingent fee is allowed.
i. Purposes:
1. Want to promote marriage
2. Argument to allow fees--women may not have
as much access to counsel
2. Criminal Cases
a. M.R. 1.5(d)(2) prohibits contingent fees for representing a
defendant in a criminal case
i. Reasoning is that the stakes of litigation are much
greater and if there are contingent fees set up for getting
someone not guilty, they may go along with the case
instead of pleading which would be the better thing for
the client.
ii. More concerned that the lawyer may gain the system to
get a big contingent fee at the expense of the clients
freedom.
3. Public Litigation
a. When government hires private firms to litigate matters on
their behalf
b. Since the duty of the government is to bring about justice, the
hiring of private attorneys brings about more adversarial
litigation which is against the culture of government practice
c. Contingency fees are improper because of above mentioned
reason (CA Supreme Ct)
viii. Contingent Fees in Transactions
1. Some firms charge a contingent fee entirely or in part on the
transaction closing
a. Worried about contingent fees in transactional work because
the lawyer may push too much to get the fee and going too far.
 ix. Quantum Meruit recoveries by contingent fee lawyers or withdraw or are
discharged
1. If it is a billable hour case and the lawyer gets discharged then they
would get paid for the hours they worked prior to be discharged.
2. For a contingency case, the modern rule for how the lawyer gets paid
is:
a. Where an attorney is discharged by a client with or without
cause, the attorney is entitled to recover the reasonable value of
services rendered prior to the discharge on the basis of
quantum meruit.
i. Lawyer has to wait till the award is given before they
are paid for their services rendered.
i. Flat Fees paid to insurance defense lawyers
i. Lawyer cannot contract with an insurance company to represent all of the
company’s insured for a flat fee to be paid by the company because it violates
rule 1.7(b) by materially limiting the representation with the client’s informed
consent and it violates rule 1.8(f)(2) by allowing one paying for another’s
legal services to interfere with the lawyers independent judgment.
1. It is ok for a third party to pay for the legal services of a client but they
cannot interfere with the representation and with a flat fee paid by the
insurance company it might give lawyer incentive to settle even
though that is not the interest of the client (the insured)
2. Implicates the confidence value
j. Liens
i. A lien is the right to withhold for security purposes property that the lawyer
would otherwise be obligated to turn over to the client
1. Cash lien--when the $ hits the escrow account, I get the $ (same as
charging lien?)
ii. A lawyer may want to induce a client to perform the client’s end of the bargain
(pay for the lawyers fee) by using some form of security
1. Charging lien – allows the lawyer to recover expenses and fees
incurred in litigation from money the lawyer has acquired either from
the client (an advance fee) or from third parties on the client’s behalf
(settlement payment)
2. Retaining Lien – allows a lawyer to keep possession of a client’s non-
cash property (documents concerning the client’s matter or stock) but
not to see it, until the client pays what is owed to the lawyer.
iii. M.R. 1.8(I)(1) permits a lawyer to acquire a lien authorized by law to secure
the lawyer’s fee or expenses.
3. Lawyer-Client Transactions
a. Transactions with Clients
i. Model Rules governing transactions with clients
1. M.R. 1.8(a)  business transactions
2. M.R. 1.8(c)  gifts from clients
3. M.R. 1.8(d)  media rights in the client’s story
4. M.R. 1.8(j)  sexual relations with clients
 5. M.R. 1.8(k)  prohibition of others in law firm from
engaging in same conduct except for sexual relations
ii. Business Transactions
1. M.R. 1.8(a): lawyer shall not enter into a business transaction with a
client unless:
a. The transaction and terms, which are fair and reasonable, are
written and given to client
b. Client is given advice in writing to seek legal independent
counsel in dealing with this transaction
c. The client gives informed written consent to the transaction
and what the lawyer role in it is
i. Stricter than 1.5 where writing is preferred but not
required
ii. You don’t have to tell the C to seek independent legal
counsel just to oversee your fee arangement
2. Examples of business transactions with clients
a. Common situations are lawyer buying estate property from
estate beneficiaries; lawyer investing client funds; loan
transaction between lawyer and client; lawyer taking a piece of
the action in incorporating a new venture
b. Merchon: L goes into business with an engineer and a farmer;
farmer diesL was wrong bc he was representing his own
interests, so he should have recommended they seek another Ls
advice, if an independent L would have been there, all these
concerns wouldn’t have been present
3. Stranger Rule: The lawyer who enters into a business transaction with
a client must give the client the same legal advice and guidance as
would be given by a lawyer who is a stranger to the transaction
iii. Lawyer equity investments in clients
1. Lawyers taking a portion of the company as their fee
a. Big deal in the 1990s--like a flat fee but getting a percentage of
the company
2. Ethical concerns
a. Personal conflict of interest in the representation of the
company because you have a stake in it now
b. It is a business transaction so have to meet standards of 1.8(a)
c. Fee has to be reasonable
i. Concerns over what percentage of equity you are
getting for the service provided
3. Stock ownership by lawyers in clients does not create an inherent
conflict of interest under M.R. 1.7, and is permissible as long as the
requirements of M.R. 1.5(a) and 1.8(a) are satisfied.
a. The reasonable fee requirement could be satisfied by paying
lawyers in stock whose value at the time of payment equaled a
reasonable fee
 i. Stock could be treated like a contingency fee: the
percentage of stock agreed upon should reflect the
value, as perceived by the client and the lawyer at the
time of the transaction, that the legal services will
contribute to the potential success of the enterprise.
ii. Lawyer must provide full disclosure of the risks of the
transaction, including the possibility that conflicts of
interest might develop that could necessitate the
lawyer’s withdrawal from the representation.
iii. So, this is like entering a business transaction with C, so
still have to follow 1.8(a); ABA says it’s not a COI
under 1.7, so you still have to fit with 1.5(a) and 1.8(a)
iv. Contracting with client for rights to client’s story
1. M.R. 1.8(d): A lawyer may not enter into an agreement or negotiate
an agreement, prior to the end of the representation, that gives the
lawyer the literary or movie rights to a client’s story, if those rights are
based in substantial part on information relating to the representation.
2. California’s ethic rules do not contain a blanket prohibition on
contracts for media rights made during the representation
3. A lawyer can negotiate to sell a client’s literary rights to another
person and collect a fee from that.
a. Comment 9: L can represent in transaction for the book deal,
and can agree that the fee is a share in ownership of the
property--that’s more of a business transaction; only prohibited
from trying to buy the rights to their story
b. CA outlier decision: Maxwell: D’s constitutional right to
counsel gave him the right to exchange for legal representation
the rights to his story to the L so long as he did so knowingly,
intelligently, and voluntarily after full disclosure of the risks
v. Gifts from clients
1. M.R. 1.8(c): a lawyer shall not solicit (ask for) any substantial gift
from a client, including a testamentary gift, or prepare on behalf of the
client an instrument giving the lawyer or a person related to the lawyer
any substantial gift unless the lawyer or other recipient of the gift is
related to the client.
a. Related persons include a spouse, child, grandchild, parent,
grandparent or other relative or individual with whom the
lawyer or the client maintains a close, familial relationship.
2. Client cannot consent to the lawyer soliciting a gift
a. Cannot solicit or prepare a document that gives it to you
3. Lawyer can accept a gift from a client so long as it is small and
insignificant
a. Comment 6 to 1.8--an L may accept a gift from a C; the gift
may be voidable under the doctrine of undue influence
 4. Restatement says that lawyer cannot accept gift unless lawyer is a
relative of client, the gift is insubstantial in value and the client has
received independent counsel advice regarding this gift
vi. Sexual relations with a client
1. M.R. 1.8(j): prohibits a lawyer from having sex with a client unless a
sexual relationship predated the lawyer-client relationship.
2. Prohibition on lawyer-client sex relations is not imputed in M.R.
1.8(k) to other lawyer in the firm
b. Handling Property of Clients and Others
i. M.R. 1.15: Safekeeping Property
1. (a) Segregation: A lawyer shall hold property of clients or third
persons that is in a lawyer’s possession in connection with a
representation separate from the lawyer’s own property.
a. Funds must be kept in a trust account separate from the
lawyer’s personal or business funds
2. (a) Record Keeping: Complete records of funds and accounts shall be
kept by the lawyer for a period of 5 years after termination of
representation.
3. (d) Notice: a lawyer shall upon receiving funds or other property in
which the client or third person has an interest to promptly notify the
client or third person to enable them to protect their interests.
a. Have to notify clients of money coming in
4. A lawyer CANNOT comingle his funds with a client’s funds
5. Can have a general escrow account for clients but if there is a large
sum of money for 1 client, it is a good idea to get a separate escrow
account for that 1 client.
6. For a substantial C, you have put them in a separate account
7. Bank fees: the cost on the bank account goes into the firm overhead
8. When there is a dispute over property, under 1.15, the L holds it until
the dispute is resolved--the dispute must be substantial so that holding
seems warranted
4. Scope of Lawyer’s Authority
a. M.R. 1.2: Scope of Representation
i. (a) subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decision
concerning objectives of representation and shall communicate/consult with
client as to the means by which they are to be pursued.
ii. (b) representing a client does not mean the lawyer shares the clients views
iii. (c) A lawyer may limit the scope of the representation if it is reasonable and
the client gives informed consent.
iv. (d) A lawyer shall not counsel a client to engage, or assist a client in conduct
that the lawyer knows is criminal or fraudulent, but may discuss the legal
consequences of any proposed course of conduct with a client.
1. In a criminal case, L has to abide by C’s decision to:
a. Plea
b. Waive jury trial
c. Whether to personally testify
 2. On any of these rules, if your C disagrees with you, try and persuade
them to do what is in their best interests
a. If your disagreement is unresolvable--you can withdraw subject
to 1.16
b. Actual authority
i. Express
1. When client through words causes the lawyer reasonably to believe
that she has the authority to act
ii. Implied
1. When client through deeds causes the lawyer reasonably to believe
that she has the authority to act
iii. Inherent
1. Inherent authority flows from legal rules delegating authority on some
matter to the lawyer independently of client consent
2. Lawyer has inherent authorization to do procedural things without the
consent of the client
c. Apparent authority
i. Apparent authority exists when the client through words or deeds causes a
third party reasonably to believe that the agent has the client’s authority to act.
ii. Third party has to show reliance and good faith
iii. When there is a settlement and a lawyer signs the settlement papers without
the authority to do so, that may be binding if the third party rely’s in good
faith on it.
d. Authority to settle on behalf of government
i. Government is not bound by agreements of agents beyond the scope of their
authority in part because of this constructive knowledge
e. Settlements have to be authorized by client
i. Lawyers do not have inherent authorization to settle however the client can
give specific criteria to be met and if it is, a lawyer can authorize a settlement
on behalf of the client.
f. Disabled clients (client with diminished capacity)
i. M.R. 1.14--don’t think we covered
1. (a) When client’s capacity is diminished because of minority, mental
impairment, the lawyer must as far as reasonably possible, maintain a
normal client-lawyer relationship with the client
2. (b) Lawyer may take reasonably necessary protective action, including
consulting with individuals or entities that have the ability to take
action to protect the client and, in appropriate cases, seeking the
appointment of a guardian ad litem, conservator or guardian
3. (c) Information relating to the representation of a client with
diminished capacity is protected by 1.6. When taking protective
action, the lawyer can reveal confidential information about the client,
but only to the extent reasonably necessary to protect the client’s
interests.
5. Ending the Relationship
a. Lawyer withdrawal
 i. M.R. 1.16: Declining or Terminating Representation
1. (a) Mandatory Withdrawal: Lawyer shall not represent client or, where
representation has commenced, shall withdraw from the representation
of a client if:
a. The representation will result in violation of the rules of
professional conduct or other law; or
b. The lawyer’s physical or mental condition materially impairs
the lawyer’s ability to represent the client; or
c. The lawyer is discharged
2. (b) Permissive Withdrawal: Lawyer may withdraw from representation
if:
a. Withdrawal can be accomplished without material adverse
effect on the interests of the client;
b. The client persists in a course of action involving the lawyer’s
services that the lawyer reasonably believes is criminal or
fraudulent;
c. The client has used the lawyer’s services to perpetrate a crime
or fraud;
d. The client insists upon taking action that the lawyer considers
repugnant or with which the lawyer has a fundamental
disagreement;
e. The client fails substantially to fulfill an obligation to the
lawyer regarding the lawyer’s services and has been given
reasonable warning that the lawyer will withdraw unless the
obligation is fulfilled;
f. The representation will result in an unreasonable financial
burden on the lawyer or has been rendered unreasonably
difficult by the client; or
g. Other good cause for withdrawal exists
3. (c) Lawyer must notify the tribunal when terminating a representation.
Tribunal may order lawyer to continue representation notwithstanding
good cause for terminating the representation.
4. (d) Upon termination of representation, lawyer shall take steps to the
extent reasonably practicable to protect a client’s interests, such as
giving notice to client, allowing time for employment of other counsel,
surrendering papers and property to which the client is entitled and
refunding any advance payment of fee or expense that has not been
earned or incurred. The lawyer may retain papers relating to the client
to the extent permitted by other law.
a. Work product normally has to go back to client but it may be
disputes about whether client get it or law firm keeps it
b. Discharge and its consequences
i. A client may discharge a lawyer at any time with or without good cause
ii. Approval of the tribunal is required if the matter is a litigated proceeding, and
a court is likely not to approve when a client attempts to change lawyers on
the eve of or during trial
 iii. Client’s freedom to discharge is limited when client is poor or can’t afford a
lawyer and only alternative is pro se representation.
iv. In-house lawyers may be protected against wrongful discharge by whistle-
blower statutes or case law recognizing a cause of action for retaliatory
discharge against public policy
v. The contract between the lawyer and client, or restitutionary principles, may
allow a lawyer to recover a portion of the lawyer’s fee regardless of the reason
for discharge.

COMPETENCE

1. Checks on incompetence
a. Ethical rules
i. M.R. 1.1: Competence
1. A lawyer shall provide competent representation to a client
ii. M.R. 1.3: Diligence
1. A lawyer shall act with reasonable diligence and promptness in
representing a client
iii. M.R. 1.4: Communication
1. A lawyer shall communication with client
a. Inform client of decisions that need his informed consent
b. How the client wants to be represented
c. Keep client informed of status
d. Comply with reasonable requests for information
e. Explain matter to client to extent reasonably necessary so that
client can make informed decisions regarding representation.
b. Continuing Legal Education (CLE)
i. States require a lawyer to complete so many hours per year to continue their
legal education
c. Peer Review
d. Reputation and Market Incentives
i. Since it is a free market, your reputation is big to continue to get clients

LAW, LAWYERS AND JUSTICE

1. Access to Justice
a. Non-lawyers feel that law and lawyering is foreign to them because of the complexity
and confusing system of justice.
b. Lawyers are expensive and the cost of lawyers is too much for someone to get
c. Solutions to Access of Lawyers/Justice
i. Pro Bono
1. Require lawyers to provide pro bono work for those who cannot pay
for lawyers (voluntary, not mandatory)
2. M.R.6.1 discusses pro bono legal service to those with limited need
a. A lawyer should aspire to render at least 50 hours per year
b. Participating in the bar is pro bono also
 c. Pro bono hours can be shared with a law firm
ii. Courts can appoint a specific person to represent a person pro bono
iii. Group legal services
1. Pre-paid plans like insurance coverage
iv. Open up the bar
1. Get rid of licensing of lawyers
2. By opening up the bar it would increase the amount of lawyers and
decrease the cost
a. It would provide service to the poor but not adequate service
v. Constitutional right to a lawyer at the cost of the state in a civil context
vi. Fee shifting – loser pays
1. Change the way fees are determined.
2. Currently, the judicial system uses the America rule which says that
everyone pays their own fees
3. Could change it to the English rule which says that the loser pays the
fees of the other side

STRUCTURE OF LEGAL PRACTICE

1. Legal Education
a. Criticism of legal education
i. Law school does not adequately prepare its graduates for the practice of law
ii. The educational experience has a destructive effect upon the character or
values of students
iii. Law school fails to produce public-spirited and socially responsible lawyers
iv. Legal education is not accessible to all sectors of American society