Model Rule 8.4: Misconduct: PR Class 1

PR class 1
The Preamble to the Model Rules identifies four lawyer roles:

[1]
1. A lawyer, as a member of the legal profession, is
a. a representative of clients,
b. an officer of the legal system
c. and a public citizen having special responsibility for the quality of justice.

Organizing Topics In Terms of the Model Rules
1 – General Principles (1.1-1.6, 1.13-1.18)
1 – Conflicts of Interest (1.7– 1.12)
2 – Lawyer as Counselor or Advisor
3 – Lawyer in Litigation (duty to court)
4 – Duties to Third Parties
5 – Organization of Professional Practice
6 – Special Rules for Pro-Bono Practice
7 – Lawyer Advertising and Marketing
8 – Admission & Discipline
Application for your own bar admission will be your first real case. You will have
to prove two things – what you know about law and your character & fitness.
Problem 2 – Lawyer Discipline

Morris Andrews and Harold Black are lawyers and long-time friends. Black is losing his
battle with alcohol & his performance has been seriously impaired in recent cases.
Andrews is losing his battle with his caseload, constantly getting continuances and
delaying the results his clients seek.
When Andrews confronts Black, Black does not take it well but did plan to change his
ways. Andrews simply plans to try to settle more cases to get back on schedule.
MODEL RULE 8.4: MISCONDUCT

1. It is professional misconduct for a lawyer to:
a. violate or attempt to violate the Rules of Professional Conduct,
i. knowingly assist or induce another to do so,
1. or do so through the acts of another;
b. commit a criminal act that reflects adversely on the lawyer's honesty,
trustworthiness
i. or fitness as a lawyer in other respects;
c. engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
d. engage in conduct that is prejudicial to the administration of justice;
RULE 8.1: BAR ADMISSION AND DISCIPLINARY MATTERS
1. An applicant for admission to the bar,
a. or a lawyer in connection with a bar admission application or in connection with
a disciplinary matter, shall not:
i. knowingly make a false statement of material fact; or
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ii. fail to disclose a fact necessary to correct a misapprehension known by the

person to have arisen in the matter,
1. or knowingly fail to respond to a lawful demand for information from an
admissions or disciplinary authority,
2. except that this rule does not require disclosure of [confidential client
information].
MODEL RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT
1. A lawyer who knows that another lawyer has committed a violation of the Rules of
Professional Conduct
a. that raises a substantial question as to that lawyer's honesty, trustworthiness or
fitness as a lawyer in other respects,
2. shall inform the appropriate professional authority.
- This Rule does not require disclosure of information otherwise protected by Rule 1.6
- or information gained by a lawyer or judge while participating in an approved
lawyers assistance program.
RULE 8.5: DISCIPLINARY AUTHORITY
1. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary
authority of this jurisdiction,
2. regardless of where the lawyer's conduct occurs.
3. A lawyer may be subject to the disciplinary authority of both this jurisdiction and
another jurisdiction where the lawyer is admitted for the same conduct.
RULE 8.5: CHOICE OF LAW
1. In any exercise of the disciplinary authority of this jurisdiction, the rules of
professional conduct to be applied shall be as follows:
a. for conduct in connection with a matter pending before a tribunal,
i. the rules of the jurisdiction in which the tribunal sits,
1. unless the rules of the tribunal provide otherwise; and
b. for any other conduct, the rules of the jurisdiction in which the lawyerʼs conduct
occurred, or,
i. if the predominant effect of the conduct is in a different jurisdiction,
ii. the rules of that jurisdiction shall be applied to the conduct.
iii. A lawyer shall not be subject to discipline if the lawyerʼs conduct conforms to
the rules of a jurisdiction in which the lawyer reasonably believes the
predominant effect of the lawyerʼs conduct will occur.
Standards for Imposing Lawyer Sanctions
1. A court, in imposing a sanction after a finding of lawyer misconduct, should consider
four factors:
(a) the duty violated;
(b) the lawyer's mental state;
(c) the actual or potential injury caused by the lawyer's misconduct; and
(d) the existence of aggravating or mitigating factors.
• If a lawyer "engages in a pattern of neglect with respect to client matters and causes
serious or potentially serious injury to a client," disbarment is generally appropriate.
Standard 4.41(c).
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• If the lawyer's pattern of neglect causes injury or potential injury that is not serious,
suspension is appropriate. Standard 4.42(b).
• the lawyer is merely negligent, does not act with reasonable diligence, and causes
If
injury or potential injury to a client, the Standards recommend only a reprimand.
Standard 4.43.
• If a lawyer causes little or no actual or potential injury, the Standards recommend
admonition. Standard 4.44.
• A reprimand is a public censure and an admonition is private.
remedies for unresponsible conduct
disbarment- permanent
suspension- temporary
censure- public
admonition- private
REGULATING LAWYERS OUTSIDE A FORMAL DISCIPLINARY

SYSTEM
PROBLEM 3
• Sarah Field is a young lawyer with talent but she is overwhelmed. In one case,
she took on a malpractice case and recommended settlement without having her
client adequately examined. The settlement was too low and the client knows it.
• In a second case, a client asked her for tax advice. She said she didnʼt know
much about tax, but she asked a CPA friend and did the best she could. The
client got a large bill from the IRS and wants Field to pay it.
• In a third case, Field missed a trial date in a criminal case, and when she later got
to court, she did a poor job for the client.
1. Standards for Lawyer Malpractice (Mallen and Restatement)
a. Mallenʼs Elements of the malpractice tort:
i. Duty of the lawyer to the person injured
ii. Failure of the lawyer to exercise “ordinary skill & knowledge”
iii. Negligence as proximate cause of damage.
2. Restatement Standard § 52(1):
a. A lawyer
b. who owes a duty of care
c. must exercise the competence and diligence
d. normally exercised by lawyers in similar circumstances.
Elements of a Malpractice Case
1. A legal duty the lawyer owed the plaintiff, e.g., based on a lawyer-client relationship
or sometimes a duty the lawyer assumes. Restatement §§ 48 & 50.
2. Failure of the lawyer to exercise the skill and knowledge an ordinary lawyer would
exercise in similar circumstances. Restatement § 52(1).
3. Damage suffered by the plaintiff as a result of the lawyerʼs misconduct.
Restatement § 53.
MODEL RULE 1.1: COMPETENCE
1. A lawyer shall provide competent representation
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2. to a client.
3. Competent representation requires the
4. legal knowledge, skill, thoroughness and preparation (do not need all four at once)
5. reasonably necessary for the representation.
Applying the Malpractice Standard
1. Recommending an inadequate settlement (yes if based on the bad advice leading
to the bad settlement)
2. when referral to a specialist is required.
3. Malpractice in criminal cases.
a. Restatement § 53, Comment d: “A convicted criminal defendant suing for
malpractice must prove both that
i. the lawyer failed to act properly and
ii. that, but for that failure, the result would have been different.
1. [A] convicted defendant must have had that conviction set aside [before
the malpractice case will be timely].”
3. Third Parties to Whom Lawyer May Have a Duty Restatement § 51
a. Prospective Clients (you may say to them, I recommend this...)
b. Persons to Whom the Lawyer Has Expressly Assumed a Duty
c. Persons Lawyer Knows the Client Wanted to Benefit (will intended beneficiary)
d. Beneficiaries That Lawyer Has Assisted a Fiduciary Client to Violate. (fiduciary
client can sue the fiduciary's lawyer) (lawyer cannot be held liable for aiding and
abetting a securities infraction)
Other Consequences of Negligence or Misconduct
1. Contempt or other trial court sanctions. (can be by the court in which you are
appearing)
2. Reversal of a criminal conviction
a. Maples v. Thomas, 132 S.Ct. 912 (lawyers abandon case without court consent)
b. Lafler v. Cooper, 132 S.Ct. 1376 (bad advice to reject plea offered by prosecutor)
c. Missouri v. Frye, 132 S.Ct. 1399 (failure to tell client of plea offered by
prosecutor)
3. Advice from an Anonymous Lawyer
a. On being charged as the clientʼs accomplice.
“If somebody has to go to jail, make sure itʼs your client.”
THE LIFE CYCLE OF A CASE

PROBLEM 4 – Undertaking to Represent a Client
You are in private practice. An elderly man, Morris Cannell, tells you that
his broker has depleted his life savings through churning his account
and bad investments generally. You have proposed good arguments
but Cannell wants you to do more. Ultimately, you get him to agree to
limit what you must say, and when the other side makes a good offer,
you accept it on the spot rather than taking it to Cannell first. Have
you acted properly?
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RULE 1.18: DUTIES TO PROSPECTIVE CLIENT

(a)
1. A person;
2. who discusses with a lawyer the possibility of forming a client-lawyer relationship
with respect to a matter is a prospective client.
(b)
3. Even when no client-lawyer relationship ensues,
4. a lawyer who has had discussions with a prospective client
5. shall not use or reveal information learned in the consultation,
6. except as Rule 1.9 would permit
a. with respect to information of a former client.
(c)
1. A lawyer
2. subject to paragraph (b)
3. shall not represent a client with interests materially adverse to those of a prospective
client in the same or a substantially related matter
4. if the lawyer received information from the prospective client
5. that could be significantly harmful to that person in the matter,
6. except as provided in paragraph (d).
a. If a lawyer is disqualified from representation under this paragraph,
b. no lawyer in a firm with which that lawyer is associated
c. may knowingly undertake or continue representation in such a matter,
d. except as provided in paragraph (d).
(d)
1. When the lawyer
2. has received disqualifying information
a. as defined in paragraph (c),
3. representation is permissible if:
a. both the affected client and the prospective client
i. have given informed consent, confirmed in writing, or:
b. the lawyer who received the information
i. took reasonable measures
ii. to avoid exposure to more disqualifying information than was reasonably
necessary
iii.to determine whether to represent the prospective client; and
1. the disqualified lawyer is timely screened from any participation in the
matter
2. and is apportioned no part of the fee therefrom; and
3. written notice is promptly given to the prospective client.
RULE 6.5: NONPROFIT AND COURT-ANNEXED
LIMITED LEGAL SERVICES PROGRAMS

(a)
1. A lawyer
2. who, under the auspices of a program sponsored by a nonprofit organization or
court,
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3. provides short-term limited legal services to a client

4. without expectation by either the lawyer or the client
5. that the lawyer will provide continuing representation in the matter:
a. is subject to Rules 1.7 and 1.9
i. only if the lawyer knows that the representation of the client involves a conflict
of interest; and
b. is subject to Rule 1.10
i. only if the lawyer knows that another lawyer associated with the lawyer in a
law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.
ABA Code of Professional Responsibility (1970)(obligation to represent):
Ethical Consideration 2-26 (Supp. p. 184)
- A lawyer is under no obligation to act as advisor or advocate for every person who
may wish to become his client; but in furtherance of the objective of the bar to make
legal services fully available, a lawyer should not lightly decline proffered employment.
The fulfillment of this objective requires acceptance by a lawyer of his share of
tendered employment which may be unattractive both to him and the bar generally.
MODEL RULE 1.2: SCOPE OF REPRESENTATION
(b)
1. A lawyer's representation of a client,
a. including representation by appointment,
2. does not constitute an endorsement of the client's political, economic, social or
moral views or activities.
Stropnicky v. Nathanson
(Mass. Comm. Against Discrimination 1997)
• Law firm represented only women in divorce cases.
• It was well known for getting awards for years putting husbands through professional
school.
• A man sought representation to get award for putting his wife through professional
school.
• The commission said the firm was required to represent him.
RESTATEMENT § 14: FORMATION OF A CLIENT-LAWYER RELATIONSHIP

A relationship of client and lawyer arises when:
(1)
1. a person
2. manifests to a lawyer
3. the personʼs intent
4. that the lawyer provide legal services for the person;
a. and either
i. the lawyer manifests to the person consent to do so; or
ii. the lawyer fails to manifest lack of consent to do so,
1. and the lawyer knows or reasonably should know
2. that the person reasonably relies on the lawyer
3. to provide the services
WHAT GOES INTO AN ENGAGEMENT LETTER?
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1. Who the client is (and sometimes who the client is not).

2. The fee for the case,
a. or the basis of the fee,
b. and expenses for which the client will be responsible. See Rules 1.5(b) & (c).
3. The scope of the representation,
a. i.e., what the lawyer is going to do and not do.
4. Conflicts of interest the lawyer may have
a. and enough information to let the client give informed consent
b. if it is willing waive the conflicts.
- See Model Rules 1.7 and 1.9.
5. Any departures from usual assumptions about handling confidential information.
- See Model Rule 1.6.
6. What the client will be asked to do in connection with the representation,
a. such as be candid with the lawyer about the facts.
RULE 1.2: ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER

(a)
Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions
1. concerning the objectives of representation and,
a. as required by Rule 1.4, shall consult with the client
b. as to the means by which they are to be pursued.
2. A lawyer may take such action on behalf of the client as is impliedly authorized
a. to carry out the representation.
3. A lawyer shall abide by a client's decision
a. whether to settle a matter.
4. In a criminal case,
a. the lawyer shall abide by the clientʼs decision,
i. after consultation with the lawyer,
b. as to a plea to be entered,
c. whether to waive jury trial
d. and whether the client will testify.
RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY

(c)
1. A lawyer
2. may limit the scope of the representation
3. if the limitation is reasonable under the circumstances
4. and the client gives informed consent.
5. Ambiguities will be construed against you
RULE 1.2: SCOPE OF REPRESENTATION
(d)
1. A lawyer
2. shall not counsel a client
3. to engage, or assist a client,
4. in conduct that the lawyer knows is criminal or fraudulent,
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5. but a lawyer may discuss the legal consequences of any proposed course of
conduct
6. with a client
7. and may counsel or assist a client to make a good faith effort
8. to determine the validity, scope, meaning or application of the law.
RULE 1.3: DILIGENCE
1. A lawyer shall act with reasonable diligence and promptness in representing a client.
RULE 1.4: COMMUNICATION
(a)
A lawyer shall:
1. promptly inform the client
2. of any decision
3. or circumstance
4. with respect to which the client's informed consent, as defined in Rule 1.0(e),is
required by these Rules;
a. reasonably consult with the client
i. about the means by which the client's objectives are to be accomplished;
b. keep the client reasonably informed about the status of a matter.
(a)
1. A lawyer shall:
2. promptly comply with reasonable requests for information;
a. and consult with the client about any relevant limitation
b. on the lawyerʼs conduct
3. when the lawyer knows that the client expects assistance not permitted by the Rules
of Professional Conduct
a. or other law.
(b)
1. A lawyer
2. shall explain a matter
a. to the extent reasonably necessary to permit the client to make informed
decisions
3. regarding the representation.
FEE ARAINGEMENTS AND PRO BONO WORK

Problem 5 – Billing for Legal Services
A well-known psychiatrist has a contract case of only average complexity. Paul T.
Novak has proposed to charge a 44% contingent fee. In a second case, Novak wants to
settle for the first offer to avoid the expense of really preparing the case. In a third case,
when a potential client asks Novak to take it on an hourly-rate basis, he just laughs.
Does Novakʼs conduct raise issues under the rules?
MODEL RULE 1.5(a): FEES
(a)
1. A lawyer
2. shall not charge or collect
3. an unreasonable fee or an unreasonable amount
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4. for expenses.
The factors to be considered in determining the reasonableness of a fee include
the following:
(1) time and labor required, novelty and difficulty of questions involved, and the skill
requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
(3) fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) time limitations imposed by the client or by the circumstances;
(6) nature and length of professional relationship with the client;
(7) experience, reputation, and ability of the lawyer performing services;
(8) whether the fee is fixed or contingent.
(b)
1. The scope of the representation
2. and the basis or rate of the fee and expenses for which the client will be
responsible
3. shall be communicated to the client, preferably in writing,
4. before or within a reasonable time after commencing the representation,
5. except when the lawyer will charge a regularly represented client on the same
basis or rate.
6. Any changes in the basis or rate of the fee or expenses shall also be
communicated to the client.
(c)
1. A contingent fee agreement
2. shall be in a writing signed by the client
3. shall state the method by which the fee is to be determined,
4. Including the percentage or percentages that shall accrue to the lawyer in the
event of settlement, trial or appeal; litigation and other expenses to be deducted
from the recovery;
5. Whether such expenses are to be deducted before or after the contingent fee is
calculated.
6. The agreement must clearly notify the client of any expenses for which the client
will be liable
a. whether or not the client is the prevailing party.
SPECIAL ISSUE – CONTINGENT FEES

1. Special elements of a contingent fee agreement:
a. Percentage lawyer gets after settlement, trial, appeal
b. Whether expenses are deducted before or after the lawyerʼs percentage is
applied.
c. Expenses client is liable for even if he loses the case.
• Should a contingent fee lawyer be entitled to a large fee for a case that
takes little time?
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MODEL RULE 1.5(d): FEES

1. A lawyer
2. shall not enter into an arrangement for, charge, or collect any fee in a domestic
relations matter,
3. the payment or amount of which is contingent upon the securing of
a. a divorce or
b. upon the amount of alimony
c. or support,
d. or property settlement in lieu thereof; or
e. a contingent fee for representing a defendant in a criminal case.
(e): FEE DIVISION
1. A division of a fee between lawyers who are not in the same firm may be made
only if:
a. the division is in proportion to the services performed by each lawyer
b. or each lawyer assumes joint responsibility for the representation;
c. the client agrees to the arrangement,
d. including the share each lawyer will receive,
e. the agreement is confirmed in writing;
f. the total fee is reasonable.
Model Rule 1.0: Terminology

(b) Confirmed in writing
1. when used in reference to the informed consent of a person,
2. denotes informed consent that is given in writing by the person
3. or a writing that a lawyer promptly transmits to the person confirming an oral
informed consent. If it is not feasible to obtain or transmit the writing at the time
the person gives informed consent, then the lawyer must obtain or transmit it
within a reasonable time thereafter.
(n) Writing or written
1. denotes a tangible or electronic record of a communication or representation,
2. including handwriting, typewriting, printing, photostating, photography, audio or
videorecording and e-mail.
3. A "signed" writing includes an electronic sound, symbol or process attached to or
logically associated with a writing and executed or adopted by a person
4. with the intent to sign the writing
RULE 6.1: VOLUNTARY PRO BONO PUBLICO SERVICE
1. Every lawyer has a professional responsibility to provide legal services to those
unable to pay.
2. A lawyer should aspire to render at least (50) hours of pro bono public legal
services per year.
3. In fulfilling this responsibility, the lawyer should provide a substantial majority of
the (50) hours of legal services without fee to:
a. persons of limited means or
b. charitable, religious, civic, community, governmental and educational
organizations
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c. in matters designed primarily to address the needs of persons of limited

means; and
d. provide any additional services through:
e. delivery of legal services at no fee or substantially reduced fee to
individuals, groups or organizations
f. seeking to secure or protect civil rights, civil liberties or public rights, or
charitable, religious, civic, community, governmental and educational
organizations
g. where the payment of standard legal fees would significantly deplete the
organization's economic resources;
4. In addition, a lawyer should voluntarily contribute financial support
5. to organizations that provide legal services
6. to persons of limited means.
RULE 6.2: ACCEPTING APPOINTMENTS
1. A lawyer shall not seek to avoid appointment by a tribunal to represent a person
2. except for good cause, such as:
(a) representing the client is likely to result in violation of the Rules of
Professional Conduct or other law;
(b) representing the client is likely to result in an unreasonable financial
burden on the lawyer; or
(c) the client or the cause is so repugnant to the lawyer as to be likely to
impair the client-lawyer relationship or the lawyer's ability to represent the client.
Model Rule 2.1 – Advisor

1. In representing a client,
2. a lawyer shall exercise independent professional judgment and render candid
advice.
a. In rendering candid advice
i. a lawyer may refer not only to law but to other considerations such
as
1. moral, economic, social and political factors,
ii. that may be relevant to the clientʼs situation.
RULE 1.14: CLIENT WITH DIMINISHED CAPACITY

(a)
1. When a client's capacity to make adequately considered decisions in connection
with a representation is diminished,
2. whether because of minority, mental impairment or for some other reason,
3. the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer
relationship with the client.
(b)
1. When the lawyer
2. reasonably believes
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3. that the client has diminished capacity, is at risk of substantial physical, financial
or other harm unless action is taken and cannot adequately act in the client's
own interest,
4. the lawyer
5. may take reasonably necessary protective action,
6. including consulting with individuals or entities that have the ability to take action
to protect the client
a. and, in appropriate cases, seeking the appointment of a guardian.
(c)
1. Information
2. relating to the representation of a client
a. with diminished capacity
3. is protected by Rule 1.6.
4. When taking protective action pursuant to paragraph (b),
5. the lawyer is impliedly authorized under Rule 1.6(a)
6. to reveal information about the client,
a. but only to the extent reasonably necessary to protect the client's
interests.

PROBLEM 6 – Handling Client Property and Withdrawing from
Representation
Elizabeth Jackson had a contract for a 40% contingent fee. She recovered more
than either she or the client expected, and the client has complained about paying the
full agreed 40% on the punitive damage award. In response, Jackson has put the
$100,000 check into a client trust account and has worn the ring.
RULE 1.15: SAFEKEEPING PROPERTY

(a)
1. A lawyer
2. shall hold property of clients or third persons
a. that is in a lawyer's possession
b. in connection with a representation
c. separate from the lawyer's own property.
3. Funds shall be kept in a separate account
a. maintained in the state where the lawyer's office is situated,
b. or elsewhere with the consent of the client or third person.
4. Other property
a. shall be identified as such and appropriately safeguarded.
5. Complete records of such account funds and other property
a. shall be kept by the lawyer and
b. shall be preserved for a period of [five years] after termination of the
representation.
(b)
1. A lawyer
2. may deposit the lawyer's own funds
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3. in a client trust account

4. for the sole purpose of paying bank service charges on that account,
5. but only in an amount necessary for that purpose.
(c)
1. A lawyer
2. shall deposit into a client trust account
3. legal fees and expenses
4. that have been paid in advance,
5. to be withdrawn by the lawyer
6. only as fees are earned or expenses incurred.
(d)
1. Upon receiving funds or other property
a. in which a client or third person
i. has an interest,
2. a lawyer
3. shall promptly notify the client or third person.
a. Except as stated in this rule
b. or otherwise permitted by law
c. or by agreement with the client,
4. a lawyer
5. shall promptly deliver to the client or third person
6. any funds or other property
7. that the client or third person is entitled to receive
8. and, upon request by the client or third person,
9. shall promptly render a full accounting regarding such property.

(e)
1. When in the course of representation
2. a lawyer
3. is in possession of property
a. in which two or more persons (one of whom may be the lawyer) claim
interests,
4. the property shall be kept separate by the lawyer
a. until the dispute is resolved.
5. The lawyer
6. shall promptly distribute
7. all portions of the property as to which the interests are not in dispute.
What to do with the $100,000?
• First put it in the trust account
• Pay the client the undisputed amount, here $60,000.
• Pay yourself the undisputed fee, here $25,000.
• Leave $15,000 in the trust account until the dispute is resolved.
RULE 1.16: DECLINING OR TERMINATING REPRESENTATION

(a) compulsory withdrawl
1. Except as stated in paragraph (c),
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2. a lawyer
3. shall not represent a client or,
4. where representation has commenced,
5. shall withdraw from the representation of a client if:
a. the representation will result in violation of the rules of professional
conduct or other law (conflict of interest);
b. the lawyer's physical or mental condition materially impairs the lawyer's
ability to represent the client; or
c. the lawyer is discharged.
(b) permissive withdrawal
1. Except as stated in paragraph (c),
2. a lawyer may withdraw if:
a. withdrawal can be accomplished without material adverse effect on the
interests of the client;
b. the client persists in a course of action involving the lawyer's services that
the lawyer reasonably believes is criminal or fraudulent;
c. the client has used the lawyer's services [in] a crime or fraud;
d. other good cause for withdrawal exists.
e. the client insists upon taking action that the lawyer considers repugnant or
with which the lawyer has a fundamental disagreement;
f. the client fails substantially to fulfill an obligation to the lawyer
g. and has been given reasonable warning that the lawyer will withdraw
unless the obligation is fulfilled;
h. the representation will result in an unreasonable financial burden on the
lawyer or has been rendered unreasonably difficult by the client;
(c)
1. A lawyer
2. must comply with applicable law requiring notice to or permission of a tribunal
3. when terminating a representation.
a. When ordered to do so by a tribunal,
i. a lawyer
ii. shall continue representation notwithstanding good cause for
terminating the representation.
(d)
1. Upon termination of representation,
2. a lawyer
3. shall take steps to the extent reasonably practicable to protect a client's
interests,
a. such as giving reasonable notice to the client,
b. allowing time for employment of other counsel,
c. surrendering papers and property to which the client is entitled
i. The lawyer may retain papers relating to the client to the extent
permitted by other law
d. and refunding any advance payment of fee or expense that has not been
earned or incurred.
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Lawyer Retaining Liens

1. the lawyerʼs right
2. in some states
3. to put pressure on a client
4. by failing to return client property & papers.
- Itʼs controversial today, particularly if the client has a significant need, e.g., the
record needed for a death penalty appeal.
- A charging lien is the lawyerʼs statutory right in many states to collect the fee
out of the sum payable to the client in the case.
PROBLEM 7
The Duty of Confidentiality
John Carter has told you that he expects to be sued by the person who
bought his house. Carter expressly lied to the buyer about the tendency of the
basement to flood. Carter had not had the experience, but the prior owner had
told Carter the situation and you talked with the former owner shortly before his
death. You also heard at a cocktail party that Carter is in financial trouble, a point
you mentally filed away as affecting settlement posture. Now, someone has
asked you whether that is true.
MODEL RULE 1.6: CONFIDENTIALITY OF INFORMATION

(a)
1. A lawyer
2. shall not reveal information relating to the representation of a client (even the
clients name)
a. unless the client gives informed consent,
b. the disclosure is impliedly authorized in order to carry out the representation or
c. the disclosure is permitted by paragraph (b).
Exceptions to the confidentiality doctrines

RESTATEMENT § 82. Client Crime or Fraud
1. The attorney-client privilege does not apply to a communication occurring when a
client:
a. consults a lawyer for the purpose, later accomplished, of obtaining assistance
to engage in a crime or fraud or aiding a third person to do so, or
b. regardless of the clientʼs purpose at the time of consultation, uses the lawyerʼs
advice or other services to engage in or assist a crime or fraud.
(b)
1. A lawyer
2. may reveal information relating to the representation of a client
3. to the extent the lawyer reasonably believes necessary:
a. to prevent reasonably certain death or substantial bodily harm
b. to prevent the client from committing a crime or fraud that is reasonably certain
to result in substantial injury to the financial interest or property of another
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i. and in furtherance of which the client has used or is using the lawyerʼs
services
c. to prevent, mitigate or rectify substantial injury
i. to the financial interest or property of another that is reasonably certain to
result or
1. has resulted from the clientʼs commission of a crime or fraud
ii. in furtherance of which the client has used or is using the lawyerʼs services.
d. to secure legal advice about the lawyerʼs compliance with these Rules.
e. to establish a claim or defense in a controversy between the lawyer and the
client.
f. to comply with other law or a court order.
How the protection of disclosure can be lost
Restatement § 59 Definition of “Confidential Client Information”
1. Confidential client information consists of information relating to representation of a
client,
a. other than information that is generally known.
Restatement § 78
1. The attorney-client privilege is waived if
a. the client, the clientʼs lawyer, or another authorized agent of the client:
i. agrees to waive the privilege;
ii. disclaims protection of the privilege or
iii. in a proceeding before a tribunal,
1. fails to object properly to an attempt by another person to give or exact
testimony or
a. other evidence of a privileged communication.
b. Must assert the privilege whenever it is challenged
Current Client Conflicts of Interest
(1) Between the lawyerʼs duty to two or more current clients,
(2) Between the clientʼs interests and the lawyerʼs self-interest,
(3) Between duty to the lawyerʼs current client and duties to a former client, and
(4) Between the lawyerʼs duty to a current client and interest of a non-client third party.
PROBLEM 9 – Representing Multiple Parties Dealing With Each Other

Mr. & Mrs. Wilson want a divorce. They have three children. They have worked out all
the details. Mr. Wilson will get the son; Mrs. Wilson will get the two daughters and
$1000 a month in child support. They want you to write up the agreement and
handle the legalities. Do you face a conflict of interest?
Issues Under Problem 9
• What are the standards for deciding whether representing both Mr. & Mrs. Wilson
would constitute a conflict of interest?
• What practical differences of interest can you foresee?
• What practical issues have the Wilsons not considered?
• Are the conflicts in this problem subject to client waiver?
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RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST:

(a)
1. While lawyers are associated in a firm,
2. none of them shall knowingly represent a client when any one of them practicing
alone would be prohibited from doing so by Rules 1.7 or 1.9,
a. unless the prohibition is based on a personal interest of the prohibited lawyer
i. and does not present a significant risk of materially limiting the
representation of the client by the remaining lawyers in the firm.
RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS

(a) what you can do
1. Except as provided in paragraph (b),
2. a lawyer shall not represent a client if the representation involves a concurrent
conflict of interest.
3. A concurrent conflict of interest exists if:
a. the representation of one client will be directly adverse to another client; or
b. there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another client, a former
client or a third person or by a personal interest of the lawyer.
(b) what to do now that there is a conflict
1. Notwithstanding the existence of a concurrent conflict of interest under paragraph
(a),
2. a lawyer may represent a client if:
a. the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
b. the representation is not prohibited by law;
c. the representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or
other proceeding before a tribunal;
d. each affected client gives informed consent (you must tell them this
information), confirmed in writing.
RULE 1.0: TERMINOLOGY

(e) "Informed consent" denotes the agreement by a person to a
proposed course of conduct after the lawyer has communicated adequate
information and explanation about the material risks of and reasonably available
alternatives to the proposed course of conduct.
***
(i) “Reasonable belief” or “reasonably believes” when used in
reference to a lawyer denotes that the lawyer believes the matter in question and
that the circumstances are such that the belief is reasonable.
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RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC

RULES
(g) assuming you clear all conflicts

1. A lawyer who represents two or more clients
2. shall not participate in making an aggregate settlement of the claims of or against
the clients
3. unless each client gives informed consent,
a. in a writing signed by the client.
4. The lawyer's disclosure shall include the existence and nature of all the claims or
pleas involved
a. and of the participation of each person in the settlement.
RULE 6.3: MEMBERSHIP IN LEGAL SERVICES ORGANIZATION

1. A lawyer may serve as a director, officer or member of a legal services
organization, apart from the law firm in which the lawyer practices,
a. notwithstanding that the organization serves persons having interests adverse
to a client of the lawyer.
2. The lawyer shall not knowingly participate in a decision or action of the
organization:
a. if participating in the decision or action would be incompatible with the lawyer's
obligations to a client under Rule 1.7; or
b. where the decision or action could have a material adverse effect on the
representation of a client of the organization
i. whose interests are adverse to a client of the lawyer.
RULE 6.4: LAW REFORM ACTIVITIES AFFECTING CLIENT
INTERESTS
1. A lawyer may serve as a director, officer or member of an organization
a. involved in reform of the law or its administration
i. notwithstanding that the reform may affect the interests of a client of the
lawyer.
2. When the lawyer knows that the interests of a client may be materially benefited by
a decision in which the lawyer participates,
a. the lawyer shall disclose that fact but need not identify the client.
We talked about Rule 1.7 – the issue of identifying conflicts and then addressing the
possibility of informed consent
We also talked about Rules 6.3 & 6.4 on what you do when you sit on a legal services
board and the agency talks about a matter affecting another of your clients.
Direct Adversity Conflict – A Practical Example

A regular client comes to you to file suit against Ford whose defective car has injured
the client. After doing your conflicts check, you learn that another office of your
firm represents Ford in a small property tax case in a rural county.
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Should you be said to have a conflict if you take the injury case on behalf of your
regular client?
Direct Adversity Conflicts – Not Opposing a Current Client Even in an Unrelated Matter
RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS

(a) [A] lawyer shall not represent a client if:
(1) the representation of one client will be directly adverse to another client.
Comment:
Who is a Current Client?
IBM v. Levin – Issue is what the client reasonably believes about whether the lawyer
or firm still represents it.
Why are lawyers so reluctant to tell clients that the representation is over?
How easy should it be to make a current client a former client?

Why do lawyers prefer to have Rule 1.9 apply in determining conflicts rather than
Rule 1.7?
RULE 1.9: DUTIES TO FORMER CLIENTS
(a)
1. A lawyer who has formerly represented a client in a matter
2. shall not thereafter represent another person in the same or a substantially
related matter
3. in which that person's interests are materially adverse to the interests of the former
client
a. unless the former client gives informed consent, confirmed in writing.
- in other words, you must be able to specify what the future conflicts may be
Criminal Cases
- same principles to criminal cases.
- May you represent two defendants that may want to pin the blame on each
other?
- The basic principle is that conflicts in criminal cases can rise to constitutional
violations and be almost per se ineffective assistance of counsel.
- Issues also arise of prosecutorsʼ offices with inappropriate incentives, e.g.,
they get a cut of the recovery. Or defense lawyers who want to take an
interest in publicity rights re the case. Rule 1.8(d).
Problem 12 – Conflicts Between Client Interests and the Lawyerʼs Personal

Interest
Lawyer Joan Doe went to high school with James Johnson, a local engineer. Johnson
needed legal help setting up his business and Doe suggested that he give her
10% of the stock for a yearʼs worth of legal services.
Later, Doe learns from Johnson that a new industrial park will be built in the area, and
she buys some neighboring land.
After his company makes its first million dollars, Johnson gives Doe the keys to his
Mercedes, worth $75,000. Finally, Doe and Johnson fall in love.
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RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES

(a)
1. A lawyer
2. shall not enter into a business transaction with a client or knowingly acquire an
ownership, possessory, security or other pecuniary interest adverse to a client
unless:
a. the transaction and its terms are fair and reasonable to the client
i. and are fully disclosed and transmitted in writing in a manner
ii. that can be reasonably understood by the client (no legalese);
b. the client is advised in writing of the desirability of seeking
i. and is given a reasonable opportunity to seek the advice of independent
legal counsel on the transaction; and
c. the client gives informed consent,
i. in a writing signed by the client,
ii. to the essential terms of the transaction and the lawyer's role in the
transaction,(in this specific deal)
1. including whether the lawyer is representing the client in the transaction.
(b) Can use material if not adverse to the client
1. A lawyer
2. shall not use information relating to representation of a client
3. to the disadvantage of the client
4. unless the client gives informed consent,
a. except as permitted or required by these Rules.
RULE 1.8 (c)
1. A lawyer shall not solicit any substantial gift from a client,
2. including a testamentary gift, or prepare on behalf of a client an instrument giving
the lawyer or a person related to the lawyer any substantial gift
3. unless the lawyer or other recipient of the gift is related to the client.
4. For purposes of this paragraph, related persons include a spouse, child, grandchild,
parent, grandparent or other relative or individual with whom the lawyer or the client
maintains a close, familial relationship (usually for wills).
(d)
1. Prior to the conclusion of representation of a client,
2. a lawyer shall not make or negotiate an agreement giving the lawyer literary or
media rights to a portrayal or account
3. based in substantial part on information relating to the representation.
(h) May be used if you are trying to get a new law
1. A lawyer shall not
a. make an agreement prospectively limiting the lawyer's liability to a client for
malpractice
i. unless the client is independently represented in making the agreement; or
b. settle a claim or potential claim for such liability with an unrepresented client or
former client
i. unless that person is advised in writing of the desirability of seeking
ii. and is given a reasonable opportunity to seek the advice of independent legal
counsel in connection therewith.
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(j)
1. A lawyer shall not have sexual relations with a client
a. unless a consensual sexual relationship existed between them when the client-
lawyer relationship commenced.
(k)
While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a)
through (i) that applies to any one of them shall apply to all of them.
Former Client Conflicts
We ask when may you take a case against such a former client and when may that
client get you disqualified from proceeding further against him? Indeed, why
should you have any duties at all to people you no longer represent?
RULE 1.8 (e) Financial Assistance

1. A lawyer shall not provide financial assistance to a client in connection with pending
or contemplated litigation, except that:
a. a lawyer may advance court costs and expenses of litigation, the repayment of
which may be contingent on the outcome of the matter; and
b. a lawyer representing an indigent client may pay court costs and expenses of
litigation on behalf of the client.
(i) (shares of property)
1. A lawyer shall not acquire a proprietary interest in the cause of action or subject
matter of litigation the lawyer is conducting for a client, except that the lawyer
may:
a. acquire a lien authorized by law to secure the lawyer's fee or expenses
Model Rule 1.16: Withdrawal
[9]
Even if the lawyer has been unfairly discharged by the client, a lawyer must take all
reasonable steps to mitigate the consequences to the client. The lawyer may
retain papers as security for a fee only to the extent permitted by law. See Rule
1.15.
RULE 1.8 (f) (client and third party)
1. A lawyer shall not accept compensation for representing a client from one other
than the client unless:
a. the client gives informed consent(tell options, understand those options and
agree;
b. there is no interference with the lawyerʼs independence of professional
judgment or with the client-lawyer relationship; and
c. information relating to the representation of a client is protected as required by
Rule 1.6.
PROBLEM 14 – The Lawyerʼs Former Client

Martha Heath represents Linda Parker in her suit against Dr. Charles Abraham in a
medical malpractice case.
Dr. Abraham recognizes Heath as having been his own lawyer five years earlier when
he adopted his new wifeʼs children.
Dr. Abraham moves to disqualify Heath from handling the current case.
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(a) Current client and former client owed a particular duty
2. shall not thereafter 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
3. unless the former client gives informed consent, confirmed in writing.
(b)
1. A lawyer shall not knowingly represent a person in the same or a substantially
related matter in which a firm with which the lawyer formerly was associated
had previously represented a client
a. whose interests are materially adverse to that person; and
b. about whom the lawyer had acquired information protected by Rules 1.6 and
1.9(c) that is material to the matter unless
i. the former client gives informed consent, confirmed in writing.
RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE
(b)
1. When a lawyer has terminated an association with a firm,
2. the firm is not prohibited from thereafter representing a person with interests
materially adverse to those of a client represented by the formerly
associated lawyer and not currently represented by the firm, unless:
a. the matter is the same or substantially related to that in which the formerly
associated lawyer represented the client; and
b. any lawyer remaining in the firm has information protected by Rules 1.6 and
1.9(c) that is material to the matter.

(c) A lawyer who has formerly represented a client in a
matter or whose present or former firm has formerly represented a client in a
matter shall not thereafter:
(1) use information relating to the representation to the
disadvantage of the former client except as these Rules would permit or require
with respect to a client, or when the information has become generally known;
or
(2) reveal information relating to the representation except
as these Rules would permit or require with respect to a client.
Comment
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[4] The rule in paragraph (a) also does not prohibit

representation by others in the law firm where the person prohibited from
involvement in a matter is a nonlawyer, such as a paralegal or legal secretary.
Nor does paragraph (a) prohibit representation if the lawyer is prohibited from
acting because of events before the person became a lawyer, for example,
work that the person did while a law student. Such persons, however, ordinarily
must be screened from any personal participation in the matter to avoid
communication to others in the firm of confidential information that both the
nonlawyers and the firm have a legal duty to protect.
Imputation of Conflicts
This week we talk primarily about imputation of conflicts through a
practice organization and conflicts inherent in representing a corporate
client.

(a)
2. shall not thereafter represent another person in the same or a substantially related
matter
3. in which that person's interests are materially adverse to the interests of the former
client
a. unless the former client gives informed consent, confirmed in writing.
[1]
Under this Rule, for example, a lawyer could not properly seek to rescind on behalf of
a new client a contract drafted on behalf of the former client.
(c)
1. A lawyer who has formerly represented a client in a matter or whose present or
former firm has formerly represented a client in a matter
2. shall not thereafter:
a. use information relating to the representation to the disadvantage of the former
client
i. except as these Rules would permit or require with respect to a client,
ii. or when the information has become generally known; or
iii. reveal information relating to the representation
1. except as these Rules would permit or require with respect to a client.
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RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL

RULE
PROBLEM 15 – Imputation of Conflicts

Charles & Burls is a 200-member Wall Street firm that represents
World Wide Container in many cases, one of which is a suit for
contribution filed by National Gasket in New Orleans. C & B has
asked Willis & Xeres to be local counsel, and Willis has been the
only lawyer involved. Xeres had once represented National
Gasket in some of the products cases underlying this suit for
contribution and had learned confidential information he could not
use against it now. C & B has never represented National
Gasket.
(a)
1. While lawyers are associated in a firm,
2. none of them shall knowingly represent a client
a. when any one of them practicing alone would be prohibited from doing so by
Rules 1.7 or 1.9, unless
i. the prohibition is based on a personal interest of the prohibited lawyer
ii. and does not present a significant risk of materially limiting the representation
of the client by the remaining lawyers in the firm; or

(c)
"Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional
corporation, sole proprietorship or other association authorized to practice law;
or lawyers employed in a legal services organization or the legal department of
a corporation or other organization.
RULE 1.10
[3] The rule in paragraph (a) does not prohibit representation where neither questions
of client loyalty nor protection of confidential information are presented. Where
one lawyer could not effectively represent a given client because of strong
political beliefs, for example, but that lawyer will do no work on the case and the
personal beliefs of the lawyer will not materially limit the representation by
others in the firm, the firm should not be disqualified. On the other hand, if an
opposing party in a case were owned by a lawyer in the law firm and others in
the firm would be materially limited in pursuing the matter because of loyalty to
that lawyer, the personal disqualification of the lawyer would be imputed to all
others in the firm.

(b)
1. When a lawyer has terminated an association with a firm,
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2. the firm is not prohibited from thereafter representing a person with interests
materially adverse to those of a client represented by the formerly associated
lawyer
3. and not currently represented by the firm, unless
a. the matter is the same or substantially related to that in which the formerly
associated lawyer represented the client; and
b. any lawyer remaining in the firm has information protected by Rules 1.6 and
1.9(c) that is material to the matter.
(a)(2)
1. the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified
lawyerʼs association with a prior firm, and
(i) the disqualified lawyer is
timely screened from any participation in the matter and
is apportioned no part of the fee therefrom;
(ii) written notice is promptly
given to any affected former client * * * [so that it can
verify the screening]; and
(iii) certifications of compliance
are * * * [given to the former client at reasonable
intervals or on written request].

(k) "Screened" denotes the isolation of a lawyer from any participation in a matter
through the timely imposition of procedures within a firm that are reasonably
adequate under the circumstances to protect information that the isolated
lawyer is obligated to protect under these Rules or other law.
RULE 1.11: SPECIAL CONFLICTS OF INTEREST FOR FORMER AND

CURRENT GOVERNMENT OFFICERS AND EMPLOYEES
(a)
1. Except as law may otherwise expressly permit,
2. a lawyer who has formerly served as a public officer or employee of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the
lawyer participated personally and substantially as a public officer or
employee,
(1) unless the appropriate government agency gives its informed consent,
confirmed in writing, to the representation.
(c)
2. a lawyer having information that the lawyer knows is confidential government
information about a person acquired when the lawyer was a public officer or
employee,
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3. may not represent a private client whose interests are adverse to that person in a
matter in which the information could be used to the material disadvantage of
that person.
4. As used in this Rule, the term "confidential government information" means
information that has been obtained under governmental authority
a. and which, at the time this Rule is applied, the government is prohibited by law
from disclosing to the public
b. and which is not otherwise available to the public.
c. A firm with which that lawyer is associated may undertake or continue
representation in the matter only if the disqualified lawyer is timely
screened
(d)
2. a lawyer currently serving as a public officer or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated personally and
substantially while in private practice or nongovernmental
employment, unless the appropriate government agency gives
its informed consent, confirmed in writing; or
(ii)18 U.S.C. § 207(a)(1)Any person who is an officer or employee * * * of
the executive branch of the United States * * *, who after the
termination of his or her service * * * knowingly makes, with the
intent to influence, any communication to or appearance before
any officer of employee of any department, agency, [or] court, *
* * in connection with a particular matter—
(A) in which the United States * * * is a
party or has a direct and
substantial interest,
(B) in which the person participated
personally and substantially as
such officer or employee, and
(C) which involved a specific party at
the time of such participation,
shall be punished [by up to a
year in jail, a civil fine of
$50,000, or both].
RULE 1.12: FORMER JUDGE, ARBITRATOR, MEDIATOR OR OTHER
THIRD-PARTY NEUTRAL

(a)
1. Except as stated in paragraph (d),
2. a lawyer shall not represent anyone in connection with a matter in which the lawyer
participated personally and substantially
a. as a judge or other adjudicative officer or law clerk
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i. to such a person or as an arbitrator, mediator or other third-party neutral,

unless
ii. all parties to the proceeding give informed consent, confirmed in writing.
(c)
1. If a lawyer is disqualified by paragraph (a),
2. no lawyer in a firm with which that lawyer is associated may knowingly undertake or
continue representation in the matter unless:
a. the disqualified lawyer is timely screened from any participation in the matter and
is apportioned no part of the fee therefrom;
(b)
1. A lawyer shall not negotiate for employment with any person who is involved as a
party or as lawyer for a party
2. in a matter in which the lawyer is participating personally and substantially as a
judge or other adjudicative officer or as an arbitrator, mediator or other third-
party neutral.
3. A lawyer serving as a law clerk to a judge or other adjudicative officer
a. may negotiate for employment with a party or lawyer involved in a matter in
which the clerk is participating personally and substantially,
i. but only after the lawyer has notified the judge, or other adjudicative officer.
Conflicts of Interest Within a Corporation

PROBLEM 18 – Advising the Business Corporation
You have long represented Sleepware, Inc. who makes childrenʼs pajamas. Tests
have shown that the fabric can melt & cause serious burns under rare but
possible conditions. The Vice President for pajamas wants to keep selling the
items for two reasons:
First, a consultant has told him that only 4 kids a year will get burned and settlements
will not exceed $250K each. Because he expects to gross $2 million in profits, it
will still be profitable to sell the pajamas.
Second, the vice-president wants to become president and he doesnʼt want any
scandals on his present watch.
RULE 1.13: ORGANIZATION AS CLIENT
(a)
1. A lawyer employed or retained by an organization
2. represents the organization acting through its duly authorized constituents.
RULE 2.1: ADVISOR
[5] In general, a lawyer is not expected to give advice until asked by the client.
However, when a lawyer knows that a client proposes a course of action that is
likely to result in substantial adverse legal consequences to the client, the
lawyerʼs duty to the client under Rule 1.4 may require that the lawyer offer advice
* * *. A lawyer ordinarily has no duty to initiate investigation of a clientʼs affairs or
to give advice that the client has indicated is unwanted, but a lawyer may initiate
advice to a client when doing so appears to be in the clientʼs interest.
RULE 1.13:
(b)
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1. If a lawyer for an organization knows that an officer, employee or other person

associated with the organization is engaged in action, intends to act or refuses
to act in a matter related to the representation
2. that is a violation of a legal obligation to the organization, or a violation of law that
reasonably might be imputed to the organization,
3. and that is likely to result in substantial injury to the organization,
4. then the lawyer shall proceed as is reasonably necessary in the best interest of the
organization. Unless
a. the lawyer reasonably believes that it is not necessary in the best interest of the
organization to do so,
b. the lawyer shall refer the matter to higher authority in the organization,
c. including, if warranted by the circumstances, to the highest authority that can act
on behalf of the organization as determined by applicable law.
(c) Except as provided in paragraph (d), if
1. despite the lawyerʼs efforts in accordance with paragraph (b)
2. the highest authority that can act on behalf of the organization insists upon or fails to
address in a timely and appropriate manner an action or a refusal to act,
3. that is clearly a violation of law, and
4. the lawyer reasonably believes that the violation is reasonably certain to result in
substantial injury to the organization,
5. then the lawyer may reveal information relating to the representation
a. whether or not Rule 1.6 permits such disclosure,
b. but only if and to the extent the lawyer reasonably believes necessary to prevent
substantial injury to the organization.
(d)
1. Paragraph (c) shall not apply with respect to information relating to a lawyerʼs
representation of an organization to investigate an alleged violation of law,
2. or to defend the organization against a claim arising out of an alleged violation of
law.
(e)
1. A lawyer who reasonably believes that he or she has been discharged because of
the lawyerʼs actions taken pursuant to paragraphs (b) or (c), or who withdraws
under circumstances that require or permit the lawyer to take action under
either of those paragraphs,
2. shall proceed as the lawyer reasonably believes necessary to assure that the
organizationʼs highest authority is informed of the lawyerʼs discharge or
withdrawal.
(f)
1. In dealing with an organizationʼs directors, officers, employees, members,
shareholders, or other constituents,
2. a lawyer shall explain the identity of the client
a. when the lawyer knows or reasonably should know that the organizationʼs
interests are adverse to those of the constituents with whom the lawyer is
dealing.
(g)
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1. A lawyer representing an organization may also represent any of its directors,

officers, employees, members, shareholders or other constituents,
2. subject to the provisions of Rule 1.7.
3. If the organization's consent to the dual representation is required by Rule 1.7,
4. the consent shall be given by an appropriate official of the organization other than
the individual who is to be represented, or by the shareholders. 1.4
Implications
Is There Civil Liability for Failure to Disclose?
1. To the corporation itself; bankruptcy trustee will have no pity.
2. Possibly to consumers injured by pajamas.
3. So far, no duties under the securities law for “aiding and abetting” misconduct, but
is for personal fraud – Central Bank & Scientific-Atlanta cases.
The Ethics of Litigation

This week and next we look at litigation. It was once the principal topic for legal ethics
and remains very important.
A question that runs throughout the material is whether finding “truth” is the proper goal
for litigation or whether something less may be more realistic.
PROBLEM 23 – The Decision to File a Civil Suit
Your client who produces California wines has put something in each
bottle to help the wine stay drinkable longer. Alas, the substance causes cancer
in rats when consumed in large quantities. The Delaney Amendment to the FDA
Act thus requires that wine containing it not be sold. You believe that filing suit to
challenge the constitutionality of the Delaney Amendment can delay things just
enough to let existing quantities of the wine to be sold. Your circuit rejected such
a claim a few years ago but it could always change its mind.
Would filing the proposed suit be proper?
Rule 3.1 – Meritorious Claims and Contentions
1. A lawyer shall not bring or defend a proceeding, or assert or controvert an issue
therein,
2. unless there is a basis in law and fact for doing so that is not frivolous,
a. which includes a good faith argument for an extension, modification or reversal
of existing law.
Rule 3.2 – Expediting Litigation
1. A lawyer shall make reasonable efforts to expedite litigation
2. consistent with the interests of the client.

Rule 2.1: Advisor
1. In representing a client, a lawyer shall exercise independent professional judgment
and render candid advice.
2. In rendering advice, a lawyer may refer not only to law but to other considerations
such as moral, economic, social and political factors,
3. that may be relevant to the clientʼs situation.
RULE 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL
1. A lawyer shall not:
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(a)
a. unlawfully obstruct (against the FR) another party's access to evidence or
unlawfully alter, destroy or conceal a document or other material having
potential evidentiary value.
b. A lawyer shall not counsel or assist another person to do any such act
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an
inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal,
- except for an open refusal based on an assertion that no valid obligation exists;
(d) (not a significant disciplinary rule) in pretrial procedure, make a frivolous
discovery request or fail to make reasonably diligent effort to comply with a legally
proper discovery request by an opposing party
(e) (Casey Anthony trial when prosecutor states in opening statement ideas never
presented at trial- must not state what has not been conveyed by evidence but
mostly reprimanded during trial by judge)
a. in trial,
b. allude to an matter that the lawyer does not reasonably believe is relevant or
that will not be supported by admissible evidence,
c. assert personal knowledge of the facts at issue except when testifying as a
witness,
d. or state a personal opinion as to the justness of a cause, the credibility of a
witness, the culpability of a civil litigant or the guilt of innocence of an
accused.
(f) request a person other than a client to refrain from voluntarily giving relevant
information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the personʼs interests will not be
adversely affected by refraining from giving such information.
RULE 3.5: IMPARTIALITY AND DECORUM OF THE TRIBUNAL
(a) seek to influence a judge, juror, prospective juror or other official by means
prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized
to do so by law or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate;
or
(3) the communication involves misrepresentation, coercion, duress or
harassment; or
(d) engage in conduct intended to disrupt a tribunal.
RULE 3.7: LAWYER AS WITNESS (most significant substantive rule)
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a
necessary witness unless:
(1) the testimony relates to an uncontested issue;
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(2) the testimony relates to the nature and value of legal services rendered in the
case; or
(3) (hard test to meet) disqualification of the lawyer would work substantial
hardship on the client.
- (If you must be the witness then cannot contemporaneously be the lawyer)
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm
is likely to be called as a witness unless precluded from doing so by Rule 1.7 or
Rule 1.9.
RULE 3.9 – ADVOCATE IN NON-ADJUDICATIVE PROCEEDINGS
1. A lawyer representing a client before a legislative body or administrative agency in
a nonadjudicative proceeding
2. shall disclose that the appearance is in a representative capacity
3. and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c),
and 3.5.
PROBLEM 24 – Litigation Tactics

Hugh Martin is a great insurance defense litigator. He dresses down in court and
assumes a folksy attitude. He tries to pick juries with racial and class differences,
and he tries to make truthful witnesses look shifty. Once, he even had his
secretary appear in court and suggest a relationship with the plaintiff. Martin calls
these “tricks” and says they simply help overcome the unfair advantage plaintiffs
have. Should a court regulate what lawyers wear and the personality they
display?
Picking a Jury with Race & Class Differences

Rule 8.4: It is professional misconduct for a lawyer to:
(d) engage in conduct that is prejudicial to the administration of justice
Aggressive Cross Examination
ABA Model Rule 4.4:
(a)
1. In representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person,
2. or use methods of obtaining evidence that violate the legal rights of such a person.
ABA Standards Relating to Defense Function, Standard 4—7.6:

(a) The interrogation of all witnesses should be conducted fairly and without seeking
to intimidate or humiliate the witness unnecessarily.
(b) Defense counselʼs belief or knowledge that the witness is telling the truth does not
preclude cross-examination.
Should the court regulate the conduct of Martinʼs secretary in suggesting a relationship
with the plaintiff?
RULE 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant
- or that will not be supported by admissible evidence
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RULE 3.5: IMPARTIALITY AND DECORUM OF THE TRIBUNAL

(a) seek to influence a judge, juror, prospective juror or other official by means
prohibited by law;
RULE 3.3: CANDOR(honesty) TOWARD THE TRIBUNAL
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the lawyer
(m) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a
legislative body, administrative agency or other body acting in an adjudicative
capacity. A legislative body, administrative agency or other body acts in an
adjudicative capacity when a neutral official, after the presentation of evidence or
legal argument by a party or parties, will render a binding legal judgment directly
affecting a party's interests in a particular matter
PROBLEM 25 – Disclosure of Law or Facts Favorable to the Other Side

You are prepared for argument on your motion for summary judgment, but a last bit of
research turns up cases with dicta that are against you, and two have holdings
that by analogy are bad. Your opponent has not referred to these cases.
In addition, you have discovered that one of your witnesses testified inaccurately in a
deposition, whether inadvertently or not you donʼt know. The other side doesnʼt
know of the inaccuracy.
In another case, your client stood to be sentenced and the prosecutor mistakenly said
he had no criminal record.
If you fail to disclose the correct information in each of these cases, will you be
subject to discipline?
RULE 3.3: CANDOR TOWARD THE TRIBUNAL
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel;
(1) make a false statement of fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the lawyer;
- (not obliged to disclosed facts, only law)
- must disclose if the client dies because the claim is over
(d) (in ex parte you assume the duty for both sides)
1. In an ex parte proceeding,
2. a lawyer shall inform the tribunal of all material facts known to the lawyer that will
enable the tribunal to make an informed decision,
3. whether or not the facts are adverse.
(3) (deals with witnesses you call)
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1. offer evidence that the lawyer knows to be false.

2. If a lawyer, the lawyerʼs client, or a witness called by the lawyer, has offered
material evidence and the lawyer comes to know of its falsity,
3. the lawyer shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.
(b) representing client and knows client has is engaging in illegal conduct relating to
the proceeding
- bribing the jury or other illegal activity, not about perjury
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the
proceeding, and apply even if compliance requires disclosure of information
otherwise protected by Rule 1.6.

What to do when the judge asks about the clientʼs record?
Rule 1.6 (a): A lawyer shall not reveal information relating to the representation
of a client unless the client gives informed consent, the disclosure is impliedly
authorized in order to carry out the representation, or the disclosure is permitted
by paragraph (b).
- not clear on how an attorney should answer this inquiry
Rule 3.3 (a): A lawyer shall not knowingly
(1) make a false statement of fact or law to a tribunal or fail to correct a
false statement of material fact or law previously made to the tribunal by the
lawyer; * * *
PROBLEM 29 – The Crusading Prosecutor

Gene White is State’s Attorney of Springfield County, home of the state
legislature. He’s a crusader for good government, and each week he has a press
conference to suggest possible indictments The media run stories based on
alleged leaks about upcoming indictments while Gene denounces the rumor mill.
Gene’s office has prosecuted legislators whose cases will get him good
publicity and especially gone after a legislator on a minor drug charge who he
wants to get for larger reasons.
RULE 3.6: TRIAL PUBLICITY
(a)
1. A lawyer who is participating or has participated in the investigation or litigation of a
matter
2. shall not make an extrajudicial statement that the lawyer knows or reasonably
should know will be disseminated by means of public communication
a. and will have a substantial likelihood of materially prejudicing an adjudicative
proceeding in the matter.
(b) exception to paragraph (a)
Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the
identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
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(5) a request for assistance in obtaining evidence

(6) a warning of danger concerning the behavior of a person involved, when there is
reason to believe that there exists the likelihood of substantial harm; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to
aid in apprehension of that person;
(iii) the fact, time and place of arrest;
(c)
1. Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable
lawyer would believe is required to protect a client from the substantial undue
prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's
client.
2. A statement made pursuant to this paragraph shall be limited to such information as
is necessary to mitigate the recent adverse publicity.
(d)
No lawyer associated in a firm or government agency with a lawyer subject to
paragraph (a) shall make a statement prohibited by paragraph (a).
RULE 3.8: SPECIAL RESPONSIBILITIES OF A PROSECUTOR

The prosecutor in a criminal case shall:
(f) law enforcement personnel
1. except for statements that are necessary to inform the public of the nature and
extent of the prosecutor's action and that serve a legitimate law enforcement
purpose,
2. refrain from making extrajudicial comments that have a substantial likelihood of
heightening public condemnation of the accused and exercise reasonable care
to prevent investigators, law enforcement personnel, employees or other
persons assisting or associated with the prosecutor in a criminal case
3. from making an extrajudicial statement that the prosecutor would be prohibited from
making under Rule 3.6 or this Rule.
(a) higher than 3.1 obligation
refrain from prosecuting a charge that the prosecutor knows is not supported by
probable cause;
(b) not a major burden imposed on the prosecutor

1. make reasonable efforts to assure that the accused has been advised of the right to,
2. and the procedure for obtaining, counsel
3. and has been given reasonable opportunity to obtain counsel;
(c)
1. not seek to obtain from an unrepresented accused a waiver of important pretrial
rights,
2. such as the right to a preliminary hearing;
(d) exculpatory evidence (p does not have to disclose dead victim before admission)
1. make timely disclosure to the defense of all evidence or information known to the
prosecutor
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2. that tends to negate the guilt of the accused or mitigates the offense,
3. and, in connection with sentencing, disclose to the defense and to the tribunal all
unprivileged mitigating information known to the prosecutor,
a. except when the prosecutor is relieved of this responsibility by a protective order.
RULE 3.8: SPECIAL RESPONSIBILITIES OF A PROSECUTOR (continued)

The prosecutor in a criminal case shall:
(e)
1. not subpoena a lawyer in a grand jury or other criminal proceeding to present
evidence about a past or present client unless the prosecutor reasonably
believes:
(1) the information sought is not protected from disclosure by any
applicable privilege;
(2) the evidence sought is essential to the successful completion of an
ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(g)
1. When a prosecutor knows of new, credible and material evidence creating a
reasonable likelihood that a convicted defendant did not commit an offense of
which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court
authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an
investigation, to determine whether the defendant was convicted of an offense
that the defendant did not commit.
(h)
1. When a prosecutor knows of clear and convincing evidence establishing that a
defendant in the prosecutor’s jurisdiction was convicted of an offense that the
defendant did not commit,
2. the prosecutor shall seek to remedy the conviction.
Code of Judicial Conduct (2007) – Overview

• Preamble, Scope, Terminology (24 terms)
• Canon 1 – Preserve Confidence in Judges
• Canon 2 – How Carry Out Duties of Office
• Canon 3 – Extra-judicial Activities
• Canon 4 – The Judge in Political Activities
• PREAMBLE TO THE MODEL CODE OF JUDICIAL CONDUCT
[1]
Inherent in all the Rules contained in this Code are the precepts that judges,
individually and collectively, must respect and honor the judicial office as a public
trust and strive to maintain and enhance confidence in the legal system.
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[2] Judges should maintain the dignity of judicial office at all times, and avoid both
impropriety and the appearance of impropriety in their professional and personal
lives. They should aspire at all times to conduct that ensures the greatest
possible public confidence in their independence, impartiality, integrity, and
competence.
[3] The Model Code of Judicial Conduct * * * is not intended as an exhaustive guide for
the conduct of judges and judicial candidates, who are governed in their judicial
and personal conduct by general ethical standards as well as by the Code. The
Code is intended, however, to provide guidance and assist judges in maintaining
the highest standards of judicial and personal conduct, and to provide a basis for
regulating their conduct through disciplinary agencies.
SCOPE PROVISIONS OF THE MODEL CODE OF JUDICIAL CONDUCT
[2]
Although a judge may be disciplined only for violating a Rule, the Canons provide
important guidance in interpreting the Rules. Where a Rule contains a permissive
term, such as “may” or “should,” the conduct being addressed is committed to the
personal and professional discretion of the judge or candidate in question, and no
disciplinary action should be taken for action or inaction within the bounds of such
discretion.
[3]
The Comments that accompany the Rules * * * provide guidance regarding the
purpose, meaning, and proper application of the Rules. * * * Comments neither
add to nor subtract from the binding obligations set forth in the Rules. * * *
[5]
The Rules of the Model Code of Judicial Conduct are rules of reason that should be
applied consistent with constitutional requirements, statutes, other court rules,
and decisional law, and with due regard for all relevant circumstances. The Rules
should not be interpreted to impinge upon the essential independence of judges
in making judicial decisions.
[6]
Although the black letter of the Rules is binding and enforceable, it is not contemplated
that every transgression will result in the imposition of discipline. * * *
[7]
The Code is not designed or intended * * * to be the basis for litigants to seek collateral
remedies against each other or to obtain tactical advantages in proceedings
before a court.
RULE 8.4: MISCONDUCT

It is professional misconduct for a lawyer to:
(f)
1. knowingly assist a judge or judicial officer in conduct that is a violation of applicable
rules of judicial conduct or other law.
Model Rule 8.2: Judicial and Legal Officials
(a) lawyer conduct toward judges
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1. A lawyer shall not make a statement that the lawyer knows to be false or with
reckless disregard as to its truth or falsity concerning the qualifications or
integrity of a judge, adjudicatory officer or public legal officer, or of a
candidate for election or appointment to judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable
provisions of the Code of Judicial Conduct.
Rule 8.3: Reporting Professional Misconduct

(b)
1. A lawyer who knows that a judge has committed a violation of applicable rules of
judicial conduct
2. that raises a substantial question as to the judge’s fitness for office shall inform the
appropriate authority.
Rule 2.4: Lawyer Serving as Third Party Neutral
(a) mediators
1. A lawyer serves as a third-party neutral when the lawyer assists two or more
persons who are not clients of the lawyer to reach a resolution of a dispute or
other matter that has arisen between them.
2. Service as a third-party neutral may include service as an arbitrator, a mediator or in
such other capacity as will enable the lawyer to assist the parties to resolve the
matter.
(b) analogous to 4.3 be clear

1. A lawyer serving as a third party neutral shall inform unrepresented parties that the
lawyer is not representing them.
2. When the lawyer knows or reasonably should know that a party does not
understand the lawyer’s role in the matter,
a. the lawyer shall explain the different between the lawyer’s role as a third-party
neutral
b. and a lawyer’s role as one who represents a client.
Problem 38
Judges’ Disqualifying Conflicts of Interest
Harold Baxter is a judge; Martha Anderson is a lawyer. They have been
friends since law school. When Baxter needed a loan to cover the down payment
on a new house, Anderson loaned the money to him. He then borrowed the rest
from a bank that Anderson represents and that is now in a case before Baxter.
Baxter also has a 19 year old niece who lives in his home and has
investments. He also used to serve on the Board of the Committee for
Responsible Assessment Policy and he has now been assigned a case where an
assessment is being challenged.
The Canon 1 Provisions
RULE 1.1 -- Compliance with the Law
1. A judge shall comply with the law, including the Code of Judicial Conduct.
RULE 1.2 -- Promoting Confidence in the Judiciary
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1. A judge shall act at all times in a manner that promotes public confidence in the
independence, integrity, and impartiality of the judiciary, and shall avoid
impropriety and the appearance of impropriety.
[5] The test for appearance of impropriety is whether the conduct would create in
reasonable minds a perception that the judge violated this Code or
engaged in other conduct that reflects adversely on the judge’s honesty,
impartiality, temperament, or fitness to serve as a judge.
RULE 1.3 -- Avoiding Abuse of the Prestige of Judicial Office
1. A judge shall not abuse the prestige of judicial office to advance the personal or
economic interests of the judge or others, or allow others to do so.
CJC Rule 2.3 – Prohibiting Bias & Prejudice
(A) A judge shall perform the duties of judicial office, including administrative duties,
without bias or prejudice.
(B)
1. A judge shall not, in the performance of judicial duties, by words or conduct manifest
bias or prejudice, or engage in harassment,
2. including but not limited to bias, prejudice, or harassment based upon race, sex,
gender, religion, national origin, ethnicity, disability, age, sexual orientation,
marital status, socioeconomic status, or political affiliation,
3. and shall not permit court staff, court officials, or others subject to the judge’s
direction and control to do so.
(C)
1. A judge shall require lawyers in proceedings before the court to refrain from
manifesting bias or prejudice, or engaging in harassment against parties,
witnesses, lawyers, or others.
(D)
1. The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from
making legitimate reference to the listed factors, or similar factors,
2. when they are relevant to an issue in a proceeding.
RULE 3.6 -- Affiliation with Discriminatory Organizations

(A) A judge shall not hold membership in any organization that practices invidious
discrimination on the basis of race, sex, gender, religion, national origin, ethnicity,
or sexual orientation.
(B) A judge shall not use the benefits or facilities of an organization if the judge knows
or should know that the organization practices invidious discrimination on one or
more of the bases identified in paragraph
(A). A judge’s attendance at an event in a facility of an organization that the judge
is not permitted to join is not a violation of this Rule when the judge’s attendance
is an isolated event that could not reasonably be perceived as an endorsement
of the organization’s practices.
CJC Rule 2.9 – Ex Parte Communications
(A) A judge shall not initiate, permit, or consider ex parte communications concerning a
pending or impending matter, except as follows:
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(1) When circumstances require it, ex parte communication for

scheduling, administrative, or emergency purposes, which does not address
substantive matters, is permitted, provided:
(a) the judge reasonably believes that no party will gain a procedural,
substantive, or tactical advantage as a result of the ex parte communication; and
(b) the judge makes provision promptly to notify all other parties of the
substance of the ex parte communication, and gives the parties an opportunity to
respond.
(2) expert advice
1. A judge may obtain the written advice of a disinterested expert on the law applicable
to a proceeding before the judge,
a. if the judge gives advance notice to the parties of the person to be consulted
i. and the subject matter of the advice to be solicited,
ii. and affords the parties a reasonable opportunity to object
iii. and respond to the notice and to the advice received.
(3) talking to clerks
1. A judge may consult with court staff and court officials whose functions are to aid the
judge in carrying out the judge’s adjudicative responsibilities,
2. or with other judges,
a. provided the judge makes reasonable efforts to avoid receiving factual
information that is not part of the record,
i. and does not abrogate the responsibility personally to decide the matter.
(4) A judge may, with the consent of the parties, confer separately with the parties and
their lawyers in an effort to settle matters pending before the judge.
(5) A judge may initiate, permit, or consider any ex parte communication when
expressly authorized by law to do so.
(B) If a judge inadvertently receives an unauthorized ex parte communication
bearing upon the substance of a matter, the judge shall make provision promptly
to notify the parties of the substance of the communication and provide the
parties with an opportunity to respond.
(C) A judge shall not investigate facts in a matter independently, and shall
consider only the evidence presented and any facts that may properly be
judicially noticed.
(D) A judge shall make reasonable efforts, including providing appropriate
supervision, to ensure that this Rule is not violated by court staff, court officials,
and others subject to the judge’s direction and control.
CJC Rule 2.10 – Commenting on Cases- Judicial Statements on Pending and
Impending Cases
(A)
1. A judge shall not make any public statement that might reasonably be expected to
affect the outcome or impair the fairness of a matter pending or impending in
any court,
2. or make any nonpublic statement that might substantially interfere with a fair trial or
hearing.
(B) pledges promises or commitments before a case comes to you
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A judge shall not, in connection with cases, controversies, or issues that are likely to
come before the court, make pledges, promises, or commitments that are
inconsistent with the impartial* performance of the adjudicative duties of judicial
office.
(C) A judge shall require court staff, court officials, and others subject to the judge’s
direction and control to refrain from making statements that the judge would be
prohibited from making by paragraphs (A) and (B).
(D) Notwithstanding the restrictions in paragraph (A), a judge may make public
statements in the course of official duties, may explain court procedures, and may
comment on any proceeding in which the judge is a litigant in a personal capacity.
(E) Subject to the requirements of paragraph (A), a judge may respond directly or
through a third party to allegations in the media or elsewhere concerning the
judge’s conduct in a matter.
CJC Rule 2.11 - Disqualification
(A)
1. A judge shall disqualify himself or herself in any proceeding in which the judge’s
impartiality might reasonably be questioned,
2. including but not limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party’s
lawyer, or personal knowledge of facts that are in dispute in the proceeding.
(2) The judge knows that the judge, the judge’s spouse or domestic partner, or a
person within the third degree of relationship to either of them, or the spouse or
domestic partner of such a person is:
(a) a party to the proceeding, or an officer, director, general partner,
managing member, or trustee of a party;
(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis interest that could be
substantially affected by the proceeding; or
(d) likely to be a material witness in the proceeding.
(3) The judge knows that he or she, individually or as a fiduciary, or the judge’s spouse,
domestic partner, parent, or child, or any other member of the judge’s family
residing in the judge’s household, has an economic interest in the subject matter
in controversy or in a party to the proceeding.
(4) The judge knows or learns by means of a timely motion that a party, a party’s
lawyer, or the law firm of a party’s lawyer has within the previous [insert number]
year[s] made aggregate contributions to the judge’s campaign in an amount that
is greater than [$[insert amount] for an individual or $[insert amount] for an entity]
[is reasonable and appropriate for an individual or an entity].
(5) The judge, while a judge or a judicial candidate, has made a public statement, other
than in a court proceeding, judicial decision, or opinion, that commits or appears
to commit the judge to reach a particular result or rule in a particular way in the
proceeding or controversy.
(6) The judge:
(a) served as a lawyer in the matter in controversy, or was associated with
a lawyer who participated substantially as a lawyer in the matter during such
association;
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(b) served in governmental employment, and in such capacity

participated personally and substantially as a lawyer or public official concerning
the proceeding, or has publicly expressed in such capacity an opinion concerning
the merits of the particular matter in controversy;
(c) was a material witness concerning the matter; or
(d) previously presided as a judge over the matter in another court.
(B) A judge shall keep informed about the judge’s personal and fiduciary economic
interests, and make a reasonable effort to keep informed about the personal
economic interests of the judge’s spouse or domestic partner and minor children
residing in the judge’s household.
(C)
1. A judge subject to disqualification under this Rule, other than for bias or prejudice
under paragraph (A)(1), may disclose on the record the basis of the judge’s
disqualification and may ask the parties and their lawyers to consider,
2. outside the presence of the judge and court personnel, whether to waive
disqualification.
3. If, following the disclosure, the parties and lawyers agree, without participation by
the judge or court personnel, that the judge should not be disqualified,
4. the judge may participate in the proceeding.
5. The agreement shall be incorporated into the record of the proceeding.
RULE 3.1 -- Extrajudicial Activities in General
A judge may engage in extrajudicial activities, except as prohibited by law or this Code.
However, when engaging in extrajudicial activities, a judge shall not:
(A) participate in activities that will interfere with the proper performance of the judge’s
judicial duties;
(B) participate in activities that will lead to frequent disqualification of the judge;
(C) participate in activities that would appear to a reasonable person to undermine the
judge’s independence, integrity, or impartiality;
(D) engage in conduct that would appear to a reasonable person to be coercive; or
(E) make use of court premises, staff, stationery, equipment, or other resources,
except for incidental use for activities that concern the law, the legal system, or
the administration of justice, or unless such additional use is permitted by law.
RULE 3.2 -- Appearances * * * and Consultation with Government

Officials
A judge shall not appear voluntarily at a public hearing before, or otherwise consult
with, an executive or a legislative body or official, except:
(A) in connection with matters concerning the law, the legal system, or the
administration of justice;
(B) in connection with matters about which the judge acquired knowledge or expertise
in the course of the judge’s judicial duties; or
(C) when the judge is acting pro se in a matter involving the judge’s legal or economic
interests, or when the judge is acting in a fiduciary capacity.
RULE 3.3 -- Testifying as a Character Witness
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A judge shall not testify as a character witness in a judicial, administrative, or other

adjudicatory proceeding or otherwise vouch for the character of a person in a
legal proceeding, except when duly summoned.
RULE 3.4 -- Appointments to Governmental Positions

A judge shall not accept appointment to a governmental committee, board,
commission, or other governmental position, unless it is one that concerns the
law, the legal system, or the administration of justice.
CJC RULE 3.7 Participation in Educational, Religious, Charitable, or Civic
Organizations and Activities
(A) Subject to the requirements of Rule 3.1, a judge may participate in activities
sponsored by organizations or governmental entities concerned with the law, the
legal system, or the administration of justice, and those sponsored by or on behalf
of educational, religious, charitable, fraternal, or civic organizations not conducted
for profit, including but not limited to the following activities:
(1) assisting such an organization or entity in planning related to fund-raising, and
participating in the management and investment of the organization’s or entity’s
funds;
(2) soliciting contributions for such an organization or entity, but only from members of
the judge’s family, or from judges over whom the judge does not exercise
supervisory or appellate authority;
(3) soliciting membership for such an organization or entity, * * * but only if the
organization or entity is concerned with the law, the legal system, or the
administration of justice;
RULE 3.9 -- Service as Arbitrator or Mediator
A judge shall not act as an arbitrator or a mediator or perform other judicial functions
apart from the judge’s official duties unless expressly authorized by law.
RULE 3.10 -- Practice of Law
A judge shall not practice law. A judge may act pro se and may, without compensation,
give legal advice to and draft or review documents for a member of the judge’s
family, but is prohibited from serving as the family member’s lawyer in any forum.
RULE 3.11 -- Financial, Business, or Remunerative Activities
(A) A judge may hold and manage investments of the judge and members of the
judge’s family.
(B) A judge shall not serve as an officer, director, manager, general partner, advisor, or
employee of any business entity except that a judge may manage or participate
in:
(1) a business closely held by the judge or members of the judge’s family; or
(2) a business entity primarily engaged in investment of the financial resources of the
judge or members of the judge’s family.
(C) A judge shall not engage in financial activities permitted under paragraphs (A) and
(B) if they will:
(1) interfere with the proper performance of judicial duties;
(2) lead to frequent disqualification of the judge;
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(3) involve the judge in frequent transactions or continuing business

relationships with lawyers or other persons likely to come before the court on
which the judge serves; or
(4) result in violation of other provisions of this Code.
RULE 3.12 -- Compensation for Extrajudicial Activities
A judge may accept reasonable compensation for extrajudicial activities permitted by
this Code or other law unless such acceptance would appear to a reasonable
person to undermine the judge’s independence, integrity, or impartiality.
RULE 3.14 -- Reimbursement of Expenses and Waivers of Fees or Charges
(A) Unless otherwise prohibited by other law, a judge may accept reimbursement of
necessary and reasonable expenses for travel, food, lodging, or other incidental
expenses, or a waiver or partial waiver of fees or charges from sources other than
the judge’s employing entity, if the expenses or charges are associated with the
judge’s participation in extrajudicial activities permitted by this Code.
(B) Reimbursement of expenses for necessary travel, food, lodging, or other incidental
expenses shall be limited to the actual costs reasonably incurred by the judge
and, when appropriate to the occasion, by the judge’s spouse, domestic partner,
or guest.
(C) A judge who accepts reimbursement of expenses or waivers or partial waivers of
fees or charges on behalf of the judge or the judge’s spouse, domestic partner, or
guest shall publicly report such acceptance as required by Rule 3.15.
CJC RULE 3.13: Acceptance and Reporting of Gifts, Loans, * * * Benefits, or

Other Things of Value
(A) A judge shall not accept any gifts, loans, bequests, benefits, or other things of
value, if acceptance is prohibited by law or would appear to a reasonable person
to undermine the judge’s independence, integrity, or impartiality.
(B) Unless otherwise prohibited by law, or by paragraph (A), a judge may accept the
following without publicly reporting such acceptance:
(1) items with little intrinsic value, such as plaques, certificates, trophies, and greeting
cards;
(2) gifts, loans, bequests, benefits, or other things of value from friends, relatives, or
other persons, including lawyers, whose appearance or interest in a proceeding
pending or impending before the judge would in any event require disqualification
of the judge under Rule 2.11;
(3) ordinary social hospitality;
(4) commercial or financial opportunities and benefits, including special pricing and
discounts, and loans from lending institutions in their regular course of business,
if the same opportunities and benefits or loans are made available on the same
terms to similarly situated persons who are not judges;
(7) books, magazines, journals, audiovisual materials, and other resource materials
supplied by publishers on a complimentary basis for official use; or
(8) gifts, awards, or benefits associated with the business, profession, or other
separate activity of a spouse, a domestic partner, or other family member of a
judge residing in the judge’s household, but that incidentally benefit the judge.
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(C) Unless otherwise prohibited by law or by paragraph (A), a judge may accept the
following items, and must report such acceptance to the extent required by Rule
3.15:
(1) gifts incident to a public testimonial;
(2) invitations to the judge and the judge’s spouse, domestic partner, or guest to
attend without charge:
(a) an event associated with a bar-related function or other activity
relating to the law, the legal system, or the administration of justice; or
(b) an event associated with any of the judge’s educational, religious,
charitable, fraternal or civic activities permitted by this Code * * *; and
(3) gifts, loans, bequests, benefits, or other things of value, if the source is a party
or other person, including a lawyer, who has come or is likely to come before the
judge, or whose interests have come or are likely to come before the judge.
Rule 4.1: Political and Campaign Activities of Judges and Judicial Candidates in
General (hard to write a question on may not be tested)
(A) Except as permitted by law or by Rules 4.2, 4.3 and 4.4, a judge or a judicial
candidate shall not:
(1) act as a leader in, or hold an office in, a political organization;
(8) personally solicit or accept campaign contributions other than through a campaign
committee authorized by Rule 4.4;
(13) in connection with cases, controversies, or issues that are likely to come before
the court, make pledges, promises, or commitments that are inconsistent with
the impartial performance of the adjudicative duties of judicial office.
CJC RULE 4.4: Campaign Committees
(A) A judicial candidate subject to public election may establish a campaign committee
to manage and conduct a campaign for the candidate, subject to the provisions of
this Code. The candidate is responsible for ensuring that his or her campaign
committee complies with applicable provisions of this Code and other applicable
law.
(B) A judicial candidate subject to public election shall direct his or her campaign
committee:
(1) establishing limits on campaign contributions to solicit and accept only such
campaign contributions as are reasonable, in any event not to exceed, in the
aggregate, $[insert amount] from any individual or $[insert amount] from any
entity or organization;
(2) can collect before up for reelection and days after the election not to
solicit or accept contributions for a candidate’s current campaign more than
[insert amount of time] before the applicable primary election, caucus, or general
or retention election, nor more than [insert number] days after the last election in
which the candidate participated; and
(3) to comply with all applicable statutory requirements for disclosure and
divestiture of campaign contributions, and to file with [name of appropriate
regulatory authority] a report stating the name, address, occupation, and
employer of each person who has made campaign contributions to the committee
in an aggregate value exceeding $[insert amount]. * * *
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DUTIES TO THIRD PARTIES

This hour we turn away from a focus on duties to the lawyer’s client and look at the
lawyer’s duties to third parties. They are not so much affirmative duties as they
are limits on what you may do on the client’s behalf.
Problem 19 – Contacting Represented and Unrepresented Persons

A pedestrian has been hurt by a truck from Speedy Corp. The accident was witnessed
by Mary Speedy, the company president, and Barry Winters from accounting.
Louis Shabazz, plaintiff’s counsel, wants to talk to them and to the truck driver
without resorting to depositions. Barbara Bentley, the company’s counsel, wants
to talk to the same people.
RULE 4.2: COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL
Overreaching by counsel
1. In representing a client, a lawyer shall not communicate about the subject of the
representation with a person the lawyer knows to be represented by another lawyer
in the matter,
a. unless the lawyer has the consent of the other lawyer or is authorized to do so
by law or a court order.
RULE 4.3: DEALING WITH UNREPRESENTED PERSON

1. In dealing on behalf of a client with a person who is not represented by counsel, a
lawyer shall not state or imply that the lawyer is disinterested.
2. When the lawyer knows or reasonably should know that the unrepresented person
misunderstands the lawyer’s role in the matter, the lawyer shall make
reasonable efforts to correct the misunderstanding.
3. The lawyer shall not give legal advice to an unrepresented person, other than the
advice to secure counsel,
a. if the lawyer knows or reasonably should know that the interests of such a
person are or have a reasonable possibility of being in conflict with the
interests of the client.
RULE 2.3: EVALUATION FOR USE BY THIRD PERSONS
Opinion to a person not your client
(a) A lawyer may provide an evaluation of a matter affecting a client for the use of
someone other than the client if the lawyer reasonably believes that making the
evaluation is compatible with other aspects of the lawyer's relationship with the
client.
(b) When the lawyer knows or reasonably should know that the evaluation is likely to
affect the client's interests materially and adversely, the lawyer shall not provide
the evaluation unless the client gives informed consent.
(c) Except as disclosure is authorized in connection with a report of an evaluation,
information relating to the evaluation is otherwise protected by Rule 1.6.
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PROBLEM 20 – The Ethics of Negotiation

Your client, James Young, was in a traffic accident. To all but you, he has denied
drinking before getting in the car, but in fact he had three large drinks.
Fortunately, the arresting officer forgot his testing kit so there is no hard evidence.
Plea negotiations and civil settlement talks are coming up. You want to get the
best deal you can for him.
RULE 4.1: TRUTHFULNESS IN STATEMENTS TO OTHERS

In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person (cannot say my
lawyer had nothing to drink on the day of the accident)
(b) fail to disclose a material fact when disclosure is necessary to avoid assisting a
criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Rule 4.4 – Respect for Rights of Third Persons
(a) In representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person, or use methods
of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer who receives a document relating to the representation of the lawyer's
client and knows or reasonably should know that the document was inadvertently
sent shall promptly notify the sender.
New Rule (amended Aug. 2012) (metadata/ data that gives information on who
what and when a document was prepared)
(b) A lawyer who receives a document or electronically stored information relating to
the representation of the lawyer's client and knows or reasonably should know
that the document or electronically stored information was inadvertently sent shall
promptly notify the sender.
[2] * * * “[E]lectronically stored information” includes, in addition to * * * email and other
forms of electronically stored information, including embedded data (commonly
referred to as “metadata”), that is subject to being read or put into readable form.
Metadata in electronic documents creates an obligation under this Rule only if the
receiving lawyer knows or reasonably should know that the metadata was
inadvertently sent to the receiving lawyer.
PROBLEM 31–Marketing Professional Services
Hi –
I’m Jerry Harrold and I’m a lawyer. I went to State Law School, was a
member of the moot court team, and served as a Judge Advocate in the Army. I
don’t claim to be the best lawyer in the state, but some of my former clients have
agreed to act as references. I’ll be glad to supply their names to you.
I am unusual in one respect. I charge clients a flat rate of $95 per hour,
win or lose, big case or small. That lets me cover my expenses and have a
decent income, but most of my clients have found that it saves them a great deal
in legal fees.
I look forward to meeting you soon.
– Jerry
Code of Professional Responsibility DR 2-101(B)
A lawyer may publish or broadcast
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(1) Name addresses and telephone number;

(5) Schools attended, degrees and other scholastic distinctions;
(16) With their written consent, names of clients regularly represented;
(23) Range of fees for services;
(24) Hourly rate, provided that the statement discloses that the total fee charged will
depend upon the number of hours which must be devoted to the particular matter.
RULE 7.1: COMMUNICATIONS CONCERNING A LAWYER'S SERVICES

1. A lawyer shall not make a false or misleading communication about the lawyer or
the lawyer's services.
a. A communication is false or misleading if it contains a material
misrepresentation of fact or law,
b. or omits a fact necessary to make the statement considered as a whole not
materially misleading.
RULE 7.2: ADVERTISING

(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services
through written, recorded or electronic communication, including public media.
(c) for larger firms. Any communication made pursuant to this rule shall include the
name and office address of at least one lawyer or law firm responsible for its
content.
(b) A lawyer shall not give anything of value to a person for recommending the
lawyer's services except that a lawyer may
(1) pay the reasonable costs of advertisements permitted by this Rule
(2) pay the usual charges of a legal services plan or a not for profit or qualified
lawyer referral service.
(3) pay for a law practice in accordance with Rule 1.17;
(4) refer clients to another lawyer or a non-lawyer professional pursuant to an
agreement not otherwise prohibited under these Rules that provides for the other
person to refer clients or customers to the lawyer, if
(i) the reciprocal referral agreement is not exclusive, and
(ii) the client is informed of the existence and nature of the agreement.
RULE 7.3: DIRECT CONTACT WITH PROSPECTIVE CLIENTS
(a) 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 the person contacted:
(1) is a lawyer; or
(2) has a family, close personal, or prior professional relationship with the lawyer.
(b) A lawyer shall not solicit professional employment from a prospective client by
written, recorded or electronic communication or by in-person, telephone or real-
time electronic contact even when not otherwise prohibited by paragraph (a), if:
(1) the prospective client has made known to the lawyer a desire not to be
solicited by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.
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(c) Every written, recorded or electronic communication from a lawyer soliciting

professional employment from a prospective client known to be in need of legal
services in a particular matter shall include the words "Advertising Material“
unless the recipient of the communication is a person specified in paragraphs (a)
(1) or (a)(2).
RULE 7.4: COMMUNICATION OF FIELDS OF PRACTICE AND SPECIALIZATION
(a) A lawyer may communicate the fact that the lawyer does or does not practice in
particular fields of law. Cannot say you specialize
(b) A lawyer admitted to engage in patent practice before the United States Patent
and Trademark Office may use the designation "Patent Attorney" or a
substantially similar designation. * * *
(c) A lawyer engaged in Admiralty practice may use the designation “Admiralty,”
“Proctor in Admiralty” or a substantially similar designation.
(d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a
particular field of law, unless:
(1) the lawyer has been certified as a specialist by an organization that has been
approved by an appropriate state authority or that has been accredited by the
American Bar Association; and
(2) the name of the certifying organization is clearly identified in the
communication.
RULE 7.5: FIRM NAMES AND LETTERHEADS
(a)
1. A lawyer shall not use a firm name, letterhead or other professional designation that
violates Rule 7.1.
2. A trade name may be used by a lawyer in private practice if it does not imply a
connection with a government agency or with a public or charitable legal
services organization and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one jurisdiction may use the same name * * * in
each jurisdiction, but identification of the lawyers in an office of the firm shall
indicate the jurisdictional limitations on those not licensed to practice in the
jurisdiction where the office is located.
(c) The name of a lawyer holding a public office shall not be used in the name of a law
firm, or in communications on its behalf, during any substantial period in which
the lawyer is not actively and regularly practicing with the firm.
(d) Lawyers may state or imply that they practice in a partnership or other organization
only when that is a fact.
RULE 7.6: POLITICAL CONTRIBUTIONS TO OBTAIN GOVERNMENT LEGAL
ENGAGEMENTS OR APPOINTMENTS BY JUDGES (not adopted in most states)
1. A lawyer or law firm shall not accept a government legal engagement or an
appointment by a judge if the lawyer or law firm makes a political contribution
or solicits political contributions for the purpose of obtaining or being
considered for that type of legal engagement.
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Model Rule 8.4: Misconduct: PR Class 1

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Model Rule 8.4: Misconduct: PR Class 1

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What are the main rules regarding a lawyer's conduct?

What are the main rules regarding a lawyer's conduct?

What are a lawyer's obligations regarding reporting misconduct of other lawyers?

What are a lawyer's obligations regarding reporting misconduct of other lawyers?

PR class 1

The Preamble to the Model Rules identifies four lawyer roles:

Problem 2 – Lawyer Discipline

MODEL RULE 8.4: MISCONDUCT

ii. fail to disclose a fact necessary to correct a misapprehension known by the

REGULATING LAWYERS OUTSIDE A FORMAL DISCIPLINARY

THE LIFE CYCLE OF A CASE

RULE 1.18: DUTIES TO PROSPECTIVE CLIENT

3. provides short-term limited legal services to a client

RESTATEMENT § 14: FORMATION OF A CLIENT-LAWYER RELATIONSHIP

WHAT GOES INTO AN ENGAGEMENT LETTER?

1. Who the client is (and sometimes who the client is not).

RULE 1.2: ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER

RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY

FEE ARAINGEMENTS AND PRO BONO WORK

SPECIAL ISSUE – CONTINGENT FEES

MODEL RULE 1.5(d): FEES

Model Rule 1.0: Terminology

c. in matters designed primarily to address the needs of persons of limited

Model Rule 2.1 – Advisor

RULE 1.14: CLIENT WITH DIMINISHED CAPACITY

RULE 1.15: SAFEKEEPING PROPERTY

3. in a client trust account

RULE 1.16: DECLINING OR TERMINATING REPRESENTATION

Lawyer Retaining Liens

MODEL RULE 1.6: CONFIDENTIALITY OF INFORMATION

Exceptions to the confidentiality doctrines

PROBLEM 9 – Representing Multiple Parties Dealing With Each Other

RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST:

RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS

RULE 1.0: TERMINOLOGY

RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC

(g) assuming you clear all conflicts

RULE 6.3: MEMBERSHIP IN LEGAL SERVICES ORGANIZATION

Direct Adversity Conflict – A Practical Example

RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS

How easy should it be to make a current client a former client?

Problem 12 – Conflicts Between Client Interests and the Lawyerʼs Personal

RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES

RULE 1.8 (e) Financial Assistance

PROBLEM 14 – The Lawyerʼs Former Client

RULE 1.9: DUTIES TO FORMER CLIENTS

[4] The rule in paragraph (a) also does not prohibit

RULE 1.9: DUTIES TO FORMER CLIENTS

RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL

PROBLEM 15 – Imputation of Conflicts

RULE 1.0: TERMINOLOGY

RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE

RULE 1.11: SPECIAL CONFLICTS OF INTEREST FOR FORMER AND

i. to such a person or as an arbitrator, mediator or other third-party neutral,

Conflicts of Interest Within a Corporation

1. If a lawyer for an organization knows that an officer, employee or other person

1. A lawyer representing an organization may also represent any of its directors,

The Ethics of Litigation

PROBLEM 24 – Litigation Tactics