Documentos de Académico
Documentos de Profesional
Documentos de Cultura
SPRING 2014
Who regulates?
The court has the inherent and exclusive authority to regulate practice of law. The Court
regulates:
o Admission to the bar
o Licenses
o Adopts the professional rules of conduct
o Legislation can regulate, but the Judge may void it
Self-Regulate (see Rule 8.3)
What is a professional?
Educated individuals devoted to public service in an autonomous, self-regulated group
View professionals by their qualifications, status, and kinds of work
Your reputation is your most important professional asset b/c get clients mainly from
referrals
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Inherent power of the court
o Consequence to Atty: Trial level ct holds atty in contempt or requires atty forfeit
fees
General Common Law
o Consequence to Atty: Client sues for damages (under tort of K suit for
malpractice or suit for breach of fiduciary duty)
Statutes
o Consequence to Atty: clients may sue for damages (under codified CL standards
or under additional legislative bases, such as consumer protection laws)
Malpractice Insurance Contract
o Consequence to Atty: insurer increases malpractice rates or declines coverage
Reputational Regulation
o Consequence to Atty: client fires atty and doesn’t pay for the representation.
Client, other atty’s, and court will not refer other clients
ADMISSION V. DISCIPLINE
Admission
Burden of Proof: burden is on the applicant
Who admits attorneys? The court admits attorneys to the bar
Conduct need not be something that would violate a rule of professional conduct in order
to provide a basis for determining that an applicant lacks good moral character and fitness
to practice law.
o Lane v. Bar Commission of NE State Bar Association Questionable
violations of the rules of professional conduct may be looked at more severely in
the application stage. Here guy was coarse, rude, sexist, hostile and maybe
threatening on more than one occasion. On one occasion, when Lane was helping
out w/ clinic, Lane threatened a professor of the clinic when she wouldn’t let him
step past the bar and said that he would not work with women students. On
second occasion at a BAR-BRI review course, Lane left 10 minutes early and then
returned and demanded to know who had stolen his keys. Lane used strong and
profane language in accusing the students. In addition, his employment history
indicated that he had outbursts in the lobby while filling out an application and
that he was very rude to female employees and that he walked off one job,
allegedly telling one supervisor to have all his employees see a psychiatrist.
Court held this was grounds for a proper denial of admission to bar. Conduct
reflected poorly on the legal profession and this is not the behavior acceptable of
counsel. (also guy would not have been admitted due to his failure to adequately
answer all questions presented to him upon application (would violate lack of
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candor to tribunal Rule 3.3 and exhibits flaws in trustworthiness, honesty and
reliability of Rule 8.4(b)&(c), which provide a separate basis for not admitting)).
o In Re Whitworth Whitworth was suspended for 2 years b/c of his addiction to
meth and alcohol. Whitworth voluntarily told the disciplinary counsel of this b/c
it was his duty to report it (originally Whitworth was being seen by the
disciplinary counsel b/c of other misconduct – the most frequent violation being
his failure to respond to the Bar’s allegations). Was then suspended for 2 yrs, but
said he could be reinstated in 2 years by demonstrating his sobriety and by
meeting all the requirements for Rule 11 reinstatement. Although readmission
which requires higher standard than even admittance this shows burden is still on
applicant. In readmittance must consider (1) Present moral fitness to practice; (2)
Consciousness of previous wrongs; (3) Extent of applicants rehab (drugs and
alcohol mainly); (4) Seriousness of original misconduct; (5) Conduct after
discipline; (6) Time since previous discipline; (7) Character, Maturity and
Experience of applicant; (8) Present legal competence. Applicant must show
clear and convincing evidence of fitness to practice law to be readmitted. Here,
Whitworth was able to be reinstated b/c he candid about his addictions, was extra
involved in AA, and passed all random drugs tests.
o In Re Heart: applicant who sent email to a member of the board of bar examiners
at 3am about asking for special favors was improper and she was denied the
opportunity to sit for the bar at that time. Even though it may be innocent conduct
it was still unacceptable and improper.
Why do we regulate admission to the practice of law?
o To require minimum levels of competence
o Create affirmative standards of conduct or reiterate requirements of general law
o Protect clients who do not know the law
o Protect clients from fraud, mishandling of funds, betrayal of confidences, etc.
o Protect courts and the administration of justice from subordination,
misrepresentation, bribery, etc.
o Protect image/reputation of legal profession
o Protect profession from eternal regulation
o To control supply of legal services
*Tougher standard in admittance because it is better to protect the public from admitting those
not competent or fit to practice than accidentally excluding few who are competent
Disciplinary Matters
Burden of Proof: Burden is on the state (is not beyond a reasonable doubt though)
Purpose of discipline is not punishment – purpose is protection of the public
When it is a disciplinary matter, the Court Rules are the binding authority
o Note: courts promulgate rules by court orders
4 Ways to Get to S.C. on a Disciplinary Matter:
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1. Complainant can reject disciplinary counsel’s recommendation
2. Disciplinary counsel can reject disciplinary counsel’s recommendation
3. Respondent counsel can reject disciplinary counsel’s recommendation
4. Court can reject disciplinary counsel’s recommendation
4 areas of practice that are at highest risk of complaint:
o Domestic
o Criminal
o Torts
o Estates
Most common reasons for malpractice and discipline are grounded in management
(missing deadlines, having too many cases, etc.); client relationships (poor
communication); and attorney self-management (stress, substance abuse, other
addictions).
An attorney may be disciplined for a single mistake caused by mere negligence – BUT,
as a practical matter, disciplinary actions are almost never based on a single instance of
mere negligence
How NOT to respond to a disciplinary complaint:
o Lie
o Ignore
o Attack/contact the complainant or the process
o Quibble/rationalize/make excuses
o Try to shift responsibility
Practical Influences on Administration of a Discipline System
Degree of risk to the public
Costs of investigation and prosecution
Alternatives to discipline (e.g., lawyers assistance programs)
SANCTIONS
Sanctions
Aggravating Circumstances for Choosing a Sanction
o Prior Discipline
o Dishonest or Selfish Motive for actions
Mitigating C Circumstances for Choosing a Sanction:
o Cooperation
o Remorse
Baseline Elements for Choosing a Sanction
o Duty Violated
o Lawyers mental state (level of intent), and
o The extent of injury or potential injury
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Take notes – be organized
PREAMBLE
A Lawyer’s Responsibilities
Lawyers perform various functions:
o Advisor: provides client w/ an informed understanding of the client’s legal rights
and obligations and explains their practical implications
o Advocate: zealously asserts the client’s position under the rules of the adversary
system
o Negotiator: seeks a result advantageous to the client but consistent w/
requirements of honest dealings w/ others
o Evaluator: examining a client’s legal affairs and reporting about them to the client
or to others
Lawyer should be competent, prompt, & diligent
A lawyer can be sure that preserving client confidences ordinarily serves the public
interest b/c ppl are more likely to seek legal advice, and thereby heed their legal
obligations, when they know their communications will be private
Legal profession is largely self-governing
Scope
Rules of Professional Conduct are rules of reason
Violation of a rule should not itself give rise to a cause of action against a lawyer nor
should it create any presumption in such a case that a legal duty has been breached
Violation of a rule also does not necessarily warrant any other nondisciplinary remedy,
such as disqualification of a lawyer in pending litigation
CLIENT-LAWYER RELATIONSHIP
(b) "Confirmed in writing," when used in reference to the informed consent of a person, denotes
informed consent that is given in writing by the person or a writing that a lawyer promptly
transmits to the person confirming an oral informed consent. See paragraph (e) for the definition
of "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.
(d) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the substantive or
procedural law of the applicable jurisdiction and has a purpose to deceive.
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NOTE: rules defer to substantive law to define fraud; but to constitute fraud under the
rules conduct must have a purpose to deceive! A negligent misrepresentation or negligent
failure to apprise another of relevant information CANNOT constitute as fraud under the
rules
(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.
(f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A
person's knowledge may be inferred from circumstances.
(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.
(j) "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of
reasonable prudence and competence would ascertain the matter in question.
(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.
(l) "Substantial" when used in reference to degree or extent denotes a material matter of clear
and weighty importance.
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1.1 – are you competent to represent this client?
1.2 – what does your client expect?
1.3 – do you have time?
1.4 – can you communicate with this client effectively?
1.5 – can the client afford your services?
1.18 – you have a duty of confidentiality and loyalty even to a prospective client
2.1 – clients are owed your independent professional judgment (even if they don’t like it)
Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And
Lawyer
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the
objectives of representation and, as required by Rule 1.4, shall consult with the client as to the
means by which they are to be pursued. A lawyer may take such action on behalf of the client as
is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision
whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after
consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether
the client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not
constitute an endorsement of the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the
circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer
knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any
proposed course of conduct with a client and may counsel or assist a client to make a good faith
effort to determine the validity, scope, meaning or application of the law.
Authority
• Very few decisions that clearly are the sole authority of either the client or the attorney.
• The client has the decisions about firing the attorney, how much money to spend,
terminating litigation (through settlement or dismissal), and testifying (in a criminal
case).
• The attorney has almost no clear authority to act except the negative authority to refrain
from violating the law or assisting in violations.
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• Almost any other example of an attorney’s authority could be subject to constraints by
the client. Unclear how much authority an attorney may exercise without first consulting
a client.
• The best resolution of the lack of clarity is discussing the allocation of authority with
your client from the beginning and thoroughly understanding their objectives and
interests.
Engagement Agreement Clause (Coleman case)
An example of what is NOT allowed in an engagement agreement clause: "To assure that
Plaintiff does not settle for too low an amount (thereby depriving Attorney of a
reasonable contingent fee), no settlement shall be accepted unless agreed to in writing by
both Attorney and Plaintiff."
this type of clause is not allowed b/c in 1.2 atty’s are specifically instructed to
abide by the client’s decision to settle so under 8.4 this would be misconduct
Three of the ways that Rule 1.4 requires attorneys to communicate with clients are:
(1) promptly inform the client of any decision or circumstance with respect to which
the client's informed consent, as defined in Rule 1.0(e), is required by these Rules
(2) reasonably consult with the client about the means by which the client's objectives
are to be accomplished; and
(3) A lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation.
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Models of Communication and Authority
Directive (Parent, Expert)
Collaborative (Counselor, Friend)
Instrumental (Hired Gun, Employee)
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(2) the client agrees to the arrangement, including the share each lawyer will receive, and
the agreement is confirmed in writing; and
(3) the total fee is reasonable.
TRUE OR FALSE: You get what you pay for. Standards of competence are lower for pro
bono representation
FALSE – The minimum standards of competence do not vary according to the level of
payment.
BUT – Standards for ineffective assistance of counsel require proof of “prejudice” and
have a strong presumption of effectiveness
BUT – Some statutes insulate attorneys from malpractice actions (e.g. some government
and appointed attorneys)
TRUE OR FALSE? An attorney may not be disciplined for a single mistake caused by mere
negligence.
FALSE - That’s not how the rule reads
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BUT – as a practical matter, disciplinary actions are almost never based on a single
instance of mere negligence
Missouri’s Rule 8.3’s requirement of reporting is not triggered by a single act of simple
negligence
TRUE OR FALSE? The more you are an expert in an area of law, the lower your malpractice
risk.
FALSE – the most common reasons for malpractice and discipline are grounded in
management (missing deadlines, having too many cases, etc.), client relationships (poor
communication), and attorney self-management (stress, substance abuse, other
addictions)
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Duty of Confidentiality
Is very broad!
Confidentiality applies to ALL information relating to representation!!
Confidentiality Exceptions:
o Client’s “informed consent”
o Implied authorization
o A disclosure does not waive that duty
o Crime-Fraud Exception:
Exception to the ethical duty permits discretionary disclosure regarding
future or ongoing crimes/fraud
Requires that information be gained as part of the representation; ethical duty
requires that the attorneys’ services have or will be used
Attorney-Client Privilege
Is very narrow!
This privilege is NOT meant to protect information
The communication b/w the attorney and the client is what is protected; however, not all
communications b/w a client and lawyer are privileged.
The privilege only insulates communications that assist the atty to formulate and render
legal advice – it applies only to disclosures necessary to obtain informed legal advice
which might not have been made absent the privilege.
Privilege belongs to the client
Client may agree to waive the privilege
Attorney has the power (even if he lacks the authority) to waive the client’s privilege
Disclosure outside the privileged relationship waives the privilege as to that
communication
Crime-Fraud Exception (an exception to the privilege for communications about client
wrongdoing)
o Applies only if communications are privileged
o Requires a completed crime (or fraud)
o Compels the testimony if the client used or sought to use the attorney’s services or
advice to further that crime
o **Difficult proof requirements
o Basically: exception to privilege permits compelled disclosure regarding past
crimes/frauds.
o Requires that information be gained as part of the representation; ethical duty
requires that the attorneys’ services have or will be used
o NOTE: Jurisdictions vary in their interpretations of this exception! Do you
research!
McClure v. Thompson
Atty Mecca appointed to represent McClure, who had been arrested for murder of mom
and disappearance of her 2 kids. Mecca met w/ McClure several times at jail and each
time McClure would tell Mecca little pieces of info regarding the children. At one point
McClure even drew a map of where the children would be and gave it to Mecca
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Mecca never knew if children were alive or dead – he suspected they were dead but
wasn’t sure. At one point McClure even said that “Satan killed Carol” but “Jesus saved
the kids.”
Mecca then turned over the map to the Sheriff’s dept. McClure contended that this was
ineffective assistance and that Mecca should not have handed over the map b/c it was
confidential information. Mecca claims that it was reasonable for him to reveal the info
on order to prevent imminent death or substantial bodily harm – this exception requires
that an atty reveal confidences only to the extent that he reasonably believes necessary to
prevent those criminal acts and imminent harms.
Ct. holds the guiding rule for purposes of the exception for preventing criminal
acts is objective reasonableness in light of the surrounding circumstances
Is a close case but Mecca made the disclosure reasonably believing it was necessary to
prevent the client from committing a criminal act that Mecca believed was lkely to result
in imminent death or substantial bodily harm. 1.6(b)(1).
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Cf. Rule 1.16(b) permission to withdraw
May “raise the red flag” (i.e., disclaim any documents)
State v. Gonzales
Atty permitted to withdraw under 1.16 because she had knowledge that former client was
going to commit perjury Ms. Gonzales’s case and this would materially limit her ability
to cross-examine the witness (1.7(a)(2) would create a conflict). State then subpoenaed
atty to testify about the former client’s expressed intent to commit perjury. Atty filed a
motion to quash the subpoena arguing that answering the prosecutor’s questions would
violate her duty of client confidentiality under 1.6 and 1.9, exposing her to disciplinary
action.
Prosecutor tried to use Rule 3.8 to compel atty to testify. 3.8 prohibits a prosecutor from
subpoenaing a defense lawyer in a “criminal proceeding to present evidence about a past
or present client UNLESS the prosecutor reasonably believes
o (1) the info sought is not protected from disclosure by any applicable privilege;
o (2) evidence sought is essential to the successful completion of an ongoing
investigation or prosecution; and
o (3) there is no other feasible alternative to obtain the info.”
Atty challenged first factor – that the a/c privilege did not apply b/c of the crime-fraud
exception. Atty said there was nothing other than the former client’s communication
itself to demonstrate the client’s intention to obtain legal advice to enable or assist in the
planned perjury, which is inadequate to qualify under KSA 60-426(b)(1), which requires
“sufficient evidence, aside from the communication…to warrant a finding that the legal
service was sought or obtained in order to enable or aid the commission or planning of a
crime.”
Was no such evidence beyond the former client’s communication itself existed and did
not support an inference that the former client sough legal advice to further a crime or
planned crime. Atty NOT required to testify!
1.6 Variations
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the crime
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tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
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o Atty might have been able to continue his dual representation if he could have
shown some social interest to be served by his representation that would outweigh
the public perception of his impropriety.
Rule: Cannot sue your own client, even in an unrelated matter!
NOTE: In order to sue your own client, you will have to get informed consent!! (see def. of
informed consent in 1.0). And although you can represent 2 clients and have conflicts of
interest – you may have trouble.
What to include in Agreement when taking on 2 Clients that have Conflicts of Interests?
Nature of the conflict (or your risk of conflict)
Harms that could result from the conflict and the steps you have taken to reduce those
risks
Reasons the client wants to waive the conflict (the benefits of the representation)
Waiver of a/c privilege
They can seek other representation
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Have them expressly waive the conflict
o Note: always want this but alone it is not enough – also need waivers of
confidentiality
Confidentiality waivers that might be a part of this consent to conflict
Circumstances in which you would seek to withdraw even given the client’s consent
MISCONCEPTIONS
Conflicts of interest require knowledge If I don’t know about a client in the firm
whose interest is directly adverse to my client, I don’t have a conflict of interest.
Once I have screened a potential client for conflicts of interest and have found none, I
don’t have to worry about conflicts any more.
If my client has signed a waiver of conflicts, I do not need to worry about disqualification
or discipline.
If I have a conflict of interest that would prevent me from representing a particular client
in your firm, other attorneys in my firm may represent that client if I am screened from
participation in that case.
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If a client would be upset if they knew I was representing another client, I have a conflict
of interest that would permit that client to disqualify me from representing the other
client.
If I represent one client, I can not represent a client that competes with that client (e.g.,
CVS and Walgreens) because they are directly adverse to one another.
Once you advocate for a particular issue or interpretation, you may not advocate the other
side of that issue in another case.
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(g) A lawyer who represents two or more clients shall not participate in making an aggregate
settlement of the claims of or against the clients, or in a criminal case an aggregated agreement
as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing
signed by the client. The lawyer's disclosure shall include the existence and nature of all the
claims or pleas involved and of the participation of each person in the settlement.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a client for
malpractice unless the client is independently represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client or
former client unless that person is advised in writing of the desirability of seeking and is given a
reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
(i) 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:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.
(j) A lawyer shall not have sexual relations with a client 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.
Criminal Co-Defendants
To protect client’s 6th Amendment right to counsel, you must notify the court as soon as a
conflict arises
Must have full disclosure and then informed consent to continue representation or else
subject to discipline and client may be able to assert ineffective assistance of counsel on
appeal
Representing Co-Parties
Assess likelihood of conflict
Co-defendants: Similar risks as presented by co-defendants in criminal case except you
can waive cross claims and can agree on how to split liability before the suit is filed.
Co-plaintiffs: Easier, but must assess the commonality of objectives and power balance
among all the plaintiffs
Joint defense or joint representation agreement must be airtight re: sharing confidential
information, flow of information, and what happens if a conflict arises
Co-Parties in Transactions
Representing parties in forming a business, making an investment, prosecuting a patent,
etc.
How likely are the clients able to each articulate their own interests --- are there
imbalances of power among the clients that would interfere with your ability to represent
each equally?
How likely is the transaction to be successful? How much information do the clients
have? How realistic are they being?
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What are the implications if the deal falls apart?
Class Actions
Attorneys represent only the named class representative
Rules for class certification mediate some of the conflicts issues -- insure commonality,
representativeness, etc.
Factors:
o Common issues
o Separate representation impractical
o Extent of active judicial supervision Restatement (Third) of the Law Governing
Lawyers §128 cmt. d(iii) (2000).” ABA/BNA 51:301
Consenting to Conflicts
Interests giving rise to the conflict
Contingent, optional, and tactical considerations and alternative courses of action that
would be foreclosed or made less readily available by the conflict
Effect of the representation or the process of obtaining other clients' informed consent
upon confidential information of the client
Any material reservations that a disinterested lawyer might reasonably harbor about the
arrangement if such a lawyer were representing only the client being advised
Consequences and effect of a future withdrawal of consent by the client, including, if
relevant, the fact that the lawyer would withdraw from representing all clients.
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(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.
“May use info of former client w/o their consent if it is generally known”
Generally known and public records are NOT the same thing
Refers only to the USE of client info – not the disclosure of client info
NOTE: MO does have 1 Supreme Court case that said there is a public record exception
to the duty of confidentiality (w/ regards to former clients)
o Only state in the union that has such an opinion
BGF thinks opinion was wrongfully decided
In Re Anonymous
Atty gave AB a referral for a divorce lawyer at her own firm after AB told atty that she
wanted to divorce her husband after they had an altercation where her husband told police
that she threatened to harm him. AB and her husband eventually made up though.
However, atty did not know this and a friend of AB’s ata social gathering – atty told that
friend about AB’s filing for divorce and about her husband’s accusation. Atty
encouraged AB’s friend to contact AB b/c the friend expressed concern for her. When
AB’s friend called, AB became upset about the revelation of information and she filed a
grievance against atty.
Commission charged atty w/ violating 1.9 – court concluded that she did violate 1.9 by
improperly revealing info relating to the representation of a former client.
This falls under 1.9 b/c it includes “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.” So b/c atty referred AB to an atty in her own firm this falls under 1.9
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Note: court doesn’t seem to care much that the atty’s disclosure of this info was done in
concern for AB – it was still improper.
In Re Carey
MR 1.9 former representation – lawyer shall not represent another in “the same or a substantially
related matter”
Defended in product liability class actions re: heater cores & mini van latches
Carey then left and joined his own firm – Carey & Dannis
now representing Beam suing Chrysler in brakes cases
1.9 says can’t represent someone materially adverse. But is the
same or substantially related matter?
o Carey said no b/c he didn’t know anything about the
brakes. Only knew about heater cores & mini van latches –
Carey said it had to be identical facts for it to be the same
matter
Pg. 432 – also describes the process that Carey went thru to determine if there was a conflict or
not
says he did research, so why didn’t his research work?
didn’t look for a neutral opinion b/c he did not recognize his own
bias.
also don’t know how he researched so he might not have been very
good at it
Court imposes discipline in this case – one of the few cases that court imposes discipline instead
of disqualification
most conflicts of interest cases are handled by disqualification
discipline cases are very rare
NOTE: Same and substantially related test is not just about fact! It is what you would likely
have been able to learn in a prior representation that could be used against your former client
(even if you didn’t actually learn it!)
Whose interests can create the conflict? Another current New Client v.
client, former Former Client
client, 3rd
person, or by a
personal interest
of the lawyer
How must the interest of the conflicting party affect the current Directly Adverse Materially Adverse
client’s interests? or Materially
Limited
What relationship between the two representations is necessary? A concurrent Current client’s
conflict of matter must be the
interest same or substantially
related matter as a
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former client’s
matter
Is consent possible? YES; if each YES; if former
affected client client gives
gives informed informed consent,
consent, confirmed in
confirmed in writing.
writing
Rule 1.11 Special Conflicts Of Interest For Former And Current Government Officers And
Employees
(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public
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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, unless the appropriate
government agency gives its informed consent, confirmed in writing, to the representation.
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm
with which that lawyer is associated may knowingly undertake or continue representation in such
a matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to
ascertain compliance with the provisions of this rule.
(c) Except as law may otherwise expressly permit, 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, 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. As used in this Rule, the term "confidential government information" means information
that has been obtained under governmental authority and which, at the time this Rule is applied,
the government is prohibited by law from disclosing to the public or has a legal privilege not to
disclose and which is not otherwise available to the public. A firm with which that lawyer is
associated may undertake or continue representation in the matter only if the disqualified lawyer
is timely screened from any participation in the matter and is apportioned no part of the fee
therefrom.
(d) Except as law may otherwise expressly permit, 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) negotiate for private employment with any person who is involved as a party
or as lawyer for a party in a matter in which the lawyer is participating personally and
substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative
officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b)
and subject to the conditions stated in Rule 1.12(b).
(e) As used in this Rule, the term "matter" includes:
(1) any judicial or other proceeding, application, request for a ruling or other
determination, contract, claim, controversy, investigation, charge, accusation, arrest or other
particular matter involving a specific party or parties, and
(2) any other matter covered by the conflict of interest rules of the appropriate
government agency.
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neutral, unless all parties to the proceeding give informed consent, confirmed in writing.
(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as
lawyer for a party 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. A
lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for
employment with a party or lawyer involved in a matter in which the clerk is participating
personally and substantially, but only after the lawyer has notified the judge or other adjudicative
officer.
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is
associated may knowingly undertake or continue representation in the matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the parties and any appropriate tribunal to enable
them to ascertain compliance with the provisions of this rule.
(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not
prohibited from subsequently representing that party.
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(f) In dealing with an organization's directors, officers, employees, members, shareholders or
other constituents, a lawyer shall explain the identity of the client when the lawyer knows or
reasonably should know that the organization's interests are adverse to those of the constituents
with whom the lawyer is dealing.
(g) A lawyer representing an organization may also represent any of its directors, officers,
employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If
the organization's consent to the dual representation is required by Rule 1.7, 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
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then
If you only guess, or suspect, you may have a duty to investigate if the matter is one for which you
otherwise have a duty to provide advice or for which you represent the client. Otherwise, you ordinarily
have no duty to investigate your own client. (See cmt. 5, rule 2.1)
7. Does the act, inaction, or plan
VIOLATE A DUTY TO THE ENTITY or
IMPUTE A LEGAL VIOLATION TO THE ENTITY?
IF YES, IF NO, Rule 1.13 Does not create a compliance duty
then
Only when the law is violated does the attorney’s duty attach. If the actions or plans are legal, the attorney
should ordinarily accept entity decisions even if the actions are imprudent or unwise. (Cmt. 3, Rule 1.13).
Attorney has the duty to proceed as is REASONABLY NECESSARY
in the BEST INTERESTS OF THE ORGANIZATION.
Note that comment 4 to the rule identifies a number of factors relevant to this plan: the seriousness of the conduct
and consequences, the motives and responsibility of the constituent and company policies.
28
(d) Upon receiving funds or other property in which a client or third person has an interest, a
lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise
permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or
third person any funds or other property that the client or third person is entitled to receive and,
upon request by the client or third person, shall promptly render a full accounting regarding such
property.
(e) When in the course of representation a lawyer is in possession of property in which two or
more persons (one of whom may be the lawyer) claim interests, the property shall be kept
separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all
portions of the property as to which the interests are not in dispute.
Trust Accounting
One trust account for all clients but separate “accounting” for each client
IOLTA foundation for the interest on the trust account (lawyer pays the interest)
Can delegate duty but can’t delegate the responsibility
Don’t co-mingle funds
Don’t distribute if there is a dispute
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entitled and refunding any advance payment of fee or expense that has not been earned or
incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.
State v. Gonzales
Atty permitted to withdraw under 1.16 because she had knowledge that former client was
going to commit perjury Ms. Gonzales’s case and this would materially limit her ability
to cross-examine the witness (1.7(a)(2) would create a conflict). This is really a better
case for explaining disclosure under the crime/fraud exceptions under 1.6 and 3.3 candor
to the tribunal (disclosing clients intent to commit perjury).
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(a) A person who consults with a lawyer about the possibility of forming a client-lawyer
relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from
a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with
respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially
adverse to those of a prospective client in the same or a substantially related matter if the lawyer
received information from the prospective client that could be significantly harmful to that
person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from
representation under this paragraph, no lawyer in a firm with which that lawyer is associated may
knowingly undertake or continue representation in such a matter, except as provided in
paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c),
representation is permissible if:
(1) both the affected client and the prospective client have given informed consent,
confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid
exposure to more disqualifying information than was reasonably necessary to determine whether
to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
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Unlikely that a prospective waiver which did not identify either the potential opposing
party or at least a class of potentially conflicting clients would survive scrutiny
Just b/c client consents, doesn’t mean that you don’t have to do the DAML analysis under
1.7
What would disinterested attorney think?
COUNSELOR
ADVOCATE
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witness called by the lawyer, has offered material evidence and the lawyer comes to know of its
falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to
the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a
criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person
intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the
proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the
tribunal.
(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.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the
lawyer that will enable the tribunal to make an informed decision, whether or not the facts are
adverse.
3.3(a)(3) does not permit an atty to refuse the client’s demand to testify, even if the atty
reasonably believes the testimony will be false, if the client is a criminal defendant. However,
the rule does NOT permit an atty to knowingly submit false evidence, even in a criminal case
Nix v. Whitseide atty knew that his client would testify falsely b/c he announced his intention
to do so. Atty was able to dissuade his client from perjury and, thus, was able to call him to
testify. Here, the defendant’s 6th amendment right of a criminal defendant to assistance of
counsel is not violated when atty refuses to cooperate w/ the defendant in presenting perjured
testimony at his trial.
United States v. Long Long represented defendant and in trial Long announced he might have
to withdrawal if Long testified b/c he believed the testimony would be perjury. Defendant then
agreed not to testify. But case differs from Whiteside in 3 diff. respects:
In Whiteside, a finding was made that he would have testified falsely had he given the
testimony he initially wanted to give – but here, no such finding has been made. Long did
not have a “firm factual basis” for believing defendant would testify falsely and needs to
be decided in an evidentiary hearing
2nd – def. testified and was “restricted” or restrained only from testifying falsely; but here,
def. did not testify at all, so it is impossible to determine whether def. was restrained by
his lawyer from giving truthful testimony (can only be determined in evidentiary hearing
3rd – defesne atty did not reveal his believe about his client’s anticipated testimony;
whereas here he did, which creates a “significant risk of unfair prejudice” to def. Trial ct.
reduced these prejudicies though and it is necessary to establish if def. waived his
constitutional right to testify at an evidentiary hearing.
Key Questions:
Rule 3.3(a)(3) and 3.3(b) both impose a duty to take reasonable remedial measure. 3.3(a)
(3) requires that the attorney address “false material evidence” and 3.3(b) requires
reasonable remedial measures to address “criminal or fraudulent conduct related to the
proceeding”. How do these two compare?
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Isn’t the duty under Rule 3.3(a)(3) just a subset of the duty imposed by Rule 3.3(b)? Isn’t
submitting false material evidence always a crime or fraud on the tribunal?
Rule 1.16, 1.6, and 3.3 all address situations in which a client might be engaged in fraud
or perjury. Compare these carefully. What must believe or know about your client’s
intended wrongdoing in order to withdraw? To disclose to third parties? To disclose to
the court? In United States v. Long, when the attorney reasonably believed his client was
going to lie, why wasn’t withdrawal the best solution?
One of the keys to all of these questions is whether the attorney “knows” – how does an
attorney know what another person intends? How does at attorney “know” that evidence
is false? What if he only suspects? In Nix, would Robinson “know” that Whiteside was
lying with he hadn’t admitted that he thought he needed to say that there was a gun?
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(a) A partner in a law firm, and a lawyer who individually or together with other lawyers
possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure
that the firm has in effect measures giving reasonable assurance that all lawyers in the firm
conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable
efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional
Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct
involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in
which the other lawyer practices, or has direct supervisory authority over the other lawyer, and
knows of the conduct at a time when its consequences can be avoided or mitigated but fails to
take reasonable remedial action.
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pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer
the agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan,
even though the plan is based in whole or in part on a profit-sharing arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed,
retained or recommended employment of the lawyer in the matter.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the
partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render
legal services for another to direct or regulate the lawyer's professional judgment in rendering
such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or association
authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a
lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar
responsibility in any form of association other than a corporation ; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.
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(1) are provided to the lawyer’s employer or its organizational affiliates; are not services
for which the forum requires pro hac vice admission; and, when performed by a foreign lawyer
and requires advice on the law of this or another jurisdiction or of the United States, such advice
shall be based upon the advice of a lawyer who is duly licensed and authorized by the
jurisdiction to provide such advice; or
(2) are services that the lawyer is authorized by federal or other law or rule to provide in
this jurisdiction.
(e) For purposes of paragraph (d), the foreign lawyer must be a member in good standing of a
recognized legal profession in a foreign jurisdiction, the members of which are admitted to
practice as lawyers or counselors at law or the equivalent, and are subject to effective regulation
and discipline by a duly constituted professional body or a public authority.
State Adoption of Rule 5.5
13 states have adopted identical versions (including AK, IL, Indiana, Iowa, and
Nebraska)
31 states have adopted versions w/ variations (including MO, TN, KY, and OK)
Only Hawaii, KS, Mississippi, Montana, NY, TX, and West Virginia have not adopted
some new version
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Ongoing physical presence
Multiple Clients, regular physical presence
Long Time Client, single matter
Temporary practice
Expert consulting; limited role
In Re Trester
Trester admitted to KS bar but never passed California bar; however, Trester practiced
law in Cali for 40 years. Had a law office there and was advertised as “Law Offices of
Irwin Trester.”
Friedman Bag Company, a Cali company, hired Trester. Trester never told them that he
was not licensed to practice in Cali. Friedman then found out and sued him alleging legal
malpractice and fraud. Trester then charged w/ UPL & & (later reduced to 3) counts of
theft.
Hearing panel found Trester guilty of 5.5(a) and 8.4(b) & (c).
8.4(b): found Trester in violation of committing “a criminal act that reflects adversely on
the lawyer’s honest, trustworthiness or fitness as a lawyer.” Panel found that Trester’s
3 convictions of theft and 1 conviction of UPL are crimes that reflect directly on his
honesty and trustworthiness
8.4(c): found Trester in violation of engaging “in conduct involving dishonesty, fraud,
deceit, or misrepresentation.” Panel found that he engaged in dishonest conduct when
he held himself out as an atty in Cali.
Trester tried to argue that his misconduct was not motivated by dishonest,
fraud, or deceit, but rather by the “mistaken belief” that he could hold
himself out as an atty b/c he was admitted to practice in KS and had been
admitted to practice law before the United States S.C., and the 9th and 10th
Circuit Court of Appeals. Trester said he ha a “plausible explanation” b/c he
solicited input from a Los Angeles atty who was head of the ethics division of
the Cali Bar and said that the services he provide were consistent w/ the advice
given by the LA guy. Furthermore, Trester said he never lied to
his clients by telling them he was admitted to the Cali bar and was limited to
federal practice. However, Trester’s “good faith” defense didn’t work b/c even
though he didn’t lie, he didn’t disclose either. Ct. said atty’s have an
independent duty to assess law and the underlying conduct here was serious,
ongoing dishonesty involving theft.
38
o Tort
o Consumer Protection Statutes
o UPL statutes
Criminal Convictions
Remember: generally there is a difference in practicing the law of another state and
practicing law IN another state – only the latter is prohibited.
PUBLIC SERVICE
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A lawyer shall not seek to avoid appointment by a tribunal to represent a person 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.
40
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial
conduct that raises a substantial question as to the judge's fitness for office shall inform the
appropriate authority.
(c) 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.
Note: MO’s 8.3 Requirement of reporting is not triggered by a single act of simple negligence
In Re Riehlmann
Blood DNA case; Riehlmann’s friend, also an atty, told Riehlmann that he was dying of
colon cancer and in the same convo told him that he had suppressed exculpatory blood
evidence in a criminal case he prosecuted. Riehlmann was surprised and shocked by his
friends revelation and urged him to remedy the situation. However, neither of the men
remedied the situation
5 yrs after his friends death, the defendant’s lawyers discovered a crime lab report and the
blood-stained physical evidence that had never been disclosed to defense counsel – the
crime lab report indicated that the robber had “Type B” blood but defendant had “type O”
Reihlmann heard of this evidence and then executed an affidavit saying “the late Gerry
Deegan said to me that he had intentionally suppressed blood evidence in the armed
robbery trial of John Thompson that in some way exculpated the defendant.”
Riehlmann said he didn’t tell sooner b/c it was a difficult time in his life – his friend was
dying; he had left his wife w/ 3 kids; was under the care of a psychiatrist; and taking
antidepressants. Also went open-heart surgery and was distracted.
To be required to report under 8.3, knowledge does not mean absolute certainty.
Knowledge requires more than a mere suspicion of ethical misconduct – court holds that
a lawyer will be found to have knowledge of reportable misconduct, and thus reporting is
required, where the supporting evidence is such that a reasonable lawyer under the
circumstances would form a firm belief that the conduct in question had more likely than
not occurred.
When to report –Reporting should be made promptly
Riehlmann should have promptly reported the misconduct to the disciplinary authorities –
b/c he didn’t, Riehlmann was publicly reprimanded
Rule 8.4 Misconduct (def. of misconduct is broad but not unconstitutionally broad)
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or
induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness
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;
(e) state or imply an ability to influence improperly a government agency or official or to
achieve results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable
rules of judicial conduct or other law.
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Rule 8.4(b) criminal act - "commit a criminal act" - a charge and conviction are not
necessary
Question 1
Which of the following best describes the scope of the information that is protected by the
attorney's duty of confidentiality under ABA Model Rule of Professional Conduct 1.6?
A. Disclosing the amount of an unpaid bill for legal services in a suit against the client to
recover those fees.
B. Without revealing the client's identity or any other fact not contained in a public record,
telling a "war story" to friends at a party about the client's testimony at the trial you are in
the middle of.
C. Disclosing the client's fraudulent statements on an securities statement that you helped
prepare in order to prevent individuals from relying on that statement and incurring
substantial financial loss.
D. Responding to a court's order that you disclose the client's statements to you regarding
plans for a crime that the client later carried out.
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Question 3
Which of the following best defines the information that is protected by the evidentiary attorney-
client privilege?
A. Information relating to the representation
B. Information that would be significantly harmful to the client.
C. Communication between attorney and client in confidence for the purposes of seeking
legal advice.
D. Materials prepared in anticipation of litigation.
Question 4
You are representing a defendant-parent in a child abuse action in which your client is charged
with child neglect. The petition alleges that your client passed out from drinking and left his five-
year-old child without supervision. The child wandered off in the evening and was found blocks
away at a dangerous intersection. If requested to produce any of the following items of
information, for which of these would you properly raise an objection based on the attorney-
client privilege?
A. Your client's email to you describing what happened on the evening in question.
B. A witness statement you obtained from someone present in your client's home during the
evening in question.
C. Your client's driving record, which your client obtained from the sheriff's office and gave
to you, which shows a pattern of arrests for driving while intoxicated.
D. Your notes of the statements the client's therapist made to you about the client's mental
health.
Question 5
You represent Paul Payor in a tax fraud matter. You asked Paul to gather all of his accounting
records. He gathers all of his 2009 tax year records (the year in dispute) and gives these to you.
After he told the IRS that he no longer had his accounting records but had turned them all over to
you (assume that is true), the IRS issued a summons demanding that your produce "all of Paul
Payor's accounting records for the tax year 2009." (In doing so, the IRS has not made any
statements implying any wrongdoing on your behalf). You object to the summons on behalf of
your client on the grounds of attorney-client privilege. The IRS brings an action to enforce the
summons in the United States District Court, where you again renew your objection on the
grounds of attorney-client privilege. Which statement best describes the likely outcome of your
objection?
A. Your objection will be overruled and you will be required to produce the documents
because the attorney-client privilege does not apply in the enforcement of an IRS
summons.
B. Your objection will overruled and you will be required to produce the documents because
the documents were not a communication for the purposes of obtaining legal advice.
C. The objection will be sustained and you will not be required to produce the documents
because you received the documents in the course of communicating with a client for the
purposes of seeking legal advice.
D. Your objection will be sustained because the tax records are information relating to the
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representation and you do not have the client's consent to disclose those records.
Question 6
Assume that in the Paul Payor representation, the court overrules your objections (rightly or
wrongly) and that you have no further recourse and that you must and do produce the documents
to the court. Another client would benefit significantly (without any direct harm to Paul Payor)
by having access to Paul's accounting records. May you disclose the records to the second client
without the knowledge or consent of Paul?
A. No, the documents are confidential and there is no exception to the duty that applies here.
B. Yes, because the court has overruled your claim of privilege, the documents are no longer
confidential.
Question 7
Your client Darren Distraught is distressed over his pending bankruptcy and has made several
comments in the past week about "putting an end to his trouble" One evening he calls you from a
local hotel and tells you in terrifying detail when, how, and why he plans to commit suicide that
evening. He is not interested in listening to your pleas for him to reconsider. You are convinced
that he will carry through on his threat if you do not get someone to stop him. Attempted suicide
is not a crime in this state; nonetheless, you decide that the best option to protect him is to call
911. The police arrive and place him in protective custody. Assuming your state has adopted
ABA Model Rule of Professional Conduct 1.6, are you subject to discipline for your disclosure?
A. No because his call to you was not for the purposes of seeking legal advice and so was
not confidential.
B. No because you reasonably believed that disclosure would prevent his death and calling
911 was a reasonable response.
C. Yes because the client was not threatening to commit a crime or fraud.
D. Yes because you did not first secure the client's consent to call the police.
Question 8
You are representing Jack Jamail in arranging for a sale of his business. In the course of the
representation, your independent investigation of Jack's finances causes you to realize that Jack
has lied to you about the value of his business. You had incorporated his misrepresentations into
the terms of the offer you had drafted and sent to buyers. You try to convince Jack to rescind his
fraudulent statements and he refuses. If the purchasers rely on his financials, they will suffer
substantial financial injury. you withdraw from the representation and reveal the fraud to the
buyers. Your client is unable to sell the business and goes bankrupt when the business fails.
Assume your state has adopted ABA Model Rule of Professional Conduct 1.6. Which of the
following reasons best describes why you would NOT be subject to discipline for disclosing the
client's information to the potential buyers?
A. Because the client persisted in a course of action involving your services that you
reasonably believed was criminal or fraudulent.
B. Because you reasonably believed that your disclosure was necessary to prevent
reasonably certain substantial financial injury that would result from your client's fraud,
which the client used your services to further.
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C. Because you are required to reveal information to prevent a client's crime or fraud if your
services were used to further that crime or fraud.
D. Because you had withdrawn from the representation and so had no further obligations of
confidentiality to your former client.
2. Can you use billing methods other than hourly or contingent fees?
Yes, you can combine billing methods (e.g. hourly + contingent)
You can charge flat fees or “value billing”
So long as the fee is not unreasonable and doesn’t interfere with the client’s right to settle
or to fire you.
45
5. Why are contingent fees so controversial?
B/c atty’s make a lot of money compared to the work they put in on one case (though
averaged across cases, their hourly rate equivalent isn’t necessarily that high);
B/c atty’s have a stake in the outcome which creates a conflict of interest of sorts, leading
a few atty’s to stir up fraudulent litigation;
B/c atty’s who use contingent fee agreements often sue entrenched or powerful interests
From Book: some say they create incentives for atty’s to stir up litigation that is
unnecessary or frivolous, and that atty’s recover fees that are excessive in light of the
work they perform in the individual case.
6. Why can’t you charge contingent fees in a divorce case or a criminal case?
1.5 prohibits contingent fees in criminal defense and some aspects of family law b/c of
dangers of overreaching w/ particularly vulnerable clients and b/c contingent fees might
create an incentive for attorney’s to counsel clients against plea bargains (in criminal
cases) or reconciliation (in divorce).
Contingent fees are not necessary in either case (fee shifting in divorce and public
defender in criminal cases)
B/c we don’t like the perverse incentives it might create (discourage reconciliation,
condone perjury)
B/c there’s no financial “stake” in most criminal law cases and the financial “stake” in
family law cases belongs to the children
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Record time contemporaneously
Use reasonable increments (beware of “rounding up”)
Describing the activity (codes help)
11.What are some examples of unethical time-based billing?’
Churning: generating unnecessary or duplicative work simply to run up hours
+ Chipping: breaking down a task into multiple small entries that add up to more than the
task should have taken
+ Double Charging: charging twice for the same task, frequently by having more than 1
person repeat the task or by charging more than one client for the same time)
+ Padding: charging for more time than is actually spent on the task, sometimes a result
of excessive “rounding up” of time segments)
= FRAUD
12.What is the difference between a retainer & an advance?
Retainer: a payment that belongs to the atty when made, goes in the atty’s account, and
represents lost opportunity or the absolute value of the atty agreeing to represent a client.
it is almost always unethical
Advance: an advance payment of fees and goes in the client trust account until earned or
refunded. It is highly ethical if reasonable.
13. How do you make sure clients will pay?
Screen clients
Get advance payments
Make clear agreements
Communicate value
Bill early and often
Withdraw early if you anticipate problems
Use atty’s liens in contingent fee cases
Include ADR clauses for fee disputes
14. If you have a contingent fee and the client fires you before the case settles, can you still
collect?
If client had good cause to fire you, you may have to forfeit your fees
If no good cause, you can sue for quantum meruit (based on reasonble hours worked up
to the limit of the contingent fee), but only after the case is over (i.e., a settlement or
judgment received).
15.What is an IOLTA account and who has to have one?
Is an interest bearing trust acct in which the interest is sent to the IOLTA foundation
instead of the client
Atty’s who place their clients funds in a pooled interest-bearing account (a trust or
escrow acct) must set up an account so that the attorney pay’s the interest to a tax-
exempt, non-profit organization (IOTA’S).
o Atty’s cannot keep the interest b/c lawyers are ethically barred from benefiting
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from the use of their clients money, including interest on it
The pooled interest accounts are called IOLTA accounts and the IOLTA organization
administers the funds generated to provide financial assistance to various non-profit
agencies that provide legal aid to the poor
Every attorney who has client money has an IOLTA account
16. Why do I have to turn over files to a client who hasn’t paid just so they can give those
files to some other attorney?
B/c the file belongs to the client, from cover to cover, and an atty may not withhold any
portion of the file in order to enforce payment of expenses
The balance of protecting your economic interest and protecting your client’s legal rights
has been tipped in favor of the client. So bill early and often and take care of your
clients so you aren’t in this position
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