Professional Responsibility Outline

I. Introduction to Professional Responsibility: Sources of Professional Obligations​ (pp. 1-22)

● Aspects of attys’ role that create ethical tensions (pp. 1-12): atty as a fiduciary, as an Officer of the Court, Atty’s
own interests.
o Atty as a Fiduciary
▪ Contrasted to arm’s length business relationship in which each party protects own interests.
▪ Fiduciaries have special obligations to care for and to protect the interests of their beneficiaries
or clients.
● Ex.s of other fiduciaries:
o dr/patient
o priest/penitent
o trustee/beneficiary
o fiduciary relationship as matter of fact
▪ close personal relationship; one puts trust and confidence in the other
and the other accepts a duty
▪ Fundamental fiduciary duties to clients:
● Competence​, ​Rule 1.1​: goes beyond knowledge of the law to encompass skills,
preparation, and diligence.
o See also​ Rule 1.3​: duty to handle matter w/ reasonable diligence and
promptness.
o Attys who violate duty of competence not only commit an ethical transgression
but also can be held liable to clients for damages.
● Communication​, R ​ ule 1.4​: an atty shall promptly inform the client of any decision or
circumstance which requires client’s informed consent as defined in ​Rule 1.0(e)​.
● Fairness​, ​Rule 1.5 ​and​ 1.8(a)
o Rule 1.5​ ​Fees
o Rule 1.8(a)​: shall enter into a business transaction or knowingly acquire an
ownership, possessory, security, or other pecuniary unless…
o Rule 1.8(f)​: only accept compensation from the client unless…
● Confidentiality of information​, ​Rule 1.6
● Loyalty
o Rule 1.7​: shall not represent if there’s a concurrent conflict of interest…
o Rule 1.9​: shall not represent another person in the same or substantially related
matter in which that person’s interests are materially adverse to the interests of
the former client…
o Safekeeping of client property, ​Rule 1.15
o Aspects of atty’s role
▪ Atty as an Officer of the Court functioning in an adversarial system
● Meaning of adversarial system of justice
o Neutral decision maker
o Competent advocates zealously representing their clients
o Fair rules of procedure designed to allow presentation of relevant evidence to
decision maker
● Duties are to court and adversaries even when may harm client’s interest
▪ Exs:
● Prohibition on making frivolous claims or defenses, ​Rule 3.1
● Duty to reveal client perjury, see ​Rule 3.3(a)(3)
● Prohibition on communication w/ represented adverse parties, ​Rule 4.2
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 ● Lawyers may not try to influence judges, jurors, or other officials by improper means,
Rule 3.5
o Unless consent of other atty or authorized by law or the court
▪ Rationale:
● Excessive zeal on behalf of client ​can undermine rather than foster adversarial system​.
● Societal interest or interests of third parties in some instances ​outweighs client interest​,
particularly when client interest is illegitimate.
● Rule 8.4 Misconduct​: it’s professional misconduct for an atty to…
● Resolving tensions in the atty’s role: ​In re Pautler​ (p.5)
o Supreme Court of Colorado, 2002
o Facts​: Pautler was Chief Deputy Assistant Atty for area and arrived at crime scene where 3 women were
brutally murdered. Deputy Sheriff Cheryl Moore was in communication w/ killer, William Neal, who had
left pager #. Neal willing to surrender but wanted legal representation. Neal requested atty who had
previously represented him, but Pautler was unable to reach him. Neal and Pautler agreed that Pautler
would obtain a PD for Neal, but instead Pautler impersonated a PD and convinced Neal to surrender.
Pautler did not make any effort to correct his misrepresentations to Neal. PD began representing Pautler
and ultimately learned of Pautler’s conduct. Neal later dismissed the PD and represented himself pro se
w/ advisory counsel. Neal was convicted of murder and received the death penalty.
o Issue​: Pautler’s conduct may have been a factor in Neal’s decision to dismiss the PD and to represent
himself.
o Rule​: it is professional misconduct for an atty to engage in conduct involving dishonesty, fraud, deceit or
misrepresentation (Rule 8.4). Attys working in law enforcement are not distinguished from other attys.
o Findings​: Kourlis, J.
▪ In ​People v. Reichman​ the same defense Pautler asserts here was rejected, that his deception of
Neal was justified under the circumstances; it was ruled that even a noble motive does not
warrant departure from the Rules of Professional Conduct—and so the case directs that
prosecutors cannot involve themselves in deception, even w/ selfless motives, or they violate
Rule 8.4(c)​.
▪ Pautler asks the court to make an exception to the Rules for situations constituting a threat of
“imminent public harm.”​ Pautler compares his case to one in which a kidnapper held a gun to
the hostage’s head and the DA falsely agreed not to prosecute. But in that case, the DA had no
alternative, while Pautler had the opportunity to negotiate w/ Neal.
▪ The court finds that when presented w/ choices, at least one of which conforms to the Rules, an
atty must not select an option that involves deceit or misrepresentation. Pautler should have
contacted a PD or informed Neal that no atty would be called until he surrendered. The Court
also found that Pautler’s duty as an atty trumps his duties as a peace officer.
▪ By not correcting his conduct, Pautler also violated ​Rule 4.3​.
▪ Sanction: 3 month suspension.
o Q: What rules of professional conduct did the court find that Pautler had violated?
▪ A: ​Rules 8.4(c) ​“conduct involving dishonesty, fraud, deceit or misrepresentation”
● Involves both the practice and non-practice of law
● Harm is not required
● Quasi-criminal in nature: standard of proof (preponderance of evidence) is no different
b/t disciplinary or civil cases
▪ Rule 4.3 ​advice to unrepresented person whose interests may be adverse to atty’s client
● Prevent the misleading of law to a person unrepresented by counsel
● Atty knows or should have known other person has misunderstood must make
reasonable efforts to correct the misunderstanding
● If there is a conflict of interest the only legal advice allowed to give is to secure counsel
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 ▪ Rule 4.1​: truthfulness in statements to others (not in case)
o Q: Was his violation clear or did he have legitimate justifications for what he did? (Paulter defenses)
▪ Noble motive—arrest a killer
▪ Misrepresentation permissible in certain cases
▪ Acting as a “peace officer”
o Q: Put yourself in his position. Why do you suppose he acted the way he did?
▪ Pressure of situation
▪ Crime fighting mentality
o Q: How does the perspective of the judges who decided the case differ from his?
▪ Removed from pressure of situation
▪ Concerned about protecting integrity and reputation of the profession, particularly in an era in
which attys have been subject to substantial criticism.
▪ Exceptions to ethical rules can promote abuse.
o Q: Can you draw any general lessons from the case?
▪ Impact of institutional culture
▪ Pressure of situation may warp judgment.
o Q: Could Pautler have suggested that a police officer impersonate a PD?
▪ Rule 8.4​ says can’t impersonate…
o Q: Would it make any difference if the police officer rather than Pautler suggested impersonation?
▪ Pautler can advise Moore of her legal rights.
o Q: Does ​Pautler​ have any implications for the propriety of undercover police activities in which attys are
involved?
▪ Yes; the atty would be responsible for the police acting under the atty’s supervision.
o Resolving issues of professional conduct
▪ Pautler​ provides a relatively straightforward answer to the question of how to decide a question
of professional responsibility.
● Follow the rules that govern conduct of lawyers
● 2 Sources of rules of governing attys
o (1) Professional rules and standards
▪ Applicable only to attys
▪ Has the effect of law on attys by the enactment by the state supreme court
o (2) Rules of law governing attys
▪ Many apply to citizens generally
▪ Some apply only to attys, ex: atty-client privilege
● Statutory law (state law or federal ABA laws)
● Administrative rules and regulations
● Restatement of law governing lawyers (NOT THE LAW)

● Overview of Professional Rules and Standards​ (pp. 12-18)

o (1) Rules of Professional Conduct
o (2) Ethics Advisory Opinions
o (3) Standards of Practice published by organizations in particular areas of practice
o (4) Institutional norms or organizations in which attys practice
● ABA Model Rules of Professional Conduct (statutory for Federal Judges)
o Revised 2003 based on Ethics 2000 Commission
▪ Format: Rules followed by comments, like Restatement,
▪ Effective Oct. 1, 2005, SC Supreme Court adopted SC Rules of Professional Conduct, SCACR 407
based on ABA revised rules, w/ some modifications.
▪ State Variations: E.g. NY and California
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● Predecessors to the Model Rules
o ABA Model Code of Professional Responsibility (1969)
▪ Canons
▪ Disciplinary Rules (DRs)
▪ Ethical Considerations (ECs)
▪ A number of significant cases were decided under Code and remain important.
o Canons of Ethics (1908)
● Rules Governing Judges
o ABA Model Code of Judicial Conduct (2007),
o Not yet adopted in SC. We have version based on 1990 ABA Code, but substantively very similar. SC
Appellate Court Rule 501.
o Tested on MPRE
● Ethics Advisory Opinions
o Interpretations of Rules
o Persuasive but not binding
o ABA Committee on Ethics and Professional Responsibility
o SC Ethics Advisory Committee
● Standards in particular practice areas
o Persuasive but not binding
o Deal w/ specific problems in particular areas of practice
o Ex.s (pp. 16-17); guidance by ABA
▪ Criminal Defense and Prosecution
▪ Civil Litigation
▪ Matrimonial Practice
▪ Trust and Estate Practice
▪ Guardians ad litem
● Institutional Norms (what is the culture and how do they handle things?)
o Wide variety of institutions that practice law:
▪ Law firms, vary considerably in size and type of practice
▪ Solicitors and PDs
▪ Corporate counsel
▪ Gov’t agencies
o Formal procedures or informal ways that particular org.s implement ethical requirements, ex:
▪ US Attys Manual
▪ Firm procedures for conflicts of interest

● The Duty to Supervise

o Rule 5.1​: responsibilities of partners or supervisory attys for conduct of other attys in firm
▪ Partners
● Reasonable efforts
● Effect measures
● Giving reasonable assurances
● All attys in the firm conform to the rules of professional conduct
▪ Non-partners
● Reasonable efforts
● Other attys conform
▪ Responsible for another atty’s violation of rules
● Atty orders or w/ knowledge of the specific conduct, ratifies the conduct involved, or
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 ● Partner or managerial authority or direct supervisory authority over other atty, and
knows of conduct when consequences can be avoided or mitigated but fails to take
action
▪ Ethical responsibility for misconduct by another atty or non-atty assistant
● Orders or w/ specific knowledge ratifies conduct, ​5.1(c)(1)​, 5​ .3(c)(1)
● Knows of conduct when its consequences can be avoided or mitigated but fails to take
reasonable remedial action, ​5.1(c)(2)​, 5
​ .3(c)(2)
o Rule 5.3​, parallels ​5.1​: obligations of partners and supervisory atts regarding non-attys employed or
retained by firm
● Obligations Imposed by Rules
o (1) reasonable organizational structure,
▪ i.e. prevent conflict of interests
o (2) reasonable supervision, and
o (3) reasonable remedial action
● Reasonable Organizational Structure
o Rule 5.1(a)​: “A partner in a law firm…shall make reasonable efforts to ensure that the firm has in effect
measures giving reasonable assurance that all attys in the firm conform to the Rules of Professional
Conduct.”
▪ Ex: policies and procedures designed to deal w/ various ethical problems
o Rule 5.3(a) ​adopts same principle for non-attys “employed, retained, or associated w/” a lawyer in the
firm.
o Rule 5.1(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.”
o Rule 5.3(b)​ adopts same principle for supervision of non-attys.
● Relationship b/t structure and supervision
o Complement ea/ other
o Reasonable organizational structure must provide for reasonable supervision
o All partners, as part of duty of reasonable organizational structure, must make sure firm:
▪ Establishes appropriate policies regarding supervision,
▪ Communicates policies to supervisors and subordinates
▪ Monitors compliance w/ policies
● Law Governing Attys​ (pp. 18-20)
o Courts, which sometimes rely on rules of professional conduct, have rendered decisions in 5 major
categories of cases:
▪ (1) ​Disciplinary​: proceedings brought against attys charging them w/ violation of the rules of
professional conduct or other forms of misconduct.
● Ultimate punishment: disbarment; lesser: suspensions, reprimands
▪ (2) ​Malpractice​: civil lawsuits brought by clients or third parties seeking damages from attys.
▪ (3) ​Disqualification motions​: motions filed as part of civil or criminal actions; attys representing
the opposing party should be disqualified from representing that party b/c of some ethical
violation, typically a conflict of interest.
▪ (4) ​Sanctions​: FRCP 11; party of an underlying case; typically seek a monetary punishment
against a party or that party’s atty for some form of litigation misconduct, such as discovery
abuse.
▪ (5) ​Criminal prosecutions​: attys have been prosecuted criminally or held in contempt of court for
various types of misconduct.
o Statutory law​ is less significant in the area of attys’ obligations than in many other fields of law b/c the
regulation of attys and judges is largely the constitutional province of courts.
o Administrative Rules and Regs​, ex Sarbaine-Oxley Act
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 o Restatement of Law Governing Lawyers​: contains extensive treatment of atty civil liability
● Relationship b/t Professional Rules and Standards and the Law Governing Lawyers: must consult both in deciding
how to proceed
o Complex. Sometimes law ​overrides​ professional standards.
▪ Ex: state statutes limiting contingency fees
▪ SOX regulation
o Sometimes law deals w/ ​substantive issue not covered​ by professional rules or standards.
▪ Ex: duty of confidentiality and atty-client privilege.
o Sometimes ​supplement rules or standards
▪ Ex: improper questioning
o Often deal w/ remedy rather than standard
▪ Ex: ineffective assistance of counsel
● Ethical Responsibility for Misconduct by Another Atty or Non-atty Assistant
o Orders​ or w/ specific knowledge ​ratifies​ conduct, 5
​ .1(c)(1), 5.3(c)(1)
o Knows​ of conduct when its consequences can be avoided or mitigated but ​fails to take reasonable
remedial action​, ​5.1(c)(2), 5.3(c)(2)

II. Introduction to Professional Responsibility: Systematic Issues and Developing a Philosophy of Lawyering​ (pp.
22-28, 34-56, Problem 1-2)
● Aspects of professional life in which difficult issues arise​:
o Personal​: relationship b/t private and professional life
o Practice​: uncertain questions in course of representation
o Institutional​: position on and involvement in issues facing the profession (pp. 55-56)
● Philosophy of lawyering​: articulated and justified statement of your approach to dealing w/ these aspects of
professional life.
● Approaches to uncertain questions in practice
o Client-centered Lawyering​: neutral partisanship; the traditional approach to resolving questions of
professional ethics when the rules are unclear (p. 22).
o Philosophy of Morality​: attys are morally accountable for the actions they take on behalf of their clients
and must be prepared to defend the morality of what they do. In case of doubt atty should adhere to
moral principles.
▪ Principle of non-accountability​: attys are not morally responsible for actions they take in their
professional role on behalf of clients.
o Philosophy of Institutional Values​:
▪ In case of doubt adhere to values that express the social or institutional role of the atty.
▪ Institutional values often embody moral principles.
▪ Various writers have proposed different philosophies based on the social role of attys.
▪ 6 values that lie at the core of professionalism​ (p. 25):
● An ethic of excellence
● An ethic of integrity: a responsibility to say “no”
● A respect for the system and rule of law: a responsibility to say “why”
● A respect for other attys and their work
● A commitment to accountability
● A responsibility for adequate distribution of legal services
▪ Professionalism movement​ is one of most significant efforts to articulate a set of values that
reflect the social role of the atty and counterbalance the tendency toward over zealousness.
● See SC’s revised oath of office.
o Philosophy of atty self interest

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 ▪ In case of doubt act in way that maximizes atty’s interests: reputation, money, avoidance of risk
of discipline, malpractice, disqualification.
▪ Defensive lawyering​: act or refrain from acting in a way that minimizes risk to atty.
● Rule 1.16(b)(4) ​allows attys to w/draw when “the client insists upon taking action that the atty considers
repugnant or w/ which the atty has a fundamental disagreement.”
● Good moral character​: whether a “reasonable man could fairly find that there were substantial doubts about
[the applicant’s] ‘honesty, fairness and respect for the rights of others and for the laws of the state and nation.’”
● Methods of Regulating Atty Conduct
o Admission to Practice​: graduate from law school, pass state bar exam, good moral character
o Discipline of attys admitted to practice for misconduct
▪ Rule 8.3 Reporting Professional Misconduct
▪ Wieder v. Skala​ ​(p. 41): distinguished b/t employment relationship b/t attys and the firm v.
employees and commercial enterprises.
▪ Rule 8.4(b)​: an atty engages in misconduct when an atty commits a criminal act that “reflects
adversely on the atty’s honesty, trustworthiness or fitness as an atty in other respects.”
▪ Rule 9(a)(3)​: an atty may also be disciplined for willful failure to cooperate w/ disciplinary
authorities.
▪ Rule 10​: if an atty is found guilty of misconduct, sanctions include disbarment, suspension for a
fixed period not to exceed 3 years, probation not in excess of two years, reprimand, admonition,
restitution to persons financially injured by the atty, costs of the disciplinary proceeding, and
limitations on the atty’s future practice.
● (a)(5)​: an admonition, which is in effect a warning to the atty, can be issued only in cases
of minor misconduct.
● (d)​: the sanctions of disbarment, suspension, probation, and reprimand are made
public.
▪ Rule 18(c)​: the burden of proof required to find an atty guilty of misconduct reflects the unique
character of disciplinary proceedings. In most states, it must be supported by “clear and
convincing evidence.”
o 3 forms of civil remedies regulate atty conduct​:
▪ Legal malpractice​: a group of causes of action by which clients, and in some cases third parties,
can recover damages from attys for legal misconduct.
● Rule 1.1​: attys have an obligation of competence.
▪ Disqualification motion​: filed by one party seeking a court order that the other party’s atty may
not continue to represent that party b/c of some interest.
▪ Monetary sanctions
● FRCP 11​: if an atty files a motion or other paper in court, the atty certifies that the
document is not “frivolous” either in law or in fact.
● Pro hac vice​: almost all states allow an atty to appear pro hac vice for the purpose of handling a particular
matter.
● Problem 1-2​, Reporting Professional Misconduct (p. 39)
o Facts​: You are a recently hired associate working w/ solo practitioner, Normal Wilson. Obtained position
after lengthy job search in tight market and then worked on Sylvia v. United Truck Lines. Case settled a
month ago for $250k and file closed. You did some research and met w/ client regarding discovery
issues. Not involved in settlement negotiations or disbursement. Came across research memo that had
been misfiled and then you pulled the file in Sylvia case where you found a statement signed by client
showing a structured settlement—strange b/c you are sure that case settled for lump sum. In file,
there’s a letter from ins. Company enclosing $250k draft. Mystified and unsure how to proceed.
o Issues raised by problem​:

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 ▪ Did Wilson misappropriate client funds and do you have duty to report to disciplinary authorities
under ​Rule 8.3​?
● Do you “know” that he has engaged in misconduct?
● Definition of knowledge ​1.0(f)
● Compare reasonable belief ​1.0(i)
▪ Even if you have knowledge, duty to report is subordinate to duty of confidentiality.
● Rule 8.3(c)​ and ​cmt. 2
▪ Assuming you do not have a duty to report, do you have a duty to investigate further to
determine if Wilson has engaged in misconduct?
▪ Any rule that requires investigation?
● No, but there is a duty not to file a frivolous claim that sometimes requires further
investigation to verify facts.
▪ What about the concept of “willful blindness” or conscious avoidance? See p.42.
▪ Any reason to investigate even if not ethically or legally required?
● Concern about client, self protection.
▪ Assuming atty decides investigation is required or prudent, what options are available?
● Contacting the insurance company to verify the settlement
● Contacting the client to verify the settlement or obtain other information
● Discussing the matter w/ Wilson
o What would you say?
o How should the associate proceed after an inclusive meeting w/ Wilson?
▪ Do nothing
▪ Demand verification from Wilson
▪ If Wilson has promised some action, check up to extent possible
▪ Quietly look for another job
o Does ​Rule 5.2​ provide the associate w/ any guidance?
▪ 5.2(a)​: individual responsibility
▪ 5.2(b)​: junior atty may defer to senior atty’s “reasonable resolution of
an arguable question of professional duty”
o Do any of the 4 philosophies of lawyering provide the associate w/ guidance?
▪ Client-centered lawyering
▪ Philosophy of morality
▪ Philosophy of social value, such as professionalism
▪ Defensive lawyering
▪ Suppose Wilson fires associate?
● Does not lessen or remove associate’s professional obligations
● Increases incentive to report
● Associate may have claim for wrongful discharge, see
Wieder v. Skala​ (pp. 40-41)
▪ Effect of practice in a large firm?
● Managing partner
● Ethics committee
▪ Rationale for duty to report
● Self regulating profession
● Lawyer misconduct undermines public confidence in rule of law
● Lawyers in unique position to deal w/ such misconduct
▪ Is duty to report too weak?
o Course of action that we plan to take and why​:

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 ▪ Decide whether or not to talk to your boss to find out for sure whether or not there was
something going on w/ the settlement. If you don’t ​know​, then there’s no obligation to report.
▪ If it is confirmed that there is a misrepresentation, there is a duty to disclose to the correct
judicial authority under ​Rule 8.3(a)​ and, in this situation, ​8.4(c)​.
▪ Rule 5.2​ gives guidance to subordinate attys about their ethical obligations. ​5.2(a)​ says that
notw/standing the fact that the subordinate atty followed orders, he is still liable. ​5.2(b) ​says
that if there is an arguable question of duty, then a subordinate may defer to the judgment of
the senior atty.
▪ If the senior atty says that he made a mistake and is correcting it, subordinate still has a duty to
report it b/c it raises a substantial question about the senior atty’s honesty, etc.
▪ Make sure that it’s not confidential before reporting.
● Institutional Structures and Professional Responsibility
o Issues of professional responsibility involve not only personal decision making but also institutional
structure.
o Ex.s
▪ System for admission to practice
▪ Disciplinary system
▪ System for delivery of legal services to indigents and people of moderate means in criminal and
civil cases
▪ Institutional issues arise at national, state, and employer levels
o You will face decisions w/ regard to institutional structure
▪ What do I think is the obligation of an atty regarding pro bono service?
▪ Will I devote my time to fostering an ethic of pro bono service where I work or more generally in
the bar?

III. Scope and Exceptions to the Duty of Confidentiality​ (pp. 98-113, Problem 2-4)
● Atty-Client Privilege​: where legal advice of any kind is sought from a professional legal adviser in his capacity as
such, the communications relating to that purpose, made in confidence by the client, are at his instance
permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.
● Work Product Doctrine​: prevents discovery of materials prepared “in anticipation of litigation” unless the party
seeking discovery makes a special showing that the party has “substantial need” for the materials and cannot
obtain equivalent materials w/o “undue hardship.”
● Rule 1.6 Confidentiality of Information
o Rule 1.0(e) ​Informed Consent​: agreement by a person to a course of conduct after atty has
communicated adequate information and explanation about the risks and reasonable alternatives.
o Implied authorization​: what were you hired to do and is revealing this information necessary to meet
this objective?
o Meaning of ​Required by Law ​(​1.6(b)(6)​): court order, rule, or statute ​specifically aimed at atty(s) in
general​.
▪ Ex.s
● Court order requiring atty to reveal location of body
● Statute: child abuse reporting laws in some states (p. 109 n.84)
▪ Administrative rule. Sarbanes-Oxley regulations dealing w/ corp fraud.
▪ Distinguish general statute that does not specifically apply to attys.
● Ex: statutes imposing reporting obligations but w/o specific reference to attys. NY Public
Health Law in ​Belge​ (pp. 109-110)
o McClure v. Thompson​ (p.105)
▪ Rule 1.6(b)(1)
▪ Court said that maybe ∆ consented but it wasn’t informed consent.
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 ▪ Court found that Mecca was authorized to disclose the information to prevent imminent death
b/c he had a reasonable belief that the children were still alive.
o What are ​justifications ​for the ethical duty of confidentiality? (See pp. 110-113)
▪ Client rights​: preserve client coming forward to seek legal counsel.
▪ Socially desirable​: fosters frank communication and attys can counsel about law compliance.
▪ Tarasoff v. Regents of the University of California​ (p. 107): the court held that the special
relationship b/t dr and patient was sufficient to create a duty of care to third parties foreseeably
injured by the patient.
● Subsequent CA cases have limited​ Tarasoff​ to situations in which the patient threatens
an “identifiable” victim.
▪ Hawkins v. King County​ (p. 108): Court held that the common law duty to volunteer information
about a client to a court considering pretrial release must be limited to situations where
information gained convinces counsel that his client intends to commit a crime or inflict injury
upon unknowing third persons.
● Problem 2-4​, Information About Unsolved or Contemplated Crimes (p. 98)
o Facts​: PD representing ∆ who is accused of a series of burglaries. Investigation of missing teen stymied,
family suffering, father hospitalized. ∆ admits to killing missing teen and left body in abandoned mine;
he’s sure that police will find and trace to him and wants to seek release on bail to hide body and other
stuff.
o Q: Under the Model Rules, do you have an ethical duty to reveal to the authorities that ∆ has killed the
missing girl?
▪ A: No. ​Rule 1.6(b)​ provides for exceptions to duty, but disclosure is discretionary w/ atty. See
cmt. 15​.
o Q: Do you have discretion to reveal to the authorities that ∆ has killed the missing girl?
▪ A: Under ​1.6(b)​, there is no discretion to reveal this information b/c this case doesn’t fall under
any of the exceptions.
o Q: What is the rationale for prohibition against disclosing past wrongful conduct by client?
▪ A: Disclosure will not prevent or remedy the harm, and disclosure undermines principles of
confidentiality, which is central to atty-client relationship.
o Q: Does fact that ∆ intends to hide body and identifying evidence affect your analysis of the duty of
confidentiality?
▪ A: Under ​1.6(b)(6)​, yes if it tampers w/ justice—but it’s not required by law.
● Under SC Ethics Rule 1.6(b), atty may clearly reveal to prevent client from committing
future criminal act.
o Q: Would atty violate ​Rule 1.2(d)​ by assisting ∆ in being released on bail, knowing his plans to hide the
body and evidence?
▪ Yes, but atty may discuss the legal consequences of any proposed course of conduct.
o Q: Is this situation distinguishable from ​Ryder​ (pp. 114-115)?
▪ A: yes b/c Ryder was engaged in wrongful conduct (hiding $ and weapon) while obtaining
client’s release on bail is not wrongful.
o Q: What should atty do if feels that morally wrong to help a killer obtain bail to hide the body from the
police and family?
▪ Move to w/draw under ​1.16(b)(4)
o Q: Suppose ∆ does not qualify for bail and the atty advises him of this fact. ∆ tells atty that he’s “dead” if
the police find the body, that he’s got a gun and is “going to bust out of here.” What should the atty do?
▪ A: Disclosure under ​1.6(b)(1)​? Factors to consider: risk to guards, likelihood of conduct.
▪ A: Counseling under ​2.1​ not to do anything rash is also an option.
▪ A: Inform authorities to “watch ∆”?
● Is this setting a trap for your own client?
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 ▪ A: Telling ∆ you will disclose to prevent.
● May not be sufficient and will likely destroy relationship.
o Q: Suppose ∆ breaks out and harms a guard. Would the atty face potential tort liability for failure to
disclose ∆’s plans?
▪ Consider ​Tarasoff​ and ​Hawkins​ (pp. 107-109).

● Purcell v. District Atty for Suffolk District​ (p. 100)

o Supreme Judicial Court of Mass., 1997
o Illustrates different requirements for exceptions to ethical duty and to privilege.
o Exception to ethical duty applied to prevent client from committing criminal act. However, no exception
to privilege applied.
▪ Exceptions to privilege based on balance b/c encouraging consultation and truthful resolution of
disputes.
o Issue​: whether ∆ is entitled to the protection of the atty-client privilege in the circumstances.
▪ **whether ∆ informed atty of his intention to commit arson for the purpose of receiving legal
advice or assistance in furtherance of criminal conduct.
o Rule 5029(d)(1) crime fraud exception​: “if the services of the lawyer were sought or obtained to enable
or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be
a crime or fraud.”
o Finding​: unless the crime-fraud exception applies, the atty-client privilege should apply to
communications concerning possible future, as well as past, criminal conduct, b/c an informed atty may
be able to dissuade the client from improper future conduct and, if not, under the ethical rules may
elect in the public interest to make a limited disclosure of the client’s threatened conduct.
**Crime/fraud exception did not apply.

IV. The “Possession” Exception to the Ethical Duty, the Atty-Client Privilege, and the Work Product Doctrine​ (pp.
113-119, 122-123, Problem 2-5, 265-271, Problem 3-3(b))
● Duty w/ regard to tangible criminal material
o Problem 2-4 atty possessed information but did not have physical possession of evidence,
instrumentalities, or fruits of crime. What are ethical and legal obligations when atty does have such
possession?
▪ Cases:
● Olwell​ (knife)
● Morrell​ (kidnapping plan)
● Carlin​ (tape recording)
● Stenhach​ (rifle stock)
▪ W/ respect to physical of a client’s crime, atty may, when reasonably necessary, take possession,
retain for a reasonable time necessary to examine it and conduct tests that do not alter or
destroy the evidence.
▪ Following possession, atty must notify authorities of the possession or turn over the evidence to
authorities even if not subpoenaed.
▪ Overrides the requirement of confidentiality.
▪ Basis of obligation:
● Criminal law, ex: obstruction of justice, possession of evidence
● Ethics, ​Rule​ 1​ .2(d)
o Problem 2-5​, Dealing w/ Physical Evidence, Fruits, and Instrumentalities of Crimes (p. 113)
▪ Facts​: represent ∆ accused of armed robbery of local convenience store. Identified by store
clerk, but weak and may be able to obtain acquittal or negotiate plea. ∆ denied robbery but

11
 recently told you that $ is in a bag in closet at gf’s house and he’s concerned she may find it—he
wants to know what to do.
▪ Confidentiality​: duty or discretion to reveal location of money to true owner?
● 1.6(b)(2)(3)​ n/a b/c atty’s services not involved.
● 1.6(b)(6)​ no specific law or direct order.
▪ Counseling​: duty or discretion to advise ∆ to return money to true owner?
● 2.1​ “may”
● 1.2(d) ​shall not counsel or assist in crime or fraud but may discuss legal consequences of
any proposed course of conduct.
o Strategic counseling​: explaining all options available to the client to include
legal and illegal options and the pros and cons of ea/ option. Legal, statutory,
moral, ethical, possibility of being caught.
● Counseling options
o (1) do nothing
▪ Consequences?
● Girl friend finds $
● Girlfriend does not find $
o (2) advise the client to move the money to a more secure location
▪ 1.2(d)​ and ​Ryder​ prohibit b/c assistance in crime.
o (3) advise the client to deliver the $ to the atty
▪ Duty to deliver to authorities after reasonable time to examine
▪ Any advantages?
● May be able to establish claim of atty-client privilege and
prevent $ from being traced to client.
● Can control way in which delivered to authorities.
▪ Q: Suppose gf appears at office w/ bag and asks what to do. What would you say?
● A: advise gf to get her own atty b/c it’s a conflict of interest for you to talk to her.
o Rule 4.3​ prohibition on giving legal advice to unrepresented person other than
advice to seek counsel.
● Q: any way to protect ∆?
o Ask her to have her counsel contact you.
● Q: could you say to her “I’ll take the money and get it back to authorities”?
● Ethical Duty v. Atty-Client Privilege
o Privilege​ is rule of evidence and deals w/ whether atty can be compelled to testify or provide evidence
(p. 266, see also ​Wigmore​ p. 99).
o Scope of duty and of privilege and exceptions to ea/ differ b/c based on different policies.
o Purcell ​(p. 100)
▪ Illustrates different requirements for exceptions of ethical duty and to privilege.
▪ Exception to ethical duty applied to prevent client from committing criminal act.
▪ However, no exception to privilege applied.
● Exceptions to privilege based on balance b/t encouraging consultation and truthful
resolution of disputes.
● Crime/fraud exception did not apply.
● In re Ryder​ established that attys may not assist their clients by actively concealing tangible criminal material.
● Morrell v. State​: a criminal defense atty must turn over to the prosecution real evidence that the atty obtains
from his client. Further, if the evidence is obtained from a non-client third party who is not acting for the client,
then the privilege to refuse to testify concerning the manner in which the evidence was obtained is inapplicable.
● The court should use the standard of the preponderance of the evidence in deciding whether the ​crime-fraud
exception​ applies.
12
 ● Work Product Doctrine v. Ethical Duty
o Work product is limitation on discovery.
o Hickman v. Taylor​ and ​FRCP 26(b)(3)​ (pp. 267-269)
▪ Prevents discovery of materials prepared “in anticipation of litigation.”
▪ Unless party seeking materials shows “substantial need” and unable to obtain equivalent w/o
“undue hardship”
● Ex: statement of now deceased witness
o Other exceptions: waiver, crime-fraud
● Problem 3-3(b)​, The Ethical Duty of Confidentiality, A-C Privilege, and Work Product Doctrine (p. 258)
o Facts​: defective fuel tank litigation. ∆ is Int’l Motors (IM). Πs seek design documents. Design decisions
made by Design Review Committee (DRC) and an atty was chair. Confidentiality notice. IM claims
atty-client privilege and work product.
o Exceptions
▪ Crime/fraud?
● Requirements? (pp. 266-7)
● Has Π established “prima facie” case? Compare ​American Tobacco​ (p. 267)
▪ Waiver?
● Was production to regulatory bodies a waiver? (p. 266)
▪ Substantial need/undue hardship
● Ordinary rather than opinion work product
o Scope of corporate atty-client privilege? (pp. 269-71)
o Π can argue that they have a substantial need for the materials to prepare their case and cannot, w/o
undue hardship, obtain their substantial equivalent by other means.

V. Exception to the Ethical Duty for False Testimony​ (pp. 124-46, Problem 2-6(a)(c)(d))
● Rule 3.3​ ​Candor to Tribunal
o Compare ​1.6 Confidentiality of Information
▪ Exceptions to confidentiality designed to prevent harm to others.
▪ Discretionary: no obligation to disclose.
o Additional obligation not to counsel or assist in criminal conduct, ​1.2(d)
o By contrast, ​most ​of rules in ​3.3​ are designed to prevent ​harm to the tribunal​ and are ​mandatory​ rather
than discretionary.
● Problem 2-6​, False Testimony in Criminal Cases (p. 124)
o Facts​: Atty represents ∆ in prosecution for carjacking. Robbery took place at 11 p.m. Initial interview: w/
some friends. Atty interviewed friends: 8-10:30. Subsequent meeting: w/ friends early in evening and
then w/ gf. Interview gf: together from 7:30-10 p.m. and recall of evening is sketchy. Atty concludes gf is
lying to protect ∆. ∆ insists on testifying on his own behalf and calling gf as witness. What are atty’s
ethical obligations?
o Counseling or remonstrating w/ client
▪ Rule 2.1​ (pp. 129-30)
▪ Does duty to counsel depend on “knowledge” that testimony is false?
o (a)​ I would follow ​Rule 3.3​ and first try and persuade my client that the evidence should not be offered.
If the persuasion is ineffective and I continue to represent my client, I would refuse to offer the false
evidence. If only a portion of the testimony will be false, I may call the witness to testify but may not
elicit or otherwise permit the witness to present the testimony that I know is false.
▪ Obligation to tell the truth
▪ Inconsistencies b/t their testimony
▪ Reasonable chance of acquittal w/o alibi
▪ Judge may consider false testimony in sentencing
13
 o If Denny insists on testifying, is w/drawal mandatory?
▪ If reasonable belief but not actual knowledge, discretionary, ​Rule 1.16(b)(2)​.
▪ If knowledge, some commentators argue must w/draw (p. 130, note 162).
o Rule 3.3, cmt. 15​ indicates discretionary unless “extreme deterioration” in relationship.
o Does ​Rule 3.3(b)​ require disclosure to Court in this case?
▪ No b/c an atty’s reasonable belief that evidence is false does not preclude its presentation to the
trier of fact.
● Firm factual basis (p. 143)
o Refusing to Call as Witness
▪ Rule 3.3(a)(3)​ seems to require but only if knows rather than reasonable belief that will testify
falsely.
o Conducting Direct Examination
▪ Assuming ∆ takes stand and testifies, how would you handle his alibi testimony?
● Could examine in normal fashion except for false testimony, which would handle by
narrative. ​Rule 3.3, cmts. 6, 7​.
● Under the narrative approach, defense counsel must strictly avoid any involvement in
client perjury (p. 128).
▪ Obligations regarding non-client witnesses​: are atty’s obligations regarding gf’s testimony
different from her obligations regarding ∆’s?
● Yes b/c atty may decide to not call gf but ∆ has a right to testify.
▪ Atty has right to make decisions regarding means after consultation w/ client. ​Rule 1.2(a)​, p.
144.
o Nix v. Whiteside​ (p. 134)
▪ Facts​: ∆ Whiteside prosecuted for murder. Self defense. ∆ told atty Robinson that he believed
that Love had a gun under pillow when he stabbed him, but had not actually seen a weapon.
Robinson said existence of gun not necessary to self defense. Shortly before trial, ∆ said he
would testify that he had seen something metallic. “If I don’t say I saw a gun, I’m dead.”
Robinson told ∆ that testimony would be perjury, that could not assist, and would advise court.
Would also move to w/draw. At trial ∆ testified that he knew Love had weapon but admitted on
cross that he did not see a weapon and Robinson presented other evidence to support self
defense. ∆ was convicted of murder and claimed ineffective assistance of counsel.
▪ Finding​:
● Robinson’s conduct was a reasonable professional response to threatened perjury (pp.
138-40).
o Remonstrated w/ client and prevented false testimony.
o Did not disclose to court.
● No prejudice​ b/c no harm from being unable to present perjury, and also client testified
and substance of self defense presented to trier of fact.
o (c)​ On the facts of problem 2-6(c) would ∆’s right to effective assistance of counsel be violated?
▪ Perhaps ​Nix​ distinguishable:
● Taking action in (c) fell below reasonable professional standards b/c atty lacked firm
factual basis for determining that ∆’s testimony was false.
● Reasonable probability that outcome would have been different b/c unlike ​Nix​, ∆ in (c)
did not take stand and present alibi defense.

VI. Exception to the Ethical Duty for Fraud in Business Transactions​ (pp. 521-48, Problem 5-2(a), (d), skimming
534-42 on the Sarbanes-Oxley Act)
● Rule 1.13
o (a)​ represent the org and not the individual officer, employee, or shareholders, etc.
14
 o (c)​ Reporting out. Read w/ ​1.6(b)​ (to comply w/ other law or a court order; this is purely discretionary)
▪ Reporting out ​is permissible in 3 situations:
● (1) self-defense under ​Rule 1.6(b)(5)
● (2) to prevent or rectify harm under ​Rule 1.6
● (3) to prevent harm to the corp under ​Rule 1.13(c)​; applies when atty has reported up to
highest authority in org and that authority has refused to act, and atty believes the
violation is reasonably certain to result in substantial injury to the org.
● Problem 5-2​, Fraud by Clients in Business Transactions (p. 521)
o Facts​: Nat’l Computer, VP Ellen Lee. Renewal of supply K w/ Microchip Int’l. Firm prepared 3 yrs ago and
due to expire in 6 mo. Renewal essential to Nat’l b/c microchips in short supply. Lee mentions difficult to
obtain first K. Had to give Microchip’s VP for sales “something on the side.”
o Who is client?
▪ 1.13(a)​ entity representation concept (p. 526)
o 1.13(f) ​warning to constituents when interests of org and constituent adverse (p. 529); like​ Rule 4.3
▪ Should atty seek information before making warning?
▪ Form of warning?
o Dealing w/ Vague or Dismissive Answers
▪ In response to questions suppose Lee says…
● Don’t worry, it’s not a problem
● Must have misunderstood. I only meant a small gift.
● Bribery is clearly type of conduct covered by ​1.13(b)
● Lee’s failure to explain is suspicious
● 1.13 cmt. 4​ gives discretion even if not required
● Post-Enron climate
● Avoid personal risk although may be concerned about souring relationship w/ Lee and
Nat’l.
o Dealing w/ past conduct
▪ Suppose Lee admits pmt but says situation unusual and pmts no longer being made. What
should atty do?
● Must take action under ​1.13(b)
● Assurances may not be true
● Mgt is entitled to know about bribery and decide what action to take.
o Carrying out the Duty to Report up
▪ Assuming atty decides to report up, what steps?
● Discuss w/ Lee, who may decide to self-report.
● Atty could require documentation, e.g. written report showing copy to atty or confirm
orally w/ official that report made w/ memo to atty’s file.
● Further action depends on response of official to whom report made. Atty ​must​ act if
matter “swept under the rug.” ​1.13(b)
o Duties if board refuses to act
▪ Suppose atty takes matter to CEO and ultimately board. Chair tells atty that board has resolved
matter. Directs atty to proceed w/ renewal K and keep matter confidential. May atty proceed w/
drafting K?
● 1.13 cmt. 6​: obligations under rule concurrent w/ other rules.
● 1.2(d)​ duty not to counsel or assist in fraud.
● If atty knows or reasonably believes that bribery continuing, cannot draft K.
o Suppose atty is convinced that bribery is no longer going on. May atty proceed w/ drafting K?
▪ Close case
▪ Could decide that renewal not directly infected by fraud, which has stopped.
15
 ▪ But could decide that new K is renewal of one that was infected by fraud and in which atty’s
services were used.
▪ If Lee is involved in renewal, situation somewhat worse.
o Effect of Sarbanes-Oxley
▪ Suppose publicly-held company that files reports w/ SEC. What effect would SOX regulations
have on atty’s obligations?
▪ Is atty subject to regs “appearing and practicing before commission” (p. 535)
▪ Unlike ​1.13(b)​, which requires knowledge, atty must report up if has “evidence of a material
violation” (p. 536)
▪ How atty reports depends on whether atty is supervisor or subordinate and whether company
has QLCC.
● Subordinates report to supervisors and no further responsibility (pp. 537-8); unlike ​Rule
5.2​.
● If QLCC any atty can report to it and no further responsibility (p. 540)
● Passing the buck
▪ Supervisors who report to CLO may have further responsibility if does not receive an
appropriate response (pp. 538-9)
▪ Reporting out under SOX (pp. 541-2); see ​(d)(2)(iii)
o Prevention or rectification of client fraud involving atty’s services, ​1.6(b)(2), (3)
▪ Disclosure permitted but not required under ​1.6(b)(3)
▪ Couldn’t do if atty had not drafted original K.
o Prevention of harm to org., ​1.13(c)
▪ Disclosure unlikely to prevent harm to org.
▪ May cause harm by resulting in loss of needed microchips

VII. Conflicts of Interest: Current Clients​ (pp. 271-90, Problem 3-4(a), (b), (d))
● Attys owe fiduciary duties to clients
o Loyalty is a fundamental aspect of fiduciary obligations.
o Rules dealing w/ conflicts of interest protect client interest in loyalty.
● Types of conflicts of interest
o Direct adversity​ b/t current clients, ​Rule 1.7(a)(1)
▪ Single matter
● Represent driver 1 and passenger against driver 2
● Passenger has X/C against driver 1
● Improper even w/ client consent, ​Rule 1.7(b)(3)
● Rationale: cannot be loyal to both when directly adverse in same matter. Inconsistent
w/ social interest in adversarial presentation.
▪ Unrelated matters
● more common than single matter
● requires consent of both parties in writing
● represent A v. B in one matter, but you represent B in a totally unrelated matter
● representation of one client in a matter while representing another client against first
client in unrelated matter
o Rottner​: firm represented Twible in collection case. Represented O’Brien against
Twible in A&B case.
o Unrelated matter representation improper w/o informed consent of both (in
writing), ​1.7(a)(1)​ and c​ mt. 6
▪ Based on policy of loyalty
▪ Individual parties will usually consent
16
 ▪ Corporations sometimes will consent
o Multiple clients in a single matter w/ common interests but ​risk that conflict may develop​, ​1.7(a)(2)
▪ Co-∆s in criminal cases
▪ Co-Πs in civil cases
▪ Promoters of business ventures
o Former clients​, ​Rule 1.9
o Advocate/witness conflicts​, ​Rule 3.7
● Rule 1.10 Imputation of Conflicts of Interest: General Rule
● Int’l Business Machines Corp. v. Levin​ (p. 276)
o “A possible effect on the quality of the atty’s services on behalf of the client being sued may be a
diminution in the vigor of his representation of the client in the other matter.”
o “Although [the law firm] had no specific assignment from IBM on hand on the day the antitrust
complaint was filed and even though [it] performed services for IBM on a fee for service basis rather
than pursuant to a retainer arrangement, the pattern of repeated retainers, both before and after the
filing of the complaint, supports the finding of a ​continuous relationship​.”
● Positional conflict of interest​: when an atty takes a legal position on behalf of one client that is adverse to the
interests of another client.
● Validity of prospective waivers
o Rule 1.7 cmt. 22​: the fundamental issue is whether “the client reasonably understands the material risks
that the waiver entails.”
● General retainer​: pay for firm’s availability to prevent firm from taking on conflicting work
● Problem 3-4​, Representation Against Current Clients (p. 271)
o (a)​ ​Facts​: meeting of Ethics Committee of Knight & McLaughlin. General Contractor seeks representation
against Velasquez Steel. Major matter: $1 million fees. No work for VS this year. Fees paid last 2 years
total $25k. Tax and Fair Labor Standards Act.
▪ If they’re a current client then no but yes if a former client.
▪ To decide if they’re a current client​…
● Are there still open cases? If open then can’t take case.
● General retainer​: fee to keep the firm “on call” or available and not take other cases
against the corp.
● Expectation of continuing relationship (​Levin​ p. 276)
▪ Suppose unclear whether current or former?
● Must get informed consent from GC.
● Entitled to conflict free counsel if wants.
o VS could file motion for disqualification—GC must know so they can make
backup plans.
▪ Suppose GC consents, how to proceed?
● File suit?
● Seek consent from VS? (probably no b/c unlikely to consent)
● Letter informing VS no more matters? (best choice)
● Courtesy letter informing them of representation of GC, characterizing relationship w/
VS and stating no more matters.
▪ Suppose firm handling minor matter for VS?
● Current client
● w/drawal under ​1.6?
● hot potato doctrine​ (pp. 254-5): drop (w/draw) the client like a hot potato in order to
take on a more favorable client; not favored by the courts.
▪ Possible solutions in engagement agreement
● prospective waiver (pp. 288-90
17
 ● conclusion of representation
o (b) ​Facts​: firm handling formation of NYM Associates, LP, owned by drs. Sophisticated medical
equipment. Oldtown Hospital wants firm to defend it in medical malpractice action. Oldtown claims that
any malpractice fault of dr., who owns 10% of NYM.
▪ Conflict of interest checking system
● Names to input
● Mistakes in names
▪ Is dr. a current client?
● If so, ​1.7(a)(1)​ prohibits representation w/o consent of dr. and hospital
● Entity representation principle, ​1.13(a)
● Partnership, facts and circumstances. ABA Opinion 91-361 (p. 277)
● Need for Hospital’s informed consent regardless of whether dr. is client. ​1.7(a)(2)
▪ If uncertain whether dr. is client, face issue of how to proceed as in previous problem.
● Determining who is a current client in “entity” representation cases
o Rule 1.13(a)​: an atty employed by an entity represents it rather than any of its members or constituents.
▪ But the relationship may exist under facts/circumstances. In ​Westinghouse Electric Corp. v.
Kerr-McGee Corp.​, the firm held itself out as independent counsel, communicated directly w/
members of the association, and assured them of confidentiality—one of the hallmarks of a
client-atty relationship.
o Discotrade Ltd. v. Wyeth-Ayerst Int’l, Inc.​ (p. 279): illustrates that conflict of interest issues also arise
when a law firm represents a member of a corporate group and is asked to undertake representation
against either the parent corporation or a sister corporation.
▪ Facts​: Dorsey & Whitney represented Discotrade in action for wrongful termination of
distributorship against WAII, a sister corp. to Wyeth Research, a division of Wyeth
Pharmaceuticals (WP). D&W represents WP in IP work.
▪ Issue​: is WAII a “client” of D&W b/c D&W represents WAII’s sister corp.?
▪ What does court decide?
● WAII is treated as client
▪ What test does court use?
● Facts and circumstances to determine whether should be treated as same client
▪ What factors are relevant? (p. 281)
● Overlap in board of directors
● Overlap in officers
● Common legal department
● Intimate interaction through computer networks, email, etc.
● Common letterhead, business cards, and email addresses
▪ Note approaches of other courts
● Per se (p. 283 note 1)
o Unlikely
o all members of a corporate group are considered one entity and treated as a
client
● Alter ego (p. 284 note 2)
o Minority
o these entities in essence are operating as one entity
o narrows the rules—almost always find as separate entities
o elements
▪ such a unity of interest that the separate personalities of the
corporations no longer exist ​&
▪ inequitable results will follow it the corporate separateness is respected
18
 ● functional test is in b/t per se and alter ego

VIII. Conflicts of Interest: Former Clients and Former Gov’t Attys​ (pp. 290-305, Problems 3-5 and 3-6, skim pp.
626-30 and Problem 6-3(3))
● Representation against Former Client
o Representation against former client in same or substantially related matters prohibited w/o informed
consent of former client, ​Rule 1.9(a)
▪ Would also need informed consent of current prospective client, under ​1.7(a)(2)​.
▪ Note that consent must be “confirmed in writing.”
o Imputed to all members of firm, ​Rule 1.10(a)​.
o Most authorities conclude that prohibition is based mainly on duty of confidentiality to former client.
See​ Rule 1.9 cmt. 3 ​and ​RK 132(2)​, p. 294.
▪ Rule 1.9 cmt. 3​: information gained in the prior representation must “materially advance the
client’s position in the subsequent matter.”
▪ But see​ ​American Airlines​ ​(pp. 293-4).
▪ Authorities recognize limited duty of loyalty to former client not to attack work product
prepared for former client (p. 294, bottom).
o Compare to​ Rule 1.9(c)
o When are matters substantially related​? (p. 294)
▪ MR​ test (​1.9 cmt. 3​)​: “Matters are ‘substantially related’ for purposes of this Rule if they involve
the same transaction or legal dispute or if there otherwise is a substantial risk that confidential
factual information as would normally have been obtained in the prior representation would
materially advance the client’s position in the subsequent matter.”
▪ RK​ test​: if “there is a substantial risk that representation of the present client will involve the use
of information acquired in the course of representing the former client, unless that information
has become generally known.”
o Significance of playbook information​ (p. 295)
▪ Knowledge of the people of the former orgs and how they operate.
▪ This will usually will not result in disqualification.
▪ This is to preserve the client’s right to be represented by the counsel of their choice.
o Significance of “appearance of impropriety”​ (pp. 298-99)
▪ Done away w/ under the ​Modern Rules
● Problem 3-5​, Representation against Former Clients (p. 290)
o Facts​: Marian Enderson v. Nat’l Securities. Securities arbitration in which Enderson claims Benson gave
false information about company now bankrupt. Carson, Fender & Sink represents Enderson. For 8 yrs
CFS represented Nat’l in securities arbitration claims. Representation ended 3 yrs ago when Nat’l had
mgt change and replaced local counsel. Nat’l moves to disqualify CFS.
o Arguments
▪ Arguments for Nat’l to disqualify CFS
● Substantial risk exists that confidential information gained in prior representation would
be material.
o Similar types of cases factually
o Similar legal issues
o Supervisory practices in issue
▪ Against disqualification
● Risk of confidential information small
● 3 years have passed
● Change in mgt. Information likely to be stale.
● Playbook information generally not disqualifying. ​Merrill Lynch​ (p. 296)
19
 o Are there any facts not given which are significant to deciding motion?
▪ Did CFS handle cases involving Benson?
● Imputed Disqualification​: moving atty must have actually possessed knowledge.
o Basic principle: when attys associated in firm, if one disqualified, all disqualified. ​Rule 1.10(a)
▪ Noted definition of firm, ​1.10 cmt. 1
▪ Rationale
● Mutual financial interest
● Access to files
o Limitations on principle of imputed disqualification, when atty leaves firm
o When atty leaves firm and joins new firm, that atty and new firm only disqualified from handling case
against client of former firm if attyr ​actually possessed ​confidential information. Access not enough.
▪ Silver Chrysler Plymouth​ (p. 301)
▪ Rule 1.9(b)​: if atty who changes firm does possess confidential information, rules in most
jurisdictions do not allow screening of disqualified atty (pp. 303-4).
▪ ABA recently approved revised ​Rule 1.10​, which allows screening of a disqualified atty who joins
a new firm.

● Problem 3-6​, Imputation of Disqualification (p. 299)

o Facts​: Our firm, Howe & Associates (HA), does Π medical malpractice and we want to hire Anne Reynor,
an associate w/ Chen & Rivera (CR) who does insurance defense work. HA has a number of cases in
which CR represents ∆ dr and carrier.
o Do we need additional information?
▪ When atty leaves firm, application of rules to disqualification of new firm depends on whether
atty actually possesses confidential information, ​1.9(b)(2)
o Advice
▪ If matter was in CR but Reynor did not work on case or otherwise acquire confidential
information, no disqualification.
● Silver Chrysler Plymouth​ (p. 301)
● Rationale: (1) use of confidential information unlikely, (2) actual use prohibited, (3)
would impede movement of attys b/t firms.
▪ If Reynor had substantial involvement in case, she is disqualified under ​1.9(b)(2)​ and HA will be
disqualified if it hires her, ​1.10(a)​.
▪ If Reynor is disqualified, can we avoid disqualification of HA by ​screening ​her from any
involvement?
● If atty is personally disqualified, firm is also unless atty ​is screened​ for participation and
notice is given to agency, ​1.11(b)​.
● Model Rules​ rejected screening until amended this year (pp. 302-3).
● A number of states have revised their rules to allow screening. That trend is likely to
accelerate b/c of the ABA’s recent action.
● Some court decisions allow (p. 303).
● RK permits to some extent (p. 304).
● Screening permitted in number of other contexts, e.g. ​1.18​ former prospective client.
● Requirements for screening​ (pp. 303-4):
o (1) Appropriate measures must be taken to prevent disclosure of confidential
information by the disqualified atty.
▪ The personally disqualified atty should acknowledge her obligation not
to disclose confidential information;
20
 ▪ Attys and staff working on the matter should be informed that the
disqualified atty is being screened and they should not communicate w/
the atty w/ respect to matter in question.
▪ In most instances, these measures should be confirmed in writing, ​Rule
1.0(k) ​and ​cmt. 9​.
o (2) Screening measures must be instituted in a timely fashion, ​Rule 1.0 cmt. 10​.
o (3) the disqualified atty should receive no portion of the fee of any matter in
which the atty is disqualified, ​Rules 1.11(b)(1)​, ​1.12(c)(1)​, ​1.18(d)(2)(i)​.
o (4) Written notice must be given to the affected client or person, ​Rules
1.11(b)(2)​, ​1.12(c)(2)​, ​1.18(d)(2)(ii)​.
▪ Alternative options to screening​: consent, delay change of firms.
● Problem 6-3(3)​, Gov’t Attys (p. 616)
o Facts​: atty works w/ fed’l agency and has been involved in investigation of health hazards associated w/
certain product. Atty planning on leaving agency and has made overtures to several law firms. One of
firms represents the company that markets the product the agency is investigating. What ethical
restrictions apply?
o Rule 1.9(a), (c)
● Conflicts of Interest Involving Former Governing Attys
o Rule 1.11(a)
▪ May not use confidential information.
▪ May not represent a client in connection w/ matter in which atty participated ​personally and
substantially​, unless agency gives informed consent confirmed in writing, ​1.11(a)(2)
▪ Rationale: Concern that atty will use public position to promote private employment. See ​cmt.s
3, 4​.
● Do not want joining and leaving gov’t service to be too onerous—make employment
attractive to highly qualified individuals.
● Do not want decisions based on prospects of private employment.
o Application to ​Problem 6-3(3)
▪ Depends on whether atty is personally and substantially involved in investigation.
▪ If so, personally disqualified under ​1.11(a)(2)​. Firm not disqualified if screened.
▪ If atty was not involved, neither atty nor firm disqualified.

IX. Conflicts of Interest: Multiple Clients in a Single Matter​ (pp. 315-21, Problem 3-8, skim 154-62, 504-10, 519-21,
78-84)
● Conflicts of interest​: multiple clients in single matter, clients w/ disabilities, advocate/witness conflicts
● Basic Principles regarding representation of multiple clients in single matter
o Must determine if ​direct adversity​ b/t clients, ​Rule 1.7(a)(1)​.
▪ If so, may not undertake representation even w/ client consent if adversity is in same litigation
or other proceeding before a tribunal, ​1.7(b)(3)​.
▪ If direct adversity, but not in violation of ​1.7(b)(3)​, i.e. representation of one client against
another client but in unrelated matters, may undertake if comply w/ requirements of ​1.7(b)​,
including informed consent confirmed in writing.
▪ If an actual conflict develops b/t the driver and passenger, atty will be required to w/draw from
representation, ​Rule 1.7 cmts. 4, 29​.
o Requirements for informed consent​, ​Rule 1.7(b)(4) cmt. 18​ (p. 318)
▪ Implications of the common representation
▪ Possible effects on loyalty
▪ Confidentiality
▪ Atty-client privilege
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 ▪ Advantages and risks involved
o If do not have direct adversity, but substantial risk of conflict, then ​1.7(a)(2)​ applies.
▪ Co-parties in litigation
▪ Co-venturers in business transactions
▪ See ​cmt. 21
o May generally undertake representation if comply w/ requirements of ​1.7(b)​, in particular requirement
of informed consent in writing, ​1.7(b)(4)​.
o FRCP 44(c)
▪ Inquiry into joint representation
● Joint representation occurs when
o 2+ ∆s have been charged jointly under ​Rule 8(b)​ or have been joined for trial
under ​Rule 13​, and
o ∆s are represented by same counsel, or counsel who are associated in law
practice.
● Court’s responsibility in cases of joint representation
o Inquire about the propriety of joint representation.
o Personally advise ea/ ∆ of right to effective assistance of counsel, including
separate representation.
o Unless there is good cause to believe that no conflict of interest is likely to arise,
o Take appropriate measures to protect ea/ ∆’s right to counsel.
● Problem 3-8​, Representation of Multiple Πs in Tort Cases (p. 315)
o Joint interview of driver and passenger in accident case involving collision w/ truck.
o Did Ms. Lawson’s handling of the interview violate her ethical obligations or could it have been
improved? If so, how?
o Comments on interview
▪ Joint meeting. Runs risk of disqualification from representing both if conflict.
● New ​Rule 1.18 Duties to Prospective Client​ provides some protection.
● Better to have separate meeting w/ one.
▪ Adequacy of consent?
● Not informed
● Not in writing
▪ Interview w/ a prospective client is subject to atty-client privilege.
▪ Would only be disqualified if the information would be significantly harmful to prospective
client, if the client does not retain and they become an adversary.
▪ Screening is allowed​; firm would not be disqualified.
o Propriety of Multiple Representation
▪ Could Lawson represent both ∆s even w/ informed consent?
● 1.7(b)(3)​ prevents atty from representing two clients when one has claim against
another.
● Does ∆ have claim against Π?
o Yes: Didn’t see truck b/c changing radio station.
● Improper if actual claim (p. 317, n. 289).
● 1.9(a)​ allows representation of one w/ the other’s consent.
▪ What about fact that he does not want to sue sister?
● Could waive claim but must have informed consent confirmed in writing.
● Hasn’t given information such as fact that Dowing’s insurance may cover.
● Might not be necessary to sue
o Settlement w/ Downing’s insurance
o Tolling while completion of claim against driver
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 ▪ Risk of malpractice liability, ​Woodruff v. Tomlin​ (p. 320, n. 299)
▪ Suppose both willing to give informed consent despite possible claim. Partee will either waive
or will be handled separately. Any other problem w/ multiple representation?
● Substantial discrepancy in testimony, ​Rule 1.7 cmt. 23
● Radio testimony. Will Lawson need to attack Partee’s credibility to support Donwing’s
claim?
▪ Suppose interview had not revealed possibility of conflict, e.g. Downing not tuning radio
● Atty could probably proceed w/ multiple representation but need informed consent
confirmed in writing ​1.7(b)(4)​.
● Requirement for informed consent, ​1.7 cmt. 18 ​(pp. 318-19)
o Right to separate counsel
o Advantages
▪ Fee reduction
▪ Expense sharing
▪ Efficiency
o Risks
▪ Actual conflict may arise, such as
● Downing at fault
● Discrepancy in testimony
● Aggregate settlement offer ​1.8(g)
● Inadequate insurance
▪ w/drawal in event of conflict
▪ No A-C privilege if jointly represented (p. 320)
▪ Rule 1.8 Conflict of Interest: Current Clients: Specific Rules
● Multiple representation in mass torts
o Ex.s: mass disaster, mass tort like asbestos or tobacco
o Distinguish multiple representation of clients from class actions.
o Are conflicts in mass accident more or less acute?
▪ Claims by Πs against ea/ other rare.
▪ Can have aggregate settlement or inadequate insurance issues.
▪ Can have conflict over who goes first.
● Problem 2-8​, Multiple Representation of Co-∆s (p. 154)
o Representation of Co-∆s
o Why? (p. 158)
▪ Expense sharing
▪ Expertise of counsel
▪ United front
o Rules discourage but do not prohibit if no direct conflict and informed consent confirmed in writing,
Rule 1.7(b)(4)​ and ​cmt. 23​ (p. 155).
o Situations in which improper b/c of actual adversity (p. 157)
▪ Checklist whether multiple representation of criminal ∆s is permissible—if any are yes then
cannot represent both even w/ consent.
● One ∆ has evidence that inculpates the co-∆.
● One ∆ more culpable than the other ∆.
● Defenses inconsistent in any way.
● Will one testify against the other.
● Will prosecution’s evidence strike ∆s unequally.
● Should distinction be drawn in closing argument.
● Should distinction be drawn at sentencing.
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 o Constitutional issues involving ineffective assistance of counsel (pp. 155-6)
o Court rules requiring inquiry into conflicts (p. 158-9)
o Joint defense agreements as an alternative to multiple representation (pp. 159-61)
● Representation of Multiple Parties in Business Transaction
o Problem 5-1​, Attys as Representatives of Multiple Clients, Investors, Board Members (p. 504)
o Who is the client?
▪ Promoters?
▪ Entity?
▪ All?
▪ Make it clear in writing—if you do not, the court will most likely rule that you represent all.
o Common possible conflicts in business formations
▪ Form of capital contributions—loan or equity
▪ Salaries
▪ Distributions
▪ Buy/sell provisions
o If fundamental antagonism, conflicts not consentable (​cmt. 26​).
o In most instances conflicts will be consentable w/ informed consent confirmed in writing (pp. 508-10).
● Comment on the Duty of Competency
o Ethical Duty, ​Rule 1.1​ C
​ ompetence
▪ On occasion attys have been disciplined for lack of competency, ​Sandstrom​ (p. 79).
o Violation of the duty of competency can lead to malpractice liability (pp. 49-50).
▪ In criminal cases courts have not been receptive to malpractice claims (pp. 83-4).
o In criminal cases, violation of the duty of competency is often asserted as a basis of claims of ineffective
assistance of counsel.
▪ Strickland v. Washington​ (p. 80)
▪ Nix v. Whiteside

X. Conflicts of Interest: Clients w/ Disabilities and Advocate/Witness Conflicts​ (pp. 146-54, Problem 2-7, 305-14,
Problem 3-7)
● Dealing w/ Impaired or Incapacitated Client
o Ethical Principles
▪ Normal allocations of authority b/t atty and client, ​Rule 1.2(a)​.
▪ Rule 1.14 Client w/ Diminished Capacity
● See​ D​ usky v. United States​ ​(p. 148)
o While ethics rules indicate actions are discretionary, some decisions find a professional duty to bring
issue of ∆’s incompetency to court’s attention to protect d/p rights. E.g. ​US v. Boigegrain​ (p. 150).
▪ Risks to ∆. Court appoints psychiatrist may testify against ∆ (p. 149).
o Test for when client lacks capacity to stand trial, ​Dusky​ (p. 148).
▪ Ability to consult w/ atty w/ a reasonable degree of rational understanding and
▪ Factual and rational understanding of proceedings.
● Problem 2-7​, ∆s w/ Diminished Capacity (p. 146)
o How would you proceed and why?
▪ Must decide b/t impaired of incapacitated.
▪ May use your own experts to determine.
▪ If she is incapacitated then you MUST report to the tribunal and its decision on how to proceed.
▪ May enter evidence at sentencing or at the trial to mitigate and defeat the mens rea
requirement.
o Types of diminished capacity
▪ Mental illness or retardation
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 ▪ Drugs
▪ Children
o Decision making in normal relationship​, ​Rule 1.2(a)
o Rules 1.8(e) ​deals w/ the handling of expenses, except
▪ May​ advance court costs and expenses; repayment of which may be contingent on the outcome
of the matter.
▪ Indigent client may pay court costs and expenses of litigation on behalf of the client.
o Decision making when diminished capacity​, ​Rule 1.14
▪ How to decide whether ​(b)​ applies and protective action appropriate:
● Understanding of proceedings
o Sufficient present ability to consult w/ attys w/ a reasonable degree of rational
understanding.
● Ability to assist
o Rational as well as factual understanding of proceedings against him.
● May consult w/ professional to gain assistance​, ​1.14(c)
o May disclose information necessary for this consultation.
● Items to consider in ​determining diminished capacity
o the client’s ability to articulate reasoning leading to a decision
o variability of state of mind and ability to appreciate consequences of a decision
o the substantive fairness of a decision
o the consistency of a decision w/ the known long-term commitments
o values of the client
▪ Decisions to be made by the accused
● What pleas to enter
● Whether to accept a plea agreement
● Whether to waive jury trial
● Whether to testify in his or her own behalf
● Whether to appeal
▪ Strategic and tactical decisions made by the atty
● Witnesses to call
● Whether and how to conduct cross-examination
● What jurors to accept or strike
● What trial motions should be made
● What evidence should be introduced
▪ Steps if disagreement on significant matters of tactics or strategies
● make a record of the circumstances
● counsel’s advice and reasons
● conclusions reached
● made in a manner that protects the confidentiality of the atty-client relationship
▪ Any other sources of obligations
● Decisions stating professional duty to bring issue of ∆’s incompetency to Court’s
attention to protect due process right. ​U.S. v. Boigegrain
● Risks to ∆. Court appointed psychiatrist may testify against ∆.
▪ File motion w/ court for competency determination
● Due process obligation to do so.
● Client’s delusion shows lack of rational understanding of facts.
▪ Suppose court finds competent to stand trial. Client wants to plead guilty, not raise insanity
defense, and not offer evidence in mitigation. How to proceed?
● Client right to plead guilty and not plead insanity, ​1.2(a)​ (p. 151).
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 ● Limited options. Can move to w/draw (p. 152).
● Atty right to offer evidence over client’s objections, ​1.2(a)​ (pp. 152-3).
▪ How attys proceeded in other cases (p. 153):
● Gilmore​: filed appeal over client’s objections
● Unabomber​: did not raise insanity defense but would introduce evidence regarding
mens rea.
● Atty Witness Principles
o Rule 3.7 Atty as Witness
▪ No imputed disqualification under ​Rule 3.7​ unless conflict of interest.
● Problem 3-7​, Advocate-Witness Conflicts of Interest (p. 305)
o Facts​: Staley Manf. v. Bowers Chemical. Requirements K for chemicals. Staley recently increased
requirements and our client, Bowers, claims unreasonable. I am listed as witness by Staley regarding
negotiations leading up to K. Other participants: Camilla Newman (Bowers’s VP sales), Chinmay Patel
(Bowers’s head of manf.). During negotiations, Bowers requested and Staley provided estimate of
requirements, draft included, final K did not. Not sure why. Staley’s demands exceed estimates.
o Basic question is ​whether atty is “likely to be a necessary witness”​ ​3.7(a)
▪ Depends on what testimony might be.
● Maybe called on to testify about negotiation sessions.
o Other witnesses can testify about
o Could take atty’s deposition to determine if any discrepancy which would
require testimony.
▪ Any other testimony atty might give?
● Atty says can’t remember why estimates omitted from K. Would that testimony be
relevant or helpful to either party?
● May raise issues of potential malpractice!!
▪ Assume reasonable possibility that atty may need to be witness, is firm disqualified?
● Not unless conflict of interest ​3.7(b)​.
● Exception to rule of imputed disqualification of ​1.10(a)​.
▪ Any possibility for conflict here?
● Discrepancy b/t atty’s testimony and client representation regarding reason for
omission of estimates.
● Malpractice claim against firm.
▪ If firm is to continue in matter, must disclose to Bowers and obtain consent. Since two possible
conflicts, probably should not continue.
▪ Any steps to take w/ regard to possible malpractice?
● Due to inform client under ​Rule 1.4​.
● Put carrier on notice.
o Rule 1.8 Conflict of Interest: Current Clients: Specific Rules​: read this rule very carefully in preparation
for MPRE.

XI. Fees, Retainers, and Client Property​ (pp. 219-236 and Problem 3-1, 85-98)
● Fees and Client Property
o Rule 1.5 Fees
o Methods of judicial control
▪ Discipline
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 ▪ Determination of reasonableness
● Implied in the K that the atty would comply w/ the rules.
o Court would agree and reduce the fee.
● Client might sue if the atty has the money.
● Atty might sue if the client owes money.
● Court could still reduce the fee even if the fee was agreed upon in the K to represent.
● Excessively large award and contingency fees as compared to the effort of the atty
expended.
● even if you have a sophisticated client
● Rules do not require atty to inform client of alternatives fee.
▪ Statutory fee awards (p. 226, n. 22)
● Lodestar amount
o Fee determined by multiplying the hours worked by the hourly rate.
o Fee adjusted upward or downward depending on various factors.
▪ Result obtained
▪ Time pressure
● rules or statutes limiting fee
o Various types of fee arrangements
▪ Hourly​: common in business and tax matters, civil defense litigation
▪ Contingent​: commonly used by Πs attys in personal injury matters; atty’s right to receive
compensation is contingent on the client’s receiving an award
● Unreasonable​ when:
o (1) when there was a high likelihood of substantial recovery by trial or
settlement, so atty bore little risk of nonpmt; and
o (2) when client’s recovery was likely to be so large that atty’s fee would clearly
exceed the sum appropriate to pay for services performed and risks assumed.
● Special requirements for contingent fees, ​Rule 1.5(c)
o Must be in writing signed by client.
o State method the fee is computed, including %s in event of settlement, trial, or
appeal.
o Identify litigation or other expenses.
o State whether expenses are deducted before or after the computation of
contingent fee (gross or net amount).
o Identify any expenses the client must pay regardless of the outcome.
o Provide clients w/ a written settlement stating outcome and showing how
remittance is computed.
● Improper​ ​contingent fees​, 1​ .5(d)
o (1)​ Contingent or securing divorce or award in lieu of divorce
o (2)​ Criminal cases
▪ May say “it’s customary to pay in advance”
● Wunschel Law Firm, P.C. v. Clabaugh​ held that a defense contingent fee based on a %
of the difference b/t the amount demanded by the Π in the complaint and the amount
the ∆ was required to pay was void as against public policy. The court reasoned that a
defense % contingent fee in unliquidated tort cases was likely to produce unreasonable
fees b/c the amount demanded in the complaint does not bear a logical relationship to
the amount of any recovery.
▪ Fixed​: expressed as % but not a contingent fee
● Used in estate planning and real estate
▪ Value-billing​: determines fee at the conclusion of the matter; 2 steps
27
 ● 1. Compute ​lodestar ​fee; hours worked x hourly rates
● 2. ​Adjust​ lodestar fee up or downward depending on factors such as results obtained
and time pressures
▪ Blended rate​: a single rate that applies to both attys and paralegals
● Option: compute on an hourly basis w/ bonus for a successful outcome
● May cause atty to over-delegate, but atty still bears responsibility for work.
● Expenses
o Rule 1.8: Conflict of Interest: Current Clients: Specific Rules
▪ (e)(1)​: attys can advance “court costs and expenses of litigation” w/ repayment contingent on
the outcome of the case.
▪ (e)(2)​: in the case of indigent clients, attys may agree to pay litigation expenses w/ no
responsibility for repayment.
▪ (a)​ covers loans for non-litigation
o Prohibited: loan on ​living expenses
o Improper expenses​, absent clear client agreement
▪ charges in excess of actual cost
▪ firm overhead: rent, utilities
o Expenses allowed
▪ filing fees
▪ transcribing depositions
▪ expert witnesses
▪ travel expense
▪ photocopying
▪ long-distance telephone
▪ computer research
o Payment to third parties out of settlement proceeds
▪ Does provider have interest in settlement?
● Client assignment
● Agreement by atty to protect
● Statutory lien
● Subrogation rights under policy
▪ 1.15(d)​: “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.”
● Cmt. 4​: “under applicable law” atty may have a duty to a third party that precludes atty
from surrendering funds to a client.
▪ 1.15(e)​: in the event of a dispute b/t the client and a third party, atty should hold the disputed
funds in trust until the dispute is resolved.
▪ 3.4(b) cmt. 3​: prohibition on payment of contingent fees to expert witnesses and fees for
testifying to fact witnesses, but may pay expenses.
● Flat fee is ok
● Fee splitting​ w/ attys occurs when attys who are not members of a firm divide a fee in a matter.
o Rationale for allowing
▪ service to clients
▪ discrimination in favor of large firms
o 1.5(e)​: ​a referral fee is permitted if​…
o 5.4(a)​ an atty or law firm shall not share legal fees w/ a nonatty, except…
o 5.4(b)​: atty shall not form a partnership w/ a nonatty if any of the activities of the partnership consist of
the practice of law.
o Ex: if atty pays a real estate broker a % for referral—improper.
28
 o Pure referral fee​: one in which the referring atty did nothing more than make the referral and did not
perform any substantial services in the manner.
▪ Allowed but must assume joint responsibility
● Security for nonpayment of fees​: attys are subject to the risk of nonpayment by their clients and may obtain a
mortgage on the client’s real property or a security interest in the client’s personal property.
o May pose ethical problems: ​Petit-Clair v. Nelson​ (p. 233).
● Fees in Criminal Cases
o Special limitations on fees in criminal cases?
▪ 1.5(d)​ no contingency fees
▪ 1.8(d)​ literary or media rights
▪ Nonrefundable special retainers (p. 93, n. 1)
o Problems 2-2(b) and (c)
▪ Non-refundable fee arrangement (ethical problems):
● Atty earns the fee immediately
● Even if only works a few hours
● Courts will not usually enforce as a reasonable fee
▪ Could put money in a trust fund and w/draw as work is done to include appeal.
● Money left over is refunded to client
● Better way is substantial advance
▪ Engagement retainer
● Fee up front so the atty will not take conflicting cases
● Courts will usually enforce
o Rule 1.5​ establishes ethical standards for legal fees.
▪ (a)​ atty may not charge unreasonable fees
▪ (d)​ prohibits contingent fees in criminal cases
o Iowa Supreme Court Board of Professional Ethics & Conduct v. Apland​ (p. 85)
▪ Illustrates importance of distinguishing among types of retainers.
● General retainer​: a fee for agreeing to make legal services available when needed
during a specified time period. In form it’s an option K; the fee is earned by the atty
when paid since the atty is entitled to the $ regardless of whether he actually performs
any services for the client.
● Special retainer​: covers pmt of funds for a specific service.
● Advance fee pmt​: client and atty agree that atty shall receive the special retainer pmt in
advance of performing the services; atty is obligated to refund the balance of the
advance pmt to the client.
▪ Basic question: whose money is it?
● Client’s money​: it’s subject to the trust account requirements.
● Atty’s money​: placing it into a trust account would violate the anti-commingling rule.
▪ Finding​: attys accepting advance fee pmts must notify their clients in writing of the time,
amount, and purpose of any w/drawal of the fee together w/ a complete accounting. No
w/drawal or any part of the fee shall occur until atty has rendered some services.
o Nonrefundable special retainers: unethical and void
o May take interest in property or receive services in lieu of payment (taxable)
● Problem 3-1​, Contingent Fees, Expenses, and Fee Splitting (p. 219)
o 45% contingent fee?
▪ Prohibition against unreasonable fees, ​1.5(a)
▪ Factors
● What is customary in the area?
● Does atty have special expertise or experience?
29
 ▪ Specific limitations by statute or court rule in some jurisdictions, violation of special requirement
applicable to contingent fees (p. 226, n. 22).
o Requirements to determine whether there’s a violation of special requirements applicable to contingent
fees​ (p. 2225):
▪ Lack of variation ​1.5(c)
▪ Specification of expenses
▪ Doesn’t state whether expenses deducted before or after % computed
▪ Doesn’t state client responsibility regardless of whether client prevails
▪ Absence of settlement statement on conclusion
o Other problems w/ expenses
▪ 10% expert witness fee, improper contingent fee to witness, ​Rule 3.4 cmt. 3​.
▪ Cannot pay fact witnesses for testifying but you can reimburse for expenses.
▪ Lost wages or preparation time probably OK, but seek court approval if in doubt.
▪ Overhead improper absent client consent (p. 229 B).
o Advancement of expenses​?
▪ Proper under ​1.8(e)(1)
▪ General loans and living expenses improper (pp. 228-9)
o Propriety of fee split?​ 3 requirements​ under 1 ​ .5(e)
▪ (1) ​the division is in proportion to the services performed by ea/ atty or ea/ atty assumes joint
responsibility for the representation
▪ (2)​ ​Client agreement and confirmed in writing
▪ (3)​ ​the total fee is reasonable
o Remedies
▪ Report under ​8.3
▪ Litigation seeking fee forfeiture
● Security for Fees
o Mortgages, etc.
o Petit-Clair​ (p. 233)
▪ Treated as business transaction w/ client
▪ Subject to ​Rule 1.8(a)​ (p. 236, n. 2)
● Trust accounts (escrow) and client property
o Rule 1.15​ imposes several obligations dealing w/ attys’ obligations re: money and property belonging to
clients and third parties.
o SC Supreme Court Rule 417.

XII. Engagement and Non-engagement Agreements​ (pp. 236-258, Problem 3-2)

● Non-engagement letters
o Togstad v. Vesely​ (p. 237)
▪ Duty even though did not take case.
▪ Negligent in failing to do adequate investigation to determine if viable claim and in failing to
warn of statute of limitations.
▪ Factual dispute b/t atty and client produced jury issue.
▪ Aspects of malpractice cases​ (pp. 240-1)
● (a) the elements of the cause of action,
● (b) the requirement of expert testimony,
● (c) proof of the “case w/t a case” in order to establish causation in a legal malpractice
case arising out of litigation, and
● (d) the defense of judgmental immunity.
● Drafting Non-engagement agreements
30
o Elements of letter
▪ Thank you for opportunity to discuss case
▪ Decided not to take your case
● Danger in giving reason b/c could be giving opinion—so safe to not give reason.
▪ Inform of desirability of seeking advice of other counsel
▪ Warn of need to take prompt action b/c of SOL
o Rule 1.5(b)​: the scope of the representation and the basis or rate of the fee and expenses for which the
client will be responsible shall be communicated to the client, preferably in writing, before or w/t a
reasonable time after commencing the representation, except when the atty will charge a regularly
represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses
shall also be communicated to the client.
o Most provisions matter of agreement
o Aspects to consider​ (see sample letter p. 241)
▪ General form​: letter or agreement
● A more contractual form is better for a corporation.
▪ Parties
● w/ minor, parents might be the parties
▪ Consent to multiple representation if involved
● Conflict of interest of multiple representation
▪ Scope​: our representation of you is in connection w/ the above-captioned matter only, unless
we otherwise agree in writing.
● Rule 1.2(c)​: “A lawyer may limit the scope of the representation if the limitation is
reasonable under the circumstances and the client gives informed consent.
o Cmt. 7​: the limitation of time would not be reasonable if it were not sufficient to
allow the atty to provide advice on which the client could rely.
o Lerner v. Laufer​ (p. 246): the court found that the atty did not breach the
standard of care expected of attys b/c he had properly limited the scope of his
representation pursuant to ​Rule 1.2(c)​.
▪ Firm representation
● Must be clear that client is engaging the firm and not individual atty
● Any portion of case the firm will not handle, ex: medical malpractice
● Sharing information w/t the firm
▪ Efforts on your behalf
● Investigation
● Evaluation
● Negotiation
● Filing of suit
● Status
● Discovery
▪ Client obligations
● Communicate w/ atty any changes and material information
● Cooperate w/ discovery
● If do not cooperate the atty may w/draw
● Pay statements promptly
▪ Authority of the Firm
● Specify so that there’s no misunderstanding about what atty can/cannot do on behalf of
client.
▪ Billing basis
● When does the trial begin; clarify to charge higher rate
31
▪ Expenses
● Will not expend over $250 w/o consent
● Will not retain any expert witness w/o consent
▪ Appeal
▪ Assignments
● Have a provision in the agreement so that if atty receives notice of proceeds of
settlement, etc., will notify client.
▪ Retainers, flat fees and expense deposits
● Types of retainers
o General
▪ May be paid on annual or monthly basis to ensure availability
▪ Atty earns when received; part of firm’s general revenue
o Special​ (advanced fees)
▪ Does not earn when received; goes into trust account
▪ Ex: if atty is going to represent client, may want advance fee to hold in
trust and then bill against that amount as work is performed in case.
● Nonrefundable special retainers generally unenforceable, ​Apland​ (p. 85)
● Other types of arrangements
o Flat fees
o Expense deposits
o Advance payment retainers, ​Dowling​ (p. 93)
● Where to deposit fee payment
o General retainer​: earned when received; in operating account
o Special retainer or advanced fee deposit​: trust
o Flat fee​: unclear (p. 93, n. 2)
o Advance payment retainer​: general account
o Expense deposit​: trust
▪ Settlement offers
▪ Allocation of authority b/t atty and client
● Rule 1.2(a)​: subject to certain limitations, “a lawyer shall abide by a client’s decisions
concerning the objectives of representation and, as required by ​Rule 1.4​, shall consult
w/ the client as to the means by which they are to be pursued.”
o Decisions for client to make:
▪ Whether to settle a matter
▪ In criminal cases, the plea to be entered
▪ Whether to waive a jury trial
▪ Whether the client will testify
● Rule 1.4 cmt. 2​: an atty must present the client w/ sufficient information to enable the
client to give informed consent when required by the rules.
● Rule 2.1​: attys have a duty to counsel clients re: the objectives of representation. The
role of counselor gives attys broad authority to advise their clients on both legal and
nonlegal considerations such as moral, economic, social and political factors that may be
relevant to the client’s situation.
● Rule 1.8(e)​: if the issue involves a litigation expense that the client is unwilling to incur,
w/ client consent the atty could advance the expense.
● Rule 1.16(b)​: atty can move to w/draw from matter if the client’s instructions make it
unreasonably difficult for the atty to carry out the representation.
▪ Termination of client-atty relationship​: discharge and w/drawal
● Discharge
32
 o Client has the right to discharge an atty at any time for any reason.
● Rule 1.16 W/drawal
● RK on ​hot potato doctrine​: an atty breaches the duty of loyalty to a client by attempting
to w/draw from representing a client in order to take on a more favored client.
▪ Liens​ (pp. 255-7)
● Rule 1.8(i)​: prohibits attys from acquiring a proprietary interest in the cause of action or
subject of litigation except for reasonable contingent fees in civil cases and “a lien
authorized by law to secure the att’s fee or expenses.”
● Two types of liens
o Retaining lien​: atty’s right to retain client papers or other valuable client
property in atty’s possession as security for unpaid fees.
▪ purely possessory
▪ based on equitable principles
▪ must be cautious to avoid prejudice to the clients
▪ SC: retaining lien cannot be exercise where it would prejudice the client.
▪ Nate’s advice​: never try to use a retaining lien b/c can’t keep the
property and damage the client.
o Charging lien​: applied against the proceeds of any settlement or judgment for
unpaid fees or expenses due to atty.
▪ generally based on statute
▪ Dispute resolution
● arbitration agreement: could limit the atty’s liability
● client fully informed
● independent counsel
● does not insulate atty from liability
▪ General provisions
● May be appropriate if matter cuts across state lines and need to determine which law is
applicable
▪ Client’s file
● RK 46: attys have a duty to take reasonable steps to safeguard documents in atty’s
possession relating to representation of a client.
● Client’s right to a copy

XIII. Limitations on Zealous Representation: Filing Claims and Investigation​ (pp. 359-71, Problem 4-1, 371-87,
Problem 4-2)
● Zealous Representation Limitations
o Under ​Rule 1.1​, atty is supposed to competently and zealously represent client—but there are
limitations.
o Rationale for limitations
▪ Social interest in efficiency and fairness of procedures justifies imposing limitations on atty
conduct on behalf of client.
▪ Issue is what are the appropriate limits.
o Prohibition of Frivolous claims or defenses
▪ Rule 3.1 Meritorious Claims and Contentions
● Frivolousness​ applies to both complaints and answers, and so applies to counsel for both
Πs and ∆s .
● The rule contains an exception for defense of criminal proceedings b/c the criminal ∆
has a constitutional right to a presumption of innocence.
● Rule does not define a frivolous action—see comments.
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 ▪ Rule 3.2 Expediting Litigation
▪ Both rules impose weak restrictions on zealous representation.
▪ SC Frivolous Civil Proceedings Sanctions Act​: sanctions and reporting to disciplinary authorities.
▪ The bulk of litigation dealing w/ frivolous actions by attys has developed under ​FRCP 11​.
● Places 4 specific obligations on attys when presenting matter to Court, by filing docs or
otherwise. Obligations apply to best of atty’s “knowledge, info, & belief, formed after an
inquiry ​reasonable under the circumstances​ (pp. 362-3)”:
o (1) ​No improper purpose​.
▪ Ex: ​harassment​, unnecessary delay, needless increase in costs
o (2) ​Legal contentions​ are warranted by existing law or non-frivolous argument
for extending, modifying, or reversing existing law or for establishing new law.
o (3) ​Factual allegations​ have evidentiary support (or will after opportunity for
investigation/discovery).
o (4) ​Denials​ are warranted on the evidence when reasonably based on belief or
lack of info.
● White v. GM​ (pp. 363-4), ​FRCP 11
o Atty failed to conduct a reasonable investigation into the facts.
▪ Never contacted anyone at Westlake Hardware to verify that slander
had taken place.
o Unwarranted under existing law b/c it was barred by general releases signed by
Π.
o Improper purpose: atty threatened to use the media to create adverse publicity.
● 1993 Amendments to FRCP 11​ (p. 366); these changes have substantially reduced the
amount of Rule 11 litigation.
o (1)​ 21 day safe harbor​: a motion seeking sanctions under the rule cannot be
filed in court until the other party has been served w/ the motion and given 21
days to correct any violation.
o (2) Sanctions may be imposed not only on individual attys but also on their ​law
firms​.
o (3) Purpose of sanctions is ​deterrence​ rather than compensation.
▪ De-emphasized monetary awards & authorized Courts to issue orders
for non-monetary sanctions to deter misconduct.
o (4) Sanctions are ​discretionary​ w/ the Court.
▪ 1995 Private Securities Litigation Reform Act then made sanctions
mandatory​ rather than discretionary.
o (5) Requires ​specificity​ in court orders imposing sanctions.
● Problem 4-1​, Frivolous Claims (p. 360)
o (a)​ ​Duties before filing suit
▪ Facts​: Med mal action from back surgery. Π is Erin Muller and ∆ are Seiquera (surgeon), Smith
(anesthesiologist), Metropolitan hospital
▪ What is source of duties before filing suit?
● Rule 3.1
● FRCP 11 ​or equivalent (State/Jurisdictional Code)
▪ Specific duties
● After reasonable inquiry
o No improper purpose (harassment, delay, etc)
o Legal contentions warranted (by existing law or non-frivolous argument)
o Factual allegations have evidentiary support
● Note obligation regarding denials
34
 ▪ Claims for malpractice are well established legally. Reasonable inquiry to determine whether
factual allegations have evidentiary support requires:
● At minimum, obtain medical records.
● Expert review?
o Not required
o Advantages: protection from malpractice claim
o Disadvantage: Costs & Time
o Yes in SC—required by statute.
▪ Obvious affirmative defenses like SL. ​White​.
▪ How to handle novel theories?
● Pre-filing research memo.
▪ Would lawsuit be appropriate
● Anything to bar? Statute of Limitations
▪ May atty or atty’s investigator interview dr.s, nurses or other employees prior to filing suit?
● Yes, but must comply w/ ethical obligations (pp. 369-71).
● Π’s counsel allowed to engage in investigation prior to filing suit so long as they don’t
have actual knowledge that person contacted is represented by counsel (​Jorgensen v.
Taco Bell Corp.​)
▪ What ethical obligations?
● If know represented by counsel in matter, cannot interview w/o consent of atty, ​4.2
● If not represented, may communicate but mustn’t misrepresent & must comply w/ ​4.3
(shall not give legal advice to unrep’d person, other than advice to secure counsel, if atty
knows/has reason to know conflict of interest may arise).
● Written statement given to interviewee, acknowledge receipt.
● Recall ​Rule 3.7​ ​have paralegal accompany.
o (b)
▪ Facts​: Client is Ronald LeBlanc, wants to bring alienation of affection lawsuit against wife’s lover,
Charles Wenrow.
▪ What ethical issues do you need to consider w/ regard to this matter?
▪ Is claim warranted by existing law?
● Heart balm statutes, abolishing claims for…
● Intentionall infliction of emotional distress?
▪ Is claim brought for improper purpose?
● Model Rules​ delete, but remain in ​Rule 11​ (p. 362). Also in SC Frivolous claims statute.
● Can claim be legally valid yet still for improper purpose? ​Sussman​ (p. 365, n. 12).
● How to decide purpose?
▪ Other ethical issues?
● Duty to counsel under ​2.1​ as to both legal and nonlegal factors.
● 1.16​: right not to take case that find morally repugnant or unjust or where possibility of
recovery not great.
● Tort Liability of attys for frivolous actions​ (p. 367)
o R Torts § 674​ defines malicious prosecution
o R Torts § 682​ defines abuse of process
● Communications w/ represented parties—Basic Principles
o Rule 4.2​ ​Communication w/ Person Represented by Counsel
▪ Rationale​:
● Cmt. 1​: protection of integrity of atty-client relationship from interference by atty
representing another person in the matter.
● Risk of uncounseled agreements or admissions.
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 ▪ Cmt. 3​: the rule applies even if the represented person “initiates or consents to the
communication.”
▪ Applications to represented individual persons clear.
● Can't do it w/o consent or pursuant to law/Court order.
▪ Application to employees of entities controversial.
● Employees of entity who are not named of the named entity.
▪ Generally does not apply to “employees of a represented gov’tal agency or w/ a gov’t officer
being represented in the officer’s official capacity.”
o Jorgenson v. Taco Bell Corp.​ (p. 370): Court concluded that Π’s counsel did not have actual knowledge
that the employees were represented by counsel; it rejected on policy grounds Taco Bell’s argument
that counsel “should have known” that the employees would be represented by counsel for Taco Bell.
o Rule 4.3​ ​Dealing w/ Unrepresented Person
o Niesig v. Team I​ (p. 375)
▪ Facts​: Π injured when fell from scaffolding at construction site. Employed by DeTrae
Enterprises. Π’s atty moved for court permission to interview DeTrae employees on site at time
of accident.
▪ Issue is what employees of an entity are treated as represented by counsel for entity​ (p. 381,
n. 2).
● If employee is named party & is unrepresented, atty for adverse party may
communicate w/ employee subject to ​4.3​.
● If employee is named & is personally represented, atty for adverse party must obtain
consent of employee’s atty, not corp.’s atty, to communicate w/ the employee.
▪ What tests does court consider?
● Blanket Ban​: No-Communication extending to ​All Employees
o Rejected by Court.
▪ Interferes w/ informal discovery: atty’s ability to investigate fully the
facts of the case & develop a work product.
▪ Employer has significant protections: has possession of its own info &
unique access to its docs & employees; corp.’s atty thus has earlier &
best opportunity to gather facts, elicit info from employees, & to
counsel & prepare them so they won't make feared improvident
disclosures.
▪ Best option for corporation.
● Control group​: see ​Bellacosa​, concurring (p. 380); rule extends only to those who are
among most sr. mgt who exercise substantial control over corp.
o Rejected by court.
▪ Insufficient protection of interest of corp. b/c corp. employees other
than sr. mgt can bind corp. & deal w/ counsel (p. 356).
o Not as favorable to corp. as blanket ban.
● Others discussed in notes
▪ Why does court reject blanket ban?
● Interferes w/ informal discovery.
● Employer has significant protections (p. 378).
▪ Why does court reject control group test?
● Insufficient protection of interest of corp. b/c corp. employees other than sr. mgt can
bind corp. and deal w/ counsel (p. 379).
▪ What test does court adopt? ​Alter Ego/Balancing Test
● Rule Extends to 3 Categories (p. 379)
o (1) Employees whose acts or omissions are binding on corp.
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 o (2) Employees whose acts or omissions are imputed to org for purposes of civil
or criminal liability.
o (3) Employees implementing advice of counsel.
▪ Comparing revised ​4.2 cmt. 7​ ​w/​ N ​ iesig​: must get counsel’s consent to interview; Rule extends
to cover:
● Employees who supervise, direct, or regularly consult w/ atty re: matter.
● Employees who have authority to obligate org w/ respect to the matter.
● Employees whose act or omission in matter may be imputed to org for liability.
● **any employee who is not directly involved in the occurrence is fair game and may be
able to supply rumors, names of people who might know things, other informal
information.
o Probably cannot communicate w/ any top mgt, but can interview middle mgt
not directly involved in the matter.
o Rule 3.4 Fairness to Opposing Party and Counsel
● Problem 4-2​, Investigation: ​Contacts w/ Employees​ (p. 371)
o Facts​: Fire at Int’l Hotel, 15 killed. Firm represents family of one of deceased guests. Investigator
attempts to interview employees, some worked kitchen where fire took place. Steve Fairey of Wilson &
Farr told employees not to talk to anyone about case.
o Was attempt to interview employees ethically proper using ​MR​ test?
▪ The lower-level employees probably don’t supervise or regularly consult w/ an atty, but the
kitchen staff may have been negligent.
▪ What could you gain from employees who worked elsewhere?
● Rumor, identify of possible witnesses, location of information.
▪ Risk: if atty interviews someone who is treated to no-communication rule and obtain
information that you should not have received, other side may file disqualification rule.
▪ Can always use discovery process, but it can be expensive.
▪ Atty should be cautious and limit employees that he interviews to those he knows are ok.
● Atty must make judgment as to how aggressive he would be in interviewing; might be
very aggressive if lots of $ is involved.
o What could you gain from employees who worked elsewhere?
▪ Rumor
▪ Identity of possible witnesses
▪ Location of information
o Steps to take in conducting interviews
▪ Identify yourself, who you represent and purpose of interview
▪ Ask if represented by counsel in matter
▪ Seeking information, no advice; if want legal advice retain your own atty
▪ No questions w/ regard to communications w/ company counsel
▪ No harassment, etc.
▪ Written statement of above
▪ Written summary of interview
o Did counsel act improperly in interviewing former manager of hotel, Anita Allen?
▪ Probably proper unless sought to obtain confidential information (pp. 383-5).
● Formal Opinion​: atty must be careful not to seek to induce former employee to violate
privilege attacking to atty-client communications in violation of ​4.4​ ​& must comply w/
4.3​ dealing w/ un-rep’d persons.
▪ Compare ​Camden​ (p. 384): atty may not communicate w/ former employee who has been
“extensively exposed” to privileged info (Stricter Rule).
o 3.4(f)
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 o Does it make sense not to apply no-communication rule to former employees?
▪ Yes; cannot bind corp. or make admissions.
▪ Generally no longer dealing w/ counsel.
o Did counsel go too far it obtaining memorandum?
▪ Probably not b/c not a privileged document.
● Problem 4-3(b)​, Investigation: Secret Tape Recording and ​Inadvertent Disclosures​ (p. 387)
o Ethically should Slinger have read e-mail? ​Compare approaches.
▪ ABA FO 92-368​ (p. 394): atty who receives materials that on their face appear to be subject to
atty-client privilege or otherwise confidential, under circumstances where it’s clear they weren’t
intended for receiving atty, should refrain from examining materials.
● NO
● Notify and abide
● Based in part on professionalism​, not on whether subject to A-C privilege.
▪ Rule 4.4 Transactions w/ Persons other than Clients
● (b)​: atty who receives doc relating to representation of atty’s client & knows or
reasonably should know that doc was inadvertently sent shall promptly notify sender (p.
394).
o Cmt. 2​:
▪ Must return w/o reading if required by law
▪ Discretion if not required by law
▪ Must notify sender.
o Cmt. 3​: some attys may choose to return a doc unread, for ex when the atty
learns before reading the doc that it was inadvertently sent to the wrong
address. Where an atty is not required by applicable law to do so, the decision
to voluntarily return such a doc is a matter of professional judgment ordinarily
reserved to the atty. See ​Rules 1.2​ and ​1.4​.
▪ Client centered atty would probably read document and try to make
best advantage of doc.
▪ Restatement of Law Governing Attys (p. 394)
● Obligations turn on legal protection.
o Rico v. Mitsubishi Motors Corp.​ (p. 395): if docs were mistakenly given by court
reporter, under ​4.4(b)​ atty should have notified defense counsel. Instead, atty
made use of docs and Court said docs were clearly subject to work product
protection and could only be obtained under extraordinary circumstances.
o Ethical obligations depend in part on whether e-mail protected by A-C privilege. Is it protected?
▪ Depends on approach used by court to waiver of privilege.
▪ 3 approaches to determine if waiver​ (pp. 392-3)
● Traditional approach​: any release constituted a waiver. Doctrines are designed to
protect confidentiality and if released, no longer confidential.
● See whether or not client intended to waive a-c privilege or work product. If not,
protection is maintained.
● Intermediate approach​: look to see degree of protection given to material, such as
reasonable care.
▪ See revised ​Fed’l Rule 26(b)(5)(B)​ (p. 393): If information produced in discovery is subject to a
claim of privilege or of protection as trial-preparation material, the party making the claim may
notify any party that received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy the specified information and any
copies it has; must not use or disclose the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party disclosed it before being notified; and
38
 may promptly present the information to the court under seal for a determination of the claim.
The producing party must preserve the information until the claim is resolved.
● Amended in 2006
● “claw back provision”
● Defense-oriented
● Requires more than ​Rule 4.4(b)
● Only applicable to fed’l court
▪ Could argue that even if e-mail privileged, underlying facts are not. Can engage in discovery
about ​Dasher​ case.

XIV. Limitations on Zealous Representation in Discovery​ (pp. 388-95, Problem 4-3(b), 395-408, Problem 4-4)
● Secret tape recording
o Legality
▪ Recording of a conversation w/ “one-party consent” is not a violation of the fed’l statute—and
so an atty who personally records a conversation w/ a client or other person, or who assists a
client in doing so, would not be committing a fed’l crime.
● However, in states w/ two-party consent laws, an atty could not record a conversation
w/o the consent of all parties, nor assist a client in doing so.
o Ethics
▪ Rule 8.4(c)​: it’s professional misconduct for an atty to “engage in conduct involving dishonesty,
fraud, deceit or misrepresentation.”
● ABA does not advise secret tape recording.
▪ Ex.s where permissible: to record threats of criminal conduct or witness statements to prevent
possible perjury.
▪ Attorney M v. Mississippi Bar​ (p. 390): the court adopted a facts-and-circumstances test to
determine whether the atty’s conduct violated ​Rule 8.4​.
▪ Nissan Motor Co., Ltd. v. Nissan Computer Corp.​ (p. 391): “Inherent in the undisclosed use of a
recording device is an element of deception, artifice, and trickery which does not comport w/
the high standards of candor and fairness by which all attys are bound.”
o Counseling or assisting a client in secret tape recording
▪ An atty cannot engage indirectly through the actions of another in conduct that it would be
unethical for the atty to do directly.
● Gunter v. Virginia State Bar​ (p. 391): the Court suspended an atty for 30 days for hiring
an investigator to install a recording device on the home phone of his client.
▪ Rule 8.4​: ​(a) ​does not prohibit an atty from advising a client concerning action that the client is
lawfully entitled to take.
● Miano v. AC&R Advertising, Inc.​ (p. 392): it is not improper for an atty to advise his
client of the legality of taping activity by the client…The atty need not discourage or
deter such activity, but he also may not assist, direct or otherwise participate in it so
that, in effect, he is using the client as a vehicle to do what he cannot do.
● Inadvertent disclosures of confidential information
o Does a mistaken disclosure constitute a waiver of the privilege?
▪ Look at facts and circumstances, Fed’l Rule 26(b)(5)(B)
o ABA: an atty who receives materials that on their face appear to be subject to a-c privilege or otherwise
confidential, under circumstances where it is clear they were not intended for the receiving atty, should
refrain from examining the materials, notify the sending atty and abide by the instructions of the atty
who sent them.
● Ethical obligations re: discovery
o Rule 3.4 Fairness to Opposing Party & Counsel
39
 o Rule 4.4(a)​ ​Respect for Rights of Third Parties
o FRCP
▪ See pp. 396-7 for specific rules
▪ Specific rules regarding depositions, ​Hall v. Clifton Precision​ (p. 407, SCRCP 30(j)).
▪ FRCP 26​ General Provisions Governing Discovery: Duty of Disclosure
● 26(b)(5)​:​ ​Claims of privilege or protection of trial preparation material
● 26(c)​ ​Protective Order​: protect from annoyance, embarrassment, and unduly
burdensome
● 26(e)​ S​ upplementation of disclosures and responses​: w/o request to update discovery
material has changed, was in error, incomplete
● 26(g) Signing​: must sign every request, response, and objection
o Constitutes a certification that the information or request is consistent w/ these
rules
o Do not have to take action until the document is signed
● Must present the information in such a manner as the other side may reasonably obtain
the requested information.
▪ FRCP 33 Interrogatories to Parties
● May not exceed 25 in number
● Answered separately and fully in writing under oath unless it’s objected to
o Must state reason for objection
o Answer to the extent the interrogatory is not objectionable
● SCRCP 30(j)​ ​Conduct During Depositions ​(Most sweeping in US!)
o Witness questions must be asked to the deposing atty vice the witness’ atty.
o Objections are not waived, w/ a few exceptions, and should not be made at the
depositions.
o Counsel shall not direct client ​not to answer​ unless objection on grounds of
privilege, limitation by the court, or intend to make a 30(d) motion (protective
order).
▪ If not making a motion must tell witness to answer
▪ Must make objection w/t 5 business days or it is waived
o Shall not make a ​speaking objection​; gives information to the witness on how to
answer.
o Shall not engage in private, off-the-record conferences during the depositions or
during break re: the substance of the testimony except for deciding whether to
assert a privilege, objection, or protective order.
o After a break may ask the witness of coaching and, if so, to what extent.
o Atty who had the conference shall note on the record the purpose and outcome
of the conference.
o Deposing counsel shall provide to opposing counsel of all documents shown to
the witness.
▪ If provided 2+ business days: opposing counsel and witness may not
discuss at deposition before an answer is given
▪ If not then the other side is given a reasonable opportunity to discuss
before answering
● Concept of Discovery Abuse
o Definition​: behavior motivated by goals other than exchange of info fairly related to issue in dispute.
o On Π’s side​: propounding overly broad discovery requests, particularly interrogatories and requests to
product.
o On ∆’s Side​: w/holding info from propounding party to which that party is entitled
40
 ▪ Delay
▪ Overly broad objections: ​Fisons​ Smoking Gun Doc. (p. 400)
▪ Harassment and improper coaching: ​Eggleston​ (p. 402)
● Problem 4-4, Discovery​: Interrogatories, Document Production, and Depositions (p. 395)
o (a)​ ​Facts​: firm represents parents of Tina Small, who suffered serious injuries from using toy
manufactured by All the Best. Boss wants you to prepare interrogatories and suggests using standard
form interrogatories in products liabilities cases.
▪ Ex. of one of the 25 standard form interrogatories on p. 396
● Too broad
● Too many interrogatories under ​FRCP 33(a)​.
▪ What is basic ethical obligation?
● 3.4(c)​: atty shall not knowingly disobey obligation under rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation exists.
● FRCP 26(g)(2)​: do not have obligation to take action until doc is signed.
● FRCP 33(a)​ Interrogatories number and scope
▪ Does interrogatory violate rule preventing more than 25 “including discrete subparts”?
● Purpose: prevent excessive burden on adverse party.
▪ Suppose partner says go ahead, no problem?
● Rule 5.2​: responsibilities of subordinate atty
▪ Could interrogatory be redrafted to avoid?
▪ Problems w/ using standard form interrogatories?
● Problem if used w/o analysis of applicability to facts, need, and burden?
● FRCP 26(g)(1)(B)(iii) ​(p. 396)
o (b)​ ​Facts​: represent All the Best. Partner says company has policy of vigorously contesting all litigation
and objecting to discovery requests on any ground that is arguably permissible.
▪ What objections if any to interrogatory?
● Would it be proper to refuse identify test on ground that exceeds 25?
● What about ​33(b)(3)​ and 3 ​ 3(d) ​(option to produce business records rather than
answering interrogatory)?
▪ All the Best objections to interrogatory # __ on the following grounds
● Responding to the interrogatory is unduly burdensome and expensive,
● The interrogatory may require disclosure of expert opinions in violation of ​Rule 26(b)(4)​;
● The interrogatory calls for information which may be protected by work-product or
atty-client privilege; and
● Definition of “identity” creates discrete subparts of the interrogatory which, taken w/
the other interrogatories served on ∆, exceed the max of 25 allowed by ​FRCP 33​.
▪ If partner directed you to make this objection, what would you do?
● Rule 5.2 Responsibilities of Subordinate Atty
o (c)​ ​Facts​: Taylor & Peeples represents the Andrews in med mal action against Dr. Jane Golden and
Midlands Hospital. Request for production asks for “any documents related to disciplinary proceedings
by Midlands Hospital against Dr. Jane Golden.” Two years ago investigated complaints but no formal
proceedings.
▪ Would you produce records?
● Compare ​Fisons
● Strategic risk of not producing
▪ In many jurisdictions such proceedings are confidential by statute. What to do if that is case?
● 26(b)(5)
o (d) ​Facts​: you represent estate of individual killed in plant explosion and noticed deposition of supervisor
who was on duty. Defense firm has reputation for hard ball tactics.
41
 ▪ What problems could you expect at deposition?
● Harassment of witnesses by asking embarrassing questions or by unnecessarily
lengthening depo., ​Eggleston​ (pp. 402-3).
● Attacks on opposing counsel, ​Paramount Communications​ (p. 403).
● Excessive objections; only objections as to form or to protect privilege need be made.
● Directions not to answer
● Speaking objections
● Coaching during breaks: witness coaching must stop once witness is sworn in to a
deposition.
▪ How to handle in general?
● Learn reputation of counsel.
● Know the rules.
● Precautionary measures such a video dep.
● Look for opportunities to use SOB behavior tactfully.

XV. Limitations on Zealous Representation in Negotiations​ (pp. 408-27, Problem 4-5)

● Overview of Ethical Obligations in Negotiations
o Honesty in Negotiation and your Philosophy of Lawyering
▪ Is it necessary to lie in negotiations?
● White’s view​: permissible and necessary (p. 411)
● Can you avoid lying by (1) not puffing, (2) not making false demands, (3) deflecting and
refusing to answer questions that seek inappropriate information?
▪ Rule 4.1 Honesty
▪ Estimates of price or value of subject transaction
▪ Intentions to an acceptable settlement
▪ Existence of an undisclosed principal
▪ Duty to disclose
● Failure to disclose would be treated as dishonest conduct.
● Π dies after depositions taken, even if it will affect value of settlement.
▪ Spaulding v. Zimmerman​ (p. 414; Sup. Ct. of Minnesota, 1962)
● The Π, a minor, is injured in a car accident. The ∆ orders a physical examination, which
reveals that the Π has a potentially fatal heart condition. Π’s counsel does not ask for a
copy of the exam report, to which Π is entitled. The case settles, the court approves the
settlement (b/c the Π is a minor), and life goes on. An army dr. later spots the
condition, and the Π sues to re-open the case, arguing that he should get more $ b/c
the accident might have caused the condition.
● Court gives the Π more $, but manages to clear all the attys on the ground that defense
counsel had no duty to warn the other side (but did have to tell the court so it could
evaluate the fairness of the settlement).
▪ Virzi v. Grand Trunk Warehouse & Cold Storage​: blatant case of nondisclosure that violated
duty of good faith when atty did not reveal info to other side that HIS CLIENT DEAD.
● Fairness of the Settlement​: 3 reasons why the rules of ethics shouldn’t impose an obligation on attys to refuse
to participate in agreements that are unfair (p. 420).
o (1) There are no objective criteria of fairness that an atty or a disciplinary board could use to determine
whether an agreement was fair.
o (2) To the ext3ent that rule of ethics prohibit attys from participating in settlement agreements that the
attys know are invalid b/c of fraud, mistake or other such cause, the rules already impose a substantial
obligation of fairness.

42
 o (3) A duty of fairness would be inconsistent w/ the adversarial system, under which the fairness of the
outcome is judged by the fairness of the adjudication process.
● Improper Threats
o DR 7-105(A)​: threat to file a criminal action simply to obtain an advantage in a civil matter.
▪ Dropped in the modern rules b/c felt it was not necessary and covered elsewhere in the rules.
o SC Rule 4.5​: same as DR 7-105(A).
o Threat to file a suit is ok; threat to file frivolous suit is not.
o ABA concluded that if an atty did not violate any of these rules, a threat of criminal prosecution to settle
a civil matter was proper if the crime was ​related​ to the civil matter.
▪ 8.4(b)​: prohibits attys from engaging in criminal conduct that reflects on their honesty,
trustworthiness, or fitness to practice law.
▪ 4.4​: prohibits an atty from using means that have no substantial purpose other than to
embarrass, delay, or burden a third person.
▪ 4.1 Truthfulness in Statements to Others
▪ 3.1​: prohibits an advocate from asserting frivolous claims.
o Legal Ethics v. Printz​: an atty may ethically threaten criminal prosecution to obtain restitution of
embezzled funds.
o Courts have held that threats to give undue publicity to the other party’s private matters in order to
induce settlement are improper.
▪ State v. Harrington​ (p. 422): a threat made by a wife’s divorce atty to publicize her husband’s
adultery, a crime, in order to coerce settlement amounted to criminal extortion.
▪ In re Dienes​ (p. 423): atty received a public reprimand for making a veiled threat to inform the
newspapers about his former employer’s business unless the employer w/drew a motion
seeking atty fees from the atty.
● Approaches to Negotiation
o 2 Basic Negotiation Styles: Prof. Williams
▪ Competitive/adversarial​: dominating, forceful, attacking, aggressive, ambitious, clever, honest,
perceptive, analytical, convincing, self-controlled.
▪ Cooperative/problem solving​: trustworthy, fair, honest, courteous, personable, tactful, sincere,
perceptive, reasonable, convincing, self-controlled.
o 2 types of Negotiation Strategy: Prof. Menkel-Meadow
▪ Adversarial
▪ Problem solving
o 1.2(a)​: states that an atty must abide by the client’s decisions concerning the objectives of
representation, and shall consult w/ the client as to the means by which they are to be pursued.
o Tactical Matters:
▪ 1.3​: an atty should refuse to assist in vindictive conduct and should strive to lower the emotional
level of a family dispute by treating all other participants w/ respect.
● Confidentiality or Noncooperation Agreements and Judicial Orders Sealing Court Records
o 2 Categories of Confidentiality Arrangements:
▪ Private Confidentiality​: Π agrees not to disclose either the terms of the settlement or any
information related to the case w/o the consent of ∆.
▪ Court-Ordered Confidentiality​: court can incorporate the terms of the parties’ confidentiality
agreement and provide that a violation of the agreement constitutes contempt of court or can
seal all or part of the record in the case.
o 5.6(b)​: an atty shall not participate in offering or making an agreement in which a restriction on the
atty’s right to practice is part of the settlement of a client controversy.
● Problem 4-5​, Negotiation (p. 408)
o (a)
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 ▪ Did ∆ act improperly in stating that authorized to settle for 50k when in fact ins. co. had
authorized 100k?
● False statement under ​Rule 4.1​?
● 4.1 cmt. 2​ (p. 412)
▪ Did Π act improperly by stating client won’t accept less than 75k when client willing to accept
60k?
● Yes.
▪ Suppose settlement conference and judge asks you what your settlement authority is.
● Compare ​3.3(a)(1)​ w/ ​4.1​.
● What response?
o Client has not authorized you to reveal?
o Client has not provided maximum authority if true.
o “Your honor, I ask the client’s indulgence not to respond b/c the court’s
question would require me to reveal confidential atty-client communications.”
o (b)
▪ Did Π act improperly in making demand for job reinstatement to the job even though Π does
not in fact want his job back?
● Misrepresentation of law?
● Misrepresentation of fact?
o Intention regarding settlement
● White’s view (p. 414)
▪ What about Π’s claim for emotional distress?
● Different from reinstatement?
● Compare to hiring expert to inflate damages for pain and suffering.
o (c)
▪ Did Dorn have a duty to disclose that Phillips is mistaken about the amount of Benson’s
insurance?
● Duties under​ 4.1 ​apply only if fact or law is material.
● Is fact that Benson has an umbrella policy material to Adams?
▪ Assuming material, does Dorn have duty to disclose to Phillips that Phillips is mistaken about
amount of coverage of coverage? What would basis of obligation to disclose be?
● Rule 4.1(b)​: under this, only a duty to disclose if client engaged in criminal or fraudulent
act ​and​ assistance by atty ​and​ exception to duty of confidentiality under R
​ ule 1.6​.
● 4.1(a) cmt. 1 ​and pp. 418-19 (​Addison​)
● FRCP 3.4(d)
▪ Standard Interrogatories under SCRCP 33
● Set forth the names and addresses of all ins. co.s which have liability ins. coverage
relating to the claim and set forth the # or #s of the policies involved and the amount(s)
of liability coverage provided in ea/ policy.
● Does existence of interrogatory support duty of disclosure or bolster claim that no duty?
● Expectation of disclosure so support claim that good faith requires.
● On other hand, Dorn at fault by not asking.
o (d)
▪ Is offer by Matthews on behalf of More for Less not to file criminal charges if Emerson resigns
and transfer stocks back to company proper?
● DR 7-105(A)
● SC still has ​Rule 4.5
▪ Under ​MR​ may be permissible in some instances, p. 422 when civil and criminal matters are
related and seeking restitution, but risky.
44
 ▪ Safest approach: do not offer and if other side raises, state that cannot have agreement
regarding criminal or disciplinary proceedings.
o (e)
▪ Q: Accident case; insurer values 25-50k. When ∆ meets w/ Π, smells alcohol and disheveled. Π
wants to settle right away for 10k. What are ∆’s obligations?
● Duty to counsel under ​2.1
▪ Why might rational ins. co. refuse?
● Concern about liability and reputation
● May want to do right thing.
▪ Other ethical aspects:
● Permissive w/drawal under ​1.16(b)(4)
● Duty to report under ​8.3​?
o Consent of ins. co. required under ​8.3(c)
o (f) ​Facts​: Atty represents H in divorce case. H angry about affair and says want her to get as little as
possible and use all the dirt and anything else to get them to settle.
▪ How should atty respond?
● Clarify role of atty and client, ​Rule 1.2(a)
● Consult w/ client about means, see also ​2.1
o Client wants to follow competitive adversarial approach.
● At minimum discuss advantages and disadvantages.
▪ Would it matter if atty member of American Academy of Matrimonial Attys?
● Yes, see ​1.3​ (p. 425): an atty should refuse to assist in vindictive conduct and should
strive to lower the emotional level of a family dispute by treating all other participants
w/ respect.
● Note philosophy of lawyering reflected in Bounds of Advocacy.
▪ Materials refer to different approaches to negotiation (pp. 423-4).
● Competence issue under ​1.1
● Similar for ADR.
o (g)​ Products liability litigation. Defective tires. Settlement. Confidentiality agreement:
▪ Π will not disclose terms of settlement or information w/o consent of Nat’l or court order.
▪ Incorporated in court order sealing records, punishable by contempt.
▪ Phillips must return all discovery materials and to abide by provisions of confidentiality
agreement.
▪ Is participation in settlement w/ these confidentiality provisions ethically permissible?
● First issue is whether agreement violates law or court rules. If so improper to
participate, ​3.4(c)​ and 8
​ .4​.
o FL Sunshine in Litigation Act (p. 426)
o SCRCP 41.1​ prohibits sealing of records subject to certain exceptions. Allows
private confidentiality agreements.
▪ Other issues?
● Counseling client, ​2.1
● Rule 5.6​ limitation on representation
▪ Should confidentiality provisions be unenforceable?
● Total ban unwise b/c sometimes legitimate interests, e.g. trade secrets and personal or
private financial information.
● Possible approaches: (1) define situations in which outlawed, e.g. FL “public hazard” or
(2) established procedures.

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XVI. Limitations on Zealous Representation: Trial Publicity and Trial Tactics, and Prosecutorial Misconduct​ (pp.
162-73, Problem 2-9, 173-87, Problem 2-10, skim 189-96)
● History of Limitations on Trial Publicity
o Sam Sheppard​ case (p. 164)
o ABA restrictions
o Rule 3.6
o Gentile​ case (p. 166)
▪ Upheld constitutionality of substantial likelihood of material prejudice test.
▪ Gentile acted in response to widespread publicity.

● Interests Involved in Trial Publicity

o Several Competing Interests:
▪ The public and the media have a legitimate interest in obtaining information about legal
proceedings.
▪ The litigants themselves, particularly ∆s in criminal cases, also have interests in trial publicity.
▪ The various official participants in legal proceedings have an interest in trial publicity.
● 1994 ABA Amendments to ​Rule 3.6​ ​(2002 Revision made only minor changes)
o Made as a reaction to ​Gentile v. State Bar of Nevada​; dealt w/ the constitutionality of a disciplinary
action against an atty for engaging in trial publicity.
o 3.6(a)​: atty may not make an extrajudicial statement if the statement has a substantial likelihood of
materially prejudicing an adjudicative proceeding.
o 3.6(b)​: creates a safe harbor of statements that attys may make.
▪ (b)(1)​: “The claim, offense or defense involved and, except when prohibited by law, the identity
of the persons involved”
▪ (b)(2)​: “The information contained in a public record”
▪ Cmt. 5​: provides list of statements attys should avoid.
o Rule 3.6 cmt. 5​ statements likely to have material prejudicial effect (p. 170).
o 3.6(c)​: atty may make a statement that a reasonable atty would believe is required to protect a client
from substantial undue prejudicial effect of recent publicity. Ex: ​Gentile​ case.
o 3.8 Ethical Obligations of Prosecutors
▪ (f)​: cautions prosecutors against making extrajudicial statements that have a substantial
likelihood of heightening public condemnation of the accused, except ones that serve a
legitimate law enforcement purpose.
● Court Rules and Gag Orders
o Some courts adopt court rules and gag orders prohibiting trial publicity.
o United States v. Salameh​:​ ex. of above concepts
▪ Trial of ∆s accused of bombing WTC in NY in 1993
▪ Trial Judge issued an order prohibiting defense counsel from making statements in the press or
media that “may have something to do w/ the case.”
● 2​nd​ Cir. vacated this order b/c unconstitutional.
o United States v. Cutler​: NY District Court Local Criminal Rule 7; prohibits extrajudicial statements that
have a reasonable likelihood of interfering w/ a fair trial (a kind of “gag order”).
▪ 2​nd​ Circuit upheld
● Other First Amendment Issues Involving Attys
o 8.2 Judicial and Legal Officials​: attys who publicly criticize judges or other adjudicatory officials are not
subject to discipline unless their statements are known to be false or made w/ reckless disregard to the
truth.
o Grievance Administrator v. Fieger​: disciplined atty for violation of certain Michigan rules that require
attys to be courteous and dignified when dealing w/ all persons and judges.
46
 ▪ Fed’l court later declared rules unconstitutional.
● Problem 2-9​, Trial Publicity (p. 162)
o Press Conference
o Ethically, may you respond?
▪ Need to consider:​ ​ethical obligations, tactics
o Do rules of ethics prohibit you from holding press conference or otherwise responding to prosecutor’s
statements?
▪ Rule 3.6(c)​ ​right to reply added in 1994 after​ ​Gentile​.
▪ w/ right to reply, risk of discipline for statements by counsel in response to adverse publicity are
minimal, unless court has issued gag order.
o Probably wait so as not to prejudice your client.
o Did prosecutor act unethically in press conference?
▪ See​ 3.8(f) cmt. 5
▪ See​ 3.6 cmt. 5
o What could or should you do about prosecutor’s misconduct?
▪ Report to court?
▪ What is likely reponse?
▪ Suppose court issues gag order. What to do?
o Any other ethical issues involved in trial publicity?
▪ What about duty of confidentiality?
● Need client consent before making public statement.
● Could be used against client at trial or sentencing.
▪ Are you competent to handle a press conference?
● Strategic Issues
o Options for dealing w/ adverse publicity:
▪ Should we comment publicly?
● Advantages
● Disadvantages
▪ Form of public comment
● Call press conference, issue statement, answer questions
o Should client be present?
● Issue written statement w/o conference
▪ Detail? Compare statement in ​Gentile​ (p. 167)
▪ Timing?
o How would you respond and why?
● Ethical Limitations on Trial Conduct
o Rule 3.5(a)​ influence of judge, juror, prospective juror, or other official by means prohibited by law.
o Rule 3.5(b)​ communicate ex parte w/ such a person ​unless authorized by law​.
o Rule 3.5(c)​ improper communication w/ juror or prospective juror after discharge.
o Rule 3.5(d)​ conduct intended to disrupt tribunal.
o Rule 3.4(c) ​knowingly disobey obligation under rules of tribunal.
o Disclosure obligations (p. 180)
▪ 3.3(a)(2) ​duty to disclose adverse law from controlling jurisdiction that is directly adverse and
not revealed by opposing counsel.
● Improper Contacts w/ Jurors and Improper Methods of Jury Selection
o 3.5​: Recognizes the importance of the integrity of decision makers.
▪ In the absence of specific law on improper contacts, several principles can guide attys in dealing
w/ jurors:

47
 ● Any form of communication w/ jurors or prospective jurors, except in the course of
official proceedings is improper.
● The prohibition on communication does not generally prohibit attys from investigating
the backgrounds of jurors for the purpose of jury selection so long as there is no
communication w/ the juror.
▪ (c)​: Generally allows post-discharge communications (after conclusion of case).
▪ Batson v. Kentucky​: violated ∆’s right to equal protection when removing jurors solely based on
race.
● 8.4​: using a P.E. in a discriminatory manner does not automatically mean the atty is
guilty of an ethical violation.
● Duty to Disclose Adverse Facts and Law
o No to duty to disclose adverse facts b/c:
▪ It would be inconsistent w/ the concept of an adversarial system of justice in which ea/ side has
the obligation to investigate and to present its case.
▪ Adverse communication is often communicated in confidence and would undermine A/C
privilege.
▪ Imposing a duty to disclose on defense counsel in criminal cases would be inconsistent with the
∆’s privilege against self incrimination and other constitutional rights.
o 3.4(c)​ knowingly disobey obligation under rules of tribunal.
o 3.4(d)​: an atty shall not fail to make reasonably diligent effort to comply w/ a legally proper discovery
request by an opposing party.
o 3.3(b)​ and ​cmt. 12​: obligation to disclose juror misconduct to tribunals.
o 3.3(a)(2)​: an atty must disclose ​legal authority(law)​ in the controlling jurisdiction known to be directly
adverse to the position of the client and not disclosed by the opposing atty.
o 3.3(c)​: obligation continues until the conclusion of the proceeding.
o 3.3, cmt. 4​: partial quotations that are misleading or citations of cases that have been overruled or
questioned would be improper b/c they amount to misleading argument.
o Anders v. California
o McCoy v. Court of Appeals
o Smith v. Robbins
● Dealing w/ Documents and Witness Examination
o 3.4(c)​: attys are granted wide latitude in the presentation of cases on behalf of their clients, subject to
general rules of law, court rules, and court orders.
o Specific Restrictions:
▪ 3.4(a)​: destruction or falsification of evidence directly undermines the truthfulness of legal
proceedings and is unethical. Ex: Enron Scandal
▪ 3.4(f)​: attys may not request a witness to refrain from voluntarily giving information to the other
side unless the witness is a client or the relative, employee, or agent of a client and the atty
reasonably believes that the person will not be materially and adversely affected by a refusal to
give information.
▪ 3.4(e)​: an atty shall not, in trial, allude to any matter that the atty does not reasonably believe is
relevant or that will not be supported by admissible evidence, assert personal knowledge of
facts in issue except when testifying as a witness, 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 or innocence
of an accused.
▪ 4.4(a)​: in representing a client, an atty 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 person.
● Improper Argument
48
 o 3.4(c)​: attys must comply w/ rules of procedure in connection w/ their arguments.
o 3.4(e)​: attys cannot express personal beliefs or personal opinions regarding the merits of the case.
▪ United States v. Latimer​: prosecutor’s argument was improper b/c it went outside the record
and made statements as to facts not proven and put the personal knowledge and belief of the
prosecuting atty on the scales.
● Problem 2-10​, Limitations on Trial Tactics (p. 173)
o Ethics of effort by defense counsel to use testimony of 2 fraternity brothers and former boyfriend about
prior sexual conduct.
o Q: What is basic obligation?
▪ 3.4(c)
o Other aspects of ​3.4
o Special Duties of Prosecutors
▪ 3.8, cmt. 1​: a prosecutor has the responsibility of a minister of justice and not simply that of an
advocate.
▪ 3.8(d)​: p. 192
▪ 3.8(a)​: prosecutors shall refrain from prosecuting a charge that the prosecutor knows is not
supported by probable cause
o Prior Sexual History
▪ Consider ethics of various steps:
● (1) Filing motion under rape shield law to admit testimony of frat bros. and boyfriend.
o Permitted under ​Rule 3.4(c)
● (2) Asking her questions about whether she said to McSwaine “do it like in rising sun.”
o Permitted under Rape Shield law b/c doesn’t go into prior sexual history.
o Relevant b/c goes to show consent.
● (3) Ask her if she ever engaged in rough sex in the past?
o Defense claims goes to credibility and does not violate 412(a).
o Does this comply w/ ​3.4(c)​?
o What could defense counsel do instead? Proffer and seek court ruling.
● (4) Offering testimony of frat bros and boyfriend?
o Seems to comply w/ ​3.4(c)​ b/c open refusal based on claim that statute does
not apply.
● (5) Putting names on witness list.
o Seems permissible. Required to do if going to offer, ​Rule 3.4(c)​.
o Fact that may cause prosecutor to bring out on direct doesn’t seem unethical.
o Set Up Theory
▪ Q: Anything improper about theory?
● Other side can object to any questions that are asked.
● Can argue against theory.
▪ Q: Anything improper w/ atty-generated theories that are plausible based on facts?
● Recall the “Lecture” (pp. 145-6): problem there was prompting false testimony by client
about client’s memory.
o Disclosing Adverse Authority
▪ Did defense act properly in not disclosing 7​th​ Circuit case?
▪ Did prosecutor act properly in not disclosing ​Olden​?
▪ What is standard?
● 3.3(a)(2)
● Legal authority
● Controlling jurisdiction
● Known to be directly adverse and not disclosed by opposing counsel.
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 o Investigation of Jurors
▪ Anything improper in investigation of jurors?
▪ Standards
● 3.5(a)​ influence by means prohibited by law
● 3.5(b)​ communicate ex parte unless authorized by law or court order
● 3.5(c)​ communicate w/ jurors post-discharge if…
▪ Remember ​8.4(a)​: violate through acts of another
▪ Conduct
● Purchase credit reports
● Drive by
● Interview neighbors to determine juror attitudes and possible grounds for bias.
o Dealing w/ Spade’s Answer
▪ What rule is applicable?
● 3.3(b)
▪ Do we know that Spade has engaged in criminal or fraudulent conduct?
▪ Was answer false?
▪ Any other considerations?
● Tactical. Do we know Spade is favorable?
▪ Does having a philosophy of lawyering answer question of disclosure?
● Limitations on Examination and Argument
o Text discusses number of limitations on documents and witness examination (pp. 183-4). Under ​Rule
3.4​, an atty shall not…
o Berger v. United States​ (p. 205): good ex of prosecutorial overzealousness in the courtroom.
o United States v. Latimer​ (p. 186): even if defense counsel made an improper argument, that does not
open the door for an improper response by the prosecutor.
● General Concepts re: Prosecutorial Obligations
o Obligation of prosecutors to seek justice
▪ Berger v. United States​ (p. 189)
▪ Rule 3.8 cmt. 1
▪ ABA Standards for Prosecution, 3-1.2(c)
o Do attys have obligation to seek justice?
▪ Procedural justice, yes, ​Rule 3.4(c)
▪ Substantive justice, i.e. fairness, no, ​Rule 4.4 cmt. 1
● Disclosure of Adverse Evidence
o Problem 2-10(a)​ to Grand Jury?
▪ Not constitutionally required in fed’l court. Fed’l grand jury is separate constitutional body. ​US v.
Williams​ (p. 191, n. 354).
▪ Therefore, not required in state grand juries unless statute or constitution provides otherwise.
▪ Even if not constitutionally required, ethically should prosecutor present strengths and
weaknesses to grand jury?
▪ Reaction to USA Manual provision 192?
● Too weak? “directly negates guilt”
o Problem 2-10(a)​ response to ​Brady​ (p. 190) request?
▪ Brady​ standard: prosecution must disclose all material evidence w/t possession of gov’t that
negates guilt (including impeachment evidence) or mitigates punishment.
● Not dependent on filing of motion by defense.
o Would failure to disclose violate ​Brady​?
▪ Two of witnesses cannot identify
▪ Jones subject to impeachment b/c of misidentification of Shooter.
50
 o Suppose all four eyewitnesses identified. Would failure to disclose Jones’s misidentification of Shooter
violate due process?
▪ Probably not material.
o Even if not violation of constitution, should prosecutor ethically disclose Jones’s misidentification?
▪ Yes. ​Rule 3.8(d)​ broader. “Tends to”.
● United States v. Talao
o Issue in case?
▪ Propriety of AUSA communication w/ employee of ∆ under investigation when atty for corp
claims to represent but employee rejects.
o Holding?
▪ No per se rule prohibiting or allowing preindictment contacts.
▪ Depends on circumstances. Here K permitted b/c employee initiated, rejected counsel, and
claimed that being pressured to suborn perjury.
● Contact w/ People Represented by Counsel
o Problem 2-10(b)
▪ Is Norwood Rollison represented by Alan Deniro?
● Rule 4.2 cmt. 7
▪ If Deniro represents Rollison, may AUSA communicate w/ him w/o Deniro’s consent?
● Standards in ​Talao​.
▪ Charging decisions by prosecutors
● Improper to threaten to charge Mrs. Rollison if Sr. and Jr. not accept plea bargain?
o Not violation of constitutional rights. Vindictiveness (pp. 194-5). Part of give and
take of negotiation.
o Has probable cause, ​Rule 3.8(a)​.
o Monica Lewinsky’s mother.
● Threaten to add RICO charges if plea bargain not accepted?
o Not unconstitutional or violation of MR, see above.
o Can try and use ABA standards or Justice Dept. policies to persuade (p. 194).
o Problem 2-10(c)​, DNA Policy
▪ If state has statute or rule providing DNA testing to determine claim of innocence, prosecutor
must follow, although may still leave room for discretion.
▪ In absence of statute or rule, left to discretion of local prosecutors.
▪ Q: What policy would you recommend?
● Nat’l Commission (p. 203)
● DA for San Diego standard (p. 204)
● Recent ABA Changes to Model Rules
o Recent amendments to ​3.8(g),(h)​ to impose more specific obligations on prosecutors to do justice.
● Regulation of Prosecutors
o Historically, discipline of prosecutors rare. Recent SC cases.
o Absolute or qualified immunity from civil suit (p. 207).
o Political process tends to increase rather than diminish problem. “Tough on crime” political ambitions.

XVII. Advertising and Solicitation​ (pp. 442-54, Problem 4-7)

● Introduction to Atty Advertising and Solicitation
o Historically, improper to attempt to obtain clients by advertising or solicitation. See Canon 27 (p. 444).
o Series of Supreme Court decisions protecting atty and declaring rules of ethics that prevented
unconstitutional under First Amendment.
o Cases on Advertising in General​:

51
 ▪ Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.​ (p. 445): the Court
rejected the commercial speech exception to the First Amendment and held that commercial
speech was entitled to some measure of First Amendment protection, but reserved judgment on
whether its decision applied to other professions.
▪ Bates v. State Bar of Arizona​ (p. 445): Court applied its holding in ​Virginia Pharmacy​ to atty
advertising.
● Issue​: whether the Arizona Supreme Court could constitutionally discipline attys for
violating its code of professional responsibility by making ​truthful​ newspaper
advertisements about the ​price and availability​ of routine legal services.
● Finding​: such advertising was constitutionally protected under the First Amendment and
could not be prohibited by the state.
● Court reserved judgment on claims about the quality of legal services.
● See ​Rules 7.1-7.5
▪ In re R.M.J.​ (p. 446): Missouri; made restrictions on atty advertising to certain categories
declared uncsontitutional.
● Basic principles for evaluating constitutionality of atty advertising (p. 447)
o A state may constitutionally prohibit attys from engaging in false or inherently
misleading advertising or “when experience has proven that in fact such
advertising is subject to abuse.”
o A state may not prohibit advertising that is potentially misleading, but may
regulate such advertising by a method “no broader than reasonably necessary
to prevent the deception,” such as by explanation or disclaimer.
o States retain the right to regulate truthful advertising in some limited
circumstances if the state establishes “a substantial interest and the
interference w/ speech must be in proportion to the interest served.”
o Cases on Solicitation
▪ Ohralik v. Ohio State Bar Assn.​ (p. 448): classic case of ambulance chasing; Rules prohibiting
in-person solicitation upheld b/c solicitation fundamentally different than advertising. State has
important interest in preventing abuses associated w/ solicitation.
● Benign solicitation​: solicitation by advice and information that is truthful and that is
presented in a noncoercive, nondeceitful, and dignified manner to a potential client who
is emotionally and physically capable of making a rational decision either to accept or
reject the representation w/ respect to a legal claim or matter that is not frivolous.
▪ In re Primus​ (p. 449): solicitation by atty associated w/ ACLU by letter to bring civil rights suit
entitled to constitutional protection unless state shows ​actual evils that solicitation rules are
designed to prevent​.
▪ Edenfield v. Fane​ (p. 451): distinguished accountants from attys.
o Cases on Targeted Advertising and Direct Mail Advertising
▪ Zaunder v. Office of Disciplinary Counsel​ (p. 451): involved the constitutionality of restrictions
on targeted advertising.
● Newspaper ads targeted to clients who had used IUDs treated as advertising rather than
solicitation subject to RMJ standards.
● State failed to show that it had important interests​ in regulation of newspaper
illustrations.
● The Court found that “the requirements that an atty advertising his availability on a
contingent-fee basis disclose that clients will have to pay costs even if their lawsuits are
unsuccessful easily passes muster under this standard.”
▪ Shapero v. Kentucky Bar Assn.​ (p. 453):

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 ● Direct mail advertising to individuals who were subject of mortgage foreclosure. State
cannot prevent but can regulate by requiring labeling​ as “Advertising Materials” and by
requiring filing w/ authorities.
● Court considered the constitutionality of restrictions on “direct mail advertising” by
attys, and found nothing to support the conclusion that Shapero’s advertisement was
overreaching or deceptive.
▪ FL Bar v. Went for It​ (p. 455)
● FL rule prohibiting direct mail solicitation of accident victims w/t 30 days after accident.
● Shapero​ distinguished.
o Greater state interest in preventing invasions of privacy.
o State interest in protecting reputations of attys.
o Attys can still inform prospective clients of need to act promptly by advertising.
o Considerable variation in state rules from model rules.
▪ Must follow state rules when in practice.
▪ Typically state rules adopt ABA principles but add additional restrictions.
● Ex: SC Rule 7.1(e) and cmt. 4, “the heavy hitter” and “the strong arm.”
● Information about Legal Services
o Rule 7.1 Communications concerning an atty’s services
▪ Cannot be false or misleading
▪ Cmts. 1 and 3​: results obtained
▪ Cmt. 3​: unsubstantiated comparison, ex: ​Super Lawyers​ is permissible b/c it’s not
unsubstantiated—they have a legitimate way to decide who is included in the publication. Can
advertise that you’re listed in ​Super Lawyers​ but not that you’re a super lawyer.
▪ Cmt. 3​: use of disclaimer
▪ Cmt. 4​: nicknames and monikers
o Rule 7.2 Advertising
▪ Advertising is communication aimed at public or segment of public at large rather than
particular individuals.
▪ Subject to​ 7.1 ​and​ 7.3 ​(direct contact).
▪ 7.2(b) ​responsibility and filing requirement.
▪ 7.2(c) ​prohibition on giving anything of value for recommending atty’s services, subject to
exceptions.
▪ Other specific rules, e.g.​ 7.2(g)​, ​Zauderer​ (p. 451).
o Rule 7.3 Direct Contact w/ Prospective Clients
▪ (a)​ in-person solicitation
● Ex: ​Ohralik​ (p. 448)
● Prohibited subject to 3 exceptions:
o (1) Other attys
o (2) Family, close personal, prior professional relationship
o (3) Significant motive not pecuniary gain, e.g. legal services programs
● Even if permissible, subject to ​7.3(b)
▪ Direct mail solicitation (or recorded solicitation)
● Ex:​ S​ hapero​ (​ p. 453)
● Permitted subject to regulation
o Labeling as “Advertising Material”
o Other regulations, such as filing and warnings permissible under​ S​ hapero​ ​(p.
454)
o SC has rule requiring various notices and filing,​ 7.3(c) ​and (​ d)​, plus other
restrictions.
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 o Rule 7.4 Communication of Fields of Practice and Specialization
o Rule 7.5 Firm Names and Letterheads
o Rule 7.6 Political Contributions to obtain gov’t legal engagements or appointments by judges
● Problem 4-7(a)​, Law Firm Marketing Practices (p. 442)
o (1) “proven record of success”—any problem?
▪ False or misleading?
▪ Cmt. 2, specific conclusion about atty’s services for which no reasonable factual foundation? See
also cmts. 1 and 3.
▪ Problem if did not have survey to offer factual foundation.
o (2) “discount fees”—any problem?
▪ False or misleading?
▪ Cmt. 3, unsubstantiated comparison?
▪ What substantiation is necessary?
o (3) Money in 60 days if clear liability—any problem?
▪ Prohibition on stating or implying that can achieve results by means that violate rules or other
law.
▪ How is money paid?
▪ Suppose paid by atty
● Violates 1.8(e)
▪ Suppose third party financing company
● Depends on legality of such a company (p. 227 n. 35)
o (4) Unmatched experience—any problem?
▪ May be false b/c other firms may have similar experience.
▪ Change to “outstanding experience.”
▪ Cmt. 4, implying ability to improperly influence?
o Other aspects
▪ Letters to accident victims
● Direct mail solicitation subject to ​7.3(c)
● In states w/ 30 day prohibition, must wait. SC has 7.3(b)(3).
● Constitutionally upheld in ​Went for It​ (p. 455)
● Framework
o State may freely regulate false or misleading advertisement
o Truthful must show
▪ Substantial state interest
▪ Regulation directly and materially advances
▪ Regulation narrowly drawn (p. 456)
● Problem 4-7(b)
o Any other aspect of advertising improper?
▪ Failure to disclose whether client liable for expenses.
● Could be misleading under ​7.1
● Some states have specific rules, e.g. SC 7.2(g)
● Atty in ​Zauderer​ disciplined for (p. 452)
▪ “Money Now”: false and misleading?
● Undignified? ​7.2 cmt. 3
o Marketing practices​:
▪ News releases​: make sure they’re truthful, must meet ​7.1​ requirements in terms of accuracy.
Remember that drafters may not be well reversed in Rules and may use a form of wording
inconsistent w/ ​7.4​ dealing w/ fields of practice and specialization.
▪ Client surveys
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 ▪ Cross marketing​: may desire to show client that you can work in other areas, which is perfectly
proper, as long as it’s truthful.
▪ Client audits
▪ Mock trials
▪ Brochures
▪ Newspapers
▪ Seminars​: no problem in solicitation for upcoming seminars as long as it’s truthful and it’s
general advertising; you’re not reaching out to specific people to come. Don’t step over the line
and pressure anyone to sign up for the seminar.
▪ Public relations firms and marketing directors​: cannot give something of value to someone for
recommending your services, but ok to pay reasonable fees for services b/c they’re employees
of the firm. These marketing employees may also follow ethical obligations.
▪ Aggressive entertainment policies​: ok to develop social relationships that can lead to business.
▪ Strategic alliances
▪ Sophisticated web pages

XVIII. Judicial Conduct and Miscellaneous Law Firm Issues​ ​(pp. 589-603, Problem 6-1(a), (b), 603-15, Problem
6-2(a)(1), (2), (3), (5), & lecture on various law firms)
● Regulation of Judicial Conduct: Standards & Procedure
o Regulation of behavior of judges in their official & unofficial capacities--policies:
▪ Adversarial system founded on principle of Judicial Impartiality
▪ Primary function of judicial system is to provide mechanism for resolving disputes non-violently.
o Code is divided into 4 Canons
▪ Canon I​: succinct, stating general principles governing judges on which the Code is based. Directs
judges to uphold & promote independence, integrity, & impartiality of judiciary, & to avoid
impropriety & appearance of.
▪ Canon II​: deals w/ judges in their official capacities.
● Rule 2.11​ focuses on judicial disqualification.
▪ Canon III​: treats non-judicial activities, including
● Limitations on judges’ participating in charitable activities.
● Restrictions on their investments and other financial endeavors.
▪ Canon IV​: considers involvement of judges in political activities.
o ABA adopted revised code in 2007.
▪ Substantively much the same as 1990 code.
▪ Form changed to rules followed by cmts., like ​Model Rules​.
▪ Not yet adopted in SC.
o Fed’l Judges
▪ The Code of Judicial Conduct that applies to fed’l judges is a combination of the 1972 and 1990
ABA Codes (p. 592).
▪ Disqualification of fed’l judges is governed by statute, particularly ​28 U.S.C. § 455​.
● Problems 6-1(b) and (c) deal w/ this statute.
● Problem 6-1(a)
o Facts​: State Sup Ct Justice and her husband have substantial investments in common stock and real
estate.
o RE—LPs

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 o RE property subject to mortgage to financial institutions.
o Overview of judicial disqualification
▪ 2.11(A)​ “impartiality might reasonably be questioned.
▪ Subdivisions set forth specific rules of disqualification.
▪ 2.11(A)(3)​ deals w/ economic interest.
▪ Definition of economic interest:
● More than de minimis
● Subject to 4 exceptions
o Application to common stock owned by justice, ​2.11(A)(3)
▪ Disqualified in any matter in which owns more than de minimis amount of stock in party to
proceeding.
▪ Will see that rule stricter for fed’l judges.

o Q: What about common stock owned by husband?

▪ Attributed to Justice under ​2.11(A)(3)
▪ Other attributions under rule.
o Are LPs interests any different?
▪ No. If LP is a party justice disqualified.
▪ Maybe less likely than for publicly held company to be a party.
o Justice has obligation to avoid investments that can lead to frequent disqualification, ​Rule​ ​3.11(C)(2)​.
o Justice has obligation to keep reasonably informed about investment of others that are disqualifying,
Rule 2.11(B)​.
o Q: What could Justice do to avoid disqualification?
▪ Investments in one of the exceptions to economic interest, e.g. mutual funds, CDs, insurance
policies, etc.
o Blind trust: investments can be managed so that you doesn’t know what’s going on--but ​not ok​ for a
judge.
o Would Justice be disqualified in any case in which financial institution that has loan on property of LP or
loan on Judge’s home is a party?
▪ No economic interest just b/c of loan.
▪ Impartiality?
▪ Cf. ​Rule 3.13(B)(4)
● Problem 6-1(b)
o Facts​: Fed’l judge, appointed 18 mo ago. Pretrial discovery in group of related securities class actions.
Wife partner in firm that represents one of ∆s. Law firm where judge practiced…PR of estate of
deceased father, which owns 100 shares in one of ∆ corps.
o Wife’s firm?
▪ 28 U.S.C. 455​ applies.
o If wife atty in proceeding, judge is disqualified under ​455(b)(5)(ii)​.
o Based on relationship of judge and spouse rather than financial interest.
o Note no waiver here, see ​455(e)​.
o Q: Suppose wife not atty in proceeding?
▪ Depends on whether has interest that could be substantially affected by outcome.
● Rule 2.11 cmt. 4

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 ● Doubtful here b/c representing defense. Fees probably not affected much by outcome.
o Impartiality might reasonably be questioned.
▪ Arguments for:
● What would public think?
● Canon 1
● Must disqualify if wife an atty. Don’t draw fine lines.
▪ Arguments against:
● Not required under ​455(a)​ when specifically covered under ​(b)​. ​Liteky​.
● Judges should avoid disqualification b/c of burden on others.
▪ Justice Scalia and duck hunting w/ VP Cheney.
o Other options for judge to consider re wife:
▪ Waiver under ​(e)​ if she is not atty in proceeding.
▪ Disclose on record.
o Former firm represents one of ∆s?
▪ 455(b)(2)​, matter must have been “in the office” when judge practice (“during such
association”)
▪ Unlikely here b/c 18 mos.
▪ Code the same ​Rule 2.11(A)(6)(a)​.
▪ Not waivable under statute but is waivable under Code.
o Even if matter not in office, would judge’s impartiality reasonably be questioned?
▪ ABA 87-1524 1-2 years depending on variety of factors.
▪ Suppose judge receiving retirement payments from firm?
● Should at least be disclosed.
o Serving as PR and owned 100 shares of stock in one of ∆s.
▪ Is it important for fed’l judge to serve as PR of father’s estate?
● Not covered by statute.
● Judges subject to modified version of ABA’s 1972 Code of Judicial Conduct (p. 592 n. 7).
● Rule 3.8(A) ​of ABA Code (5D of fed’l code) probably allows.
o Does ownership of 100 shares as PR disqualify judge?
▪ Yes. ​455(b)(4)​ and definition of “financial interest” in ​(d)(4)​.
▪ Note “however small”
o Any steps judge can take to avoid disqualification?
▪ Waiver not permitted under ​455(e)​ (p. 602).
▪ 455(f)​ divestiture. Problem of whether “substantial judicial time has been devoted to matter.”
Courts divided (pp. 600-1 and n.s 35 and 36).
● Problem 6-1(c)
o Facts​: class action challenging conditions in state’s prison system. Judge has expressed hostility to Π’s
position at several conferences, remark about “liberals.” Denied motion to dismiss but consistently ruled
against discovery requests. Telephone calls to prison officials and expert witnesses in case asking
questions.
o Q: What grounds for discipline?
▪ Personal bias or prejudice, ​28 U.S.C. 455(b)(1)​.
▪ Ex parte communication, Cf. ​Rule 2.9​.
o Standards for bias or prejudice disqualification

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 ▪ Liteky​ (p. 597)
▪ Rejects strict extrajudicial source, but is a factor.
▪ Judicial rulings almost never constitute grounds for disqualification.
▪ Opinions formed based on facts or events occurring during litigation not basis for
disqualification “unless they display a deep-seated favoritism or antagonism that would make
fair judgment impossible.”
▪ Anger and emotion normally not basis for disqualification.
o Here could argue attitude about liberal attys from extrajudicial source and remark shows deep-seated
antagonism.
o Still, these factors alone probably not sufficient.
o Q: Were contacts w/ prison officials and expert witnesses improper?
▪ Yes. Judge may confer w/ parties of attys separately but only for purpose of mediation and
settlement and only w/ consent, ​Rule 2.9(A)(4)​.
▪ Judge may confer w/ disinterested expert but only w/ notice and opportunity to respond, ​Rule
2.9(A)(2)​.
o Reasonable basis for disqualification when ex parte communications coupled w/ statement about liberal
attys.
● Problem 6-2
o Service on task force appointed by state legislature to study and make recommendations regarding
violence in public schools.
o Rule 3.4
o Rationale for distinction?
▪ Avoid involvement in political issues b/c undermines independence and respect for judges and
matters may come before them.
▪ Allow involvement in issues where expertise and direct concern.
o Ex.s of areas where permissible: evidence, ADR, sentencing guidelines.
o Q: Where does this fall?
o Service on board of visitors of University
▪ Rule 3.7(A)(6)
o Limitations?
▪ Not if likely to appear in litigation before court of which judge a member or over which it has
appellate jurisdiction.
▪ No personal participation in fund raising.
o State Supreme Court Justice on Board of Clemson or USC?
o Introductory essay to symposium on “Emerging Issues in Employment Discrimination Litigation”?
o Rule 3.1 cmt. 1
▪ “To the extent that time permits, and judicial independence and impartiality are not
compromised”
▪ Rule 2.10 cmts​. about pending or impending proceedings.
▪ First amendment issues, ​Republican Party v. White​.
o Speech at Defense Lawyers Association’s annual meeting w/ Association paying all expenses for her and
spouse.
▪ Rule 3.14
● Source of payment? ​Cmt. 3

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 o Suppose Justice accepts invitations for both Π and defense associations?
▪ This is ok.
● Fee and expense must be reasonable.
● Can pay expenses of spouse if appropriate to occasion, ​Rule 3.14(B)​.
● Public reporting required under ​Rule 3.15​.
▪ If compensation, see 3.12.
o Relationship b/t Gates and Landings
▪ Both Landings are attys.
▪ Eleanor has case in Supreme Court.
▪ Once a month golf game.
▪ Own beach house.
o Rule 3.13(B)(3) ​ordinary social hospitality.
o Disqualification under ​Rule 2.11
▪ No specific rule.
▪ Impartiality might reasonably be questioned?
▪ Disclosure?
● Judges and Political Activity
o Canon 4
o 4.1​: Imposes broad restrictions on participation in political activities by all judges and candidates for
judicial office, including prohibitions on participation in political gatherings and fund raising activities
o 4.2​: Limits political activity by judges subject to public election
o 4.3​: Sets forth restrictions on political activity applicable to judges seeking judicial appointments
o Party of Minnesota v. White​:
▪ Dealt w/ the “Announce Clause” which provided that a candidate for judicial office shall not
announce his or her views on disputed legal or political issues.
▪ Court: Clause was subject to strict scrutiny b/c it dealt w/ the content of speech and w/ a
category of speech that was at the core of the 1​st​ Am.-speech about qualifications of candidates
for elective office.
▪ Held that candidate for election to Minnesota Sup Ct had First Amendment right to “announce”
his position on disputed issues.
● Subject to strict scrutiny b/c at core of first amendment.
● State failed to show narrowly tailored to meet compelling interest.
● Significant amount of litigation developing w/ regard to judge’s first amendment rightrs.
o 4.1(A)(13)​: In connection w/ political and campaign activities a judge or judicial candidate shall not in
connection w/ cases, controversies, or issues that are likely to come before the court, make pledges,
promises, or commitments that are inconsistent w/ the impartial performance of the adjudicative duties
of judicial office
▪ Cmt. 13​: Examine by totality of circumstances
● Model Rule​ for ​Judicial Disciplinary Enforcement
o 2(C)(3) – 12​: member Commission on Judicial Conduct, consisting of 4 judges of intermediate/app Cts of
state, appointed by highest Ct in state; 4 attys appointed by bar; 7 members of public appointed by the
Governor.
▪ Responsible for investigating charges of misconduct against judges, conducting hearings into
such charges, & making recommendations to highest Ct in state.

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 ▪ 6(B)​: Highest Ct in state has power to discipline judges found guilty of misconduct, including
power to remove judge from office.
▪ Fed’l Judges serve life tenure & may be removed only through impeachment.
▪ Congress enacted leg. establishing process for discipline of Fed’l Judges short of removal.
● Disqualification of Judges b/c of Personal Involvement or Interest in Matters
o 2.11​ Disqualification of Judges: whenever judge’s impartiality might reasonably be questioned.
▪ (A)(6)(c)​: Judge disqualified if he or she was material witness concerning the matter.
▪ (A)(6)(a)​: Judge must recuse himself if he served as atty in matter in controversy before
assuming the bench (​cmt. 1​ – recusal equivalent of disqualification).
▪ (A)(3)​: Judge subject to disqualification when judge either personally or as fiduciary has an
economic interest​ in subject matter in controversy or in a party to the proceeding.
● Economic interest​ means ownership of more than de minimis legal or equitable interest
subject to certain exceptions.
● De minimis interests: insignificant interest that couldn’t raise reasonable question
regarding the judge’s impartiality.
● Exceptions to what constitutes economic interest:
o Interest in individual holdings w/t mutual or common investment fund;
o Interest in securities held by educational, religious, chartable, fraternal, or civic
org in which judge or judge’s spouse, domestic partner, parent, or child serves
as director, an officer, an advisor , or other participant;
o A deposit in a financial institution or deposits or proprietary interests the judge
may maintain as member of mutual savings association or credit union, or
similar proprietary interests; or
o An interest in issuer of gov’t securities by the judge.
▪ (A)(5)​: Judge should disqualify himself if the judge while a judge or candidate for office made
public statement other than in court proceeding, decision, or opinion, that commits or appears
to commit judge to reach particular result or rule in particular way in a proceeding.
▪ (A)(4)​: requires judges to disqualify themselves if judge knows that campaign contributions
exceed either specified amount or an amount that’s reasonable & appropriate.
● Disqualification of Judges Based on Relationships w/ Persons Interested in the Matter
o 2.11(A)(6)(a)​: Judge disqualified if he was associated w/ atty who participated substantially as atty in the
matter during such occasion.
o Case must be one that was ​in the office​ when judge was practicing​.
o Informal Opinion 87-1524: Judge not required to disqualify himself simply b/c judge had been associated
w/ counsel for one of the parties 2 years earlier.
▪ 1 or 2 years after termination of professional association appropriate, depending on factors such
as closeness of relationship & amount of continued contact.
o 2.11(A)(3)​: Disqualified if close family members; spouse/domestic partner, parent/child wherever
residing, or any other member of judge’s family residing in judge’s household – have economic interest
in subject matter or party to proceeding.
o 2.11(A)(2)​: Disqualification when judge knows that judge’s spouse/domestic partner, or person w/t 3​rd
degree of relationship to either of them, or spouse/domestic partner of such person,
▪ Is party to proceeding, or officer, director, general partner, managing member, or trustee of a
party;

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 ▪ Is acting as atty in proceeding;
▪ Has more than de minimis interest that could be substantially affected by proceeding;
▪ Is likely to be material witness in proceeding.
o 3​rd​ degree relationship includes​: great-grandparent, grandparent, parent, uncle, aunt, brother, sister,
child, grandchild, great-grandchild, nephew, or niece. Not cousins.
▪ Judge disqualified if one of these relatives is atty in proceeding, but wouldn’t be disqualified
simply b/c relative is member of a firm handing case, unless relative has interest that could be
substantially affected by the case (​2.11 cmt. 4​).
o 2.11(B)​: Judges required to keep informed about judge’s personal & fiduciary economic interest & to
make judge’s spouse, domestic partner, or minor children residing in judge’s household.
● Disqualification of Fed’l Judges
o 28 USC 144, 455​: Disqualification of Fed’l Judges.
o 144​: disqualification of district court judges b/c of bias or prejudice.
▪ Requirement of filing timely affidavit of disqualification only topic not covered by ​455​.
o 455​: applies to all fed’l judges, whether trial or appellate, & specifies numerous grounds for disqual.
▪ Governs most cases b/c of broader scope.
▪ 2 broad disqualification provisions
● (a) Judge disqualified if his ​impartiality might reasonably be questioned.
o Liljeberg v. Health Services Acquisition Corp.​: Judge disqualified under ​455(a)
b/c a reasonable person would conclude that judge’s impartiality might be
questioned.
▪ Knowledge irrelevant in determining whether ​455(a)​ violation occurred
b/c the purpose of the section was to ​promote public confidence in
integrity of judicial process.
▪ Sections independent: Judge disqualified if any of provisions of ​455(b)
apply, but in addition judge’s participation in case also subject to
general standard of whether impartiality might reasonably be
questioned.
▪ Remedy appropriate for violation of ​455(a)​: no Per Se Rule;
Balancing/Factors Test:
● Appropriate to consider ​risk of injustice to parties in particular
case​, ​risk that denial of relief will produce injustice in other
cases​, & ​risk of undermining public’s confidence in the judicial
process.
▪ Dissenting Judges : actual rather than constructive knowledge standard
should apply under ​(a)​ & ​(b)​.
● (b)(1)​ Judge disqualified if he has a ​personal bias or prejudice concerning a party
o U.S. v. Grinnel Corp.​: alleged bias & prejudice to be disqualifying must stem
from an ​Extrajudicial Source​ & result in an opinion on the merits on some basis
other than what the judge learned from his participation in the case.
o Extrajudicial Source Doctrine ​: disqualification not appropriate unless basis for
disqualification arose from extrajudicial source.

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 o Liteky v. US​: ​Extrajudicial Source Doctrine​ shouldn’t be used as litmus test to
decide disqualification based on bias or prejudice. Should only be factor in
deciding whether bias or prejudice existed.
▪ Liteky v. Liljeberg​: standard that applies in cases governed by ​455(a)​?
● Liljeberg​: Judge disqualified under 4 ​ 55(a)​ if reasonable person would conclude that
judge should be disqualified & was separate/independent from ​455(b)​.
● Liteky​ : 4​ 55(a)​ standard for disqualification was whether fair judgment was impossible &
is section is limited by specific standards of ​455(b)​.
▪ 455(b)(4)​: Judge disqualified if spouse/minor children residing in their household have even a
small financial interest in a party.
▪ In re Cement Antitrust Litigation
▪ 455(f)​: allows judges to avoid disqualification by divestiture of financial interest in party when
disqualifying interest appears or is discovered after substantial judicial time has been devoted to
matter.
● Applies to financial interest held by judge’s spouse & minor children.
● Doesn’t apply if interest could be substantially affected by outcome of case.
▪ What if judge becomes aware of disqualifying interest at beginning of case before making any
substantive rulings, is judge automatically disqualified or can he avoid disqualification by taking
steps to remove the disqualifying interest?
● Amendment not intended to disturb prior case law & long-standing practice under
which judges could avoid disqualification by taking steps to remove disqualifying
interest at the beginning of the case before they’d issued any substantive rulings.
▪ In re new Mexico Natural Gas Antitrust Litigation​: If judge has financial interest, impact on
interest must be substantial to warrant disqualification.
● Waiver of Disqualification
o 2.11(c)​: disqualification may be waived in all cases except ones in which judge is disqualified b/c of
personal bias/prejudice concerning party. Allows waiver in situations in which judge was disqualified b/c
of financial interests.
o 455(e)​: waiver of disqualification allowed only in cases involving general standard of when judge’s
impartiality might be reasonably questioned.
● Ex Parte Contacts
o 2.9(A)​: prohibits judges from ​initiating, permitting, or considering​ ex parte communication.
o 3.5(b)​: prohibits attys from engaging in ex parte communications during proceedings except when
authorized by law or court order.
o Ex Parte Communication: any communication b/t judge, juror, official & any other person regarding case
except communication in course of official proceedings.
o 2.9 cmt. 3​: applies to parties, their attys, witnesses, and third persons unconnected w/ litigation.
o Purpose: to protect integrity of adversarial process, which assumes that ea/party has opportunity to
respond to contentions & facts presented by an adversary.
o Exceptions
▪ 2.9(A)(1)​: allows ex parte communication of scheduling, administrative, or emergency purposes,
which ​doesn’t address substantive matters​.

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 ▪ 2.9(A)(1)(a),(b)​: Judge must reasonably believe that no party will gain advantage b/c of ex parte
communication, & judge must promptly notify all parties of ex parte communication & give
them an opportunity to respond.
▪ 2.9(5)​: Ex parte communication allowed when ​authorized by law​.
▪ 3.3(d)​: requires attys in ex parte proceeding to inform tribunal of all material facts to enable it to
make informed decision, even when facts are adverse.
▪ 2.9(A)(2)​: Judges may obtain written advice of disinterested experts on the law, provided they
comply w/ certain requirements.
▪ 2.9(C)​: Judges may not investigate facts on their own.
● Limitations on Judges’ Extrajudicial Activities
o Canon 3​: deals w/ limitations on judges’ non-judicial activities.
o 3.1(A)​,​(C)​: Judges should avoid any conduct that interferes w/ the proper performance of their judicial
duties or that undermines their independence, integrity, or impartiality.
▪ Cmts. 1​&​2​: they should not be isolated from the people and activities of the communities in
which they live.
o 3.4 Appointments to Gov’tal Positions​: a judge shall not accept appointment to a gov’tal committee,
board, commission, or other gov’tal position, unless it is one that concerns the law, the legal system, or
the administration of justice.
▪ Rationale​:
● takes up time
● separation of powers; don’t want judiciary mixed w/ other branches of gov’t
● the work may then come before the judge
▪ Ex when it’s ok​: a matter particularly interesting to the judiciary.
o 3.10​: Judges may not practice law.
o 3.9​: may not act as arbitrators or mediators apart from their official duties, unless authorized by law.
o 3.8(a)​: can’t serve in a fiduciary capacity, except for family members, and even then the judge cannot
act if such service would interfere w/ the proper performance of judicial duties.
o 3.12, 3.14, 3.15​: allows judges to receive compensation and expense reimbursement for extra judicial
activities, subject to financial reporting requirements (Teaching P/T at a law school).
o 3.14(A),(B)​: expense reimbursement must be no greater than is necessary and reasonable and is limited
to the actual costs incurred by the judge.
▪ Allow a judge to receive expense reimbursement for a spouse, domestic partner, or guest, when
appropriate to the occasion ​(B)​.
o 3.7 Participation in Educational, Religious, Charitable, Fraternal, or Civic Orgs and Activities​: ​(A)
Subject to 3.1, a judge may participate in activities sponsored by org or gov’tal entities concerned w/ the
law, the legal system, or the administration of justice, and those sponsored by or on behalf of
educational, religious, charitable, fraternal, or civil orgs not conducted for profit, including but not
limited to the following activities:
▪ (1)​: may help in planning fundraising and may assist in the mgt and investment of such funds.
▪ (2)​: may not participate personally in fund raising except from members of the judge’s family
and from other judges over whom the judge does not have supervisory or appellate authority.
▪ (3)​: may solicit memberships on behalf of orgs devoted to the law, legal system, or the
administration of justice, but not otherwise.

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 ▪ (4)​: may not participate in a fund-raising event unless the event concerns the law, legal system,
or the administration of justice.
o 3.11(C)​: can exploit their public position for private gain.
o 3.13(A)​: prohibits them from receiving certain gifts.
▪ 3.13(B)​: exceptions they are not required to publicly report.
▪ 3.13(C)​: exceptions they are required to publicly report.

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