Problems in

Legal Ethics
Twelfth Edition

Mortimer D. Schwartz
Professor of Law, Emeritus
University of California, Davis

Richard C. Wydick
Late Professor of Law
University of California, Davis

Rex R. Perschbacher
Daniel J. Dykstra Chair in Law, Emeritus
University of California, Davis

Debra Lyn Bassett

John J. Schumacher Chair in Law
Southwestern Law School

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o
o
c In Memoriam
c Richard C. Wydick
1937-2016
c Professor Richard C. Wydick, who was the motivating author behind
this book and whose voice resonates throughout the book, passed away in
c 2016 of idiopathic pulmonary fibrosis. He survived ten years after being
c diagnosed, outliving his original prognosis by seven years. It is hard to
overstate Professor Wydick’s impact on this book, and the gaping hole left
c by his death. He was our friend and colleague, and we miss him. He was a
gifted and popular teacher who had endless patience for his students. He
o could explain—and write—more clearly than anyone else we know. His
office was always impeccably neat and tidy. He had a wicked sense of
c humor. He was an elder statesman at the law school; he had served as both
Associate Dean and Acting Dean, and was a principled, ethical person of
c the highest order. His final gift was that he continued to serve as a leader
and role model even as he faced death. We would like to quote some
c passages from remarks prepared for Dick’s memorial service eulogy by his
(and our) friend and colleague, Professor Joel Dobris:
c “Dick had a noble and genuine humility combined with a litigator’s
c controlled self-assurance. He always knew to leave before he wore out his
welcome. He has left us far too soon. Yet he lived longer than he imagined
o he would.
“I would say there’s no such thing as a good death, but if there is, Dick
c showed it to us. He lived for over ten years with death as his near neighbor
and he did it with grace and dignity. He defied the fact. It was as simple as
c that.
“Dick went to college when it was obligatory to study John Donne. And
it was John Donne who wrote, ‘When one man dies, one chapter is not torn
out of the book but is translated into a better language.’
“To put it in plain English, he was a crackerjack teacher, a proud
c husband and dad, and a heck of a good writer. Fare thee well Dick
c Wydick—husband, father, father-in-law, grandfather, colleague, and
friend. Thanks for stopping by.”
o
o
c
c
c
c iii
 Preface

This book is intended for use in law school courses that teach the
fundamentals of legal ethics. It should be used in conjunction with the
current edition of West’s Professional Responsibility Standards, Rules, and
Statutes (John S. Dzienkowski, ed.). Either the full or the abridged edition
of that book will suffice.
The Twelfth Edition includes the following features:
• The Problem. Method: Each chapter begins with a set of problems for
discussion in the classroom. Some of the problems are drawn from decided
cases, ethics opinions, and the writings of scholars in the field. Others are
drawn from our own experience in teaching and law practice and from
discussions we have had with judges and practicing lawyers. We have
attempted to provide realistic problems—the kind that arise with
disturbing frequency in the daily practice of law.
• Background Readings: For each major topic, we have included
background reading material that illustrates the variety of sources to
which a lawyer or judge can turn when seeking answers to ethics questions.
The materials include ethics rules, judicial opinions, ethics committee
opinions, and excerpts from articles and books written by judges, lawyers,
and law teachers.
• Supplemental Readings: In each chapter, we have suggested
supplemental readings from The Law of Lawyering by Geoffrey Hazard and
William Hodes, and from the American Law Institute’s Restatement
(Third) of the Law Governing Lawyers (2000).
• Descriptive Text: Some chapters include text in which we attempt to
pack a lot of information into a few pages. Examples are Chapter Two,
which includes a description of the organized bar and its functions; Chapter
Four, which includes a history of lawyer advertising and solicitation; and
Chapter Six, which includes a summary of the law of legal malpractice.
• Multiple Choice Questions: At the end of each chapter, except
Chapters One and Fourteen, we have included some multiple choice
questions. The Appendix at the back of the book gives our proposed
answers and the reasoning behind them. Some of the questions review
material that is covered in the chapter, and others cover points that are not
otherwise mentioned in the book.
Debra Lyn Bassett
Rex R. Perschbacher

v
 Summary of Contents

In Memoriam............................................................................................................ in
Preface....................................................................................................................... v
Table of Cases....................................................................................................... xv
Table of References to ABA Model Rules of Professional
Conduct.......................................................................................................... xix
Chapter One. Introduction to Legal Ethics................................................ 1
I. How to Use This Book.............................................................................. 2
II. Short Form Citations............................................................................. 3
III. Purposes of This Book............................................................................. 3
IV. Self-Regulation?........................................................................................ 4
V. Beginning Considerations........................................................................19
Chapter Two. Sources and Application of Legal Ethics Rules...................... . 29
I. The Organization of the Bar.....................................................................32
II. Sources of Guidance on Legal Ethics...................................................... 63
III. Discipline................................................................................................. 65
Chapter Three. Beginning and Ending the Lawyer-Client
Relationship....................................................................................................... 75
I. Beginning the Lawyer-Client Relationship.............................................. 77
II. Who Should Pay When the ClientCannot?...............................................79
III. Outlook for the Future.............................................................................. 92
IV. Frivolous Claims.................................................................................... 101
Chapter Four. Advertising and Solicitation...........................................................107
I. Historical Summary................................................................................ 110
II. Historical Summary, Continued..............................................................122
Chapter Five. Attorney Fees and Fiduciary Duties..................... ......................... 139
I. The Billable Hours Treadmill................................................................. 155
II. Questions and Answers About Contingent Fees.....................................161
HI. Loans to Clients...................................................................................... 163
IV. Client Trust Accounts.............................................................................164
Chapter Six. Competence, Diligence, and Unauthorized
Practice............................................................................................................ 173
I. Legal Malpractice....................................................................................178
II. The Ethics of Second-Rate Legal Service............................................... 187
III. Multi-Jurisdictional and Multi-Disciplinary Practice..............................190

••
Vll
viii Summary of Contents
Chapter Seven. Confidential Information............................................................. 199
I. Exceptions to the Ethical Duty of Confidentiality.................................. 214
II. “Everyday” Confidentiality Issues*........................................................216
Chapter Eight. Candor....................................................................................... —.221
I. Candor in Bar Applications.................................................................... 224
II. Misrepresentation....................................................................................227
III. Candor in Negotiations........................................................................... 232
IV. The Trilemma: Trust, Confidentiality, and Candor.................................233
Chapter Nine. Fairness in Litigation...................................................................... 245
I. Witness Coaching....................................................................................249
II. Public Comments About Pending Litigation...........................................255
III. The Prosecutor’s Special Duties..............................................................261
IV. The Duties of the Criminal Defense Lawyer...........................................262
V. Potential Impairments That May Affect Fairness................................... 263
Chapter Ten. Bias in (and out of) the Courtroom................................................. 273
I. Introduction to Bias Issues.................................................................. 275
II. Implicit/Unconscious Bias.......................................... ♦.......................... 283
Chapter Eleven. Conflicts of Interest—Lawyers, Clients, and
Third Parties................................................................................................... 295
I. Allocating Decision-Making Between Lawyer and Client.................... 298
Chapter Twelve. Conflicts of Interest—Conflicts Between Two
Clients................................................................................................................323
I. Joint Representation................................................................................ 340
II. Imputed Disqualification and Screening................................................. 343
III. Conflicts of Interest and Pro Bono Projects........................................... 344
Chapter Thirteen. Lawyers in Law Firms and Specialized
Practice Areas................................................................................................... 349
I. Forms of Legal Practice.......................................................................... 354
II. Law Firm Breakups............................................................................... 356
III. Law Firm Discipline................................................................................357
IV. Lawyer as Problem-Solver...................................................................... 368
Chapter Fourteen. Judicial Conduct...................................................................... 375
I. Judicial Standards and Discipline............................................................376
II. Judicial Ethics Bee................................................................................ 376
III. Judges, Politics, and Free Speech............................................................391
IV. Recusal of U.S. Supreme Court Justices................................................. 396
V. Recusal and Due Process......................................................................... 402
Appendix..................................................................................................................... 405
Index............................................................................................................... 427
 Table of Contents

InMemoriam........................ ..................................................................................... Ill

Preface........................................................................................................................v
Table of Cases........................................................................................................xv
Table of References to ABA Model Rules of Professional
Conduct...........................................................................................................xix
Chapter One. Introduction to Legal Ethics.............................................................. 1
What This Chapter Covers......................................................................... 1
Reading Assignment.................................................................................. 1
Discussion Problems.................................................................................. 1
I. How to Use This Book............................................................................... 2
II. Short Form Citations.................................................................................. 3
III. Purposes of This Book................................................................................ 3
IV. Self-Regulation?....................................................................................... 4
The Myth of Self-Regulation......................................................................4
Legal Ethics Falls Apart............................................................................. 5
V. Beginning Considerations........................................................................ 19
Rico v. Mitsubishi Motors Corporation................................................ 19
Chapter Two. Sources and Application of Legal Ethics Rules.............................. 29
What This Chapter Covers........................................................................29
Reading Assignment......... ....................................................................... 29
Supplemental Reading.............................................................................. 30
Discussion Problems.................................................................................30
I. The Organization of the Bar..................................................................... 32
A. Admission to Practice in the Courts of a State..................................33
1. Residency Requirements........................................................... 33
2. Character Requirements............................................................ 35
In re DeBartolo.......................................................................... 35
In re Glass..................................................................................38
B. Admission to Practice in Other States and the Federal Courts...........46
Sheller v. Superior Court................................................................... 47
C. Lawyer Associations.......................................................................... 59
1. Nationwide Organizations....................................................... 60
2. The American Bar Association..................................................60
3. State Bar Associations............................................................... 62
4. Local Bar Associations.............................................................. 63
II. Sources of Guidance on Legal Ethics.........................................................63
A. State Rules, Statutes, and Rules of Court........................................... 63
B. ABA Model Code of Professional Responsibility.............................. 63
C. ABA Model Rules of Professional Conduct.......................................64

ix
 x Table of Contents
D. ABA Model Code of Judicial Conduct................. .............................64
E. Advisory Opinions of Ethics Committees........................................ 65
F. Ethics Hot Lines................................................................................65
III. Discipline................................................................................................... 65
In re Mountain........................................................................................... 67
In re Holmay............................................................................................. 69
Multiple Choice Questions..................................................................... 71
Chapter Three. Beginning and Ending the Lawyer-Client
Relationship................................ ........................................................................75
What This Chapter Covers........................................................................ 75
Reading Assignment................................................................................. 75
Supplemental Reading............................................................................... 75
Discussion Problems................................................................................. 76
I. Beginning the Lawyer-Client Relationship............................................... 77
A. Prospective Clients and Unsolicited Communications...................... 77
B. Duty to Take Some Kinds of Cases................................................... 78
1. General Rule: Lawyers Are Not Public Utilities........................ 78
2. Exceptions to the General Rule..................................................78
The Attorney’s Oath...................................................................78
II. Who Should Pay When the Client Cannot?............................................... 79
Bothwell v. Republic Tobacco Co.............................................................80
III. Outlook for the Future............................... ................................ ............... 92
Ruskin v. Rodgers......................................................................................93
Rosenberg v. Levin.......................................... :.........................................94
Holmes v. Y.J.A. Realty Corp................................................................... 98
Kriegsman v. Kriegsman......................................................................... 99
IV. Frivolous Claims..................................................................................... 101
Multiple Choice Questions...................................................................... 103
Chapter Four. Advertising and Solicitation.................................. ........................ 107
What This Chapter Covers.................................................................... 107
Reading Assignment................................................................................107
Supplemental Reading.............................................................................107
Discussion Problems........................................................................... 107
I. Historical Summary............................................................................... 110
A. Advertising.......................................................................................110
B. Solicitation..................................................................................... 112
C. The Forces of Change—Antitrust and the First Amendment........... 113
D. The Bates Case.................................................................................113
Bates v. State Bar of Arizona...........................................................114
II. Historical Summary, Continued............................................................... 122
A. The Ohralik and Primus Cases—Solicitation.................................. 122
B. The Adoption of the ABA Model Rules...... ................................... 124
C. The Peel Case—Claims of Specialization........................................125
D. The Zauderer, Shapero, and Went For It Cases—The
Shadowland Between Advertising and Solicitation.......................... 126
 Table of Contents xi
Florida Bar v. Went For It, Inc........................................................ 127
E. Social Media and Lawyer Advertising.......................................132
Multiple Choice Questions.............................................................133
Chapter Five. Attorney Fees and Fiduciary Duties................................. ............ 139
What This Chapter Covers..................................................................... 139
Reading Assignment.............................................................................. 139
Supplemental Reading.............................................................................139
Discussion Problems.............................................................................. 139
Robert L. Wheeler, Inc. v. Scott............................................................ 143
Blue-Chip Bilking: Regulation of Billing and Expense Fraud by
Lawyers.......................................................................................... 148
Board of Professional Responsibility, Wyoming State Bar v. Casper... 152
I. The Billable Hours Treadmill................................................................ 155
II. Questions and Answers About Contingent Fees....................................161
III. Loans to Clients......................................................................................163
IV. Client Trust Accounts............................................................................ 164
Multiple Choice Questions..................................................................... 167
Chapter Six. Competence, Diligence, and Unauthorized
Practice........................................................................................................... 173
What This Chapter Covers................................................................... 173
Reading Assignment...............................................................................173
Supplemental Reading............................................................................174
Discussion Problems...............................................................................174
I. Legal Malpractice................................................................................... 178
A. The Relationship Between Legal Malpractice and Discipline by
the Bar.............................................................................................178
B. Theories of Legal Malpractice Liability......................................... 179
C- Defenses to Legal Malpractice Claims...........................................183
D. Vicarious Liability...........................................................................184
E. Malpractice Insurance..................................................................... 185
II. The Ethics of Second-Rate Legal Service...............................................187
III. Multi-Jurisdictional and Multi-Disciplinary Practice.............................. 190
A. Multi-Jurisdictional Practice........................................................... 190
B. Multi-Disciplinary Practice............................................................. 190
Multiple Choice Questions.............................................................. 193
Chapter Seven. Confidential Information.............................................................. 199
What This Chapter Covers....................................................................... 199
Reading Assignment............................................................................... 199
Supplemental Reading.......................................................................... 199
Discussion Problems............................................................................... 199
Washington v. dwell................................................................................202
People v. Meredith.................................................................................. 206
I. Exceptions to the Ethical Duty of Confidentiality....................................... 214
A. Client Consent or Implied Authority.................................................. 214
xii Table of Contents
B.Prevent Future Harm/Mitigate or Rectify Financial Injury............. 214
C.Self-Defense....................................................................................216
D. Court Order or Other Law.............................................................. 216
E. Conflicts Due to Lawyer Mobility..................................................216
II. “Everyday” Confidentiality Issues.............................................................216
Multiple Choice Questions..................................................................... 217
Chapter Eight. Candor............................................................................................ 221
What This Chapter Covers................................... ................................... 221
Reading Assignment............................................................................... 221
Supplemental Reading............................................................................ 221
Discussion Problems............................................................................. 221
I. Candor in Bar Applications.....................................................................224
In re Braun...............................................................................................224
II. Misrepresentation.................................................................................... 227
Iowa Supreme Court Board of Professional Ethics and Conduct v.
Jones................................................................................................ 227
III. Candor in Negotiations............................................................................232
IV. The Trilemma: Trust, Confidentiality,and Candor..................................233
Multiple Choice Questions...................................................................... 240
Chapter Nine. Fairness in Litigation........................................................♦.............245
What This Chapter Covers...................................................................... 245
Reading Assignment............................................................................... 245
Supplemental Reading.............................................................................246
Discussion Problems............................................................................... 246
I. Witness Coaching....................................................................................249
Colorado Bar Association Opinion 70.................................................... 252
II. Public Comments About Pending Litigation.......................................... 255
A. Background......................................................................................255
B. The ABA Enters the Fray................................................................ 255
C. The Gentile Case..............................................................................256
D. Current Rules...................................................................................257
Matter of Vincenti........................................................................... 257
III. The Prosecutor’s Special Duties..............................................................261
IV. The Duties of the Criminal Defense Lawyer...........................................262
V. Potential Impairments That May Affect Fairness................................... 263
A. Potential Lawyer Impairments.........................................................263
1. Alcohol and Substance Abuse..................................................263
2. Depression or Other Illness......................................................264
3. What Happens to the Client upon the Lawyer’s Death or
Disability?................................................................................ 264
B. Potential Client Impairment............................................................. 265
1. Diminished Capacity................................................................265
2. Diminished Capacity—Oi' Merely Age Bias?......................... 265
C. Conclusion........................................................................................268
Multiple Choice Questions............................................................... 268
 Table of Contents xiii
Chapter Ten. Bias in (and out of) the Courtroom................................................ 273
What This Chapter Covers.. .................................................................. 273
Reading Assignment.............................................................................. 273
Supplemental Reading........................................................................... 273
Discussion Problems............................................................................ 274
I. Introduction to Bias Issues..................................................................... 275
In the Matter of Monaghan.................................................................... 277
In the Matter of Hammer........................................................................ 279
Age Bias................................................................................................. 281
II. Implicit/Unconscious Bias..................................................................... 283
Deconstruct and Superstruct: Examining Bias Across the Legal
System............................................................................................ 283
Miller-El v. Dretke....................................... ...........................,.............. 286
City of Seattle v. Erickson..................................................................... 289
Multiple Choice Questions.....................................................................293
Chapter Eleven. Conflicts of Interest—Lawyers, Clients, and
Third Parties...................................... ...................................................... .......295
What This Chapter Covers..................................................................... 295
Reading Assignment.............................................................................. 295
Supplemental Reading............................................................................295
Discussion Problems.............................................................................. 296
I. Allocating Decision-Making Between Lawyer and Client......................298
Beckwith Machinery Co. v. Travelers Indem. Co..................................300
Ethical Dilemmas of Corporate Counsel: A Structural and
Contextual Analysis........................................................................305
Phillips v. Carson....................................................................................306
State v. White......................................................................................... 310
Multiple Choice Questions..................................................................... 317
Chapter Twelve. Conflicts of Interest—Conflicts Between Two
Clients............................................................................................................... 323
What This Chapter Covers.................................................................... 323
Reading Assignment............................................................................... 323
Supplemental Reading............................................................................ 323
Discussion Problems............................................................................... 323
State Farm Mutual Automobile Insurance Co. v. K.A.W.......................325
Kirk v. First American Title Insurance Co............................................. 330
I. Joint Representation................................................................................ 340
II. Imputed Disqualification and Screening.................................................343
III. Conflicts of Interest and Pro Bono Projects............................................344
Multiple Choice Questions......................................................................344
Chapter Thirteen. Lawyers in Law Firms and Specialized
Practice Areas................................................................................................. 349
What This Chapter Covers...................................................................... 349
Reading Assignment................................................................................349
 o
xiv Table of Contents
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Supplemental Reading.......................................................................... 349 o
Discussion Problems...............................................................................350
American Lawyers in the Year 2000: An Introduction.......................... 352
o
I. Forms of Legal Practice..................................... ..................................... 354
A. Business Entities............................................................................. 354
o
B. Other Trends in Legal Practice....................................................... 354
Offshore Legal Outsourcing and Risk Management: Proposing
o
Prospective Limitation of Liability Agreements Under
Model Rule 1.8(h).....................................................................355
o
II. Law Firm Breakups....................................... ,......................................... 356
III. Law Firm Discipline................................................................................ 357
o
Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court......... 358
IV. Lawyer as Problem-Solver........;..............................................................368
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The Lawyer as Problem Solver and Third- Party Neutral: Creativity
and Non-Partisanship in Lawyering................................................. 368
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Multiple Choice Questions.............................. ........................................ 372 o
Chapter Fourteen. Judicial Conduct.......................................................................375
What This Chapter Covers...................................................................... 375
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Reading Assignment............................................................................... 375
Supplemental Reading................................ ............................................ 375
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I.
II.
Judicial Standards and Discipline........................................................... 376
Judicial Ethics Bee.................................................................................. 376
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III.
IV.
Judges, Politics, and Free Speech........................................................... 391
Recusal of U.S. Supreme Court Justices................................................. 396
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A. The Federal Recusal Statute............................................................ 396
B. Cheney v. U.S. District Court.......................................................... 398
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V. Recusal and Due Process...... .................................................................. 402 o
Appendix.................................................................................................................... 405
Index...................................................................................................... 427

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 Table of Cases
The principal cases are in bold type.

Aerojet-General Corp. v. Transport Cheney v. United States Dist. Ct. for

Indemnity Insurance, 23, 24 the Dist. of Colum., 399, 400, 401,
Aetna Life Ins. Co. v. Lavoie, 403 402
American Bar Association, United Chicago Bar Association, People ex rel.
States v., 113 v. Berezniak, 111
Anderson v. State, 211 Cincinnati v. Discovery Network, Inc.,
Atkinson, People v., 210 131
Bagley, United States v., 262 Clinard v. Blackwood, 313, 315
Baldwin Hardware Corp. v. Franksu Cohen v. Hurley, 129
Enterprise Corp., 57 Cohen v. Lord, Day & Lord, 357
Bank of Hawaii v. Kunimoto, 57 Committee on Prof! Ethics & Conduct
Barber v. Municipal Court, 210 v. Wunschel, 230
Barnard v. Thorstenn, 34 Complaint of PMD Enterprises, Inc.,
Bates v. State Bar of Arizona, 113, In re, 56, 57
114, 156, 157, 158, 159 Complex Asbestos Litigation, In re, 53
Batson v. Kentucky, 286, 287, 288, 289 Container Corp, of America, United
Baugh v. Garl, 54 States v., 420
Bauguess v. Paine, 53, 54, 55 Culbreath, State v., 313, 314, 315
Beckwith Machinery Co. v. Cunningham v. Superior Court of
Travelers Indem. Co., 300 Ventura County, 92
Beige, People v.» 212 DeBartolo, In re, 35
Belli v. State Bai- of California, 112 Department of Corporations. People ex
Berger v. United States, 314, 328 rel. v. Spee-Dee Oil Change
Birbrower, Montalbano, Condon & Systems, Inc., 26
Frank, P.C. v. Superior Court, DeVaux v. American Home Assur. Co.,
56, 358 179
Blanton v. Womancare, Inc., 300 Dillon, United States v., 84, 87
Board of Professional Dimick v. Republican Party of
Responsibility, Wyoming State Minnesota, 396
Bar v. Casper, 152 Dowden v. Superior Court, 22
Board of Trustees of State University Duffy, In re, 112
of N.Y. v. Fox, 128, 131, 132 Dupree v. Better Way, Inc., 204
Bothwell v. Republic Tobacco Co., Eash v. Riggins Trucking Inc., 82
80 Edenfield v. Fane, 123, 129
Brady v. Maryland, 262 Edmonson v. Leesville Concrete Co.,
Braun, In re, 224 288
Brown v. Legal Foundation of Eldridge, In re, 416, 417
Washington, 165 Evans v. Jeff D., 422
Brown v. Wood, 57 Fearnow v. Ridenour, Swenson, Cleere
C. Raymond Davis & Sons, Inc. v. & Evans P.C., 357
Liberty Mutual Insurance Co., 302 Finley, In re, 70
Canfield, People v., 210 Fisher v. United States, 210
Cantwell v. Connecticut, 121 Fletcher. Matter of, 59
Caperton v. A.T. Massey Coal Co., Florida Bar v. Went For It, Inc.,
Inc., 402 127
Central Hudson Gas & Electric Corp, Ford v. Guarantee Abstract & Title
v. Public Service Comm'n of N.Y., Co., 308
128 Fracasse v. Brent, 96
Chambers v. NASCO, Inc., 54, 103 Frazier v. Heebe, 33
Chambliss, Bahner & Crawford v. Frink v. Prod, 52
Luther, 97 Frisby v. Schultz, 129

XV
 xvi Table of Cases
Gasoline Retailers Association, Inc., Magee v. Superior Court, 55, 56
United States v., 113 Mallard v. United States District
Gentile v. State Bar of Nevada, 132, Court, 81, 82, 92, 93
256 Maltby, In re, 112
Gertz v. Robert Welch, Inc., 121 Martin v. Camp, 95
Glass, In re, 38 Maxwell, In re, 232
Goldfarb v. Virginia State Bar, 117, McGrath, In re, 233
129, 156 Menna, In re, 42, 44, 45
Gossage, In re, 42, 43, 44, 45 Meredith, People v., 206
Government of India v. Cook Indus., Midgett, United States v., 239
Inc., 329 Miller-EI v. Dretke, 286
Graubard Mollen v. Moskovitz, 356 Mississippi Comm'n on Judicial
Gray, In re, 111 Performance v. Wilkerson, 396
Grenning, State v., 292 Monaghan, Matter of, 277
Griffiths, In re, 405 Morrell v. State, 212
Hall, People v., 214 Morrow v. State Bar of California, 63
Hallinan v. Committee of Bar Mountain, In re, 67
Examiners, 42, 43 NAACP v. Button, 123
Hammer, Matter of, 279 Nacht & Lewis Architects, Inc. v.
Hardy v. San Fernando Valley C. of Superior Court, 22
C., 361 Nebraska Press Ass’n v. Stuart, 255
Hernandez v. New York, 290 Nix v. Whiteside, 237, 238, 239
Hernandez, People v., 424 NLRB v. Gissel Packing Co., 121
Hodges v. Carter, 181 Ohralik v. Ohio State Bar Association,
Holmay, In re, 69 122, 128, 129, 132, 189
Holmes v. Y.J.A. Realty Corp., 98 Parker v. Williams, 232
Howard v. Babcock, 357 Peel v. Attorney Registration &
Hunter, State ex rel. v. Crocker, 111 Disciplinary Com’n, 125
Iowa Supreme Court Attorney Phillips v. Carson, 306
Disciplinary Board v. Wright, 231 Phillips v. Washington Legal
Iowa Supreme Court Board of Foundation, 165
Professional Ethics and Conduct v. Pittsburgh Press Co. v. Human
Hansel, 230 Relations Comm’n, 121
Iowa Supreme Court Board of Primus, In re, 123, 132, 188
Professional Ethics and Purkett v. Elem, 286, 289
Conduct v. Jones, 227 R. M.J., In re, 124, 128
Jacobs v. State Bar, 53 Reinstatement of Jones, In re, 232
Johnson v. California, 289 Republican Party of Minnesota v.
Keller v. State Bar of California, 62 White, 384, 392, 396
Kirk v. First American Title Rico v. Mitsubishi Motors
Insurance Co., 330 Corporation, 19
Kirsch v. Duryea, 26 Robert L. Wheeler, Inc. v. Scott,
Knight v. Ferguson, 54 143
Konigsberg v. State Bar, 35 Rock v. Arkansas, 238
Kriegsman v. Kriegsman, 99 Rodriguez v. McDonnell Douglas
Kwasnik v. State Bar, 42 Corp., 22, 23
Laird v. Tatum, 397 Rosenberg v. Levin, 94
Lappostato v. Terk, 232 Rotante v. Lawrence Hospital, 329
Lasar v. Ford Motor Company, 56 Roush v. Seagate Technology, LLC, 54
Lathrop v. Donohue, 62 Royal Indemnity Co. v. J.C. Penney
Lawyers’ Institute of San Diego v. Co., 57
Merchants’ Protective Corp., People Ruskin v. Rodgers, 93
ex rel., 362 Ryder, In re, 213
Lee, People v., 212 S. B., In re, 52
Leis v. Flynt, 46, 55 Saintcalle, State v., 289
Lepe, People v., 424 Scanlan, In re, 413
Libarian v. State Bar, 111 Schware v. Board of Bar Examiners,
Lines, People v., 210 261, 405
Lucas v. Hamm, 180 Seattle, City of v. Erickson, 289
Madden v. Township of Delran, 92
o Table of Cases xvii
o Shapero v. Kentucky Bar Ass’n, 126,
128, 130, 131
c Shellei' v. Superior Court, 47
Sheppard v. Maxwell, 255
o Smith v. Lewis, 181, 182, 183
Snyder v. Louisiana, 290
State Comp. Ins. Fund v. WPS, Inc.,
c 19, 24, 25, 26, 27
State Farm Mutual Automobile
c Insurance Co. v. K.A.W., 325
State Industries, Inc. v. Jernigan, 56,
57
c Supreme Court of New Hampshire v.
Piper, 33, 400, 402, 405
o Supreme Court of Virginia v.
Friedman, 33
Swain v. Alabama, 288
o Tedesco v. Mishkin, 416
Toth, United States ex rel. v. Quarles,
o 376
Tumey v. Ohio, 403
Upjohn Co. v. United States, 418
Q Vasquez-Lopez, United States v., 290
Vincenti, Matter of, 257
o Virginia Pharmacy Board v. Virginia
Consumer Council, 118, 119, 120,
121
c Walls v. City of Toledo, 57
Ward v. Monroeville, 403
c Washington v. Olwell, 202, 211
Wellpoint Health Networks, Inc. v.
Superior Court, 22
o West Virginia, State of v. Douglass,
211
o White, State v., 310
Williams & Connolly, LLP v. People
for the Ethical Treatment of
o Animals, Inc., 57
Wood v. Georgia, 420
O' Woodruff v. Tomlin, 182, 183, 184, 185
Yarnell & Associates v. Superior
Court, 55
c Zau deter v. Office of Disciplinary
Counsel of the Supreme Court of
o Ohio, 126, 128

c
<—-•

o
o
c
c
c
c
o

Table of References to ABA Model

o Rules of Professional Conduct
c
c 1.0(c)349 1.8(j)273, 419
1.0(f)239
o 1.1188,412
1.1— 1.4173
1.9327,
1.9-1.12323
1.9(b)199
424

o 1.1-
1.2188, 189, 295, 300, 422, 423
4.5375 1.10295,
1.10(a)343,
343,
421,
349, 424
424
1.2(a)411,418, 420 1.10(b)343
c 1.2(d)199
1.2, cmts300
1.10(c)343
1.11(d)424
c 1.2, cmt. 1417
1.2, cmt. 2417
1.12375
1.13295, 296, 305, 420
1.2, cmt. 10199 1.13(b)420, 421
c 1.3188, 411
1.3, cmt. 1188
1.13(f)305
1.14263, 295
c
V—J
1.4356,
1.5139,
411, 423
161,410
1.14(b)1
1.15139, 164, 166, 411
1.5(a)156, 157, 162, 410 1.15(a)167,411
c 1.5(c)409
1.5(d)(1)162, 410
1.15(c)166,410
1.1675, 101, 356
a 1.5(d)(2)409
1.5(e)412
1.16(a)1,415
1.16(a)(1)178, 183, 189
1.5, cmt. 5414 1.16(b)(4)407
1.5, cmt. 6162 1.16(b)(5)412
1.6199, 215, 216, 221, 327, 406, 1.16(b)(6)406
c 414,416, 417
1.6(a)214, 414, 415
1.16(d)166,
1.17349,
406, 407
425
1.1875, 77, 173, 179, 295, 323
c 1.6(b)215,
1.6(b)(1)215
216
2.1191,
2.3349
295, 349
1.6(b)(l)-(3)214
c 1.6(b)(2)414
1.6(b)(4)216
2.4349
2.6246
2.9246
Q 1.6, cmt343
1.6, cmt. 3415 2.10246
3.175, 101, 263, 408
1.6, cmt. 5214
O 1.6, cmts. 6—8214
1.6, cmt. 10216
3.1-3.9245
3.3199, 221, 224, 237, 23S, 239
3.3(a)(1)417, 425
C 1.6,
1.7295, 323,
cmt.
327,421,
11216
423 3.3(a)(2)415
3.3(a)(3)239, 416
1.7(a)420, 422
o 1.7(b)421
1.7, cmt343
3.3(c)416
3.3(d)416
c 1.7,
1.8295,
cmt. 11422
412
3.3, cmt. 14416
3.3, cmts. 5-15237
1.8(a)420 3.4273. 410
c 1.8(b)
1.8(e)139, 163,
199,
410,
323
411
3.4(a)199,413,
3.4(b)416
425

Q 1.8(e)(1)421
1.8(f)420
3.4(c)413.
3.4(d)413
418

1.8(g)323, 340, 423 3.4(e)419

C 1.8(h).................... .............. 173, 413, 423
1.8(i)323, 420, 421
3.4(f)418
3.5 273, 3zo
O 3.5(d)417

Q xix
O
 o
Table of References to ABA model o
XX Rules of Professional Conduct
3.6256, 257 8.3406
8.3(a)67, 245
o
3.7295, 343, 421
3.7(b)421
3.8257, 261, 262
8.3(b)375
8.3, cmt. 3377
o
3.8(d)418
3.8(f)257
8.466,
8.4(a)107,
224, 273,
189,
406,
281,
419
409 o
3.13246 8.4(b)405
4.1199, 215, 221, 224
4.1, cmt. 2232
8.4(b)—(d)189,414
8.4(c)221, 405, 411
o
8.4(e)221, 281
4.2417, 418
4.2- 4.4245 8.4(f)375
8.567, 405
O
4.2, cmt. 7 418
4.3419
4.4................................................246, 273
o
4.4(a)280,
4.4(b)1
419
o
5.1355, 425
5.1-
5.1(b)425
5.7349 o
5.1(c)(1)425
5.2425 o
5.2(a)425
5.2(b)425
5.3355, 413, 414
o
5.3- 5.5173
5.3- 5.5(b)174 o
5.3(c)413
5.3, cmt413
5.4 191, 192, 354
o
5.4(a)191
5.4(b)........................................... 191, 424 o
5.4(c)295
5.4(d)354
5.5.....................................30, 33, 46, 190
o
5.5(a)190,
5.5(c)31
405
o
5.5(c)(2)405
5.6357
5.7191, 192
O
6.179, 80, 407
6.1- 6.275 o
6.279, 407
6.2(b)407 CD
6.3323, 424
6.3(a)424 CD
6.5. 344
7.1224, 408, 409
7.1- 7.6107 CD
7.2408
7.2(a)408 CD
7.2(b)408, 410
7.3124, 356, 409
7.4125 CD
7.4(d)408
7.5408
7.5(b)32
O
8.1221, 406
8.1-8.530 CD
8.1(a)405
CD

CD

CD
Problems in
Legal Ethics
Twelfth Edition
c
c Chapter One
o
c Introduction to Legal Ethics
■■■
c
What This Chapter Covers
I. How to Use This Book
c II. Short Form Citations
c III. Purposes of This Book
c IV. Self-Regulation?
A. Lawyer Codes
c B. Governmental Interventions
o C. Other Developments and Complications

o Reading Assignment
c Schwartz, Wydick, Perschbacher, & Bassett, Chapter 1.
ABA Model Rules: Rules 1.14(b), 1.16(a), and 4.4(b).
o
Discussion Problems
o 1. You represent client Claremont, who is the plaintiff in a civil
action against five corporate defendants, each of which has its own lawyer.
o After extensive discovery, the case is almost ready for trial. Your secretary
has just handed you a six page document that arrived on your fax machine
c a few minutes ago. The cover page states that the document was sent by
one of the defense lawyers and that the intended recipients were the other
c four defense lawyers. Nothing on the cover page indicates that you were
intended to receive the document; apparently the sender mistakenly speed-
cd dialed your fax number along with those of the four defense lawyers. The
c “subject” line on the cover page states: “Confidential Memo to Defense
Counsel re Settlement Negotiations in Claremont” The cover page is a
Q standard law office form with the following boilerplate notice printed at the
bottom: “This is a confidential communication protected by the attorney­
O client privilege, the work product doctrine, or both.” You are aware that
some law firms routinely use cover sheets with that boilerplate for all fax
C messages, whether or not they are confidential. Puzzled, you flip to the first
page of the memo. The opening paragraph says: “I have discussed with my
Cj
c 1
c
 o
2 Introduction to Legal Ethics Ch. 1 o
client the idea of initiating settlement negotiations in the Claremont case. o
This memo states my client’s position on settlement and outlines the
negotiating tactics I think we should use with plaintiffs counsel.” At that
o
point you stop reading. What should you do now? o
2. For many years you have served as legal counsel to the members
of a family in a variety of matters. When the mother and father died, their o
son Samuel and daughter Dena each inherited about $750,000. Samuel is
unmarried but has an 11 year-old child, Clara, who lives in his home under o
his care. You now represent Samuel in business, investment, and estate
planning matters. From things Samuel has told you in confidence, and from o
things you have observed about him, you have concluded that he has
developed a serious drug addiction problem that makes him unfit to take o
care of himself, his estate, and Clara. Now Dena has come to you and has
asked you to petition the court to appoint a conservator for Samuel. You
o
know from your prior dealings with Samuel that he will adamantly oppose
this idea. What should you do?
o
3. Three years ago, lawyer Leon represented client Curtis in a o
worker’s compensation matter. Pursuant to a settlement agreement, the
compensation insurance company has since been sending Leon o
compensation checks once a month. In accordance with an agreement
between Leon and Curtis, Leon deducts 10% from each check as his legal o
fee, and remits the remainder to Curtis. A week ago, during a routine
review of the file, Leon discovered that the insurance company made a o
mistake in computing the amount of the monthly checks; it has been
sending almost twice the amount that Curtis is entitled to receive under
o
the settlement agreement. When Leon informed Curtis of this fact, Curtis o
said: <cWell, I knew something must be wrong, but with inflation and all, I
can barely make ends meet as it is. Don’t rock the boat.” What should Leon o
do?
o
o
I. HOW TO USE THIS BOOK
Each chapter of this book starts with a reading assignment. The
o
reading assignments consist of some pages in this book, and some portions o
of a paperback supplement called Professional Responsibility Statutes,
Rules, and Standards on the Legal Profession (West Academic Publishing). o
You will need a copy of the supplement to use in conjunction with this book.
The subsequent chapters also suggest some supplemental reading in O
other books that should be available in your local law library: O
• Geoffrey Hazard & William Hodes, The Law of Lawyering (3d ed.
2001); O

o
o
Ch. l____________ Introduction to Legal Ethics________________ 3
• The Restatement (Third) of the Law Governing Lawyers
(2000), prepared by the American Law Institute.
After you finish the assigned reading, work through the Discussion
Problems posed at the beginning of the chapter. Make notes of your
answers and your reasoning to use later in class, when you discuss the
problems with your classmates and professor.
Finally, work the Multiple Choice Questions at the end of each chapter
(except this one and Chapter 14). Some of these questions review material
that is found elsewhere in the chapter. Other questions cover material that
is not otherwise mentioned in the chapter, but you should be able to answer
them from the assigned readings. In the Appendix at the end of this book,
you will find proposed answers to the Multiple Choice questions.

II. SHORT FORM CITATIONS

The following table explains the short form citations used in this book:
ABA Code American Bar Association Model Code of
Professional Responsibility.
DR Disciplinary Rule, a part of the ABA
Code.
EC Ethical Consideration, a part of the ABA
Code.
ABA Model Rules American Bar Association Model Rules of
Professional Conduct.
CJC American Belt Association Code of
Judicial Conduct.
Hazard & Hodes The Law of Lawyering (3d ed. 2001).
Wolfram Modern Legal Ethics (1986).
Restatement Restatement (Third) of the Law
Governing Lawyers (2000).

III. PURPOSES OF THIS BOOK

This book will introduce you to the rules of ethics that apply to lawyers
and judges in the United States. Every state has ethics rules that apply to
lawyers, and a lawyer who does not follow them can be censured, or
suspended from law practice, or disbarred. Likewise, every state has rules
that govern the conduct of judges, and a judge who does not follow them
can be censured, or suspended, or removed from the bench. Further, in
most states, you cannot be admitted to practice law until you pass a bar
examination that covers the ethics rules that apply to lawyers and judges.
 4 Introduction to Legal Ethics Ch. l
Thus, this book has two purposes. First, we hope it will help you learn
most of what you need to know about legal ethics to be admitted to law
practice. Second, and far more important, we hope it will start you on a
career-long process of studying, critically examining, and applying the
legal ethics principles that you will study here.

IV. SELF-REGULATION?
It is commonly said that the legal profession in the United States is
self-regulated. However, as commentators have explained, this assertion is
demonstrably untrue. The fragmented sources of provisions governing
lawyers are the subjects of the following excerpts.

The Myth of Self-Regulation

Fred C. Zacharias
93 Minn. L. Rev. 1147,1153,1177, 1184-85,1189 (2009).

Law in the United States is a heavily regulated industry. Lawyers are

licensed in each state. They are governed by professional rules, usually
adopted and enforced by state supreme courts. The courts regulate lawyers
separately as well, through supervisory decisions in the course of litigation
and by implementing common law civil liability rules that govern legal
practice. These include malpractice, breach of fiduciary duty, and other
causes of action. Administrative agencies—particularly federal agencies—
also establish and implement rules governing lawyers who practice before
them. Federal and state legislatures play a further role in regulating the
bar, providing statutory regulations and criminal penalties that apply to
lawyers.
Nevertheless, courts, commentators, and legal ethics regulators
continue to conceptualize law as a “self-regulated profession.” * * *
Conceiving of the disciplinary codes as mere professional self-regulation
rather than as one element of an expansive regulatory regime governing
the bar misleads courts, code drafters, lawyers, and laypersons alike. * * *
★
To the extent that supreme courts continue to rely on the notion of self­
regulation to avoid active development of the overall law governing
lawyers, their misguided notion contributes to inconsistencies in the law
and creates a regime in which lawyers often have difficulty accurately
assessing their own responsibilities. * * * The converse also is true.
Because lower courts persist in perceiving the professional codes as a form
of bar self-regulation, the courts often do not attach sufficient significance
to the codes [of professional conduct] as governing law. Lower court judges
rarely would disobey a recent supreme court opinion setting forth a legal
doctrine. Yet, in issuing supervisory rulings and presiding over cases
c
c Ch. l____________ Introduction to Legal Ethics________________ 5
c involving civil or criminal law regulating lawyers, the trial bench routinely
treats the adoption of the professional code as less relevant, or less binding,
c than other supreme court legal decisions.
o ***
Self-regulation creates questions about the nature of the professional
c codes as binding law, thereby undermining the value of the codes in
c providing guidance. At one level, if lawyers conceptualize the codes as self­
regulation, they may feel freer to disagree or disobey the codes, particularly
c when the drafters have expressed their vision of appropriate conduct
through horatory or discretionary rules. After all, the drafters of the self-
c regulatory provisions are simply lawyers whose opinion regarding
appropriate conduct seems to have no more validity than the individual
c lawyer’s own.
More significantly, to the extent that conceptualizing the codes as self­
c regulation encourages supervisory courts to depart from the standards in
the codes, lawyers are left in the dark concerning how they may behave.
c Sometimes the judicial departures simply reflect a refusal to enforce the
c codes, but leave the behavioral mandates in the code intact. On other
occasions, however, the judicial mandates may be stricter—as, for example,
o when the court disqualifies a lawyer with a conflict of interest despite the
fact that the lawyer obtained consent that, under the prevailing code,
o seems to authorize the representation. The lawyer is left unable to know
when he can rely on the code’s provisions and when he cannot. * * *
c Emphasizing the self-regulatory nature of professional mandates frees
lawyers who disavow introspection and restraint to read the codes
<—' narrowly and to seek loopholes that authorize self-interested behavior.
***
c
Continued use of the misleading term “self-regulation” * * * muddies
c the conceptual dividing line between lawyer self-restraint, professional
codes that guide and monitor lawyers, and judicially controlled discipline
c of the bar. * * *
c
c Legal Ethics Falls Apakt
John Leubsdorf*
o 57 Buff. L. Rev. 959 (2009).

c In recent decades, the law governing lawyers has begun to fragment.

Nowadays, a lawyer’s duties often cannot be found in a single body of rules,
c such as the ABA Model Rules of Professional Conduct, but are likely to vary
with the lawyer’s specialty, the tribunal or agency before which the lawyer
a
c * Reprinted with the permission of John Leubsdorf and the Buffalo Law Review.

o
 o
6 Introduction to Legal Ethics Ch. l
o
practices, the state or states in which the lawyer is acting, and other cd
factors. The sources of those duties may well include not just the traditional
duo of courts and bar associations but also state and federal legislators,
o
administrators, and others. Ironically, this centrifugal movement has
coincided with the promulgation of the Restatement of the Law Governing
o
Lawyers (2001), a work grounded on the assumption that lawyers are o
subject to a single, integrated body of law, albeit also a work that has drawn
attention to the fact that much of that law is not to be found in lawyer codes o
such as the Model Rules.
Although the products of this fragmentation are varied and sometimes o
inconsistent, five trends do stand out. First, the innovations have tended
on the whole to restrain the freedom of lawyers to pursue their clients’ o
interests at the expense of others. No doubt they reflect the view—common
outside the profession and among academics—that lawyers are too
o
adversarial. Often, the interests to be protected are those of the
government itself, and the innovation can be seen as restricting the
o
independence of the bar. Sometimes they are those of opposing parties or o
the public. In either case, the lawyer increasingly becomes not just an
advocate and advisor but a gatekeeper as well, so that not just the details o
of legal representation but its rationale and function are changing. And
even when the new regulations appear to leave intact the substance of o
previous rules balancing the interests of clients and those of nonclients,
they often impose more stringent penalties that will sway lawyers to pay o
more attention to the latter.
Second, the innovations tend to enact requirements that are relatively
o
particularized in their content and in their addressees compared to the CD
generalities addressed to all lawyers that prevail in the lawyer codes. As
the functions of lawyers have multiplied, as their numbers have increased, CD
and as faith in their high mindedness has declined, lawmakers have turned
to narrower and more specific provisions. These provisions in turn foster O
specialization by making it harder for lawyers to venture into new fields of
practice. CD
Third, despite being narrow, the new requirements have often
included nonlawyers as well as lawyers within their scope. The regulators
o
may not even mention lawyers specifically, and may not have considered
how lawyers might differ from others doing the same sort of thing.
o
Likewise, they may not have addressed existing regulation by the bench CD
and bar—though in other instances, it has been the real or perceived
inadequacy of that regulation that opened the way for new interventions. O
That lawyers, like everyone else, are forbidden to break their contracts or
engage in fraud is nothing new; but they are now subject to a web of CD
additional and particularized requirements. Ultimately, we might often
find it more convenient to think of some practitioners as tax or bankruptcy CD
professionals or the like rather than as lawyers.
CD
CD
c
Ch. l Introduction to Legal Ethics 7
CO Fourth, more and more regulators have sought to regulate the bar. If
once the American Bar Association’s codes dominated the field, now courts
CO have become increasingly unwilling to defer to them, and legislators and
C administrators have become increasingly unwilling to defer to either bar
associations or courts. We are witnessing the decline of the ideal of
o professional self-regulation at the same time that the ideal has been almost
entirely demolished in England.
co Fifth, the new regulators—whether legislative, administrative, or
judicial—tend to be federal ones. Although state supreme courts continue
c to promulgate professional rules and state legislatures occasionally seek to
regulate lawyers, the more important and striking initiatives during recent
co decades have come from the federal government. In this respect, innovation
has been centripetal rather than centrifugal. Considering the growth of
CO multijurisdictional practice and the tendency toward federalization of
many bodies of law, one can expect this trend to continue. We seem to be
moving from a system of rules that are uniform for all lawyers but vary
Q from state to state to one of nationwide rules that vary by specialty.
The fragmentation of the law of the legal profession has begun to bring
CO about a number of more general consequences. It complicates the lives of
lawyers, and increases the need for them to obtain advice about their own
CO obligations, as well as the need for law firms to provide internal
mechanisms to promote compliance. It means that, more than in the past,
co changes in the law governing lawyers will result from a political process
involving trade offs among various interested groups inside and outside the
co profession, worked out in a variety of judicial, administrative, and
c legislative bodies, and often including competition among those bodies.
A further consequence of all these trends is hence to accelerate the
m
V trend for professional responsibility to be seen less as a field of personal
morals or professional customs and more as one of hard law, often rather
o technical law. The traditional approach embodied in the lawyer codes
bridged or obscured that distinction. The term “legal ethics” could be read
c as a moral one or as referring to social standards embodying the customs
of the profession. The norms recognized by the lawyer codes could be seen
c as crystallizations of moral obligations such as honesty and fidelity as they
co apply to agents in an adversary system, or as standards protecting the legal
rights of clients and nonclients and the proper operation of the laws. And
c lawyers could easily persuade themselves that if they followed the
professional rules they were acting ethically in every sense. But to the
co extent that the rules come to be seen just as law, imposed by many
lawmakers who are lobbied by many interested groups, and varying from
co specialty to specialty, thoughtful lawyers will be pressed to recognize their
own personal responsibility for choosing how to act within the legal world
o
a those rules create. Indeed, there will be room within the profession for
 8 Introduction to Legal Ethics Ch. l
differing views about how lawyers should act, which will in turn promote
further fragmentation.
★*★
I. State Court Regulation and Its Challengers
During the nineteenth and most of the twentieth centuries, the great
bulk of the rules governing lawyers in England and the United States were
promulgated by the bench. The bench in turn tended to defer to the customs
and values of the profession. Judges were former practicing lawyers, and
often continued to be active in professional activities. They might take a
broader view of the public interest than their practicing colleagues, but
their starting point was usually the outlook and customs they had known
as practitioners. Between them, the bench and the profession developed
rules and principles applicable to all practitioners. Gradually, previous
reliance on the common background and shared values of most
practitioners was replaced by the system of self-regulation by bench and
bar that is now yielding in turn to diverse governmental regulation
supplemented by market forces.
This was the pattern in England, with the obvious qualification that
barristers and solicitors were subject to differing regimes. Early legislation
recognized the power of the courts to discipline misbehaving barristers and
solicitors (or their precursors), and the courts also recognized causes of
action against misbehaving solicitors. Barristers later set up their own
disciplinary systems in the Circuit messes and the Inns of Court, the latter
involving the participation of judges among the Benchers of the Inns. For
solicitors, the path to self regulation was longer and harder, probably
because of their lower status. The Law Society’s precursor was founded
only in 1739, and the Society acquired disciplinary power only in the early
twentieth century. By the end of the twentieth century, both solicitors and
barristers had promulgated codes of conduct; previously, practitioners had
to rely on precedent, treatises and professional customs. Meanwhile,
during the last twenty years, government ministers and legislators have
roared onto the English scene, reforming legal services has become a
significant political issue, and the role of the profession and the courts in
regulating lawyers has declined.
In the United States, state supreme courts were likewise the prime
regulators, typically acting in interplay with the bar. For a long time,
access to the profession and professional conduct were only lightly
regulated. Yet by the end of the nineteenth century there was an extensive
common law of lawyering, and professional literature on the ethics of
lawyering had begun to emerge. An organized bar only began to develop
late in that century, and the Canons of Ethics that the American Bar
Association approved in 1908 were not binding in most jurisdictions.
Moreover, the development of university law schools hindered the
Ch. 1 Introduction to Legal Ethics 9
organized bar from controlling its own recruitment and training through
the apprenticeship systems common in other nations. Not until the ABA’s
Model Code of Professional Responsibility was issued in 1969 did most
state supreme courts turn the bar’s rules into law by adopting them as
rules of court. And many of those rules were themselves based on state
court decisions. By promulgating professional rules, and by seeking to
invigorate their traditionally feeble disciplinary systems, these courts
confirmed their primacy, while the participation of the organized bar in
these processes reinforced its own authority.
Although the dominant role of the state courts was sometimes
threatened by state legislatures, starting in the late nineteenth century
courts developed the doctrine of “inherent power” to fend off many such
intrusions. Under that doctrine, the state supreme court not only regulated
the practice of law but also excluded legislative regulation. Courts continue
to invoke their power to strike down even innocuous or beneficial statutes.
Nevertheless, some statutes affecting the practice of law have survived,
either because courts in some states do not recognize the inherent powers
doctrine in its full strength or because the statutes were enacted and
accepted before that doctrine arose. For example, legislatures have
sometimes succeeded in preventing or limiting the professional monopoly
by allowing nonlawyers to represent even litigants without restriction or
more recently by allowing certain kinds of nonlitigative practice by
nonlawyers. Sometimes competitors have overcome the profession in
pitched battles, as when Arizona real estate brokers secured an
amendment to the state constitution to override a decision denying them
the right to draft sales contracts.
The principles of lawyering recognized by the state courts were for the
most part uniform for all lawyers. The distinction between barristers and
solicitors soon faded away in the United States, and was not replaced by
any other recognized split. There were a few exceptions, aside from the
obvious one that some rules varied from state to state. For example, the
Model Code laid down special provisions for prosecutors and other
government lawyers, lawyers who were also government officials, and
former judges, presumably based on the special characteristics of those
functions. In addition, some formally general rules pressed harder on low
status lawyers than on the elite. Nevertheless, until recent decades it was
broadly true that all the lawyers in each state were subject to the same
rules.
Uniformity does not equal perfection: the first half of the twentieth
century was not a golden age of lawyer regulation. Professional rules were
riddled by gaps and skewed by professional self interest. Enforcement was
feeble at best. Indeed, not the least consequence of the proliferation of
regulators to be described here has been the awakening shock they
administered to professional rulemakers and disciplinary systems.
10_______________Introduction to Legal Ethics____________Ch. l
o
State supreme court domination began to erode in the late 1960s and o
1970s as the federal government began to influence lawyer rules, and as
the size of the bar dramatically increased. The Supreme Court relied on the o
First Amendment to strike down state barriers to group legal services, o
solicitation of public interest cases, and lawyer advertising. It held
unconstitutional certain restrictions on admission to state bars. It invoked
the antitrust laws to limit the powers of bar associations to impose
o
minimum fees and other anticompetitive practices, an enterprise in which
the Justice Department and Federal Trade Commission joined. It applied
o
Title VII’s prohibition of employment discrimination to law firm o
partnership decisions, which in the long run could not help but affect the
conditions in which law firm lawyers practice. Others likewise began to o
apply employment legislation to law firms and house counsel, rejecting the
claim that lawyers are different. And federal courts began to take a more o
prominent role than state courts in shaping the common law of lawyering,
for example when they formulated rules disqualifying lawyers suing former o
clients in matters substantially related to the former representation, rules
that were later codified by the American Bar Association. o
During the same period, Congress preempted state regulation of o
employee group legal services plans and instituted the Legal Services
Corporation, the activities of whose lawyers it promptly began to supervise. o
Federal legislators did not have to fear the inherent powers doctrine, which
has not been considered by the federal courts to bar legislation. However, o
even some state legislatures became increasingly active. California
legislation of the late 1970s imposed nonlawyer members on the State Bar’s o
Board of Governors, limited medical malpractice contingent fees, and
required lawyers to submit to fee arbitration. State legislatures also o
followed Congress by imposing on former government lawyers rules more
stringent than those of the bar. And perhaps an academic may be forgiven o
for viewing the proliferation of professional responsibility scholarship that
resulted from making that subject compulsory as the arrival of another o
regulatory force, albeit one with only persuasive power and often divided
against itself. The way was open for a new era in which many regulators
o
strove to regulate segments of the bar or professional practices. o
During the last twenty-five years, more governmental regulators have
appeared on the scene while old competitors of the courts have expanded o
their activities. New enactments, often limited by field of practice, have
implemented a grab bag of policies centering around the government’s own o
interests, the protection of nonclients from lawyers believed to be too
adversarial, and sometimes the protection of clients from self-interested o
lawyers. * * * o
Ch. l____________ Introduction to Legal Ethics_______________ n
II. Protecting the Government by Regulating Lawyers
Protection of the government’s own interests is a striking feature of
recent governmental interventions. That had scarcely been a goal of
regulation by the bar and bench, though the ethics codes do contain some
provisions that in practice bear primarily on the criminal defense bar.
Where the bar’s main focus has usually been on the lawyer-client
relationship and the adversary system, new regulations often make
lawyers gatekeepers charged to protect public and governmental interests.
***
[A.] Reining in the Criminal Defense and Legal Services Bars
Confronting the government in court is at the core of the bar’s concept
of itself, even though most contemporary lawyers never or rarely do it. Here
too Congress has been active, often in conjunction with the Department of
Justice, sometimes under the banner of wars on crime or terrorism, and
sometimes in response to asserted abusive lawyering. The results have
impacted the professional obligations of criminal defense and legal services
lawyers.
Because it ultimately did not prevail, the Justice Department’s effort
to exempt its own lawyers, in part, from the rules applying to other lawyers
deserves only passing mention. The Thornburgh Memorandum of 1989 and
its successor, the Reno rules of 1994, sought to limit the application to
federal lawyers of the rule forbidding a lawyer to have direct contact with
a party represented by counsel except with counsel’s permission. Although
there were genuine questions as to how that rule does or should apply to
prosecutors, the attempt to resolve those issues by the Attorney General’s
fiat aroused controversy and resistance. Ultimately, Congress decreed that
federal lawyers should be subject to the same rules as other lawyers in the
states where they engaged in their duties. Thus the Attorney General’s
regulatory initiative was snuffed out by a Congressional initiative, inserted
in an appropriations bill by a Representative with a personal grudge, and
creating its own problems. But other governmental interventions have
been more effective.
1. Forfeiting attorney fees. During recent decades, Congress has
given United States Attorneys the ability to prevent private defense
counsel from being paid in many cases by expanding the scope of statutes
providing for the forfeiture of defendants’ assets. Such statutes have long
existed, and two 1970 statutes provided for forfeiture in drug and criminal
enterprise cases. But it was the Comprehensive Forfeiture Act of 1984 that
put U.S. Attorneys into the fee forfeiture business. They have remained in
it ever since, despite some modest legislative cutbacks responding to
extreme examples of forfeiture. Some state prosecutors have joined the
game, either by participating in federal forfeiture proceedings or by using
state forfeiture statutes.
 12 Introduction to Legal Ethics Ch. l
Several features of the federal legislation make it a formidable weapon
against privately retained counsel. Congress broadly defined the assets
subject to forfeiture, so that they include essentially all the assets with
which a professional criminal could hire a lawyer. The prosecutor need not
wait until the defendant is convicted to obtain the property, but may seek
preliminary injunctive relief freezing the assets claimed to be forfeited,
including those that have already been paid to third parties. Lawyers are
not immune; indeed, the court has no discretion to exempt assets on the
ground that they are needed to secure counsel. The lawyer will then be paid
only if the assets are held not subject to forfeiture or the lawyer proves that
when paid she was reasonably without cause to believe that the property
was subject to forfeiture. The Supreme Court has indicated that a lawyer’s
ability to demonstrate such ignorance “will, as a practical matter, never
arise.”
The forfeiture statute, in short, makes it possible for U.S. Attorneys to
de-fund private counsel in a large class of cases, a power some of them have
recently sought to expand. The Court nevertheless upheld attorney fee
forfeiture against Constitutional challenges, on the ground that a
defendant has no Constitutional right to pay a lawyer with unlawfully
acquired assets. That is a plausible argument, though the four dissenters
also had a case. The fact remains that, however constitutional they may be,
forfeiture statutes regulate the bar by creating an obstacle to payment of
private criminal defense counsel.
Forfeiture statutes also give rise to a new conflict of interest for
defense counsel. The prosecutor’s ability to block defense counsel’s fees,
where it exists, pushes counsel to defer to the prosecutor’s wishes, and thus
alters the rules under which defense counsel operate. The prosecutor, after
all, represents an opposing party; and the Justice Department considers
that whether to seek attorney fee forfeiture is a matter of prosecutorial
discretion, albeit one calling for uniform and fair application and for due
regard to the possible impact on communications between lawyer and
client. Technically, the Justice Department does not pay defense counsel’s
fee, so the professional rule governing third party payment does not apply.
Yet functionally an arrangement in which a third party can prevent
payment poses the same danger as one in which a third party provides
payment, to wit, that the lawyer will yield to the third party’s interests
even when they conflict with those of the client. The client’s informed
consent is required for third party payment, but the client has no way to
deny consent to attorney fee forfeiture except by renouncing private
counsel and seeking appointed counsel (assuming he can show he has no
assets not subject to forfeiture). In effect, then, the new law of forfeiture
subjects some criminal defendants to attorney conflicts of interest from
which the law of lawyering has sought to guard clients. * * *
Ch. l Introduction to Legal Ethics 13
So far as fee forfeiture is concerned, the new regime instituted by the
1984 statute not only gives prosecutors discretion to interfere with
opposing counsel’s fee arrangements but also institutes a fee arrangement
previously banned: a contingent fee for defending a criminal case. Once a
court freezes the funds on which defense counsel depends for payment,
counsel is likely to be paid only if the client is acquitted. The official view,
which is open to question, is that such contingent arrangements give
defense counsel an undesirable incentive to defend a client by improper
means. Ironically, this rationale is just the opposite of the rationale for
limiting prosecutorial influence over what defense counsel is paid. One
might argue that these two features of fee forfeiture cancel each other out:
counsel’s fear of losing payment should his client be convicted will
counteract his fear of defending so zealously as to provoke the prosecutor
to attack the funds from which he will be paid. But things will not work out
so neatly. The contingent fee incentive arises only once the prosecutor
seeks forfeiture, while the incentive to avoid a prosecutorial forfeiture
attempt operates before the attempt occurs. And once forfeiture is sought,
the lawyer can preserve his fee not only by prevailing at trial but through
a plea bargain that gives the prosecutor the conviction she wants but frees
the funds needed to pay defense counsel. In short, fee forfeiture has
influenced the law governing lawyers in at least two ways: giving the
prosecution power over defense counsel’s pay and instituting a sort of
contingent fee.
When Congress expanded forfeiture, it did not focus on how this would
affect the regulation of lawyers. Its main concern was with depriving
participants in organized crime of any resulting assets. Although some in
Congress were aware that the Comprehensive Forfeiture Act of 1984 might
be applied to funds used to pay lawyers, they did not discuss whether this
was desirable, much less how it would change professional rules. The
Supreme Court was aware of the impact on such rules, dismissing them in
a footnote when it upheld attorney fee forfeiture against Constitutional
challenges. But when Congress later passed the Civil Asset Forfeiture
Reform Act it again did not explicitly advert to attorney fee forfeitures or
their impact on lawyering. Considering that fee forfeitures are just an
aspect of forfeitures in general, which are just an aspect of crime
legislation, which is just one of many matters before Congress, that is not
surprising. But we should also not be surprised if inadvertent regulation
turns out to be imperfect.
2. Limiting confidentiality. Recent government initiatives have
limited the confidentiality of communications between lawyers and clients.
These initiatives date back to the Reagan era’s proliferation of grand jury
subpoenas to criminal defense lawyers. They do not represent a
coordinated campaign, but could better be described as piecemeal nibbles
 cd

14 Introduction to Legal Ethics Ch. i o

serving various governmental interests. Some of them affect lawyers in CD
civil matters, but their main impact is on criminal defense counsel. CD
(a) As part of the War on Terror, Attorney General Ashcroft
authorized monitoring of communications between prisoners and their o
lawyers. Monitoring requires a finding of reasonable suspicion that the
communications might be used to facilitate terrorism; the prisoner and o
lawyer must be given advance notice; privileged communications are to be
discarded; and information from the monitoring may not be disclosed to o
prosecutors or others unless a judge approves or acts of violence or
terrorism are imminent. These safeguards, however, have not always been o
honored. The notice requirement is a two edged sword, since it permits the
argument that the defendant has waived the attorney-client privilege for o
monitored conversations.
o
(b) The Secretary of Defense has also become a regulator of lawyers.
Although his rules governing defense counsel in military commission trials o
have recently lost some of their original stringency, they still require
civilian counsel to disclose “information relating to the representation of o
my client to the extent that I reasonably believe necessary to prevent the
commission of a future criminal act that I believe is likely to result in death o
or substantial bodily harm, or significant impairment of national security.”
Most states do not require lawyers to disclose even confidential information CD
identifying an imminent threat to human life, and none treats a danger to
national security as a ground for disclosure. An extra twist is that, while CD
defense counsel may be obligated to disclose certain client confidences to
the government, they also participate in certain hearings from which their
□
clients are excluded, and apparently may not tell their clients without o
approval about classified materials discussed at those hearings.
(c) By inducing corporations to waive their attorney-client privilege CD
in order to avoid indictment, prosecutors found another way to restrict the
confidentiality of communications between clients and lawyers. In this O
case, the government’s goal is to punish and deter corporate crime, or at
least to promote well publicized prosecutions of corporate employees, in CD
response to Enron and other corporate scandals. The “Thompson O
Memorandum” of 2003 instructed federal prosecutors to consider a
corporation’s willingness to waive its privilege in deciding whether to indict CD
it, on the theory that willingness eases the government’s task and
demonstrates the corporation’s wish to reform itself. The same theory O
supported Deferred Prosecution Agreements in which the Justice
Department agreed not to prosecute corporations that agree to waive their □
privilege and cooperate in other ways. Responding to widespread criticism,
the more recent “McNulty Memorandum” and "Filip Policy” moderated the O
Thompson Memorandum, though it remains to be seen whether they have
put the genie back in its bottle. Meanwhile, several other federal agencies O
have adopted similar policies. The federal Sentencing Guidelines have long
o
CD
CD
Ch. l Introduction to Legal Ethics 15
listed “disclosure of all pertinent information known by the organization”
as a prerequisite for sentence reduction based on cooperation. * * *
Whatever the justification for the government’s approach to
prosecuting corporate crime, it clearly restricts an employee’s ability to
speak to corporate counsel with practical assurance that what she says will
remain private. As a result, counsel must consider issues of professional
responsibility ranging from what warning to give an interviewed employee
to whether counsel should now be considered subject to all the
Constitutional and professional obligations of a government lawyer. These
impacts on lawyers and their clients confronting the federal government
contrast strikingly with Congress’ recent enactment of Federal Rule of
Evidence 502, which among other effects encourages disclosures to the
government by limiting the scope of the resulting waiver of privilege.
(d) The Deficit Reduction Act of 1984 requires those engaged in a
trade or business, including lawyers, to report to the Treasury the amount
and payor of all cash payments of more than ten thousand dollars. The
lawyers unsuccessfully challenging it have typically been engaged in
criminal defense, presumably because their clients are more likely to pay
in cash and disclosure of their identities is more likely to incriminate them
and expose them and their lawyers to forfeiture. This legislation has some
similarity to * * * 2004 tax shelter legislation * * *, which requires
advisors—including lawyers—in certain transactions to report them to the
Internal Revenue Service and to maintain lists of participants for
government inspection.
Technically, it might be said that these statutes do not change the law
of lawyering. As courts have pointed out when upholding and enforcing
them, the attorney-client privilege does not usually protect the identity of
clients or their financial transactions with lawyers. In exceptional cases in
which the privilege applies, courts have found ways to exempt lawyers from
disclosing the client’s name. Turning from privilege to the lawyer’s duty of
confidentiality, fees and client identity do constitute confidential
information that a lawyer may not reveal unless an exception applies, but
compliance with a valid law is one of the exceptions. Beyond technicality,
it can be argued that a client who is only able to pay in cash is probably
paying with the proceeds ofcrime. Likewise, if the promoter of a tax shelter
is required to disclose information about a tax shelter to the IRS, why not
the lawyer who helped the promoter set up the shelter?
Nevertheless, it makes a difference when lawyers must routinely
report the identity and fees of certain clients or face substantial penalties.
Sometimes lawyers will report to avoid trouble even when their clients
might have had a valid reason not to. Like placing a government
surveillance camera at the entrance of a lawyer’s office, such requirements,
 16 Introduction to Legal Ethics Ch. l
even if justified, change the expectations of clients and reduce the
confidentiality that lawyers can offer them.
3. Controlling legal services lawyers. Since its creation in 1974, the
Legal Services Corporation has helped many people who could not
otherwise afford lawyers, but has evoked fierce opposition. As a result, it
has been grossly underfunded and subjected to numerous Congressional
restrictions. Underfunding is the more serious problem, but regulation by
restriction is what will be considered here.
Forbidding Legal Services Corporation lawyers to accept many kinds
of cases and clients might not look like professional regulation, but it is.
True, it may be a valid Constitutional argument that Congress may decide
which services to subsidize and may require its grantees to use grants only
to provide those services. But the result is to exclude much of the very
limited pool of lawyers available to represent the poor from certain kinds
of practice, which are to that extent unavailable to poor clients. The
situation is comparable, albeit less sweeping, to legislation excluding
treatments of certain diseases from Medicare and Medicaid. Congress
extended the impact of its prohibitions by providing that they extend to all
of a legal services organization’s activities, not just those federally funded.
Many states have likewise enacted similar restrictions for activities funded
by their Interest on Lawyer Trust Account (IOLTA) plans, which are the
main source of funding for legal services in civil matters outside the Legal
Services Corporation. So, poor people maybe able to obtain legal assistance
in certain legal matters only from lawyers in private practice willing to live
up to their obligation to help those who cannot afford to pay. It is also
possible that, had Congress not created the Legal Services Corporation and
saddled it with restrictions, a less restrictive system might have come into
existence. If that is so, which is far from certain, Congress is not just
declining to fund certain services, but has blocked others from offering
them.
The restrictions in question are significant ones. Prisoners and most
illegal aliens may receive no services at all, even though they have long
been considered especially in need of help. Others may not receive services
in matters of abortion, desegregation, redistricting, certain evictions of
people with drug records from public housing, or assisted suicide. Note that
the first three of these categories concern Constitutional rights. If a state’s
ethics rules were to impose such restrictions on part of the bar, it would be
considered a radical innovation.
Another class of Congressional restrictions is based, not on the client
or the nature of the case, but on the services a Legal Services Corporation
lawyer may provide; therefore it regulates how lawyers may practice law,
forbidding certain otherwise lawful means of representing clients. The
Supreme Court struck down one such restriction, reasoning that to allow
Ch. l____________ Introduction to Legal Ethics_______________ 17
legal services lawyers to represent clients seeking welfare rights while
prohibiting them from trying to change or challenge existing law in the
process was an infringement of free speech. However, prohibitions on class
actions, legislative representation, and participation in agency rulemaking
remain on the books. So does a ban on accepting cases resulting from in-
person solicitation, even though such solicitation is lawful when not
conducted for pecuniary gain.
★ ★ 'k
V. Regulation Beyond the State and Federal Government
The centrifugal forces pulling at legal ethics are not limited to * * *
governmental bodies. * * * The profession itself has increasingly become
the site of competing opinions and groups; clients and insurers seek to
shape professional practices and a lawyer admitted in one state must
reckon, more and more, with lawyers and rules from other jurisdictions.
*★*
B. Clients and Others
There have always been clients who have their own ideas about how
their lawyers should behave, but corporate clients have now begun to
assert themselves more systematically and collectively as a force molding
lawyer behavior. House counsel from different corporations have developed
and shared techniques for reducing the cost of litigation, including
shopping for lawyers, alternative fee arrangements, litigation planning
and budgeting, and advance approval requirements for research projects,
depositions, or the assignment of new lawyers to the case. * * *
Far more controversial has been the imposition of cost control
techniques by liability insurers. The ethical problem here is that in many
states only the insured and not the insurer is the client of a lawyer
defending a case against the insured for which the insurer is liable under
the insurance policy, while in other states both insurer and insured are
clients. Under the first view, and perhaps the second as well, the insurer’s
payment for the lawyer does not entitle it to interfere “with the lawyer’s
independence of professional judgment.” Detailed control over what the
lawyer does, or at least what the lawyer gets paid to do, may well violate
this prohibition. Furthermore, insurers spend more than fifteen billion
dollars a year on defense counsel, which gives them a strong interest in
minimizing lawyer fees and the insurance defense bar a strong interest in
resisting.
Efforts of insurers to reshape defense practices have therefore led to
disputes about whether insurers may assign house counsel to defend cases,
whether they may require outside counsel to accept a standard flat fee, and
whether they may require advance insurer approval for measures taken by
outside counsel. Controversy reached the American Law Institute, where
 18 Introduction to Legal Ethics Ch. 1
insurance company lawyers lobbied with some success for relaxation of the
rules. Whatevei- one may think of the process or the result, they show that
pressure groups from outside the bar can influence the profession’s own
formulations of its rules. No doubt the influence of insurers on what
defense counsel actually do has been even greater than precedents and
Restatements indicate. Lawyers who depend on insurance company
referrals will think twice before they reject insurance company initiatives.
Another group of insurers, legal malpractice insurers, has likewise
begun to regulate law firm practices, largely in response to the
multiplication of large malpractice damage awards. Malpractice insurers
advise their insureds how to prevent malpractice claims. They also require
measures such as written retainers, conflict checking procedures, and
calendaring systems. And they exercise more subtle control by excluding
some activities from coverage or charging higher rates to lawyers who
engage in them. In some of these activities, it is ultimately malpractice law
itself that does the regulating, with insurers acting as messengers to make
sure that lawyers hear and heed the voice of the law. But a messenger is
also an interpreter, and insurers can give malpractice law a broader and
deeper impact than it might otherwise have.
**★
[Mjultistate and multinational lawyers must navigate among different
sets of rules. The divergence and increasing complexity of state ethics rules
has given rise to books seeking to state the professional rules of a single
state. Sometimes the rules are not just different but incompatible: a lawyer
working on a transaction in New Jersey and New York might find herself
required to disclose her client’s fraud in the first state and forbidden to do
so in the second. And in transnational practice, a lawyer might have to deal
with a foreign colleague in a nation in which certain communications
between counsel may not be disclosed to the client, or in which disclosures
to corporate house counsel are not protected by an evidentiary privilege, or
in which lawyers may not interview potential witnesses. Such situations
are increasingly prevalent. United States law firms export more than four
billion dollars of services yearly. * * *
Although this proliferation of standards and jurisdictions might
suggest that interstate and transnational lawyers are doomed to
perplexity, the reality is different. States rarely discipline their own
lawyers for conduct occurring elsewhere, or discipline another state’s
lawyer (except for sanctioning litigation misconduct) for conduct within the
state. The obstacles include lack of investigative personnel, lack of interest,
and perhaps the very multiplication of rules and disciplinary authorities
we have been discussing. In any event, interstate and transnational
lawyers are confronted less by over-regulation than by a regulatory
vacuum.
Ch. l Introduction to Legal Ethics 19
Conclusion
The regulations we have surveyed embrace almost every kind of legal
practice: banking, bankruptcy, class actions, corporate and securities law,
criminal defense, debt collection, insurance defense, legal services, tax, and
transnational. Some might be dismissed as window dressing, but their
cumulative impact for many lawyers is enormous. They cover almost every
subject considered by traditional rules and codes: advertising and
solicitation, advice to clients, confidences and privilege, conflicts of interest,
decision-making authority, duties to nonclients, fees, honesty, and
malpractice.
Although each innovation has its own history, a number of more
general factors seem to be at work. Some of these can best be appreciated
from the viewpoint of the regulators. Because almost every other part of
the economy is now subject to external regulation, and because the work of
lawyers is entwined with the rest of the economy, lawyers cannot expect to
escape outside regulation. As the number and functions of lawyers
increase, lawyers have become too important to be left to the exclusive
control of the bench and bar. * * *

V. BEGINNING CONSIDERATIONS
Rico v. Mitsubishi Motors Corporation
Supreme Court of California, 2007.
42 Cal.4th 807, 171 P.3d 1092, 68 Cal.Rptr.3d 758.

Corrigan, J.
Here we consider what action is required of an attorney who receives
privileged documents through inadvertence and whether the remedy of
disqualification is appropriate. We conclude that, under the authority of
State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 82
Cal.Rptr.2d 799 (State Fund), an attorney in these circumstances may not
read a document any more closely than is necessary to ascertain that it is
privileged. Once it becomes apparent that the content is privileged, counsel
must immediately notify opposing counsel and try to resolve the situation.
We affirm the disqualification order* under the circumstances presented
here.
Factual Background
Two Mitsubishi corporations (collectively Mitsubishi or defendants),
and the California Department of Transportation (Caltrans), were sued by
various plaintiffs after a Mitsubishi Montero rolled over while being driven
on a freeway. Subsequently, Mitsubishi representatives met with their
 20_______________ Introduction to Legal Ethics____________Ch. l
o
lawyers, James Yukevich and Alexander Calfo, and two designated defense o
experts to discuss their litigation strategy and vulnerabilities. Mitsubishi’s
case manager, Jerome Rowley, also attended the meeting. Rowley and
D
Yukevich had worked together over a few years. Yukevich asked Rowley to
take notes at the meeting and indicated specific areas to be summarized.
O
The trial court later found that Rowley, who had typed the notes on
Yukevich’s computer, had acted as Yukevich’s paralegal. At the end of the
O
six-hour session, Rowley returned the computer and never saw a printed
version of the notes. Yukevich printed only one copy of the notes, which he
o
later edited and annotated. Yukevich never intentionally showed the notes o
to anyone, and the court determined that the sole purpose of the document
was to help Yukevich defend the case. o
The notes are written in a dialogue style and summarize conversations
among Yukevich, Calfo, and the experts. They are dated, but not labeled as Q
“confidential” or “work product.” The printed copy of these compiled and
annotated notes is the document at issue here.
O
Less than two weeks after the strategy session, Yukevich deposed O
plaintiffs’ expert witness, Anthony Sances, at the offices of plaintiffs’
counsel, Raymond Johnson. Yukevich, court reporter Karen Kay, and o
Caltrans counsel Darin Flagg were told that Johnson and Sances would be
late for the deposition. After waiting in the conference room for some time, o
Yukevich went to the restroom, leaving his briefcase, computer, and case
file in the room. The printed document from the strategy session was in the o
case file. While Yukevich was away, Johnson and Sances arrived. Johnson
asked Kay and Flagg to leave the conference room. Kay and Flagg’s
o
departure left only the plaintiffs’ representatives and counsel in the
conference room. Yukevich waited approximately 5 minutes, then knocked
□
and asked to retrieve his briefcase, computer, and file. After a brief delay,
he was allowed to do so.
o
Somehow, Johnson acquired Yukevich’s notes. Johnson maintained o
that they were accidentally given to him by the court reporter. Yukevich
insisted that they were taken from his file while only Johnson and
o
plaintiffs’ team were in the conference room. As a result, Mitsubishi moved
to disqualify plaintiffs’ attorneys and experts. The trial court ordered an
o
evidentiary hearing to determine how Johnson obtained the document. o
The court reporter was deposed and denied any specific recollection of
the Sances deposition. She could not testify what she had done with the
deposition exhibits that night and could only relate her general practice.
She said she generally collects exhibits and puts them in a plastic covering. o
She did not remember ever having given exhibits to an attorney. She also
testified that she had never seen the document in question. If documents o
other than exhibits remain on a conference table, she leaves them there.
The trial court found that the Sances deposition took place over
o
o
o
o
Ch. 1 Introduction to Legal Ethics 21
approximately eight hours. It was a document-intense session and
documents were placed on the conference table.
Another member of plaintiffs’ legal team submitted a declaration
supporting Johnson’s assertion that he received the document from the
reporter. The court ultimately concluded that the defense had failed to
establish that Johnson had taken the notes from Yukevich’s file. It thus
ruled that Johnson came into the document’s possession through
inadvertence.
The court found the 12-page document was dated, but not otherwise
labeled. It contained notations by Yukevich. Johnson admitted that he
knew within a minute or two that the document related to the defendants’
case. He knew that Yukevich did not intend to produce it and that it would
be a “powerful impeachment document.” Nevertheless, Johnson made a
copy of the document. He scrutinized and made his own notes on it. He gave
copies to his co-counsel and his experts, all of whom studied the document.
Johnson specifically discussed the contents of the document with each of
his experts.
A week after he acquired Yukevich’s notes, Johnson used them during
the deposition of defense expert Geoffrey Germane. The notes purportedly
indicate that the defense experts made statements at the strategy session
that were inconsistent with their deposition testimony. Johnson used the
document while questioning Germane, asking about Germane’s
participation in the strategy session.
Defense Counsel Calfo defended the Germane deposition. Yukevich
did not attend. Calfo had never seen the document and was not given a
copy during the deposition. When he asked about the document’s source,
Johnson vaguely replied that, “It was put in Dr. Sances’ file.” Calfo
repeatedly objected to the “whole line of inquiry with respect to an
unknown document.” He specifically said that, “I don’t even know where
this exhibit came from.”
Only after the deposition did Johnson give a copy of the document to
Calfo, who contacted Yukevich. When Yukevich realized that Johnson had
his only copy of the strategy session notes and had used it at the deposition,
he and Calfo wrote to Johnson demanding the return of all duplicates. The
letter was faxed the day after Germane’s deposition. The next day,
defendants moved to disqualify plaintiffs’ legal team and their experts on
the ground that they had become privy to and had used Yukevich’s work
product. As a result, they complained, Johnson’s unethical use of the notes
and his revelation of them to co-counsel and their experts irremediably
prejudiced defendants.
The trial court concluded that the notes were absolutely privileged by
the work product rule. The court also held that Johnson had acted
unethically by examining the document more closely than was necessary
 o
22______________ Introduction to Legal ethics____________Ch. l
to determine that its contents were confidential, by failing to notify
o
Yukevich that he had a copy of the document, and by surreptitiously using
it to gain maximum adversarial value from it. The court determined that
o
Johnson’s violation of the work product rule had prejudiced the defense and o
“the bell cannot be unrung by use of in limine orders.” Accordingly, the
court ordered plaintiffs’ attorneys and experts disqualified. o
Plaintiffs appealed the disqualification order. The Court of Appeal
affirmed.
DISCUSSION o
Attorney Work Product
o
Plaintiffs contend that the Court of Appeal erred by holding that the
entire document was protected as attorney work product. We reject that o
contention.
The Legislature has protected attorney work product under California
o
Code of Civil Procedure section 2018.030, which provides, “(a) A writing
that reflects an attorney’s impressions, conclusions, opinions, or legal
o
research or theories is not discoverable under any circumstances. fi|] (b)
The work product of an attorney, other than a writing described in
o
subdivision (a), is not discoverable unless the court determines that denial
of discovery will unfairly prejudice the party seeking discovery in preparing
o
that party’s claim or defense or will result in an injustice.” o
The Legislature has declared that it is state policy to “[pjreserve the
rights of attorneys to prepare cases for trial with that degree of privacy
necessary to encourage them to prepare their cases thoroughly and to Q)
investigate not only the favorable but the unfavorable aspects of those
cases.” (§ 2018.020, subd. (a).) In addition, the Legislature declared its
intent to “[p]revent attorneys from taking undue advantage of their
adversary’s industry and efforts.” (Code Civ. Proc., § 2018.020, subd. (b).) O
Thus, the codified work product doctrine absolutely protects from
discovery writings that contain an “attorney’s impressions, conclusions, o
opinions, or legal research or theories.” (§2018.030, subd. (a); see Wellpoint
Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 120, □
68 Cal.Rptr.2d 844.) The protection extends to an attorney’s written notes
about a witness’s statements. (See Rodriguez v. McDonnell Douglas Corp.
o
(1978) 87 CaLApp.3d 626, 649, 151 Cal.Rptr. 399 (Rodriguez); see also
Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 135, 86 Cal.Rptr.2d
o
180.) “(A]ny such notes or recorded statements taken by defendants'
counsel would be protected by the absolute work product privilege because
o
they would reveal counsel’s ‘impressions, conclusions, opinions, or legal o
research or theories’ within the meaning of [the work product doctrine].”
(Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th o
214, 217, 54 Cal.Rptr.2d 575.) When a witness’s statement and the
o
o
o
c Ch. l Introduction to Legal Ethics 23
c attorney’s impressions are inextricably intertwined, the work product
c doctrine provides that absolute protection is afforded to all of the attorney’s
notes. (Rodriguez, supra, 87 Cal.App.3d at p. 648, 151 Cal.Rptr. 399.)
c Plaintiffs urge that the document is not work product because it
Q reflects the statements of declared experts. They are incorrect. The
document is not a transcript of the August 28, 2002 strategy session, nor is
Q it a verbatim record of the experts’ own statements. It contains Rowley’s
summaries of points from the strategy session, made at Yukevich’s
C direction. Yukevich also edited the document in order to add his own
thoughts and comments, further inextricably intertwining his personal
C impressions with the summary. (See Rodriguez, supra, 87 Cal.App.3d at
pp. 647-648, 151 Cal.Rptr. 399.) In this regard, the trial court found: “As
C; to the content of the document, although it doesn’t contain overt statements
setting forth the lawyer’s conclusions, its very existence is owed to the
lawyer’s thought process. The document reflects not only the strategy, but
also the attorney’s opinion as to the important issues in the case. Directions
c were provided by Mr. Yukevich as to the key pieces of information to be
recorded, and Mr. Yukevich also added his own input as to the important
details, by inserting other words in the notes. The attorney’s impressions
of the case were the filter through which all the discussions at the
Cj conference were passed through on the way to the page.” The court
concluded, “[T]his court determines that the attorney’s directions to record
Q only portions of the conference specific to the attorney’s concerns in the
litigation are sufficient to support the finding that the notes are covered by
a the absolute work product [doctrine], as the choices in statements to record
□ show the thought process and are too intertwined with the document.”
Although the notes were written in dialogue format and contain
c information attributed to Mitsubishi’s experts, the document does not
qualify as an expert's report, writing, declaration, or testimony. The notes
reflect the paralegal’s summary along with counsel’s thoughts and
impressions about the case. The document was absolutely protected work
o product because it contained the ideas of Yukevich and his legal team about
the case. (§ 2018.030, subd. (a).)
u Ethical Duty Owned Upon Receipt of Attorney Work Product
Q Because the document is work product we consider what ethical duty
q Johnson owed once he received it. Plaintiffs rely on Aerojet-General Corp,
v. Transport Indemnity Insurance (1993) 18 Cal.App.4th 996, 22
c Cal.Rptr.2d 862 (Aerojet), to argue that because the document was
inadvertently received, Johnson was duty bound to use the nonprivileged
c portions of it to his clients’ advantage. This argument fails. Aerojet is
distinguishable because there are no “unprivileged portions” of the
c document.

Q
c
c
 24 Introduction to Legal Ethics Ch. l
A review of Aerojet, supra, 18 CaI.App.4th 996, 22 Cal.Rptr.2d 862,
o
demonstrates that it does not assist plaintiffs. Aerojet’s insurance brokers
had sent a package of materials to Aerojet’s risk manager. The risk
o
manager sent them on to Aerojet’s attorney, DeVries. Among these
documents was a memo from an attorney at an opposing law firm. It was
o
never ascertained how opposing counsel’s memo found its way into the
package of documents. The memo revealed the existence of a witness whom
o
DeVries ultimately deposed. When opposing counsel learned that DeVries a
had received the memo and thus discovered the witness, counsel sought
sanctions. The trial court imposed monetary sanctions under section 128.5, o
subdivision (a). (Aerojet, at pp. 1001—1002, 22 Cal.Rptr.2d 862.) The Court
of Appeal reversed the sanctions order. o
The Aerojet court first noted that DeVries was free of any wrongdoing
in his initial receipt of the document. The court also observed that the
o
existence and identification of the witness was not privileged. “Nor can ‘the
identity and location of persons having knowledge of relevant facts’ be
o
concealed under the attorney work product rule. ... [Citations.]” (Aerojet,
supra, 18 Cal.App.4th at p. 1004, 22 Cal.Rptr.2d 862.) Defendants claimed
0
no prejudice to their case as a result of the witness’s disclosure. Indeed, O
they prevailed at trial. (Ibid.) Because counsel was blameless in his
acquisition of the document and because the information complained of was 0
not privileged, DeVries was free to use it. (Id. at p. 1005, 22 Cal.Rptr.2d
862.) Plaintiffs’ reliance on Aerojet founders on the facts that distinguish O
it. Here, Yukevich’s notes were absolutely protected by the work product
rule. Thus, Johnson’s reliance on Aerojet is unavailing, particularly in light D
of the clear standard set out in State Fund, supra, 70 Cal.App.4th 644, 82
Cal.Rptr.2d 799. □
In State Fund, supra, 70 Cal.App.4th 644, 82 Cal.Rptr.2d 799, the O
plaintiff sent defendant’s attorney (Telanoff) three boxes of documents that
were identical to the documents provided during discovery. Inadvertently, O
plaintiff also sent 273 pages of forms entitled, “Civil Litigation Claims
Summary,” marked as “ATTORNEY-CLIENT COMMUNICATION/ o
ATTORNEY WORK PRODUCT,” and with the warning, “DO NOT
CIRCULATE OR DUPLICATE.” (Id. at p. 648, 82 Cal.Rptr.2d 799.) In □
addition, “[t]he word ‘CONFIDENTIAL’ [was] repeatedly printed around
the perimeter of the first page of the form.” (Ibid.) When counsel discovered o
the mistake and demanded return of the documents, Telanoff refused. The Q
trial court, relying on American Bar Association (ABA) Formal Ethics
Opinion No. 92-368 (Nov. 10, 1992), imposed monetary sanctions. o
The Court of Appeal framed the issue as follows: “[W]hat is a lawyer
to do when he or she receives, through the inadvertence of opposing □
counsel, documents plainly subject to the attorney-client privilege?” (State
Fund, supra, 70 Cal.App.4th at p. 651, 82 Cal.Rptr.2d 799.) After o
determining that the documents were privileged and that inadvertent
o
Ch. l Introduction to Legal Ethics 25
disclosure did not waive the privilege, the court discussed an attorney’s
obligation. The Court of Appeal disagreed that the ABA opinion should
regulate Telanoffs conduct. The court noted that the ABA Model Rules on
which the opinion was based “do not establish ethical standards in
California, as they have not been adopted in California and have no legal
force of their own. [Citations.]” (Id. at pp. 655-656, 82 Cal.Rptr.2d 799.)
Likewise, the court held that an “ABA formal opinion does not establish an
obligatory standard of conduct imposed on California lawyers.” (Id. at p.
656, 82 Cal.Rptr.2d 799.) Thus, under the circumstances, “Telanoff should
not have been sanctioned for engaging in conduct which has been
condemned by an ABA formal opinion, but which has not been condemned
by any decision, statute or Rule of Professional Conduct applicable in this
state.” (Ibid.)
The State Fund court went on to articulate the standard to be applied
prospectively: “When a lawyer who receives materials that obviously
appear to be subject to an attorney-client privilege or otherwise clearly
appear to be confidential and privileged and where it is reasonably
apparent that the materials were provided or made available through
inadvertence, the lawyer receiving such materials should refrain from
examining the materials any more than is essential to ascertain if the
materials are privileged, and shall immediately notify the sender that he
or she possesses material that appears to be privileged. The parties may
then proceed to resolve the situation by agreement or may resort to the
court for guidance with the benefit of protective orders and other judicial
intervention as may be justified.” (State Fund, supra, 70 Cal.App.4th at pp.
656-657, 82 Cal.Rptr.2d 799.) To ensure that its decision was clear in
setting forth the applicable standard in these cases, the court explicitly
stated that it “declared the standard governing the conduct of California
lawyers” in such instances. (Id. at p. 657, 82 Cal.Rptr.2d 799.)
The existing State Fund rule is a fair and reasonable approach. The
rule supports the work product doctrine (§ 2018.030), and is consistent
with the state’s policy to “[p] reserve the rights of attorneys to prepare cases
for trial with that degree of privacy necessary to encourage them to prepare
their cases thoroughly and to investigate not only the favorable but the
unfavorable aspects of those cases” and to “[p]revent attorneys from taking
undue advantage of their adversary’s industry and efforts.” (§ 2018.020,
subds. (a), (b).)
The State Fund rule also addresses the practical problem of
inadvertent disclosure in the context of today’s reality that document
production may involve massive numbers of documents. A contrary holding
could severely disrupt the discovery process. As amicus curiae The Product
Liability Advisory Council, Inc. argues, “Even apart from the inadvertent
disclosure problem, the party responding to a request for mass production
must engage in a laborious, time consuming process. If the document
 26 Introduction to Legal Ethics Ch. l
producer is confronted with the additional prospect that any privileged
documents inadvertently produced will become fair game for the
opposition, the minute screening and re-screening that inevitably would
follow not only would add enormously to that burden but would slow the
pace of discovery to a degree sharply at odds with the general goal of
expediting litigation.”
Finally, we note that “[a]n attorney has an obligation not only to
protect his client’s interests but also to respect the legitimate interests of
fellow members of the bar, the judiciary, and the administration of justice.”
(Kirsch v. Duryea (1978) 21 Cal.3d 303, 309, 146 Cal.Rptr. 218, 578 P.2d
935.) The State Fund rule holds attorneys to a reasonable standard of
professional conduct when confidential or privileged materials are
inadvertently disclosed.
Here, it is true that Yukevich’s notes were not so clearly flagged as
confidential as were the forms in State Fund, supra, 70 Cal.App.4th 644,
82 Cal.Rptr.2d 799. But, as the Court of Appeal observed, “[T]he absence
of prominent notations of confidentiality does not make them any less
privileged.” The State Fund rule is an objective standard. In applying the
rule, courts must consider whether reasonably competent counsel, knowing
the circumstances of the litigation, would have concluded the materials
were privileged, how much review was reasonably necessary to draw that
conclusion, and when counsel’s examination should have ended. (Id. at pp.
656-657, 82 Cal.Rptr.2d 799.)
The standard was properly and easily applied here. Johnson admitted
that after a minute or two of review he realized the notes related to the
case and that Yukevich did not intend to reveal them. Johnson’s own
admissions and subsequent conduct clearly demonstrate that he violated
the State Fund rule. We note, however, that such admissions are not
required for the application of the objective standard in evaluating an
attorney’s conduct.
Disqualification of Counsel and Experts
The court properly applied the State Fund rule and determined that
Johnson violated it. The next question is whether disqualification was the
proper remedy. We review the court’s disqualification order for abuse of
discretion. (People ex rel. Dept, of Corporations v. Spee-Dee Oil Change
Systems, Inc. (1999) 20 Cal.4th 1135, 1143, 86 Cal.Rptr.2d 816, 980 P.2d
371.)
The State Fund court held that “[mjere exposure” to an adversary’s
confidences is insufficient, standing alone, to warrant an attorney’s
disqualification. (State Fund, supra, 70 Cal.App.4th at p. 657, 82
Cal.Rptr.2d 799.) The court counseled against a draconian rule that
“[could] nullify a party’s right to representation by chosen counsel any time
inadvertence or devious design put an adversary’s confidences in an
c Ch. l____________ Introduction to Legal Ethics_______________ 27
c attorney’s mailbox.” (Tfeid.) However, the court did not “rule out the
c possibility that in an appropriate case, disqualification might be justified
if an attorney inadvertently receives confidential materials and fails to
Q conduct himself or herself in the manner specified above, assuming other
factors compel disqualification.” (Tbid.)
Q After reviewing the document, Johnson made copies and disseminated
them to plaintiffs’ experts and other attorneys. In affirming the
Q disqualification order, the Court of Appeal stated, “The trial court settled
on disqualification as the proper remedy because of the unmitigable
O
damage caused by Johnson’s dissemination and use of the document.”
Q Thus, “the record shows that Johnson not only failed to conduct himself as
required under State Fund, [supra, 70 Cal.App.4th 644, 82 Cal.Rptr.2d
c 799,] but also acted unethically in making full use of the confidential
document.” The Court of Appeal properly concluded that such use of the
c document undermined the defense experts’ opinions and placed defendants
at a great disadvantage. Without disqualification of plaintiffs’ counsel and
Q their experts, the damage caused by Johnson’s use and dissemination of
the notes was irreversible. Under the circumstances presented in this case,
c the trial court did not abuse its discretion by ordering disqualification for
violation of the State Fund rule.
c Plaintiffs attempt to justify Johnson’s use of the document by accusing
r>. the defense experts of giving false testimony during their depositions.
Plaintiffs allege that the statements attributed to the experts in the
Q document contradicted their deposition statements and that the experts
lied about the technical evidence involved in the case. As an initial matter,
O we are not persuaded that any of the defense experts ever actually adopted
as their own the statements attributed to them. The document is not a
C verbatim transcript of the strategy session, but Rowley’s summary of
points that Yukevich directed him to note. Yukevich then edited the
Q document, adding his own thoughts and comments. As the trial court
observed, the document was an interpretation and summary of what others
C thought the experts were saying.
V-v
Moreover, we agree with the Court of Appeal that, “when a writing is
protected under the absolute attorney work product privilege, courts do not
CD invade upon the attorney’s thought processes by evaluating the content of
the writing. Once [it is apparent] that the writing contains an attorney’s
C impressions, conclusions, opinions, legal research or theories, the reading
stops and the contents of the document for all practical purposes are off
C limits. In the same way, once the court determines that the writing is
absolutely privileged, the inquiry ends. Courts do not make exceptions
a based on the content of the writing.” Thus, “regardless of its potential
impeachment value, Yukevich’s personal notes should never have been
c subject to opposing counsel’s scrutiny and use.”
c
28 Introduction to Legal Ethics Ch. I
We also reject plaintiffs’ argument that the crime or fraud exception
o
should apply to privileged work product in this civil proceeding. Under the
work product doctrine “[a] writing that reflects an attorney’s impressions,
o
conclusions, opinions, or legal research or theories is not discoverable under
any circumstances." (§ 2018.030, subd. (a), italics added.) With respect to
a
such a writing, the Legislature intended that the crime or fraud exception o
only apply “in any official investigation by a law enforcement agency or
proceeding or action brought by a public prosecutor ... if the services of the a
lawyer were sought or obtained to enable or aid anyone to commit ... a
crime or fraud.” (§ 2018.050) By its own terms, the crime or fraud exception o
does not apply here.
Disposition
o
We affirm the Court of Appeal’s judgment. o
 Chapter Two

Sources and Application of

Legal Ethics Rules
■■■

What This Chapter Covers

I. The Organization of the Bar
A. Admission to Practice in the Courts of a State
1. Residency Requirements
2. Character Requirements
B. Admission to Practice in Other States and the Federal Courts
C. Membership in Bar Associations
1. State Bar Associations
2. American Bar Association
3. City, County, and Special Interest Bar Associations
II. Sources of Legal Ethics Rules
A. State Codes of Conduct, Statutes, and Court Rules
B. American Bar Association Model Code of Professional
Responsibility
C. American Bar Association Model Rules of Professional Conduct
D. American Bar Association Code of Judicial Conduct
E. Ethics Opinions and Ethics Hot Lines
III. Lawyer Disciplinary Proceedings
A. Conduct Subject to Discipline
B. How Discipline Is Imposed
C. Types of Discipline

Reading Assignment
Schwartz, Wydick, Perschbacher, & Bassett, Chapter 2.

29
 o
30
Sources and Application of
Legal Ethics Rules Ch. 2 o
ABA Model Rules:
o
Preamble, Scope and Terminology; o
Rules 5.5 and 8.1 through 8.5. o
Supplemental Reading o
Hazard & Hodes:
Discussion of ABA Model Rules 5.5 and 8.1 through 8.5.
n
Restatement (Third) of the Law Governing Lawyers §§ 1,5 (2000).
o
o
Discussion Problems o
1. Under the laws of the state in which you plan to practice law, what
requirements will you have to meet to be admitted to practice?
o
2. In the DeBartolo case, infra: O
a. Trace the character investigation procedure that was
followed. How were the facts determined? Who should bear the
o
burden to show an applicant’s good (or lack of good) character? o
b. Do you think that the decision in DeBartolo’s case was
correct given the circumstances? 0
c. Should some conduct forever bar an applicant from
becoming a lawyer? What about murder? child molestation? major
o
securities or bank fraud? tax evasion? dozens of arrests at pro-or
anti-abortion demonstrations? drunken driving convictions?
o
d. If an applicant should be allowed to show rehabilitation,
how long should the rehabilitation period be and who should
decide? Can numerical standards be set?
3. The bar admission application for State X requires applicants to o
disclose, among other things, whether they have been convicted of a crime.
Candidate F embezzled funds from a client while working as an accountant D
in State Z. Pursuant to a plea bargain, Candidate F did not serve time, but
was placed on probation for five years and ordered to pay $45,000 in O
restitution. Candidate F did not mention this conviction on her moral
character application; the State X Bar learned of the embezzlement o
through a letter from Candidate F”s former client. Candidate F defends her
failure to make this disclosure for the following reasons: (1) The conviction □
occurred six years ago. (2) She has repaid the restitution in full. (3) She
asked a practicing attorney whether she should disclose this and he
o
advised against it. (4) She believed the State X Bar would reject her
application if she disclosed this.
o
0
o
o
 Sources and Application of
Ch. 2_________________ Legal Ethics Rules____________________ 31
a. Do any of Candidate F’s reasons constitute a legitimate
justification for failing to disclose the embezzlement?
b. Suppose that the State X Bar does not learn of Candidate
F’s embezzlement during its review process, and Candidate F is
admitted to practice law in State X. Is Candidate F now “home
free”—or does the State X Bar have any recourse if it later
discovers Candidate F’s embezzlement?
4. In the state in which you plan to practice law, will you have to
become a member of:
a. The state bar association? (If you must, what advantages
and disadvantages do you see in compulsory bar membership?)
b. The city or county bar association in the area where you
open your office?
c. The American Bar Association?
5. Suppose that you have recently been admitted to practice before
the highest court of State A.
a. Client Arnold asks you to represent him in a lawsuit
pending in the United States District Court for the Northern
District of State A. Under what circumstances may you represent
him?
b. Client Beth asks you to represent her in an appeal
pending in the United States Court of Appeals for the circuit that
covers State A. Under what circumstances may you represent her?
c. Client Carlos asks you to represent him in an appeal that
is pending in the United States Supreme Court. Under what
circumstances may you represent him?
d. Client Deborah, an economics professor who lives and
teaches at a university in State A, asks you to represent her in a
dispute over consulting fees for work she did for a business in
nearby State M. You regularly represent and advise Deborah
regarding her consulting work in State A. The dispute in State M
appears headed for arbitration or other alternative dispute
resolution proceedings in State M. Under what circumstances
may you represent her? [See ABA Model Rule 5.5(c).]
e. Client Edgar asks you to defend him in an automobile
negligence case pending in State B, right across the river from
your office in State A. Under what circumstances may you
represent him?
f. Your law partner, attorney Thomas, suggests opening a
branch office of the firm in State B. Thomas is admitted to practice
 Sources and Application of
32 Legal Ethics Rules Ch. 2
in both States A and B, but you and the other lawyers in the firm
are admitted only in State A. Under what circumstances may the
firm open the branch office? [See ABA Model Rule 7.5(b).]
6. Lawyer Lawrence has come to you for legal advice. He has told
you in confidence that he and a group of his friends formed a real estate
investment venture. They entrusted him with a large sum of money to
invest for them, but he diverted part of it for his own use. They have not
yet discovered what he did, and he has asked you for legal guidance.
a. If Lawrence was acting in the real estate transaction in
his personal capacity, not as a lawyer, is he subject to discipline
by the state bar for what he did?
b. Do you have an ethical obligation to report him to the
state bar?
7. In the Mountain case and the Holmay case, infra'.
a. How do you suppose the state bar first became aware of
the misconduct?
b. Trace the procedure followed in each case. How were the
facts determined? Who decided what discipline to impose?
c. Do you think the discipline imposed on lawyer Mountain
was appropriate in the circumstances?
d. Do you think the discipline imposed on lawyer Holmay
was appropriate in the circumstances?
8. The reading, infra, mentions the existence of ethics hot lines.
What are the benefits of such a service? What are the limitations of such a
service? How much information can a lawyer reveal in using such a service?

I. THE ORGANIZATION OF THE BAR

In the United States, admission to the bar and lawyer discipline have
traditionally been matters of state concern. Lawyers are not admitted to
practice in the United States, they are admitted to practice in a particular
state or states. Separate rules govern admission to the various federal
courts. Only recently has the states’ near absolute control over their bars
been challenged. However, the increased nationalization of commerce has
broken down the model of local lawyer serving local client. Today, there are
major law firms with offices in many cities and states throughout the
United States and the world. This increased practice across state lines and
the increasing mobility of our population, including lawyers, has generated
challenges to the states’ residency requirements for membership in the bar.
The consumer movement has also led to constitutional and antitrust
o Sources and Application of
Ch. 2_________________ Legal Ethics Rules____________________ 33
o challenges to the state bars’ restrictions on lawyer advertising and fee
C} regulation. These developments are discussed in this chapter and Chapter
Four. Responding in part to these changes, the American Bar Association
o amended its principal rule dealing with unauthorized
multijurisdictional practice of law, ABA Model Rule 5.5. Although this
and

o chapter focuses on admission to the bar, sources of ethics rules and lawyer
discipline in general, in practice a lawyer will inquire into the admission,
□ ethics, and discipline rules of the particular state(s) involved.

o A. ADMISSION TO PRACTICE IN
THE COURTS OF A STATE
c In most states, admission to practice law is gained by graduating from
Q law school, passing the state’s bar examination, and demonstrating that
you possess good moral character. Immigration status will not necessarily
c bar an applicant’s admission. In In re Garcia, 58 Cal.4th 440, 315 P.3d 117
(2014), a unanimous California Supreme Court ruled that Sergio Garcia,
c an undocumented Mexican immigrant, could be licensed to practice law
after the California Legislature passed a bill authorizing the Court to allow
o qualified applicants into the State Bar regardless of immigration status.
O 1. Residency Requirements
o In the past, many states imposed residency requirements, but, since
1985, the Supreme Court has repeatedly struck down such requirements.
o In the first case, Supreme Court of New Hampshire v. Piper, 470 U.S. 274,
105 S.Ct. 1272, 84 L.Ed.2d 205 (1985), the Court held that the New
o Hampshire Supreme Court’s refusal to swear in a Vermont resident who
had passed the state’s bar examination violated the Constitution’s
c privileges and immunities clause. The Court established a narrow
exception if a state can demonstrate “substantial” reasons for
c discriminating against nonresidents and can show that the difference in
treatment bears a close relation to those reasons. Using similar reasoning,
Q in Frazier v. Heebe, 482 U.S. 641, 107 S.Ct. 2607, 96 L.Ed.2d 557 (1987),
the Court invoked its supervisory power to invalidate a residency
c requirement imposed by the United States District Court for the Eastern
District of Louisiana.
Q Later, in Supreme Court of Virginia v. Friedman, 487 U.S. 59, 108
O S.Ct. 2260, 101 L.Ed.2d 56 (1988), the Court struck down a Virginia rule
that let permanent Virginia residents licensed out-of-state waive into the
C Virginia bar, but required non-Virginia residents to take the state bar
examination. According to the Court, Virginia’s rule violated the privileges
Q and immunities clause because it burdened the right to practice law by
discriminating among otherwise equally qualified applicants.
O

c
□
 Sources and Application of
34____________________ Legal Ethics Rules________________ Ch. 2
Finally, in Barnard v. Thorstenn, 489 U.S. 546, 109 S.Ct. 1294, 103
L.Ed.2d 559 (1989), the Court confronted perhaps its best chance to find
“substantial” reasons to discriminate against nonresidents in bar
admissions when it took up two New York and New Jersey lawyers’
challenges to the Virgin Islands bar’s one-year residency requirement. The
Virgin Islands bar offered five justifications for its residency requirement:
(1) the Virgin Islands’ geographic isolation and communications difficulties
would make it difficult for nonresidents to attend court proceedings on
short notice; (2) delays in accommodating nonresident lawyers’ schedules
would increase the courts’ caseloads; (3) delays in publication and lack of
access to local statutory and case law would adversely affect nonresident
lawyers’ competence; (4) the bar does not have adequate resources to
supervise a nationwide bar membership; and (5) nonresident bar members
would be unable to take on a fail- share of indigent criminal defense work.
The Supreme Court, in an opinion by Justice Kennedy, found none of
the reasons substantial enough to justify excluding nonresidents from the
Virgin Islands bar. Requiring nonresident lawyers to associate local
counsel would satisfy the Virgin Islands’ first two concerns, a solution the
Court had also suggested in Piper. The Court rejected congested dockets
and the difficulty in maintaining knowledge of local law as any justification
for the exclusion of nonresidents from the bar. Dues paid by the
nonresidents should supply the resources needed to meet the additional
administrative burdens of supervising them. Only the fifth justification
raised any serious concern. In Piper, the Court had recognized that
nonresident lawyers could be required to share the burden of representing
indigent criminal defendants as a condition of bar membership. In
Barnard, the Court decided that requiring nonresident lawyers to meet
this burden personally “is too heavy a burden on the privileges of
nonresidents and bears no substantial relation to the [Virgin Islands’]
objective.” Justices Rehnquist, White and O’Connor dissented. They
believed that “the unique circumstances of legal practice in the Virgin
Islands * * * could justify upholding this simple residency requirement”
undei- Piper.
The eventual impact of the residency-restriction cases may be ironic.
In the past, some states allowed resident lawyers admitted in another state
to “waive” into the bar without taking their own bar examination. Although
this was often based on reciprocity (see below), it gave an advantage to
lawyers who already resided in the state when they sought admission.
Because the Supreme Court’s decisions now require equality in treatment
between in-state and out-of-state applicants to the bar, residence-based
waivers are no longer allowed. These states must either allow any
nonresident admission upon waiver on the same basis as residents, or
abolish the waiver privilege. Illinois, for example, abolished the privilege
rather than allowing waivers to non-residents (although the reciprocity
o Sources and Application of
Ch. 2_________________ Legal Ethics Rules____________________ 35
c privilege was later restored). The bottom line may be increased barriers to
Cj admission, rather than a relaxation of barriers for lawyers already in
practice who wish to change or expand their geographical practices.
o 2. Character Requirements
c All states require that an applicant for admission to the bar possess
“good moral character,” although enforcement of this requirement is
c uneven and sporadic. The elements of good moral character remain vague,
but there is general agreement that they include honesty, respect for the
c law and respect for the rights of others. Applicants are most likely to get
c into difficulty for dishonesty on the bar application, recent criminal
conduct, and fraud or other financial misdeeds. From time-to-time the bar
Q has also sought to bar applicants on ideological, political, and moral
grounds. In Konigsberg v. State Bar, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d
Q 810 (1957), the Supreme Court rejected mere membership in the
Communist Party as proof that an applicant lacked good moral character.
Q More difficult are cases involving past criminal conduct or other misdeeds
with an intervening passage of time or evidence of rehabilitation. Consider
n the following cases.

In re DeBartolo
c Supreme Court of Illinois, 1986.
Ill I11.2d 1, 94 Ill.Dec. 700, 488 N.E.2d 947.

c Miller, Justice:
Following an investigation and hearing, the Committee on Character
Q and Fitness for the First Judicial District refused to certify to the State
c Board of Law Examiners that the petitioner, Frederick Francis DeBartolo,
possessed the good moral character and general fitness necessary for the
o practice of law. He has filed in this court a petition for relief from the
committee’s refusal to certify his character and fitness, and we now deny
c the petition.

os--- ----1981,Theandpetitioner graduated from the John Marshall Law School in June
he passed the bar examination given in July of that year. More
than a year later, in August 1982, the committee informed the petitioner
q that it had decided to refuse to certify that he possessed the requisite
character and fitness for the practice of law. The petitioner requested a
c hearing on that decision, and he was supplied with a list of the specific
c matters that concerned the committee. After hearing testimony, the
committee voted to refuse to certify the petitioner’s character and fitness;
c a written report of the committee’s findings and conclusions was filed later.
This petition followed.
C2 As described in the committee’s report, the sworn “Questionnaire and
Statement of Applicant” submitted by the petitioner in applying for
c
Q
 Sources and Application of
36 Legal Ethics Rules Ch. 2
admission to the Illinois bar contained inaccurate information regarding
his high school education and omitted a number of his residences.
Moreover, the committee was disturbed that the petitioner had incurred
some 200 to 400 parking tickets, as he had indicated on his application.
Finally, the committee found that the petitioner twice had falsely
represented himself to others as a police officer. Concluding that those
matters raised questions regarding the petitioner’s stability, integrity, and
character, the committee refused to certify him for admission to the bar.
The committee based its determination on the petitioner’s responses
on his application and on the evidence that was introduced at the hearing.
The matters in question may be considered briefly. The petitioner indicated
on his application that he had incurred between 200 and 400 parking
tickets while in law school and that they either had been paid or contested
successfully in court. At the hearing the petitioner discounted their
significance: he believed that many of the tickets were unfairly given, as
when he put money in the meter but received a ticket anyway, and he
asserted too that the tickets provided an important source of revenue for
the city and that the meters were patrolled zealously in the area where he
normally parked.
On his application the petitioner gave inaccurate information
concerning his high school education. On the application he said that he
had attended St. Ignatius High School from 1970 to 1974; at the hearing
he acknowledged, however, that he actually had attended a different high
school, Proviso West, for a different period of time, 1971 to 1975. He offered
no explanation for those discrepancies and attributed them to his haste and
neglect in filling out the application.
The petitioner’s application was deficient in another respect. On it he
indicated that he had resided in Westchester, Illinois, at his parents’ home
for the preceding 10 years. He testified at the hearing, however, that he
had lived at five different addresses in Chicago during the several years
preceding his application, which apparently confirmed the committee’s
investigation of the matter. He occupied those places for only short periods,
ranging from one day to eight months, and generally was not required to
pay rent. The petitioner believed that the application called only for a list
of domiciles, which in his case remained his parents’ address at all times.
We would note, however, that the petitioner used several of the other
addresses in registering to vote and in applying for various official
documents such as a driver’s license, a firearm owner’s identification card,
a city of Chicago vehicle license, and a car registration. He also used an
address other than the one in Westchester in applying for a job with the
Chicago police department.
Finally, the committee found that the petitioner had on at least two
occasions misrepresented himself to others as a police officer. Chicago
 Sources and Application of
Ch. 2 Legal Ethics Rules 37
police officer Russell J. Luchtenburg, a college classmate of the petitioner,
testified that one day at school sometime in 1977 he refused petitioner’s
request to borrow his badge and gun. According to Luchtenburg, the
petitioner told him that he had left his own badge and gun at home and
wanted to borrow Luchtenburg’s so that he could arrest some persons
whom he had seen smoking marijuana. At the hearing the petitioner
denied the occurrence. Joseph Burke, who had investigated the petitioner’s
application for employment with the Chicago police department, testified
that the petitioner admitted to him that he had falsely represented himself
as a police officer once while in a tavern with friends. Although the
petitioner contests the point, this evidence supports the committee’s
determination that the petitioner had in fact made the misrepresentations.
A number of persons, including relatives, lawyers, and friends,
testified on the petitioner’s behalf at the hearing; they attested to his
integrity, stability, and overall fitness to practice law. The petitioner was
employed as a commodities trader, and a co-worker described their
responsibility in that capacity. At the time of the hearing the petitioner had
no record of moving traffic violations or criminal convictions, nor had he
been involved in any civil actions that would bring his general fitness into
question.
An applicant for admission to the bar must show that he possesses the
good moral character and general fitness necessary for the practice of law,
and the petitioner has failed to demonstrate that here. Remarkably, on his
application he provided incorrect information regarding his high school
attendance, and he failed to list his numerous residences. An applicant for
admission to the bar of this State must submit to the Committee on
Character and Fitness “an affidavit in such form as the Board of Law
Examiners shall prescribe concerning his history.” The decisions of this
court have emphasized the importance of candor and completeness in
filling out the application; the failure to respond fully and accurately to the
various questions betrays a lack of concern for the truth and, moreover,
frustrates the committee in its examination of the applicant. In other
respects, too, the petitioner’s conduct has been questionable. He has
misrepresented himself as a police officer and has shown disregard for the
law by amassing some 200 to 400 parking tickets over a short period of
time.
Based on the record before us, then, we agree with the committee that
the petitioner* did not at that time demonstrate the good moral character
and general fitness that are necessary to qualify him for admission to the
bar of this State. * * *
[The court did not bar petitioner for life, but allowed him to reapply for
admission. Upon reapplication, the committee may consider all matters
that are relevant to his moral character and general fitness to practice law,
 O
Sources and Application of
38 Legal Ethics Rules Ch. 2 D
including his conduct since the hearing held here and his candor in filling O
out his new application and in responding to whatever inquiry the
committee makes.] a
*** o
Petition denied.
o
In re Glass
Supreme Court of California. 2014.
Q
58 Cal.4th 500. 316 P.3d 1199, 167 Cal.Rptr.3d 87. D
The Court.
o
Stephen Randall Glass made himself infamous as a dishonest
journalist by fabricating material for more than 40 articles for The New o
Republic magazine and other publications. He also carefully fabricated
supporting materials to delude The New Republic’s fact checkers. The o
articles appeared between June 1996 and May 1998, and included
falsehoods that reflected negatively on individuals, political groups, and o
ethnic minorities. During the same period, starting in September 1997, he
was also an evening law student at Georgetown University’s law school. o
Glass made every effort to avoid detection once suspicions were aroused,
lobbied strenuously to keep his job at The New Republic, and, in the o
aftermath of his exposure, did not fully cooperate with the publications to
identify his fabrications.
o
Glass applied to become a member of the New York bar in 2002, but o
withdrew his application after he was informally notified in 2004 that his
moral character application would be rejected. In the New York bar o
application materials, he exaggerated his cooperation with the journals
that had published his work and failed to supply a complete list of the o
fabricated articles that had injured others.
Glass passed the California bar examination in 2006 and filed an
o
application for determination of moral character in 2007. It was not until o
the California State Bar moral character proceedings that Glass reviewed
all of his articles, as well as the editorials The New Republic and other o
journals published to identify his fabrications, and ultimately identified
fabrications that he previously had denied or failed to disclose. In the o
California proceedings, Glass was not forthright in acknowledging the
defects in his New York bar application. o
At the 2010 State Bar Court hearing resulting in the decision under Q
review, Glass presented many character witnesses and introduced
evidence regarding his lengthy course of psychotherapy, along with his own O
testimony and other evidence. Many of his efforts from the time of his
exposure in 1998 until the 2010 hearing, however, seem to have been I—'
directed primarily at advancing his own well-being rather than returning _
O

O
o
o
Sources and Application of
c Ch. 2_________________ legal Ethics Rules_____________________39
c something to the community. His evidence did not establish that he
engaged in truly exemplary conduct over an extended period. We conclude
c that on this record he has not sustained his heavy burden of demonstrating
o rehabilitation and fitness for the practice of law.
I. Facts
C A. Committee of Bar Examiners’ evidence
C ***
[I]n 1994 Glass was admitted to New York University Law School but
o deferred his intended legal training to accept a position in Washington,
D.C. with Policy Review magazine.
c
In September 1995 Glass accepted a position at The New Republic
c magazine. In early June 1996 he began fabricating material for
publication. The fabrications continued and became bolder and more
o comprehensive until he was exposed and fired in May 1998.
c Glass’s fabrications began when an article entitled The Hall Monitor
was published containing a fabricated quotation from an unnamed source
c disparaging United States Representative Pete Hoekstra for behaving in
Congress like an elementary school “super hall monitor”. He started by
o fabricating quotations or sources, and ended by publishing wholesale
fictions. He testified that “all but a handful” of the 42 articles he published
o in The New Republic contained fabrications oi' were entirely fabricated. He
also routinely prepared elaborate reporter’s notes and supporting
c materials to give the false impression to the magazine’s fact checkers that
he had done all the background work for each article and that his
c informants had spoken words he falsely attributed to them.
***
c
Glass also engaged in fabrications in free-lance articles published by
o other magazines. * * *
***
c
B. Applicant’s evidence
c According to Glass, during his childhood and young adulthood his
o parents exerted extremely intense and cruel pressure upon him to succeed
academically and socially. Glass felt that The New Republic offered an
o extremely competitive atmosphere and that his journalistic efforts there
failed to make a mark sufficient to ensure his retention after his year term
c had elapsed. It was after a visit to the family home, when his parents
berated him for his apparent failure even in what they considered the
Q worthless career of journalism, that he began fabricating material for
publication. He also fabricated reporters’ notes and supporting materials
c for his articles. His aim was to impress his parents and colleagues.
o
 Sources and Application of
40____________________ Legal Ethics Rules________________ Ch. 2
***
Glass did well in law school. Within a few days of his firing, he
rescheduled an exam and within a week, managed to earn a B-plus grade
on an exam. He explained, however, that this was a poor grade for him.
Members of Georgetown University’s law school faculty testified on his
behalf at the hearing. * * *
***
Also offered in support of Glass’s application were affidavits that had
been submitted in support of his New York bar application from the judges
for whom Glass had worked during and immediately after completing law
school. Both found him highly competent and honest at that time.
Additional declarations from attorneys and friends that had been
submitted with the New York bar application were offered in support.
Dr. Richard Friedman, a psychiatrist, testified that he had treated
Glass since 2005, and believed he had developed good judgment,
scrupulous honesty, and the ability to handle difficult situations well. Dr.
Friedman reported that he would be astonished if Glass committed
misconduct as he had in the past, both because of the growth of character
and moral sense the doctor had observed, but also because of a strong
instinct to protect himself from the traumatic results of his prior
misconduct. He reported that Glass had no sociopathic personality traits.
Dr. Richard Rosenthal, [another] psychiatrist and psychoanalyst who
is known for treating gamblers and those with impulse control disorders,
* * * had an evaluative as well as therapeutic relationship with Glass that
began in 2005 and continued with meetings once or twice a month until the
time of the hearing.
Dr. Rosenthal identified Glass’s underlying psychological issues as a
need for approval, a need to impress others, and a need for attention, and
pointed also to Glass’s fear of inadequacy, rejection, and abandonment.
Rosenthal testified that when they met in 2005, Glass needed to overcome
enormous shame and learn to forgive himself. Through therapy, Glass
learned to be realistic about family issues and to set boundaries. Rosenthal
believed that Glass had grown up in a family that exerted tremendous
pressure on him to succeed yet always made him feel like a failure. In
Rosenthal’s opinion, Glass was rehabilitated, meaning that he was
extremely conscientious and honest, avoided the appearance of
impropriety, had reasonable goals and expectations, had gained empathy
and tolerance, and would not allow himself to be overwhelmed by stress.
The doctor saw no evidence that Glass was a sociopath.
Glass himself described his therapy, which had commenced very
shortly after his exposure and continued to the time of the 2010 hearing,
that is, for 12 years. Through therapy he learned to separate his feelings
c Sources and Application of
Ch. 2_________________ Legal Ethics Rules____________________ 41
o about his family from the work environment and to “set boundaries within
o my family.” He testified he believed the most important thing he could do
to make amends was to change himself.
o Martin Peretz, who owned and managed The New Republic at the time
of the fabrications, testified on Glass’s behalf and had developed a
Cj charitable view of his misconduct by the time of the California State Bar
hearing. He blamed himself and, even more, the magazine’s editors for
c encouraging Glass to write zany, shocking articles and for failing to
o recognize the improbability of some of Glass’s stories. He found the harm
of the scandal to the magazine to be minimal. * * *
Q C. California State Bar proceedings
qGlass took and passed the California Bar Examination in 2006 and in
July 2007 filed an application for determination of moral character as part
of his bar- application. The Committee of Bar Examiners denied the
application, but on Glass’s request a moral character hearing was
Q2 conducted in the State Bar Court in April and May of 2010.
The State Bar Court’s hearing judge found that Glass had established
c good moral character. The Committee sought review. The State Bar Court
Review Department independently reviewed the record (Cal. Rules of
o Court, rule 9.12), and a majority of the three-judge panel agreed with the
hearing judge that Glass had established good moral character.
c
The Review Department majority acknowledged that Glass’s
c misconduct had been “appalling” and “egregious”, but believed that Glass
had satisfied his heavy burden of proof and established his rehabilitation.
c ***

o The majority placed great emphasis on Glass’s character witnesses,

saying: “We afford great weight to Glass’s character witnesses, who were
c community leaders, employers, judges, and attorneys, and all of whom
spoke with the utmost confidence in Glass’s good moral character and
c rehabilitation.”
***
c II. Discussion
c A. Applicable Law
' To be qualified to practice law in this state, a person must be of good
moral character. (Bus. & Prof. Code, §§ 6060, subd. (b), 6062, subd. (a)(2).)
C Good moral character includes “qualities of honesty, fairness, candor,
trustworthiness, observance of fiduciary responsibility, respect for and
C? obedience to the law, and respect for the rights of others and the judicial
process.” (Rules of State Bar, tit. 4, Admissions and Educational Stds., rule
V. J 4.40(B); see also Bus. & Prof. Code, § 6068.) “Persons of good character * * *
do not commit acts or crimes involving moral turpitude—a concept that

c
 Sources and Application of
42 Legal Ethics Rules Ch. 2
embraces a wide range of deceitful and depraved behavior.” (In re Gossage
(2000) 23 Cal.4th 1080, 1095, 99 Cal.Rptr.2d 130, 5 P.3d 186.) A lawyer’s
good moral character is essential for the protection of clients and for the
proper functioning of the judicial system itself. * * *
When the applicant has presented evidence that is sufficient to
establish a prima facie case of his or her good moral character, the burden
shifts to the State Bar to rebut that case with evidence of poor moral
character. Once the State Bar has presented evidence of moral turpitude,
the burden “falls squarely upon the applicant to demonstrate his [or her]
rehabilitation.” (Gossage, supra, 23 Cal.4th atp. 1096, 99 Cal.Rptr.2d 130,
5 P.3d 186.)
Of particular significance for the present case is the principle that “the
more serious the misconduct and the bad character evidence, the stronger
the applicant’s showing of rehabilitation must be.” (Gossage, supra, 23
Cal.4th at p. 1096, 99 Cal.Rptr.2d 130, 5 P.3d 186.) “Cases authorizing
admission on the basis of rehabilitation commonly involve a substantial
period of exemplary conduct following the applicant’s misdeeds.” (Ibid.,
italics added.) Moreover, “truly exemplary” conduct ordinarily includes
service to the community. (In re Menna (1995) 11 Cal.4th 975, 990, 47
Cal.Rptr.2d 2, 905 P.2d 944.)
We independently weigh the evidence that was before the State Bar
Court (Gossage, supra, 23 Cal.4th at p. 1096, 99 Cal.Rptr.2d 130, 5 P.3d
186), recognizing that the applicant bears the burden of establishing good
moral character. (Menna, supra, 11 Cal.4th at p. 983, 47 Cal.Rptr.2d 2, 905
P.2d 944.) We ask whether the applicant is fit to practice law, paying
particular attention to acts of moral turpitude (Kwasnik v. State Bar (1990)
50 Cal.3d 1061, 1068, 269 Cal.Rptr. 749, 791 P.2d 319) and prior
misconduct that bears particularly upon fitness to practice law. (Hallinan
v. Committee of Bar Examiners (1966) 65 Cal.2d 447,452, 55 Cal.Rptr. 228,
421 P.2d 76.)
***
Although “the moral character determinations of the Committee and
the State Bar Court play an integral role in the admissions decision, and
both bear substantial weight within their respective spheres,” we are not
bound by the determinations of the Committee or the State Bar Court.
Rather, we independently examine and weigh the evidence to decide
whether the applicant is qualified for admission. * * *
At both admission and disciplinary proceedings, “(t]he common issue
is whether the applicant for admission or the attorney sought to be
disciplined “is a fit and proper person to be permitted to practice law, and
that usually turns upon whether he has committed or is likely to continue
to commit acts of moral turpitude” (Kwasnik, supra, 50 Cal.3d at p. 1068,
269 Cal.Rptr.749, 791 P.2d 319), particularly misconduct that bears upon
 Sources and Application of
Ch. 2 Legal Ethics Rules 43
the applicant’s fitness to practice law. (Hallinan, supra, at p. 471, 55
Cal.Rptr. 228, 421 P.2d 76.)
“However, unlike in disciplinary proceedings, where the State Bar
must show that an already admitted attorney is unfit to practice law and
deserves professional sanction, the burden rests upon the candidate for
admission to prove his own moral fitness.” (Gossage, supra, 23 Cal.4th at
p. 1095, 99 Cal.Rptr.2d 130, 5 P.3d 186.)
B. Analysis
***
Although an applicant ordinarily receives the benefit of the doubt as
to “conflicting equally reasonable inferences” concerning moral fitness
(Gossage, supra, 23 Cal.4th at p. 1098, 99 Cal.Rptr.2d 130, 5 P.3d 186), the
State Bar Court majority failed to recognize that this rule does not
materially assist applicants who have engaged in serious misconduct. This
is because “[wjhere serious or criminal misconduct is involved, positive
inferences about the applicant’s moral character are more difficult to draw,
and negative character inferences are stronger and more reasonable.” (Id.
at p. 1098, 99 Cal.Rptr.2d 130, 5 P.3d 186, italics added.) When there have
been very serious acts of moral turpitude, we must be convinced that the
applicant “is no longer the same person who behaved so poorly in the past,”
and will find moral fitness “only if he [or she] has since behaved in
exemplary fashion over a meaningful period of time.” (Ibid.)
***
Glass’s conduct as a journalist exhibited moral turpitude sustained
over an extended period. As the Review Department dissent emphasized,
he engaged in “fraud of staggering proportions” and he “use[d] * * * his
exceptional writing skills to publicly and falsely malign people and
organizations for actions they did not do and faults they did not have.” As
the dissent further commented, for two years he “engaged in a multi­
layered, complex, and harmful course of public dishonesty.” Glass’s
journalistic dishonesty was not a single lapse of judgment, which we have
sometimes excused, but involved significant deceit sustained unremittingly
for a period of years. * * * Glass’s deceit also was motivated by professional
ambition, betrayed a vicious, mean spirit and a complete lack of
compassion for others, along with arrogance and prejudice against various
ethnic groups. In all these respects, his misconduct bore directly on his
character in matters that are critical to the practice of law.
Glass not only spent two years producing damaging articles containing
or entirely made up of fabrications, thereby deluding the public, maligning
individuals, and disparaging ethnic minorities, he also routinely expended
considerable efforts to fabricate background materials to dupe the fact
 Sources and Application of
44 Legal Ethics rules Ch. 2
checkers assigned to vet his work. When exposure threatened, he redoubled
his efforts to hide his misconduct * * *
Glass’s misconduct was also reprehensible because it took place while
he was pursuing a law degree and license to practice law, when the
importance of honesty should have gained new meaning and significance
for him.
★★★
The record also discloses instances of dishonesty and
disingenuousness occurring after Glass’s exposure, up to and including the
State Bar evidentiary hearing in 2010. In the New York bar proceedings
that ended in 2004, as even the State Bar Court majority acknowledged,
he made misrepresentations concerning his cooperation with The New
Republic and other publications and efforts to aid them identify all of his
fabrications. He also submitted an incomplete list of articles that injured
others. We have previously said about omissions on bar applications:
“Whether it is caused by intentional concealment, reckless disregard for
the truth, or an unreasonable refusal to perceive the need for disclosure,
such an omission is itself strong evidence that the applicant lacks the
‘integrity’ and/or ‘intellectual discernment’ required to be an attorney.”
(Gossage, supra, at p. 1102, 99 Cal.Rptr.2d 130, 5 P.3d 186, italics added.)
★ it ★
[D] espite his many statements concerning taking personal
responsibility, and contrary to what he suggested in his New York bar
application, it was not until the California Bar proceedings that he
shouldered the responsibility of reviewing the editorials his employers
published disclosing his fabrications, thus failing to ensure that all his very
public lies had been corrected publicly and in a timely manner. He has “not
acted with the ‘high degree of frankness and truthfulness’ and the ‘high
standard of integrity’ required by this process.” (Gossage, supra, 23 Cal.4th
at p. 1102, 99 Cal.Rptr.2d 130, 5 P.3d 186, italics added.)
Honesty is absolutely fundamental in the practice of law; without it,
“the profession is worse than valueless in the place it holds in the
administration of justice.” (Menna, supra, 11 Cal.4th at p. 989, 47
Cal.Rptr.2d 2, 905 P.2d 944.) * * * As the dissent in the Review Department
pointed out, “if Glass were to fabricate evidence in legal matters as readily
and effectively as he falsified material for magazine articles, the harm to
the public and profession would be immeasurable.”
We also observe that instead of directing his efforts at serving others
in the community, much of Glass’s energy since the end of his journalistic
career seems to have been directed at advancing his own career and
financial and emotional well-being.
c Ch. 2
Sources and Application of
LegalEthics Rules 45
Q The Review Department majority relied heavily on the testimony of
O Glass’s character witnesses, but the testimony of character witnesses will
not suffice by itself to establish rehabilitation. (Afenna, supra, 11 Cal.4th
CD at p. 988, 47 Cal.Rptr.2d 2, 905 P.2d 944.) Moreover, stressing that Glass’s
reputation as a journalist had been exploded and that so many years had
O passed, some of the character witnesses did not sufficiently focus on the
seriousness of the misconduct, incorrectly viewing it as of little current
c significance despite its lingering impact on its victims and on public
perceptions concerning issues of race and politics. They also did not take
c into account, as we do, that the misconduct reflected poorly on the
particular commitment to honesty that Glass might have been expected to
o have had as a law student. * * * For these reasons we believe the Review
Department majority accorded too much probative value to the testimony
o of Glass’s character witnesses.
★**
c
The record of Glass’s therapy does not represent “truly exemplary
o conduct in the sense of returning something to the community.” (Menna,
supra, 11 Cal.4th at p. 990, 47 Cal.Rptr.2d 2, 905 P.2d 944.) To be sure,
c through therapy he seems to have gained a deep understanding of the
psychological sources of his misconduct, as well as tools to help him avoid
o succumbing to the same pressures again. * * * But his 12 years of therapy
c primarily conferred a personal benefit on Glass himself. * * *
Glass points to the pro bono legal work he does for clients of his firm
c as evidence of sustained efforts on behalf of the community, but we observe
that pro bono work is not truly exemplary for attorneys, but rather is
c expected of them. (See Bus. & Prof. Code, § 6073.)
c Glass and the witnesses who supported his application stress his
talent in the law and his commitment to the profession, and they argue
CD that he has already paid a high enough price for his misdeeds to warrant
admission to the bar. They emphasize his personal redemption, but we
c must recall that what is at stake is not compassion for Glass, who wishes
to advance from being a super-vised law clerk to enjoying a license to engage
o in the practice of law on an independent basis. Given our duty to protect
the public and maintain the integrity and high standards of the profession
CD (see Gossage, supra, 23 Cal.4th at p. 1105, 99 Cal.Rptr.2d 130, 5 P.3d 186),
our focus is on the applicant’s moral fitness to practice law. On this record,
CD the applicant failed to carry his heavy burden of establishing his
rehabilitation and current fitness.
CD III. Conclusion
Cj For the foregoing reasons, we reject the State Bar Court majority’s
recommendation and decline to admit Glass to the practice of law.
CD
O
 Sources and Application of
46 Legal Ethics Rules Ch. 2
B. ADMISSION TO PRACTICE IN OTHER
STATES AND THE FEDERAL COURTS
An attorney who has been admitted in one state and who wants to
represent a particular1 client in a court of another state may also petition
that court to appear pro hac vice, i.e., “for this turn only.” There is no right
to appear pro hac vice [see Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58
L.Ed.2d 717 (1979)], and each case requires a separate petition. In some
jurisdictions, the attorney must enlist a local attorney as co-counsel. This
requirement is to assure compliance with local procedure and provide
accountability to the court, although some argue that it is really an
economic device to protect the local bar. In addition to pro hac vice
admission, most states allow some limited practice activities by lawyers
admitted in another state, including limited admission for in-house
counsel, for members of the military, for provision of pro bono services, and
even for law faculty members. Model Rule 5.5 permits lawyers admitted in
another state, and not disbarred or suspended from practice there, to
provide several categories of limited or temporary legal services in a state
in which they are not admitted to practice.
A majority of the states have reciprocity arrangements that allow an
attorney who has practiced in one state for a set number of years to gain
full admission to practice in another state simply by filing a petition. But
these arrangements are of no help to a lawyer from a state that does not
reciprocate. Thus, if State A does not have an admission by petition
procedure, but requires all attorneys from other states to take a bar
examination, then even states that do permit admission by petition will
require attorneys from State A to take a bar exam, though it may be a
shorter one than is required of non-attorney applicants.
An attorney who wants to practice in a federal court must be
separately admitted to the bar of that court, because each federal court
maintains its own separate bar. Typically, admission is granted upon
motion by an attorney who is already a member of that court’s bar and who
can affirm that the applicant is a person of good moral character.
Admission to a federal district court typically requires that the applicant
be admitted in the state in which the federal court sits. Admission to a
federal court of appeals requires that the applicant be admitted in the
courts of any state. Admission to the United States Supreme Court requires
that the applicant have practiced before the courts of a state for at least
three years.
 Sources and Application of
Ch. 2________________ Legal Ethics Rules_____________________47
Sheller v. Superior Court
California Court of Appeal, 2008.
158 Cal.App.4th 1697, 71 Cal.Rptr.3d 207.

CROSKEY, Acting P.J.

A Texas attorney appearing pro hac vice for plaintiffs in a class action
sent a communication to prospective class members which contained at
least one misrepresentation. The trial court issued an order to show cause
why the attorney’s pro hac vice status should not be revoked. After a
hearing, the trial court declined to revoke the attorney’s pro hac vice status,
and instead ordered the attorney to reimburse the defendant for
substantial attorney’s fees, as a condition for retaining his pro hac vice
status. The trial court also formally reprimanded the Texas attorney. The
attorney appeals. We conclude the trial court lacked authority to impose
attorney’s fees as a sanction and also lacked authority to issue the formal
reprimand. We therefore reverse the trial court’s order. However, we also
conclude that the trial court has the authority to revoke an attorney’s pro
hac vice status in certain circumstances, and therefore remand for further
proceedings.
Factual and Procedural Background
The challenged order arises in the context of a class action against
Farmers New World Life Insurance Company and Farmers Group, Inc.
(collectively “Farmers”). The action alleges Farmers committed unfair
business practices in connection with Farmers’s Universal Life and
Flexible Premium Universal Life insurance policies. Specifically, the action
alleges that the insurance policies were set up so that Farmers would
collect premiums from policyholders that were insufficient to keep the
policies in force—resulting in either an untimely lapse of the policies or* a
substantial increase in premiums. The initial complaint was filed on
November 5, 2003. The named plaintiff, Pauline Fairbanks, was not only a
Farmers insured, but also a Farmers agent. At the time the complaint was
filed, Fairbanks was represented by Attorney Scott A. Marks, who is a
California attorney.
At the same time, Attorney David L. Sheller, who is admitted to
practice in Texas, was pursuing a similar class action against Farmers in
Texas. On February 2,2004, Attorney Sheller filed an application to appear
pro hac vice as lead counsel on behalf of Fairbanks in the instant action.
The application was granted.
From as early as November 1, 2004, the trial court suggested that
Fairbanks might not be an ideal class representative for the insureds, as
she had also been a Farmers agent. In June 2005, Attorney Sheller, but not
Attorney Marks, sent a written communication to some 350 Farmers
policyholders, seeking additional class representatives. The letter was in
the form of a flyer, boldly captioned, “Attention Farmers Insurance Group
 Sources and Application of
48 Legal Ethics Rules Ch. 2
Policy Holders!!!” The flyer began, “A potential class action lawsuit has
been filed against [Farmers] in the State Court of Los Angeles County. We
are concerned Farmers may have given you misleading information about
this lawsuit. Our intention is to help policyholders and give them accurate
information.” The flyer went on to state, “If you have purchased such a
policy, we may be able to help you. We are looking for other people who
have purchased such Farmers policies. If you have, you may be accepted as
a ‘class representative.’ If accepted, you are paid for your time in an amount
set by the judge.”
Upon learning of this flyer, Farmers filed an ex parte motion for a
temporary restraining order preventing plaintiffs’ counsel from sending
further pre-certification communications to potential members of the class,
or, in the alternative, to prevent any such communications without prior
court approval. Farmers’s motion was based not only on the June 2005
flyer, but also on two other communications which allegedly contained
factual misrepresentations about the insurance policies at issue: a
September 2003 letter and a telephone survey of 500 Farmers policyholders
Attorney Sheller had commissioned. Farmers supported its motion with an
expert declaration to the effect that both the September 2003 letter and the
June 2005 flyer violated the California Rules of Professional Conduct. As
to the statement in the June 2005 flyer indicating that Farmers “may have
given [policyholders] misleading information about this lawsuit,” Farmers
submitted a declaration that it had never made a general mailing to its
policyholders, much less a misleading one.
A hearing on Farmers’s ex parte motion was held on July 28, 2005.
Attorney Sheller was present. At the hearing, the trial court expressed
concern that “there seems to be some hucksterism going on here by
plaintiffs.” While the trial court believed that the September 23, 2003 letter
did not comply with the Rules of Professional Conduct, the court was most
concerned by the June 2005 flyer. Specifically, the court found the
statement, “If accepted, you are paid for your time in an amount set by the
judge” to be both inappropriate and simply untrue. Not only are class
representatives not always entitled to recover, they may in fact be liable
for court costs if the defendant prevails. Attorney Sheller responded, “As
far as the [issue] of whether or not the class representative] is going to be
paid or not, our contract specifically states that if we lose, they can be liable
for costs of court. And without divulging any attorney communications, it
is my standard practice to tell people that they can lose.” The court
responded that Attorney Shellei* “just admitted a bait and switch to me,”
in that Attorney Sheller initially represented to prospective class members
that they would be “paid for [their] time,” but when the class members
signed Attorney Sheller’s agreement, they were then told that they could
be responsible for costs in the event of a loss. The court believed the
misrepresentation to be intentional. Attorney Sheller stated that he had no
c Ch. 2
Sources and Application of
Legal Ethics Rules 49
o intention to mislead, and added, “I think now it will be changed. It won’t
c happen again.” The trial court restrained plaintiffs’ counsel from any
further pre-certification communications with potential class members
c without court pre-approval. Finding the June 2005 flyer particularly
violative of the ethical rules, the trial court, on its own motion, set an order
c to show cause why Attorney Sheller’s pro hac vice status should not be
revoked.
c There followed substantial discovery and briefing. Farmers submitted
c a supplemental declaration from its expert, confirming her opinion that the
June 2005 flyer constituted an ethics violation. Farmers also submitted the
c declaration of a Texas ethics expert, who concluded the flyer violated Texas
rules as well.
c In response to the order to show cause, plaintiff argued that the 2005
flyer was accurate “with one minor exception.” Plaintiff stated her counsel
c now realized the statement indicating class representatives would be paid
for their time was “oversimplified and incorrect.” According to plaintiffs
c response, “[Attorney] Sheller concedes that this was in error and that he is
responsible for this mistake, and he wishes to correct it immediately by a
o further letter to the potential class, upon the [c]ourt’s approval.” Plaintiff
c explained that the “mistake arose because several lay people looked at the
notice in an effort to make it simpler and easier to understand for the
o average person. [Attorney] Sheller was involved with the review and
should have looked at it again and given it more thought before it went out
c the door to 350 people. However, in the usual press of time and because he
did not give extra thought to a letter before it was sent out, [Attorney]
c Sheller made a human mistake.” As to the representation in the flyer that
Farmers may have given misleading information about the lawsuit,
o plaintiff stated, “This sentence was placed in the letter because [Attorney]
Sheller has twelve (12) years of experience in life insurance sales fraud
c cases. It has been [Attorney] Sheller’s experience that when people learn
of an alleged problem with their policy, by whatever means, most of the
c time they contact their agent or the home office. Many times when they call
o their agent or the home office, they are given inaccurate or misleading
V___ ’
information that there is not really a problem at all. [Attorney] Sheller has
c experienced this in this case with policyholders who received the notice in
question. This happens so frequently in these cases that it is [Attorney]
Sheller’s opinion that this is a general business practice in the life
Q insurance industry.”
C A draft “Corrective Notice and Apology” was attached, which repeated
the bulk of the text of the flyer, including the sentence, “If accepted, you
c are paid for your time in an amount set by the judge.” However, the next
paragraph, written in bold type, states, “The sentence ‘If accepted, you are
c paid for your time in an amount set by the Judge’ is inaccurate. The Court
finds that sentence is an ethical violation by Plaintiffs counsel, David L.
o
o
c
 Sources and Application of
50 Legal Ethics Rules Ch. 2
Shelter. In actuality, you might not be paid at all and could be personally
liable for court costs, if the Plaintiff loses.” The draft corrective notice did
not restate Attorney Shelter's concern that “Farmers may have given you
misleading information about this lawsuit,” nor did it retract that
statement as ethically improper or otherwise inaccurate.
Attorney Shelter submitted the declaration of his own ethics expert
opining that there is “nothing materially misleading” about the original
flyer. As to the assertion in the flyer that class representatives would be
paid for their time, Attorney Shelter’s expert noted that Attorney Shelter
conceded “that he neglected to specifically state that the judge might not
award any amount.” The expert concluded this was, “at worst a de minimis
omission” as “it cannot be misleading or in any way improper not to have
told a client what is obvious to every plaintiff, if you are not the prevailing
party, you won’t recover a monetary settlement.” The expert then made the
fairly remarkable assertion that “[Attorney] Shelter also has pointed out
that he contractually obligated himself to bear any costs that might be
imposed against the class representative, so that there simply was never
an issue regarding the class representative’s potential exposure to
monetary costs.” In fact, Attorney Sheller had not pointed this out at all.
The only evidence before this court on this issue was Attorney Shelter’s
representation at the July 28, 2005 hearing that his “contract specifically
states that if we lose, they can be liable for costs of court.”
A hearing was held on the order to show cause on December 2, 2005.
The trial court noted that its main concern was the representation in the
flyer that class representatives would be paid for their time “[i]f accepted,”
while, in fact, class representatives could receive nothing and, according to
Attorney Shelter’s retainer agreement, actually be responsible for costs.
Attorney Shelter argued that there was no ethical violation in the flyer,
because there is no requirement that an attorney advertisement include a
statement that if the client loses, there will be no recovery. Farmers argued
that the error was not one of mere omission, but an affirmative statement
that class representatives would be paid for their time.
Later in the hearing, Attorney Marks argued, for the first time, that
there had been no “bait and switch” because Attorney Shelter had, in fact,
obligated himself to pay all costs in the event of a loss. Attorney Marks
gave the court a document, which was unauthenticated and had not been
previously disclosed to Farmers. The document was a one-sentence tetter,
purportedly written in July 2004, from Attorney Shelter to Fairbanks,
reading simply, “In the unlikely event we lose the case and there are costs
that are incurred to you, I will pay them completely.” When it was pointed
out that this letter was in complete opposition to what had been
represented at the July 2005 hearing, Attorney Marks responded that
Attorney Sheller had been upset at the July 2005 hearing, and that white
he had told the court what his retainer provided, he should have informed
o Ch. 2
Sources and Application of
Legal Ethics Rules 51
c the court that he had promised to indemnify Fairbanks for costs, and would
c do the same with future class representatives. The court then questioned
whether it was ethical for an attorney to agree to indemnify his client for
o costs that might be imposed against the client; the ethics experts for both
parties were in attendance and, predictably, had opposing views on the
c issue.

c The trial court indicated its intention to sanction Attorney Sheller in

some manner, and asked the parties for input on any possible lesser
c sanction to the revocation of Attorney Shelter's pro hac vice status.
Attorney Shelter’s expert had suggested, in her declaration, that “a
c reprimand would be the maximum penalty to be appropriately imposed in
this matter.” Attorney Shelter argued that the prohibition on further pre­
c certification contact with the class without court approval would be
sufficient. Farmers, which had incurred over $140,000 in fees on this issue,
c argued that, if Attorney Shelter’s pro hac vice status was not revoked, he
should at least be ordered to compensate Farmers for its attorney’s fees.
c The trial court allowed one final round of briefing. Attorney Shelter
admitted that the flyer was “not well written” and apologized “for his
c? mistakes” in drafting it. The court questioned whether it was ethical for an
o attorney to agree to indemnify his client for costs that might be imposed
against the client; the ethics experts for both parties were in attendance
o and had opposing views on the issues. Attorney Shelter argued that, when
he had written that if accepted, class representatives would be “paid for
c [their] time in an amount set by the judge,” he simply meant that an
impartial judicial officer would decide “how much justice, if any[,] an
c injured person will receive.” He argued that his flyer caused no harm, and
that any complaints about the flyer were “stylistic in nature.” Attorney
o Sheller argued that he is a passionate advocate, who must be zealous in
order to survive as a sole practitioner opposing a firm. He suggested that
c “[d]iscipline should only be administered when it is demonstrated that the
attorney is representing his own interests as opposed to the clients’
c [interests].” As such, he argued that issuing a new flyer remedying the first
flyer would be an appropriate remedy. At no point did Attorney Shelter ever
c suggest that the trial court lacked the authority to revoke his pro hac vice
status, issue a reprimand, or sanction him monetarily.
o
On February 27, 2006, the trial court issued its order* discharging the
c order to show cause. The court stated that the June 2005 flyer “reads like
a crass commercial as opposed to a professional advertisement.” The court
c concluded that the flyer “contained at least one statement that was not
true,” specifically, the representation that class representatives would be
c paid for their time. The court also found unethical Attorney Shelter’s July
28, 2005 misrepresentation in open court that his retainer agreement
c specifically states that plaintiffs can be liable for costs in the event the case
is lost, given that Attorney Shelter had, in actuality, agreed to reimburse
c
c
c
 Sources and Application of
52 Legal Ethics Rules Ch. 2
Fairbanks for any costs incurred in this action. The court did not accept
Attorney Sheller’s claim of overzealousness as an excuse, and specifically
concluded that, with respect to the June 2005 flyer, Attorney Shelter had
been more concerned with attracting additional clients than with
representing Fairbanks’s interests. While the trial court believed that
Attorney Shelter’s conduct would justify the revocation of his pro hac vice
status, the court in its discretion declined to do so. Instead, the court
imposed on Attorney Shelter the responsibility to pay two-thirds of
Farmers’s attorney’s fees, $95,009, as a condition of retaining his pro hac
vice status. Additionally, the trial court formally reprimanded Attorney
Shelter for his conduct. Attorney Shelter filed a timely notice of appeal.
Issues on Appeal
We first address whether Attorney Shelter can raise any challenge to
the court’s legal authority to order him to pay attorney’s fees to Farmers,
and formally reprimand him, in light of Attorney Shelter’s failure to raise
these arguments before the trial court. Exercising our discretion to reach
these purely legal issues, we conclude that no authority existed for the trial
court’s order, and that it therefore must be reversed. We also consider
whether a trial court has the inherent authority to revoke an attorney’s pro
hac vice status. We conclude that such authority exists, allowing a trial
court to revoke an attorney’s pro hac vice status in, at the least, any
circumstance in which it could disqualify a California attorney from a
particular case. We therefore remand for the trial court to determine
whether to exercise its discretion to revoke Attorney Shelter’s pro hac vice
status.
Discussion
1. Scope of the Appeal
On appeal, Attorney Shelter challenges the trial court’s authority to
order him to pay Farmers’s attorney’s fees, to formally reprimand him,
and—although the order was not made—to revoke his pro hac vice status.
Farmers responds that these contentions are forfeited, as Attorney Shelter
never challenged the trial court’s authority to make any such orders. The
application of the forfeiture rule is not automatic; appellate courts have
discretion to excuse such forfeiture. (In re S.B. (2004) 32 Cal.4th 1287, 13
Cal.Rptr.3d 786, 90 P.3d 746.) Parties have been permitted to raise new
issues on appeal where the issue is purely a question of law on undisputed
facts. (Frink v. Prod (1982) 31 Cal.3d 166, 170, 181 Cal.Rptr. 893, 643 P.2d
476.) This is an appropriate case for the exercise of such discretion. We are
here concerned with the purely legal issue of the scope of a trial court’s
authority to sanction a foreign attorney appearing pro hac vice. It would be
a miscarriage of justice to allow a sanction imposed without legal authority
to remain in effect simply because the attorney failed to challenge it.
\_'
O Ch. 2
Sources and Application of
Legal Ethics Rules 53
C Farmers also contends that the order formally reprimanding Attorney
O Shelter is not an appealable order. Indeed, it appears that the order is not.
(See Code Civ. Proc., § 904.1.) We exercise our discretion, however, to treat
c the notice of appeal as a petition for writ of mandate, and address the issue.
o
X__/ 2. Inherent Power of the Trial Courts
In order to properly discuss the issues raised by this appeal, we must
c first address the inherent powers of a trial court. All courts possess
inherent supervisory or administrative powers to enable them to carry out
o their duties. (Bauguess v. Paine (1978) 22 Cal.3d 626, 635-636, 150
Cal.Rptr. 461, 586 P.2d 942.) Code of Civil Procedure section 128 reflects
o these powers, but is not their source. That section provides, in pertinent
part, that each court has the power “(t]o control in furtherance of justice,
c the conduct of its ministerial officers, and of all other persons in any
manner connected with a judicial proceeding before it, in every matter
c pertaining thereto.” (Code Civ. Proc., § 128, subd. (a)(5).)
c Prior to the enactment of the State Bar Act, attorney discipline was
administered by the courts under their inherent judicial power. (1 Witkin,
o Cal. Procedure (4th ed. 1996) Attorneys, § 616, p. 727.) As originally
enacted, the State Bar Act did not attempt to curtail or limit the previously
c existing judicial power to impose discipline. (See Bus. & Prof. Code, fmr.
§ 6087 [nothing in the State Bar Act “shall be construed as limiting or
o altering the powers of the courts of this state to disbar or discipline
members of the bar”].) However, in 1951, the State Bar Act was amended
c to exclude superior courts and appellate courts from exercising such
jurisdiction, leaving the Supreme Court as the sole judicial entity with
o jurisdiction over attorney discipline. (Bus. & Prof. Code, §§ 6087, 6100;
Jacobs v. State Bar (1977) 20 Cal.3d 191, 196, 141 Cal.Rptr. 812, 570 P.2d
c 1230.) Thus, in California, the inherent judicial power of the superior court
does not extend to attorney disciplinary actions. That power is exclusively
c held by the Supreme Court and the State Bar, acting as its administrative
Q arm. (Jacobs v. State Bar, supra, 20 Cal.3d at p. 198, 141 Cal.Rptr. 812,
570 P.2d 1230.)
c Trial courts in California are not, however, powerless to sanction
attorneys for improper conduct or to control the proceedings before them to
c prevent injustice. Thus, trial courts may conduct contempt proceedings,
dismiss sham actions, admonish counsel in open court, strike sham
c pleadings, and report misconduct to the State Bar. (1 Witkin, Cal.
Procedure (4th ed. 1996), Attorneys, § 620, p. 731.) In an appropriate case,
c the trial court may exercise its inherent power to control the conduct of its
c ministerial officers to disqualify an attorney in an action before it. (In re
Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 585, 283 Cal.Rptr.
o 732.) Issues of disqualification often arise when an attorney has a conflict
of interest, such as when the attorney has been exposed to confidential
Q
C
c
 Sources and Application of
54 Legal Ethics Rules Ch. 2
information of a former client who is in an adverse position in current
litigation. (Id. at pp. 586-587, 283 Cal.Rptr. 732; Roush v. Seagate
Technology, LLC (2007) 150 Cal.App.4th 210, 219, 58 Cal.Rptr.3d 275.) "A
motion to disqualify counsel brings the client’s right to the attorney of his
or her choice into conflict with the need to maintain ethical standards of
professional responsibility.” (Knight v. Ferguson (2007) 149 Cal.App.4th
1207, 1212, 57 Cal.Rptr.3d 823.) “Disqualification motions implicate
several important interests, among them are the clients’ right to counsel of
their choice, the attorney’s interest in representing a client, the financial
burden of replacing a disqualified attorney, and tactical abuse that may
underlie the motion. [Citation.] The ‘paramount’ concern in determining
whether counsel should be disqualified is ‘the preservation of public trust
in the scrupulous administration of justice and the integrity of the bar.’
[Citations.] It must be remembered, however, that disqualification is a
drastic course of action that should not be taken simply out of
hypersensitivity to ethical nuances or the appearance of impropriety.”
(Roush v. Seagate Technology, LLC, supra, 150 Cal.App.4th at pp. 218-
219, 58 Cal.Rptr.3d 275.) “The purpose of disqualification is not to punish
a transgression of professional ethics. [Citation.] Disqualification is only
justified where the misconduct will have a ‘continuing effect’ on judicial
proceedings.” (Baugh v. Garl (2006) 137 Cal.App.4th 737, 744, 40
Cal.Rptr.3d 539.)
The question has arisen as to whether the inherent power of a trial
court includes the power to sanction attorneys for bad faith conduct by
requiring the payment of attorney’s fees. The United States Supreme Court
has held that the inherent power of federal district courts encompasses this
power. (Chambers v. NASCO, Inc. (1991) 501 U.S. 32, 44-45, 111 S.Ct.
2123, 115 L.Ed.2d 27.) In Chambers, the United States Supreme Court
began with the premise that a federal court has the inherent power “to
control admission to its bar and to discipline attorneys who appear before
it.” (Id. at p. 43, 111 S.Ct. 2123.) A court’s inherent powers must be
exercised with restraint and discretion, and “[a] primary aspect of that
discretion is the ability to fashion an appropriate sanction for conduct
which abuses the judicial process.” (Id. atpp. 44-45, 111 S.Ct. 2123.) The
Supreme Court reasoned that, since a district court contains the inherent
power to dismiss an action within its discretion, the lesser sanction of the
imposition of attorney’s fees is also within its inherent power. (Id. at p. 45,
111 S.Ct. 2123.)
The California Supreme Court has reached the opposite result.
(Bauguess v. Paine, supra, 22 Cal.3d at p. 637,150 Cal.Rptr. 461, 586 P.2d
942.) The California Supreme Court concluded that “[i]t would be both
unnecessary and unwise to permit trial courts to use fee awards as
sanctions apart from those situations authorized by statute.” (Ibid.) The
California Supreme Court acknowledged that a trial court has the power
o
c Sources and Application of
Ch. 2_________________ Legal Ethics Rules____________________ 55
o of contempt to sanction disruptive or disrespectful attorneys, and that
o procedural safeguards have been enacted to govern contempt proceedings.
Without such procedural safeguards in place, “serious due process
□ problems would result were trial courts to use their inherent power, in lieu
of the contempt power, to punish misconduct by awarding attorney’s fees
C' to an opposing party or counsel.” {Id. at p. 638,150 Cal.Rptr. 461, 586 P.2d
942.) Concluding that the use of the courts’ inherent power to punish
o misconduct by awarding attorney’s fees “may imperil the independence of
the bar and thereby undermine the adversary system,” the California
o Supreme Court concluded that the power to impose such sanctions must be
created by the Legislature with appropriate safeguards. {Id. at pp. 638-
c 639, 150 Cal.Rptr. 461, 586 P.2d 942.) The reasoning of Bauguess has been
extended to “any sanction occasioned by attorney conduct.” (Yarnell &
c Associates v. Superior Court (1980) 106 Cal.App.3d 918, 923, 165 Cal.Rptr.
421 [concerned with monetary sanctions].)
o
3. Admission Pro Hac Vice
c Most, if not all, States allow an out-of-state attorney to appear pro hac
vice. (Leis v. Flynt, supra, 439 U.S. at pp. 441-442, 99 S.Ct. 698.) However,
c it is not a right granted by the Constitution. {Id. at p. 442, 99 S.Ct. 698.)
o California Rules of Court, Rule 9.40, governs the admission of
attorneys pro hac vice in California. An attorney who is a member in good
c standing of the bar of another state who has been retained to appear in a
particular cause pending before a court of this state may, “in the discretion
c of such court” be permitted to appear as counsel pro hac vice. (Cal. Rules of
Court, rule 9.40(a).) No person is eligible to appear pro hac vice if the person
c is a California resident, regularly employed in California, or regularly
engaged in substantial business in California. {Ibid.) Repeated
c appearances pro hac vice constitute cause to deny an application. (Cal.
o Rules of Court, rule 9.40(b).) An attorney seeking to appear pro hac vice
must file an application indicating the courts to which the applicant has
c been admitted, and that the applicant is a member in good standing in
those courts. An applicant must indicate that he oi* she “is not currently
o suspended or disbarred in any court,” but there is no requirement for
including any history of discipline imposed. (Cal. Rules of Court, rule
Q 9.40(d).)
While there does not appear to be a statement of the scope of a court’s
c discretion in ruling on an application to appear pro hac vice in a civil case,
c our Supreme Court has concluded that, when a criminal defendant seeks
to be represented by an attorney appearing pro hac vice, the court’s exercise
c of discretion should be limited by the individual’s right to defend himself
in whatever manner he desires. (Magee v. Superior Court (1973) 8 Cal.3d
o 949, 952, 106 Cal.Rptr. 647, 506 P.2d 1023.) The defendant’s choice of
counsel should be interfered with only to avoid significant prejudice to the
o
c
 Sources and Application of
56 Legal Ethics Rules Ch. 2
defendant himself or “a disruption of the orderly processes of justice
unreasonable under the circumstances of the particular case.” (Zfezd.)
While in some jurisdictions the State Bar has no power to discipline
attorneys appearing pro hac vice (e.g., State Industries, Inc. v. Jernigan
(Fla.App.2000) 751 So.2d 680, 682), an attorney appearing pro hac vice in
California is “subject to the disciplinary jurisdiction of the State Bar with
respect to any of his or her acts occurring in the course of such appearance.”
(Cal. Rules of Court, rule 9.40(f); see also Birbrower, Montalbano, Condon
& Frank, P.C. v. Superior Court (1998) 17 Cal.4th 119, 130, 70 Cal.Rptr.2d
304, 949 P.2d 1; Cal. Rules of Prof. Conduct, rule l-100(D)(2).)
Additionally, once permitted to appear pro hac vice, a foreign attorney in
California “is subject to the jurisdiction of the courts of this state with
respect to the law of this state governing the conduct of attorneys to the
same extent as a member of the State Bar of California.” (Cal. Rules of
Court, rule 9.40(f).)
4. Revocation of Pro Hac Vice Status
No case in California has yet addressed whether a trial court has the
authority to revoke an attorney’s pro hac vice status. Numerous other
courts, however, have considered the issue, and determined that trial
courts possess that authority. (See Attorneys: Revocation of State Court
Pro Hac Vice Admission, 64 A.L.R.4th 1217.) The parties have not cited to,
and independent research has not disclosed, an opinion from any
jurisdiction concluding that trial courts lacked the authority to revoke an
attorney’s pro hac vice status.
However, the legal basis for the authority to revoke an attorney’s pro
hac vice status has varied. Some jurisdictions expressly include the
authority to revoke pro hac vice status in their statutes or rules allowing
pro hac vice appearances. (See Del. Super. Ct. Rules of Civ. Proc., rule 90.1
[“The court may revoke a pro hac vice admission sua sponte or upon the
motion of a party, if it determines, after a hearing or other meaningful
opportunity to respond, the continued admission pro hac vice to be
inappropriate or inadvisable”]; N.C. Gen. Stat. § 84-4.2 [“Permission
granted (to appear pro hac vice) may be summarily revoked by the General
Court of Justice or any agency... on its own motion and in its discretion”];
Wis. Supr. Ct. Rules, rule 10.03(4) [“Permission to the nonresident lawyer
(to appear pro hac vice) may be withdrawn by the judge granting it if the
lawyer by his or her conduct manifests incompetency to represent a client
in a Wisconsin court or by his or her unwillingness to abide by the rules of
professional conduct for attorneys and the rules of decorum of the court”].)
Federal courts have concluded the authority to revoke an attorney’s pro hac
vice status is included within the inherent power of a federal court “to
control admission to its bar and to discipline attorneys who appear before
it.” (Lasar v. Ford Motor Company (9th Cir. 2005) 399 F.3d 1001, 1118; In
 Sources and Application of
Ch. 2_________________ legal Ethics Rules____________________ 57
re Complaint of PMD Enterprises, Inc. (D.N.J. 2002) 215 F.Supp.2d 519,
530.) Finally, some courts have found the power to revoke an attorney’s pro
hac vice status within a trial court’s inherent power to regulate practice
before it and protect the integrity of its proceedings. (See, e.g., Walls v. City
of Toledo (2006) 166 Ohio App.3d 349, 850 N.E.2d 789, 792; Bank of Hawaii
v. Kunimoto (1999) 91 Hawai’i 372, 984 P.2d 1198, 1213.)
Moreover, jurisdictions differ on the conduct of the pro hac vice
attorney that will be sufficient to justify revocation of pro hac vice status.
In some jurisdictions, the trial court may revoke an out-of-state attorney’s
pro hac vice status for any conduct which “adversely impacts the
administration of justice.” (E.g., State Industries, Inc. v. Jernigan, supra,
751 So.2d at p. 682 [this is a broad standard that would permit revocation
of pro hac vice status for conduct that would be permissible by a local
attorney]; Williams & Connolly, LLP v. People for the Ethical Treatment
of Animals, Inc. (2007) 273 Va. 498, 643 S.E.2d 136,148 [conduct justifying
sanctions under statute is a sufficient basis to revoke pro hac vice status
under this standard].) In some jurisdictions, violation of an established
disciplinary standard justifies revocation of pro hac vice status. (E.g., In re
Complaint of PMD Enterprises, Inc., supra, 215 F.Supp.2d at p. 531.) Other
jurisdictions require bad faith of the pro hac vice attorney before such
status can be revoked. (Baldwin Hardware Corp. v. Franksu Enterprise
Corp. (Fed. Cir. 1996) 78 F.3d 550, 562 [trial court’s order prohibited
counsel from appearing pro hac vice before it in the future].) Still other
jurisdictions grant trial courts a very broad discretion, which permits
revocation of pro hac vice status for reasons which do no amount to
misconduct. (E.g., Brown v. Wood (1974) 257 Ark. 252, 516 S.W.2d 98, 99-
101 [not an abuse of discretion to revoke an attorney’s pro hac vice status
for concerns that the pro hac vice attorney’s extensive practice would
adversely affect the trial court’s ability to move its docket along].) In Ohio,
the courts have not yet determined the outei’ limits of the trial courts’
authority to revoke pro hac vice status, but have concluded that, at the
least, conduct which would support disqualification of a local attorney is
sufficient to justify revocation of a pro hac vice attorney’s status. (Royal
Indemnity Co. v. J.C. Penney Co. (1986) 27 Ohio St. 3d 31, 501 N.E.2d 617,
622.) In Washington, pro hac vice status can be revoked for conduct that
constitutes contempt, adversely affects the conduct of the litigation, or
violates the code of professional responsibility. (Hallmann v. Sturm Ruger
& Co., supra, 639 P.2d at p. 808.)
In this admittedly non-uniform state of the law, we now consider
whether California trial courts have the authority to revoke an attorney’s
pro hac vice status. We consider the three legal bases that have been found
by other jurisdictions to support such authority: (1) express provision in
statute or rule; (2) implied in court’s authority to control admission to its
bar and discipline attorneys who appear before it; and (3) implied in court’s
 Sources and Application of
58 Legal Ethics Rules Ch. 2
inherent power to regulate practice before it and protect the integrity of its
proceedings. California has no express provision granting trial courts the
right to revoke an attorney’s pro hac vice status. Unlike federal courts,
California trial courts do not possess the power to control admission to the
bar and discipline attorneys. But California trial courts do possess the
inherent power to regulate practice before them and protect the integrity
of their proceedings. In determining whether this power encompasses the
authority to revoke an attorney’s pro hac vice status, we look at the
language of the governing court rule. An attorney appearing pro hac vice
“is subject to the jurisdiction of the courts of this state with respect to the
law of this state governing the conduct of attorneys to the same extent as
a member of the State Bar of California.” (Cal. Rules of Court, rule 9.40(p.)
Given that a California trial court’s inherent power includes the authority
to disqualify a California attorney, and that revocation of an out-of-state
attorney’s pro hac vice status is, in effect, a disqualification of the out-of-
state attorney, we conclude that a California trial court’s inherent powers
include the authority to revoke an attorney’s pro hac vice status when that
attorney has engaged in conduct that would be sufficient to disqualify a
California attorney. While it may be that a California trial court has the
authority to revoke an attorney’s pro hac vice status under other
circumstances as well, we need not reach the issue of the precise limits of
a trial court’s authority in this appeal.
5. The Trial Court’s Order
In this case, the trial court ordered Attorney Sheller to pay Farmers’s
attorney’s fees. The order had no statutory basis, and the trial court could
not have imposed a similar order on a California attorney. Similarly, the
trial court formally reprimanded Attorney Sheller. Again, this is not a
sanction that the trial court would have had jurisdiction to impose on a
California attorney. Farmers suggests that, even though these sanctions
could not have been imposed on a California attorney, the sanctions can be
upheld in this case as lesser sanctions to the permissible sanction of
revocation of Attorney Sheller’s pro hac vice status. The conclusion does
not follow. Indeed, it has already been established that although a trial
court has the inherent power to disqualify a California attorney, it does not
have the power to impose the apparently lesser sanctions of attorney’s fees
and a formal reprimand. There is simply no reason to conclude that, even
though a trial court has the inherent power to revoke an out-of-state
attorney’s pro hac vice status, it somehow has the power to impose every
conceivably lesser sanction on that attorney—especially when the trial
court does not possess the jurisdiction to impose those sanctions on a
California attorney. An attorney appearing pro hac vice submits to the
“jurisdiction of the courts of this state with respect to the law of this state
governing the conduct of attorneys to the same extent as a member of the
State Bar of California.” (Cal. Rules of Court, rule 9.40(f).) The attorney
 Sources and Application of
Ch. 2 Legal Ethics Rules 59
appearing pro hac vice does not submit to the disciplinary jurisdiction of
the California courts to a greater extent than California attorneys. The trial
court’s order was error.
However, on remand, the court can also consider whether Attorney
Sheller’s pro hac vice status should be revoked. Moreover, the trial court
can consider imposition of any other sanction procedurally available and
justified by the facts. Specifically, but not exclusively, the court can
consider whether Attorney Sheller should be reported to the State Bar for
the initiation of disciplinary proceedings. (Cf. In the Matter of Fletcher
(Ind. 1998) 694 N.E.2d 1143 [Indiana Supreme Court disciplines an Illinois
attorney for misconduct when appearing pro hac vice; attorney is
prohibited from appearing pro hac vice in Indiana for a term of two years].)
On appeal, Attorney Sheller argues that, at most, he committed a
“marginal infraction,” rendering the imposition of any sanctions an abuse
of discretion. Here, we disagree. While we conclude that the trial court
lacked jurisdiction to impose the sanctions ordered, this should in no way
be interpreted as our approval of Attorney Sheller’s conduct in this matter.
Attorney Sheller mailed an advertising flyer to 350 of Farmers’s
policyholders, seeking additional class representatives and informing
them, “If accepted, you are paid for your time in an amount set by the
judge.” This statement is completely false; it indicates to the policyholders
that they would be paid “for [their] time,” in other words, that they would
be paid regardless of the outcome of the action. We also share the trial
court’s concern that Attorney Sheller’s explanations for his conduct were
contradictory and his purported justifications were wholly inadequate.
While Attorney Sheller’s status as a pro hac vice attorney does not permit
the trial court to sanction him in a manner that a California attorney could
not be sanctioned, we express no opinion as to whether Attorney Sheller’s
conduct is worthy of the sanction of revocation of his pro hac vice status or
any other permissible sanction.
Disposition
The order requiring Attorney Sheller to pay Farmers’s attorney’s fees
is reversed. The petition for writ of mandate with respect to the order
reprimanding Attorney Sheller is granted, and the trial court is directed to
vacate the order. The case is remanded for further proceedings consistent
with the views expressed in this opinion. The parties are to bear their own
costs on appeal.

C. LAWYER ASSOCIATIONS
Lawyers organize themselves into formal groups, not only because of
tradition and natural inclination, but also because there is official
 o
60
SOURCES AND APPLICATION OF
Legal Ethics Rules Ch. 2
o
encouragement to do so. The Preamble to the ABA Model Rules suggests
u
the goals sought by lawyer associations: to improve the law, legal
education, the administration of justice, and the quality of services
O
rendered by the legal profession; to promote law reform; to increase the
availability of adequate legal assistance to those who cannot afford it; and
O
to help preserve the independence of the legal profession by assuring that o
self-regulation is conducted in the public interest.
In the United States, lawyers have organized themselves into different o
kinds of groups according to geography (e.g., the Ohio State Bar
Association), age (e.g., the Barristers Club of San Francisco, for lawyers o
under age 36), ancestry (e.g., the Asian Bar Association), gender (e.g., the
National Association of Women Lawyers), and areas of legal interest (e.g.,
□
the American Trial Lawyers Association). O
1. Nationwide Organizations o
There are dozens of nationwide organizations of lawyers. For example,
the National Bar Association was organized in 1925 in response to o
discrimination against African-American lawyers by other nationwide
lawyer groups. Many of the present activities of the National Bar o
Association concern civil rights issues. The National Conference of Black
Lawyers was formed in 1969 and is active in a variety of legal and political o
fields.
o
Another example is the National Lawyers Guild, formed in 1936 to
work for social reform. In 1950, the House Un-American Activities o
Committee called it “the foremost legal bulwark of the Communist Party,”0
but that charge withered later in the decade.b Its present activities involve o
labor and immigration law, race relations, women’s rights, disarmament,
and prisoner rights. o
A final example is the American Law Institute, formed in 1923. Its Q
members are judges and lawyers from across the country, and its most
well-known project is the Restatements of the Law, including the O
Restatement (Third) of the Law Governing Lawyers.
o
2. The American Bar Association (—'y

The largest of the nationwide bar organizations is the American Bar

Association. Described by one scholar as scarcely more than a minor social Q
group when it was organized in 1878, it now has a membership of roughly
400,000, including 51,000 student members—about one-third of the Q
lawyers in the country. The ABA holds itself out as the national voice of
the legal profession. Q

* H.R.Rep. No. 3123, 81st Cong., 2d Sess. (1950).

o
b 1959 Atty.Gen.Ann.Rep. 259. o
o
o
 Sources and Application of
Ch. 2 Legal Ethics Rules 61
The ABA functions through an elaborate structure consisting of its
officers, the House of Delegates, the Board of Governors, and the Assembly.
The House of Delegates is the designated source of control, policy
formulation, and administration. Designed to be representative of the legal
profession, it is made up of representatives or delegates from each state,
from state and other bar associations, and from other organizations of the
legal profession, such as the American Law Institute. The Board of
Governors is empowered to perform, between meetings of the House of
Delegates, the functions that the House itself might perform. The Assembly
is composed of all members who register at the annual meeting. Members
may present resolutions, and if adopted by the Assembly, the resolutions
are sent to the House of Delegates for approval, disapproval, or
amendment.
Much of the ABA’s work is accomplished through subgroups. The
largest of these are called sections; they are devoted to distinct areas of
practice or professional interest such as natural resources law, public
utility law, antitrust law, general practice, and tort and insurance practice.
The sections have committees which focus on specific areas of interest. For
example, the Section of International Law has more than 50 committees,
including a committee on the law of the sea and a committee on
international communications. Presently, there are more than 1,400
sectional committees.
One section of the ABA is the Law Student Division. Its goals include
developing awareness of and participation in organized bar activities,
furthering academic excellence, and promoting professional responsibility.
The Law Student Division publishes its own journal, the Student Lawyer.
Students who attend ABA-accredited law schools are eligible for
membership, and presently some 51,000 law students belong to the
Division.
In addition to the sections, there are approximately 70 smaller groups
termed commissions, task forces, or committees. For example, the ABA
Model Rules of Professional Conduct are the product of the Commission on
Evaluation of Professional Standards.
ABA publications include the monthly American Bar Association
Journal, which is distributed regularly to all members. Additionally, each
section publishes a periodical which relates to its particular field of law and
is sent automatically to each section member.
Another ABA function is to accredit law schools. The ABA sets both
quantitative and qualitative standards for accreditation. For example, it
requires all students in accredited law schools to receive instruction in
legal ethics, and that may well be why you are reading this book.
 Sources and Application of
62____________________ Legal Ethics Rules____________ Ch. 2
3. State Bar Associations
Each state has a statewide bar association, organized like the
American Bar Association, although not so elaborately structured nor
involved in so many activities. Typical functions of a state bar association
include helping the state’s highest court run the lawyer discipline system,
conducting continuing legal education programs for the members,
establishing and interpreting legal ethics rules, setting statewide
certification standards for legal specialists, lobbying and conducting other
political activities regarding issues that affect the legal profession, helping
make legal services available to people who cannot pay, and setting
standards for lawyer referral services, legal aid offices, and the like.
A significant distinction between the national organizations and many
state bar associations is compulsory membership. Membership in all of the
national organizations is voluntary. By contrast, many states require that
all lawyers practicing in the state belong to the state bar association. The
lawyer’s license to practice law is membership in the state bar, which must
be renewed annually by payment of dues. This form of compulsory
membership is usually described as a mandatory or integrated bar.
Proponents of the mandatory bar claim that it can be more effective in
fulfilling its professional responsibilities because it speaks and acts with
one voice. Moreover, this effectiveness is enhanced by the predictable
income from dues, which facilitates planning and budgeting. Opponents
claim coerced membership is undemocratic, particularly when the
organization acts or speaks out on some political, social or other matter
outside the traditional scope of the legal profession. In a voluntary
organization, the dissenter can always resign, but in an integrated bar
exercising this option means leaving law practice. Critics also assert that
mandatory bars beget their own ever-growing and increasingly expensive
bureaucracies.
Critics of compulsory bar membership have had little success in
making changes from within the bar associations. They have fared only
slightly bettei’ in court challenges. In Lathrop v. Donohue, 367 U.S. 820, 81
S.Ct. 1826, 6 L.Ed.2d 1191 (1961), the Supreme Court (without a majority
opinion) upheld the Wisconsin Supreme Court’s ruling that compulsory bar
membership does not violate either the right of free association or free
speech. However, Lathrop left unanswered the question whether an
integrated bar may use the mandatory dues of its members to support
political or ideological positions and activities with which its members may
disagree. That question was answered about thirty years later in Keller v.
State Bar of California, 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990).
There the Court held that an integrated bar must not use its members’
mandatory dues to fund “activities of an ideological nature” that are not
c Sources and Application of
Ch. 2 Legal Ethics Rules 63
Q
germane to “regulating the legal profession and improving the quality of
o legal services.”
□ Having lost the Keller case, for the next 10 years the State Bar of
California permitted its members to deduct a ratable portion of their
CD annual dues if they did not wish to support the State Bar’s lobbying and
other political activities on matters that do not relate to the legal profession
or the quality of legal services. See also Morrow v. State Bar of California,
188 F.3d 1174 (9th Cir.1999), cert, denied, 528 U.S. 1156, 120 S.Ct. 1162,
o 145 L.Ed.2d 1073 (2000) (members cannot get an injunction against State
Bar’s political activities that are not germane to regulation of the legal
Q profession). Finally, in 2002, the California State Bar split off the
Conference of Delegates of California Bar Associations as a separate entity
c with separate dues. The Conference of Delegates will debate and approve
proposals to change California law, regardless of their relationship to the
c legal profession.
4. Local Bar Associations
(" Bar associations organized on a local level, such as county or city, are
voluntary in membership. Some are organized along subject or special
22' interest lines such as trial practice. These organizations provide continuing
professional education, act as a public voice on legal issues, serve as a
CD medium for new lawyers to become acquainted with other practitioners,
and function as social groups. Some local bar associations such as The
C Association of the Bar of the City of New York may be as powerful as
statewide bar associations.

II. SOURCES OF GUIDANCE

ON LEGAL ETHICS
c A. STATE RULES, STATUTES, AND RULES OF COURT
c Each state has a set of ethics rules that govern the lawyers in that
state. In addition, some states have special statutes that govern the
cd conduct of lawyers, and most courts have local rules that apply to all
lawyers who appeal* before them. Thus, a lawyer who is beginning practice
c in a jurisdiction must consult several sources—the state ethics rules, the
c state statutes, and the local rules of court—to find out what is expected of
him or her in that jurisdiction.
CD B. ABA MODEL CODE OF
CD PROFESSIONAL RESPONSIBILITY
In 1969, the American Bar Association promulgated the ABA Model
Code of Professional Responsibility (the “ABA Code”) as a model for the
various states to follow in adopting their own sets of legal ethics rules. It

CD
64
Sources and Application of
Legal Ethics Rules Ch. 2
o
was widely accepted, and within a few years almost all of the states had
o
adopted ethics rules patterned closely on the ABA Code. o
C. ABA MODEL RULES OF PROFESSIONAL CONDUCT Q
In 1977, the ABA began work on the ABA Model Rules of Professional
Conduct (the “ABA Model Rules”). The ABA Model Rules were designed to c
replace the ABA Code—that is, to become a new model for the states to
follow. After extensive debate and a long process of compromise and o
amendment, a final version of the ABA Model Rules was adopted by the
ABA House of Delegates in 1983.
o
The ABA Model Rules did not receive the quick, warm reception that o
the states had given the ABA Code fourteen years earlier. The debate over
the ABA Model Rules served to focus attention on several key issues— o
particularly the confidentiality of client information—on which there was
no clear consensus among the members of the legal profession. Roughly 46 o
states and other jurisdictions have adopted new legal ethics rules
patterned on the ABA Model Rules, but most of those have altered some of o
the important rules, such as those concerning confidentiality. A few other
states have revised their legal ethics rules, drawing partly on the ABA o
Model Rules for guidance. Finally, a few states have retained their old rules
patterned on the ABA Code.
o
Beginning in 1997, an ABA task force called the Ethics 2000 □
Commission undertook a full reexamination of the ABA Model Rules, and
proposed dozens of changes. Many of the proposed changes were designed o
to repair drafting defects and to resolve ambiguities in the Model Rules.
However, the Commission also proposed a fair number of important o
substantive changes, including significant changes to the confidentiality
and conflict of interest rules. These changes provoked heated disagreement o
within the legal profession. The Commission’s changes were debated by the
House of Delegates during 2001—2002, and, although many minor changes o
were adopted, most of the most far reaching changes were rejected. With
the consideration and adoption of the substance of the recommendations of
o
the ABA Commission on Multijurisdictional Practice in August 2002, and
additional revisions to the ABA Model Rules in 2003, the ABA has issued
o
a revised version of the ABA Model Rules, and it is now up to the states o
and other jurisdictions that follow the Model Rules to consider whether to
adopt the ABA’s changes. o
D. ABA MODEL CODE OF JUDICIAL CONDUCT O
The American Bar Association has promulgated the ABA Model Code Q
of Judicial Conduct (the “CJC”) as a model for the various states to follow
in adopting their own sets of rules for judges. Q
G Sources and Application of
Ch. 2_________________ legal Ethics Rules____________ ________ 65
C E. ADVISORY OPINIONS OF ETHICS COMMITTEES
G The ABA and many state and local bar associations have ethics
committees—groups of lawyers who meet to consider, debate, and write
O opinions about questions of legal ethics. Some ethics committees publish
their opinions, and these published opinions offer useful guidance on how
c the ethics rules apply to particular fact situations. They are not binding on
GG any court or disciplinary body, but they are often cited as authority. You
can find the ABA’s formal opinions and many states’ opinions on Westlaw.
Q A convenient print source of ethics opinions is the ABA/BNA Lawyers’
Manual on Professional Conduct, a looseleaf service published jointly by
Q the American Bar Association and the Bureau of National Affairs, Inc.
Websites maintained by various state bar associations also often include
c ethics opinions.

c F. ETHICS HOT LINES

f—X Some state and local bar associations provide quick ethics research
service by telephone. For example, an attorney who has an ethics question
G can call the California State Bar Ethics Hotline at (800) 238-4427 (toll-free
inside California) or (415) 538-2150 (outside California). The hotline staff
c will refer the caller to the relevant cases, opinions, and other authorities,
but the staff does not give advice. Similarly, the ABA operates
Q ETHICSearch, an ethics research service that refers a caller to the relevant
authorities, but does not dispense advice. The ABA offers this service free
C' to ABA members. Currently, non-ABA members may receive unlimited use
of the service for one year for a fee. You can call ETHICSearch at 800-285-
C 2221 (option 7 for ABA members; option 8 for non-ABA members), or can
send an e-mail message to [email protected]. When using a
telephone service, a careful lawyer will keep a written record that includes
the question, the response, and the identity of the person who responded.
c Do lawyers really use these hot lines? In 2013, the State Bar of California
Ethics Hotline received 13,600 calls.
O
t—•.

c III. DISCIPLINE
“Discipline” refers to the penalties imposed by a disciplining agency on
c an attorney who has breached a rule or statute for which discipline can be
imposed. Three types of discipline are common: disbarment, suspension
c and reprimand (either public or private).
c The mildest form of discipline is the reprimand, which is mild in the
sense that such discipline does not limit the attorney’s right to practice law.
c A private reprimand is an unpublished, private communication in writing
from the agency to the attorney. A public reprimand is published—usually
G in publications aimed only at attorneys, but sometimes in the public press

C
66
Sources and Application of
Legal Ethics Rules Ch. 2
o
as well. It names the attorney and describes the improper conduct, thus
o
serving both an educational and a warning function. o
Suspension is a more stringent level of punishment because the
attorney is prohibited from practicing law for the term of the suspension, o
which can range from several months to several years. Moreover,
suspension may include the requirement that the attorney take and pass a o
legal ethics bar examination before being readmitted to active practice.
Sometimes the suspension is stayed and the attorney is placed on o
conditional probation. For example, an attorney recovering from addiction
to alcohol or other drugs may be permitted to continue practicing law but o
required to undergo psychiatric or other specialized supportive or
rehabilitative help and to make progress reports on that help to the
o
disciplining agency. o
The most serious type of discipline is disbarment. Although
disbarment typically means permanent removal from the practice of law, o
in some states a disbarred attorney may subsequently petition for
readmission. Sometimes the petitioning attorney must retake the regular o
bar examination and an ethics examination to be readmitted.
Violation of the disciplinary rules and some statutes constitutes
o
grounds for imposition of discipline. Moreover, an attorney can be o
disciplined for committing a crime that reflects adversely on his or her
honesty, trustworthiness, or fitness as an attorney. [ABA Model Rule 8.4.] □
The crime need not be committed in one’s role as an attorney, but can be
totally unrelated to the practice of law. Further, an attorney can be CD
disciplined for conduct that involves dishonesty, fraud, deceit, or
misrepresentation, or that prejudices the administration of justice, or for o
stating an ability to improperly influence a government agency or official,
or for helping a judge violate the law or the rules of judicial ethics, [id.]
o
Finally, discipline can be imposed for specific statutory violations—for
example, statutes that prohibit ambulance chasing, having improper CD
sexual relations with clients, or advocating the violent overthrow of the
government. [See, e.g., Cal. Bus. & Prof. Code §§ 6106.1, 6106.9, and 6151—
CD
52.] CD
Each state has procedural rules for attorney discipline cases. The
typical procedure operates something like the following. First, an o
investigator looks into conduct that has been brought to the attention of
the disciplinary agency. The investigator then reports to a disciplinary CD
board the results of the investigation and recommendations for disposition
of the matter. The board reviews the recommendations and then, as O
appropriate, dismisses the matter, requests additional investigation or
issues a private or public reprimand upon consent of the attorney.
0
Additionally, the board may file a formal complaint with the state supreme
court, seeking specific action such as reprimand, suspension, disbarment
O
CD
O
CD
 Sources and Application of
o Ch. 2_______ _________ Legal Ethics Rules____________________ 67
c or other sanctions. The supreme court then appoints a referee to conduct
hearings and make findings and recommendations, which can be either for
Q dismissal or imposition of discipline. Both the board and the attorney may
appeal the referee’s report, typically to the state supreme court, which
O makes a final disposition of the case.
C How are disciplinary matters brought to the attention of the
disciplinary agency? Usually the matter is reported by an unhappy client,
O an adversary party or attorney, or a judge. Another source is attorneys who
hear about the misconduct from a non-privileged source. In most
c jurisdictions, such an attorney is required to report the misconduct to the
disciplinary agency if the misconduct raises a substantial question about
o the other attorney’s honesty, trustworthiness, or fitness to practice. [See
generally ABA Model Rule 8.3(a).]
c Most disciplinary agencies keep careful records of all complaints about
o lawyers. A case history on a lawyer’s professional life is thus established.
Each incident—even those where no discipline or only mild discipline is
Q imposed—may have increasing impact on subsequent charges by
contributing to an overall pattern.
c ABA Model Rule 8.5 explains that under some circumstances, a lawyer
c may be subject to discipline by more than one jurisdiction for the same
instance of misconduct. In addition, most states have reciprocal discipline
Q statutes, which require lawyers who are disciplined in another jurisdiction
to report that disciplinary incident to all other jurisdictions to which they
c are admitted to practice law—which can result in additional impositions of
discipline by those other jurisdictions. (See Cal. Bus. & Prof. Code § 6049.1
(a certified copy of the final order of disciplinary proceedings elsewhere,
showing that a California lawyer has committed professional misconduct
in another jurisdiction, is conclusive evidence that the lawyer is culpable
of professional misconduct in California; “elsewhere” can include other
u states, separate courts, and also federal agencies).)
c In re Mountain
c Supreme Court of Kansas, 1986.
239 Kan. 412, 721 P.2d 264.

A formal complaint was filed against R. Keith Mountain, attorney

respondent, by Arno Windscheffel, disciplinary administrator * * * alleging
c respondent violated the Lawyers Code of Professional Responsibility.
Respondent answered denying he had violated his legal or ethical duty. A
c hearing before a disciplinary panel was held * * * . Respondent appeared
c in person and by his attorney * * * .
The panel made its final hearing report containing * * * findings of fact
o and conclusions of law * * * .

c
 SOURCES AND APPLICATION OF
68 Legal Ethics Rules Ch. 2
*★*
[A portion of the hearing panel’s findings of facts can be paraphrased
as follows. Mr. and Mrs. M, who wished to adopt a baby, contacted lawyer
Mountain through a county health worker. The health worker told the M’s
about an expectant mother named A.S. who wanted to put her baby up for
adoption. Mountain agreed to represent the M’s for $500, of which $250
was paid in advance. Mountain then contacted A.S. and her grandmother.
[Mountain told the M’s that A.S. and the grandmother needed $300 in
financial help. The M’s sent Mountain the money, and Mountain sent it on
to A.S. Mountain then convinced A.S. and the grandmother that he was
representing them, although they were on welfare and paid him no fee. The
grandmother decided that the M’s were not wealthy enough to adopt the
child. Mountain then suggested other couples who would be willing to
adopt the child and told the grandmother that she would receive $5,000
under a new arrangement with a different adopting couple.
[Shortly thereafter, Mountain sent the grandmother $500 in “prenatal
expenses." The record did not disclose whether the $500 was advanced by
Mountain or by someone else. Then Mountain called the M’s, told them that
the fetus indicated some abnormalities, that members of A.S.’s family were
attempting to prevent the adoption, that the adoption would probably be
“messy,” and that the M’s should abandon the adoption. Saddened, the M’s
agreed not to go on with the adoption. Meanwhile, Mountain had already
made arrangements with another couple to adopt the baby, and the second
couple paid Mountain a total of $17,000. Mountain did not disclose these
facts to the M’s. About two weeks later, the M’s telephoned Mountain and
asked questions about the adoption and medical tests. Mountain became
adamant and told the M’s that the adoption was off.
[The gynecologist who treated A.S. said that the medical tests on the
fetus were normal, that Mountain had never called him to find out the
results of the medical tests, and that he had never told Mountain about any
abnormalities of the fetus.
[In due course, A.S. gave birth to a normal baby girl. Mountain
arranged to have the baby adopted by the second couple. Mountain claimed
that part of the $17,000 paid to him by the second couple was for a fee
earned earlier in a different matter. Mountain paid about $750 for
postbirth care of the baby and paid the grandmother $5,000; there was no
showing about what happened to the rest of the $17,000.
[After the M’s hired a new attorney, G, to look into the matter on their
behalf, Mountain sent the M’s $250 as a refund of the fee advance they had
given him. He did not refund the $300 which the M’s had advanced to him
for financial support of A.S. When attorney G asked Mountain about the
adoption, Mountain at first said that he had represented the M’s but that
A.S. had ultimately given the baby to a second couple and that Mountain
 Sources and Application of
Ch. 2_________________ Legal Ethics Rules____________________ 69
had not handled the adoption by the second couple. Later, Mountain
changed his story and claimed that he represented only A.S. and the
grandmother throughout the entire matter.
[The hearing panel reached conclusions of law, a portion of which can
be paraphrased as follows:
[1. Mountain represented the M’s and at the same time represented
the second couple in violation of the conflict of interest rules.
[2. Mountain made a false statement to the M’s when he told them that
the fetus was abnormal when in fact he had not conferred with the
gynecologist.
[3. Mountain failed to carry out his agreement to represent the M’s in
the matter.
[4. Mountain made false statements to attorney G about Mountain’s
role in the matter.
[5. Mountain served as a procurer of a baby for adoption, which is
morally repugnant and in violation of DR 1—102(A)(5) and (6).
[6. Mountain collected a clearly excessive fee from the second couple.]
Respondent took exceptions to the panel’s final hearing report and
took this appeal. Respondent neither filed a brief nor appeared for oral
argument though personally notified.
We have examined the record and find substantial competent evidence
to support the findings of fact of the hearing panel. The facts support the
panel’s conclusions of law * * * . We conclude the panel’s recommendation
that respondent be disbarred is appropriate.
IT IS THEREFORE ORDERED that R. Keith Mountain be and he is
hereby disbarred from the practice of law in the State of Kansas and the
Clerk of the Appellate Courts is directed to strike his name from the rolls
of attorneys authorized to practice law in the State of Kansas. * * *

In re Holmay
Supreme Court of Minnesota, 1987.
399 N,W.2d 564.

Per Curiam.
This matter comes to us on the petition of the Director of the Lawyers
Professional Responsibility Board to discipline respondent attorney for
forging or procuring the forgery of his client’s signature on documents
which he falsely notarized, submitted to a court, and served on the opposing
party. * * *
[T]he director filed a petition for disciplinary action alleging that
respondent Jerome J. Holmay had forged and falsely notarized a client’s
 Sources and Application of
70 Legal Ethics Rules Ch. 2
signature. Respondent failed to answer the petition. * * * [W]e ordered the
allegations in the petition deemed admitted * * * and set a hearing to
determine the appropriate discipline. The admitted facts are: * * *
[Respondent forged or procured the forgery of his client’s signature on a
petition for dissolution of marriage and on an application for temporary
relief. He then notarized the documents, presented them to a judge, and
ultimately had them served on the opposing party. The petition is silent as
to whether the client was subsequently informed of and adopted the forged
signature.
***
The misconduct presented in this case is serious. In a previous false
notarization case we issued the following warning:
We strongly condemn such behavior and publicly censure
respondent for willfully and intentionally executing false
certificates.
Similar violations by members of the bar in future cases may
well be dealt with more severely. However, this appears to be a
case of first impression, and the Referee has found that
respondent had no intent to defraud, was unaware of the
forgeries, has been cooperative in these proceedings, and
otherwise has an unblemished record. Accordingly, the sanction
of public censure is deemed adequate but should not necessarily
be construed as a precedent in all future cases.
In re Finley, 261 N.W.2d 841, 846 (Minn. 1978). Finley can be distinguished
from the present case because Finley, unlike Holmay, believed the
signatures he notarized were genuine.
**
(The court also distinguished two other cases. In one of them, the client
had authorized the attorney to forge the client’s name on an affidavit. The
other case involved an attorney who allowed his office employees to sign
his name on various documents and to notarize the signatures.] In both
cases, the forgeries were accomplished with the permission of the
individual whose signature was forged. In contrast, Holmay did not have
his client’s permission to forge her signature. * * *
In light of this court’s previous warning to the bar regarding the
seriousness of this type of misconduct * * * we impose the following
discipline:
(1) Respondent is suspended from the practice of law for a
period of 30 days * * *.
(2) Respondent shall pay $500 costs.
 Sources and Application of
c Ch. 2_________________ Legal Ethics Rules____________________ 71
c Multiple Choice Questions
o The multiple choice questions at the end of each of the following chapters
of this book use some key words and phrases that are defined below. The
Q definitions are the ones used on the Multistate Professional Responsibility
Examination in 2014, but the MPRE definitions sometimes change. To find the
c current MPRE definitions, look in the MPRE Information Booklet, published
yearly by the National Conference of Bar Examiners.
c • Subject to discipline asks whether the conduct described in the
c question would subject the lawyer to discipline under the provisions of the ABA
Model Rules of Professional Conduct. In the case of a judge, the test question
also asks whethei' the judge would be subject to discipline under the ABA
a Model Code of Judicial Conduct.
c • May or proper asks whether the conduct referred to or described in
the question is professionally appropriate in that it:
c • would not subject the lawyer or judge to discipline; and
c is not inconsistent with the Preamble, Comments, or text of
the ABA Model Rules of Professional Conduct or the ABA
c Model Code of Judicial Conduct; and
is not inconsistent with generally accepted principles of the
law of lawyering.
• Subject to litigation sanctions asks whether the conduct described in
the question would subject the lawyer or the lawyer’s law firm to sanctions by
o a tribunal such as contempt, fine, fee forfeiture, disqualification, or other
sanction.
c • Subject to disqualification asks whether the conduct described in the
question would subject the lawyer or the lawyer’s law firm to disqualification
Q as counsel in a civil or criminal matter.
o • Subject to civil liability asks whether the conduct described in the
question would subject the lawyer or the lawyer’s law firm to civil liability,
c such as claims arising from malpractice, misrepresentation, and breach of
fiduciary duty.
o • Subject to criminal liability asks whether the conduct described in
the question would subject the lawyer to criminal liability for participation in,
c or aiding and abetting criminal acts, such as prosecution for insurance and tax
fraud, destruction of evidence, or obstruction of justice.
c 1. Attorney Alford is admitted to practice before the highest court of
o State A, but not in State B. Client Clara lives in State A, but she runs a
business in State B. She asks Alford to defend her in a lawsuit pending in a
c trial court of State B. The suit involves the proper interpretation of a State B
business tax statute. Would it be proper for Alford to represent Clara?
c A. Yes, if the State B court admits him pro hac vice, that is, for the
sole purpose of litigating this case.
o
c
o
 Sources and Application of
72 Legal Ethics Rules Ch. 2
B. Yes, because State B cannot constitutionally discriminate
against non-resident attorneys.
C. No, because Clara’s business is conducted in State B, and he is
not admitted to practice in State B.
D. No, because the suit involves the interpretation of a State B
statute, and he is not admitted to practice in State B.
2. Lawyer Linda is admitted to practice in State A, but not in State B.
Her cousin asks her to write a letter recommending him for admission to
practice law in State B. Linda knows that her cousin is educationally well-
qualified to be a lawyer, but she regards him as thoroughly dishonest. May
Linda write a letter stating that her cousin is fit to practice law?
A. No, because Linda is not a member of the bar of State B.
B. No, because Linda would be making a false statement of a
material fact.
C. Yes, because her belief about her cousin’s lack of honesty is
merely her own opinion.
D. Yes, because the bar of State B will decide for itself whether her
cousin is a person of good moral character.
3. Law graduate Samuel has passed State C’s bar examination. For
which of the following reasons could State C constitutionally refuse to admit
Samuel to practice?
I. Samuel plans to live in neighboring State D and to commute to work
at a law office in State C.
II. Samuel is an active member of the Founding Fathers Party, a small
but vocal political organization that advocates radical realignment of the
respective powers of the state and federal governments.
III. Samuel is not a citizen of the United States.
IV. Two years ago, Samuel was convicted of federal tax fraud.
A. None of the above.
B. All of the above.
C. II, III, and IV only.
D. IV only.
4. One of lawyer Leon’s clients gave him a "Little Yellow Box,” an
electronic device that enables one to make free long distance telephone calls
from a pay phone. Leon used it occasionally to call his mother in Des Moines.
Use of such a device is a misdemeanor under the applicable state law. Leon
was arrested for using the device. At his trial, he denied ever having it in his
possession. The judge did not believe him, found him guilty, and fined him
$1,000. That same week, Leon’s law partner, Leona, went backpacking in the
mountains. She was arrested by a Forest Ranger for violating a state statute
c
c Ch. 2
Sources and Application of
Legal Ethics Rules 73
o that makes it a misdemeanor to pick mushrooms in a state forest during
c certain months. Leona did not know about the statute. Leona pleaded guilty to
the charge, and the judge fined her $1,000.
CD A. Both Leon and Leona are subject to discipline.
c B. Neither Leon nor Leona is subject to discipline.
C. Leon is subject to discipline, but Leona is not.
c D. Leona is subject to discipline, but Leon is not.
o 5. When law student Sabrina was 17-years-old, a juvenile court in State
A convicted her of shoplifting a $2,500 fur coat. She served eight months in a
c juvenile correction facility and thereafter was under the supervision of a parole
officer for one year. After her parole, she completed high school, college, and
cd law school, and she led a totally law-abiding life. When Sabrina applied for
admission to practice law in State B, she was required to fill out a
o questionnaire. One question asked her to disclose "all convictions, including
juvenile convictions.” In answering that question she put "not applicable,” on
c the theory that her juvenile offense in State A was irrelevant to her present
moral character. The bar of State B did not learn about her State A conviction
CD until six months after she had been admitted to practice in State B. Is Sabrina
subject to discipline?
C A. Yes, because she withheld a material fact when she answered
the questionnaire.
O
B. Yes, because a person who has committed a crime involving
c dishonesty or false statement is disqualified from practicing law.
C. No, because her prior juvenile conviction was not relevant to her
o moral character at the time of her application to the bar.
r~\. D. No, because State B’s questionnaire is an unconstitutional
\__
invasion of privacy.
c 6. Attorney Arner is a member of the bar of State C. While on vacation
in State D, Arner was stopped by a police officer for driving a rental car 95 mph
o in a 65 mph speed zone. Arner offered the police officer five crisp $100 bills,
saying: "Do you think we can make this little problem go away?” Thereupon he
CD was arrested for attempted bribery of a police officer, a felony. He was
ultimately convicted of that offense in State D and was fined $10,000. Is Arner
o subject to discipline in State C?
CD A. No, because his conduct took place beyond the jurisdiction of
State C.
c B. Yes, because his conduct involves dishonesty and suggests that
he is unfit to practice law.
□ C. No, because his conduct was not connected with the practice of
law.

CD

c
 o
Sources and Application of
74____________________ Legal Ethics Rules________________ Ch. 2 D
D. Yes, because commission of any criminal act is grounds for O
professional discipline.
7. Client Cathcart hired lawyer Lindell to prepare an estate plan. In
O
connection with that work, Cathcart told Lindell in strict confidence about a
criminal fraud perpetrated by Cathcart’s former lawyer, Foreman. Lindell
o
urged Cathcart to report Foreman’s conduct to the state bar. For unstated Cj
reasons, Cathcart refused to do so and refused to allow Lindell to do so. What
is the proper course of conduct for Lindell in this situation: D
A. To keep the information in confidence, as Cathcart has
instructed. O
B. To speak with Foreman in confidence, to inform him what
Cathcart said, and to urge Foreman to rectify his fraud.
o
C. To report the information to the state bar, despite Cathcart’s D
instruction not to do so.
O
D. To write an anonymous letter to the state bar, relating the facts
disclosed by Cathcart.
O
Answers to the multiple choice questions will be found
in the Appendix at the back of the book. D
O

O
o
o
o
o
o
o

o
D
O
O
O
o
 Chapter Three

Beginning and Ending the Lawyer-

Client Relationship
■■■

What This Chapter Covers

I. Beginning the Lawyer-Client Relationship
A. Duty to Take Some Kinds of Cases
1. General Rule: Lawyers Are Not Public Utilities
2. Exceptions to the General Rule
3. Pro Bono Publico Service
B. Duty to Reject Some Kinds of Cases
II. Ending the Lawyer-Client Relationship
A. General Rule: Duty to Follow Through
B. Mandatory Withdrawal
1. Fired!
2. Client Not in Good Faith
3. Violation of Disciplinary Rule
4. Lawyer’s Mental or Physical Incapacity
C. Permissive Withdrawal
D. “Do I Still Get Paid?”
III. Frivolous Claims

Reading Assignment
Schwartz, Wydick, Perschbacher, & Bassett, Chapter 3.
ABA Model Rules: Rules 1.16, 1.18, 3.1, and 6.1 through 6.2.
Supplemental Reading
Hazard & Hodes:
Discussion of ABA Model Rules 1.16, 3.1, and 6.1 through 6.2 [A
discussion of lawyers duties to prospective clients, covered by
ABA Model Rule 1.18, is found at § 2.3.]

75
 Beginning and Ending the Lawyer-
76 Client Relationship Ch. 3
Restatement (Third) of the Law Governing Lawyers §§ 14, 15, 16, 17, 19,
31-33, 37, 39, and 40 (2000).

Discussion Problems
1. When attorney Sheila was admitted to law practice a few years
ago, she took the Attorney’s Oath in which she promised “never to reject,
for any consideration personal to [herjself, the cause of the defenseless or
the oppressed.” Sheila’s grandparents narrowly escaped from Austria in
1939 to avoid the Holocaust. Although her law practice is primarily
business-oriented, she has served in several cases as a vigorous and skillful
advocate of individual civil liberties. The American Nazi Party has asked
her to represent one of its members who was arrested for participating in
an allegedly illegal street rally in her city. The Party has ample funds to
pay a lawyer, but the other skilled trial lawyers in the city have refused to
get involved in the case. Sheila believes that the city’s refusal to issue a
rally permit was a violation of the First Amendment, and she believes that
she could present an effective defense. But she is repelled by the defendant
and his political beliefs. Further, she knows that her reputation and her
law practice will suffer because several of her business clients are among
the prominent citizens who actively opposed the Nazi rally.
a. Does Sheila have an ethical obligation to take the case?
b. Suppose the defendant were indigent, that the Party
could not fund his defense, and that the Public Defender could not
represent him because of a conflict of interest. If the court
appointed Sheila to defend him, may she refuse?
2. Suppose you have recently become a partner in a small law firm
that has a broad, general practice. You are attending a partnership
meeting where the item under discussion is a memorandum signed by all
three of the newly-hired associates. They have asked the firm to establish
a policy that permits and encourages every lawyer in the firm to devote the
equivalent of 100 billable hours per year to representing indigent clients.
(The lawyers in the firm average about 1,800 billable hours per year.) The
state pays a modest fee to court-appointed counsel in criminal cases, but
there is no compensation scheme for civil matters, and the state’s legal
services program has been sharply cut due to lack of public funding. One
of your partners has argued that to adopt the proposed policy, the firm will
either have to cut its present overhead, or cut the present pay of the staff
and the lawyers, or raise its fees to paying clients by about 5%. The
discussion has come to a close. How will you vote on the proposal, and why?
3. From what you have learned thus far, give five illustrations in
which a lawyer would be subject to discipline for accepting or continuing
employment in a matter.
 Beginning and Ending the Lawyer-
Ch. 3________________ Client Relationship____________________ 77
4. Judicial opinions sometimes state: "A client has a right to
discharge a lawyer at any time, with or without cause, subject to liability
for payment for the lawyer’s services.” Is there any situation in which the
first part of that statement is not true?
5. The “quantum meruit” concept is discussed in Rosenberg v. Levin,
infra. Under what circumstances is quantum meruit used? How does
quantum meruit differ from the traditional contract rule (which is
described in the same case)?
6. Last August, Florida lawyer Simon agreed to represent plaintiff
Noreen in a personal injury suit pending in Florida. Their fee agreement
provided that Simon would receive 20% of the net recovered by settlement,
or 30% of the net recovered after trial, or 40% of the net recovered after
trial and appeal. The percentages were to be computed after deducting
litigation expenses. The agreement further provided that in no event would
Simon’s fee be less than $5,000 nor more than $10,000. After Simon spent
about 100 hours on the case, Noreen fired him for no apparent reason. She
repaid $1,000 for litigation expenses he had advanced on her behalf, but
she refused to pay him any fee. Later, she hired another lawyer who
promptly settled the suit for $13,000, without incurring any additional
litigation expenses. Assume that the reasonable value of Simon’s 100
hours’ work is $6,000. What are Simon’s rights, if any, against Noreen?
7. Compare the Holmes case, infra, with the Kriegsman case, infra.
Do you disagree with the result in either case? Why was the attorney
allowed to withdraw in Holmes, but not in Kriegsman?
8. Attorney Amanda agreed to represent Client Cathie in a divorce
action. After four months of working diligently on Cathie’s case, Cathie
abruptly fired Amanda. Cathie said that she met a lawyer at an art auction
who seemed friendlier and more knowledgeable than Amanda. Cathie has
not paid Amanda for the work completed thus far. May Amanda politely
insist upon payment before sending the case file to the new lawyer?

I. BEGINNING THE LAWYER­

CLIENT RELATIONSHIP
A. PROSPECTIVE CLIENTS AND
UNSOLICITED COMMUNICATIONS
Note that the ABA Model Rules contain, at Rule 1.18, a provision
concerning a lawyer’s duties to prospective clients, such as individuals who
come to the lawyer’s office to discuss a legal situation but who have not yet
retained the lawyer. Does Model Rule 1.18 provide a clear answer for
situations where a prospective client has sent the lawyer an unsolicited e­
 Beginning and Ending the Lawyer-
78____________________Client Relationship________________ Ch. 3
o
mail message directly (having obtained the lawyer’s e-mail address from o
the law firm’s website) or has used a feature from the firm website to make
a legal inquiry? The Association of the Bar of the City of New York has o
issued an ethics opinion stating that when an individual submits an
unsolicited e-mail message to a law firm under circumstances where the
o
firm did not have a meaningful opportunity to avoid its receipt, the firm
was not precluded from representing a client who was adverse to the
o
individual in the same or a substantially related matter. See Ass’n of the o
Bar of the City of New York, Formal Op. 2001-1. The San Diego County
Bar Association similarly held that such a communication was not o
confidential and the attorney could continue to represent an existing client
adverse to the individual in the same matter. Moreover, the San Diego o
County Bar opinion authorized the lawyer to use, in ensuing litigation, the
individual’s admission made in the unsolicited communication. See San o
Diego County Bar Ass’n, Ethics Op. 2006-1.
o
o
B. DUTY TO TAKE SOME KINDS OF CASES
1. General Rule: Lawyers Are Not Public Utilities
The general rule is that lawyers are not public utilities. [See
Restatement (Third) of the Law Governing Lawyers § 14, comment b Q
(2000).] A public utility has a duty to serve anybody who wants service and
can pay for it. A lawyer need not serve just anyone who walks into the office Q
with the money in hand. Subject to the important exceptions stated below,
a lawyer may reject work for any reason that suits her. O
2. Exceptions to the General Rule O
THE ATTORNEY’S OATH
o
When you are admitted to law practice, you will take an oath, as
required by state law. In some states, the oath is in brief form—a promise o
to uphold the constitution and laws of the state and the United States, and
to perform the duties of an attorney to the best of your ability. But some o
states use this longer form:
It is the duty of an attorney:
o
a. To support the Constitution and laws of the United o
States and of this State;
b. To maintain the respect due to the courts of justice and
o
judicial officers; o
c. To counsel or maintain such actions, proceedings or
defenses only as appear to him or her legal or just, except the o
defense of a person charged with a public offense; o
c
Beginning and Ending the Lawyer-
Ch. 3 Client Relationship 79
d. To employ, for the purpose of maintaining the causes
o confided to him or her such means only as are consistent with
truth, and never to seek to mislead the judge or any judicial officer
c by an artifice or false statement of fact or law;
e. To maintain inviolate the confidence, and at every peril
Q to himself or herself, to preserve the secrets of his or her client;
O f. To advance no fact prejudicial to the honor or reputation
of a party or witness, unless required by the justice of the cause
O with which he or she is charged;
C g- Not to encourage either the commencement or the
continuance of an action or proceeding from any motive corrupt of
C passion or interest;
h. Never to reject, for any consideration personal to himself
o or herself the cause of the defenseless or the oppressed. [Emphasis
added]
c
n
\_/ II. WHO SHOULD PAY WHEN
THE CLIENT CANNOT?
c Reread ABA Model Rules 6.1 and 6.2. ABA Model Rule 6.1 is a
watered-down version of an earlier draft that said:
o
A lawyer shall [emphasis added] render unpaid public interest
c legal service. A lawyer may discharge this responsibility by
service in activities for improving the law, the legal system, or the
Q legal profession, or by providing professional services to persons
of limited means or to public service groups or organizations. A
O lawyer shall make an annual report concerning such service to
appropriate regulatory authority.
Q When the draft was released, it generated considerable heat in the
C practicing bar. Here is a typical comment:
True, many people can’t afford a lawyer. But that is a problem of
O society as a whole. It ought to be solved by a general tax to support
free legal services, not by a confiscatory levy on lawyers only.
C Should I have to bear more than my share of society’s collective
Q problem just because of the profession I am in?
What do you think of this line of argument? Would you support an ethics
C rule that requires all lawyers to perform a set amount of service pro bono
publico each year?
O In 1993, the ABA’s House of Delegates voted narrowly to amend Rule
c 6.1 to emphasize the expectation that lawyers contribute a fixed number of
hours per year to pro bono activities—with 50 hours as the default
c number—and that “a substantial majority of the (50) hours” be devoted to

c
c
 Beginning and Ending the Lawyer-
80 Client Relationship Ch. 3
serving the poor either in person or through organizations. The Rule also
calls upon lawyers to make voluntary financial contributions to
organizations serving the poor. More recently, the ABA Ethics 2000
Commission debated at length whether to recommend changing Rule 6.1
to make the pro bono obligation mandatory. The Commission ultimately
decided not to recommend that change, but to report that the present
voluntary system is not working and that the ABA should redouble its
effort to encourage voluntary pro bono service. The Rule was strengthened,
at least in its aspirational sense, by adding a new first sentence: “Every
lawyer has a professional responsibility to provide legal services to those
unable to pay.”
If lawyers are merely urged to do pro bono work, will they do it? A
February 2009 study by the ABA Standing Committee on Pro Bono and
Public Service found that 73 percent of the respondents reported providing
pro bono legal services; the average attorney in this study provided 41
hours of pro bono service. Only one-quarter of the survey respondents
reported providing 50 or more hours of pro bono service. [ABA Standing
Comm, on Pro Bono & Public Service, Supporting Justice II: A Report on
Pro Bono Work of America's Lawyers (Feb. 2009).]
In criminal matters, public funds are generally available to provide
modest compensation to private lawyers who represent indigent criminal
defendants. But public funds are generally not available to compensate
private lawyers who represent indigent persons in civil matters. May a
court nevertheless order a private lawyer to provide free legal service to an
indigent civil litigant? What do you think of the answer provided by the
court in Bothwell v. Republic Tobacco Co., below?

Bothwell v. Republic Tobacco Co.

United States District Court, District of Nebraska, 1995.
912 F.Supp. 1221.

Memorandum and Order

Piester, United States Magistrate Judge.
Before me for consideration is a motion, submitted by plaintiffs
appointed counsel, Paula Metcalf, seeking reconsideration and vacation of
my order appointing her to represent plaintiff in this case. For the reasons
set forth below, I shall grant the motion and vacate my order of
appointment.
Background
In March 1994 plaintiff Earl Bothwell, who at the time was
incarcerated at the Hastings Correctional Center, submitted to this court
a request to proceed in forma pauperis, a civil complaint, and a motion for
appointment of counsel. I provisionally granted plaintiffs request to
 Beginning and Ending the Lawyer-
Ch. 3_________________Client Relationship_____________________ 81
proceed in forma pauperis, pending receipt of trust account statements
from his correctional institution. I then ordered that plaintiffs complaint
be filed.
[Bothwell alleged he switched from smoking factory-manufactured
cigarettes to his own rolled cigarettes when federal warning labels
appeared on cigarette packages in 1969, mistakenly believing they were
safer because loose tobacco came without warning labels. In 1986 Bothwell
became aware that he suffered from emphysema, asthma, heart disease,
and ‘"bronchial and other respiratory diseases.” He later learned that the
loose tobacco products he had been using “were stronger that [sic] [factory-
produced] cigarettes and were twice as harmful and deadly.”
[Eventually the magistrate judge required defendants to respond to
Bothwell’s strict liability and breach of implied warranty of fitness claims
and granted his request for appointment of counsel.]
Following a series of motions to withdraw and appointments of
substitute counsel, I appointed Paula Metcalf as plaintiffs counsel.
***
Discussion
In. hei' brief in support other motion to reconsider and vacate [the order
appointing her as Bothwell’s counsel], Metcalf contends that my order
appointing her as counsel is “contrary to law and clearly erroneous”
because “a federal court has no statutory or inherent authority to force an
attorney to take an ordinary civil case for no compensation.”
Statutory Authority
Insofar as concerns statutory authority, Metcalf is correct. Plaintiff in
this case is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(d).
In Mallard v. United States District Court, 490 U.S. 296, 109 S.Ct. 1814,
104 L.Ed.2d 318 (1989), the United States Supreme Court held, in a 5-4
decision, that section 1915(d)3 does not authorize a federal court to require
an unwilling attorney to represent an indigent litigant in a civil case. Id.
at 300-08, 109 S.Ct. at 1817-22. In so holding, the Court focused on the
language of section 1915(d), which provides that a court may “request” an
attorney to accept a court appointment. Id. at 300-07, 109 S.Ct. at 1817—
21. The Court examined other statutes and reasoned that, when Congress
wanted to require compulsory service, it knew how to do so explicitly. The
Court concluded that by using the term “request,” Congress was
demonstrating its desire not to require such service of attorneys who are
appointed to represent indigent litigants. Id. However, the Court in
3 Section 1915(d) provides as follows: The court may request an attorney to represent any
[person claiming in forma pauperis status] unable to employ counsel and may dismiss the case if
the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious. 28 U.S.C.
§ 1915(d).
 Beginning and Ending the Lawyer-
82 Client Relationship Ch. 3
Mallard left open the question of whether federal courts possess the
inherent power to require an unwilling attorney to accept an appointment.
Id. at 310, 109 S.Ct. at 1823.
Inherent Authority
After conducting an extensive review of authority and commentary
addressing this issue, I am convinced that a federal district court does
possess the inherent power to compel an unwilling attorney to accept a civil
appointment. The origin and scope of that power are discussed below.
[The court here reviewed three categories of inherent powers identified
in the Third Circuit opinion, Eash v. Riggins Trucking Inc., 757 F.2d 557
(3d Cir.1985) (en banc).]
*★*
Specifically, then, this court’s inherent power to compel representation of
the indigent exists for two primary purposes: (1) to ensure a "fair and just”
adjudicative process in individual cases; and (2) to maintain the integrity
and viability of the judiciary and of the entire civil justice system. These
two purposes mirror the dual functions that lawyers serve in the civil
justice system. First, they act as advocates in individual cases working to
peacefully resolve civil disputes between citizens. Second, by their ready
availability to act in that capacity, they preserve the credibility of the
courts as a legitimate arm of the civil justice system. The following
discussion explores the court’s inherent authority to conscript unwilling
counsel to achieve each of the foregoing purposes.
(1) “Fair and Just” Process in Individual Cases
As noted above, in seeking to bring about the fair and just resolution’
of a case, a court may exercise its inherent power to appoint individuals to
act as “instruments” of the court. While it is established that a plaintiff has
no constitutional right to counsel in a civil case, counsel nevertheless may
be necessary in a particular civil proceeding to ensure fairness and justice
in the proceeding and to bring about a fair and just outcome.
The American legal system is adversarial in nature. * * * Attorneys,
because they are trained in the advocacy skills of cross examination and
argument, are a necessary component in a properly functioning adversarial
system. Thus, the notion that the adversarial system is an effective method
for ferreting out the truth presumes that both sides have relatively equal
access to adequate legal assistance from those trained in the art of
advocacy.
Where one side is without adequate legal representation, the
adversarial system may not be effective. * * *
If the lack of legal representation is the free choice of the
unrepresented party or if it results from factors unrelated to the indigency
 Beginning and Ending the Lawyer-
Ch. 3_________________Client Relationship_____________________ 83
of the plaintiff, our system is not offended. Where, however, one party is
unable to obtain legal representation because of indigency, the resulting
disparity of advocacy skills clearly offends the principle of “equality before
the law” underlying our system. Further, a substantial disparity in access
to legal representation caused by the indigency of one of the parties
threatens the adversarial system’s ability to produce a just and fair result.9
Access to legal representation in this country is gained primarily
through the private market. For the most part, the market is an effective
mechanism for providing legal services to those who need them. However,
the market sometimes fails to provide counsel regardless of the merits of
the claims at issue. Where the person whose claims have been rejected by
the private market is indigent, he or she may seek representation through
a legal aid organization. However, the ability of such organizations to meet
the needs of the indigent has taken a serious hit over the past fifteen years
in the form of reduced funding to the Legal Services Corporation ("LSC”),
the federal entity responsible for funding state and local legal aid offices.
In 1981, the LSC had almost reached its stated goal of providing two legal
services lawyers for every 10,000 poor persons. In 1982, the LSC budget
was slashed from $321 million to $241 million. Those funding cuts resulted
in a drastic reduction in the number of legal services attorneys, as well as
the closing of many legal aid offices nationwide. The effect of those cuts is
still felt today; to attain the 1981 ratio of lawyers to poor people, it is
estimated that the current Legal Services Corporation budget would have
to be nearly doubled. Rather than increasing that budget, however, the
current Congress is considering further cuts in legal services funding. Also
being considered are greater restrictions on the types of practice which
legal aid organizations can provide to the indigent. Compounding the
problem of legal access for the poor is the growing apathy of the private bar
to the plight of many indigent litigants. The inevitable net result of these
factors is that the poor, indeed most of the so-called “middle class,” have
less realistic access to advocacy services from lawyers.
The foregoing discussion establishes that: 1) courts possess the
inherent power to bring to their assistance those “instruments” necessary
to ensure a “fair and just” adjudicative process in individual cases; 2) in
many, if not most, cases, due to the adversarial nature of our system,
lawyers are a necessary component in ensuring such a “fair and just”
process; 3) to a significant degree, neither the private marketplace nor
public or charitable efforts provide indigent litigants with adequate access
to legal assistance; and 4) to that extent, such failure threatens the
reliability of the results of the adversarial process. On these bases, I

0 Some might argue that this same reasoning applies in all cases where there is a disparity
in the financial status of the parties because the party with greater wealth can hire a more
qualified advocate. However, I do not subscribe to the view that a more expensive attorney is
necessarily a better advocate.
 o
Beginning and Ending the Lawyer-
84___________________ Client Relationship___________________ Ch. 3 o
conclude that, when indigency is the principal reason for disparate access o
to the civil justice system in an individual case, a federal court does possess
the inherent authority to bring about a fair and just adjudicative process o
by conscripting an unwilling lawyer to represent the indigent party. A
further basis for the existence of such authority is set forth below.
o
*** o
Lawyers as Officers of the Court
o
The extent to which attorneys are linked to the judiciary, as “officers
of the court” or otherwise, has been the topic of much commentary over the o
past fifteen years.
One of the most oft-cited federal cases for the proposition that
o
attorneys are “officers of the court” is United States v. Dillon, 346 F.2d 633,
636-37 (9th Cir.1965), cert, denied, 382 U.S. 978, 86 S.Ct. 550, 15 L.Ed.2d
o
469 (1966). In an appendix to its opinion in Dillon, the Court of Appeals for
the Ninth Circuit traced the history of the officer-of-the-court doctrine to
o
English common law. The court noted that English “serjeants-at-law” were O
required “ ‘from a very early period * * * to plead for a poor man.’ ” Id. at
636 (quoting Holdsworth’s History of English Law, vol. 2, p. 491 (3d ed., O
1923)). The court further noted that, “in colonial America, there was, in
addition to the common law, a more extensive statutory recognition of the O
obligation to represent indigents upon court order.” Id. at 637. The court in
Dillon concluded that “the obligation of the legal profession to serve CD
indigents on court order is an ancient and established tradition, and that
appointed counsel have generally been compensated, if at all, only by CD
statutory fees * * * usually payable only in limited types of cases.” Id. at
635. O
The accuracy of the historical justifications for the officer-of-the-court o
doctrine extolled by the Ninth Circuit in Dillon has been questioned
recently by courts and commentators. These critics of the Dillon analysis o
contest the use of English tradition to support the doctrine. Under the
ancient English legal system there were two classes of lawyers: attorneys o
or serjeants-at-law and barristers. Serjeants-at-law were considered an
elite class of lawyers who enjoyed the privileges of the judiciary, including o
various immunities. Judicial appointments were made exclusively from
their ranks. Serjeants-at-law took an oath to serve the King’s people and CD
uphold justice and were required to accept court appointments to represent
the poor. Critics of Dillon concede that a serjeant-at-law truly was an officer
O
of the court; they contend, however, that “[h]e has no counterpart in o
American practice.” Critics claim that modern American lawyers more
closely resemble English barristers, who were not considered officers of the CD
court.
The critics also challenge the Dillon court’s reliance on colonial CD
tradition, contending that there is no clear history in the American colonies
CD
CD
O
c Ch. 3
Beginning and Ending the Lawyer-
Clientrelationship 85
o of compelled representation in the civil context. These critics conclude that
the officer-of-the-court doctrine may not properly be asserted as a
justification for compelled representation of indigents.
c The critics’ challenges to the validity of the officer-of-the-court
doctrine, while forceful, are flawed in several respects. First, the claim that
there is no direct counterpart to the serjeants-at-law in the American legal
system actually serves to underscore the void in needed representation of
indigent litigants. Because there is no special class of attorneys in the
c American system whose primary task is to provide such representation in
civil cases, and, as discussed above, the realistic opportunities available to
the poor to participate in the civil justice system are, at best, extremely
limited, there simply is, at present, no other source than the private bar
c capable of providing representation to indigents.
Second, even assuming that the historical foundation for the officer-of-
the-court doctrine is not as solid as once thought, the fact remains that
court-compelled appointments for indigents have been made for centuries.
In fact, one legal historian has traced the requirement of indigent
representation back to the ecclesiastical courts of the thirteenth century.
Third, quite apart from any role the officer-of-the-court doctrine may
Q have played in England or the colonies, that doctrine has become and is
part of the fabric of American jurisprudence.
Q Finally, critics of the officer-of-the-court doctrine have failed to
recognize the role that the availability of lawyers has played and continues
to play in maintaining the integrity of the civil justice system. Because the
ready availability of lawyers is necessary to ensuring the perception, and
indeed the reality, of fairness, their accessibility as officers of the court is
necessary not only to the preservation of the justice system itself but to the
ordered liberty of our society. For all of the foregoing reasons, I conclude
that it is inappropriate to discard the officer-of-the-court doctrine as a
justification for compelled representation of the indigent.
Monopoly of Lawyers
A further justification which has been advanced for the view that
attorneys are obligated to comply with court-ordered appointments is the
monopoly theory. Under that theory, attorneys must provide legal services
to indigents without compensation by virtue of the exclusive privilege they
have been granted to practice law. Regulation of attorney licensing limits
the number of individuals who may practice law. As a result, those
relatively few individuals who are licensed benefit financially, thereby
compensating them for any financial losses incurred by representing
indigents. Also, because meaningful access to the courts can be had only
through these licensed attorneys, they are required to represent those who
are unable to afford representation.
C

o
 Beginning and Ending the Lawyer-
86 Client Relationship Ch. 3
The monopoly theory has not escaped criticism. It has been challenged
as an inaccurate portrayal of the American legal system. Specifically,
critics have argued that no monopoly actually exists because every
individual is free to represent themselves in court or, alternatively, to
pursue a legal career. However, even if theoretically each potential litigant
in the population at large had the intellectual capacity to become a lawyer,
it is quite improbable that either their opponents or the courts in which
they are embattled would stay the pursuit of claims while they did so. As
discussed supra, meaningful access to the courts often requires
representation by someone previously trained, if not experienced, in the
practice of law. Thus, while the monopoly may not prevent a party from
gaining access to the courts, it very well may prevent the administration of
equal justice. Additionally, as one commentator has noted, “a litigant’s
freedom to pursue a legal careei’ is ‘sheer illusion’ ” due to the rigid training
program and the prohibitive costs involved in obtaining a legal education.
It has been further argued by critics of the monopoly theory that, given
the large number of attorneys in practice and competitive nature of the
legal profession, no true monopoly exists. However, it is undeniable that
licensed attorneys do benefit financially from the prohibition against the
unauthorized practice of law.
Finally, critics claim that other groups enjoying monopolies as a result
of state licensing, such as doctors, nurses, teachers, insurance agents,
brokers, and pharmacists, do not bear an obligation to provide free services
to the poor. While that is true, it misses the point. The practice of law—
that is, the representation of others before the civil courts—is not simply a
private enterprise. It is, in addition, a contribution to society’s ability to
manage its domestic affairs, a necessary condition of any civilized culture.
Attorneys have a unique relationship to government not shared by other
licensed groups. This relationship, which has been described as
“symbiotic,” places attorneys in “an intermediary position between the
court and the public” where they are “inextricably linked to the public
sector despite [their] dual position as a private businessperson.”
By virtue of this special relationship between the bench and the bar,
courts are dependent upon attorneys to aid in carrying out the
administration of justice. While other professions also contribute to private
gain and to the betterment of society’s standards of living, no other group
holds the exclusive key to meaningful participation in a branch of
government and the protection of rights. This monumental difference
between attorneys and other licensed groups justifies imposition of
different conditions on the practice of the profession.
Ethical Obligation of Lawyers
An additional justification for the court’s exercise of inherent power to
compel representation is the ethical obligation of attorneys to provide
 Beginning and Ending the Lawyer-
Ch. 3_________________Client Relationship_____________________ 87
representation to indigent litigants. This obligation arises from the law’s
ideals of professionalism and commitment to public service. In addition,
the local rules of this court require availability for such service. NELR
83.4(f) provides:
All members of the bar of this court are subject to be appointed to
represent indigent litigants. This is an ethical obligation of
attorneys in fulfillment of the underlying precepts of Canon 2 of
the Code of Professional Responsibility.
NELR 83.4(f).
The “underlying precepts of Canon 2” require, inter alia, that a lawyer
appointed to represent an indigent litigant “not seek to be excused” from
that obligation “except for compelling reasons.” Code of Professional
Responsibility, EC 2-29. Rather, the attorney is to “find time to participate
in serving the disadvantaged” and render “free legal services to those
unable to pay reasonable fees.” Id. at EC 2-25; see also Model Rule of
Professional Conduct 6.1 (“a lawyer should aspire to render * * * legal
services without fee or expectation of fee to [ ] persons of limited means”).
While these obligations are not expressed in mandatory terms, they clearly
indicate that service to the indigent is an essential characteristic of any
ethical attorney. Two aspects deserve further attention.
First, these moral and ethical obligations to provide legal services to
the poor do not exist merely to prompt the practicing lawyer to be a “good”
person, respected in the profession. Rather, they are a recognition of the
critical role of the lawyer in ensuring the fair and just adjudication of
disputes, and the need for such advocacy in ensuring the existence of the
system.
Second, these obligations are not self-executing. Platitudes are nice, of
course, but if these aspirational “goals” are to be achieved and to have any
meaning in fact, there must be some mechanism for gaining compliance. It
makes little sense to give only lip service to these ideals while the
legitimacy of the court system is being challenged by other means of
resolving private disputes. If our society is to have a legitimate civil justice
system, the courts must be empowered to take necessary measures to
create and maintain it. In a more genteel and public-spirited time, the mere
suggestion by a court that a private attorney should provide free
representation might be met with acceptance of the duty as a necessary
means to ensure fairness and the justice system itself; perhaps that history
contributes to the lack of mandatory requirements today. In any event, I
view the attorney’s ethical obligation to render services to the poor as the
“flip side” of the court’s inherent authority to provide “instruments” to
ensure fairness and justice, and to maintain the relevance of the court
system in resolving civil disputes. Both serve the same end: the
preservation of a civil means to resolve private disputes.
 Beginning and Ending the Lawyer-
88 Client Relationship Ch. 3
A “New” Model?
As one commentator has recognized, the foregoing justifications can be
combined into a cogent model justifying the exercise of inherent power to
compel representation of the indigent. * * *
Our governmental system is built partially upon the concept of citizens
being able to redress their grievances and resolve their civil disputes in
courts. A judiciary committed to observing notions of fairness, justice, and
equality before the law is of paramount importance in maintaining public
confidence in that system. Lawyers are essential in maintaining the system
because the only realistic way the populace at large can obtain “equal
justice” is through the advocacy of those trained in the law. If public
confidence in the system wanes, in time, people will find, and indeed
already have found, other, less civil, methods of resolving their differences.
Thus, attorneys occupy a unique role in preserving the ordered liberty
included in the concept of “domestic tranquility.” They are therefore vital
to preserving the viability of the third branch of government.
In accordance with the foregoing discussion, I conclude that, despite
authority suggesting otherwise, this court possesses the inherent power to
compel representation of an indigent litigant. I further conclude that there
are ample historical and theoretical justifications for the existence of that
power.
However, the inquiry does not end there. A question remains as to
whether that power should be exercised in this particular case.
Necessity of Exercising Authority
In deciding whether to exercise the authority to compel representation
I first note that a court must exercise its inherent powers “with restraint
and discretion.” The common thread running through inherent powers
jurisprudence is the concept of necessity. * * * Thus, while this court
possesses the inherent power to compel representation of an indigent
plaintiff, the power should be exercised only where reasonably necessary
for the administration of justice. In other words, the appointment of
counsel must be necessary to bring about a fair and just adjudicative
process.
In * * * determining whether counsel should be appointed for an
indigent plaintiff, the court should consider such factors as (1) the factual
complexity of the case, (2) the ability of the plaintiff to investigate the facts,
(3) the existence of conflicting testimony, (4) the plaintiffs ability to present
his claims and (5) the complexity of the legal issues. An additional factor
* * * is the plaintiffs ability to obtain counsel on his own. A plaintiff, before
seeking appointment of counsel by the court, must diligently seek out
private representation. Plaintiff alleges that he “tried several times * * * to
get an attorney [] in the Des Moines, Iowa area” to represent him.
c
c Ch. 3
Beginning and Ending the Lawyer-
Client Relationship 89
c Notwithstanding plaintiffs apparent diligence, he has failed to obtain
c private counsel.
For reasons set forth more fully below, I conclude that plaintiffs
c failure to obtain private counsel was not the result of his indigency but
rather a result of the “marketability,” or lack thereof, of his claims. This
c “marketability” analysis, which I believe to be a proper additional
c consideration in determining whether to appoint counsel, involves an
examination of the nature and circumstances of a particular case to
o determine whether the litigant’s failure to obtain counsel is attributable to
indigence, or instead to any of a number of other factors activated in the
c marketplace but unrelated to indigence. It requires some analysis of the
market, the case, and the litigant, rather than a face-value acceptance of
o the market’s exclusion of the litigant’s claims as a true indicator of the
claims’ merit. Thus, the “marketability” analysis involves several steps.
c The first step in the “marketability” analysis is to ask whether,
realistically, there is a “market” of lawyers who practice in the legal area
c of the plaintiffs claims. Many indigent litigants, particularly prisoners,
raise civil rights claims pursuant to 42 U.S.C. § 1983. There are relatively
c few private attorneys who practice in the area of civil rights. Also, there
c are few, if any, lawyers willing to assume cases on a contingent-fee basis
where the indigent plaintiff primarily seeks forms of relief other than
o monetary damages, such as injunctive or declaratory relief. As a result, in
many cases, there simply is no true “market” to look to when determining
c whether an indigent plaintiff should be appointed counsel. In such cases,
there should be no further inquiry into the “marketability” of a plaintiffs
c claims. Rather, the appointment of counsel should rest on those other
factors commonly used in determining whether to appoint counsel.
c In cases where such a “market” of lawyers is found to exist, a second
o question must be addressed: Does the plaintiff have adequate access to that
market? This inquiry is necessary for two major reasons. First, many
o indigent litigants are physically unable to access private counsel regardless
of the merits of their claims. This is especially true where the litigant is
o incarcerated. The practical ability of prisoners and other institutionalized
persons to communicate with private counsel is severely restricted. Second,
c there may be communication barriers of language or language skills;
barriers of physical, emotional, or mental disabilities; or educational or
c cultural barriers that block understanding between attorney and client.
The point is that the existence of lawyers “out there” in the private market
c does not establish their accessibility to a particular plaintiff. Where a
“market” of attorneys exists but a party does not have adequate, realistic
c access to it, no further “marketability” inquiry is necessary because such
inquiry could not yield a reliable conclusion regarding the involvement of
c indigence as a factor in the litigant’s failure to obtain counsel.
c
c
 Beginning and Ending the Lawyer-
90 Client Relationship Ch. 3
If there is a market and the litigant had realistic access to it, the third
step in the “marketability” analysis must be performed. That step requires
an examination of the typical fee arrangements used in the particular area
of the law implicated by the indigent plaintiffs complaint. Specifically, if
contingent-fee or other low-cost financing arrangements are generally
available in the area of law and would be feasible for the plaintiff, further
examination is proper.
* * ir
Once it is determined that an accessible market exists, that the
plaintiff has the ability to access that market, and that feasible fee
arrangements are available, the final and most important step in the
analysis must be performed. The court must determine whether the
market’s rejection of the party’s claims was the result of indigency, for, as
noted above, indigency is the touchstone which authorizes the court to
exercise the inherent power to correct unequal access to advocacy services.
There are many factors to consider when a lawyer is approached about
taking a person’s claims into litigation. These factors might include, but
would not be limited to, the merits of the claims; the existence of precedent
to support the claims; the costs of investigating the claims, handling the
discovery needed to prepare the case for trial, and trying the case; the
relationship of those costs to the amount of a likely recovery, discounted by
the probability of recovery; the lawyer’s time available to pursue the claims
and the impact upon his/her other practice obligations, as well as upon
those of partners or associates; the likeability of the litigant; the popularity
of the claims; and the potential settlement value of the claims. So long as
the market’s rejection of the claims was based on the interplay of these and
other such factors, and not on the indigency of the plaintiff, the notions of
equal justice discussed above are not offended and compelling an attorney
to represent that plaintiff is not necessary to the achievement of a fair and
just adjudicative process.
Applying the foregoing “marketability” analysis to this case, I first
conclude that there was an adequate “market” of lawyers practicing in the
general area of plaintiffs claims. Plaintiff raises product liability claims,
as opposed to civil rights claims under 42 U.S.C. § 1983. As such, a greater
number of private attorneys were available to represent him than would
be for a typical indigent litigant.
***
I further conclude that plaintiff had ready access to that “market” of
lawyers. Plaintiff is not incarcerated nor has he alleged any other
substantial barriers which might have prevented him from communicating
with private attorneys. He thus had the unfettered ability to communicate
with private attorneys in his immediate locale and elsewhere. Additionally,
many of the attorneys who work in products liability and personal injury
 Beginning and Ending the Lawyer-
Ch. 3 Client Relationship 91
claims do so on a contingent fee basis. Under a contingent fee arrangement,
there typically is no requirement that the plaintiff advance costs, although
the plaintiff would remain liable for them ultimately. Thus, despite
plaintiffs indigency, there were feasible fee arrangements available to
plaintiff.
The foregoing factors indicate that, unlike most cases initiated by
indigent litigants, there was a “market” of private attorneys for plaintiffs
claims and that, unlike most indigent litigants, plaintiff had open access to
that market and has, in fact, accessed that market, albeit unsuccessfully.
It thus is proper to determine whether that market’s rejection of plaintiffs
claims was the result of his indigency. ■
I conclude that it was not. The mere existence of indigency as a
condition of the plaintiff did not prevent him from suggesting to lawyers
that they consider his claims. Rather, he has had the same opportunity as
middle-or upper-class plaintiffs to subject his claims to the scrutiny of tort
attorneys. That this “market” of attorneys has thus far rejected his claims
is the result of factors unrelated to his indigency. Primary among these
factors is undoubtedly the enormous cost of litigating claims against
tobacco companies.
***
Plaintiff asserts that most of the attorneys he contacted requested
payment of a retainer which he was unable to afford. However, due to the
enormous costs involved in this type of litigation and the unlikelihood of
settlement, the amount of money required for an adequate retainer would
likely be so great that even a middle-class or upper-middle-class citizen
would be unable to afford it. As such, the rejection of plaintiffs claims was
not based on his indigency, but rather on marketability factors such as the
expenses involved and the unlikelihood of settlement.
Because it is the lack of marketability of his claims, as opposed to his
indigency, which has prevented plaintiff from obtaining counsel, the
notions of equal justice discussed above have not been offended. As such, it
is not reasonably necessary to the administration of justice for this court to
compel Metcalf to represent plaintiff. Accordingly, I shall not exercise this
court’s inherent authority to do so.22
***

24 Because I decline to exercise the court’s inherent authority. I need not address Metcalfs
contention that the exercise of that authority in this case would contravene the Fifth and
Thirteenth Amendments of the Constitution. However, the majority of courts which have
addressed those issues have found no constitutional violations.
 o
92
BEGINNING AND ENDING THE LAWYER-
Client Relationship Ch. 3
o
III. OUTLOOK FOR THE FUTURE o
Because the court did not finally appoint Metcalf to represent o
Bothwell, Judge Piester declined to address Metcalfs objections to the
appointment based on the Fifth and Thirteenth Amendments. Although o
Metcalfs claim of involuntary servitude seems far-fetched, a California
appellate court, in Cunningham, v. Superior Court of Ventura County, 177 o
Cal.App.3d 336, 222 Cal.Rptr. 854 (2d Dist. 1986), concluded that an
attorney ordered to represent an indigent defendant in a paternity action o
without compensation was denied equal protection of the law. Cunningham,
is flawed as a constitutional equal protection case. In Madden v. Township
o
of Delran, 126 N.J. 591, 601 A.2d 211 (1992), the New Jersey Supreme
Court decided these same constitutional claims against a lawyer who was
o
assigned by the court to represent an indigent criminal defendant without o
pay. Nevertheless, Cunningham and Madden both express the courts’
reluctance to find lawyers duty-bound to represent indigent clients without o
compensation.
The Supreme Court has never directly considered the constitutionality o
of mandatory pro bono duties. The closest it came was in Mallard v. U.S.
Dist. Court for Southern Dist. of Iowa, 490 U.S. 296, 109 S.Ct. 1814, 104
o
L.Ed.2d 318 (1989) (cited in Bothwell), with inconclusive results. Mallard
was an Iowa lawyer specializing in bankruptcy and securities law. The
o
Iowa bar operates a Volunteer Lawyers Project (VLP), under which lawyers
are randomly selected for assignment to parties appearing in forma
o
pauperis in federal court under 28 U.S.C.A. § 1915(d). In June 1987, VLP o
asked Mallard to represent three prison inmates in a § 1983 civil rights
action against prison officials. Mallard filed a motion to withdraw with the o
district court, claiming that he was not a litigator and that accepting the
case would violate his ethical obligation to provide competent o
representation. He also asserted that the mandatory appointment
exceeded the court’s authority under § 1915(d) which provides, “The court o
may request an attorney to represent” an indigent litigant. The district
court denied Mallard’s motion, and the Supreme Court reversed in a 5-4 o
decision.
o
The Court held that § 1915(d) “does not authorize coercive
appointments of counsel,” but limited its decision to the specific language o
of § 1915(d). If Congress had intended assignments to be mandatory, it
would have used “appoint” or “assign” or other mandatory language instead o
of “request.” Accordingly, the Court left open the possibility that a court
may have inherent power to require a lawyer to represent any indigent o
party without compensation. The majority cautioned:
We do not mean to question, let alone denigrate, lawyers’ ethical
o
obligation to assist those who are too poor to afford counsel, or to o
suggest that requests made pursuant to § 1915(d) may be lightly
o
o
o
 Beginning and Ending the Lawyer-
Ch. 3Client Relationship______________________________________ 93
declined because they give rise to no ethical claim. On the
contrary, in a time when the need for legal services among the
poor is growing and public funding for such services has not kept
pace, lawyers’ ethical obligations to volunteer their time and skills
pro bono publico is manifest.
[490 U.S. at 310, 109 S.Ct. at 1822—23.] Justice Kennedy, concurring,
added:
Our decision today speaks to the interpretation of a statute,
to the requirements of the law, and not to the professional
responsibility of the lawyer. Lawyers, like all those who practice
a profession, have obligations to the State. Lawyers also have
obligations by virtue of their special status as officers of the court.
Accepting a court’s request to represent the indigent is one of
those traditional obligations.
[490 U.S. at 310—11, 109 S.Ct. at 1823.] The four dissenters criticized the
majority’s narrow and technical approach to the statute. In addition, they
argued Mallard had joined the Iowa bar knowing of the implicit obligation
to participate in the VLP. They concluded a more accurate interpretation
of the word “request,” would be “respectfully command.”

Ruskin v. Rodgers
Appellate Court of Illinois, 1979.
79 Ill.App.3d 941, 35 IIl.Dec. 557, 399 N.E.2d 623.

[Plaintiff sued defendant for specific performance of a written

agreement for purchase of an apartment building and its conversion into
condominiums. Plaintiff prevailed at trial. On appeal, defendant charged
numerous errors, including the following.]
Defendant contends he was deprived of a fair trial because of denial by
the trial court of defendant’s motions for continuance and substitution of
attorneys. * * * [Defendant requested a continuance * * * two days before
the previously set trial date.
In matters of this kind, the trial court possesses broad discretion in
allowing or denying a motion for continuance. Denial of such a motion will
not be disturbed on appeal unless there has been a manifest abuse of
discretion or a palpable injustice. * * * Furthermore, because of the
potential inconvenience to the parties, witnesses, and the court, especially
grave reasons for granting a continuance must be given once a case has
reached the trial stage.
In the case before us, the trial court denied a motion two days before
trial. We cannot say the trial court manifestly abused its discretion or that
its action resulted in a palpable injustice. The record does not reflect any
lack of preparation by any of the able counsel in the trial court.
 Beginning and Ending the Lawyer-
94____________________Client Relationship___________________ Ch. 3
Defendant further contends the trial court erred in denying the motion
for substitution of attorneys during the course of trial. Defendant contends
that an individual has an absolute right to replace his attorney at any time
with or without cause.
***
In the case before us, defendant attempted to discharge his attorney
during the course of the trial. The attorney was at that time cross-
examining the first witness. To allow defendant to substitute attorneys at
this point would have been extremely disruptive to the trial and would have
resulted in a significant and prejudicial delay. This is particularly true
where, as here, the impetus behind the discharge of the attorney appeared
to be predicated upon emotional whim rather than upon any apparent
sound reason.
The [two] cases cited by defendant in support of the proposition that a
client has an absolute right to discharge his attorney at all times are
readily distinguishable. * * * Neither case goes to the issue of substitution
of attorneys during the course of a trial. We find no error in this regard.

Rosenberg v. Levin
Supreme Court of Florida, 1982.
409 So.2d 1016.

The issue to be decided concerns the proper basis for compensating an

attorney discharged without cause by his client after he has performed
substantial legal services under a valid contract of employment. * * *
We hold that a lawyer discharged without cause is entitled to the
reasonable value of his services on the basis of quantum meruit, but
recovery is limited to the maximum fee set in the contract entered into for
those services. We have concluded that without this limitation, the client
would be penalized for the discharge and the lawyer would receive more
than he bargained for in his initial contract. * * *
The facts of this case reflect the following. Levin hired Rosenberg and
Pomerantz to perform legal services pursuant to a letter agreement which
provided for a $10,000 fixed fee, plus a contingent fee equal to fifty percent
of all amounts recovered in excess of $600,000. Levin later discharged
Rosenberg and Pomerantz without cause before the legal controversy was
resolved and subsequently settled the matter for a net recovery of
$500,000. Rosenberg and Pomerantz sued for fees based on a “quantum
meruit” evaluation of their services. After lengthy testimony, the trial
judge concluded that quantum meruit was indeed the appropriate basis for
compensation and awarded Rosenberg and Pomerantz $55,000. The
district court also agreed that quantum meruit was the appropriate basis
for recovery but lowered the amount awarded to $10,000, stating that
 Beginning and Ending the Lawyer-
Ch. 3_________________ client Relationship______________________95
recovery could in no event exceed the amount which the attorneys would
have received under their contract if not prematurely discharged.
The issue submitted to us for resolution is whether the terms of an
attorney employment contract limit the attorney’s quantum meruit
recovery to the fee set out in the contract. This issue requires, however,
that we answer the broader underlying question of whether in Florida
quantum meruit is an appropriate basis for compensation of attorneys
discharged by their clients without cause where there is a specific
employment contract. The Florida cases which have previously addressed
this issue have resulted in confusion and conflicting views.
**★
There are two conflicting interests involved in the determination of the
issue presented in this type of attorney-client dispute. The first is the need
of the client to have confidence in the integrity and ability of his attorney
and, therefore, the need for the client to have the ability to discharge his
attorney when he loses that necessary confidence in the attorney. The
second is the attorney’s right to adequate compensation for work
performed. To address these conflicting interests, we must consider three
distinct rules.
Contract Rule
The traditional contract rule adopted by a number of jurisdictions
holds that an attorney discharged without cause may recover damages for
breach of contract under traditional contract principles. The measure of
damages is usually the full contract price, although some courts deduct a
fair allowance foi' services and expenses not expended by the discharged
attorney in performing the balance of the contract. Some jurisdictions
following the contract rule also permit an alternative recovery based on
quantum meruit so that an attorney can elect between recovery based on
the contract or the reasonable value of the performed services.
Support for the traditional contract theory is based on: (1) the full
contract price is arguably the most rational measure of damages since it
reflects the value that the parties placed on the services; (2) charging the
full fee prevents the client from profiting from his own breach of contract;
and (3) the contract rule is said to avoid the difficult problem of setting a
value on an attorney’s partially completed legal work.
Quantum Meruit Rule
To avoid restricting a client’s freedom to discharge his attorney, a
number of jurisdictions in recent years have held that an attorney
discharged without cause can recover only the reasonable value of services
rendered prioi' to discharge. This rule was first announced in Martin u.
Camp, 219 N.Y. 170, 114 N.E. 46 (1916), where the New York Court of
Appeals held that a discharged attorney could not sue his client for
 o
Beginning and Ending the Lawyer-
96____________________Client Relationship___________________ Ch. 3 o
damages for breach of contract unless the attorney had completed o
performance of the contract. The New York court established quantum
meruit recovery for the attorney on the theory that the client does not o
breach the contract by discharging the attorney. Rather, the court
reasoned, there is an implied condition in every attorney-client contract
o
that the client may discharge the attorney at any time with or without
cause. With this right as part of the contract, traditional contract principles
o
are applied to allow quantum meruit recovery on the basis of services
performed to date. Under the New York rule, the attorney’s cause of action
o
accrues immediately upon his discharge by the client, under the reasoning Q
that it is unfair to make the attorney’s right to compensation dependent on
the performance of a successor over whom he has no control. O
The California Supreme Court, in Fracasse v. Brent, 6 Cal.3d 784, 494 /—\
P.2d 9,100 Cal.Rptr. 385 (1972), also adopted a quantum meruit rule. That
court carefully analyzed those factors which distinguish the attorney-client Q
relationship from other employment situations and concluded that a
discharged attorney should be limited to a quantum meruit recovery in Qj
order to strike a proper balance between the client’s right to discharge his
attorney without undue restriction and the attorney’s right to fair Q
compensation for work performed. The Fracasse court sought both to
provide clients greater freedom in substituting counsel and to promote O
confidence in the legal profession while protecting society’s interest in the
attorney-client relationship. O
Contrary to the New York rule, however, the California court also held
that an attorney’s cause of action for quantum meruit does not accrue until
o
the happening of the contingency, that is, the client’s recovery. If no
recovery is forthcoming, the attorney is denied compensation. The
o
California court offered two reasons in support of its position. First, the
result obtained and the amount involved, two important factors in
o
determining the reasonableness of a fee, cannot be ascertained until the f—
occurrence of the contingency. Second, the client may be of limited means
and it would be unduly burdensome to force him to pay a fee if there was o
no recovery. The court stated that: “[SJince the attorney agreed initially to
take his chances on recovering any fee whatever, we believe that the fact o
that the success of the litigation is no longer under his control is insufficient
to justify imposing a new and more onerous burden on the client.” Id. at o
792, 494 P.2d at 14, 100 Cal.Rptr. at 390.
Quantum Meruit Rule Limited By The Contract Price
o
The third rule is an extension of the second that limits quantum o
meruit recovery to the maximum fee set in the contract. This limitation is
believed necessary to provide client freedom to substitute attorneys □
without economic penalty. Without such a limitation, a client’s right to
o
o
o
o
c
Beginning and Ending the Lawyer-
Ch. 3 Client Relationship 97
Q
discharge an attorney may be illusory and the client may in effect be
Q penalized for exercising a right.
The Tennessee Court of Appeals, in Chambliss, Bahner & Crawford v.
Luther, 531 S.W.2d 108 (Tenn.Ct.App.1975), expressed the need for
o limitation on quantum meruit recovery, stating: ‘It would seem to us that
the better rule is that because a client has the unqualified right to
Q discharge his attorney, fees in such cases should be limited to the value of
the services rendered or the contract price, whichever is less.” 531 S.W.2d
C at 113. In rejecting the argument that quantum meruit should be the basis
for the recovery even though it exceeds the contract fee, that court said:
Q To adopt the rule advanced by Plaintiff would, in our view,
encourage attorneys less keenly aware of their professional
c responsibilities than Attorney Chambliss * * * to induce clients to
lose confidence in them in cases where the reasonable value of
c their services has exceeded the original fee and thereby, upon
o being discharged, reap a greater benefit than that for which they
had bargained.
c 531 S.W.2d at 113. Other authorities also support this position.
Conclusion
We have carefully considered all the matters presented, both on the
c original argument on the merits and on rehearing. It is our opinion that it
is in the best interest of clients and the legal profession as a whole that we
o adopt the modified quantum meruit rule which limits recovery to the
maximum amount of the contract fee in all premature discharge cases
Q involving both fixed and contingency employment contracts. The attorney­
client relationship is one of special trust and confidence. The client must
c rely entirely on the good faith efforts of the attorney in representing his
c- interests. This reliance requires that the client have complete confidence
in the integrity and ability of the attorney and that absolute fairness and
Q candor characterize all dealings between them. These considerations
dictate that clients be given greater freedom to change legal
O representatives than might be tolerated in other employment
relationships. We approve the philosophy that there is an overriding need
C to allow clients freedom to substitute attorneys without economic penalty
as a means of accomplishing the broad objective of fostering public
c confidence in the legal profession. Failure to limit quantum meruit
recovery defeats the policy against penalizing the client for exercising his
o right to discharge. However, attorneys should not be penalized either and
should have the opportunity to recover for services performed.
c Accordingly, we hold that an attorney employed under a valid contract
J who is discharged without cause before the contingency has occurred or
before the client’s matters have concluded can recover only the reasonable
c value of his services rendered prior to discharge, limited by the maximum

c
 BEGINNING AND ENDING THE LAWYER-
98 Client Relationship Ch. 3
contract fee. We reject both the traditional contract rule and the quantum
meruit rule that allow recovery in excess of the maximum contract price
because both have a chilling effect on the client’s power to discharge an
attorney. Under the contract rule in a contingent fee situation, both the
discharged attorney and the second attorney may receive a substantial
percentage of the client’s final recovery. Under the unlimited quantum
meruit rule, it is possible, as the instant case illustrates, for the attorney
to receive a fee greater than he bargained for under the terms of his
contract. Both these results are unacceptable to us.
We further follow the California view that in contingency fee cases, the
cause of action for quantum meruit arises only upon the successful
occurrence of the contingency. If the client fails in his recovery, the
discharged attorney will similarly fail and recover nothing. We recognize
that deferring the commencement of a cause of action until the occurrence
of the contingency is a view not uniformly accepted. Deferral, however,
supports our goal to preserve the client’s freedom to discharge, and any
resulting harm to the attorney is minimal because the attorney would not
have benefitted earlier until the contingency’s occurrence. There should, of
course, be a presumption of regularity and competence in the performance
of the services by a successor attorney.
In computing the reasonable value of the discharged attorney’s
services, the trial court can consider the totality of the circumstances
surrounding the professional relationship between the attorney and client.
Factors such as time, the recovery sought, the skill demanded, the results
obtained, and the attorney-client contract itself will necessarily be relevant
considerations.
We conclude that this approach creates the best balance between the
desirable right of the client to discharge his attorney and the right of an
attorney to reasonable compensation for his services. * * *

Holmes v. Y. J.A. Realty Corp.

Supreme Court of New York, Appellate Division, 1987.
128 A.D.2d 482, 513 N.Y.S.2d 415.

[Attorney Donald J. Goldman appealed from the denial of his motion

to be relieved as counsel for the defendants.] Plaintiff brought this action
to recover damages for personal injuries allegedly sustained when she
slipped and fell on a defective step at an apartment building owned by
defendants. Since defendants maintained no liability insurance coverage,
they independently retained Goldman to undertake their defense.
Defendant Y.J.A. Realty Corp. (“Y.J.A.”) is the landlord of the premises
* * * [and] defendant Yori Abrahams is the sole shareholder, officer and
director of the corporation.
 Beginning and Ending the lawyer-
Ch. 3 Client Relationship 99

It appears that a written retainer agreement was executed by

Abrahams on behalf of himself and Y.J.A. when Goldman was hired by
them. This retainer agreement provided that Goldman’s legal fees would
be billed periodically at the rate of $125 per hour for law office activity and
$400 per day for each court appearance. The record contains Goldman’s
detailed itemized bill * * * for his legal services showing a balance due from
these clients of $2,275.30 after crediting a payment on account of $3,500.
Goldman averred that although a demand for payment of this bill had been
made by him upon defendants for a period of over five months prior to his
application to be relieved, defendants not only refused to make any
payment (despite their financial ability to do so), but also that defendant
Abrahams had verbally berated and abused him by accusations of
disloyalty and conflict of interest. * * *
***
[O]nce representation of a client in litigation has commenced, counsel’s
right to withdraw is not absolute. Here, however, that is the beginning and
not the end of the inquiry. DR 2-110(C)(1)(d) of the Code of Professional
Responsibility states that an attorney’s withdrawal from employment is
permissible where a client “renders it unreasonably difficult for the lawyer
to carry out his employment effectively.” DR 2-110(C)(1)(f) provides for like
relief where a client “deliberately disregards an agreement or obligation to
the lawyer as to expenses and fees.” Where a client repudiates a reasonable
fee arrangement there is no obligation on the part of counsel to finance the
litigation or render gratuitous services. * * * This application was
supported by a detailed statement of legal services rendered which is an
appropriate consideration on an application of this kind. * * * We note
further that although the litigation has been pending for three years, no
note of issue has yet been filed. Thus defendants will have ample time to
retain new counsel if they be so advised. Nor will plaintiff be visibly
prejudiced by any delay in trial attributable to this withdrawal. * * * [The
motion to withdraw is granted.]

KRIEGSMAN V. KRIEGSMAN
Superior Court of New Jersey, Appellate Division, 1977.
150 N.J. Super. 474. 375 A.2d 1253.

Appellants Messrs. Rose, Poley, Bromley and Landers (hereinafter

“the Rose firm”) appeal from an order of the Chancery Division denying
their application to be relieved as attorneys for plaintiff Mary-Ann
Kriegsman in this matrimonial action.
On December 22, 1975, plaintiff, who had been previously represented
by other counsel, retained the Rose firm to represent her in a divorce action
against her husband, defendant Bernard Kriegsman. The Rose firm
requested and received consent to substitution of attorneys from plaintiffs
 Beginning and Ending the Lawyer-
100 Client Relationship Ch. 3
former attorney. Plaintiff then paid an initial retainer of $1,000, plus $60
in court costs, with the understanding that she would be responsible for
additional fees and expenses as litigation progressed. In March 1976
plaintiff paid the Rose firm another $1,000, plus $44 which was to be
applied against costs.
During the 3% months that the Rose firm represented plaintiff prior
to its motion the firm had made numerous court appearances and had
engaged in extensive office work in plaintiff’s behalf. The unusual amount
of work required was necessitated in part by the fact that defendant
appeared pro se, was completely uncooperative and had refused to comply
with some of the orders entered by the court. As of April 5, 1976 the Rose
firm alleged that it had spent 110 hours on plaintiffs case, billed at
$7,354.50, and had incurred disbursements of approximately $242. Since,
by then, plaintiff was on welfare and since she apparently did not have
sufficient funds to pay the additional fees incurred, the Rose firm
contended that they were entitled to be relieved from further
representation. Plaintiff opposed the application before the court, pointing
out
First of all, this case, I think, has accumulated a file this
thick. I think at this point, for another attorney to step in, it would
be very difficult to acquaint himself with every motion that has
been brought up before this court. I feel that Mr. Koserowski [an
associate in the Rose firm] has been with me, representing me, for
four months, and when this case finally does go to trial, hopefully
soon, he has all this knowledge at his fingertips. Whereas another
attorney would have to, I don’t know how they can, wade through
all of this, and really become acquainted with it. That’s the first
thing. Secondly, when I first went to this law firm, I spoke to Mr.
Rose, and he knew exactly my circumstances. He knew that there
were very few assets in the marriage. He knew that I would have
to borrow money from relatives to pay the thousand dollar
retainer fee that they asked for. They knew that my husband was
going to represent himself, which would be a difficult situation.
They also knew that he had done certain bizarre things, such as
sending letters to people, and doing strange things; so, therefore,
we might expect a difficult case from him. Yet, they consented to
take my case. Of course, I don’t think any attorney can guess,
when he consents to represent somebody, what might occur. I
imagine some cases go to trial immediately things get resolved,
and my case is probably the other extreme, where everything
possible has happened. I think it’s unfortunate, and I think
they’ve done a very fine job of representing me. I feel they should
continue.
C? Ch. 3
Beginning and Ending the Lawyer-
Client Relationship 101
o Judge Cariddi in the Chancery Division agreed with plaintiff and
o denied the application of the Rose firm, but set the case down for trial
within the month. The Rose firm appealed.
o ***

Cj When a firm accepts a retainer to conduct a legal proceeding, it

impliedly agrees to prosecute the matter to a conclusion. The firm is not at
Q liberty to abandon the case without justifiable or reasonable cause, or the
consent of its client. We are firmly convinced that the Rose firm did not
O have cause to abandon plaintiffs case, and that the trial judge properly
exercised his discretion when he denied the firm’s application and
C scheduled an early trial date. It was to plaintiffs and the firm’s advantage
that the matter be heard and disposed of as expeditiously as possible. With
Q trial imminent, it would be extremely difficult for plaintiff to obtain other
representation, and therefore she clearly would be prejudiced by the Rose
O firm’s withdrawal.

Since the Rose firm undertook to represent plaintiff and demanded

o and was paid a retainer of $2,000, they should continue to represent
plaintiff through the completion of trial. The firm should not be relieved at
Cj this stage of the litigation merely because plaintiff is unable to pay to them
all of the fees they have demanded. See Drinker, Legal Ethics, 140, n. 4
c (1953). We are not unmindful of the fact that the Rose firm has performed
substantial legal services for plaintiff and clearly is entitled to reasonable
o compensation therefor. Nevertheless, an attorney has certain obligations
c and duties to a client once representation is undertaken. These obligations
do not evaporate because the case becomes more complicated or the work
Cj more arduous or the retainer not as profitable as first contemplated or
imagined. Attorneys must never lose sight of the fact that “the profession
Cj is a branch of the administration of justice and not a mere money-getting
trade.” Canons of Professional Ethics, No. 12. As Canon 44 of the Canons
Cj of Professional Ethics so appropriately states: “The lawyer should not
throw up the unfinished task to the detriment of his client except for
c reasons of honor or self-respect.” Adherence to these strictures in no way
violates the constitutional rights of the members of the firm.
Q
Affirmed.
0
IV. FRIVOLOUS CLAIMS
o ABA Model Rule 3.1 prohibits an attorney from taking a frivolous legal
c position—that is, a position that, undei' the facts, has no basis in existing
law and that cannot be supported by a good faith argument for extending,
c modifying, or reversing the existing law. Under ABA Model Rule 1.16, an
attorney must refuse employment (or must withdraw from employment) if
Q

o
 o
Beginning and Ending the Lawyer-
102 Client Relationship Ch. 3 o
the employment would require the attorney to violate a disciplinary rule or o
other law.
Aside from professional discipline, what might happen to an attorney
o
who pursues a frivolous claim on behalf of a client? One possibility is a suit o
against the attorney and client by the adversary for malicious prosecution.
That tort requires the adversary to prove four elements: (1) the initiation o
or continuation of the underlying action; (2) lack of probable cause; (3)
malice; and (4) favorable termination of the underlying action. [See D
Restatement (Second) of Torts, §§ 674-681B (1977).] In testing probable
cause, courts that follow the modern view use an objective standard— O
would a reasonable attorney have pursued the claim? But some courts still
use a subjective standard—did this attorney know that the claim was C
frivolous? The malice element can be established by proof of actual ill will
or proof that the claim was commenced or pursued for an improper purpose; o
it can also be inferred from the lack of probable cause.
o
Another possibility is the imposition of sanctions in the underlying
action against the offending attorney, or the client, or both. In recent years, □
Rule 11 of the Federal Rules of Civil Procedure has become a popular device
for imposing sanctions in civil actions in the federal courts. [See generally D
Schwarzer, Rule 11 Revisited, 101 Harv.L.Rev. 1013 (1988).] Rule 11
requires every pleading and other court paper to be personally signed by o
an attorney (or by a litigant representing him or herself). In “presenting”
such a paper to the court (by signing, filing, submitting or advocating), the D
attorney or party certifies to the best of his or her “knowledge, information,
and belief, formed after a [reasonable inquiry]”: (1) the paper is not being O
presented for any improper purpose, such as harassment or to run up an
opponent’s expenses; (2) that the claims, defenses and other legal
O
contentions are warranted by existing law or by a nonfrivolous argument
for a change or reversal in existing law or the establishment of new law; (3)
o
that the factual allegations have evidentiary support or are likely to have o
support after further investigation or discovery; and (4) that factual denials
are likewise warranted by the evidence or identified as reasonably based o
on lack of information or belief. From 1983 through 1993 sanctions for a
violation of Rule 11 were mandatory, but now they are once again o
discretionary. The sanctions must be no more than necessary for
deterrence, and they should not usually result in shifting attorney fee o
expenses between the parties. Rule 11 contains additional safeguards
against surprise sanction requests and a 21-day period to withdraw a paper
challenged as violating the Rule.
But Rule 11 is not the only sanctioning authority available to the
courts. For example, 28 U.S.C.A. § 1927 (2000) states that an attorney or o
other person who “so multiplies the proceedings in any case unreasonably
and vexatiously” may be ordered personally to pay the “excess costs, o
expenses, and attorney fees” reasonably incurred by the victim. Frivolous
o

o
X.

G Beginning and Ending the Lawyer-

Ch. 3 Clientrelationship 103
O federal court appeals can be sanctioned under Federal Rule of Appellate
O Procedure 38 and 28 U.S.C.A. § 1912 (2000). Even broader power to
sanction lawyers for taking frivolous legal positions can be found in the
C! “inherent power” doctrine. In Chambers v. NASCO, Inc., 501 U.S. 32, 111
S.Ct. 2123, 115 L.Ed.2d 27 (1991), the Supreme Court ruled that federal
Q courts have the inherent power to sanction bad faith conduct by lawyers
and parties whether the conduct at issue is covered by one of the other
Q sanctioning provisions or not. [Sec generally Gregory P. Joseph, Rule II is
Only the Beginning, A.B.A.J., May 1, 1988, at 62-65.] Similar sanction
C provisions are available under state law rules or statutes. [See, e.g., Cal.
Code Civ. Proc. §§ 128.5 (court may order party or party’s attorney to pay
c another party’s reasonable expenses, including attorney’s fees, incurred “as
a result of bad-faith actions oi* tactics that are frivolous or solely intended
c to cause unnecessary delay”) and 128.7 (the substantial equivalent of the
c amended Federal Rule 11).]

Multiple Choice Questions

Answer these questions using the definitions found
at the end of Chapter Two.
O 1. For many years, lawyer Snyder has represented a professional
football team, the Raptors, in business law matters. On the team’s behalf,
---- /
Snyder has filed a breach of contract case against the City Board of
Commissioners concerning the stadium that the city leases to the Raptors.
c Snyder is counsel of record in the suit, and he has conducted all of the discovery
for the Raptors. The trial date is fast approaching, and the Raptors’ owners
Q have retained a famous trial lawyer, Marvin Slick, to serve as Snyder’s co­
counsel and to do the actual trial work. Although Snyder envies Slick’s win­
C loss record, he regards Slick as little more than a highly-educated con artist
with whom he cannot possibly work. Which of the following may Snyder do?
C A. Immediately seek the court’s permission to withdraw from the
case.
C B. Promptly instruct the team owners to terminate their
C arrangement with Slick.
C. Ask the team owners to consent to his withdrawal, if he believes
c that is in their best interests.
o D. Advise Slick to withdraw, if Snyder believes that is in the best
interests of the team owners.
v.r. 2. Attorney Arbuckle is admitted to practice in State A. The State A
Rules of Court require court permission before an attorney can withdraw from
G a pending case. The courts of State A have statutory authority to impose
litigation sanctions on lawyers who violate the Rules of Court. State A does not
C recognize attorney retaining liens on client’s funds, property, or litigation files
(that is, an attorney cannot keep these items to secure payment of his or her
c

o
 Beginning and Ending the Lawyer-
104____________________ Client Relationship________________ Ch, 3

fee). Arbuckle agreed to defend Clauzoff in a civil action for theft of the
plaintiffs trade secrets. Clauzoff agreed to pay Arbuckle $100 per hour, and he
gave Arbuckle a $10,000 advance for litigation expenses. Three times, the
plaintiff scheduled the taking of Clauzoffs deposition, and all three times
Clauzoff failed to show up. Further, despite repeated promises, Clauzoff failed
to send Arbuckle some documents that Arbuckle needed in order to draft
responses to the plaintiffs interrogatories. After Arbuckle put in 40 hours on
the case, he billed Clauzoff $4,000, but Clauzoff refused to pay the fee bill.
Finally, Arbuckle decided to have nothing further to do with the case; when
plaintiffs counsel telephoned, Arbuckle told her that he had resigned as the
lawyer for Clauzoff. Clauzoff asked Arbuckle to hand over the litigation files
and to refund the unspent part of the $10,000 expense advance, but Arbuckle
refused both requests. Which of the following statements are correct?
I. Arbuckle is subject to litigation sanctions for stepping out of the case
without the court’s consent.
II. Arbuckle is subject to discipline for withdrawing from the case
without adequate grounds.
III. Arbuckle is subject to discipline for refusing to hand over the
litigation files to Clauzoff.
IV. Arbuckle is subject to discipline for refusing to refund the unspent
part of the expense advance.
A. All of the above.
B. I and IV only.
C. II, III, and IV only.
D. I, III, and IV only.
3. Jason P. Worthington III is among the wealthiest men in New York
society. When his son was arrested for selling illegal drugs to his prep school
classmates, Worthington sought the legal services of the prestigious old firm
of Bradbury & Crosswell. The Bradbury firm practices almost nothing but
securities and banking law. For which of the following reasons may the
Bradbury firm decline employment in the case?
I. That Worthington is not among the firm’s regular clients.
II. That the firm is not experienced in criminal litigation.
III. That Worthington can obtain better service at lower fees from
lawyers with more experience in criminal litigation.
IV. That the firm does not want to take time away from its regular
work for a matter such as this one.
A. All of the above.
B. None of the above.
C. Ill only.
r
r—x
L..' Beginning and Ending the Lawyer-
Ch. 3__________________ Client Relationship_____________________105
Q D. II only.
C 4. When attorney Hodges graduated from law school three years ago,
she opened a solo practice in a small rural community close to the state’s major
C prison. Her primary interests are family law and real estate law. Her practice
is growing very slowly, despite her long work hours. She is barely able to make
Q financial ends meet. The presiding judge of the local State District Court has
asked her to serve as court-appointed counsel in a civil action that was
Cj originally filed in propria persona by an indigent inmate of the prison. From
the roughly drawn complaint, the presiding judge believes there may be some
C merit in the inmate’s allegations of brutality by some of the guards and gross
neglect on the part of the warden. State law allows attorney fees to be awarded
c to a plaintiff in a civil action of this type, but only if the plaintiff is victorious.
Attorney Hodges realizes that she will not be paid for her work if she loses the
c case, and she is very concerned about the financial loss she may suffer if she
takes time away from her regular practice. Further, she is worried about
o harming her reputation because the warden and many prison employees form
the nucleus of her community. Which of the following statements are correct?
c I. She may decline to serve on the ground that her practice is primarily
o in the fields of real estate and family law.
II. She may decline to serve if she believes in good faith that she cannot
c reasonably take the financial risk involved.
c III. She may decline to serve if she believes in good faith that to serve
would seriously injure her reputation in the community.
c IV. She may decline to serve if she believes in good faith that some of her
present clients will be offended if she takes the case.
C.) A. All of the above.
B. None of the above.
C"’
C. II only.
X------- ■

D. I, II, and IV only.

c 5. Lawyer Yeager has been retained by the officers of Amalgamated
Finishers and Patternworkers Union, Local 453, to draft a new set of bylaws
o for the local. Yeager strongly disagrees with one of the provisions the officers
want included in the new bylaws. The provision would deny members of the
Q local the right to vote on some issues that involve the expenditure of union
funds. Although Yeager believes that the provision is lawful and consistent
Cj with the national union charter, she believes it would be unwise and
inconsistent with the best interests of the members of the local. If the union
Q can obtain other counsel without serious loss, may Yeager withdraw from the
matter?
Q A. Yes, but only if she obtains the consent of her client.
□ B. Yes, because her client is asking her to do something that is
against her best judgment.
C
c
Q
 o
BEGINNING AND ENDING THE LAWYER-
106 Client Relationship Ch. 3 o

C. No, because she is obliged to carry out the lawful objectives of o

her client.
D. No, unless her client has breached the agreement under which o
she agreed to perform the work.
6. For a century or more, the commercial fishing industry in Northport
o
has been dominated by two feuding clans, the VonRutz family and the McCabe
family. The McCabes hired lawyer Lang to sue the VonRutzes in federal court
o
for predatory pricing in violation of the federal antitrust laws. The complaint
alleges that the VonRutzes have been selling their fish below cost with the
□
intent of driving the McCabes out of business, which would give the VonRutzes o
monopoly power in the Northport area. The information that was available to
Lang when he drafted the complaint supported the “below cost” allegation. D
During pretrial discovery, however, it became obvious that the Von Rutzes
never sold their fish below their “average total cost.” Under the applicable law,
that means that they could not possibly have been engaged in predatory
□
pricing, and no good faith argument can be made for changing that law. O
Nevertheless, the McCabes instructed Lang to move for summary judgment,
explaining: ‘The VonRutzes caused misery for our fathers and our □
grandfathers and our great grandfathers. Winning isn’t important—we just
want to remind those rotten VonRutzes that it’s expensive to mess with the O
McCabes.” If Lang follows his clients’ instruction to move for summary
judgment: O
A. Lang will not be subject to discipline because he is obliged to
follow his clients’ instructions on matters that affect the clients’ □
substantial legal rights.
o
B. Lang will be subject to litigation sanctions because discovery has
revealed that his clients’ claim is frivolous. o
C. Lang will be subject to civil liability for malicious prosecution, no
matter what the ultimate outcome of the predatory pricing case.
D. Lang will be not be subject to discipline because he did not know 'vU
until pretrial discovery that his clients’ claim was frivolous.
Answers to the multiple choice questions will be found o
in the Appendix at the back of the book.
o
o

o
o
o
o
o
o
 Chapter Four

Advertising and Solicitation

■■■

What This Chapter Covers

I. Historical Summary
A. Advertising
B. Solicitation
C. The Forces of Change—Antitrust and the First Amendment
D. The Bates Case
II. Historical Summary, Continued
A. The Ohralik and Primus Cases—Solicitation
B. The Adoption of the ABA Model Rules
C. The Peel Case—Claims of Specialization
D. The Zauderer, Shapero, and Went For It Cases—The Shadowland
Between Advertising and Solicitation

Reading Assignment
Schwartz, Wydick, Perschbacher, & Bassett, Chapter 4.
ABA Model Rules 7.1 through 7.6, and 8.4(a).
Supplemental Reading
Hazard & Hodes:
Discussion of ABA Model Rules 7.1 through 7.6.

Discussion Problems
1. Suppose you have just opened your law practice in a town where
you do not know many people. In which of the following ways may you seek
to build your clientele?
a. May you join a social club for the sole purpose of meeting
new people and luring them as clients?

107
108 Advertising and Solicitation Ch. 4
b. May you call on other lawyers at their offices and let
them know that you are willing to take on work that they are too
busy to handle?
c. May you volunteer to give a seminar on estate planning
for the local chapter of Young Businesswomen of America, hoping
to get legal business from some of those who attend?
d. May you list your name with the local court as a person
who is willing to take court-appointed cases? May you contribute
to the re-election campaign fund of a local judge, hoping to secure
good court appointments from the judge?
e. May you list your name with the lawyer referral service
run by the local bar association? How does such a lawyer referral
service operate?
f. May you place advertisements for your services? In what
media? What restrictions are there on the content of your
advertising?
g. May you publish a brochure that describes your law
practice, states the kinds of matters you handle, and provides a
schedule of the fees you charge for a variety of routine legal
services? May you put the same information on a website? May
you use www.winbig.com as your site address?
h. May you advertise yourself as a “Super Lawyer” or “Best
Lawyer” when you have been included in a “Super Lawyers” poll
for a magazine advertising supplement or in “Best Lawyers in
America”?
2. Suppose that the Surgeon General has recently determined that
prolonged exposure to a chemical known as DNXP causes a type of blood
disease in humans. DNXP is used in the manufacture of certain types of
plastics, and many plastics workers have contracted the disease. Lawyer
Lovette practices personal injury and workers’ compensation law in a town
that has four plastics factories. She would like to represent afflicted
plastics workers who wish to bring legal proceedings against their
employers and the manufacturers of DNXP.
a. May she put an ad in the local newspaper, informing
plastics workers of their legal rights respecting exposure to DNXP
and inviting interested persons to contact her?
b. The town business directory provides a separate
directory listing of all plastics workers, giving their names, postal
addresses, e-mail addresses, and telephone numbers. May Lovette
send an informative letter via the postal service to each plastics
worker, inviting the worker to contact her for further information?
Ch. 4_____________ Advertising and Solicitation_______________ 109
Is your answer the same if Lovette uses e-mail rather than the
postal service?
c. May Lovette hire a team of telephone callers who will use
the business directory to phone each plastics worker, give a brief
description of the DNXP problem, and invite the worker to contact
Lovette for more information?
d. May Lovette stand on the public sidewalk outside the
gates of one of the plastics factories at quitting time and pass out
handbills that state her willingness to represent workers in DNXP
cases? May she initiate conversations with workers on that
subject? May she initiate such communications in a real-time
Internet chatroom?
3. On your way down the courthouse hall after a hearing, you saw a
tired-looking woman holding a crying infant. She was obviously confused
and needed help. When you spoke to her, she handed you a paper and asked
in halting English where she was supposed to go. The paper was a
summons to appear that morning in an unlawful detainer action filed by
her landlord. When you responded to her in her native language, her face
broke into a wide smile. You briefly explained to her the nature of an
unlawful detainer hearing, and you asked if she had a lawyer. When she
said no, you offered to represent her at the hearing for a modest fee. Was
your offer proper? Would it be proper if you had offered to represent her for
free?®
4. Charlie is a personal injury lawyer working as a solo practitioner.
Times are hard and business is slow. Charlie needs more work soon or he
won’t be able to pay his mortgage, but he doesn’t want to get into ethical
trouble. Charlie remembers from his law school ethics class that he isn’t
supposed to engage in in-person solicitation, but he doesn’t recall much
else.
a. May Charlie hand out his business card at an accident
scene so long as he doesn’t say anything?
b. May Charlie ask his brother-in-law, who is a
chiropractor, to steer potential personal injury clients his way in
exchange for a referral fee?
c. May Charlie pay someone to stop by the local courthouse,
the county jail, and the local hospital several times a day looking
for anyone who might need legal assistance and offering Charlie’s
business card?

• Our thanks to Professor Monroe Freedman of the Hofstra University School of Law for
inspiring this hypothetical question. He discusses the hypothetical in Monroe Freedman & Abbe
Smith, Understanding Lawyers' Ethics 357 (3d ed. 2004). See also Deborah L. Rhode, Solicitation,
36 J. Legal Educ. 317 (1986).
110 Advertising and Solicitation Ch. 4
5. The reading, infra, discusses the potential applicability of lawyer
advertising rules in the context of social media.
a. Do the lawyer advertising rules expressly mention social
media?
b. Should lawyer advertising rules potentially apply to an
individual’s postings on Facebook, Twitter, or other social media?
c. Can you offer an analysis of how a disciplinary authority
could argue that the ethical rules apply to such postings?
d. Returning briefly to the material you studied in Chapter
Two, are the courts (at least the California courts) bound by the
Formal Opinion that is discussed toward the end of this Chapter?

I. HISTORICAL SUMMARY
A. ADVERTISING
Back in the 1800s, lawyers in the United States sometimes advertised
their services in newspapers. But when the American Bar Association
adopted its original Canons of Professional Ethics in 1908, Canon 27 said:
The most worthy and effective advertisement possible, even for a
young lawyer, is the establishment of a well-merited reputation
for professional capacity and fidelity to trust. This cannot be
forced, but must be the outcome of character and conduct. * * *
[Solicitation of business by circulars or advertisements, or by
personal communications, or interviews not warranted by
personal relations, is unprofessional. * * * Indirect advertisement
for business by furnishing or inspiring newspaper comments
concerning causes in which the lawyer has been or is engaged * * *
the importance of the lawyer’s positions, and all other like self­
laudation, defy the traditions and lower the tone of our high
calling, and are intolerable.
In short, lawyers were to be passive receivers of legal business, not active
seekers of it. A person who needed a lawyer could simply ask a friend or
neighbor to recommend a good one, and in that fashion the trade of honest,
competent lawyers would grow and prosper.
Over the years, Canon 27 was amended and re-amended to draw ever-
finer distinctions about the precise ways in which lawyers could ethically
hold themselves out to the public. A lawyer could have a “shingle,” a small,
dignified sign to mark the office door. A lawyer could be identified in a
“reputable law list,” a directory readily available to other lawyers (but not
to ordinary citizens) that provided biographic information. A lawyer could
Ch. 4_____________ Advertising and Solicitation_______________ m
make “customary use” of “simple professional cards,” and could put limited
kinds of information on a “letterhead,” the formal stationery used in the
office. Patent lawyers, trademark lawyers, and proctors in admiralty could
so designate themselves in public communications, but ordinary lawyers
could not tell the public what kinds of law they practiced.
As the complexity of the rules grew, so did the ingenuity of the lawyers
who sought to evade them. The resulting tension created considerable work
for those members of the profession who wrote ethics opinions and imposed
discipline on the miscreants. When discipline was imposed, it was
customarily coupled with a thorough denunciation. Thus, in censuring one
Leon A. Berezniak, Esq., the Supreme Court of Illinois wrote:
The advertisements of respondent are very obnoxious and
disgusting, not only because they are gotten up after the manner
of quack doctors and itinerant vendors of patent medicines and
other cure-alls, but because of the fact that they contain
statements that cast reflections upon the common honesty,
proficiency, and decency of the profession generally of which he
insists he is a distinguished member.6
Thus, in the period between 1910 and 1975, the bar and the courts
created a remarkable body of law and lore, of which the following is but a
small sample:
• A New York attorney was censured for (among other things)
sending typewritten letters to businessmen with whom he had
no prior relationship, inviting them to use him for their
collection claims and other legal work.c
• A California attorney was censured for (among other things)
putting signs on his house to advertise reduced fees for his
services as lawyer, notary public, and tax consultant.41
• A Nebraska attorney was suspended for putting a classified
advertisement in the local newspapers, offering to do divorces
for “$15 and costs.”®
• It was deemed unethical for an attorney-physician to state on
his letterhead that he was both a lawyer and a doctor, and it
was likewise unethical for him to send out formal
announcements that he had opened an office for the practice
of both professions/

b People ex rel. Chicago Bar Association v. Berezniak, 292 Ill. 305, 127 N.E. 36 (1920).

« In re Gray, 184 App.Div. 822,172 N.Y.S. 648 (1918).

o Libarian l>. State Bar, 21 Cal.2d 862.136 P.2d 321 (1943) (large signs); 25 Cal.2d 314, 153
P.2d 739 (1944) (small signs).
• State ex rel. Hunter o. Crocker, 132 Neb. 214, 271 N.W. 444 (1937).
f ABA Forma] Op. 183 (1938).
112 Advertising and Solicitation Ch. 4
• It was deemed unethical for an attorney to have his name
listed in boldface type in the telephone book.s
• An Arizona attorney was censured for (among other things)
advertising by means of matchbooks printed with his name
and profession.11
• It was deemed unethical for an attorney to send Christmas
cards that mentioned his profession (except cards that merely
pictured the scales of justice or a lawyer dressed as Santa
Claus), and it was deemed unethical to send any sort of
Christmas card to a present client, or to another lawyer, with
whom the sender had no close personal or social relationship?
• It was said that an attorney (hypothetically named Doe) could
ethically erect a building and call it the “Doe Building,” but
not the “Doe Law Building” (nor even plain “Law Building,”
unless it were to be inhabited by numerous other lawyers) J
• It was said that an attorney could ethically allow his name to
be put on a sign in the lobby of an office building, if the sign
were used as a building directory, albeit a sign with a light.k
However, a New York attorney was censured for using a
neonlit sign in his office window.1
• A California attorney, who was called the “King of Torts,” was
suspended for allowing his name to be used in advertising an
expensive Scotch whisky, where the court inferred that his
intent was to promote his law practice as well as the whisky.111

B. SOLICITATION
Client-getting activity that involves personal contact (face-to-face
contact, live telephone contact, or real-time electronic contact) which is
initiated by a lawyer (or the lawyer’s agent) and a specific potential client
is called “solicitation,” to distinguish it from “advertising,” which is general
communication with the public at large. In the most blatant form of
solicitation, “ambulance-chasing,” the lawyer hires agents to urge injured
people to employ the lawyer to represent them.n

* ABA Formal Op. 284 (1951).

* In re Maltby, 68 Ariz. 153, 202 P.2d 902 (1949).
1 ABA Formal Op. 309 (1963).

J ABA Informal Op. 441 (1961).

* ABA Informal Op. 800 (1964).
i In re Duffy, 19 A.D.2d 177, 242 N.Y.S.2d 665 (1963).
« Belli u. Stale Bar of California, 10 Cal.3d 824, 112 Cal.Rptr. 527, 519 P.2d 575 (1974).
» See Annot., “Disbarment—Ambulance Chasing,” 67 A.L.R.2d 859 (1959).
c
Ch. 4_____________ Advertising and Solicitation_______________ 113
_ Canon 28 of the 1908 ABA Canons of Professional Ethics was
Cj specifically directed at solicitation. It warned lawyers not to stir up
; litigation, nor to volunteer advice to a stranger to bring a lawsuit, nor to
vJ' seek out injured persons or defects in land titles in the hope of gaining
employment, nor to pay prison guards or hospital attendants for referring
\— potential clients, nor to hire runners or agents to do any such dirty work.
Q Solicitation has traditionally been punished more harshly than
advertising,0 and for better reason. The bar and courts are concerned with
C the effect of solicitation on those solicited—especially unsophisticated lay
people, when under stress and unable to exercise careful, informed
c judgment about the hiring of a lawyer.

C. THE FORCES OF CHANGE—ANTITRUST

AND THE FIRST AMENDMENT
The ABA Model Code of Professional Responsibility was promulgated
in 1969; it was the predecessor to the ABA Model Rules. The ABA Code
came complete with bans on advertising and solicitation. But
simultaneously, it spoke of a lawyer’s ethical obligation to help lay people
recognize legal problems and to assure that legal service was available to
all who needed it. Soon the bar began to feel the tension between these two
positions.
o In the early 1970s, distinguished members of the bar began to argue
that lay people could not select a lawyer intelligently unless they were
c given more information than the ABA Code allowed. On another front,
antitrust experts began to ponder the anti-competitive effects of the lawyer
advertising ban. Ordinary commercial competitors could not lawfully agree
to refrain from advertising.? Was the mantle of professionalism enough to
protect lawyers from the Sherman Antitrust Act? The United States
Justice Department thought not, and in 1976 it sued the American Bar
Association as a conspiracy in restraint of traded

D. THE BATES CASE

In the following pages, you will read Bates v. State Bar of Arizona, 433
U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), which concerned two
Arizona lawyers who violated Arizona’s ban on lawyer advertising. The
f —*X
U.S. Supreme Court ruled that the advertising ban was immune from
attack under the Sherman Antitrust Act because the ban had been
promulgated by an arm of the state government, the Arizona Supreme
* Compare id. with Annot., “Attorney Advertising—Discipline f 39 A.L.R.2d 1055 (1955).
p United States v. Gasoline Retailers Association, Inc., 285 F.2d 688 (7th Cir.1961)
(agreement among gas stations not to post prices on curb signs held illegal per se).
q United States v. American Bar Association, Civil No. 76-1182 (D.D.C. 1976). The suit was
dismissed after the Supreme Court decision in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct.
2691, 53 L.Ed.2d 810 (1977). See Trade Reg. Rptr., 1970-79 U.S. Antitrust Cases 53, 658 (1980).
114 Advertising and Solicitation Ch. 4
Court. However, Bates holds that the First Amendment commercial speech
doctrine protects attorney advertising that is truthful and not misleading.
Ironically, the Court based its First Amendment conclusion on arguments
that carry the strong flavor of antitrust: free competition among lawyers
raises quality and reduces prices, and competition works best when
consumers are well informed about their choices.

Bates v. State Bar of Arizona

Supreme Court of the United States, 1977.
433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810.

[In 1974, Arizona lawyers Bates and O’Steen opened a “legal clinic” to
provide low cost service to people of moderate means. They did only
“routine” legal work, and they made heavy use of paralegal assistants,
standard legal forms, and modern office equipment. In 1976, they sought
to increase their volume by running the newspaper ad that you will see
below. When the State Bar of Arizona tried to discipline them, they
appealed to the United States Supreme Court, claiming violations of the
Sherman Act and the First Amendment free speech clause (as applied to
the states through the Fourteenth Amendment). The Court rejected the
Sherman Act argument because Arizona’s advertising rules had been duly
approved by the Arizona Supreme Court—the Sherman Act does not reach
a restraint of trade that is conceived and supervised by a state government.
But the Court held that lawyers’ “commercial speech” is entitled to some
protection under the First Amendment. As you will see from the following
portions of the majority opinion, the Court’s First Amendment analysis is,
ironically, heavily seasoned with antitrust.]
The issue presently before us is a narrow one. First, we need not
address the peculiar problems associated with advertising claims relating
to the quality of legal services. Such claims probably are not susceptible of
precise measurement or verification and, under some circumstances, might
well be deceptive or misleading to the public, or even false. Appellee does
not suggest, nor do we perceive, that appellants’ advertisement contained
claims, extravagant or otherwise, as to the quality of services. Accordingly,
we leave that issue for another day. Second, we also need not resolve the
problems associated with in-person solicitation of clients—at the hospital
room or the accident site, or in any other situation that breeds undue
influence—by attorneys or their agents or “runners.” Activity of that kind
might well pose dangers of overreaching and misrepresentation not
encountered in newspaper announcement advertising. Hence, this issue
also is not before us. Third, we note that appellee’s criticism of advertising
by attorneys does not apply with much force to some of the basic factual
content of advertising: information as to the attorney’s name, address, and
telephone number, office hours, and the like. The American Bai*
Association itself has a provision in its current Code of Professional
c
Ch. 4 AdvertisingandSolicitation 115
o Responsibility that would allow the disclosure of such information, and
more in the classified section of the telephone directory. DR 2-102(A)(6)
(1976). We recognize, however, that an advertising diet limited to such
spartan fare would provide scant nourishment.

o
Q DO YOU NEED
O A LAWYER?
o LEGAL SERVICES
o AT VERY REASONABLE FEES
o
c
O • Divorce er legal separation**uncentestod
(both spouses sign papers]
1125 00 plus 120 00 court filing lee
o • Preparation of all court papers and instruc­
tions on how to do your own simple
o uncontested divorce
1100 00

o • Adoption-uneontested severance proceeding

1225 00 plus appronruteir >10 00 publics*

Q •
Iron cost

•anbruptcy-nonbusiness. no contested pro­

O ceedings
Individual
1250 00 plus 155 00 court tiling tee

Cj Wife and Husband

1300 00 plus 1110 00 court filing fee

o • Change of Name
155 00 plus 120 00 court filing let

o Information regarding other types ol cases

furnished on request

VJ

C Legal Clinic of Bates & O’Steen

117 North 3rd Street
c Phoenis. Arizona 15004
Telephone (0021112-IUI

c (£29221

c The heart of the dispute before us today is whether lawyers also may
Cj constitutionally advertise the prices at which certain routine services will

c
c
116 Advertising and Solicitation Ch. 4
be performed. Numerous justifications are proffered for the restriction of
such price advertising. We consider each in turn:
1. The Adverse Effect on Professionalism. Appellee places particular
emphasis on the adverse effects that it feels price advertising will have on
the legal profession. The key to professionalism, it is argued, is the sense
of pride that involvement in the discipline generates. It is claimed that
price advertising will bring about commercialization, which will undermine
the attorney’s sense of dignity and self-worth. The hustle of the
marketplace will adversely affect the profession’s service orientation, and
irreparably damage the delicate balance between the lawyer’s need to earn
and his obligation selflessly to serve. Advertising is also said to erode the
client’s trust in his attorney: Once the client perceives that the lawyer is
motivated by profit, his confidence that the attorney is acting out of a
commitment to the client’s welfare is jeopardized. And advertising is said
to tarnish the dignified public image of the profession.
We recognize, of course, and commend the spirit of public service with
which the profession of law is practiced and to which it is dedicated. The
present Members of this Court, licensed attorneys all, could not feel
otherwise. And we would have reason to pause if we felt that our decision
today would undercut that spirit. But we find the postulated connection
between advertising and the erosion of true professionalism to be severely
strained. At its core, the argument presumes that attorneys must conceal
from themselves and from their clients the real-life fact that lawyers earn
their livelihood at the bar. We suspect that few attorneys engage in such
self-deception. And rare is the client, moreover, even one of the [sic] modest
means, who enlists the aid of an attorney with the expectation that his
services will be rendered free of charge. See B. Christensen, Lawyers for
People of Moderate Means 152—153 (1970). In fact, the American Bar
Association advises that an attorney should reach “a clear agreement with
his client as to the basis of the fee charges to be made,” and that this is to
be done “[a]s soon as feasible after a lawyer has been employed.” Code of
Professional Responsibility EC 2—19 (1976). If the commercial basis of the
relationship is to be promptly disclosed on ethical grounds, once the client
is in the office, it seems inconsistent to condemn the candid revelation of
the same information before he arrives at that office.
Moreover, the assertion that advertising will diminish the attorney’s
reputation in the community is open to question. Bankers and engineers
advertise, and yet these professions are not regarded as undignified. In
fact, it has been suggested that the failure of lawyers to advertise creates
public disillusionment with the profession. The absence of advertising may
be seen to reflect the profession’s failure to reach out and serve the
community: Studies reveal that many persons do not obtain counsel even
when they perceive a need because of the feared price of services or because
of an inability to locate a competent attorney. Indeed, cynicism with regard
Ch. 4____________ Advertising and Solicitation______________ 117
to the profession may be created by the fact that it long has publicly
eschewed advertising, while condoning the actions of the attorney who
structures his social or civic associations so as to provide contacts with
potential clients.
It appears that the ban on advertising originated as a rule of etiquette
and not as a rule of ethics. Early lawyers in Great Britain viewed the law
as a form of public service, rather than as a means of earning a living, and
they looked down on “trade” as unseemly. See H. Drinker, Legal Ethics, 5,
210—211 (1953). Eventually, the attitude toward advertising fostered by
this view evolved into an aspect of the ethics of the profession. Id., at 211.
But habit and tradition are not in themselves an adequate answer to a
constitutional challenge. In this day, we do not belittle the person who
earns his living by the strength of his arm or the force of his mind. Since
the belief that lawyers are somehow “above” trade has become an
anachronism, the historical foundation for the advertising restraint has
crumbled.
2. The Inherently Misleading Nature of Attorney Advertising. It is
argued that advertising of legal services inevitably will be misleading (a)
because such services are so individualized with regard to content and
quality as to prevent informed comparison on the basis of an
advertisement, (b) because the consumer of legal services is unable to
determine in advance just what services he needs, and (c) because
advertising by attorneys will highlight irrelevant factors and fail to show
the relevant factor of skill.
We are not persuaded that restrained professional advertising by
lawyers inevitably will be misleading. Although many services performed
by attorneys are indeed unique, it is doubtful that any attorney would or
could advertise fixed prices for services of that type. The only services that
lend themselves to advertising are the routine ones: the uncontested
divorce, the simple adoption, the uncontested personal bankruptcy, the
change of name, and the like—the very services advertised by appellants.
Although the precise service demanded in each task may vary slightly, and
although legal services are not fungible, these facts do not make
advertising misleading so long as the attorney does the necessary work at
the advertised price. The argument that legal services are so unique that
fixed rates cannot meaningfully be established is refuted by the record in
this case: The appellee, State Bar itself sponsors a Legal Services Program
in which the participating attorneys agree to perform services like those
advertised by the appellants at standardized rates. App. 459—478. Indeed,
until the decision of this Court in Goldfarb u. Virginia State Bar, 421 U.S.
773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), the Maricopa County Bar
Association apparently had a schedule of suggested minimum fees for
standard legal tasks. We thus find of little force the assertion that
118 Advertising and Solicitation Ch. 4
advertising is misleading because of an inherent lack of standardization in
legal services.
The second component of the argument—that advertising ignores the
diagnostic role—fares little better. It is unlikely that many people go to an
attorney merely to ascertain if they have a clean bill of legal health. Rather,
attorneys are likely to be employed to perform specific tasks. Although the
client may not know the detail involved in performing the task, he no doubt
is able to identify the service he desires at the level of generality to which
advertising lends itself.
The third component is not without merit: Advertising does not
provide a complete foundation on which to select an attorney. But it seems
peculiar to deny the consumer, on the ground that the information is
incomplete, at least some of the relevant information needed to reach an
informed decision. The alternative—the prohibition of advertising—serves
only to restrict the information that flows to consumers. Moreover, the
argument assumes that the public is not sophisticated enough to realize
the limitations of advertising, and that the public is better kept in
ignorance than trusted with correct but incomplete information. We
suspect the argument rests on an underestimation of the public. In any
event, we view as dubious any justification that is based on the benefits of
public ignorance. See Virginia Pharmacy Board v. Virginia Consumer
Council, 425 U.S., at 769-770, 96 S.Ct., at 1829-1830. Although, of course,
the bar retains the power to correct omissions that have the effect of
presenting an inaccurate picture, the preferred remedy is more disclosure,
rather than less. If the naivete of the public will cause advertising by
attorneys to be misleading, then it is the bar’s role to assure that the
populace is sufficiently informed as to enable it to place advertising in its
proper perspective.
3. The Adverse Effect on the Administration of Justice. Advertising
is said to have the undesirable effect of stirring up litigation. The judicial
machinery is designed to serve those who feel sufficiently aggrieved to
bring forward their claims. Advertising, it is argued, serves to encourage
the assertion of legal rights in the courts, thereby undesirably unsettling
societal repose. There is even a suggestion of barratry. See, e.g., Comment,
A Critical Analysis of Rules Against Solicitation by Lawyers, 25
U.Chi.L.Rev. 674, 675-676 (1958).
But advertising by attorneys is not an unmitigated source of harm to
the administration of justice. It may offer great benefits. Although
advertising might increase the use of the judicial machinery, we cannot
accept the notion that it is always better for a person to suffer a wrong
silently than to redress it by legal action. As the bar acknowledges, “the
middle 70% of our population is not being reached or served adequately by
the legal profession.” ABA, Revised Handbook on Prepaid Legal Services 2
Ch. 4_____________ Advertising and Solicitation_______________ 119
(1972). Among the reasons for this underutilization is fear of the cost, and
an inability to locate a suitable lawyer. Advertising can help to solve this
acknowledged problem: Advertising is the traditional mechanism in a free-
market economy for a supplier to inform a potential purchaser of the
availability and terms of exchange. The disciplinary rule at issue likely has
served to burden access to legal services, particularly for the not-quite-poor
and the unknowledgeable. A rule allowing restrained advertising would be
in accord with the bar’s obligation to “facilitate the process of intelligent
selection of lawyers, and to assist in making legal services fully available.”
ABA Code of Professional Responsibility EC 2-1 (1976).
4. The Undesirable Economic Effects of Advertising. It is claimed
that advertising will increase the overhead costs of the profession, and that
these costs then will be passed along to consumers in the form of increased
fees. Moreover, it is claimed that the additional cost of practice will create
a substantial entry barrier, deterring or preventing young attorneys from
penetrating the market and entrenching the position of the bar’s
established members.
These two arguments seem dubious at best. Neither distinguishes
lawyers from others, see Virginia Pharmacy Board v. Virginia Consumer
Council, 425 U.S., at 768, 96 S.Ct., at 1828, and neither appears relevant
to the First Amendment. The ban on advertising serves to increase the
difficulty of discovering the lowest cost seller of acceptable ability. As a
result, to this extent attorneys are isolated from competition, and the
incentive to price competitively is reduced. Although it is true that the
effect of advertising on the price of services has not been demonstrated,
there is revealing evidence with regard to products; where consumers have
the benefit of price advertising, retail prices often are dramatically lower
than they would be without advertising. It is entirely possible that
advertising will serve to reduce, not advance, the cost of legal services to
the consumer.
The entry-barrier argument is equally unpersuasive. In the absence of
advertising, an attorney must rely on his contacts with the community to
generate a flow of business. In view of the time necessary to develop such
contacts, the ban in fact serves to perpetuate the market position of
established attorneys. Consideration of entry-barrier problems would urge
that advertising be allowed so as to aid the new competitor in penetrating
the market.
5. The Adverse Effect of Advertising on the Quality of Service. It is
argued that the attorney may advertise a given “package” of service at a
set price, and will be inclined to provide, by indiscriminate use, the
standard package regardless of whether it fits the client’s needs.
Restraints on advertising, however, are an ineffective way of deterring
shoddy work. An attorney who is inclined to cut quality will do so
120 Advertising and Solicitation Ch. 4
regardless of the rule on advertising. And the advertisement of a
standardized fee does not necessarily mean that the services offered are
undesirably standardized. Indeed, the assertion that an attorney who
advertises a standard fee will cut quality is substantially undermined by
the fixed-fee schedule of appellee’s own prepaid Legal Services Program.
Even if advertising leads to the creation of “legal clinics” like that of
appellants’—clinics that emphasize standardized procedures for routine
problems—it is possible that such clinics will improve service by reducing
the likelihood of error.
6. The Difficulties of Enforcement. Finally, it is argued that the
wholesale restriction is justified by the problems of enforcement if any
other course is taken. Because the public lacks sophistication in legal
matters, it may be particularly susceptible to misleading or deceptive
advertising by lawyers. After-the-fact action by the consumer lured by such
advertising may not provide a realistic restraint because of the inability of
the layman to assess whether the service he has received meets
professional standards. Thus, the vigilance of a regulatory agency will be
required. But because of the numerous purveyors of services, the
overseeing of advertising will be burdensome.
It is at least somewhat incongruous for the opponents of advertising to
extol the virtues and altruism of the legal profession at one point, and, at
another, to assert that its members will seize the opportunity to mislead
and distort. We suspect that, with advertising, most lawyers will behave as
they always have: They will abide by their solemn oaths to uphold the
integrity and honor of their profession and of the legal system. For every
attorney who overreaches through advertising, there will be thousands of
others who will be candid and honest and straightforward. And, of course,
it will be in the latter’s interest, as in other cases of misconduct at the bar,
to assist in weeding out those few who abuse their trust.
In sum, we are not persuaded that any of the proffered justifications
rise to the level of an acceptable reason for the suppression of all
advertising by attorneys.
[The Court held that the First Amendment “overbreadth” doctrine did
not apply in the context of lawyer advertising, but it ruled that the
advertisement in question was not so obviously misleading as to be subject
to regulation.]
In holding that advertising by attorneys may not be subjected to
blanket suppression, and that the advertisement at issue is protected, we,
of course, do not hold that advertising by attorneys may not be regulated
in any way. We mention some of the clearly permissible limitations on
advertising not foreclosed by our holding.
Advertising that is false, deceptive, or misleading of course is subject
to restraint. See Virginia Pharmacy Board v. Virginia Citizens Consumer
o
o
Ch. 4 Advertising and Solicitation 121
c
Council, 425 U.S., at 771-772, and n. 24, 96 S.Ct., at 1830-1831. Since the
CD advertiser knows his product and has a commercial interest in its
dissemination, we have little worry that regulation to assure truthfulness
CD will discourage protected speech. And any concern that strict requirements
for truthfulness will undesirably inhibit spontaneity seems inapplicable
CD because commercial speech generally is calculated. Indeed, the public and
private benefits from commercial speech derive from confidence in its
CD accuracy and reliability. Thus, the leeway for untruthful or misleading
expression that has been allowed in other contexts has little force in the
c commercial arena. Compare Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-
341, 94 S.Ct. 2997, 3006-3007, 41 L.Ed.2d 789 (1974), and Cantwell v.
c Connecticut, 310 U.S., at 310, 60 S.Ct., at 906, with NLRB v. Gissel Packing
Co., 395 U.S., at 618, 89 S.Ct., at 1942. In fact, because the public lacks
o sophistication concerning legal services, misstatements that might be
V overlooked or deemed unimportant in other advertising may be found quite
inappropriate in legal advertising. For example, advertising claims as to
c the quality of services—a matter we do not address today—are not
susceptible of measurement or verification; accordingly, such claims may
cd be so likely to be misleading as to warrant restriction. Similar objections
might justify restraints on in-person solicitation. We do not foreclose the
c possibility that some limited supplementation, by way of warning or
disclaimer or the like, might be required of even an advertisement of the
c kind ruled upon today so as to assure that the consumer is not misled. In
sum, we recognize that many of the problems in defining the boundary
c between deceptive and nondeceptive advertising remain to be resolved, and
we expect that the bar will have a special role to play in assuring that
o advertising by attorneys flows both freely and cleanly.
c As with other varieties of speech, it follows as well that there may be
reasonable restrictions on the time, place, and manner of advertising. See
o Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S., at 771,
96 S.Ct. at 1830. Advertising concerning transactions that are themselves
cd illegal obviously may be suppressed. See Pittsburgh Press Co. v. Human
Relations Comm’n, 413 U.S. 376, 388, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973).
c And the special problems of advertising on the electronic broadcast media
will warrant special consideration.
CD The constitutional issue in this case is only whether the State may
cd prevent the publication in a newspaper of appellants’ truthful
advertisement concerning the availability and terms of routine legal
o services. We rule simply that the flow of such information may not be
restrained, and we therefore hold the present application of the
CD disciplinary rule against appellants to be violative of the First Amendment.
The judgment of the Supreme Court of Arizona is therefore affirmed
CO in part and reversed in part.
c
CD
CD
122 Advertising and Solicitation Ch. 4
II. HISTORICAL SUMMARY, CONTINUED
A. THE OHRALIK AND PRIMUS
CASES—SOLICITATION
The year after Bates, the Supreme Court decided a pair of cases that
sketched the line between permissible and impermissible solicitation by
lawyers.
In Ohralik u. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912,
56 L.Ed.2d 444 (1978), the Court approved indefinite suspension from law
practice for an old-fashioned ambulance chaser. Lawyer Ohralik learned
about an auto accident in which two 18-year-old girls had been injured. He
was casually acquainted with one of them and called her parents, who said
she was in traction at the hospital. After visiting her parents at their home,
he visited the girl in the hospital, offered to represent her, and asked her
to sign a fee agreement. She said she would have to discuss it with her
parents. With a tape recorder concealed under his raincoat, he returned to
her parents’ home where he volunteered some advice about how much they
could recover under the uninsured motorist clause of their auto insurance
policy. The parents told him that their daughter had telephoned and had
agreed to let him represent her. He returned to the hospital two days later
and had the girl sign a one-third contingent fee agreement.
Ohralik paid an uninvited visit to the second girl at her home, again
carrying his concealed tape recorder. He told her about representing the
first girl and about recovering money under the uninsured motorist clause.
He asked if she wanted to file a claim, and she replied that she did not
really understand what was going on. He then offered to represent her for
a one-third contingent fee, to which she responded, "O.K.” The next day,
the second girl’s mother told Ohralik that she and her daughter did not
want to sue anyone or have him represent them, and that if they did decide
to sue they would go to their own lawyer. Ohralik insisted that the girl had
entered into a binding agreement; he refused to withdraw and ultimately
tried to get the girl to pay him $2,466.66, representing one-third of his
estimate of the worth of her claim.
The first girl also fired Ohralik and hired another lawyer to settle her
claim. Ohralik sued her for breach of the contingent fee agreement, and he
recovered $4,166.66, one-third of what she had received. After both girls
complained to the state bar, Ohralik was suspended indefinitely from law
practice.
The U.S. Supreme Court affirmed the disciplinary order, rejecting
Ohralik’s claim that the First Amendment protected his conduct. Unlike
the advertisements approved in Bates, the Court said, in-person
solicitation of fee-paying legal business poses significant dangers for the
lay person who gets solicited. The lay person can be subjected to a high
Ch. 4 Advertising andSolicitation 123

pressure sales pitch that demands immediate response and gives no time
for comparison and reflection. Further, in-person solicitation gives no
opportunity for counter-information by the organized bar, or others who
might offer calmer advice.
Ohralik conceded that the state had a compelling interest in
preventing fraud, undue influence, intimidation, overreaching, and other
forms of vexatious conduct; however, he argued that the state could not
discipline him without proving that his particular acts produced one of
those evils. In short, Ohralik argued that the state must prove actual harm.
The Court rejected his argument, holding that a state may adopt
prophylactic rules that forbid in-person solicitation of fee-generating legal
business under circumstances that are likely to produce fraud, undue
influence, or similar evils. Further, such a rule could be applied against
Ohralik because he approached the girls when they were especially
vulnerable, he urged his services upon them, he used a concealed tape
recorder, he described his fee arrangement in a slick and tantalizing
manner, and he refused to withdraw when asked to do so. All of this created
a clear potential for overreaching, sufficient to justify the discipline
imposed. [Compare Ohralik with Edenfield v. Fane, 507 U.S. 761,113 S.Ct.
1792, 123 L.Ed.2d 543 (1993), which struck down a prophylactic rule
against in-person solicitation by accountants. The Court said that
accountants, unlike lawyers, are not trained in the art of persuasion, and
accountants’ clients are less likely to be duped than lawyers’ clients. Do you
agree?]
The second of the two solicitation cases, In re Primus, 436 U.S. 412, 98
S.Ct. 1893, 56 L.Ed.2d 417 (1978), offers a sharp contrast to the ambulance­
chasing in Ohralik. Edna Smith Primus, a private practitioner in South
Carolina, was a member and officer in the local chapter of the American
Civil Liberties Union. At the request of another organization, she met with
some women who allegedly had been sterilized, or threatened with
sterilization, as a condition of receiving Medicaid benefits. She informed
the women of their legal rights and suggested the possibility of a lawsuit.
Later, the ACLU informed Primus that it would supply free legal counsel
to the women who had been sterilized by one Dr. Clovis Pierce. Primus
wrote a letter to one of the women to inform her of the ACLU offer. South
Carolina publicly reprimanded Primus for solicitation.
In overturning the South Carolina reprimand, the U.S. Supreme Court
distinguished Primus’s conduct from Ohralik’s conduct, saying that Primus
had not been guilty of “in-person solicitation for pecuniary gain,” but had
simply conveyed an offer of free legal help by a recognized civil rights
group. Further, the motive was partly political. Civil rights cases such as
NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963),
establish that the First Amendment protects collective activity undertaken
 124 Advertising and Solicitation Ch. 4
to gain meaningful access to courts and that the government can regulate
such activity only with narrow specificity. The ACLU was seeking to use
the sterilization litigation as a vehicle for political expression and
association, as well as a means of communicating useful information to the
public. That kind of speech is more precious than the commercial speech in
Ohralik. Accordingly, the states may not regulate it without showing
actual abuse; a showing of potential abuse is not enough. Since there was
no evidence that Primus had overreached, or misrepresented, or invaded
anyone’s privacy, the discipline imposed on her was unconstitutional.
Could you draft a manageable disciplinary rule that embodies the
Supreme Court’s distinctions between Ohralik’s conduct and Primus’s
conduct? How did the drafters of ABA Model Rule 7.3 deal with the
problem?

B. THE ADOPTION OF THE ABA MODEL RULES

A few weeks after the Bates case was decided, the ABA amended the
ABA Code to loosen the advertising ban a little, but not much. The
amended ABA Code provisions purported to limit the types of information
lawyers could advertise, and they retained many antique rules about law
office signs, letterheads, professional cards, and the like.
In 1983, the ABA House of Delegates adopted the ABA Model Rules,
which were designed to replace the ABA Code as a model for state ethics
rules. The ABA Model Rules contained liberal provisions on advertising
and solicitation that were drafted to comply with In re R.M.J., 455 U.S.
191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982). An advertising rule in Missouri
restricted the information that a lawyer could include in a published
advertisement to his or her name; address and telephone number; areas of
practice; date and place of birth; schools attended; foreign language ability;
office hours; fee for an initial consultation; availability of a schedule of fees;
credit arrangements; and the fixed fee to be charged for certain “routine”
legal services. With respect to the ability to include one’s “areas of practice,”
lawyers could select from the Missouri rule’s list of 23 areas of practice, but
were required to use the specific wording in the list. R.M.J. listed his areas
of practice as “real estate” (instead of “property law” as provided by the
Missouri rule) and “contracts” and “securities” (areas that were not on the
rule’s list). R.M.J. also included in his advertisement a list of the
jurisdictions in which he was licensed to practice—a category of
information that was not authorized by the Missouri rule for inclusion in
advertisements. In addition, the Missouri rule only permitted lawyers to
send professional announcement cards (announcing a change of address, a
change in the law firm’s name, or similar matters) to “lawyers, clients,
former clients, personal friends, and relatives,” and R.M.J. was charged
with mailing announcement cards to persons not falling within those
categories. A unanimous Court ruled that under the commercial speech
Ch. 4_____________ Advertising and Solicitation_______________ 125
doctrine a state may flatly prohibit lawyer advertising that is false or
misleading, and that a state may regulate advertising that is not
misleading if the state can demonstrate that the regulation directly serves
a substantial state interest, and that the regulation is no more extensive
than is necessary to serve that interest. However, in R.M.J’s case, the
included information was not misleading and Missouri did not demonstrate
that its restrictions promoted any substantial state interest. In the years
since 1983, the advertising and solicitation provisions of the ABA Model
Rules have been amended several times, to keep up with the Supreme
Court’s decisions in the area. For thoughts on the future direction of
advertising regulation, see Fred C. Zacharias, What Direction Should Legal
Advertising Regulation Take?, 2005 The Prof. Lawyer 45.

C. THE PEEL CASE—CLAIMS OF SPECIALIZATION

Unlike the medical profession, the organized bar has been slow to
recognize specialization. As originally drafted, ABA Model Rule 7.4 allowed
a lawyer to tell the public that she practices in a certain field, or that she
restricts her practice to a certain field. However, the original rule
prohibited a lawyer from stating or implying that she is a “specialist” in a
field, subject to three exceptions:
• A lawyer admitted to practice in the U.S. Patent and
Trademark Office could call herself a “patent attorney,” or
something similar;
• A lawyer engaged in admiralty practice could call herself a
“proctor in admiralty,” or something similar; and
• A lawyer could call herself a “certified specialist” in a field of
law if she had been certified by the bar of her state.
Peel v. Attorney Registration & Disciplinary Com’n, 496 U.S. 91, 110
S.Ct. 2281, 110 L.Ed.2d 83 (1990), involved a lawyer who had been certified
as a specialist in trial advocacy, not by the bar of his state, but rather by
the National Board of Trial Advocacy, a private organization that uses
high, rigorously-enforced standards for certifying trial advocates. Peel
establishes that a lawyer who is certified under those circumstances may
call himself a certified specialist, provided that he identifies the
organization that certified him and takes related steps to avoid misleading
the public. ABA Model Rule 7.4 was subsequently amended to accord with
the Peel decision. The comments to ABA Model Rule 7.4 clarify that an
attorney may state that she is a “specialist,” that she practices a
“specialty,” or that she “specializes in” particular areas. However, a lawyer
may state that he or she is “certified” as a specialist in a particular field
only when the certifying organization—which must be clearly identified in
the communication—has been accredited by the American Bar Association
or been approved by an appropriate state authority.
 126 Advertising and Solicitation Ch. 4
D. THE ZAUDERER, SHAPERO, AND WENT FOR
IT CASES—THE SHADOWLAND BETWEEN
ADVERTISING AND SOLICITATION
Zauderer v. Office of Disciplinary Counsel of the Supreme Court of
Ohio, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985), involved a
lawyer who placed a newspaper ad that was aimed at a narrow audience­
users of the Daikon Shield, an intrauterine contraceptive device that
allegedly injured many women. A divided Court held that Zauderer could
not be disciplined simply for placing an ad that concerned a specific legal
problem and that was designed to lure a narrow group of potential clients.
(He could, however, be disciplined for a misleading statement in the ad.)
Justice O’Connor (joined by Chief Justice Burger and Justice Rehnquist)
dissented in part, arguing that the states should be free to prohibit lawyers
from using ads that contain “free samples” of legal advice. Ordinary
merchants can offer free samples of their wares, Justice O’Connor argued,
but free samples of legal advice are too likely to mislead laypersons, who
often lack the knowledge and experience to judge the sample before they
buy.
If narrowly targeted newspaper ads are permissible, then what about
solicitation letters mailed to potential clients whom the lawyer knows to be
facing a specific, present legal problem? The Court answered that question
in Shapero v. Kentucky Bar Ass’n, 486 U.S. 466, 108 S.Ct. 1916, 100
L.Ed.2d 475 (1988). Lawyer Shapero wanted to mail solicitation letters
(which were assumed to be truthful and not misleading) to people he knew
were facing foreclosure on their homes for failure to pay their debts. A slim
majority of the Supreme Court held in Shapero’s favor. The majority said
the solicitation letters were more analogous to the targeted newspaper ads
in Zauderer than they were to the in-person solicitation in Ohralik. In-
person solicitation creates a grave risk that the lawyer will invade the
client’s privacy, overreach, or use undue influence. That risk is far less with
a letter, which the recipient can set aside for later study, ignore, or simply
throw in the trash. Moreover, in-person solicitation cannot be policed
because it happens in private and there is usually no certain proof of who
said what, but solicitation letters can be policed by requiring copies to be
sent to the regulatory agency. Thus, a state cannot ban solicitation letters
outright, but it can impose reasonable regulations on their use.
In a vigorous dissent, Justice O’Connor (joined by Chief Justice
Rehnquist and Justice Scalia) called for a reconsideration of the Bates case,
which you read above. According to Justice O’Connor, Bates accepted a
simplistic economics argument that attorney advertising would increase
competition, raise quality, and lower price. That would be true in markets
for ordinary goods, and it might even be true in the short run in the market
for legal services. But in the long run, Justice O’Connor argued, allowing
Ch. 4____________ Advertising and Solicitation______________ 127
attorneys to hawk their wares will eventually destroy the professionalism
that limits the “unique power” attorneys wield in our political system. If
Justice O’Connor had it her way, states would have “considerable latitude”
to ban advertising that is even “potentially” misleading and to ban even
truthful advertising that undermines the substantial governmental
interest in promoting high ethical standards in the legal profession.
As you will see below, Justice O’Connor did have it her way, at least
partly, in Florida Bar v. Went for It, Inc., 515 U.S. 618,115 S.Ct. 2371, 132
L.Ed.2d 541 (1995). Writing for herself and four colleagues, she upheld a
Florida rule that prohibits lawyers from mailing solicitation letters to
victims and their families for 30 days following an accident.

Florida Bar v. Went For It, Inc.

Supreme Court of the United States, 1995.
515 U.S. 618,115 S.Ct. 2371, 132 L.Ed.2d 541.

O’CONNOR, J. delivered the opinion of the Court, in which REHNQUIST,

C.J., and Scalia, Thomas, and Breyer, JJ., joined.
Rules of the Florida Bar prohibit personal injury lawyers from sending
targeted direct-mail solicitations to victims and their relatives for 30 days
following an accident or disaster. This case asks us to consider whether
such rules violate the First and Fourteenth Amendments of the
Constitution. We hold that in the circumstances presented here, they do
not.
k k 1e

[After a two year study of the effects of lawyer advertising on the

public, the Florida Bar adopted Rule 4-7.4(B)(1), which] provides that “[a]
lawyer shall not send, or knowingly permit to be sent, — a written
communication to a prospective client for the purpose of obtaining
professional employment if: (A) the written communication concerns an
action for personal injury or wrongful death or otherwise relates to an
accident or disaster involving the person to whom the communication is
addressed or a relative of that person, unless the accident or disaster
occurred more than 30 days prior to the mailing of the communication.”
***
***
[A Florida lawyer and his wholly-owned lawyer referral service
challenged the rule. Relying on Bates and its progeny, the district court and
the court of appeals held the rule unconstitutional. After reviewing the
history of the commercial speech doctrine, Justice O’Connor wrote:]
Nearly two decades of cases have built upon the foundation laid by
Bates. It is now well established that lawyer advertising is commercial
speech and, as such, is accorded a measure of First Amendment protection.
 o

128______________ Advertising and Solicitation____________ Ch. 4

o

See, e.g., Shapero v. Kentucky Bar Assn., 486 U.S. 466, 472, 108 S.Ct. 1916, o
1921,100 L.Ed.2d 475 (1988); Zauderer v. Office of Disciplinary Counsel of o
Supreme Court of Ohio, 471 U.S. 626, 637,105 S.Ct. 2265, 2274, 85 L.Ed.2d
652 (1985); In re 455 U.S. 191, 199, 102 S.Ct. 929, 935, 71 L.Ed.2d o
64 (1982). Such First Amendment protection, of course, is not absolute. We
have always been careful to distinguish commercial speech from speech at o
the First Amendment’s core. “ ‘[CJommercial speech [enjoys] a limited
measure of protection, commensurate with its subordinate position in the o
scale of First Amendment values,’ and is subject to ‘modes of regulation
that might be impermissible in the realm of noncommercial expression.’ ” o
Board of Trustees of State University of N.Y. v. Fox, 492 U.S. 469, 477, 109
S.Ct. 3028, 3033, 106 L.Ed.2d 388 (1989), quoting Ohralik v. Ohio State o
Bar Assn., 436 U.S. 447,456, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). We have
observed that “ ‘[t]o require a parity of constitutional protection for O
commercial and noncommercial speech alike could invite dilution, simply
by a leveling process, of the force of the Amendment’s guarantee with o
respect to the latter kind of speech.’ ” 492 U.S., at 481, 109 S.Ct., at 3035,
quoting Ohralik, supra, 436 U.S., at 456, 98 S.Ct., at 1918. o
Mindful of these concerns, we engage in “intermediate” scrutiny of CD
restrictions on commercial speech, analyzing them under the framework
set forth in Central Hudson Gas & Electric Corp. v. Public Service Comm’n O
ofN.Y., 447U.S. 557,100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Under Central
Hudson, the government may freely regulate commercial speech that CD
concerns unlawful activity or is misleading. Commercial speech that falls
into neither of those categories, like the advertising at issue here, may be CD
regulated if the government satisfies a test consisting of three related
prongs: first, the government must assert a substantial interest in support O
of its regulation; second, the government must demonstrate that the
restriction on commercial speech directly and materially advances that
CD
interest; and third, the regulation must be “ ‘narrowly drawn’ ”, * * * O
***
The Florida Bar asserts that it has a substantial interest in protecting
CD
the privacy and tranquility of personal injury victims and their loved ones CD
against intrusive, unsolicited contact by lawyers. * * * This interest
obviously factors into the Bar’s paramount (and repeatedly professed) O
objective of curbing activities that “negatively affec[t] the administration
of justice.” * * * Because direct mail solicitations in the wake of accidents O
are perceived by the public as intrusive, the Bar argues, the reputation of
the legal profession in the eyes of Floridians has suffered commensurately. CD
* * * The regulation, then, is an effort to protect the flagging reputations of
Florida lawyers by preventing them from engaging in conduct that, the Bar O
maintains, “ ‘is universally regarded as deplorable and beneath common
decency because of its intrusion upon the special vulnerability and private CD
grief of victims or their families.’ ”
O
CD
CD
Ch. 4Advertising and Solicitation____________________________ 129
We have little trouble crediting the Bar’s interest as substantial. On
various occasions we have accepted the proposition that “States have a
compelling interest in the practice of professions within their boundaries,
and... as part of their power to protect the public health, safety, and other
valid interests they have broad power to establish standards for licensing
practitioners and regulating the practice of professions.” Goldfarb v.
Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 2016, 44 L.Ed.2d 572
(1975); see also Ohralik, supra, 436 U.S., at 460, 98 S.Ct., at 1920-1921;
Cohen v. Hurley, 366 U.S. 117, 124, 81 S.Ct. 954, 958-959, 6 L.Ed.2d 156
(1961). Our precedents also leave no room for doubt that “the protection of
potential clients’ privacy is a substantial state interest.” See Edenfield u.
Fane, 507 U.S. 761, 769, 113 S.Ct. 1792, 1799, 123 L.Ed.2d 543 (1993). In
other contexts, we have consistently recognized that “(tjhe State’s interest
in protecting the well-being, tranquility, and privacy of the home is
certainly of the highest order in a free and civilized society.” Carey v.
Brown, 447 U.S. 455, 471, 100 S.Ct. 2286, 2295-2296, 65 L.Ed.2d 263
(1980). Indeed, we have noted that “a special benefit of the privacy all
citizens enjoy within their own walls, which the State may legislate to
protect, is an ability to avoid intrusions.” Frisby v. Schultz, 487 U.S. 474,
484-485, 108 S.Ct. 2495, 2502-2503, 101 L.Ed.2d 420 (1988).
Under Central Hudson’s second prong, the State must demonstrate
that the challenged regulation “advances the Government’s interest ‘in a
direct and material way.’ ” * * *
★*★
[The State cannot rely on speculation or conjecture; it must
demonstrate that the harms it recites are real, and that the regulation will
in fact alleviate them to a material degree.]
The Florida Bar submitted a 106-page summary of its 2-year study of
lawyer advertising and solicitation to the District. Court. That summary
contains data—both statistical and anecdotal—supporting the Bar’s
contentions that the Florida public views direct-mail solicitations in the
immediate wake of accidents as an intrusion on privacy that reflects poorly
upon the profession. As of June 1989, lawyers mailed 700,000 direct
solicitations in Florida annually, 40% of which were aimed at accident
victims or then- survivors. * * * A survey of Florida adults commissioned by
the Bar indicated that Floridians “have negative feelings about those
attorneys who use direct mail advertising.” * * * Fifty-four percent of the
general population surveyed said that contacting persons concerning
accidents or similar events is a violation of privacy. * * * A random
sampling of persons who received direct-mail advertising from lawyers in
1987 revealed that 45% believed that direct-mail solicitation is “designed
to take advantage of gullible or unstable people”; 34% found such tactics
“annoying or irritating”; 26% found it “an invasion of your privacy”; and
 o
130 Advertising and Solicitation Ch. 4 o
24% reported that it “made you angry.” * * * Significantly, 27% of direct- o
mail recipients reported that their regard for the legal profession and for
the judicial process as a whole was “lower” as a result of receiving the direct
mail. * * *
o
The anecdotal record mustered by the Bar is noteworthy for its breadth
and detail. With titles like “Scavenger Lawyers” (The Miami Herald, Sept. o
29, 1987) and “Solicitors Out of Bounds” (St. Petersburg Times, Oct. 26,
1987), newspaper editorial pages in Florida have burgeoned with criticism o
of Florida lawyers who send targeted direct mail to victims shortly after
accidents. The study summary also includes page upon page of excerpts o
from complaints of direct-mail recipients. For example, a Florida citizen
described how he was " ‘appalled and angered by the brazen attempt’ ” of a o
law firm to solicit him by letter shortly aftei* he was injured and his fiancee
was killed in an auto accident. * * * Another found it “ ‘despicable and o
inexcusable’ ” that a Pensacola lawyer wrote to his mother three days after
his father’s funeral. * * * Another described how she was “ ‘astounded’ ” o
and then “ ‘very angry’ ” when she received a solicitation following a minor
accident. * * * Still another described as “ ‘beyond comprehension’ ” a letter o
his nephew’s family received the day of the nephew’s funeral. * * * One
citizen wrote, “ ‘I consider the unsolicited contact from you after my child’s
o
accident to be of the rankest form of ambulance chasing and in incredibly o
poor taste. ... I cannot begin to express with my limited vocabulary the
utter contempt in which I hold you and your kind.’ ” * * * [WJe conclude Cj
that the Bar has satisfied the second prong of the Central Hudson test. * * *
[T]he Court of Appeals determined that this case was governed o
squarely by Shapero v. Kentucky Bar Assn., 486 U.S. 466, 108 S.Ct. 1916,
100 L.Ed.2d 475 (1988). Making no mention of the Bar’s study, the court o
concluded that “ ‘a targeted letter [does not] invade the recipient’s privacy
any more than does a substantively identical letter mailed at large. The
o
invasion, if any, occurs when the lawyer discovers the recipient’s legal o
affairs, not when he confronts the recipient with the discovery? ” In many
cases, the Court of Appeals explained, “this invasion of privacy will involve o
no more than reading the newspaper?’
While some of Shapero's language might be read to support the Court o
of Appeals’ interpretation, Shapero differs in several fundamental respects
from the case before us. First and foremost, Shapero* s treatment of privacy o
was casual. * * * [T]he State in Shapero did not seek to justify its regulation
as a measure undertaken to prevent lawyers’ invasions of privacy interests. o
* * * Rather, the State focused exclusively on the special dangers of o
overreaching inhering in targeted solicitations. * * * Second, in contrast to
this case, Shapero dealt with a broad ban on all direct-mail solicitations, o
whatever the time frame and whoever the recipient. Finally, the State in
Shapero assembled no evidence attempting to demonstrate any actual o
harm caused by targeted direct mail. The Court rejected the State’s effort
o
o
o
Ch. 4____________ Advertising and Solicitation______________ 131
to justify a prophylactic ban on the basis of blanket, untested assertions of
undue influence and overreaching. 486 U.S., at 475, 108 S.Ct., at 1922-
1923. Because the State did not make a privacy-based argument at all, its
empirical showing on that issue was similarly infirm.
***
[In the present case,] the harm targeted by the Florida Bar cannot be
eliminated by a brief journey to the trash can. The purpose of the 30-day
targeted direct-mail ban is to forestall the outrage and irritation with the
state-licensed legal profession that the practice of direct solicitation only
days after accidents has engendered. The Bar is concerned not with
citizens’ “offense” in the abstract, but with the demonstrable detrimental
effects that such “offense” has on the profession it regulates. * * *
Moreover, the harm posited by the Bar is as much a function of simple
receipt of targeted solicitations within days of accidents as it is a function
of the letters’ contents. Throwing the letter away shortly after opening it
may minimize the latter intrusion, but it does little to combat the
former. * * *
Passing to Central Hudson’s third prong, we examine the relationship
between the Florida Bar’s interests and the means chosen to serve them.
See Board of Trustees of State University of N.Y. v. Fox, 492 U.S., at 480,
109 S.Ct., at 3034-3035. With respect to this prong, the differences
between commercial speech and noncommercial speech are manifest. In
Fox, we made clear that the “least restrictive means” test has no role in the
commercial speech context. “What our decisions require, instead, is a ‘fit’
between the legislature’s ends and the means chosen to accomplish those
ends, a fit that is not necessarily perfect, but reasonable; that represents
not necessarily the single best disposition but one whose scope is ‘in
proportion to the interest served,’ that employs not necessarily the least
restrictive means but * * * a means narrowly tailored to achieve the desired
objective.” Ibid, (citations omitted). Of course, we do not equate this test
with the less rigorous obstacles of rational basis review; in Cincinnati v.
Discovery Network, Inc., 507 U.S. 410, 417, n. 13, 113 S.Ct. 1505, 1510 n.
13, 123 L.Ed.2d 99 (1993), for example, we observed that the existence of
“numerous and obvious less-burdensome alternatives to the restriction on
commercial speech ... is certainly a relevant consideration in determining
whether the ‘fit’ between ends and means is reasonable.”
★ ★ tfe
[Our view of this case might differ] if the Bar’s rule were not limited
to a brief period and if there were not many other ways for injured
Floridians to learn about the availability of legal representation during
that time. Our lawyer advertising cases have afforded lawyers a great deal
of leeway to devise innovative ways to attract new business. Florida
permits lawyers to advertise on prime-time television and radio as well as
132 Advertising and Solicitation Ch. 4
in newspapers and other media. They may rent space on billboards. They
may send untargeted letters to the general population, or to discrete
segments thereof. There are, of course, pages upon pages devoted to
lawyers in the Yellow Pages of Florida telephone directories. * * *
[T]he record contains considerable empirical survey information
suggesting that Floridians have little difficulty finding lawyers when they
need one. * * * Finding no basis to question the commonsense conclusion
that the many alternative channels for communicating necessary
information about attorneys are sufficient, we see no defect in Florida’s
regulation.
Speech by professionals obviously has many dimensions. There are
circumstances in which we will accord speech by attorneys on public issues
and matters of legal representation the strongest protection our
Constitution has to offer. See, e.g., Gentile v. State Bar of Nevada, 501 U.S.
1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991); In re Primus, 436 U.S. 412,
98 S.Ct. 1893, 56 L.Ed.2d 417 (1978). This case, however, concerns pure
commercial advertising, for which we have always reserved a lesser degree
of protection under the First Amendment. Particularly because the
standards and conduct of state-licensed lawyers have traditionally been
subject to extensive regulation by the States, it is all the more appropriate
that we limit our scrutiny of state regulations to a level commensurate with
the “ ‘subordinate position’ ” of commercial speech in the scale of First
Amendment values. Fox, 492 U.S., at 477, 109 S.Ct., at 3088, quoting
Ohralik, 436 U.S., at 456, 98 S.Ct., at 1918-1919.
We believe that the Florida Bar’s 30-day restriction on targeted direct-
mail solicitation of accident victims and their relatives withstands scrutiny
under the three-part Central Hudson test that we have devised for this
context. The Bar has substantial interest both in protecting injured
Floridians from invasive conduct by lawyers and in preventing the erosion
of confidence in the profession that such repeated invasions have
engendered. The Bar’s proffered study, unrebutted by respondents below,
provides evidence indicating that the harms it targets are far from illusory.
The palliative devised by the Bar to address these harms is narrow both in
scope and in duration. The Constitution, in our view, requires nothing
more.
The judgment of the Court of Appeals, accordingly, is reversed.
[We have omitted the dissenting opinion of Justice Kennedy, joined by
Justices Stevens, Souter, and Ginsburg.]

E. SOCIAL MEDIA AND LAWYER ADVERTISING

The State Bar of California’s Standing Committee on Professional
Responsibility and Conduct addressed the issue of attorney advertising in
the context of social media postings in its Formal Opinion No. 2012-186.
c
/—\
C_'
Ch. 4_____________ Advertising and Solicitation_______________ 133
c The Formal Opinion concluded that although lawyers may post
c information on Facebook, Twitter, and other social media sites, when such
postings constitute “communications” about the attorney’s availability for
c professional employment, they are subject to the ethical rules and
standards governing attorney advertising. Examples in the Formal
o Opinion included: (1) “Another great victory in court today! My client is
delighted. Who wants to be next?” (2) “Won a million dollar verdict. Tell
Q your friends and check out my website.” (3) “Won another personal injury
case. Call me for a free consultation.”
c In response to concerns from bar organizations, one social media
o website, Linkedln, agreed to change an automatic setting that provided an
“expert” designation and listed a person’s professional “specialties,” and
c also agreed to allow attorneys to remove third-party endorsements on their
accounts. Why would bar organizations have expressed concerns about
O' those features and settings?

Multiple Choice Questions

Answer these questions using the definitions found
C at the end of Chapter Two.
O 1. Mark Norris is a newscaster for the local television station. Every
weeknight, following the evening news, he presents a ten-minute segment
entitled “This Funny Town.” It is patterned on an old-fashioned newspaper
gossip column. Most of it concerns the private lives and peccadilloes of the
Q prominent and would-be prominent citizens of the community. Judges and
lawyers are among Mr. Norris’s favorite subjects. He and attorney Philos have
O arrived at a tacit arrangement. Whenever Philos hears a piece of juicy gossip
about a local judge or lawyer, he passes it along to Norris. In return, Norris
c frequently recommends Philos’s legal services in his broadcasts. For example,
Norris calls Philos “a fearless courtroom ace,” or he states opinions such as: “if
you want to win your case, hire Philos.” Is Philos subject to discipline?
G) A. Yes, because Philos is providing something of value to Norris for
recommending his services.
o B. Yes, because a lawyer can be disciplined for demeaning other
members of the legal profession.
c C. No, unless he gives false or privileged information to Norris.
C D. No, because Philos’s conduct is a protected form of speech under
the First and Fourteenth Amendments.
C 2. Three years ago, attorneys Hooten and Snod formed a law
partnership called Hooten & Snod. A year later, Hooten died, and Snod
Q continued practicing under the former firm name. Then Snod hired a salaried
associate, attorney Tremble, and, the firm name was changed to Hooten, Snod
Q & Tremble. The following year, Snod left law practice to become a
commissioner on the Federal Trade Commission. Tremble took over the
C?

o
 o
134_______________ Advertising and Solicitation____________ Ch. 4 O
practice and continued to use the same name. Later, because he had more O
space in the office than he needed, he entered into a space-sharing agreement
with attorney Gangler. The sign on the door now reads Tremble & Gangler, o
Attorneys at Law. Which of the following are correct?
o
I. After Hooten died, it was proper for Snod to continue using the firm
name Hooten & Snod. o
II. When Snod hired Tremble, it was proper to change the firm name to
Hooten, Snod & Tremble. o
III. After Snod joined the FTC, it was proper for Tremble to continue q
using Snod as part of the firm name.
IV. The present sign on the door is proper. CD
A. All of the above.
o
B. I, II, and III only.
C. I and II only. o
D. I only. Q
3. Attorney Anton advertised on the local television station. His —
advertisement stated in relevant part: ‘The most I will charge you for any type v-'
of legal work is $100 per hour, and if your problem is not complicated, the r-x
hourly fee will be even lower.” Which of the following propositions are correct? v-J
I. Anton may advertise on the local television station so long as his o
advertisement is not false or misleading.
II. If Anton charges $125 per hour for complicated legal work, he will be CD
subject to discipline for using a misleading advertisement.
III. If Anton’s advertisement fails to state that some other lawyers in the
O
community charge substantially lower fees, he will be subject to discipline. CD
A. Only II is correct.
B. Only I and III are correct.
CD
C. Only I and II are correct. o
D. Only II and III are correct.
o
4. Lawyer Del Campos practices in a town in which 25% of the people
are Mexican-American and another 20% have recently immigrated to the o
United States from Mexico. The bar of his state does not certify specialists in
any field of law nor does it approve private organizations that certify legal CD
specialists. However, Del Campos has been certified as a specialist in
immigration law by the American Association of Immigration Attorneys, a a
private organization accredited by the ABA. Del Campos wants to put an
advertisement in the classified section of the local telephone book. Which of the o
following items of information may he include in his advertisement?
CD
O
CD
O
CD
C Ch. 4 Advertising and Solicitation 135

I. That he “serves clients who are members of the Continental Prepaid

Legal Service Plan.”
Q
II. That he “speaks Spanish.”
O III. That he has been “certified as an immigration specialist by the
American Association of Immigration Attorneys.”
C
IV. That he can “arrange credit for fee payments.”
□ A. All of the above.
a B. None of the above.
C. I, II, and IV only.
o D. I and III only.
o 5. Attorney Salmon published a brochure entitled, “What to Do When
You Are Injured.” It contains accurate, helpful information on obtaining
c medical treatment, recording details of the event, notifying insurance
companies, not making harmful statements, and the like. The cover of the
Q brochure identifies Salmon as a “Personal Injury Attorney” and gives his office
address and telephone number. One afternoon, Salmon was standing in a
o crowd of people that saw a pregnant woman knocked down in a pedestrian
crosswalk by a speeding car. A few days later, Salmon mailed the woman a
o copy of his brochure, together with a letter stating that he had witnessed the
accident and was willing to represent her for a reasonable fee should she wish
Q to sue the car driver. The outside envelope stated that the envelope contained
“Advertising Material.” The bar in Salmon’s state does not have a 30-day
V__ _ waiting period of the kind involved in Went For It, Inc., above.
c A. Salmon is subject to discipline, both for sending the woman the
brochure and for sending her the letter.
B. Salmon is subject to discipline for sending the woman the letter,
but not for sending her the brochure.
o C. Salmon is subject to discipline for offering his legal services, for
a fee, to a person who was not a relative, client, or former client.
D. Salmon’s conduct was proper.
6. Attorney Gresler offered a free half-day seminar for nurses, hospital
attendants, and emergency medical personnel on personal injury law as it
relates to accident victims. During the seminar, he told the group about the
importance of preserving items of physical evidence, keeping accurate records
of medical treatment, accurately recording statements made by the victim and
others about the accident, and the like. At the close of the seminar, he passed
out packets of his professional cards and invited the members of the group to
give them to accident victims. Was Gresler’s conduct proper?
f
A. Yes, because a lawyer has an ethical obligation to help non­
C,,’ lawyers recognize legal problems and handle those problems correctly.

c
o
c
 136 Advertising and Solicitation Ch. 4
B. Yes, because his conduct is protected by the Free Speech clause
of the First and Fourteenth Amendments.
C. No, because he invited members of the group to hand out his
professional cards to accident victims.
D. No, because he dispensed legal advice to people with whom he
had no prior professional relationship.
7. After graduating from law school, three young women formed their
own new firm dedicated to the law of women’s rights in the workplace. They
established an attractive site on the Internet. Their website includes very
specific biographical information about each of them, including information
about their families, their hobbies, and all the academic and athletic honors
they received in college and law school. The site also includes detailed,
thoroughly researched position papers they have written on current legal
issues in their field of law practice. The position papers are written so they can
be understood by a lay audience. The website includes an e-mail link that
allows site visitors to ask legal questions of the three lawyers. The question
form requires the questioner to supply enough information about him or
herself to permit the lawyers to do a conflict of interest check before responding
to the question. The questioner supplies a credit card number, and the lawyers
charge a small fee for e-mailing an answer to the question. The lawyers do not
answer questions from site visitors who live outside the state in which the
lawyers have their office. If a question is too difficult to answer competently by
e-mail, the lawyers invite the questioner to come to their office for a free initial
consultation. Is the conduct of the three lawyers proper?
A. No, because their website includes personal information about
the three lawyers that is not relevant to the potential client’s selection of
a lawyer.
B. No, because the e-mail feature permits the three lawyers to
dispense legal advice to people they have never met and with whom they
have never established a lawyer-client relationship.
C. Yes, but only if the fee for e-mailing an answer to a question is
not unreasonably high.
D. Yes, but only if the position papers are on non-controversial legal
issues that do not require a specialized knowledge of women’s employment
law.
8. The firm of Wilkens & Crosse has existed for many years in Chicago.
Now it wishes to open an office in Los Angeles. The Los Angeles office will be
established as a separate partnership. Some of the proposed Los Angeles
partners are admitted to practice only in California, and they will not become
partners in the Chicago firm. Some of the Chicago partners are admitted to
practice in both Illinois and California; they will retain their partnership in
the Chicago firm, and they will also become partners in the Los Angeles firm.
The letterheads of both firms will accurately identify which lawyers are
admitted to practice in which jurisdictions. The two firms will regularly refer
Ch. 4 Advertising and Solicitation 137

work back and forth, and each firm will be available to the other firm and its
clients for consultation and advice. Further, on some occasions, partners and
associates will be transferred from one firm to the other. Each firm will
advertise itself as an "affiliate” of the other firm. Is the arrangement proper?
A. Yes, provided that the nature of the "affiliate” relationship is
explained.
B. Yes, because "affiliate” is a broad term that can cover many
kinds of relationships.
C. No, because a partner of a firm in one state is not permitted to
be a partner of a firm in a different state.
D. No, because the arrangement contemplates the referral of work
from one firm to the other in violation of the solicitation rule.
Answers to the multiple choice questions will be found
in the Appendix at the back of the book.
c
o

/'"‘■’A

Cj

Q Chapter Five
c
c Attorney Fees and Fiduciary Duties
/’~s.
c; ■■■

c What This Chapter Covers

Q I. Attorney Fees
A. Setting Fees
o 1. Excessive Fees
c 2. Factors in Fee Setting
3. Contingent Fees
c B, Lending Money to Clients
o C. Splitting Fees with Other Lawyers
c II. Fiduciary Duties
A. Commingling
o B. Safeguarding Property
c C. Notifying Clients, Keeping Records, and Paying Promptly
Q Reading Assignment
c Schwartz, Wydick, Perschbacher, & Bassett, Chapter 5.
ABA Model Rules:
c Rules 1.5, 1.8(e), and 1.15.
c Supplemental Reading
c Hazard & Hodes:
Q Discussion of ABA Model Rules 1.5, 1.8(e), and 1.15.

C Restatement (Third) of the Law Governing Lawyers §§ 34—47 (2000).

C
Discussion Problems
Q 1. After graduating from law school three years ago, Dolores became
O a solo practitioner in a medium-sized city. She has a general civil and
criminal practice, and she puts in about 60 hours a week at the office. That
yields her a weekly average of 40 billable hours. She takes a two-week

Q 139
o
140 Attorney Fees and Fiduciary Duties Ch. 5
vacation in the summer and another two weeks spread throughout the rest
of the year. She and some other solo practitioners occupy a nicely furnished
suite of offices under a lease-service arrangement. The leasing company
provides them a good law library and also provides receptionist, secretary,
delivery, and photocopy services. The lease-service fee plus Dolores’s other
overhead expenses total about $7,000 per month.
House painter Leonard wants Dolores to represent him in a dispute
with an unhappy customer over a $6,000 unpaid painting bill. Dolores
offered to handle the matter for an hourly fee, but Leonard wants a flat fee
set in advance. Dolores has not handled precisely this kind of case before,
and she knows that she will have to do about two hours of basic legal
research that would be unnecessary for a more experienced lawyer. She
estimates that, in addition to the two hours of basic research, it will take
her about 10 billable hours to complete the matter. Assume that the
average lawyer in the community would charge Leonard about $1,500.
a. What do you think would be a fair fee for Dolores to
charge Leonard? How did you arrive at that figure?
b. Suppose that Dolores quotes Leonard a flat fee of $1,750
and that they make an oral agreement to that effect. Is Dolores
subject to discipline?
c. Suppose Leonard wants a contingent fee rather than a
flat fee. Dolores agrees to take the case for 35% of whatever
amount she recovers for Leonard. Under what, if any,
circumstances would that be proper?
d. Suppose that Leonard paints portraits rather than
houses, and that the amount in controversy is $60,000 rather than
$6,000. How, if at all, would that change your estimate of a fair
fee?
2. The law firm of Pursleigh, Siege, Rose-Murray & Tine limits its
practice to business law. Much of the firm’s work comes from two large
clients—Universal Telecom (a worldwide supplier of modern
communications equipment and services) and ShopRite, Inc. (a nationwide
chain of retail discount stores). Tara Gunn was fresh out of law school when
she joined the firm as an associate. Due to the low cost of living in the
region, Tara’s starting salary was the equivalent of new associates’ salaries
in New York and other major cities. During her first year at the firm, Tara
picked up the following pieces of information about the firm’s billing and
promotion policies. What is your reaction to each piece of information?
a. During Tara’s first month at the firm, she wondered how
the firm charges clients, so she asked her supervising partner,
who said: “The partner in charge of the matter does the billing. At
the end of each billing period, for each lawyer who worked on the
 Ch. 5 Attorney Fees and Fiduciary Duties 141
c matter, the billing partner totals the number of hours worked and
o multiplies the hours by the billing rate for that lawyer. The more
skill and experience the lawyer has, the higher the billing rate.
c Sometimes the billing partner makes an adjustment to reflect a
variety of factors, such as the inexperience of the lawyer, the
c difficulty of the task, the result achieved, the amount at stake,
and so forth. The adjustment can go either up or down, and our
o clients know that. Sometimes, a client complains about a bill—
especially ShopRite, which has a tiny-minded auditor who pecks
o over every bill looking for nits. When we get a complaint, we sit
down with the client and work it out. Does that answer your
c question?”
Q b. Associate Albert joined the firm about six months before
Tara. One day at lunch, he told Tara: “I spent over 30 hours last
C week researching a patent licensing issue for Universal Telecom.
I felt so stupid because I didn’t take the IP licensing course in
q school—when I finally found the right nest of cases, it turned out
to be a simple issue with a clear answer. I stayed late at the office
o three nights in a row to get it done, but I didn’t dare log more than
10 hours total, because my boss would think I’m a dolt.”
o c. When Tara was recruited for the firm, she was told that
c the firm wants its lawyers to have plenty of time for their families,
for the community, and for their own interests and pursuits. Tara
c was told that the “billable hour target” for associates is 1,800
hours per year. She was also told that associates receive year-end
o bonuses and raises commensurate with their performance and
growth during the year, as determined by the firm’s Budget
c Committee. After she started work, Tara learned from various
sources that in recent years associates who log around 1,800
c billable hours receive only a token bonus and raise, and that the
big money goes to those who log from 2,000 to 2,400 billable hours.
c Tara also learned that associates in the 1,800 hour range seldom
make partner.
c d. Associate Allison told Tara that she and other
Q experienced associates have learned “survival skills,” such as
never logging less than 8 billable hours per day or 40 billable
V-/ hours per week. Short phone calls help, she said, because the
firm’s minimum charge for a phone call is 6 minutes (.1 hour), so
( '■
one can log a half-hour by making five two-minute phone calls.
Further, Allison said, she and other associates log “think and
o worry time.” She explained: “When you are working hard on a
client’s problem, you don’t stop thinking about it when you go
G down the hall to use the restroom, or when you are munching a
sandwich at the lunch counter, or when you are cleaning up the
Q
142 Attorney Fees and Fiduciary Duties Ch. 5
baby’s room at home, or when you lie awake at night worrying
about the questions for tomorrow’s deposition. All of that time can
be logged if you keep track of it and label it something like ‘review
and analysis of... ’ or ‘preparation for deposition of. .. .’”
e. Tara asked associate Arnold to share his “survival skills”
with her. He responded: ‘The key is to be systematic. First, learn
to record your time whenever you switch tasks during the day.
When you are working on client A’s task, and client B sends you
an e-mail that needs a prompt answer, make sure that
interruption gets recorded immediately. If you leave the time
logging until the end of the day, you will forget half of the
interruptions and distractions that consumed your time, and you
will wonder how it could have taken you so long to do client A’s
task. Second, learn to avoid re-inventing the wheel. Most of my
work is employment discrimination and sexual harassment cases
for ShopRite and Universal Telecom. I’ve concluded that sexual
harassment cases come in five basic patterns. Once I figured out
the patterns, I developed five sets of standard forms and
checklists. They are on my computer, and when a new case comes
along, my secretary and I can churn out the pleadings, the
interrogatories, the pretrial motions, and so forth in a third of the
time it used to take. I know how long it used to take, and that’s
how much time I log for the task. By being systematic, I have been
able to bill around 2,300 hours in each of the last two years. My
supervising partner is delighted, the client is well served, and I’m
headed for partnership.”
f. Associate Arnold also explained the benefits of large
corporate clients with deep pockets. He noted that one such client,
Mega Corp, is billed at an hourly rate and never challenges the
billings. Accordingly, when Arnold is assigned to work on a Mega
Corp matter, his research is exceptionally thorough—he reads
every potentially relevant case and follows every suggested lead
in Westlaw or Lexis, often spending up to 8 billable hours daily.
3. Dringle bought a sailboat and a motorboat from Seaboard Marine
Supply Company on credit, and he failed to make timely payments on
either boat. Seaboard hired attorney Welch to collect the two debts. Welch
sent a series of appropriate demand letters to Dringle. Finally, Dringle left
a check, a message, and a set of keys at Welch’s office. The message said:
“Here is a check for the $7,500 I owe Seaboard on the sailboat. I have no
way to pay for the motorboat, so here are the keys to it; you will find it tied
to the dock at the City Marina.” At the time, Welch was in trial and working
16 hours a day, so she put the message, the check, and the keys in an
envelope, labeled it “Seaboard Marine,” and put the envelope in hei* office
safe. Her trial ended two weeks later, and that very day she deposited the
c
Ch. 5________ Attorney Fees and Fiduciary Duties__________ 143
c check in her client trust account and notified Seaboard about the keys and
c the location of the motorboat. Did Welch handle the matter properly?
Q 4. Attorney Arner agreed to represent client Corman in a suit
against defendant Drews. Arner’s written fee agreement with Corman
provided that Arner would receive $75 per hour for his work, and that the
c fee “may be deducted from the proceeds of said litigation before payment
thereof to” Corman. Corman won a judgment for $50,000, and Drews sent
c Arner a check in that amount, made payable to Corman. Arner consulted
his time records and concluded that he had spent 153.3 hours on the case,
c for a total fee of $11,500. Arner endorsed the check with Corman’s name
and presented it at the bank where he maintained his client trust account.
c He had $38,500 deposited in the client trust account, and he took the other
c $11,500 in the form of a bank cashier’s check, made payable to him
personally. That same day, he wrote to Corman as follows:
Q Drews’ check came in today. I have expended 153.3 hours on the
matter, for a total fee of $11,500. Accordingly, I am holding
$38,500 for your account, and I will send you a check in that sum
promptly upon receiving word from you that the fee computation
Q is correct and in accordance with our agreement.
Did Arner handle the matter properly?
n 5. New client Cheryl has never retained a lawyer before, but she
needs legal assistance in an amicable divorce proceeding. Cheryl has asked
,Q Attorney Adam to represent her, and has suggested that Adam’s services
be limited to whatever can be accomplished with $1,200 in attorney’s fees.
Adam’s hourly rate is $300, so $1,200 in fees would only permit Adam to
C spend foui' hours on Cheryl’s matter. Although Cheryl has described her
c divorce proceeding as amicable, in Adam’s experience it is likely that such
a matter will require at least eight hours of his time. May Adam agree to
Q Cheryl’s suggested fee limitation and seek additional fees upon reaching
the $1,200 limit?
CJ
Robert L. Wheeler, Inc. v. Scott
C Supreme Court of Oklahoma, 1989.
777 P.2d 394.
Q
Kauger, Justice.
O
X------ -
The dispositive question is whether, after summary judgment was
entered against Robert L. Scott (appellant/client) in a mortgage foreclosure
c proceeding, and after the trial court subsequently reduced the fee charged
by Scott’s attorney from $140,116.87 to $125,723.00, the fee was still
c excessive. After a careful examination of the standards enunciated in [prior
0 cases,] we find that it was.
144__________ Attorney Fees and Fiduciary duties_________ Ch. 5
Facts
* * * Robert L. Scott (cfient/appellant), a geologist and a geophysicist,
hired Robert L. Wheeler (appellee/lawyer) to represent him after he was
unable to pay a business loan. During the next ten months, Wheeler
represented Scott in the collection and lien foreclosure action filed against
Scott by the mortgagee, United Oklahoma Bank. In the first five months of
Wheeler’s representation, Scott was billed for legal services in the amount
of $54,275.37 representing 524.5 hours and averaging 108.5 hours per
month which he paid. During the next five months, Scott was billed
$85,841.50 for legal services representing 753.4 hours, averaging 150.6
hours per month which he did not pay.
* * * [The bank then] moved for summary judgment. Two days before
the hearing on the bank’s motion, the lawyer told his client that if the
attorney fees were not paid, he would withdraw from the case. Scott did not
pay, and Wheeler did not withdraw. Instead, a first year associate was sent
to oppose the bank’s motion for summary judgment. The bank’s motion was
granted, and the attorney withdrew from the case * * * . Thereafter, Scott
retained new counsel, and the case was settled.
* * * [Wheeler then] filed an action to collect unpaid attorney fees.
Scott answered, asserting that the fees were excessive for the following
reasons:
1) The case was never tried. Summary judgment was entered
against him.
2) The client was billed a total of 1295.9 hours. However, a first
year associate, who had failed to pass the bar at the first sitting,
and who had been admitted to the bar for only five months before
beginning work on the case, billed 853.5 hours at $110.00 an hour.
3) The firm representing the bank charged the bank $75,534.10
for 850 hours. These hours were for three attorneys with an
average of ten to twenty years of experience, who normally bill at
$150.00 an hour. However, because the lawyers are on retainer
with the bank, they reduced their normal hourly rate in this case.
4) The bank’s motion for summary judgment alleged that
although a large amount of money and property was involved, the
foreclosure was a simple case complicated by unfounded and
legally unsound assertions by Scott’s counsel. The bank’s lawyer
repeated these assertions at the hearing on attorney fees, and he
also testified that his first year associates were billed at $85.00 an
hour.
5) As prevailing party, the opposing attorney received
$75,534.10 in attorney fees.
Ch. 5Attorney Fees and Fiduciary Duties___________________ 145
After hearing the evidence, the trial court reduced the hourly rate of
the first year associate from $110.00 to $80.00, and the total attorney’s fee
from $140,116.87 to $125,723.00. Scott appealed. The Court of Appeals
affirmed * * * , We granted certiorari * * * to address the question of the
reasonableness of the attorney fee.
***
A proper resolution of this case requires a thorough examination and
balancing of the * * * [twelve factors we discuss below:] * * *
1. Time and labor required
The most visible and the most readily explainable portion of a bill for
attorney fees is the time and labor expended by an attorney in performing
services for a client. However, it is not the only relevant factor, and it must
be considered in conjunction with the other enumerated criteria. Fees
cannot be awarded on the basis of time alone—the use of time as the sole
standard is of dubious value. Were fees to be calculated based only on the
time spent on a case, worthy use of time would cease to be a virtue, a
premium would be placed on inexperience, inefficiency, and inability, and
expeditious disposition of litigation would go unrewarded.
Time spent in acquiring a basic law school education in the area of law
concerned cannot be regarded as one of the determinative factors of a
reasonable attorney fee. Attorneys are presumed to have acquired a
working knowledge of fundamental legal principles as well as the ability to
examine and apply the law. This does not mean that an attorney, within
the limitations ordinarily necessary for a competent and skillful lawyer,
should not be compensated for the time spent in necessary research. It does
mean that if a lawyer takes on a case in an area in which he or she is totally
unfamiliar or inexperienced, the client should not have to pay for every
minute of the lawyer’s preparation. Here, for example, a comparison of the
time charged for preparation of the case by each of the law firms reflects
that it is unlikely that billing 1295.9 billable hours, 853.5 of which were by
a first year lawyer, was proper when the prevailing law firm staffed by
seasoned counsel charged for 850 hours. In short, a reasonable attorney’s
fee in a given case does not necessarily result from simple multiplication of
the hours spent times a fixed hourly rate.
2. Novelty or difficulty of issues
The attorney for the prevailing party testified at the hearing, and he
stated in his motion for summary judgment, that this was a simple case.
He also noted that although a large sum of money was involved, the case
had been unduly complicated by opposing counsel’s unfounded and legally
unsound assertions. One of the basic considerations in establishing the
reasonable value of legal services is the type, extent, and difficulty of the
services rendered. Substance must control over form. The intricacy and
146 Attorney Fees and FiduciaryDuties Ch. 5
difficulty of the questions involved, and not necessarily the amount of
manual legal work exhibited by the number of papers in the file of the case,
must control.
3. The skill requisite to perform
Another factor, which must be considered with the novelty or difficulty
of the issues, is whether the services are routine, or whether exceptional
skill or effort is required. Wheeler testified that he relied on his oil and gas
expertise in designing his strategy. However, this expertise apparently did
not come into play before summary judgment was entered because the
attorney did not determine the value of the oil producing properties until
after it was rendered. (The declining value of the properties was the reason
given by the bank for settling the cause for less than the amount entered
in its favor on summary judgment.)
4. Loss of opportunity for other employment
The fact that the employment for which compensation is sought
deprived the attorney of the opportunity to secure other employment is
another element of some significance in determining a reasonable fee. The
court must consider not only the loss of other employment because of the
time taken by the matter at hand, but also the fact that there may be
involved in the matter certain elements which might cause the attorney to
lose future business because of an association with the case. The attorney
testified that this case neither required that he refuse to represent a
potential client, nor did he introduce any evidence that his association with
this case deprived him of future business.
5. The customary fee
Generally, courts consider the amounts customarily charged or
allowed for similar services in the same locality. Only two witnesses were
presented, and their testimony was conflicting. The expert called by Scott
testified that the amount the prevailing party received, $75,500.00, was
reasonable compensation. The expert witness, who testified on behalf of
Wheeler, stated that $140,000.00 was a reasonable fee.
6. Whether the fee is fixed or contingent
Although the court initially looks to the hourly rate for comparable
representation where compensation is guaranteed, it must adjust the basic
hourly rate where compensation is contingent by assessing the likelihood
of success at the outset of the representation. Although contingent fee
contracts are subject to restrictions, especially if the client is a minor, such
agreements have generally been enforced unless the contract is
unreasonable. The contingent fee system allows persons who could not
otherwise afford to assert their claims to have their day in Court. In this
case, a contingent fee is not involved. The parties agreed that the fee would
be based on an hourly rate.
c
Ch. 5 Attorney Fees and Fiduciary Duties 147
c 7. Time limitations imposed by the client or circumstances
c This element is pertinent if an attorney must adjust the firm’s other
work load to accommodate the particular pressing needs of a client.
c Generally, additional fees have been allowed when the client failed timely
to notify the attorney of such problems. There was no evidence implying
Q any unusual time restrictions.
o 8. The amount involved and the results obtained
In establishing reasonable attorney fees, the court may properly
c consider the amount involved in litigation. This case involved over ten
million dollars. However, this cannot be the sole component to be weighed.
c If the amount implicated, even though large in denomination, neither
c increases measurably the work nor enlarges the principles of law, it cannot
be the deciding factor in setting a very high fee.
o Closely related to the element of the amount or value of the property
at issue, is the solution achieved by the attorney. While the court should
c consider all the guidelines, it must also contemplate the benefit to the client
as a result of the services. The attorney testified that his client needed what
Q he provided—time for opportunity to accomplish settlement—either to
t—\ extend the client’s loan or to make arrangements to fit his cash flow and
k_. current financial condition. (We note that after the attorney withdrew, the
n client and the bank settled.)
9. Experience, reputation, and ability of the attorney
c The attorney’s standing in the profession for learning, ability, skill,
and integrity is recognized as a proper matter for consideration in
Q assessing the value of the services provided and can be a basis for a higher
Q award. The reverse is also true: inexperience, apparent lack of ability, or
poor performance may reduce the award. Here, it appears from the time
sheets and the appearances in court, that the primary attorney was the
first year associate. The testimony by the expert witnesses indicated that
C the first year associate had not established a reputation in the legal
community sufficient to command a higher fee.
C 10. The undesirability of the case
□ Apparently, this was an ordinary case to foreclose a lien which the
client had little chance of winning, and that the client’s best solution was
o the settlement obtained after the attorney withdrew from the case.
11. Casual or regular employment
C; The nature and length of the professional relationship between the
□ client and the attorney is also subject to review. Clients who do not
routinely employ the attorney should not expect the lower legal fees
O normally negotiated with clients who regularly hire or retain counsel. Scott
was not a regular client.
O
C
Q
148 Attorney Fees and Fiduciary Duties Ch. 5
12. Awards in similar cases
There was no evidence presented concerning awards in similar cases,
other than the amount received by the prevailing party.
Conclusion
The proper determination of reasonable attorney fees requires a
balancing and thorough consideration of the * * * [twelve factors we have
discussed.) Apparently, the trial court gave too much weight to the time
spent on the case and failed to consider adequately the other applicable
standards. Setting attorney fees would be a simple matter if numbers could
be inserted mechanically into a universally valid formula. Unfortunately,
this is not the case. Here, it is obvious that much of the time expended was
unnecessary by any reasonable standard. Under our detailed analysis of
the guidelines—particularly the excessive time spent, the relative
simplicity of the issues (except where they were needlessly multiplied and
complicated by counsel), the very average lawyering skill required, the
nonpreclusion of other employment, the entry of summary judgment, the
customary fee, the absence of restrictive time limitations, and the
inexperience of the lawyer who did the bulk of the work—we find that the
fee allowed by the trial court is excessive. [Reversed and remanded with
directions.]

Blue-Chip Bilking: Regulation of Billing

and Expense Fraud by Lawyers
Lisa G. Lerman
12 Geo. J. Legal Ethics 205, 208-209, 219-221, 222-223, 225-226 (1999)?

In recent years, a disturbing number of well-respected lawyers in large

established firms have been caught stealing large amounts of money from
their clients and their partners by padding, manipulating and fabricating
time sheets and expense vouchers. Some have gone to prison, been
disbarred, and/or been fired. Others have escaped prosecution or discipline.
It used to be that lawyers inclined to steal from their clients wrote checks
to themselves from their client trust accounts without client authorization
and without having earned the money. Trust account fraud still occurs, but
in recent years, theft from clients and from partners through billing and
expense fraud has become more common and more pervasive.
Billing fraud takes many different forms. Here are some examples:
• Some lawyers are just sloppy about keeping time records.
• Some systematically “pad” time sheets, or bill one client for
work done for another.
• Some create entirely fictitious time sheets.

• Reprinted with the permission of the publisher, Georgetown Journal of Legal Ethics ©
1999, and with permission of the author.
Ch. 5________ Attorney Fees and Fiduciary Duties__________ 149
• Some record hours based on work done by other lawyers,
paralegals, or secretaries, representing that they did the
work.
• This may result in nonbillable time being billed, or in work
being billed at a rate higher than that of the person who
actually did the work.
• Some lawyers bill for time that their clients might not regard
as legitimately billable—for schmoozing with other lawyers,
chatting with clients about sports or families, for doing
administrative work that could be done by a nonlawyer, or for
thinking about a case while mowing the lawn or watching
television.
The methods of expense fraud are equally diverse; the lawyers who
engage in expense fraud may be stealing from their clients or their partners
or both.
• Some lawyers represent personal expenses to be business
expenses. Some limit themselves to requesting
reimbursement for personal expenses that have a “nexus” to
the work, such as a daily massage while in litigation, or
buying a new suit while on travel. Others bill clients for
extravagant gifts and vacations regardless of whether there
is a work nexus.
• Some “doctor” receipts for legitimate expenses to increase the
amounts claimed, or manufacture receipts for expenses that
were not in fact incurred.
• Some lawyers—being “fair” to their clients—represent
legitimately billable time as reimbursable expenses, so that
the payment of that amount from the client goes directly to
the lawyer as reimbursement rather than being paid to the
firm as a fee. Since this income to the lawyer is represented
as reimbursement of expenses, it is unlikely to be reported as
income, so this maneuver also may involve tax fraud.
Billing fraud is far more difficult to detect than expense fraud, unless
the lawyer is reckless enough to bill more than twenty-four hours per day.
But regulation of this type of conduct is very difficult because no one except
the lawyer really knows how much time was spent and how much was
billed. Because this arena involves such a wide degree of personal
discretion, those tempted to cheat may perceive, quite accurately, that the
odds of apprehension are close to zero. Nevertheless, some lawyers are
being investigated, disciplined, and prosecuted, so the problem is beginning
to surface and a body of law on billing fraud is developing.
***
150 Attorney Fees and Fiduciary Duties Ch. 5
Various developments in the legal profession have contributed to the
emergence of billing fraud as a major problem. During the 1980s and 90s,
the legal profession has become more of a business and less of a profession.
Civility has declined, competition has increased. Financial success has
become the dominant value for many lawyers. Many lawyers and firms
have subordinated professional standards, fiduciary obligations to clients,
and ideas about mentoring to income maximization. Preoccupation with
profit is most intense in some of the most respected law firms in the United
States.
The rising dominance of income generation as a central goal is evident
in many recent trends in the profession. Large law firms have grown larger,
lateral movement among firms has increased, and the likelihood of an
associate becoming a partner at his or her firm has dropped dramatically.
Partnership in a law firm used to represent life tenure. Now many firms
routinely lay off not only associates but also partners. The desire to
increase firm profits and partner income is the principal force that has
driven these changes.
Lawyers are employed at law firms in a multiplying number of
statuses. Once all the lawyers were either associates or partners. Now
there are equity partners, income partners, junior partners, senior
partners, of counsels, permanent associates, and part-time associates and
partners. * * * Firms have gradually increased demands on lawyers to bill
hours. Twenty years ago most firms expected lawyers to bill 1,300 to 1,500
hours per year. By 1990 many firms had increased the annual target for
both associates and partners to 2,000 hours per year, and the most
demanding firms expected 2,500 hours per year. * * *
***
Client behavior has also changed during the last twenty years.
Corporate clients that once each had a deep and stable relationship with a
single firm now solicit bids from law firms for various chunks of legal work.
As the cost of legal services rises, corporations ask in-house counsel to do
an increasing share of the legal work. Corporations that once
unquestioningly paid massive legal fees based on billing statements that
offered little more information than “for professional services rendered”
now publish extensive policies detailing what they will and will not pay for
and in what form they require billing information. The corporations’
interest in cost control has given rise to a cottage industry of legal auditors
who earn their fees by scrutinizing law firm bills and identifying
fraudulent, improper, or unnecessary charges. Clients also are far more
likely than they once were to sue their lawyers for malpractice or breach of
fiduciary duty.
"k "k
 Ch. 5________ Attorney Fees and Fiduciary Duties__________ 151
o Hourly billing pressure may be the most serious problem faced by the
Cj legal profession. It has robbed many lawyers of the possibility of balanced
lives, has caused a decline in mentoring, collegial relationships, and
□ professional satisfaction, and has had a marked corrosive effect on the
integrity of many lawyers * * * * . Billing pressure is partly responsible for
c the low esteem in which our profession is held. Billing and expense fraud
is only one product of the billing mania that has taken over the culture in
o so many large firms. Regardless of the precise magnitude of this problem,
the profession must take it on. As long as some lawyers deceive their clients
o about how much time they are spending or what they are doing, all clients
worry. If clients lose confidence that there is some objective basis for the
□ amount they are billed, or if clients lose confidence that their lawyers are
candid about the basis for their bills, who could fault clients who become
o suspicious, demanding itemization and compliance with restrictions?
* * * In 1993, the ABA Ethics Committee issued an opinion on issues
relating to hourly billing, prohibiting padding of time sheets, double­
billing, billing anew for recycled work, and charging above cost for
administrative or other non-legal services.1 This opinion was an important
step in the direction of providing needed guidance to lawyers, and has been
followed or extended by many other state and local bar ethics committees.
Still, lawyers, firms, and lawyer regulators have been slow to recognize the
frequency and seriousness of billing fraud. The disciplinary systems still
focus on monitoring trust accounts as a primary method of detecting theft
from clients. Some have established random trust account audit programs
or overdraft notification systems. These measures are important, but they
fail to detect what may be the most common method of theft from clients:
billing and expense fraud. * * *
***

□ 1 [ABA Standing Committee on Ethics and Professionalism,] Formal Op. 93-379 [(1993)].

c The opinion states that:

• a lawyer who agrees to bill on the basis of time spent cannot bill for more than the
actual time spent except for rounding up to a minimum billing increment;
o • a performance fee or bonus may be added to the lawyer’s fee only if the client agrees;
• a lawyer may charge clients separately for expenses incurred in connection with legal
co services, but may not charge for overhead related to maintaining, staffing, and
equipping an office;
Q • marking up expenses is not permitted, either for services provided in office or for
services provided by third parties;
• a lawyer may not bill one of period of time to more than one client;
o • a lawyer may not bill a client more than the actual time spent even if a job that would
have taken twenty hours takes only two because a similar job was recently done for
another client * * *
152 Attorney Fees and Fiduciary Duties Ch. 5
Board of Professional Responsibility,
Wyoming State Bar v. Casper
Supreme Court of Wyoming, 2014.
318 P.3d 790.

Marilyn S. Kite, Chief Justice.

This is an attorney discipline case that arose out of Respondent’s
billing excessive legal fees and her subsequent improper attempts to collect
those fees. Respondent entered into a Legal Services Agreement (LSA) with
her client in December 2011, and thereafter entered her appearance on the
client’s behalf in a divorce and child custody proceeding. The LSA provided:
MINIMUM BILLINGS: CLIENT understands that when
ATTORNEY is in the office, ATTORNEY charges a minimum of
one quarter hour (15 minutes) for CLIENT’S case, including
telephone calls, except for reviewing and signing letters which will
be billed for one-quarter hour.
***
The client paid Respondent a $5,000.00 retainer, and Respondent
represented the client through the first day of trial, October 12, 2012. The
proceedings were adjourned and subsequently reset for a second day of
trial, April 19, 2013. In January 2013, Respondent filed a motion to
withdraw because the client had not paid her fees. That motion was
granted by the district court, and the client completed the trial without
assistance of counsel. * * *
***
DISCUSSION
Excessive fees—Wyo. R. Prof. Conduct 1.5
Respondent has stipulated to the following facts regarding her billing
in this matter:
19. *** the fee agreement was signed by [her client], on
December 8, 2011. Respondent’s first billing entry, on December
12, 2011, describes .25 hours spent by Respondent in reviewing
the fee agreement. There is an identical entry on December 14,
2011. Thus, Respondent incorrectly billed her client .5 hours (or
$100) for reviewing the fee agreement prepared by Respondent’s
staff and signed by the client several days earlier. Respondent
acknowledges that this time should not have been billed, and
certainly not billed twice.
20. Respondent’s billing practice for the case was to write down
tasks as she completed them. These tasks were then billed
pursuant to a fee schedule that billed Respondent’s time spent on
cases in minimum increments of .25 hours. Respondent did not
Ch. 5________ Attorney Fees and Fiduciary Duties__________ 153
keep track of the amount of time she actually spent on certain
tasks performed under the minimum billing increment.
21. The billing record contains 106 different entries for
Respondent’s one-quarter hour minimum increment. Respondent
acknowledges that few if any of those tasks would reasonably
require a quarter hour of her time. For example, Respondent
routinely billed .25 hours each to sign such documents as
subpoenas, stipulated orders and pleadings.
22. Furthermore, of the 106 entries for Respondent’s minimum,
quarter-hour increment, 75 are for “review” of some document.
Respondent routinely billed .25 hours each for review of such
things as the fee agreement, one-or two-page pleadings,
subpoenas, a one-page order for mediation, a one-page notice of
setting, and numerous one-page letters. Respondent
acknowledges that these billing practices constituted an abuse of
the minimum time increment feature of the fee agreement.
23. There are instances in which Respondent billed twice for the
same activity. In several instances, Respondent billed .25 hours to
review a document and another .25 hours to sign the same
document.
24. In one instance, Respondent billed her client for time spent
on a motion to continue that was necessitated by Respondent’s
scheduling conflict. In this instance, the proper exercise of billing
judgment demanded that Respondent’s client should not have
been billed.
★**
Respondent acknowledges that this conduct violated Rule 1.5 of the
Wyoming Rules of Professional Conduct. The stipulated facts indicate that
she billed for tasks she did not perform, billed twice for the same activity,
and billed for tasks already completed days before. Billing for work not
done is a clear violation of Rule 1.5’s prohibition of making an agreement
for, charging, or collecting an unreasonable fee. “[A] lawyer who has
undertaken to bill on an hourly basis is never justified in charging a client
for hours not actually expended.” ABA Comm, on Ethics & Profl
Responsibility, Formal Op. 93-379, at 5 (1993). * * *
Use of billing with minimum time increments does not necessarily
result in an unreasonable fee. The Court recognizes that use of minimum
billing increments is a useful tool which is not, in and of itself, unethical.
The Task Force on Lawyer Business Ethics has explained:
For convenience, lawyers generally keep track of the time spent
using standard increments of time, commonly six minutes (0.1
hour), ten minutes (1/6 hour) or fifteen minutes (1/4 hour). This
154 Attorney Fees and Fiduciary Duties Ch. 5
approach is essential and should not be objectionable unless the
increments are unreasonably large or are used in an abusive
manner. It would not be practical to keep track of time in
constantly varying measurements, and minimum increments
serve the practical needs of both lawyers and clients. On the other
hand, the practice should not be abused. Legitimate use of a
minimum time increment may depend on how the lawyer records
the balance of the increment. Two fifteen-minute charges for two
five-minute calls within the same fifteen-minute period seem
inappropriate; some balancing should be used.
Task Force on Lawyer Business Ethics, Statement of Principles, 51 Bus.
Law. 745, 760 (1995-1996). A necessary companion to the requirement that
a lawyer bill clients only for work done is the requirement that the lawyer’s
invoices accurately describe the legal services and amounts charged to the
client. ABA Formal Op. 93-379, at p. 9.
In this case, Respondent had specifically contracted with her client to
bill in minimum increments of fifteen minutes. This Court does not hold
that such an agreement is unreasonable. * * * However, “[t]he
reasonableness of a fee is not measured solely by examining its value at
the outset of the representation." * * * Although Respondent may have
billed in compliance with the LSA terms, she failed to ensure that her
charges were reasonable.
***
* * * “Billing for legal services * * * should not be a merely mechanical
exercise. * * * A reasonable fee can only be fixed by the exercise of
judgment, using the mechanical computations simply as a starting point.
* * * ” [Citation.]
Respondent in this case billed in fifteen-minute increments, in
accordance with the contractual terms, times a reasonable rate. However,
her practice of billing fifteen minutes for such tasks as signing subpoenas,
stipulated orders, and one-page letters demonstrated a complete failure to
exercise business judgment, which would have required her to write off
unproductive, excessive, or redundant hours.
The Court finds the record supports the stipulation; Respondent’s
actions violated Wyo. R. Prof. Conduct 1.5.
***
* * * «rhe Board accepts the parties’ stipulation that the following
mitigating factors are present: (1) absence of a prior disciplinary record; (2)
full and free disclosure to the Board and Bar Counsel; (3) timely good faith
effort to make restitution or to rectify consequences of misconduct; and (4)
remorse.
 Ch. 5 Attorney Fees and Fiduciary Duties 155
***

IT IS, THEREFORE, HEREBY ORDERED:

Q 1' That the Report and Recommendation for 30 Day Suspension filed by
the Board of Professional Responsibility of the Wyoming State Bar on
Cj January 10, 2014, is hereby, approved, confirmed, and adopted by this
Court as modified above; and
[~*'l
2. That Stacy E. Casper be suspended from the practice of law for a period
of thirty days, commencing August 1, 2014; and
N- /
***
Q 5. That, in conjunction with the Wyoming State Bar, Stacy E. Casper
design and teach a Wyoming CLE program on proper billing practices and
O techniques * * * .
□
o I. THE BILLABLE HOURS TREADMILL
o In mid-2002, the ABA Commission on Billable Hours issued a report®
that urges the legal profession to stop using billable hours as the primary
o measure of a lawyer’s worth and the primary determinant of a client’s fee.
Supreme Court Justice Stephen Breyer introduces the report by asking
□ why so many lawyers ignore society’s need for law reform work and for pro
\___ ;
bono legal services. Here is his answer:
The villain * * * is what some call the “treadmill”—the continuous
o push to increase billable hours. * * * How can a practitioner
undertake pro bono work, engage in law reform efforts, even
o attend bar association meetings, if that lawyer also must produce
2100 or more billable hours each year, say sixty-five or seventy
c hours in the office each week. The answer is that most cannot, and
for this, both the profession and the community suffer.
c
The treadmill’s pressure is partly financial: law firm salaries have
□ grown exponentially; at the same time, younger lawyers must
repay law school loans that may amount to $100,000 or more. But
□ the pressure also reflects the increasing complexity and
specialization of the law itself, along with growing demands by
o clients for a precise accounting of the services for which they pay.b
Q The worship of billable hours is a relatively new religion for lawyers.
Before 1960 or so, many lawyers didn’t even keep formal records of the
□
“ ABA Commission on Billable Hours Report, 2001—2002. The views expressed in the report
Q have not been approved by the ABA House of Delegates or the ABA Board of Governors, so they
do not reflect official ABA policy.
c b Id. at vii.
 o
156__________ Attorney Fees and Fiduciary Duties________ Ch. 5
o
amount of time they spent on various clients’ legal matters. For routine D
legal matters (such as the drafting of a simple will), many lawyers simply
billed their clients in accordance with “minimum fee schedules” published
O
by state or local bar associations—a kind of price fixing that would be
illegal per se if done in an ordinary business.
D
For more complicated legal matters, lawyers in those days used the O
“multitude of factors” method that is reflected in today’s ABA Model Rule
1.5(a). At the end of the legal matter, (or the end of the year, or quarter, or O
month), the billing lawyer would look over the client’s file to review what
had been done, by which lawyers, how long it took, how much was at stake, P
how difficult it was, and what results had been accomplished for the client.
Then the billing lawyer would write up a “Statement for Services O
Rendered” containing a sketchy description of the various tasks that were
completed during the billing period, followed by a dollar figure showing the O
amount the client owed for legal fees. (Simultaneously, the client would
receive a separate bill itemizing the “Disbursements,” meaning the
o
amounts the lawyer had expended on the client’s behalf for court filings,
service of process, court reporters, long distance telephone charges,
o
investigation expenses, out-of-town travel expenses, and the like.) In those o
days, clients generally trusted their lawyers. Fee disputes were uncommon,
and clients rarely demanded a more detailed explanation of the legal fees o
they were asked to pay.
During the 1970s, four forces elevated the billable hour to its present a
exalted position. First, the United States Supreme Court held that the
Sherman Antitrust Act prohibits bar associations from publishing
o
“minimum fee schedules.”0 Second, the Court decided the Bates case,* *3
which you read in the last chapter, holding that lawyers may advertise
D
their wares and their prices, and opening a new era of competition in the o
legal profession. Third, lawyers started listening to self-styled experts in
law office management, who were teaching that lawyers who keep o
meticulous time records make more profit than those who don’t. Fourth,
clients began to demand more detailed explanations of legal fees, especially o
corporate clients with legal departments that were told to keep watch over
the work done and fees charged by outside counsel. o
When a law firm uses billable hours to charge a client (or as the first Q
step in charging a client), the firm must set a billing rate for each lawyer __
or each category of lawyers. For example, the billing rate for associates (3
with one year of experience might be $X per hour, and the billing rate for
partners with twenty years of experience might be $5X per hour. If billable p
hours were the sole determinant of a fee bill to a client, then computing the _______
bill would be a simple exercise in multiplication and addition. The billing LJ

c See Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).

o
* Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
a
o
o
o Ch. 5________ Attorney Fees and Fiduciary Duties__________ 157
Q lawyer would multiply the number of hours each lawyer worked on the
Q matter times that lawyer’s billing rate, and the resulting sums would be
added up to produce the total fee. Few firms would admit to using billable
O hours as the sole determinant of a bill to a client; most would say that they
use billable hours as the first step, followed by a judgmental step in which
C the billing lawyer adjusts the fee, either up or down, by considering the
other factors listed in ABA Model Rule 1.5(a).
o The ABA report finds that law firms increased their reliance on
billable hours during the 1970s and 1980s.® The report continues:
c
Under a [law firm] budget based on billable hours, the best way to
Q increase revenue was either increase the * * * [billing rate for each
lawyer] or increase the number of hours worked. During the 1970s
C and 1980s, the system based on both lawyer rates and billable
hours worked. Firms set billable hour goals for their partners and
Q associates. However, as competition among lawyers increased and
the economy fluctuated, many lawyers could not increase their
C rates enough to covei- increased expenses. As a result, the number
of billable hours worked had to be increased. Firms began taking
C a harder line and billable-hour goals became billable-hour
o commitments. During the 1990s, those billable-hour commitments
reached unreasonably high levels in many firms.f
□ In his preface to the billable hours report, the then-ABA President
Robert Hirshon wrote:
c Today, unintended consequences of the billable hours model have
Q permeated the profession. * * * [MJany young attorneys are
leaving the profession due to a lack of balance in their lives. The
O unending drive for billable hours has had a negative effect not
only on family and personal relationships, but on the public
o service role that lawyers traditionally have played in society. The
elimination of discretionary time has taken a toll on pro bono work
o and our profession’s ability to be involved in our communities. At
the same time, professional development, workplace stimulation,
mentoring and lawyer/client relationships have all suffered as a
result of billable hour pressures.®
□ The billable hours model is seriously flawed, President Hirshon wrote:
□ The billable hour is fundamentally about quantity over quality,
repetition over creativity. With no gage for intangibles such as
Q productivity, creativity, knowledge, or technical advancements,
the billable hours model is a counter-intuitive measure of value.
C
CD • See ABA report, supra note 1, at 3.
f Id. Emphasis added.

» Id. at ix.
158 Attorney Fees and Fiduciary Duties Ch. 5
Alternatives that encourage efficiency and improve processes not
only increase profits and provide earlier resolution of legal
matters, but are less likely to garner ethical concerns.11
The ABA report examines the flaws in the billable hours model in
greater detail. Here are some of the conclusions:
1) The billable hours model doesn’t encourage the lawyer to prepare
a project plan or case plan at the outset. The lawyer can simply start
working and reporting hours. Lack of planning can produce inefficiency
and raise the client’s costs. In contrast, a billing arrangement that includes
a flat fee or contingent fee component forces the lawyer to plan from the
start.1
2) The billable hours model doesn’t enable the client to predict how
much the legal services will cost. How can the client make a sensible cost­
benefit judgment if the client doesn’t know the cost half of the equation?
But, a lawyer might respond, legal matters are notoriously unpredictable—
one cannot tell in advance how much time and effort a matter might take.
The report concedes that some legal matters are unpredictable enough to
warrant an hourly charge, but “too often hourly billing becomes a crutch
for the lawyer who is not sufficiently knowledgeable * * * [or] productive,
or is unwilling to share with the client the risk of the lawyer’s own
inefficiency.”!
3) The billable hours model penalizes the efficient, productive lawyer
and rewards the slow plodder who racks up many billable hours. True, that
won’t happen if the efficient, productive lawyer is assigned a higher billing
rate, and is paid a proportionately higher wage, but the ABA report argues
that too often the billing rate spread and wage spread are not large enough
to reward efficiency and productivity. Moreover, the billable hours model
discourages lawyers from taking advantage of “research on the shelf’ (such
as a set of interrogatories the firm used two years ago in a case just like
this one), and taking advantage of technological change (such as drafting
on a word processor rather than giving dictation to a legal secretary).1*
4) The billable hours model may discourage communication between
lawyer and client. For example, suppose a law firm that charges a
minimum quarter-hour for every phone call. When the client becomes
aware that a five-minute telephone inquiry to his lawyer costs him a
minimum quarter-hour of the lawyer’s time, the client may stop making
inquiries, even legitimate ones. On the other hand, when the lawyer
discovers that she can rack up a full hour of billable time by making four

>■ Id.
* Id. at 5-6.
J Id. at 6.
* Id.
 Ch. 5 Attorney Fees and Fiduciary Duties 159
c
short phone calls, she may snow her clients under with routine reports,
o causing them to instruct her to accomplish more and communicate less.1
Neither the ABA report, nor any thoughtful lawyer, argues that law
firms should stop all use of time as a measure of legal fees and lawyer
productivity. “Time spent” has always been, and should continue to be, an
important factor in setting fees and setting compensation to lawyers. The
o ABA report does, however, encourage law firms to continue experimenting
with alternative methods of charging clients and paying lawyers. No
o alternative method is right for every firm in every case, but here are three
of the alternative methods described in the ABA report:
o 1) Fixed or Flat Fees. A fixed or flat fee is a specified dollar figure the
firm will charge the client for a specified piece of legal work. [Some firms
c use the trendier label “task-based billing.”] Fixed or flat fees are the most
common alternative to hourly fees; they are especially popular with
Q medium-sized law firms doing transaction work (rather than litigation).m
O One reason they are used less often in litigation is that they do not make
the client consider litigation costs when making or responding to a
Cj settlement proposal." However, in 2009, O’Melveny and Myers announced
its intention to become “the leader in providing high-end legal services on
o a fixed fee basis,” and both Mayer Brown and Reed Smith moved to
institute fixed fees for transactional work.
□ 2) Contingent Fees. As is discussed in the following section of this
chapter, contingent fees have started to spread in the United States from
c their point of origin in the personal injury field. In a pure contingent fee
Q arrangement, the lawyer’s fee depends entirely on the outcome of the
matter—if the client achieves the desired result, the lawyer gets a
O handsome reward, but if the client does not achieve that result, the lawyer
gets nothing. The ABA report mentions that in Japan, lawyers
o traditionally charge a fairly low base fee to finance the case, followed by a
final fee that depends on the outcome of the matter. This approach allows
o the Japanese lawyer to cover costs “and to focus not on the time spent, but
on the results, which is where the clients focus.”0
Cj 3) Hybrid Billing Methods. As the name suggests, hybrid
alternatives combine the features of two or more other billing methods.?
□ One fairly common hybrid is the flat fee plus an hourly rate for work in
excess of a specified maximum. (For example, lawyer L might agree to do
□ the first 500 hours of work for a $100,000 flat fee, plus $100 per hour for
C work in excess of the 500 hours.) Another hybrid is the hourly fee plus a

c 1 See id.
m Id. at 16.
o " Id.
° Id. at 18.
c Id. at 18.
 o

160____________Attorney Fees and Fiduciary Duties_________Ch. 5

o
contingent fee. (For example, lawyer L might agree to do all the necessary o
work for $100 per hour, plus 5% of whatever amount the client recovers in
excess of one million dollars.)
o
The ABA report also considers how an individual lawyer or paralegal □
might be paid for working on matters that are not billed by the hour.« For
example, suppose a firm is handling a matter for a fixed fee of $1,800,000. o
Suppose that the work will take three months to complete, and that the
client will pay $600,000 at the end of each month. Suppose also that the o
matter will require half the time of one partner, the full time of two
associates, and the full time of one paralegal. Each of the four people would o
be assigned a series of tasks and revenue targets. For example, the
paralegal’s first task might be to find, assemble, digest, and index all of the o
client’s documents that are relevant to the matter, and the revenue target
for that task might be $35,000. When the client pays the first $600,000 at p
the end of the first month, part of it would be set aside to help cover the o
firm’s overhead. The remainder would be available to pay the four people
working on the matter, measured by how much each had accomplished. For o
example, if the paralegal completed all of the first task, he or she would
receive all of the $35,000 target. The ABA report continues: o
There are many benefits to this approach. First, it accommodates
a mix of fee arrangements and does not penalize people who are o
efficient on fixed fee projects (and who may generate equal
revenue with less effort than someone billing on an hours basis.) □
Second, it de-emphasizes billable hours as the primary measure o
of performance. Third, it gets lawyers more invested in the
management of the matter * * * . Because the measurement is CD
related to fee collection rather than only hours (the “realization
rate”), lawyers on the matter will be more involved in managing O
the matter effectively, such as reducing write-offs and billing and
collecting on a timely basis. Fourth, it encourages people to think O
about pricing. If * * * [a person’s] target is $500,000, * * * [the
person] can get there in any number of ways and with various O
levels of effort. The mix is, to some degree, up to * * * [the person].1.
The ABA report concludes with some suggestions for law firms that
O
want to continue using the billable hours model, but that want to make it O
more efficient and less odious.5 For example, suppose the firm’s present
policy is to require 2,000 billable hours per year from associates, and to CD
give a bonus of $5,000 for each additional 100 billable hours. The firm
purports to encourage associates to do more pro bono work, and it counts CD
the first 50 pro bono hours toward the 2,000 billable hours requirement. If
o
q Id, at 27-30. O
r Id. at 29.
■ See id. at 43—55.
O
O
O
Ch. 5Attorney Fees and Fiduciary Duties___________________ 161
the firm is serious about wanting associates to do more pro bono work, it
could count the first 100 pro bono hours toward the 2,000 requirement.
Alternatively, the firm could establish a separate bonus for pro bono work.
For example, after meeting the 2,000 billable hours requirement, a lawyer
could earn one (but only one) bonus of $5,000 for 100 additional hours of
ordinary work, plus a second $5,000 bonus for 100 additional hours of pro
bono work.
Questions about the Billable Hours Treadmill
1) Do you think that increased use of alternative billing and
compensation models would produce fees that are fairer to clients?
2) Do you think that increased use of alternative billing and
compensation models would encourage lawyers to work more efficiently?
3) Do you think that increased use of alternative billing and
compensation models would improve the quality of life for lawyers?

II. QUESTIONS AND ANSWERS

ABOUT CONTINGENT FEES
1. How does a contingent fee work, other than in plaintiffs personal
injury cases?
In the United States, contingent fees are quite common in personal
injury cases, but that is not true in other common law jurisdictions, where
fee-shifting (making the loser pay the winner’s fees) and extensive legal aid
programs are the norm. In the U.S., contingent fees have become
increasingly common in other kinds of litigation (e.g. patent infringement),
in non-litigation matters (e.g. a public stock offering where the lawyer’s fee
depends on the capital generated), and in various matters where the
contingency is the amount saved, rather than the amount gained (e.g. a
breach of contract case in which the defense lawyer’s fee depends on the
amount the defendant saves by winning).
2. What's wrong with charging a contingent fee in a criminal case?
ABA Model Rule 1.5 continues the traditional rule that a lawyer must
not use a contingent fee when defending someone in a criminal case. The
reasons for the rule have never been convincingly stated. Is it possible that
the rule drafters think criminal defense lawyers might be tempted to
manufacture or suppress evidence if they were working on contingency?
Isn’t the same temptation present in civil litigation? Note that the
Restatement (Third) of the Law Governing Lawyers § 35(l)(a) (2000)
prohibits contingent fees for prosecutors as well as criminal defense
lawyers. In the United States (unlike many other common law nations),
prosecutors are usually government employees working for a steady salary.
On the rare occasions that the government hires a private lawyer to
 o

162__________ Attorney Fees and Fiduciary Duties_________Ch. 5

prosecute a case, the pay should not be contingent on winning a conviction o
because that might tempt the private prosecutor "to seek convictions more
than justice.” [Id., comment f(ii).]
o
3. What’s wrong with charging a contingent fee in a domestic o
relations case?
The question overstates the scope of the rule. ABA Model Rule 1.5(d)(1)
o
prohibits a contingent fee in a domestic relations case only if the o
contingency is getting a divorce, or the amount of alimony, support, or a
property settlement. The rule does not prohibit a contingent fee for legal o
work done to collect unpaid money due under an alimony or support decree
oi- a property settlement. [ABA Model Rule 1.5, comment 6.J O
4. Can a contingent fee ever be unreasonably high?
O
Like all attorney fees, the amount of a contingent fee must not be
unreasonable. [See ABA Model Rule 1.5(a); ABA Formal Op. 94-389; D
Restatement (Third) of the Law Governing Lawyers § 35 (2000).] A
contingent fee can be higher than an hourly fee or a fixed fee because the O
lawyer bears the risk of not being paid at all if the matter is lost.
[Restatement, supra, § 35, comment c.] Further, reasonableness is D
measured at the time of making the contingent fee agreement, not at the
time the fee becomes due. [ABA Formal Op. 94—389.] For example, suppose O
lawyer L agrees to represent plaintiff P who claims that defendant D
Corporation stole P’s valuable trade secrets. At the outset, both P and L 0
anticipate a long, difficult battle, and L agrees to do the legal work in
exchange for one-third of whatever P wins. As it turns out, D Corporation O
doesn’t want to fight, and the case settles quickly foi- a handsome sum. It
is ethical for L to hold P to the contingent fee bargain, even though it gives O
L a fee that would be unreasonably high if measured on an hourly basis. If O
luck had run the other way, and the case had taken four times as much
work as L and P expected, P could hold L to the bargain; what’s fair for one O
is fair for the other. [See Restatement, supra, § 35, comment c.]
5. Suppose the lawyer knows at the outset that the case is a sure O
winner—is a contingent fee proper?
0
You have put your finger on one situation in which a court or
disciplinary agency may well conclude that a contingent fee is O
unreasonably high. [Remember, however, that the “sure winner” is more
likely to appear in academic discussions than in real life.] Let’s suppose 0
that P was injured when she was hit by D’s car. P consulted lawyer L. The
moment P told L about the accident, L could see that D was at fault and o
that P’s injuries are serious enough to warrant a large damage award.
Without explaining these points to P, L had her sign his standard o
contingent fee agreement, giving him one-third of whatever P wins by
settlement, judgment, or appeal. After a few hours work, L convinced D’s o
insurance company to make P a very generous settlement offer, which P
o
o
o
c
Ch. 5_________ Attorney Fees and fiduciary Duties____________163
o
accepted with pleasure. Must P pay L one-third of her settlement? A court
o or disciplinary agency might very well rule that L’s fee is unreasonably
high, because L didn’t tell P how strong her case was before getting her to
o sign the contingent fee agreement. [Restatement, supra, § 35, comment c;
ABA Formal Op. 94-389.]
Q 6. I’ve heard that contingent fees can be either “static” or “sliding,”
but I don’t understand what that means.
O
In the simplest kind of contingent fee agreement, the lawyer’s
O percentage remains static—-it does not change, no matter what happens in
the case. For example, if the agreement provides that the lawyer will be
o paid 35% of the client’s net recovery (that is, the recovery after deducting
litigation expenses), then the lawyer will get 35% no matter whether the
o case settles within a week or ends ten years later after two trips to the
United States Supreme Court. A more complicated contingent fee
o agreement puts the lawyer’s percentage on a sliding scale. For example,
the agreement might provide that lawyer gets 25% if the case ends before
o a trial date is set, or 35% if it ends between the setting of a trial date and
entry of judgment by the trial court, or 45% if the case is set for briefing on
Q appeal. ABA Formal Op. 94-389 approves this kind of sliding scale as a
c rough way of making the fee reflect the amount of work the lawyer does.
Another type of sliding scale makes the lawyer’s percentage go up as
Q the client’s recovery goes up. For example, the agreement might give the
lawyer 15% of the first $100,000, 20% of the next $100,000, and 25% of
O everything above that. This kind of sliding scale reflects the fact that the
lawyer’s skill and diligence are better measured by the last dollar of
o recovery than by the first dollar. That is, maybe any old lawyer could have
obtained $100,000 for the client, but only a very skilled, diligent lawyer
o could have obtained over $200,000. ABA Formal Op. 94-389 also approves
this kind of sliding scale.

III. LOANS TO CLIENTS

When you read ABA Model Rule 1.8(e) about loans to clients, note that
c the prohibition applies only in a litigation context, that is, where litigation
is pending or contemplated. Note also that the prohibition has only one
c exception: the lawyer may lend the client money to cover court costs and
CD litigation expenses. Early drafts of the Restatement of the Law Governing
Lawyers § 36 (2) would have allowed a lawyer to lend a client money to
Q cover a client’s other expenses (food, shelter, medical care, basic business
expenses and the like) during litigation, where financial hardship might
O otherwise force the client into an early settlement or dismissal. The lawyer
could not offer or promise such a loan before being hired. The liberal loan
Q provision was at first approved by the membership of the American Law
Institute, but it was removed later in the process. Do you see any policy
C
c
Q
164 Attorney Fees and Fiduciary Duties Ch. 5
reasons for prohibiting lawyers from lending their clients enough money to
get along during litigation? Are there any opposing policy reasons?

IV. CLIENT TRUST ACCOUNTS

ABA Model Rule 1.15 requires attorneys to keep clients’ money and
property separate from their own, to maintain adequate records, to notify
clients promptly when money or property is received on their behalf, and
to deliver promptly any money or property that belongs to clients. [See also
Restatement (Third) of the Law Governing Lawyers § 44 (2000).]
1. What Is a Client Trust Account?
Attorneys frequently receive money either from clients or on behalf of
clients. For example, an attorney who does collection work may receive
money from the client’s debtor. Or, the plaintiffs attorney in a personal
injury case may receive settlement money from the defendant or the
defendant’s insurance company. Or, the defense attorney in such a case
may receive money from the defendant to be used in paying off a judgment.
Or, an attorney in a business transaction may receive money from the
client for use on the client’s behalf later in the transaction. In each of these
examples, the money belongs to the client, and the attorney must put it
into a client trust account. The client trust account must be separate from
the attorney’s personal account and the law office account, and the attorney
must nevei' commingle personal or law office funds with the client’s funds
in the trust account. (The attorney may, however, put enough of her
personal funds or office funds into the client trust account to pay the bank’s
service charges on that account.]
When a lawyer receives a large sum to be held for a long period, the
lawyer should make a specific agreement with the client about how the sum
is to be handled. Absent a specific agreement, the lawyer should put the
sum into a separate, interest-bearing trust account at a bank. The interest,
of course, belongs to the client, not to the lawyer. The lawyer should use a
separate, interest-bearing trust account if the interest to be earned will
exceed the cost of keeping a separate account. [See id., comment d.]
Typically, however, a lawyer receives relatively small sums, to be held
for relatively short periods, on behalf of many different clients. The lawyer
traditionally lumps these sums together in a single trust account in a bank.
Usually this account is a checking account, not a savings account, because
a checking account makes transactions easier and provides a simple, clean
record of what went where. Prior to the 1980s, banks did not pay interest
on checking accounts, and in those days, the banks were blessed with free
use of money that lawyers across the nation were holding for their clients.
Further, even when banks began offering interest-bearing checking
accounts, most lawyers did not take advantage of them because it was too
costly to prorate the interest among clients. In the 1980s, state bars
Ch. 5 Attorney Fees and Fiduciary Duties 165

discovered a way to end this gratuitous subsidy of the banking industry.

State bars started permitting or requiring lawyers to use special interest­
bearing accounts (called IOLTA, “Interest on Lawyer Trust Accounts”) for
small sums that are to be held for relatively brief periods. The bank sends
the interest on these IOLTA accounts directly to a foundation that uses the
money to fund legal service programs for under-represented people. [See,
e.g., Cal. Bus. & Prof. Code §§ 6210—6212.] In 1999, IOLTA programs
generated $139 million nationwide. [See Caitlin Liu, Court Ruling
Threatens a Major Funding Source for Legal Aid, L.A. Times, Jan. 22, 2001
at B3.]
IOLTA funds have helped lawyers to pursue causes that some
conservative organizations perceive as undesirable—causes such as gay
rights, immigration law clinics, domestic violence clinics, and the like. One
conservative group, the Washington Legal Foundation, convinced the U.S.
Supreme Court to rule that the interest on an IOLTA account is the
“private property” of the clients whose funds are put in the account.
[Phillips v. Washington Legal Foundation, 524 U.S. 156, 118 S.Ct. 1925,
141 L.Ed.2d 174 (1998).] In that case, the Court did not decide whether the
IOLTA program resulted in a Fifth Amendment “taking” for which “just
compensation” was due. The Court subsequently held that although the
clients’ interest was taken for a public use, there was no violation of the
Just Compensation Clause because the clients suffered no net loss. [Brown
v. Legal Foundation of Washington, 538 U.S. 216, 123 S.Ct. 1406, 155
L.Ed.2d 376 (2003).]
2. What Goes into the Client Trust Account?
Suppose that you have agreed to represent a client in some litigation.
The two of you have signed a letter agreement in which you have agreed to
do the work for a specified hourly fee. At the close of your initial two-hour
interview with the client, she hands you $1,000, consisting of the following
sums: $100 is to pay your fee for the initial interview. $400 is an advance
for expenses that you will incur as the case proceeds—court filing fees, the
sheriffs fee for serving the complaint, deposition travel, and the like. The
remaining $500 is an advance to cover your fee for work that you will do on
the case within the next few weeks. How much, if any, of the $1,000 must
go into your client trust account?
Fee for Completed Work
Obviously the $100 payment for the initial interview does not go into
your client trust account. That payment covers work you have already
done—it belongs to you, and you would be guilty of commingling if you put
it into your client trust account.
 o

166 Attorney Fees and Fiduciary Duties Ch. 5 o

Expense Advance o
What about the $400 that the client has advanced for expenses? The o
expense advance is regarded as “client’s property” under ABA Model Rule
1.15, so you must deposit it in the client trust account. The reason is o
obvious; if you put the expense advance it in your own account or your office
account, you might spend it and have nothing left to pay the client’s o
expenses when they arise. Moreover, if you withdraw or get fired before the
advance has been consumed, you must refund the remainder to the client. o
[See ABA Model Rule 1.16(d).]
o
Advance on Attorney Fees
What about the $500 advance on attorney fees? ABA Model Rule o
1.15(c) specifies that legal fees paid in advance must be put into the client
trust account, "to be withdrawn by the lawyer only as fees are earned.” o
Somewhere in your legal training, you have probably read or heard the ( )
term “retainer.” Beware of that term, because lawyers use it in different
senses, and they seldom explain what they mean. Sometimes lawyers use Q
“retainer” to describe the contract by which a client hires a lawyer. For
instance, ‘It is proper for a retainer agreement to include a clause that O
requires arbitration of fee and malpractice disputes.” [See ABA Formal Op.
02-425.] O
Other times, “retainer” means a fee that the client pays the attorney CJ
simply to be available should the client need legal assistance during a
specified period or with respect to a specified matter. The Restatement o
(Third) of Law Governing Lawyers § 34, comment e, uses the phrase
“engagement retainer fee” when it means that kind of fee. [See also Cal. o
Rule of Prof. Conduct 3—700(D)(2) (defining “true retainer fee” as one “paid
solely for the purpose of ensuring the availability of the attorney for the o
matter”).] The attorney earns that kind of fee by agreeing to be available,
not by performing services. Indeed, from the client’s point of view, one o
benefit of such a fee is to make a particular attorney unavailable to a
potential adversary in the event of litigation. That kind of fee belongs to o
the lawyer when it is paid, and it should not be put into the client trust
account. [See Wisconsin State Bar Formal Opinion E-86—9 (1986).] That o
kind of fee must be reasonable in amount; if it is excessive, the attorney is
subject to discipline. When and if the client actually needs legal services, o
the attorney will provide them for an additional hourly fee that is often
lower than the attorney’s ordinary rate.
o
Most commonly, attorneys use the term “retainer” to mean a deposit— o
an advance payment of fees for work that the lawyer will perform in the
future. If the attorney withdraws or is fired before completing the work, o
the attorney must refund the unearned portion of the advance. [See ABA
Model Rule 1.16(d).] The attorney must put the advance into the client o
trust account. [ABA Model Rule 1.15(c).] At reasonable intervals, the
o
o
o
Ch. 5_________ Attorney Fees and Fiduciary Duties___________ 167
attorney should provide the client an accounting of the work done and the
amount that the attorney proposes to deduct from the advance. If the client
does not dispute the amount, the attorney may then withdraw it from the
client trust account and put it to his or her own use.
The obvious moral of this discussion is to be clear when you draft your
fee agreement with your client. If some primordial urge drives you to use
the term “retainer/’ at least explain what you mean in terms that both you
and the client will understand.
3. What Records Must the Attorney Keep?
ABA Model Rule 1.15(a) requires an attorney to keep “complete
records” of all clients’ money and property that comes into the attorney’s
possession. For clients’ money, the attorney should keep a ledger sheet for
each client, a journal for each bank account, all bank statements and
cancelled checks, and a monthly reconciliation of the ledger sheets,
journals, and bank documents. For clients’ property other than money, the
attorney should keep a journal that shows that the property is, for whom
it is held, when it was received, and when and to whom it was handed over.
The records should be kept for the number of years specified by local rule
(usually about five years).
4. What Is a "Client Security Fund”?
All 50 states have established “client security funds,” a source of
money that can be used to reimburse the hapless clients of dishonest
lawyers. In some states, all lawyers are required to make a small annual
contribution to the fund; in other states, the contributions are voluntary.
Client security funds are generally not large enough to provide full
reimbursement to all claimants, but they can provide at least partial
reimbursement to many victims. For example, in 2001, California’s client
security fund paid out $4.4 million to 609 victims. Every practicing
California lawyer pays $35 per year into the fund. [See Kristina Horton
Flaherty, Client Security Fund Comes to the Rescue, Cal. Bar J., Aug. 2002,
at 1.]

Multiple Choice Questions

Answer these questions using the definitions found
at the end of Chapter Two.
1. Criminal defense lawyer Lenox agreed to represent defendant
Denmon at Denmon’s trial for arson. Lenox and Denmon orally agreed on the
following attorney fee arrangement. If Denmon were acquitted, the fee would
be $25,000. If Denmon were convicted of any lesser included offense, the fee
would be $5,000. If Denmon were convicted of arson, the fee would be $500.
Lenox further agreed to advance all litigation expenses, subject to Denmon’s
168 Attorney Fees and Fiduciary Duties Ch. 5
promise to repay Lenox whatever the outcome of the case. Which of the
following statements are correct?
1. Lenox is subject to discipline for not putting the fee agreement in
writing.
II. It was proper for Lenox to agree to advance the litigation expenses.
III. Lenox is subject to discipline for charging a contingent fee in a
criminal case.
IV. It was proper for Lenox to require Denmon to repay the advanced
litigation expenses whatever the outcome of the case.
A. Only I, II, and IV are correct.
B. Only I and III are correct. .
C. Only II and IV are correct.
D. All of the statements are correct.
2. Attorney Kimberly represented client Marsha in a divorce proceeding
in a non-community property jurisdiction that has a no-fault divorce law.
Marsha was married for 25 years, and during the marriage her husband
became a very wealthy business executive. The two children of the marriage
grew up and left home. Marsha had a savings account of her own, but she was
not wealthy, and she had no marketable job skills. Kimberly convinced Marsha
to sign a contingent fee agreement, in which Kimberly’s fee would be 25% of
whatever property settlement Marsha would get in the divorce decree. The
divorce court awarded Marsha a $10 million dollar property settlement.
Marsha refused to pay Kimberly the $2.5 million fee due under the fee
agreement, saying that it was unreasonably high. After trying without success
to settle the fee dispute amicably, Kimberly sued Marsha to collect the fee. May
the court award Kimberly less than $2.5 million?
A. No, because Kimberly took the risk of not being paid anything
when she took the case on contingency, and she is entitled to be
compensated for that risk.
B. Yes, because Kimberly acted improperly in using a contingent
fee agreement in a divorce case, where the amount of the fee was
controlled by the amount of the property settlement.
C. No, because a contingent fee agreement is permissible in a
domestic relations case, except where the contingency is the granting of a
divorce.
D. Yes, because it is unethical for a lawyer to sue her own client to
collect a fee.
3. Lawyer Leland is admitted to practice only in Kentucky. He regularly
represents Holiday Hotels, Inc., a Kentucky corporation with its principal
offices in Lexington. Holiday was sued for trademark infringement in Oregon,
and Holiday asked Leland to oversee the case and to select appropriate Oregon
 Ch. 5 Attorney Fees and Fiduciary Duties 169

counsel to do the trial work. With Holiday's approval, Leland selected Oregon
attorney Alvarez, and Alvarez paid Leland $1,000 for the referral. Leland
oversaw all of the work in the case, and he conducted all of the discovery that
Qj took place in Kentucky. Alvarez conducted all of the discovery that took place
in Oregon, and he prepared the case for trial and served as trial counsel. At
Qj the conclusion of the case, Leland and Alvarez submitted separate bills to
Holiday for their respective services. Which of the following statements is
0^ correct?
,— A. It was proper for Leland and Alvarez to bill Holiday separately,
assuming that each bill was reasonable in amount.
o B. It was proper for Alvarez to pay Leland $1,000 for the referral,
since the two lawyers shared the work and responsibility for the case.
c C. Leland and Alvarez are subject to discipline for failing to submit
a single bill to Holiday, because the two lawyers shared the work and
o responsibility for the case.
c D. The arrangement was proper, unless the total fee Holiday paid
was higher than it would have been absent the $1,000 referral fee.
c 4. After Carlson was injured in a car wreck, he was treated in the
hospital for twelve days by physician Patino; she billed him $7,500 for her
o medical services. The wreck put Carlson out of work, and he had no way to pay
Patino’s bill. He hired attorney Aragon to sue the person who caused the wreck;
c in a written fee agreement, Aragon promised to do the work for a contingent
fee. Aragon decided that Patino would make a good expert witness in the case.
c Aragon and Carlson agreed that Aragon would lend Carlson $7,500 to pay
Patino’s medical bill and that Aragon would advance the money needed to pay
o Patino at $100 per hour for the time she spent preparing to testify and
testifying as an expert witness. Carlson agreed to pay back Aragon at the
Q conclusion of the case. Which one of the following statements is correct?
A. Aragon is subject to discipline for taking the case on a contingent
fee.
c B. Aragon is subject to discipline for agreeing to lend Carlson the
$7,500.
c C. Aragon is subject to discipline for participating in an agreement
to pay a witness for giving testimony.
c
D. Aragon is subject to discipline for agreeing to advance the money
c needed to pay Patino’s expert witness fee.
5. Attorney Arnstein agreed to represent client Clemens in a products
c liability suit against Draxco, Inc. Clemens refused to discuss Arnstein’s fee at
the outset of the case; rather, Clemens insisted on a provision in the retainer
o agreement that Arnstein would do the work “for a reasonable fee, to be
deducted from the proceeds” of the case. After a long period of discovery,
C2 Arnstein arranged a very favorable settlement between Clemens and Draxco.
Draxco paid the $175,000 settlement by a check made payable to Arnstein.
Cj
o
Cj
 o

170 Attorney Fees and Fiduciary Duties Ch. 5 o

Arnstein immediately deposited the check in his client trust account and o
invited Clemens to come by the office to settle their affairs. When Clemens
arrived, Arnstein gave him a bill for $25,000. He computed that amount by o
multiplying the number of hours he spent on the case (350) times his normal
hourly rate ($65), and adding an extra $2,250 because of the generousness of o
the settlement he had achieved for Clemens. When Clemens looked at the bill,
he turned scarlet and began to shout that the fee was outrageously high. o
Arnstein explained the basis of his charge, and he offered to arbitrate the
matter through the local bar association, but Clemens refused. When Clemens o
demanded immediate payment of the entire $175,000, Arnstein gave him a
check, drawn on his client trust account, in the amount of $150,000. Arnstein o
kept the other $25,000 in his client trust account, pending ultimate resolution
of the fee dispute. Which one of the following statements is correct?
o
A. Arnstein’s handling of the matter was proper. o
B. Arnstein is subject to discipline for charging Clemens more than
his normal hourly rate. o
C. Arnstein is subject to discipline for depositing the entire proceeds o
of Draxco’s check in his client trust account.
D. Arnstein is subject to discipline for keeping the $25,000 in his O
client trust account pending resolution of the fee dispute.
o
6. Client Fujitomi entrusted lawyer Lee with $10,000, to be used six
weeks later to close a business transaction. Lee immediately deposited it in her CD
client trust account; at the time, it was the only money in that account. Later
that same day, the local bar association called Lee and asked her to rush out O
to the Municipal Court to take over the defense of an indigent drunkard,
Watkins, who was being tried for violating an obscure municipal statute. CD
Because of chaos in the Public Defender’s Office, Watkins was being tried
without benefit of counsel. By the time Lee arrived, the judge had already O
found Watkins guilty and sentenced him to pay a fine of $350 or spend 30 days
in jail. Under a peculiar local rule of court, the only way to keep Watkins from CD
going to jail was to pay the fine immediately and to request a trial de novo in
the Superior Court. Therefore, Lee paid the fine with a check drawn on her O
client trust account, and Watkins promised to repay her within one week.
Which one of the following statements is correct? O
A. Lee’s handling of the Watkins matter was proper.
CD
B. Lee would have been subject to litigation sanction if she had
allowed Watkins to go to jail. CD
C. If Lee had paid Watkins’ fine out of her personal bank account,
that would have been proper. o
D. Lee would be subject to discipline for handling the mattei' in any •CD
manner other than she did.
7. Attorney Ayers represents client Canfield as plaintiff in a suit to CD
compel specific performance of a contract. Canfield contracted to purchase
CD
CD
O
Ch. 5 Attorney Feesand Fiduciary Duties 171

Thunderbolt, a thoroughbred race horse, from defendant Dennis in exchange

for $1,500,000 worth of corporate bonds owned by Canfield. Canfield
transferred the bonds to Dennis, but Dennis refused to deliver Thunderbolt.
Two months before the scheduled trial date, Canfield gave Ayers the following
instructions: “I am leaving tomorrow on a six-week sailing trip through the
South Pacific, and you will not be able to reach me by any means. If Dennis
makes any reasonable settlement offer before I return, please accept it, but try
to get the horse if you can.” A week later, Dennis’s lawyer* called Ayers and
said: “Dennis wants to capitulate. He will either return the bonds, or he will
turn over Thunderbolt. He insists on an immediate response, so call me back
this afternoon.” Ayers believes in good faith that Thunderbolt is a tired nag,
worth far less than $1,500,000. Further, Ayers discovers that it will cost nearly
$1,000 to keep Thunderbolt in a safe, bonded stable until Canfield’s return.
What is the proper course of action?
A. Get the bonds and put them in a safe deposit box until Canfield
returns.
B. Tell Dennis’s lawyer that he cannot respond until Canfield
returns.
C. Get Thunderbolt and house him in the safe, bonded stable at
Canfield’s expense until Canfield returns.
D. Get Thunderbolt and turn him out to pasture on Ayers’ farm
until Canfield returns.
Answers to the multiple choice questions will be found
in the Appendix at the end of the book.
 Chapter Six

Competence, Diligence, and

Unauthorized Practice
■■■

What This Chapter Covers

I. Professional Discipline for Lack of Competence or Diligence
A. Taking on Cases You Are Not Competent to Handle
B. Neglecting Cases You Have Taken On
C. Contracting Away Liability for Malpractice
D. Limiting the Scope of the Representation
II. Liability for Malpractice
A. Relationship Between Professional Discipline and Liability for
Malpractice
B. What Constitutes Legal Malpractice
C. Avoiding Liability for Malpractice
III. Unauthorized Practice and Other Relations with Non-Lawyers
A. Assisting Unauthorized Practice
B. Splitting Fees with Non-lawyers
C. Non-lawyers in Law Firms
D. Multi-Jurisdictional and Multi-Disciplinary Practice

Reading Assignment
Schwartz, Wydick, Perschbacher, & Bassett, Chapter 6.
ABA Model Rules:
Preamble: A Lawyer’s Responsibilities, notes 4 and 7 [printed at the
beginning of the ABA Model Rules];
Rules 1.1 through 1.4, 1.8(h), 1.18, and 5.3 through 5.5.

173
 o
Competence, Diligence, and
174 Unauthorized Practice CH. 6 o
Supplemental Reading O
Hazard & Hodes: O
Discussion of ABA Model Rules 1.1 through 1.4, 1.8(h), and 5.3
through 5.5(b). o
Restatement (Third) of the Law Governing Lawyers §§ 3-4,10-12, and 48- O
58 (2000).
O

Discussion Problems
o
1. Lawyer Layton graduated at the top of her class from a famous o
law school that provides a “national” legal education, and she now practices
probate law in Arizona, the only jurisdiction in which she is licensed to o
practice. Purely for her own enjoyment, Layton regularly uses her home
computer to communicate about legal topics with strangers on the Internet.
o
A few months ago, Layton responded to a request for legal advice made by o
one Cushing, a woman from Rhode Island. Cushing’s request was directed
to any lawyer willing to answer, not specifically to Layton. Cushing’s CD
request described a blatant act of malpractice committed by the Rhode
Island lawyer who represented her in her Rhode Island divorce case. The O
malpractice had occurred 35 months earlier; Cushing realized at the time
that her divorce lawyer had made a grave mistake, but she had never done CD
anything about it. Cushing’s Internet message asked whether she had a
valid claim against her divorce lawyer for malpractice. Layton, relying on CD
her national education at the famous law school, and without doing a scrap
of legal research, sent a message to Cushing via the Internet, expressing O
her opinion that the divorce lawyer’s conduct was indeed actionable
malpractice, and advising Cushing that it was not too late to sue because CD
the statute of limitations for legal malpractice is four years. If Layton had
spent a few minutes in the law library or on Westlaw, she would have CD
discovered that the Rhode Island statute of limitations is three years, not
four. Cushing, lulled into inaction by Layton’s advice, did not get around to
CD
suing the divorce lawyer until two months later, at which point she O
discovered that the three year statute of limitations had run.
a. Is Layton guilty of practicing law in Rhode Island CD
without a license?
O
b. Is Layton subject to discipline for incompetence?
c. Is Layton liable to Cushing for legal malpractice? O
2. Client Cameron hired the firm of Alarcon & Brown to represent ( )
her as plaintiff in a products liability action. Cameron gave the firm a
$5,000 advance on attorney fees. The firm’s management committee CD
assigned the case to associate attorney .Anson. Before doing any significant
o
o
o
 Competence, Diligence, and
Ch. 6________________ Unauthorized Practice__________________ 175
amount of work on the case, Anson left the firm for personal reasons. The
management committee then reassigned the case to associate Benson. Due
to his heavy work load, Benson did not get around to filing the complaint
for 10 months. Eventually the case came to tidal before Judge Jergins as
trier of fact. Judge Jergins took the case under submission for 18 months,
despite a state statute that requires judges to decide cases within 90 days.
During that 18 months, Benson did nothing to speed Judge Jergins along,
believing that to do so might annoy him to Cameron’s detriment.
Ultimately Judge Jergins entered judgment in Cameron’s favor, but
Cameron was angry that justice had been so long delayed. Does Cameron
have a valid claim for legal malpractice? Is this an appropriate case for
professional discipline? If so, who should be disciplined?
3. While attempting to board a commercial airliner, Chandler was
personally injured and publicly humiliated by an employee of the airline
company. She hired attorney Adams to sue the company. Adams neglected
the matter, and Chandler eventually complained to the state bar. When
Adams received a letter of inquiry from the state bar, he checked
Chandler’s file and discovered that he had let the statute of limitations on
Chandler’s claim run. Adams met with Chandler, told her honestly what
happened, and offered to pay her $6,500 out of his own pocket. That amount
was $2,000 more than the medical costs she had incurred as a result of the
personal injury. Chandler accepted this offer and signed a form prepared
by Adams that released him "from all further responsibility and liability in
the aforementioned matter.” Adams gave Chandler his personal check for
$6,500; the back of the check stated: "Endorsement acknowledges full
payment and release of all claims.” Adams duly reported the settlement to
the state bar. Did Adams handle the matter properly?
4. Crampton lost the use of his right leg when a nurse gave him
improper medication at the hospital. Crampton consulted attorney Arlene;
she told Crampton that she had never handled a medical malpractice claim
before, but that she would do her best on Crampton’s behalf. Ultimately
Crampton’s case went to trial and was lost. Then Crampton sued Arlene
for legal malpractice, claiming these defects in Arlene’s performance:
a. Arlene failed to consult with any expert on hospital
operations; an expert could have testified that the number of
nurses at the hospital was insufficient to give proper care to all
the patients.
b. Arlene used only one expert medical witness at the trial,
and the jury might have been more impressed had several experts
testified.
c. Arlene failed to find out whether there were any
eyewitnesses around (aides or other nurses) when Crampton
received the improper medication.
 Competence, Diligence, and
176 UNAUTHORIZED PRACTICE Ch. 6
d. Arlene failed to discover a State Department of Health
regulation setting the proper staff/patient ratio in hospitals.
Is Arlene guilty of malpractice for taking on the case in the first place? Do
any of the four defects constitute good grounds for a legal malpractice
claim?
5. Lawyer Levitt got a phone call this afternoon from lawyer
Huffington, house counsel for Infoscope, Inc., a large software company
that Levitt had previously represented in several matters. Huffington told
Levitt that a consumer had sued Infoscope in Levitt’s jurisdiction for
violating the Nelson-Sturgis Act, a federal consumer protection law.
Huffington explained that Infoscope had been sued in a half dozen similar
cases in other jurisdictions, and that Infoscope had won every case on
summary judgment. Huffington said: “Our lawyers in the prior cases have
already researched every possible legal question, and I will send you a
complete set of the legal memos they prepared for us. Further, we have
already been through extensive discovery, and I will send you all the
documents, deposition transcripts, and other materials collected in the
earlier cases.” Then Huffington made Levitt a proposal, as follows: “Our
Board of Directors is tired of high legal bills, and the Board has allocated
$125,000 to dispose of this case. That’s to cover legal fees, litigation
expenses, and settlement or judgment—everything. I’m offering you the
case on that basis. It should be a good money-maker for you. You’ll start by
sending the plaintiff a set of interrogatories, and I can supply you with the
set we used successfully in the two most recent cases. You will also need to
take the plaintiffs deposition, but I can give you a complete outline of all
the points to cover. Finally, you’ll need to move for summary judgment, but
I’ll supply you with the motion papers and briefs from the prior cases.
Whatever part of the $125,000 is left over will be your legal fee.” May Levitt
represent Infoscope on the terms Huffington has proposed?
6. Attorneys Ames, Bell, and Chen are the three shareholders in a
law firm that is organized as a professional corporation. The hardest
working person in the firm is Daley, a non-lawyer. Her title is “Office
Manager,” and her duties include keeping the financial and billing records,
supervising the office staff, and managing the client file system. When she
has time, she also helps the lawyers with research and prepares drafts of
routine legal documents.
a. Daley’s brother and sister want to buy a small piece of
real estate as an investment, and they want to keep the legal costs
as low as possible. Over the years, Daley has picked up enough
knowledge of real estate law to know exactly what to do. Would it
be proper for Daley to do the basic legal work, provided that Chen
looks over the work to make sure that it is accurate and complete?
 Competence, Diligence, and
Ch. 6________________ Unauthorized Practice__________________ 177
b. One of Daley’s friends selected Ames, Bell, & Chen to
represent him in a major matter, thanks largely to his friendship
with Daley. May the firm pay Daley a bonus equal to 10% of the
fees earned in this matter?
c. The firm proposes to set up a retirement program that
will be funded in part by fees earned by the lawyers. Would it be
proper to include Daley as a participant in the retirement
program?
d. The state’s professional corporation statute requires
corporate officers to be shareholders. Bell is officially named as
the corporate treasurer, but in fact Daley does all the financial
work. May the attorneys sell Daley a token number of shares and
name her as the corporate treasurer?
7. Attorney Adam is your former law school classmate. Adam is a
nice person, but he is very disorganized and easily overwhelmed. It has
been brought to your attention that Adam has a tendency to procrastinate,
and that he might not be current with all of the continuing legal education
requirements mandated by the State Bar.
a. Do any of the Model Rules address procrastination?
b. Do any of the Model Rules address continuing legal
education?
c. If any of the Model Rules address procrastination or
continuing legal education, do you have an ethical obligation to
report Adam to the State Bar?
8. Lawyer Louise is a sole practitioner who handles wills, trusts, and
estate planning. On her way home from work, her car was broadsided by a
drunk driver. Louise is expected to survive, but she is currently in a
medically-induced coma.
a. What happens to the legal matters of Louise’s clients
during her recovery period?
b. Are the responsibilities of a sole practitioner in this
regard different from those of a lawyer who works in a multi­
lawyer firm?
9. Yesterday, a potential client visited Attorney Abigail’s office,
seeking legal assistance on a potentially lucrative matter. Abigail would
like to accept the representation but the matter is outside her usual area
of expertise. Abigail would like to associate her friend, Lawyer Laura, who
has a great deal of experience in this type of case and who Abigail likes
much more than Lawyer Linda, who is also experienced and who works at
Abigail’s firm. Under what circumstances may Abigail associate Laura on
the case?
 Competence, Diligence, and
178 Unauthorized Practice Ch. 6
10. Lawyer Leonard has received a settlement offer in the matter of
Phillips v. Darcy; Leonard represents Plaintiff Phillips. The settlement
offer is generous; Leonard knows his client will be delighted with the offer
and will accept. The defendant’s counsel telephoned with the settlement
offer on Monday at 10:00 a.m., and followed up with a written offer less
than an hour later. Leonard knows that defendant Darcy is eager to wrap
up the matter and is hoping for a prompt response. However, Leonard
dislikes Darcy’s counsel, who has jerked him around on a number of
occasions, so Leonard decides to wait a bit before telling Phillips about the
offer—-just a couple of days, just enough to make Darcy’s counsel sweat. As
long as this brief delay does not jeopardize the availability of the offer, may
Leonard ethically do so?

I. LEGAL MALPRACTICE
A. THE RELATIONSHIP BETWEEN LEGAL
MALPRACTICE AND DISCIPLINE BY THE BAR
As used here, the term “legal malpractice” refers to the attorney’s civil
liability to a client or other injured person for professional misconduct or
negligence. Malpractice actions differ from disciplinary actions. First, the
forum for a malpractice action is a civil court, not a disciplinary hearing.
Second, in a malpractice action the attorney’s adversary is an injured
person, not a disciplinary authority. Third, the purpose of a malpractice
action is to obtain compensation for the injured person, not necessarily to
punish the attorney nor to protect the public. [See generally Manuel R.
Ramos, Legal Malpractice: The Profession's Dirty Little Secret, 47 Vand. L.
Rev. 1657 (1994).]
If an attorney violates a statute that governs the legal profession or a
rule of legal ethics, does that automatically mean that the attorney has also
committed legal malpractice? What answer do you find in paragraph 20 of
the Preamble/Scope section at the beginning of the ABA Model Rules? The
Restatement (Third) of the Law Governing Lawyers § 52(2) (2000) gives a
more precise answer: in a negligence action, the trier of fact may consider
the defendant lawyer’s breach of such a statute or rule as an aid to
understanding and applying the standard of care, provided that the statute
or rule was designed to protect people in plaintiffs position. Section 52,
comment f, explains that such a statute or rule tends to show how lawyers
do act and how they ought to act. A statute or rule can also protect a lawyer
from liability. For example, if the client claims that the lawyer abandoned
her for no good reason, the lawyer may be able to show that the client
insisted that the lawyer do something illegal, thus requiring the lawyer to
withdraw. [See ABA Model Rule 1.16(a)(1).]
 Competence, Diligence, and
Ch. 6 Unauthorized Practice 179
B. THEORIES OF LEGAL MALPRACTICE LIABILITY
Several legal theories are available to the plaintiff in a legal
malpractice case, and the choice of theory can be important because of
differences in the measure of damages and the applicable statutes of
limitations. Malpractice plaintiffs often plead an assortment of theories,
hoping that at least one of them will work.
One possible theory is intentional tort. For instance, an attorney can
be sued for misuse of funds, or abuse of process, or misrepresentation. A
second possible theory is breach of fiduciary duty. An attorney’s fiduciary
duties to a client include keeping the client’s confidences, safeguarding the
client’s money and property, avoiding conflicts of interest, being honest
with the client, adequately informing the client, and following the client’s
instructions. [See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS
§ 49, comment b (2000),] A third possible theory is breach of contract. One
source of contractual duties is the express agreement (either written or
oral) by which the client hires the attorney to perform legal services. Even
if there is no express agreement, a court may imply a promise by the
attorney to use ordinary skill and care to protect the client’s interests.
The fourth and most common theory is unintentional tort—ordinary
negligence. Here the plaintiff must prove the familiar elements of a
negligence case: a duty of care, a breach of that duty, actual cause,
proximate cause, and damages. These elements are discussed in the
following paragraphs.
1) To Whom Does an Attorney Owe a Duty of Care?
Obviously, an attorney owes a duty of care to a client. [See
Restatement (Third) of the Law Governing Lawyers § 50 (2000).] A
person can become a client without formal fanfare and without paying a
fee to the attorney. The Restatement § 14(l)(b) explains that a person can
become a client simply by asking the attorney for legal help, if the attorney
does not decline to give the help, and if the attorney knows or should know
that the person will reasonably rely on the attorney to give the help. [See,
e.g., DeVaux u. American Home Assur. Co., 387 Mass. 814, 444 N.E.2d 355
(1983).]
Does an attorney owe a duty of care to a non-client? The answer is
“yes” in four situations:
• Prospective client. An attorney owes a duty of care to a
prospective client. [See ABA Model Rule 1.18; Restatement,
supra, §§ 15 and 51.] For example, suppose prospective client
PC reveals important confidential information to attorney A,
to enable A to check for conflicts of interest before agreeing to
represent PC. If A negligently reveals PC’s confidential
 Competence, Diligence, and
180 ________________ Unauthorized Practice_______________Ch. 6
information to an outsider, A has breached his duty of care to
PC.
• Invited reliance. An attorney owes a duty of care to a non­
client if the attorney invites the non-client to rely on work the
attorney does for a client, and if the non-client does rely. [See
Restatement, supra, § 51(2).] The same is true if the client
does the inviting and the attorney does not object, [7d.] For
example, suppose that client C agrees to sell a ship to buyer
B. B asks C to supply a lawyer’s opinion letter that the ship
is not encumbered by liens. Lawyer L agrees with C to do the
research and write the letter, realizing that B will rely on her
work. If L’s research is negligent, L has breached her duty of
care to B. In some jurisdictions, the general tort law curtails
this duty of care to a non-client if the non-client’s relationship
to the transaction is too remote. [See id. § 51(2)(b) and
comment e.]
• Non-client is intended to benefit. An attorney owes a duty of
care to a non-client if the attorney knows that one of the
client’s primary reasons for getting the legal service is to
benefit the non-client. For example, suppose client C hires
attorney A to draft a will leaving C’s entire estate to T. If A
drafts the will negligently and the estate passes to C’s heirs
instead of T, A has breached her duty of care to T. [See, e.g.,
Lucas u. Hamm, 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d
685 (1961), cert, denied, 368 U.S. 987, 82 S.Ct. 603, 7 L.Ed.2d
525 (1962); see also Perez v. Stern, discussed in 26 Law. Man.
Prof. Conduct 64 (2/3/10).] The Restatement limits this type
of duty of care to situations in which the lawyer’s duty to the
non-client will enhance, not impair, the lawyer’s duty to the
client. [See Restatement, supra, § 51(3)(b) and (c).]
• Breach of fiduciary duty by client. Suppose X creates a trust
for the benefit of B. The trust instrument names T as trustee
and names lawyer L to serve as counsel to the trustee. L’s
client is T, in T’s capacity as trustee, not in T’s personal
capacity. T has fiduciary duties to B, and L is in a unique
position to know whether T is performing those duties
faithfully. According to the Restatement § 51(4) (2000), L
owes a duty of care to B, but only if the following three
conditions are satisfied: (1) L knows that he must act to
prevent or rectify a breach of fiduciary duties by T that is
criminal, or fraudulent, or that L helped T commit; (2) B is
not reasonably able to protect himself; and (3) the duty of care
to B will not significantly impair L’s ability to perform his
duties to T.
 Competence, Diligence, and
Ch. 6_______________ Unauthorized Practice_________________ 181
2) What is the Standard of Care?
What is the appropriate standard of care? If the attorney defendant is
a general practitioner, then the standard of care is the skill and knowledge
ordinarily possessed by attorneys under similar circumstances. [R. Mallen
& J. Smith, Legal Malpractice § 19.2 (5th ed. 2000); see also Restatement,
supra, § 52(l)(“competence and diligence normally exercised by lawyers in
similar circumstances”).] If an attorney purports to be a specialist, or acts
in a specialized area of the law, then the attorney must exercise the skill
and knowledge possessed by attorneys who practice that specialty. [See
Mallen & Smith, supra, § 19.4; Restatement, supra, § 52, comment d.] The
relevant geographic area for defining the standard of care is the
jurisdiction (normally a state) in which the lawyer rendered the questioned
legal services. [See Restatement, supra, § 52, comment b.] Lawyers in rural
areas are held to the same standard of skill and knowledge as lawyers in
more urban areas. [Mallen & Smith, supra, § 19.5.] That sword cuts both
ways, however. Knowledge of local conditions, customs, court rules,
prejudices, practices, and personalities may be vital to the outcome of a
matter, so an attorney from an urban area who fails to check local rules,
practices, or customs may find himself committing malpractice. [See id.]
3) Breach of the Duty of Care
The standard wisdom teaches that lawyers are not liable for “mere
errors in judgment.” Thus, in Hodges u. Carter, 239 N.C. 517, 80 S.E.2d 144
(1954), it was said:
An attorney who acts in good faith and in an honest belief that his
advice and acts are well-founded and in the best interest of his
client is not answerable for a mere error of judgment or for a
mistake in a point of law which has not been settled by the court
of last resort in his state and on which reasonable doubt may be
entertained by well-informed lawyers.
But note carefully the last three words of that quotation. The judgment
must be a well-informed judgment, not one made in ignorance. A lawyer is
expected to know the settled principles of law; if she does not know them,
she is expected to look them up, using the standard research techniques
used by ordinarily prudent attorneys. If the answers are there to be found,
and if she does not find them, she has breached the duty of care. [See Smith
v. Lewis, 13 Cal.3d 349, 118 Cal.Rptr. 621, 530 P.2d 589 (1975).] If a
principle of law is unsettled and open to debate, the attorney is expected to
do reasonable research and to “make an informed decision as to a course of
conduct based upon an intelligent assessment of the problem.” [Id.; see
generally Mallen & Smith, supra, §§ 18.4-18.7.]
In the trial of a case, an attorney is often called upon to make tactical
decisions, such as what questions to ask a witness on cross-examination.
The attorney will not be second-guessed in a later malpractice case, so long
 Competence, Diligence, and
182 Unauthorized Practice Ch. 6
as the tactical decision was based on a well-informed judgment. An
attorney can, however, be held liable for failing to conduct a reasonable fact
investigation, or failing to find and interview key witnesses, or failing to
consult with appropriate experts, or failing to discover pertinent statutes,
regulations, and the like. [See Woodruff v. Tomlin, 616 F.2d 924 (6th
Cir.1980).]
4) Actual Cause
As in ordinary negligence litigation, a malpractice plaintiff must prove
actual cause—which usually means proof that the injury would not have
happened but for the defendant’s negligent act. [See Mallen & Smith,
supra, § 8.5; see also Restatement, supra, § 53, comment b.] For example,
suppose malpractice plaintiff P alleges that lawyer L represented her at
the trial of a contract case, and that her damage recovery was sharply
reduced because L failed to do adequate legal research and to present
appropriate evidence on the damage issue. In the malpractice case, P must
prove by a preponderance of the evidence that she would have gotten a
larger damage recovery in the underlying contract case but for L’s
negligence. In this way, a malpractice trial sometimes becomes a “trial
within a trial.” [Restatement, supra, § 53, comment b.] At the malpractice
trial, P will present the damages evidence that she claims L ought to have
presented, and L will play the role and carry the burdens of the contract
defendant. The trier of fact in the malpractice case will have to decide what
damage recovery would have been awarded in the contract case if L had
done the necessary research and presented the necessary evidence.
Sometimes the but for analysis is inadequate to determine actual
cause. Where that is true, a court can use the substantial factor analysis.
That is, where several acts unite to cause an injury—and any one of them
alone would have been sufficient to cause it—the malpractice plaintiff can
prevail by showing that the defendant lawyer’s negligence was a
substantial factor in causing the injury.
5) Proximate Cause
Again as in ordinary negligence litigation, a malpractice plaintiff must
prove, not just actual cause, but proximate cause—that it is fair to hold
defendant liable for unexpected injuries or for expected injuries that
happen in unexpected ways. [See Mallen & Smith, supra, § 8.5; see also
Restatement, supra, § 53 (using “legal cause” as the equivalent of
“proximate cause”).] For example, suppose that H (age 75) marries W (age
25). Each has children from a prior marriage. H wants his estate to pass to
W’s children, not to his own who are already well provided for. Attorney A
negligently drafts H’s will in a way that will accomplish that result only if
W outlives H. Then W is killed in a car crash, and H dies a few months
later without having changed his will. W’s children sue attorney A for
malpractice, and A argues lack of proximate cause. Since a reasonably
 Competence, Diligence, and
Ch. 6_______________ Unauthorized Practice_________________ 183
prudent attorney should have foreseen that H might outlive W, and might
not change his will after W’s death, a court would probably conclude that
proximate cause has been established.
6) Damages
Legal malpractice plaintiffs usually seek monetary balm for then-
injuries, and they must therefore plead and prove damages. Direct
damages are those for the immediate, natural, and anticipated
consequences of the wrong, for example, the value of the plot of land that
the plaintiff lost because of the defendant’s negligent title search. A
malpractice plaintiff can also collect consequential damages, meaning
damages for loss that flows indirectly but foreseeably from the defendant’s
negligence. [See Mallen & Smith, supra, § 20.1.] For instance, suppose that
client C hires attorney A to defend him in a suit for alleged theft of trade
secrets belonging to C’s former employer. Due to A’s negligence, C lost the
case and had to pay a large judgment to the former employer. Further, the
loss so injured C’s professional reputation that no one would hire him. If
the injury to C’s reputation was foreseeable, A will be liable to C, not only
for the amount of the judgment, but also for C’s loss of earnings. [Id.
§ 20.12.]

C. DEFENSES TO LEGAL MALPRACTICE CLAIMS

One solid defense to a legal malpractice claim is that the attorney
reasonably believed that the action was required by a law or a legal ethics
rule. [Restatement, supra, § 54(1) and comment h.] For example, suppose
that the applicable legal ethics rule requires a lawyer in a civil case to try
to withdraw if her client insists on giving perjurious testimony. [See ABA
Model Rule 1.16(a)(1).] The legal ethics rule would be a complete defense
in a malpractice action for client abandonment brought against a lawyer
who withdrew because her client insisted on committing perjury.
In jurisdictions that recognize comparative or contributory negligence
in negligence cases generally, those doctrines will apply to the same extent
in a legal malpractice case based on negligence. [Restatement, supra, § 54,
comment d.] Further, a client cannot base a legal malpractice case on
something that the client, after receiving proper advice, instructed the
lawyer to do or not do. [Id., comment h.] For example, suppose the lawyer
carefully explains to her client why she needs to interview all the witnesses
who might know about the matter at hand. If the client specifically
instructs the lawyer not to interview witness X, the client cannot later
claim that the lawyer was negligent in not interviewing X.
Assumption of the risk and failure to mitigate damages can be partial
defenses in a legal malpractice case, to the extent that the local law
recognizes them in ordinary cases. However, the nature of the attorney­
client relationship can lessen the usefulness of those doctrines. [Id.,
 o
Competence, Diligence, and o
184 Unauthorized Practice Ch. 6
comment e.] Similarly, the nature of the attorney-client relationship may
o
lessen the usefulness of the in pari delicto doctrine (which bars a plaintiff
from recovering when the plaintiff and defendant cooperated in an illegal
o
venture and are equally culpable). [Zd., comment f J o
Statutes of limitations apply in legal malpractice claims in the
ordinary manner, subject to three special principles: o
• First, the statute of limitations ordinarily does not run on a
client’s malpractice claim while the lawyer continues to
o
represent the client in the matter at hand or a substantially o
related matter. [Id., comment g.]
• Second, even though the statute of limitations in an ordinary o
case would start to run when the harm occurs, the statute of
limitations in a legal malpractice case does not start to run o
until the lawyer discloses the supposed malpractice to the
client, or the facts that the client knows—or reasonably
o
should know—clearly indicate that the malpractice occurred.
[Id.]
o
• Third, the statute of limitations does not start to run until the o
alleged malpractice significantly injures the plaintiff. For
example, suppose lawyer L drafts and supervises the signing o
of a land sale contract in which client C agrees to buy Red
Ranch from seller S. C and S sign the contract without o
witnesses, and state law makes a land sale contract voidable
if it is signed without witnesses. Client C is not injured until □
S refuses to sell the ranch—up to then, C has not been injured
by L’s malpractice. [Id.]
o
D. VICARIOUS LIABILITY
o
A law firm is civilly liable for injuries caused by an employee or o
principal of the firm who was acting in the ordinary course of the firm’s
business, or with actual or apparent authority. [See Restatement, supra, o
§ 58(1).] Thus the firm is liable if client C is injured because Partner A’s
secretary negligently failed to pass along a vital telephone message. o
Likewise the firm is liable if one of its partners, associates, or contract
lawyers commits an act of legal malpractice.
o
If a law firm is organized as a partnership without limited liability, o
the general law of partnership makes each partner liable jointly and
severally with the firm. Thus, if partner A’s secretary negligently fails to o
pass along a vital telephone message, thus causing grave injury to client C,
partner B (who had nothing to do with the matter) may end up having to o
sell her home to pay the malpractice damages. [Id. § 58(2).] This seemingly
harsh result flows from the general law of respondeat superior. Vicarious
o
liability helps maintain the quality of legal services, by making both the o
o
o
 Competence, Diligence, and
Ch. 6_______________ Unauthorized Practice_________________ 185
firm and its principals stand behind the work of every lawyer and employee
in the firm. .[Id., comment b.] Further, many law firms are thinly
capitalized, so vicarious liability helps assure that claims against the firm
will be paid. [Id.]
On the other hand, the public has come to accept the idea that
businesses have only limited liability for their wrongs. Moreover, it strains
credulity to believe that a partner in a modern law firm can monitor and
manage the behavior of everyone else in the firm. [See id.] Thus,
legislatures have created new kinds of entities—professional corporations,
limited-liability general partnerships, and limited-liability companies.
Under the new legislation, a law firm generally remains vicariously liable
for injuries caused by an employee or principal who was acting in the
ordinary course of the firm’s business, or with actual or apparent authority.
However, the principals of the firm are generally not personally liable for
negligence or misconduct in which they did not participate personally or as
supervisors. [Id., comment c.] Some states require the principals of limited
liability firms to carry adequate legal malpractice insurance and to meet
other requirements.

E. MALPRACTICE INSURANCE
The ABA Model Rules do not require lawyers to carry malpractice
insurance. However, a growing minority of states require lawyers to tell
potential clients whether they do or don’t carry malpractice insurance.
[Mark Hansen, Disclosure Rules, A.B.A.J., May 2006, at 63.] And some
states require lawyers to carry malpractice insurance if they wish to
participate in an approved lawyer referral service. But these days prudent
lawyers regard adequate malpractice coverage as an essential, albeit
expensive, part of law practice. Americans tend to be quick in looking to
courts to resolve conflicts. Further, a client who has been injured by a
lawyer’s ineptitude often prefers to sue for malpractice, rather than start
disciplinary proceedings, which are typically slow and which provide no
recompense to the injured client. Money may seem better than blood, and
unhappy clients can be tempted by malpractice verdicts that occasionally
reach the multimillion dollar mark.
In comparison shopping for malpractice insurance, be aware that
policies differ dramatically in their features. [See generally Ronald E.
Mallen, The Law Office Guide to Purchasing Legal Malpractice Insurance
(2001 ed.); H. Robert Fiebach, Shopping for Malpractice Insurance,
A.B.A.J., March 1993 at 98; R. Minto & M. Morton, The Anatomy of Legal
Malpractice Insurance: A Comparative View, 64 N.D.L. Rev. 547 (1988); F.
Goldfein, Legal Malpractice Insurance, 61 Temple L.Rev. 1285 (1988).] For
example:
 Competence, Diligence, and
186 UNAUTHORIZED PRACTICE Ch. 6
• In past years, some insurers offered, “occurrence” policies,
which covered the lawyer for acts or omissions made during
the policy term, regardless of when the claim was asserted.
At present, a lawyer can obtain only a “claims made” policy,
which covers the lawyer foi' unforeseen claims made during
the policy period, no matter when the act or omission
occurred. If the lawyer has changed jobs or changed insurance
companies, she may need supplemental “prior acts” coverage,
to prevent gaps in her insurance coverage.
• Liability policies generally require the insurer to defend the
lawyer against covered claims. Most policies give the insurer
the right to select defense counsel, but others allow the
insured lawyer to participate in the selection. Further,
policies differ respecting the decision to settle a case. Most
require the consent of the insured lawyer, but some policies
provide that if the lawyer refuses to settle, the insured’s
liability is limited to the amount for which the claim could
have been settled. Other policies provide that if the insurer
and the insured disagree on whether to settle, a peer review
panel will make the final decision.
• The limits of liability can make an important difference in the
cost of insurance. The higher the policy limits, the higher the
premium. A policy with limits of $500,000/$l million usually
means that the insurer will pay no more than $500,000 for all
claims arising out of a single act (regardless of the number of
claimants), and will pay no more than $ 1 million for all claims
during the policy term. Policies differ in how they treat the
expenses of defending claims. Typically, defense costs are
included in the policy limits, which means that the lawyer
should buy policy limits high enough to cover both potential
liability and defense costs.
• The size of the deductible can also make an important
difference in the cost of a policy. A lawyer who self-insures for
the first $100,000 of liability will obviously pay a lower
premium than one whose policy has a deductible of only
$10,000. Further, most policies provide for a per claim
deductible, but a few specify an aggregate deductible during
the policy term.
• Policies differ as respects the persons who are covered. The
cost of a policy depends partly on whether it covers only the
present lawyers and non-lawyers in the firm, or whether it
also covers predecessor firms, persons formerly with the firm,
and lawyers who are “of counsel” to the firm. Further, some
 Competence, Diligence, and
Ch. 6_______________ Unauthorized Practice_________________ 187
policies do not cover employees of the firm unless an
additional premium is paid.
• Policies vary in the kinds of acts and Omissions they cover. All
of them cover the conduct of the insured when rendering
professional legal services to others, but some also cover
conduct as a fiduciary (for example, as a trustee or executor),
some cover judicially imposed sanctions (under Fed.R.Civ.P.
11, for example), and some cover practice-related personal
injury such as false arrest, libel, and malicious prosecution.
• All policies contain exclusions, and the number and breadth
of exclusions will affect the cost of the insurance. Typical
exclusions are for claims of dishonest, fraudulent, or criminal
conduct, claims arising from incidental legal service provided
to a business owned by the insured, claims arising out of the
insured’s conduct as an officer or director of a business, claims
of sexual harassment or illegal discrimination, and claims
that the insured knew or should have known about at the
time he or she bought the policy.
When shopping for insurance, remember that (as with other products
and services) you generally get about what you pay for. A bargain premium
is no bargain if you get less coverage than you expect and need. Information
in insurance company brochures and statements by sales representatives
are helpful, but in the end there is no substitute for carefully studying the
insurance policy itself.
Should lawyers be required to tell prospective clients whether they
carry malpractice insurance? In August 2004, the ABA House of Delegates
adopted the “Model Court Rule on Insurance Disclosure” (a model court
rule, not an ethics rule), which requires private practitioners—but not
government lawyers or in-house lawyers—to report annually whether they
carry malpractice insurance. This information would then be made
available to the public so that prospective clients can make informed
decisions about whether to retain a particular lawyer. Lawyers failing to
comply with the rule would be subject to suspension from the practice of
law until they comply; supplying false information would subject the
lawyer to “appropriate disciplinary action.” The model court rule does not
require lawyers to disclose policy limits, but only whether they maintain
professional liability insurance. Approximately half of the states now
require lawyers to disclose whether they carry malpractice insurance.

II. THE ETHICS OF SECOND-RATE

LEGAL SERVICE
Is it ethical for a lawyer to supply second-rate legal service to a client
who does not want to pay for first-rate service? At what point do client-
 o
Competence, Diligence, and o
188 Unauthorized Practice Ch. 6
imposed limits on the budget, the means, and the scope of a representation o
prevent the lawyer from doing a competent, diligent job? o
The ethics committee of the Association of the Bar of the City of New
York explored those two issues in an report entitled The Evolving Lawyer- o
Client Relationship and its Effect on the Lawyer’s Professional Obligations
[51 The Record 441 (1996).] The committee began by observing that the o
nature of law practice has changed dramatically over the past two decades.
In prior years, clients tended to defer to their lawyers, usually letting the o
lawyers select the means for resolving a matter, and usually letting the
lawyers decide how much time and money the matter required. [See id. at o
441—45.] All that has changed, the committee said. Competition has
increased in the legal profession. Clients, both the rich and the poor, have o
become sensitive to the cost of legal services. Advances in technology have
removed communications barriers between client and attorney, thus
o
allowing the client to keep close track of what the lawyer is doing. Q
Institutional clients are demanding more control over details that were
traditionally left to the lawyer’s judgment, such as which lawyers in a firm
will work on a case, when and how much discovery should be conducted,
o
and what tactics the lawyers should pursue at what stages of the case. [7d.] o
As a consequence,
[r]ather than retain an attorney to handle a matter as he or she o
deems appropriate, many clients today demand involvement not
only in defining the objectives of a representation but also in Q
selecting the means to achieve the objectives. The relationship
increasingly is being defined by lawyer and client alike as a joint
o
venture, [AZ. at 441.] o
The ABA Model Rules require a lawyer to represent a client
“competently” and to act “with reasonable diligence and promptness in
representing a client.” [ABA Model Rules 1.1 and 1.3.] Comment 1 to Rule
1.3 explains that a lawyer must
act with commitment and dedication to the interests of the client o
and with zeal in advocacy upon the client’s behalf. A lawyer is not
bound, however, to press for every advantage that might be o
realized for a client. For example, a lawyer may have authority to
exercise professional discretion in determining the means by o
which a matter should be pursued. See Rule 1.2. The lawyer’s duty
to act with reasonable diligence does not require the use of o
offensive tactics or preclude the treating of all persons involved in
the legal process with courtesy and respect. o
The Comment speaks of representing the client with zeal, but the zeal Q
must stay within the bounds of the law. [See paragraph 9 of the Preamble
to the ABA Model Rules.] If the client wants the lawyer to act dishonestly, O
or to commit fraud, or to do something prejudicial to the administration of
o
o
o
 Competence, Diligence, and
Ch. 6_______________ Unauthorized Practice_________________ 189
justice, the lawyer must refuse. [ABA Model Rule 8.4(b)-(d).] Likewise, if
the client wants the lawyer to do something that violates the rules of legal
ethics, the lawyer must refuse. [ABA Model Rule 8.4(a); see The Record,
supra, at 450-51.] Therefore, when the client wants the lawyer’s service,
but insists on a budget too low to let the lawyer provide the service
competently and diligently, some authorities require the lawyer to decline
the representation, or to withdraw if the representation has already begun.
[See ABA Model Rule 1.16(a)(1); Alabama State Bar Ethics Op. RO-98-02
(1998) (lawyer retained by insurance company to defend insured must not
accede to insurance company’s litigation management guidelines that
require, among other things, advance company approval for legal research
longer than three hours); Indiana Legal Ethics Comm. Op. 3 (1998) (similar
insurance company guidelines imposing financial disincentives that may
undermine quality of legal service).]
The Restatement of the Law Governing Lawyers offers a more subtle
approach to the problem of second-rate legal service. The Restatement
permits a lawyer and client to agree to limit a duty that the lawyer would
otherwise owe to the client, provided that the limit is reasonable in the
circumstances and that the client is adequately informed and consents to
the limit. [RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 19(1)
(2000). This general provision does not apply where the Restatement states
a more specific rule, as with waiver of conflicts of interest.]
Section 19(1) does not come into play when the lawyer and client
simply define the scope of the legal services the lawyer will provide. For
example, client C may hire lawyer L to write and file a petition for
certiorari in the U.S. Supreme Court, specifying that if the petition is
granted lawyer L will write the briefs but that lawyer M will make the oral
argument before the Court.
Unlike ABA Model Rule 1.2, which authorizes limitations upon the
scope of the representation, § 19(1) of the Restatement applies specifically
to agreements “to limit a duty that a lawyer would otherwise owe to the
client.” One of the illustrations following Restatement § 19 hypothesizes a
corporation that wants to impose a tight budget on the lawyer who will
defend it in a law suit. The lawyei' explains to the corporation’s house
counsel that the budget will not allow for much discovery, which will reduce
the chances of winning. If the corporation consents after being properly
informed about the consequences, and if the limitation on the lawyer’s duty
is reasonable in the circumstances, the corporation will have waived its
right to more thorough representation. One consequence of that waiver is
that the corporation cannot later claim that the lawyer committed
malpractice by failing to do more discovery. The commentary to § 19(1)
argues that a reasonable agreement to limit the lawyer’s duty would not
violate the general rule that prohibits a lawyer from trying to escape
malpractice liability by prospective contract with the client. [Compare
 Competence, Diligence, and
190_________________ Unauthorized Practice_______________Ch. 6
Restatement, supra, § 19, comment a, with Restatement § 54(2); see also
M. Sue Talia, The Ethics of Unbundling, Cal. Lawyer, Jan. 2006, at 37.]
How do you think the principle expressed in Restatement § 19(1)
should apply when an insurance company hires a lawyer to defend its
insured, specifying that the lawyer must follow a strict budget and must
have each significant action approved in advance by a non-lawyer
“litigation manager” employed by the insurance company?

III. MULTI-JURISDICTIONAL AND

MULTI-DISCIPLINARY PRACTICE
A. MULTI-JURISDICTIONAL PRACTICE
The unauthorized practice of law, as prohibited by ABA Model Rule
5.5, encompasses both non-lawyers and lawyers licensed in other states.
[See ABA Model Rule 5.5(a) (prohibiting lawyer from practicing law in a
jurisdiction “in violation of the regulation of the legal profession in that
jurisdiction, or assist another in doing so.”).] Although pro hac vice (“for
this turn only”) provisions authorize courts or administrative agencies to
permit an out-of-state attorney to represent a client in a particular matter
pending before the tribunal, a growing number of practitioners and
commentators have called for a loosening of unauthorized practice
restrictions in light of the globalization of modern legal practice. [See, e.g.,
Symposium: Ethics and the Multijurisdictional Practice of Law, 36
S.Tex.L.Rev. 657-1105 (1995).] The Final Report of the ABA Commission
on Multijurisdictional Practice (MJP) recommended a number of revisions
to ABA Model Rule 5.5 to the ABA House of Delegates, which approved the
proposed changes in substantially the same form as recommended.
In calling for the adoption of this provision, the MJP Committee noted
unanimous testimony that “cross-border legal practice” was common, on
the increase, inevitable, and necessary due to the “explosion of technology
and the increasing complexity of legal practice.” In brief, amended Rule 5.5
allows a lawyer licensed and in good standing in one jurisdiction to
practice, temporarily, in another jurisdiction when the lawyer (1) works in
association with a lawyer licensed in the host state; (2) represents clients
in, or is participating in, an arbitration, mediation, or other alternative
dispute resolution proceeding; (3) performs non-litigation work that arises
out of, or is reasonably related to, the lawyer’s home-state practice; or (4)
provides litigation-related services in a state where the lawyer expects to
be admitted.

B. MULTI-DISCIPLINARY PRACTICE
Multi-disciplinary practice (MDP) is also related to the unauthorized
practice of law. The notion of multi-disciplinary practice flows from the
 Competence, Diligence, and
Ch. 6_______________ Unauthorized Practice_________________ 191
c desire of lawyers and law firms to provide “one-stop shopping/’ and
o therefore to permit firms to provide both legal and nonlegal professional
services. For example, the authorization of MDPs might permit lawyers,
n
—J
accountants, engineers, and economists to create—and work within—a
common organization. MDPs involve both association and fee sharing
c between lawyers and members of other professions. Currently, ABA Model
Rule 5.4 prohibits the creation of MDPs on both counts. Rule 5.4(a)
Q prohibits lawyers from sharing fees with non-lawyers, and Rule 5.4(b)
prohibits the creation of a partnership between a lawyer and a non-lawyer
c if the partnership will engage in the practice of law.
c Probably for as long as there have been lawyers, lawyers have
occasionally offered other non-legal services to their clients. In fact, ABA
c Model Rule 2.1 encourages lawyers when giving advice to clients to “refer
not only to law but to other considerations such as moral, economic, social
c and political factors, that may be relevant to the client’s situation.” Clients
often expect business advice, real estate advice, and even marital advice
Q from their lawyers. A flat refusal to respond to such requests may well cost
the lawyer the client. Less nobly, lawyers have occasionally, perhaps often,
o operated non-law businesses either as a part of their firm or as a related
entity. For example, a lawyer practicing real estate may well operate a title
o business as well. A well-connected Washington, D.C. megafirm may offer
its clients lobbying services in addition to legal work. According to the
Q comment to ABA Model Rule 5.7, ancillary law-related services include
“title insurance, financial planning, accounting, trust services, real estate
o counseling, legislative lobbying, economic analysis, social work,
psychological counseling, tax preparation, and patent, medical or
o environmental consulting.”
c Such “ancillary” operations pose several dangers. Clients may be
confused over whether they are a client of the firm or of the ancillary
c business; non-lawyers may influence the law practice in ways inconsistent
with the lawyers’ professional obligations; the non-law business and law
o practice may raise serious conflict of interest problems. Perhaps operating
an ancillary business makes it painfully clear that the law practice is a
o business as well. Whatever the reasons, until recently the bar’s ethical
rules either ignored the issue of ancillary businesses or flatly prohibited
c their operation in connection with a law practice. Beginning in the late
1980s, competing interests within the ABA began to develop conflicting
o rule proposals on ancillary businesses. One group offered a highly
o restrictive proposal that would confine ancillary business activities within
the law firm incidental to the provision of legal services and limit such
Q services to clients of the law firm. Another group favored a rule that (a)
generally permitted ancillary business activities both within the law firm
O and through related entities if the firm disclosed the relationship to the law
firm; and (b) generally treated a client-customer as a client of the law firm
o

o
 o
Competence, Diligence, and o
192_________________ Unauthorized Practice_______________Ch. 6
unless the client-customer was fully informed to the contrary; and (c) o
provided safeguards that client-customers would be treated in accordance Q
with the lawyers’ professional obligations. In August 1991, the ABA
adopted the restrictive alternative as Model Rule 5.7. In less than a year, o
it was repealed. No state had adopted the Rule. After a two year hiatus,
the ABA, in 1994, adopted the current Rule 5.7. The current rule does little o
more than remind lawyers that they are subject to the rules of professional
responsibility when providing “law-related services” unless the client o
understands that they are not legal services and do not enjoy the protection
of the lawyer-client relationship. (See also ABA Formal Opinion 94-388 o
(1994).] Can you find a better way through these competing interests?
If anything, the ABA’s attempts to deal with multi-disciplinary o
practice issues has been even more controversial. In 1998, the ABA set up o
its Commission on Multidisciplinary Practice to study efforts by non­
lawyer professional service firms, such as accounting firms, to provide legal o
services to the public. The Commission issued a final report in 1999,
recommending a relaxation of the prohibitions, found primarily in Model o
Rule 5.4, on splitting fees with a non-lawyer, allowing non-lawyer
investment in law firms, and permitting lawyers to practice law within o
accounting firms and other non-lawyer controlled businesses. That August,
the ABA’s House of Delegates refused to take up the Commission’s o
recommendations, and returned the Report to the Commission for further
study. The Commission returned to the House of Delegates in August 2000 □
with a modified proposal to allow multi-disciplinary practice as long as the
lawyers involved have “control and authority’ to insure lawyer o
independence in rendering legal services. The ABA overwhelmingly
rejected the recommendation and any attempt to amend Model Rule 5.4. o
According to the ABA’s report, a MDP is “a partnership, professional o
corporation, or other association or entity that includes lawyers and
nonlawyers and has one, but not all, of its purposes the delivery of legal o
services to a client(s) other than the MDP itself or that holds itself out to
the public as providing nonlegal, as well as legal, services.” [ABA, □
Commission on Multidisciplinary Practice, Report (1999).] A more helpful
definition may be that given by the New York State Bar Association in its Q
Report of Special Committee on Multidisciplinary Practice and the Legal
Profession (1999) that gives three categories of multidisciplinary practices: O
“1. entities (other than traditional law firms) that hire lawyers to practice
law; 2. law firms that hire individuals other than lawyers to perform O
professional functions for clients within the firm other than the practice of D
law; and 3. entities (other than traditional law firms) that provide a variety
of professional services and blur the distinctions among those professions O
by hiring and directing a variety of professionals in the delivery of such
services.” However defined, the current debate grows out of the efforts of
the major accounting firms (the “Big Five” firms) to hire lawyers and offer
o
o
o
o
c
o Competence, Diligence, and
Ch. 6 Unauthorized Practice 193
o a variety of law-related services to their clients in the United States,
o including tax advising, estate planning, and litigation support and dispute
resolution, a phenomenon that has been underway in Europe in a more
CD advanced form for some time. Although rejected by the ABA and only
grudgingly tolerated by the New York Bar Association’s Report, which
c recommended an ethics rule that would allow lawyers to “enter into
strategic alliances and other contractual relationships with non-lawyers”
CD but not allow non-lawyer ownership or investment in law firms, the growth
of MDP shows no sign of abating. Scholarly debate over MDP continues.
c For one overview of these issues, see The Future of the Profession: A
Symposium on Multidisciplinary Practice, 84 Minn. L.Rev. 1083-1654
c (2000).

c Multiple Choice Questions

CD Answer these questions using the definitions found
at the end of Chapter Two.
CD 1. On June 1st, client Catlin hired attorney Acevedo to sue defendant
Degan for securities fraud. Catlin and Acevedo realized that the complaint
□ would have to be filed by September 15th to be within the statute of limitations.
Acevedo was very busy with other matters. Starting in mid-August, Catlin
c telephoned Acevedo every few days to see what progress Acevedo was making.
Acevedo repeatedly assured Catlin that he was assembling the facts and
CD preparing preliminary drafts of the complaint, but in truth Acevedo was doing
nothing on the case. On September 10th, Catlin learned from Acevedo’s
CD secretary that Acevedo had still not started to work on the case. At that point,
Catlin fired Acevedo and hired a different lawyer who was able to get the
CD complaint on file by September 15th. Although Acevedo did not charge Catlin
any fee, Catlin reported the matter to the state bar. Which of the following is
most nearly correct?
c A. If Acevedo would have been able to complete the necessary work
by September 15th, his conduct was proper.
c B. Since Catlin suffered no damage due to Acevedo’s delay,
Acevedo’s conduct was proper.
□ C. Even though Catlin suffered no damage due to Acevedo’s delay,
c Acevedo is subject to civil liability for malpractice.
D. Acevedo is subject to discipline for neglecting Catlin’s case and
CD for lying to Catlin about the status of the matter.
CD 2. Lawyei* Lloyd was an associate attorney employed by the law firm of
Ames & Baker. The firm is an ordinary partnership, not a limited liability
Cj entity. Client Cress hired Ames to sue one of his competitors for false
advertising. Ames assigned Lloyd to do the necessary research and draft the
CD complaint. Lloyd confined her research to state law. Any reasonably competent
general practitioner would have discovered a more favorable body of parallel
CD
O
o
 a
Competence, Diligence, and o
194 ________________ Unauthorized Practice_______________Ch. 6
federal law under Section 43(a) of the Lanham Act, Ames eventually brought o
the case to trial on state law theories only, and Cress lost. Had the case been
tried under the Lanham Act, Cress would have won a large judgment. Which o
of the following propositions are correct? o
I. Lloyd is subject to civil liability for malpractice.
II. If Lloyd is subject to civil liability for malpractice, then so is Ames. o
HI. If Lloyd and Ames are subject to civil liability for malpractice, then o
so is Baker.
IV. None of the three lawyers is subject to civil liability for malpractice. o
A. Only IV is correct. o
B. Only I is correct.
C. Only I, II, and III are correct.
o
D. Only I and II are correct. □
3. The Community Association for the Homeless (CAH) is a non-profit
charitable corporation that provides food and temporary shelter for homeless o
persons. CAH subsists on charitable donations and volunteer labor provided
by members of the community. CAH owns a large old home in the downtown o
area, but it has virtually no other assets. Seeking to assist CAH in a time of o
financial need, Corliss Cheng decided to lend CAH $500,000, interest-free, for
two years. Lawyer Landsman offered his services without a fee to represent
CAH in the transaction and to prepare the necessary loan papers. Cheng was □
not represented by a lawyer in the transaction. Landsman prepared a suitable o
promissory note. The officers of CAH duly executed the note and presented it
to Cheng in return for the $500,000. A year later, CAH was overcome by o
financial disaster; the corporation was dissolved, and its creditors took over its
few remaining assets. Cheng received only $2,000. Any reasonably competent o
general practitioner would have advised Cheng to secure the interest-free loan
by obtaining a deed of trust on CAH’s large old home. Cheng sued Landsman o
for legal malpractice. Which of the following is most nearly correct?
A. Landsman is subject to civil liability for malpractice in the suit o
brought by Cheng.
B. Landsman is not subject to civil liability for malpractice because
0
he did the legal work as a volunteer, not for a fee. o
C. Landsman is not subject to civil liability for malpractice because
he did not purport to represent Cheng in the transaction. o
D. Landsman is not subject to civil liability for malpractice because 0
the injury to Cheng was not foreseeable.
4. Attorney Applegate represented client Cortez as plaintiff in an □
employment discrimination action against Delta Corporation. After
considerable pretrial discovery, Applegate and Cortez concluded that Delta D
had indeed unlawfully discriminated against Cortez but that they probably
O
O
c
Competence, Diligence, and
o Ch. 6___________ Unauthorized Practice____________________ 195
Q would be unable to convince a jury of that fact. They decided not to pour any
more money into pretrial discovery and to trust to good luck when the case
Q came to trial. Before the case was set for trial, Delta moved for summary
judgment. Delta’s motion was granted, and the case was dismissed. Then Delta
Q sued Applegate for legal malpractice, alleging that he was negligent in
advising Cortez to maintain the suit against Delta and that Delta had been
O injured to the extent of its litigation costs and attorney fees. In Delta’s action
o against Applegate, which of the following is most nearly correct?
A. Applegate is not subject to civil liability for malpractice, even if
n he lacked a good faith belief that Cortez would win at trial.
B. Applegate is subject to civil liability for malpractice if he lacked
a good faith belief that Cortez would win at trial.
o C. Applegate is not subject to civil liability for malpractice because
his conduct was not the actual cause of Delta’s injury.
o D. Applegate is subject to civil liability for malpractice if he was
negligent in advising Cortez to oppose Delta’s motion for summary
c: judgment.
5. For many years attorney Abrams has done all of the routine business
law work for Carmondy Corporation. Now Carmondy has asked him to
represent it in negotiating a contract to supply electronic components to the
U.S. Navy. Abrams knows nothing about government contract law except that
\__ it is a highly specialized field governed by a mass of technical regulations.
Which of the following would be proper for Abrams to do?
\/ I. To decline to represent Carmondy, and to charge Carmondy a
nominal fee for finding Carmondy a lawyer who specializes in government
c contract law.
II. To agree to represent Carmondy, provided that Carmondy will
consent to the association of a lawyer who specializes in government contract
law.
III. To agree to represent Carmondy, and then to subcontract the
substantive legal work to a lawyer who specializes in government contract law.
□ IV. To agree to represent Carmondy, intending to master the field of
government contract law with reasonable speed and efficiency.
V_; A. All of the above.
B. None of the above.
o
C. II or III only.
c D. I, II, or IV only.
c 6. Attorney Aoki and client Cramer entered into a written agreement in
which Aoki agreed to represent Cramer in a real estate venture in return for a
c specified hourly fee. The agreement provided that any malpractice or fee
dispute would be arbitrated by a neutral arbitrator selected by mutual

C?
 Competence, Diligence, and
196 Unauthorized Practice Ch. 6
agreement. Eventually Aoki and Cramer did get into a dispute. Cramer refused
to pay Aoki’s quarterly bill, and Aoki refused to do any more work until Cramer
paid. Cramer also threatened to sue Aoki for malpractice, claiming that he had
lost money because of her negligent advice. Which of the following propositions
are correct?
I. Aoki is subject to discipline for trying to avoid a lawsuit for
malpractice by including the arbitration provision in her contract with Cramer.
II. Aoki is subject to discipline for refusing to do further work until
Cramer paid her bill.
III. It would be proper for Aoki to insist that Cramer abide by the
arbitration provision in their contract.
IV. If Aoki wants to settle her dispute with Cramer outside of the
arbitration agreement, she must advise Cramer to obtain independent
representation for that purpose.
A. I, II, and IV only.
B. Ill and IV only.
C. II and III only.
D. I and IV only.
7. Solo practitioner Pearce hired non-lawyer Nelson to serve as her
secretary and all-purpose assistant. Pearce put Nelson in charge of her client
trust account and her office account and instructed her about how the accounts
were to be handled. Several months later, Pearce learned that Nelson had a
criminal record, including two prior convictions for embezzlement from a
former employer. Since Nelson appeared to be handling the accounts properly,
Pearce decided to leave well enough alone. After several more months, Pearce
noticed that $1,500 was missing from the office account. Nelson explained that
she had borrowed the money to pay her mother’s funeral expenses and that she
would repay it out of her next paycheck. Nelson did repay the money, and
Pearce decided to let Nelson continue to manage the accounts. Then, a year
later, Nelson disappeared along with $30,000 from Pearce’s client trust
account. The clients whose money was taken sued Pearce for negligence and
breach of fiduciary duties. Which of the following propositions are correct?
I. Pearce is subject to discipline for allowing a non-lawyer to handle her
client trust account.
II. If Pearce did not adequately supervise Nelson’s handling of the client
trust account, then Pearce is subject to discipline.
III. Pearce is subject to civil liability for malpractice to the injured clients
if she was negligent in allowing Nelson to handle the client trust account.
TV. If Pearce had a subjective, good faith belief that Nelson was
trustworthy, then Pearce is not subject to civil liability for malpractice to the
injured clients.
 Competence, Diligence, and
Ch. 6 Unauthorized Practice 197
A. II and III only.
B. I, II, and III only.
C. IV only.
D. II and IV only.
8. Supervising lawyer Liggett assigned paralegal Prentice to search
through the massive business files of Liggett’s client to find documents
responsive to a federal court order for production of documents. After several
months’ work, Prentice ended up with 170 large cartons full of documents that
were responsive to the court order. Most of the documents were harmless, but
a few were quite damaging to the legal position taken by Liggett’s client.
Instead of arranging the documents in the same logical order in which she
found them in the client’s files, Prentice intentionally jumbled the order of the
documents. Her purpose was to make it exceedingly difficult, if not impossible,
for the adversary to find the damaging documents and to understand their
significance. Before the documents were produced for the adversary, Prentice
told Liggett what she had done. Liggett responded: "Good—that ought to slow
the bastards down. In the future, however, don’t do anything like that without
checking with me first; we might get in trouble otherwise.” Which of the
following statements are correct?
I. Since document production requires the skill and judgment of a
lawyer, Liggett is subject to discipline for delegating the task to Prentice, even
if he had adequately supervised her work.
II. Liggett’s conduct was proper since he admonished Prentice and
instructed her not to engage in similar conduct in the future.
III. Assuming that all responsive documents were produced, Liggett’s
conduct was proper, since the adversary has no right to insist that the
documents be arranged in any particular order.
IV. Even if all responsive documents were produced, Liggett is subject to
discipline because he failed to take steps to mitigate the consequences of
Prentice’s misconduct.
A. II only.
B. I and IV only.
C. IV only.
D. II and III only.
Answers to the multiple choice questions will be found
in the Appendix at the back of the book.
 Chapter Seven

Confidential Information
■■■

What This Chapter Covers

I. Comparison of the Ethical Duty and the Attorney-Client
Privilege
A. Compulsion vs. Gossip
B. Sources of Information
C. Revelation vs. Use of Information
II. Exceptions to the Ethical Duty
A. Client Consent or Implied Authority
B. Prevent Future Harm/Mitigate or Rectify Financial Injury
C. Self-Defense
D. Court Order or Other Law

Reading Assignment
Schwartz, Wydick, Perschbacher, & Bassett, Chaptei' 7.
ABA Model Rules:
Rules 1.2(d) and cmt. 10, 1.6, 1.8(b), 1.9(b), 3.3, 3.4(a), and 4.1.
Supplemental Reading
Hazard & Hodes:
Discussion of ABA Model Rules 1.6, 1.8(b), 1.9(b), 3.3, 3.4(a), and 4.1.
Restatement (Third) of the Law Governing Lawyers §§ 59-86 (2000).

Discussion Problems
1. In your law school course in evidence law, you studied (or will
study) the attorney-client privilege and its exceptions. Briefly stated, the
attorney-client privilege gives the client a legal right to prevent a witness
from revealing confidential communications between the client and his or
her attorney, or between their respective agents. The holder of the privilege

199
 200 Confidential Information Ch. 7
is the client; the attorney can invoke the privilege on behalf of the client,
but not on the attorney’s own behalf. The privilege applies whenever a
governmental body can use the twin powers of subpoena and contempt to
compel the giving of information. How does the attorney-client privilege
differ from the attorney’s ethical duty to preserve the client’s confidential
information? Consider the following situations:
a. While standing around at a P.T.A. potluck supper,
lawyer L gossips with a friend about the reasons that L’s client V
wants to divorce her husband. Does the attorney-client privilege
apply at P.T.A. potluck suppers? Does the ethical duty?
b. Lawyer L is defending client X in a drunk driving case.
Through her own investigation, L learns from a loquacious
bartender that X stops in for several double martinis every night
after work. Does the attorney-client privilege protect that
information? If not, is L free to reveal it to whomever she wishes?
c. Client Y tells lawyer L in confidence that he wants to
purchase Blackacre to build a new shopping center. Acting as an
undisclosed principal, lawyer L instructs her' agent to buy
Blackacre, hoping to turn a quick profit on resale to Y. Has L
violated the attorney-client privilege? Has she violated the ethical
duty?
d. Suppose instead that lawyer L buys Greenacre, which
adjoins Blackacre, knowing that it will triple in value when Y
builds the shopping center on Blackacre. Has L violated the
ethical duty?
e. Client Z told lawyer L in confidence: ‘Yesterday I
intentionally burned down my barn because I need the fire
insurance money. I want you to represent me in collecting on my
insurance policy.” L declined to represent Z, who then hired
lawyer M to pursue the insurance claim. (Having learned his
lesson, Z did not tell M about intentionally burning the barn.) The
insurance company refused to pay, asserting that Z burned the
barn to get the insurance money. At the trial of Z’s insurance
claim, the insurance company lawyer called L to the witness stand
and asked: “What did Z tell you about burning the barn?”
(1) Should the court sustain Z’s claim of attorney-client
privilege?
(2) When Z left L’s office, should L have warned the
insurance company that Z was planning to file a fraudulent
claim?
2. Dorman is in jail, awaiting trial for the first-degree murder of a
young girl. Attorney Anthony is appointed by the court to defend Dorman.
 Ch. 7_______________ Confidential Information_________________201
Dorman tells Anthony in confidence that he killed not only that girl, but
also two other young girls. Dorman tells Anthony where he hid the other
two bodies. Anthony goes to the hiding place and discovers that Dorman
Qj has told him the truth. Nobody else knows that the other two girls are dead;
their parents and the police are searching for them as runaway children.
CD What should Anthony do?
a. Suppose that when Anthony goes to the hiding place, one
of the girls is dead, but the other girl, despite being emaciated and
breathing shallowly, is still alive. Does this change what Anthony
is permitted to do?
c 3. On the afternoon of August 11th last year, a woman walked into
your law office, stated her name, and said in confidence: "I’m the driver the
o police are looking for in that fatal hit and run accident last week.” You
agreed to represent her, and you advised her about the wisdom of
o surrendering to the police, but she rejected your advice. The police have
never discovered the identity of the hit and run driver. Just prior to the
o expiration of the statute of limitations, the parents of the hit and run victim
filed a wrongful death action against a Jane Doe defendant. Acting on a
o hunch, the parents’ lawyer has subpoenaed you as a deposition witness and
has asked you for the names of all persons who consulted you on the
o afternoon of August 11th. What should you do?
c 4. Your law practice includes some criminal defense work. A few
minutes ago, one of your steady clients stormed into your office, waiving a
o pistol and announcing that he just killed his probation officer. You have
urged him to allow you to surrender him to the authorities, but he has
c refused, stating that they will catch him sooner or later and that he wants
to enjoy his last bit of freedom. He has laid the pistol on your desk, and he
o is about to walk out. What should you do about the pistol?
c 5. Your client, Enos Furman, is in the business of leasing expensive
equipment to farmers. First, he arranges long term equipment leases with
o the farmers. Then he borrows money from banks to purchase the
equipment; he uses the long term leases as security for the bank loans. You
o have acted as Furman’s lawyer in ten of these lease-loan transactions over
the past two years. Today he revealed to you, in strict confidence, that some
Q of the leases he used in those transactions were fake—he forged them and
thus tricked the banks into lending him money which he has long since
c spent. He has solemnly promised you that he will never do that again, and
he has asked you to serve as his lawyer in a series of new lease-loan
o transactions. What are your ethical obligations in this situation?
c

o
202 Confidential Information Ch. 7
Washington v. Olwell
Supreme Court of the State of Washington, 1964.
64 Wash.2d 828, 394 P.2d 681.

May an attorney refuse to produce, at a coroner’s inquest, material

evidence of a crime by asserting the attorney-client privilege or by claiming
the privilege against self-incrimination on behalf of his client? These are
the issues raised in this appeal.
September 18, 1962, a coroner’s inquest was held for the purpose of
investigating the circumstances surrounding the death of John W. Warren.
Several days prior to the date of the inquest, appellant was served with a
subpoena duces tecum, which said, in part:
“ * * * bring with you all knives in your possession and under
your control relating to Henry LeRoy Gray, Gloria Pugh or John
W. Warren.”
Thereafter, at the coroner’s inquest the following exchange took place
between a deputy prosecutor and appellant:
«***

"Q. Now, Mr. Olwell, did you comply with that? [Subpoena]
“A. I do not have any knives in my possession that belong to
Gloria Pugh, or to John W. Warren, and I did not comply with it
as to the question of whether or not I have a knife belonging to
Henry LeRoy Gray.
"Q. Now, I would ask you, do you have a knife in your
possession or under your control relating to or belonging to Henry
LeRoy Gray?
“A. I decline to answer that because of the confidential
relationship of attorney and client; and to answer the question
would be a violation of my oath as an attorney.
«***
“Q. And for the record, Mr. Olwell, in the event you do have
in your possession a knife or knives that would be called for under
the subpoena duces tecum, I take it your answer would be that
you received these at the time you were acting as the attorney for
Mr. Gray, is that correct?
“A. That is correct.”
Further, on examination by the coroner, the following
occurred:
o Ch. 7_______________ Confidential Information_________________203
CD “Mr. Sowers: * * * As the Coroner of King County I order you
to do so [answer] under the provisions of the law set forth in the
CD legislature under R.C.W. 36.24.050.
C “Mr. dwell: I decline to surrender any of my client’s
possessions, if any, because of the confidential relationship of
CD attorney and client because under the law I cannot give evidence
which under the law cannot be compelled from my client himself.”
CD
The events preceding the issuance of the subpoena and the coroner’s
o inquest (as shown by the record as supplemented by some undisputed
statements in the parties’ briefs) are substantially as follows: Henry LeRoy
CD Gray and John W. Warren engaged in a fight on September 7, 1962, which
resulted in Warren’s being mortally injured by knife wounds. On or about
CD September 8, 1962, Gray was taken into custody by the Seattle Police
Department and placed in jail. During his incarceration, Gray admitted the
cd stabbing of Warren and was willing to co-operate and to aid in the
investigation of the homicide. According to a detective of the police
CD department, Gray was not sure what became of the knife he had used in
the fight with Warren.
CD
September 10, 1962, David H. Olwell, appellant, was retained as
C attorney for Gray, who was still confined in jail. Mr. Olwell conferred with
his client and then, between the time of that conference and the issuance
CD of the subpoena duces tecum, he came into possession of certain evidence
(a knife). It is not clear whether appellant came into possession of this knife
CD through his own investigation while acting as attorney for Gray or whether
possession of it was obtained as the result of some communication made by
CD Gray to Olwell during the existence of their attorney and client
relationship. This factor is important in determining whether the evidence
CD could be considered as a privileged communication (which is discussed
below.)
CD
Therefore, at the time of the inquest, appellant was in possession of a
CD knife that, at that time, was considered as a possible murder weapon.1 *
Thereafter the coroner issued the subpoena duces tecum previously quoted.
CD Appellant appeared at the coroner’s inquest and the exchange between
appellant, the deputy prosecutor, and the coroner took place as described
CD above. At that time, appellant refused to comply with the subpoena duces
CD tecum and raised the issues presented in this appeal. Thereafter, appellant
was cited to appear in the Superior Court of King County, where he was
CD found to be in contempt because of his actions at the coroner’s inquest on
September 18, 1962. Appellant was given 10 days within which to purge
CD
1 It is stated in respondent's brief that, on April 25,1963, Henry LeRoy Gray was tried and

O convicted of murder and is now serving a life sentence for the crime. Furthermore, a knife other
than the one involved in this proceeding was subsequently discovered to be the weapon used by
Gray in the fight.
CD
 204 Confidential Information Ch. 7
himself of contempt, and, upon his failure to do so, an order was entered
adjudging him to be in contempt and directing that he serve two days in
the county jail. From that order finding him in contempt, Mr. Olwell
appeals.
***
To be protected as a privileged communication, information or objects
acquired by an attorney must have been communicated or delivered to him
by the client, and not merely obtained by the attorney while acting in that
capacity for the client. Dupree v. Better Way, Inc., 86 So.2d 425 (Fla. 1956).
See, also, 97 C.J.S. Witnesses § 283. This means that the securing of the
knife in this case must have been the direct result of information given to
Mr. Olwell by his client at the time they conferred in order to come within
the attorney-client privilege. Although there is no evidence relating
thereto, we think it reasonable to infer from the record that appellant did,
in fact, obtain the evidence as the result of information received from his
client during their conference. Therefore, for the purposes of this opinion
and the questions to be answered, we assume that the evidence in
appellant’s possession was obtained through a confidential communication
from his client. If the knife were obtained from a third person with whom
there was no attorney-client relationship, the communication would not be
privileged, and the third person could be questioned concerning the
transaction.3
Further, communications concerning an alleged crime or fraud, which
are made by a client to the attorney after the crime or the fraudulent
transaction has been completed, are within the attorney-client privilege, as
long as the relationship of attorney and client has been established.
Therefore, we find nothing significant in the fact that the communication
was made after and concerned the events of a homicide.
In the present case we do not have a situation that readily lends itself
to the application of one of the general rules applicable to the attorney­
client privilege. Here, we enter a balancing process which requires us to
weigh that privilege (which is based on statute and common law), and, as
discussed later herein, the privilege against self-incrimination (which is
constitutional), against the public’s interest in the criminal investigation
process. Generally speaking, the public interest at times must yield to
protect the individual. Also, we must not lose sight of the policy behind the
attorney-client privilege, which is to afford the client freedom from fear of
compulsory disclosure after consulting his legal adviser.
★*★

3 The state suggests that the knife was obtained from Gray’s ex-wife, but it failed to offer
any proof of this alleged fact to show that a privileged communication did not, in fact, exist.
Ch. 7_______________ Confidential Information_________________205
On the basis of the attorney-client privilege, the subpoena duces tecum
issued by the coroner is defective on its face because it requires the attorney
to give testimony concerning information received by him from his client in
the course of their conferences. The subpoena names the client and
requires his attorney to produce, in an open hearing, physical evidence
allegedly received from the client. This is tantamount to requiring the
attorney to testify against the client without the latter’s consent. RCW
36.24.080 makes testifying in a coroner’s inquest similar to testifying in a
superior court, and, therefore, the attorney-client privilege should be
equally applicable to witnesses at a coroner’s inquest. We, therefore, hold
that appellant’s refusal to testify at the inquest for the first reason stated
by him was not contemptuous.
We do not, however, by so holding, mean to imply that evidence can be
permanently withheld by the attorney under the claim of the attorney­
client privilege. Here, we must consider the balancing process between the
attorney-client privilege and the public interest in criminal investigation.
We are in agreement that the attorney-client privilege is applicable to the
knife held by appellant, but do not agree that the privilege warrants the
attorney, as an officer of the court, from withholding it after being properly
requested to produce the same. The attorney should not be a depository for
criminal evidence (such as a knife, other weapons, stolen property, etc.),
which in itself has little, if any, material value for the purposes of aiding
counsel in the preparation of the defense of his client’s case. Such evidence
given the attorney during legal consultation for information purposes and
used by the attorney in preparing the defense of his client’s case, whether
or not the case ever goes to trial, could clearly be withheld for a reasonable
period of time. It follows that the attorney, after a reasonable period,
should, as an officer of the court, on his own motion turn the same over to
the prosecution.
We think the attorney-client privilege should and can be preserved
even though the attorney surrenders the evidence he has in his possession.
The prosecution, upon receipt of such evidence from an attorney, where
charge against the attorney’s client is contemplated (presently or in the
future), should be well aware of the existence of the attorney-client
privilege. Therefore, the state, when attempting to introduce such evidence
at the trial, should take extreme precautions to make certain that the
source of the evidence is not disclosed in the presence of the jury and
prejudicial error is not committed. By thus allowing the prosecution to
recover such evidence, the public interest is served, and by refusing the
prosecution an opportunity to disclose the source of the evidence, the
client’s privilege is preserved and a balance is reached between these
conflicting interests. The burden of introducing such evidence at a trial
would continue to be upon the prosecution. [The court then explains that
 o

206_________________ Confidential Information_____________ Ch. 7

o

the client’s Fifth Amendment privilege against self-incrimination could not

o
serve as a shield for the attorney.] o
As was previously stated, the attorney should not be a depository for
the suppression of such criminal evidence. If the attorney is given such o
evidence by his client, he should not be able to assert the privilege against
self-incrimination which is personal to the client and must be claimed by o
the client alone. The attorney can aid in its preservation by informing the
client of his right to claim the privilege against self-incrimination. o
Because the subpoena duces tecum in this case is invalid, since it Q
required the attorney to testify without the client’s consent regarding
matters arising out of the attorney-client relationship, the order of the trial O
court finding appellant to be in contempt and punishing him therefor is
hereby reversed with directions to dismiss this proceeding. O

People v. Meredith O
Supreme Court of California, 1981.
29 Cal.3d 682,175 CaLRptr. 612, 631 P.2d 46. o
Defendants Frank Earl Scott and Michael Meredith appeal from a
convictions for the first degree murder and first degree robbery of David
Wade. Meredith’s conviction rests on eyewitness testimony that he shot o
and killed Wade. Scott’s conviction, however, depends on the theory that
Scott conspired with Meredith and a third defendant, Jacqueline Otis, to o
bring about the killing and robbery. To support the theory of conspiracy the
prosecution sought to show the place where the victim’s wallet was found, o
and, in the course of the case this piece of evidence became crucial. The
admissibility of that evidence comprises the principal issue on this appeal.
o
At trial the prosecution called Steven Frick, who testified that he CD
observed the victim’s partially burnt wallet in a trash can behind Scott’s
residence. Scott’s trial counsel then adduced that Frick served as a defense o
investigator. Scott himself had told his former counsel that he had taken
the victim’s wallet, divided the money with Meredith, attempted to burn o
the wallet, and finally put it in the trash can. At counsel’s request, Frick
then retrieved the wallet from the trash can. Counsel examined the wallet o
and then turned it over to the police.
o
The defense acknowledges that the wallet itself was properly admitted
into evidence. The prosecution in turn acknowledges that the attorney­ o
client privilege protected the conversations between Scott, his former
counsel, and counsel’s investigator. Indeed the prosecution did not attempt o
to introduce those conversations at trial. The issue before us, consequently,
focuses upon a narrow point: whether under the circumstances of this case CD
Frick’s observation of the location of the wallet, the product of a privileged
communication, finds protection under the attorney-client privilege. CD
o
o
CD
Ch. 7 Confidential Information 207

This issue, one of first impression in California, presents the court

with competing policy considerations. On the one hand, to deny protection
to observations arising from confidential communications might chill free
and open communication between attorney and client and might also
inhibit counsel's investigation of his client’s case. On the other hand, we
cannot extend the attorney-client privilege so far that it renders evidence
immune from discovery and admission merely because the defense seizes
it first.
Balancing these considerations, we conclude that an observation by
defense counsel or his investigator, which is the product of a privileged
communication, may not be admitted unless the defense by altering or
removing physical evidence has precluded the prosecution from making
that same observation. In the present case the defense investigator, by
removing the wallet, frustrated any possibility that the police might later
discover it in the trash can. The conduct of the defense thus precluded the
prosecution from ascertaining the crucial fact of the location of the wallet.
Under these circumstances, the prosecution was entitled to present
evidence to show the location of the wallet in the trash can; the trial court
did not err in admitting the investigator’s testimony.
***
We first summarize the evidence other than that relating to the
discovery and location of the victim’s wallet. * * *
On the night of April 3, 1976, Wade (the victim) and Jacqueline Otis,
a friend of the defendants, entered a club known as Rich Jimmy’s.
Defendant Scott remained outside by a shoeshine stand. A few minutes
later codefendant Meredith arrived outside the club. He told Scott he
planned to rob Wade, and asked Scott to go into the club, find Jacqueline
Otis, and ask her to get Wade to go out to Wade’s car parked outside the
club.
In the meantime, Wade and Otis had left the club and walked to a
liquor store to get some beer. Returning from the store, they left the beer
in a bag by Wade’s car and reentered the club. Scott then entered the club
also and, according to the testimony of Laurie Ann Sam (a friend of Scott’s
who was already in the club), Scott asked Otis to get Wade to go back out
to his car so Meredith could “knock him in the head.”
When Wade and Otis did go out to the car, Meredith attacked Wade
from behind. After a brief struggle, two shots were fired; Wade fell, and
Meredith, witnessed by Scott and Sam, ran from the scene.
 208 Confidential Information Ch. 7
Scott went over to the body and, assuming Wade was dead, picked up
the bag containing the beer and hid it behind a fence. Scott later returned,
retrieved the bag, and took it home where Otis and Meredith joined him.2
We now recount the evidence relating to Wade’s wallet, basing our
account primarily on the testimony of James Schenk, Scott’s first appointed
attorney. Schenk visited Scott in jail more than a month after the crime
occurred and solicited information about the murder, stressing that he had
to be fully acquainted with the facts to avoid being “sandbagged” by the
prosecution during the trial. In response, Scott gave Schenk the same
information that he had related earlier to the police. In addition, however,
Scott told Schenk something Scott had not revealed to the police: that he
has seen a wallet, as well as the paper bag, on the ground near Wade. Scott
said that he picked up the wallet, put it in the paper bag, and placed both
behind a parking lot fence. He also said that he later retrieved the bag, took
it home, found $100 in the wallet and divided it with Meredith, and then
tried to burn the wallet in his kitchen sink. He took the partially burned
wallet, Scott told Schenk, placed it in a plastic bag, and threw it in a burn
barrel behind his house.
Schenk, without further consulting Scott, retained Investigator
Stephen Frick and sent Frick to find the wallet. Frick found it in the
location described by Scott and brought it to Schenk. After examining the
wallet and determining that it contained credit cards with Wade’s name,
Schenk turned the wallet and its contents over to Detective Payne,
investigating officer in the case. Schenk told Payne only that, to the best of
his knowledge, the wallet had belonged to Wade.
The prosecution subpoenaed Attorney Schenk and Investigator Frick
to testify at the preliminary hearing. When questioned at that hearing,
Schenk said that he received the wallet from Frick but refused to answer
further questions on the ground that he learned about the wallet through
a privileged communication. Eventually, however, the magistrate
threatened Schenk with contempt if he did not respond “yes” or “no” when
asked whether his contact with his client led to disclosure of the wallet’s
location. Schenk then replied “yes,” and revealed on further questioning
that this contact was the sole source of his information as to the wallet’s
location.
At the preliminary hearing Frick, the investigator who found the
wallet, was then questioned by the district attorney. Over objections by
counsel, Frick testified that he found the wallet in a garbage can behind
Scott’s residence.

* Meredith offered an alibi defense. He testified that he spent the evening at the Kit-Kat
Club and another club across the street, and was never in the vicinity of Rich Jimmy’s. Two
witnesses partially corroborated his alibi.
Ch. 7 Confidential Information 209

Prior to trial, a third attorney, Hamilton Hintz, was appointed for

Scott. Hintz unsuccessfully sought an in limine ruling that the wallet of
the murder victim was inadmissible and that the attorney-client privilege
precluded the admission of testimony concerning the wallet by Schenk or
Frick.
At trial Frick, called by the prosecution, identified the wallet and
testified that he found it in a garbage can behind Scott’s residence. On
cross-examination by Hintz, Scott’s counsel, Frick further testified that he
was an investigator hired by Scott’s first attorney, Schenk, and that he had
searched the garbage can at Schenk’s request. Hintz later called Schenk as
a witness: Schenk testified that he told Frick to search for the wallet
immediately after Schenk finished talking to Scott. Schenk also stated that
Frick brought him the wallet on the following day; after examining its
contents Schenk delivered the wallet to the police. Scott then took the stand
and testified to the information about the wallet that he had disclosed to
Schenk.
The jury found both Scott and Meredith guilty of first degree murder
and first degree robbery. It further found that Meredith, but not Scott, was
armed with a deadly weapon. Both defendants appeal from their
convictions.
Defendant Scott concedes, and we agree, that the wallet itself was
admissible in evidence. Scott maintains, however, that Evidence Code
section 954 bars the testimony of the investigator concerning the location
of the wallet. We consider, first, whether the California attorney-client
privilege codified in that section extends to observations which are the
product of privileged communications. We then discuss whether that
privileged status is lost when defense conduct may have frustrated
prosecution discovery.
Section 954 provides, “[T]he client * * * has a privilege to refuse to
disclose, and to prevent another from disclosing, a confidential
communication between client and lawyer * * * .” Under that section one
who seeks to assert the privilege must establish that a confidential
communication occurred during the course of the attorney-client
relationship.
Scott’s statements to Schenk regarding the location of the wallet
clearly fulfilled the statutory requirements. Moreover, the privilege did not
dissolve when Schenk disclosed the substance of that communication to his
investigator, Frick. Under Evidence Code section 912, subdivision (d), a
disclosure which is “reasonably necessary” to accomplish the purpose for
which the attorney has been consulted does not constitute a waiver of the
privilege. If Frick was to perform the investigative services for which
Schenk had retained him, it was “reasonably necessary,” that Schenk
 210 Confidential Information Ch. 7
transmit to Frick the information regarding the wallet.3 Thus, Schenk’s
disclosure to Frick did not waive the statutory privilege.
The statutes codifying the attorney-client privilege do not, however,
indicate whether that privilege protects facts viewed and observed as a
direct result of confidential communication. To resolve that issue, we turn
first to the policies which underlie the attorney-client privilege, and then
to the cases which apply those policies to observations arising from a
protected communication.
The fundamental purpose of the attorney-client privilege is, of course,
to encourage full and open communication between client and attorney.
“Adequate legal representation in the ascertainment and enforcement of
rights or the prosecution or defense of litigation compels a full disclosure of
the facts by the client to his attorney * * *, Given the privilege, a client
may make such a disclosure without fear that his attorney may be forced
to reveal the information confided to him.” (Ciiy & County of S.F. v.
Superior Court, supra, 37 Cal.2d at p. 235, 231 P.2d 26. See also People v.
Canfield (1974) 12 Cal.3d 699, 705, 117 Cal.Rptr. 81, 527 P.2d 633; People
v. Atkinson (1870) 40 Cal. 284, 285.)
In the criminal context, as we have recently observed, these policies
assume particular significance: “ ‘As a practical matter, if the client knows
that damaging information could more readily be obtained from the
attorney following disclosure than from himself in the absence of
disclosure, the client would be reluctant to confide in his lawyer and it
would be difficult to obtain fully informed legal advice.’ * * * Thus, if an
accused is to derive the full benefits of his right to counsel, he must have
the assurance of confidentiality and privacy of communication with his
attorney.” (Barber v. Municipal Court (1979) 24 Cal.3d 742, 751, 157
Cal.Rptr. 658, 598 P.2d 818, citing Fisher v. United States (1976) 425 U.S.
391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39.)
Judicial decisions have recognized that the implementation of these
important policies may require that the privilege extend not only to the
initial communication between client and attorney but also to any
information which the attorney or his investigator may subsequently
acquire as a direct result of that communication. In a venerable decision
3 Although prior cases do not consider whether section 912, subdivision (d) applies to an
attorney’s investigator, the language of that subdivision covers the circumstances of the instant
case. An investigator is as “reasonably necessary” as a physician or psychiatrist (People u. Lines
(1975) 13 Cal.3d 500, 119 Cal.Rptr. 225, 531 P.2d 793), or a legal secretary, paralegal or
receptionist. (See Anderson u. State (Fla. App. 1974) 297 So.2d 871; City & County of S.F. u. Superior
Court (1951) 37 Cal.2d 227, 231 P.2d 26). Because the investigator, then, is a person encompassed
by the privilege, he stands in the same position as the attorney for purposes of the analysis and
operation of the privilege; the investigator cannot then disclose that which the attorney could not
have disclosed. (City & County of S.F. u. Superior Court, supra, 37 Cal.2d at p. 236, 231 P.2d 26,
see also Evid. Code, § 952 and Law Revision Com. comment thereto.) Thus, the discussion in this
opinion of the conduct of defense counsel, and of counsel’s right to invoke the attorney-client
privilege to avoid testifying, applies also to a defense investigator.
c
c Ch. 7_______________ Confidential Information_________________211
c involving facts analogous to those in the instant case, the Supreme Court
of West Virginia held that the trial court erred in admitting an attorney’s
CD testimony as to the location of a pistol which he had discovered as the result
o of a privileged communication from his client. That the attorney had
observed the pistol, the court pointed out, did not nullify the privilege: “All
o that the said attorney knew about this pistol, or where it was to be found,
he knew only from the communications which had been made to him by his
c client confidentially and professionally, as counsel in this case. And it
ought therefore, to have been entirely excluded from the jury. It may be,
c that in this particular case this evidence tended to the promotion of right
and justice, but as was well said in Pearce v. Pearce, 11 Jar. 52, in page 55,
o and 2 De Gex & Smale 25—27: ‘Truth like all other good things may be loved
unwisely, may be pursued too keenly, may cost too much.’ ” (State of West
c Virginia v. Douglass (1882) 20 W.Va. 770, 783.)
C This unbearable cost, the Douglass court concluded, could not be
entirely avoided by attempting to admit testimony regarding observations
cd or discoveries made as the result of a privileged communication, while
excluding the communication itself. Such a procedure, Douglass held, “was
c practically as mischievous in all its tendencies and consequences, as if it
has required [the attorney] to state everything, which his client had
c confidentially told him about this pistol. It would be a slight safeguard
indeed, to confidential communications made to counsel, if he was thus
c compelled substantially, to give them to a jury, although he was required
not to state them in the words of his client.” (Id., at p. 783.)
CD More recent decisions reach similar conclusions. In State v. Olwell
C (1964) 64 Wash.2d 828, 394 P.2d 681, the court reviewed contempt charges
against an attorney who refused to produce a knife he obtained from his
C client. The court first observed that “[t]o be protected as a privileged
communication * * * the securing of the knife * * * must have been the
c direct result of information given to Mr. Olwell by his client.” The court
concluded that defense counsel, after examining the physical evidence,
c should deliver it to the prosecution, but should not reveal the source of the
evidence; "[b]y thus allowing the prosecution to recover such evidence, the
c public interest is served, and by refusing the prosecution an opportunity to
disclose the source of the evidence, the client’s privilege is preserved and a
CD balance reached between these conflicting interests.” (P. 685.)4 * (See also
Anderson v. State (D.C.App.Fla.1974) 297 So.2d 871.)
CD
o 4 The parties discuss an earlier Washington case. State u. Sullivan (1962) 60 Wash.2d 214,
373 P.2d 474. Defendant in that case revealed the location of the victim’s body to his counsel, who
informed the sheriff. At trial the prosecution called defense counsel to testify to the location. The
cd appellate court reversed the conviction, apparently on the ground that it was unnecessarily
prejudicial to call defense counsel as a prosecution witness when sheriffs deputies and other
cd witnesses who had seen the body were available.
The Sullivan court stated a general rule which supports the result we reach here—that
attorney-client communications remain privileged “regardless of the manner in which it is sought
cd

c
cd
 212 Confidential Information Ch. 7
Finally, we note the decisions of the New York courts in People v. Beige
(Sup.Ct.1975) 83 Misc.2d 186, 372 N.Y.S.2d 798, affirmed in People v. Beige
(App.Div.1975) 50 A.D.2d 1088, 376 N.Y.S.2d 771. Defendant, charged with
one murder, revealed to counsel that he had committed three others.
Counsel, following defendant’s directions, located one of the bodies.
Counsel did not reveal the location of the body until trial, 10 months later,
when he exposed the other murders to support an insanity defense.
Counsel was then indicted for violating two sections of the New York
Public Health Law for failing to report the existence of the body to proper
authorities in order that they could give it a decent burial. The trial court
dismissed the indictment; the appellate division affirmed, holding that the
attorney-client privilege shielded counsel from prosecution for actions
which would otherwise violate the Public Health Law.5
The foregoing decisions demonstrate that the attorney-client privilege
is not strictly limited to communications, but extends to protect
observations made as a consequence of protected communications. We turn
therefore to the question whether that privilege encompasses a case in
which the defense, by removing or altering evidence, interferes with the
prosecution’s opportunity to discover that evidence.* 7
In some of the cases extending the privilege to observations arising
from protected communications the defense counsel had obtained the
evidence from his client or in some other fashion removed it from its
original location (State v. Olwell, supra, 394 P.2d 681; Anderson v. State,
supra, 297 So.2d 871); in others the attorney did not remove or alter the
evidence (People v. Beige, supra, 372 N.Y.S.2d 798; State v. Sullivan, supra,

to put the communications in evidence, whether by direct examination, cross-examination, or

indirectly as by bringing of facts brought to knowledge solely by reason of a confidential
communication.” (P. 476, quoting 58 Am. Jur., Witnesses, § 466.) (Emphasis by the Sullivan court.)
The decision expressly left open, however, whether defense counsel could be called to prove the
location of the body if other witnesses were unavailable.
® In each of the cases discussed in text, a crucial element in the court’s analysis is that the
attorney's observations were the direct product of information communicated to him by his client.
Two decisions. People u. Lee (1970) 3 Cal.App.3d 514,83 Cal.Rptr. 715 and Morrell u. State (Alaska
1978) 575 P.2d 1200, held that an attorney must not only turn over evidence given him by third
parties, but also testify as to the source of that evidence. Both decisions emphasized that the
attorney-client privilege was inapplicable because the third party was not acting as an agent of
the attorney or the client.
7 We agree with the parties’ suggestion that an attorney in Schenk’s position often may best
fulfill conflicting obligations to preserve the confidentiality of client confidences, investigate his
case, and act as an officer of the court if he does not remove evidence located as the result of a
privileged communication. We must recognize, however, that in some cases an examination of
evidence may reveal information critical to the defense of a client accused of crime. If the
usefulness of the evidence cannot be gauged without taking possession of it, as, for example, when
a ballistics or fingerprint test is required, the attorney may properly take it for a reasonable time
before turning it over to the prosecution. (Otwell, supra, 394 P.2d pp. 684-685.) Similarly, in the
present case the defense counsel could not be certain the burnt wallet belonged in fact to the victim:
in taking the wallet to examine it for identification, he violated no ethical duty to his client or to
the prosecution. (See generally Legal Ethics and the Destruction of Evidence (1979) 88 Yale L.J.
1665.)
Cj
Ch. 7_______________ Confidential Information_________________213
c 373 P.2d 474). None of the decisions, however, confronts directly the
c question whether such removal or alteration should affect the defendant’s
right to assert the attorney-client privilege as a bar to testimony
o concerning the original location or condition of the evidence.
When defense counsel alters or removes physical evidence, he
necessarily deprives the prosecution of the opportunity to observe that
evidence in its original condition or location. As the Amicus Appellate
Committee of the California District Attorneys Association points out, to
bar admission of testimony concerning the original condition and location
c of the evidence in such a case permits the defense in effect to “destroy”
critical information; it is as if, he explains, the wallet in this case bore a tag
bearing the words “located in the trash can by Scott’s residence,” and the
c defense, by taking the wallet, destroyed this tag. To extend the attorney­
client privilege to a case in which the defense removed evidence might
c encourage defense counsel to race the police to seize critical evidence. (See
In re Ryder (E.D.Va.1967) 263 F.Supp. 360, 369; Comment, The Right of a
c Criminal Defense Attorney to Withhold Physical Evidence Received From
His Client, 38 U.Chi.L.Rev. 211, 227 -228 (1970).)
o We therefore conclude that courts must craft an exception to the
protection extended by the attorney-client privilege in cases in which
counsel has removed or altered evidence. Indeed, at oral argument defense
counsel acknowledged that such an exception might be necessary in a case
in which the police would have inevitably discovered the evidence in its
c original location if counsel had not removed it. Counsel argued, however,
that the attorney-client privilege should protect observations of evidence,
c despite subsequent defense removal, unless the prosecution could prove
that the police probably would have eventually discovered the evidence in
the original site.
Q We have seriously considered counsel’s proposal, but have concluded
that a test based upon the probability of eventual discovery is unworkably
C speculative. Evidence turns up not only because the police deliberately
search for it, but also because it comes to the attention of policemen or
c bystanders engaged in other business. In the present case, for example, the
wallet might have been found by the trash collector. Moreover, once
c physical evidence (the wallet) is turned over to the police, they will
obviously stop looking for it; to ask where, how long, and how carefully they
a would have looked is obviously to compel speculation as to theoretical
future conduct of the police.
c We therefore conclude that whenever defense counsel removes or
alters evidence, the statutory privilege does not bar revelation of the
o original location or condition of the evidence in question.8 We thus view the
c • In offering the evidence, the prosecution should present the information in a manner which
avoids revealing the content of attorney-client communications or the original source of the
c information. In the present case, for example, the prosecutor simply asked Frick where he found

c
Q
 214 Confidential Information Ch. 7
defense decision to remove evidence as a tactical choice. If defense counsel
leaves the evidence where he discovers it, his observations derived from
privileged communications are insulated from revelation. If, however,
counsel chooses to remove evidence to examine or test it, the original
location and condition of that evidence loses the protection of the privilege.
Applying this analysis to the present case, we hold that the trial court did
not err in admitting the investigator’s testimony concerning the location of
the wallet.

I. EXCEPTIONS TO THE ETHICAL

DUTY OF CONFIDENTIALITY
A. CLIENT CONSENT OR IMPLIED AUTHORITY
Re-read ABA Model Rule 1.6(a). You will see that it allows a lawyer to
reveal a client’s confidential information if the client has given informed
consent, or if the nature of the representation impliedly authorizes the
lawyer to reveal the confidential information. For example, suppose a client
hires you to prepare and file an environmental impact report for the client’s
proposed construction project. To do that, you will have to tell the
government and the public many of the confidential details of the proposed
project, and your client realizes that fact. You have implied authority to
reveal those details in the report. [See ABA Model Rule 1.6(a) and comment
5.]
B. PREVENT FUTURE HARM/MITIGATE
OR RECTIFY FINANCIAL INJURY
Re-read ABA Model Rule 1.6(b)(l)-(3) and Comments 6-8. Suppose
that a client goes to his lawyer and, in confidence, asks for some legal
advice in conjunction with his plan to commit two future crimes: (1) a fraud
that will bilk innocent people of their life savings, and (2) a brutal murder,
to cover up the fraud. Suppose that after the client states his evil plan, the
lawyer tries to talk him out of it. The client flies into a rage, vows to carry
out the plan, and storms out of the lawyer’s office. The lawyer is convinced
that the client will really do it. May the lawyer warn the appropriate
authorities and the intended victims in an effort to foil the client’s plan?
This situation is governed, not by the attorney-client privilege, but by the
lawyer’s ethical duty of confidentiality.

the wallet; he did not identify Frick as a defense investigator or trace the discovery of the wallet
to an attorney-client communication. In other circumstances, when it is not possible to elicit such
testimony without identifying the witness as the defendant’s attorney or investigator, the
defendant may be willing to enter a stipulation which will simply inform the jury as to the relevant
location ox' condition of the evidence in question. When such a stipulation is proffered, the
prosecution should not be permitted to reject the stipulation in the hope that by requiring defense
counsel personally to testify to such facts, the jury might infer that counsel learned those facts
from defendant, (Cf. People u. Hall (1980) 28 Cal.3d 143, 152, 167 Cal.Rptr. 844, 616 P.2d 826.)
Ch, 7______________Confidential Information_______________ 215
ABA Model Rule 1.6(b) has a curious history. The old ABA Model Code
(the precursor of the ABA Model Rules) allowed the lawyer to voluntarily
reveal the client’s confidentially stated intent to commit any kind of future
crime, together with information needed to prevent the crime from being
committed. [See ABA Model Code of Professional Responsibility DR 4—
101(C)(3).] The Model Code paid no attention to the kinds of harm the
future crime might cause.
In the early 1980s, the ABA Model Rules drafting committee proposed
a rule that would allow the lawyer to reveal the client’s confidential
information under more limited circumstances: (1) to prevent the client
from committing a crime that would cause imminent death or substantial
bodily injury; (2) to prevent the client from committing a crime or fraud
that would cause substantial financial injury; and (3) to rectify the
consequences of a client’s crime or fraud in furtherance of which the
lawyer’s services had been used. When the committee’s draft came before
the ABA House of Delegates for approval, the delegates threw out the
second and third categories, leaving only the first: that a lawyer could only
reveal a client’s confidential information to prevent the client from
committing a future crime that would cause imminent death or substantial
bodily injury.
Only a small minority of the 50 states accepted the House of Delegates’
bob-tailed version of the rule. Instead, most states allowed the lawyer to
reveal future crimes that would cause imminent death, substantial bodily
injury, or substantial financial injury. The ABA Ethics 2000 Commission
tried to resolve the division of authority, but the House of Delegates again
rejected a confidentiality exception designed to prevent serious financial
injury, as distinct from serious bodily injury or death. The ABA Ethics 2000
Commission was victorious, however, on a related point, modifying the
death or substantial bodily injury exception in ABA Model Rule 1.6(b)(1) to
apply even if: (1) no crime is involved; and (2) even if the death oi* bodily
injury is not “imminent” but is merely “reasonably certain,” and (3) even if
the death or bodily injury is caused by someone or something other than
the lawyer’s client. [Accord RESTATEMENT (THIRD) OF THE Law Governing
Lawyers § 66 (2000).]
Finally, in 2003, the ABA House of Delegates amended ABA Model
Rule 1.6 to add two exceptions to the duty of confidentiality. The amended
rule permits a lawyer to disclose confidential information to prevent a
client from committing a crime or fraud that would cause substantial
financial injury, as well as to prevent, mitigate, or rectify substantial
financial injury due to a client’s crime or fraud, when the client is using or
has used the lawyer’s services in the matter. [See also Comment to ABA
Model Rule 4.1 (noting that under some circumstances it may be necessary
for the lawyer both to withdraw from the representation and “to disaffirm
216 Confidential Information Ch. 7
an opinion, document, affirmation or the like” to avoid assisting the client’s
crime or fraud).]
C. SELF-DEFENSE
Now re-read ABA Model Rule 1.6(b) and the Comments that
accompany it. Subsection (b)(5) allows a lawyer to reveal a client’s
confidential information in “self-defense,” for example: to defend against a
claim of legal malpractice or ineffective assistance of counsel; to defend
against a civil or criminal charge that the lawyer was involved in the
client’s wrongdoing; and to obtain relief against a client who has breached
a fee agreement or the like. [Accord RESTATEMENT (THIRD) OF THE LAW
Governing Lawyers §§ 64 and 65 (2000).]
ABA Model Rule 1.6(b)(4) allows a lawyer to reveal a client’s
confidential information in order to get legal advice about complying with
the rules of legal ethics. For example, a lawyer might call the state bar
association ethics hotline or an outside legal ethics expert and pose an
ethics question that is based on the client’s confidential information.
D. COURT ORDER OR OTHER LAW
ABA Model Rule 1.6(b)(6) allows a lawyer to disclose a client’s
confidential information where that is necessary to comply with a court
order or with some other law. Read Comments 10 and 11 to that Rule. Can
you think of a law that trumps Rule 1.6 and requires a lawyer to reveal a
client’s confidential information? Does the law of attorney-client privilege
ever do that? Under what circumstances?

E. CONFLICTS DUE TO LAWYER MOBILITY

ABA Model Rule 1.6(b)(7) is the newest exception to the lawyer’s duty
of confidentiality. When a lawyer joins a firm or agency, in order to avoid
potential conflicts of interest the lawyer must be able to reveal the
identities of his or her previous clients, as well as some limited information
about the matters the lawyer handled on behalf of those clients. What
limits does the rule impose upon the reach of this exception?

II. “EVERYDAY” CONFIDENTIALITY ISSUES

Criminal cases involving death threats or buried bodies are serious
and disturbing, but real life “everyday” confidentiality issues have nothing
to do with clients who might kill someone. Rather, everyday confidentiality
issues commonly arise from lawyer carelessness or lawyer indiscretion. The
misdirected fax described in the first Discussion Problem in Chapter One
is an example of lawyer carelessness. Lawyer indiscretion creates
confidentiality issues when lawyers discuss clients by name—or not by
name, but in a manner that makes the client or matter identifiable—to
Ch. 7_______________ Confidential Information_________________217
people who are not entitled to hear that information. This can occur in a
direct manner, such as discussing a well-known client with one’s family or
friends. It can also occur in an indirect manner, such as discussing a client
or case with a proper person but under circumstances where the
conversation could be overheard by others. Examples include discussions
in restaurants, while walking down the street, while riding an elevator, or
while on an airplane. All too often, lawyers will discuss a case over a cell
phone in a public place. You might not realize that a person within earshot
is the client’s sister, or an employee of a corporate competitor, or someone
else who will recognize the name dr description of the case.
The inadvertent sharing of confidential information was highlighted
in a 2017 reporter’s scoop, gained when the reporter overheard lawyers for
President Donald Trump discussing legal strategy during lunchtime in a
popular Washington, D.C. restaurant! See “A Reporter’s Accidental Scoop,”
N.Y. Times, Sept. 20, 2017, at A2 (“[The lawyers] were immersed in a
detailed discussion of the investigations and of the Trump team’s response
strategy. It was a public place, and they could have been overheard by
anyone. I just happened to be a reporter.”).

Multiple Choice Questions

Answer these questions using the definitions found
at the end of Chapter Two.
1. In which of the following situations would the information received
by the attorney be covered by both the attorney-client privilege and the ethical
duty to preserve the client’s confidential information?
I. Lawyer L is defending client C in a tax fraud case. With C’s consent,
L hires a tax accountant to examine C’s records, to talk with C, and to prepare
some worksheets for L to use in defending the case. The accountant turns the
worksheets over to L.
II. L is representing C in a boundary line dispute with C’s neighbor.
When combing through the county land records, L discovers that C’s grantor
apparently had no legal title to the land he purported to grant to C.
III. L is defending C in a first degree murder case. In the course of her
investigation, L talks to a taxi driver who tells L that he remembers that on
the night in question C rode in his taxi to an address near the scene of the
murder.
IV. L represents C in an action fox' breach of an oral contract. When
preparing the case foi' trial, L stumbles across an old newspaper clipping,
reporting C’s conviction of a felony in a distant state 15 years ago.
A. All of the above.
B. I, III, and IV only.
C. I only.
218 Confidential information Ch. 7
D. Ill only.
2. Client Christenson asked attorney Alder to prepare some legal
papers in connection with Christenson’s dissolution of marriage proceeding. In
the course of conversation, Alder learned that Christenson intended to develop
some beachfront property into condominiums. State law requires the filing of
certain environmental impact statements with the State Commissioner of Real
Estate and Development as a prerequisite to any development efforts,
including advertising and zoning variances. Later Alder learned that
Christenson was proceeding with the project and had not yet filed the required
statements. Which of the following items are correct?
I. Alder must contact the State Commissioner of Real Estate and
Development and reveal Christenson’s intentions.
II. Alder may contact the State Commissioner of Real Estate and
Development and reveal Christenson’s intentions.
III. Alder may contact Christenson and urge him to take appropriate
steps to rectify his wrong.
IV. It would be proper for Alder not to tell any outsider about his
communications with Christenson.
A. I, III, and IV only.
B. II, III, and IV only.
C. Ill and TV only.
D. IV only.
3. Lawyer Lorenz represents client Cramer in a complex business case.
The defendant has demanded production of a mass of Cramer’s records that
contain vital, confidential business information. The defendant has agreed to
a protective order that prohibits it from misusing the information, and it has
agreed to accept xerographic copies in lieu of the original records. Lorenz’s
office does not have a copying machine big enough to do the job efficiently. In
these circumstances:
A. Lorenz must do the copying job herself on her small, slow office
machine.
B. Lorenz must tell Cramer to make the copies himself, using his
own facilities.
C. Lorenz may select a trustworthy copying firm to do the work,
provided that she makes sure the firm’s employees preserve the
confidentiality of the records.
D. Lorenz may select a trustworthy copying firm to do the work,
provided that she is personally present to supervise the work.
4. Attorney Aquino defended Dempsey in a criminal assault case. Before
trial, Dempsey told Aquino in confidence that he beat up the victim without
provocation. Due to Aquino’s hard work, coupled with a stroke of luck, the jury
Ch. 7 Confidential Information 219
found Dempsey not guilty. Then Dempsey refused to pay Aquino’s fee. Aquino
wrote to Dempsey as follows: 'The jury found you not guilty, but your victim
can still sue you for civil damages. If you do not pay my fee, and if I have to sue
you to collect it, I will have to reveal the whole truth in open court, to explain
why the amount of my fee is reasonable. Think this over carefully. I hope to
receive your check by return mail.” Which of the following is most nearly
correct?
A. Even though heavy-handed, Aquino’s lettei* was proper because
he was simply explaining to Dempsey the consequences of refusing to pay
the fee.
B. If Aquino sues Dempsey to collect the fee, Aquino will be subject
to discipline because a lawyer is prohibited from using a civil suit to collect
a fee.
C. Aquino’s letter was proper because a lawyer is required to settle
fee disputes amicably if possible.
D. If Aquino sues Dempsey to collect the fee, Aquino may reveal
Dempsey’s confidential communications, but only to the extent necessary
to establish his claim against Dempsey.
5. Client Colbert has retained lawyer Lamb to represent her in divorce
proceedings instituted by Colbert’s husband. Colbert has moved out of the
family home and is living in a distant town; she no longer sees her husband or
their children. Colbert tells Lamb in confidence that, before the separation, she
had been physically abusing the children. A state statute requires physicians
and psychotherapists to report to the police all suspected cases of child abuse.
The statute makes no mention of attorneys. Which of the following is most
nearly correct?
A. If Lamb reports the child abuse to the police, he will be subject
to discipline.
B. Lamb may report the child abuse to the police if he believes that
the interests of justice will be served by doing so.
C. Lamb must report the child abuse to the police, because the state
policy favors the protection of children.
D. Lamb must report the child abuse to the police, because child
abuse is a crime that may result in death or serious bodily injury.
6. Eight years ago, attorney Arnott represented client Coleman in
connection with a murder investigation. Coleman repeatedly assured Arnott
that he was innocent. The investigation proved futile, and Coleman was never
formally charged with any crime. At present Arnott is representing client
Curtis in a child custody dispute between Curtis and her ex-husband. In that
connection, Curtis tells Arnott in confidence about a murder committed eight
years earlier by one Coleman, a friend of her ex-husband. The details revealed
by Curtis make it clear that Arnott’s former client, Coleman, did commit the
murder. Curtis insists that Arnott not tell anyone about the murder for fear
220 Confidential Information Ch. 7 o
that Coleman or some of her ex-husband’s other friends may retaliate against o
her or her children. This jurisdiction has no statute of limitations on murder.
Which of the following is most nearly correct?
o
A. Arnott may reveal the information to the prosecutor
without Curtis’s consent, because this jurisdiction has no statute
o
of limitations on murder. o
B. Arnott must reveal the information to the prosecutor because
Coleman’s evasion of the law is a continuing crime. o
C. Arnott must keep the information in confidence unless Curtis o
changes her mind and consents to have it revealed.
D. Arnott may reveal the information to the prosecutor without the o
consent of either Curtis or Coleman, provided that he asks the prosecutor
not to disclose the source of the information. o
7. Lawyer Ling represented clients Clark and Craddock who were the
sole partners in a business joint venture. In that connection, Clark and
o
Craddock met frequently with Ling to discuss confidential matters relating to
the business. One day Clark came alone to Ling’s office. Before Ling could stop
o
him, Clark disclosed that he had usurped a business opportunity that properly
belonged to the joint venture. Ling informed Clark that she could not advise
o
him on that topic. Further, Ling promptly withdrew as counsel to Clark and
Craddock. Ultimately Craddock sued Clark for the usurpation. Craddock's
o
lawyer subpoenaed Ling to testify at a deposition about the statements Clark
made to Ling. At the deposition, Clark’s lawyer asserted the attorney-client
p
privilege on Clark’s behalf. Ultimately the court ordered Ling to disclose what o
Clark said. Which of the following is most nearly correct?
A. It was proper for Ling to withdraw as counsel to Clark and o
Craddock. Further, Ling must disclose what Clark said.
B. It was proper for Ling to withdraw as counsel to Clark and
o
Craddock. However, Ling will be subject to discipline if she discloses what
Clark said.
o
C. Ling is subject to discipline for withdrawing as counsel to Clark o
and Craddock. Further, Ling will be subject to discipline if she discloses
what Clark said. o
D. Even if Ling believes that the court order is correct, she must
refuse to disclose what Clark said.
o
Answers to the multiple choice questions will be found o
in the Appendix at the end of the book.
D
 Chapter Eight

Candor
■■■

What This Chapter Covers

I. The Attorney’s Duty of Candor
A. Candor About the Law
B. Candor About the Facts
C. The Trilemma: Trust, Confidentiality, and Candor
D. Falsity in Civil Matters

Reading Assignment
Schwartz, Wydick, Perschbacher, & Bassett, Chapter 8.
ABA Model Rules:
Rules 1.6, 3.3, 4.1, 8.1, and 8.4(c), (e).
Supplemental Reading
Hazard & Hodes:
Discussion of ABA Model Rules 1.6, 3.3, 4.1, and 8.4(c), (e).
Restatement (Third) of the Law Governing Lawyers §§ 111, 116-120
(2000).

Discussion Problems
1. Suppose you represent the defendant in a diversity of citizenship
case that is in trial in the United States District Court for the Southern
District of New York. The applicable law is that of the State of New York.
One disputed legal issue is vital—in a malpractice action, what is the
appropriate standard of care for a doctor of veterinary medicine who holds
herself out as a specialist in ruminant epidemiology? The plaintiffs lawyer
has failed to cite a very recent appellate decision that would support the
plaintiffs position. So far as you know, the trial judge is unaware of the
decision, but you know about it because it was reported in the current issue
of U.S. Law Week. In which of the following situations would you have an
ethical duty to call the decision to the trial judge’s attention?

221
222 Candor Ch. 8
a. Suppose it were a New York Court of Appeals decision in
a veterinary malpractice case?
b. Suppose it were an Arizona Supreme Court decision in a
veterinary malpractice case?
c. Suppose it were a New York Court of Appeals decision in
a legal malpractice case involving a lawyer who held himself out
as an expert in Robinson-Patman price discrimination litigation?
Are there any tactical reasons to go beyond what the ethics rules require?
2. Suppose you represent the defendant at the trial of a negligence
case. The plaintiff has engaged in extensive discovery, but she has not
found out about eyewitness X, an impartial third party who saw the
accident clearly. X’s testimony would establish that your client was at fault.
At the trial, plaintiffs case in chief is insufficient to get the case to the jury,
but the defect could be cured by X’s testimony. Plaintiff is about to close
her case in chief. When she does, it will be time for you to move for a
directed verdict. You know that X lives nearby and is available as a
witness. What will you do?
3. Suppose that you are counsel for the patentee of a U.S. patented
prosthetic arm that enables an amputee to function almost perfectly. Your
client is the defendant in a federal declaratory judgment action brought by
a competitor to have the patent declared invalid under 35 U.S.C. § 102(b).
That statute makes a patent invalid if the invention was in public use or
on sale in the U.S. more than one year prior to the date of the U.S. patent
application. The patent application was dated April 15, 2005. The plaintiff
took your client’s deposition and questioned him as follows:
Q: What date was the patented prosthetic arm first sold in the
U.S.?
A: August 21, 2004.
Q: How do you know that so quickly and certainly?
A: Because when you guys sued, I checked the date on the hang­
tag on the sample prosthesis in our sample vault. That date tells
when the item was first sold anywhere in the world. We put a
dated hang-tag on a sample of everything we invent, and we store
the sample in the sample vault, so we will have an accurate record.
Q: How do we know that you put the right date on it?
A: Because we put it on there with pen and ink, and we are not
slimeballs like some people I can think of.
After a few more questions, the deposition was adjourned for the lunch
hour. During lunch, you admonished your client not to call the other side
slimeballs. He responded:
V__ /

Ch. 8 Candor 223

c They are slimeballs, and you have to fight slime with slime.
c Originally that hang-tag said 3/21/04, but I doctored it by turning
the 3 into an 8, to make it say August 21, 2004. Pretty slick, no?
o What must you do now?
o 4. Suppose that you are the in-house counsel for a drug company
that has been sued in a state court products liability case. You have hired
c outside attorney Adney to defend the company. Technically speaking, you
have the ultimate responsibility for all litigation matters, but you try never
o to second-guess the judgments of outside counsel. In the case at hand, the
plaintiff alleges that he got bleeding stomach ulcers from taking Luxair, a
c drug made and sold by the company as a remedy for male pattern baldness.
The active ingredient in Luxair is a chemical known as phlogestin. Plaintiff
o alleges that the company knew all along that Luxair creates a grave risk
of stomach ulcers in males past age 40. Plaintiff demanded production of a
c host of documents, including “all documents relating to Luxair and the risk
of stomach ulcers.” When attorney Adney’s paralegals searched the
c company files, they found no documents that mention both Luxair and
/— stomach ulcers. However, in the company files pertaining to a different
drug product that also contains phlogestin, the paralegals found a
□ “smoking gun,” namely a packet of research reports. The reports show that
when defendant put Luxair on the market, it knew beyond doubt that
c phlogestin significantly increases the risk of stomach ulcers in males past
age 40. Adney plans not to produce the research reports because they were
o not in the files pertaining to Luxair and they do not mention Luxair. Do
you agree with Adney’s plan?
O 5. Suppose that you are the defense lawyer for Decker who is
charged with first degree murder. He has told you that he is innocent and
C that he was miles away from the scene of the crime, playing cards with
three friends. You have interviewed the three friends, and they confirm his
C story. You plan to use Decker and the three friends as defense witnesses at
c Decker’s jury trial.
a. Suppose that ten weeks before the trial, your
Q investigator hands you information that clearly shows, beyond
.✓*"—S any fleeting whiff of doubt, that Decker and his friends are lying
VJ and that Decker did commit the murder. When you confront
Decker, he says: “You are my lawyer, not my jury. I want to testify
O and to have my friends testify for me. Let the jury decide whether
I am guilty.” What should you do?
c b. Suppose the same facts, except that you get the
c information and confront Decker ten minutes before you are to
begin presenting the defense case-in-chief. What should you do?
c c. Suppose that you do not get the information until ten
c minutes after you have presented the testimony of Decker and his

o
 D
224 Candor Ch. 8
o
friends. When you confront Decker, he says: “Your information is
o
correct; I murdered that guy. But I think the jury believed me and
my friends. Leave well enough alone.” What should you do?
o
d. Suppose that you do not get the information until ten o
weeks after the jury has acquitted Decker. When you confront
Decker, he says: “Your information is correct; I murdered that o
guy. But obviously the jury believed me and my friends. Leave
well enough alone.” What should you do?
o
e. Suppose that the information you receive from your o
investigator leaves some small room for doubt. When you confront
Decker, he reaffirms his story about the card game. Does that o
change your answers to questions a through d?
6. The reading, infra, describes the narrative testimony approach.
o
What is the narrative testimony approach? Note that the narrative
testimony approach is not available in all jurisdictions. If you are practicing
o
in a jurisdiction that does not authorize the narrative testimony approach,
how should you handle a criminal defendant client who wishes to testify
o
falsely? a
Model Rule 3.3 is entitled “Candor Toward the Tribunal/’ but issues of (—>
candor arise outside the courtroom as well. Comment 1 of Model Rule 3.3
o
explains that the rule “also applies when the lawyer is representing a client
in an ancillary proceeding conducted pursuant to the tribunal s
adjudicative authority, such as a deposition.” More generally, Model Rules0
4.1 (“Truthfulness in Statements to Others”), 7.1 (“Communications
Concerning a Lawyer’s Services”), and 8.4 (“Misconduct”) extend the 0
lawyer’s duty of candor to situations well beyond the courtroom setting. In
sum, duties of candor may arise not only in litigation, but throughout the (_)
practice of law, including in transactional work, in advertising, and in
general dealings with clients and third parties. This Chapter examines CJ
some of these circumstances.

I. CANDOR IN BAR APPLICATIONS

o
In re Braun 0
Supreme Court of North Carolina, 2000.
352 N.C. 327, 531 S.E.2d 213. (3
Petitioner Nancy E. Braun, a 1988 graduate of the State University of q
New York at Buffalo School of Law, was admitted to practice in the State
of New York (4th Department) in 1989 and in the District of Columbia by Q
reciprocity in 1991. On 5 December 1996, Braun applied for admission to
the North Carolina Bar by comity. [The North Carolina Board of Law

o
o
 Ch. 8 Candor 225
Examiners denied Braun’s application, and the Superior Court of Wake
County affirmed the Board’s decision. Braun now appeals to the North
Carolina Supreme Court.]
Among the Board’s lengthy findings are the following:
Qj 7. From September 1988 to October 1990, the Applicant was an
associate attorney in the law firm of Moot & Sprague in Buffalo, New York.
'-J 8. From November 1990 to November 1991, the Applicant was an
. associate attorney in the law firm of Phillips, Lytle, Hitchcock, Blaine &
V-■ Huber in Buffalo, New York.
Qj 9- In November 1991, the Applicant went into business for herself as
a co-owner and operator of a restaurant business known as Harvest Moon
Qj Cafe & Catering in Buffalo, New York.
10. The Applicant operated Harvest Moon Cafe & Catering as a
'— partnership, sole proprietorship, or corporation from November 1991 until
November 1996.
11. In November 1996, the Applicant moved from Buffalo, New York,
C. to Charlotte, North Carolina.
12. Section .0502(3) of the Rules Governing Admission to Practice
c Law in the State of North Carolina require comity applicants to prove to
the satisfaction of the Board that the applicant is duly licensed to practice
c law in another state, or territory of the United States, or the District of
Columbia having comity with North Carolina, and that while so licensed
g therein, the applicant has been for at least four out of the last six years
c immediately preceding the filing of his application been [sic] actively and
substantially engaged in the practice of law in that jurisdiction.
o 13. The six years immediately preceding the filing of the Applicant’s
Q Application were December 5, 1990, to December 5, 1996.
14. In addition to operating the restaurant, from November 1991 to
o November 1996 the Applicant performed certain law related activities for
Harvest Moon Cafe & Catering, such as obtaining a business loan;
g negotiating a lease and resolving disputes with the landlord; attending an
unemployment hearing; negotiating dissolution of the partnership;
o incorporating the business; obtaining an ABC license; negotiating a
settlement with the telephone company; responding to Labor Board audit
□ inquiries; and negotiating contracts.
o- 15. The Applicant was not paid for her law related activities for
Harvest Moon Cafe & Catering from November 1991 to November 1996.
c 16. During the period from November 1991 to November 1996, the
Applicant performed miscellaneous legal services for various employees
C and vendors, such as drafting a consignment form agreement, appearing
Q
c
 o
226 Candor Ch. 8
o
in traffic court, writing demand letters, and negotiating settlements of o
disputes. Q
17. The Applicant was paid “in kind” or did not charge for her various
miscellaneous legal services for other persons from November 1991 to W
November 1996. These “in kind” payments were not reported as income on —
her federal income tax returns for those years. '—
18. The Applicant did not maintain a legal office separate and apart Qj
from her restaurant business from November 1991 to November 1996.
19. The Applicant did not advertise her legal services in the yellow
pages or otherwise hold herself out to the general public as a practicing
lawyer from November 1991 to November 1996. -
20. The Applicant did not maintain professional malpractice (3
insurance from November 1991 to November 1996.
21. The Applicant did not maintain contemporaneous records of
billable hours for her law related activities for Harvest Moon Cafe &
Catering or her miscellaneous legal services for other persons from
November 1991 to November 1996.
22. The Applicant did not attend formal continuing legal education
(CLE) from November 1991 to November 1996.
23. While the Applicant operated Harvest Moon Cafe & Catering rj
between 1991 and November 1996 she was not engaged in the active and
substantial practice of law. o
25. The Applicant’s answers to questions attempting to show that her
work at Harvest Moon Cafe & Catering was the active and substantial
practice of law showed a lack of candor.
26. The Applicant’s statements and answers to questions showed a
lack of candor; [and] was [sic] misleading to the Board * * *
***
Braun argues that the above findings of fact, in particular numbers 25
and 26, fail to identify which of her specific statements show a lack of
candor or are misleading and that the findings are therefore too vague to
permit judicial review. We disagree.

* * * [T]he Board in the present case clearly sets forth in its finding of
fact 25 which of Braun’s statements were found lacking: “[t]he Applicant’s p)
answers to questions attempting to show that her work at Harvest Moon
Cafe & Catering was the active and substantial practice of law showed a Q
lack of candor?’ (Emphasis added.) This is a specific factual finding that
o
o
o
c Ch. 8_______________________Candor_______________________ 227
o identifies Braun’s statements about her work at Harvest Moon Cafe as
o those showing a lack of candor. The finding allows adequate judicial review
because the whole evidentiary record, coupled with the fact that the Board
c observed Braun’s demeanor, supports this finding.
***
Here, the Board determined that Braun’s statements regarding her
active and substantial practice of law for four out of the last six years
immediately preceding 5 December 1996 were misleading; in particular,
those statements purporting to show a practice at the Harvest Moon Cafe
during the five-year period from November 1991 to December 1996.
o Misrepresentations and evasive or misleading responses * * * are
inconsistent with the truthfulness and candor required of a practicing
c attorney. * * * The record in this case is replete with such responses by
Braun justifying the Board’s determination that she did not actively and
substantially engage in the practice of law for at least four out of the last
six years immediately prior to filing for comity in North Carolina. Further,
after examination of the whole record, the evidence in this case also shows
that the Board was fully justified in its determination that Braun’s
statements showed a lack of candor and had a negative bearing on her
character.
★ ★ if
We conclude that the Petitioner Braun was afforded a careful
consideration of her application and that there was substantial evidence to
support the Board’s findings of fact and conclusions. Accordingly, we affirm
o the order of the trial court, which affirmed the 1 December 1997 order of
the Board of Law Examiners denying Braun’s application.

II. MISREPRESENTATION
Iowa Supreme Court Board of Professional
Ethics and Conduct v. Jones
Supreme Court of Iowa, 2000.
606 N.W.2d 6.

In this attorney disciplinary proceeding, the Iowa Supreme Court

Board of Professional Ethics and Conduct charged attorney Oscar E. Jones
with several violations of the Iowa Code of Professional Responsibility. The
alleged violations stem from Jones’ conduct in persuading a former client
to loan $5,000 to Jones’ current client. The grievance commission
recommended a reprimand. On our de novo review, we find the violations
c serious enough to warrant suspension.

c
228 Candor Ch. 8
I. Facts.
Jones, a solo practitioner, has practiced law in Iowa for approximately
forty-seven years. He has a general practice, consisting of personal injury
work, family law, probate, and real estate.
In 1995, Leon Currie of Waterloo, Iowa, contacted Jones. Before this
time, Jones had never represented Currie, nor did he know him.
Currie told Jones that he had negotiated a contract with the Nigerian
National Petroleum Company to build a pipeline in Nigeria. He also told
Jones that he had completed his end of the contract, but had yet to be paid
what was owed him—$25,300,000.
Currie told Jones he needed $25,300 to pay for risk insurance for
delivery of the $25,300,000. He also told Jones he had obtained most of the
$25,300 for the premium, but was short $5,000. Currie asked Jones to find
a lender to cover this remaining amount. Currie agreed to purchase a $2
million annuity for Jones if Jones were successful in securing a lender and
obtaining payment of the $25,300,000.
Jones did not try to independently verify Currie’s story. Instead, he
accepted Currie’s story at face value.
Currie told Jones that American banks wanted no part of any activities
concerning Nigerian ventures because the banks considered such ventures
“quite risky.” Several banks that Jones contacted confirmed Currie’s
statement. Jones then tried, unsuccessfully, to borrow the $5,000 from
several individuals, but they were not interested.
On Saturday, May 17, 1997, Jones contacted Delbert Jones (no
relation). Jones has known Delbert for over thirty years, and according to
Jones, Delbert “liked to venture into things like this as long as he was
satisfied that he could make some money off of it.” Jones had represented
Delbert in a divorce more than twenty years before but was not
representing him at the time of the call. Delbert, a carpenter, is seventy-
four years old with a high school education.
Jones told Delbert that Currie was due money on a pipeline contract
but needed to pay an insurance premium before receiving payment. Jones
told Delbert that, if he, Delbert, loaned Currie $5,000 within two days to
pay the premium, Currie would repay Delbert $15,000 within thirty days.
Jones described the venture as an opportunity “to make some fast money
* * * some good money.”
In explaining the purpose of the loan, Jones showed Delbert two
letters. One letter, dated March 7, 1997, was addressed to Currie and
purportedly came from the Nigerian Deposit Insurance Co., Ltd. The letter
stated that the company was prepared to issue Currie risk insurance “for
Ch. 8_______________________ Candor____________________ 229
delivery of your funds” in the amount of $25,300,000. The letter also stated
that the company’s liability to Currie
commences upon receipt of your commitment of U.S. $25,300, and
we guarantee that your funds will be remitted to you insured in
conjunction with the Federal Ministry of Finance as soon as we
receive your payment confirmation through our established
service channel.
The other letter, dated March 26, 1997, purportedly came from the
director of investigations for the Federal Republic of Nigeria. The letter
was not addressed to anyone but purported to be a “Letter of Clearance and
Confirmation of Funds.” The letter stated that the director had “thoroughly
investigated the source of the sum of U.S. $25.3 million belonging to Mr.
Leon Currie as proceeds due for a contract executed in Nigeria in 1985.”
The letter also stated that “[t]he payment is not for laundering or drug
business. You may accept the funds in the beneficiary’s account as it has
been certified genuine and incon troversial (sic].”
Delbert asked Jones why he could not make the loan. Jones replied, “I
can’t do that. He’s my client.” Jones never told Delbert that banks and other
individuals had refused to loan money for the endeavor or that the
transaction was risky. Nor did Jones tell him that, if Jones successfully
secured the $5,000 loan and the contract money, Currie would purchase for
Jones a $2 million annuity. When Delbert commented that he did not know
Currie, Jones replied, “Well, he’s my client. He’s good. He’s good.”
Delbert trusted Jones, and based on Jones’ representations that the
endeavor was sound, Delbert borrowed $5,000 for thirty days from his
credit union and obtained a cashier’s check in that amount payable to
Jones. Delbert delivered the check to Jones, who endorsed it and forwarded
it to Currie. When Delbert commented that he had no guarantee of
repayment, Jones signed, on Currie’s behalf, a handwritten, thirty-day
promissory note payable to Delbert.
Not surprisingly, Delbert has not received any money from the
transaction, and according to Jones, Currie is in poor financial condition.
The credit union gave Delbert two thirty-day extensions on his $5,000 loan.
At the end of ninety days, Delbert paid the loan together with interest at
nine percent.
II. Proceedings.
The board filed a complaint against Jones, alleging misconduct on his
part arising out of the $5,000 debt that Delbert incurred. * * *
Following the evidentiary hearing, the commission filed its findings of
fact, conclusions of law, and recommendation of discipline. The commission
noted that there was no evidence that Jones knew—at the time of
requesting the loan—that the Nigerian transaction was fraudulent. Based
230 Candor Ch. 8 o
on this lack of evidence, the commission found that Jones had neither o
assisted nor counseled Currie in the commission of a fraud and had not o
himself otherwise engaged in fraudulent activity. * * *
However, the commission did find that Jones’ actions and omissions in o
obtaining the $5,000 loan from Delbert constituted a misrepresentation.
* * * The commission recommended a public reprimand. o
*** . 0
IV. The Violations.
A. DR 7—102(A)(7) (lawyer shall not counsel or assist client in '
conduct that lawyer knows to be illegal or fraudulent). Like the <3
commission, we find the record does not establish that Jones (1) knew that
Q
the Nigerian transaction was fraudulent and (2) intended to deceive
Delbert. In fact, there is no evidence that the transaction is fraudulent
other than that the story sounds incredible. 0
Jones continues to believe the funds will be forthcoming. He testified
that the funds are currently tied up in Chicago and that he had o
documentation to prove it. The problem, however, is that Jones did not
present any such documentation. (The commission offered to recess so o
Jones could produce the documentation. Jones, however, declined the 0
offer.) Nor did he have Currie at the hearing to explain the transaction and
to verify the funds were in Chicago and would be forthcoming. Jones’
failure in this regard troubled the commission, and it troubles us too.
o
Nevertheless, we think what we have here is not an attorney who o
intended to deceive but an attorney who naively believed the “pie in the
sky” story that Currie handed him. Perhaps the allure of the $2 million 0
annuity blinded Jones’ judgment. Delbert himself believed Jones had not
intended to deceive him. * * * o
B. DR 1—102(A)(4) (lawyer shall not engage in conduct involving
misrepresentation) and DR l-102(A)(6) (lawyer shall not engage in conduct
u
reflecting adversely on fitness to practice law). Jones claimed he was acting
not as a lawyer but as a business or investment adviser. There are two
problems with this assertion. First, the assertion is not entirely accurate.o
Although Delbert was not a client of Jones at the time, Currie was Jones’
client. Second, such an assertion has little significance for our purposes o
because lawyers do not shed professional responsibilities in their personal
and business transactions. See Iowa Supreme Ct. Bd. of Prof’l Ethics & o
Conduct v. Hansel, 558 N.W.2d 186, 188-89 (Iowa 1997) (finding
misconduct in lawyer’s farm loan dealings with bank).
Q
In a business transaction with an unrepresented person, an attorney’s O
failure to recognize and correct potentially misleading situations is
unethical even though the lawyer had no intent to deceive. Committee on O
Profl Ethics & Conduct v. Wunschel, 461 N.W.2d 840, 847 (Iowa 1990). We
o
Ch, 8 ____________________ Candor_______________ ________ 231
find that under the circumstances, Jones’ statements and omissions went
beyond potentially misleading Delbert—they did mislead him and caused
him to make the loan.
***
Jones knew the venture was risky. He should have conveyed this
information to Delbert, an obviously unsophisticated and elderly
gentleman. At the very least, he should have explained to Delbert that
American banks had refused to loan money for the insurance premium
because of concern over the stability of the Nigerian government and
fraudulent transactions coming out of that country. Jones should also have
told Delbert about the several other individuals who indicated they were
not interested in making the loan. Finally, Jones should have told Delbert
about Currie’s promise of a $2 million annuity if Jones were successful in
securing a lender and obtaining payment of the $25,300,000. The record
clearly shows that, while Delbert may not have looked to Jones for legal
advice, he clearly looked to him for protection.
***
We agree with the commission that Jones’ misstatements and
omissions constituted misrepresentation in violation of DR—102(A)(4) and
reflected adversely on his fitness to practice law in violation of DR-
102(A)(6).
V. Discipline.
***
[T]he appropriate discipline is suspension. We therefore suspend
Jones’ license to practice law in this state with no possibility of
reinstatement for two months from the filing date of this opinion. This
suspension shall apply to all facets of the practice of law. * * * As a
condition of reinstatement, Jones shall make restitution to Delbert for the
amount of the $5,000 loan and all interest Delbert has paid in connection
with the loan. * * *
LICENSE SUSPENDED.

Attorney Jones is not the only lawyer who has been deceived by such
scams. In a case involving remarkably similar facts, another lawyer—also
from Iowa—received the same license suspension after persuading several
clients to loan money to another client who purportedly was the beneficiary
of a $18.8 million bequest from a long-lost cousin from—you guessed it—
Nigeria. This client offered the attorney approximately 10% of the bequest
in exchange for locating lenders to cover $177,660 in gift taxes purportedly
required by the Nigerian government before the bequest could be released.
Iowa Supreme Court Attorney Disciplinary Board v. Wright, 840 N.W.2d
232 Candor Ch. 8
295 (2013). And lest one thinks that only Iowa lawyers have been duped,
other similar cases include In re Maxwell, 334 B.R. 736, 738-41
(Bankr.M.D.Fla. 2005); Lappostato v. Terk, 143 Conn.App. 384, 71 A.3d
552, 559-60 (2013); In re Reinstatement of Jones, 203 P.3d 909, 912-13
(Okla.2009); Parker v. Williams, 977 So.2d 476, 477-78 (Ala.2007). Note
that in the Jones case above, even though Mr. Jones’ conduct did not
amount to fraud, his statements and omissions constituted
misrepresentation, resulting in the suspension of his license to practice
law.

III. CANDOR IN NEGOTIATIONS

What about candor in the negotiation context? Is a lawyer held to the
same standard of conduct when negotiating a lease or settlement?
Comment 2 to Model Rule 4.1 provides some limited guidance:
This Rule refers to statements of fact. Whether a particular
statement should be regarded as one of fact can depend on the
circumstances. Under generally accepted conventions in
negotiation, certain types of statements ordinarily are not taken
as statements of material fact. Estimates of price or value placed
on the subject of a transaction and a party’s intentions as to an
acceptable settlement of a claim are ordinarily in this
category * * *
As summarized by one commentator:
Negotiators frequently use selective disclosures to improve their
positions. They divulge information beneficial to their claims and
withhold less helpful information. Opponents expect such
selective disclosures and many consider them to be an inherent
aspect of bargaining.
Hence, while it is clear a negotiator may not intentionally
misrepresent material facts, it is not always apparent which facts
are material. It is within the law for negotiators to misrepresent
the value their client places on an item. No violation occurs in such
a case, provided the statement conveys the negotiator’s and/or his
client’s belief and does not falsely claim to be the opinion of an
outside expert. A negotiator may also misrepresent a client’s
settlement intentions. A negotiator may claim that an
outstanding offer is unacceptable, even while knowing the
proposed terms would be acceptable if no additional concessions
were forthcoming.
Negotiators may not, however, deliberately misrepresent material
facts. Although they may use evasive tactics to avoid answering,
Ch. 8_______________________Candor_______________________ 233
if they do respond they must do so honestly. Moreover, they must
avoid giving partially correct statements they know will be
misinterpreted.
Anne M. Burr, Ethics in Negotiation: Does Getting to Yes Require Candor?,
56 Disp. Resol. J. 8, 10—11 (2001); accord ABA Formal Op. 06-439 (2006)
(distinguishing “posturing” or “puffing” from false statements of material
fact); see also In re McGrath, 468 N.Y.S.2d 349, 351 (N.Y. App. Div. 1983)
(suspending attorney from the practice of law where attorney told opposing
counsel that, to the best of his knowledge, his client’s insurance coverage
was limited to $200,000, when attorney had documentation showing that
his client additionally had a $1 million excess policy).

IV. THE TRILEMMA: TRUST,

CONFIDENTIALITY, AND CANDOR
If a dilemma is a beast with two horns, then perhaps a trilemma has
three. [See MONROE FREEDMAN & ABBE SMITH, UNDERSTANDING LAWYER’S
ETHICS 159—195 (3d ed. 2004); Monroe Freedman, Getting Honest About
Client Perjury, 21 Geo. J. Legal Ethics 133 (2008); Monroe Freedman,
Perjury: The Lawyer’s Trilemma, 1 Litigation 26 (Winter 1975).] We
lawyers may occasionally face such a beast when representing a defendant
in a criminal case:
Horn One: We are told to seek the client’s trust and to find
out everything the client knows about the case.
Horn Two: We are told to preserve our client’s confidential
information (except in very limited situations).
Horn Three: We are told to act with candor, to refrain from
presenting evidence we know is false, and (in some situations) to
reveal our client’s frauds.
a. The Old ABA Model Code Position
At the outset, consider the duty expressed in the predecessor to the
ABA Model Rules—ABA Model Code of Professional Responsibility DR 7-
102(B)(1) says:
A lawyer who receives information clearly establishing that * * *
[h]is client has, in the course of the representation, perpetrated a
fraud upon a person or tribunal shall promptly call upon his client
to rectify the same, and if his client refuses or is unable to do so,
he shall reveal the fraud to the affected person or tribunal, except
when the information is protected as a privileged communication.
234 CANDOR CH. 8

The “except” clause at the end was added by the ABA House of Delegates
in a 1974 amendment to the ABA Code. Shortly thereafter, ABA Formal
Opinion 341 (1975) interpreted the term “privileged communication” to
include not only material that is protected by the attorney-client privilege,
but also all other material that is protected by the ethical duty of
confidentiality. That interpretation makes the “except” clause virtually
swallow the rule. Do you see why? Eighteen states added the 1974
amendment to their own versions of the ABA Code, but the remainder did
not.
b. The Narrative Testimony Position
Next, consider the advice formerly offered to criminal defense lawyers
in Standard 4-7.7 of the ABA Standards for the Defense Function. When
the ABA House of Delegates approved the other Standards for the Defense
Function in 1979, it reserved judgment on 4—7.7, thus leaving the matter
open for resolution by the drafters of the ABA Model Rules. [The drafters
eventually rejected Standard 4-7.7, and it was disapproved by the ABA
ethics committee in 1987.] Standard 4—7.7 reads as follows:
Standard 4—7.7 Testimony by the Defendant
(a) If the defendant has admitted to defense counsel facts
which establish guilt and counsel’s independent investigation
established that the admissions are true but the defendant insists
on the right to trial, counsel must strongly discourage the
defendant against taking the witness stand to testify perjuriously.
(b) If, in advance of trial, the defendant insists that he or she
will take the stand to testify peq'uriously, the lawyer may
withdraw from the case, if that is feasible, seeking leave to the
court if necessary, but the court should not be advised of the
lawyer’s reason for seeking to do so.
(c) If withdrawal from the case is not feasible or is not
permitted by the court, or if the situation arises immediately
preceding trial or during the trial and the defendant insists upon
testifying perjuriously in his or her own behalf, it is
unprofessional conduct for the lawyer to lend aid to the perjury or
use the perjured testimony. Before the defendant takes the stand
in these circumstances, the lawyer should make a record of the
fact that the defendant is taking the stand against the advice of
counsel in some appropriate manner without revealing the fact to
the court. The lawyer may identify the witness as the defendant
and may ask appropriate questions of the defendant when it is
believed that the defendant’s answers will not be perjurious. As to
matters for which it is believed the defendant will offer perjurious
testimony, the lawyer should seek to avoid direct examination of
the defendant in the conventional manner; instead, the lawyer
Ch. 8_______________________Candor________________________235
should ask the defendant if he or she wishes to make any
additional statement concerning the case to the trier or triers of
the facts. A lawyer may not later argue the defendant’s known
false version of facts to the jury as worthy of belief, and may not
recite or rely upon the false testimony in his or her closing
argument.
c. Monroe Freedman’s Position
Next, consider the view expressed by Professor Monroe Freedman in
books and articles spanning over 40 years. The most recent is Monroe
Freedman, Getting Honest About Client Perjury, 21 Geo. J. Legal Ethics
133 (2008); see also MONROE H. FREEDMAN & ABBE SMITH,
Understanding Lawyer’s Ethics (4th ed. 2010),a hereafter cited as
“Freedman 2010,” and the earliest and most famous is Monroe H.
Freedman, Professional Responsibility of the Criminal Defense Lawyer: The
Three Hardest Questions, 64 MICH. L. REV. 1469 (1966). Professor
Freedman states the question thus: “Is it ever proper for a criminal defense
lawyer to present testimony that she knows is perjurious?” The answer, he
says, is “yes,” and he goes on to explain why.
He begins by discussing and rejecting the other possible responses
when a criminal defense lawyer discovers that her client is bent on
committing perjury. One possible response is for the lawyer to withdraw.
That is no solution, Freedman explains, because the client will get a new
lawyer. The client now knows that when he tells a lawyer the truth, the
lawyer withdraws, so the client will keep the new lawyer in the dark. The
client will then testify falsely, just as he would have before, only this time
the new lawyer (having been kept in the dark) has no chance to try to
convince him not to do so. [Freedman 2010 at 157-58.] Moreover,
withdrawal will usually require the judge’s consent, and when the case is
close to trial or in trial, the judge will want a very good excuse from the
lawyer. The lawyer must then either be vague (“I have an ethics problem,
Your Honor”) or must be forthright and tell the judge that the client insists
on committing perjury. Either way, the judge will know, or strongly sense,
that the client insists on lying. If the client is convicted, in most instances
the judge will set the sentence, and the possibility for grave prejudice to
the client is obvious. [7d.]
A second possible response to the trilemma is the one recommended in
former ABA Standard for the Defense Function 4-7.7, quoted above—that
is, let the defendant tell the false parts of his story in narrative fashion,
without questioning by the defense lawyer. The defense lawyer cannot then
rely on the false parts of the story in closing argument to the jury. That’s
no solution either, Professor Freedman argues, because:

Copyright © 2010, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
236_________________________ Candor___________________ Ch. 8
o
[t]he judge is certain to understand what is going on, and it is o
generally agreed that the jury usually will as well. Even if the jury
does not realize the significance of the unusual manner in which o
the defendant is testifying, the jury is sure to catch on when the
defense lawyer in closing argument makes no reference to the
o
defendant’s exculpatory testimony. [Id. at 159.] o
A third possible response to the trilemma is “intentional ignorance.”
That is, the lawyer lets the client know early in the lawyer-client o
relationship that she does not really want to know what happened.
Professor Freedman has no patience for lawyers who use that approach: o
Apart from the practical problems of requiring clients to do their
own lawyering, we might question whether intentional ignorance
o
is a moral resolution of the lawyer’s ethical problem. Certainly,
lawyers who practice intentional ignorance have the comfort of
o
saying that they have never knowingly presented a client’s
perjury. On the other hand, by remaining ignorant, these same
□
lawyers have disabled themselves from being in a position to D
dissuade their clients from committing the perjury. Lawyers can
remain aloof from client perjury, but that does not prevent perjury O
from happening. Indeed, there is good reason to believe that there
would be more perjury, not less, if lawyers did not know about it O
and were not in a position to discourage it. [Id. at 153.]
Professor Freedman also considers and rejects a variant of “intentional
D
ignorance.” Early in the lawyer-client relationship, a lawyer who uses the
variant would ask the client what the prosecutor, or a hypothetical liar, is
O
likely to say happened on the occasion in question. By that ruse, the defense a
lawyer can learn the worst case scenario without having to ask the
defendant what really happened. [See id. at 183-84.] The lawyer can o
then—consciously or subconsciously—guide the defendant toward the least
damaging version of the facts. [See id. at 192-202; see also Richard C. o
Wydick, The Ethics of Witness Coaching, 17 Cardozo L.Rev. 1 (1995).]
What does Professor Freedman think is the proper response to the
o
trilemma? He recommends using the traditional model of the lawyer-client
relationship. [Freedman 2010 at 162-63.] At the outset of the relationship,
o
the lawyer should impress on the client the importance of telling the lawyer o
truthfully everything that happened. The lawyer should also promise the
client to keep what the client says in confidence. If the client insists on o
testifying and is bent on committing perjury, the lawyer should attempt in
every way possible to convince the client not to do it. A client who is D
impervious to legal and moral arguments against perjury may be convinced
by a more practical argument—if the jury convicts him, and the judge o
thinks he lied on the witness stand, the judge is likely to impose an extra-
harsh sentence on him. [Id. at 163.]
o
Q
□
O
c
Q Ch. 8 Candor 237
c Professor Freedman then drops the other shoe:
o In the relatively small number of cases in which the client who
has contemplated perjury rejects the lawyer’s advice and decides
Q to proceed to trial, to take the stand, and to give false testimony,
the lawyer should go forward in the ordinary way. That is, the
O lawyer should examine the client in a normal professional manner
and should argue the client’s testimony to the jury in summation
C to the extent sound tactics justify doing so. [Zd.]
o Can Professor Freedman’s conclusion be squared with one’s personal
standards of morality? He concedes that he is not completely comfortable
o with it. [Id. at 163.] A lawyer may be convinced that she would never lie to
protect herself, even from a long prison term. Nevertheless, contemplating
o the possibility ought to give her compassion for a client who feels compelled
to lie. [Id, at 164.] Freedman continues:
c Beyond that, we cannot find—in terms of personal morality—
o a more acceptable course. We find deep moral significance in the
dignity of the individual and in the way that dignity is respected
Q in the American constitutional adversary system.... A lawyer is
in no position in the first interview with a client to make an
c informed judgment as to whether a client is guilty or innocent,
what defenses he might have, or what his degree of culpability
Q might be. The lawyer must act, therefore, upon a presumption of
innocence. The lawyer cannot serve the client as he deserves to be
□ served if she does not know everything there is to know about the
client’s case. Accordingly, the lawyer must urge him to tell her
C everything, and the lawyer must pledge confidentiality. Having
given that pledge, we would be morally bound to keep it. [Zd.J
o
\— d. The ABA Model Rules Position
o The committee that drafted the ABA Model Rules rejected the position
of the old ABA Model Code, the narrative testimony position, and Professor
o Freedman’s position. In 1983, the ABA House of Delegates adopted Model
Rule 3.3, which was revised in 2002. [See also Restatement (Third) of the
Q Law Governing Lawyers § 120 (2000).] Read Rule 3.3 carefully, especially
□ Comments 5 through 15, and answer the following questions about it:
• What should a lawyer do when she first discovers that her
C criminal defendant wants to commit perjury?
C • What about the withdrawal option?
• What must the lawyer do if her other efforts have failed?
C? • Does her duty have an ending point? What is it?
O In Nix v. Whiteside, 475 U.S. 157,106 S.Ct. 988, 89 L.Ed.2d 123 (1986),
Chief Justice Burger (writing for himself and four others) traveled well out
Q
O'
C
 o
238 Candor Ch. 8 o
of his way to put a judicial stamp of approval on the procedure envisioned o
in ABA Model Rule 3.3. Defendant Whiteside was charged with murdering
a marijuana dealer. Attorney Robinson was appointed to represent him. At o
first, Whiteside told Robinson that he stabbed the victim just as the victim
was “pulling a pistol from underneath the pillow on the bed.” [Id. at 160.]
o
Whiteside said he had not actually seen a gun, but he was convinced that
the victim had one. No gun was found at the scene. Robinson advised
o
Whiteside that the existence of an actual gun was not critical to a claim of
self-defense, and that a reasonable belief that there was a gun would
o
suffice. o
About a week before trial, Whiteside told Robinson for the first time
that he had seen something “metallic” in the victim’s hand. [Id. at 161.] o
When Robinson inquired further, Whiteside said: “In Howard Cook’s case
there was a gun. If I don’t say I saw a gun, I’m dead.” Robinson again o
explained that a reasonable belief would suffice, but Whiteside insisted on
testifying that he had seen “something metallic.” [Zd.] At that point,
o
Robinson told Whiteside that if Whiteside testified to that story, it would
be Robinson’s duty “to advise the Court of what he was doing,” and
o
Robinson said he would also “probably be allowed to impeach that
particular testimony.” [Id.] Robinson also indicated that he would try to
o
withdraw if Whiteside insisted on testifying falsely. o
Thus warned, Whiteside did not testify about having seen something
metallic. Instead, he testified that he “knew” the victim had a gun, and he D
believed that the victim was reaching for it. On cross-examination, he
admitted that he did not actually see a gun in the victim’s hand. He was O
found guilty of second degree murder and sentenced to 40 years in prison.
After exhausting his appeals, he claimed on federal habeas corpus that
O
Robinson’s refusal to let him testify as he wished was a denial of the
effective assistance of counsel guaranteed by the Sixth Amendment.
O
The narrow issue presented to the Supreme Court was whether O
Whiteside was deprived of his right to effective counsel when his counsel
told him that if he testified to a story the counsel believed was false, the o
counsel would try to withdraw and (failing that) would tell the judge that
the story was false. The Court held that Whiteside was not deprived of the
0
effective assistance of counsel—Robinson’s conduct fell within the wide
range of acceptable responses to proposed client perjury.
O
The Chief Justice explained that an ineffective assistance claim o
requires (a) serious error by the lawyer, and (b) prejudice to the defendant.
Robinson did not make a serious error. A criminal defense attorney must o
be loyal to the client, but only within the bounds of lawful conduct. The
attorney must not assist the client in presenting false evidence. True, a o
criminal defendant does have a constitutional right to testify in his own
defense. [See Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 97 .a
o
o
o
Ch. 8 Candor 239
L.Ed.2d 37 (1987).] But, Burger said, if he testifies falsely, he must bear
the consequences. Part of the consequences may be withdrawal of counsel
or revelation of the perjury by counsel. Moreover, Whiteside was not
prejudiced. He ended up testifying truthfully at the trial. Perhaps he was
deprived of counsel’s help in presenting perjury, but the Constitution does
not guarantee the right to have counsel’s help in presenting perjury.
In a terse concurring opinion, Justice Brennan pointed out that much
of the Chief Justice’s opinion was unnecessary to the decision in the case:
[L]et there be no mistake: the Court’s essay regarding what
constitutes the correct response to a criminal client’s suggestion
that he will perjure himself is pure discourse without the force of
law. * * * Lawyers, judges, bar associations, students, and others
should understand that the problem has not now been “decided.”
[7d. at 177.]
[The Restatement (Third) of the Law Governing Lawyers § 120 (2000)
follows Nix v. Whiteside and ABA Model Rule 3.3. See also ABA Formal
Opinion 87—353 (1987), in which the ABA ethics committee spells out the
implications of Nix and Model Rule 3.3.]
Notice that ABA Model Rule 3.3(a)(3) forbids a lawyer* from knowingly
offering evidence that the lawyer “knows” is false. Model Rule 1.0(f) defines
“knows” to mean having “actual knowledge of the fact in question,” but it
goes on to say that “a person’s knowledge may be inferred from the
circumstances.” Does the“knows” standard require a lawyer to keep her
client off the witness stand if she has a strong suspicion that his testimony
will be false? Or if his story is not corroborated by other evidence in the
case? Or if his story contradicts other evidence in the case? In United States
v. Midgett, 342 F.3d 321 (4th Cir. 2003), a criminal defense lawyer refused
to put his client on the stand because he believed that the client would
testify falsely. The trial judge ordered the defendant either to accede to the
lawyer’s demand not to testify or to proceed without a lawyer. The
defendant unwillingly gave up his right to testify, and he was convicted.
The Fourth Circuit reversed the conviction, saying that the defense
counsel’s duty to his client didn’t depend on whether he personally believed
his client’s story, nor on the amount of proof supporting or contradicting
the story. Does the “knows” standard bring ABA Model Rule 3.3(a)(3)
around to Professor Freedman’s view of the client perjury problem? [See
Monroe Freedman, Getting Honest about Client Perjury, 21 Geo. J. Legal
Ethics 133, 142-48 (2008); see also 25 ABA/BNA Law. Man. Prof. Conduct
424 (2009); 25 ABA/BNA Law. Man. Prof. Conduct 174 (2009).]
240 Candor Ch. 8
Multiple Choice Questions
Answer these questions using the definitions found
at the end of Chapter Two.
1. State X and State Y each have state trademark registration statutes
that are substantially similar in purpose and wording to the Lanham Act (the
federal trademark registration statute). For many years, Daisy Dairy has used
the mark “Daisy” on dairy products it sells in State X, and it has registered the
mark under the State X statute. Recently Noxatox Chemical began using the
“Daisy” mark on cockroach poison it sells in State X. Daisy Dairy sued Noxatox
under State X law in a State X court for intentional infringement of the “Daisy”
mark. The complaint asks for an injunction, for an award of the profits made
by Noxatox, and for money damages. Noxatox moved for summary judgment
on the grounds that dairy products and cockroach poison do not compete with
each other, that no sensible consumer could be deceived by the use of the same
mark on such widely different goods, and that Daisy Dairy could not possibly
have suffered monetary injury. The trial judge who will hear the motion is not
well versed in trademark law, and the lawyer for Daisy Dairy failed to discover
several pertinent court decisions. Which of the following decisions must the
lawyer for Noxatox call to the judge’s attention?
I. A United States Supreme Court decision which holds that the
Lanham Act authorizes an injunction to stop intentional infringement, even
where the defendant’s goods do not compete with the plaintiffs goods.
II. A decision of the United States Court of Appeals for the circuit that
includes State X and State Y, holding that an injunction can be issued under
the Lanham Act where the nature of the defendant’s goods could cast a
distasteful or odious image on the plaintiffs goods.
III. A decision of the Supreme Court of State Y which holds that the State
Y registration statute authorizes an accounting of the defendant’s profits in a
case of intentional infringement, even where the plaintiff cannot prove
monetary injury.
IV. A decision of the Supreme Court of State X which holds that in actions
for intentional trespass to real property, State X trial judges have the power of
courts of equity to fashion equitable remedies, even where the plaintiff cannot
prove monetary injury.
A. All of the above.
B. None of the above.
C. I, II, and IV only.
D. I and IV only.
2. Lawyer Penny represents client Paul in a family law matter. When
Paul and Donna were divorced, the court gave Paul custody of their infant son
and gave Donna “reasonable” visiting rights. Paul is a busy accountant and
often stays late at his office. While Paul is working, the baby stays at a baby
c
o Ch. 8 __________________ Candor_______________________ 241
o sitter’s house. Donna has started making unannounced visits to the baby
sitter’s house on the evenings when Paul works late. Paul believes Donna may
c try to kidnap the baby and disappear. Paul asks Penny to apply immediately
c for a temporary restraining order that forbids Donna from going near the
sitter’s house. The court rules of this jurisdiction provide that a temporary
o restraining order can be granted in an ex parte proceeding, without giving the
adversary any notice or chance to be heard. Penny plans to use this ex parte
o rule. Penny has an affidavit from the sitter stating that when Donna makes
her surprise visits, the baby cries and refuses to eat or sleep for hours
c thereafter. Just as Penny is leaving her office to go to the judge’s chambers,
her investigator arrives with three additional pieces of information. First,
Q when Paul works late, the sitter sometimes leaves a ten-year-old neighbor girl
in charge of the baby while the sitter grocery shops and runs errands. Second,
O Donna’s unannounced visits are motivated by her concern for the baby’s safety.
Third, when Paul works late, Donna could conveniently keep the baby at her
o house until Paul is through at the office. Which of the following is most nearly
correct?
A. Penny must present the judge with only those facts that favor
Paul’s position.
B. Penny must present the judge with only those facts that favor
Paul’s position, but she must respond candidly if the judge specifically
asks for information that is adverse to Paul’s position.
C. Penny must present the judge with all the relevant facts, even
those that are adverse to Paul’s position.
D. Penny must call Paul and tell him that she is withdrawing the
application for a temporary restraining order.
3. The law of State X requires child adoptions to be approved by the
court. Further, it prohibits cohabiting couples from adopting a child unless
they are validly married. Attorney Anderson represented clients Carla and
Carl in an adoption proceeding. They assured her that they were validly
married. Among the papers she presented to the court in connection with the
adoption proceeding was copy of Carla’s and Carl’s Certificate of Marriage,
duly certified by the custodian of public records. In due course, the court
approved the adoption. A year later, Carla and Carl returned to Anderson’s
office. Carla explained to her as follows: “When we came to you about the
adoption, there’s something we didn’t tell you, because we didn’t want to get
into lots of complications. Carl was married once before. His wife moved out,
and he hasn’t heard from her since. When he and I began dating, we fell in love
so fast that there wasn’t time for him to go through a divorce before we got
married. We don’t want to do anything that might risk losing our child, but
this has been bothering us, and we thought we should come to you for advice.”
What is the proper course of action for Anderson to take?
f A. Advise Carla and Carl about the legal effect of the prior marriage
on their current status and on the adoption.
c
242 Candor Ch. 8
B. Decline to advise Carla and Carl, thus avoiding the assistance of
a continuing fraud.
C. Advise Carla and Carl to reveal their fraud to the court that
approved the adoption, and warn them that she will do so if they do not.
D. Bring the matter to the attention of the court that approved the
adoption, and let the court decide what remedial action is appropriate in
the circumstances.
4. Client Curtis hired lawyer Lomax to defend him in a civil antitrust
action brought by Pucci, a former retail distributor of products that Curtis sold
to Pucci. Pucci alleges that Curtis terminated him as a distributor because
Pucci sold the products below a minimum retail price set by Curtis. Pucci
further alleges that the termination resulted from a secret agreement between
Curtis and other distributors that Curtis would terminate any distributor who
sold below the minimum retail price. Assume that such an agreement, even if
coerced, would violate the antitrust law. When Lomax was preparing Curtis
for his deposition, Lomax asked Curtis why he terminated Pucci. Curtis
answered: “Because Pucci was a price cutter. My other distributors pressured
me to do it.” At that point, Lomax said: “If you say that at your deposition, you
will lose this case. Before you say more, let me tell you about the law that
applies here. If you, using your own business judgment, terminated Pucci
because he was not doing a good job, or because he was not displaying or
advertising your products effectively, then the termination would be lawful. If,
on the other hand, you let your other distributors talk you into terminating
him because his prices were too low, the termination would probably be
unlawful. Now go back to your office, refresh your memory of this event, and
we will talk again tomorrow morning about your reasons for terminating
Pucci.” Was Lomax’s conduct proper?
A. Yes, because a lawyer has a duty to represent a client with zeal,
using all lawful means to achieve the client’s objectives.
B. No, because it is improper for a lawyer to discuss the substance
of a client’s testimony with the client before the client testifies.
C. Yes, because a lawyer has a duty to advise a client fully about
the law that applies to a matter.
D. No, because it is improper for a lawyer to invite a client to give
false testimony.
5. Attorney Arossio was defending Doyle in a drunk driving case. The
state’s drunk driving statute specifies a fine up to $1,000 for a first offense. For
a second offense, it specifies a fine up to $10,000, plus a mandatory jail
sentence of 60 days up to one year. Doyle told Arossio in confidence that he had
one prior conviction for drunk driving. Arossio consulted the public records and
found that Doyle’s prior conviction had never been properly recorded. Doyle
decided to plead guilty. The hearing transcript shows the following colloquy:
Ch. 8____________________ Candor___________________________ 243

The Court: Your guilty plea will be accepted, Mr. Doyle. Ms.
Prosecutor, are there priors in this case?
Prosecutor: No, your Honor. The People ask the maximum fine of
$1,000.
The Court: Very well. Mr. Arossio, since your client is a first-timer,
I’m inclined toward a fine of $750. Is that acceptable?
For which of the following responses would Arossio be subject to discipline?
I. Yes, thank you, your Honor.
II. My client will accept the court’s judgment, your Honor.
III. Since my client’s blood-alcohol level wasn’t much above the mark, and
since his record is clean, I would ask your Honor for a fine of not more than
$500.
IV. There’s been a mistake, your Honor. My client has a prior conviction
that does not appear on the record.
A. None of the above.
B. Ill and IV only.
C. I, II, and III only.
D. IV only.
6. Over the past several months, you and lawyer Lauder have been
representing your respective clients in a complicated contract negotiation. The
proposed contract has been drafted, redrafted, and revised dozens of times
during the negotiation. Finally, your respective clients have struck a bargain;
their bargain includes a key provision that your client long resisted and
ultimately accepted with great reluctance. The final version of the contract has
been prepared by Lauder’s secretary and has been signed by Lauder’s client.
Lauder has sent it to you for signature by your client. You have read it
carefully, and you have discovered that the secretary left out the provision
mentioned above. Which of the following may you do?
A. Without consulting your client, call Lauder and direct her
attention to the missing provision.
B. Call your client, explain the situation, and do whatever your
client directs.
C. Call your client, explain the situation, and advise him to sign the
contract.
D. Call Lauder’s client and ask whethei* he ultimately decided not
to insist on the provision.
Answers to the multiple choice questions will be found
in the Appendix at the end of the book.
Q
C
C
o Chapter Nine
o
□ Fairness in Litigation
c ■■■

c What This Chapter Covers

The Attorney’s Duty to Be Fair in Litigation
c A. Fairness Toward Jurors
o 1. Before Trial
o 2. During Trial
3. After Trial
c B. Fairness Toward Witnesses
c 1. Paying Witnesses
o 2. Preparing Witnesses
3. Witnesses for the Other Side
Q C. Fairness Toward the Adversary
c 1. Communication with Adverse Party
o 2. Harassment
3. Threats
c 4. Keeping Promises
o D. Fairness Toward the Court

Q 1. Ex Parte Contact
2. Civility in the Courtroom
O 3. Adherence to the Rules
Public Comments About Pending Litigation
p F. Special Duties of Prosecutors and Criminal Defense Counsel
G. Potential Impairments That May Affect Fairness

Reading Assignment
Schwartz, Wydick, Perschbacher, & Bassett, Chapter 9.
Cj ABA Model Rules:
Rules 3.1 through 3.9, 4.2 through 4.4, and 8.3(a).

245
246 Fairness in Litigation Ch. 9
ABA Model Code of Judicial Conduct:
Rules 2.6, 2.9, 2.10, and 3.13.
Supplemental Reading
Hazard & Hodes:
Discussion of ABA Model Rules 3.1 through 3.9 and 4.4.
Restatement (Third) of the Law Governing Lawyers §§ 97—103; 105-110;
115-119 (2000).

Discussion Problems
1. You represent twelve plaintiffs in an action against Monolith
Consolidated Industries, Inc., for race discrimination in employment. The
case will be tried before a jury. As is customary in your community, the
names and addresses of the 150 citizens on the jury panel have been
published in the local newspaper.
a. May you hire a private investigator to find out whatever
he can about the attitudes of individual jury panel members
toward race discrimination?
b. May you have your paralegal assistant search the public
records in the County Records Office to find out which jury panel
members own real property? To find out the political party
affiliation of those jury panel members who are registered to vote?
c. In the jurisdiction where you plan to practice, do trial
lawyers usually obtain information about jury panel members in
advance of voir dire? How do they obtain it?
2. During the trial of the above case, you and one of the jurors find
yourselves riding the elevator together on the way up to the courtroom one
morning.
a. Suppose the juror turns to you and says: “Well, good
morning, counselor! Do you have some red-hot testimony to keep
us all awake today?” How should you respond?
b. Suppose the juror turns to you and says: “Well, good
morning, counselor! What did you think of that lousy ball game on
TV last night?” How should you respond?
3. During the noon recess in the above case, you are having lunch at
a cafe near the courthouse. You observe a female juror sitting at a secluded
table in the back, talking in hushed tones with a young man, a law student
who works part-time as a paralegal for the firm that represents your
Ch. 9________________ Fairness in Litigation___________________ 247
adversary, Monolith Consolidated. What, if anything, should you do about
that?
4. In the above case, the jury returned a verdict against your clients;
judgment was entered accordingly, and the jury was dismissed.
a. On your way out of the courthouse, may you stop to chat
with one of the jurors, to ask for her comments on the way you
presented the evidence and on your closing argument?
b. The day after the trial ended, you learned that during
jury deliberations the foreman asked the bailiff for a deposition
transcript that had been used at the trial. Part of the transcript
had been received in evidence, but the rest had not. Apparently,
the bailiff delivered the entire transcript to the jury room. May
you interview some of the jurors to find out whether this is true?
5. Prior to trial, and without consulting counsel for Monolith
Consolidated, you contacted several former and current Monolith
Consolidated employees to see if they had information that would support
plaintiffs’ claims. Was this proper?
6. One of your trial witnesses in the above case was Edgar Taylor, a
former assembly line employee of Monolith Consolidated. At the trial, he
testified about a conversation he had overheard between a union official
and the head of Monolith Consolidated’s personnel department. Shortly
after he overheard that conversation, Monolith Consolidated laid him off.
He had to move out of state to find a new job. When you asked him to be a
witness at the trial, he refused, stating that he did not want to take the
time away from his new job. To convince him to come, you promised him
that your clients would pay:
• His travel, hotel, meal, and incidental expenses;
• His lost wages, due to time away from his job; and
• One hundred dollars per day, as compensation for his time and
trouble in coming to testify.
a. Was that proper?
b. Was it proper to interview him without notifying
Monolith Consolidated’s counsel?
7. In preparing the above case for trial, you requested production of
a large volume of Monolith Consolidated’s employment records. After the
usual preliminary skirmishing, adversary counsel finally agreed to produce
them. As is common in such cases, you and adversary counsel orally agreed
that Monolith Consolidated would copy the records (at your clients’
expense), deliver the copies to you, and keep the originals available should
you wish to examine them. The copies Monolith Consolidated delivered to
you (nine large boxes full) were legible, but so light as to be extremely
248 Fairness in Litigation Ch. 9
tedious to read. Later, after you had paid the copying bill, you learned
(quite by accident) that adversary counsel had instructed the copying
machine operator to “make the copies hard to read.” What should you do in
this situation?
8. At the final pretrial conference in the above case, the trial judge
heard oral argument on the admissibility of several key items of evidence.
The trial judge decided not to rule on the point until her law clerk could
complete his own search of the authorities. Two days later, while reading
the newest advance sheets, you found an evidence decision that directly
supports the argument you were making. What is the proper way for you
to call the new decision to the court’s attention?
9. The trial of the above case has attracted considerable attention
from the local news media. The trial judge has forbidden cameras and
recorders inside the courtroom, but during every recess reporters swarm
around the trial participants, asking questions. Late one afternoon, the
trial judge calls the evening recess just after Monolith Consolidated has
completed the direct examination of one of its key witnesses. You gravely
doubt the credibility of this witness, and tomorrow morning you will have
your chance to cross-examine. As you walk down the courthouse steps,
news reporters surround you, asking for your comment on the witness’s
testimony and on your plans for tomorrow’s cross-examination.
Considering both ethics and tactics, how will you respond?
10. You are a young Assistant District Attorney. Your boss is Earl
Lubeman, a wily politician who has been the elected District Attorney for
the past 14 years. He has assigned you to prosecute Emmet Stubbs for
arson. When the arresting officer interrogated Stubbs, in the presence of
his lawyer, Stubbs told the following story:
I did burn down that house, but it was an accident. I was drunk,
and I went in there to get warm and have a smoke. The place
caught fire, and I was lucky to get out alive. I’ll tell you something
else. Remember about five years ago, when Earl Lubeman
convicted Randy Coots for burning down the Catholic Church?
Coots has been sitting in the state pen ever since, but he didn’t do
it. I did. I took the golden chalice from the altar, wrapped it up in
my sweatshirt, and hid it in the tractor shed of Meryl Dutton’s
farm.
The next day, your investigator came back from the Dutton farm with the
sweatshirt and golden chalice in hand. At that point, you went to D.A.
Lubeman and told him the story. You were dumbstruck when he
responded: “Randy Coots may not have burned down the church, but he did
a hundred other things as bad or worse. The world is better off with him in
prison, so just forget what happened five years ago and see if you can reach
a plea deal with Emmet Stubbs.” What should you do about Randy Coots?
Ch. 9________________ Fairness in Litigation___________________ 249

I. WITNESS COACHING
To what extent may a lawyer work with a witness before the witness
testifies? Professor Wydick considers that question in The Ethics of Witness
Coaching, 17 Cardozo L.Rev. 1 (1995).* He says that the “standard wisdom”
about coaching witnesses is as follows:
First, a lawyer may discuss the case with the witnesses before
they testify. A lawyer in our common law adversary system has
an ethical and legal duty to investigate the facts of the case, and
the investigation typically requires the lawyer to talk with the
witnesses—the people who know what happened on the occasion
in question. Moreover, the adversary system benefits by allowing
lawyers to prepare witnesses so that they can deliver their
testimony efficiently, persuasively, comfortably, and in
conformity with the rules of evidence.
Second, when a lawyer discusses the case with a witness, the
lawyer must not try to bend the witness’s story or put words in
the witness’s mouth. As an old New York disciplinary case puts it:
“(The lawyer’s] duty is to extract the facts from the witness, not to
pour them into him; to learn what the witness does know, not to
teach him what he ought to know.”
Third, a lawyer can be disciplined by the bar for counseling or
assisting a witness to testify falsely or for knowingly offering
testimony that the lawyer knows is false.
According to Professor Wydick, when a lawyer interviews and prepares
a witness, the lawyer typically does these things:
• discusses the witness’s perception, recollection, and possible
testimony about the events in question;
• reviews documents and other tangible items to refresh the
witness’s memory or to point out conflicts and inconsistencies
with the witness’s story;
• reveals other tangible or testimonial evidence to the witness
to find out how it affects the witness’s story;
• explains how the law applies to the events in question;
• reviews the factual context into which the witness’s
testimony will fit;
• discusses the role of the witness and effective courtroom
demeanor;

* © 1995. Reprinted with permission.

 cd

250 Fairness in Litigation Ch. 9

o
• discusses probable lines of cross-examination that the o
witness should be prepared to meet; o
• rehearses the witness’s testimony, by role playing or other
means; o
• From this, he elaborates 23 different “legitimate reasons for
a lawyer’s statement or question to a witness”;
o
• to investigate the facts, that is, to find out about the events o
in question;
• to find out what the witness perceived and can testify to from
o
personal knowledge; o
• to determine how accurately the witness perceived the events
and what conditions may have hindered or assisted his/her o
perception;
• to test the witness’s memory about what s/he perceived;
o
• to discover how certain the witness is about what s/he o
remembers;
• to determine adverse or favorable conditions that may have
o
affected the witness’s memory; CD
• to refresh the witness’s memory of things s/he once
remembered but has since forgotten; CD
• to find out whether exposure to relevant documents, other CD
items of tangible or testimonial evidence, or some non-
evidentiary stimulus will help refresh the witness’s memory; O
• to test the witness’s ability to communicate recollections
accurately; O
• to find out what the witness means by words or expressions O
used in his/her story;
• to test the witness’s truthfulness;
CD
• to warn the witness that his/her credibility may be attacked CD
and that some kinds of acts in his/her past may be exposed in
open court; O
• to ascertain whether the witness has a good or bad character O
as respects truthfulness;
• to find out whether the witness has previously been convicted O
of a crime that could be used to impeach his/her credibility;
CD
• to uncover instances of non-criminal conduct that could be
used to impeach the witness’s credibility; O
CD
CD
CD
c
c Ch. 9 Fairness in Litigation 251
CD • to discover whether the witness’s story has been influenced
C by bias or prejudice;
• to find out whether the witness’s story has been influenced,
CD properly or improperly, by the statements or conduct of some
other person;
CD
• to find out whether the witness has previously made
O statements that are either consistent or inconsistent with
his/her present story;
CD • to test the witness’s demeanor in response to various stimuli
s/he may encounter when s/he testifies (for example, the
C witness’s likely response to harsh questioning by a cross­
examiner);
CD
• to explain the role of a witness, the obligations imposed by
CD the oath, and the formality of court proceedings;
• to inform the witness about the physical surroundings in
CD which s/he will testify, the persons who will be present, and
the logistical details of being a witness;
CD
• to explain to the witness why s/he should listen to questions
CD carefully, not guess, not volunteer information that has not
been asked for, be alert to objections, and the like;
• to advise the witness about appropriate attire and physical
00

appearance in court, distracting mannerisms, inappropriate

language and demeanor, and the effective delivery of
c_; testimony.
These are all acceptable. Nevertheless, when a lawyer is left alone with a
CD witness, the fallibility of human memory also allows lawyers to alter the
witness’s story and perhaps even the witness’s memory itself. Professor
CD Wydick divides “witness coaching” into three “grades”:
CD Grade One witness coaching is where the lawyer knowingly and
overtly induces a witness to testify to something the lawyer knows is false.
CD “Overtly” is used to mean that the lawyer’s conduct is “openly” or “on its
face” an inducement to testify falsely. Grade One witness coaching
□ obviously interferes with the court’s truth-seeking function and corrodes
the morals of both the witness and the lawyer. Sometimes it goes
CD undetected by adversaries, judges, and disciplinary authorities, but when
it is detected, it can and should be punished under the present lawyer
O disciplinary rules and perjury statutes.
CD Grade Two witness coaching is the same as Grade One, except that the
lawyer acts covertly. Thus, Grade Two is where the lawyer knowingly but
CD covertly induces a witness to testify to something the lawyer knows is false.
/-- \ “Covertly” is used to mean that the lawyer’s inducement is masked. It is

CD
252 Fairness in Litigation Ch. 9
transmitted by implication. Grade Two witness coaching is no less harmful
to the court’s truth-seeking function than Grade One, nor less morally
corrosive, nor less in breach of the lawyer disciplinary rules and perjury
statutes, but it is less likely to be detected and successfully punished.
Grade Two witness coaching falls within a range of conduct that cannot be
effectively controlled by disciplinary rules or criminal laws; it must
therefore be controlled by a lawyer’s own informed conscience. To have an
informed conscience about witness coaching, a lawyer needs to understand
how messages get transmitted covertly between a speaker and a hearer.
Professor Wydick then describes philosopher Paul Grice’s “theory of
conversational implicature” and suggests a method of analysis that
incorporates Grice’s theory.
Grade Three witness coaching is where the lawyer does not knowingly
induce the witness to testify to something the lawyer knows is false, but
the lawyer’s conversation with the witness nevertheless alters the
witness’s story. Given the malleable nature of human memory, Grade
Three witness coaching is very hard to avoid. It lacks the element of
corruption that Grades One and Two have, but it does alter a witness’s
story and can thus interfere with the court’s truth-seeking function.
Therefore, when a lawyer’s conversation with a witness serves a proper
purpose, such as refreshing the witness’s memory, the lawyer should
nonetheless conduct the conversation in the manner that is least likely to
produce inaccurate testimony.
Finally, Professor Wydick suggests methods for conducting a non-
suggestive witness interview to minimize the dangers of improper witness
suggestion, which include (1) using recall first, and then recognition; (2)
using neutral questions; and (3) ordering questions based on the pattern
the witness is likely to have used when originally storing the information.

Colorado Bar Association Opinion 70

Colorado Bar Ass’n Ethics Committee, 1985.
14 Colo.Law. 2009,

Syllabus
After a verdict has been returned, it is improper for an attorney who
has participated in the trial to tell the jury about information that was not
presented at trial, if such information is disclosed to the jury with the
intention of or in the spirit of criticizing the jury’s decision, influencing the
actions of jurors in future jury service, harassing the jury, or otherwise
behaving improperly toward jurors in any manner prohibited by the Code
of Professional Responsibility. This rule applies whether the information
not presented was suppressed or inadmissible pursuant to a ruling by the
judge in the case.
Ch. 9________________Fairness in Litigation___________________ 253
Applicable Standards and Law
[After citing the relevant passages from Colorado’s version of the ABA
Code, the Ethics Committee continued as follows.]
The American Bar Association Standards for Criminal Justice: The
Prosecution Function (the “Criminal Justice Standards”), Section 3.54(c)
provides:
(c) After discharge of the jury from further consideration of
a case, it is unprofessional conduct for the prosecutor to
intentionally make comments to or ask questions of a juror for the
purpose of harassing or embarrassing the juror in any way which
will tend to influence judgment in future jury service.
[Eds. Note: The provision today is Standard 3-5.4(c), which has been
slightly reworded.) The comment to the above-quoted section of the
Criminal Justice Standards states in part (footnote omitted):
Posttrial Interrogation
Since it is vital to the functioning of the jury system that
jurors not be influenced in their deliberations by fears that they
subsequently will be harassed by lawyers or others who wish to
learn what transpired in the jury room, neither defense counsel
nor the prosecutor should discuss a case with jurors after trial in
a way that is critical of the verdict.
Pursuant to Rule 606(b), Colorado Rules of Evidence, where there is
an inquiry into the validity of the jury’s verdict, a juror may not testify
about statements made by jurors during the course of deliberations. A juror
may, however, “testify on the question whether extraneous prejudicial
information was improperly brought to bear” upon him.
If an attorney disclosed to the jury evidence that had been suppressed,
there is a risk that where a post-trial inquiry is made, and the jurors
subsequently are required to testify pursuant to Rule 606(b), the jurors’
recollections will be tainted by the subsequently received, inadmissible
information. It is even possible that a juror would himself initiate such an
inquiry on the basis of the evidence that was not admitted at trial. This
would lead to uncertainty in jury verdicts.
Still another pertinent consideration is Colorado Jury Instructions
Civil 1—16 Mandatory Instruction Upon Discharge. This instruction, like
its very similar criminal counterpart, must be repeated by the court upon
the discharge of the jury. It states, in pertinent part:
The attorneys or the parties at the conclusion of a jury trial
may desire to talk with the members of the jury concerning the
reasons for their verdict. For your guidance, you are advised that
it is entirely proper for you talk with the attorneys or the parties
254 Fairness in Litigation Ch. 9
and you are at liberty to do so; however, you are not required to
do so. Whether you do so is entirely a matter of your own choice.
Undoubtedly, your decision will be respected. However, if you
decline to discuss the case and an attorney persists in discussing
the case over your objection, or becomes critical of your services as
a juror, please report the incident to me.
Rationale
The Code contemplates that attorneys may speak with jurors after a
trial regarding the proceedings. The practice of talking informally with
willing jurors after a trial is a common one in our state courts, although
* * * some attorneys would rather the practice was prohibited.
The Code also imposes a responsibility on attorneys, however, not to
say anything to jurors with the intent to create a negative impression by
the jurors regarding future jury service. The Criminal Justice Standards,
quoted above, impose a slightly different obligation than the Code, that is,
the obligation not to discuss the case in a way that is critical of the verdict.
In either a civil or a criminal case, disclosure to the jurors of evidence
that was inadmissible or was suppressed, or simply was not introduced,
could be designed to be critical of the verdict that had been rendered. This
would be true where the evidence not introduced would tend to support a
verdict other than the one actually rendered by the jury. In effect, the
attorney very well could be telling members of the jury that they were
wrong.
Not only is such conduct exactly the kind of conduct that is prohibited
by the Criminal Justice Standards, but it also appears to be calculated to
embarrass the jurors, by showing them that they made the wrong decision.
Such is not permitted, and an attorney who observes or becomes aware of
such conduct is required to report it to the court pursuant to EC 7—32.
Conclusion
After a verdict has been returned, it is improper for an attorney who
has participated in the trial to tell the jury about information that was not
presented at trial, if such information is disclosed to the jury with the
intention of or in the spirit of criticizing the jury’s decision, influencing the
actions of jurors in future jury service, harassing the jury, or otherwise
behaving improperly toward jurors in any manner prohibited by the Code
of Professional Responsibility.
If an attorney becomes aware of improper communications with a juror
by an attorney, i.e., conduct proscribed by any of the above, pursuant to EC
7—32, the attorney who became aware of the improper conduct has an
obligation to “make a prompt report to the court regarding such conduct.”
c
G
Ch. 9________________ Fairness in Litigation___________________ 255
C
II. PUBLIC COMMENTS ABOUT
G PENDING LITIGATION
c A. BACKGROUND
o Although the idea of public and media access to trials is firmly rooted
in American jurisprudence—indeed, the right to a public trial is part of the
G Sixth Amendment protection for the criminally accused—excessive
publicity may also interfere with the equally important right to a fair trial.
C As a result, the interests of the media and the courts are sometimes at odds.
Added to this mix is the danger that lawyers for the state, the accused, and
G the parties in civil actions may seek to argue their cases outside of court,
using the media for the benefit of their clients or themselves. Historically,
G the First Amendment has required a showing of “actual prejudice or a
substantial and imminent threat to fair trial” [Nebraska Press Ass’n u.
C Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976)] in order to
restrict press coverage during a criminal trial, but has allowed trial courts
C to restrain lawyers’ speech before and during trial on a significantly lower
showing. [See Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507,
C 1522—23, 16 L.Ed.2d 600 (1966).] Lawyers may also have ethical
limitations on what they may say in advance of and during trial, although
o this must be balanced against their obligation to represent their clients
c zealously and effectively within the bounds of the law.

c- B. THE ABA ENTERS THE FRAY

The ABA’s Canons of Professional Ethics (1908) “[gjenerally * * *
c condemned” newspaper publications by lawyers regarding pending or
anticipated litigation because of the danger they would “interfere with a
o fair trial” and “otherwise prejudice the due administration of justice.”
iJ When the ABA Code was promulgated in 1969, it relied upon
recommendations of the Advisory Committee on Fair Trial and Free Press,
created in 1964 on the recommendation of the Warren Commission’s report
G on the assassination of President Kennedy. The Advisory Committee
C developed the ABA Standards Relating to Fair Trial and Free Press which
covered the disclosure of information regarding criminal proceedings. The
O ABA used those standards in developing ABA Model Rule of Professional
Responsibility 3.6. Meanwhile, the Supreme Court had identified the need
C for such a rule in Sheppard v. Maxwell, and, in 1966, the Judicial
Conference of the United States authorized a special subcommittee to
G study whether further guidelines needed to be laid down to implement
Sheppard. The result of that report was the “reasonable likelihood of
O prejudicing a fair trial” test used in the ABA 1969 Model Code. DR 7—107
of the Model Code used the laundry list of acceptable and prohibited
c statements similar to the Model Code’s approach to advertising. [See
Chapter 4, supra.] Ten years later, when the ABA amended its guidelines,
c
o
c
 256 Fairness in Litigation Ch. 9
the ABA changed the test from "reasonable likelihood” to “clear and present
danger.” [ABA Standard for Criminal Justice 8—1.1 (as amended in 1978)
(2d ed. 1980, Supp.1986).] Today, the test under Standard 3-1.4 (for
prosecutors) and Standard 4-1.4 (for defense counsel) is “a substantial
likelihood of prejudicing a criminal proceeding.”
The Model Rules of Professional Conduct, drafted in the early 1980s,
did not grant as much protection to lawyers who made extrajudicial
statements when fair trial rights were involved. Model Rule 3.6 adopted
yet another test, the “substantial likelihood of material prejudice” test, and
that was where the law stood at the time of the Gentile case.

C. THE GENTILE CASE

In Gentile u. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115
L.Ed.2d 888 (1991), the Supreme Court directly addressed whether state-
imposed limitations on extrajudicial statements in criminal cases violated
the right of free speech. At that time, Nevada’s ethical rule governing
pretrial publicity prohibited an attorney from making “an extrajudicial
statement that a reasonable person would expect to be disseminated by
means of public communication if the lawyer knows or reasonably should
know that it will have a substantial likelihood of materially prejudicing an
adjudicative proceeding.” The rule also provided both a list of statements
that ordinarily would result in material prejudice and therefore were
prohibited, as well as a list of a number of statements that a lawyer could
make safely, without fear of discipline. One of the safe harbor items was
that a lawyer “may state without elaboration * * * the general nature of
the * * * defense.”
Gentile, a Nevada lawyer, represented Sanders, who had come under
suspicion when drugs and money, used in an undercover operation
conducted by the Las Vegas police, went missing from a safety deposit
vault. Two police officers also had ready access to the drugs and money in
the vault, and they also initially were considered suspects. The matter
attracted a great deal of publicity, and eventually it was reported that the
police officers were no longer suspects and that Sanders had refused to take
a polygraph test. Fearing that the potential jury venire would be tainted
by the repeated and inflammatory press reports, Gentile—for the first time
in his career—decided to call a press conference. At the press conference,
Gentile stated that Sanders was innocent and was being framed by
“crooked cops.” Six months later, after a jury trial, Sanders was acquitted
on all counts.
The State Bar of Nevada filed a complaint against Gentile for violating
Nevada’s pretrial publicity rule, which was almost identical to the then-
current version of ABA Model Rule 3.6. After finding that Gentile had
Ch. 9________________Fairness in Litigation___________________ 257
violated the rule, the disciplinary board recommended a private reprimand.
In a 5—4 decision, the U.S. Supreme Court reversed.
The Supreme Court, advocating a "less demanding standard” for
attorney speech regarding their pending cases, noted that “[t]he regulation
of attorneys’ speech is limited.” Although the Court upheld the Nevada
rule’s "substantial likelihood of materially prejudicing the proceeding” test,
it struck down other parts of the rule. In particular, the Court concluded
that the rule’s safe harbor provision—permitting a lawyer to "state without
elaboration * * * the general nature of the * * * defense”—had led Gentile
to believe that his statements at the press conference were proper.
Concluding that the Nevada rule was void for vagueness, the Court stated
that “[t]he right to explain the ‘general’ nature of the defense without
“elaboration” provides insufficient guidance * * * . The lawyer has no
principle for determining when his remarks pass from the safe harbor of
the general to the forbidden sea of the elaborated.”

D. CURRENT RULES
In 1994, the ABA House of Delegates amended Model Rules 3.6 and
3.8 to reflect the Gentile decision. The amended Rule 3.6 removed the
portion of the rule that delineated what kind of comments would be held to
be prejudicial. This is now part of the comments section. The ABA also
added a section in the rule allowing a lawyer to attempt to mitigate
negative publicity not of the attorney’s or client’s creation notwithstanding
paragraph (a)’s bar on extrajudicial statements. Notably, the ABA deleted
a comment acknowledging that no rules could satisfy all the interests of a
fair trial and those of free speech. The addition of subsection (f) to Rule 3.8
imposes an additional responsibility on criminal prosecutors to “refrain
from making extrajudicial comments that have a substantial likelihood of
heightening public condemnation of the accused.” [See also RESTATEMENT
(Third) of the Law Governing Lawyers § 109 (2000).] Prosecutors also
must “exercise reasonable care to prevent investigators, law enforcement
personnel, employees or other persons assisting or associated with the
prosecutor in a criminal case from making an extrajudicial statement that
the prosecutor would be prohibited from making under Rule 3.6 or this
Rule.” [See ABA Model Rule 3.8(f).]

Matter of Vincenti
Supreme Court of New Jersey, 1983.
92 N.J. 591, 458 A.2d 1268.

Under some circumstances it might be difficult to determine precisely

the point at which forceful, aggressive trial advocacy crosses the line into
the forbidden territory of an ethical violation. But no matter where in the
spectrum of courtroom behavior we would draw that line, no matter how
indulgent our view of acceptable professional conduct might be, it is
 O
258 Fairness in Litigation Ch. 9 o
inconceivable that the instances of respondent’s demeanor that we are o
called upon to review in these proceedings could ever be countenanced. The
record lays bare a shameful display of atrocious deportment calling for o
substantial discipline. o
I.
A panel of the local ethics committee (Committee) prepared a carefully o
documented report of 60 pages, unanimously adopted by the Committee as
its presentment charging respondent with unethical conduct. With equally
o
meticulous care the Disciplinary Review Board (DRB) embodied its
determination, with which we are in accord, in a Decision and
o
Recommendation. Our independent review of the entire record leads us to
the same conclusion as was reached by the DRB, whose full opinion we here
o
set forth and adopt as our own. o
***
The respondent represented D.K., the defendant in a child
o
abuse/neglect case involving the defendant’s four children. * * * During
this proceeding, respondent’s in-court conduct, his out of court conduct
o
towards lawyers, witnesses and bystanders in the courthouse, and his o
written communiques and applications relative to the D.K. proceeding
reached a level of impropriety that mandated the filing of a 22 count ethics o
complaint.
w★* o
It is sufficient to note examples of respondent’s numerous o
improprieties here. He was frequently sarcastic, disrespectful and
irrational, and accused the Court on numerous occasions of, inter alia, o
collusion with the prosecution, cronyism, racism, permitting the
proceedings to have a “carnival nature,” conducting a kangaroo court, o
prejudging the case, conducting a “cockamamie charade of witnesses” and
barring defense counsel from effectively participating in the proceedings, o
conducting a sham hearing, acting outside the law, being caught up in his
“own little dream world,” and ex-parte communications with the prosecutor
o
together with other equally outrageous, disrespectful and unsupported
charges. These and other comments were made frequently throughout the
o
proceedings and continued at length. o
***
o
[In one instance] the respondent reviewed a witness’s files while she
was testifying and failed to return them thereafter. The Deputy Attorney Q
General located the files on the counsel table and returned them to the
witness, at the witness’s request. The respondent, in open court, then O
accused the Deputy Attorney General of stealing the files, and accused her
of being a “bald-faced liar,” and “a thief, a liar and a cheat.” He also filed
o
o
o
c
c Ch. 9________________Fairness in Litigation_________________ 259
C: an ethics complaint against the Deputy Attorney General for her
actions. * * *
c [The] respondent further alleged that the trial judge had participated
c in extortion as well as cronyism, bias, prejudice, racism and religious
bigotry during the trial, again without any basis in fact.
□ The respondent’s improprieties continued. The respondent directed
o the following letter * * * to the trial judge, the text of which is set forth
below:
o I wish to extend my sincerest good wishes for your speedy
recovery from the obvious breakdown you suffered in chambers
Q yesterday, Tuesday, December 11 * * * .

c Hopefully, with some rest and relaxation from your most

taxing schedule, you will be in a position to resume your judicial
c duties more appropriately than exhibited on the eleventh.
If, however, you feel somehow justified in pressing your
c demand for written recommendations, I must supply them, if for
no other purpose than to demonstrate my client’s continuing bona
o fides herein.
c I must admit, with no small degree of trepidation, that we
have no confidence in your rationality vis-a-vis this case. Your
c activities on the eleventh and throughout the trial clearly
demonstrate an irrational predisposition to chastise Mr. D.K. and
c defense counsel. The cronyism I wrote of in our motion for new
trial continues unabated.
c You have simply closed your mind to our position and have
c retreated into a dream world not unlike the somnambulist in the
early German classic story at the turn of the century.
c How do we make any kind of recommendations to you while
you sleep-walk through your judicial duties. How does one get
c through to you.
***
c
The statements made by respondent in that letter speak for
c themselves.
c ■fc -k ★

In addition to respondent’s outrageous in-court conduct and equally

outrageous written applications and communications, respondent, on
numerous occasions, also engaged in reprehensible behavior towards
c witnesses, potential witnesses, opposing counsel, and other attorneys
c outside the courtroom but inside the Courthouse. A sampling of the
improprieties follows:
o
c
c
260 Fairness in Litigation Ch. 9
1. On September 26 * * * outside the courtroom, respondent and
Assistant Public Defender Eisert were discussing the issues of visitation.
Argument ensued, during which, among other obscenities, respondent told
Eisert to “go screw himself’ * * * , and referred to Eisert as * * *
“schmuckface,” all in the presence of a number of individuals, some of
whom were involved in the case.
2. On October 31 * * * Deputy Attorney General Rem and Eisert
agreed to meet with respondent, at his request, for a settlement conference.
The Lawyer’s Lounge was selected. In addition to addressing insults at
Rem, respondent referred to a female attorney, also in the lounge, as “Miss
Wrinkles” [and] “Miss Bags” * * * .
3. Respondent on several occasions either’ unnecessarily subpoenaed
individuals to testify or threatened those under subpoena by opposing
counsel.
4. On December 6, 1979, in the Courthouse corridor, after
attempting to intimidate a witness by directing her to answer everything
he asked, while his secretary wrote down her responses, respondent
advised an attorney named Pearson who was standing with the witness
but not involved in the proceeding to “just keep your god damn nose out of
my business.”
***
Respondent’s performance did not conclude there. While Eisert,
Pearson and Rem were conversing in the Courthouse, respondent
approached, stating loudly that Rem should not be believed since “ * * *
she’s a bald-faced liar”. He then called Rem “fuckface,” and while walking
away again made the suggestion “ * * * shove it up your ass.” Within the
next several minutes, respondent twice approached the group, each time
pushing into Rem, causing her to lurch against a desk in the hallway.
***
We would hope, through this opinion, to serve some more salutary
purpose than just the distasteful meting out of well-deserved public
discipline to Mr. Vincenti. As pointed out earlier, * * * this ethics
proceeding unveils conduct so bizarre, so outrageous, as not to bring us
close to what in some other case might be the difficult problem of
distinguishing between permissibly vigorous advocacy and an ethical
transgression. Although we need not here attempt with exquisite precision
to delineate the difference, it may nevertheless be useful to restate, in
general terms, the obligation of New Jersey lawyers, that they may readily
avoid entanglements of the sort that brings respondent before us.
o
c C . 9_______________ F
h airness in L
itigation _________________ 261
c Models abound. We adopt one formulated by Justice Frankfurter:
c Certainly since the time of Edward I, through all the
vicissitudes of seven centuries of Anglo-American history, the
C1 legal profession has played a role all its own. The bar has not
enjoyed prerogatives; it has been entrusted with anxious
c responsibilities. One does not have to inhale the self-adulatory
bombast of after-dinner speeches to affirm that all the interests of
o man that are comprised under the constitutional guarantees
given to “life, liberty and property” are in the professional keeping
o of lawyers. It is a fair characterization of the lawyer’s
c responsibility in our society that he stands “as a shield,” to quote
Devlin, J., in defense of right and to ward off wrong. From a
o profession charged with such responsibilities there must be
exacted those qualities of truth-speaking, of a high sense of honor,
c of granite discretion, of the strictest observance of fiduciary
responsibility, that have, through the centuries, been
c compendiously described as “moral character.” [Schware v. Board
of Bar Examiners, 353 U.S. 232, 247, 77 S.Ct. 752, 760-761, 1
Q- L.Ed.2d 796, 806 (1957) (Frankfurter, ***
J., concurring).]

c Respondent is suspended from the practice of law for one year and
c until the further order of the Court.
C III. THE PROSECUTOR’S SPECIAL DUTIES
C; behalfProsecutors have the unique power to bring criminal prosecutions on
of the government. This power also entails a special duty to exercise
C the power in a responsible fashion. Comment 1 to ABA Model Rule 3.8
states, "A prosecutor has the responsibility of a minister of justice and not
Q ofsimply that of an advocate.” Comment h to § 97 of the Restatement (Third)
the Law Governing Lawyers similarly notes, “Lawyers empowered by
O law to bring and press criminal charges have an authority that must be
c exercised with care to protect the rights of both the innocent and the
guilty.” But the prosecutor is also an advocate in the adversary system of
c criminal litigation. Thus the prosecutor is asked to assume a dual role as a
partisan advocate and a quasi-judicial officer—a role difficult to achieve in
o practice.
The special ethical responsibilities of the prosecutor include restraint
o inrightprosecuting charges without probable cause; protecting the accused’s
to counsel and other important pretrial rights; disclosing evidence
o that negates guilt or mitigates the offense or sentence; and exercising
restraint in litigation tactics and out-of-court statements. [Sec ABA Model
o Rule 3.8.]
c
c
262 Fairness in Litigation CH. 9
An important feature of the prosecutor’s special duty is the obligation
to tell the defense about any material that may favor the defense. The U.S.
Supreme Court set out the constitutional minimum in Brady v. Maryland,
373 U.S. S3, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and explained it more
fully in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d
481 (1985). As explained in Bagley, the Due Process Clause of the Fifth and
Fourteenth Amendments requires a prosecutor to disclose evidence that
favors the defendant with respect to guilt on the merits, or impeachment
of a prosecution witness, or punishment for the offense. Five Justices
agreed that the duty to disclose applies when a failure to disclose
“undermines confidence in the outcome of the trial” and thus deprives the
defendant of a fair trial. This standard is met if there is a “reasonable
probability” that, if the withheld material had been disclosed, “the result
of the proceeding would have been different.” In other words, to violate the
Due Process Clause, the withheld material must have been a game­
changer.
Now examine ABA Model Rule 3.8. Does the ethics rule set a more
rigorous standard than the Due Process Clause sets? The answer given in
ABA Formal Op. 09-454 (2009) is a resounding Yes. The ethics standard is
more rigorous than the Due Process standard in four respects:
• The ethics standard requires the prosecutor to disclose
anything favorable to the defense, whether or not it would be
likely to change the outcome and whether or not it would be
independently admissible in evidence.
• The ethics standard requires the prosecutor to disclose
anything that would favor the defense, even if the prosecutor
thinks it is not believable or not persuasive. However, the
ethics standard applies only if the prosecutor knows of the
material—it does not require the prosecutor to set out on a
hunt for material that favors the defense.
• The prosecutor’s disclosure must be “timely,” that is, early
enough for the defense to make the best use of it—in short, the
sooner the better.
• The prosecutor must not ask the defendant to consent to non­
disclosure of favorable material, for example as a condition of
leniency in a plea bargain.

IV. THE DUTIES OF THE CRIMINAL

DEFENSE LAWYER
A lawyer who represents a client accused of a criminal offense also has
duties that diverge from the general rules for litigating lawyers. Professor
Wolfram comments that “[t]he effective limits on a defense lawyer’s loyalty
Ch. 9_______________ Fairness in Litigation_________________ 263
and zeal are quite unclear and can probably be captured only by a vague
phrase such as ‘advocacy in good faith.’ ” [Wolfram, MODERN LEGAL ETHICS
589 (1986).] Model Rule 3.1 contains a special exemption from the
prohibition against making frivolous claims: “A lawyer for the defendant in
a criminal proceeding, * * * may nevertheless so defend the proceeding as
to require that every element of the case be established.” Thus the criminal
defense lawyer may require the prosecution to put on its proof even if there
is no non-frivolous defense. Exceptions such as these are necessary to
preserve the presumption that a criminal defendant is innocent until
proven guilty. In fact, the American Bar Association in 1979 adopted a
distinct set of standards for both criminal prosecutors and defense counsel.
[See American Bar Association, ABA Standards for Criminal Justice, The
Prosecution Function, The Defense Function (1992).]

V. POTENTIAL IMPAIRMENTS THAT

MAY AFFECT FAIRNESS
Impairment can come in several forms, and can affect both lawyers
and clients. When a lawyer or her client is impaired, whether temporarily
or permanently, and whether due to injury, physical illness, mental illness,
or death, such impairment implicates fairness concerns. Lawyer
impairment is generally governed by Model Rule 1.16; client impairment
is the focus of Model Rule 1.14.

A. POTENTIAL LAWYER IMPAIRMENTS

Model Rule 1.16 requires a lawyer to decline a representation, or to
withdraw if representation has already been undertaken, if “the lawyer’s
physical or mental condition materially impairs the lawyer’s ability to
represent the client.” See Model Rule 1.16(a)(2).
1. Alcohol and Substance Abuse
A 2016 study by the American Bar Association and the Hazelden Betty
Ford Foundation surveyed approximately 15,000 practicing lawyers from
19 states across the country, finding that between 21% and 36% of the
sampled lawyers drink at levels consistent with alcohol abuse. See The
Prevalence of Substance Use and Other Mental Health Concerns Among
American Attorneys, 10 Journal of Addiction Medicine 46 (Feb. 2016). By
comparison, 6.8% of the American general population is estimated to have
alcohol use disorders. See Elizabeth Olson, High Rate of Problem Drinking
Reported Among Lawyers, N.Y. Times, Feb. 5, 2016. Surprisingly, the study
found that “attorneys in the first 10 years of their practice... experience! ]
the highest rates of problematic [alcohol] use (28.9%), followed by attorneys
practicing for 11 to 20 years (20.6%), and continuing to decrease slightly
from 21 years or more.” Accordingly, the study concluded, “being in the
264 Fairness in Litigation Ch. 9
early stages of one’s legal career is strongly correlated with a high risk of
developing an alcohol use disorder.”
The study also collected data regarding drug use, but the researchers
concluded that “no inferences about these data could be made.” However,
the study reported that “(o]f participants who endorsed use of a specific
substance class in the past 12 months, those using stimulants had the
highest rate of weekly usage (74.1%), followed by sedatives (51.3%),
marijuana (31.0%), and opioids (21.6%).”
Although there are no nationwide statistics for drug use among
practicing attorneys, there have been some reports indicating a
relationship between substance abuse and attorney disciplinary
proceedings. One article reported an estimate that 50% to 75% of all
disciplinary cases in Georgia involved substance abuse, as well as an
Oregon study finding that 60% of lawyers entering a lawyer assistance
program for substance abuse treatment entered the program after a
disciplinary complaint or malpractice lawsuit had been filed against them.
See George E. Bailly, Impairment, the Profession, and Your Law Partner,
15 Me. B.J. 96, 97-98 (Apr. 2000).
2. Depression or Other Illness
The ABA-Hazelden study, in addition to its findings regarding alcohol
abuse, also found “significant” levels of depression, anxiety, and stress,
“with 28%, 19%, and 23% experiencing mild or higher levels of depression,
anxiety, and stress, respectively.”
As noted above, Model Rule 1.16 refers to both the lawyer’s physical
and mental condition. Depression, anxiety, and stress are some examples
of mental conditions. How might depression, anxiety, or stress “materially
impair[ ] the lawyer’s ability to represent the client”? Can you think of some
examples of when a lawyer’s physical condition might “materially impairf ]
the lawyer’s ability to represent the client”?
3. What Happens to the Client upon the Lawyer’s Death or
Disability?
For a lawyer of any age, even one who has no current physical or
mental impairment and is functioning at a high level, physical illness or
even death nevertheless can strike unexpectedly. An attorney who suffers
a sprained ankle likely can continue his or her legal practice without
missing a beat, but what if the issue is a cardiovascular or neurological
event (such as a heart attack or stroke), or a bad fall, or a fatal car accident?
What happens to the client when something unexpected happens to the
lawyer?
Comment 5 to Model Rule 1.3 acknowledges this potential issue: “To
prevent neglect of client matters in the event of a sole practitioner’s death
c
c CH. 9_____________________FAIRNESS IN LITIGATION________________________265
c or disability, the duty of diligence may require that each sole practitioner
r*'prepare
\__ >
a plan, in conformity with applicable rules, that designates
another competent lawyer to review client files, notify each client of the
c lawyer’s death or disability, and determine whether there is a need for
immediate protective action.” Why does the Comment refer specifically to
c occur?
sole practitioners? Without such a plan, what series of events are likely to

o B. POTENTIAL CLIENT IMPAIRMENT

c Model Rule 1.14 is entitled “Client with Diminished Capacity.” This
rule discusses the protections accorded to clients who might suffer from
c impairment.
1. Diminished Capacity
Model Rule 1.14 does not specifically define “diminished capacity.” The
rule begins by observing that “[wjhen a client’s capacity to make
o adequately considered decisions in connection with a representation is
diminished, whether because of minority, mental impairment, or for some
o other reason, the lawyer shall, as far as reasonably possible, maintain a
normal client-lawyer relationship with the client.” Comment 6 provides
o that “[i]n determining the extent of the client’s diminished capacity, the
lawyer should consider and balance such factors as: the client’s ability to
articulate reasoning leading to a decision, variability of state of mind and
ability to appreciate consequences of a decision; the substantive fairness of
a decision; and the consistency of a decision with the known long-term
c commitments and values of the client. In appropriate circumstances, the
lawyer may seek guidance from an appropriate diagnostician.”
c The lawyer does not “diagnose” the client, but instead simply
determines whether the client has the ability to make a sound legal
decision under the circumstances, which is a different assessment—legal
mental capacity is not necessarily affected by impaired mental or physical
capacity. See, e.g., Cal. Prob. Code 810(b), 811(d) (Deering 2017). Moreover,
c different legal actions can require different levels of capacity. See In re
Estate of Hastings, 387 A.2d 865, 868 (Pa. 1878) (“Less capacity is needed
o to make a valid will than is necessary to transact ordinary business.”).
2. Diminished Capacity—Or Merely Age Bias?
CD
Assumptions, based on biases, sometimes lead lawyers to inaccurate
o conclusions. One example involves age bias. The following material is
excerpted, with permission, from Debra Lyn Bassett, Silencing Our Elders,
o 15 Nev. L.J. 519, 532-535 (2015):
CD Although any individual may have slower speech patterns
leading to pauses, hesitations, or lack of responses in conversation
C
CD
CD
 o
266 Fairness in Litigation Ch. 9
o
due to, among other possibilities, hearing limitations, health
o
conditions, or simply the way they speak, these possibilities,
statistically, are higher for older individuals. For example, one
o
can experience hearing loss at any age, but, statistically speaking,
the likelihood of hearing loss tends to increase as individuals grow
o
older. Similarly, a health-related condition such as a stroke can CD
lead to impairments in one’s ability to speak, often with the
specific result of longer pauses and hesitations in a stroke victim’s
speech patterns. Strokes are not limited to older individuals—
O
they may occur at any age—but statistically speaking, more o
individuals who suffer a stroke are older individuals. And, more
generally, speech patterns vary from individual to individual, and o
individuals of any age may simply speak more slowly and/or use
more pauses and hesitations when they are engaged in o
conversation. But again, due to the effects of aging, older
individuals, statistically speaking, tend to speak more slowly and o
use more pauses.
[LJet us suppose that a lawyer has an initial consultation
o
scheduled with new client Jennifer on Monday, and with new
client Barbara on Tuesday. When Jennifer, who is thirty-five
o
years old, arrives for her consultation, it turns out that she speaks o
a bit slowly and pauses before answering questions. Absent
anything else, the lawyer probably will consider Jennifer to be o
“thoughtful.” When Barbara, who is seventy years old, arrives for
her consultation, it turns out that, just like Jennifer, she speaks a o
bit slowly and pauses before answering questions. Absent
anything else, the lawyer probably will consider Barbara to be o
“elderly,” rather than “thoughtful.” Is there any real harm in these
differing characterizations? Maybe not—but there are three
CD
potential, and overlapping, areas of concern. o
The first of these three concerns is stereotyping. ... Just
because a client is older does not necessarily mean that he or she O
is impaired in any fashion. Our attitudes toward, and stereotypes
of, older individuals can unconsciously obstruct our CD
communication with, and our perceptions of, our clients. These
attitudes and stereotypes may cause us to think that older CD
individuals generally are unable to make their own decisions or to
explain their own problems.
CD
The second concern is that of client autonomy and O
paternalism. Interestingly, it is actually just as easy to stereotype
older individuals out of benevolence as it is to stereotype out of a CD
negative form of bias or prejudice. One of the overarching issues
in considering the relationship of lawyers (or other professionals) O
to older clients is the tension between the ideal of client autonomy
o
CD
O
Ch. 9 Fairness in Litigation 267
and the potential for paternalistic attitudes the lawyer may bring
when dealing with an older client. A lawyer’s duty is to represent
the client in accordance with the client’s wishes and goals. But
when the client is older, there can be an inclination on the lawyer’s
part to substitute his or her own judgment for that of the client.
This inclination is typically well-intentioned: the lawyer wants
what is best for the client, and therefore is tempted to substitute
his or her own judgment as to the client’s best interests because
the lawyer perceives the client as being unable to make decisions
as well as the lawyer can. Concern for client autonomy and
paternalistic concern for the client’s welfare can both be in play in
many lawyer-client relationships, but they tend to come to the fore
particularly in those relationships that involve older clients.
The third, and most serious, danger lies in assumptions of
diminished capacity. Like the population generally, lawyers often
assume that all older individuals are experiencing declining
competence, and thus decide that mental decline is the “obvious”
explanation for the behavior of an older client. This means that
when counseling an older client, a lawyer may jump to the
conclusion that an older client is incompetent or senile when the
lawyer would characterize the same behaviors in a younger client
as merely creative, original, quirky, or idiosyncratic. Fortunately,
the rules under which lawyers practice require lawyers to
“maintain a normal client-lawyer relationship,” “as far as
reasonably possible,” even when a client’s decision-making ability
is in fact diminished, and the rule is relatively stringent about the
circumstances under which more extreme actions—such as
seeking a conservator for the client—would be appropriate.
In examining these potential concerns—stereotyping, client
autonomy and paternalism, and diminished capacity—perhaps
the most common danger turns out to be situations where all of
these concerns are potentially rolled together. A prime example is
the very common situation where an older individual arrives in
the lawyer’s office accompanied by someone else, such as a son,
daughter, grandchild, friend, or caregiver. This additional person
may want to participate in the discussions with the lawyer, and
the relative/friend/caregiver may be someone who the older client
trusts and relies upon. We would like to think that everyone in
the room in such a situation has the best interests of the older
client at heart, but combinations of biases, stereotypes,
presumptions of diminished capacity, and paternalism may lead
even well-intentioned individuals astray. Accordingly, the lawyer
must watch out not only for his or her own assumptions, but also
for the potential for inaccurate assumptions and undue influence.
 o
268__________________Fairness in Litigation_______________ Ch. 9
O
The ultimate guidance is to remember who the client is, and the
o
client is the older individual, not that older individual’s family,
friend, or caregiver.
o
C. CONCLUSION
o
How can the fairness of legal proceedings be affected if the lawyer or o
the client is impaired? What if the impaired lawyer is your law partner?
See ABA Model Rules 1.16(a)(2), 5.1, 8.3(a); see also ABA Formal Ethics o
Op. 03-429, “Obligations with Respect to Mentally Impaired Lawyer in the
Firm.” o
Multiple Choice Questions o
Ansiver these questions using the definitions found o
at the end of Chapter Two.
1. At the trial of a routine civil case in a United States District Court, o
defense lawyer Westerman presented the testimony of an insurance company
investigator. On cross examination, plaintiffs lawyer established that on the
O
day before the trial began, the investigator spent three hours in Westerman’s
office going over his testimony. On that occasion, Westerman showed the
O
investigator some handwritten notes from the insurance company files, in an
effort to refresh the investigator’s recollection of some important dates.
o
Plaintiffs counsel asked to have the notes brought to court the next morning;
after hearing oral argument on the point, the judge ordered Westerman to
o
bring them the next morning. Westerman responded: “I’ll bring them, judge,
on the next cold day in Hell.” The judge looked startled but chose to overlook
o
the remark. Westerman intentionally failed to bring the notes to court the
following day. Which of the following are correct?
o
I. Westerman is subject to litigation sanctions for discussing the o
investigator’s testimony with him before the trial.
II. Westerman is subject to litigation sanctions for using the notes to
o
refresh the investigator’s memory of dates. o
III. Westerman is subject to litigation sanctions for his rude remark to
the judge. o
IV. Westerman is subject to litigation sanctions for intentionally
violating the Federal Rules of Evidence.
o
V. Westerman is subject to litigation sanctions for intentionally
violating the judge’s order.
o
A. All of the above.
o
B. II and V only. o
C. I, II, III, and IV only.
D. Ill, IV, and V only.
o
o
o
o
c Ch. 9________________Fairness in Litigation_________________ 269
o 2. Lawyer Lexington represents the plaintiffs in a civil action. His
o clients are three members of the congregation of All Souls* Divine Missionary
Church, suing on behalf of themselves and others similarly situated. The
o defendants are All Souls’ Divine Missionary Church, Inc. (a corporation), and
Pastor Dorset, the spiritual leader of the church and president of the church
c corporation. Pastor Dorset and the church corporation are represented by
separate defense lawyers. The complaint alleges that Pastor Dorset
c misappropriated large amounts of church money, and that the Board of Elders,
acting as corporate directors, knew about it and failed to stop him. In the early
Q discovery phase of the case, lawyer Lexington conducted a lengthy, private
interview with the church bookkeeper, an employee of the church corporation;
c she brought the church books with her to the interview, and she and Lexington
went over them in great detail. Lexington did this without the knowledge or
o consent of either defense lawyer. Which of the following is most nearly correct?
A. Lexington’s conduct was proper, since the bookkeeper was not a
Q party to the lawsuit.

o B. Lexington’s conduct was proper, since the bookkeeper was

neithei* an officer nor a high-ranking employee of the church corporation.
o C. Lexington is subject to discipline; he should have obtained the
consent of both defense lawyers.
o D. Lexington is subject to discipline; he should have obtained the
consent of the church corporation’s defense lawyer.
o 3. Deputy District Attorney Sanford has been assigned to prosecute
c defendant Rossi for arson. Shortly after the fire was extinguished, a three-
person team of arson experts was sent by the City fire department to determine
c the cause of the fire. The team concluded that the fire was set by a professional
arsonist, and the team’s report so states. Shortly before trial, Sanford learned
Q that Beaumont, the youngest and least experienced member of the team, had
originally concluded that the fire resulted from an explosion in the furnace.
c Beaumont had tried to convince the other two team members that his original
conclusion was correct, but they ultimately prevailed, and Beaumont signed
o the report without dissent. Sanford does not plan to offer the report in evidence
at trial, and he does not plan to call any of the three team members as
o witnesses. Rather, he plans to use the testimony of two independent experts to
establish that arson caused the fire. Which of the following is the proper thing
Q for Sanford to do concerning the information about Beaumont?
A. Disclose it to Rossi’s counsel, since it could be useful in Rossi’s
defense.
c B. Instruct Beaumont not to mention his original conclusion to
anyone.
o C. Wait to see whether Rossi’s counsel asks for the information in
Q the regular course of criminal discovery.

o
c
o
270 Fairness in Litigation Ch. 9
D. Do nothing about it since he does not plan to offer the report or
the testimony of the team members at the trial.
4. Attorney Paxton represents plaintiff Parker on a contingent fee basis
in an action against Dougal Corp, for breach of an alleged employment contract
between Dougal Corp, and Parker. Attorney Daniels represents Dougal Corp,
in the matter. Dougal Corp, instructs Daniels to offer the plaintiff $35,000 to
settle the case, and Daniels duly telephones Paxton and makes the offer of
settlement. Paxton says he will take it up with Parker and get back to Daniels
in due course. When Daniels hears nothing for two weeks, he calls Paxton back,
but Paxton refuses to take Daniels’ telephone call. Then Daniels writes Paxton
a formal letter, re-making the settlement offer, requesting that Paxton consult
Parker about it, and requesting a prompt response. Again, Daniels hears
nothing from Paxton. Finally Daniels develops a strong suspicion that Paxton
has not communicated the settlement offer to Parker. May Daniels send Parker
a copy of his letter to Paxton?
A. No, because Daniels is not allowed to communicate directly with
Parker.
B. Yes, if Daniels reasonably believes that Paxton has failed to
communicate the settlement offer to Parker.
C. No, since Daniels cannot be sure that Paxton failed to
communicate the settlement offer to Parker.
D. Yes, because the copy would simply advise Parker of Daniels’
prior communication with Paxton.
5. Crebs had an automobile accident in his sports car, injuring his
girlfriend, Victoria, who was riding in the front seat without her seatbelt
fastened. Crebs consulted lawyer Limpett about his possible legal liability to
Victoria. After making sure that Victoria had not already retained counsel,
Limpett went to visit her, to find out how badly she was injured and to obtain
her description of what happened the night of the accident. Victoria asked
Limpett whether he thought she should make a claim against Crebs. Limpett
gave her his honest opinion: litigation can be costly and time-consuming, and
Crebs’ liability was debatable. Further, he told her, since her medical expenses
were fully covered by her own health insurance, she had little to gain by suing
Crebs.
A. Limpett’s conduct was proper, since Victoria was not represented
by counsel when Limpett spoke with her.
B. Limpett’s conduct was proper, because he gave Victoria his
honest opinion about the matter.
C. Limpett’s conduct was proper, provided that his visit with
Victoria was an overture to a good faith settlement of the matter.
D. Limpett is subject to discipline, even if his ultimate objective was
to reach a fair settlement of the matter.
c
o Ch. 9 Fairness in Litigation 271
c Answers to the multiple choice questions will be found
Q7 in the Appendix at the end of the book.

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Chapter Ten
c
Bias in (and out of) the Courtroom

What This Chapter Covers

I. Types of Bias Lawyers Face
A. Gender Bias
c B. Racial and Ethnic Bias
C. Sexual Orientation Bias
D. Other Forms of Bias, Including Sexual Harassment and Bias on
the Basis of Disability, Age, or Religion
II. Settings for Bias
A. Bias by Lawyers
c B. Bias by Judges
C. Bias by Clients
III. How Can Bias Be Remedied?
o
c Reading Assignment
Schwartz, Wydick, Perschbacher, & Bassett, Chapter 10.
Review ABA Model Rules:
c Rules 1.8(j), 3.4, 3.5, 4.4, and 8.4.
ABA Model Code of Judicial Conduct
Canons 1—3; Rules 1.2, 2.2, 2.3, 2.11(A)(1), 2.12, 3.1, and 3.6.
Supplemental Reading
Hazard & Hodes:
Discussion of ABA Model Rules 1.8(j), 3.4, 3.5, 4.4, and 8.4.
o Restatement (Third) of the Law Governing Lawyers §§ 5, 10&-107 (2000).

c
c

273
o
274___________ Bias in (and out of) the Courtroom________ Ch. 10
Discussion Problems
1. Dan Mitchell is a partner in a mid-size law firm. He has assigned
Beth Hammond, one of the firm’s best associates, to a litigation matter for
his client, Modern Furnishings. Until now, Beth’s work has involved
research and drafting pleadings, but an important deposition is scheduled
in three weeks. During a meeting between Dan and George Drake, the
president of Modern Furnishings, George suggests that Beth might not be
the ‘"best choice” for taking the deposition. When pressed, George states
that although Beth’s work has been excellent, he would be “more
comfortable” having a male associate conduct the deposition due to its
importance to the litigation and the necessity for an “aggressive” approach.
Does George’s request reflect bias? What should Dan do?
2. Ethan Baird, age seventy-three, was involved in an automobile
accident injuring Cathy Stevens. Cathy sued Ethan to recover for her
injuries; whether Ethan was negligent is disputed. While cross-examining
Ethan, Cathy’s attorney asked repeated questions concerning Ethan’s age,
his vision, and the length of time since his last driving test. At the
conclusion of his cross-examination, Cathy’s attorney commented, “The
State needs to do a better job of keeping old coots off the highway.” Does
Cathy’s attorney’s questioning reflect bias? Is Cathy’s attorney’s
questioning appropriate? What about her comment?
3. The deputy district attorney for the City of Allendale was faced
with the decision whether to indict a Mexican-American for an alleged
assault. Responding to a colleague’s question as to whether he intended to
proceed with an indictment, the deputy said yes. The colleague noted the
conflicting evidence in the case, and questioned whether the deputy had
any hesitation. The deputy replied that “those people always have an
alibi—they stick together.” Does the deputy district attorney’s reply reflect
bias? Does it raise any ethical concerns?
4. Jennifer Holden is a twenty-eight year-old associate attorney at a
large law firm. Jennifer works with Sam Baker, a partner in his mid-fifties.
Clients regularly mistake Jennifer for a secretary, paralegal, or court
reporter instead of a lawyer. Does this mistaken identity reflect bias? Why
would this mistaken identity occur? What steps could be taken to avoid
such misapprehensions in the future?
5. Judge Richard Jenkins recently was elected as a full-time state
court trial judge.
a. Judge Jenkins belongs to a local private club that offers
fine dining facilities and pleasant social opportunities. If the club’s
bylaws prohibit women and minorities from becoming members,
must Judge Jenkins resign his club membership? What if the
bylaws contain no such express prohibition, but the club has no
o Ch. io_______ Bias in (and out of) the Courtroom__________ 275
G women or minority members, and the club has refused all
membership applications submitted by women and minorities?
O b. In a criminal case being tried to a jury, the prosecutor is
o male; the defense attorney is a twenty-eight year-old woman.
Judge Jenkins repeatedly has referred to defense counsel as
o “Missy,” and his tone arguably contains more than a hint of
condescension. Is Judge Jenkins subject to discipline?
c c. The bailiff for Judge Jenkins’ courtroom used a racial
c slur in referring to a Latino lawyer appearing before the judge.
The attorney did not hear the comment. Judge Jenkins overheard
c the remark but elected to ignore it. Is Judge Jenkins subject to
discipline?
o d. During a meeting in Judge Jenkins’ chambers at which
only the lawyers and Judge Jenkins were present, the male
G prosecutor commented to the female defense attorney that he
“wouldn’t mind dating” her if he “were only twenty years
c younger.” The prosecutor and Judge Jenkins both laughed. Is
Judge Jenkins subject to discipline?
c 6. Attorney Allan always tries to make “small talk” in his
o interactions with clients, hoping to make them feel more comfortable. Allan
is twenty-eight years-old, and isn’t a particularly good judge of age. A
Q couple came into his office to discuss a potential legal matter, but left
abruptly when Allan asked whether they were retired and how many
o grandchildren they had. On another occasion, Allan began speaking very
slowly and very loudly upon seeing that his prospective new client
c appeared to be an older individual. Do these interactions reflect bias? If so,
in what alternative way(s) might Allan have approached these prospective
c clients?

o I. INTRODUCTION TO BIAS ISSUES

Q With the increase of women and minorities in the bar has come
increased attention to the presence of racial and gender bias as such bias
C affects the practice of law. It is not uncommon for allegations of gender and
racial bias in the practice of law to be met with skepticism. After all,
Q tremendous strides forward have been made since the days when open,
O direct discrimination against women and minorities was widely accepted.
Recent studies, however, consistently reflect that such bias is merely less
c open and more subtle. “Subtle” bias does not equate to the absence of bias.
Over and over again, reports of continuing bias against women and
c minorities make headlines. See, e.g., Justin Wolfers, It’s Not Easy to Prove
Racism. This Study Does, N.Y. Times, Sunday Business, Oct. 8, 2017, at 3
c
c
c
276___________ Bias in (and out of) the Courtroom________Ch. io
(“A team of economists has uncovered persuasive evidence that local
government officials throughout the United States are less responsive to
African-Americans than they are to whites.”). Unfortunately, the practice
of law is not immune from this phenomenon.
In 2015, the American Bar Association’s Commission on Women in the
Profession published “a first-of-its-kind empirical study of the participation
of women and men as lead counsel and trial attorneys in civil and criminal
litigation.” See Stephanie A. Scharf & Roberta D. Liebenberg, ABA
Commission on Women in the Profession, First Chairs at Trial: More
Women Need Seats at the Table—A Research Report on the Participation of
Women Lawyers as Lead Counsel and Trial Counsel in Litigation at 25
(2015). The report observed that of the 558 civil cases surveyed, 68% of all
lawyers and 76% of the lead counsel were male, and in class actions, 87%
of lead counsel were men, leading the report to conclude that “women are
consistently underrepresented in lead counsel positions and in the role of
trial attorney ...Id. at 4, 8-10, 12. Another 2015 study found that only
18% of all equity partners were women. National Association of Women
Lawyers and NAWL Foundation, Report of the Ninth Annual National
Survey on Retention and Promotion of Women in Law Firms, October 2015,
www.nawl.org/p/cm/ld/fid=82#surveys.
According to the Bureau of Labor Statistics, law is one of the least
racially diverse occupations in the country. Minorities constitute “fewer
than 7 percent of law firm partners and 9 percent of general counsels of
large corporations. In major law firms, only 3 percent of associates and less
than 2 percent of partners are African Americans.” Deborah L. Rhode, Law
is the Least Diverse Profession in the Nation. And Lawyers Aren't Doing
Enough to Change That, Washington Post, May 27, 2015. “[Substantial
evidence suggests that unconscious bias and exclusion from informal
networks of support and client development remain common. Minorities
still lack the presumption of competence granted to white male
counterparts .... Women are subject to a double standard and a double
bind. A cottage industry of research suggests that what is assertive in a
man seems abrasive in a woman, and female leaders risk seeming too
feminine or not feminine enough.... Mothers, even those working full-
time, are assumed to be less available and committed, an assumption not
made about fathers.” Id.
The federal courts, leading state courts, and bar associations have
formed task forces and other groups to inquire into the presence of bias
inside and out of court and what can be done to remedy it. Among the
difficult questions raised is whether judges and lawyers have any special
obligation to deal with what is a society-wide issue. These task force studies
have resulted in regulations directed at eliminating bias in codes of judicial
conduct and in states’ ethical rules.
Ch. 10________ Bias in (and out of) the Courtroom__________ 277
One specific example of such a task force, and its results, is from New
York. See Task Force on Women’s Initiatives, New York State Bar
Association, If Not Now, When? Achieving Equality for Women Attorneys in
the Courtroom and in ADR (July 2017). This survey found that “female
attorneys in speaking roles in court account for just about a quarter of
counsel who appear in state and federal courts in New York. The lack of
women attorneys with speaking roles in court is widespread across
different types of cases, varying locations, and at all levels of courts.” Id. at
17. The report has led to some judges issuing a court rule “urging a more
visible and substantive role for young female lawyers.” See Alan Feuer, A
Federal Judge’s New Rule: Let More Women Argue Cases, N.Y. Times, Aug.
23, 2017 (noting that Judges Ann Donnelly and Jack Weinstein have issued
such rules, and that another 20 federal judges nationwide have similar
provisions).

In the Matter of Monaghan

Supreme Court, Appellate Division, Second Department, New York, 2002.
295 A.D.2d 38, 743 N.Y.S.2d 519.

Per Curiam.
By order of the United States District Court for the Southern District
of New York (hereinafter the SONY), dated March 27, 2001, the respondent
was publicly censured for his race-based abuse of opposing counsel in
violation of Code of Professional Responsibility DR—102(a)(5) and (6). Upon
the petitioner’s motion to impose discipline upon the respondent pursuant
to 22 NYCRR 691.3, based upon the disciplinary action taken by the SONY,
the respondent raised the defense that there was such an infirmity of proof
establishing the misconduct that this court should not accept as final the
finding of the SONY. By decision and order of this court, dated December
14, 2001, the petitioner’s motion was held in abeyance pending a
hearing * * * ,
The misconduct involved in this matter emanates from the
respondent’s admittedly inappropriate and rude and crude conduct
towards opposing counsel during a deposition by the United States
Department of Labor in a proceeding captioned Matter of William Mason
and Company, et al. The respondent represented Patricia Fater Parsons at
her depositions on February 15, 1996, and March 22, 1996. Gail A. Perry,
a black woman, conducted the deposition on behalf of the Department of
Labor. The respondent engaged in a continuing harangue of Ms. Perry for
her alleged mispronounciation of the words “establish” and “especially.”
On May 9, 1996, the Department of Labor moved in the SDNY, inter
alia, to impose costs and sanctions against the respondent based on his
disruptive conduct during the Fater Parsons deposition. In an affidavit in
opposition to that motion and at a hearing on June 11, 1996, before Judge
278___________ Bias in (and out of) the Courtroom________ Ch. io
Mukasey with respect to the motion for costs and sanctions, the respondent
continued to insist that Perry was guilty of glaring mispronounciations.
That hearing was unrelated to any disciplinary proceeding in the SDNY.
Despite a warning from Judge Mukasey that he would be referred to the
disciplinary committee for his personal attacks on Perry, the respondent
persisted in his efforts to justify his conduct. Judge Mukasey ordered the
respondent to pay $500 in fines and costs.
Approximately four months later, the respondent sent Ms. Perry a
letter of apology, dated November 6, 1996, in which he acknowledged, to
his “extreme embarrassment,” that his “language and tone were
unwarranted and inappropriate under the totality of the circumstances
surrounding the entire unfortunate incident.”
By written stipulation dated January 12, 2001, the respondent
conceded that his conduct was in violation of Code of Professional
Responsibility DRs l-102(a)(5) (engaging in conduct prejudicial to the
administration of justice) and 1—102(a)(6) (unlawfully discriminating in the
practice of law on the basis of age, race, creed, color, national origin, sex,
disability, marital status, or sexual orientation). The respondent and the
prosecuting attorney stipulated that a public censure was the appropriate
sanction for the disciplinary violations involved.
In an order dated March 27, 2001, the Honorable Jed S. Rakoff, Chair,
Committee on Grievances, SDNY, directed that the respondent “be publicly
censured for his race-based abuse of opposing counsel in violation of DR 1-
102(a)(5) and (a)(6).”
In his verified statement in response to the petitioner’s notice of
motion pursuant to 22 NYCRR 691.3 to impose reciprocal discipline upon
him, the respondent raised an affirmative defense regarding the infirmity
of proof establishing the misconduct, solely with respect to the finding that
his misconduct was race-based. The respondent exercised his right to a
hearing, pursuant to 22 NYCRR 691.3(d).
Based on the evidence adduced, the Special Referee found the
respondent’s “crude and offensive conduct and language to be substantially
more likely to have been gender-related rather than race-related.” The
Special Referee found no evidentiary grounds to support the ordei' of the
Committee on Grievances. Accordingly, the Special Referee sustained the
affirmative defense raised by the respondent.
Based on the respondent’s stipulation dated January 12, 2001, and the
evidence adduced, we conclude that the Special Referee erred in sustaining
the affirmative defense raised by the respondent. Accordingly, the
respondent’s motion to confirm the Special Referee’s report, which was
joined by the petitioner, is denied.
c?
c Ch. io________Bias in (and out of) the Courtroom__________ 279
c In determining an appropriate measure of discipline to impose, we
have considered the respondent’s disciplinary history, which includes an
o admonition dated November 19, 1996, and a one-year suspension * * * .
Under the totality of the circumstances, the respondent is censured based
o upon the disciplinary action taken by the SDNY.
o ORDERED that the respondent’s motion to confirm the Special
Referee’s report is denied to the extent that the affirmative defense raised
c by the respondent is dismissed; and it is further,
ORDERED that the motion by the petitioner to impose discipline upon
the respondent is granted; and it is further,
Cj ORDERED that the respondent is censured for his professional
misconduct.
c
o
In the Matter of Hammer
c Supreme Court of South Carolina, 2011.
395 S.C. 385, 718 S.E.2d 442.
c
Per Curiam.
c In this attorney disciplinary matter, respondent and the Office of
Disciplinary Counsel (ODC) have entered into an Agreement for Discipline
o by Consent * * * . In the Agreement, respondent admits misconduct and
Q consents to any sanction ranging from an admonition to a definite
suspension not to exceed six (6) months. * * * In addition, respondent
o agrees to complete the Ethics School portion of the Legal Ethics and
Practice Program within one (1) year of the date of his reinstatement to the
c practice of law and, further, to any terms of psychological counseling the
Court might deem appropriate.
c We accept the Agreement * * *. [R]espondent shall continue
psychological counseling for two (2) years; his counselor shall file quarterly
c reports addressing his progress with the Commission on Lawyer Conduct
Q (Commission); and, an Investigative Panel of the Commission may extend
the counseling requirement at the conclusion of the two (2) year period if it
C deems it necessary. The facts, as set forth in the Agreement and as
admitted in argument, are as follows:
C Facts
O Matter I
In 2005, respondent and his wife separated and, in 2007, became
O involved in a contentious divorce. Between July 2007 and February 2008,
respondent was charged with criminal domestic violence, two counts of
c trespassing, second degree burglary, stalking, and simple assault. As a
c
G
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280___________ Bias in (and out of) the Courtroom________Ch. io
result of these arrests, respondent was placed on interim suspension. The
criminal charges involved matters with respondent’s former wife and
former sister-in-law.
All charges against respondent were later dismissed with prejudice
and the solicitor issued a letter stating that, after thorough and complete
investigation, he believed that the matters did not rise to the level of
criminal wrongdoing and that all of the matters should be dealt with by the
Family Court.
Respondent denies he committed any crimes as alleged by his former
wife and former sister-in-law. However, he admits he could have used
better judgment.
Matter II
In 2010, after the criminal charges were dismissed, respondent filed a
pro se action against the City of Columbia alleging false arrest. In the
course of representing himself in the matter, respondent subpoenaed
Witness A, a former neighbor and long-time friend of both he and his
former wife, to give a deposition. Witness A was not a witness to any of the
matters out of which the criminal charges against respondent arose;
however, Witness A had provided an affidavit in support of respondent’s
former wife during the divorce proceeding. Respondent also subpoenaed
two other former neighbors who had supported his former wife during the
divorce proceedings. Respondent admits he subpoenaed the three
witnesses to take their depositions as he believed that they might have
information regarding the allegations of criminal wrongdoings made by his
former wife. Respondent fails to explain why the testimony of any of these
witnesses was pertinent to his suit against the City.
Over the course of two days, respondent deposed Witness A for over
five hours, including breaks. Respondent admits he asked improper
questions during the deposition. He further admits that there were times
when he talked over the deponent and there were instances where he did
not let Witness A finish his answer.
In addition, respondent admits he asked a number of improper
questions of Witness A. In particular, he asked Witness A about his sexual
orientation and whether he had been tested for HIV. He also asked Witness
A whether he had Alzheimer’s Disease when the witness’ recollection was
incomplete. Respondent admits the question should not have been asked
in this fashion.
•k 'ie k

Law
Respondent admits that his misconduct constitutes grounds for
discipline [under various rules including] Rule 4.4(a) (in representing
Ch. io________Bias in (and out of) the Courtroom__________ 281
client, lawyer shall not use means that have no substantial purpose other
than to embarrass, delay, or burden third person, or use methods of
obtaining evidence that violate the legal rights of person), Rule 8.4(a) (it is
professional misconduct for lawyer to violate the Rules of Professional
Conduct), and Rule 8.4(e) (it is professional misconduct for lawyer to
engage in conduct that is prejudicial to the administration of justice).
Conclusion
We accept the Agreement for Discipline by Consent and impose a six
(6) month definite suspension from the practice of law. * * *

Age Bias’
There are approximately forty million people who are age
sixty-five and over in the United States, accounting for 14.1
percent of the population—or about one in every eight Americans.
By 2050, the population age sixty-five and older is expected to
more than double, reaching 88.5 million and representing just
over one in five U.S. residents; similarly the increase in the
number of those eighty-five and older is projected to be even more
dramatic—more than tripling in number to constitute 4.3 percent
of the total population. Although there are many older
individuals, and although those numbers are projected to
increase, there are some serious biases against older individuals.
Age bias is a particularly interesting type of bias because,
unlike race and gender, everyone eventually gets older. Not
everyone is going to be an African-American, and not everyone is
going to be a female—but old age is one category to which most of
us eventually will belong. Age bias is prevalent in the United
States, where older people tend to be stigmatized and
marginalized.
Ageist attitudes, beliefs, and behaviors have been called “the
most socially accepted and encouraged types of prejudice” today.
People are less likely today to make overtly racist or sexist
comments, but ageist comments are still generally socially
acceptable. Although there are some positive stereotypes about
older individuals, negative assumptions and stereotypes are far
more numerous and pervasive.
Common ageist assumptions and stereotypes include beliefs
that older people tend to be pretty much alike; that older people

’ This material is excerpted, with permission, from Debra Lyn Bassett, Silencing Our
Elders. 15 Nev. L.J. 519, 526-528 (2015).
282___________ Bias in (and out of) the Courtroom________Ch. 10
are like children; that physical and mental decline is an inevitable
consequence of aging; that most older people are sick or disabled;
that older' people have no interest in, nor capacity for, sexual
relations; and that a physical disability indicates a cognitive
disability. Older individuals typically are considered “useless,
declining, ... draining society’s health and social resources . ..
[and] suffering from dementia and incompetence.” Assumptions
and stereotypes about older individuals frequently result in ageist
practices—such as using disrespectful or patronizing speech or
behavior. People who hold negative stereotypes of older
individuals are often unaware that they are operating merely on
stereotypes, and their ageism often goes unchallenged.
However, the so-called “conventional wisdom” about older
individuals often simply is not true. For example, one popular
misconception is that most older people suffer from dementia;
however, dementia occurs far less often than most people imagine.
Only 5 to 8 percent of people over the age of sixty-five suffer from
some form of dementia. Another popular misconception is that a
large proportion of older individuals live in nursing homes.
However, only 4 to 5 percent of older people live in nursing homes
at any point in time; the vast majority of older individuals live
independently in the community. Examining our own beliefs and
attitudes for erroneous assumptions and stereotypes is crucial
when working with older individuals.
To combat stereotypes of aging, awareness of ageist beliefs,
attitudes, and practices is necessary. One recent study showed
that there was a significant difference between views of older
people held by undergraduate social work students and the views
of graduate social work students. The undergraduate social work
students were generally aware of the concept of ageism, but they
nevertheless widely viewed all older individuals as incompetent—
they did not believe that ageism impacted their perceptions of the
competence of older individuals and they did not recognize ageism
in their own behavior or the behavioi' of others. For example, one
widely held belief was that “people over age [seventy] shouldn’t
drive an automobile.” Graduate social work students, however,
exhibited far less ageism, which the study largely attributed to
the fact that the graduate students had “been exposed to aging
content in gerontological courses”—in other words, they had
received diversity education in the area of aging.

A consistent message in recent articles and reports is the necessity of

avoiding bias as a general matter. Prejudice and bias are forms of
Ch. 10Bias in (and out of) the Courtroom___________________ 283
disrespect, and undermine our legal system. [See Marsha S. Stern,
Courting Justice: Addressing Gender Bias in the Judicial System, 1996
Ann. Surv. Am. L. 1.] Accordingly, lawyers and judges must also be aware
of the potential for prejudice and bias more generally, including such areas
as bias on the basis of obesity or rural location. [See Debra Lyn Bassett,
Ruralism, 88 Iowa L. Rev. 273 (2003); Adam Benforado, Jon Hanson &
David Yosifon, Broken Scales: Obesity and Justice in America, 53 Emory
L.J. 1645 (2004).]

II. IMPLICIT/UNCONSCIOUS BIAS

Deconstruct and Superstruct: Examining
Bias Across the Legal System
Debra Lyn Bassett
46 UC Davis L. Rev. 1563,1567-1573 (2013)*

The fourth edition of Webster’s New World College Dictionary defines

“bias” as “a mental leaning or inclination; partiality; bent[,] * * * to cause
to have a bias; influence; prejudice * * * .” In the law, we have tended to
think of bias in the straightforward context of claims of employment or
housing discrimination. More recently, awareness has increased that
eyewitness identifications and identifications from criminal line-ups can be
skewed by bias. However, the potential for bias reaches more
fundamentally across every participant category within the legal system.
Law is a distinctively human activity, involving a series of human
actors—clients, lawyers, judges, jurors, witnesses, and court personnel.
The potential for bias reaches across every area of the law through all of
these human actors in legal proceedings. For example, the potential for
bias extends to layperson-witnesses, whose identification of perpetrators
or characterization of events may be tainted by bias. The potential for bias
extends to attorneys, who may favor one client over another, adopt
assumptions, or assert peremptory challenges due to biased stereotypes or
expectations. The potential for bias extends to jurors, who may approach
legal proceedings with biases or prejudices that impact their perceptions
and their decision-making in evaluating the participants in those
proceedings. And the potential for bias extends to judges, who may be
biased in favor of (or against) particular claims, particular litigants, or
particular lawyers.
Psychological studies have demonstrated the existence of unconscious
bias—a phenomenon to which all these categories of participants in legal
proceedings are susceptible. * * *

* Reprinted with permission.

 o
284 Bias in (and out of) the Courtroom Ch. 10 cd
o
Until the 1980s, most psychologists believed that one’s attitudes, Q
including stereotypes and prejudices, operated consciously—that is, _____________
psychologists believed that individuals were aware of their own biases and Q
prejudices. Due to this belief, researchers typically relied upon individuals’
self-reporting in measuring attitudes and stereotypes. Beginning in the O
1980s, and continuing with an explosion of research in the 1990s,
psychologists documented that attitudes have both “explicit” and “implicit” ■—)
indices. Explicit attitudes are those that operate consciously, whereas
implicit attitudes operate unconsciously. '
The best known psychological studies of unconscious bias are those Q
involving the Implicit Association Test (IAT), developed by Professors
Anthony Greenwald, Debbie McGee, and Jordan Schwartz, and expanded Q
by Professors Greenwald, Mahzarin Banaji, and Brian Nosek. The IATs
popularity is demonstrated not only by the wealth of psychological and O
legal commentary referring to the test, but also by the test’s integration
into popular culture, including its ready—and free—availability on the CD
Internet, its discussion in a best-selling book, its mention in stories in ____________
newspapers and television, and its inclusion in YouTube. CD
The IAT, which is taken on a computer, employs latent response or CD
reaction time in the pairings of images of target groups (such as white faces
and black faces) with words representing attributes (such as good or bad) O
by having participants press designated computer keys. Participants
respond more quickly when they perceive a strong correlation between the CD
target group and the attribute. “When highly associated targets and
attributes share the same response key, participants tend to classify them O
quickly and easily, whereas when weakly associated targets and attributes
share the same response key, participants tend to classify them more o
slowly and with greater difficulty.” The repeatedly validated IAT has
consistently reflected that most people harbor unconscious biases in a CD
variety of areas, including race, gender, and disability.
There is a difference, of course, between having unconscious biases
CD
versus acting on those biases—a distinction that the IAT creators have O
repeatedly noted, even if occasionally some of the test’s subsequent
enthusiasts or detractors have not. In an early interview with Professor CD
Banaji, for example, she explained that the IAT “do[es] not measure
actions. The [IAT], for example, does not measure racism as much as a race CD
bias.” Professor Banaji “tells * * * volunteers who show biases [on the IAT]
that it does not mean they will always act in biased ways—people can CD
consciously override their biases.”
CD
Indeed, there is an extensive psychological literature suggesting that
unconscious biases can be overcome, at least temporarily. Measures CD
subjected to psychological study that reflect promise in overriding
O
O
CD
Ch. 10 Bias in (and out of) the Courtroom 285
unconscious biases cover an array of approaches, including mental imagery
of counter-stereotypes, exposure to actual admired exemplars who are
counter-stereotypical, diversity within the operating environment,
exposure to multicultural viewpoints or diversity education programs,
educating individuals about unconscious bias, and appealing to
individuals’ beliefs in equality and fairness.
In sum, due to unconscious bias, it is possible for individuals who
claim—and believe—that they are not prejudiced nevertheless to harbor
stereotypes and biases. However, the fact that unconscious bias does not
automatically equate to overt racism is significant—as is the ability to
override one’s unconscious biases.
***
We have seen that most people are subject to biases that operate
unconsciously * * * . Fortunately, we have also seen that several methods
have shown potential promise in overriding these biases—which suggests
that these biases can be reduced, if not eliminated, through the use of
appropriate awareness-enhancing measures. The American Bar
Association’s Section on Litigation has already initiated a program that
hopes to increase the judiciary’s self-awareness of unconscious bias, and
there have been three pilot judicial education programs addressing
unconscious bias in California, Minnesota, and North Dakota. * * *
***
In a sense, law is about human weaknesses and human failings.
Criminal activity, misunderstandings, jealousies, and bad behavior all
form bases for actionable legal consequences. We refer to the procedures by
which we obtain legal remedies as our justice system, and intrinsic to the
integrity of the “justice system” is fairness. Achieving fairness in legal
proceedings potentially can be limited by another human weakness or
failing—the automatic activation of unconscious bias. Because unconscious
bias has the potential to undermine the fairness of legal proceedings,
efforts to minimize the effects of unconscious bias within the participants
to such proceedings is a desirable goal toward furthering fundamental
fairness.

One area in which court decisions have expressed concern about the
existence of unconscious bias is the use of peremptory challenges. What
is/are the shortcomings of the current Batson approach to challenging the
use of peremptory challenges during jury selection? In what way(s) might
the current approach be modified to integrate new understandings of
unconscious bias?
286___________ Bias in (and out of) the Courtroom________ Ch. io
Miller-El v. Dretke
Supreme Court of the United States, 2005.
545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196.

Justice Breyer, concurring.

In Batson u. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1986), the Court adopted a burden-shifting rule designed to ferret out the
unconstitutional use of race in jury selection. In his separate opinion,
Justice Thurgood Marshall predicted that the Court’s rule would not
achieve its goal. The only way to “end the racial discrimination that
peremptories inject into the jury-selection process,” he concluded, was to
eliminatfe] peremptory challenges entirely. Id., at 102—103, 106 S.Ct. 1712
(concurring opinion). Today’s case reinforces Justice Marshall’s concerns.
I
To begin with, this case illustrates the practical problems of proof that
Justice Marshall described. As the Court’s opinion makes clear, Miller-El
marshaled extensive evidence of racial bias. But despite the strength of his
claim, Miller-El’s challenge has resulted in 17 years of largely unsuccessful
and protracted litigation—including 8 different judicial proceedings and 8
different judicial opinions, and involving 23 judges, of whom 6 found the
Batson standard violated and 16 the contrary.
The complexity of this process reflects the difficulty of finding a legal
test that will objectively measure the inherently subjective reasons that
underlie use of a peremptory challenge. Batson seeks to square this circle
by (1) requiring defendants to establish a prima facie case of
discrimination, (2) asking prosecutors then to offer a race-neutral
explanation for their use of the peremptory, and then (3) requiring
defendants to prove that the neutral reason offered is pretextual. * * * But
Batson embodies defects intrinsic to the task.
At Batson’s first step, litigants remain free to misuse peremptory
challenges as long as the strikes fall below the prima facie threshold level.
See 476 U.S., at 105, 106 S.Ct. 1712 (Marshall, J., concurring). At Batson’s
second step, prosecutors need only tender a neutral reason, not a
“persuasive, or even plausible,” one. Purkett v. Elem, 514 U.S. 765, 768,115
S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam); see also id., at 766, 115
S.Ct. 1769 (“mustaches and the beards look suspicious”). And most
importantly, at step three, Batson asks judges to engage in the awkward,
sometimes hopeless, task of second-guessing a prosecutor’s instinctive
judgment—the underlying basis for which may be invisible even to the
prosecutor exercising the challenge. See 476 U.S., at 106, 106 S.Ct. 1712
(Marshall, J., concurring) (noting that the unconscious internalization of
racial stereotypes may lead litigants more easily to conclude “that a
prospective black juror is ‘sullen,’ or ‘distant,’ ” even though that
characterization would not have sprung to mind had the prospective juror
 Ch. ioBias in (and out of) the Courtroom___________________ 287
c been white); see also Page, Batson’s Blind Spot: Unconscious Stereotyping
and the Peremptory Challenge, 85 B.U. L. Rev. 155 161 (2005) (“[sjubtle
c forms of bias are automatic, unconscious, and unintentional” and “escape
o notice, even the notice of those enacting the bias” * * *. In such
circumstances, it may be impossible for trial courts to discern if a “seat-of-
o the-pants” peremptory challenge reflects a “seat-of-the-pants” racial
stereotype. Batson, 476 U.S., at 106, 106 S.Ct. 1712 (Marshall, J.,
o concurring) * * * ,
Given the inevitable clumsy fit between any objectively measurable
o standard and the subjective decisionmaking at issue, I am not surprised to
find studies and anecdotal reports suggesting that, despite Batson, the
c discriminatory use of peremptory challenges remains a problem. See, e.g.,
c Baldus, Woodworth, Zuckerman, Weiner & Broffitt, The Use of Peremptory
Challenges in Capital Murder Trials: A Legal and Empirical Analysis, 3 U.
c Pa. J. Const. L. 3, 52-53, 73, n.197 (2001) (in 317 capital trials in
Philadelphia between 1981 and 1997, prosecutors struck 51% of black
o jurors and 26% of nonblack jurors; defense counsel struck 26% of black
jurors and 54% of nonblack jurors; and race-based uses of prosecutorial
o peremptories declined by only 2% after Batson); Rose, The Peremptory
Challenge Accused of Race or Gender Discrimination? Some Data from One
c County, 23 Law and Human Behavior 695, 698-699 (1999) (in one North
Carolina county, 71% of excused black jurors were removed by the
c prosecution; 81% of excused white jurors were removed by the defense);
Tucker, In Moore’s Trials, Excluded Jurors Fit Racial Pattern, Washington
c Post, Apr. 2, 2001, p. Al (in D.C. murder case spanning four trials,
prosecutors excused 41 blacks or other minorities and 6 whites; defense
o counsel struck 29 whites and 13 black venire members); Mize, A Legal
Discrimination; Juries Aren’t Supposed to be Picked on the Basis of Race
o and Sex, But It Happens All the Time, Washington Post, Oct. 8, 2000, at B8
(authored by judge on the D.C. Superior Court); see also Melilli, Batson in
o Practice: What We Have Learned About Batson and Peremptory Challenges,
c 71 Notre Dame L. Rev. 447, 462-464 (1996) (finding Batson challenges’
success rates lower where peremptories were used to strike black, rather
c than white, potential jurors) * * *
II
***
c * * * [T]he use of race-and gender-based stereotypes in the jury­
selection process seems better organized and more systematized than ever
c before. See, e.g., Post, A Loaded Box of Stereotypes: Despite Batson, Race,
Gender Play Big Roles in Jury Selection, Nat. L.J., Apr. 25, 2005, pp. 1, 18
c (discussing common reliance on race and gender in jury selection). For
example, one jury-selection guide counsels attorneys to perform a
c “demographic analysis” that assigns numerical points to characteristics
c
o
o
288___________ Bias in (and out of) the Courtroom________ Ch. io o
such as age, occupation, and marital status—in addition to race as well as o
gender. See V. Starr & M. McCormick, Jury Selection 193-200 (3d ed.
2001). Thus, in a hypothetical dispute between a white landlord and an o
African-American tenant, the authors suggest awarding two points to an
African-American venire member while subtracting one point from her o
white counterpart. Id., at 197—199.
***
o
III o
I recognize that peremptory challenges have a long historical pedigree. o
They may help to reassure a party of the fairness of the jury. But long ago,
Blackstone recognized the peremptory challenge as an “arbitrary and CD
capricious species of [a] challenge.” 4 W. Blackstone, Commentaries on the
Laws of England 346 (1769). If used to express stereotypical judgments CD
about race, gender, religion, or national origin, peremptory challenges
betray the jury’s democratic origins and undermine its representative o
function. * * * A. Amar, The Bill of Rights 94—96 (1998) (describing the
Founders’ vision of juries as venues for democratic participation); see also o
Stevens, Foreward, Symposium: The Jury at a Crossroad: The American
Experience, 78 Chi.-Kent L. Rev. 907, 907—908 (2003) (citizens should not
o
be denied the opportunity to serve as jurors unless an impartial judge
states a reason for the denial, such as with a strike for cause). The
o
“scientific” use of peremptory challenges may also contribute to public
cynicism about the fairness of the jury system and its role in American
o
government. See, e.g., S. O’Connor, Juries: They May Be Broken But We o
Can Fix Them, Chautauqua Institution Lecture, July 6, 1995. And, of
course, the right to a jury free of discriminatory taint is constitutionally o
protected—the right to use peremptory challenges is not. * * *
Justice Goldberg, dissenting in Swain v. Alabama, 380 U.S. 202, 85 o
S.Ct. 824, 13 L.Ed.2d 759 (1965), wrote, “Were it necessary to make an
absolute choice between the right of a defendant to have a jury chosen in
CD
conformity with the requirements of the Fourteenth Amendment and the
right to challenge peremptorily, the Constitution compels a choice of the
CD
former.” Id., at 244, 85 S.Ct. 824; see also Batson, 476 U.S, at 107,106 S.Ct. CD
1712 (Marshall, J., concurring) (same); Edmonson v. Leesville Concrete Co.,
500 U.S. 614, 630, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (opinion for the O
Court by Kennedy, J.) (“[I]f race stereotypes are the price for acceptance of
a jury panel as fair, the price is too high to meet the standard of the CD
Constitution”). This case suggests the need to confront that choice. In light
of the considerations I have mentioned, I believe it necessary to reconsider CD
Batson’s test and the peremptory challenge system as a whole. * * *
O
o
Ch. 10________ Bias in (and out of) the Courtroom__________ 289
o City of Seattle v. Erickson
o Supreme Court of Washington, 2017.
188 Wash.2d 721, 398 P.3d 1124.
o Owens, J.
c In 2013, Matthew Erickson, a black man, was charged in Seattle
Municipal Court with unlawful use of a weapon and resisting arrest. After
Q voir dire, the City of Seattle (City) exercised a peremptory challenge
against the only black juror on the jury panel. After the jury was empaneled
c and excused from the courthouse with the rest of the venire, Erickson
objected to the peremptory challenge, claiming the strike was racially
o motivated. The court found that there was no prima facie showing of racial
discrimination and overruled Erickson’s objection.
o Batson v. Kentucky, 476 U.S. 79 (1986), guarantees a jury selection
c process free from racial animus. Yet, we have noted that our Batson
protections are not robust enough to effectively combat racial
o discrimination during jury selection. We have repeatedly signaled our
desire to better effectuate the equal protection guarantees espoused in
o Batson. However, we had not yet found the opportunity to do so. Now, by
explicitly asking this court to amend our Batson analysis and squarely
c briefing the issue, Erickson has provided that opportunity. As a threshold
matter, we find that Erickson’s Batson challenge was timely.... We amend
o our Batson framework and hold that the peremptory strike of a juror who
is the only member of a cognizable racial group constitutes a prima facie
c showing of racial discrimination requiring a full Batson analysis by the
trial court.
c *★*
c Batson created a three-part test to replace the “crippling burden of
proof’ previously required when attempting to prove a racially motivated
o strike. State v. Saintcalle, 178 Wash.2d 34, 43-44, 309 P.3d 326 (2013)
o (plurality opinion) (quoting Batson, 476 U.S. at 92, 106 S.Ct. 1712). First,
the defendant must establish a prima facie case that “gives rise to an
c inference of discriminatory purpose.” Batson, 476 U.S. at 94, 106 S.Ct.
1712. Second, if a prima facie case is made, the burden shifts to the
c prosecutor to provide an adequate, race-neutral justification for the strike.
Id. Finally, if a race-neutral explanation is provided, the court must weigh
o all relevant circumstances and decide if the strike was motivated by racial
animus. Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162
o L.Ed.2d 129 (2005) (quoting Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct.
1769, 131 L.Ed.2d 834 (1995) (per curiam)).
o Though the United States Supreme Court provided this framework, it
o left the states to establish rules for the “particular procedures to be
followed upon a defendant’s timely objection to a prosecutor’s challenges.”
c Batson, 476 U.S. at 99, 106 S.Ct. 1712.... A trial judge’s decision under

c
o
 o
290Bias in (and out of) the CourtroomCh. 10
o
the original Batson test is entitled great deference and will be reversed only
if the defendant can show it was clearly erroneous. Hernandez v. New York, Q
500 U.S. 352, 364, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). However, this
court has great discretion to amend or replace the Batson requirements if Q
circumstances so require. See Saintcalle, 178 Wash.2d at 51, 309 P.3d 326.
*** O
[W]e find that Erickson’s objection was timely and that the municipal Q)
court erred when it failed to infer racial bias from the dismissal of the only
black juror on the jury panel. O
★★★
o
As noted above, the United States Supreme Court has left it to the
states to provide Batson procedures. ... Washington trial courts have o
traditionally given great discretion to findings of prima facie
discrimination under Batson. and we review such traditional findings for o
abuse of that discretion. State v. Hicks, 163 Wash.2d 477, 490-91, 181 P.3d
831 (2008). However, we also have the power to determine, under o
appropriate circumstances, whether the traditional Batson analysis should
be amended or replaced to ensure the promise of equal protection. o
Saintcalle. 178 Wash.2d at 51, 309 P.3d 326.
*** o
We now . . . adopt a bright-line rule. The purpose of Batson is to ensure O
that jury selection proceedings are free from racial discrimination. To
create a prima facie case of racial discrimination, a defendant must first
demonstrate that the struck juror is a member of a “cognizable racial
group.” Batson, 476 U.S. at 96,106 S.Ct. 1712. Though a pattern of striking
multiple jurors may demonstrate racial animus, “[t]he Constitution forbids Q
striking even a single prospective juror for a discriminatory purpose.”
Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 Q
(2008) (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir.
1994)). O
Here, the trial court erred in the first step of its Batson analysis. The
court noted that it could not discern a pattern of discriminatory strikes in o
part because other people of color remained on the jury. It found further
that because there were other people of color, the jury was “diverse.” With o
these findings, the court ruled Erickson had not provided a prima facie o
showing of discrimination.
The trial court improperly applied the first step of the Batson analysis. o
First, it is misguided to infer that leaving some members of cognizable
racial groups on a jury while striking the only African American member o
proves the prosecutor’s strike was not racially motivated. Batson is
concerned with whether a juror was struck because of his or her race, not o
the level of diversity remaining on the jury. Saintcalle, 178 Wash.2d at 42,
o
o
o
Ch. 10________ Bias in (and out of) the Courtroom__________ 291
309 P.3d 326. In addition, a Batson violation can occur if even one juror is
struck. We have noted that “[a] single invidiously discriminatory
governmental act is not immunized by the absence of such discrimination
in the making of other comparable decisions.” Hicks, 163 Wash.2d at 491,
181 P.3d 831 (internal quotation marks omitted) (quoting Batson, 476 U.S.
at 95, 106 S.Ct. 1712). Though a pattern is informative, it is not necessary.
In addition, Erickson made his prima facie showing of discrimination.
He challenged the prosecutor’s peremptory strike based on the fact that
juror 5 was the only black juror on the panel. The municipal court should
have followed the example of the trial court in Hicks, at least finding a
prima facie case out of “an abundance of caution.” Id. at 484,181 P.3d 831.
This single strike, absent other circumstances showing legitimate grounds,
was enough to trigger a prima facie finding. The trial court improperly
relied only on the absence of a pattern and the presence of other nonwhite
jurors to come to its conclusion. We find the trial court erred in its first step
of the Batson analysis and Erickson properly made a prima facie showing
of racial discrimination.
In light of these errors, we have broad discretion to alter the Batson
framework to more adequately recognize and defend the goals of equal
protection. Saintcalle, 178 Wash.2d at 51, 309 P.3d 326. In the past, this
court has provided great discretion to the trial court when it comes to the
finding of a prima facie case pursuant to a Batson challenge. To ensure a
robust equal protection guaranty, we now limit that discretion .... We
hold that the trial court must recognize a prima facie case of discriminatory
purpose when the sole member of a racially cognizable group has been
struck from the jury. The trial court must then require an explanation from
the striking party and analyze, based on the explanation and the totality
of the circumstances, whether the strike was racially motivated. Batson,
476 U.S. at 94,106 S.Ct. 1712; Saintcalle, 178 Wash.2d at 42, 309 P.3d 326.
This alteration does not change the basis for a Batson challenge. The
evil of racial discrimination is still the evil this rule seeks to eradicate.
Rather, this alteration provides parties and courts with a new tool,
allowing them an alternate route to defend the protections espoused by
Batson. A prima facie case can always be made based on overt racism or a
pattern of impermissible strikes. Now, it can also be made when the sole
member of a racially cognizable group is removed using a peremptory
strike.
***
Traditionally, the remedy for this error would be to remand to the trial
court fox* a complete three-part analysis as the United States Supreme
Court did in Batson itself. 476 U.S. at 100, 106 S.Ct. 1712. But Erickson
urges that if we adopt a new bright-line rule and find a prima facie case of
discrimination, we should remand foi’ a new trial. We agree. The trial
 o
292___________ Bias in (and out of) the Courtroom________ Ch. 10
O
court’s in-person examination of the credibility and demeanor of the
O
prosecutor and jury is essential in a Batson analysis. Hicks, 163 Wash.2d
at 493, 181 P.3d 831. Here, the passage of time since the ruling would make
O
this analysis problematic. Erickson’s presiding judge has left the Seattle o
municipal bench. Even if he had not, he heard the original challenge in
October 2014, two and a half years ago. It would be unreasonable to require o
the trial court to recall and evaluate the prosecutor’s demeanor and
credibility after that passage of time, let alone recall and evaluate the jury. o
It would also be inappropriate to dismiss Erickson’s charges outright. See
State v. Grenning, 169 Wash.2d 47, 60, 234 P.3d 169 (2010) (“[Ojutside of o
reversal for insufficiency of the evidence . . ., outright dismissal is rarely
granted.”). However, remand for a new trial is generally appropriate when o
other rights, including trial rights, have been violated. See id. at 61, 234
P.3d 169 .... Because of the unavailability of the original trial judge and o
the stretch of time since the original challenge, we remand the case for a
new trial. o
CONCLUSION o
We have repeatedly recognized that Batson is a particularly difficult
hurdle to overcome. As Justice Wiggins noted in Saintcalle, “Batson ... o
appears to have created a crippling burden, making it very difficult for
defendants to prove discrimination even where it almost certainly exists.”
o
178 Wash.2d at 46, 309 P.3d 326. This underscores the need to amend our
procedures and ensure that jury selection is more secure from the threat of
o
racial prejudice. As a threshold matter, we find that Erickson’s Batson o
challenge was timely. More significantly, we adopt [a] bright-line rule. We
hold that the peremptory strike of a juror who is the only member of a o
cognizable racial group on a jury panel constitutes a prima facie showing
of racial motivation. The trial court must ask for a race-neutral reason from O
the striking party and then determine, based on the facts and surrounding
circumstances, whether the strike was driven by racial animus. O
We reverse and remand to the trial court for a new trial. o
[The concurring opinion of Stephens, J., is omitted.]
o
The California courts have created three videos that explore research
into unconscious decision-making processes, as well as research into Q
overriding bias. These videos are available at www.courtinfo.ca.gov/cjer/
857.htm. Q
---------- a
o
o
o
o
Ch. 10 Bias in (and out of) the Courtroom 293
Multiple Choice Questions
Answer these questions using the definitions found
at the end of Chapter Two.
1. Several associates from the mid-size law firm of Harrison & Malloy
went out together for dinner at a local restaurant. During the course of the
dinner, two members of the group confided that they were quite put off by the
behavior of a male colleague, which they characterized as effeminate and as
indicative of homosexuality.
A. The First Amendment protects the associates’ comments.
B. Although the associates’ comments reflect bias, under these
circumstances the Model Rules contain no prohibition.
C. The associates’ comments reflect bias and therefore the
associates are subject to discipline.
D. The associates’ comments do not reflect bias because they are
entitled to their personal opinions.
2. Matthew Fontaine is confined to a wheelchair as the result of an
automobile accident ten years ago. He practices law as a sole practitioner.
Although Matthew generally handles non-litigation matters, he was persuaded
to accept a litigation case to help “a friend of a friend.” In the course of trial,
Matthew asked to approach the bench in order to discuss a matter of some
confidence. Due to the height of the bench, and Matthew’s inability to stand,
Matthew asked the judge to come around to the front of the bench in order to
maintain the confidentiality of the discussion. The judge refused, and stated,
‘This is my court. If you people insist on practicing law, you have to deal with
life’s realities instead of asking for special favors.”
A. The judge’s response was appropriate.
B. The judge’s response was inappropriate because he was required
to accommodate Matthew’s request.
C. The judge’s response reflects bias and he is potentially subject to
discipline.
D. The judge’s response does not reflect bias but he should have
sought some means of preserving confidentiality.
3. Charles Howard is a partner with a large international law firm.
Charles finds one of his new clients, Tiffany Green, very attractive. Charles
has been flirting with Tiffany and has asked her out to lunch and dinner on
several occasions.
A. Charles’s personal life is his business; a lawyer’s personal life is
not regulated by the Model Rules.
B. Charles has not yet violated the Model Rules, but his firm may
prohibit its lawyers from dating clients.
 o
294___________ Bias in (and out of) the Courtroom________Ch, 10
o
C. The Model Rules prohibit lawyers from dating clients and o
therefore Charles is subject to discipline.
o
D. The Model Rules permit relationships between lawyers and
clients so long as the relationship is consensual and no prejudice would o
result to the client.
4. Aaron Campbell is representing Bradley Whitehouse in a civil o
lawsuit in which Whitehouse allegedly wrongfully terminated the employment
of Brenda Gale, who had been Whitehouse’s housekeeper. Gale alleges she was o
fired after rebuffing Whitehouse’s sexual advances. Whitehouse is a
prominent, wealthy businessman. At trial, Campbell questioned Gale o
repeatedly about her sexual orientation, suggesting that Gale was a lesbian
who filed the lawsuit as an opportunistic attempt to extort damages from o
Whitehouse. Campbell’s line of questioning stemmed from his observation that
Gale was 31, never married, and unattractive. o
A. Campbell was required to provide a defense for his client, so he o
cannot be subject to discipline.
B. Although offensive, nothing in the ABA Model Rules prohibits
such tactics.
C. Only the judge presiding over the trial has any obligation to
o
address bias occurring in the courtroom. o
D. Campbell is subject to discipline.
Answers to the multiple choice questions will be found
o
in the Appendix at the end of the book. o
o
o
o
o
o
o
CD
o
o
O
O
CD
O
 Chapter Eleven

Conflicts of Interest—Lawyers,
Clients, and Third Parties
■■■

What This Chapter Covers

I. Respective Authority of Attorney and Client
II. Conflicts Created by Third Party Interference with the
Attorney-Client Relationship
A. Compensation from a Third Party
B. Independent Legal Judgment
C. Who Is the “Client”?
1. Insurer-Insured
2. Corporations and Other Entities
III. Conflicts between the Lawyer’s Interests and the Client’s
Interests
A. Business Transactions with the Client
B. Adverse Ownership, Possessory, or Security Interests
C. Interest in the Subject of the Litigation
D. Trial Lawyer as Witness
E. Gifts and Favors from a Client
F. Romantic Entanglements

Reading Assignment
Schwartz, Wydick, Perschbacher, & Bassett, Chapter 11.
ABA Model Rules:
Rules 1.2, 1.7, 1.8, 1.10, 1.13, 1.14, 1.18, 2.1, 3.7, and 5.4(c).
Supplemental Reading
Hazard & Hodes:
Discussion of ABA Model Rules 1.2, 1.7, 1.8, 1.10, 1.13, 1.14, 2.1, 3.7,
and 5.4(c).

295
 Conflicts of Interest—Lawyers,
296 Clients, and Third parties Ch. 11
Restatement (Third) of the Law Governing Lawyers §§ 15—16; 20—23; 26-
27; 36; 43; 121-124; 125-127; 131; 134-135 (2000).

Discussion Problems
1. Attorney Wharton’s law practice consists primarily of insurance
defense work. Hamilton Casualty Co. has hired her to defend Silas Combs
in a negligence case. The plaintiff in the case alleges that Combs’ rice field
was plowed negligently, so as to cause a large quantity of water to escape
into plaintiffs adjoining tomato field. The water caused plaintiff s tomatoes
to rot before harvest. Plaintiffs complaint demands $125,000 in damages.
Combs’ insurance policy with Hamilton Casualty has a top liability limit of
$100,000. After extensive discovery, the case was set for trial. Six weeks
before the trial date, plaintiffs lawyer called Wharton and offered to settle
the case for $90,000. What are Wharton’s ethical obligations in this
situation?
2. Regulations adopted pursuant to the Sarbanes-Oxley Act can be
found at 17 C.F.R. Part 205. These regulations impose a mandatory
reporting duty to the client’s chief legal officer or chief executive officer
when a securities lawyer becomes aware of credible evidence that the client
is materially violating a federal or state securities law. The CLO must
investigate and report back to the securities lawyer. If the securities lawyer
believes that the CLO did not achieve an appropriate response from the
client, the securities lawyer must report the evidence to the board of
directors, the audit committee of the board, or the outside directors.
Moreover, the regulations define “securities lawyer” broadly. Not only do
these regulations apply to lawyers who represent a securities issuer before
the Securities and Exchange Commission, and lawyers who transact
business with, or communicate with, the SEC. The regulations also apply
to lawyers who give advice about a document that will be filed with the
SEC, or who give advice about whether information must be filed with the
SEC. For example, a company might ask the litigator who is defending it
in a products liability case to write an opinion about the company’s
potential exposure in the case. If the litigator realizes that the opinion
letter will go into the company’s stock prospectus, the litigator has become
a “securities lawyer.” How do these provisions compare with ABA Model
Rule 1.13? [See generally Fred C. Zacharias, Coercing Clients: Can Lawyer
Gatekeeper Rules Work?, 47 B.C.L.Rev. 455 (2006).]
3. After attorney Sarah graduated from law school, she opened her
own law office in a small seaside village. She longs for a cottage on the
beach, but she has been unable to find one at the right price. Client Willis
has retained her to help him find a way out of his financial distress. Among
his few solid assets is a lovely cottage on a secluded end of the beach. Willis
 Conflicts of Interest—Lawyers,
Ch. 11____________ Clients, and Third Parties_______________ 297
has been, unable to pay the taxes on the cottage, and Sarah has advised
him to put it up for public auction.
a. At the auction, may Sarah have her brother bid for her
as undisclosed principal?
b. Suppose, instead, that Sarah simply agrees to buy the
cottage directly from Willis, subject to the tax debt. Under what,
if any, circumstances would that be proper?
c. Suppose, instead, that Sarah agrees to lend Willis
enough money to pay off the back taxes on his cottage. Under
what, if any, circumstances would that be proper?
4. Jefferson and Herchberger are involved in a boundary line suit
concerning twelve acres of land that lies in a valley between their two
farms. Lawyer Lennihan represents Herchberger in the suit.
a. May Lennihan purchase from Jefferson a 30% interest in
that twelve acres?
b. May Lennihan purchase from Herchberger a 30%
interest in that twelve acres?
c. May Lennihan agree with Herchberger to do the legal
work in exchange for a 30% interest in that twelve acres if
Herchberger wins the suit?
5. Client Curt hired attorney Annette to advise him during some
difficult business negotiations with Danforth Corporation. The
negotiations extended over many months; during that time, Annette
developed a good working relationship with Curt and a thorough
understanding of the factual and legal problems at hand. Only four people
were present at the negotiating sessions: Curt, Annette, Danforth’s vice-
president, and Danforth’s house counsel. Ultimately the negotiations
failed, and Danforth sued Curt. A key contested issue at trial will be
whether Curt made a certain statement during one of the negotiating
sessions. Curt wants Annette to represent him at trial, but Danforth has
moved to disqualify her on the ground that she may have to testify about
Curt’s making the alleged statement.
a. Should the court grant the motion to disqualify?
b. May Annette’s law partner, Elmwood, serve as Curt’s
trial lawyer?
c. Does your answer to either question depend on whether
Annette’s testimony would be for Curt or against Curt?
6. For many years, attorney Alice has looked after the legal and
financial affairs of her client Chadbourne, an aged widower. Chadbourne
has asked Alice to prepare a new will for him, but he does not know whom
 Conflicts of Interest—Lawyers,
298_______________ Clients, and Third Parties____________ Ch. 11
to name as executor. He does not want an institutional executor, and he
has no suitable friends or relatives.
a. May Alice suggest herself as executrix?
b. May Alice accept as thanks for all her kindness to
Chadbourne over the years a modest picture frame she has
admired when visiting Chadbourne’s townhome?
c. May Alice accept Chadbourne’s valuable townhome if
given to her as a gift? What if it is left to her in Chadbourne’s will?
7. The law firm of Shubert, DeWitt, & Howe specializes in family law
matters. The firm has three partners and four associate lawyers.
a. Partner Rhonda Howe is representing client Curt Callen
in a pending dissolution of marriage proceeding. Howe’s own
marriage was recently dissolved, so she is especially sympathetic
to Callen’s situation. On several occasions, she and Callen have
discussed Callen’s legal problems over long dinners. Howe now
finds herself quite attracted to Callen as a person, and she
believes the attraction is mutual. What advice would you give
Howe in this situation?
b. Partner Shubert has been asked to represent client
Cummings in a child custody dispute with Cummings’ ex-
husband. The ex-husband is represented by attorney Arnott, a
partnei- in a different law firm. Arnott and Shubert are engaged
to be married in the near future. Shubert believes that Cummings’
matter could be handled adequately by the senior associate in
Shubert’s firm. What advice would you give Shubert in this
situation?

I. ALLOCATING DECISION-MAKING
BETWEEN LAWYER AND CLIENT
Under the traditional understanding of the lawyer-client relationship,
the respective roles of lawyer and client are easy to state, but difficult to
apply. The primary relationship is that of agent and principal, but the
lawyer-agent’s professional obligations require adjustment of the
conventional agency relationship. Here is a statement of the more-or-less
standard view from the California Supreme Court:
The allocation of decision-making authority between client
and attorney is a difficult problem. It involves practical, ethical
and philosophical considerations. (See Burt, Conflict and Trust
Between Attorney and Client (1981) 69 Georgetown L.J. 1015;
Note, Balancing Competing Discovery Interests in the Context of
the Attorney-Client Relationship: A Trilemma (1983) 56
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Conflicts of Interest—lawyers,
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o So.Cal.L.Rev. 1115; Martyn, Informed Consent in the Practice of
c Law (1980) 48 Geo.Wash.L.Rev. 307; Spiegel, Lawyering and
Client Decisionmaking: Informed Consent and the Legal
Q Profession (1979) 128 U.Pa.L.Rev. 41; Spiegel, The New Model
Rules of Professional Conduct: Lawyer-Client Decision Making
o and the Role of Rules in Structuring the Lawyer-Client Dialogue,
1980 Am.Bar Found. Research J. 1003; Lehman, The Pursuit of a
c Client’s Interest (1979) 77 Mich.L.Rev. 1078.) Clear guidance on
the scope of an attorney’s implied and apparent authority and the
o legal consequences of the allocation of that authority would
benefit both attorneys and clients. Unfortunately, the majority
o fail to give any guidance.
A reading of the cases and authorities reveals that when
o courts refer to “substantial rights,” they mean important or
o “essential” rights, rights “ ‘affecting the merits of the cause’ ” or
“serious steps” in the litigation. For example, the decision to settle
o or dismiss a cause of action affects a “substantial right,” and an
attorney must obtain the client’s consent before taking either
c action. Similarly, because a “substantial right” is affected, an
attorney has no independent authority to waive the right to
c appeal, to eliminate an essential defense, to dispose of a client’s
property, or to stipulate to a finding of negligence irrespective of
Q the record.
When no substantial right is implicated, an attorney must be
free to act independently. It is essential to the efficient conduct of
the client’s case and the accomplishment of the client’s ultimate
goals that an attorney have the authority to make independent
decisions in the day-to-day management of civil litigation. This
authority “[allows] the lawyer-professional to apply his technical
expertise [.]” (Spiegel, The New Model Rules of Professional
Conduct: Lawyer-Client Decision Making and the Role of Rules in
Structuring the Lawyer-Client Dialogue, supra, Am. Bar Found.
Research J. at p. 1004.) It also protects the lawyer’s professional
reputation and preserves the lawyer’s role as an officer of the
court.
o The effective management of litigation requires independent
c decisions by the attorney regarding not only procedural matters
but also certain substantive matters—for example, it may include
the legal theories or arguments to be advanced. Routine and
technical matters, including those ordinary matters which arise
in the course of litigation, may be handled independently by the
attorney as a necessary aspect of the professional management of
o the case. On the other hand, decisions which affect “substantial

Q
C
O
 Conflicts of Interest—Lawyers,
300_________________ Clients, and Third Parties____________ Ch. 11

rights,” whether they be denominated “procedural” or

“substantive,” must involve the client.
Rather than define the standard as “substantial rights”
versus “procedural matters,” the inquiry should seek to
differentiate between decisions affecting important, substantial
rights and decisions on routine matters. This approach would
provide the practitioner with more useful guidance.
Blanton v. Womancare, Inc., 38 Cal.3d 396, 409-10, 212 Cal.Rptr. 151,
159-60, 696 P.2d 645, 653-55 (1985) (Bird, C.J., concurring).
Self-consciously adopting a "middle view” between the traditional view
that a client puts affairs in the lawyer’s hands, who then does what the
lawyer believes will best advance the client’s interests and a client­
centered view that treats the lawyer as servant of the client, the
Restatement also endorses a view “that the client defines the goals of the
representation and the lawyer implements them, but that each consults
with the other.” [Introductory Note to § 20, RESTATEMENT (THIRD) OF THE
Law Governing Lawyers (2000).] Under this view, except for certain
matters reserved for the client or for the lawyer to decide, the allocation of
authority between the lawyer and client is itself subject to consultation and
agreement between lawyer and client.
Applying these rules becomes even more complicated when the
identity of the client is elusive or when more than one representative
claims to speak for the client. In this chapter we first take up the problem
of conflicts between directions from the client and from others who may
purport to speak for the client or represent the “true” interests of the client.
We next take up the issue of determining just who is the client. Finally, the
chapter deals with conflicts between the interests of the client and those of
the client’s own lawyer. [See also ABA Model Rule 1.2 & its Comments.]

Beckwith Machinery Co. v. Travelers Indem. Co.

United States District Court, W.D. Pennsylvania, 1986.
638 F.Supp. 1179.

[Beckwith Machinery Company (“Beckwith”) sells and repairs earth

moving equipment made by Caterpillar Tractor Company. Trumbull
Corporation (“Trumbull”), a construction firm, bought some Caterpillar
earth scrapers from Beckwith. The scrapers broke down frequently, and
Trumbull eventually sued Beckwith and Caterpillar seeking three million
dollars in compensatory and punitive damages.
[Beckwith had a comprehensive general liability insurance policy
issued by Travelers Indemnity Company (“Travelers”). Beckwith notified
Travelers of Trumbull’s suit. Since it was clear that at least some of
Trumbull’s claims were covered by the insurance policy, Travelers hired a
Q
Conflicts of Interest—Lawyers,
C Ch. li_______________Clients, and Third Parties________________ 301
private law firm to defend the case, except for the claims pertaining to
punitive damages. Travelers advised Beckwith that it would not defend the
punitive damage claims and that Beckwith should retain separate counsel,
at its own expense, to defend that part of the case. Beckwith did hire
separate counsel, and the separate counsel advised Travelers that
C Beckwith was holding Travelers responsible for the defense and coverage
of the punitive damage claims.
[Thirteen months after Trumbull’s suit was filed, Travelers suddenly
notified Beckwith that it was denying coverage of all Trumbull’s claims and
was withdrawing its defense of Beckwith. Travelers thought about sending
Beckwith a reservation of rights letter or filing a declaratory judgment
action to resolve the coverage issue, but it never did either one. Beckwith’s
o separate counsel took over the entire defense and was ultimately able to
settle the case for $100,000 to be paid by Beckwith to Trumbull. Then
c Beckwith brought the present suit against Travelers for breach of the
contract of insurance.]
Q Count One of Beckwith’s Complaint alleges that Travelers breached
the terms of the manuscript insurance policy by withdrawing its defense of
c Beckwith and also by refusing to defend the punitive damages claims. * * *
Count Two alleges that Travelers refused to participate in settlement
discussions with Trumbull and breached the terms of the policy by not
paying the $100,000.00 to Trumbull since said payment was tendered for
o damages allegedly covered by the insurance policy. * * * Count Three,
o which is based on an estoppel theory, alleges that Travelers assumed the
complete defense of all compensatory damage claims of Trumbull for over
one year, which prevented Beckwith from discovering witnesses,
documents and facts relevant to its defense for that time period, and that
Beckwith relied on Travelers to defend those claims for the entire duration
of the Trumbull case and to pay any damage claims or settlements. * * *
The damages which Plaintiff seeks to recover on Counts 1-3 include the
$100,000.00 which it paid to settle the Trumbull case plus the costs,
expenses and attorneys’ fees related to the Trumbull case. * * *
[On cross-motions for summary judgment filed by Beckwith and
c Travelers, the court decided that Trumbull’s claims were at least partly
c covered by the policy of insurance. The court then discussed the duty to
defend, as follows.]
Q In the present case, before Travelers assumed the defense of the
Trumbull case, it had more than sufficient knowledge of the facts alleged
C in the Trumbull complaint to decide the issue of coverage on any available
ground, including timely notice of the occurrence. Nonetheless, Travelers
Q not only unconditionally assumed the defense of the Trumbull lawsuit for
the compensatory damage claims, but did not deny coverage for another 13
O months thereafter. When it finally did deny coverage, Travelers knew little
□

c
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Conflicts of Interest—Lawyers,
302 Clients, and third Parties Ch. 11 o
more than what the Trumbull complaint had told it [at the outset] * * * . o
As the following discussion will reveal, Travelers breached its duty to
defend irrespective of any ultimate disposition regarding coverage of the o
Trumbull claims.
The law of Pennsylvania is well settled regarding an insurer’s duty to
□
defend its insured. In consideration for the insured’s payment of premiums, o
the insurer becomes contractually obligated to defend its insured. * * * This
obligation arises whenever allegations against the insured state a claim o
which is potentially within the scope of the policy’s coverage, even if such
allegations are “groundless, false or fraudulent.” * * * There were two o
obligations undertaken by Travelers: the obligation to indemnify Beckwith
against Trumbull’s damages and the separate duty to defend a lawsuit o
covered by the policies. It is well settled that an insurer’s obligation to
defend is separate and distinct from its duty to indemnify; the insurer’s o
duty to defend is broader than its obligation to indemnify the insured. * * *
However, once a third party has raised allegations against an insured
D
which potentially fall within the coverage provided, the insurer is obligated o
to defend its insured fully until it can confine the possibility of recovery to
claims outside the coverage of the policy. * * * Therefore, it is clear" that o
where a claim potentially may become one which is within the scope of the
policy the insurer’s refusal to defend at the outset of the dispute is a o
decision it makes at its own peril. * * *
Conversely, [there is no principle of Pennsylvania law that the duty to
o
defend automatically attaches at the outset of the litigation and cannot o
afterwards terminate.] * * * Pennsylvania courts have held that an
insurance company is under no obligation to defend when the suit against o
its insured is based on a cause of action excluded from the policy’s coverage.
* * * “However, if coverage (indemnification) depends upon the existence or o
nonexistence of facts outside of the complaint that have yet to be
determined, the insurer must provide a defense until such time as the facts o
are determined, and the claim is narrowed to one patently outside of
coverage.” C. Raymond Davis & Sons, Inc. v. Liberty Mutual Insurance Co., o
467 F.Supp. 17, 19 (E.D.Pa.1979).
*** o
When the insurance company believes a claim is not covered, it may o
protect itself by a timely reservation of rights under the policy which fairly
informs the insured of its position. * * * Insurers who contemplate refusing o
to indemnify a claim must inform their insureds so as to allow them to
protect their interests and avoid detrimental reliance on indemnity. * * *
D
If an insurer undertakes to defend a claim under a reservation of rights it
is not precluded from denying coverage. * * * Under Pennsylvania law,
a
“reservation of rights” letters do not require the assent of the insured and o
are given the same effect as a nonwaiver agreement. * * *
o
o
o
 Conflicts of Interest—Lawyers,
Ch. 11______________ Clients, and Third Parties________________ 303
It is hornbook law that if an insurer assumes the insured’s defense
without sending the insured a reservation of rights letter or bringing a
declaratory relief action, the insurer will later be precluded from denying
coverage. See generally, 7C APPLEMAN, INSURANCE LAW AND
PRACTICE AT §§ 4689, 4694 (Berdal ed. 1979). Moreover, * * * if the
insurer affords representation without some understanding with its
insured, the carrier may later be estopped from asserting an otherwise
valid coverage defense. * * *
We now apply the above principles of law to the facts before us.
The Trumbull complaint, while not as specific in its allegations of
damages as it might have been, contained sufficient information to put
Travelers on notice that a claim of property damage, potentially covered by
its policy, was being raised against Beckwith, its insured.
***

Alternatively, even if Travelers had a legitimate coverage defense

regarding the Trumbull claims of property damage, it assumed the defense
of the Trumbull case without reserving its rights as to indemnification. The
record reveals that Travelers’ denial letter * * * only informed Plaintiff that
Trumbull’s claim for punitive damages was not covered. In no way can this
be construed as a denial of coverage as to the compensatory damages claims
at issue here.
While some of Travelers’ personnel considered filing a reservation of
rights letter and/or a declaratory relief action to protect the carrier from
having to indemnify Plaintiff, the record discloses that neither course of
action was taken by Travelers * * * . Without any subsequent revelations
excluding coverage and without conducting a proper investigation into the
facts supporting the Trumbull claims, Travelers abruptly denied coverage
* * * after Beckwith had relied on it for coverage for thirteen months. Based
on this obdurate and contumacious conduct on the part of Travelers, we
hold that it has waived and is estopped from raising any valid coverage
defenses.
***
While Travelers denied coverage of the punitive damages claim, it still
had a duty to defend that ancillary claim because, as we stated earlier, the
duty to defend is broader than the duty to indemnify, and some of the
claims foi’ compensatory damages were potentially covered by the policy.
* * * However, since the payment of punitive damages by the insurer is
invalid and again public policy in Pennsylvania * * * we need not address
that issue further.
Because of its reliance on Travelers to defend the compensatory
damages claims, Beckwith was deprived of the opportunity to itself
investigate and defend the Trumbull claims. The record in the case before
 Conflicts of Interest- -Lawyers,
304 Clients, and Third Parties Ch. ll
us reveals that Travelers failed to conduct a proper investigation or a
thorough discovery. * * *
Travelers asserted in the policy the right and duty to “defend any suit
against the insured * * * and make such investigation, negotiation and
settlement * * * as it deems expedient.” An insurer who asserts such a right
stands in a fiduciary relationship toward the insured and is obligated to
act in good faith and with due care in representing the insured’s interests.
* * * In the instant case, Travelers failed to refrain from exhibiting a
greater concern for its own interests than for those of its insured.
In conclusion, we find that: 1) the Trumbull complaint stated claims
that were potentially covered by the insurance policy issued by Travelers
to Beckwith; 2) Travelers breached its duty to defend Beckwith in the
underlying Trumbull case; 3) Travelers failed to reserve its rights to
contest indemnity regarding the compensatory damage claims raised in the
Trumbull case; and 4) Travelers is estopped from denying coverage because
Beckwith detrimentally relied on Travelers’ policy for indemnification.
Accordingly, because there are not genuine issues of material fact, we
will grant Plaintiffs motion for summary judgment on Counts One, Two
and Three.

When the Client Is an Organization

When an individual retains an attorney, asking the attorney to
represent her in a personal injury action to recover for her injuries, there
is no question that the individual is the client and that the lawyer owes the
duties of confidentiality and loyalty to that individual. When a company,
business, or other organization is the client, however, confusion can result
because the “organization” does not stand before the attorney as a corporeal
independent being; rather, the attorney learns what the organization
wants through one or more individuals purporting to act on the
organization’s behalf. Model Rule 1.13 states that when a lawyer is
employed or retained by an organization, the lawyer “represents the
organization acting through its duly authorized constituents.” Comment 1
explains that “[a]n organizational client is a legal entity, but it cannot act
except through its officers, directors, employees, shareholders, and other
constituents. Officers, directors, employees, and shareholders are the
constituents of the corporate organizational client.” Despite claiming to be
acting on the organization’s behalf, sometimes a constituent may not truly
be acting in the organization’s best interest. Rule 1.13(b) explains the
process that a lawyer should follow when faced with a constituent who is
“engaged in action, intends to act, or refuses to act in a matter related to
the representation that is a violation of a legal obligation to the
organization, or a violation of law that reasonably might be imputed to the
organization, and that is likely to result in substantial injury to the
organization.” Under such circumstances, the lawyer is instructed to
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Conflicts of Interest—Lawyers,
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Q proceed in the organization’s best interests, including referring the matter
to higher authority in the organization. The following excerpt discusses
Cj how to anticipate and address the confusion that can arise when the client
is an organization.

Ethical Dilemmas of Corporate Counsel:

A Structural and Contextual Analysis
o Sally R. Weaver
46 Emory L.J. 1023, 1033-35 (1997)/
c First, corporate counsel should define clearly their role as counsel for
the organization rather than for any of the individual constituents of the
c entity. It is helpful to reinforce this distinction periodically in discussions
c at meetings of the board of directors and with senior management.
Second, corporate counsel must diligently identify specific
circumstances in which confusion about this issue can arise. Rule 1.13[(f)]
requires counsel who confront these situations to provide Miranda-type
warnings to constituents of the organization when ‘"[the lawyer knows or
reasonably should know] that the organization’s interests are adverse to
CJ those of the constituents [with whom the lawyer is dealing]?’ Counsel must
clearly indicate to these constituents that the lawyer represents the
interests of the organization rather than those of its constituents. This
admonition is necessary because the entity’s employees and
representatives frequently do not appreciate the significance that attaches
to the lawyer’s representation of the entity. This failure to understand the
significance of the lawyer’s representation of the entity may foster the
mistaken belief that the entity’s lawyer represents their interests and owes
them the same loyalty and duties that the lawyer owes to the entity. Rule
1.13 only requires this disclosure when the lawyer believes that the entity’s
interests may be adverse to those of the constituents. Prudence suggests,
however, that the lawyer’s ethical obligations in these situations be
included in a general discussion with the board of directors and senior
management about the lawyer’s role as counsel to the entity.
Finally, corporate counsel should ensure that their clients understand
the steps that Model Rule 1.13 requires if an agent or representative of the
client persists in taking an action that is “a violation of a legal obligation
to the organization, or a violation of law which reasonably might be
c imputed to the organization.” Corporate counsel should discuss the ethical
obligations of lawyers under Rule 1.13 with management before, rather
o than after, this situation arises and establish written policies and
procedures for resolving internal conflicts. * * *
o ***

o
c * Reprinted with permission.

o
 Conflicts of Interest—Lawyers,
306_________________ Clients, and third Parties____________ Ch. 11

Phillips v. Carson
Supreme Court of Kansas, 1987.
240 Kan. 462, 731 P.2d 820.

[Plaintiff Thelma Phillips sued attorney David Carson and his law
firm for legal malpractice in connection with personal loans Carson
obtained from Phillips. The lower court granted summary judgment
against Carson. It also granted summary judgment in favor of Carson’s law
firm on the theory that Carson was not acting within the ordinary course
of the firm’s partnership business in connection with the personal loans he
obtained from Phillips. The Supreme Court of Kansas affirmed the
summary judgment against Carson and reversed the summary judgment
in favor of the law firm.]
Mrs. Phillips and her husband, Robert L. Phillips, and Mr. and Mrs.
Carson had been friends for several years prior to Mr. Phillips’ death in
1978. Mrs. Phillips retained Carson and his law firm to handle the estate
of her deceased husband. * * *
While the estate was pending, Mrs. Phillips paid fees totaling $80,000
to the firm. Carson told her that this fee was to take care of all of her legal
business until the estate was closed. * * *
* * "it

In August 1980, Carson told Mrs. Phillips that he was having financial
problems, and Mrs. Phillips loaned him $200,000. Carson told her that she
would be fully secured, and he gave her a note and a second mortgage on
some Arizona property. These documents were properly executed and the
mortgage was filed of record. In 1981, Phillips loaned Carson an additional
$70,000. Because of his representations, she believed that this loan would
get him over his current financial difficulties. She was concerned that he
might harm himself, and she thought this loan would increase the chances
that her first loan would be repaid. Later, Carson asked Mrs. Phillips to
release her mortgage on the Arizona property so that he could refinance
and sell that or another property. He offered her a mortgage on 90 acres he
owned in Wyandotte County, and told Mrs. Phillips that this would put her
in a better position. She relied upon Carson’s statement that she would be
better secured and she trusted his advice as her attorney. On March 29,
1982, Mrs. Phillips released her mortgage on the Arizona property, and
Carson gave her a new promissory note for $274,933.70, which included
past due interest as principal. Carson also prepared and executed a
mortgage on the Wyandotte County property to Mrs. Phillips, but he failed
to file that mortgage with the Register of Deeds.
Carson at no time advised Mrs. Phillips to seek independent counsel
regarding the loan transactions, and she did not discuss them with other
partners of the Carson firm or with other counsel. In May 1982, Mrs.
Phillips called Carson’s office and learned that her mortgage had not been
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Conflicts of Interest—Lawyers,
o Ch. ii____________ Clients, and Third Parties________________ 307
o filed of record. She sought independent counsel, who secured the mortgage
and filed it for record on July 23, 1982. Mrs. Phillips then demanded
o payment in full from Carson; it was not forthcoming. On September 10,
o 1982, Carson filed a Chapter 11 petition in the United States Bankruptcy
Court. * * *
o ***
By her petition filed in this action, plaintiff claims that Carson, while
o acting as attorney for her and within the scope and course of the law
o partnership business and authority, and while acting in a fiduciary
relationship towards her, negligently performed or failed to perform those
o legal duties entrusted to him to be performed on behalf of the plaintiff,
listing some six allegedly negligent acts or omissions. These include
o negligently advising or failing to advise her of the legal nature, extent, and
effect of the mortgage she was to receive, of the effect of her releasing the
Q mortgage on the Arizona property, and of the extent of the superior liens
on the Wyandotte County land; failing to timely draft the note and
□ mortgage; failing to record the mortgage and perfect plaintiffs security
interest; failing to fully advise her of the effect upon her of his financial
o consolidation; and filing his Chapter 11 petition which, under the
circumstances, left her totally unsecured. She contends that a fiduciary
□ relationship existed between Carson, the individual members of the firm,
the partnership, and the plaintiff. She seeks actual damages of $274,933.70
o plus accruing interest and costs.
*★★
[The Supreme Court rejected Carson’s arguments that the summary
G judgment against him was improper. Though rarely granted in negligence
cases, summary judgment is proper if there are no disputed issues of fact,
C and the Supreme Court agreed that there were none here.]
a The Code of Professional Responsibility, by which attorneys in this
state are governed, states:
o “DR 5-104 Limiting Business Relations with a Client"
o “(A) A lawyer shall not enter into a business transaction with a client
if they have differing interests therein and if the client expects the lawyer
o to exercise his professional judgment therein for the protection of the client,
unless the client has consented after full disclosure.” 235 Kan. cxlvi.
o A comment on this section of the Kansas Code of Professional
o Responsibility, pertinent here, is as follows:
“It is not uncommon for attorneys to engage in business
c transactions with clients and other nonlawyers. Despite
intentions to the contrary, members of the bar quite often use
o their legal knowledge or give advice on behalf of such joint efforts.
c
 Conflicts of Interest—Lawyers,
308_________________ Clients, and Third Parties____________ Ch. ll

In these situations courts are prone to find the existence of an

attorney-client relationship upon the complaint of the lay party.
The existence of retainer or fee charge is usually immaterial.
★**
“An attorney who is confronted with the possibility of a joint
business venture with a client is cautioned to consider the
increased malpractice and ethical risks along with the financial
considerations. In all such situations there should be a complete
disclosure, and the client should be strongly urged to seek
independent legal and other professional advice.”
***
The trial court * * * found that Carson breached his professional duty
to plaintiff by failing to advise her to secure outside independent legal and
financial advice. * * * [That conclusion is] supported by the undisputed
facts.
In Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P.2d 254
(1976), we summarized the duty of attorney to client * * * :
“The relationship of an attorney to his client is fiduciary in
character, binding the attorney to the highest degree of fidelity
and good faith to his client on account of the trust and confidence
imposed.”
“A fiduciary relation does not depend upon some technical
relation created by, or defined in, law. It may exist under a variety
of circumstances, and does exist in cases where there has been a
special confidence reposed in one who, in equity and good
conscience, is bound to act in good faith and with due regard to
the interests of the one reposing the confidence.”
Under the extensive factual record before us, we agree with the trial
court that there existed an attorney and client relationship between Carson
and Mrs. Phillips during the time that Carson secured loans from Mrs.
Phillips, advised her or failed to advise her about them, and agreed to take
care of preparing and filing all necessary documents in connection
therewith. That relationship gave rise to the duty upon the attorney to
properly, competently, and adequately counsel, advise, and represent the
client. That duty was breached, not only in failing to file the final mortgage
of record, but also in failing to advise Mrs. Phillips of the legal ramifications
of the transaction, in failing to advise her of the legal consequences of the
changes in security, in failing to recommend that she secure independent
counsel, and in other ways pointed out by the trial court * * * . Finally, we
agree with the trial court that Carson’s extensive breaches of the Code of
Professional Responsibility proximately caused injury to his client, and
that she sustained substantial actual damages.
 Conflicts of Interest—Lawyers,
Ch. ll_______________ Clients, and Third parties________________ 309
***

[The Supreme Court next considered the summary judgment granted

in favor of Carson’s law firm. The trial court ruled that Carson had clearly
acted outside the scope of the partnership business in connection with the
loans.]
The evidence here is clear that Carson and the partnership were
representing Mrs. Phillips and were her attorneys for the primary purpose
of probating the estate of her deceased husband. Additionally, the firm
charged her a fee which was to cover not only the probate matter, but all
other legal services she might require individually during the term of the
probate. Additional legal services were provided for her * * * without
additional charge.
Advising a client on the propriety of making loans, the legality and
sufficiency of proposed security, the method of ascertaining the value of the
security, the method of recording security documents and the like are all
matters well within the scope of the general practice of law. Had Mrs.
Phillips been considering a loan to a third person and had a member of the
partnership advised her as Carson did (or as he failed to advise her), there
would be little question of the firm’s responsibility in the event that she
sustained damages as a result of that action or omission. Similarly, the
preparation of notes and mortgages, and the filing of mortgages for record,
are matters well within the scope of the general practice of law handled
daily by lawyers throughout this state.
***
Mrs. Phillips asserts that there is a factual question * * * regarding
whether the transactions were apparently authorized by the partnership.
She claims that it is the reasonable belief of the third party concerning the
existence of apparent authority that is determinative. Certainly when a
lawyer is consulting with a client on legal matters in the lawyer’s office,
the appearances to the client and the reasonable belief of the client are
persuasive upon the issue. As the firm points out, however, the indication
of authority must come from the principal. * * *
While in this case no partner in the firm told Phillips that Carson’s
actions were within his authority as a partner, no one told her that his
actions were not within his authority as a member of the law firm. Two of
the firm’s employees, Doreen Benton and Judy Tranckino, did personal
work for Mr. Carson, including preparation of the notes and mortgages
herein. While Mrs. Phillips knew Mrs. Benton did personal work for
Carson, no one told her that Benton’s work on this project was not as a firm
employee. The fact that Benton and Tranckino did personal work for
Carson was known and not objected to by the other members of the law
firm. Letters from Carson to Mrs. Phillips regarding this loan were on firm
stationery and mailed in firm envelopes. Using firm supplies and personnel
 Conflicts of Interest—Lawyers,
310_________________ Clients, and Third Parties____________ Ch. ll

for personal business was apparently an acceptable practice within the

firm. There was no firm policy prohibiting a partner from transacting
business with a client, the only restriction regarding acceptance of a client
being that a partner could not represent a client if doing so would cause a
conflict with other clients of the firm. Whether Carson was apparently
carrying on the usual business of the partnership, or whether his wrongful
acts or omissions were in the usual course of business or with the authority
of his partners * * * [sire unresolved issues of material fact.]
The summary judgment entered by the trial court in favor of Thelma
L. Phillips and against David W. Carson is affirmed. The summary
judgment entered in behalf of the partnership * * * is reversed.

State v. White
Supreme Court of Tennessee, 2003.
114 S.W.3d 469.

E. Riley Anderson, J.
We granted review to determine whethei' the Court of Criminal
Appeals erred in concluding that defense counsel’s dual roles as part-time
assistant district attorney and defense counsel in this case created a
conflict of interest requiring removal of counsel. The trial court found that
defense counsel must be disqualified under the facts of this case because a
“perceived” conflict of interest existed that could not be waived by the
defendant. The Court of Criminal Appeals affirmed on the ground that an
actual conflict of interest existed. After reviewing the record, we conclude
that counsel’s dual roles as prosecutor and defense counsel created an
actual conflict of interest that required disqualification. Accordingly, the
judgment of the Court of Criminal Appeals is affirmed.
BACKGROUND
Jeremy White was indicted by the Shelby County Grand Jury on May
2, 2000, * * * [and] retained Mark S. McDaniel as his defense counsel.
McDaniel represented White at his preliminary hearing in the General
Sessions Court of Shelby County and his arraignment in the Criminal
Court of Shelby County. Thereafter McDaniel conducted discovery,
requested a trial date from the Criminal Court of Shelby County, and
prepared White’s defense.
Prior to trial and during the time McDaniel was serving as White’s
defense counsel, McDaniel was also serving as a part-time prosecutor for
the Town of Collierville in Shelby County, Tennessee. He had been
appointed by the Town of Collierville to prosecute municipal law violations
occurring in Collierville and heard in the Collierville Municipal Court. The
Collierville Municipal Court was also vested with concurrent jurisdiction
and authority with Courts of General Sessions in all cases involving the
 Conflicts of Interest—Lawyers,
Ch. 11______________ Clients, and Third Parties________________ 311
violations of criminal laws of Tennessee within the limits of the
municipality. In addition, the District Attorney of Shelby County had
appointed McDaniel to serve as an assistant district attorney for Shelby
County, and he had been sworn in by a Shelby County Criminal Court
judge. The appointment was for the purpose of conveying authority upon
McDaniel to prosecute state criminal law violations, in addition to
municipal law violations, before the Collierville Municipal Court.
On July 9, 2001, the Board of Professional Responsibility for the State
of Tennessee, (hereinafter “Board”), responding to a request from the
Shelby County District Attorney’s office, issued an unpublished advisory
opinion addressing the question of whether it is ethically appropriate for a
part-time Assistant District Attorney to prosecute and to represent
criminal defendants within the same judicial district. See Advisory Ethics
Opinion No.2001-A—742. The Board, citing provisions of the Tennessee
Code of Professional Responsibility and the ABA’s Canons of Professional
Ethics, concluded that such representation was unethical because the
prosecutor’s duties to the public and the criminal defense lawyer’s duties
to the accused are inherently antagonistic and cannot be waived by the
public.
Based on the Board’s opinion, the State filed a motion in the Criminal
Court for Shelby County to disqualify McDaniel from representing Jeremy
White. An evidentiary hearing was conducted by the trial court in which
the following facts were developed:
In July of 1992, Mark S. McDaniel, was employed by the Town of
Collierville, in Shelby County, Tennessee, to serve as a part-time
prosecutor. This position authorized McDaniel to prosecute city ordinance
violations. In 1996, McDaniel was sworn in as an assistant district attorney
general to the District Attorney General for Shelby County. * * * This
additional appointment granted him the authority to prosecute state
criminal law violations, i.e., misdemeanor and felony charges.
During the evidentiary hearing, McDaniel conceded that while
prosecuting cases in the Collierville Municipal Court on behalf of both the
State of Tennessee and the Town of Collierville, he had engaged in a
private law practice, which included the defense of individuals charged
with committing criminal offenses in the Shelby County General Sessions
and Criminal Courts. McDaniel asserted that his appointment as an
assistant district attorney was done for the limited purpose of authorizing
him to prosecute only state law violations before the Collierville Municipal
Court and to “protect and insure him against any type of liability.”
McDaniel further stated that in this capacity, his prosecutions had only
once involved a member of the Shelby County Sheriffs Department.
McDaniel disputed the binding authority of the Board’s advisory
opinion, No.2001-A-742, and argued that he was sufficiently independent
 Conflicts of interest—lawyers,
312_________________ Clients, and Third Parties____________ Ch. 11

of the office of the District Attorney General for Shelby County so as to

defend White in Shelby County courts without any actual or perceived
conflict of interest. Specifically, he contended that his title as assistant
district attorney general was a mere formality necessary for liability
purposes, that he only prosecuted in his capacity as assistant district
attorney general in the Town of Collierville, and that he rarely encountered
officers from the Shelby County Sheriff’s Department in those
prosecutions. White testified in the hearing that he was aware of
McDaniel’s position as a part-time assistant district attorney general, and
he agreed to waive any actual or perceived conflicts of interest.
The State contended that there was an actual conflict of interest that
White could not waive in that Shelby County deputy sheriffs, who had
county-wide jurisdiction and often testified in State prosecutions in
Collierville, might also testify in White’s case. The State argued that a
public prosecutor’s client is the State, that the State is the adverse party
here, and that a prosecutor cannot “serve two masters” by representing
both the State and the defendant.
The trial court concluded that McDaniel’s position as a part-time
assistant prosecutor for the Shelby County District Attorney’s office, while
simultaneously defending White against the State’s prosecution in a
Shelby County criminal court, created, at a minimum, a “perceived” conflict
of interest. The court found that there was a close relationship between the
Collierville prosecutor’s office and the Shelby County Sheriffs office, and
that the community most likely perceived the prosecutor to be a
representative of the Shelby County District Attorney’s office. The court
also found that the Shelby County District Attorney was prosecuting White
and that, together, these factors created a “perceived” conflict of interest:
Here, the [appellant] is charged with a crime, committed in Shelby
County, likely investigated by Shelby County Sheriffs Deputies
and prosecuted by the Shelby County District Attorney’s office.
Moreover, his counsel of record is an employee of the division of
government which seeks to prosecute and punish him for his
alleged criminal actions. Therefore, this court finds that, even if
the above facts do not give rise to an actual conflict of interest, the
State has met its burden of proving that a perceived conflict of
interest exists.
The trial court further concluded that this perceived conflict of interest
could not be waived by White without the State’s consent, and that the
State was not required to provide such consent. Finally, the court
discounted White’s claim that he would be prejudiced if forced to retain
new counsel, and instead determined that White’s right to “fair and
impartial representation” would actually be fostered by McDaniel’s
removal.
 Conflicts of Interest—Lawyers,
Ch. 11 Clients, and Third Parties 313
* * * The Court of Criminal Appeals affirmed the judgment of the trial
court but held that the conflict in this case was more than just perceived.
Relying on Tennessee Supreme Court Rule 8, Formal Ethics Opinion 2002-
F—146, and case law from other jurisdictions, the Court of Criminal
Appeals held that an “actual” conflict of interest existed because McDaniel
could not fulfill the ethical requirements owed by a prosecutor to the public
while simultaneously satisfying the ethical requirements owed by a zealous
advocate to his client. The Court of Criminal Appeals further held that the
trial court did not abuse its discretion in refusing to allow White to waive
the conflict.
We granted the appellant’s application for permission to appeal.
ANALYSIS
**★
Conflict of Interest
In determining whether to disqualify an attorney in a criminal case,
the trial court must first determine whether the party questioning the
propriety of the representation met its burden of showing that there is an
actual conflict of interest. * * * In the case before us, therefore, the State
had the burden of showing by a preponderance of the evidence that
McDaniel’s representation of both the State and White created an actual
conflict of interest.
This Court has clarified that an actual conflict of interest includes any
circumstances in which an attorney cannot exercise his or her independent
professional judgment free of “compromising interests and loyalties.” See
State v. Culbreath, 30 S.W.3d 309, 312-13 (Tenn.2000); see also Tenn. R.
Sup.Ct. 8, EC 5-1. In the context of multiple employment, for example, an
actual conflict arises where an attorney’s continuance of such employment
“would be likely to involve the lawyer in representing differing interests.”
Tenn. Sup.Ct. R. 8, DR 5-105(B). If a conflict exists, it may only be cured
if “it is obvious that the lawyer can adequately represent the interest of
each [client] and if each [client] consents to the representation after full
disclosure of the possible effect of such representation on the exercise of the
lawyer’s independent professional judgment on behalf of each.” Tenn.
Sup.Ct. R. 8, DR 5-105(C). An appearance of impropriety, on the other
hand, existed under the Tennessee Code of Professional Conduct “in those
situations in which an ordinary knowledgeable citizen acquainted with the
facts would conclude that the * * * representation poses substantial risk of
disservice to either the public interest or the interest of one of the clients.”
Clinard v. Blackwood, 46 S.W.3d 177, 187 (Tenn.2001).
In applying these standards to this case, we must first examine the
ethical duties and loyalties of the prosecutor and defense counsel. As we
 Conflicts of Interest—Lawyers,
314_________________ Clients, and third Parties____________ Ch. 11

stated in Culbreath, prosecutors hold a unique office in our criminal justice

system, and therefore must shoulder unique expectations:
[Pjublic * * * prosecutors are expected to be impartial in the sense
that they must seek the truth and not merely obtain convictions.
They are also to be impartial in the sense that charging decisions
should be based upon the evidence, without discrimination or bias
for or against any groups or individuals. Yet, at the same time,
they are expected to prosecute criminal offenses with zeal and
vigor within the bounds of the law and professional conduct.
Culbreath, 30 S.W.3d at 314. The United States Supreme Court has also
addressed the unique duties of a prosecutor:
[The prosecutor] is the representative not of an ordinary party to
a controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and
whose interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done. As such, he is in a
peculiar and very definite sense the servant of the law, the twofold
aim of which is that guilt shall not escape or innocence suffer. He
may prosecute with earnestness and vigor—indeed he should do
so. But, while he may strike hard blows, he is not at liberty to
strike foul ones.
Berger v. United States, 295 U.S. 78,88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).
Tempered only by their impartial search for justice, prosecutors are to keep
the interests of the State as their preeminent concern. Id.
On the other hand, *‘[t]he basic duty defense counsel owes to the
administration of justice and as an officer of the court is to serve as the
accused’s counselor and advocate with courage and devotion and to render
effective, quality representation.” See ABA. Standards for Criminal Justice
4—1.2(b) (3d ed.1993). This duty requires defense counsel to exert every
reasonable effort to protect the client’s interests, both in the investigation
and the trial of a case, by interviewing the client; apprising the client of his
or her rights; conducting a thorough legal and factual investigation of the
case; attempting to obtain information in the possession of the prosecution
and law enforcement authorities; filing appropriate motions for the
suppression of the evidence; raising all available claims, issues and
defenses; conducting effective cross-examination of the State’s witnesses;
and attempting to mitigate punishment if the client is convicted. * * * In
sum, counsel must be constantly guided by the obligation to pursue the
defendant’s interests and to do so to the fullest extent allowed by the law
and applicable standards of professional conduct. * * *
These ethical duties and principles demonstrate that the Court of
Criminal Appeals properly concluded that McDaniel’s dual roles as
assistant district attorney general and defense counsel in the same county
 Conflicts of Interest—Lawyers,
Ch. 11Clients, and Third Parties______________________________ 315
were inherently antagonistic and thus, created an actual conflict of
interest. The ethical obligations of these dual roles required McDaniel to
represent the interests of two adverse parties simultaneously and forced
him to attempt to reconcile his duty to vigorously prosecute criminal
offenses on behalf of the State with his duty to zealously defend the
criminal defendant. In his capacity as an assistant district attorney, for
example, his ethical duties required him to advocate for the public and to
seek justice. In his capacity as defense counsel, however, his ethical duties
required him to be a zealous advocate of White and an adversary to his
fellow assistant district attorneys in Shelby County. As the Board of
Professional Responsibility has correctly observed, such a conflict would
prove detrimental to the lawyer’s representation:
Prosecutors have taken an oath of office to uphold and apply state
law in prosecutions and assist * * * law enforcement officers in
prosecuting alleged crime. Zealous representation of criminal
defendants very often will require * * * vigorous cross-
examination of the testimony of such law enforcement personnel,
and in many instances will require challenging the very laws the
prosecutor is charged to enforce. Even if cross-examination of such
personnel would not involve the disclosure of confidences and
secrets of the state or municipality, the desire to maintain a
harmonious working relationship with these law enforcement
officers could adversely affect the inquiring attorney’s zeal in
conducting such cross-examination.
Formal Ethics Opinion 2002-F-146. The Disciplinary Rules preventing
conflicts of interests were specifically designed to free the lawyer’s
judgment from such “compromising interests and loyalties.” Tenn. R.
Sup.Ct. 8, EC 5-1; see also Blackwood, 46 S.W.3d at 187; Culbreath, 30
S.W.3d at 312-13.
We disagree with White’s contention that McDaniel is independent of
the Shelby County District Attorney’s office and can ethically represent
both him and the State. As the trial court specifically found, there is
necessarily a close relationship between the Collierville City Prosecutor
and the Shelby County Sheriffs Department. The Shelby County Sheriffs
Department, in turn, partners with the Shelby County District Attorney’s
office in which McDaniel serves as an assistant district attorney. As the
trial court also found, McDaniel has worked with the Shelby County
Sheriffs Department on one prosecution and is likely to have “regular
contact” with the Department on future prosecutions. As defense counsel,
however, McDaniel must reverse roles completely by zealously pursuing
available defenses, contesting the State’s evidence, and vigorously cross-
examining the State’s witnesses, including law enforcement officers.
Accordingly, we conclude that McDaniel is not independent of the Shelby
County District Attorney’s office, but rather, is part of the office and subject
 Conflicts of Interest—Lawyers,
316_______________ Clients, and Third parties____________ Ch. 11
o
to its supervision. His service to the District Attorney while representing D
White involved inconsistent obligations sufficient to constitute an actual
conflict of interest.
O
*** o
We also disagree with White’s argument that he may unilaterally
waive any actual or perceived conflict of interest. For a waiver to be
o
effective, the Disciplinary Rules require each client to consent to the
representation. See Tenn. Sup.Ct. R. 8, DR 5—105(C). As the trial court
o
explained, the State has not done so in this case: o
As an employee of the Shelby County District Attorney’s office,
Mr. McDaniel has a duty to the citizens of Shelby County not to o
actively represent conflicting interests. Thus, even if the
[appellant] could waive the conflict, as he claims he wishes to do, o
the State is not required to comply with such a waiver and cannot
be compelled to effectively relinquish [its] right to object to the o
conflict of interest created when one of [its] members actively
represents an opposing party.
o
Finally, we agree with the trial court’s conclusion that the o
representation of White would not be prejudiced by McDaniel’s
disqualification. Indeed, McDaniel’s disqualification is necessary to avoid o
a violation of White’s constitutional right to counsel. * * * [I]nstead of
hindering White’s interests, we conclude, as did the trial court, that o
McDaniel’s disqualification will prevent the actual conflict of interest
discussed herein from interfering with White’s right to fair and impartial o
representation.
o
In sum, we hold that the State has met its burden of proof in showing
that McDaniel’s dual roles as assistant district attorney general and o
criminal defense lawyer in the same county created an actual conflict of
interest that the State could not be forced to waive. We further conclude o
that this conflict of interest superseded the appellant’s right to the counsel
of his choosing. Accordingly, we conclude that the trial court did not abuse o
its discretion in disqualifying McDaniel from representing the appellant.
CONCLUSION
o
After reviewing the record, we conclude that the facts in this case o
present an actual conflict of interest such that disqualification is required.
Accordingly, the judgment of the Court of Criminal Appeals is o
affirmed. * * *
o
 Conflicts of Interest—Lawyers,
o Ch. 11 Clients, and Third Parties 317
o Multiple Choice Questions
o Answer these questions using the definitions found
at the end of Chapter Two.
o 1. Inventor Ivan and marketing genius Gene want to form a new
corporation to market Ivan’s amazing new design for motion picture projectors.
c They want to hire attorney Arnold to help them to do the necessary legal work
and to help them find venture capital. Because they have almost no hard cash
c at present, they have asked Arnold to do this work for them in exchange for 4%
of the capital stock of the new corporation. The remaining 96% will be divided
o equally between Ivan and Gene and their respective families. May Arnold
agree to their proposal?
o A. No, because a lawyer must not acquire a personal interest in the
o subject of the representation.
B. No, because a lawyer must not enter into a business transaction
CD with clients.
c C. Yes, but only if the 4% would not make the fee unreasonably
high, and the transaction would be fair to the clients, and the terms are
CD fully disclosed to the clients in an understandable writing, and the clients
are given a chance to consult outside counsel, and the clients are advised
Q in writing of the desirability of seeking outside counsel and given a chance
to consult such outside counsel, and the clients consent in writing.
O D. Yes, but only if Ivan and Gene give their informed consent and
Arnold promises that he will never vote his stock or otherwise attempt to
CD influence the governance of the corporation.
c 2. Lawyer Lenschell has recently opened his new law office. Timothy
came to Lenschell’s office and introduced himself as the “boyfriend” of Tina, a
young woman who was just arrested on a prostitution charge. Timothy
CD retained Lenschell to represent Tina and paid him an appropriate fee in
CD advance. Timothy, who, despite being a layperson, was well-versed in
sentencing practices with respect to prostitution, explained to Lenschell that
CD in prostitution cases in this district, a guilty plea usually results in a $500 fine,
but no jail sentence. But if the defendant pleads not guilty, goes to trial, and is
CD found guilty, the judge usually imposes a jail sentence. Timothy further
explained that Tina did not want to go to jail, that he would pay her fine for
CD her, and that Lenschell should therefore advise her to plead guilty. Lenschell
met Tina for the first time at the courthouse, shortly before her case was to be
CD called on the criminal calendar for entry of her plea. In their hurried
conference, Tina told Lenschell that Timothy was her pimp, not her
CD “boyfriend.” Further, she said that she wanted to escape from Timothy and
from her life as a prostitute, and that she wanted to plead not guilty, thus
O risking a jail sentence, rather than become further indebted to Timothy. What
is the proper course of conduct for Lenschell to follow in this situation?
CD

o
cd
 Conflicts of Interest—Lawyers,
318_________________ Clients, and Third Parties____________ Ch.11

A. To adhere to the instructions given by Timothy, and to advise

Tina to plead guilty.
B. To give Tina whatever legal assistance she needs in entering her
plea of not guilty.
C. To withdraw from the matter promptly, without advising Tina
one way or the other on what plea to enter.
D. To telephone Timothy and ask for further instructions in light of
Tina’s unwillingness to plead guilty.
3. Lawyer Lattimer is on the in-house legal staff of Centennial
Corporation, a major manufacturer of steel shipping containers. She regularly
provides legal advice to Vice-President Markler, the executive in charge of
sales and marketing. In the course of a routine preventive law project,
Lattimer discovered that Markler had participated in a series of telephone
conferences with his counterparts at the company’s two main competitors.
Further, she discovered that each such conference was promptly followed by
an increase in the prices charged by the three companies. When Lattimer took
this up with Markler, she first reminded him that she was not his personal
lawyer, but rather the corporation’s lawyer. Then she said: “If you have been
discussing prices with our competitors, we may be in deep trouble. Your
telephone conferences may violate the Sherman Antitrust Act, and that could
mean civil and criminal liability, both for you and for the corporation. And, as
you know, the corporation has a rule against rescuing executives who get in
antitrust trouble.” Markler responded as follows: “Ms. Lattimer, I know you’re
a good lawyer, but you don’t know much about the real world. You can’t run a
business these days if you try to trample on your competition. Now don’t worry
yourself about my telephone conferences, because I’m sure you have better
things to do with your time.” If Markler remains uncooperative, which of the
following expresses the proper course for Lattimer to take?
A. Draft a careful, complete memorandum about the matter for her
own files, and maintain her conversation with Markler in strict
confidence.
B. Describe the relevant facts in a carefully drafted letter to the
Antitrust Division of the United States Department of Justice, and
request an advisory opinion on the legality of the described conduct.
C. Describe the entire matter to Markler’s immediate corporate
superior, the Executive Vice President, and advise him to put a stop to
Markler’s telephone conferences.
D. Describe the relevant facts in a memorandum to the corporate
Board of Directors, and advise the Board that she will resign unless
something is done to stop Markler.
4. Attorney Tillis is a partner in the 138 person firm of Dahlberg &
Sneed. The Citizens’ Alliance for Coastal Preservation has asked Tillis to
represent the Alliance in a public interest lawsuit against Vista del Oro, Inc.,
c
Conflicts of Interest—Lawyers,
o Ch. li_____________ Clients, and Third Parties_______________ 319
o a real estate developer. Vista del Oro owns several thousand acres of beautiful
coastline, about an hour’s drive from the largest city in the state. It is building
Q vacation homes to sell to the public. When the project is complete, the entire
area will be fenced off to prevent access by non-owners. The Alliance seeks to
Q force Vista del Oro to provide access paths across the property, so that
members of the public can get from the state highway to the public beaches.
o Attorney Prentice is also a partner in Dahlberg & Sneed. He is a member of
the Board of Directors of Vista del Oro, and he owns seven of the vacation home
c sites as a personal investment. No Dahlberg & Sneed lawyer has ever
represented Vista del Oro, and none will do so in the present case. After careful
o consideration, Tillis has concluded that his representation of the Alliance
would not be adversely affected by Prentice’s interest. Which of the following
o conditions must be met if Tillis is to avoid being subject to discipline for
representing the Alliance?
c
I. The Alliance consents after full disclosure.
o II. Vista del Oro consents after full disclosure.
o III. Prentice resigns as a director of Vista del Oro.
IV. Prentice sells his seven home sites.
c A. All of the above.
c B. Ill only.
CD C. I and II only.
D. I only.
O 5. In a private treble damage case arising under the federal price
discrimination law (the Robinson-Patman Act), the defendant wants to prove
c that it had a good faith belief that its pricing system was lawful. As evidence
of its good faith, the defendant wants to prove that, five years ago, the Federal
o Trade Commission carefully reviewed the defendant’s pricing system and
decided not to institute proceedings against the defendant. The proof of this is
c a letter from the FTC to defendant’s lawyer, Smithers. At the treble damage
trial, the defendant will need Smithers’ testimony to authenticate the letter—
c Smithers will simply testify that he received the letter from the FTC. The
defendant wants Smithers and his law partner, Hillner, to serve as its trial
c counsel in the treble damage case. Which of the following is correct?
c A. Neither Smithers nor Hillner may serve.
B. Both Smithers and Hillner may serve.
c
C. Only Hillner may serve.
c D. Smithers and Hillner may serve, but only if the plaintiff
consents.
c
6. Client Parsons has asked lawyer Ekimoto to represent her, and nine
o other representatives of a plaintiff class, in an employment discrimination
class action against Consolidated Telephone and Telegraph Corporation. The
c
o
c-
 Conflicts of Interest—Lawyers, o
320_______________ Clients, and Third Parties____________ Ch. ll
size of the plaintiff class and the size of the potential recovery are hard to o
estimate, but the case would conceivably produce a total recovery of nearly 15
million dollars. Lawyer Ekimoto and her two brothers are the beneficiaries of o
a trust fund established by their late parents. Among the trust assets are 1,000
shares of Consolidated common stock. Consolidated has 30 million shares of o
common stock outstanding. If Ekimoto reasonably believes that her interest in
Consolidated will not affect her representation of the plaintiffs, may she serve O
as plaintiffs’ counsel? O
A. Yes, since the interest of a trust beneficiary is not regarded as
disqualifying. CD
B. Yes, if she obtains the consent of the class representatives after
full disclosure of her interest. o
C. No, since even a small adverse financial interest creates an o
appearance of impropriety.
D. No, since there are other counsel available who could serve the O
plaintiff class without any potential conflict.
O
7. Biochemist Belloni invented a gene splicing process for making snake
antitoxins. The invention was a major breakthrough because Belloni’s O
antitoxins were far cheaper and more reliable than the natural variety
produced from the venom of live snakes. She obtained a U.S. Patent on her O
process. Shortly thereafter, she was sued in a declaratory judgment action
brought by United Laboratories, Inc. United sought a declaration that her U.S. CD
Patent was invalid. Belloni asked lawyer Lothrup to represent her in the case.
Lothrup agreed to do so on the following terms: (1) Belloni would pay Lothrup O
for the necessary legal work at Lothrup’s regular hourly rate; (2) Lothrup
would advance the litigation expenses, subject to repayment by Belloni no CD
matter what the outcome of the case; and (3) at the outset, Belloni would assign
to Lothrup a 10% ownership interest in the U.S. Patent. O
A. The arrangement is proper, assuming that the total Lothrup
earns from it is reasonable. o
B. Lothrup is subject to discipline because the arrangement O
requires Belloni to pay back the advanced litigation expenses even if she
loses the declaratory judgment case. CD
C. Lothrup is subject to discipline because the arrangement ,—<
provides for an advance of litigation expenses by the lawyer in a civil case. —'
D. Lothrup is subject to discipline because the arrangement gives CD
her a personal financial interest in the U.S. Patent which is the subject of _
the declaratory judgment case. O
8. A statute of State X requires prison inmates to be provided “sanitary
living conditions, suitable education and recreation facilities, and competent CD
medical treatment.” The statute authorizes inmates who are deprived of these
benefits to sue the State Commissioner of Prisons for equitable relief. The CD
statute also permits (but does not require) the courts to order State X to pay
CD
CD
CD
 Conflicts of Interest—Lawyers,
Ch, 11____________ Clients, and Third Parties_______________ 321
the attorney fees of successful inmate plaintiffs. At the request of the local bar
association, private attorney Andrate agreed to represent a group of indigent
inmates who were allegedly being deprived of proper medical attention at a
State X prison. After extensive discovery proceedings, the State Commissioner
of Prisons offered to settle the case by entering into a consent decree that would
give the inmates all the equitable relief they could ever hope to receive,
provided that Andrate would not request an award of attorney fees. Which of
the following would be the proper thing for Andrate to do with respect to the
settlement offer?
A. Explain it to his clients and let them decide whether to accept it
or reject it.
B. Reject it on behalf of his clients because it does not provide for
an award of attorney fees.
C. Accept it on behalf of his clients, even though it does not provide
for an award of attorney fees.
D. Reject it on behalf of his clients because to do otherwise would
discourage private attorneys from representing indigent inmates in future
cases.
Answers to the multiple choice questions will be found
in the Appendix at the end of the book.
c
Q

O Chapter Twelve
C
c
Conflicts of Interest—Conflicts
Between Two Clients
c
c.
What This Chapter Covers
c
I. Conflicts Between the Interests of Two Clients
c A. Directly Adverse Representation in the Same Matter
c B. Opposing Present Client in an Unrelated Matter
C. Multiple Clients in the Same Matter
D. Former Client’s Confidential Information
c E. Opposing Former Client in a Substantially Related Matter
F. Former Judges and Government Employees

Reading Assignment
Schwartz, Wydick, Perschbacher, & Bassett, Chapter 12.
ABA Model Rules:
c Rules 1.7, 1.8(b), (g), and (i), 1.9 through 1.12, 1.18, and 6.3.
Supplemental Reading
Hazard & Hodes:
c
Discussion of ABA Model Rules 1.7, 1.8(b), (g), and (i), 1.9 through
c 1.12, and 6.3.

o Restatement (Third) of the Law Governing Lawyers §§ 15; 121-124; 128-

130; 132-133 (2000).
c
c Discussion Problems
CD 1. The County Association of Real Estate Dealers (CARED) is a trade
association composed of all the licensed real estate brokers and dealers in
C the county. Over the years, CARED has provided its members with
standard forms of legal documents for use in routine real estate
'—; transactions. Last year, the state passed a new statute that requires all
/—s legal documents affecting consumers to be expressed in “clear, simple

323
 Conflicts of Interest—Conflicts
324__________________ Between Two Clients______________ Ch. 12
English.” Any document that does not comply is void. CARED hired
attorney Adler to draft a new standard form apartment lease to comply
with the new state statute. Adler did so, and CARED distributed the new
form to its members. Dearbourne Realty & Investment Company (a
CARED member) used the new form to lease one of its own apartment units
to one Leon Beckner. Now Beckner seeks to have attorney Adler represent
him in a lawsuit against Dearbourne to have the lease declared void. One
of Beckner’s several arguments is that two key paragraphs of the lease are
totally incomprehensible to the average person. Adler has re-examined the
two paragraphs and is inclined to agree that Beckner is very likely correct.
May Adler represent Beckner in the lawsuit?
2. Aaron, Bropovski, and Carter were riding in a car driven by Duffy.
The car was hit, head-on, by a truck driven by Emerson. Aaron, Bropovski,
Carter, and Duffy have asked you to represent them in a suit against
Emerson and his employer, United Fat and Tallow, Inc. Under what
circumstances may you represent the four plaintiffs in this case?
3. You are one of only five lawyers in the little town of Sand Springs.
You represent Sand Springs Hardware Company in a civil suit against
Virgil McQuillan to collect $338 on an overdue charge account. Last week,
McQuillan and one of his friends got drunk and were arrested trying to
climb into the back window of the local bar and grill after closing hours.
They were charged with burglary, a felony. Neither man has funds to pay
a lawyer.
a. McQuillan’s friend is being represented by the County
Public Defender, but she has declined to represent McQuillan too,
on the ground that to do so would pose a conflict of interest. Is her
position sound?
b. The court has asked you to defend McQuillan in the
felony case. How should you respond to the court’s request?
4. Two years ago, you represented Mr. W in setting up a close
corporation for his business and for certain personal investments. That
work has long since been completed, and you have not represented Mr. W
since then. Now Mrs. W has asked you to represent her in divorce
proceedings against Mr. W. The two of them are in sharp disagreement
over the division of property, child support obligations, and alimony.
Assume that this jurisdiction does not have community property. Under
what, if any, circumstances may you represent Mrs. W?
5. From 1991 through 1999, lawyer Lageson was an attorney with
the Argos & Bakeson firm. Argos & Bakeson’s practice was primarily
insurance defense work. While at Argos & Bakeson, Lageson worked on
numerous matters for the Wazoo Insurance Company. In 1999, Lageson
left Argos & Bakeson for the Cumis firm where he also did insurance
defense work, including matters in which Wazoo insureds needed separate
 Conflicts of Interest—Conflicts
Ch. 12_______________ Between Two Clients_________________ 325
counsel because Wazoo reserved its rights to contest coverage of the claim.
[See Beckwith Machinery Co. v. Travelers Indem. Co., supra.] Cumis
represents Duke Development, a real estate developer being sued by
buyers of several hundred Duke-built homes for alleged construction
defects. Duke has various insurance policies with Wazoo that it contends
cover the defect claims. Wazoo disputes coverage and has sued Duke for a
declaration it is not liable for the buyers’ claims. Argos & Bakeson
represents Wazoo and Cumis represents Duke in the declaratory relief
action. Wazoo has moved to disqualify Cumis from the representation
based on Lageson’s former association with Argos & Bakeson.
a. Should Lageson personally be disqualified from
representing Duke in Wazoo Insurance Company v. Duke
Development?
b. If Lageson is personally disqualified, should the entire
Cumis firm also be disqualified?
c. Are there any steps the Cumis firm could have taken to
avoid imputed disqualification?
d. Even if sufficient screening procedures can protect a
private firm from disqualification, can you see why the former
client who is the firm’s adversary still might feel uneasy?
6. Until ten months ago, attorney Barneo was an Administrative
Law Judge for the State Consumer Protection Commission. The
Commission’s Enforcement Division brought proceedings against Mandel
Toy Company to stop Mandel from selling some allegedly dangerous toy
rifles. The Commission attorney moved for a preliminary cease and desist
order. Barneo was assigned to hear the motion. She declined to issue the
order, stating on the record that “the evidence of dangerousness looks
exceedingly thin at this time.” Several months later, Barneo resigned her
position and entered the private practice of law. Ultimately, after a full
hearing before a different Administrative Law Judge, Mandel was ordered
to take the toy rifles off the market. That order is now before the Appellate
Division of the Commission, and Mandel has asked Barneo to argue the
appeal on its behalf. May she do so?

State Farm Mutual Automobile

Insurance Co. v. K.A.W.
Supreme Court of Florida, 1991.
575 So.2d 630.

Grimes, Justice.
***
David Wilkerson was driving a rental car in which his wife and infant
daughter were passengers when it was struck by another car. The
 Conflicts of Interest—Conflicts
326 Between Two Clients CH. 12
Wilkersons retained the law firm of Sheldon J. Schlesinger, P.A.
(Schlesinger firm) and filed suit against the driver and owner of the other
vehicle and others for injuries suffered by the three of them in the accident.
The action included a count against petitioner State Farm Mutual
Automobile Insurance Company (State Farm), the Wilkersons’ insurer, for
uninsured motorist coverage. The Wilkersons also filed a separate
malpractice action against various health care providers for alleged
negligent treatment of their daughter after the accident. The Schlesinger
firm represented the Wilkersons in the malpractice action.
After the personal injury action had proceeded for approximately one
year, the Wilkersons added new defendants, including petitioners
Interstate Fire and Casualty Company and Continental Casualty
Company, which had issued uninsured motorist insurance to Wilkerson’s
employer. The following year, the Wilkersons’ attorneys determined that
David Wilkerson’s negligence may have contributed to the automobile
accident. Thereupon, Mr. Wilkerson discharged the Schlesinger firm as his
counsel in the personal injury action and retained a former member of the
Schlesinger firm as new counsel. Shortly thereafter, Mrs. Wilkerson and
her daughter filed a second amended complaint in that action, adding
David Wilkerson as a defendant. The Schlesinger firm continued to
represent Mrs. Wilkerson and the daughter in that action, and Mr.
Wilkerson consented to be sued up to the limits of his insurance coverage.
The firm also continued to represent all three Wilkersons in the medical
malpractice action.
Asserting their exposure as liability insurers of Mr. Wilkerson, each of
the petitioners filed motions seeking the disqualification of the Schlesinger
firm in the personal injury action. Petitioners objected to the potential for
the Schlesinger firm to use confidential information gained during the
course of the prior representation of Mr. Wilkerson in this action against
him. In opposition to the motion, David Wilkerson filed an affidavit stating
that he did not consider anything he discussed with Sheldon Schlesinger
privileged because he had disclosed everything in his deposition and he did
not feel that Mr. Schlesinger’s representation of his wife and daughter
disadvantaged him in any way. Mrs. Wilkerson also submitted an affidavit
in which she stated that she and her daughter would be prejudiced if the
Schlesinger firm were required to withdraw.
The trial court refused to disqualify the Schlesinger firm, finding that
the petitioners lacked standing to request disqualification in the face of Mr.
Wilkerson’s consent to the firm’s representation of his wife and child. In
addition, the court found that the petitioners failed to show clearly and
convincingly that they would be prejudiced or that the continued
representation would interfere with the fair and impartial administration
of justice. The Fourth District Court of Appeal denied the insurers’
petitions for writ of certiorari, finding no proof of substantial prejudice or
 Conflicts of Interest—Conflicts
Ch. 12 ______________ Between Two Clients_________________ 327
circumstances calling into question the fair and efficient administration of
justice.
While not addressed by the majority opinion below, we shall first
discuss the question of the petitioners’ standing. The Wilkersons contend
that an attorney may not be disqualified where the former client has
consented to the representation.
* * * The rule urged by the Wilkersons is based on the premise that
rules governing attorney conduct are intended for the protection of the
client, who may either explicitly or implicitly waive that protection. On the
other hand, the petitioners argue that they have standing because as
insurance companies they will be liable for the payment of any judgment
against David Wilkerson in this action.
***
The ethical principle at issue is an attorney’s duty to maintain the
confidences of his client. That principle is embodied in two rules of
professional conduct. Rule Regulating The Florida Bar 4—1.6(a) provides
that “[a] lawyer shall not reveal information relating to representation of a
client * * * unless the client consents after disclosure to the client? The
duty of confidentiality continues after termination of the attorney-client
relationship. See Comment to rule 4—1.6.
Rule Regulating The Florida Bar 4—1.9 provides:
A lawyer who has formerly represented a client in a matter shall not
thereafter:
(a) Represent another person in the same or a substantially
related matter in which that person’s interests are materially
adverse to the interests of the former client unless the former
client consents after consultation; or
(b) Use information relating to the representation to the
disadvantage of the former client except as rule 4—1.6 would
permit with respect to a client or when the information has
become generally known.*

* Rule Regulating The Florida Bar 4-1.7 is also pertinent here. That rule provides:
(a) A lawyer shall not represent a client if the representation of that client will be
directly adverse to the interests of another client, unless:
(1) The lawyer reasonably believes the representation will not adversely affect the
lawyer’s responsibilities to and relationship with the other client; and
(2) Each client consents after consultation.
Mr. Wilkerson is. in effect, both a former client of the Schlesinger firm for purposes of rule 4—1.9
(in the personal injury action) and a current client for purposes of rule 4-1.7 (in the medical
malpractice action). The duty of confidentiality is present regardless of whether Mr. Wilkerson is
viewed as the firm’s former or current client.
[The Florida Rules are identical to ABA Model Rules 1.6, 1.7 and 1.9 as they existed before
amendment in 1989—Eds.]
 Conflicts of Interest—Conflicts
328 Between Two Clients Ch. 12
The purpose of the requirement that an attorney maintain client
confidences is two-fold. It advances the interests of the client by
encouraging a free flow of information and the development of trust
essential to an attorney-client relationship. Developments in the Law:
Conflicts of Interest in the Legal Profession, 94 Harv.L.Rev. 1244, 1316
(1981). However, it also serves a second purpose fundamental to a fair
adversary system. Our legal system cannot function fairly or effectively if
an attorney has an informational advantage in the form of confidences
gained during a former representation of his client’s current opponent. Id.
at 1315-16; * * * .
The question then is whether the insurers may “stand in the shoes” of
their insured for purposes of seeking disqualification of the Schlesinger
firm on grounds of conflict of interest. Comments to the Rules of
Professional Conduct indicate that under certain circumstances someone
other than the client may request disqualification. Thus, where a conflict
“is such as clearly to call in question the fair or efficient administration of
justice, opposing counsel may properly raise the question.” Comment to
Rule Regulating The Florida Bar 4-1.7. * * *
We find that the facts of this case call into question the fair
administration of justice. Mr. Wilkerson is not exposed to any personal
liability because he may be sued only up to the amount of any available
insurance coverage. * * * This is, in reality, not an action between Mr.
Wilkerson and his child, but an action by the mother and child against the
parent’s insurance carriers. Mr. Wilkerson is in a position adverse to his
daughter in theory only. He reasonably hopes to enhance his daughter’s
chance of recovery. The petitioners, on the other hand, will be acting in Mr.
Wilkerson’s defense, attempting to persuade the fact finder that he was not
negligent in the automobile accident in order that they may avoid liability.
Because of this situation, Wilkerson’s consent to the firm’s representation
of his wife and daughter does not end the inquiry. Information disclosed by
Mr. Wilkerson to his attorneys during the course of the attorney-client
relationship could be used to prove that Mr. Wilkerson was negligent. This
is adverse to the petitioners who are obligated to act in his defense. The
unfairness of the situation results from the fact that Mrs. Wilkerson and
her daughter have a potential informational advantage over those who
must defend Mr. Wilkerson which was gained as a result of her law firm’s
former representation of Mr. Wilkerson in this action. It defies logic to
suggest that the petitioners do not have a legitimate interest in seeking to
prevent the opposing parties from using confidential information obtained
from their insured through a prior attorney-client relationship. We
conclude that the petitioners have standing to request the law firm’s
disqualification.
We next address the issue of the appropriate standard to apply to
determine whethei’ the Schlesinger firm should be disqualified. In conflict-
 Conflicts of Interest—Conflicts
Ch. 12_______________ BETWEEN TWO CLIENTS_______________________ 329
of-interest cases such as this arising under the former Code of Professional
Responsibility, one seeking to disqualify opposing counsel was required to
show that (1) an attorney-client relationship existed, thereby giving rise to
an irrefutable presumption that confidences were disclosed during the
relationship, and (2) the matter in which the law firm subsequently
represented the interest adverse to the former client was the same or
substantially related to the matter in which it represented the former
client. This standard was based on the Code of Professional Responsibility,
Canon 4, which provided that an attorney should preserve the confidences
and secrets of a client.
* * * The Rules of Professional Conduct requiring confidentiality serve
the same purposes as the confidentiality requirements of the Code of
Professional Responsibility. Similarly, the need for the irrefutable
presumption continues to exist, just as under the former code. The
presumption acknowledges the difficulty of proving that confidential
information useful to the attorney’s current client was given to the
attorney. It also protects the client by not requiring disclosure of
confidences previously given to the attorney. See Government of India v.
Cook Indus., Inc., 422 F.Supp. 1057, 1060 (S.D.N.Y.1976) (if two actions
are substantially related, court will not require proof that attorney had
access to confidential information, nor give weight to attorney’s assertion
that he had no access to and did not possess confidential information), aff’d,
569 F.2d 737 (2d Cir.1978).
Accordingly, we disagree with the court below that actual proof of
prejudice is a prerequisite to disqualification under these circumstances.
The Schlesinger firm represented Mr. Wilkerson in the personal injury
action for more than two years, and the existence of this relationship raised
the irrefutable presumption that confidences were disclosed. Moreover, the
firm continues to represent Mr. Wilkerson in the medical malpractice
action. Under Florida law, Mr. Wilkerson could be found liable in the
instant case not only for those injuries which were sustained by his
daughter in the automobile accident but also for any injuries she received
as a result of any subsequent medical malpractice. Thus, even now Mr.
Wilkerson may be disclosing confidences to the Schlesinger firm as his
counsel in the medical malpractice action which could be used against him
by the Schlesinger firm in the instant case.
In reaching our decision, we do not imply any misconduct on the part
of the Schlesinger firm. In this respect, we find the statement in Rotante v.
Lawrence Hospital, 46 A.D.2d 199, 200, 361 N.Y.S.2d 372, 373 (1974),
apropos:
While these facts neither indicate nor imply any departure from
professional conduct or breach of any ethical canon, we cannot
escape the conclusion that this is a situation rife with the
 Conflicts of Interest—Conflicts
330 Between Two Clients Ch. 12
possibility of discredit to the bar and the administration of justice.
Obviously Mr. Turkewitz cannot erase from his mind the
confidences he received from his former client or the plan of
defense he envisaged. Though we do not dispute his good faith or
the good faith of the firm representing plaintiff, both the
possibility of conflict of interest and the appearance of it are too
strong to ignore.
We quash the decision below and direct that the Schlesinger firm be
disqualified from further representation of Mrs. Wilkerson and her minor
child in this action.
It is so ordered.
* * 'k

Kirk v. First American Title Insurance Co.

California Court of Appeal, Second District, 2010.
183 Cal.App.4th 776,108 Cal.Rptr.3d 620.

Croskey, J.
When an attorney obtains confidential information from a client, that
attorney is prohibited from accepting a representation adverse to the client
in a matter to which the confidential information would be material. In this
case, we are not concerned with the issue of disqualifying the attorney
possessing the material client confidences from representing an adverse
party; it is conceded that the attorney is disqualified from doing so. Instead,
we are concerned with the issue of the vicarious disqualification of the
attorney’s entire law firm. We conclude that, under the circumstances of
this case, automatic vicarious disqualification is not required, and that,
instead, there is a rebuttable presumption that the attorney’s knowledge of
client confidences is imputed to the firm, which can be refuted by evidence
that the law firm adequately screened the attorney from the others at the
firm representing the adverse party. In addition, as the disqualified
attorney has left the firm, the trial court’s examination of the screen’s
adequacy should be on a retrospective, not prospective, basis.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Underlying Litigation
The instant attorney disqualification dispute arose in the context of
four related class actions brought against First American Title Insurance
Company * * *. Each class action is based on different allegations,
although they each challenge business practices of First American as
violative of, among other things, various consumer protection laws. * * *
[TJhe plaintiffs were represented by the Bernheim Law Firm and the Kick
Law Firm. * * *
 Conflicts of Interest—Conflicts
Ch. 12_______________ Between Two Clients_________________ 331
First American was represented by Bryan Cave, LLP. * * *
The related class action litigation is large, time-consuming, and
expensive. A discovery referee was appointed and handled numerous
disputes. The First American team defended multiple depositions and
reviewed hundreds of thousands of pages of documents. By April 2009,
First American had incurred over $5.5 million in attorney’s fees in the
related class actions and another $1 million in additional expenses. The
related class actions are extremely complex and have been aggressively
litigated.
2. Plaintiffs’ Counsel Contact Gary Cohen
At one time, Gary Cohen had been Deputy Commissioner and General
Counsel at the California Department of Insurance. In October 2007, he
was chief counsel for Fireman’s Fund Insurance Company. During that
month, plaintiffs’ counsel spoke by telephone with Cohen and solicited his
services as a consultant in the related class actions, apparently due to his
experience at the Department of Insurance.
After introductions by a mutual acquaintance, a 17-minute phone call
took place between Cohen and plaintiffs’ counsel. While it is clear that some
portion of the conversation was devoted to Cohen’s experience and
qualifications, it is undisputed that plaintiffs’ counsel, during this
conversation, conveyed confidential information to Cohen material to the
related class actions. Indeed, Attorney Bernheim specifically told Cohen
that plaintiffs’ counsel would be discussing confidential information. While
the precise content of the information disclosed is not identified, plaintiffs’
counsel conveyed attorney work product to Cohen, including plaintiffs’
theories of the case, and their concerns regarding defense strategy and
tactics. Plaintiffs’ counsel also disclosed their estimates of the value of the
cases.
Cohen expressed his interest in the related class actions, but indicated
that he had to obtain permission from his employer before he could work
with plaintiffs’ counsel. A series of e-mails followed, the upshot of which
was that Cohen declined the consultant position. * * * Cohen did not,
however, cut off all communication with plaintiffs’ counsel. Instead, when
plaintiffs’ counsel asked if, despite Cohen’s inability to become plaintiffs’
consultant, plaintiffs’ counsel could make “contact with [Cohen] one more
time regarding [his] thoughts,” Cohen responded that he would telephone
plaintiffs’ counsel later.
Nothing further happened relevant to this matter for more than a
year. Then, on December 8, 2008, the law firm of Sonnenschein Nath &
Rosenthal LLP (Sonnenschein) issued a press release announcing that
Cohen would join its San Francisco office as a partner in its insurance
regulatory practice group on January 5, 2009.
 Conflicts of Interest—Conflicts
332_____ ________ Between Two Clients__________________ Ch. 12
Upon learning [this,] plaintiffs’ counsel again e-mailed Cohen and
reasserted their interest in hiring him as an expert consultant. On January
12, 2009, after Cohen had moved to Sonnenschein, Cohen responded,
stating that he would do a conflicts check and asking for one of the
complaints to be sent to him by e-mail. The next day, plaintiffs’ counsel
sent to Cohen edited versions of the complaints (reducing them to what
plaintiffs’ counsel believed to be the main issues). Less than a half-hour
later, Cohen responded, “It turns out that the firm does represent First
American, so I’m afraid that I won’t be able to be of any help. I haven’t read
the attachments to your email and will delete them without having read
them.” There was no further contact between Cohen and plaintiffs’ counsel.
3. The First American Team Moves to Sonnenschein
On February 2, 2009, the First American team moved from Bryan
Cave to Sonnenschein. * * *
* * * On February 4, 2009, plaintiffs filed a case management
statement in which they “objected” to the representation of First American
by Sonnenschein, due to their prior confidential consultation with Cohen.
Until that point, the First American team had been unaware of Cohen’s
prior contacts with plaintiffs’ counsel. * * * [Sonnenschein thereafter]
established an ethical screen around Cohen. That night, * * * a
memorandum [was sent] to all attorneys, paralegals, and secretaries at
Sonnenschein, setting forth “mandatory screening procedures” for the
related class actions.
The screening memorandum recites that it was created to “formalize
and memorialize the procedures necessary to assure that no confidences or
secrets relating to the [related class actions] will be disclosed, even
inadvertently, to [the First American team] or any other Sonnenschein
lawyer who may be asked to work on the [related class actions].” The
memorandum indicated that the failure to observe the procedures would
subject the offender to discipline. The memorandum provided that: (1)
Cohen could not work on the related class actions; (2) no attorney or
paralegal who may work on the related class actions may discuss them with
Cohen; (3) Cohen may not be given non-public documents pertaining to the
related class actions; (4) Cohen shall not access any documents on
Sonnenschein’s computer network pertaining to the related class actions;
and (5) no fees from any work related to the related class actions would be
apportioned to Cohen.
***
5. The Disqualification Motion
On March 18, 2009, plaintiffs moved to disqualify Sonnenschein from
further representation of the First American defendants, based on
plaintiffs’ counsel’s prior confidential communications with Cohen.
 Conflicts of Interest—Conflicts
o Ch. 12_______________ Between Two Clients_________________ 333
Q Sonnenschein opposed the motion, although it retained independent
counsel to prepare the opposition in order to preserve its ethical wall. Much
CD of the dispute centered on whether plaintiffs’ counsel actually conveyed
confidential information to Cohen; this is not an issue on appeal. As to
O whether the entire Sonnenschein firm should be vicariously disqualified,
CD Sonnenschein relied on the ethical screening wall it had constructed. * * *
First American * * * submitted the declaration of its Senior Vice President
CD and national litigation counsel, who testified to the key experience of the
First American team and their irreplaceability. Specifically, he stated that
c it would cost First American millions of dollars to retain new counsel
sufficiently prepared to defend the related class actions, “although it would
o be impossible for new counsel to attain the level of knowledge and
proficiency of First American’s current attorneys.”
6. Order Granting Disqualification
c The trial court ultimately granted the motion for disqualification. In
its order, the trial court indicated that, (“n]o one is to blame for this
CD situation except perhaps the itinerant nature of attorneys that has
developed over the last fifteen years.” The trial court found that plaintiffs’
c counsel disclosed confidential and privileged attorney work product
information to Cohen during the initial 17-minute telephone call, a
o conclusion not challenged on appeal.
c As to vicarious disqualification, the court reviewed applicable case law,
and concluded that, when an attorney possesses disqualifying confidential
o client information, vicarious disqualification of the law firm is automatic,
regardless of any ethical screening wall created.
o ***
CD First American and Sonnenschein filed timely notices of appeal. * * *
ISSUES ON APPEAL
o
It is undisputed that Cohen possessed confidential client or attorney
o work product information from plaintiffs’ counsel that is material to the
related class actions. It is also undisputed that Cohen is disqualified from
c representing First American in the related class actions. The first issue
presented by this appeal is whether Sonnenschein must be automatically
CD vicariously disqualified from representing First American, or if it may
avoid vicarious disqualification by the construction of a proper ethical wall.
CD Concluding that vicarious disqualification is not automatic, but may be
rebutted by a proper ethical wall, we reach the second issue, which is the
CD standards by which a proper ethical wall is to be judged. * * *
CD DISCUSSION
***
c
c
c
CD
 Conflicts of Interest—Conflicts
334 Between two Clients Ch. 12
We do not doubt that vicarious disqualification is the general rule, and
that we should presume knowledge is imputed to all members of a tainted
attorney’s law firm. However, we conclude that, in the proper
circumstances, the presumption is a rebuttable one, which can be refuted
by evidence that ethical screening will effectively prevent the sharing of
confidences in a particular case.
***
While we believe our interpretation of the law follows from our
analysis of its historical development, this much seems clear: the Supreme
Court has not considered and definitively decided whether the presumption
of imputed knowledge can be rebutted in a nongovernment attorney
context with evidence of an ethical wall. We therefore consider three factors
which lead us to conclude ethical walls should be recognized in California:
(1) changing realities in the practice of law which undermine the rationale
for an automatic rule of vicarious disqualification; (2) California’s favorable
experience with ethical walls in other circumstances; and (3) an
understanding of policy considerations which supports the recognition of
ethical walls in the proper cases.
***
a. Changing Realities are Undermining the Rationale for an
Automatic Rule of Vicarious Disqualification
* 'k k

Other states are very nearly split evenly as to whether to permit

ethical screening of attorneys moving from one private law firm to another.
Twelve states have adopted rules of professional conduct permitting such
screening with no limitations based on the scope of the disqualified
attorney’s prior involvement in the representation. (Del. Rules Prof.
Conduct, rule 1.10; Ill. Rules Prof. Conduct, rule 1.10; Ky. Supr. Ct. Rules,
rule 3.130(1.10); Md. Rules Prof. Conduct, rule 1.10; Mich. Rules Prof.
Conduct, rule 1.10; Mont. Rules Prof. Conduct, rule 1.10; N.C. Rules Prof.
Conduct, rule 1.10; Or. Rules Prof. Conduct, rule 1.10; Pa. Rules Prof.
Conduct, rule 1.10; R.I. Rules Prof. Conduct, rule 1.10; Utah Rules Prof.
Conduct, rule 1.10; Wash. Rules Prof. Conduct, rule 1.10.) An additional
twelve states have adopted rules permitting screening when the
disqualified attorney was not substantially involved in the prior
representation, or under other similar limitations on the attorney’s prior
involvement. (Ariz. Ethics Rules, rule 1.10; Colo. Rules Prof. Conduct, rule
1.10; Ind. Rules Prof. Conduct, rule 1.10; Mass. Rules Prof. Conduct, rule
1.10; Minn. Rules Prof. Conduct, rule 1.10; Nev. Rules Prof. Conduct, rule
1.10; N.J. Rules Prof. Conduct, rule 1.10; N.M. Rules Prof. Conduct, rule
16-110; N.D. Rules Prof. Conduct, rule 1.10; Ohio Rules Prof. Conduct, rule
1.10; Tenn. Rules Prof. Conduct, rule 1.10; Wis. Supr. Ct. Rules, rule
20:1.10.)
 Conflicts of Interest—Conflicts
Ch. 12_______________ Between Two Clients_________________ 335
That nearly half of the states have chosen to permit some level of
ethical screening in the non-government attorney context demonstrates a
growing understanding that law is often practiced in firms in which
effective screening is possible. * * *
***
[T]he issue of whether attorney screening can overcome vicarious
disqualification in the context of an attorney moving between private law
firms is not clearly settled in California law. * * *
b. California's Experience in Other Contexts Suggests that
Ethical Screening in Private Law Firms Can Be Effective
It is undisputed that the presumption of imputed knowledge is
uniformly rebuttable and may be overcome by a proper ethical screen when
the issue arises in the context of government and former government
attorneys. * * * Yet if ethical screening can, in any given case, be considered
effective to screen a former government attorney in a private law firm, it
gives rise to the question why screening cannot be equally effective to
screen a private attorney in the same private law firm. The effectiveness of
the screening process depends on the policies implemented by the law firm,
not on the former employment of the screened attorney.
There is another context in which a rebuttable presumption of imputed
knowledge—and therefore, the use of ethical screens—has been adopted,
that of the tainted non-attorney employee. When a tainted non-attorney
employee of a law firm, possessing confidential case information, moves to
an opposing law firm, vicarious disqualification of the opposing law firm is
not necessary if the employee is effectively screened. * * *
In all of these situations—government employees, former government
employees, non-attorney employees, experts, and expert firms—the
presumption of imputed knowledge is rebuttable, not conclusive. Moreover,
the use of a rebuttable presumption is not justified as a “necessary evil” in
order to advance important policy considerations. Instead, the rebuttable
presumption is accepted because it is believed that, under the proper
circumstances, ethical screening can work. There is no legitimate reason to
believe that the same screening could not work in the context of private
attorneys at a private firm. * * *
c. Policy Considerations
Plaintiffs argue that there should be an irrebuttable presumption of
imputed knowledge and automatic disqualification in order to “preserve
public trust in the scrupulous administration of justice and the integrity of
the bar.” * * * We agree that preservation of the public trust is a policy
consideration of the highest order. However, it is just one of the many policy
interests which must be balanced by a trial court considering a
disqualification motion, and we are not prepared to say that this interest
 Conflicts of Interest—Conflicts
336 Between Two Clients Ch. 12
always outweighs the opposing party’s right to counsel of its choice. We
reiterate the policy considerations to be taken into consideration in a
motion for disqualification: (1) a client’s right to chosen counsel; (2) an
attorney’s interest in representing a client; (3) the financial burden on a
client to replace disqualified counsel; (4) the possibility that tactical abuse
underlies the disqualification motion; (5) the need to maintain ethical
standards of professional responsibility; and (6) the preservation of public
trust in the scrupulous administration of justice and the integrity of the
bar. * * *
In this regard, we find persuasive the following analysis of the ABA
Standing Committee on Ethics and Professional Responsibility: “[FJraming
the issue of imputation as a choice between client protection and lawyer
mobility presents a false choice. Clients must be protected, and their
confidence (as well as that of the public) in their lawyers’ promise to keep
their secrets must be preserved. The question is not whether but how that
should be accomplished. No one contends that the lawyer himself may
represent others against a former client on substantially related matters
after moving to a new firm. [The Model Rules are] unequivocal on this
subject. In addition, no one disputes that the confidentiality duty continues
after termination of the client-lawyer relationship. If a lawyer breaches
that duty, she is subject to discipline, whether she has changed firms or
not. Screening is a mechanism to give effect to the duty of confidentiality,
not a tool to undermine it.” (ABA Standing Committee on Ethics and
Professional Responsibility, Recommendation 109 (February 16, 2009) pp.
10—11; italics in original.) The Standing Committee further noted,
“Although much of the debate over lateral screening has been focused on
the concerns of the clients of the lateral’s former firm, there is a parallel
set of interests: after a transferring lawyer has been hired, every imputed
disqualification based on the unavailability of screening results in a client
that loses its law firm of choice. The harm to all such clients is real, not
theoretical. Often the disqualification of a firm, based upon an imputed
conflict of a newly-hired lawyer, occurs after a matter is well under way
and the affected client has spent substantial sums in fees. Typically, such
clients have played no part in the circumstances that led to the imputed
disqualification, yet they suffer the cost, disruption, and delay resulting
from it. [H] * * * Thus, clients have interests on both sides of the screening
question. Screening does not solve all such problems, but reduces them to
situations where the interests of the former clients cannot adequately be
addressed by the screening mechanism.” {Id. at pp. 11—12.)
In short, the general policy concern of “client protection” is not merely
the interest in protecting client confidences which would weigh in favor of
vicarious disqualification in all cases. It is, instead, a two-fold concern,
which also implicates the interest in protecting a client who has established
a longstanding relationship with counsel, and is at risk of losing that
 Conflicts of Interest-Conflicts
Ch. 12_______________ Between Two Clients_________________ 337
attorney by means of vicarious disqualification, through no fault of the
client (or the client’s attorney). A properly established ethical screen can
satisfy both concerns—protecting client confidences from being used
against the client by the tainted attorney’s new firm, while still protecting
the opposing client’s longstanding attorney-client relationship.
***
We * * * are not here attempting to effect a balancing of the policy
interests in this case—this will be a matter for the trial court on remand.
We do conclude, however, that, in certain cases, the public trust in the
scrupulous administration of justice is not advanced (and, in fact, may be
undermined) by an order disqualifying a party’s long-term counsel due to
the presence of another attorney in a different office of the same firm, who
possesses only a small amount of potentially relevant confidential
information, and has been effectively screened.
5. The Elements of an Effective Screen
Once the moving party in a motion for disqualification has established
that an attorney is tainted with confidential information, a rebuttable
presumption arises that the attorney shared that information with the
attorney’s law firm. The burden then shifts to the challenged law firm to
establish “that the practical effect of formal screening has been achieved.
The showing must satisfy the trial court that the [tainted attorney] has not
had and will not have any involvement with the litigation, or any
communication with attorneys or [ ] employees concerning the litigation,
that would support a reasonable inference that the information has been
used or disclosed.” (In re Complex Asbestos Litigation, supra, 232
Cal.App.3d at p. 596, 283 Cal.Rptr. 732.)
The specific elements of an effective screen will vary from case to case,
although two elements are necessary: First, the screen must be timely
imposed; a firm must impose screening measures when the conflict first
arises. It is not sufficient to wait until the trial court imposes screening
measures as part of its order on the disqualification motion. * * * Second,
it is not sufficient to simply produce declarations stating that confidential
information was not conveyed or that the disqualified attorney did not work
on the case; an effective wall involves the imposition of preventive
measures to guarantee that information will not be conveyed. * * * “To
avoid inadvertent disclosures and establish an evidentiary record, a
memorandum should be circulated warning the legal staff to isolate the
[tainted] individual from communications on the matter and to prevent
access to the relevant files.” (In re Complex Asbestos Litigation, supra, 232
Cal.App.3d at p. 594, 283 Cal.Rptr. 732.)
“The typical elements of an ethical wall are: [1] physical, geographic,
and departmental separation of attorneys; [2] prohibitions against and
 Conflicts of Interest—Conflicts
338__________________ Between Two Clients______________ Ch. 12
sanctions for discussing confidential matters; [3] established rules and
procedures preventing access to confidential information and files; [4]
procedures preventing a disqualified attorney from sharing in the profits
from the representation; and [5] continuing education in professional
responsibility.” * * * We briefly discuss the first four of these elements. We
stress, however, that the inquiry before a trial court considering the
efficacy of any particular ethical wall is not to determine whether all of a
prescribed list of elements (beyond timeliness and the imposition of
prophylactic measures) have been established; it is, instead, a case-by-case
inquiry focusing on whether the court is satisfied that the tainted attorney
has not had and will not have any improper communication with others at
the firm concerning the litigation.
The first factor—physical, geographic and departmental separation of
attorneys—can also be described as “isolation.” Isolation of the tainted
attorney is the best way to prevent the accidental disclosure of confidential
information. The rule of vicarious disqualification is based on the “everyday
reality that attorneys, working together and practicing law in a
professional association, share each other’s, and their clients’, confidential
information.” * * * Close proximity of attorneys “increases the actual risk
of intentional or unintentional disclosure of [client] confidential
information.” * * * In a small practice group, separating the tainted
attorney from the case alone might not be sufficient; separation from the
attorneys handling the case can prevent inadvertent disclosure. * * *
We turn to the second factor—prohibitions against the discussion of
confidential information. Such a prohibition is the primary goal of any
ethical wall. In all but the most unusual case, it would be necessary for the
challenged law firm to establish express prohibitions against the discussion
of confidential information as part of its ethical wall. The purpose of an
ethical wall is prophylactic; it seeks to prevent the sharing of client
confidences which is otherwise assumed when attorneys are practicing
together. An express prohibition against discussing the information which
must not be discussed is a basic first step toward establishing this goal.
The third factor—established rules and procedures preventing access
to confidential information and files—focuses on additional ways to prevent
the accidental disclosure of confidential information. Files may be stored
in a separate location to which the tainted attorney has no access. * * *
Warnings can be posted on file room doors * * * or files may be protected
by lock and key * * * . Electronic documents can be coded with restrictions
on access. * * * As with the other factors, we do not hold that any particular
method of preventing access to confidential information and files is
necessary—indeed, a trial court might conclude that a simple directive not
to access the information is sufficient. The more steps a firm has taken to
prevent any disclosure, however, the more likely it is that a court will find
the ethical wall to be sufficient.
 Conflicts of Interest—Conflicts
Ch. 12_______________ Between Two Clients_________________ 339
The fourth factor is the establishment of procedures preventing a
disqualified attorney from sharing in the profits from the representation.
ABA Model Rules of Professional Conduct, rule 1.10(a)(2)(i) specifically
provides that vicarious disqualification is not necessary when the
disqualified lawyer is timely screened from participation in the matter “and
is apportioned no part of the fee therefromf.]” Comment 8 to that rule
provides that it “does not prohibit the screened lawyer from receiving a
salary or partnership share established by prior independent agreement,
but that lawyer may not receive compensation directly related to the
matter in which the lawyer is disqualified.” The rationale is clear; if the
disqualified attorney will not share in the profits of the representation,
there is no financial incentive for the disqualified attorney to covertly assist
the representation by improperly disclosing confidential information.
An additional element favorably acknowledged in caselaw is that the
disqualified attorney have no supervisory powers over the attorneys
involved in the litigation, and vice-versa. * * * This is similar to the factor
discussed above, that the tainted attorney receive no compensation from
the matter. If the attorneys handling the matter are supervising the
tainted attorney; the tainted attorney may feel an obligation to assist the
supervising attorneys in their representation. Likewise, if the tainted
attorney is supervising the attorneys involved in the litigation, there could
be concerns that the tainted attorney sets policies that might bear on the
subordinates’ handling of the litigation. * * *
Although not discussed in the caselaw, we believe one additional
factor, commonly noted in ethical rules governing imputed conflicts, should
also be considered by trial courts in their analysis: notice to the former
client. * * *
The reasons for providing notice to the former client should be obvious.
Notice increases the public perception of the integrity of the bar, by making
the interested party aware of the potential threat to its confidential
information and the measures taken to prevent the improper use or
disclosure of such information. Moreover, notice establishes an
enforcement mechanism, in that the interested party will be able to suggest
measures to strengthen the wall, and to challenge any apparent breaches.
However, the interested party’s consent is not required.
We note that these are the “typical elements” of a wall. Each of these
elements need not necessarily be present for an ethical wall to be sufficient
to rebut the presumption of imputed knowledge. Any ethical wall must
ultimately be judged by whether it is sufficient to meet its purpose:
satisfying the trial court that the tainted attorney has not had and will not
have any involvement with, or communication concerning, the litigation
that would support a reasonable inference that confidential information
was or will be disclosed.
 Conflicts of Interest—Conflicts
340__________________ Between Two Clients______________ Ch. 12
6. The Trial Court Erred in Ruling Vicarious Disqualification was
Automatic
In sum, we have concluded that, when a tainted attorney moves from
one private law firm to another, the law gives rise to a rebuttable
presumption of imputed knowledge to the law firm, which may be rebutted
by evidence of effective ethical screening. However, if the tainted attorney
was actually involved in the representation of the first client, and switches
sides in the same case, no amount of screening will be sufficient, and the
presumption of imputed knowledge is conclusive. * * *
When considering a motion to disqualify a law firm on the basis of
imputed knowledge in a case where the presumption is rebuttable, a trial
court should consider, on a case-by-case basis, whether the ethical
screening imposed by the firm is effective to prevent the transmission of
confidential information from the tainted attorney. Moreover, the court
should consider all of the policy interests implicated by the disqualification
motion, in determining how to exercise its discretion. In this case, the trial
court concluded that automatic vicarious disqualification was the rule; this
was error.
***
DISPOSITION
The order of disqualification of the Sonnenschein firm is reversed. The
matter is remanded to the trial court for further proceedings not
inconsistent with the views expressed herein. Each party shall pay its own
costs on appeal.

I. JOINT REPRESENTATION
The ABA Model Rules do not prohibit lawyers from representing two
or more clients in a particular matter, subject to the Rules’ provisions
regarding conflicts of interest. Multiple representation also potentially
implicates Rule 1.8(g)’s prohibition against “aggregate settlements” unless
each client consents after full disclosure. [See ABA Standing Comm, on
Ethics and Professional Responsibility, Formal Op. 06—438 (2006)
(disclosure requirements under Rule 1.8(g)).] Professor Bassett considers
the myriad situations in which joint representation issues arise and sets
forth an analysis of the risks and benefits of joint representation in “Three’s
A Crowd: A Proposal to Abolish Joint Representation” 32 Rutgers L. J. 387,
433-38 (2001):*
Three basic policy considerations underlie the conflict of
interest rules dealing with joint representation: (1) the interests
* Copyright 2001, Debra Lyn Bassett and Rutgers Law Journal. Reprinted with permission.
 Conflicts of Interest—Conflicts
Ch. 12 Between Two Clients 341
of clients in certain objectives that are available through joint
representation; (2) the need to protect clients from the dangers of
joint representation; and (3) the desire to preserve lawyers’
reputations by avoiding apparent impropriety. These policies
indicate the ethical rules concerning joint representation involve
a balancing of the risks of the latter two considerations with the
client benefit resulting from permitting the practice. Accordingly,
it is appropriate to examine the benefits resulting from joint
representation.
Joint representation is desirable from a client’s perspective
primarily because it is cost-effective. Other proffered justifications
include maintaining an amicable relationship with the co-client;
the desire to retain a particular attorney—whether due to
reputation, prior relationship, or familiarity with the subject of
the representation; and the “united front” strategy.
Joint representation also confers benefits upon lawyers. The
practice is desirable from the attorney’s perspective because,
assuming the clients desire joint representation, it permits the
attorney to please those clients by agreeing to undertake the
representation; it generates more revenue; and it eliminates some
of the very real problems that can arise in separate representation
concerning communications with a party represented by counsel.
However, joint representation also presents inherent
problems. Joint representation reduces the protection available
under the attorney-client privilege. Joint representation also
compromises confidentiality due to the lawyer’s duty to inform all
co-clients of all information relevant to the representation.
Moreover, joint representation always presents the potential
for a disqualifying conflict of interest. When a lawyer agrees to
provide joint representation, the lawyer acquires two (or more)
separate clients, each of whom is entitled to the lawyer’s best
efforts and loyalty. The attorney is not permitted to prioritize
clients by, for example, treating the corporate employer as the
“primary” or “real” client and the employee as an expendable
“secondary” client. Thus, if the clients’ interests diverge, the
attorney is subject to disqualification and must withdraw—
usually causing both financial and tactical hardship for the
clients, and potentially resulting in a malpractice claim or
disciplinary charges against the lawyer. The lawyer’s withdrawal
requires each client to retain individual counsel, resulting in
duplication of effort and expense for both clients. The original
lawyer’s work product usually cannot be delivered to substitute
counsel, for the obvious reason that permitting substitute counsel
 Conflicts of Interest—Conflicts
342__________________ Between Two Clients______________ Ch. 12
access to the work product for all practical purposes negates the
effect of the original attorney’s withdrawal.
Accordingly, the primary justification for joint representation
from the clients’ perspective—the cost savings—is overshadowed
by the burden that will fall on the clients if the attorney is
subsequently required to withdraw. In exchange for the possibility
of reduced costs, the clients face the possibility of finding two new
counsel, perhaps on short notice. The clients likely will have to
pay new counsel to research some of the same issues the first
lawyer was paid to do, and may suffer tactical disadvantages
during the time the new attorneys are getting up to speed. The
other identified client benefits—maintaining an amicable
relationship with the co-client, strategy concerns, and the ability
to select a particular lawyer—similarly vanish when subsequent
withdrawal becomes necessary.
From the attorney’s perspective, joint representation
presents a potential loss of two clients. In addition to the loss of
income for that particular matter, the lawyer likely has lost any
future business from those clients due to the inconvenience caused
them by the lawyer’s withdrawal. If one of those affected was a
large corporate client, the future financial loss to the lawyer may
be substantial. The lawyer may also be required to forfeit any
legal fees earned before withdrawal. Moreover, if forced to
withdraw at a particularly unfortunate time, the lawyer may face
legal malpractice or disciplinary charges, which create both
financial and reputational concerns. Even absent actual charges,
disqualification or withdrawal may result in damage to the
lawyer’s reputation.
1. The current rules require the attorney to ascertain whether the
conflict between two clients is consentable, and if so, to obtain informed
written consent from both clients. Should the rules require a duty to
investigate in order to discover areas of potential inconsistency or
disagreement?
2. Professor Bassett also challenges the assumption that informed
consent should remedy any problem, stating that “the current ethical rules
and case law ascribe far too much credit to the curative power of waiver.”
Indeed, the notion of client consent as an effective remedy recurs
throughout the Model Rules. Can you articulate the benefits of permitting
client consent as a remedy to conflicts of interest—and can you examine
the pitfalls behind an assumption of consent as a remedy?
 Conflicts of Interest—Conflicts
Ch. 12 Between Two Clients 343

II. IMPUTED DISQUALIFICATION

AND SCREENING
Legal ethics rules and case law begin with the assumption that
lawyers working together in a single firm share each other’s, and their
clients’, secrets and confidences. [See ABA Model Rule 1.6, comment.] This
assumption is based on the realities of practice as well—both office routine
and financial rewards are shared within a firm. [See Restatement § 123,
comments 6-c.] Generally, the assumption works well; no one seriously
suggests that two partners within a single firm could represent adversaries
in litigation. One consequence of this assumption is that lawyers within a
firm must also share each other’s disqualifications for conflicts of interest;
one lawyer’s conflicts are imputed to all other lawyers in the firm. [See
generally ABA Model Rule 1.10(a) and comment 2; Restatement § 123.] In
a time of increased lawyer mobility, imputed disqualification rules can
quickly spread taints when lawyers move among firms, and the result can
spin out of control.
Under the ABA Code (1969-1983), imputed disqualification became a
near absolute rule. Code section DR 5-105(D) provided that if any one
lawyer in a firm was disqualified, all lawyers in the firm were. There was
no exception for client consent or waiver. [WOLFRAM, MODERN LEGAL
ETHICS § 7.6.2 at 394 (1986).] The ABA Model Rules have adopted a much
more flexible approach that does not apply to all disqualifying associations.
For example, spousal and other family conflicts [Rule 1.7 comment] and the
lawyer witness rule [Rule 3.7] do not come within the automatic
disqualifications. There is no automatic disqualification for all lawyers
with whom a departing lawyer had been associated [Rule 1.10(b).] Most
imputed disqualifications can be cured by informed client consent. [Rule
1.10(c).]
Nevertheless, imputed disqualification rules regularly create
problems for law firms when a lawyer moves from one firm to another. If a
client or former client of the former firm is involved as an adversary with
a client of the newly associated firm, both firms could end up disqualified,
and in sharply contested matters, removing the disqualification by client
consent is unlikely. The proposed favored solution from the bar is to protect
the new firm by screening off the tainted lawyer. Such devices are
commonly referred to today as “ethical walls.” Their approval in the courts
had been decidedly mixed and originally largely limited to former public
officers, government employees, and judges moving to private practices.
[See Model Rules 1.11 and 1.12 approving such screening and the
discussion in Kirk v. First American Title, supra.] In 2009, Model Rule 1.10
was amended to authorize screening when an attorney moves from one
private firm to another, subject to specified conditions, including that the
screened lawyer receives no part of the fee generated from the
 Conflicts of Interest—Conflicts
344__________________ Between Two Clients______________ Ch. 12
representation, and the provision of written notice regarding the screening
to the former client. [See ABA Formal Op. 09—455 (2009) (authorizing the
disclosure of information relevant to potential conflicts when a lawyer
moves from one firm to another, so long as the information does not violate
attorney-client privilege, is no more than necessary to identify potential
conflicts, and the disclosed information is not used for any other purpose).]

III. CONFLICTS OF INTEREST

AND PRO BONO PROJECTS
When an attorney wishes to undertake volunteer legal work on a pro
bono basis, must s/he conduct a standard conflicts check before
undertaking the pro bono representation? If the attorney is providing pro
bono services “under the auspices of a program sponsored by a nonprofit
organization or court,” the lawyer will fall within the more generous
provisions of Model Rule 6.5, which limits a lawyer’s exposure to conflicts
of interest only to representations where the lawyer knows that the
representation involves a conflict of interest. The rule similarly limits
imputed conflicts to those situations where “the lawyer knows that another
lawyer associated with the lawyer in a law firm is disqualified * * * ” [See
also Cal. Rules of Prof. Conduct, Rule 1—650 (patterned on ABA Model Rule
6.5).]

Multiple Choice questions

Answer these questions using the definitions found
at the end of Chapter Two.
1. After they graduated from law school, Cheryl and Dennis were
married and went to work for separate law firms in a large city. Cheryl’s
practice is primarily trademark litigation, and Dennis’s practice is primarily
general business counseling; only rarely does he become involved in trial work.
One of Dennis’s regular business clients sued a major corporation for
trademark infringement. Dennis and his law firm appear on the pleadings as
counsel for plaintiff, but, in fact, all of the trial work is being done by another
firm that specializes in trademarks. The defendant’s lead counsel died
suddenly, and his firm withdrew from the case. Now the defendant has asked
Cheryl and her firm to take over the defense. Which of the following is most
nearly correct?
A. If Cheryl and her firm agree to represent the defendant, then
Dennis and his firm will be subject to discipline if they do not seek their
client’s permission to withdraw.
c
Conflicts of Interest—Conflicts
o Ch, 12_______________ Between Two Clients_________________ 345
o B. Cheryl and her firm will be subject to discipline if she agrees to
represent the defendant, since to do so would create an appearance of
o impropriety.
Q7 C. If the respective clients consent after full disclosure of the
situation, then Cheryl and Dennis may participate on opposite sides of the
case.
D. Cheryl and Dennis may participate on opposite sides of the case,
o since the mere fact that they are married creates neither an actual nor an
apparent conflict of interest.
o 2. Law partners Norman and Enid are too busy to spend much time
c discussing their legal work with each other. For many years, Enid’s major
client has been Eratec Corporation, a diversified electronics firm with
o worldwide operations. Most of Norman’s time is devoted to his work as outside
general counsel for North American Industries, Inc. It is a diversified
o manufacturing company with operations in Canada, the United States, and
Mexico. Enid filed a law suit in the United States on behalf of a French
o subsidiary of Eratec. The defendant was a Canadian joint venture. When Enid
received the answer to the complaint, he was shocked to discover that North
c American was one of the three joint venturers, and that Norman was listed on
the caption of the answer as “Of Counsel” to the joint venture. Immediately
o after Enid called this to Norman’s attention, Norman explained the situation
to North American and to the lead counsel for the joint venture. Both readily
c consented to the removal of his name from the pleading. Enid then continued
in the case as counsel for the plaintiff, Eratec’s French subsidiary. Which of
c the following is most nearly correct?
A. Enid and Norman handled the matter in a proper manner, since
c Norman had his name removed from the pleading promptly after the
conflict of interest was discovered.
C
B. Enid is subject to discipline, even though Norman’s name was
Q promptly removed from the pleading.
C. Neither Enid nor Norman is subject to discipline* since the
C conflict of interest was unintentional and was remedied as soon as it was
discovered.
Q D. Enid handled the matter in a proper manner, but Norman is
C subject to discipline for failing to discover the conflict of interest at the
outset.
Q 3. R, S, T, and U are four sellers of high-speed photoimage reproductor
disks. U falsely advertises its disks, and U’s false statements injure R, S, and
c T by causing some of their customers to buy instead from U. But R. S, and T
are not sure of the precise amount of business each lost. The three of them hire
c Attorney A to represent them in a suit against U for an injunction and
damages, and A agrees to take the case for a 30% contingent fee. After
c extensive discovery, U’s attorney calls A with a settlement offer: U will consent
to a court order enjoining U from using the allegedly false statements in future
c
c
CD
 Conflicts of Interest—Conflicts
346 Between Two Clients Ch, 12
advertising, and U will pay a total of $100,000, in return for a full release of
all claims by R, S, and T. In A’s opinion, the consent order would adequately
protect R, S, and T from future harm, but A believes in good faith that $100,000
is ridiculously low and would not compensate R, S, and T for their past losses.
Which of the following is most nearly correct?
A. A will be subject to discipline if he accepts U’s settlement offer,
because he does not believe in good faith that $100,000 would sufficiently
compensate R, S, and T for their past losses.
B. A will be subject to discipline if he does not let R, S, and T decide
what to do about U’s settlement offer, even though he represents them on
a contingent fee basis, and even though he believes that $100,000 is not
enough to compensate them for their past losses.
C. A may accept U’s settlement offer, provided that he takes no
more than 30% of it as his fee, and that he distributes the remainder
equitably among R, S, and T.
D. A may reject U’s settlement offer, since he does not believe in
good faith that $100,000 would sufficiently compensate R, S, and T for
their past losses.
4. Wife Wendy and husband Harry ask attorney Anna to represent both
of them in a dissolution of marriage proceeding in a state that allows "no-fault”
dissolution. The couple has no children. Wendy is a successful young
pediatrician, and Harry is an unemployed computer programmer. They want
Anna to represent both of them because separate lawyers may cost more and
may stir up antagonism, and because they hope Anna can help them reach a
property and support agreement that is mutually acceptable. Which of the
following is most nearly correct?
A. If Anna represents both, she will be subject to discipline for
counseling both sides in an adversary proceeding.
B. Anna may represent both, provided that she obtains from them
separate covenants not to sue her later for legal malpractice.
C. If Anna represents both, she will be subject to discipline because
Wendy’s and Harry’s interests are in present, actual conflict.
D. Anna should not represent both, because it is unlikely that she
can serve both effectively.
5. Tillin gham, Wadsworth & DePew is a sprawling corporation law firm
with 200 partners, 600 associates, and branch offices in eight major cities.
Reynard DePew is the senior partner in charge of the firm’s Washington, D.C.,
branch office. A year ago, he was retained by Transpac Oil Company to prepare
some Transpac executives to testify before a Senate committee in opposition to
proposed antitrust legislation that would require all integrated oil companies
to divest themselves of their retail service stations. In connection with this
work, DePew received truckloads of confidential documents from Transpac
concerning competitive conditions in the retail end of the oil industry. DePew
 Conflicts of Interest—Conflicts
c Ch. 12 ____________ Between Two Clients_________________ 347
o did not share this confidential information with anyone in the firm’s Denver
branch office, nor did he ever discuss the matter with anyone in the Denver
CD office; indeed, no one in the Denver office even knew that DePew was working
on the matter. Eight months after the matter was concluded, the Independent
o Service Station Dealers of America asked the firm’s Denver office to represent
it as plaintiff in an antitrust action against nine major integrated oil
c- companies, including Transpac. May the Denver office accept the case without
Transpac’s consent?
c
A. No, because the case is substantially related to the work DePew
c did for Transpac.
B. Yes, because the case is not substantially related to the work
DePew did for Transpac.
c C. Yes, provided that the firm concludes that it can effectively
represent the Dealers Association and that DePew is screened off from the
o case and does not share any fees earned in the case.
D. Yes, because the Denver office never received any of Transpac’s
o confidential information from DePew.
c 6. Lawyer Leggett is a partner in a private law firm that represents
numerous landlords who rent apartments to low-income families. Leggett is
o also a member of the Board of Directors of the County Legal Aid Society. Some
of the other directors are non-lawyers. The society offers free legal services to
c low-income clients in a variety of civil matters. The legal services are actually
provided by paid lawyers on the society staff or by volunteer lawyers from the
c community. Up to now, the society has not had enough funding to offer services
in landlord-tenant disputes. Recently it acquired a new source of funds, and
Q now the Board of Directors needs to decide whether to add landlord-tenant
disputes to the society’s list of services. Leggett knows that an affirmative
O answer will adversely affect his firm’s landlord clients. Which of the following
is most nearly correct?
CD A. Leggett is subject to discipline for being a director of a legal
services organization in which some directors are non-lawyers.
CD B. Leggett’s participation in the decision will make him subject to
o discipline, no matter which way he votes.
C. Leggett may participate in the decision, but if he votes “no,” he
CD will be subject to discipline.
c D. Leggett may participate in the decision, but if he votes “yes,” he
will be subject to discipline.
c 7. When attorney Aldrich was in private practice, she defended client
Costa in two criminal assault and battery cases. The cases were three years
CD apart, and both times the victim was Vincent, Costa’s brother-in-law. Costa
was convicted in both cases. Thereafter, Aldrich was elected County
CD Prosecutor. As County Prosecutor, Aldrich hires and fires deputy prosecutors
and generally supervises their work. As time permits, she also personally
CD

c
 Conflicts of Interest—Conflicts
348 BETWEEN Two CLIENTS Ch. 12
prepares and tries some cases. Her former client Costa is in trouble again, this
time for the apparent first-degree murder of Vincent. A state statute requires
all first-degree murder prosecutions to be conducted under the “direct,
immediate, and personal supervision” of the County Prosecutor. The statute
further provides that the State Attorney General’s Office shall take over any
criminal prosecution in which the local County Prosecutor cannot act due to
conflict of interest. Which of the following is most nearly correct?
A. Aldrich may ask the State Attorney General’s Office to take over
the prosecution because she and her deputies have a conflict of interest.
B. Aldrich may personally prepare and prosecute the case because
it arises out of a transaction separate and distinct from those in which she
represented Costa.
C. Aldrich may assign one of her deputies to prepare and prosecute
the case, so long as she undertakes “direct, immediate, and personal
supervision” of the work.
D. Aldrich may assign one of her deputies to prepare and prosecute
the case and then carefully screen herself off from any personal
participation in the case.
Answers to the multiple choice questions will be found
in the Appendix at the end of the book.
o
c
c
c Chapter Thirteen

Lawyers in Law Firms and

Specialized Practice Areas
■■■

What This Chapter Covers

Lawyers as Group Practitioners
A. The Changing World of Law Practice
1. New Forms of Legal Practice
2. Law Firm Breakups—When Partners Leave
3. Law Firms in Combinations with Non-Lawyer Businesses
B. Discipline of Law Firms
Lawyer as Employee
A. Respective Duties of Supervising and Subordinate Lawyers
B. Lawyer-Employee Rights upon Termination
III. Specialized Lawyer Roles
A. Lawyers as Advisors
B. Lawyers as Evaluators
C. Lawyers as Arbitrators and Mediators
o
Reading Assignment
C Schwartz, Wydick, Perschbacher, & Bassett, Chapter 13.
ABA Model Rules:
Rules 1.0(c) (definition of “firm”), 1.10, 1.17, 2.1, 2.3, 2.4, 5.1 through
Cj 5.7.
C? Supplemental Reading
Hazard & Hodes:
Discussion of ABA Model Rules 1.10,1.17, 2.1—2.4, and 5.1 through
C? 5.7.
C? Restatement (Third) of the Law Governing Lawyers §§ 5, 9—12, 94-95,122,
130 (2000).

c 349
c
 Lawyers in Law Firms and
350 Specialized Practice Areas Ch. 13
ABA Standards of Practice for Lawyer Mediators in Family Disputes.

Discussion Problems
1. Lasar is a senior partner in the 20-lawyer firm of Fimrite, Steele
& Lasar. Fimrite Steele’s style of new lawyer training can best be described
as “sink or swim.” Newly hired associates are given tasks by the firm’s
partners and are expected to carry them out on their own, asking for help
from the partners when needed. The firm is proud of the substantial
responsibility given to its associates “right off the bat.” New associate Allen
was thrilled when, within one month after joining Fimrite Steele, she was
given responsibility for preparing a new will and trust arrangement for
Clint, one of the firm’s longtime estate planning clients. Lasar, as the
supervising partnei’ for Clint’s matters, gave Allen an example of the firm’s
“standard estate package” to use as a model for her assignment. Allen was
concerned about several provisions in the model such as designating
managing partner Fimrite as executor and a major banking client of the
firm as trustee of the trust. However, Allen thought it best to stick with the
model and not ask Lasai’ any questions that might make her look bad or be
tagged as a troublemaker.
a. Has Allen acted properly in this matter?
b. What are Lasar’s ethical obligations in the matter?
c. Should the Fimrite Steele firm be held accountable in
any way?
d. What if Allen, instead of just carrying out the
assignment, expressed her concerns about the firm’s practices to
the state agency that oversees fiduciary practices. As a result, the
agency launched an investigation of Fimrite Steele’s practices.
When the firm’s partners learned of Allen’s role in informing the
agency, she was immediately fired. Does Allen have any recourse
against Fimrite Steele for her firing?
2. For the past four years, the law firm of Ayers & Alfred has been
defending client Clayton Industries in a series of related products liability
cases in which the plaintiffs seek hundreds of millions of dollars for injuries
caused by an allegedly defective Clayton product. The damage claims
exceed Clayton’s assets ten-fold. International Bank & Trust Company is
now deciding whether to renew Clayton’s multi-million dollar line of credit.
Clayton has asked Ayers & Alfred to prepare a candid evaluation of the
products liability cases and to furnish it to International’s loan
department. What are the ethical obligations of Ayers & Alfred in this
situation?
o
c Lawyers in Law Firms and
Ch. 13____________ Specialized Practice Areas_______________351
c 3. Powell is a former state court judge who retired two years ago.
c Wishing to continue to put her dispute resolution skills to good use, Powell
has established a mediation practice, in which she serves as a third-party
o neutral to help individuals to resolve disputes.
a. Do any ethical rules govern this type of situation?
c b. Snyder and Ramos seek Powell’s assistance in resolving
c a property dispute. Assuming that this is a traditional mediation
setting, are Snyder and Ramos both Powell’s clients?
c c. If Snyder and Ramos have each retained separate legal
counsel, how might this benefit the mediation process? How might
c this complicate the mediation process?
c d. After serving as a mediator in an employment dispute
between employer Brooks and employee Caldwell, Norris seeks to
c retain Powell to sue Brooks for wrongful termination. May Powell
represent Norris?
c 4. Following his graduation from law school, Johnson held a
prestigious one-year judicial clerkship with a judge who sits on the federal
o Court of Appeals. Johnson, of course, did not actually decide cases; rather,
it was his job to read the appellate briefs, conduct independent legal
c research into the issues raised, and write a “bench memorandum” for the
c three-judge panel assigned to each case. The “bench memorandum”
contained summaries of the facts, the parties’ legal arguments, and the
o applicable law, and made a recommendation regarding the disposition of
the case. Sometimes the three-judge panel followed Johnson’s
o recommendation; sometimes the panel rejected Johnson’s
recommendation. Following his clerkship year, Johnson joined a local mid­
c size law firm. Shortly after his arrival at the firm, one of the partners
approached Johnson and asked him to work on a brief to the Court of
c Appeals due to Johnson’s “expertise” in federal appellate work. May
Johnson accept this assignment?
c
5. Bancroft, Willard is a local mid-size law firm. Differences of
o opinion developed among some of the firm’s partners regarding the
distribution of profits, and now four of the partners—constituting all of the
c firm’s real estate attorneys—seek to leave Bancroft, Willard and form their
own firm.
c a. May Bancroft, Willard refuse to permit the four real
estate partners to take their current clients with them upon
c forming their own firm?
c b. Bancroft, Willard has asserted that its partnership
agreement contains a provision that prohibits a departing lawyer
o from practicing law within a 50-mile radius for a one-year period
unless the departing lawyer changes practice areas (such as a real
o
 Lawyers in Law Firms and
352 Specialized Practice Areas Ch. 13
estate lawyer changing to an intellectual property or
environmental law practice). Is there any provision in the ABA
Model Rules that the four real estate partners can use to fight this
contention?
6. In the course of representing client Chamberlain, attorney Atkins
ventured outside his usual area of expertise. Unfortunately, due to Atkins’
incomplete legal research, he overlooked a potential affirmative defense
that would have protected Chamberlain from liability. The error was
discovered too late, and Chamberlain was required to pay $60,000 in
damages to the plaintiff. Chamberlain subsequently filed a legal
malpractice lawsuit against Atkins, Chamberlain and Atkins have been
attempting to reach a settlement. Atkins has agreed to reimburse
Chamberlain for the judgment and the legal fees incurred. Chamberlain is
still furious about the incompetence with which Atkins handled the case,
and has demanded that Atkins decline all cases outside his usual area of
expertise for a two-year period “to protect other unwitting clients from
suffering similar consequences.” Atkins was sufficiently troubled by
Chamberlain’s case that he has no intention of venturing outside his usual
area of expertise ever again. May Atkins agree to Chamberlain’s demand?

American Lawyers in the Year 2000:

An Introduction
Gerard J. Clark
33 Suffolk U.L.Rev. 293, 293-94, 302-03, 314-15 (2000).*

The American legal profession in the year 2000 is so large and so

diverse, that it is difficult to describe. Like American business, it takes on
an almost infinite variety of forms and structures. * * * Beginning with
some demographics, the number of lawyers in the United States has
literally exploded over the last 53 years. In 1947, there were approximately
169,000 lawyers in the United States, compared to approximately
1,000,000 today. About 72% of these U.S. attorneys are in private practice,
about 10% are in-house counsels, close to 10% work for the government,
and a small percentage are judges, law professors, and poverty lawyers.
One-third of the bar are solo practitioners.
***

Commentators have separated the bar into roughly equal populations

along client lines. One group represents individual clients with their
personal legal problems, and the other represents institutions or
organizations. Private practitioners deliver individual representation in a
variety of practice settings. In-house counsel and government lawyers, as
well as private practitioners, service institutions. Additionally, private

• Reprinted with permission.

 Lawyers in Law Firms and
o Ch. 13____________ Specialized Practice Areas_______________353
c practitioners may practice alone, in small to middle-sized firms, or in large
firms.
cd ***
o Large law firms are getting larger, more numerous and employ an ever
increasing percentage of the bar. The largest firm in the United States is
o Baker and McKenzie of Chicago (with branch offices in thirty-six countries)
with 2,230 lawyers, of whom 535 are equity partners.
o
Traditionally, these firms serviced the general corporate law needs of
o America’s largest companies. The services included advise negotiation,
litigation and evaluation in the substantive fields of corporate, financial
o structuring, tax, commercial and regulatory law. Tension may exist
between the firm so retained and in the in-house corporate law department,
o but generally the retained firm does the bulk of the important and complex
work. These firms eschewed work for individuals and stayed inside their
o fields of specialization. Other work was either sent to the client’s in-house
department, referred to another law firm, or simply turned down.
o
In the latter quarter of the twentieth century, however, large firms
CD turned down less work. Firms wish to see themselves as full-service
entities, who can engineer the merger of two Fortune 500 corporations, but
cd can also have the capacity to handle the fields more traditionally associated
with individual representation such as domestic relations, wills and trusts,
CD real estate, personal injury and even criminal law. Additionally, in keeping
with the expansion of the legal needs of corporate America (or more
c correctly, the corporate world), the full service firm is likely to add the
capacity to handle problems in intellectual property, employment,
CD international trade, and environmental and toxic torts. Further,
institutional clients have tended more recently to keep a larger volume of
CD their legal work in-house.
CD ***
There is no reason to believe that the six-fold increase in the size of
CD the profession over the last half-century will abate. Legislatures and the
public continue to believe that all social problems can be solved by enacting
CD new laws, especially while relationships in business and trade continue to
O grow.
***
CD Finally, when asking about the future of professionalism in the
CD industry, one notices that there have been many recent laments. But many
of these laments focus upon that segment of the bar serving large
CD institutions, and these laments seem well-founded when the subject of the
inquiry is the associate at the large firm who performs 2000 hours of
CD discovery in the firm’s litigation department without meeting a client or
seeing the inside of a courtroom. Nevertheless, the notions of reverence for
q
o
c
 o
Lawyers in Law Firms and
354 Specialized Practice Areas Ch. 13 o
the law, fiduciary duty and client service seem quite alive and well among o
most of the lawyers in most segments of the bar.
o
I. FORMS OF LEGAL PRACTICE O
A. BUSINESS ENTITIES o
Although traditionally lawyers practiced either as sole practitioners or
in partnerships, the ABA Model Rules allow lawyers to form professional o
corporations as long as all the shareholders, officers, and directors are
lawyers. [Model Rule 5.4(d). See also Restatement § 9 and Introductory o
Note thereto.] These rules and state law allow lawyers to practice in the
form of the professional corporation (P.C.) to gain the tax advantages of
o
other corporations. However, the corporate form of business has generally o
not provided lawyer-shareholders a shield against malpractice liability as
a result of the acts of other lawyer-shareholders in the professional o
corporation. Lawyers are also able to practice as members of group legal
service plans, although this form of practice initially encountered strong o
opposition within the ABA, probably motivated by fear of competition from
such plans. The official concern was a danger that the lawyer’s professional o
independence could be compromised by nonlawyer owner or management.
Restrictive provisions in the Model Code have since been superseded by the o
more benign controls of Model Rule 5.4.
More recently, the older forms of professional incorporation lost the
o
tax advantages that originally led to this form of practice, and newer forms o
have emerged. In a limited liability company (LLC), individual lawyer
members are liable for their own misconduct, but may limit their personal o
liability while still gaining the tax treatment accorded to general partners.
This form of practice remains controversial; only a few states explicitly o
allow professionals to organize as LLCs, and the liability limitations have
not been fully tested in the courts. [See Susan S. Fortney, Am I My Partners o
Keeper? Peer Review in Law Firms, 66 U.Colo.L.Rev. 329, 330-333 (1995).]
A second emerging form of practice is the limited liability partnership o
(LLP), which also limits a nonparticipating partner’s liability for the
negligent acts of other partners. For a good overall discussion of these o
forms of practice, see Robert R. Keatinge and George W. Coleman, Practice
of Law by Limited Liability Partnerships, and Limited Liability o
Companies, 1995 Symposium Issue of the Professional Lawyer 5-50 (1995);
Lance R. Rogers, Questions of Law and Ethics Face Firms Becoming LLPs,
o
LLCs, 12 ABA/BNA Lawyers’ Manual on Prof. Conduct 411—416 (1996). o
B. OTHER TRENDS IN LEGAL PRACTICE q
Despite some reluctance, a few law firms are beginning to permit —
limited telecommuting, allowing some attorneys to work from home.
Stories are also starting to appear about virtual law practices, in which the ,—\

o
o
 Lawyers in Law Firms and
Ch. 13____________ Specialized Practice Areas_______________355
attorneys have no formal office space. See Stephanie Francis Ward,
Virtually Practicing, A.B.A. J., June 2009; see also Barbara Rose, Online
Office-Makers: Helping Others Create Virtual Practices, A.B.A. J., Nov.
2009. Do existing rules adequately address such virtual law practices?
Legal outsourcing is also becoming more frequent, and was the subject
of an ABA Formal Opinion. [See ABA Formal Op. 08—451 (2008) (requiring
outsourcing lawyers to provide appropriate disclosures to the client, to
avoid assisting the unauthorized practice of law, and to make reasonable
efforts to ensure that the outsourced service providers, ovex- whom the
outsourcing lawyer acts as a supervisor, act compatibly with the lawyer’s
professional obligations pursuant to Model Rules 5.1 and 5.3).]

Offshore Legal Outsourcing and Risk Management:

Proposing Prospective Limitation of Liability
Agreements Under Model Rule 1.8(h)
Joshua A. Bachrach
21 Geo. J. Legal Ethics 631 (2008).

The offshore outsourcing of legal services * * * seems to be gaining

acceptance at a significant rate within the American legal community. In
the coming years, increasing numbers of U.S. lawyers are expected to
delegate legal work to intermediary vendors called legal process
outsourcing (“LPO”) companies, which employ both lawyers not licensed to
practice in the United States and nonlawyers in overseas offices. A study
by Prism Legal Consulting found that the number of LPOs increased by
more than 300% between March 2005 and October 2006. Small law offices
with few employees, corporate legal departments, and major U.S. law firms
are now outsourcing legal work overseas to reduce costs and gain
efficiencies.
As the practice of offshore legal outsourcing grows, U.S. lawyers might
perceive tensions growing between their obligations to comply with legal
ethics standards and their duties to clients who want them to consider
using offshore legal outsourcing in certain situations. On the one hand,
U.S. lawyers can draw guidance from the bar associations of Los Angeles
County, New York City, San Diego County, and Florida, which have issued
ethics opinions providing support for the ethical permissibility of offshore
legal outsourcing. But those opinions also seem to require U.S. lawyers to
assume increased ethical obligations, including a heightened duty to
competently supervise foreign lawyers at an LPO and to review their final
work product; indeed, outsourced work “returns as increased demand for
high-level supervision.” On the other hand, in response to clients’ desires
to reduce costs by outsourcing legal work overseas, U.S. lawyers might feel
pressure to devote less time to supervising foreign lawyers at an LPO and
instead spend more time on their own work for the client. Or, even if a
client directs the U.S. lawyer to supervise the LPO’s lawyers for a set
 Lawyers in Law Firms and
356 Specialized Practice Areas Ch. 13
number of hours, the U.S. lawyer might find the designated time to be
insufficient and a source of unnecessarily increased liability risks. In either
of these situations, U.S. law firms might feel compelled to either accept the
client’s directives and increased liability risks or lose the client’s business
to another law firm that would assent to the arrangement.
★*★

II. LAW FIRM BREAKUPS

The last two decades have seen disturbing new phenomena become a
regular part of law practice—law firm mergers, downsizing (reducing and
deferring the hiring of new associates, staff layoffs, forced separation of
associates and partners), break-ups, and sometimes bankruptcy of small
and large law firms. These major transformations of firms raise ethical
issues for the lawyers involved, both among themselves and in relation to
their clients. What notice do firms owe their lawyers in advance of a merger
or break-up? What notice should lawyers give their firms and their clients
if they are leaving the firm? Can firms limit the practice opportunities of
departing partners as other businesses do, or is this an improper limitation
on the lawyer’s right to practice law? An entire new area of legal practice
has arisen consisting of advising and counseling law firms and their
lawyers over these issues. [See Barbara B. Buchholz, Graceful Exits, 81
A.B.A. J. 76 (Aug. 1995); Pamela A. Bresnahan, Breaking Up Is Hard to Do,
81 A.B.A. J. 94 (Nov. 1995).]
An opinion from the ABA’s Standing Committee on Ethics and
Professional Responsibility, Formal Op. 99-414 (1999), provides guidance
on some of these issues. A lawyer’s impending departure requires notice to
the lawyer’s current clients under Rule 1.4. The notice can be in writing or
in person or by telephone without violating Rule 7.3. Joint notice by the
departing lawyer and the firm is preferred although not always possible.
Pre-departure notice by the departing lawyer to current clients “may
indicate the [departing] lawyer’s willingness and ability to continue” in any
current matters, but should make clear that the client has the right to
decide whether to continue the representation with the departing lawyer
or the firm, and should not urge the client discontinue representation by
the firm or disparage the firm. Both the departing lawyer and the firm
must take care to protect client interests, including those implicated by
Rule 1.16 dealing with ending representation. The opinion did not resolve
issues under othei* law, including fiduciary principles, property law, and
unfair competition rules, but suggested guidelines under Graubard Molten
v. Moskovitz, 86 N.Y.2d 112, 629 N.Y.S.2d 1009, 653 N.E.2d 1179 (1995),
which condemned secret attempts by the departing lawyer to lure clients
from the firm, lying to clients about their rights to remain represented by
 Lawyers in Law Firms and
Ch. 13 Specialized Practice Areas
the firm, and lying to the firm about the departing lawyer’s plans to leave
Finally, the opinion suggested that determining what property the
departing lawyer can take from the firm is primarily a matter of non-
disciplinary law, with the departing lawyer entitled to take copies of
research memoranda, pleadings and forms prepared by the lawyer and
considered the lawyer’s property or in the public domain and other
documents the lawyer created for general use in the practice. Client files
must be retained or transferred as directed by the client, although the
departing lawyer can keep copies of client documents relating to the
lawyer’s representation.
As Formal Opinion 99-414 suggests, firms generally cannot prohibit
their lawyers from leaving and letting clients know of their impending
move, so they have tried other economic disincentives to at least limit the
grabbing off of their best clients when lawyers move. Model Rule 5.6
appears to limit, if not prohibit, the use of noncompetition clauses in
partnership agreements, and to restrict the use of payments to the
departing partners as a means of limiting competition. However, their use
has produced a major split between the courts of New York and California
over payments for unbilled work and work in progress when the partners
depart. In Cohen u. Lord, Day & Lord, 75 N.Y.2d 95, 551 N.Y.S.2d 157, 550
N.E.2d 410 (1989), New York’s Court of Appeals held that clauses that
allow firms to withhold fees on grounds a departing partner forfeited them
by practicing at a competing firm are unethical noncompetition agreements
that limit clients’ choice of lawyers. In Howard v. Babcock, 6 Cal.4th 409,
25 Cal.Rptr.2d 80, 863 P.2d 150 (1993), the California Supreme Court
upheld the inclusion of a similar clause on the ground that law firms should
not be treated any differently than other businesses as long as the
restriction is reasonable. [See also Fearnow v. Ridenour, Swenson, Cleere
& Evans P.C., 213 Ariz. 24, 138 P.3d 723 (2006).] For a full treatment of
these issues see Robert W. Hillman, Hillman on Lawyer Mobility: The Law
and Ethics of Partner Withdrawals and Law Firm Breakups (2d ed. 1998).

III. LAW FIRM DISCIPLINE

Discipline has traditionally been a matter between the bar and its
individual members. The entire range of sanctions seems appropriate only
to punish an individual lawyer. Nevertheless, it is apparent that law firm
culture has a significant effect on the individual members of the firm,
particularly those newly admitted to practice who are developing habits of
practice, often by modeling their behavior on those lawyers they observe
practicing on a day-to-day basis—the partners and more senior associates
of the firm that has hired them. Entire law firms have been found liable as
firms for malpractice, and for violations of regulatory regimes by
administrative agencies vigorously exercising their supervisory function.
Some disciplinary rules are already applicable to law firms—conflict of
 o
Lawyers in Law Firms and o
358 Specialized Practice Areas Ch. 13
interest rules usually require disqualification of the entire firm, as do rules o
on mandatory withdrawal. Article 5 of the ABA Model Rules deals with law o
firm issues. Finally, other sanction rules, particularly the current version
of Federal Rule of Civil Procedure 11, allow sanctioning a law firm. [See o
Fed.R.Civ.P. 11(c).] A few commentators, notably Professor Schneyer in his
article, Professional Discipline for Law Firms?, 77 Cornell L.Rev. 1 (1991), CD
have suggested subjecting law firms to professional discipline—something
two state bar organizations (New York and New Jersey) have now done. In O
its study of Discipline for Law Firms, The Association of the Bar of the City
of New York [48 Rec.A.B.City N.Y. 628 (1993)] identified these reasons for O
extending discipline to law firms: (1) to improve the practice environment
fol’ lawyers within the firm that will discourage ethical violations by its O
members; (2) to enhance self-policing of conduct by firms; (3) to bring the
rules into line with the group character of modern practice and its O
supervisory structure; (4) to enhance the ethical supervision of non-lawyer
employees of firms; (5) to overcome the difficulty of assessing blame on CD
individual lawyers; (6) to provide counter incentives to a climate that
encourages cutting corners; and (7) to address organizational problems O
that may be the cause of ethical violations, such as conflicts checking,
billing procedures, and oversight of client funds.
CD
Difficulties remain with any proposal for law firm discipline. Firms o
cannot be disbarred, and even a total firm suspension seems inappropriate.
Thus far, law firm discipline remains under consideration; no state bar has o
adopted a rule that disciplines firms. However, in some circumstances, a
firm’s unethical behavior may result in an inability to collect attorneys’ fees o
for the work performed, as is illustrated in the following case.
o
Birbrower, Montalbano, Condon & CD
Frank, P.C. v. Superior Court
Supreme Court of California, 1998.
17 Cal.4th 119, 70 Cal.Rptr.2d 304, 949 P.2d 1.
O
Chin, Justice. CD
Business and Professions Code section 6125 states: “No person shall O
practice law in California unless the person is an active member of the
State Bar.” We must decide whether an out-of-state law firm, not licensed CD
to practice law in this state, violated section 6125 when it performed legal
services in California for a California-based client under a fee agreement (—>
stipulating that California law would govern all matters in the
representation. v-'
Although we are aware of the interstate nature of modern law practice £3
and mindful of the reality that large firms often conduct activities and
serve clients in several states, we do not believe these facts excuse law CD
firms from complying with section 6125. Contrary to the Court of Appeal,

o
 Lawyers in Law Firms and
Ch. 13____________ Specialized Practice Areas_________________359
however, we do not believe the Legislature intended section 6125 to apply
to those services an out-of-state firm renders in its home state. We
therefore conclude that, to the extent defendant law firm Birbrower,
Montalbano, Condon & Frank, P.C. (Birbrower), practiced law in California
without a license, it engaged in the unauthorized practice of law in this
state. We also conclude that Birbrower’s fee agreement with real party in
interest ESQ Business Services, Inc. (ESQ), is invalid to the extent it
authorizes payment for the substantial legal services Birbrower performed
in California. If, however, Birbrower can show it generated fees under its
agreement for limited services it performed in New York, and it earned
those fees under the otherwise invalid fee agreement, it may, on remand,
present to the trial court evidence justifying its recovery of fees for those
New York services. Conversely, ESQ will have an opportunity to produce
contrary evidence. Accordingly, we affirm the Court of Appeal judgment in
part and reverse it in part, remanding for further proceedings consistent
with this opinion.
I. BACKGROUND
The facts with respect to the unauthorized practice of law question are
essentially undisputed. Birbrower is a professional law corporation
incorporated in New York, with its principal place of business in New York.
During 1992 and 1993, Birbrower attorneys, defendants Kevin F. Hobbs
and Thomas A. Condon (Hobbs and Condon), performed substantial work
in California relating to the law firm’s representation of ESQ. Neither
Hobbs nor Condon has ever been licensed to practice law in California.
None of Birbrower’s attorneys were licensed to practice law in California
during Birbrower’s ESQ representation.
ESQ is a California corporation with its principal place of business in
Santa Clara County. In July 1992, the parties negotiated and executed the
fee agreement in New York, providing that Birbrower would perform legal
services for ESQ, including “All matters pertaining to the investigation of
and prosecution of all claims and causes of action against TANDEM
COMPUTERS INCORPORATED [Tandem].” The “claims and causes of
action” against Tandem, a Delaware corporation with its principal place of
business in Santa Clara County, California, related to a software
development and marketing contract between Tandem and ESQ dated
March 16, 1990 (Tandem Agreement). The Tandem Agreement stated that
“The internal laws of the State of California (irrespective of its choice of
law principles) shall govern the validity of this Agreement, the construction
of its terms, and the interpretation and enforcement of the rights and
duties of the parties hereto.” Birbrower asserts, and ESQ disputes, that
ESQ knew Birbrower was not licensed to practice law in California.
While representing ESQ, Hobbs and Condon traveled to California on
several occasions. In August 1992, they met in California with ESQ and its
 Lawyers in Law Firms and
360 Specialized Practice Areas Ch. 13
accountants. During these meetings, Hobbs and Condon discussed various
matters related to ESQ’s dispute with Tandem and strategy for resolving
the dispute. They made recommendations and gave advice. During this
California trip, Hobbs and Condon also met with Tandem representatives
on four or five occasions during a two-day period. At the meetings, Hobbs
and Condon spoke on ESQ’s behalf. Hobbs demanded that Tandem pay
ESQ $15 million. Condon told Tandem he believed that damages would
exceed $15 million if the parties litigated the dispute.
Around March or April 1993, Hobbs, Condon, and another Birbrower
attorney visited California to interview potential arbitrators and to meet
again with ESQ and its accountants. Birbrower had previously filed a
demand for arbitration against Tandem with the San Francisco offices of
the American Arbitration Association (AAA). In August 1993, Hobbs
returned to California to assist ESQ in settling the Tandem matter. While
in California, Hobbs met with ESQ and its accountants to discuss a
proposed settlement agreement Tandem authored. Hobbs also met with
Tandem representatives to discuss possible changes in the proposed
agreement. Hobbs gave ESQ legal advice during this trip, including his
opinion that ESQ should not settle with Tandem on the terms proposed.
ESQ eventually settled the Tandem dispute, and the matter never
went to arbitration. But before the settlement, ESQ and Birbrower
modified the contingency fee agreement. The modification changed the fee
arrangement from contingency to fixed fee, providing that ESQ would pay
Birbrower over $1 million. The original contingency fee arrangement had
called for Birbrower to receive “one-third (1/3) of all sums received for the
benefit of the Clients * * * whether obtained through settlement, motion
practice, hearing, arbitration, or trial by way of judgment, award,
settlement, or otherwise. * * * ”
In January 1994, ESQ sued Birbrower for legal malpractice and
related claims in Santa Clara County Superior Court. Birbrower’ removed
the matter to federal court and filed a counterclaim, which included a claim
for attorney fees for the work it performed in both California and New York.
The matter was then remanded to the superior court. There ESQ moved
for summary judgment and/or adjudication on the first through fourth
causes of action of Birbrower’s counterclaim, which asserted ESQ and its
representatives breached the fee agreement. ESQ argued that by
practicing law without a license in California and by failing to associate
legal counsel while doing so, Birbrower violated section 6125, rendering the
fee agreement unenforceable. Based on these undisputed facts, the Santa
Clara Superior Court granted ESQ’s motion for summary adjudication of
the first through fourth causes of action in Birbrower’s counterclaim. The
court also granted summary adjudication in favor of ESQ’s third and fourth
causes of action in its second amended complaint, seeking declaratory relief
as to the validity of the fee agreement and its modification. The court
 Lawyers in Law Firms and
Ch. 13___________ Specialized Practice Areas_________________361
concluded that: (1) Birbrower was “not admitted to the practice of law in
California”; (2) Birbrower “did not associate California counsel”; (3)
Birbrower “provided legal services in this state”; and (4) “The law is clear
that no one may recover compensation for services as an attorney in this
state unless he or she was a member of the state bar at the time those
services were performed.”
In granting limited summary adjudication, the trial court left open the
following issues for resolution: ESQ’s malpractice action against
Birbrower, and the remaining causes of action in Birbrower’s counterclaim,
including Birbrower’s fifth cause of action for quantum meruit (seeking the
reasonable value of legal services provided).
Birbrower petitioned the Court of Appeal for a writ of mandate
directing the trial court to vacate the summary adjudication order. The
Court of Appeal denied Birbrower’s petition and affirmed the trial court’s
order, holding that Birbrower violated section 6125. The Court of Appeal
also concluded that Birbrower’s violation barred the firm from recovering
its legal fees under the written fee agreement, including fees generated in
New York by the attorneys when they were physically present in New York,
because the agreement included payment for California or “local” services
for a California client in California. The Court of Appeal agreed with the
trial court, however, in deciding that Birbrower could pursue its remaining
claims against ESQ, including its equitable claim for recovery of its fees in
quantum meruit.
We granted review to determine whether Birbrower’s actions and
services performed while representing ESQ in California constituted the
unauthorized practice of law under section 6125 and, if so, whether a
section 6125 violation rendered the fee agreement wholly unenforceable.
II. DISCUSSION
A. The Unauthorized Practice of Law
The California Legislature enacted section 6125 in 1927 as part of the
State Bar Act (the Act), a comprehensive scheme regulating the practice of
law in the state. Since the Act’s passage, the general rule has been that,
although persons may represent themselves and their own interests
regardless of State Bar membership, no one but an active member of the
State Bar may practice law for another person in California. * * *
A violation of section 6125 is a misdemeanor. Moreover, “No one may
recover compensation for services as an attorney at law in this state unless
[the person] was at the time the services were performed a member of The
State Bar.” (Hardy v. San Fernando Valley C. of C. (1950) 99 Cal.App.2d
572, 576, 222 P.2d 314.)
Although the Act did not define the term “practice law,” case law
explained it as “ ‘the doing and performing services in a court of justice in
 o
Lawyers in Law Firms and
362 Specialized Practice Areas_______________ Ch. 13 o
any matter pending therein throughout its various stages and in o
conformity with the adopted rules of procedure.’ ” (People ex rel. Lawyers’
Institute of San Diego v. Merchants’ Protective Corp. (1922) 189 Cal. 531, o
535, 209 P. 363.) Merchants included in its definition legal advice and legal
instrument and contract preparation, whether or not these subjects were
o
rendered in the course of litigation. * * * o
In addition to not defining the term “practice law,” the Act also did not
define the meaning of “in California.” In today’s legal practice, questions o
often arise concerning whether the phrase refers to the nature of the legal
services, or restricts the Act’s application to those out-of-state attorneys o
who are physically present in the state.
Section 6125 has generated numerous opinions on the meaning of
o
“practice law” but none on the meaning of “in California.” In our view, the o
practice of law “in California” entails sufficient contact with the California
client to render the nature of the legal service a clear legal representation. o
In addition to a quantitative analysis, we must consider the nature of the
unlicensed lawyer’s activities in the state. Mere fortuitous or attenuated o
contacts will not sustain a finding that the unlicensed lawyer practiced law
“in California.” The primary inquiry is whether the unlicensed lawyer o
engaged in sufficient activities in the state, or created a continuing
relationship with the California client that included legal duties and o
obligations.
Our definition does not necessarily depend on or require the
o
unlicensed lawyer’s physical presence in the state. Physical presence here o
is one factor we may consider in deciding whether the unlicensed lawyer
has violated section 6125, but it is by no means exclusive. For example, one o
may practice law in the state in violation of section 6125 although not
physically present here by advising a California client on California law in o
connection with a California legal dispute by telephone, fax, computer, or
other modern technological means. Conversely, although we decline to o
provide a comprehensive list of what activities constitute sufficient contact
with the state, we do reject the notion that a person automatically practices o
law “in California” whenever that person practices California law
anywhere, or “virtually” enters the state by telephone, fax, e-mail, or
o
satellite. * * * We must decide each case on its individual facts. o
This interpretation acknowledges the tension that exists between
interjurisdictional practice and the need to have a state-regulated bar. As o
stated in the American Bar Association Model Code of Professional
Responsibility, Ethical Consideration EC 3-9, “Regulation of the practice o
of law is accomplished principally by the respective states. Authority to
engage in the practice of law conferred in any jurisdiction is not per se a o
grant of the right to practice elsewhere, and it is improper for a lawyer to
engage in practice where he is not permitted by law or by court order to do
o
o
o
o
 Lawyers in Law Firivis and
Ch. 13____________ Specialized Practice Areas_________________363
so. However, the demands of business and the mobility of our society pose
distinct problems in the regulation of the practice of law by the states. In
furtherance of the public interest, the legal profession should discourage
regulation that unreasonably imposes territorial limitations upon the right
of a lawyer to handle the legal affairs of his client or upon the opportunity
of a client to obtain the services of a lawyer of his choice in all matters
including the presentation of a contested matter in a tribunal before which
the lawyer is not permanently admitted to practice.” (Fns.omitted.) * * *
***
Exceptions to section 6125 do exist, but are generally limited to
allowing out-of-state attorneys to make brief appearances before a state
court or tribunal. They are narrowly drawn and strictly interpreted. For
example, an out-of-state attorney not licensed to practice in California may
be permitted, by consent of a trial judge, to appear in California in a
particular pending action. * * *
In addition, with the permission of the California court in which a
particular cause is pending, out-of-state counsel may appear before a court
as counsel pro hac vice. (Cal. Rules of Court, rule 983.) A court will approve
a pro hac vice application only if the out-of-state attorney is a member in
good standing of another state bai* and is eligible to practice in any United
States court or the highest court in another jurisdiction. (Cal. Rules of
Court, rule 983(a).) The out-of-state attorney must also associate an active
member of the California Bar as attorney of record and is subject to the
Rules of Professional Conduct of the State Bar. (Cal. Rules of Court, rules
983(a), (d); see Rules Prof. Conduct, rule 1-100(D)(2) [includes lawyers from
other jurisdictions authorized to practice in this state].)
The Act does not regulate practice before United States courts. Thus,
an out-of-state attorney engaged to render services in bankruptcy
proceedings was entitled to collect his fee. * * *
***
B. The Present Case
* * * As the Court of Appeal observed, Birbrower engaged in
unauthorized law practice in California on more than a limited basis, and
no firm attorney engaged in that practice was an active member of the
California State Bar. As noted, in 1992 and 1993, Birbrower attorneys
traveled to California to discuss with ESQ and others various matters
pertaining to the dispute between ESQ and Tandem. Hobbs and Condon
discussed strategy for resolving the dispute and advised ESQ on this
strategy. Furthermore, during California meetings with Tandem
representatives in August 1992, Hobbs demanded Tandem pay $15 million,
and Condon told Tandem he believed damages in the matter would exceed
that amount if the parties proceeded to litigation. Also in California, Hobbs
 Lawyers in Law Firms and
364 Specialized Practice Areas Ch. 13
met with ESQ for the stated purpose of helping to reach a settlement
agreement and to discuss the agreement that was eventually proposed.
Birbrower attorneys also traveled to California to initiate arbitration
proceedings before the matter was settled. As the Court of Appeal
concluded, “* * * the Birbrower firm’s in-state activities clearly constituted
the [unauthorized] practice of law” in California.
Birbrower contends, however, that section 6125 is not meant to apply
to any out-of-state attorneys. Instead, it argues that the statute is intended
solely to prevent nonattorneys from practicing law. This contention is
without merit because it contravenes the plain language of the statute.
Section 6125 clearly states that no person shall practice law in California
unless that person is a member of the State Bar. The statute does not
differentiate between attorneys or nonattorneys, nor does it excuse a
person who is a member of another state bar. * * *
Birbrower next argues that we do not further the statute’s intent and
purpose—to protect California citizens from incompetent attorneys—by
enforcing it against out-of-state attorneys. Birbrower argues that because
out-of-state attorneys have been licensed to practice in other jurisdictions,
they have already demonstrated sufficient competence to protect California
clients. But Birbrower’s argument overlooks the obvious fact that other
states’ laws may differ substantially from California law. Competence in
one jurisdiction does not necessarily guarantee competence in another. By
applying section 6125 to out-of-state attorneys who engage in the extensive
practice of law in California without becoming licensed in our state, we
serve the statute’s goal of assuring the competence of all attorneys
practicing law in this state.
California is not alone in regulating who practices law in its
jurisdiction. Many states have substantially similar statutes that serve to
protect their citizens from unlicensed attorneys who engage in
unauthorized legal practice. * * * Whether an attorney is duly admitted in
another state and is, in fact, competent to practice in California is
irrelevant in the face of section 6125’s language and purpose. * * * [A]
decision to except out-of-state attorneys licensed in their own jurisdictions
from section 6125 is more appropriately left to the California Legislature.
Assuming that section 6125 does apply to out-of-state attorneys not
licensed here, Birbrower alternatively asks us to create an exception to
section 6125 for work incidental to private arbitration or other alternative
dispute resolution proceedings. Birbrower points to fundamental
differences between private arbitration and legal proceedings, including
procedural differences relating to discovery, rules of evidence, compulsory
process, cross-examination of witnesses, and other areas. * * *
We decline Birbrower’s invitation to craft an arbitration exception to
section 6125’s prohibition of the unlicensed practice of law in this state.
 Lawyers in Law Firms and
Ch. 13____________ Specialized Practice Areas_________________ 365
Any exception for arbitration is best left to the Legislature, which has the
authority to determine qualifications for admission to the State Bar and to
decide what constitutes the practice of law. * * * Section 6125 * * *
articulates a strong public policy favoring the practice of law in California
by licensed State Bar members. In the face of the Legislature’s silence, we
will not create an arbitration exception under the facts presented. * * *
Finally, Birbrower urges us to adopt an exception to section 6125 based
on the unique circumstances of this case. Birbrower notes that “Multistate
relationships are a common part of today’s society and are to be dealt with
in commonsense fashion.” * * * In many situations, strict adherence to
rules prohibiting the unauthorized practice of law by out-of-state attorneys
would be “ ‘grossly impractical and inefficient.’ ” * * *
Although, as discussed, we recognize the need to acknowledge and, in
certain cases, accommodate the multistate nature of law practice, the facts
here show that Birbrower’s extensive activities within California amounted
to considerably more than any of our state’s recognized exceptions to
section 6125 would allow. Accordingly, we reject Birbrower’s suggestion
that we except the firm from section 6125’s rule under the circumstances
here.
C. Compensation for Legal Services
Because Birbrower violated section 6125 when it engaged in the
unlawful practice of law in California, the Court of Appeal found its fee
agreement with ESQ unenforceable in its entirety. Without crediting
Birbrower for some services performed in New York, for which fees were
generated under the fee agreement, the court reasoned that the agreement
was void and unenforceable because it included payment for services
rendered to a California client in the state by an unlicensed out-of-state
lawyer. The court opined that "When New York counsel decided to accept
[the] representation, it should have researched California law, including
the law governing the practice of law in this state.” The Court of Appeal let
stand, however, the trial court’s decision to allow Birbrower to pursue its
fifth cause of action in quantum meruit. We agree with the Court of Appeal
to the extent it barred Birbrower from recovering fees generated under the
fee agreement for the unauthorized legal services it performed in
California. We disagree with the same court to the extent it implicitly
barred Birbrower from recovering fees generated under the fee agreement
for the limited legal services the firm performed in New York.
It is a general rule that an attorney is barred from recovering
compensation for services rendered in another state where the attorney
was not admitted to the bar. * * *
* * * Because Birbrower practiced substantial law in this state in
violation of section 6125, it cannot receive compensation under the fee
agreement for any of the services it performed in California. Enforcing the
 Lawyers in Law Firms and
366 Specialized Practice Areas Ch. 13
fee agreement in its entirety would include payment for the unauthorized
practice of law in California and would allow Birbrower to enforce an illegal
contract. * * *
Birbrower asserts that even if we agree with the Court of Appeal and
find that none of the above exceptions allowing fees for unauthorized
California services apply to the firm, it should be permitted to recover fees
for those limited services it performed exclusively in New York under the
agreement. In short, Birbrower seeks to recover under its contract for those
services it performed for ESQ in New York that did not involve the practice
of law in California, including fee contract negotiations and some corporate
case research. Birbrower thus alternatively seeks reversal of the Court of
Appeal’s judgment to the extent it implicitly precluded the firm from
seeking fees generated in New York under the fee agreement.
We agree with Birbrower that it may be able to recover fees under the
fee agreement for the limited legal services it performed for ESQ in New
York to the extent they did not constitute practicing law in California, even
though those services were performed for a California client. Because
section 6125 applies to the practice of law in California, it does not, in
general, regulate law practice in other states. Thus, although the general
rule against compensation to out-of-state attorneys precludes Birbrower’s
recovery under the fee agreement for its actions in California, the
severability doctrine may allow it to receive its New York fees generated
under the fee agreement, if we conclude the illegal portions of the
agreement pertaining to the practice of law in California may be severed
from those parts regarding services Birbrower performed in New York.
★★*
The fee agreement between Birbrower and ESQ became illegal when
Birbrower performed legal services in violation of section 6125. It is true
that courts will not ordinarily aid in enforcing an agreement that is either
illegal or against public policy. * * * Illegal contracts, however, will be
enforced under certain circumstances, such as when only a part of the
consideration given for the contract involves illegality. In other words,
notwithstanding an illegal consideration, courts may sever the illegal
portion of the contract from the rest of the agreement.
In this case, the parties entered into a contingency fee agreement
followed by a fixed fee agreement. ESQ was to pay money to Birbrower in
exchange for Birbrower’s legal services. The object of their agreement may
not have been entirely illegal, assuming ESQ was to pay Birbrower
compensation based in part on work Birbrower performed in New York that
did not amount to the practice of law in California. The illegality arises,
instead, out of the amount to be paid to Birbrower, which, if paid fully,
would include payment for services rendered in California in violation of
section 6125.
 Lawyers in Law Firms and
Ch. 13____________ Specialized Practice Areas_________________367
Therefore, we conclude the Court of Appeal erred in determining that
the fee agreement between the parties was entirely unenforceable because
Birbrowei' violated section 6125’s prohibition against the unauthorized
practice of law in California. Birbrower’s statutory violation may require
exclusion of the portion of the fee attributable to the substantial illegal
services, but that violation does not necessarily entirely preclude its
recovery under the fee agreement for the limited services it performed
outside California. * * *
Thus, the portion of the fee agreement between Birbrower and ESQ
that includes payment for services rendered in New York may be
enforceable to the extent that the illegal compensation can be severed from
the rest of the agreement. On remand, therefore, the trial court must first
resolve the dispute surrounding the parties’ fee agreement and determine
whether their agreement conforms to California law. If the parties and the
court resolve the fee dispute and determine that one fee agreement is
operable and does not violate any state drafting rules, the court may sever
the illegal portion of the consideration (the value of the California services)
from the rest of the fee agreement. Whether the trial court finds the
contingent fee agreement or the fixed fee agreement to be valid, it will
determine whether some amount is due under the valid agreement. The
trial court must then determine, on evidence the parties present, how much
of this sum is attributable to services Birbrower rendered in New York. The
parties may then pursue their remaining claims.
III. DISPOSITION
We conclude that Birbrower violated section 6125 by practicing law in
California. To the extent the fee agreement allows payment for those illegal
local services, it is void, and Birbrower is not entitled to recover fees under
the agreement for those services. The fee agreement is enforceable,
however, to the extent it is possible to sever the portions of the
consideration attributable to Birbrower’s services illegally rendered in
California from those attributable to Birbrower’s New York services.
Accordingly, we affirm the Court of Appeal judgment to the extent it
concluded that Birbrower’s representation of ESQ in California violated
section 6125, and that Birbrower is not entitled to recover fees under the
fee agreement for its local services. We reverse the judgment to the extent
the court did not allow Birbrower to argue in favor of a severance of the
illegal portion of the consideration (for the California fees) from the rest of
the fee agreement, and remand for further proceedings consistent with this
decision.*

* California provides an arbitration exception to the unauthorized practice rules in Cal. Civ.
Proc. Code § 1282.4.
 Lawyers in Law Firms and
368_______________ Specialized Practice Areas___________ Ch. 13

IV. LAWYER AS PROBLEM-SOLVER

The Lawyer as Problem Solver and Third-
Party Neutral: Creativity and Non-
Partisanship in Lawyering
Carrie Menkel-Meadow.
72 Temple L. Rev. 785 (1999)?

[OJur traditional conception of the role of lawyer as an advocate of his

client and as someone else’s adversary is a crabbed and incomplete
conception of the lawyer’s role; we need to expand and broaden the
conception of what lawyers should do, as well as recognize more formally
what they currently are doing. * * * Our conceptions of the traditional roles
of lawyers are derived from several core ideas, most of which are codified
in the various rules and theories of liabilities that govern the lawyer’s
professional responsibility, formally defined. The “culture of
adversarialism” and the rules that enforce this culture often (not always)
distort how we think about legal and human problem solving by assuming
there are only two sides to an issue or question, that “truth” about either
what happened factually or what is correct legally can best be resolved by
vigorous contestations between two fully armed advocates and decided by
a third-party judge who is separate from the parties and appointed by the
state. Formal rules of discourse and process (evidence) control the rules of
the debate and contest and are universally recognized as a vast
improvement on the historical forms of trial by ordeal or combat. Yet
parties are still limited to a stylized form of conversation in which they
cannot speak directly to each other. Often, what is most important to
parties may be excluded from consideration, as irrelevant or inadmissible,
according to our well-worn legal principles, which may protect other
important interests (like privileges, trade secrets, bias and prejudice, or
constitutional rights).
***

Imagine, if you will, that lawyering was informed by a different mind­

set, orientation, consciousness, or “frame” than maximizing individual
client gain. Suppose for the moment that what we thought a lawyer should
do would be to “solve a problem,” make a bad situation better, improve
relationships between embittered parties, or facilitate the best possible
arrangements in complex environments with many (not only two)
competing claims. These goals include those commonly described as
“Pareto-optimal” solutions—seeking the best possible solution for each
party without harming the other side. (Imagine a form of optimality in
lawyering that included doing no harm to third parties.) There are more
complex variations of Pareto-optimality, especially in situations with
• Reprinted with permission.
 Lawyers in Law Firms and
Ch. 13____________ Specialized Practice Areas_________________369
multiple parties, but even this simplified version is quite a different
aspiration for lawyers than those commonly thought to obtain where the
lawyer must “zealously” represent a client: to maximize fully that client’s
gain, even at harm or cost to the other side—and sadly, in some cases,
especially because it will cause harm or pain to the other side. Going a step
further, some might suggest that a lawyer should aim to maximize joint,
mutual, group, or collective gain in using her craft—the misnamed “lawyer
for the situation.” These are clearly the goals of many inside counsel who
have responsibilities for advising and serving many different masters
within an organization. Consider the more extreme possibility that the
lawyer should actually seek to reduce harm (to the parties and to third
parties—ethical “externalities”), both in preventing problems, disputes,
and troubles and in reducing harm when a conflict, dispute, or difficulty
has arisen. Such lawyers might try to pursue peace and justice at the same
time.
***
Qualitative critiques of the adversary model, coupled with the concern
of many courts for their large caseloads (a quantitative concern about
access to justice and the ability of courts to render efficient and fair justice)
and private parties’ concern about the “negative transaction costs” of cost
and delay in the litigation system, together formed the perhaps conflicting
impulses of the ADR movement, now called “Appropriate Dispute
Resolution” (not “Alternative Dispute Resolution”). Efforts to solve
problems more integratively, at less cost, with greater party participation,
and with the possibility of preventing, as well as solving, some disputes,
have led growing numbers of lawyers to look to new forms of lawyering,
some of which are quite alien to the traditional conception of the lawyer’s
role.
A new model of the “collaborative lawyer,” originally developed in
family law and now spreading to other forms of substantive practice, offers
the client a lawyer who will approach the other side (who also has a
collaborative lawyer) with the express purpose of trying to work out a
mutually satisfactory settlement. If the parties choose not to settle, new
counsel conduct the litigation. Collaborative lawyers attempt to solve
problems as peacefully as possible, with maximum client input, and agree
in advance not to pursue litigation with each other. Even more
conventional lawyers now schooled in the teachings of Getting to Yes or
Menkel-Meadow’s problem-solving negotiation may seek to achieve joint
gain or mutually principled solutions to legal problems, taking greater
account of all parties’ needs and interests and seeking collaborative
(neither competitive nor cooperative) process choices with each other.
These new lawyering strategies frequently include greater disclosures of
both party interests and facts, as well as shared discussion of legal theories
and arguments, greater candor generally, failure to exploit every weakness
 Lawyers in Law Firms and
370 Specialized practice Areas Ch. 13
or disadvantage of the other side, and concern about how fair,
“conscionable,” or adequate a proposed settlement is for both parties, not
just one’s own client (and potential third parties affected by any resolution,
like children in divorce or communities in environmental disputes). Ask
yourself whether clients should be informed as to whether or not their
lawyer will be employing value creating or value claiming (adversarial)
behavior.
Perhaps the most radical departure from the lawyer’s traditional role
is the current practice of lawyer as third-party neutral, as mediator,
arbitrator, facilitator, early neutral evaluator, conciliator, fact-finder, or
consensus-builder. In such roles, lawyers do not represent anyone and,
thus, are not strictly speaking governed by the Model Rules of Professional
Conduct where there is no professional representational relationship.
Others have recognized, and I have been among them, that lawyer­
mediators may use law in their work as facilitators of negotiated solutions
to litigational or transactional problems: helping evaluate the merits of an
argument, the legality of a solution, assisting in the drafting of an
agreement, or in cases of evaluative mediation, actually predicting what a
court might do with a particular case or offering particular substantive
resolutions of particular legal issues. In addition, as case law and practice
are now making clear, lawyers as mediators have a variety of professional
responsibility issues to face that are both analogous to, but different from,
the lawyer in traditional representational roles: conflicts of interests (as
neutrals, as partners of advocates in cases, as advocates themselves when
a particular lawyer chooses to be both mediator and advocate in different
cases while within the same practice unit); confidentiality and exceptions;
competence and liability (and immunity in cases of court-sponsored
mediation); fees; advertising; and joint practice with nonlawyers.
Mediators who seek to solve problems—either by merely facilitating
negotiation sessions between represented or unrepresented parties, in both
public and private settings, or by taking a more active role in the more
recent use of “evaluative” mediation (rendering advice, legal predictions, or
offering substantive solutions in some cases)—do not represent anyone, but
serve an invaluable function in resolving disputes or facilitating the
making of transactions. * * *
[M]any lawyers who serve as third-party neutrals are finding that the
new consciousness of problem solver has affected the way in which they
conduct their advocate’s practice as well. Lawyers who take problem­
solving dispute resolution seriously now advise clients to seek mediation or
other forms of dispute resolution where appropriate and will find their own
roles changed when they appear as counsel in mediation. For example,
rather than preparing an argument for the judge, a lawyer and a client
appearing in mediation must plan to address the other party directly, offer
expressions of their own interests, as well as legal arguments and claims,
 Lawyers in Law Firms and
Ch. 13____________ Specialized Practice Areas_________________371
and attempt to meet the expressed (business, social, or other) needs, as well
as legal arguments, of the other side. * * *
Perhaps most exciting for the development of new lawyer roles is the
expansion of problem-solving and decision-making techniques that move
out from mediation and employ a variety of new competencies for lawyers
(which many lawyers have employed for years, without formal training or
recognition of role). These techniques include facilitation of reg-neg
(negotiated rule-making) proceedings and facilitation of consensus building
processes in issues as diverse as environmental siting and clean-up, budget
processes, municipal governance, resource usage, neighborhood and
community disputes, science disputes, policy disputes, cross-cultural
disputes, discrimination disputes, multiple-party insurance and
discrimination disputes, and even consensus processes within internal
organizational and corporate settings.
Lawyers who seek to employ these different process skills to broaden,
rather than narrow, issues offer services that lawyers have been
traditionally known for: crafting orderly procedures and proceedings to
accomplish legal results. One negotiation scholar has renamed the lawyer
as “process architect/ while another scholar describes the transactional
lawyer as “transaction costs engineer.” In situations as diverse as
dialogues, public conversations, joint problem solving, strategic planning,
and consensus building processes, lawyers have facilitated proceedings of
multiple parties with diverse and conflicting interests to reach contingent
or final agreements on such contested issues as abortion, policing, block
grant allocations, building development, Superfund clean-ups, and racial
tensions. Within organizations, new roles—often adjunct to or separate
from those of the general counsel—include ombuds, “neutrals” who are
employed to counsel those with complaints about the organization or other
employees, as well as to mediate and resolve inter-departmental disputes,
and more recently, as ADR officers in all major federal governmental
agencies. As in any good transaction planning, this kind of lawyering
employs “forward” rather than “backward” thinking and is likely to yield
more flexible remedies than those permitted by traditional legal
procedures, including more contingent and monitored solutions. With more
stakeholders allowed to participate, both conflict and creativity are likely
to be unleashed, but can often be used productively to reach new levels of
understanding and more party-sensitive and tailored solutions.
Such facilitated deliberative processes are often being touted as more
fully expressing the values of democratic decision making or Habermasian
“ideal speech situations” than lawyer-dominated legal proceedings or
negotiations, where clients tell us they often feel disempowered and unable
to achieve either processual catharsis or substantive gain. Multi-party
dispute resolution or transaction planning is difficult, but what the
successful processes have demonstrated is that legitimacy and
 Lawyers in Law Firms and
372 Specialized Practice Areas Ch. 13
acceptability can be achieved as interests and needs are addressed from
the very beginning, often preventing difficult and contentious lawsuits
later. The early case studies support the notion that internal “dispute
resolution” philosophies can often determine whether companies and
businesses can successfully manage their conflicts and disputes, both
internally and with respect to the public.
Lawyers who are proactive problem solvers and good process
managers will have much to offer their clients in traditional capacities, but
they may have something to offer non-traditional clients with whom they
are not in a representational role as well. These new processes, which
supplement, if not supplant, the formal legal processes of litigation and
dyadic negotiation by their different organizing principles and
epistemological underpinnings (that party as well as professional expertise
is welcome), may in turn develop new kinds of substantive solutions to
particular kinds of legal and human problems. Lawyers, in more
traditional counseling and planning roles, utilize these new forms by
serving as dispute system designers, creating internal dispute and
grievance mechanisms for issues to be resolved, both within institutions
and with external customers as well.
* ★ if

Multiple Choice Questions

Answer these questions using the definitions found
at the end of Chapter Two.
1. A congressional investigating committee subpoenaed certain files
from a governmental agency in connection with the committee’s investigation
of the agency’s allegedly illegal expenditure of government funds. Lawyer
Altmont (the agency’s Chief Counsel) instructed lawyer Barker (the Deputy
Chief Counsel) to gather up the files and prepax’e them for production. Barker,
in turn, assigned the project to lawyer Crawford (a newly-hired junior lawyer).
In giving Crawford the assignment, Barker said: “I wouldn’t be surprised if all
of these files have been shredded long ago, pursuant to our regular Document
Storage and Retention Procedures Manual (‘DSRPM’).” Crawford discovered
that the files still existed, even though the DSRPM called for their destruction
six months earlier. Crawford dutifully shredded the files himself and then
reported the fact to Barker. Barker responded by stating: “Good. I wonder if
the computer backup for those files still exists?" Crawford interpreted this as
an instruction to erase the computer backup material, which he promptly did.
Barker then reported the full story to Altmont who informed the congressional
investigating committee that both the files and the computer backup had been
destroyed in accordance with the agency’s regular procedures under the
DSRPM.
a
Lawyers in Law Firms and
o Ch, 13____________ Specialized Practice Areas_________________373
a A. Only Barker and Crawford are subject to discipline.
B. Only Crawford is subject to discipline.
o
C. Altmont, Barker, and Crawford are all subject to discipline.
o D. Neither Altmont, nor Barker, nor Crawford are subject to
discipline.
c 2. Attorney Arlington is a young associate in the firm of Smith & Black.
c He is assisting senior partner Black in the discovery phase of a case in which
the court has ordered Black’s client to produce certain documents. Black asked
CD Arlington to study the court order, to review several boxes of documents sent
over by the client, and to decide which documents must be produced. Arlington
CD did the work and presented his conclusions to Black. Black and Arlington
disagree about one group of documents. Black maintains that the court order
CD does not require them to be produced, but Aldington insists that a fair reading
of the court order does require them to be produced. The two attorneys agree
o that the question is a close one, but each is convinced that the other is incorrect.
Which of the following is most nearly correct?
o A. If Arlington gives in to Black’s point of view, Arlington will be
subject to discipline, since an attorney must not hold back what a court
o has ordered to be produced.
c B. Since a subordinate attorney cannot be held accountable for
following the directions of a supervising attorney, Arlington must accede
o to Black’s point of view.
C. Since the point is a debatable one, Arlington may accede to
c Black’s point of view.
CD D. Since an attorney is required to follow his own, independent
judgment in handling a client’s matter, Arlington must either insist that
CD the documents be produced or else decline to work further on the case.
3. After 45 years of solo practice in the small town of Willow Creek,
O lawyer Lumire decided to sell his law practice and to retire. He advertised the
practice for sale in the classified pages of the local bar journal, and in due
o course he found a buyer, an enthusiastic young attorney named Ames. The
sales contract between Lumire and Ames provides that Ames will pay Lumire
o $65,000 for the small wood building that houses Lumire’s office; $8,000 for the
furniture, law books, office machines, and related items of personal property;
Q and $10,000 for the good will of the practice. It further provides that Ames will
pay Lumire $500 per month as a retirement benefit during Lumire’s lifetime
CD- or until Lumire returns to law practice in Willow Creek. Is the sales contract
proper?
o A. Yes, even though it provides for the $500 monthly retirement
CD benefit.
B. Yes, provided that the $500 monthly retirement benefit is
CD reasonable in light of the good will value of the practice.
o
CD
CD
 Lawyers in Law Firms and
374_______________ Specialized Practice Areas_______________ Ch. 13
C. No, because the good will of a law practice cannot be bought and
sold.
D. No, because Lumire and Ames have not previously been
associated in law practice, either as partners or otherwise.
Answers to the multiple choice questions will be found
in the Appendix at the end of the booh.
c
c
o
q Chapter Fourteen
o
Judicial Conduct

o What This Chapter Covers

I. Standards of Conduct for Judicial Officers
A. Judicial Standards and Discipline
o B. Introduction to the ABA Model Code of Judicial Conduct
C. Promoting Independence, Integrity, Impartiality, and Propriety
D. Performing Judicial Duties Impartially, Competently, and
Q Diligently

O E. Avoiding Conflict with Personal and Extrajudicial Activities

F. Avoiding Inappropriate Political and Campaign Activities
O G. Judges, Politics, and Free Speech
O H. Extrajudicial Source Rule
I. Recusal of U.S. Supreme Court Justices
O
J. Recusal and Due Process
O
Reading Assignment
Schwartz, Wydick, Perschbacher, & Bassett, Chapter 14.
ABA Model Code of Judicial Conduct, including the Preamble, Scope,
Terminology, Application, Canons 1 through 4, and Rules 1.1 through
c 4.5.
o ABA Model Rules:
Rules 1.12, 3.5, 8.3(b), and 8.4(f)
c
Supplemental Reading
o Hazard & Hodes:
CD Discussion of ABA Model Rules 1.12, 3.5, 8.3(b) and 8.4(f).

C ---------
^7 This final chapter departs from our usual format. In place of the
discussion problems at the beginning and multiple-choice questions at the
o
o 375
o
376 Judicial Conduct Ch. 14
end, you will find a set of Yes/No questions to help you explore the ABA
Model Code of Judicial Conduct. After the Yes/No questions, you will find
two case notes. The first concerns the free speech rights of judges and
judicial candidates. The second concerns recusal by U.S. Supreme Court
Justices.

I. JUDICIAL STANDARDS AND DISCIPLINE

The American Bar Association adopted the present Model Code of
Judicial Conduct as a model for the various states to follow in promulgating
their own codes of conduct for judges. You can think of the ABA Model Code
of Judicial Conduct (CJC) as doing for judges what the ABA Model Rules
of Professional Conduct do for lawyers.
Federal judges in Article III courts hold office for life “during good
behavior.” [U.S. CONST, art. Ill, § 1.] They can be removed from office only
by impeachment [See United States ex rel. Toth v. Quarles, 350 U.S. 11, 16,
101 S.Ct. 1, 3, 100 L.Ed. 8 (1955)], which is a drastic, tedious, and seldom-
used procedure. In 1980, Congress established a less drastic procedure that
allows a panel of federal judges to discipline an Article III judge by censure
and other sanctions short of removal from office. [See 28 U.S.C. § 372(c)(1)-
(18) (2000).]
Federal judges have their own Code of Conduct for United States
Judges. [See www.uscourts.gov/rulesandpolicies/codesofconduct/codecon
ductunitedstatesjudges.aspx.] The federal code applies to most Article II
judges and to all Article III judges except the Justices of the Supreme
Court, but the Justices look to both the federal code and the ABA models
as sources of ethical guidance. Congress has specified the grounds and
procedures for recusal (disqualification) of a federal judge from hearing a
particular case. [See 28 U.S.C. § 144 (bias or prejudice) and § 455 (other
grounds for disqualification—similar to Rule 2.11 of the CJC).]

II. JUDICIAL ETHICS BEE

Answer the following Yes/No questions. The terms in italics are defined
at the end of Chapter Two. At the end of each question, you will find a
citation to a part of the CJC that will help you answer the question.
1. The CJC’s four Canons state "overarching principles of judicial
ethics,” and the various Rules prohibit or require specific kinds of conduct.
If a judge’s conduct offends a Canon but does not violate a Rule, is the judge
subject to discipline? [See CJC, Scope H 2.]
2. The Comments in the CJC have two functions. First, they provide
guidance on the purpose, meaning, and proper application of the various
Rules. Second, they help explain the Rules and sometimes give examples
of conduct that is permitted or prohibited by a Rule. If a Comment says
c Ch. 14 Judicial Conduct 377
o that judges “must” do X, can a judge be subject to discipline for failing to do
X, even though the associated Rule doesn’t specifically mention X? [See
o CJC, Scope 3.]
o 3. While lawyer LB was litigating a case in Judge JTs court, LB
committed a serious violation of the Rules of Professional Conduct. Judge
o JT learned of LB’s violation from a trustworthy, non-confidential source.
Judge JT considered reporting LB to the appropriate disciplinary
o authorities, but after careful deliberation, she decided not to. One of Judge
JT’s fellow judges found out about JT’s failure to report LB, and that judge
c reported Judge JT to the Judicial Disciplinary Board. The Board
investigated the matter and decided not to institute disciplinary
c proceedings against Judge JT. Was the Board’s action proper? [See CJC,
Scope 1J 6 and Rule 2.15(B); ABA Model Rule 8.3, Comment 3.]
o 4. Plaintiff PE sued his former employee DF for stealing PE’s trade
o secrets. Judge JR failed to make timely rulings on PE’s motions for a
temporary restraining order and a preliminary injunction. Judge JR’s
o delay caused PE to lose thousands of dollars. PE then sued Judge JR to
recover his losses, alleging that JR’s failure to make timely rulings was a
c tortious breach of judicial ethics. Does PE have a valid tort claim against
Judge JR? [See CJC, Scope H 7; Rule 2.5(A) and Comment 3.]
c 5. CC is the Calendar Clerk of the Rosslyn County Trial Court, a
o position she has held for the past 28 years. Her employer is Rosslyn
County, and her duties are to keep the court’s calendar current and
o accurate. She does not perform any judicial functions, but every lawyer in
the county knows that CC can make life difficult for lawyers who habitually
c forget court dates, fail to file papers on time, or the like. Can CC be subject
to discipline under the CJC? [See CJC, Application 1(B) and Rule 2.12(A).]
c 6. Retired Judge RJ is subject to recall, to serve as a trial judge when
she is needed. When she is recalled, she is paid a generous per diem, in
o addition to her ordinary retirement pay. As a judge subject to recall, she is
c not permitted to practice law. During a month in which she is certain not
to be recalled as a trial judge, would it be proper for her to serve for pay as
Q the mediator of a work-assignment dispute between two labor unions? [See
CJC, Application 11(A) and Rule 3.9.]
c 7. Judge JP is a continuing part-time judge who for many years has
served roughly 10 weeks per year on the Lemon County Family Court. He
c has a continuing appointment, and he is called in whenever one of the
regular judges becomes ill or goes on vacation. When he is not judging, he
c practices family law in neighboring Walnut County, where his office and
home are located. May JP represent a woman who is seeking a divorce in
c the Lemon County Family Court? [See CJC, Application 111(A)(2) and
c III(B).]

o
 378 Judicial Conduct Ch. 14
8. Law professor LP serves sporadically as a pro tempore part-time
judge on the Oregon Court of Medical Appeals, a court of limited
jurisdiction that handles bioethics cases, medical malpractice cases, and
other cases that turn on medical issues. When the court needs LP on a case,
it appoints her separately to the panel that will hear that case. LP
vehemently disagrees with the Florida Supreme Court’s decision in a so-
called “right to life” case, and she writes a hard-hitting op-ed piece for the
New York Times, hoping to influence public opinion and to encourage the
U.S. Supreme Court to grant certiorari and reverse the Florida decision. Is
LP subject to discipline? [See CJC, Application V(A) and Rule 2.10(A).]
9. PL is a practicing lawyer who also serves on the board of directors
of InterCorp, a large, publicly held telecommunications company. Last
month, PL was sworn in as an appointed member of the State Intermediate
Court of Appeals. Will PL be subject to discipline if he does not immediately
resign his In ter Corp directorship? [See CJC, Application VI and Rule
3.11(B).]
10. Justice JZ sits on the State Supreme Court. To reduce their state
and federal income tax burden, JZ and his wife knowingly and grossly
overstated the fair market value of some property they donated to a
charity. The Internal Revenue Service charged them with willful failure to
pay income tax, a serious criminal offense. Eventually the IRS dismissed
the case in return for full payment of all the taxes due, plus interest and a
stiff penalty. Is JZ subject to discipline? [See CJC Rule 1.1, 1.2, and
Comments 1—3.]
11. The North Virginia Legal Assistance Corporation (NVLAC) is a
tax-exempt, publicly chartered corporation that seeks charitable donations
and in turn grants funds to locally operated Legal Aid offices. Those offices
provide legal services to needy people in non-criminal matters. Justice JL
sits on the North Virginia Circuit Court of Appeal. She allows her name
and judicial title to be used on the letterhead that the NVLAC uses to solicit
contributions from the public and memberships from lawyers. The Justice
also makes speeches at bar association meetings, urging lawyers to become
dues-paying members of NVLAC and to provide pro bono services. Finally,
the Justice serves as an unpaid instructor in quarterly workshops that
train lawyers how to do Legal Aid work. Are Justice JL’s activities proper?
[See CJC Rule 1.2, Comments 4 and 6; Rule 3.7(A), Comment 3 and 4; Rule
3.7(B), Comment 5.]
12. On her way to work one morning, Superior Court Judge JE was
stopped by a State Highway Patrol Officer for driving her little red sports
car 83 miles per hour through a 45 mph construction zone. The officer gave
JE a $400 speeding ticket. In response, JE ordered the officer to appear at
10 a.m. the following day in her courtroom. The officer appeared as ordered,
in uniform and wearing his service pistol on his belt. JE ordered him to
Ch. 14_________________ Judicial Conduct_____________________379
place his pistol on her bench. She picked it up and pointed it at the officer’s
mid-section, saying this: “Officer, the next time you see my car on your little
piece of highway, think carefully about this moment.” With that, she
handed the pistol back and dismissed him. She later paid the speeding
ticket on time and without complaint. Is JE subject to discipline’! [See CJC
Rule 1.2 and 1.3, Comment 1.]
13. After graduating from law school, LG served for a year as law
clerk to State Supreme Court Justice JJ. When LG started looking for a
law firm job, Justice JJ volunteered to write recommendation letters for
her. Using Supreme Court stationery, stamps, and secretarial services, JJ
wrote letters to a dozen top law firms, enthusiastically recommending LG
as “among the best two or three law clerks I have ever had.” Is Justice JJ
subject to discipline’! [See CJC Rule 1.3, Comment 2.]
14. Judge JW wrote a thinly disguised “novel” based on an infamous
murder committed by a Hollywood film star. Earlier JW had presided at
the film star’s jury trial, which resulted in a publicly unpopular acquittal.
In JW’s novel, the wise trial judge permitted the prosecutor to use some
evidence that JW had excluded from the real trial, and the fictional jury
came back with a conviction. The book publisher heavily advertised the
novel as having been written by “Trial Judge JW, The Man Who Knows the
Truth.” Is JW subject to discipline’! [See CJC Rule 1.3, Comment 4; see also
Rule 1.2.]
15. Justice JU is serving her third term as an elected State Appellate
Court Justice. She lives with her aged parents, who are both in the mid­
stages of Alzheimer’s disease. They require full-time, watchful care, and
thus far they have vigorously resisted JU’s efforts to obtain outside help or
to place them in an appropriate care facility. Justice JU attempts to do her
reading, legal research, and opinion writing at home, but she finds it hard
to concentrate, and she is frequently unavailable to come to the court for
conferences and oral arguments. Will Justice JU be subject to discipline if
she does not either resign or make other arrangements foi- the care of her
parents? [See CJC Rule 2.1.]
16. Administrative Law Judge JA came to the United States from his
native country as a penniless immigrant 38 years ago. He learned to speak
fluent English, earned a law degree, and now sits on the Social Welfare
Appeals Court. Judge JA has an unshakeable faith in the ability of
immigrants from his native country to make their own way in the U.S.
through hard work and frugal living. Without exception, whenever JA
hears a welfare appeal involving an immigrant from his native country, he
rules against the immigrant and delivers a little lecture on his own life
story. Is Judge JA’s conduct proper1! [See CJC Rule 2.2, Comments 1 and 2;
Rule 2.3(B); Rule 2.11(A)(1); see also CJC, Application 1(B) and n.l.]
380 Judicial Conduct Ch. 14
17. Despite his advanced age, crumbling countenance, and perpetual
halitosis, Appeals Court Justice JK regards himself as uncommonly
attractive to women, especially young ones. In hiring law clerks, JK
invariably selects young women, and in dealing with them he is always
oleaginously attentive. He buys them little presents, compliments their
hair, brings them flowers from his garden, pats them on the knee, and
never requires them to work to capacity. In return, he expects them to fetch
him coffee, run personal errands, accompany him to the occasional movie,
and listen to his ancient jokes about traveling salesmen and farmers’
daughters. Surely JK is an oily old creep, but is he subject to discipline?
[See CJC Rule 2.3(A), (B), and Comments 2-4.]
18. Judge JH is assigned to handle the bail hearing in a street-gang
murder case against gang leader GL. JH received an anonymous telephone
call, telling him to free GL on bail or else “prepare to find your precious
sixth-grader dead and floating in the river.” The police could not find the
source of the call, and they could not guarantee the safety of JH or his sixth­
grader. JH was so unnerved that he felt he could not rule fairly on GL’s
motion to set bail, and the Chief Judge urged JH to recuse himself and let
a different judge handle the bail hearing. JH reluctantly recused himself.
Was JH’s recusal proper? [See CJC Rule 2.4(B); Rule 2.7; and Rule
2.11(A)(1).]
19. This morning Judge JD’s courtroom is overflowing with angry
citizens who have come to hear JD rule on the habeas corpus petition of ST,
an alleged terrorist who has been confined without a hearing for four years
in a Navy brig in JD’s judicial district. The bailiffs cannot stop the angry
citizens from shouting and stamping their feet, so JD asks the local police
to eject them from the courtroom, which the police do with dispatch. Is JD’s
action proper? [See CJC Rules 2.4, 2.8(A), and 2.11(A)(1).]
20. Court Commissioner CC performs judicial functions in the Labor
Relations Court of First Instance. CC’s late father was a respected labor
union leader, and CC’s siblings are all members of various labor unions.
CC’s younger brother, Benny, often tells other union members things like
this: “Hey, don’t worry about it—if you end up in court, my brother CC will
take care of it.” CC has admonished Benny not to say such things, but CC
knows that Benny does it anyway. Is CC subject to discipline? [See CJC,
Application 1(B); CJC Rule 2.4(C).]
21. Justice JQ sits on the State Court of Criminal Appeals (CCA),
which in this state is the highest appellate court for criminal matters. The
CCA’s own Rule of Court 400—4 requires each Justice to personally read
and prepare bench briefs for a pro rata share of the Petitions for
Discretionary Review that the court receives every month. Justice JQ
thinks that rule is foolish and that the Justices should have their law clerks
read the petitions and prepare the bench briefs, to free up the Justices for
g Ch. 14 Judicial Conduct 381
g more demanding work. JQ’s efforts to get the rule changed have been in
vain, so he simply refuses to follow it—his share of the petition work is
g done by his law clerks, and they do it quite well. Is JQ’s conduct proper?
[See CJC Rule 2.5(A) and (B).]
c
22. State Supreme Court Justice JN used to be one of the two or three
G best judges on the high court, and she is still excellent during the morning
hours. After lunch, however, she has become alternately belligerent and
o somnambulant, which some court observers attribute to the amount of
alcohol she drinks with lunch. She is frequently late in returning from the
c noon hour, which prevents the court from resuming on time. Some
afternoons she flies into a rage when one of the arguing lawyers cannot
o satisfactorily answer her questions. Other afternoons she goes quietly to
sleep during the oral arguments. Is JN subject to discipline? [See CJC Rule
G 2.5.]
c 23. For many years Judge JG has been the only judge assigned to the
Law and Motion calendar in Centertown, the commercial and population
c hub of the state. JG wrote the state’s leading treatise on pre-trial civil
procedure, the topic that controls most law and motion issues. The book
G publisher advertises the treatise with cartoons that depict angry clients
berating their dull-eyed lawyers with statements like this: “My next lawyer
G will look in Judge JG’s book!” When the State Commission on Judicial
Performance inquired about the advertising, JG responded that he just
C writes the treatise, and the advertising is up to the publisher. Is JG’s
position proper? [See CJC Rule 1.3, Comment 4.]
G
24. Judge JY prides herself in keeping her trial calendar current by
G insisting that the parties do everything possible to settle their differences
before resorting to trial. At the final pre-trial conference, she almost always
O tells the parties and their lawyers something like this: “All of you are being
unreasonable babies. I want you to settle this case this afternoon, and none
G of us will go home tonight until you get it done.” She puts the plaintiffs in
one room and the defendants in another room, and then she moves from
G one room to the other, carrying settlement offers, debunking legal
arguments, threatening stubborn clients, humiliating self-important
C counsel, and finally bringing the sides together with a settlement
agreement. Is Judge JYs conduct proper? [See CJC 2.6(B) and Comment
G 2.]
G 25. Judge JJ is taking her two-year turn in Small Claims Court,
where litigants represent themselves in civil matters valued at $5,000 or
G less. Behind JJ’s back, her fellow judges call her Saint Jean, because she is
endlessly patient with every litigant who appears in her court, no matter
o
V—<
how ineptly they present their case, and no matter how foolish their
contentions. JJ listens serenely to shameless liars, hallucinating addicts,
G and selfish quibblers, giving each of them equal and undivided attention.
C
382 Judicial Conduct Ch. 14
According to the court’s statistical records, JJ is not handling as many
small claims cases as other judges have in the past. On the other hand, in
litigant surveys, the litigants who appear in her court rate her
“outstanding” in both “fairness” and “ability.” Is JJ subject to discipline?
[See CJC Rule 2.5 and Rule 2.8(B).]
26. Next November, Judge JT will be running in a contested election
to retain his seat on the Superior Court bench. Five other judges sit on JTs
court. The court clerk assigns cases randomly, by drawing judges’ names
from an old tin can. The clerk draws JT’s name and assigns him Dinsmore
v. Unified School District, in which an outspoken atheist is suing the local
school board to stop the teaching of Intelligent Design as an “alternative
theory” to Darwinian evolution. JT has no personal convictions about how
the world began, but he does know that 68% of the voters in his district are
fundamentalist Christians who believe in the literal truth of the Bible. May
JT disqualify himself from hearing the case for the honest reason that he
does not want to become embroiled in this kind of case so close to the
election? [See CJC 2.7 and Comment 1.]
27. District Attorney DA is the elected criminal prosecutor in Judge
JE’s court. The citizens keep electing DA, term after term, because of the
tough-guy cowboy image he conveys. DA always wears a big cowboy hat,
expensive boots, and Levi jeans with a rodeo belt buckle as big as a coffee
saucer. In the courtroom, DA struts and swaggers, berating witnesses,
pandering to jurors, and browbeating hapless defendants. Judge JE
occasionally tries to moderate DA’s antics, but mostly she just lets him
perform. Is Judge JE subject to discipline? [See CJC Rule 2.8(B).]
28. Judge JS sat as the trier-of-fact in a breach of contract case
involving the sale of a race horse named Sassy Sue. One evening during
the trial, JS attended a cocktail party where he overheard some well-
dressed strangers chatting and laughing about the Sassy Sue case. JS
pricked up his ears and heard one of them say: “I don’t blame the buyer for
backing out of that sale—any decent vet could see that Sassy Sue is prone
to shin splints.” The next morning when the seller was on the witness
stand, Judge JS posed his own line of questions about Sassy Sue and shin
splints. Those questions turned out to be the most critical ones in the whole
case. JS did not tell the litigants what he had overheard at the cocktail
party. Was JS’s conduct proper? [See CJC Rule 2.9(A) and (B).]
29. The Chief Judge assigned trial judge JT to hear a complex pension
law case involving the Employee Retirement Income Security Act (ERISA).
Because JT didn’t know the first thing about pension law, he bought and
carefully studied the best legal treatise in the field. Then JT contacted one
of the treatise authors, Professor BW, and arranged to get BW’s help on
difficult ERISA questions. Finally, whenever such a question arose during
the case, JT telephoned BW, who helped JT work out the right answer. JT
Ch, 14_________________ Judicial Conduct_____________________383
did not tell the litigants about the help he got from BW, but when they did
find out later, they were pleased about the extra effort JT put into their
case. Is JT subject to discipline? [See CJC Rule 2.9(A)(2).]
30. Judge JZ is newly appointed to the bench and does not yet fully
trust his judicial instincts. Whenever he is bothered by an issue of fairness
or equitable application of the law, he talks it through with JV, the most
senior member of JZ’s court. These conversations frequently result in JZ
changing his mind about the issue at hand. Is JZ’s conduct proper? [See
CJC Rule 2.9(A)(3).]
31. The court on which Judge JW and Judge JQ sit is located near
many communication technology and biological technology companies. As
a result, much of their court’s business involves those fields of science.
Whenever JW sits as trier-of-fact in such a case, he researches the scientific
issues thoroughly, using both his computer and the nearby university’s
science library. Whenever JQ presides in a case that involves difficult
questions of law, she doesn’t limit herself to the lawyers’ briefs to find out
what the law is. Rather, she does her own legal research, using both her
computer and the nearby university’s law library. Are both JW’s and JQ’s
actions proper? [See CJC 2.9(C); see also ABA Formal Op. 478, Independent
Factual Research by Judges Via the Internet (Dec. 8, 2017).]
32. Lawyer LL filed a complaint on behalf of Friends of the Birds to
enjoin developer Knoxous Korp. from buying and building on a certain 500
acre parcel of virgin wetlands. One day later, before Knoxous was even
served with the complaint, LL showed up at the chambers of Judge JR with
a petition for an immediate temporary restraining order that would stop
Knoxous for 21 days from closing the land purchase transaction. Nobody
was present on behalf of Knoxous, but Judge JR invited LL into his
chambers, glanced over the petition, and—without hearing anything from
LL—denied the petition without prejudice to later renewal, on the ground
that he could not grant the petition ex parte without giving Friends of the
Birds a tactical advantage over Knoxous. Was Judge JR’s action proper?
[See CJC Rule 2.9(A)(1).]
33. Judge JE was presiding at criminal defendant CD’s jury trial for
drug dealing. CD was defended by a court-appointed defense lawyer who
seemed more intent on augmenting his hourly fee (paid from the public
purse) than on effectively defending CD. The prosecution relied heavily on
testimony from three shifty-eyed witnesses, and CD’s lawyer offered no
character evidence to attack their credibility. When JE got home, he did a
bit of Internet research and discovered that each of the three shifty-eyed
witnesses had multiple convictions for crimes involving dishonesty or false
statement—convictions that the defense could have used foi- impeachment.
After careful thought, JE decided not to interfere with CD’s lawyer’s
handling of the case. The jury found the defendant guilty as charged, but
 384 Judicial, Conduct Ch. 14
the following day JE granted the defendant’s motion for a new trial based
on incompetence of defense counsel. JE based his decision, in part, on the
defense counsel’s failure to impeach the three shifty-eyed witnesses. Were
JE’s actions proper? [See CJC Rule 2.9(C); see also ABA Formal Op. 478,
Independent Factual Research by Judges Via the Internet (Dec. 8, 2017).]
34. Crescent Corp., the world’s richest oil company, made a hostile
tender offer for shares of USA Petro, the largest U.S. producer of crude oil.
The Antitrust Division of the U.S. Department of Justice sued Crescent,
alleging that the tender offer was part of a plan to monopolize the global
oil business. While the government’s motion for a preliminary injunction
was pending before a federal district judge, United States Supreme Court
Justice JM appeared on television for an interview about the architecture
of the beautiful white-marble building that houses the Court. The
interviewer surprised him with a pointed question about the preliminary
injunction motion in the Crescent antitrust case, and Justice JM blurted
out the following response: “No federal judge could be dumb enough to deny
a preliminary injunction in that case.” May a judge make such a comment
in a public forum? [See CJC Rule 2.10(A); see also Republican Party of
Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002),
noted infra.]
35. Lawyer LC was a candidate for an appellate court judgeship in a
contested election. During the campaign season, a radio reporter asked LC
whether, if elected, she would vote to uphold the constitutionality of a
physician-assisted suicide statute that the state legislature recently
enacted. LC replied: ‘1 don’t know how I would vote, because that would
depend on the procedural posture of the case and the precise legal issue
before the court, but I can tell you what general legal principles would
guide me. First, I think the individual states are the appropriate units of
government to deal with issues of health care, including end-of-life
decisions. Second, I think people have an inherent right of privacy, which
is protected by our state constitution, and perhaps also by the federal
constitution. Third, I think that, absent constitutional constraints, the will
of the people, expressed through their legislators, should govern.” Was LC’s
response proper? [See CJC Rule 2.10(B) and Rule 4.1(A)(13) and Comment
13.]
36. A jury of his peers convicted arson defendant AD on seven
separate counts of arson, each of which involved the burning of a family
residence while the family was asleep inside. At the end of the trial, after
the sentencing, the post-trial motions, and the housekeeping details had
been disposed of, trial judge JS turned to the jury and said: “Before I excuse
you, ladies and gentlemen of the jury, I want to commend you for your hard
work, for your patience in grappling with some difficult expert testimony,
for your sympathetic concern for the victim witnesses, and for the wisdom
demonstrated in your guilty verdicts. I am proud of you, and your
Ch. 14_________________ Judicial Conduct_____________________385
community is proud of you, for a job well done. Now, ladies and gentlemen,
you are excused.” Is JS subject to discipline for that little speech? [See CJC
Rule 2.8(C) and Comment 2 J
37. Trial judge JI disqualified himself from presiding at the trade libel
trial of P Inc. v. D Corp., because JI was one of P Inc.’s lawyers in the early
stages of the case. The case then passed to trial judge JG. Because JG had
never handled a trade libel case before, he cornered JI in the judges’ lunch
room one day and asked her for a little lecture on the applicable law and
on the facts and personalities involved in the case. JI politely declined to
talk about the case with JG. Was Ji’s action proper? [See CJC Rule 2.9(A)(3)
and Comment 5.]
38. For many years before her appointment to the bench, lawyer LM
was a business litigator. She usually defended large corporations in
securities, antitrust, intellectual property, and contract cases, and she
usually won. Over the years, she developed a deep loathing for attorney
AS, who often represented her opponents. LM regards AS as dishonest,
lazy, unethical, and ignorant. The very sight of him gags her with disgust.
Whenever AS shows up as counsel in a case assigned to her, LM gets the
urge to disqualify herself. May she do so? [See CJC Rule 2.11(A)(1).]
39. Trial judge JO lives with and has an intimate relationship with
his domestic partner DP, who is a news anchor for a local television station.
DP has a married sister whose husband is the sole owner and operator of a
dry-cleaning shop. The State Environmental Protection Agency has sued
the husband to enjoin him from pouring toxic dry-cleaning chemicals down
the storm sewer behind his shop. If the case is assigned to JO, would it be
proper for him not to disqualify himself? [See CJC 2.11(A)(2)(a) and (c).]
40. Appellate Justice JC is married to HC, the wealthy owner of a
wide variety of businesses. One of HC’s businesses is AmeriNet, a re­
insurance company that insures other insurance companies against
extraordinary losses due to natural disasters. Justice JC takes care not to
learn the nature or extent of HC’s business holdings, so as to insulate
herself from possible bias in her role on the appellate court. May JC sit on
the appellate panel that hears AmeriNet’s appeal from a multi-billion
dollar judgment in a case arising out of recent tornados in the Midwest?
[See CJC Rule 2.11(A)(2)(c) and (A)(3); Rule 2.11(B).]
41. Before State Supreme Court Justice JB took his present position,
he was the elected Attorney General of the state. As Attorney General, he
participated personally and substantially in writing Attorney General’s
Opinion 179, which takes the position that the state’s current procedure
for administering lethal injections in capital cases does not violate the state
or federal constitutions. May Justice JB participate when his court decides
a condemned man’s challenge to the lethal injection procedure under the
386 Judicial Conduct Ch. 14
cruel and unusual punishment clauses of the state and federal
constitutions? [See CJC Rule 2.11(A)(6)(b).]
42. Trial judge JX owns 15 shares of common stock in Consolidated
Gold Holdings, Inc. JX inherited the stock when his grandfather died, some
30 years ago. The stock trades in the $3 to $5 range. Consolidated is either
wealthy or worthless, depending on whether gold is found someday in
Consolidated’s California mines. Consolidated employee Clem Whittle sued
Consolidated for back injuries he claims to have suffered when he fell off a
stool in Consolidated’s employee lunch room. JX is assigned to be the trial
judge in Whittle v. Consolidated. Would it be proper for JX not to tell
counsel about his 15 shares of Consolidated, provided that JX truly believes
that the stock ownership is clearly not disqualifying? [See CJC Rule
2.11(A)(2)(c) and (A)(3) and Comment 5.]
43. Judge JA presided and served as trier-of-fact in PL u. DF. The
critical issue was whether a particular stop sign was obscured from DP's
line of sight by the trunk of an ancient oak tree. Unfortunately neither
counsel offered satisfactory evidence on that issue. Before the trial ended,
JA asked her law clerk to drive out to the intersection in question, stop
half-a-block southeast, and determine whether he could see the stop sign
despite the oak tree. The clerk reported that the sign was clearly visible,
and JA decided the case accordingly. Were JA’s actions proper? [See CJC
Rule 2.9(C) and Rule 2.12(A).]
44. During Judge JJ’s public election campaign, lawyer LY’s husband
contributed $1,000 to JJ’s election campaign committee. [In this state, the
judicial ethics code says that a contribution above $1,500 will result in the
judge’s disqualification from matters involving the donor.] JJ took pains
not to learn the names of his campaign contributors. Six months later, JJ
selected LY from among several qualified candidates to be the Special
Master in some complicated patent cases. Special Masters in patent cases
are very well compensated in this state. JJ selected LY because of her fine
reputation among patent lawyers. Is JJ subject to discipline? [See CJC Rule
2.13.]
45. Family Court Judge JG supervised the placement of 10-year-old
orphan O in a loving foster home, and JG appointed lawyer LE to serve as
guardian of O’s financial interests until O reached age 21. Shortly after O’s
15th birthday, O inherited a large sum of money from his aunt. LE took
over the management of the money, subject to review by Judge JG every
60 days. At 10 a.m. in one of these review sessions JG smelled whisky on
LE’s breath, and J G found that LE’s computer records of O’s money were
garbled and incomplete. Further investigation revealed that LE had
become a serious drunk and that he was diverting some of O’s money for
his own use. JG gave LE a vigorous talking-to. At the next reporting
session, 60 days later, JG concluded that LE was still drinking, that the
cd
c Ch, 14_________________ Judicial Conduct_____________________387
Q financial records were still a mess, and that more of 0’s money was
missing. Is JG subject to discipline for failing to take stronger action 60
c days earlier? [See CJC Rules 2.14 and 2.15.]
c 46. For more than 25 years, attorney AH divided his time about 50-
50 between practicing law and helping his wife operate their charming
o small hotel on the edge of town. Last year AH was appointed to be a County
Court Judge, and at that point his wife took on most of the hotel work, to
CD give AH ample time for judging. Now the County Board of Supervisors is
proposing a 17% tax on all hotel guests in the county—a tax that would
Q drive small hotel owners out of business. AH plans to speak in opposition
to the tax at the next Board of Supervisors meeting. Is it proper for AH to
C be involved in the hotel business with his wife, to spend a few hours per
week on hotel work, and to speak against the tax at the Board of
o Supervisor’s meeting? [See CJC Rules 3.1(A), 3.2(C), and 3.11(B)(1).]
o 47. Appellate Justice JA got to know law student EJ well when she
served for two semesters as his unpaid judicial extern, and he developed a
o high opinion of her moral character and legal abilities. At the time, EJ was
an exchange student from Thailand, who was in the U.S. on a student visa.
o Now, a few years later, EJ wants to return as a permanent resident and
eventually become a naturalized citizen, and she needs a good-character
o witness to testify on her behalf at an administrative hearing held by the
U.S. Immigration and Naturalization Service. When she asked Justice JA
o to do that for her, he declined to do so voluntarily, but he said that if she
did not have anyone else, and if she subpoenaed him, he would testify for
o her. Was JA’s response proper? [See CJC Rule 3.3.]
o 48. After serving for seven years as the U.S. Treasury Secretary, SS
became an Associate Justice of the U.S. Supreme Court, where she served
Q for a decade with great distinction. While SS was still on the Court, U.S.
President PR needed a person of undoubted wisdom and rectitude to chair
O a newly-created Presidential Commission on Foreign Relations, and he
selected SS for that task. President PR’s unexpressed hope was that the
c Commission would take the heat off of him for a series of foreign policy
blunders. SS respectfully refused to serve, explaining that to do so would
o be inconsistent with her responsibilities on the Court. Was SS’s refusal
o proper? [See CJC Rule 3.4.]
49. To rule on a summary judgment motion, Judge JY had to read
c some confidential discovery material that was filed in her court under seal.
From it she learned that MagnaTherm Energy Corp, was about to publicly
c announce its development of a new non-carbon-based fuel for generating
electricity. JY knew that her scientist brother-in-law would be fascinated
o to learn of the new development, so she told him about it in strict
confidence. Without revealing the secret to anyone, the brother-in-law
o bought 1,000 shares of MagnaTherm common stock on the open market at
o

CD
388 Judicial Conduct Ch. 14
$54 per share. When MagnaTherm made its public announcement, the
share price increased to $76 per share. Is JY subject to discipline? [See CJC
Rule 3.5.]
50. JW retired from the U.S. Army after 30 years in the Judge
Advocate General’s Corps. He was then appointed to the State
Intermediate Court of Appeal, and a few months later he was offered
membership in the Armed Forces Memorial Club, which operates excellent
but inexpensive guest facilities in major cities of the U.S. The club offers
membership to active duty or honorably discharged men and women from
the Army, Navy, Marine Corps, or Coast Guard, except for homosexuals
and lesbians. May Judge JW join the club? [See CJC Rule 3.6.]
51. Trial court Judge JT is known as the driving force behind his
state’s Legal Aid Institute. The institute helps fund legal aid offices, which
provide pro bono legal services to poor people in civil matters. For years,
Judge JT has helped the institute plan fund-raising events and manage its
money. JT’s name and judicial title are listed on the institute’s fund-raising
letterhead. JT also helps recruit lawyers to be “sustaining members” of the
institute. To be a sustaining member, a lawyer must donate at least $5,000
per year to the institute and must personally perform at least 100 hours
per year of pro bono work for poor people. JT’s recruiting tools are good
humor and appeal to virtue; he avoids anything remotely coercive. Is it
proper for Judge JT to help plan fund-raising events, to help the institute
with money management, to appear on the letterhead, and to recruit
sustaining members? [See CJC Rules 3.1 and 3.7.]
52. Empire County trial judge JO’s father FA has long been a
gambling addict, and JO has always had to look out for him. A year ago FA
won $15 million dollars playing poker in Las Vegas. JO convinced FA to
put two-thirds of the money in trust, with JO as trustee and FA as
beneficiary. JO carefully researched the leading publicly held companies in
Empire County, and she invested part of the trust money in the best eight.
Those companies frequently show up as litigants in JO’s court, but since
she holds the investments as trustee, rather than as beneficial owner, she
does not disqualify herself. Is it proper for JO to serve as trustee and for
her not to disqualify herself, as described above? [See CJC Rule 2.11(A),
Rule 3.8 and Comment 1, and Rule 3.11(C)(2).]
53. In the big city of Gotham, the court calendars are so crowded that
civil litigants must often wait two or three years after their final pre-trial
conference to get a trial date, a judge, and an open courtroom. As a
consequence, many litigants now stipulate to use a “Rent-a-Judge,”
meaning an experienced judge who will decide their case under ordinary
court rules and ordinary law, but who is paid a per diem fee by the litigants
rather than a monthly salary by the government. In contrast, in the nearby
sleepy village of Blossom Grove, the trial court calendar is never clogged,
Ch. 14_________________ Judicial Conduct_____________________389
so the local judge, JZ, seldom has enough work to occupy his time. When
nothing is going on in Blossom Grove, JZ moonlights as a Rent-a-Judge in
Gotham. May he do so? [See CJC Rule 3.9.]
54. Judge JR no longer sits full-time on the State Seventeenth Circuit
Appeals Court, but as a continuing part-time judge, she regularly
substitutes for other judges when needed. JR’s grandson GS came home
from high school a few months ago with two broken teeth, a broken nose,
and two black eyes, all due to a beating by the Filthy Four, a notorious
quartet of high-school bullies. JR promised GS she would represent him for
free in bringing the bullies to justice. On GS’s behalf, she sued the bullies
in the Lake View trial court, which is under the appellate jurisdiction of
the Seventeenth Circuit. JR won GS a judgment for $18,000. Were JR’s
actions proper? [See CJC, Terminology, definition of “member of the judge’s
family;” CJC, Application 111(B); and CJC Rule 3.10.]
55. LV was a successful appellate lawyer. He and five other successful
appellate lawyers were joint venturers in a real estate deal; their objective
was to restore the old buildings in the historic center of their city and to
turn the area into an attractive and profitable shopping venue. When LV
died, his share of the real estate venture passed to his daughter, Justice
JE, who sits on the State Supreme Court. JE got along well with the five
other venturers, and she enjoyed their regular Tuesday breakfast
meetings, where they discussed their strategies and progress. Her five co­
venturers frequently argue cases before the State Supreme Court, but she
disqualifies herself from participating in those cases. Are her actions
proper? [See CJC Rule 3.11.]
56. The State of East Dakota five-judge Condemnation Court handles
cases in which the government exercises the power of eminent domain to
take private property for a public use. East Dakota condemnation lawyers
formed the Eminent Domain Association. About half the members work for
the government as condemnation lawyers, and the other half routinely
represent private citizens whose property is being taken. The association
holds annual meetings, always in some remote and scenic location around
the state. At these meetings, the members attend continuing legal
education sessions, debate condemnation policy, hear presentations on
pending legislation, play an annual touch football game, and socialize at
luncheons and dinners. This year the Association invited Condemnation
Court Judge JC to attend the annual meeting and be the keynote speaker
at one of the dinners. The Association waived its usual $200 annual
meeting registration fee for JC, and it reimbursed her travel, lodging, food,
and incidental expenses. It also paid her its usual $400 honorarium for
giving the keynote speech. JC publicly reported these sums in accordance
with East Dakota’s version of the CJC. Was it proper for JC to attend the
meeting, give the speech, and accept the fee waiver, expense
reimbursement, and honorarium? [See CJC Rules 3.12, 3.14, and 3.15.]
 o
o
390 Judicial Conduct Ch. 14
57. Juvenile Court Judge JQ’s wife sells life insurance policies. Last
week she won first prize in a sales contest put on by her employer. Her Q
employer has never appeared in the Juvenile Court and is not likely to do
so in the future. The prize is a two-week, all-expense-paid vacation in CD
Tahiti for the winner and one guest. If JQ goes as his wife’s guest, will he _
be subject to discipline? [See CJC 3.13.] CD
58. Land developer LD recently lost a zoning case that he plans to
appeal to the 15 judge State Intermediate Court of Appeals. JY is a judge o
on that court. The clerk of that court randomly assigns judges to three- o
person panels, so litigants never know what judges they will get. JY and
LD were college roommates, but they haven’t corresponded or seen each o
other in years. LD recalled that JY is an avid wildlife photographer; LD
owns a rustic cabin high in a mountain range that teems with wildlife. o
Without mentioning the zoning case, LD telephoned JY and invited him to
spend a few days together at the cabin, hiking in the mountains and o
photographing the animals. The trip was a great success; JY got plenty of
photos and fresh air, and the total cost for the two of them was under $100. o
Of course LD never mentioned the zoning case, and JY wasn’t even aware
of the case or of LD’s plan to appeal. As luck would have it, JY was not o
selected for the three-person panel that ultimately heard LD’s case. Is JY
subject to discipline? [See CJC Rule 3.13.] CD
59. Judge JZ is an appellate court judge in East Virginia, where a
appellate judges enjoy lifetime tenure. JZ’s son is an up-and-coming young
politician, a member of the Independence Party. He hopes to become the cd
first Independence U.S. President, but for now he is working his way up by
running in a contested public election for Lieutenant Governor of East o
Virginia—the state’s second-highest elective office. JZ wants to support her
son’s candidacy in any way she can. May she publicly endorse him, make O
speeches on his behalf, contribute money to his campaign fund, and vote
for him in the primary and general elections? [See CJC Rule 4.1(A) and o
Comments 3 through 6.]
o
60. Attorney AZ became so fed up with the local trial court’s
inefficiency that she vowed to get herself appointed to the next vacant CD
judgeship. The Governor appoints new judges, based on recommendations
from a State Bar committee. AZ’s application letter to the committee o
promised that, if appointed, she would work to clean up the court’s backlog
of civil cases, streamline its probate calendar, and fire and replace the CD
fossilized chief of records and the tyrannical jury commissioner. Was her
application letter proper? [See CJC 4.1, Comment 14 and Rule 4.3.] CD
61. Lawyer LY is one of seven candidates running in a partisan Q
election for three vacant positions on the Superior Court bench. Within the
time period specified by law, LY identified himself as a member of the Q
Democratic Party, and he obtained and publicized the Democratic Party’s _

o
o
Ch. 14_________________ Judicial Conduct_____________________391
endorsement of his candidacy. LYs main adversary is Republican Party
candidate RP; the other five candidates are not well known or well
financed. At a Democratic campaign rally, LY spoke vigorously on his own
behalf, and he overtly and candidly criticized RP’s suitability to be a judge.
Is LY subject to discipline? [See CJC Rule 4.2(B)(2) and (3); Rule 4.2(C) and
Comment 6.]
62. State law requires all trial and intermediate appellate judges to
run in a public “retention” election every seventh year. To retain his or her
seat, a judge must get a majority vote. This year all of these retention
candidates received a long questionnaire from the ATPW Coalition. (ATPW
stands for All Things Pure and Wholesome.) ATPW calls itself an “issues
advocacy” group. The object of the questionnaire is to find out and publicize
what each candidate believes about an assortment of controversial legal,
social, and political issues, such as animal rights, prison reform, global
warming, the death penalty, whales, gay clergy, welfare fraud, preemptive
war, globalization, child abuse, coyotes, campaign finance reform,
immigration, organic food, and urban sprawl. When Judge JI received her
ATPW questionnaire, she sent it back without answering any questions.
She included a handwritten note explaining that she opposes all such
questionnaires on the ground that reasonable people might view them as
undermining a judicial candidate’s independence and impartiality. Was
Ji’s response proper? [See CJC 4.1, Comment 15.]

III. JUDGES, POLITICS, AND FREE SPEECH

Take a second look at CJC Rules 2.10(B) and 4.1(A)(13). Those rules
tell judges and judicial candidates roughly this: if a case or issue is likely
to come before your court, you must not make a pledge, promise, or
commitment that is inconsistent with your duty to decide that case or issue
impartially.
The 1990 predecessor of those rules was more restrictive; it prohibited
judicial candidates from making pledges or promises of “conduct in office
other than the faithful and impartial performance of the duties of office,”
and from making statements that “commit or appear to commit the
candidate with respect to cases, controversies, or issues that are likely to
come before the court.” [See 1990 CJC 5A(3)(d)(i) and (ii), prior to 2003
amendments.]
One provision of the 1972 CJC was still more restrictive. It said that a
judicial candidate must not “announce his views on disputed legal or
political issues.” [See 1972 CJC 7(B)(1)(c).] The 1972 provision is called the
“announce clause,” to distinguish it from the “commit clause” in the 1990
version. After the ABA abandoned the announce clause in 1990 and
substituted the commit clause, most states followed the ABA’s lead and did
likewise. But Minnesota kept its old announce clause and applied it to both
392 Judicial Conduct Ch. 14
incumbent judges and lawyers seeking their first judgeship. [See Minn.
Rules of Board on Judicial Standards 4(a)(6) and 11(d) (2002).] Minnesota
selects all state judges by popular election.
In 1996 and 1998, Gregory Wersal ran for the Minnesota Supreme
Court. He and the Republican Party of Minnesota sued the officials who
enforce the Minnesota judicial standards for a declaratory judgment that
the announce clause inhibited candidate Wersal’s ability to speak out on
disputed legal and political issues such as welfare, crime, and abortion, and
thus violated his (and the Republican Party’s) First Amendment right of
free speech. The federal district court interpreted the announce clause
narrowly, saying that it covered only issues that were likely to come before
the court to which the candidate aspired. With that narrow interpretation,
the district court held that the announce clause was constitutional. On
appeal, the Eighth Circuit affirmed, but only after giving the clause a
second pruning. The Eighth Circuit said that the clause permits “general
discussions of case law and judicial philosophy.” The Minnesota Supreme
Court later adopted the two narrow readings of the clause.
Five members of the United States Supreme Court, in an opinion by
Justice Scalia, struck down the announce clause, even in its twice-pruned
form. Republican Party of Minnesota v. White, 536 U.S. 765,122 S.Ct. 2528,
153 L.Ed.2d 694 (2002). Justice Scalia called the clause an impermissible
content-based restriction that burdens a kind of speech that is at the core
of First Amendment freedoms—speech about the qualifications of a
candidate for public office. That made it subject to strict scrutiny, thus
forcing the Minnesota officials to prove that the announce clause was (1)
narrowly tailored (2) to serve a compelling state interest.
To prove that the clause was narrowly tailored, the Minnesota officials
had to demonstrate that it did not unnecessarily circumscribe protected
expression. The judicial narrowing of the announce clause was less than it
appeared to be, Justice Scalia said. In the heat of the oral argument before
the U.S. Supreme Court, counsel for the Minnesota officials conceded, off-
the-cuff, that a candidate would violate the announce clause if he or she
criticized a prior judicial decision and simultaneously asserted that stare
decisis would not stop him or her from trying to overturn it. Further,
limiting the announce clause to issues likely to come before the court is not
much of a limitation because almost every disputed legal or political issue
can end up before some court of general jurisdiction. Finally, construing
the clause to allow “general” discussions of case law and judicial philosophy
is small comfort. For example, a candidate could claim to be a “strict
constructionist,” but the claim would not mean much without some specific
examples of what the candidate would or wouldn’t change if elected.
The Minnesota officials argued that the announce clause serves two
compelling state interests: (1) preserving the impartiality of judges, and (2)
o Ch. 14_________________ Judicial Conduct____________________ 393
preserving the appearance of judges’ impartiality. Justice Scalia consulted
his well-worn 1950s dictionary and brought forth three possible meanings
of impartiality. The first is lack of bias for or against a party to court
proceedings. The announce clause isn’t narrowly tailored to serve that
c interest, Justice Scalia said, because it is aimed at issues, not parties.
c The second possible meaning is lack of a preconception about a given
legal issue. The Scalia opinion concedes that the announce clause serves
that interest, but it finds that interest not compelling. It’s hard to imagine
a judicial candidate who does not have preconceptions about legal issues
and how they ought to be resolved. Moreover, would we really want a judge
whose mind is a blank slate about legal issues? A candidate’s lack of
preconceptions about legal issues should be evidence of unfitness for
judicial office, not evidence of desirable impartiality, Justice Scalia said.
o
The third possible meaning of impartiality is open-mindedness. That
is, a judge may have preconceptions about a legal issue, but the judge is
willing to consider opposing views and is open to persuasion when the issue
arises in a pending case. Justice Scalia concedes that open-mindedness (or
at least the appearance of open-mindedness) may be a desirable judicial
quality, but he sets it aside, saying that Minnesota probably didn’t have
that objective in mind when it adopted the announce clause. The
statements a judicial candidate makes during a campaign are an
“infinitesimal portion of the public commitments to legal positions” that
incumbent judges and aspiring judges make. They publicly express such
commitments in books, articles, and speeches, in classrooms, and (in the
c case of incumbents) in earlier judicial opinions. As a method of assuring
open-mindedness (or the appearance of it), the announce clause is “so
woefully underinclusive as to render belief in that purpose a challenge to
Q the credulous,” according to Justice Scalia. Chief Justice Rehnquist and
Justices O’Connor, Kennedy, and Thomas joined the Scalia opinion.
Justice O’Connor filed an interesting concurring opinion that argues
against selecting judges by popular vote. By its very nature, she says, the
C election of judges undermines the interest in an impartial judiciary. Judges
who must frequently stand for popular election are likely to feel that they
O have a personal stake in the outcome of every well-publicized case.
Contested elections require campaigning, and campaigning takes money,
sometimes millions of dollars. Raising money from campaign donors may
leave a judge feeling indebted to certain parties or interest groups. Even if
a judge resists the temptation to favor big donors, the mere possibility of
c favoritism can erode the public’s confidence in the judiciary.
Despite the flaws of judicial elections, Justice O’Connor tells us, 39 of
c the 50 states now use some kind of elections to select some or all of their
judges. (Some of the 39 use hybrid schemes in which judges are initially
appointed by an elected official. After an initial term on the bench, an

c
 o
394 Judicial Conduct Ch. 14
appointed judge must stand for a retention election in which there is no
o
opposing candidate. A judge who loses a retention election is then replaced □
by a newly appointed judge.)
In some of the states that use pure popular vote to select judges, the o
elections are nonpartisan, meaning that the candidates are not identified
with a political party. Other states have partisan elections in which judicial o
candidates have opponents, and party affiliation, and the other trappings
of ordinary politics. CD
Justice O’Connor draws a pointed conclusion: If a state decides to o
select judges by contested popular elections, it assumes the risk that its
judges will lack impartiality. Such a state should not be allowed to restrict o
the speech of judicial candidates in order to protect impartiality. “If the
State has a problem with judicial impartiality, it is largely one the State o
brought upon itself by continuing the practice of popularly electing judges.”
Justices Stevens, Souter, Ginsburg, and Breyer dissented; each of the
o
four joined one opinion by Justice Stevens and a second opinion by Justice o
Ginsburg. The Ginsburg opinion is the more interesting of the two.
Justice Ginsburg sees a middle ground between Justice Scalia’s full­ o
blown free speech position and Justice O’Connor’s distrust of judicial
elections. Justice Ginsburg advocates a principled distinction between o
elected representatives (legislators and executives) and elected judges.
Representatives are supposed to do what voters tell them to do. In contrast, CD
judges are supposed to “refrain from catering to particular constituencies
or committing themselves on controversial issues in advance of adversarial
CD
presentation.” Having an impartial judiciary allows society to “withdraw O
certain subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials and to establish them as legal CD
principles to be applied by the courts.” By deciding to select judges by
popular vote, Minnesota did not opt to put a corps of political actors on the CD
bench; rather, it opted to preserve judicial integrity by other means. For
example, it made judicial elections nonpartisan, and it prohibited o
candidates from publicly announcing how they would decide issues that
come before them as judges. o
Justice Ginsburg disagrees with the majority’s all or nothing o
approach. She would distinguish elections for political office—in which the
First Amendment holds full-sway-from elections for judicial office, where o
some restrictions on speech are constitutionally appropriate. True,
Minnesota voters might like to know how a prospective judge would vote o
on a hotly-disputed legal issue, just as the U.S. Senate might like to know
how a federal judicial nominee would vote on such an issue. Justice CD
Ginsburg points out that all nine of the then-current members of the U.S.
Supreme Court declined to furnish such information during their Senate O
confirmation hearings. That well-established federal noi’m demonstrates
CD
o
o
Ch. 14_________________ Judicial Conduct____________________ 395
that there is nothing inherently wrong with depriving the people who pick
judges of information they would like to have.
Justice Ginsburg draws support for her view of the announce clause
by linking it to a related part of the CJC, the so-called “pledges-or-promises
clause.” The 1990 CJC 5A(3)(d)(i) prohibits a judicial candidate from
“making pledges or promises of conduct in office other than the faithful and
impartial performance of the duties of the office.” [The 1972 CJC contained
an identical clause.] Neither the parties to the case nor any of the Justices
expressed any doubt about the constitutionality of the pledges-or-promises
clause. If a candidate were allowed to make a promise about how she would
rule on a given issue, the promise would give her a disqualifying personal
stake in any case in which that issue is raised. The pledges-or-promises
clause is therefore essential to preserve the impartiality of judges. The
announce clause is a necessary adjunct, to prevent candidates from evading
the pledges and promises clause by simply stating a position, rather than
promising to rule in accordance with that position.
As you reflect on the Supreme Court’s decision in Republican Party of
Minnesota v. White, you may wish to consider what it bodes for various
provisions of the CJC that raise free speech issues. For example:
• Re-read CJC Rule 2.10(B), which prohibits a judge from making a
pledge, promise, or commitment that is inconsistent with the impartial
performance of the adjudicative duties of judicial office. Comment 1 to that
rule states that this restriction on judicial speech is “essential to the
maintenance of the independence, integrity, and impartiality of the
judiciary.” Do you agree? Professors Bassett and Perschbacher express the
importance of impartiality this way:
[EJvery judge * * * necessarily brings to the bench a personal and
community background from his or her experiences living in the
world. Accordingly, we expect judges to bring their life experiences
and common sense to the bench; we expect judges to have
participated in projects and activities within their communities
and within the bar, and we know that the process through which
individuals are selected for judgeships is highly politicized. Yet
despite this, we demand that those experiences not impugn on the
“absolute neutrality” that we expect from our judges once they
reach the bench. * * * Given the adversarial positions of the
parties and of the lawyers retained by those parties, attaining a
fair trial in a fair tribunal lies squarely with the judge. In our
judicial system, it is the judge who bears the brunt of the burden
of ensuring that judicial proceedings are fair and impartial.
[Debra Lyn Bassett & Rex R. Perschbacher, The Elusive Goal of
Impartiality, 97 Iowa L.Rev. 181, 195 (2011).]
 396 Judicial Conduct Ch. 14
• When judges aren’t judging, do they have fewer free speech rights
than ordinary citizens? Suppose a judge writes a letter to the editor of his
local newspaper, stating that gay people are mentally ill and belong in a
hospital. Is the judge subject to discipline? [Compare CJC Rule 2.3(B)
(speech or conduct in the performance of judicial duties that manifests
prejudice based on sexual orientation) with Mississippi Comm’n on
Judicial Performance v. Wilkerson, 876 So.2d 1006 (2004) (judge cannot be
disciplined for writing such a letter to a local newspaper).] What if the
judge makes a similar statement when instructing the jury about the
credibility of a gay witness? [See Tobin A. Sparling, Keeping up
Appearances: The Constitutionality of the Model Code of Judicial Conduct’s
Prohibition of Extrajudicial Speech Creating the Appearance of Bias, 19
Geo. J. Legal Ethics 441 (2006).]
• Suppose lawyer L is running for a state supreme court judgeship
in a contested public election; her opponent is incumbent Justice J. During
the relevant campaign period, may L attend a Democratic Party fund-
raising BBQ? If so, may she make a speech that urges people to vote for
her? If so, may she state in her speech that Justice J has served brilliantly
on the court for 43 years but is now mentally and physically unfit for
further service? Does it make any difference if Lawyer L knows that Justice
J is as fit as he ever was? If L may speak on her own behalf, may she also
put in a plug for the Democratic candidates for governor and for president?
[See CJC Rule 4.1(A)(3) and (11); CJC Rule 4.2(B); see also Republican
Party of Minn. v. White, 416 F.3d 738 (8th Cir. 2005), cert, denied sub nom.
Dimick v. Republican Party of Minn., 546 U.S. 1157, 126 S.Ct. 1165, 163
L.Ed.2d 1141 (2006) (on remand of the WTu/ecase, 8th Circuit struck down
Minnesota’s harsh version of the 1990 CJC rules on political activities and
on personal solicitation of campaign funds).]

IV. RECUSAL OF U.S. SUPREME

COURT JUSTICES
A. THE FEDERAL RECUSAL STATUTE
The recusal of federal judges—including the Justices of the U.S.
Supreme Court—is governed by a federal statute, 28 U.S.C. § 455 (2000).
The statute begins with a broad catch-all provision, which says that a
federal magistrate, judge, or justice “shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.”a In
this context, “shall” means “must.” Thus recusal is mandatory if a
reasonable person might have a reasonable doubt about the impartiality of
the magistrate, judge, or justice. This provision is subject to a judicially-
■ 28 U.S.C. § 455(a) (2000) (emphasis added). In this case note, we use recuse and disqualify
interchangeably, though some writers reserve recuse for the situation in which the judge takes the
initiative and voluntarily steps out of the case.
n Ch. 14 Judicial Conduct 397
O created exception called the “extrajudicial source rule,” which requires that
O the alleged judicial bias must arise from an out-of-court source, and must
not derive from evidence, conduct, or information obtained during the
O course of judicial proceedings. Thus, after numerous pretrial motions if a
judge is now showing impatience or annoyance with a litigant, the judge is
o not subject to disqualification on this basis because any disfavor toward the
litigant is the result of events occurring during judicial proceedings.
Q The second part of the statute lists specific grounds for recusal; they
are quite similar to those listed in the 2007 CJC and its 1990 predecessor.1* *
O Examples are bias for or against a party, personal knowledge of a disputed
O fact, prior role as a witness or lawyer in the matter, and personal or close
family interest in the matter or in a party. Again recusal is mandatory, not
o permissive. Professor Bassett reads both parts of § 455 as being “self­
enforcing,” meaning that the judicial officer must take the initiative and
r~>recuse herself, not lie in the weeds waiting to see if a party will move to
disqualify her.c
o Professor Bassett observes that § 455 was a very different animal
before Congress amended it in 1976.d The earlier version said this:
c
Any justice or judge of the United States shall disqualify himself
o in any case in which he has a substantial interest, has been of
counsel, is or has been a material witness, or is so related to or
o connected with any party or his attorney as to render it improper,
in his opinion, for him to sit on the trial, appeal, or other
o proceeding therein.
O'. Look at the phrase “in his opinion” in the last clause of the statute. Doesn’t
that phrase create a subjective standard—the judge’s own opinion—when
Q the ground for recusal is the judge’s relation to or connection with a party
or its lawyer? In other words, before 1976, if a judge’s supposed bias arose
(jj from a relationship to or connection with a party or its attorney, the judge
could continue in the case unless in the judge's own opinion it would be
O improper to do so.e
Moreover, before 1976, federal judges regarded themselves as having
a “duty to sit when not disqualified” that was just as strong as the “duty
, not to sit when disqualified.’^ It has been argued (and Professor Bassett
b Compare id, § 455(b) with 2007 CJC Rule 2.11(A) and 1990 CJC Canon 3E(1).

« Debra Lyn Bassett, Recusal and the Supreme Court, 56 Hastings L.J. 657, 675 (2005). See
generally Debra Lyn Bassett, Judicial Disqualification in the Federal Appellate Courts, 87 Iowa
L.Rev. 1213 (2002).
d Bassett, Recusal and the Supreme Court, supra note 3, at 672-76.

• Id. at 672-73.
f See, e.g„ the memorandum opinion of then-Justice Rehnquist, 409 U.S. 824, 837, 93 S.Ct.
7, 34 L.Ed.2d 50 (1972), explaining why he did not disqualify himself in Laird v. Tatum, 408 U.S.
c 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), a case that challenged the constitutionality of the Army’s
Bee ret surveillance of civilian protests against the Vietnam War. Before his appointment to the
Court, Justice Rehnquist had been the Assistant Attorney General for the Office of Legal Counsel;
 398 Judicial Conduct Ch. 14
agrees) that when Congress amended § 455 in 1976, it threw out both the
subjective standard and the supposed duty to sit.e In short, present § 455(a)
sets an objective standard for the catch-all provision—the reasonable
person who might have a reasonable doubt about the judge’s impartiality.

B. CHENEY V. U.S. DISTRICT COURT

Early in his first term as president, George W. Bush created the
National Energy Policy Development Group, a task force headed by Vice-
President Cheney and charged with recommending a national energy
policy. All the officially appointed members of the task force were federal
employees, which meant that the task force would be exempt from the
Federal Advisory Committee Act and other federal laws that would have
opened its participants and operations to public scrutiny.
The Sierra Club and many citizens suspected that oil industry
lobbyists and executives were meeting with the task force as de facto
members. If that were true, it would defeat the exemption, thus allowing
the public to find out who was formulating the nation’s energy policy. Vice-
President Cheney refused to reveal who was attending the task force
meetings, so the Sierra Club sued him and other task force members. The
federal district court allowed the Sierra Club to conduct discovery, but
Vice-President Cheney filed an interlocutory appeal and requested a writ
of mandamus to prevent discovery. The D.C. Circuit Court of Appeals
dismissed the Cheney appeal and denied the writ of mandamus.
The Vice-President then petitioned the Supreme Court for certiorari,
and on December 15, 2003, the Court granted the writ. Three weeks later,
Justice Scalia went on a duck hunting trip to Louisiana with Vice-
President Cheney. The trip caused a uproar in the media. Editorial writers
were aghast, and political cartoons showed the two men whispering while
hunkered down together in a duck blind. The Sierra Club moved to
disqualify Justice Scalia.
Motions to disqualify a Supreme Court justice are rare, perhaps
because an ill-advised motion may offend both the target and other justices
as well. The Supreme Court’s procedural rules don’t explain how
disqualification motions are handled, but the lore is that the target justice
decides it by him or herself—sometimes with, and sometimes without,

in that capacity he had testified as an expert witness before a Senate subcommittee about the legal
issue in Laird v. Tatum, and he had some personal background knowledge of the Army’s
surveillance program. See MONROE H. FREEDMAN & ABBE SMITH, UNDERSTANDING LAWYER’S
ETHICS 216-20 (4th ed. 2010). Justice Rehnquist was in the majority of a 5-4 decision holding that
the war protesters’ constitutional challenge was not justiciable.
* Freedman & Smith, supra note 6, at 220; Bassett, Recusal and the Supreme Court, supra
note 3, at 673, citing RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION: RECUSAL AND
Disqualification of Judges § 20.10.1, at 614 (1996).
c
o Ch. 14Judicial Conduct_____________________________________ 399
o talking it over with other Justices.** 1 Sometimes, but not often, the target
Justice writes a memorandum opinion to explain his or her decision on the
o recusal motion.1
Q Justice Scalia wrote such a memorandum opinion in the Cheney caseJ
The Sierra Club had used the news editorials to argue that the hunting trip
O could cause reasonable people to doubt the Justice’s impartiality. The
Justice’s opinion begins by saying that recusal should depend on “the facts
C, as they existed, and not as they were surmised or reported.”1* He is right,
. of course, so the following summary is based on the facts stated in his
t-J opinion:1
o Justice Scalia and Vice-President Cheney arranged the
hunting trip long before the Vice-President petitioned the
c Supreme Court for certiorari. The two men were old friends
from their days in President Gerald Ford’s administration.
o For several years, on the Court’s long winter break, Justice
Scalia had gone hunting at the Louisiana duck-hunting camp
□ of Wallace Carline. Mr. Carline is a native-born Louisianan
who owns a company that supplies equipment and services to
o off-shore oil rigs. Contrary to some news reports, he was not
□ an “energy industry executive” of the ExxonMobil sort.
On his winter 2002 trip, Justice Scalia learned that Mr.
□ Carline admired Vice-President Cheney, and the Justice
already knew that the Vice-President liked to hunt ducks.
Q The Vice-President accepted Mr. Carline’s invitation
(conveyed through Justice Scalia) to join the winter 2003
o hunt.
o • Justice Scalia, his son, and his son-in-law, flew to Louisiana
with Vice-President Cheney on a government-owned
o Gulfstream jet (which the Vice-President had to use for
national security reasons.) The Scalia party flew on a space-
c available basis, so they didn’t cost the government any more
than if the Vice-President had flown alone to hunt ducks. The
o reason the Scalia party flew down with the Vice-President
was to spare Mr. Carline the trouble of meeting two different
o
/—, h R. Matthew Pearson, Duck Duck Recuse? Foreign. Common Law Guidance & Improving
V J Recusal of Supreme Court Justices, 62 Wash. & Lee L.Rev. 1799, 1813-14 (2005).
1 See, e.g., Laird v. Tatum, 409 U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972) (mem. op. of then-
Qj Justice Rehnquist, explaining why he did not recuse himself).
J Cheney v. United States Dist. Ct. for the Dist. of Colum., 541 U.S. 913, 124 S.Ct. 1391. 158
L.Ed.2d 225 (2004) (mem. op. of Justice Scalia).
k Id. at 914.
1 Id, at 914-16.
 o
400 Judicial Conduct Ch. 14
o
planes in New Orleans and transporting two different groups □
by boat to the hunting camp. o
• The group that gathered at Mr. Carline’s hunting camp
consisted of 13 hunters, plus about three of Mr. Carline’s a
staff, plus members of the Vice-President’s staff and security
detail. It was not an intimate setting. o
• Everybody ate together. They slept in rooms of two or three,
except for the Vice-President, who slept alone. They hunted
o
in two- or three-man duck blinds. o
• Justice Scalia and the Vice-President never hunted in the
same blind, nor were they alone together, except perhaps for o
moments so brief and unintentional as to escape memory.
They never said a word about the case. o
• The Vice-President left the group after two days. Justice o
Scalia, his son, and his son-in-law, left two days after that.
The three of them flew back to Washington on the return-half o
of commercial round-trip tickets that cost the same as one­
way tickets, so they saved no money by flying down with the o
Vice-President.
As you ponder the Cheney case, consider the following issues and
□
arguments: a
1) The Sierra Club argued that doubts about impartiality should be
resolved in favor of recusal.m Justice Scalia’s memorandum opinion o
responds that resolving doubts in favor of recusal might be good advice for
district court and court of appeals judges, because there the recused judge o
can simply be replaced by a substitute.11 There are no substitutes at the
Supreme Court level; recusal leaves the Supreme Court with only eight
o
Justices.® A petitioner needs five votes to overturn the judgment of the
lower court, and it’s harder to get five-out-of-eight than to get five-out-of-
o
nine.p Granting a recusal motion is effectively the same as casting a vote
against the petitioner, Justice Scalia said.« Do you agree with the Sierra
o
Club or with Justice Scalia?r o
2) Justice Scalia’s memorandum opinion says that a Supreme Court
Justice’s personal friendship with a litigant would be grounds for recusal if o
□
“ See Memorandum Opinion, supra note 10, 541 U.S. at 915-16.
“ Id. o
° Id.
p Id. o
« Id.
r See Monroe H. Freedman, Duck-Blind Justice: Justice Scalia’s Memorandum in the
Cheney Case, 18 Geo. J. Legal Ethics 229, 233 (2004); Bassett, Recusal and the Supreme Court,
o
supra note 3, at 676, 683-688.
□
o
o
c
O ch. 14 Judicial Conduct 401
C the friend’s personal fortune or personal freedom were at stake in the case.8
>— But historically recusal has not been required where the friend is a
- - government official and is a litigant only in his or her official capacity, to
z—... test the legality of some governmental action.* Justice Scalia cites
• numerous historical examples of close personal friendships between
q-x Supreme Court justices and high-ranking officials in the executive branch
" including William 0. Douglas’s regular attendance at Franklin Roosevelt’s
F” poker parties, and Byron White’s well-publicized Colorado ski trip with
Attorney General Robert Kennedy.11 The Sierra Club’s recusal motion
Q) argued that the Cheney case is different because the lawsuit challenged the
legality of Vice-President’s own conduct in keeping the task force’s
O operations secret and asserting that no outsiders were de facto members.
_ That challenge put the Vice-President’s “reputation and integrity * * * on
O the line.”v Justice Scalia responds this way:
To be sure, there could be political consequences from disclosure
of the fact (if it be so) that the Vice-President favored business
c interests, and especially a sector of business with which he was
formerly connected. But political consequences are not my
concern, and the possibility of them does not convert an official
suit into a private one.w
o Do you agree with the Sierra Club or with Justice Scalia?x
o 3) What do you make of Justice Scalia’s statements about why his
party of three flew to Louisiana with the Vice-President, and why their
Q flight neither cost the government extra, nor saved them any money? If you
were invited to bring your children on a special jet plane ride with a famous
O and powerful person, how would you respond?
/— 4) Justice Scalia’s memorandum states that “the well-known and
^ constant practice of Justices’ enjoying friendship and social intercourse
with Members of Congress and officers of the Executive Branch has not
" been abandoned, and ought not to be.”* Do you agree that it ought not to
be abandoned?
5) After the Court granted certiorari in the Cheney case, did Justice
O Scalia use sound judgment in going duck-hunting with the Vice-President?
/—x Recall that the federal statute renders recusal mandatory if a reasonable
^—person might have a reasonable doubt about the impartiality of the
^magistrate, judge, or justice. Under the circumstances presented, might a

See Memorandum Opinion, supra note 10, 541 U.S. at 916-20.

Id. at 916-17.
Id. at 916—17, 924-26.
Id. at 918.
Id. at 920.
See Freedman, supra note 18, at 233.
Id. at 926.

o
Q
402 Judicial Conduct Ch. 14
reasonable person have a reasonable doubt about Justice Scalia’s
impartiality?
6) If you conclude that recusal practice in the Supreme Court needs
improving, how would you improve it? Would it be helpful to find out what
other common law nations do?z To encourage Congress to enact stricter
recusal rules that are suited to the special circumstances of the Supreme
Court?aa To encourage the Court to devise and publish a clear procedure
for handling recusal motions?bb To facilitate recusal motions so as to build
a larger and more enlightening body of published case precedent?00 To
encourage Supreme Court Justices to put on the record in every case a
“statement of interest” that tells the parties and their lawyers anything
that might raise a recusal issue?dd Would the value of such statements
outweigh their costs?

V. RECUSAL AND DUE PROCESS

Ordinarily a statute or judicial ethics rule determines whether a judge
must recuse him or herself. But on rare occasion a judge’s failure to step
out of a case is so patently unfair as to constitute a violation of due process.
That was so in Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 129
S.Ct. 2252, 173 L.Ed.2d 1208 (2009).
Caperton and other plaintiffs sued Massey Coal for destroying their
business by fraud and interference with contract. The plaintiffs won a jury
verdict of $50 million compensatory and punitive damages. Massey Coal
knew that the verdict could be appealed to West Virginia’s highest court,
the five-person Supreme Court of Appeals. Massey Coal also knew that
West Virginia’s Supreme Court elections were coming up and that
incumbent Justice McGraw would be running for reelection.
Massey Coal’s CEO, Don Blankenship, started working to defeat
Justice McGraw and to replace him with a lawyer named Brent Benjamin.
Blankenship gave Benjamin’s campaign committee $1,000, the statutory
maximum. Then Blankenship gave nearly $2.5 million to a political action
committee that opposed McGraw and supported Benjamin. Finally,
Blankenship spent almost a half million dollars on direct mail solicitations
for donations, television time, and newspaper ads to support Benjamin. In
* See Pearson, supra note 8, at 1814—29.
•• See Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked
Election 2000 at 181 (2001).
bb See Bassett, Recusal and the Supreme Court, supra note 3, at 694-95.

Id,
dd Id. at 695-97.28 U.S.C. § 455(e) already requires federal judges (including Supreme Court
Justices) to disclose facts that might cause a reasonable person to question the judge’s impartiality;
the judge cannot accept a waiver of disqualification without first having made such a disclosure.
See also CJC Rule 2.11(C), which requires such a disclosure of any ground for disqualification other
than bias or prejudice. You will recall that the Supreme Court Justices aren’t bound to follow the
CJC or its federal counterpart, but the Justices regard both as sources of sound ethical guidance.
Och.u Judicial Conduct 403
- total, Blankenship’s neaxly $3 million contributions were double the
amount given by all other Benjamin supporters combined, and triple the
” amount spent by Benjamin’s own campaign committee.
O Blankenship’s largess bore fruit. Benjamin won the election with a 6%
margin. After much preliminary wrangling, the five West Virginia Justices
O overturned the plaintiffs’ jury verdict by a 3-2 vote, with Justice Benjamin
—x in the majority. He didn’t recuse himself, saying there was no objective
information to show that he was biased, or that he had prejudged the case,
or that he would be anything but fair and impartial.
The United States Supreme Court granted certiorari to decide whether
(2) Benjamin’s refusal to recuse himself had deprived the plaintiffs of due
__ process. Yes it did, the Court decided 5 to 4, with Justice Kennedy writing
O f°r the majority, joined by Justices Stevens, Souter, Ginsburg, and Breyer.
_ The majority conceded that routine questions of judicial bias are governed
C by state or federal statutes or judicial ethics rules and do not raise due
process issues. But where the facts at hand create a “probability of bias” a
CJ judge’s refusal to recuse him or herself can deprive a litigant of due process.
_ For example:
Cj
• In Tumey u Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749
(1927), a village mayor also served as judge (without a jury) in
liquor law cases. He got a salary supplement for serving as
Q judge, and the supplement was funded from the fines he levied
on people he convicted. That direct financial interest created
O a due process violation.
• Ward v. Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267
o (1972), involved another mayor/judge. He got no personal
c benefit from the criminal fines he levied, but the fines went to
pay the town’s general expenses. The mayor/judge had
o executive responsibility for the town’s finances, and that made
him enough of a partisan to create a due process violation.
o • In Aetna Life Ins. Co. v. Lauoie, 475 U.S. 813, 106 S.Ct. 1580,
89 L.Ed.2d 823 (1986), the Alabama Supreme Court decided a
o close and previously unresolved question of Alabama law
about punitive damage awards against insurance companies
o for bad faith failure to pay claims. The 5 to 4 decision was
against the insurance companies and favorable to insured
o claimants. Alabama Supreme Court Justice Embry voted with
c the majority and wrote the majority’s unsigned opinion. While
the case was pending in the Alabama Supreme Court, Justice
□ Embry filed two Alabama lawsuits against other insurance
companies—one against Maryland Casualty for bad faith
Q refusal to pay his claim for loss of a mink coat, and the other
against Blue Cross-Blue Shield (on behalf of both himself and
O
 o
404 Judicial Conduct Ch. 14
o
a class of all other Alabama state employees) for bad faith
D
refusal to pay medical claims. Both of Justice Embry’s suits
raised the very same legal issue as the Aetna Life case. When
O
Aetna Life learned about Justice Embry’s lawsuits, it
challenged his participation in the original decision, and it
O
asked him to recuse himself from ruling on its petition for O
rehearing. Aetna lost on both points. Then Justice Embry
settled his claim against Blue Cross for what he called a “tidy o
sum,” $30,000. Eventually, Aetna won in the United States
Supreme Court, which held that Justice Embry had o
essentially become “the judge in his own case,” thus depriving
Aetna Life of due process. o
The majority opinion in Massey Coal makes clear that due process does
not require judges to recuse themselves whenever a campaign donor
o
appears in a case as either litigant or lawyer. The factors that made
Blankenship’s donations extraordinary were their size compared with the
o
total donated by other people and with the total Benjamin’s campaign o
spent, the timing of the donations when the case was headed to the West
Virginia Supreme Court, and the apparent effect the donations had on the Q
outcome of the election.
Chief Justice Roberts dissented, joined by Justices Scalia, Thomas,
O
and Alito. They argued that the majority’s “probability of bias” formula is
not clear enough to guide judges and lawyers in future cases. The dissent
O
lists 40 unresolved questions about what exactly creates a “probability of
bias.” Several rule-making bodies have now started drafting new recusal
O
rules that ought to answer most of the dissent’s 40 questions. O
o
o
o
o
o
o
o
o
D
o
o
o
c
o
c
o Appendix
■■■
c
You may not always agree with these answers to the multiple choice
questions. We have attempted to explain why we picked the answers we
did; if you disagree, please write to us to explain why your answer is better.
CHAPTER TWO
1. A. ABA Model Rule 5.5(a) prohibits Alford from practicing in a
Qi state where he is not admitted to practice. He can avoid this proscription if
' he is admitted pro hac vice to defend Clara in the State B case. [See ABA
QModel Rule 5.5(c)(2) and Comments [9]—[11].] Answer B is not correct
because requiring admission to practice does not discriminate against non-
Qresidents—neither residents nor non-residents can practice law without
being admitted. Answers C and D are not correct because if Alford is
(^.admitted pro hac vice he may represent Clara in the case even though it
involves a State B business and the interpretation of a State B statute.
2. B. If Linda tells the bar of State B that her cousin is fit to practice
(—'law, when in fact she believes him to be thoroughly dishonest, she would
'knowingly be making a false statement of material fact in violation of ABA
( (Model Rule 8.1(a). Answers C and D are not correct for the same reason.
Answer A is not correct—Linda’s lack of membership in the bar of State B
Qis beside the point. State A could discipline her for lying to the bar of State
B. [See ABA Model Rule 8.5.]
k— 3. D. All states require bar applicants to demonstrate good moral

/—character. See generally Deborah Rhode, Moral Character as a Professional

Credential, 94 Yale L.J. 491 (1985). A recent conviction for federal tax fraud
q-'is strong (though perhaps not conclusive) evidence that Samuel lacks good
moral character. [See generally Hazard & Hodes § 62.7.] As for item I, the
ffyPiper case, 470 U.S. at 274—288, and those that follow it suggest that State
C could not refuse to admit Samuel simply because he plans to live across
Qthe state line. As for item II, membership in a radical political party is not,
by itself, sufficient ground to deny admission to the bar. [Cf. Schware v.
'Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957)
(membership in the Communist Party).] As for item III, lack of U.S.
citizenship is not, by itself, sufficient ground to deny admission to the bar.
[See In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973).]
4. C. A lawyer is subject to discipline for engaging in conduct
Q involving dishonesty, fraud, deceit, or misrepresentation. [ABA Model Rule
8.4(b) and (c).] Leon’s conduct was dishonest for two reasons: first, he

405
 o
406 Appendix
o
intentionally cheated the phone company, and second, he lied to the judge.
o
On the other hand, Leona’s unwitting violation of the mushroom statute
does not strike us as the kind of conduct that shows unfitness to practice
o
law, or untrustworthiness, or dishonesty.
5. A. ABA Model Rule 8.1 requires candor of a bar applicant on an
application questionnaire. Answer B is not correct; a bar applicant can o
overcome a prior criminal conviction by demonstrating rehabilitation.
Answer C is not correct; the prior conviction is relevant to Sabrina’s present CD
moral character, although she can be admitted to practice if she
demonstrates rehabilitation. Answer D is not correct; no case has extended
o
the constitutional right of privacy this far, although it has been argued that
privacy values ought to be given more attention in bar admission matters.
o
[See Rhode, supra, at 574-84; John Gibeaut, Perils of ‘Prozac Probes,’ 86
A.B.A.J., Feb. 2000, at 20 (Americans with Disabilities Act may limit bar
o
admission questions on mental health, past addiction, and the like).] o
6. B. An attempt to bribe a police officer strikes us as a clear example
of conduct that shows dishonesty and unfitness to practice law, which o
makes the conduct grounds for discipline. [ABA Model Rule 8.4] Answer A
is not correct; State C can discipline Arner even though his conduct took o
place elsewhere. [See ABA Model Rule 8.5.] Answer C is not correct; the
misconduct need not be connected with the practice of law to result in
o
professional discipline. [See ABA Model Rule 8.4(b)-(d).] Answer D is not
correct because it is too broad; not every criminal act is grounds for
o
professional discipline. [Id.] CD
7. A. ABA Model Rule 8.3 requires a lawyer to report serious
misconduct by another lawyer, but that duty does not apply where the first CD
lawyer learns about the misconduct through a privileged communication.
Lindell’s communication with Cathcart was subject to the attorney-client o
privilege, and none of the exceptions to the privilege would apply in this
situation. Thus, Lindell has no duty to reveal the information, and if he did
cd
reveal it, he himself would be subject to discipline. [See ABA Model Rule
1.6.] Answers B, C, and D are not correct because each of them involves
o
some form of prohibited disclosure of the confidential information, o
CHAPTER THREE
1. C. The inability to work effectively with the client’s chosen co­
o
counsel—coupled with harm to the client’s interests—have long been CD
recognized as a sufficient reason for permissive withdrawal. [See ABA
Model Rule 1.16(b)(6) (client has made representation unreasonably CD
difficult); see also ABA Code DR 2—110(C)(3) (specific mention of inability
to work with co-counsel).] Answer A is not as good as C, because it does not O
take into account Snyder’s duty to give advance notice and to take other
steps to avoid prejudice to the client. [ABA Model Rule 1.16(d).] Answer B o
is incorrect because the lawyer cannot “instruct” the client about matters
o
o
o
c Appendix 407
Clike this—the choice of co-counsel is for the client, not the lawyer. Answer
suffers the same defect; further, it might be regarded as an improper
'-—interference with the contractual relations between Slick and the client.
C2 2. D. Item I is correct because the problem specifies that the local
Rules of Court require court permission before an attorney withdraws from
CZa litigated case, and the problem further states that courts have statutory
authority to enforce the Rules of Court with litigation sanctions. Item II is
CZincorrect because Arbuckle has ample grounds for withdrawal: Clauzoffs
refusal to co-operate in discovery and his refusal to pay Arbuckle’s fee bill
(—are each sufficient. Item III is correct because the problem states that State
r—A does not recognize attorney retaining liens. Item IV is correct because
when a lawyer withdraws, she must refund the unspent part of the expense
—advance. [ABA Model Rule 1.16(d) (lawyer must return property to which
-client is entitled); see also RESTATEMENT [THIRD] OF THE LAW GOVERNING
,—LAWYERS § 33, comment e, and § 45(1) (lawyer1 must surrender funds
v -belonging to client).]

CJ 3. A. The general rule is that a lawyer has no duty to serve just

anyone who wants service and can pay the fee. While that general rule is
Cisubject to limitations, none of them apply here. There is no lack of skilled
counsel in the community, the cause and client are not so unpopular as to
I shut off access to counsel, and Worthington has sufficient resources to
^-Obtain other counsel with more experience in the matter at hand. [See ABA
''—Model Rules 6.1 and 6.2.]
d 4- C. One of the limitations on an attorney’s ordinary freedom to turn
down cases is where the court asks the attorney to serve as appointed
Cjounsel. [ABA Model Rule 6.2] An attorney should not seek to be excused
from taking a court appointed case, except for a compelling reason. Items
CZl, III, and IV do not present compelling reasons. But item II, concerning
the risk of unreasonable financial harm, does present a compelling reason,
'- according to ABA Model Rule 6.2(b).
d 5. B. ABA Model Rule 1.16(b)(4) permits a lawyer to withdraw when
the client “insists upon taking action that the lawyer considers repugnant
d>r with which the lawyer has a fundamental disagreement.” Here the
officers of the union are asking Yeager to include a provision with which
Cjhe strongly disagrees and considers inconsistent with the best interests of
the local’s members. Therefore, she is entitled to withdraw, assuming that
Cjhe takes the ordinary steps to protect her client’s interest upon
withdrawal. [See ABA Model Rule 1.16(d).]
6. B. Federal Rule of Civil Procedure 11 applies at each stage of
Q^’Rigation whenever a lawyer advocates on the basis of written claims,
defenses, or other legal contentions. Thus, when discovery reveals that a
d’laim is frivolous, a lawyer is subject to Rule 11 sanctions for pursuing it,
as with a motion for summary judgment. Answer D is wrong for the same
408 Appendix
reason. Answer A is wrong because ABA Model Rule 3.1 makes a lawyer
subject to discipline for pressing a frivolous claim, no matter what the
client’s wishes. Answer C is wrong because it is too broad—victory in the
underlying suit is an essential element of a malicious prosecution claim.
CHAPTER FOUR
1. A. ABA Model Rule 7.2(b) prohibits a lawyer from giving
“anything of value” to a person for “recommending the lawyer’s services.”
The items of gossip Philos feeds to Norris are items of value to Norris, and
Norris’s favorable comments about Philos are in the nature of
recommendations of his services. Answer B is wrong because there is no
such disciplinary rule. Answei- C is wrong because Philos is subject to
discipline on the ground stated in answer A. Answer D is wrong because
this kind of verbal conduct is not protected speech.
2. D. The relevant authority is ABA Model Rule 7.5 and its
comments. Item I is correct; the name of a dead partner may be retained
by a successor firm. Item II is incorrect; the firm name makes Trimble
appear to be a partner when he is in fact an associate. Item III is incorrect;
Snod’s name should have been removed when he ceased the regular
practice of law to enter government service. Item IV is incorrect; the sign
on the door makes Tremble and Gangler appear to be partners when in fact
they are not.
3. C. Item I is correct under ABA Model Rule 7.2(a). Item II is
correct. Anton’s advertisement states that the “most” he will charge for
“any type of legal work” is $100 per hour. If in fact he charges $125 for
complicated legal work, his advertisement is false. [See ABA Model Rule
7.1] Item III is not correct; Anton has no obligation to disclose that other
lawyers charge less than he does. If Anton’s advertisement stated or
implied that his fees are “the lowest in town,” or something to that effect,
that would be a different matter—but the facts stated in the question do
not suggest any such statement or implication.
4. A. Assuming that items I, II, and IV are truthful and not
misleading, they are proper under ABA Model Rules 7.1 and 7.2. Item III
is proper under ABA Model Rule 7.4(d); the bar of this state does not
approve certifying agencies, but the ABA has accredited the certifying
organization.
5. D. Answers A, B and C are incorrect under the principles
expressed in the Zauderer and Shapero cases. Question 5 also raises a
different ethics issue that you will study later in this book. You will learn
that ordinarily a lawyer should not serve as trial counsel in a case where
he or she is “likely to be a necessary witness.” Salmon saw the accident and
is therefore a potential witness, but he is probably not a “necessary”
witness because he was only one of a crowd of people that saw the accident.
c
o_______________ ___________________
Appendix 409
6. C. If Gresler personally hung around hospitals, passing out his
> professional cards to personal injury victims, he would violate ABA Model
' Rule 7.3. Likewise, he is subject to discipline for inducing other persons to
r -, do what he himself could not do. [See ABA Model Rule 8.4(a).] Further,
many states prohibit lawyers from using “runners or cappers” to solicit
□ legal business. [See, e.g., Cal. Bus. & Prof. Code §§ 6150-54.] Answers A
and B are not correct for the reasons stated above. Answer D is not correct;
Qno disciplinary rule prohibits Gresler from holding the seminar or
dispensing accurate legal advice to those who attend.
• 7. C. See Ohio Supreme Court Board of Commissioners on
Grievances and Discipline Op. 99-9 (1999), in which the Ohio ethics panel
'— approved an e-mail question answering scheme similar to this one. Answer
A is wrong because there is no rule against including personal information
' in a lawyer’s promotional material, even if the personal information is
irrelevant to the selection of a lawyer. Answer B is wrong because there is
—' no rule against dispensing legal advice to a person with whom you have no
( -prior relationship. Besides, we think that answering the e-mail inquiry
would establish a lawyer-client relationship with the questioner, for
□ purposes of malpractice law and the like. Answer D is wrong because no
rule prohibits a lawyer from speaking or writing to the public about
□ controversial legal issues or about legal issues that require specialized
knowledge.
1 8. A. ABA Model Rule 7.1 prohibits misleading communications
about legal services. The term “affiliate” is broad and vague, and it has
- been applied to many kinds of relationships between law firms. ABA
q Formal Opinion 94-388 (1994) says that when attorneys use “affiliate” on
a letterhead or similar advertising, they must take the additional step of
□ explaining precisely what they mean by it. The additional explanation need
not be given to everyone; it is sufficient to give it to those prospective clients
□;who may care about it. Answer B is wrong, for the reason stated above.
Answer C is wrong because there is no such rule. Answer D is wrong
□because the referral of work by one of these firms to the other does not
violate any rule about solicitation of clients.
O CHAPTER FIVE
□ 1. D. Item III is correct. ABA Model Rule 1.5(d)(2) makes Lenox
subject to discipline for using a contingent fee in a criminal case. Item I is
Cjalso correct; Lenox should not have taken this case on contingent fee, but
since he did, he should at least have put the contingent fee agreement in
Cowriting. [ABA Model Rule 1.5(c).] Items II and IV are both correct. ABA
.Model Rule 1.8(e) permits Lenox to advance the litigation expenses, and
^■Denmon’s promise to pay back the advance is proper under ABA Model
(-—Rule 1.8(e).

c
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CD
410 Appendix
2. B. Martha’s use of a contingent fee agreement in this divorce case,
and her failure to discuss alternative fee arrangements with Kimberly,
make this a good candidate for a partial fee forfeiture under the
Restatement. [See Restatement (Third) OF the Law Governing
LAWYERS § 37 (2000).] Martha ignored the advice of ABA Formal Op. 94-
389 to fully inform the client about other ways to pay the fee before entering
into a contingent fee agreement, and then she tried to exact $2.5 million
from Kimberly. That strikes us as a “clear and serious violation of a duty
to a client” under § 37. Item C is incorrect because ABA Model Rule
1.5(d)(1) prohibits a contingent fee in a domestic relations case where the
contingency is the amount of a property settlement. Item A is incorrect
because a competent family lawyer should have foreseen a large property
settlement on the facts of this case; Martha ran little risk of not getting
paid, and that ought to influence the court’s determination of whether $2.5
million is reasonable. [See ABA Formal Op. 94-389.] Item D is incorrect
because it is overbroad. The Comment to ABA Model Rule 1.5 urges
lawyers to use arbitration or mediation to resolve fee disputes, but there is
no prohibition on suing to collect a legal fee when necessary.
3. A. When two lawyers or law firms work on a case together, they
frequently submit separate bills to the client, and nothing in the ABA
Model Rules says this is improper. Answer B is not correct. ABA Model
Rule 7.2(b) prohibits Alvarez from paying Leland for the referral. Answer
C is not correct for the same reason that answer A is correct. The two
lawyers could have worked out a suitable fee splitting arrangement here,
but nothing requires them to do so. Answer D is not correct. The $1,000
referral fee makes the arrangement improper, even if it did not increase
the total amount Holiday paid.
4. B. Under ABA Model Rule 1.8(e), Aragon is subject to discipline.
The $7,500 was for medical expenses, not litigation expenses, so answer B
is correct. Answer A is not correct. This is the kind of case that lawyers
commonly take on a contingent fee basis. Answer C is not correct. As you
will learn in a later chapter, it is proper to pay a reasonable fee to an expert
witness. [See Comment to ABA Model Rule 3.4.] Answer D is not correct.
The expert witness fee is an expense of litigation and can thus be advanced
by Aragon on Carlson’s behalf. [See ABA Model Rule 1.8(e).]
5. A. Item B is incorrect; ABA Model Rule 1.5(a) states that one
factor a lawyer may consider in setting a fee is “the amount involved and
the results obtained.” Item C is incorrect; a portion of Draxco’s check did
belong to Arnstein, but Arnstein’s portion had not yet been determined. In
that situation, it was proper to put the entire amount in the client trust
account. [See ABA Model Rule 1.15(c); RESTATEMENT (THIRD) OF THE LAW
Governing Lawyers § 44, comment f (2000).] Item D is incorrect; where
there is a fee dispute, it is proper to keep the disputed funds in the client
trust account until the dispute is settled. [7d.]
c
c Appendix 411
6. C. Items A and D are incorrect; when Lee drew the $350 check on
.—, her client trust account, she was misappropriating Fujitomi’s money. [ABA
'— Model Rule 1.15.] Item B is incorrect; there is no authority for sanctioning
2 Lee in this situation. Item C is correct; in these circumstances, the fine can
be viewed as an expense of litigation, and lawyers are permitted to advance
2 litigation expenses. [ABA Model Rule 1.8(e).]
7. C. Canfield authorized Ayers to accept any reasonable settlement
CD offer and said, “try to get the horse if you can.” Note that Canfield sued for
specific performance, not for return of the bonds—Canfield obviously has a
VJ higher opinion of Thunderbolt than Ayers does. At the outset, Ayers could
properly have counseled Canfield to seek the bonds rather than the horse.
[See ABA Model Rule 1.2(a) and the Comment thereto.] But the time for
counseling has passed; Ayers’ duty at this point is to carry out his client’s
— instructions. Thus, answers A and B are not correct. When Ayers gets the
z—. horse from Dennis, he must keep it in a safe place until Canfield returns.
- [ABA Model Rule 1.15(a).] The bonded stable is a better choice than the
2 pasture on Ayers’ farm, mentioned in answer D; who knows what evil
might befall Thunderbolt out in Ayers’ pasture? The bonded stable will cost
2 nearly $1,000, but under the circumstances it is proper for Ayers to incur
' this expense and to seek reimbursement from Canfield. [See RESTATEMENT
Q (Second) of Trusts § 176 (1959); A. Scott, Trusts § 176 (3d ed. 1967); R.
Brown, Law of Personal Property § 11.10 (3d ed. 1975).]
c CHAPTER SIX
1- D. ABA Model Rule 1.3 provides that a lawyer must “act with
reasonable diligence and promptness in representing a client ” Further,
□ABA Model Rule 1.4 requires a lawyer to keep the client “reasonably
informed about the status of the matter,” and ABA Model Rule 8.4(c)
□forbids lying and other dishonest conduct. Answer A is not correct. Even if
Acevedo would have been able to do the work on time, he is subject to
discipline for lying to Catlin about his progress on the matter. Answer B is
not correct. Acevedo is subject to discipline even though Catlin was able to
^- find another lawyer who could get the complaint filed in time. Answer C is
,—.not correct. Since Catlin was not injured by the delay, Acevedo is not liable
for malpractice.
2. C. Item I is correct. The question states that any reasonably
competent general practitioner would have discovered the more favorable
(law under the Lanham Act. Lloyd failed to discover it, and she is thus liable
for the injury Cress suffered due to her negligence. Item II is correct. As
the partner in charge of this case, Ames himself was probably negligent for
taking the case to trial on state law theories only. Even if that were not
□true, partner Ames is liable for Lloyd’s negligence under ordinary
^principles of respondeat superior. Item III is correct. As a partner in the

o
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412 Appendix
o
firm, Baker is liable for the negligent acts of Lloyd and Ames. Item IV is
o
not correct for the reasons explained above. o
3. C. The question states that Landsman volunteered to represent
CAH, not Cheng. When a lawyer advises one party to an arms-length o
transaction, the lawyer is not liable for negligence that injures the other
party, except in the narrow situations described in Restatement of the Law a
Governing Lawyers § 51 (2000). [See Restatement § 51, comment c.]
Answer A is not correct for the same reason. Answer B is not correct; o
working for free does not insulate a lawyer from malpractice liability.
Answer D is not correct because the injury to Cheng would have been
o
foreseen by a reasonably prudent lawyer. o
4. A. When a lawyer represents one party to litigation, the lawyer is
not liable for negligence that causes injury to the adversary party. [See o
Restatement, supra, § 51, comment c.J Further, nothing in the question
suggests that Applegate was negligent in the first place. A lawyer is liable o
to the adversary for intentional misconduct, for example, abuse of process.
If Delta had sued Applegate for abuse of process, it would have had to prove o
that Applegate intentionally pursued a claim that he knew was baseless.
The question states that Applegate believed that Delta had in fact o
unlawfully discriminated against Cortez, even though Applegate was
pessimistic about Cortez’s chances of winning at trial. Answers B and D
o
are not correct for the same reason. Answer C is not correct. If Applegate
had owed a duty of care to Delta, and if Applegate had acted negligently, •
o
the actual cause element would have been easy for Delta to satisfy. o
5. D. Item I is correct. [See ABA Model Rule 1.1.] It would be proper
for Abrams to charge Carmondy a nominal fee for finding a suitable o
specialist; to find a suitable expert takes time and requires careful
judgment. As a practical matter, however, many lawyers in Abrams’ o
position would elect not to charge a regular client for this service. Item II
is correct. [See Comment 2 to ABA Model Rule 1.1.] Item III is not correct
o
because it fails to mention the need to obtain Carmondy’s written consent
about the arrangement. [See ABA Model Rule 1.5(e).] Item TV is correct.
o
[See Comment 2 to ABA Model Rule 1.1, which speaks of study to become
competent to handle a case.]
o
6. B. Item I is incorrect; Item III is correct. Comment 14 to ABA o
Model Rule 1.8 states that lawyers are not prohibited from using an
arbitration clause so long as the client is fully informed of the clause’s scope o
and effect. Item II is not correct. Lawyers are entitled to insist that clients
observe their fee agreements. ABA Model Rule 1.16(b)(5) permits a lawyer
o
to withdraw if a client deliberately disregards the fee agreement. While it
is true that a lawyer cannot leave a client in the lurch (shortly before trial,
o
for example), and while a lawyer must take reasonable steps to protect the o
client’s interests upon withdrawal, the question does not suggest that Aoki
CD
o
o
c
o Appendix 413

aIV is correct. ABA Model Rule 1.8(h) states that a lawyer who seeks to
' settle a malpractice claim with a client must advise the client in writing of
' the desirability of seeking the advice of independent counsel in connection
with the settlement, and must also provide a reasonable opportunity to
(^obtain such counsel.
7. A. Item I is not correct. It is not uncommon for a lawyer to have a
non-lawyer employee handle the day-to-day details of the client trust
account, and no legal ethics rule forbids it. Items II and III are correct. ABA
Model Rule 5.3 requires lawyers to train and adequately supervise their
non-lawyer assistants. In re Scanlan, 144 Ariz. 334, 697 P.2d 1084 (1985),
imposed discipline on a lawyer for conduct similar to that described in this
.— question. Likewise, if Pearce was negligent in her supervision of Nelson,
then Pearce is liable for malpractice under ordinary principles of
(^respondeat superior. Item IV is not correct. Pearce’s subjective, good faith
belief is beside the point. The standard is an objective one: if a reasonably
(^prudent lawyer would not have allowed Nelson to handle the client trust
account, considering the facts stated in the question, then Pearce has
(^ breached her duty of care.
8. C. Item IV is correct. Liggett can be disciplined for ratifying
Prentice’s misconduct and for failing to take steps to mitigate its
^—consequences. [ABA Model Rule 5.3(c).] Item I is not correct. Searching
through files for documents that have to be produced is the kind of task
("that is often delegated to a non-lawyer assistant; the delegation is proper
so long as the lawyer adequately supervises the non-lawyer’s work and
Qtakes ultimate responsibility for it. [See Comment to ABA Model Rule 5.3.]
Item III is not correct. A lawyer is subject to discipline for harassing the
(^adversary in discovery proceedings. [See ABA Model Rule 3.4(a), (c), and
(d).] Fed.R.Civ.P. 34(b) states that “a party who produces documents for
Cjnspection shall produce them as they are kept in the usual course of
business or shall organize and label them to correspond with the categories
Gn the request.” If Liggett himself had jumbled the documents, he could be
sanctioned under Fed.R.Civ.P. 37 as well as disciplined by the bar. Here it
Gwas Prentice who jumbled the documents, but Liggett apparently ratified
.—her conduct, or at least failed to take steps to mitigate its consequences.
[ABA Model Rule 5.3(c).] Item II is not correct for the same reasons; it was
i—not enough for Liggett to tell Prentice not to do such things in the future.
'—He should have taken steps to mitigate the consequences of her
(—misconduct. [Id.] For example, he might instruct her to put the documents
back in the proper order; if that is impossible, perhaps he would have to
pfiag the harmful documents so that the adversary could find them,

o
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414 APPENDIX
CHAPTER SEVEN
1. C. The attorney-client privilege covers the information in item I.
The tax accountant was simply acting as a conduit to help communicate
information from the client to the attorney, and the tax accountant’s role
was to help further the attorney-client relationship. The information is also
covered by the attorney’s ethical duty to preserve confidential information.
[See ABA Model Rule 1.6.] The items of information in items II, III, and IV
are likewise covered by the ethical duty, but they are not covered by the
attorney-client privilege because the attorney did not obtain the
information through confidential communications with the client. In item
II, the information came from public land records. In item III, it came from
a third party taxi driver. In item IV, it came from a public newspaper.
2. C. Items I and II are not correct. Alder provided no legal services
in connection with Christenson’s proposed beachfront development; Alder
was Christenson’s divorce lawyer. Accordingly, this situation does not come
within any of the exceptions to the duty of confidentiality under ABA Model
Rule 1.6, and item IV is correct. Item III is correct; surely Alder may
volunteer his advice in this context, even though Christenson will probably
ignore it.
3. C. Lawyers often need to use employees and outside contractors
to help them serve their clients. It is proper to do so, so long as the lawyer
uses care in selecting such persons and properly instructs them about the
need for confidentiality. (See ABA Model Rule 5.3 and the Comment
thereto.] Answer A is not correct; the ethics rules do not require Lorenz to
waste her time and her client’s money in this fashion. Answer B is not
correct. Lorenz may wish to make the copies on his own facilities, but the
ethics rules do not require that. Answer D is not correct. Lorenz need not
be there to supervise personally, so long as she selects a trustworthy
copying firm and gives proper instructions about confidentiality.
4. D. Answer D is correct under ABA Model Rule 1.6(b)(2). Answers
A and C are not correct. The crime of extortion (blackmail) includes the
obtaining of money by inducing fear in the victim. One common way of
inducing that fear is by a threat to reveal the victim’s secret, and Aquino’s
letter seems well designed to do that and is therefore improper. [See ABA
Model Rule 8.4(b)—(d).] Answer B is not correct. Comment 5 to ABA Model
Rule 1.5 encourages lawyers to consider resolving a fee dispute by
arbitration or mediation where it is available, but (unless state law makes
arbitration mandatory) a lawyer would not be subject to discipline for
bringing suit to collect a fee.
5. A. ABA Model Rule 1.6(a) makes a lawyer subject to discipline for
revealing a client’s confidential information. The future crime exception
does not apply here. Colbert has revealed past crimes, not an intent to
commit future crimes. She has now moved out of the house and is living in
o
c
- Appendix 415
a distant town, and the facts stated in the question do not suggest that she
intends to abuse the children further. Answer B is incorrect; Lamb has no
~ discretion here. Answer C is incorrect. The state statute is directed to
Qh physicians and psychotherapists, not to attorneys. Indianapolis Bar Ass’n
' Op. 1-1986 (1986) involves a similar statute and holds that an attorney
Qjhas no duty to report past instances of child abuse. Answer D is incorrect
because the crimes are past crimes, not future crimes.
6. C. ABA Model Rule 1.6(a) requires Arnott to keep Curtis’s
—. information in confidence, unless Curtis changes her- mind and consents to
— have it revealed. [See Michigan State Bai- Op. CI-1141 (1986).] Answer A
,— is not correct; Arnott has no discretion here. Answer B is not correct. The
holder of the attorney-client privilege (and the beneficiary of the ethical
Q^duty) is Curtis; whether or not Coleman’s evasion of the law is a continuing
crime, Curtis is still entitled to the protection of confidentiality. Answer D
Q^ is not correct. Arnott would be breaching the duty of confidentiality even if
" he asked the prosecutor not to reveal the source of the information. The
Qprosecutor might not comply with the request. Even if the prosecutoi- does,
Coleman or one of the other friends of Curtis’s ex-husband may be able to
C'figure out where the information came from, thus putting Curtis and her
children in danger.
o 7. A. Clark and Craddock were joint clients of Ling. As joint clients,
r—both of them were holders of the attorney-client privilege. But in litigation
^between two former joint clients, neither of them can claim the attorney-
(— client privilege. See MCCORMICK ON EVIDENCE § 91.1 at 158 [Hornbook ed.
“ 2006.] Therefore, the court was correct in ordering Ling to disclose what
f Clark said. Having been properly ordered by the court to disclose the
'information, Ling must do so. [See ABA Model Rule 1.6, comment 3 (“The
Q“rule of client-lawyer confidentiality applies in situations other than those
where evidence is sought from the lawyer through compulsion of law.”).]
CjFurther, it was proper for Ling to withdraw as counsel for Clark and
Craddock because of the conflict between their interests. [ABA Model Rule
Cl.16(a).] Answer B is not correct; as noted above, Ling must disclose what
,Clark said. Answer C is not correct. Ling’s withdrawal was proper, and she
must disclose what Clark said. Answer D is not correct; again, having been
.—.ordered to answer by the court, Ling must do so.
CHAPTER EIGHT
o 1. B. The relevant provision is ABA Model Rule 3.3(a)(2), concerning
P^a lawyer’s duty to alert the court to adverse legal authorities. In item I, the
'—'United States Supreme Court case is adverse only by analogy between the
/—State X statute and the federal Lanham Act. Further, the United States
Supreme Court’s interpretation of federal law is not controlling on a State
r “X judge who is applying State X law. Foi' the same reasons, the United
^States Court of Appeals case in item II need not be disclosed. The State Y
o
c
(J
 416 APPENDIX
case in item III need not be disclosed because State Y law is not controlling
in a case governed by State X law. The State X case in item IV need not be
disclosed because it is adverse only by analogy between trespass to real
property and infringement of a trademark. There may be sound tactical
reasons for counsel for Noxatox to call all of these cases to the court’s
attention, but the rules do not compel it.
2. C. ABA Model Rule 3.3(d) requires a lawyer in an ex parte
proceeding to disclose all of the relevant facts known to the lawyer, even
the adverse facts. Comment 14 to Model Rule 3.3 explains why.
3. A. Carla’s and Carl’s disclosure to Anderson is confidential
information, protected by ABA Model Rule 1.6. ABA Model Rule 3.3(a)(3)
does not require disclosure for at least one and perhaps two reasons. First,
since the adoption proceeding has come to a conclusion, the duty to disclose
no longer applies. [ABA Model Rule 3.3(c).] Second, it is not clear from the
facts stated in the question that Anderson "offered false evidence” in the
adoption proceeding. She did offer the marriage certificate, but that
document was not false, and Anderson had no reason at the time to believe
that Carla and Carl were not validly married. Answers C and D are
incorrect for the same reasons. Answer B is incorrect as well. “Continuing
fraud” is a foggy concept at best, but even assuming that Carl and Carla
are committing a continuing fraud by keeping their adopted child and
living together as husband and wife, there is no reason to assume that
Anderson’s advice would “assist” them in continuing the fraud.
4. D. ABA Model Rule 3.4(b) prohibits a lawyer from counseling or
assisting a client (or any other witness) to testify falsely. [See also 18 U.S.C.
§ 1622 (1982) (subornation of perjury); Tedesco v. Mishkin, 629 F.Supp.
1474 (S.D.N.Y.1986).] Answer B is not correct. Lawyers should, and
commonly do, talk with clients and other witnesses about the testimony
they will give. But, as one judge put it long ago, the lawyer’s task is “to
extract the facts from the witness, not to put them into him.” [In re
Eldridge, 82 N.Y. 161 (1880).] Answer A is not correct. A lawyer should
represent a client with zeal, but only within the bounds of the law, which
includes the rules of legal ethics. The assertion in Answer C is accurate,
but it is misapplied here. If the lawyer’s objective is to bend the witness’s
testimony, ABA Model Rule 3.4(b) applies, even if the bending takes the
form of a lecture on the law. [See Wolfram, § 12.4.3, at 648.]
5. B. ABA Formal Opinion 87-353 (1987) and its predecessor, ABA
Formal Opinion 287 (1953), use a version of this hypothetical to illustrate
the hair-fine balance between zealously representing a client and actively
misleading a court. Bear in mind that this hypothetical involves the
criminal process—the prosecutor carries the burden of proof, and the client
is entitled to remain silent and to have the effective assistance of counsel.
In this hypothetical, the adversary process has failed to produce the truth,
o
o Appendix 417
and the client will get a windfall gain. If the lawyer responds as in item I
or II, the lawyer has not actively misled the court. True, the lawyer has
failed to correct the court’s mistaken belief, but that is deceit only if there
is a duty to speak out, and there is no duty here. In item III, the lawyer
asserts that his client’s “record is clean.” That is the literal truth: the record
is clean, though the client is not. Nonetheless, it seems to us that in item
III the lawyer has stepped over the line and has actively misled the court
q- in violation of ABA Model Rule 3.3(a)(1). In item IV, the lawyer has
corrected the court’s mistake, but he has breached the duty of
Q confidentiality and is subject to discipline under ABA Model Rule 1.6. A
similar hypothetical is discussed in Hazard & Hodes §§ 29.9-29.10; see also
Q Joan C. Rogers, Candor Toward Tribunals, 25 ABA/BNA Law. Man. Prof.
Conduct 174, 175-76 (2009).
6. A. Your duty here is to serve your client’s best interests, and the
way to do that is simply to call the mistake to Lauder’s attention so it can
be corrected. If your client signs the contract, knowing of the mistake, the
contract is voidable; ultimately, your client may lose the benefit of the
bargain, or end up in costly litigation, or both. [See RESTATEMENT (SECOND)
Q OF CONTRACTS § 153 (1981).] Answers B and C are incorrect. It is true that
you should not give up one of your client’s valuable legal rights without
Q first consulting the client and obtaining his consent. [See ABA Model Rule
1.2, Comments 1 and 2.] But you are not giving up any legal right here;
your knowledge of the mistake is imputed to your client, and your client
thus has no legal right to hold the other party to the mistaken version of
Cj the contract. Answer D is incorrect for a reason that you will study in a
later Chapter. A lawyer must not communicate directly with a party on the
opposite side of a matter if the lawyer knows that the party is represented
by counsel. [ABA Model Rule 4.2.]
CHAPTER NINE
1. D. It is proper, indeed routine, for a lawyer to talk with a witness
about his testimony before the witness testifies. It is also proper for a
lawyer to use documents or other items to try to refresh a witness’s memory
of a once-known but now forgotten fact. In this process, the lawyer must
bear in mind that the proper object is to “extract the facts from the witness,
not to put them into him; to learn what the witness does know, not to teach
him what he ought to know.” [In re Eldridge, 82 N.Y. 161, 171 (1880); see
r-> also Restatement (Third) of the Law Governing Lawyers § 116(1)
V~’ (2000).] Items I and II are incorrect because the question does not indicate

r' that Westerman exceeded these bounds in meeting with the investigator.
Item III is correct—this kind of sarcastic, rebellious remark in the judge’s
(^' presence in open court constitutes direct contempt of court, making the
lawyer subject to litigation sanctions. It could also result in professional
Q discipline under ABA Model Rule 3.5(d). Item IV is correct; a lawyer is
subject to litigation sanctions for intentionally violating an established rule

Q
418 Appendix
of evidence law; here production of the notes was clearly required under
Federal Rule of Evidence 612. Professional discipline would also be
appropriate under ABA Model Rule 3.4(c). Item V is correct; the judge
ordered Westerman to bring the notes “the next morning,” and Westerman
intentionally failed to do so. His conduct constitutes another direct
contempt of court.
2. D. ABA Model Rule 4.2 prohibits a lawyer from communicating
about the subject of the representation with a person who is represented
by a lawyer, without first getting the consent of that lawyer. Comment 7 to
ABA Model Rule 4.2 explains that when the represented party is a legal
entity (such as the church corporation in this question), a lawyer must get
the consent of the entity’s lawyer before talking directly with three classes
of persons: (1) persons who “supervise[ ], direct[], or regularly consult[]
with the organization’s lawyer concerning the matter”; (2) persons who
have the “authority to obligate the organization with respect to the matter”;
and (3) persons “whose act or omission in connection with the matter may
be imputed to the organization for purposes of civil or criminal liability.”
[Cf. Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d
584 (1981) (defining scope of attorney-client privilege as to communications
between corporate employees and attorneys for the corporation).] Even if
the bookkeeper does not fall within class (1) or class (2), we believe that she
falls within class (3). Under the broad, modern view of vicarious
admissions, her statements could probably be admitted against the church
corporation over hearsay objection. [See, e.g., Federal Rule of Evidence
801(d)(2)(D).] Thus, Lexington should have gotten the consent of counsel
for the church corporation before talking with her. [See also Hazard &
Hodes § 38.6.]
3. A. Sanford should disclose the information to Rossi’s counsel
because Beaumont’s conclusion suggests that the fire was not caused by a
criminal act. [See ABA Model Rule 3.8(d).] Answers C and D are
accordingly incorrect. Answer B is incorrect because a lawyer—especially
a prosecutor—should not ask a third party witness not to give relevant
information to an adversary. [ABA Model Rule 3.4(f).]
4. A. If Daniels sent the carbon copy to Parker, he would violate ABA
Model Rule 4.2, even if he is positive that Paxton did not convey the
settlement offer to Parker. If Paxton has failed to convey the offer to
Parker, then Paxton has violated his duty to keep Parker informed and to
let Parker make the important decisions in the case. [See ABA Model Rule
1.2(a).] But the proper remedy for that violation is for Daniels to bring
Paxton’s conduct to the attention of the judge to whom the case is assigned,
not to deal directly with Parker. [See ABA Informal Op. 1348 (1975) (copy
of settlement offer sent to represented adversary in civil case); see also ABA
Informal Op. 1373 (1976) (copy of offer to plea bargain sent to represented
o
c Appendix 419
O■■
k~'criminaldefendant).] Answers B, C, and D are incorrect for the same
(—^reasons.
5. D. Limpett’s direct contact with Victoria violates ABA Model Rule
C ~ 4-3. A lawyer may talk with a potential adversary who is not represented
by counsel, but in doing so the lawyer must not purport to give the person
CJlegal advice (other than to retain counsel if that is appropriate). [See ABA
— Model Rule 4.3.] Note that Limpett’s advice to Victoria is also misleading
(—in part. If Crebs were held liable to Victoria, the so-called “collateral
—.source” rule would probably allow her to collect her medical expenses from
- him, even though those expenses were covered by her own health
,—.insurance. Answers A, B, and C are incorrect for the reasons explained
'—■'above.
C CHAPTER TEN
1. B. Answer A is incorrect. The First Amendment does not protect
all communications. The associates’ comments reflect bias, and therefore
^Answer D is incorrect. Answer B is correct rather than Answer C because
" there is no provision within the ABA Model Rules that would subject the
Q2associates to discipline.
s 2. C. The judge’s reference to “you people” indicates bias. Canon
L .3(B)(5) of the CJC provides that judges “shall not, in the performance of
—judicial duties, by words or conduct, manifest bias or prejudice” on the basis
'—of disability. Accordingly, Answers A and D are incorrect. B is also
p-incorrect; the judge’s response was inappropriate because it reflected bias,
'—not because the judge was required to accommodate Matthew’s specific
/—request. Although the judge should have sought some means to preserve
k the confidentiality of the information that Matthew sought to
^ ■communicate, the judge was not necessarily required to follow Matthew’s
particular suggestion.
CD 3. B. The ABA Model Rules do not contain a blanket prohibition
against lawyers dating their clients. However, ABA Model Rule 1.8(j)
'—prohibits a lawyer from having a sexual relationship with a client unless a
^-consensual sexual relationship already existed between them at the time
^ •the lawyer-client relationship was commenced.
C ' 4. D. The comments to ABA Model Rule 8.4, as well as ABA Model
Rule 3.4(e) and 4.4(a), all apply here. Answers A, B, and C are therefore
CCncorrect.
q CHAPTER ELEVEN
1. C. If Arnold acquires 4% of the capital stock of the new
C jorporation, he will in essence be entering into a business transaction with
his clients, Ivan and Gene. [See ABA Formal Op. 00-418 (2000) (discussing
C circumstances in which a lawyer can acquire stock of a start-up client in
^Jieu of a fee).] Therefore, Arnold will have to comply with ABA Model Rule

o
o
 420 appendix

1.8(a), which requires all of the conditions listed in C, except for the first
one. The transaction must also satisfy this first condition because Arnold
is accepting the stock in lieu of a fee, and an attorney’s fee must not be
unreasonable in amount. That would depend on how much the stock was
worth, viewed as of the time of the transaction, not through the lens of
hindsight. Answer A is wrong because it misstates the rule. The rule in
question is ABA Model Rule 1.8(i), which speaks of the “subject matter of
litigation,” not the “subject of representation.” There is no litigation in this
problem. Answer B is wrong because it also misstates the rule. The rule in
question is ABA Model Rule 1.8(a), which allows a lawyer to enter into a
business transaction with a client if the specified conditions are satisfied.
Answer D is wrong because it does not satisfy all the conditions of ABA
Model Rule 1.8(a), and it incorporates an imaginary rule about not voting
the stock or trying to influence governance of the corporation. Note,
however, that if the lawyer’s acquisition of stock might affect control of the
corporation, that is one of the potential conflicts that the lawyer should
fully disclose to the clients under Rule 1.8(a). [See ABA Formal Op. 00-
418.]
2. B. Lenschell’s client is Tina, not Timothy, no matter who may be
paying fine or the legal fee. Therefore, Lenschell must not allow Timothy
to orchestrate the case. [See ABA Model Rule 1.7(a); Wood v. Georgia, 450
U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) (pornography shop
employee defended by lawyer who was paid by shop owner)]. Whether to
plead guilty or not guilty is for Tina to decide. [ABA Model Rule 1.2(a).]
Thus, answers A and D are incorrect. Answer B is preferable to answer C.
Lenschell has gotten this far with the case, and time is short since the case
is about to be called on the criminal calendar. Assuming that Tina wants
Lenschell to advise her about the plea, he should do so. The question does
not provide enough facts to decide whether it would or would not be
appropriate for Lenschell to continue representing Tina at subsequent
stages of the case. Note that ABA Model Rule 1.8(f) prohibits Lenschell
from accepting the fee from Timothy without Tina’s informed consent.
3. C. Once it becomes apparent that Markler will not cooperate,
Lattimer’s best course of action is to take the matter up with Markler’s
corporate superior, the Executive Vice President. [See ABA Model Rule
1.13.] Answer C is preferable to answer D because C creates less risk of
disrupting the corporate operations and revealing confidential information
to outsiders. [See ABA Model Rule 1.13(b).] Answer B is incorrect because
B would breach Lattimer’s duty of confidentiality. Further, a competent
lawyer would not need an advisory opinion from the Justice Department to
know that phone calls between competitors about future prices raise
antitrust problems. [See, e.g., United States v. Container Corp, of America,
393 U.S. 333, 89 S.Ct. 510, 21 L.Ed.2d 526 (1969).] Answer A is incorrect
 _________ _________________ Appendix________________________ 421
Q.
because Lattimer’s client is the corporation, not Markler, and she has a
f-'. duty to warn her client of Markler’s activity. [See ABA Model Rule 1.13(b).]
4. D. The financial interest held by Prentice is imputed to all lawyers
in the firm. [See ABA Model Rule 1.10(a).] Since that interest is in conflict
with the Alliance’s interests, Tillis cannot accept the case without first
— disclosing the conflict to the Alliance and obtaining the Alliance’s consent.
„ [See ABA Model Rule 1.7(b).] Item II is not correct. Vista del Oro is not
now, and has never been, a client of the firm. Thus Vista del Oro’s
/—> sentiments about the conflict are irrelevant. Neither item III nor item IV
is a necessary condition of allowing Tillis to represent Alliance. If the
q Alliance consents after full disclosure of the conflict, that is sufficient;
Prentice need not rid himself of his interest in Vista del Oro. Note that an
q, alternative way to resolve the conflict of interest might be for Prentice to
resign as a director and to sell his seven home sites, but that is not among
the four answers offered in this question. Further, even if Prentice were to
get rid of his interest in Vista del Oro, many firms would still disclose the
Q3 situation to the Alliance, simply as a matter of good client relations.
——, 5. B. Under the ABA Model Rules, the starting point of the analysis
'— is Rule 1.7. Rule 1.7 would not bar Smithers from serving as defendant’s
(— trial counsel, provided that the defendant consents after full disclosure of
“ the drawbacks—Smithers’ effectiveness may be somewhat reduced by his
(—.dual role as trial counsel and witness. ABA Model Rule 3.7 would not bar
Smithers from serving as defendant’s trial counsel, provided that the
authenticity of the FTC letter is uncontested. [Hazard & Hodes § 33.7.]
Finally, Hillner could serve as trial counsel even if Smithers could not,
(^because this kind of conflict is not imputed to other lawyers in the firm.
[ABA Model Rule 3.7(b).]
O
k— 6. B. Under ABA Model Rule 1.7(b), client consent solves the
— problem. Answer C is incorrect for the same reason that answer B is
v correct. Answer A is incorrect because ABA Model Rule 1.7 makes no

(—exception for the interest of a trust beneficiary. Answer D is incorrect

because the availability of other counsel is irrelevant to this conflict of
^interest issue.
7. D. Under ABA Model Rule 1.8(i), a lawyer must not acquire an
(—ownership interest in the subject of litigation that the lawyer is conducting
—for the client (subject to two exceptions that do not apply here). The subject
■— of this declaratory judgment action is Belloni’s United States Patent, and
,—Lothrop is acquiring a 10% interest in that patent. Answer A is incorrect
for the same reason that answer D is correct. Answer B is incorrect because
(—a lawyer may require the client to repay advanced litigation expenses, no
"matter what the outcome of the litigation. [See ABA Model Rule 1.8(e)(1);
(""Hazard & Hodes § 12.12.] Answer C is incorrect because a lawyer may
advance litigation expenses in a civil case. [Id.]
o
c
c
422 Appendix
8. A. The conflict of interest here is between Andrate (who wants to
be paid for his work) and his indigent inmate clients (who want the medical
treatment that the consent decree will give them). [See ABA Model Rule
1.7(a).] All who have written about this issue agree on one basic point: the
decision whether to accept or reject the settlement offer is for the client to
make, not for the lawyer to make. [See ABA Model Rule 1.2; see generally
Judith L. Maute, Allocation of Decisionmaking Authority Under the Model
Rules of Professional Conduct, 17 U.C.Davis L.Rev. 1049 (1984).] Answers
B, C, and D are incorrect because in each instance the decision is made by
the lawyer rather than the client. Evans u. JeffD., 475 U.S. 717, 106 S.Ct.
1531, 89 L.Ed.2d 747 (1986), concerns the settlement of a civil rights class
action. A federal statute permits (but does not require) an award of
attorney fees to the prevailing party in such an action. The defendant
offered to settle for a consent decree that would give the plaintiffs more
injunctive relief than they probably would get by going to trial, provided
that the plaintiffs would not seek an award of attorney fees. The issue
before the Court was whether the trial judge was correct in approving the
settlement containing the fee waiver. In a 6—3 decision, the Court said the
trial judge was correct. Since Congress did not require fee awards, but only
permitted them, the fee waiver was not antithetic to the purpose of the fee
award statute. Further, to forbid fee waivers would impede settlements,
because defendants naturally wish to clean up both the substantive issues
and the fee issues at the same time. The dissenting opinion points out that
to permit fee waivers will make attorneys far less willing to represent
indigent plaintiffs in difficult civil rights cases. Query whether it is proper
for a defendant to insist on a fee waiver as a condition of settlement. [See
Ass’n Bar of City of New York Opinion 1987-4 (1987); Hazard & Hodes
§§ 8.19-8.20.]
CHAPTER TWELVE
1. C. Under the ABA Model Rules, the applicable provision is
comment 11 to Model Rule 1.7: “When lawyers representing different
clients in the same matter or in substantially related matters are closely
related by blood or marriage, there may be a significant risk that client
confidences will be revealed and that the lawyer’s family relationship will
interfere with both loyalty and independent professional judgment. As a
result, each client is entitled to know of the existence and implications of
the relationship between the lawyers before the lawyer agrees to undertake
the representation. Thus, a lawyer related to another lawyer, e.g., as
parent, child, sibling or spouse, ordinarily may not represent a client in a
matter where that lawyer is representing another party, unless each client
gives informed consent.” [See also ABA Formal Op. 340 (1975) (stating that
the mere fact of marriage creates no actual conflict of interest, but the
closeness of the wife-husband relationship does create opportunities for
inadvertent violations of the ethics rules. For instance, one spouse might
c
o Appendix 423
CLinadvertently learn confidential information when taking a telephone
~ message for the other spouse at their home.)] In light of this, both lawyers
■— must disclose the situation to their respective clients. If the two clients
,— consent after this disclosure, then Cheryl and Dennis may participate on
opposite sides of the case. [See Oregon State Bar Op. 502 (1984)].
CD 2. B. Taking Norman’s name off the pleading does not solve the
conflict of interest. Norman remains the outside general counsel for North
OAmerican, and North American may be liable on any judgment rendered
against the joint venture in the suit brought by Eratec’s French subsidiary.
C The proper course of action here would have been: (a) for Enid and Norman
to decide whether they could effectively serve their respective clients in this
(—/'situation; (b) if they concluded that they could, they should have made full
—disclosure of the problem to both sets of clients (not just to North
'—American); and (c) they should have obtained the written consent of both
(— sets of clients. [See ABA Model Rule 1.7.]
3. B. Even in a contingent fee case, it is the client, not the attorney,
CDwho decides whether to accept or reject a settlement offer. Here, attorney
A’s duty is to inform R, S, and T of U’s offer, even though A may think it is
CZridiculously low. [See ABA Model Rules 1.2 and 1.4; Hazard & Hodes § 5.7,
Illustration 5-5.] Furthermore, a lawyer who represents several clients on
(—the same side of a case has additional duties when the adversary makes an
—aggregate settlement offer. The lawyer must fully disclose the entire offer
to each of the several clients, and the clients must reach their own decision
.—about accepting it or rejecting it, and about how to share it if they do accept
'—it. [See ABA Model Rule 1.8(g).]
CD 4. D. Although a generous reading of Rule 1.7 might suggest that
Anna may represent both Wendy and Harry if she reasonably believes that
CZshe can serve both effectively, and if both of them consent in writing to the
—joint representation after Anna explains to them the disadvantages of
(—being represented by only one lawyer, the likelihood of future conflict is
—high. [See Hazard & Hodes § 11.4, Illustration 11-1 (noting that “the
(division of their marital property is inherently a zero-sum proposition,
p-Even in today’s no-fault divorce regimes, the spouses will almost certainly
'—be required to appear as nominally adverse parties in an actual court
/—nroceeding and to submit their agreement for formal court approval.”) See
generally Debra Lyn Bassett, Three’s A Crowd: A Proposal to Abolish Joint
(Representation, 32 Rutgers L.J. 387, 425-427 (2001); Nancy J. Moore,
Conflicts of Interest in the Simultaneous Representation of Multiple Clients,
QD>1 Tex.L.Rev. 211, 245-258 (1982).] Answers A and C are incorrect for the
same reason that answer D is correct. Answer B is incorrect because it does
Ciot meet the requirements of the rules cited above; further, obtaining a
client’s advance promise not to sue for legal malpractice is itself a
CZlisciplinary violation. [ABA Model Rule 1.8(h).]

CD
CD
CD
 424 Appendix
5. A. The relevant provisions are ABA Model Rules 1.9. The service
station dealers’ antitrust case is “substantially related” to the proposed
antitrust legislation. Further, DePew has received confidential information
from Transpac concerning the relationships between the integrated oil
companies and their retail service station dealers. That information is
clearly relevant to the dealers’ antitrust case. Thus, DePew himself would
be barred from taking the case, and the ordinary rule would also bar all of
the other lawyers in DePew’s firm. [See ABA Model Rule 1.10(a).] DePew’s
firm might try to invoke the so-called “ethical wall” or “screening” theory,
promising that DePew would be screened off from the service station
dealers’ case and would share no part of the fees earned in that case. [Of.
Haagen-Dazs v. Perche No!, supra.] However, the screening provision of
ABA Model Rule 1.10 applies to situations “aris[ing] out of the disqualified
lawyer’s association with a prior firm”—and here there is no prior firm.
6. B. ABA Model Rule 6.3 indicates that Leggett must not participate
in the Board of Directors’ decision. To participate and vote “yes” would be
“incompatible” with his obligations to his firm’s clients, a violation of Rule
6.3(a). To participate and vote “no” could “have a material adverse effect on
the representation” of tenants who are the society’s potential clients. [Cf.
Hazard & Hodes § 52.4, Illustration 52-1.] Thus answers C and D are not
correct. Answer A is not correct. It is true that ABA Model Rule 5.4(b)
prohibits a lawyer from “forming a partnership” (or professional
corporation) with a non-lawyer if any of the activities of the partnership (or
professional corporation) consist of the practice of law. However, the boards
of directors of legal aid societies typically include both lawyers and non­
lawyers. Hazard and Hodes argue these regulations “sweep [] far too
broadly.” [Hazard & Hodes § 45.4.]
7. A. On a somewhat similar set of facts, a California court
disqualified the entire county prosecutor’s office. [People v. Lepe, 164
Cal.App.3d 685, 211 Cal.Rptr. 432 (1985). But see People v. Hernandez, 235
Cal.App.3d 674, 286 Cal.Rptr. 652 (1991) (limiting disqualification to
lawyers who personally participated with former witness, now a
defendant).] If Aldrich did a competent job as defense counsel in the two
assault and battery cases, she undoubtedly talked with Costa in detail
about his relationship with his brother-in-law, Vincent. The information
she received as Costa’s defense lawyer could become relevant in the murder
prosecution—for example, to prove motive, intent, or premeditation. Thus,
Aldrich herself would be barred from personally prosecuting Costa, and
answer B is accordingly incorrect. Answer C is incorrect for the same
reason; her “direct, immediate and personal supervision” would involve the
same kind of conflict as if she personally prosecuted Costa. Answer D is
incorrect because if she screens herself off from the case, she cannot
exercise the “direct, immediate, and personal supervision” that the state
statute mandates. We believe that ABA Model Rule 1.11(d) does not apply
C Appendix___________________________________________________ 425
C to this problem, because the state statute allows the State Attorney
General to take over cases in which the local prosecutor’s office has a
(—conflict of interest.
c CHAPTER THIRTEEN
1. C. ABA Model Rules 5.1 and 5.2 apply here. A variety of federal
— and state statutes prohibit the destruction of subpoenaed documents. [See
generally WOLFRAM, MODERN LEGAL ETHICS § 12.3.5 (1986).] When
Crawford shredded the files and later erased the computer backup, he
,— doubtless violated one or more of these statutes; further, he is subject to
professional discipline. [See ABA Model Rule 3.4(a).] Even if Crawford
(—■thought that Barker had instructed him to destroy the material, Crawford
is still subject
is still to discipline
subject to discipline—the ethical duty here is too clear to be subject
(C° reasonable argument. [Compare ABA Model Rule 5.2(a) with 5.2(b).]
Barker is also subject to discipline. When Barker learned that Crawford
Q£ had shredded the files, Barker should have acted promptly to preserve the
computer backup; instead, Barker made an ambiguous comment that an
fjoverzealous young lawyer might interpret as an instruction to erase the
computer backup. [See ABA Model Rule 5.1(c)(2).] Altmont is subject to
(^discipline for lying to the congressional committee about the destruction of
the files and computer backup [ABA Model Rule 3.3(a)(1)], and perhaps
CZalso for failing to make reasonable efforts to assure that Barker and
Crawford would act ethically [ABA Model Rule 5.1(b)] or for ratifying their
^—unethical conduct [ABA Model Rule 5.1(c)(1)].
Qj 2. C. This is a debatable legal ethics issue. Black is the supervising
attorney, and it is Black’s client. Arlington is simply assisting Black, so
CBlack should make the final judgments on debatable ethics issues. [ABA
Model Rule 5.2.] Answer C is preferable to answer B because B is
CZ^verbroad. Where the supervisor and the subordinate are faced with a
debatable ethics issue, the supervisor’s judgment should prevail. But, if the
( question were not debatable, the subordinate would be subject to discipline,
even though he was carrying out the directions of the supervisor. [ABA
(-Model Rule 5.2(a); see generally Hazard & Hodes § 43.5.]
Qj 3. A. ABA Model Rule 1.17 allows the sale of a law practice, subject
Co certain conditions. Rule 1.17 specifically permits the good will of a law
(^practice to be sold, contrary to the prior law in most jurisdictions. The $500
monthly retirement benefit does not offend any provision of the ABA Model
CZ^ules. Answer B is wrong because there is no such “reasonableness”
requirement. Answer C is wrong because it is contrary to the opening
Clause of ABA Model Rule 1.17. Answer D is wrong because there is no
requirement that the buyer and seller of a practice have been previously
'--associated in practice.
c
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Index
o
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References are to Pages
c
oABA MODEL CODE OF JUDICIAL AFFIRMATIONS AND OATHS
CONDUCT Attorneys, 78-79
^Generally, 64, 376-391
AGE BIAS
/^\BA MODEL CODE OF Generally, 265-268, 281-283
PROFESSIONAL
RESPONSIBILITY AMERICAN BAR ASSOCIATION
( Generally, 63-64 Generally, 60-61
ABA MODEL RULES OF AMERICAN LAW INSTITUTE
CJ PROFESSIONAL CONDUCT Generally, 60
Generally, 64 ANCILLARY BUSINESSES
^-Advertisements and solicitations, 124-125 Dangers, 190-193
ACCOUNTS AND ACCOUNTING ARBITRATION
/—Advances, 166 Of fee dispute, 169-170
< Jlient money or property, 164-167
Client trust accounts, 164-167 ASSEMBLY
American Bar Association, 60-61
QcTIONS AND PROCEEDINGS
Candor, 221-243 ASSOCIATIONS AND SOCIETIES
(^)iscipline, generally, this index American Bar Association, 60-61
Fairness in litigation, 245-271 Local bar associations, 63
^-Malpractice, generally, this index National organizations, 60
\—."retrial publicity, 255-257 State bar associations, 62
^-ACTUAL CAUSE ASSUMPTION OF RISK
x—^egal malpractice, negligence, 182 Ethics of Second-Rate Legal Service, 187—
189
dDMIRALTY
roctors in admiralty, advertisements, ATTORNEY FEES
Generally, 139-171
_ traditional view, 125
Advances, 166
Odmission to practice Advertisements, 113—121
Generally, 33-45 Billing fraud, 148—151
QdvANCES Client trust accounts, 164-167
Attorney fees, 166 Contingent fees, 161—163
Qosts and expenses, 166 Criminal cases, contingent fees, 161-162
Loans to clients, 163-164 Discharge of attorney, 94-98
Excessive fees, 143-148, 152-155
pBVERSE OR PECUNIARY Expense fraud, 149-151
INTEREST Indigent clients, 79-93
^-Conflict of Interest, generally, this index Quantum meruit, 94-98
Retainers, 166-167
ADVERTISEMENTS
,—. Generally, 107-133 ATTORNEY IMPAIRMENTS
PiBA Model Rules, 113, 124-125 Generally, 263-265
Attorney fees, 113-121 Alcohol and substance abuse, 263
( -ates v. State Bar of Arizona, 113-121 Depression, 264
PUD litigation, 126 Illness, 264
Social media, 132-133 ATTORNEY-CLIENT PRIVILEGE
(_ specialization, 125 Generally, 199-200, 202-214
Traditional view, 110-112
o
c 427
o
 o
428 Index
o
ATTORNEY-CLIENT RELATIONSHIP CLIENTS o
Generally, 75—106 Conflict of interest, Client and client, 323-
Confidential Information, generally, this
index
348
Conflict of interest. Client and lawyer, 295-
o
Conflict of Interest, generally, this index 321
Conflict of interest, Client and third party, O
BAR 295-321
Admission to, generally, 33-45 Former clients, disqualification of counsel,
Admission to, federal courts, 46 325-330, 343-344
CD
Organization of, 32 Imputed disqualification, 343-344
BIAS Indigent clients, attorney fees, 79-93 O
Generally, 273-294 Loans between lawyer and client, 163-164
BILLABLE HOURS
Multiple clients, 340-342
Records, client money or property, 167 o
Generally, 155-161
BILLING FRAUD
COACHING
Witness coaching, generally, 249-252 o
Examples, 148-151
BOARD OF GOVERNORS
CODE OF JUDICIAL CONDUCT
Generally, 64, 376 o
American Bar Association, 61
BREACH OF CONTRACT
COMMINGLING FUNDS
Client trust accounts, 164-167 o
As basis for legal malpractice liability, 179
BROCHURES
COMMITTEES
Ethics committees, advisory opinions, 65 o
Solicitation, 109, 135-136
BUSINESS RELATIONS
COMMUNICATIONS
Confidential Information, generally, this o
Lawyer and client, 306-310 index
“BUT FOR” ANALYSIS
Jurors, personal contacts, 246, 252-254
Pretrial publicity, 255—257
o
Actual cause, legal malpractice, 182
CANDOR
COMPETENCE
Generally, 173—197
o
Generally, 221—243
In bar applications, 224-227
In negotiations, 232-233
See also Malpractice, generally, this index
CONCEALMENT
o
Misrepresentation, 227—232
CARDS, PROFESSIONAL
Confidential information, 199-220
CONDUCT
o
Advertisements, traditional view, 110-111
Solicitation, 109
Bias and civility in the courtroom, 273-294
Discipline, generally, this index o
Judicial conduct, 375-404
CAUSATION
Legal malpractice, negligence, 182-183 CONFIDENTIAL INFORMATION o
Generally, 199-220
CENSURE
Judges, 376
Client consent exception, 214
Court order exception, 216
o
CHARACTER
Admission to practice, 34-45
Everyday confidentiality issues, 216-217
Future harm, 214-216 o
Multiple clients, conflict of interest, 340—
CITATIONS
Short form, table, 3
342
Peijury, generally, this index
o
Removing or altering evidence, 206-214
CLAIMS-MADE MALPRACTICE
INSURANCE POLICIES
Self-defense, 216 o
Malpractice insurance, 185-187 CONFLICT OF INTEREST
CLIENT SECURITY FUNDS
Allocation of decision-making, 298-300 o
Conflicts between clients, 323-348
Generally, 167 Dissolution of marriage, joint
representation, 162 O
CLIENT TRUST ACCOUNTS
Generally, 164—167 Financial interest, 306—310
Former clients, Confidences, 325-330 O
Former clients. Disqualification of counsel,
325-330
O
O
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c
c Index 429
(^Former clients, Imputed knowledge, 343- DILIGENCE
344 Generally, 173-197
Insurance companies, 300-304
C Interference by third party, 300-304 DIMINISHED CAPACITY
Contrasted with age bias, 265—268
Lawyer and client, 295-321
/ Loans from client, 306-310 DIRECTORIES
k—Multiple clients, 325-330
Advertisements, traditional view, 110-113
Pro bono projects, 344
DISBARMENT
^CONTINGENT FEES Disciplinary proceedings, 66
— Generally, 161-163
(_ .Criminal cases, 161-162 DISCHARGE OF ATTORNEYS
Domestic relations cases, 162 Generally, 93-98
(corporations DISCIPLINE
Sarbanes’Oxley Act, 296 Generally, 65-67
Disbarment, 66
CI COSTS Frivolous claims, 101—103
Advances, 166 Judges, 375-404
(Z COURT RULES Procedure, 66-67
Guidance on legal ethics, 63 Reprimand, 65
Statutory violations, 66
CZCrimes and offenses Suspension, 66
Bar applicants, 34-45
/ Client security funds, 167 DISCLOSURE
'—Future harm, disclosing confidential Confidential Information, generally, this
information, 214-216 index
Q2?erjury, generally, this index Perjury by client, 233-239
Prosecuting attorneys, evidence, 262
CRIMINAL LAWYERS
( defense lawyers, professional DISCRIMINATION
responsibility, 262-263 Generally, 273—294
Perjury, generally, this index
C Prosecuting attorneys, 261-262
DISQUALIFICATION OF COUNSEL
Former clients, 325-330
Discretion in bringing criminal charges, Imputed knowledge, 343-344
261
OEvidence, disclosure by prosecutors, 262 DISQUALIFICATION OF JUDGES
Generally, 375-404
QDAMAGES
Legal malpractice, 183 DISQUALIFICATION OF LAW FIRMS
Generally, 330-340
C^EATH OR DISABILITY OF
ATTORNEY DISSOLUTION OF MARRIAGE
^—Advance planning, 264—265 Contingent fees, 162
DEFENDANTS, CRIMINAL DOMICILE AND RESIDENCE
(—perjury, 233-239 Admission to practice, 33—34
DEFENSE LAWYERS DUE PROCESS
/—Duties of criminal defense lawyer, 262—263 Evidence, disclosure, prosecuting
v_.?eijury, generally, this index attorneys, 262
Recusal, 402-404
/—DEFENSES
'—Jo legal malpractice claims, 183-184 DUTY OF CARE
Legal malpractice, 179-181
^DEFINITIONS
Discipline, 65 EMPLOYEES
Financial interest, judges, 385 Legal malpractice, vicarious liability, 184—
Q"\egal malpractice, 178-183 185
Retainers, 166-167
^-Solicitation, 112 ETHICS COMMITTEES
Advisory opinions, 65
V DEPOSITS
Client trust accounts, 164—167 ETHICS HOT LINES
Generally, 65

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430 Index
o
EVIDENCE HOUSE OF DELEGATES o
Attorney-client privilege contrasted with American Bar Association, 61
ethical duty, 199—200
Confidential information, 199—200 IMPEACHMENT o
Prosecuting attorneys, duty to disclose, 262 Judges, 376
Removing or altering, 206-214
Witness coaching, 249-252
IMPLICIT BIAS o
Discrimination, 283-288
EXPENSE FRAUD IMPUTED DISQUALIFICATION o
Examples, 149-151 Generally, 343-344
EXPENSES AND EXPENDITURES
Advances, 166
INCOMPETENCE o
Generally, 173-197
EXTRAJUDICIAL SOURCE RULE See also Malpractice, generally, this index o
Generally, 396—397 INDIGENT CLIENTS
FAIRNESS IN LITIGATION Attorney fees, 79-93 O
Generally, 245-271 INSURANCE
FALSE EVIDENCE Legal malpractice, 185-187
Malpractice Insurance, generally, this
O
Perjury, generally, this index
index
FEDERAL COURTS
INTEGRATED BAR
O
Admission to practice, 46
FEES
State bar associations, 62
INTENTIONAL TORT
o
Attorney Fees, generally, this index
FIDUCIARY DUTIES
Legal malpractice liability, 179
INTEREST
o
Generally, 164-167
FINES AND PENALTIES
Client trust accounts, 164—165
IOLTA ACCOUNTS
(D
Discipline, generally, this index
FIRM NAMES
Generally, 165
CD
Generally, 133-134 JOINT REPRESENTATION
Trade names, 136-137 Generally, 340-342
O
FORMER CLIENTS JUDGES
Disqualification of counsel, 325-330 Discipline, 375-404
Disqualification, 396-404 CD
FORMS OF LEGAL PRACTICE Financial interest in controversy, 385
Generally, 354-356 Impeachment, 376
Misconduct, 375-404
O
FRAUD
Billing and expense fraud, 148—151
Misappropriating client funds, 164-167
Recusal, 396-404
Removal from office, 376 CD
FREE SPEECH
Advertisements, 113-121
JUDICIAL CONDUCT
Generally, 375—404 CD
ABA Code, 64, 376
Judges and judicial candidates, 391-396
FRIVOLOUS CLAIMS
JURY O
Personal contacts with jurors, 246, 252-254
Generally, 101-103
FUTURE CRIMES
LAW FIRMS O
Breakups, 356-357
Confidential information, 214—216 Discipline, 357—358
Size and billable hours, 352-353
O
GENDER BIAS
Generally, 275-276, 277 LAW SCHOOLS
Accreditation. American Bar Association,
CD
GOOD MORAL CHARACTER
Generally, 34—45 61
LAW STUDENT DIVISION
CD
HOT LINES
Ethics hot lines, 65 American Bar Association, 61
CD
 Index 431
4WYER-CLIENT RELATIONSHIP MULTIPLE CLIENTS
Attorn ey-Client Relationship, generally, Conflict of interest, 340-342
Q2 this index Dangers of joint representation, 340-342
Former client confidences, 325-330
LAY PERSONS
Q}winess relations with clients, 306-310 NATIONAL BAR ASSOCIATION
Generally, 60
LEGAL OUTSOURCING
Q^snerally, 355-356 NATIONAL LAWYERS GUILD
Generally, 60
LETTERHEADS
Q^Jvertisements, traditional view, 111 NEGLIGENCE
Legal malpractice, 179-183
LIABILITY
Q2 gal malpractice, 178-185 NEWSPAPERS
LISTS Advertisements, generally, this index
C2w lists, advertisements, traditional view, OATHS AND AFFIRMATIONS
110 Attorneys, 78-79
C>ans from client to lawyer OFFENSES
Conflict of interest, 306-310 Crimes and Offenses, generally, this index
OANS to clients from lawyer ORGANIZATION AS CLIENT
Generally, 163-164 Generally, 304-305
^tigation expenses, 163-164
OUTSOURCING
LOCAL BAR ASSOCIATIONS Generally, 355-356
^nerally, 63
PARTNERSHIPS
malpractice Legal malpractice, liability, 184-185
f*-’tual cause, negligence, 182
damages, 183 PATENT ATTORNEYS
Defenses, 183-184 Advertisements, traditional view. 111
("Zcipline, generally, this index PERJURY
Duty of care, 179-181 Generally, 233-239
J-*gal malpractice, 178-183
v , oxi mate cause, negligence, 182-183 PREJUDICE
Vicarious liability, 184-185 See Bias, this index
Calpractice insurance PRETRIAL PUBLICITY
Generally, 185-187 Fairness in litigation, 255-257
/"“'mparison shopping, 185
x/uty to defend, 186 PRIVILEGED OR CONFIDENTIAL
Lawyer disclosure to clients regarding INFORMATION
V_ J malpractice insurance, 187 Confidential Information, generally, this
Types of coverage, 185-187 index
Csappropriating client PRO BONO SERVICE
FUNDS Generally, 79-93
’;ent security funds, 167
C uent trust accounts, 164-167
PRO HACVICE
Generally, 47-59
r^SCONDUCT PROCEEDINGS
Virility in the courtroom, 273-294 Actions and Proceedings, generally, this
Discipline, generally, this index index
(2 iges, 375-404
PROFESSIONAL CARDS
MISREPRESENTATION Advertisements, traditional view, 110-111
fierally, 227-232 Solicitation, 109
MULTI-DISCIPLINARY PRACTICE PROFESSIONAL CORPORATIONS
>ierally, 190-193 Legal malpractice, liability, 184—185
MULTIJURISDICTIONAL PRACTICE PROFESSIONAL RESPONSIBILITY
Zvherally, 190 ABA Model Code, 63-64
ABA Model Rules, 64
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 o
432 Index
o
PROSECUTING ATTORNEYS SECRECY O
Discretion in bringing criminal charges, Confidential Information, generally, this
261
Duty to disclose evidence, 262
index O
SELF-DEFENSE
PROSPECTIVE
Generally, 77-78
CLIENTS Confidential information, 216 O
SELF-REGULATION
PROXIMATE CAUSE
Legal malpractice, negligence, 182-183
Of the legal profession, 4—19 O
SEXUAL ORIENTATION BIAS
PUBLIC STATEMENTS ABOUT
PENDING CASE
Generally, 279-281 O
SIGNS
Generally, 255—257
PUNISHMENT
Advertisements, traditional view, 110 o
SLIDING FEES
Discipline, generally, this index
Generally, 163 CD
QUANTUM MERUIT
Discharge of attorney, 94-98 SOCIAL MEDIA
Advertising, 132-133 O
RACIAL/ETHNIC BIAS
SOCIETIES AND ASSOCIATIONS
Generally, 276, 277-279, 289-292
Associations and Societies, generally, this CD
RECIPROCITY index
Admission to practice, 34
SOLICITATION CD
RECORDS Generally, 112. 122—123
Client money or property, 167 See also Advertisements, generally,
this index O
RECUSAL ABA Model Rules, 113
Generally, 396-404 Brochures, 109, 135—136
Defined, 112
CD
REMOVAL FROM OFFICE
Judges, 376 Direct mail, targeted, 126-132
In-person solicitation, 122—123 CD
REPORTS IUD litigation, 126
Client trust accounts, 167 Non-profit solicitation, 123-124 O
REPRIMAND SPECIALIZED PRACTICE AREAS
Disciplinary proceedings, 65 Generally, 349-374
In-house counsel, 352
CD
RESIDENCE Large scale firms, 352-353
Admission to practice, 33-34
STATE BAR ASSOCIATIONS
O
RESPONDEAT SUPERIOR Generally, 62
Legal malpractice, 184-185
STATES
O
RETAINERS Admission to practice, 33-35
Generally, 166-167
STATUTES
O
RULES OF COURT
Guidance on legal ethics, 63
Guidance on legal ethics, 63
SUBSTITUTION OF ATTORNEYS
O
RULES OF PROFESSIONAL
CONDUCT
ABA Model Rules, 64
Generally, 93-94, 98-101
SUSPENSION
O
SALARIES AND COMPENSATION
Attorney Fees, generally, this index
Disciplinary proceedings, 66
TARGETED MAILINGS
O
SANCTIONS
Discipline, generally, this index
Generally, 126-132
O
TESTIMONY
For frivolous claim, 101—103 Perjury, generally, this index O
SARBANES-OXLEY ACT THIRD PARTY NEUTRAL
Generally, 296 Generally, 368-372 CD
SCREENING LAWYERS TRADE NAMES
Imputed disqualification, 343-344 Firm names, 133-134,136-137 O
O
O
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INDEX
o
\-RUSTS AND TRUSTEES
.-Client trust accounts, 164-167
UNCONSCIOUS BIAS
.Discrimination, 283-288
^UNITED STATES SUPREME COURT
^dmission to practice, 46
\_JCusal of U.S. Supreme Court Justices,
396-404
(Unprofessional conduct
Discipline, generally, this index
(.CARIOUS LIABILITY
Legal malpractice, 184-185
C.Withdrawal of counsel
Generally, 98-101
C.ITNESSES
Coaching of, pretrial preparation, 249-252
f iminal defense lawyers, professional
responsibility, 262-263
-Eyewitness, prosecuting attorney, duty to
(,_J disclose, 262
Perjury, generally, this index
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