PROFESSIONAL RESPONSIBILITY OUTLINE

I. INTRODUCTION AND CHAPTER 1: REGULATION OF LAWYERS

a. Rule 8.1
b. Restatement 1
c. Restatement 2
d. Rule 8.4
e. Restatement 5
f. Rule 5.2 Notes:
i. A subordinate lawyer does not violate the Rules of Professional Conduct if
that lawyer acts in accordance with a supervisory lawyer’s reasonable
resolution of an arguable question of professional duty. Every
organization has a hierarchical structure.
g. Rule 8.3 Notes:
i. duty to report professional report that raises a substantial question about a
lawyer’s honesty, trustworthiness, or fitness. A lawyer does not have to
report everything, only the questions that deal with a lawyer’s fitness.
This is an objective standard.
ii. Just because somebody is engaged in some misconduct, the duty to report
is only triggered by something that reflects substantially on a lawyer’s
fitness as a lawyer (trustworthiness and honesty).
iii. Actual Knowledge: Knowingly denotes actual knowledge of the fact in
question. A person’s knowledge may be inferred from circumstances.
This is a subjective standard. If the signs are so overwhelming that a
reasonable lawyer should have known, then that lawyer is not off the
hook.
iv. Technically a subjective standard, but that it is a strong objective setting.
If the signs are all there, then the person needs to report it.
h. Restatement 11
i. Restatement 12
j. Rule 1.1 Notes:
i. It is very unlikely that a complaint to the disciplinary system will provide
a sanction. A lawyer is usually not disbarred for going to hearing and
giving incompetent representation.
k. Rule 1.2(c) Notes:
i. A lawyer may limit the scope of the representation if the limitation is
reasonable under the circumstances and the client gives informed consent.
This rule is designed to assist a firm who has different amount lawyers
who representation only part of the firm’s legal matters.
l. Rule 5.1 Notes:
i. a lawyer cannot avoid responsibility for violation of an ethical rule by
ordering another lawyer to do the prohibited act. The supervisor needs to
have actual knowledge of the misconduct. Usually, a supervising lawyer
is not held responsible just for the misconduct of a lower lawyer. HE
NEEDS TO ORDER OR HAVE KNOWLEDGE OF THE CONDUCT
TO BE HELD RESPONSIBLE!

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 m. Rule 1.6 Notes:
i. Reporting Under 1.6: A lawyer is not required to report information
covered by Rule 1.6 and information gained by a lawyer during
assistance programs.
ii. Some people might argue that everything is covered by client
confidentiality by reading Rule 1.6 very broadly. However, this is too
rigid of a reading of 1.6 because it would protect someone from ever
reporting anything about any lawyer.
iii. The question is: Is there anything that reporting would become
problematic for the client?

BAR ADMISSION PROCESS

o Requirement of good moral character and fitness. Is this the kind of person that is going
to be honest with clients and courts or are they not to be trusted? This is a pretty vague
and subjective test. Some people get second chances.
o Mishandling client funds is a bright-line, wrong rule.
o When people get in trouble with the bar admission, it’s not the original offense
but the cover-up. A person needs to be scrupulously honest on the bar exam.
o Another way that people can get in trouble is inconsistencies between the law
school application and the bar examination.

Problem 1.1: Pot (Moral and Fitness Inquiry)

o What about the willingness to break a law and do illegal drugs? What are they willing to
do when practicing law?
o A question in doubt should be resolved in favor of disclosing the information rather than
hiding it.
o Underlying Principle: There is a need for lawyers to answer questions honestly.
Casting such a wide net on the bar admission explanation allows them to see if anyone is
willing to lie on the application. If they are lying on the application, it is a hint that they
might lie as lawyers in the future.

Notes on Rose Gower (Mental Health)

o Facts: Runs into broad question about mental health which required her to be
forthcoming about depression in high school.
o Is there need to pry this in-depth? It seems that the Committee goes a little too far
when asking about her medications and asks to speak to her doctors.
o This story is discouraging to law students to seek mental health while in school. If we
seek mental health while in law school, will that come back later to hurt us when
applying on the bar exam.
o What Should they Have done differently? The question should have been worded
differently, stopped the investigation after she wrote a letter, decide what questions are
even relevant to ask, etc.

Notes on In re Mustafa (Academic Dishonesty)

o Facts: one of the top students in UCLA takes money out of the moot court funds. Law
School puts a private letter of censure in his file. The bar committee recommends

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 admission in DC because of his straightforwardness. The Court then denies admission
because it raises real doubts about his ability to practice law. What this guy did was one
of the most common things (borrowing from trust funds) that lawyers are disbarred for.
California decided to admit him anyway, but he then started stealing money from his
retainer funds. He was later disbarred.

Problem 1-2; The Doctored Resume

o How Severe a Sanction for doctoring a resume? Letter on her record, resubmit
corrected essay, suspension, mental ethics training, etc.
o If she’s willing to doctor her resume, she might be willing to lie on paperwork to the
Court.

DISCIPLINED AS A LAWYER
o The Disciplinary system is fairly limited in controlling behavior. Not many lawyers are
disciplined or disbarred for their misconduct.
o Why? There are not enough disciplinary officers to research complaints. This is
because the lawyers themselves are paying for the services through bar dues.
o The Disciplinary Committee rarely touches fee disputes in incompetence of lawyers.
o The Disciplinary system has a large amount of discretion in choosing which complaints
to follow-up on.
o Solo practitioners are disciplined more than lawyers in large firms.
o Why? No system of checks from the larger firms, solo practitioners have more
power over the bills, etc., have too many cases so that they develop careless
problems, less malpractice insurance than larger firms, large firms have an
internal ethics committee to check problems before it gets to the Disciplinary
Committee, less influence on the State bar and less ability to fight back.
o Minorities are disciplined more than others.

In re Peters: groping Dean. Law school professors can be disciplined as well for misconduct.
o A lawyer can be disciplined for actions outside of the practice of law even if that person
is not criminally charged (ie criminal actions, sexual harassment, etc.). This symbolically
shows that lawyers are not supposed to be doing this thing.

REPORTING MISCONDUCT BY OTHER LAWYERS

o The legal profession is largely self-regulating. Therefore, lawyers must police
themselves and other lawyers in the profession. However, some might argue that lawyers
are not good at turning in other lawyers.

Notes on Kelly v. Hunton & Williams

o Rule: Most lawyers are employees-at-will. They have an implied contract with their
employers that they will not be fired for reporting the misconduct of another lawyer. If
the person is fired because of that, the employers have breached the implied contract.
There is a legal duty to report. If a law firm retaliates against the lawyer for doing what
the profession requires it to do, then they have a right of action for wrongful discharge.

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II. CHAPTER 2: THE DUTY TO PROTECT CLIENT CONFIDENCES
a. Rule 1.6 General Notes: (A lawyer may reveal information relating the
representation of a client. It is not a requirement to disclose this information. An
attorney can use his/her discretion in revealing this information)
i. No matter where a lawyer is (restaurant, court, beach, etc.), that lawyer is
not supposed to disclose any client information. However, if you are
hauled into court, the court might require you to answer the question
involuntarily.
ii. A lawyer shall not reveal information relating to the representation of a
client unless the client gives informed consent, the disclosure is impliedly
authorized in order to carry out the representation, or the disclosure is
permitted by paragraph (b). (KEEP YOUR MOUTH SHUT!)
iii. A lawyer may reveal information to the extent the lawyer reasonably
believes necessary under the EXCEPTIONS TO CONFIDENTIALITY.
iv. ***The rules require a lawyer to keep information about past crimes by
clients confidential.
v. How do you balance shop-talk with the duty of confidentiality? A person
can say that she is working on a police brutality case. However, most of
the details that she adds in the hypothetical are problematic and breach
confidentiality.
vi. Trustworthiness of Person Telling: It is totally irrelevant in how
trustworthy the person is. You are not allowed to tell the person
something if you make him promise that he won’t tell anyone else about
the information.
vii. There is a legal circle of trust in which you can discuss a case with any
lawyer, clerk, paralegal, etc. You can be completely forthcoming with
these people. If you have a friend in the legal profession, you can still
discuss client-confidential matters with him. However, if these lawyers
are in a public place, they need to be very careful of who can hear them.
This might also become a problem when several law firms are in one
building. Talking in one of these situations could result in breaching
client-attorney privilege.
viii. Implied Authorization Under 1.6(a): This means that the attorney can
disclose information if it will help in the representation of the client. A
person wants to be more safe than sorry. A lawyer should most likely
consult the client before using any information to help him in his case.
Implied authorization deals when a lawyer asks himself if the client would
be okay with this, the answer is so obvious.
b. Rule 1.6(b)(6) Notes:
i. Complying with other laws: One of the exceptions in Rule 1.6(b)(6), an
attorney may disclose information to comply with other law or a court
order. AN ATTORNEY NEEDS TO WEIGH CONFIDENTIALITY vs.
THE IMPORTANCE OF THE LAW! An attorney should make a case-
by-case judgment in what is more important –disclosure or client-
confidentiality.

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 o The confidentiality rule says that you do not have to report, you are
permitted to report.
ii. Ultimately, Rule 1.6(b)(6) can be looked at in two ways:
o Balancing the law and confidentiality, or
o Disclosure is a last resort and an attorney has to act zealously
to protect confidentiality until ordered to disclose.
c. Rule 1.6(b)(2) and (3) Notes:
i. The purpose of revealing confidences is to prevent the criminal or
fraudulent act or to prevent, mitigate, or rectify the harm resulting from
the act(s).
ii. ***A lawyer is allowed to reveal such information, however, only if
the lawyer’s services were used in the perpetration of the criminal or
fraudulent act. This is different than in substantial harm or death
when the lawyer may reveal confidences.
o Why is the rule written this way: Fraud can be working evils on
people’s future. Without lawyer exceptions, lawyers have no way
to extricate themselves from civil liability. Revealing fraud is
sometimes necessary to relieve the lawyer of civil liability.
d. Restatement 59 Notes:
i. Confidentiality information is stuff that a person can reasonably figure out
who the client is. (This is the general notion of client confidentiality. If
you can say something that will not allow another person to connect the
information to a client, then it is probably alright to talk about it).
e. Restatement 60
f. Model Code DR 4-101
g. Restatement 63 Notes:
i. Someone could read the rule that where there is a confidentiality law and a
reporting law, and there is an exception, the job as a lawyer is to assert
privilege until the law makes you tell where the bodies are.
h. Restatement 66
i. Rule 1.0(f)
j. Rule 1.2(d) Notes:
i. prohibits lawyers from assisting clients in criminal or fraudulent behavior.
k. Rule 1.16(a) Notes:
i. Situations when the lawyer is required to withdraw from information.
l. Rule 1.16(b) Notes:
i. Situations when the lawyer CAN withdraw from the information. A
lawyer may withdraw from representing a lawyer when the client insists
upon taking action that the lawyer considers repugnant or with which the
lawyer has fundamental disagreements.
o When the lawyer is at the point where the lawyer deeply believes
that the client’s course of action is reprehensible, although legal,
the lawyer can withdraw representation.
o The attorney can use this as some leverage. However, this does
not give the lawyer right to give the client an ultimatum that he

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 either agrees with the lawyer or the lawyer is no longer going to
represent the client.
m. Rule 3.3 Notes:
i. When a lawyer makes representations to the court, they better be truthful.
When in testimony the Court, the lawyer cannot knowingly allow his
client to lie on the stand.
n. Rule 4.1 Notes:
i. Rule 4.1(a): In the course of representing a client a lawyer shall not
knowingly make a false statement of material fact or law to a third person;
ii. Rule 4.1(b): In the course of representing a client a lawyer shall not
knowingly…fail to disclose a material fact when disclosure is necessary to
avoid assisting a criminal or fraudulent act, unless disclosure is prohibited
by Rule 1.6.
o Translation: In any situation in which a lawyer’s failure to reveal
would constitute “assisting a criminal or fraudulent act,” Rule 4.1
now requires a lawyer to reveal the information.
o. Rule 8.4(c)
p. Rule 2.1 Notes:
i. In representing a client, a lawyer shall exercise independent professional
judgment and render candid advice. In rendering advice, a lawyer may
refer not only to law but to other considerations such as moral, economic,
social and political factors that may be relevant to the client’s situation.
o Lawyers have a role to tell the client beyond the legal situation
even when this is not what the client wants to hear.
q. Rule 1.8(b) Notes:
i. A lawyer shall not use information relating to representation of a client to
the disadvantage of the client unless the client gives informed consent,
except as permitted or required by these Rules.
ii. Problem 2-8: An Investment Project
o Are you permitted to buy the parcel of land if your client decided
not to buy it? Yes. There is no conflict of interest because the
lawyer is not using the information to the disadvantage of the
client.
o Does it make a difference if the client might buy it in the future?
Yes. If the client hasn’t decided yet, then the lawyer cannot use
that information to buy a parcel of land out from under him
because this is a conflict of interest.
r. Restatement 64
s. Restatement 62
t. Restatement 65
u. Restatement 67

Notes on Spaulding v. Zimmerman (IMPORTANT CASE!)

o Facts: Settlement is approved by the court without having any idea that Spaulding has
an aorta aneurysm. The trial court vacated the judgment because the settlement did not

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 reflect that the aneurysm was there. The defense lawyers kept quiet because they didn’t
want to pay the larger settlement if found out that there was an aorta aneurysm.
o Rule 1.6(b)(1): Under the new rules, the lawyers would have the option to disclose this
information about the aorta aneurysm. They are not required to disclose, but they could
have disclosed the information if they wanted to.
o What do you do next after finding about the aneurysm?
o Discuss with the client the fact that the plaintiff has a deadly aneurysm and see if
he wants to disclose the information. Make sure to tell him the legal issues. Then
discuss the moral issues of not disclosing the information. The client might want
the lawyer to disclose the information.
o The defense attorneys probably talked to the insurance company, which helped
them in making the decision not to disclose. If the lawyers disclosed, it was
throwing away the insurance money. The insurance company might be regarded
as their real client because they have future business with the insurance company.
The lawyers might think that the insurance company is the client rather than the
Zimmermans. LAWYERS MUST REMEMBER THAT THE ZIMMERMANS
AND NOT THE INSURANCE COMPANIES ARE THEIR REAL CLIENTS!
o Minor Status: The Court vacates the settlement because all lawyers were required to
disclose settlement information to the Court because Spaulding was a minor. Attorneys
were not required to disclose to other parties, only to the Court. The Court needs to
approve the settlement. The Court has the responsibility to make sure that the settlement
is in the best interest of the minors and not the person representing him or the attorneys.
Without the Court having all of the information, then it cannot make the decision in the
best interest of the child.
o Had Spaulding been of age, the settlement would not have been vacated. He
could have sued his own lawyer for malpractice.
o UNDER RULE 3.3, LAWYERS NEED TO BE FORTHCOMING WITH THE
COURT THAN WITH OTHER PARTIES! PRIVILEGED HONESTY TO
COURTS MORE THAN OTHER ATTORNEYS!

Problem 2-6: Anna, Scene 3

o He cannot disclose under Rule 1.6(b) because there is no significant chance of substantial
harm or imminent death. There is limited data that shows that there were deformities.
o The lawyer might want to take the non-lawyer approach, “Caffeine is bad for the baby,
shouldn’t be drinking soda, etc.”
o The law is very clear in this situation –DO NOT DISCLOSE! A lawyer needs to
seriously take that into account when making their decision. CANNOT EVEN
DISCLOSE TO A FRIEND.

CLIENT FRAUDS AND CRIMES THAT CAUSE FINANCIAL HARM

Problem 2.7: Reese’s Leases

o A small law firm should not only depend on one client. It is risky when the vast majority
of business comes from one source.
o By sticking around, the lawyer opens himself up to Civil Liability claims.

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 o The Real Decision: Because the documents are still on file, merely staying on board
could be construed as assisting the client in fraud and that would make it against a
lawyer’s ethics.
o AT THE BARE MINIMUM THE LAWYER SHOULD GET OUT OF THE
REPRESENTATION! THIS MIGHT DEFEAT YOUR FIRM. HOWEVER, EVEN
STAYING ON BOARD CAN BE CONSTRUED AS ASSISTING CLIENT FRAUD
EVEN IF YOU DID NOT KNOW THE FRAUD BEFORE THAT POINT!
o Is it enough to just get out? NO!
o Disclosure is definitely permitted under Rule 1.6(b)(2)(3). T
o Rule 4.1(b) REQUIRES the lawyer to disclose the information.
 There are situations that withdrawing and keeping the mouth shut won’t
count as assisting client fraud. However, there are other situations in
which keeping your mouth shut and just withdrawing will count as
assisting client fraud.
 If disclosure is permitted under Rule 1.6(b)(2)(3) and is also necessary
under 4.1(b) so as not to assist the fraud, hen the lawyer is required to
disclose. Even though 1.6(b) is permissive language, there are some
interactions where disclosure is required. When that happens, it happens
because the substantive law. Substantive law might say that keeping your
mouth shut is assisting fraud.
o Noisy Withdrawal: withdraw from representing the client and then call the entity
relying on the document and say that you disaffirm the document. In this
situation, you are not revealing the fraud, but are raising the red flag that
something is wrong with the documents.

III. CHAPTER 3: THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK

PRODUCT DOCTRINE
a. Restatement 68
b. Restatement 69
c. Restatement 70
d. Restatement 71
e. Restatement 72
f. Restatement 73
g. Restatement 74
h. Restatement 75
i. Restatement 76
j. Restatement 77
k. Restatement 78
l. Restatement 79
m. Restatement 80
n. Restatement 82
o. Restatement 83
p. Restatement 86
q. Restatement 87
r. Restatement 88
s. Restatement 89

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 t. Restatement 90
u. Restatement 91
v. Restatement 92
w. Restatement 93
x. Rule 1.13 Notes:
i. A lawyer has a legal and ethical obligation to tell the employee that he is
not representing the employee, but that he is representing the corporation.
y. Rule 4.3 Notes:
i. An attorney is not allowed to get information from a person by
misrepresenting himself as that person’s lawyer. The lawyer must be
honest that he is not representing the person.
ii. **Sometimes a client/attorney relationship can be formed by not
clarifying the relationship during a conversation. If you have done
this, that person becomes a client and then can waive the privilege.
The lawyer now may have a conflict of interest and can no longer
represent the company anymore.

ATTORNEY-CLIENT PRIVILEGE: not a part of the ethics rules, even though it falls under
the duty of confidentiality. Attorney-client privilege is a subset of the duty of the confidentiality.
Confidentiality covers all information relating to the representation that a lawyer obtains.
Privilege covers only part of that information which involves client-attorney communication in
which the lawyer is seeking legal advice.
o Helps lawyers and clients from the prospect that an adversary might call a lawyer as a
witness against the lawyer’s own client. Under Rule 1.6(b)(6), a judge could issue an
order to have the lawyer testify against his own client. PRIVILEGE does not allow this
to happen.
o Interviewing third-party witnesses is protected by confidentiality, but not protected by an
attorney-client privilege because it is not communication specifically between the client
and the attorney.
o Policy Reasons: Even if certain kinds of information would be useful in getting to the
truth, there are other policy reasons for that information not being used in court. If we
believe in an adversary system, a client cannot be completely honest with his attorney if
he thinks that the information will be released.
o Privileged Persons: Communications with these agents of a lawyer are privileged.
Interpreters, psychologists, guardians, etc. are privileged.
o If a lawyer allows a random third-party to be present during a confidential
communication, because of the person’s presence, it could later be found to
constitute a waiver of privilege.
o Crime/Fraud Exception to the Attorney-Client Privilege: Even if a lawyer-client
conversation satisfies all the criteria above for privilege, no privilege attaches if the client
consults a lawyer for assistance in committing a crime or fraud. Likewise, there is no
privilege for a conversation if the client later uses the lawyer’s advice or services to
commit a crime or a fraud.

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WORK PRODUCT DOCTRINE: notes and materials prepared by a lawyer in preparation for
litigation. Some of this material is protected by attorney-client privilege, but other materials will
not be.
o Communication vs. Underlying Facts Privilege protects communication. It does not
protect underlying facts.
o If the plaintiff’s lawyer asks, “didn’t you tell the lawyer that you ran the red
light,” this information is protected. However, if the plaintiff’s lawyer asks, “did
you run the red light,” this information is not protected because it is a fact.
o If a lawyer does not object immediately that attorney-client privilege protects the
communication, then the communication is considered waived.
o Client Identity: ordinarily, client identity is not considered a privilege. In
criminal cases, courts are more likely to say that information such as “I ran over
the lady on 5th street,” is a protected privilege. Nevertheless, this is an unsettled
area of the law. Be weary of the idea that client identity is privileged because
generally it is not.
o The work product doctrine applies to documents that a lawyer prepares or collects
while working on pending litigation or on a matter in which the lawyer knows that
a lawsuit is about to be filed. For example, the doctrine usually protects
statements that a lawyer obtains from witnesses.
o Protection of work product is not absolute. A judge can order disclosure of
written or oral information otherwise protected by this doctrine if the opposing
party can show “substantial need” for the material and that the opposing party is
“unable without undue hardship to obtain the substantial equivalent of the
material by other means.
o The doctrine gives stronger protection to work product that reveals the lawyer’s
thoughts, strategies, or mental impressions than it does ordinary work product.
o Ordinary work product is that which is compiled by the lawyer but does not
contain the lawyer’s mental impressions.

Problem 3-1: The Clandestine Videotape

1. The videotape is not a communication. The suggestion to make the videotape is
privileged, but not the actual videotape.
o What about if someone asked the attorneys if they knew where the dead bodies
were? The Court might hold that this is privileged because knowing where the
bodies are is the fruit of a communication with the client.
2. The videotape might be a communication. However, the PI is not communicating
directly with the client. The PI is directly communicating with the lawyer; however, this
is no communication between the PI and the client.
o You can have overlapping arguments for work product and privilege. If you have
the choice between privilege and work product, you want to assert privilege
because the defense is more absolute.

Notes on Upjohn Co. v. United States (Attorney-Client Privilege in

Corporations/Organizations)
o Two Approaches Before the Upjohn Case

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 o Control Group Test: upper level management group received attorney-client
privilege, but none of the other employees.
o Subject-Matter Test: employees that talk to lawyers about the subject-matter
receive attorney-client privilege.
o NEW RULE: adopts the subject-matter test for attorney-client privilege in
corporations/organizations. Why?
o It will frequently be employees beyond the control group who will possess the
information needed by the corporation’s lawyers.
o The control group test is also unpredictable because people have different ideas of
what is a “control group.”
o The Privilege for an Organizational Client
o Restatement 73, Subsection 4: the privilege is not waived if the attorney shares
the information that it receives from employees with the control group. However,
this privilege will be waived if they share this information with other agents
unless the agent “reasonably needs to know of the communication in order to act
for the organization.”
o Why some circuits still go with the control-group test?
o Using the Subject-matter test allows corporations to create a “zone of silence,” in
which everything is protected by attorney-client privilege.
o Should employees keep quiet even with the subject-matter test?
o The subject-matter test gives the employees a false sense of security. The
attorney is representing the corporation, NOT THE INDIVIDUAL EMPLOYEE.
o It is entirely possible than an unrepresented employee involved in questionable
conduct may end up as a corporate scapegoat, particularly if the employee
essentially confesses to engaging in some form of misconduct while a more
culpable, but more legally sophisticated superior, manages to remain silent.

Example Top of pg. 188

o The lawyer was privileged under the confidentiality rule to disclose the arson information
because there was a reasonable certainty of substantial harm or death from the fire.
o Even though the lawyer has “ratted” on the client, he still has an obligation to assert the
attorney-client privilege in court.
o Even an initial consultation is privileged.
o Are there reasons to challenge the applicability of the privilege?
o Waiver through disclosure to the police.
 Counterargument: Restatement Section 79, The attorney-client privilege
can be expressly waived by a client. It can also be waived by the client’s
lawyer if the waiver has been authorized by the client. TAYLOR FINDS
NO WAIVER.
o Crime/Fraud Exception
 Counterargument: There was no privilege in the first place because the
client wasn’t seeking legal advice. Furthermore, the client has not used
the lawyer’s advice or services to commit a crime or a fraud.
o Client is not asking for legal advice. The client is just ranting. Because he is not
getting counsel from the attorney, there is no privilege.

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Problem 3-4: The Dead Murderer
o Privilege Analysis: The privilege is absolute. Only the client can waive the privilege,
not the attorney. It doesn’t matter if the person is dead and was on the brink of
disclosing. In the real case, the attorney was not authorized to waive the attorney-client
privilege even if the client was dead.
o Swidler Case: The prevailing caselaw requires that the attorney-client privilege
prevent disclosure even after death. EVEN AFTER DEATH, THE ATTORNEY-
CLIENT PRIVILEGE IS STILL ABSOLUTE.
o The Restatement thinks that there should be some sort of balancing test, and the
privilege should not be absolute even after death.

WAIVER
o The attorney-client privilege can be expressly waived by a client. It can also be waived
by the client’s lawyer if the waiver has been authorized by the client.
o Can be waived if the lawyer does not object during trial.
o Common representation creates client-attorney privilege between all of the parties.
o A lawyer may reveal privileges for self-defense against malpractice claims.

IV. RELATIONSHIPS BETWEEN LAWYERS AND CLIENTS

a. Rule 1.1
b. Rule 1.3 Notes:
i. A lawyer shall act with reasonable diligence and promptness in
representing a client.
ii. The Model Code used to say that a lawyer should represent a lawyer
“zealously within the bounds of law,” but this encouraged unethical
behavior. The Model Rules replaced the requirement with one of
“diligence” and demoted the language of zeal to the comments.
c. Rule 1.4
d. Restatement 14 Notes:
i. A person can become a client of a lawyer without signing a written
agreement. If a person seeks legal advice or legal services from a lawyer,
and the lawyer gives legal advice or provides legal services, the person
may thereby become a client. Exchanging of money or contracts is not
necessary for a legal malpractice suit.
ii. If it is reasonable that a person will rely on the attorney’s information,
then there might be a duty between attorney-client.
iii. The burden is on the attorney to prove that there was no relationship or
legal advice.
e. Restatement 15
f. Restatement 16
g. Restatement 26
h. Restatement 27
i. Rule 1.0(d)
j. Rule 1.2
k. Rule 1.16(b)

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l. Rule 7.3 Notes:
i. A lawyer shall not by in-person, live telephone or real-time electronic
contact solicit professional employment from a prospective client when a
significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain,
unless…
m. Rule 8.4(c) Notes:
i. prohibits a lawyer from engaging “in conduct involving dishonesty, fraud,
deceit or misrepresentation.”
ii. The ethics rules explicitly direct lawyers not to lie to tribunals or to
persons other than clients. The portion of the rules dealing with the
“Client-Lawyer Relationship” does not explicitly require lawyers to be
honest with their clients.
n. Restatement 20
o. Restatement 21 Notes:
i. Except for decisions reserved for clients and in the absence of an
agreement on these matters, a lawyer may take “any lawful measure
within the scope of representation that is reasonably calculated to advance
a client’s objective.” A lawyer usually describes the tactics of fulfilling
the objectives, while the client usually has the choice to choose his
objectives.
p. Restatement 22
q. Restatement 23
r. Rule 1.14 Notes:
i. Section (a) of the Rule encourages lawyers to maintain “normal” lawyer-
client relations with clients who may have some degree of diminished
capacity.
ii. Section (b) acknowledges that in some situations, a lawyer needs the
flexibility to assume a more paternalistic role to protect the client from
some harm.
iii. Comment 6 suggests that a lawyer can and should make some assessment
of a client’s mental capacity. A lawyer should try to talk to family
members to make an assessment.
iv. Representing Children: applies the same standards to minors that it
applies to adults with mental impairments. This means that lawyers
should maintain normal lawyer-client relationships with minors to the
extent possible.
o ABA proposal: If you are representing a child, you are the child’s
advocate. You need to represent the child the way that the child
wants to be represented, despite what the lawyer thinks the correct
standard is.
s. Rule 1.16 Notes:
i. Most lawyer-client relationships end when all the work on the relevant
matter has been completed. When the work is finished, the lawyer must
return to the client any papers and property which the client is entitled and
must return any unearned payment that the client may have made. The

13
 relationship is not entirely over at this point because the lawyer has a duty
to protect client confidences, a duty that continues indefinitely.

ii. Grounds for Termination before the work is completed: distinguishes

between situations where early termination is mandatory and those where
it is permissive.
o A lawyer must withdraw if the client fires the lawyer.
o A client always has the right to change lawyers except that a client
for whom a lawyer has been appointed may not change lawyers
without the court’s permission.
o A court may refuse to permit a substitution that would unduly
delay a case.
o A lawyer also must withdraw if the lawyer’s illness or loss of
capacity would materially impair the representation.
o A lawyer also must withdraw if representation will require the
lawyer to violate the law, including the state’s rules of professional
conduct.
o If the client has already used the lawyer’s services or commit a
crime or fraud but continued representation will not result in a new
or continuing crime or fraud, the lawyer may withdraw. Similarly,
if the client persists in a course of action that the lawyer reasonably
believes is a crime or fraud, the lawyer may withdraw.
o (b)(1): the lawyer may withdraw if it is possible to do so “without
material adverse effect on the interests of the client.” If the client
is indigent and the lawyer is working without a fee, the option to
withdraw depends on the availability of another lawyer to take
over.
o (c): If a lawyer has filed suit on behalf of a client or entered an
appearance in a matter in litigation, the lawyer generally cannot
withdraw from representation of the client without permission
from the court that is to hear the case.
o A lawyer may withdraw if the client doesn’t pay the lawyer’s fee,
but the lawyer must first warn the client that nonpayment will lead
to withdrawal.
o If the client doesn’t have the money to cover the fee, a lawyer
should consider reducing the fee to make the representation
affordable for a client with limited means.
o If a case turns out to impose an unreasonable financial burden on
the lawyer, the lawyer may withdraw.
o A lawyer may withdraw if the client makes continued
representation by the lawyer “unreasonably difficult.” For
example, if the client repeatedly fails to show up for schedule
meetings or hearings or if the client refuses to divulge to the
lawyer the identities of witnesses who could help the case.
o Permits withdrawal for “other good cause.”
t. Restatement 24

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 u. Restatement 46 Notes:
i. A lawyer may refuse to disclose to the client certain law-firm documents
reasonably intended only for internal review, such as a memorandum
discussing which lawyers in the firm should be assigned to a case, whether
a lawyer must withdraw because of the client’s misconduct, or the firm’s
possible malpractice liability to the client.
ii. Problem 4-9: The Candid Notes: The lawyer does not need to disclose
this information to the client. A lawyer may refuse to disclose to the client
certain law-firm documents reasonably intended only for internal review,
such a memorandum. If the law forced that this information go to the
client, then lawyers might never right anything down, and this would be
bad for the profession.
iii. Retaining Lien: If a client has not yet fully paid the lawyer’s fee, or the
fee is disputed, the lawyer may retain the documents that the lawyer
created for the client for which compensation has not been received,
unless retention would “unreasonably harm the client.”

Rule of Proving Legal Malpractice: In a legal malpractice action, four elements must be
shown: (1) that an attorney-client relationship existed; (2) that defendant acted negligently or in
breach of contract; (3) that such acts were the proximate cause of the plaintiff’s damages; (4) that
but for defendant’s conduct the plaintiffs would have been successful in the prosecution of their
medical malpractice claim.

Problem 4.1: The Chat Room (Rule 7.3)

o Facts: 1-hour legal chat online in which lawyer renders advice on legal questions.
Lawyer gives someone advice that turns out to be wrong. Is he liable for this
information?
o Is he potentially liable for malpractice? Many times a click-thru disclaimer will not be
enough to save the lawyer from liability. It is unlikely, however, that advice in a chat
room will be enough to create lawyer liability. The more that a lawyer is using the chat
room to find business makes the lawyer more liable.
o Policy Issues: Is it good that lawyers are on the Internet?
o There are all these people who need legal advice and do not seek it out because it
is expensive.
o Are we comfortable with fly-by-the-pants legal advice?
o The bar generally views legal advice as permissible. However, lawyers on the
Internet giving specific advice on specific facts become a real problem.
o A cynical view is that the bar wants to limit free access to advice. Historically
speaking, the bar has taken a dim view on this type of activity.

Three Different Ways that a Person can become an Agent of Another

o Express Authority: a client will tell a lawyer, expressly and in explicit language, to sign a
contract or to settle a case.
o Implicit Authority: may give a lawyer a general instruction that implicitly allows the
lawyer to take certain actions on the client’s behalf. Just by asking a lawyer to represent

15
 him or her in a matter, a client impliedly authorizes the lawyer to take action that is
reasonable and calculated to advance the client’s interest.
o Apparent Authority: when the client tells a third party (such as the opposing party in a
case) that the client’s lawyer has the authority to settle a claim on his behalf, the third
party may rely on the lawyer’s subsequent actions, even if the client did not actually
authorize those actions. Apparent authority also is sometimes found if a principal places
an agent in a position that causes a third person reasonably to believe that the principal
had given the agent express authority.
o In most states, the mere fact that a lawyer represents a client in litigation does not provide
apparent authority to allow the lawyer to settle a case. Retaining a lawyer may confer
apparent authority for many of the lawyer’s other actions, both in transactions and in
litigation.

Problem 4.2: The Fired Guard

o Agency is an important principle in the law. If a person’s lawyer screws up, then it is
usually the client who pays the price. Therefore, with very rare exceptions, a client is
bound by what the lawyer does or fails to do, regardless of the client’s own actions or
culpability.
o Are you going to try to settle the enforcement? This jurisdiction is one that permits
lawyers to settle litigation based on express authority but not based on implied authority.
o What are the arguments to enforce the settlement agreement?
 The client was on the telephone when the settlement was being made. It is
reasonable to think that the lawyer recognized this.
 There is enough context of her action to show that she gave her attorney
authority.
o What are the arguments to overrule the settlement?
 Since the jurisdiction does not recognize implied authority, the client
would have to be more present during the settlement. Maybe the facts
aren’t enough to show that there was express authority.
 A lawyer is probably working on contingency and is probably pressing
harder for settlement than the client. Thus, there is a conflict of interest,
creating a risk of this kind of “miscommunication” from happening.
Therefore, maybe courts should require something tangible showing
express authority from the client.
o What should the government attorney have done differently to make sure this settlement
went through?
o Put the client on speakerphone instead of having her talk privately to the lawyer.
o Have the client’s lawyer bring something to the conference showing that the
lawyer has express authority to settle the case.

Problem 4.3: The Washing Machine

 Imagine that you’re the lawyer for the buyer and you have managed to get this deal where
the payments are lower but the client has to pay more money in the long run.
 Does the lawyer have to do anything else to give competent representation?

16
 o Even if the client is happy, a lawyer has a duty to do something more by looking
at case law and finding out the client’s legal rights.
o How is the contract set up?
o What consumer laws are out there?
o Many states have a Fair Debt Collection Act which will protect the buyer form
long payments.

Competence in Criminal Trials

 6th Amendment: requires that a criminal defendant be provided with a lawyer whose
work meets at lease the minimum standard of being “effective.”
 THESE CASES ARE VERY DIFFICULT TO WIN!
 Remedy: If a client shows that his lawyer was ineffective then that client will only get a
new trial. T

Strickland v. Washington
 Client argues that he did not get effective counsel because the lawyer did not investigate
or obtain witnesses and psychiatric reports.
 Test to show that Counsel’s Assistance was Ineffective: (this test is pretty hard to meet;
failing on one prong will fail the test) This is decided on a case-by-case basis. A
convicted defendant’s claim that counsel’s assistance was so defective as to require
reversal of a conviction must show:
1. the counsel’s performance was deficient (counsel made errors so serious that he
was not functioning as guaranteed under the 6th Amendment); and
 Deference is given to the attorney’s decision.
2. the deficient performance prejudiced the defense (counsel’s errors were so serious
as to deprive the defendant of a fair trial).
 ****The defendant must show that there is a reasonable probability that,
but for the counsel’s unprofessional errors, the result of the proceeding
would have been different.
 Holding: The counsel’s conduct cannot be found unreasonable. Counsel made a
strategic choice to rely on respondent’s acceptance of responsibility for his crimes. The
decision not to seek more character or psychological evidence than was already available
was likewise reasonable. Restricting testimony on respondent’s character ensured that
contrary character and psychological evidence and respondent’s criminal history, which
counsel had successfully moved to exclude would not come in.

Problem 4.4: Lying to Clients (Rule 8.4(c))

o Exaggerating Expertise: A new lawyer could easily say that he doesn’t have a lot of
expertise in the area, but that the law firm has expertise in the matter. This will often lose
clients, however. Nevertheless, this is what a lawyer should say!!!
o Lowballing: core of lawyer-client relationship is being honest.
o “I’ve never reviewed this document.” By ignoring the document, you are furthering
the criminal act. Furthermore, by ignoring the document, you are neglecting the fact that
you are supposed to think about the good of the organization.

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Notes on Jones v. Barnes
o Facts: Client bringing an ineffective counsel complaint against his appellate attorney.
o Holding: AN ATTORNEY DOES NOT NEED TO BRING UP EVERY NON-
FRIVOLOUS CLAIM THAT THE CLIENT WANTS TO BRING UP! A lawyer needs
to make a judgment on what his strongest argument is. For the lawyer to trump the client
demand to have certain issues raised on appeal does not raise to the level of ineffective
counsel.
o Lawyers ought to defer to clients, even if they think that it will raise problems
with the appeal; however, this will not be a violation of ineffective assistance of
counsel claim.
o An attorney is likely to give more deference to a celebrity defendant. Part of that
problem is the money aspect (Martha Stewart can pay for counsel while Froggy is
only getting a court-appointed attorney).
o Reasoning: Experienced advocates have emphasized the importance of winnowing out
weaker arguments on appeal and focusing on one or a few central issues. A brief that
raises every colorable issue runs the risk of burying good arguments.
o Justice Brennan, Dissent: The attorney should always yield to the decisions of the client.
Criminal defendants do not trust lawyers and bear the brunt of the decisions.
Furthermore, lawyers and clients in criminal cases usually have competing interests
(getting the case over with faster because only getting paid a flat fee).

Problem 4-5: The Package Bomber

o Option 1: Raise a suppression defense only
o Isn’t unethical, but it isn’t the greatest idea as the defense attorney.
o Option 2: Move to suppress plus ask the judge to order psychiatric evaluation;
o Most of the commentary says that whether or not to raise the defense is a
fundamental enough decision that the client ought to make. However, many
capital defense lawyers make the opposite decision.
o Option 3: Trick the client into being examined, and then persuade the court to use this
testimony to mitigate the sentence.
o Very unethical to go behind the client’s back and deceiving the client.
o Better Answers
o Clearly tell the client the implications of the decision. If after hearing everything
that the lawyer says, the client still doesn’t want to argue mental incapacity, then
the lawyer can tell the client that he doesn’t want to argue this case this way and
withdraw from the case.
o Do what the client’s want to the best of your abilities.

Problem 4-6: Vinyl Windows (Rule 1.14):

o What Should the Lawyer Do?
o Persuade the client into filing a counterclaim. This might be a problem because
the lawyer has become the client and makes the decision for the client.
o Talk to a caregiving community to figure out if the client suffers from some sort
of dementia. The confidentiality rules implicitly allow lawyers to discuss this
with the caregiving community.

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 o File a continuance so that you can more solidly establish either a
relationship/decision with the client or appoint the client a guardian.
o You cannot act as de facto guardian; you should take yourself out of the situation.
 However, this is not a situation where a lawyer is going to get disciplined
for making the wrong decision. The lawyer has a discretion, which is not
ordinarily judged by any higher authority as long as the lawyer uses good
faith.
o What do you do after the continuance is granted?
o Guardian Ad Litem: is empowered to speak for the client (even contrary to the
client’s expressed wishes) in a particular legal matter.
 This impinges upon the right of the client to the least degree.
o Conservator: is given power to manage the financial affairs of a client, who
thereby loses the power to buy, sell, and hold property.
 It seems like a bad idea to give a neutral party (no family members or
close friends) this much power over this lady’s financial matters.
o Guardian: has even more authority. The guardian manages the client’s financial
affairs and may make medical and other personal decisions for the client, who is
thereafter the guardian’s “ward.”
 This impinges upon the client’s right in the stricter way.
o What if the Old Woman seems like she is suffering dementia? A lawyer might want to
look into getting the lady a full-fledge guardian because the person isn’t able to make
decisions that are best for her.

V. CONCURRENT CONFLICTS OF INTEREST

a. Rule 1.7:
i. Directly Adverse: means that a lawyer is acting directly against the
interests of one of his own clients.
ii. Materially Limited: even if there is no direct adversity, a conflict exists if
representation of one client would be “materially limited” by another
responsibility of the lawyer. A “mere possibility” of harm is insufficient
to present a conflict.
iii. Reasonable Belief: a lawyer must consider whether the lawyer can
“reasonably conclude that he will be able to provide competent and
diligent representation.” The inquiry is not subjective. The question is
what a reasonable lawyer would think.
o Even though the conflict is consentable, a lawyer must reasonably
believe that she can fulfill her duties to everybody.
iv. Informed consent: You need to sit down with everyone’s interests that are
reasonably at risk and really explain what could actually go wrong.
o Confidentiality and privilege still becomes a problem with
informed consent.
o Informed consent should be documented in writing.
v. Representation of Both Parties to a Transaction: an attorney is usually
allowed to do this if you provide the clients with information about the
possible downsides of the joint representation and to obtain their consent.

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 o If a lawyer undertakes joint representation of parties to a
transaction, the lawyer should not regard himself as a mere
scrivener who is simply recording their preferences.
o Comment 31 to Rule 1.7 suggests that a lawyer usually should not
keep confidences from one joint client received from the other.
o If a conflict develops that will lead to litigation, a lawyer may not
continue to represent both or all of the clients.
b. Rule 1.8(f): Representing Insurance Companies and Insured Person
i. Insurance policies usually provide that when the insured person is sued
over an event covered in the policy, the insurance company will provide
the insured person with a lawyer.
ii. The insured person is the client.
iii. Case law takes the position that a lawyer may represent both the insurer
and the insured so long as there is no conflict between the interests.
iv. A lawyer cannot tell the insurer information that it learned from the
insured, such as he was smoking in his bed when the house burned down.
Confidentiality always is owed to the insured, and not the insurance
company.
v. The law firm is often going to need to withdraw from the representation of
the insurance company if the insured tells the law firm confidential
information.
vi. “Cumis” Counsel: the insurance company must pay for a separate lawyer
for the insured if there is a conflict.
vii. ABA opinion concludes that if the insurer and the insured disagree about
whether to settle, the lawyer must withdraw from representing both of
them in that matter.
c. Rule 1.9 Notes:
i. Conflict between an obligation to a present client and an obligation to a
former client. A lawyer may proceed despite a successive conflict if the
affected client consents.
d. Rule 1.10 Notes:
i. Conflict between an obligation of one lawyer to a client and an obligation
of an affiliated lawyer. One lawyer is “infected” by a conflict because one
of his partners would face a conflict in taking on a particular client.
e. Rule 11 Notes:
i. Addresses both successive and imputed conflicts of interest for lawyers
who move between jobs in government and private sector.
f. Restatement 121
g. Restatement 122
h. Restatement 123
i. Restatement 128
j. Restatement 129
k. Restatement 130
l. Restatement 131
m. Restatement 134

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Things to Remember About Conflicts
o A conflict of interest exists if a lawyer should be worried about failing to display the kind
of loyalty or confidentiality duties that the client has the right to expect from the lawyer.
You can have a conflict of interest even if the lawyer did not give in to that temptation.
The mere fact that the temptation exists is enough to create a conflict of interest.
o Conflicts can most likely be resolved under informed consent. To resolve a concurrent
conflict under Rule 1.7, a lawyer must:
o clearly identify the client or clients;
o determine whether a conflict of interest exists;
o decide whether the representation may be undertaken despite the existence of a
conflict (i.e. whether the conflict is consentable); and
o if so, consult with the clients affected under paragraph (a) and obtain their
informed consent, confirmed in writing.

Steps of Analysis
1. Is there a conflict?
2. Do you reasonably believe that it can be consented to?
 Is continuing representation prohibited by law?
 Can you represent both sides in court?
 Can the lawyer provide competent and diligent representation to each affected
client?
 Is each client going to get the same representation as if there was no conflict?
3. Did you get informed consent?

Policies at Stake in Conflict of Interest Rules

 The rules are interested in ensuring loyalty to clients. If loyalty is not preserved, this can
affect the relationship between the lawyer and the client.
 Ensuring client confidentiality under Model Rule 1.9.
 The lawyer must still keep confidences from former clients.
 Clients should be able to choose who should represent them.
 Economic freedom of lawyers.
 Rule 1.10 says that everyone in the firm is treated as one lawyer in the firm. This
means that if another lawyer in the firm would have a conflict with the case, then
the lawyer who is actually on the case also has a conflict with the client.
 There needs to be some economic freedom for lawyers to travel to different law
firms without worrying about not being able to represent someone.
 Integrity of the judicial process. You cannot represent both parties.
 Trying to make sure that the conflict rules don’t simply become tools for strategic
manipulation.
 Example: A bank might try to give business to every law firm in the town so that
no one can sue them back without a conflict of interest. The bank then never
gives any firm in the town consent to actually sue them on these conflict issues.

Problem 5.1: The Injured Passengers, Scene 1

 Issue: Would you represent both passengers in their suit against the taxi cab?

21
  Is there a conflict of interest?
o You have differential injuries, and the lawyer is working on contingency. There
might be an obscured objection to loyalty because the lawyer might worry that the
lawyer is tempted to help the one client who can bring in more money than the
other client.
 Explain to your client that there might be this risk, but that you are not
going to act in this way.
o Know whether or not know the firm already might represent the cab company.
o What is the cab’s driver insurance policy?
 If the insurance policy is big then there probably won’t be a conflict.
 However, if the company only has a small insurance policy, then there
must not be enough money to satisfy both clients’ needs. Then the clients
are almost fighting against each other for the money. This might be a non-
consentable conflict.

Problem 5.2: I Thought you were MY Lawyer

 Problem: THERE IS DIRECT ADVERSITY BETWEEN ONE LAWYER OF THE
FIRM AND ANOTHER LAWYER OF THE FIRM!
 This is a conflict because of the loyalty issue. Even if these are unrelated matters legally,
Rule 1.7 says that you cannot be directly adverse to another client.
 These might be related matters because there is a dispute over the property in the divorce,
and the wife might be getting property from her bus settlement.
 What should you do about this problem?
o You’re going to have to drop one party.
o If you drop the husband, the husband becomes a former client. Now the husband
is afraid that the lawyer is going to use confidential information that the husband
gave to the lawyer to use against him to support the wife.
 Sometimes large firms get an advanced consent. This works with large corporations, but
probably not any other parties.
o Example: Get advanced consent from IBM that says they are allowed to take on
certain claims or not by other people against them, even though you are supposed
to be representing them against IBM.

Problem 5-4 (pg. 309): The Prisoners’ Dilemma

o Is there a conflict once the settlement is offered? Yes.
o There might be conflicting desires between the case trying to get the women out
of the mental hospital and the women who want a permanent county jail.
o Maybe the State is trying to create a conflict between the cases right before the
trial to give them advantage in the one case.
o If the groups have diametrically opposed desires about whether the settlement is a
good thing, then this creates a conflict.
o If both classes want to reject the settlement, then does this create a conflict?
 Maybe, because the lawyers are still from the same office, and the services
are imputed to the lawyers.
o Should you accept the settlement?

22
 o The lawyer needs to at least talk to the mental retardation people and the women
in jail about the settlement offer?
o If both clients are against the settlement, then do you need informed consent of the clients
still to proceed with their representation?
o There is a real risk that the law firm cannot have as good of representation of the
parties than if they were just represented by different parties. If the mental
retardation class rejects the settlement, then this creates a direct conflict. The
women jailers will need to find a new lawyer because there is a conflict in the law
firm and this could materially affect their class.
o Can you give the kind of advice on settlement that an unconflicted lawyer can?
Probably cannot. Because they both represent clients that involve the same
interest (prison building), these lawyers are going to be in conflict with giving
advice to each side.
o Holding: In the actual case, the court held that this was a non-consentable conflict
because a lawyer cannot give the same type of settlement advice that individual lawyers
can. The law firm should have been disqualified from representing the women jailers.
o Taylor thinks that this case could be found as a consentable case, as well,
depending on who is deciding it.

Taking Inconsistent Legal Positions in Litigation:

o Positional Conflict: a lawyer makes inconsistent arguments on a legal issue in different
courts at different times without running afoul of conflict rules. Whether this presents a
serious conflict of interest depends on the likelihood that one client would be materially
harmed by a lawyer’s making an argument in another case that was contrary to the
client’s interest.

Problem 5.6: My Client’s Subsidiary

o Factors Affecting whether a Related Entity is a Client
o Related Entity more likely to be a client if:
 The lawyer received confidential information from or provided advice to
the subsidiary.
 The entity was controlled and supervised by the parent organization.
 The original client could be materially harmed by the suit against the
subsidiary.
o Related Entity less likely to be a client if:
 The lawyer no longer represents the initial corporate client.
 The two entities became linked (e.g. by a merger) after the lawyer began
representation of the corporation.
• Suppose that the law firm represents Transport for sometime. On
the eve of the trial, Transport and the subsidiary merge into the
same company.
o If you withdraw from representing Hathaway, can you continue to do work for Transport
on this matter?
o Hathaway has now become a former client so now our analysis is under Rule 1.9

23
 o If you withdraw from representing Hathaway, can you continue to do work for Transport
on tax matter?
o Does this involve substantially related information? Would the lawyer, in the
course of her work in the first matter normally have learned factual information
that could be used adversely to the former client in the second? (objective
standard)
o Should the lawyer have told Transport the situation before asking for all of the facts?
o This is more honest with the client, implicitly creating informed consent.
o If you are not up front about it, then a lawyer can be conflicted immediately when
Transport starts talking about all of the horrible things that subsidiary has done.

Criminal Representations
 Joint criminal representation is usually done as a stonewalling tactic. However, the ethics
rules are completely against joint criminal representation because of problems that could
arise over settlement, etc.
 Holding in Holloway: whenever a trial court improperly requires joint representation
against the 6th Amendment, reversal is automatic.
 Holding in Cuyler: gives a little bit of a break to the defendant. Whereas in Strickland,
the defendant must show that the attorney screwed up and that screw up affected the
outcome of the case, Cuyler only forces the defendant to show that the attorney’s conduct
was influenced by existing conflicts (a non-conflicting attorney would have more
stringently cross-examined this witness, etc.).

Joint Representation: (wife/husband buying house, trust funds, etc.)

 What happens when a secret is thrown into the mix that no one is expecting?
o A lawyer should write down consent that the two clients know that whatever one
client tells the lawyer, the lawyer can then tell that information to the other client.
No information between the two clients is privileged.
o Rule 1.4 on Communication generally says that a lawyer must tell the client about
anything related to her matter.
 Florida Bar Opinion:
o Issue: The lawyer has to tell the wife information about her representation.
However, the lawyer also has a duty of confidentiality to the husband. What duty
trumps the other?
o Holding: The duty of confidentiality to the husband trumps the duty to disclose to
the wife the information. Instead, the lawyer must withdraw from both
representations.

Problem 5-10: Representing the McCarthys

o Problem: Attorney drew up wills for Husband and Wife. Attorney’s partner represents
Maureen Carr in a paternity suit against Husband. Attorney at another law firm is
representing Husband in the paternity suit.
o Can you continue to represent anyone?
o What if I dropped the McCarthys as clients and maintained the paternity suit?

24
  Under Rule 1.9 on former clients, the matter is substantially related so that
you cannot continue to represent the paternity suit.
o What if you drop the paternity suit?
 You would probably be ok in the paternity suit because another lawyer in
another firm is representing Husband in the paternity suit.
o However, what if you drop the paternity suit and you still represent husband and
wife?
 There is a confidentiality problem. Now that you have the paternity
information, this information is highly relevant to the estate planning for
the wife. You would have a duty to tell the wife about this information
under Rule 1.4. However, if you tell the wife, you are breaching a duty of
confidentiality.
 There is an agreement in this case that whatever the lawyer finds out from
the husband, the lawyer can tell the wife. However, the husband didn’t
tell the lawyer about this paternity suit. While a lawyer might be able to
disclose any information under Rule 1.6 that affects the interest of either
party, this might not be ok because of the disclosure agreement.
 The agreement doesn’t cover confidential information retrieved from
outside information, and therefore, there is still a conflict.
 A lawyer should make a strong agreement that “whatever information
comes to him about the suit will be disclosed to each party no matter
where the attorney finds out the information.”
o Can you still tell the wife after you decide to drop all of the clients?
o Can the lawyer tell the wife under Rule 1.6(2) –prevent substantial financial
injury? No. We are not “reasonably certain” that this paternity suit is going to
prevent substantial financial injury to the wife or that the lawyer’s services helped
in the financial injury.
o The New Jersey Court actually permitted the law firm to disclose because there
was no “reasonably certain” or “substantial” language in the New Jersey Rules of
Ethics.
o LAWYER SHOULD STOP REPRESENTING EVERYBODY, AND NOT TELL THE
WIFE ABOUT THE PATERNITY SUIT! LAWYER SHOULD JUST SAY THAT A
CONFLICT HAS ARISEN THAT HE CANNOT DISCLOSE AND THAT HE MUST
WITHDRAW FROM THE REPRESENTATION.

VI. CONFLICTS INVOLVING FORMER CLIENTS AND GOVERNMENT LAWYERS

a. Rule 1.9 Notes:
i. Under (b), which applies to lawyers whose former firms represented the
prior client, consent is not required unless “the lawyer had acquired
information protected by Rules 1.6 and 1.9(c).
o This is different than 1.9(a), when one asks whether the lawyer
could have acquired confidential information.
o To know if a lawyer has acquired material confidences, one must
analyze the specific facts relating to the lawyer’s access to

25
 information about the relevant matter. Comment 6 after Rule 1.9
directs analysts to use certain assumptions.
o The firm whose disqualification is sought has the burden to prove
that the lawyer who changed firms does not possess confidential
information that is material to the new matter.
b. Rule 1.10
c. Restatement 132
d. Rule 1.11 Notes:
i. Definition of Matters: the lawyer should consider the extent to which the
matters involve the same basic facts, the same or related parties, and the
time elapsed.
o If the citizen group lost the case and six months later started a
petition to achieve the same result through regulatory or
congressional action, perhaps the second round would be regarded
as the same matter.
o If five years elapse, the players change, and another initiative is
undertaken to change the rule, then the new initiative is probably
not the same matter.
ii. Definition of “personally and substantially involved”
o Personally: means directly, and includes the participation of a
subordinate when actually directed by the former Government
employee in the matter.
o Substantially: the employee’s involvement must be of significance
to the matter, or form a basis for a reasonable appearance of such
significance. It is essential that the participation be related to a
particular matter involving a particular party.
e. Rule 1.12
f. Rule 1.18 Notes:
i. Even when no client-lawyer relationship ensues, a lawyer who has had
discussions with a prospective client shall not use or reveal information
learned in a consultation.
g. Restatement 15
h. Restatement 133

Difference Between Former and Current Client

o If they are a former client, then you need a substantial relationship in the matters to create
a conflict.
o If they are a current client, then it doesn’t matter what the relationship is between the two
matters. You cannot sue a current client without informed consent.

Distinguishing present and former clients

o Standard: The client needs to believe that they are a present client. There needs to be a
reasonable belief that the client thinks the relationship is current.
o A clear statement by the lawyer or the client that ends the contract.
o Restatement says the lawyer’s representational authority can also end “because the
lawyer has completed the contemplated services.”

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 o Problem 6.1: Keeping in Touch: Former client because the services were for
only 1 day over the past five years. The “contemplated services” were finished.

Hot Potato Rule: If lawyer dumps client A so that the lawyer can do work for client B, the
lawyer’s withdrawal represents a breach of the lawyer’s duty to client A. Client A will then be
treated as a current client.

Substantial Relationship Rule

o When there is a substantially related matter:
o A lawyer switches sides in the very same case.
o Fouling One’s Nest: the lawyer who drafts the will for one client is then coming
back later and try to undermine the work he did by challenging that will.
o Confidentiality of Information that is at play. We are looking at commonality of
the underlying facts (not legal issues).
 What facts could have been (not actually were) learned by the lawyer in
any former litigation that could be used against the client in the new
litigation.
o Playbook Information: courts usually say that this is not enough to create a substantial
relationship.
o Example: You represent hospitals for 10 years, and then switch to the plaintiff’s
side. The lawyer takes substantial knowledge to the plaintiff’s side.

Notes on Maritrans v. Pepper, Hamilton, and Sheetz (IMPORTANT CASE!)

o Facts: Pepper represented Maritrans in wide matters of legal and financial information.
Pepper now represents Maritrans’ competitors, as well. Maritrans finds out about this
representation, and they come up with an agreement: Pepper would continue to represent
everyone who they are already representing, put up a screen, and not bring in any new
clients. Maritrans wants injunction to stop Pepper from representing their competitors.
o Rule: Representing an economic competitor of a current client is usually not
problematic. Usually, this is less of a problem concerning a former client. This is just an
explosive set of facts.
o Rule: Whether a fiduciary can later represent competitors of a former client is a matter
that must be decided on a case to case basis and depends on a number of factors.

Conflicts Between the Interests of a Present Client and a Client who was Represented by a
Lawyer’s Former Firm

Example: Hank used to work for B&T who represented Toy Chest. Hank then changes firms to
R&D and represents Jenny. Jenny wants to sue Toy Chest.
o Can Hank Represent Jenny: (Rule 1.9(b)) Yes, as long as he did not actually acquire
information about Toy Chest.
o Who has the Burden of Proof: (Rule 1.9(b)) Hank must prove that he did not acquire
information that would create a conflict.
o If Hank cannot represent Jenny, can someone else in the firm represent Jenny:

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 o Rule 1.10(a): We treat Hank and all the other lawyers in the firm as one lawyer.
What Hank cannot do, the rest of the lawyers cannot do it either.
o Can Hank Be Screened? The ABA Model Rules and West Virginia have refused
to recognize screening as a cure for this kind of conflict problem except in three
specified cases.

Screening: refers to isolating a lawyer from any participation in a matter through procedures
reasonably adequate to protect information that the isolated lawyer is obligated to protect.
o Screening is generally not permitted as a remedy for conflicts between two present clients
in a firm or for conflicts between a present and former client of the same firm.
o Three Situations in Which Screening is Allowed: government lawyers, law students,
and prospective clients.

Imputation of Conflicts of an Entering Lawyer who is “infected” (Rule 1.10(b))

o If a conflicted lawyer leaves the firm, the remaining lawyers are no longer infected by the
ex-lawyer’s conflict unless the new matter is substantially related to the old matter and
one of the remaining lawyers possesses material confidences learned as a result of the ex-
lawyer’s previous work.
o Was there confidential information left with someone in the firm?

Imputation of the Conflicts of a departed lawyer to his former firm

o For Example: Suppose that while she was at firm A, a lawyer named Allyson represented
a printing company. When she moves to firm B, she takes the printing company with her
as a client. After lawyer and client are gone, can firm A accept work that would conflict
with the interests of the client?
o Firm A can take on a new client whose interests are materially adverse to those of
Ink, unless the matter is substantially related to the work that lawyer did for client
while at firm A and a lawyer who still works at firm A has material confidential
information learned in connection with the work done for client. In that case,
consent is required.

FORMER GOVERNMENT LAWYERS (Rule 1.11)

o Why do government lawyers get a special rule?
o We want to encourage people to work for the government, and regular conflict
rules would not allow government lawyers to get private firm jobs later on in life.
o IMPORTANT QUESTION IN ANALYZING QUESTIONS: Did you “substantially and
personally” participate in a “matter” as a government officer?
o ADVERSITY IS NOT REQUIRED TO CREATE A CONFLICT!!! EVEN IF
THERE IS NO ADVERSITY, YOU STILL CAN’T REPRESENT THE CLIENT
IF YOU SUBSTANTIALLY AND PERSONALLY PARTICIPATED.
o Differences Between Rule 1.11 and Rule 1.9
o Under Rule 1.11, a conflict only exists when the government lawyer was
“personally and substantially involved” in a matter in the former work. One
must ask whether the lawyer possesses “confidential government information”
that could be used adversely in private practice.

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 Under Rule 1.9, a conflict arises when there is a “substantial relationship”

between the two matters.
o RULE 1.11 ALLOWS SCREENING IS TO SOLVE PROBLEMS!

Bases for Disqualification of Former Government Lawyers

o Subsequent work involves a “matter in which the government lawyer was “personally
and substantially involved.” (This can be cured by agency consent.)
o Subsequent work could involve use of “confidential government information” about a
person known to the lawyer in a way that would materially disadvantage that person.
(This cannot be cured by agency consent.)

Conflicts of Government Lawyers Who Formerly Worked in Private Practice

o Present government lawyers who may have conflicts resulting from their previous work
in private practice are subject t the restrictions of Rule 1.7, 1.9, and 1.11(d).
o If the work would be adverse to a former client, the lawyer must ask whether it is both
substantially related and involves material adversity. If so, the lawyer can’t do the work
without the consent of the former client.
o Even if the new work is not adverse to the interests of a former client but involves a
matter that the lawyer did a lot of work on in private practice, the government lawyer is
precluded from working on it unless the current employing agency gives it consent.

PROSPECTIVE CLIENTS
o Screening: even if a lawyer is disqualified by this rule because the lawyer received
confidential information from a prospective client, the rule permits screening to avoid
imputing the conflict to other lawyers in the firm.

Problem 6-7: The Mine Explosion

o Are you excluded from representing the miners? YES!
o If the conversation is unilateral only, then this guy is not a prospective client. For
a person to qualify as a “prospective client,” then there needs to be an actual
conversation between the two parties.
o HOWEVER, in this situation, the lawyer asked “what’s that?”
o Can another partner represent the miners? YES!
o Took reasonable steps to avoid disclosure to more information.
o Screening
o BE CAREFUL WHEN SPEAKING WITH PROSPECTIVE CLIENTS!!

VII. CONFLICTS OF INTEREST BETWEEN LAWYERS AND CLIENTS

a. Rule 1.5 Notes:
i. Fee regulation through the disciplinary board is very minimal.
Disciplinary cases on fees are usually only when the fees are WAY OUT
OF LINE. More common cases are on contracts –client signs a contract to
pay the fees, and then when he figures out how much they are the clients
no longer wants to pay it.

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 ii. Fees must be REASONABLE! Several factors that go into whether the
fee is reasonable or not.
iii. Rule is very vague.
iv. The lawyer must state up front the basis of the fee, but a lawyer does not
need to give an estimated amount.
v. The fee agreement does not need to be in writing, although it is
recommended.
vi. (e) Division of Fees
o Cannot have lawyers pay each other for referring clients.
o You can divide fees if the client consents AND the division of fees
are relevant to the amount of work done.
o Lawyers can also become vicariously liability to each other to split
the fees. It is as if they are one firm when dividing these fees.

b. Restatement 34
c. Restatement 38
d. Rule 5.2
e. Rule 8.3
f. Restatement 35
g. Restatement 36
h. Restatement 41
i. Restatement 42
j. Restatement 43
k. Restatement 47

Types of Fees
o By the Hour: Most lawyers bill by the hour. Give them some type of rate up front.
o Time billing is a very controversial way of billing today.
o The rules do not require the lawyer to give the client an overall estimate.
o As a matter of client relations, however, it is better to give some type of high-end
and low-end amount.
o Contingency Fees: personal injury lawyers almost exclusively work on contingency fees.
o Bar regulates these fees more strictly than hourly fees.
o No contingency fees in a domestic relations case or a criminal case.
o Policy Consideration: Is it fair to sit in your office and take a contingency fee for
making a settlement that caused you no risk?
o Flat Fee: Sometimes lawyers will do something for a flat fee.
o i.e. Closing of a house.
o Value Billing: a law firm does the work, and then the lawyers look at the value of the
end result, to look how much the client will pay.

Notes on Brobeck v. Telex Corp.

o Facts: High stakes corporate litigation. Telex wants a high-profile anti-trust litigator to
take on the case. Client wanted to set up a contingency fee arrangement. They draft a
contract. Telex receives a bill for $1 million. Telex refuses to pay, and Brobeck sues.

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 o Is this an excessive fee? No. This was ok.
o Telex received substantial value from Brobeck’s services.
o Telex had the money to pay the $1 million, and Brobeck did not take advantage of
Telex. These two parties should have been negotiating on a very equal level.

Notes on Fordham
o Facts: Lawyer says up front that he is going to charge by the hour, and tells the client his
fees. He has never done an OUI case so he needs to learn this area of law. Lawyer
charges the client over $50,000.
o Is this an excessive fee? Yes.
o Lawyer seems to be taking advantage of an ordinary consumer.
o Lawyer should have told client that it would take approximately 200 hours to
learn OUI cases, so that the client can decide whether he wants to pay for this
“study time.” A lawyer needs to be very explicit up front about these matters.
o A retroactive fee increase? This is highly questionable.

Problem 7.1:
o Issue: It is reasonable to run up a $60,000 fee on a $70,000 claim?
o Holding: No. A lawyer must keep in mind the amount of recovery to figure out what
kind of representational fees he needs to charge.

Modification for Fee Agreements (Rates Going Up)

o Rule 1.5: says nothing about modifying fee agreements.
o It is a bad idea in terms of a reputation in the legal community to be changing the fee in
the middle of a matter.
o You might change fees if the litigation goes on for a number of years, but this is still a
close call.
o You might change fees if you are doing different lawsuits for the same person at different
times (“six months from now, I’m going to be charging you more in your new cases).

Do-Not Billing Practices

o No double-billing or recycle-billing!
o No making up hours worked!
o No padding or time inflations!
o A lawyer may not bill for overhead or marked up costs!
o A lawyer may not do unnecessary extra work in order to justify billing more hours.
o No billing clients at the firm for personal expenses or marking up expense receipts.
o No billing by the hour at lawyer rates for administrative services.
o No billing for time spent billing.
o Do not charge for paralegal or secretary time as if it is your time.

Billing Honestly
o If you need to bill 2000 hours, you’ll probably need to work 3000 hours.

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 o You can only be shielded by the ethical obligations by complying to a supervisor’s
commands to over bill clients if it is reasonable. In this situation, no lawyer would find
this as being reasonable.

Rule 1.8
o (e) Financial assistance to clients.
o A lawyer cannot help an indigent client with living expenses.
o (d) Publication or Media Rights.
o Prior to the conclusion of the representation of a client, a lawyer shall not make or
negotiate an agreement giving the lawyer literary or media rights to a portrayal or
account based in substantial part on information relating to the representation.
o No provision for consent!
o After the representation is over, a lawyer can sign a deal for representational
rights.
o (a) Entering into Business deals with a client.
o Policing any type of business transaction between lawyers and clients. A lawyer
must be very, very careful when entering into a business deal.
o Anytime that you do a business deal with the client, the terms must look fair.
o Questions to Ask before making a deal:
 Are the terms fair to the client?
 Have you explained the terms to the client clearly and in writing?
 Have you advised the client in writing that she should get legal advice
about the deal from a lawyer not associated with you?
 Has the client had a chance to get advice from another lawyer?
 Has the client given informed consent in writing to the terms of the deal
and to the lawyer’s role in the deal?
o (c) Substantial Gifts from a Client
o A lawyer cannot write himself into a will as the beneficiary unless you are related
to the testate.
o If the client wants the lawyer in the will, then the client must go to another lawyer
to draft the will. The other lawyer must be generally disinterested.
o (j) Sex with Clients
o Don’t have sex with clients. Wait until the representation is over.
o If you had a pre-existing relationship, that is fine.
o This is not imputed to other lawyers.

Retainers
o Classic or General Retainer: a payment up front for availability. The client does not yet
know if he needs a particular lawyer to do something. The client is paying the lawyer to
make sure that if the client needs him at a certain time, then the lawyer will be there to
represent the client.
o The money is to the lawyer from the beginning. It goes into the lawyer’s own
account because he is being paid for availability.
o Special Retainer: the lawyer receives advanced money for payment for things that the
lawyer is going to do.

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 o Lawyer asks for $15,000, and this goes into the client’s trust account. The lawyer
does not receive the money until the lawyer does the work. As the lawyer does
the work, he can take the money out of the trust account, and put it into your own
account.
o If the lawyer does not use all of the advanced payment, the money goes back to
the client.
o Non-refundable retainer: give the lawyer $15,000 up front. Lawyer uses that money to
do the work. If the client discharges the lawyer, the lawyer gets to keep it.
o West Virginia hasn’t spoken on this topic.
o Co-mingling Funds: intermixing funds between the trust fund and the lawyer’s own
account. This will definitely get someone disbarred.

VIII: LAWYERS’ DUTIES TO COURTS, ADVERSARIES AND OTHERS

a. Rule 3.1 Notes:
i. Required Investigation by Lawyers Filing Civil Cases: A lawyer shall
not bring or defend a proceeding, or assert or controvert an issue therein,
unless there is a basis in law and fact for doing so that is not frivolous,
which includes a good faith argument for an extension, modification or
reversal of existing law. A lawyer for the defendant in a criminal
proceeding, or the respondent in a proceeding that could result in
incarceration, may nevertheless so defend the proceeding as to require that
every element of the case be established.
ii. Comment 2: the facts need not be “fully substantiated” before suit is filed.
It recognizes that a lawyer may need to use discovery to “develop vital
evidence.”
iii. Federal Rule of Civil Procedure 11: a party’s legal theory must be
“warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the establishment of
new law.”
iv. Section 1927: a federal provides that a lawyer who “multiplies the
proceedings in any case unreasonably and vexatiously” may be required to
pay the other party’s attorney’s fees.
b. Rule 3.3 Notes:
i. (a) if a judge asks you a question, you better answer truthfully.
ii. What about false evidence or testimony? The Model Rules have taken a
position closer to the “public-spirited.”
iii. If you know that someone is going to give false testimony, you cannot
allow it. If the client does it anyway, then a lawyer must take corrective
measures and tell the court.
iv. If you reasonably believe that it is false, you may choose to offer the
evidence. The threshold is generally pretty high for what a lawyer
“reasonably believes.”
v. The lawyer’s duty to the court trumps the lawyer-client confidentiality.
vi. Rule 3.3 is applicable at every moment as soon as the lawsuit begins.
b. Rule 3.4
c. Rule 3.8

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 d. Rule 4.1
e. Rule 7.1
f. Rule 8.4(c)
g. Restatement 110
h. Restatement 111
i. Restatement 120

The Lawyer’s Role: Two Extreme Views

o Hired Gun: whatever the law allows you to do for a client, you should do that; lawyers
who pursue every possible tactic on behalf of their clients.
o Public-Spirited: the ethical standards that apply to standards are the same ones that
apply to everyone in their every day life all the time; lawyers who believe that their duties
to the court are as important as their duties to their clients.
o Most people are in the middle of these two extremes.
o Opinion #1: Some people say that it makes a difference whether the case is criminal or
not. It might make sense for a criminal lawyer because these risks are so big, but for no
other lawyer.
o Opinion #2: A lawyer can always turn down a matter unless the court makes the lawyer
represent someone. If you choose to represent someone, then you should think of
yourself as a “hired gun.” Choosing to take on the representation of a client should make
you a “hired gun.”
o Opinion #3: To the extent that the law allows you to do something, it is not right to
criticize for the lawyer to do it.

Problem 8.1: Your Visit From Paula Jones

o Do you have to undertake an investigation before filing a suit? Yes.
o What would you do to check it out?
o Question her to see if her story is sensible.
o Question the security guard to place her in that location.
o Check the background of the client to make sure that she has not filed any
nonfrivolous claims.

Nix v. Whiteside (LAWYERS MUST ACT WITHIN REASONABLE PROFESSIONAL

CONDUCT)
o Holding: Under Strickland, although counsel must take all reasonable lawful means to
obtain the objectives of the client, counsel is precluded from taking steps in anyway
assisting the client in presenting false evidence or otherwise violating the law. The
lawyer’s representation of Whiteside falls well within accepted standards of professional
conduct and the range of reasonable professional conduct acceptable under Strickland.

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