Legal Profession

Front 1

What was the holding of Supreme Court of New Hampshire v. Piper?

Back 1

States can’t exclude out-of-staters from taking bar exam

Front 2

What is the intermediate scrutiny test in piper?

Back 2

The P&I clause permits discrimination against nonresidents where
a. There is a substantial reason for the difference in treatment AND
b. The discrimination practiced again non-residents bears a substantial relationship to the state’s objective.
i. In deciding whether the discrimination bears a close or substantial relationship to the state’s objective, the court has considered the availability of less restrictive means.

Front 3

What is the government's argument in piper?

Back 3

5. The govnerment assert that nonresident members of the bar would be less likely to become, and remain, familiar with local rules and procedures; behave ethically; be available for court proceedings; do pro bono within the state. None of these reasons meet the test. there is no evidence to support such assertions. Moreover, lawyer would not take the bar exam and pay dues unless he anticipates considerable practice in the state.

Front 4

What is the holding of i. Supreme Court of Virginia v. Friedman?

Back 4

facts: VA allows ppl to become lawyers on motion, that is without taking the bar exam, however conditions that acceptance on permanent residency in VA

2. Held: Requirement violated P&I
a. State doesn’t need to totally exclude non-residents to violate P&I, just treat them differently
b. Doesn’t matter that VA could require all to take bar exam to gain admission to VA bar
3. Rule: States can’t impose residency requirements as a prereq for pro hac vice admission

Front 5

After Piper and Friedman, what can states do to discourage out of state lawyers?

Back 5

i. NJ Problem: create reverse reciprocity laws
ii. Make every attorney take and pass the bar
iii. CLE requirements

1. States can refuse pro hac vice admission altogether (NJ)
2. States can impose an in-state work requirement as a condition of reciprocal admission when applied to its own citizen (reverse reciprocity)
3. State can require an atty to have a bona fide office w/in the borders of the state (as opposed to home address in Piper)

Front 6

what is a critique of piper and friedman?

Back 6

1. Instead of increasing competition by allowing more out of state lawyers in, there is a real possibility that it might decrease competition by making states want to close their borders altogether (allowable under P&I analysis)

Front 7

What is the "New Jersey" Problem? What is "reverse reciprocity"?

Back 7

Several states have reason to fear "client flight" and consequent harm to the economic health of their bars, as geographical limitations on bar admission are eliminated and national or regional firms come looking for work. New Jersey cannot after Piper, exclude out of state lawyers from taking its bar exam btu it can and does condition admission to its bar on passage of the same exam its own lawyers must pass. New Jersey does not grant reciprocity to out of state lawyers which means it does not allow lawyers admitted in another state to be admitted without examination (on motion) in NJ even if the other state offers this opportunity to NJ lawyers.

Because new york lawyers were required to take the NJ bar while NJ lawyers gained comparatively painless motion admission to the NY bar, NY retaliated with a reverse reciprocity law that denies reciprocity admission to out of state lawyers whose home states do not grant reciprocity to NY lawyers.

Front 8

Admission in a Federal System

Back 8

1. Federal courts admit applicants who are members of the bar of the highest court of the state in which that federal court is located
2. Sometimes the federal court may permit admission of lawyers who are not members of local state bar (EEs of fed. gov.)
3. Fed courts have their own pro hac vice admission procedures
4. Fed district courts can limit membership in the court’s bar to members of its state bar.

Front 9

What is proac vice admission?

Back 9

Lease v. Flint - There is no federal requirement that a state grant bar admission absent a state law requiring admission. This seems somewhat at odds with piper v. friedman in that it is a national commercial enterprise that is important for people to be able to enter other state bars. Despite this case, it is easy to be granted temporary membership “proac viche admission” upon motion and sponsorship in a state. It is quite limited in multiple use because courts do not want it to be a substitute for you taking their bar. Thus, if you have to represent a number of clients that are suing BP, you should try to get admission for the lump sum of cases rather than each individual case. It is also limited in that it is only useful for a trial, and not for non-litigation matters.

Front 10

What are limitations of pro ac vice admission?

Back 10

Limitations
a. Litigation only - mostly just a trial device (but ask for it earlier in proceedings to be safe). No help for doing corporate, securities, etc.
b. Can't repeatedly get it w/o drawing attn to yourself - cts want you to get licensed if you're gonna keep practicing in their state (3 or 4).
c. Requires procedures and substance to get it - Affidavits from local attys.
d. Cases like Flynt - where it's pointed out that it's not mandatory that it be granted and if a judge has a problem w/ you, they don't have to give it to you.

Front 11

What else should you know about legal education and examination?

Back 11

1. Wisconsin will admit graduates of law schools in the state w/out examination (exception)
2. Fact that one racial group generally does better on bar exam than another will not invalidate examination, absent a showing of intent to discr.
3. Twenty states limit the # of times an applicant can take the bar
4. Rules requiring applicants for admission to be grads of accredited law schools have also been upheld

Front 12

What is rule 8.1 ?

Back 12

1. Applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
a. Knowingly make a false statement of material fact; OR
b. Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority
i. Doesn’t require disclosure of information otherwise protected by Rule 1.6

Front 13

What is rule 1.6?

Back 13

Rule 1.6 Confidentiality of Information.

(a) "Confidence" refers to information protected by the client-lawyer privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:
(1) reveal a confidence or secret of a client;
(2) use a confidence or secret of a client to the disadvantage of the client; or
(3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.
(c) A lawyer may reveal:
(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;
(2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;
(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;
(4) the intention of a client to commit a crime and the information necessary to prevent the crime; and
(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct.
(d) A lawyer shall exercise reasonable care to prevent employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by paragraph (c) through an employee.

2. Comments
a. 1. Duty imposed by this rule extends to persons seeking admission to the bar as well as to lawyers.
i. If you make a material false statement in connection with an application for admission, can be basis for subsequent disciplinary action if the person is admitted, and also relevant to subsequent admission application
ii. Separate professional offense for a lawyer to knowingly make a misrep or omission in connection with a disciplinary investigation of the lawyer’s own conduct
iii. Must also correct any prior misstatement in the matter that the applicant or lawyer may have made and affirmative clarification of any misunderstanding on the part of the admissions or disciplinary authority of which the person becomes aware

Front 14

What do the character committees examine?

Back 14

criminal conduct, lack of candor in application process, dishonesty or lack of integrity in legal acadeic settings, mental health, financial probity, private life, ability to speak english.

Front 15

What was the holding of Mustafa?

Back 15

1. Mustafa was chief justice of moot court; M wrote checks from moot court account, some of which he converted to his personal use; M paid back. Now applying for admission to the bar after taking the bar exam. Investigating committee recommends he be admitted.
2. Holding: Even though M had outstanding law school record and appropriate conduct since the embezzlement, M has failed to establish that he has the good moral character required (appears likely that M will be able to establish the req. moral character at some future time).
3. To gain admission to the D.C. bar, applicant must demonstrate by clear and convincing evidence, that the applicant possessed good moral character and general fitness to practice law
4. Note: This conduct might not have gotten him disbarred if he had already been an attorney, but the same conduct which might get a suspension if you’re already an attorney can prevent you from being an attorney if done prior to admission.

The court focused on the relatively short period of time that had elapsed since the date of the misconduct and the application to the bar.

Front 16

What does the bar examine in regard to criminal conduct?

Back 16

1. Criminal Conduct – whether or not resulted in a conviction or acquittal.
a. States examine the nature of the crime, how long ago it occurred and applicant’s conduct thereafter – fraud, dishonesty and abuse of customers are the worst crimes
b. Most states don’t have absolute rule against inadmissibility of felons→ inconsistency and inability to predict answer
i. Some states give pre-screening character processes

Criminal conduct has traditionally excluded applicants to the bar, whether or not it has led to conviction.

The burden of proof in a criminal case is on the state beyond a reasonable doubt, whereas the burden of showing good moral character may be on the applicant and is in any event lower.

Front 17

how will you be excluded for lack of candor?

Back 17

– preapplication conduct that wouldn’t result in exclusion can lead to exclusion if the bar applicant consciously omits it from the application
a. Need to list traffic violations
b. Still need to include criminal conviction even if expunged

Front 18

Can the bar ask you about treatment for a mental disorder?

Back 18

ADA seems to have changed the rules and a handful of opinions now hold that questions like this one are prohibited. But some states still have these questions.

Front 19

financial probity

Back 19

financial irregularities in applicant’s life based on fact that dishonesty or abuse of trust in business or personal or financial matters may predict lack of probity as a lawyer

Front 20

What happens If lawyer was previously involved in unauthorized practice of law (w/out a license)

Back 20

a. Is this really about protecting the public from the lawyer, if give you the license you won’t be committing the unauthorized practice of lawyer (can’t commit this after admitted to the bar)
b. Could argue that this was more about punishment but this has no predictive quality of future failure or abuse at all
c. Could be more about protecting a state’s turf and business not about protecting the public

Front 21

Procedures regarding Character Inquiry

Back 21

Applicants to the bar who are denied admission b/c they lack good moral character are entitled to a hearing, at which they can present evidence and confront the evidence against them
1. Hearing may be held before either an administrative body or court
2. Scope of review varies – great weight, reasonable doubts should be resolved in favor of applicant.

Front 22

MRPC Rule 5.5

Back 22

i. (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
ii. (b) A lawyer who is not admitted to practice in this jurisdiction shall not:
1. (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
2. (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
iii. (c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
1. (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
2. (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
3. (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
4. (4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.
iv. (d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:
1. (1) are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or
2. (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

Hint 22

5. Comments
a. 1. Can practice law only in a jurisdiction in which you are authorized to practice.
i. Can be admitted to practice in a jurisdiction on a regular basis or may be authorized by court order or by law to practice for a limited purpose or on a restricted basis
b. 2. Definition of practice of law is established by law and varies from one jurisdiction to another.
i. This protects the public against rendition of legal services by unqualified persons
ii. Doesn’t prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility. See Rule 5.3
c. 3. Lawyer may provide professional advice and instruction to non-lawyers whose employment requires knowledge of the law
i. Claims adjuster, social workers, accountants
ii. Lawyers can also assist independent non-lawyers who are authorized by the law of a jurisdiction to provide particular law-related services
iii. Can counsel non-lawyers who wish to proceed pro se
d. 4. A lawyer who isn’t admitted to practice generally in this jurisdiction violates paragraph (b) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law
i. Presence may be systematic and continuous even if the lawyer isn’t physically present here.
ii. Such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction

Front 23

Why can’t legal secretaries do wills on the side?

Back 23

Rule 5.5 – legal field is a highly protected monopoly and you must have a license. The definition of “unauthorized practice of law” varies state by state and you must do the research to find out.

Front 24

6 Risks of unauthorized admission

Back 24

include criminal prosecution (rare), discipline, contempt, injunction, disqualification, and loss of fee for unauthorized work

Front 25

Alternatives to pro ac vice

Back 25

1. In house lawyers – don’t need to gain admission to bar to advice their employer-clients
2. NY admits foreign lawyers w/out examination, as “legal consultants” on the laws of non-U.S. jurisdictions

Front 26

What are the three interpretations of the definition of a unauthorized practice of law

Back 26

1. Broad view – anything the client will pay the attorney to do
2. Intermediate – services requiring knowledge and application of legal principles and techniques
3. Narrow – only in preparation or representation of a matter before others

Front 27

Four exceptions allowed for a lawyer not licensed in Jursidiction X to provide legal services on a temporary basis in that state

Back 27

1. Lawyer associates with local counsel – MRCP Rule 5.5(c)(1)
a. Must ‘actively participate’ in matter, not just run pleadings to court house
2. Lawyer is admitted pro hac vice – MRCP Rule 5.5(c)(2)
b. Extends to lawyers who reasonably expect to be admitted pro hac vice but haven’t been yet.
3. ADR proceedings – MRCP Rule 5.5(c)(3)
c. Arbitration tribunals don’t have the authority to admit lawyers pro hac vice because they’re not part of state court system
4. Catch-all – MRCP Rule 5.5(c)(4)
d. May occasionally practice in unlicensed jurisdiction if the work in that jurisdiction reasonably related to the lawyer’s practice in a jurisdiction in which he is licensed
e. Doesn’t permit a lawyer to represent clients with no relationship to a representation ongoing in the lawyer’s home jurisdiction

Front 28

You hire out of state counsel. They represent you by themselves. The judge won’t allow it because your state has a rule that says they must appear with local counsel. Is the judge justified in denying them?

Back 28

Yes, you cannot be denied your attorney of choice but this choice must comply with local rules.

Front 29

What is the holding of Cultum v. Heritage House Realtors in regards to the practice of law by non-lawyers?

Back 29

The court believed that parties to the sale of a home would be better served if they were represented by counsel on each side, but held that they have the right to choose not to be represented. They should be informed of the risks. They must comply with the standard of care demanded of an attorney.

Front 30

What is the holding of Sperry v. State in regard to the state power to regulate the practice of law?

Back 30

The state power must yield to incompatible federal legislation.

Front 31

What kinds of legal publications are allowed by the First Amendment? What are barred?

Back 31

Self-help legal books explaining the law are legal under the 1st amendment. (Dacey) Interactive software that acts as a substitute for the advice of an attorney is unauthorized according to the Texas legislature. (Parsons Technology)

Front 32

Rule 1.1 Competence

Back 32

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Front 33

Elements of cause of action for malpractice

Back 33

i. That an attorney/client relationship existed: Duty: lawyer’s duty to a client is measured by the skill and knowledge of ordinary lawyers in the community

ii. Breach: (falling below the standard of care)  actions by a lawyer that are below the applicable standard of care breach the duty to the client. Failure to conduct legal or factual research, failure to correctly analyze straightforward legal principles, loosing critical evidence, and allowing statutes of limitations to expire are examples of actions that fall below the general standard of care.


iii. Causation: for malpractice claims to exist, the lawyer’s breach of duty must cause the client’s damages. Often, this means that the client will have to prove that she would have prevailed in the matter had the lawyer not breach the duty of care. This requirement is called the “case within a case”. The malpractice plaintiff must prove the value of the underlying case in order to prevail in the malpractice case.

Front 34

What is the holding of Togstad v. Vesely, Otto, Miller & Keefe (Malpractice case)?

Back 34

1. Mrs. Togstad met with atty JM regarding potential malpractice claim relating to husband’s death; JM said that didn’t think T had case, but would discuss with partner; JM never got back to T, so T assumed didn’t have case and didn’t consult another atty. JM claims he meant to communicate only that his firm was not interested in the case; T says she understood that she didn’t have a case
2. Issue: was there an atty-client relationship?
3. Rule: There is no clear black letter rule as to when exactly the attorney/client relationship begins – it basically just amounts to a “what a client reasonably perceived.”
4. List of relevant factors:
a. Fees charged?
b. Lawyers kept any papers/property belonging to client
c. Whether the lawyer has gotten back to the client confirming the relationship (or sending a non-engagement letter).
d. Whether, from the reasonable client’s perspective, that an attorney client relationship has begun
5. Held: The court finds the relationship had started b/c he gave legal advice AND she relied on it
a. He didn’t tell her that he doesn’t practice in this area and that she should seek a second opinion; didn’t tell her about the statute of limitations – he told her she had no case.
b. Reliance upon advice also important – “jury could properly find that T sought and received legal advice from JM under circs which made it reasonably foreseeable to JM that T would be injured if the advice were negligently given. Thus, under either a tort or K analysis, there is sufficient evidence to support the existence of an atty-client relationship
6. Solution: ALWAYS send a non-engagement letter!
a. This basically defeats the “reasonable belief” argument.

Front 35

Breach of duty (malpractice)

Back 35

ii. Breach: (falling below the standard of care)  actions by a lawyer that are below the applicable standard of care breach the duty to the client. Failure to conduct legal or factual research, failure to correctly analyze straightforward legal principles, loosing critical evidence, and allowing statutes of limitations to expire are examples of actions that fall below the general standard of care.
1. Togstad
a. The court looks at what an “ordinarily prudent attorney would do before rendering legal advice in a case of this nature”
b. In Togstad the court found that community standards required that the attorney check hospital records and consul with an expert before rendering an opinion.
2. Standard of care: lawyer must exercise the degree of care, skill, diligence and knowledge commonly possessed and exercised by reasonable, careful, and prudent lawyer in the practice of law in this jurisdiction.
3. Malpractice can be based on conduct rather than failure to exercise the proper standard of care. It can also be based on violation of a duty the lawyer owes the client as a fiduciary. For example, a fiduciary’s duty of loyalty requires him to avoid conflicts of interest. If a client suffers loss as a result of a lawyer’s conflict of interest, the client will be able to recover for breach of fiduciary duty or in malpractice. Theories of recovery are often used interchangeable and not always with precision.
4. How to prove that there was a breach: call lawyer as expert. Also, malpractice plaintiff might also wish to introduce evidence of the jurisdiction’s ethics rule as some proof of the standards of behavior for lawyers in the jurisdiction.


Alternative to standard of care: Breach of fiduciary duty (page 619)
May interact with Malpractice!

Front 36

Elements of malpractice claim

Back 36

i. Atty-client relationship (duty) existed
ii. Atty acted negligently or in breach of K
1. Courts look to local custom and hear evidence from expert witnesses (attorneys)
2. Attorney may not want to serve as plaintiff’s expert as fellow attorneys will discriminate against them in the future
iii. Acts were proximate cause of P’s damage
iv. But for atty’s conduct, P would have been successful in prosecution of their claim (or P’s result would have been better)

Front 37

Negligence standard

Back 37

What an ordinary prudent attorney would do before rendering legal advice in a case of this nature

Front 38

5 Things an Atty can do to invite a malpractice suit

Back 38

i. Miss SoL – can fix by having system set up to remind you of deadlines
ii. Gross errors of law – filing in the wrong court, naming wrong party
iii. Commingling of client funds
1. Good faith isn’t a defense when commingling money
2. Most states require that you set up a special lawyer trust account for client funds (IOLTA). Interest goes to the Bar.
iv. Bad interpersonal skills – inattentiveness to case (not returning phone calls)
v. Sue client for back fees – almost always provokes countersuit for malpractice

Front 39

Can a violation of ethics rules can lead to malpractice?

Back 39

i. Won’t lead to malpractice liability per se
ii. Some bar boards won’t punish you twice  might take into account a current malpractice suit. Relevant? Ethics punishment is about protecting the public and malpractice suit is about remedying the loss suffered by a particular client
iii. Can be subject to discipline in more than one jurisdiction for the same act

Front 40

vicarious liability

Back 40

All partners are liable for a partner's wrongful acts within the scope of the partnership business, even if the other partners were unaware of those acts.The partners may also be liable for negligent supervision.

Even under an LLP, the partnership as an entity remains liable for the malpractice of any of its lawyers. Partners are only personally liable for their own professional negligence.

Front 41

How do you prove malpractice?

Back 41

a plaintiff will call another lawyer to testify that the defendant breached a duty of care or fiduciary duty. ordinarily a jury cannot be expected to know the standard of care of lawyers in the community.

Front 42

malpractice burden of proof

Back 42

i. Client usually has to prove underlying case had it been properly litigated; but, some jurisdictions only require proof that malpractice was material and substantial cause of loss (Childress thinks basically the same burden)

Front 43

In order to prove tort of professional negligence...

Back 43

P. must show that but for lawyer’s failure to exercise reasonable care, outcome of representation would have been different
1. Ex: Suing for malpractice in a medical malpractice case. P. will have to show that doctor exhibited medical malpractice AND lawyer exhibited legal malpractice
2. Lawyer will defend by saying med mal case was a loser

Front 44

causation for breach of fiduciary duty

Back 44

iii. When actionable conduct is breach of fiduciary duty, courts willing to relax strict proximate cause (but for) requirements (use substantial factor test instead)

Front 45

when is the substantial factor test more appropriate?

Back 45

iv. When remedy was compensation for a loss as opposed to restitutionary one (preventing unjust enrichment), substantial factor test may be more appropriate.

Front 46

What are some defenses to a malpractice claim?

Back 46

Contributory and Comparative negligence are both recognized as defenses

Front 47

What is the holding of Viner v. Sweet (malpractice)?

Back 47

When the alleged malpractice occurred in the performance of transactional work (giving advice or preparing documents for a business transaction), the client must prove the causation element according to the “but for” test (the harm or loss would not have occurred w/out the atty’s malpractice)

Front 48

Causation in Criminal Cases

Back 48

i. Most courts require P. to prove either actual innocence or to have the conviction overturned in court or both
1. If post-conviction attacks on conviction fail, D. can’t bring a malpractice suit even if he has evidence that he was innocent in fact
2. Only has a 6th Amendment remedy, no malpractice action
ii. Rationale – Views the conviction and any punishment to be a legal result of the guilty client’s conduct, not the lawyer’s negligence, citing other remedies such as appeal and post conviction relief, as adequate to address a defense lawyer’s incompetence.

Front 49

What is the holding of Petrillo v. Bachenberg? (negligent misrepresentation)

Back 49

Whether an attorney owes a duty to a non-client third party depends on balancing. When courts relax the privity requirement, they typically limit a lawyer's duty to situations in which the lawyer intended or should have forseen that the third party would rely on the lawyer's work.

For the purposes of liability a lawyer owes a duty to use care to a non client when and to the extent that a lawyer or the lawyer's client invites the non-client to rely on the lawyer's opinion or provision of other legal services, the non-client so relies, and the non-client is not, under applicable law too remote from the lawyer to be entitled to protection.

1. H representing B, a real estate developer. B has a parcel of land to sell to prospective purchaser, P. B told H to prepare a legal opinion certifying that the land could be used for a day care center, H researched zoning and concluded that it would meet P’s needs, wrote a letter stating that it satisfied all legal requirements for the type of business contemplated by the buyer and gave it to B  P signed a K to purchase the land. H was aware of administrative code of department of health and that soil on B’s land had failed several tests. H prepared report that said land passed tests and gave to P.
2. When H gave Bachman the report, it arguably was foreseeable that he would give it to prospective purchasers such as P.
a. Focus on foreseeability and how this may drive up transaction costs as lawyers will have to expend greater care  greater time  greater costs, in drafting documents in the event that they might end up in the hands of a third party that will rely on them

Front 50

Explain and give examples of grounds for liability to third parties

Back 50

i. Theory: Even though P. never actually retained or sought to retain the defendant lawyer, nevertheless the P was entitled to the benefit of the service – and the same duty of care – the lawyer had agreed to provide to the actual client
ii. Courts respond through either 1)tort law (negligent representation), or 2)third party beneficiary rule – K law
iii. Examples:
1. Drafting of wills – an intended beneficiary under the will is usually held as third party beneficiary of atty-client relationship
2. Corporation which sues a lawyer retained by its shareholders and an affiliated company for the purpose of benefiting the plaintiff
3. Legal opinions sought to induce a 3rd party to take action
iv. Courts more willing to extend an atty’s duty to non-clients in cases where the atty’s representation was of nonadversarial nature

Front 51

What are some relevant factors to consider when determining whether a lawyer has a duty to a non-client? (Trask v. Butler)

Back 51

1. the extent to which the transaction was intended to benefit the plaintiff
2. the foreseeability of harm to the plaintiff
3. the closeness of the connection between the defendant's conduct and the injury
4. the degree of certainty that the palintiff suffered injury
5. the policy of preventing future harm;
6. the extent to which the profession would be unduly burdened by a finding of liability

The threshold question is whether the plaintiff is an intended beneficiary of the transaction to which the advice pertained.

Front 52

What was the holding of "Matter of Neville" with regard to a lawyer's fiduciary duty in a business transaction with a client?

Back 52

1. N represented B in real estate deals; N bought options in some of B’s properties and drafted deal whereby N gave B a promissory note, B sold to 3rd party property in which N had interest, and 3rd party sold property to N
2. Holding: 1.8 rule not limited to situations where atty acts as counsel in very situation in which has interest adverse to client; applies also to transactions in which, because of other transactions, ordinary person would view lawyer as protector, not adversary. Rule is applicable even if atty did not intend to defraud or act with improper motives.
a. Here, because of longstanding business relationship, it is reasonable that B would view N as protector
b. Lawyer must make full disclosure which requires not only a full explanation of the divergence in interest between the lawyer and client but also a detailed explanation of the risks and disadvantages to the client which flow from the agreement.
c. Client should never have to protect herself against her own lawyer – transaction must be as beneficial to the client as it would have been had the client been dealing with a stranger rather than with his lawyer

Front 53

When does the provision of 1.8(a) regarding attorney-client business deals apply?

Back 53

When the attorney acquires an ownership, possessory, security or other pecuniary interest adverse to a client.

Front 54

Rule 1.8(a) duties may continue even after the conclusion of the matter for which the lawyer was hired. What do courts hold in regard to fee arrangements entered into after creation of the professional relationship?

Back 54

A fee arrangement between a lawyer and client, revised after the relationship has been established on terms more favorable to the lawyer than originally agreed upon may be void or voidable unless the attorney shows that the contract was fair and reasonable, free from undue influence, and made after a fair and full disclosure of the facts on which it is predicated.

Front 55

Is an attorney prohibited from entering into a contract with a client? If not, what are the limitations?

Back 55

No. But the attorney cannot take advantage of his superior knowledge and position. An attorney who seeks to avail himself of a contract made with his client is bound to establish affirmatively that it was made by the client with full knowledge of all the material circumstances known to the attorney, and was in every respect free from fraud on his part, or misconception on the part of the client, and that a reasonable use was made by the attorney of the confidence reposed in him.

Even in the absence of misconduct the agreement may be invalid if it appears that the attorney got the better end of the bargain unless he can show that the client was fully aware of the consequences and that there was no exploitation of the client's confidence in the attorney.

Front 56

What is an exemption from rule 1.8 regarding attorney-client business transactions?

Back 56

"standard commercial transactions"

So for example, it would not be presumptively fraudulent for a lawyer to take a mortgage from a bank that was his client. Okay if client generally markets products or services to others.

Front 57

Can a lawyer purchase the media rights to a client's case?

Back 57

Not before conclusion of the case. (1.8(d))

The rationale is that it will present a conflict of interest and could materially limit their ability to represent the client. For example, the lawyer may push for a trial rather than a plea agreement because it makes for a more dramatic story.

Also violates 1.7(a)(2)

Front 58

Mary is injured in a car crash and is broke as shit. She will potentially yield millions of dollars in settlement funds which means a big contingent fee for you. The problem is she needs $1,000 per month until the case settles so that she won't be living on the street. Can you help her out and take the loan out of her settlement money when it comes in?

Back 58

NO.

1.8(e) permits a lawyer to make repayment contingent on the outcome of the matter and does away with repayment entirely if the client is indigent. But the rules prohibit a lawyer to advance more than COURT COSTS and EXPENSES OF LITIGATION.

The rule excludes living and medical expenses. Even small sums are forbidden.

Some states might make an exception for basic necessities where there is no expectation of repayment.

The rule's purpose is to prevent clients from selecting a lawyer based on improper factors and avoid conflicts of interests including compromising a lawyer's judgment in the case.

Front 59

What conflicts arise when a lawyer gets paid by someone to represent another person? What are the requirements in this situation?

Back 59

Rule 1.8(f)

The client must consent to the fee arrangement. The payer must not interfere with the lawyer's independence of professional judgment or with the client-lawyer relationship and the lawyer must protect the client's confidences. Payer must be aware that the fact and amount of payment will not likely be privileged.

Conflicts arise when the relationship prevents the client from offering testimony against the payer or from taking other actions contrary to the payer's interest (for example when an employer pays for an employee's case)

Front 60

Gifts to Lawyers – MRPC Rule 1.8(c)

Back 60

1. Lawyers can’t prepare any instrument in which the lawyer or a family member will receive any substantial gift from the client

Front 61

What was the holding of Gellman v. Hilal regarding husband that represents a plaintiff in a case where the wife represented opposing party in the past?

Back 61

There is no per se rule of disqualification based on marital status.

Disciplinary rules apply to all lawyers without distinction to marital status, so even though the wife has a financial incentive to disclose information to the husband, she would risk disciplinary action and her ability to advance her career. Danger of inadvertent revelation of confidences not considered fatal.

Governed by standard of 1.7(a)(2)

Front 62

Is there a conflict of interest when a lawyer is accused of being associated with the crime of the client he or she is representing?

Back 62

Yes. In U.S. v. Fulton, court held that where a witness implicates defense counsel in a related crime, the resultant conflict so permeates the defense that no meaningful waiver can be obtained. The court assumed that the counsel's fear of and desire to avoid criminal charges or even reputational damage from an unfounded accusation will affect virtually every aspect of his or her representation of defendant. A new trial must be ordered.

However, some courts recognize an exception if they can definitively rule out the possibility that the allegations are true, a meaningful waiver is possible.

Front 63

What is the rationale for considering a lawyer's gender, religion, or race when choosing which lawyer to place before a jury?

Back 63

The judge and the jury are deciding the case and we have to appeal to them no matter how repulsive their biases may be. Although a firm may have a professional responsibility to the lawyers, the responsibility to its clients come first.

Even though some cases a certain religion or race or gender is disadvantageous, their time will come in a different region where it is advantageous.

Front 64

what are the steps in identifying client-client conflict?

Back 64

1. Identify client relationships
2. Identify conflicts
3. Ascertain consentability
a. Analyze this separately from this issue of whether or not there is a conflict
b. Single laywer can represent both buyer and seller with consent if parties have agreed on material terms
4. See if there has been effective consent
5. Determine if conflict is imputed to other lawyers in the same organization

Front 65

What was the holding of Cuyler v. Sullivan regarding 2 lawyers that represented 3 clients accused of murder?

Back 65

1. 2 lawyers represented all 3 criminal Ds in murder trial; Sullivan found guilty and sentenced to life imprisonment – defense presented no evidence; other Ds acquitted in separate trials
2. Issue: 6th Amendment right to counsel violated?
a. Does trial judge have duty to inquire into propriety of multiple representation in absence of objections?
b. Does mere possibility of conflict of interest mean D deprived of right to counsel?
3. Absent special circs, trial judge may assume multiple representation entails no conflict or lawyer and client accepted risk of conflict
4. To establish violation of 6th Amendment, D who doesn’t object to multiple rep at trial must demonstrate “actual conflict of interest adversely affected his lawyer’s performance” (mere possibility not enough)
5. If D objects at trial, must have opportunity to show that potential conflicts impermissibly imperil his right to fair trial

Front 66

What is the "Holloway Error" that occurred in Holloway v. Arkansas regarding conflicts of interest between an attorney representing 3 defendants.

Back 66

When a lawyer objects to representing 3 defendants based on conflicts of interest and the trial judge fails to investigate the conflicts, automatic reversal is required without any need to demonstrate prejudice.

However, the Holloway rule does not apply where an attorney fails to timely object even when the judge knows about the conflicts.

Where there was no objection, lawyer must satisfy Sullivan test which requires proving the conflict affected attorney's performance.

Front 67

What is the rule generated by Wheat v. U.S. regarding waivers of conflicts of interest?

Back 67

Facts: D wanted to substitute attorney X as counsel. X had represented other defendants in a related crime. D wants to waive the conflict of interest. Trial court refuses to substitute X and denies waiver.

Holding: the district court must be allowed substantial latitude in refusing waiver of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict of interest as the trial progresses. court refusal to permit the substitution of counsel in this case was within its discretion and did not violate petitioner’s sixth amendment right

rule: i. The district court must recognize a presumption in favor of petitioner’s counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by showing a serious potential conflict. The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.

Front 68

What happens if you are unhappy with a pretrial order disqualifying criminal defense counsel?

Back 68

It is not subject to immediate appeal.(Flanagan v. US) You have to proceed with another lawyer and wait until you are convicted to raise the order on appeal from the judgment of conviction.

Thereafter, if found erroneous, the conviction will be automatically reversed even if the defendant can show no other trial error. The 6th amendment commands not that a trial be fair but that a particular guarantee of fairness be provided: that the accused be defended by the counsel he believes is best. (U.S. v. Gonzales Lopez)

Front 69

Strickland v. Washington: test for ineffective assistance of counsel

Back 69

a. Whether counsel’s performance was “reasonable considering the circumsnteaces”
b. If NOT  the D must show that there is reasonable probability that, but for counsel’s unprofessional errors, the result would have been different
i. The court connected Strickland and Cuyler making it easier for a defendant who claims ineffectiveness assistance of counsel based on conflict to prevail than it is for defendants asserting ineffectiveness.

Front 70

What was the holding of Fiandaca v. Cunningham where the combination of class action clients and circumstances placed counsel in the untenable position of being simultaneously obligated to represent vigorously the interests of two conflicting clients and the district court permitted them to do so after conflict became apparent?

Back 70

3. Absent some evidence of true necessity, “we will not permit a meritorious disqualification motion to be denied in the interest of expediency unless it can be shown that the movant strategically sought disqualification in an effort to advance some improper purpose”

i. Merely conducting a trial with counsel that should have been disqualified does not inedibly stamp or taint the proceedings. With this in mind, we look to the actual adverse effects caused by the court’s error in refusing to disqualify NHLA as class counsel to determine the nature of the proceedings on remand.

Front 71

Explain damages in a malpractice case

Back 71

P.s can recover damages that flow “directly and naturally” from the lawyer’s negligence
1. Pecuniary damages for business losses
2. Amount P. would have recovered at trial
3. Additional legal fees necessitated by first lawyer’s malpractice

Front 72

List different forms of bar discipline

Back 72

Discipline generally comes in the form of disbarment, suspension, or reprimand, either public or private. Courts may also require disciplined lawyers to engage in professional responsibility educational programs.

Front 73

What is disbarment?

Back 73

disbarment is an indefinite or permanent exclusion from the bar. In most jurisdictions, a disbarred lawyer may petition for readmission after a designated time period has elapsed. Nonetheless, although they have the right to reapply, they may not be readmitted. disbarment is the most serious form of discipline and often effectively ends a lawyer’s legal career

Front 74

Explain the difference between malpractice and bar discipline

Back 74

Discipline is imposed for the protection of the public generally and for the benefit of the profession, whereas malpractice is a tort or contract based civil action that is meant to compensate victims of a lawyer’s negligence or contract breach. Although a single act of negligence will support malpractice action, unless that single act is sufficiently gross to indicate a substantial likelihood that the lawyer is unfit to practice, that single act will not subject the lawyer to bar discipline.

Front 75

What is the purpose of bar discipline?

Back 75

The purpose of lawyer discipline proceeding is to protect the public , the integrity of the legal system, and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely properly to discharge their professional duties to clients, the public, the legal system, and the legal profession. (ABA standards)
Another purpose is to deter unethical conduct and rehabilitate the lawyer. While sanctions have a punitive effect, the purpose is not to punish.

Front 76

What is suspension?

Back 76

Allows a lawyer to continue to be a member of the bar while his or her right to practice is suspended for a period of time. Periods of 3 months to 5 years or “until further order of the court”

Front 77

What is censure?

Back 77

Aka public reprimand. Although the lawyer is not removed or suspended from practice, the publicity attached to the censure is unpleasant.

Front 78

What are some lesser sanctions?

Back 78

Public Service, restitution, assessment of costs, limitation upon practice, appointment of a receiver for a law practice, requirement that the lawyer retake a bar exam, and mandatory CLE as sanctions.

Front 79

ABA model standards, in choosing a sanction, the standards identify four considerations

Back 79

1. The duty violated
2. The lawyer’s mental state
3. The potential or actual injury caused by the lawyer’s misconduct and
4. The existence of aggravating or mitigating factors.

Front 80

MPRC 8.4 misconduct

Back 80

acts, whether in or out of the lawyer’s role, that involve dishonesty, fraud, and deceit, even if not rising to the level of criminal conduct, subject the lawyer to discipline

Front 81

MRCP Rule 1.15 – Safekeeping Property

Back 81

Atty shall hold property of clients or third persons that is in atty’s possession in connection with a representation separate from the atty’s own property

Upon receiving funds or other property in which a client or 3rd person has an interest, atty shall promptly notify client or 3rd person

Front 82

What was the holding of the Warhaftig case regarding comingling of client funds?

Back 82

Knowing misappropriation consists simply of a lawyer taking a client’s money and knowing that the client has not authorized the taking; lawyer’s subjective intent to borrow rather than steal is irrelevant to determination of appropriate discipline; penalty is often automatic disbarment

Front 83

Explain the case “In re Austern” that dealt with a lawyer that knew his client was committing illegal conduct.

Back 83

Facts: atty became co-agent of escrow account and allowed seller to deposit worthless $10,000 check; seller later deposited required funds and no damage caused

Holding: Atty was under affirmative duty to withdraw from representation once knew check was worthless; sanction – public censure

Mitigating factors: 1) No prior disciplinary record, 2) No desire for personal gain, 3) Extreme animosity toward client caused atty to hasten settlement

Rule: Atty must withdraw from representation in situation where client’s wishes call for conduct that is illegal or fraudulent

Front 84

Explain the case “In re Austern” that dealt with a lawyer that knew his client was committing illegal conduct.
Discipline for inflating billing time?

Back 84

Can lead to criminal prosecution and bar discipline

Front 85

Discipline for seeking reimbursements for false expenses?

Back 85

Usually disbarment

Front 86

Discipline for lying or misleading omissions on a resume?

Back 86

Could lead to disbarment if hiding misconduct

Front 87

What is the discipline for “stealing” the government’s money b y not paying taxes?

Back 87

Many states show greater leniency in tax matters than in client fund matters, often only suspension for tax felonies

Front 88

What is discipline for plagiarism

Back 88

In one case, 6 month suspension.

Front 89

Discipline for neglect of client matters?

Back 89

Likelihood of discipline increases with the increase of the number of neglected matters. Could be suspension or even disbarment.

Neglect should be distinguished from negligence. Sins of omission are met with more discipline than negligent acts.

Neglect or lack of candor can result in sanctions directly by the court, bypassing the disciplinary committee.

Intentional neglect is not required; lack of diligence is sufficient

Front 90

Describe some circumstances where the lawyer’s “private life” and conduct unrelated to clients will invite discipline.

Back 90

i. Criminal conduct outside the role of lawyer that reflects adversely on the lawyer’s fitness will subject the lawyer to discipline. (some states disbar for felony convictions. Drugs like Cocaine disciplined more harshly than marijuana)
ii. Leaving the scene of a fatal accident warrants disbarment
iii. Private consensual activity between adults will not lead to discipline (even if adultery), but sexual harassment, watching porn on office computers, and having sexual chats with minors will.
iv. Domestic violence is likely to invite discipline

Front 91

What was the holding of Bates v. State Bar of Arizona in regard to advertising by lawyers?

Back 91

It held that advertising by lawyers was commercial speech entitled to first amendment protection, but a state can prohibit false, deceptive, or misleading ads; might be able to require a warning or disclaimer in legal ads; and could possibly restrict quality claims because they were hard to verify or measure.

Front 92

What reasons do advertisements by lawyers pose controversy?

Back 92

1) Adverse effect on professionalism
2) Inherently misleading
3) Stir up litigation
4) Increase cost of legal services
5) Encourage shoddy work
6) Difficult to monitor against abuse

Front 93

MRPC Rule 7.1

Back 93

i. Makes a lawyer subject to discipline for any false or misleading communication about the lawyer’s services
ii. Even truthful statements can be misleading if they may cause the reader or viewer to form a conclusion about lawyer that lacks a factual foundation
iii. Can’t create “unjustified expectations” on the part of prospective clients that they will get a particular result, i.e. $250,000

Front 94

MRPC Rule 7.4

Back 94

Prohibits misleading communications of one’s field of practice or specialization
Must clearly identify identity of certifying organization

Front 95

MRPC Rule 7.5

Back 95

i. Lawyers licensed in states other than the office whose address is on the letterhead must indicate as much
ii. Lawyers in public service can’t have their names used as part of a firm name
iii. Can’t represent that you’re a partnership when you’re actually an entity that would limit personal liability of members (LLP, LLC, PC)

Front 96

MRPC Rule 7.3

Back 96

i. Flatly prohibits in-person, live telephone, or real-time electronic contact with prospective clients where the lawyer is motivated by the possibility of pecuniary gain
ii. MRPC Rule 5.3(c) makes a lawyer responsible for conduct of a non-lawyer employee, so can’t have runner or secretary do the soliciting

Front 97

What was the holding of Ohralik v. Ohio State Bar Assn in regard to regulation of in person solicitation?

Back 97

- Attorney visited hospital and home to obtain business of an 18 year old woman injured in automobile accident
- Issue: To what extent may a State regulate in-person solicitation of clients
- Holding: State constitutionally may discipline an atty for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent
- Dangers of solicitation: 1) likelihood of overreaching and the exertion of undue influence of lay persons (intimidation), 2) invades individual privacy, 3) lawyer’s judgment on behalf of clients clouded by pecuniary self-interest
- Rules prohibiting solicitation are prophylactic measures whose objective is the prevention of harm before it occurs; so, don’t have to show specific harm in individual case – would make State’s burden of proof too high
- Rule: The supreme court has made a categorical ban on in-person solicitation in situations inherently conducive to overreaching and other forms of misconduct.
- Note that the typical client of a CPA is far less susceptible to manipulation than the young accident victim and invasion of privacy is not a significant concern. The manner in which a CPA solicits business is conducive to rational and considered decision making by prospective clients.

Front 98

What is the holding of In Re Primus?

Back 98

States have much less power to regulate client solicitation when a lawyer’s motive is political rather than financial.

The ACLU informed in person and later by letter that it was willing to represent a mother who had been sterilized as a requirement for a Medicaid program.

This case is different from Ohralik because the lawyer was not seeking pecuniary gain, there was no appreciable invasion of privacy, nor did it afford opportunity for overreaching. Lawyer was motivated by desire to “express personal political beliefs and to advance the civil liberties objectives of the ACLU,”

P.’s letter comes within 1st Amendment protection reserved for associational freedoms. State must demonstrate 1) subordinating interest which is compelling, and 2) means are closely drawn to avoid unnecessary abridgment of associational freedoms. State must show actual overreaching, misrepresentation, or invasion of privacy

Prophylactic rule only appropriate to prohibit in person solicitation that proposes a commercial transaction – not in context of political expression and association

Limitation – this opinion should not be interpreted to foreclose carefully tailored regulation that does not abridge unnecessarily the associational freedom of nonprofit organizations or their members.

Front 99

What is the difference between advertising and solicitations

Back 99

Solicitation is narrower communications directed at one or small group of identified recipients who are known to need a particular service

Advertising is widely distributed, public statements about the services available from a particular lawyer or law organization

Front 100

Explain the holding of In Gulf Oil v. Bernard regarding communication with class members

Back 100

SCOTUS held that an order limiting communications between parties and potential class members should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference w/ the rights of the parties

Front 101

Explain the holding of Zauderer v. Office of Disciplinary Counsel in regards to advertising

Back 101

i. Atty placed ad offering to represent women injured as a result of use of the Dalkon Shield. Unlike Bates, this was targeted at a specific population of clients with a specific legal problem
ii. Issue: Validity of 3 Ohio regs: 1) Prohibitions on legal ads, 2) Restrictions on use of illustrations, 3) Disclosure requirements re: terms of contingency fee arrangements
iii. Rule: Regulation of commercial speech – govt may prohibit commercial speech that is false, deceptive, misleading, or proposes an illegal transaction; if commercial speech doesn’t fall into above category, only may be restricted in service of substantial government interest and only through means that directly advance the interest (is there a less intrusive way to accomplish the end?)
iv. Here, ads not false or deceptive; no substantial state interest –
4. Print advertising lacks coercive force of personal solicitation
5. Print ads don’t pressure client for yes/no answer
6. Not bad if ads stir up litigation b/c lawsuits not evil
7. Same analysis for illustration
v. Disclosure requirement upheld – trenches more narrowly on advertiser’s interest than flat prohibitions on speech  warnings might be required to prevent possibility of consumer deception (ad didn’t specify that clients might still be liable for some costs in contingency fee arrangement)

Front 102

What was the response to the Shapero case regarding targeted mailings?

Back 102

The ABA rewrote 7.3 to permit targeted direct mail to potential clients, but where the communication is aimed at a person “known to be in need of legal services in a particular matter” the words “Advertising material” must appear on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient is a lawyer, a member of the lawyer’s family or someone with whom the lawyer has a prior professional relationship.

Front 103

With some exceptions, the Rules impute conflicts among all affiliated lawyers (1.10(a))

What lawyers are considered "affiliated" for imputation purposes?

Back 103

1. Lawyers are affiliated for imputation purposes if they work in the same office, regardless of title. Thus, lawyers with title "of counsel" who have a close relationship with the firm but are not partners or associates are still affiliated.

2. Two firms that publicly promote their affiliated status would be deemed a single firm and conflicts would be imputed between them

3. Sometimes firms affiliate for a single matter creating a joint defense arrangement. Courts will not conclusively presume that the confidential information that required the disqualification of one firm was passed to the other int he common interest arrangement. The other firm will have opportunity to prove they received no such info.

4. some courts refuse to impute conflicts in a public defenders but instead inquire on a case by case basis. rationale is that lawyers have no financial ineterest to prefer one client over another. also saves tax money bc it would be expensive to hire outside cousnel

5. conflicts may not be imputed where a lawyer has a personal interest UNLESS significant risk that representation will be materially limited. For example, a lawyer that opposes abortion may not impute conflict while a lawyer with deep financial interests in adverse company might.

Front 104

Who has standing to object to a conflict of interest?

Back 104

1. 1st circuit: Non-clients allowed to raise standing an opposing lawyer’s conflict
2. Other courts including 5th circuit suggest that only a client has standing to complain
3. Third group takes a middle position – non-client would have standing only if he or she can demonstrate that the opposing counsel’s conflict somehow prejudiced his or her rights

Front 105

A is suing B for a breach of warranty. Attorney X is not repreenting either in the matter but is doing A's estate plan and X's partner Y is handling a zoning matter for B. Any problem with the same firm representing two clients on unrelated matters where they happen to be adversaries in a third matter where the firm represents neither one?

Back 105

There is no problem because the work that Y and B are doing will not threaten the confidences of either client in the matter in which they are adverse, nor will the work justify a sense of betrayal in either client.

Fremont Indemnity Co. v. Fremont General Corp.

Front 106

Suppose attorney X is represeting client A on a breach of warranty matter against B. X's partner Y is representing B on an unrealted zoning matter. Nothing the lawyers do or learn in either matter can have any bearng on the other matter.

Are the representations allowed without informed consent from A and B?

Back 106

Where the relationship is a continuing one (not a former client), adverse representation is prima facie improper and the attorney must be prepared to show at the very least that there will be no actual or apparent conflict in LOYALTIES or DIMUNITION IN THE VIGOR OF HIS REPRESENTATION.

Cinema 5 v. Cinerama Inc.

Front 107

Law firm X represented client A in an antitrust action against B. Before an during the action, certain partners of X were representing B on unrelated matters. B moved to disqualify X from representing A. The court agreed. A argued that disqualification was "too harsh" because there was no shared information.

What was the court's rationale?

Back 107

An attorney who fails to observe his obligation of undivided LOYALTY to his client injures his profession ad demeans it in the eyes of the public.The maintenance of public confidence in the propriety of the conduct of those associated with the administration of justice is so important a consideratiob that we have held that a court may disqualify an attorney for failing to avoid even the appearance of impropriety.

Front 108

What goals are advanced by precluding firm X to represent A against B and also B in an unrelated matter?

Back 108

If B is a significant client of the firm, perhaps you will compromise the ardor with which you pursue A's matter. You don't want to offend B and lose its business.

But let's say B is not a significant client or A is willing to consent to the conflict. Then what?

B may find it rather difficult to trust in and confide to the very law firm that is also representing its opponent. B's discomfort is something the rules aim to prevent.

Front 109

Suppose you have lawfirm X 15 offices and 1,500 lawyers. You discover that a lawyer in another office is handling an unrelated matter for client B, who is adverse to your client A. Client B is a small client and doesn’t bring in much business. Do the policies behind the prohibition on adverse unrelated representation apply here? How can the rule distinguish between clients based on their size and sophistication? How can the firm get around this rule?

Back 109

It can be readily displaced by agreement. Advanced consents are sometimes permitted.

The opposite is also allowed: some big clients with a lot of business to throw around may insist on stricter conflic rules than are contained in the jurisdiction.

Front 110

What is the usually remedy when a lawyer acts adversely to a current client, even on an unrelated matter?

Back 110

Disqualification, although discipline and civil liability are also possible.

Front 111

When there is a common lawyer representing two defendants or two plaintiffs in the same action, what are the rules regarding privilege when one makes a communication to the lawyer in the presence of the other?

Back 111

Communications between one common lawyer and the two clients retain their privileged status so long as the communications would have been privileged in the first place.

The fact that the commincations between client A and the lawyer are shared with client B will not sacrifice the privilege, as it would if a stranger had access to the communications.

HOWEVER, in the event of a dispute between the 2 clients, neither client will be able to assert privilege for communication with a common lawyer unless they agreed beforehand that communications would continue to enjoy privilege in the event of dispute.

Front 112

What is the Eureka exception to the rule that joint clients do not enjoy privilege in the event of a dispute between them?

Back 112

When a joint attorney sees the co-client’s interests diverging to an unacceptable degree, the proper course is to end the joint representation. When an attorney fails to do so, the communications are privileged against each other notwithstanding the lawyer’s misconduct.

Front 113

Suppose two defendants hire separate counsel in the same action. If client A authorizes her attorney to share information with the lawyer for client B in order to advance their common goal, will she lose the privilege for that information as against the common opponent?

Back 113

No. if this were true, there would be a high price for the decision to hire separate counsel. We would also discourage cooreration.

Front 114

Where there is a large suit with 20 lawyers representing 20 clients, is there privileged communication amongst the lawyers?

Back 114

Yes, under a common interest arrangement. However, communications between he clients absent a lawyer are no privileged.

There must be a palpable threat of litigation at the time of the communication rather than a mere awareness that one's questionable conduct might some day result in litigation.

One danger of the rule is excessive secrecy and some courts have required parties have identical legal interests or a sufficiently similar interest and a effort to promote it by sharing the info.

A written agreement is not necessarily required to enjoy the benefits of the rule though it will be advisable.

Front 115

what should a lawyer do if one Of two joint clients gives her information about the joint matter but instructs her not to tell the other client? The lawyer may be trapped between her duty of confidentiality and her duty to inform.

Back 115

The laws conflict on this issue, but the lawyer can and should avoid the problem by making clear in the retainer agreement that information from either client may be shared with the other.

Front 116

What happens if one joint client wants to waive his right to privileged information but the other one doesn’t?

Back 116

The right to waive the privilege does not affect the right of another joint holder to claim the privilege. The right to waive is only for their own communications to counsel absent contrary agreement. If a document contains communications from two or more clients, waiver is effective only if all the clients agree, unless a nonwaiving client’s communications can be redacted.

Front 117

What duties, if any does Lawyer A owe to Client B in a common interest arrangement?

Back 117

Absent agreement to the contrary, Lawyer A may owe a fiduciary duty to client B. This duty may prevent Lawyer A from using client B’s information to client B’s disadvantage.

Front 118

Suppose you have a class action against an asbestos company and within the class you have members that have been injured by the exposure and members that were exposed but haven't become ill yet. The purpose of the class certification was for settlement only. Is there a conflict here?

Back 118

Yes. As a condition of class certification, the named class members must fairly and adequately protect the interests of the class. The requirement was unsatisfied here because the two groups had different interests. Permitting each named class to represent the entire class was improper.

Front 119

What is the appealability of civil disqualification orders?

Back 119

an order granting or denying a motion to disqualify civil counsel is not subject to immediate appeal as of right in federal court because it would greatly enhance the usefulness of such motions as a tactical ploy.

Mandamus is available but scope of review is narrow.

Front 120

What happened in Simpson v. James regarding a firm that represented both buyers and sellers in a transactional matter?

Back 120

i. Malpractice suit brought by the sellers of corporate assets against the partners of law firms that represented both the buyer and the sellers in the transactions.

2. Court says liability can’t be premised on mere fact that attorney represented both buyer and seller; but, sufficient additional evidence concerning the way the deal was structured to find 2 attorneys negligent
3. Possible that conflict transformed non-negligent act into actionable one, or made negligence clearer

ii. After completing the transaction, the corporation that bought the assets of the P went bankrupt and thus did not meet its obligations. Plaintiff allege that the D had a conflict of interest that prevented him to acting in the best interest of the P
b. Issue: whether client relationship existed
i. The evidence was sufficient for a reasonable jury to find that attorney client relationship existed.
c. Issue: negligence  whether the attorneys conduct fell below a reasonable standard of care?
i. After full disclosure by an attorney, it may be proper in some circumsnteaces for an attorney to represented both sides in a real state transaction
ii. In this case, the lawyer did not take steps a reasonable lawyer would have.
iii. Conclusion, negligence was proximate cause of Ps injuries.

Front 121

Points to Cover in Client consent form

Back 121

1. Courts and rules require lawyers to explain the conflict to a client before accepting consent.
a. Rule 1.7 requires informed consent.
b. Disclosure must be sufficient to inform a client of possible adverse effects the conflicting interest of the lawyer or the others might have ahd on the representation.
2. Blanket prospective consent can hardly be considered informed.
a. 1.7 allows it if client is experienced
b. However, open ended agreement will normally be ineffective.
3. A client that has not consented can waive a conflict depending on such factors as
a. Length of the delay in bring motion to disqualify
b. When the movant learned of the conflict
c. Whether the movant was represented by counsel duting the delay
d. Whey the delay occurred
e. Whether disqualification would result in prejudice to the non-moving party./

Front 122

Does informed consent have to be in writing?

Back 122

according to rule 1.7 it does. However some courts find implied consent where it is clear that the impliedly consenting party was fully aware of the conflict and armed with that knowledge still took actions that are consistent only with consent.

Front 123

explain the insurance triange issue

Back 123

i. Insurer generally pays for attorney to defend insured; usually one attorney can represent both insured and insurer because interests usually coincide
ii. Sometimes, insurer’s interests obviously conflict with those of insured: 1) where wrong exceeds value of policy but insurer obligated to defend, 2) insurance contract excludes certain acts and not clear whether claim is covered or not
iii. Two possible solutions to these type of problems:
1. Resolve before trial – insurance co-pays no matter what; here, one atty can represent both insurer and insured
2. Cumis Counsel – insurance company hires separate attorney to represent only insured and insurer goes forward with own attorney
iv. Lawyer is required to treat the policyholder’s interests as paramount because of the company’s duty of good faith, regardless of whether this is independently appointed counsel

Front 124

What happened in v. Public Service Mutual Insurance Co. v. Goldfarb regarding insurance?

Back 124

Plaintiff had asked the court in a declaratory judgment action to determine whether its policy of insurance provided coverage for the civil claim seeking compensatory and punitive damages. The policy required the insured to notify the company as soon as possible in the event of an accident, unusual occurrence or receiving notice of claim or suit, and provided that the insurer would pay damages resulting from any claim or suit based upon malpractice, error, negligence or mistake, assault, slander, libel, or undue familiarity.

that defendant Goldfarb had given plaintiff timely notice of the civil suit against him; that plaintiff was required to defend Goldfarb in that suit, and that public policy did not preclude insurance coverage for a claim of sexual abuse in the course of dental treatment.

Front 125

MRCP Rule 3.7 – Lawyer as Witness

Back 125

i. MRCP Rule 3.7 – Lawyer as Witness
1. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
a. The testimony relates to an uncontested issue;
b. The testimony relates to the nature and value of legal services rendered in the case; or
c. Disqualification of the lawyer would work substantial hardship on the client.
2. A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

ii. Note: 3.7 doesn’t distinguish between testimony for or against a client
iii. When the rule applies, the court can disqualify counsel sua sponte.
iv. Rationale – Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and also involve a conflict of interest between the lawyer and the client
1. Judge may accord the lawyer’s testimony too much weight because of her special knowledge of the case
2. Professional courtesy may handicap the opposing lawyer on cross-examination
3. Lay observers will wonder if counsel has compromised his integrity on the stand to prevail in the litigation
4. Jury might not distinguish between lawyer’s role as witness and lawyer’s role as advocate


iii. The disqualification runs only to advocacy at trial, not to pretrial work. Rule 3.7(a) disqualifies the lawyer personally but not her firm. Only in the limited circumstances described in Rule 3.7 will imputation arise. Rule 3.7b allows associates of the disqualified lawyer to act as advocates unless precluded from doing so by rule 1.7 or 1.9.
iv. The rule has been applied to defense counsel in some cases notwithstanding the ds willingness to waive counsel’s testimony.
v. The rule does apply to prosecutors. must withdraw from case if interviews a witness without presence of 3rd person

Front 126

Describ Analytica and the "substantial relationship test"

Back 126

1. Firm changing sides – 1) S&F represented Malec, an employee of NPD, 2) Analytica hired S&F to pursue action against NPD (firm switched sides)
2. Two matters are substantially related; disqualification affirmed
3.a. Lawyer is prohibited from using confidential information that he has obtained from a client against that client on behalf of another one. But this prohibition has not seemed enough by itself to make clients feel secure about reposing confidences in lawyers, so a further prohibition has evolved: a lawyer may not represent an adversary of his former client if the subject matter of the two representation is “substantially related” which means: if the lawyer could have obtained such information in the first representation that would have been relevant in the second
b. It is irrelevant whether he actually obtained such information and used it against his former client, or whether – if the lawyer is a firm rather than an individual practitioner – different people in the firm handled the two matters and scrupulously avoided discussing them.
c. Exception
i. Where a member or associate of a law firm (or gov. legal department) changes jobs, and later he or his new firm is retained by an adversary of a client of his former firm. In such a case, even if there is a substantial relationship between the two matters, the lawyer can avoid disqualification by showing that effective measures were taken to prevent confidences from being received by whichever lawyer in the ner form are handling the case.

Front 127

successive conflicts of interest rule 1.9

Back 127

i. (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
1. Side switching
a. Has the lawyer formerly represented a client who might complain about the conflict?
b. What is the nature of the matter for which the lawyer formerly provided representation?
c. Is that matter the same or substantially related to the present matter?
d. Are the interest of the present and former client materially adverse?
e. Did the former client provide informed consent?
ii. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client,
1. Whose interests are materially adverse to that person; and
2. About whom the lawyer has acquired information protected by Rule 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.
iii. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
1. Use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
2. (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
iv. Comments
1. Substantially related if there is a “substantial risk that confidential information as would normally have been obtained in the prior representation would materially advance client’s position in subsequent matter

Front 128

What does Scope of the “matter” mean under the substantial relationship test?

Back 128

i. Depends on facts of particular situation or transaction; underlying question is whether lawyer was so involved in matter that subsequent representation can be justly regarded as a changing of sides in the matter in question.
ii. Can be a deal, transaction, or an issue on which the client requires counseling

Front 129

what does "substantially related" mean under the substantial relationship test?

Back 129

i. 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
1. Can take on a new matter that is materially adverse to a former client’s interests, just not substantially related
ii. Best way to understand is functionally – in terms of the reasons for prohibiting successive adverse representation of two clients
1. Confidentiality
2. Loyalty

Front 130

How do you identify whether you have a successive conflict?

Back 130

i. Analyze whether it’s side switching or migratory lawyer
ii. Determine if attorney-client relationship is ongoing
1. If client subjectively believes that the lawyer is continuing to represent her
2. That belief is reasonable in the circumstances

Front 131

Other jurisdictional tests of substantial relationship

Back 131

1. 2nd Circuit – focuses on the causes of action in the two lawsuits
2. Wyoming – “facts” test – whether factual context of the 2 cases are related
3. “Legal issues” test – whether 2 claims involve overlapping legal issues
a. Has benefit of more a bright line test – judge looking at pleadings and what the lawsuit is about.

Front 132

A lawyer is disqualified because of successive conflicts. The lawyer represented A an employee of B. The lawyer was then obtained to pursue an action against B. Lawyer argues that B was never its client. Should the court give credit to this argument?

Back 132

No. B gave the lawyer confidential information to enable the lawyer to perform a legal service from whcih B would directly benefit. So for conflict purposes there was a professional relationship.

Where any substantial relationship can be shown between the subject matter of former representation and that of a subsequent adverse representation, the latter will be prohibited.

Front 133

Continuing Duty of Loyalty

Back 133

1. Rule protects value of loyalty to a former client to encourage clients to repose trust in their lawyers during a professional relationship (survives termination of the relationship)

Front 134

Can "playbook" knowledge of a client create a substantial relationship?

Back 134

Courts have recognized that a lawyer may have a conflict based on significant familiarilty with the operations and strategie of a former client even when the subsequent adverse matter involves different facts and is otherwise unrelated to matters the lawyer had handled for the former client. It can be enough to create a substantial relationship depending on the scope.

For example, in cases where the lawyer's involvement with the former cliet was prolonged and intimatein the very area of the later adverse matter, courts often find a substantial relationship.

However note that the comment to 1.9 says that a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client.

Front 135

Suppose client A gets a $10 million judgment against B. B then hires lawyer X to appeal this judgment. X wins and B charges X a bundle. Can A now retain X as counsel to appeal the judgment to the supreme court?

Back 135

No. It would be disloyal to B who paid X to achieve one specific objective: reverse the judgment. X cannot take money from A to do precisely what B paid him to do.

Notice confidential information doesn't enter the equation. Even where confidential informatn is not at risk, a subsequent adverse representation on a substantially related matter is forbidden.

Front 136

Suppose X jointly represents A and B to sue C. After a fallout, A hires X to sue B. A cites the exception to the attorney-client privilege for joint representations. Can B argue that it is not about confidences?

Back 136

yes. courts have held that the duty of loyalty is sufficent all by itself to prohibit the second reperesentation even with no confidential info at risk.

a minority of courts will allow such representation where the client understood and impliedly consented to the lawyer's continuous representation of the other client in the matter. not many jurisdictions adopt this view

Front 137

what are consequences of disqualification?

Back 137

1. Analytica, Model Rule 1.10 and DR 1-105 disqualify all lawyers in a law office from opposing client when any lawyer in the office has represented that client in a substantially related matter. In analytica, the disqualification was imputed into the entire firm
2. When a lawyer or firm is disqualified, the client will have to hire new counsel, who will want to receive the disqualified firm’s files. The opposing party might object on the grounds that this gives the new firm the benefit of the suspect work. Nevertheless, absent and identifiable tainted item, the courts have been disposed to allow turnover by counsel.
3.Could lead to malpractice claim for breach of fiduciary duty/loyalty

Front 138

explain the Hot-Potato Rule

Back 138

1. Law firms may not escape the stricter current client conflict rules simply by withdrawing from a representation and converting a current client into a former one – Jelco footnote
2. Law firm’s economic interests aren’t an acceptable reason for dropping a client.

3. Various concerns
a. Clients interest in uninterrupted representation. Rule 1.16 establishes the reasons that permit an attorney to withdraw from representation
4. What can the lawfirm do to protect itself
a. Advance consent from clients that it will agree to termiate the relationship, and will not invoke the hot potato rule, in the event of adversity with a long standing client.

Front 139

X law firm represents client A and B on unrelated matters. Longtime client A then asks the firm to appear adverse to client B on a matter unrelated to the representation of B. The firm seeks to withdraw B so that it can represent A. May it?

Back 139

No. Although this is a new adverse matter for a current client, not a new client, the hot potato rule still applies.

Front 140

A law firm represents D in litigation against its insurer to determine the insurer's liability to D. The law firm also represents another insurance company E in unrelated matters. When D's insurer fails, E becomes the successor in interest to the failed insurer by operatin of state law. The law firm now wants to withdraw from representing E. May it?

Back 140

yes, if it acts immediately

Front 141

X firm represents P against D. D then acquires T (or T acquires D). T is a current client of X. Can X withdraw from representing T?

Back 141

yes. here the conflict arose because of what others,not the law firm, did. Still the firm is in a conflict situation. It has to get consent or get out of one of the representations.

Front 142

X represents A for 13 years. X has not dont any work for A in the past year. B wants to retain X to sue A. Is A a current or former client?

Back 142

Current. many cases find attorney-client relationship during lulls in representation.

Front 143

which conflicts are waivable? always? sometimes?

Back 143

1. Concurrent conflicts may sometimes be waived
2. Successive conflicts may always be waived.

Front 144

what is the applicability of "the appearance of impropriety" rule

Back 144

was the old standard for conflicts. widely rejected. few state courts still use it

Front 145

conflicts in class actions

Back 145

rules are relaxed - should not be mechanically appied to problems that aise in settlement of class action litigation

Front 146

MRPC Rule 1.10 imputaation

Back 146

1. While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
2. When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
a. The matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
b. Any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.
3. A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.
4. The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

Front 147

questions to ask when Analyzing migratory lawyer problems

Back 147

1. While working at previous firm, did the moving lawyer represent a client whose interests are adverse to those of a client of the new firm?
2. Are the two matters in question the same or substantially related?
3. Is the moving lawyer’s “taint” imputed to other lawyers in the new firm, so that the entire firm is disqualified if the moving lawyer would be personally disqualified?

Front 148

What did the court hold about screning in Cromley v. Board of Educators?

Back 148

1. Cromley, represented by LW, brought suit against B of E; LW moved to new firm that represented B of E in the case; LW withdrew
2. Issue – whether B of E’s firm should be disqualified since LW works there now
3. Three-step disqualification analysis
a. Whether substantial relationship exists between the subject matter of the prior and present representations
b. If yes, must ascertain whether presumption of shared confidences with respect to prior representation has been rebutted
c. If no, must determine whether presumption of shared confidences has been rebutted with respect to present representation
4. Here, #1 easily satisfied – same case – so presumption of shared confidences arises
a. Can rebut by showing either that attorney had no knowledge of information, confidences and/or secrets related by client in prior representation or by proof that screening procedures were timely employed in the new law firm to prevent the disclosure of info and secrets
5. Screening mechanisms must be instituted promptly
6. Here, LW’s new firm established screening mechanisms in timely fashion, so rebutted presumption of shared confidences with respect to the present representation
7. Note – This case is minority view; majority view and Model Rules make presumption of shared confidences at new firm irrebutable – don’t allow screening procedures (“Chinese Walls”)
a. However, most authorities do allow rebuttal of presumption of shared confidences in prior representation (at old firm)
b. Rationale – Should be possible for migrating lawyer in first instance to establish lack of knowledge of a client’s confidential information w/out client running risk of having confidential info being revealed at hearing (can produce billing records showing that he was not involved along w/ his testimony) BUT in second instance, worried that screens will not prevent migrating lawyer from sharing confidential info w/ new colleagues if it will help them out
8. Problem of defining as concurrent or successive conflict – courts look at whether client could reasonably believe atty-client relationship was ongoing

Front 149

iii. When a conflicted lawyer changes firms, the considerations differ, we ask

Back 149

1. Was the migratory lawyer conflicted in the first place?
2. Was it because of the work she personally did or was the conflict imputed?
3. If the latter, perhaps the migration should end the imputation
4. If the conflict is personal, not imputed, should we have greater tolerance for screening

Front 150

what do the model rules say about screening?

Back 150

1. Do not permit screens when private lawyers change firms, although they do permit them when government lawyer enter private practice

Front 151

What are the presumptions in imputed disqualification and what is the general agreement about rebuttability of these presumptions?

Back 151

Client A can object if Firm X's representation of A was on a matter that has substantial relationship to (or is same as) Firm Y's representation of client B and

(1) Lawyer Q (latera from X to Y) shared confidences of A while on the matter at firm X and

(2) the other lawyers at Firm Y have received or are likely to receive those confidences from Q after he arrives there.

It is generally agreed that the first presumption should be rebuttable - meaning lawyer Q should have a chance to prove that he had no confidential information on the matter.

much authority disagree with the allowance of screening mechanisms to rebut the second presumption

Front 152

What happens where a firm fires a lawyer (or the lawyer quits) and then the firm wants to represent a new client whose interests are materially advers to those of a former client of the attorney that was fired or quit. Is this permissible?

Back 152

1. Rule 1.10(b): permits the firm to presented the new client, even if the matter is the same or substantially related to the one in which the formerly associated lawyer represented the former client, so long as the form can show that no lawyer remaining in the fm has protected information that would be used to disadvantage of the former client.
2. Thus, just as a disqualified lawyer who comes to a form with certain confidential information may “infect: every lawyer there if screening is not allowed, when a disquaflified lawyer departs, the enrited firm may be cured of the imputed disqualification.

Front 153

Can a lawyer be tossed like a hot potato so that a firm can represent clients adverse to his?

Back 153

a NY court said it was fine because it was the lawyer, not the client, who got tossed and the client had not been denied its "longtime counsel"

A california court reached a conflicting decision and said the conflict occurred at the time the complaint was filed, and could not be cured by a lawyer's resignation from the firm.

Front 154

what is screening?

Back 154

the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under the rules or other law.

Front 155

suppose a jurisdiction does not allow screening. how can a firm avoid the possibility of disqualification?

Back 155

a client may always consent to one and clients often do

Front 156

can paralegals and summer associates be screened?

Back 156

some jurisdictions as well as the model rules allow screening of support personnel and former summe associates

Front 157

MRPC Rule 1.11
government service

Back 157

1. Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation.
2. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
a. Disqualified lawyer is screened from any participation in matter and is apportioned no part of fee therefrom; and
b. Written notice promptly given to appropriate govt agency
i. With consent, 1.11 allows lawyer to represent “other side” on very issue which he worked while in public office
ii. Govt can’t consent where the lawyer has confidential government info about a person that could be used in the representation of a client whose interest are adverse to that person
iii. If former lawyer can’t get consent or is disqualified, Rules still permit her firm to accept representation so long as the lawyer is screened and receives no portion of the fee

Front 158

what was the holding of Armstrong v. McAlpin regarding government conflicts?

Back 158

Altman worked for SEC and supervised litigation against McAlpin. McAlpin allegedly looted money from company CG.CG was represented by firm GH. Altman ended his tenure with SEC and joined GH. McAlpin moved to disqualify Altman.

The court held that refusal to recognize screening could reduce the allure of government service. Prospective private employers would be reluctant to hire them.

Because GH's representation of the reciever posed no threat to the integrity of the trial process, the only basis for disqualification would be appearance of impropriety. This is simply too slender a basis to rest a disqualificaton order on.

Absent a threat to the taint of the trial, ethical conflicts are better addressed by disciplinary methods of the bar.

Front 159

Can a lawyer working for a government entity switch sides to a private firm in legislation against the same defendant?

Back 159

Courts do not want a former government lawyer and their private clients to profit from information gained in their governmental employment.

The model rules in 1.11 allow a lawyer to represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee so long as the appropriate government agency gives its informed consent.

This rule also allows the lawyer to work for the "other side" on the very matter which he worked on while in public office

Front 160

There is one instance which the model rules would not allow the government to consent to private representation after leaving government - what is it?

Back 160

where the lawyer has "confidential governmental information" about a person that could be ued in the representation of a private client whose interests are adverse to that person.

"confidential government information" includes information about individuals to which only the government has access or which is particularly within the powerof the government to compel.

Howver, the rule still permits the firm to accept representation as long as the lawyer is screened.

some courts less tolerant of screens when the government office at issue is the prosecutor and the conflicted lawyer is a high official in the office.

Front 161

What is the rule regarding a lawyer that moves from private practice to government?

Back 161

vii. Lawyer now in government may not participate in a matter in which she had participated personally and substantially while in private practice

Front 162

list the steps of analyzing governmental conflicts

Back 162

1. Identify matter on which lawyer worked while in govt
2. Was lawyer personally and substantially involved as govt employee?
3. If not, is it possible for lawyer to use info relating to rep of govt agency to disadvantage of that agency?
4. Does lawyer possess confidential govt info that can be used to the detriment of a 3rd party who provided that info to govt?
5. Did appropriate govt agency give informed consent?
6. If lawyer is personally disqualified, is new law firm disqualified by imputation? - Screening

Front 163

An attorney-client relationship is formed when:

Back 163

(1) a person manifests to a lawyer the person's intent that the lawyer provide legal services for the person and

(2) the lawyer fails to manifest a lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide services

Front 164

1.6 confidentiality

Back 164

i. (a) Lawyer shall not reveal information relating to representation of a client unless client gives informed consent, disclosure is impliedly authorized in order to carry out representation or disclosure is permitted by paragraph (b).
ii. (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
1. To prevent reasonably certain death or substantial bodily harm;
2. To prevent client from committing a crime or fraud that is reasonably certain to result in substantial injury to financial interests or property of another and in furtherance of which client has used or is using lawyer's services;
3. To prevent, mitigate or rectify substantial injury to financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
4. To secure legal advice about lawyer's compliance with Rules;
5. To establish a claim or defense on behalf of lawyer in a controversy between lawyer and client, to establish a defense to a criminal charge or civil claim against lawyer based upon conduct in which client was involved, or to respond to allegations in any proceeding concerning lawyer's representation of client; or
6. To comply with other law or a court order.

Front 165

When would it matter whether someone was a client or not?

Back 165

1. The lawyer has a conflict that restricts his or her actions
2. The lawyer is liable in malpractice or subject to discipline
3. Whether communications are confirmed or privileged

Front 166

Is money an indicator of whether a client relationship has formed?

Back 166

iii. Money need not change hands to create a client-lawyer relationship. A lawyer appointed by a court to represent an indigent criminal defendant has a professional relationship with the defendant and will generally be liable in malpractice for errors.

Although the relationship can arise without payment, the fac of payment is good evidence.

Front 167

Does a person have to be physically present in a lawyer's office to be considered a client?

Back 167

no. can arise between people that me over the phone, online, or even between people that have never met (formed through an intermediary)

Front 168

Is a person who pays a lawyer's fee to represent another person a client?

Back 168

Not protected by attorney client privilege unless the lawyer can show that the fee payer was also meant to be a client of the lawyer and that the payer's identity was part of a confidential communication.

Front 169

Is an attorney client reltionship indefinite?

Back 169

relationship is ongoing unless and until the client understands or reasonably should understand that h can no longer depend on it

Front 170

What is a lawyer's duty to his client with regard to the scope of the relationship?

Back 170

-lawyer obligated to tell client that representation has ended if there is a reasonable chance the client may believe it is continuing

-lawyer should clarify any ambiguity as to the purpose of the relationship (particular service doesn't include everything)

Front 171

will confiding in your best friend who is a lawyer create a attorney client relationship?

Back 171

that alone will not.

Front 172

What is competence? what is the consequence of being incompetent?

Back 172

1. Model rule requires lawyer to provide clients with “competent” representation, defined to require “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Rule 1.1.
2. Incompetence is often the basis for malpractice liability, assuming the client suffers damages, or for an “ineffective assistance of counsel” claim under the Six Amendment.

Front 173

What was the holding of Perez v. Kirk and Carrigan regarding the attorney client relationship of a coca cola bus driver that gave a statement to the coca cola attoneys?

Back 173

i. Perez, driver employed by Cola, collided w/ school bus. K&C hired by Cola, visited Perez to take statement, promising that it would be confidential but turned it over to DA. K&C argue that no action for breach of fiduciary duty b/c no atty-client relationship
ii. Atty-client relationship existed (created by implication that K&C were Perez’s lawyers) AND was breached by disclosure of Perez’s statement
iii. Rule – Atty-client privilege and duty of confidentiality protect info gained from a potential client even if no retention ensues

The pivilege applies to all confidential communications mde to n attorney during preliminary discussions of the prospective professional employment as well as those made during the course of any professional relationship resulting from such discussions.

Front 174

What is the difference between attorney client privilege and ethically protected infomation?

Back 174

The model rules define a cateogry of confidential client information gained from the client or from others in the course of representing the client which, absent exception, a lawyer may never reveal unless doing so benefits the client

The law of evidence on the other hand creates a privilege but only for communications between a lawyer and a client (or agent). The privilege is a shield that allows a lawyer and a client to refuse to reveal their communication despite a subpeona without being held in contempt of court. But NO privilege will protect communications if a stranger is present.

A subpeona CAN reach information that is confidential but Not privileged.

Front 175

does confidentiality differ when the client is a person rather than a corporation, labor union, government or partnership?

Back 175

no. rule 1.13

Front 176

the identity of those persons within an entity client whose communication with entity counsel will be protected as privileged?
1. Two tests have been developed

Back 176

a. Control group test: asks whether the lawyer’s communications as within a person within the control group of the entity. This is the least protective test.
i. This used to be the general test.
b. Subject matter test: looks at the nature and purpose of the information imparted to the lawyer, not merely the identity of the source

Front 177

What is the holding of upjohn v. U.S. regarding confidentiality with an entity client?

Back 177

i. Upjohn got wind that several employees were making payments to foreign governments. The head attorney for the corporation conducted an investigation and tried to fix it. Thereafter, they submitted information about the payments to the SEC and the IRS. The IRS wanted the names of the individuals who made the payments, but the Upjohn lawyer claimed it was privileged.
ii. Issue: Does the attorney/client privilege apply only to communications from the officers/directors of a corporation or to communications from all employees?
iii. Held: The attorney/client privilege applies to communication between all the employees of a corporation and the corporation’s attorney.
1. This is necessary to extend the privilege to all employees in order to encourage frank and open disclosure to the attorney by ALL employees who may substantially embroil the corporation in legal difficulties.
2. Plus, there is uncertainty in the “control group” cited by the Court of Appeals (Privilege only applies to someone who may be able to control the corporation’s directive actions). An uncertain privilege is little better than no privilege at all.
a. Rejects the control group test in favor of case by case test.
iv. Privilege only protects disclosure of communications, doesn’t protect disclosure of the underlying facts by those who communicated with the attorney
1. Client can’t be compelled to answer the question “What did you say or write to the attorney?” but can’t refuse to disclose relevant facts within his knowledge simply because he incorporated a statement of such fact into his communication to the attorney
v. Problems w/ “control test”
1. Frequently will be employees beyond control group who will direct company’s actions in response to legal advice (natural that mid and lower-level employees would have relevant info needed by corp. counsel if he is to adequately advice clients)
2. Defining atty-client privilege very narrowly for corporations w/ consequence of law enforcement to have huge powers to get at info w/o going through normal discovery)
vi. Other extreme – if everyone speaks for company, you are hampering law enforcement to an enormous degree and giving corporation enormous ability to hide facts by funneling them through corporate counsel AND Upjohn test is unpredictable

Front 178

what was the holding of samaritan foundation regarding emplloyee privilege?

Back 178

1. P wants discovery Re: statements made by employees to corporate counsel regarding a surgery that went wrong.
2. Discussio/rule
a. All communication made in confidence in which the communicating employee is directly seeking legal advice is privilege.
b. What happens if the communication is not initiated by the employee, but another person in the company?
i. It may be protected
ii. We have to look at
1. The relationship between the communicator and
2. The incident giving rise to the legal matter
a. The nature of the communication and its context.
c. Rejects broad interpretation of subject matter test. imposes an extra requirement
i. We require that the employee’s communication related to the employees own activities that are within the scope of his or her employment and are being attributed to the corporation.
3. Application
a. The statements were not gathered to assist Samaritan in assessing or responding to the legal consequences of the speaker’s conduct, but the consequences for the corporation of the physician’s conduct.


This case was overruled, but still remains good law in criminal cases.

Front 179

Is there a Government Attorney Client privilege?

Back 179

i. Case law suggest that the government, as an entity client, enjoys the same protection for conversation between its lawyer and its agents as Upjohn bestowed upon corporations.

However, no government attorney client privlege cold be asserted to avoid a federal prosecutor's grand jury subpeona.

Front 180

list the exceptions to the attorney client privilege

Back 180

1. self defense and legal claims
2. collection of fees
3. waiver
4. to comply with other law
5. the crime-fraud exception
6 future crimes or frauds
7. noisy withdrawal
8, identity and fees
9. public policy
10. is there a professional reltionship?

Front 181

what steps should you take before disclosing confidential information that is an exception to the privilege?

Back 181

1. First to consult with the client
2. Then disclose unilaterally only if client refuses to give informed consent

Front 182

when can you disclose confidential info for self-defense?

Back 182

2. The Rules have broader language. A lawyer “may reveal confidential information . . . to the extent the lawyer reasonably believes necessary to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer’s representation of the client. Rule1 .6(b)(5). Comment 10 of this rule maintains that the exception does not require the lawyer to await the commencement of action or proceeding that charges complicity (in client wrongdoing) so that the defense may be established by responding directly to a third party who has made such an assertion.
a. In both rules, the exception is circumscribed by a rule of reasonable necessity.

a. Narrow view: can only use it when actually indicted;
b. Broad view: can use it at mere threat only need a good faith claim that you are about to be punished

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how can a lawyer disclose confidential information through a client waiver?

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may be explicit or implicit – will be implied when the client puts the confidential communication at issue in a litigation; may also waive by revelation of all or part of a confidential communication
1. NOT waived for communication between lawyer or client if purpose is to enable lawyer to render professional legal services

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what is the crime-fraud exception to A-C privilege?

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communications not privileged when client has consulted lawyer in order to further a crime or fraud, regardless of whether crime or fraud is accomplished and even though lawyer is unaware of client’s objective and does nothing to advance it
1. Lesser burden of proof to invoke exception: prudent person has a reasonable basis to suspect perpetration or attempted perpetration of a crime or fraud, and that communications were in furtherance thereof
2. Before engaging in camera review to determine applicability of exception, judge should require a showing of factual basis adequate to support a good faith belief by a reasonable person
3. Certain death or substantial bodily harm
4. Only criminal acts that result in violent crimes
5. No exception for revealing past acts
6. Not just for prosecutors to invoke  parties in civil litigation may seek to discover communications otherwise protected by A-C privilege if they can show that adversary’s purpose in obtaining legal assistance was to commit a crime or fraud

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what is the "compliance with the law" exception to AC privilege?

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MRPC 1.6 states that if a lawyer is required to provide information to comply with a court order or other law, she is permitted to do so

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what is the future crimes or fraud exception to AC privilege?

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1.6 permits lawyers to reveal confidences to prevent death or substantially bodily harm, whoever the actor and even if no crime is involved.
1. 1.6(b)(3) permits lawyer to reveal confidential info to prevent, mitigate or rectify financial injury that is reasonably certain to result or has resulted from a client’s crime or fraud in furtherance of which the client has used the lawyer’s services → creates exception from rule of concluded conduct
2. Lawyer may disclose information only to the extent the lawyer believes is reasonably necessary to accomplish the objective of the disclosure

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what is noisy withdrawal?

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1. The idea is that when a lawyer must withdraw from representing a client, because of a criminal or fraudulent behavior, the lawyer may be allowed or even required to alert others that she also retracts any document or opinion the client may still be using for illegal purpose.

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When will public policy require disclosure of privileged informaiton?

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privilege may be pierced upon a showing of need, relevance and materiality, and the fact that the info could not be secured from any less intrusive source

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Agency: duties imposed by agency

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i. Rule 1.3
1. A lawyer shall act with reasonable diligence and promptness in representing a client.
ii. Rule 1.4: communication
1. (a) A lawyer shall:
a. (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
b. (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
c. (3) keep the client reasonably informed about the status of the matter;
d. (4) promptly comply with reasonable requests for information; and
e. (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
2. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

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What did Taylor v. Illinois hold about agency?

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1. Facts: attorney to gain tactical advantage, failed to reveal ID of witness. As a result, the court did not let person testify
2. Is the client bound by this decision?
a. Client must accept the consequences of the lawyer’s decision to forgo cross-examination, to decide not to put certain witnesses on the stand, or to decide not to disclose the identity of certain witnesses in advance of trial.

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What was the holding in S.E.C. v.McNulty regarding imputation of a lawyer’s neglect to his client?

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Client contends that the district court erred in imputing his attorney’s neglect to him in failing to resolve doubts as to the merits of his defenses in his favor prior to a default judgment.
The court may find a default to have been willful where the conduct of counsel or litigant was egregious and was not satisfactorily explained. The conduct of an attorney imputed to his client for allowing a partying to evade the consequences of the acts or omissions of his freely selected agent would be wholly inconsistent with our system of representation in which each party is deemed bout by the acts of his lawyer-agent.

Here, client made no showing of diligence that would relieve him of the default judgment. He had not discussed the case with his attorney for at least 1 year. No basis to overturn willful default of lawyer should be imputed to client.

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explain when a lawyer can bind the client?

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1. By hiring counsel, a client necessarily delegates authority to speak and act on a range of issues reasonably within the scope of the retainer. If the attorney acts improperly or negligently, the client may still be bound, but he may be able to sue the lawyer for damages
2. Problems arise if the client wants to disavow a settlement after her lawyer has accepted one. Rule 1.2 and case law give the client the unqualified right to decide whether to settle a civil matter or enter a plea in a criminal matter.
3. If the lawyer has actual authority to settle, there will be no problem. A few courts recognize inherent powers to settle in certain circumstances
4. A lawyer’s authority can also bind the government

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what are vicarious admissions?

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5. A lawyer’s statements may be the vicarious admissions of a client. A lawyer, as an agent, is subject to the vicarious admission of the rules of the law of evidence.
6. Vicarious admission may be used against the client, but they don’t bind the client. The client may try to disown them or even introduce contrary proof. However, some statements a lawyer makes in court can indeed bind the client. These are called judicial admissions and they occur when the statements are made in a case then on trial in open court or in pleadings or other papers that have not been superseded.

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In a criminal case, what happens if an attorney fails t raise the defendant's constitutional rights in compliance with valid state procedures?

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It will generally prevent the defendant from asserting those rights collaterly in federal court unless she can prove actual innocence. If, however, the error is so serious a to amount to ineffective counsel, the client will not be bound.

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What is the difference between agency law and an attorney's confidentiality duties in agency law

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An agent's duty of confidentiality extends to all informaion concerning principal even when it is not otherwise connected with the subject matter of the agency relationship

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What are a lawyer's fiduciary duties?

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i. A lawyer has a fiduciary relationship with his client. Lawyers must place their client’s interest above their own in the area of representation and must treat their clients fairly.
ii. The fiduciary duty is said to arise after the formation of the attorney client relationship

said to be among the highest of fiduciary duties

breaches include borrowing money with unsecured promissory notes, and going into secret competition with a client

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What are the duties of loyalty and diligence?

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i. The duty of loyalty requires the lawyer to pursue, and to be free to pursue, the client’s objective unfettered by conflicting responsibilities of interest.
ii. Loyalty survives the termination of the attorney-client relationship and prevents a lawyer from acting adversely to a former client in matters substantially related to the former representation. The requirement of diligence imposes on the lawyer an obligation to pursue the client’s interst without undue delay.
iii. Rule 1.3: a lawyer must act with commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf.
iv. The obligation of diligence appears in both the code and the rules. The codes says that a lawyer shall not neglect a legal matter entrusted to him DR 6-101 a 3. It also says that a lawyer shall no intentionally fail to carry out a contract of employment entered into with a client for professional services. DR 7-101 A 2 and that a lawyer shall not intentionally prejudice or damage his client during the course of the professional relationship. DR 7-101 a 3. The rules say simply that a lawyer shall act with reasonable diligence and promptness in representing a client.

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What was the holding of Nichols v. Keller regarding the duty to inform and advise?

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1. Lawyer did not tell client that he could have extra claims, client found out after statute of limitations had elapsed.
2. Issue: can the lawyer be liable for failure to advise?
3. Rule: the attorney need not advise and caution of every possible alternative, but only of those that may result in adverse consequences if not considered.
a. There is a duty to alert the client to legal problems which are reasonably apparent, even though they fall outside the scope of the rentention.

Between the attorney and a layperson, the attorney is more qualified to recognize and analyze the client's needs

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what does your client have a right to know?

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i. Some courts have acknowledge that a lawyer has a duty to communicate settlement offers to a client, that failure to do so is malpractice, and that expert testimony was not necessary to establish the lawyer’s negligence.
ii. In criminal cases, lawyers may have duty to inform client of plea bargains. Failure to do so may justify post conviction relief. Client need not prove the trial court would have accepted the plea arrangement.
iii. Rule 1.2 and 1.4 recognize that clients have an interest in participating in questions of strategy too, and many even have an interest in knowing what the lawyer intends to do. Good lawyers, conscious of maintaining positive client relationships, will respond to these interests without being asked.
iv. Conflicts of interest rule also require the lawyer to inform the client.

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MRPC Rule 1.2 – Scope of Representation

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1. A lawyer shall abide by client’s decisions concerning objectives of representation. Lawyer shall abide by client’s decision to settle. In a criminal case, the lawyer shall abide by client’s decision, after consultation w/ the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

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What is the ends/means distinction in autonomy of attorneys and clients?

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iv. Ends / Means distinction
1. Clients control “ends” – civil settlements, guilty plea, whether client will testify, whether client will plead 5th, whether to stipulate to facts or law, whether to forgo or pursue appeal – Rule 1.2
2. Atty controls “means” – strategy, procedure, etc

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What was the holding in Jones v. Barnes regarding autonomy?

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1. Issue: whether defense counsel assigned to prosecute an appeal from a criminal conviction has a constitutional duty to raise every non-frivolous issue requested by the D.
2. Rule: no case law suggests that indigent defendant has a constitutional right to compel appointment of counsel to press no frivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points.
a. While recognizing that an appellate lawyer need no raise every issue appearing in the record, and that in fact it could be bad lawyering to do so, the court held that the client is and always remains the master of his cause.

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vi. MRPC Rule 3.3 (a)(3) autonomy of evidence

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1. Permits a lawyer to decline to offer evidence that lawyer reasonably believes is false

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What was the holding of olfe v. gordon regarding client autonomy?

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1. O hired G to handle sale of property; G only to take first mortgage. G negotiated contract for second mortgage and misled O.
2. Violation of lawyer’s fiduciary duty to fail to follow the explicit instructions of a client
3. G liable for damages caused by negligent disregard for instructions
4. Expert testimony not needed to show atty violated duty


1. It has generally been held that an attorney may be liable for all losses caused by his failure to follow with reasonable promptness and care the explicit instructions of the client. Moreover, an attorney’s honest belief that the instructions were not in the best interest of his clients provides no defense to a suit for malpractice.

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What happens if you fail to follow a client's instructions?

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iii. Refusal to follow direct client instruction becomes grounds for malpractice even without the client having to prove causation. Need not put on an expert. Seems like is a default rule that failure to follow client instruction falls below the standard of care

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What happens when you focus on some claims, even when the client wants to bring all the claims?

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the attorney might have the autonomy to bring the claims that he wants. However, the client retains right to fire attorney.

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will an attorney be liable to his client for giving their judgment on an unsettled point of law?

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1. Doctrine of judgmental immunity holds that a lawyer’s judgment or recommendation on an unsettled point of law is immune from suit even if it turns out to be wrong, so long as it is reasonable

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What is the autonomy of a client with diminished capacity?

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1. Declaration of incompetency doesn’t deprive a developmentally-disabled person of right to make all decisions
2. Primary duty of atty is to protect person’s rights, including right to make decisions on specific matters.
3. On perceiving a conflict between person’s preferences and best interests, atty may inform court of possible need for a guardian ad litem

The attorney's role is not to determine whether the client is competent to make a decision but to advocate the decision that the client makes. That role does not extend to advocating decisions that are patently absurd or pose an undue risk of harm to the client.

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termination by client

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1. Indigent criminal D.s may not fire lawyers who have been appointed to represent them, although they may ask court to assign them a new lawyer or choose to rep themselves
2. Client still liable to lawyer for fees earned up to time of termination (depends on whether termination for cause or not); amount of liability depends on reason for termination, contract between parties, and whether lawyer was working on contingency basis
3. When relationship ends, client presumptively entitled to lawyer’s entire file on represented matter although there are limits under certain circumstances
4. Although a client may fire a retained lawyer for any reason, at any time, a client may be limited in its right to fire an in-house lawyer, and may not be allowed to fire them close to or during trial because of interests in not delaying trial
5. laws that protect employees against discrimination or retaliatory discharge may also protect employed lawyers

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MRPC Rule 1.16 terminating the relationship

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

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termination by lawyer

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1. Right to terminate circumscribed by 1.16
2. Permissive withdrawal for personal reasons
3. Lawyer may threaten to get out of representation
4. Lawyer can withdraw for reasons cited even if withdrawal will have a material adverse effect on interests of client
5. If client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent or an action the lawyer considers repugnant or with which the lawyer has a fundamental disagreement
6. Discovers that client has used lawyer’s services to perpetrate a crime or fraud
7. leaving a client without good reason can be characterized as abandonment which has disloyalty consequences

withdrawing may require the court's agreement which might require a breach of confidentiality - should include client confidences in a sealed document submitted in camera

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Termination by drift

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1. Courts recognize an “episodic client” – attorney who has done work for a client two or three times a year for past few years, creating a reasonable client expectation that professional relationship will continue during intervals
2. Lawyer should take affirmative steps to confirm the professional relationship has ended, such as writing a letter to the client and returning any materials that the client is entitled to possess
3. Test: Looks at frequency client has called on firm and over what period of time

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i. Rule 4.2 forbids a lawyer to communicate with another lawyer’s client under several circumstances

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1. In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
2. When does the prohibition apply:
a. Representation required
i. A lawyer that no acting in a representative capacity is no tforeclosed by this rule from talking to another lawyer’s clent about the matter on which the other lawyer is representing the client.
b. Knowledge
i. The communicating lawyer must know that the person with whom she is communicating is represented by another lawyer on the subject of the communication.
ii. comment 8, rule 4.2 warns that knowledge may be inferred from the circumstances and that a lawyer cannot evade the requirement . . . by closing eyes to the obvious.
1. Therefore, actual knowledge is not required
c. Subject
i. The communicating lawyer is only forbidden to communicate about the subject of the other lawyer’s representation. She may communicate about anything else.
d. Waiver
i. Several courts have held that a represented client may not waive the protections of this rule without counsel consent.
ii. State v. Miller: states that the right belongs to the party’s attorney, not the party, and the party cannot waive the application of the no-contract rule.
e. Communication
i. Forbidden is communication
ii. Videotaping employees of an opposing company going about their activities in what those employees bleive is the normal course is allowed.
f. Third party
i. A violation occus if the lawyer engages in the forbidden communication through third party, such as an investigator or even the lawyer’s own client. Rule 8.4 and DR 1-102(A)(2)
3. Policy: what does the rule protect
a. Use of coercion and taking advantage of clients.

clients are free to talk to each other

members of uncertified class are not represented by counsel

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4.3 : dealing with UNREPRESENTED people

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1. In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

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what was the holding of niesig v. team I regarding communication with a client's employees?

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1. Issue: are the employees of a corporate party also considered parties under the rule which prohibits a lawyer from communicating directly with a party known to have counsel in the matter?
2. Rule
a. The Rule applies to current employees, not to former employees
b. The test that balances the competing interests and incorporates the most desirable elements of the other approaches, s one that defines “party” to include corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation (in effect, the corporation’s alter egos) or imputed to the corporation for the purpose of its liability, or employees implementing the advice of counsel. All other employees may be interviewed informally.
3. Court rejects
a. Upjohn test
i. The privilege only protects communication, not any underlying facts. Second, the attorney client privilege serves the societal benefit not present in denying informal access to factual information. Thus, a corporate employee who may be a “client” for purposes of the attorney-client privilege is not necessarily a party for purpose of the rule.
b. Blanket Rule
i. A ban of this nature exacts a high price in term of other values, and is unnecessary to achieve the objectives of the rule
c. Control Group
i. Wholly overlooks the fact that corporate employees other than senior management also can bind the corporation. A narrower definition of party better serves the policy of promoting open access to relevant information.
c. Other case law on the matter
i. Some authorities prohibit communication on any subject within a current emplyee’s scope of employment. (10th circuit case.)

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in ciminal cases can defense attorney contact the victim?

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In criminal cases, the victim is not the party; neither are prosecutor’s witnesses

1. Prosecutor may engage in otherwise forbidden ex parte contacts if the lawyer is authorized by law to do so

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i. Rifkind’s view of adversary process

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1. Lawyer can urge positions that he is less than certain b/c he is not final arbiter; final judgment emerges out of context  lawyer is relieved of need/right to be his client’s judge and thereby frees him to be more effective advocate
2. Adversary process is a form of organized and institutionalized confrontation
3. Good for liberty, good for peaceful progress….
4. Believes that lawyer should be case-orientated
5. Ascertainment of truth not the target of the trial BUT the resolution of a controversy by the principled application of the rules of the game
6. Rules change as perception of justice evolves
7. Evidence that trial is not about ascertainment of truth? Exclusions of testimony not based on suspect quality of the info

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ii. Frankel’s Partisan Justice

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1. Believes that adversary system places too low of value on truth
2. Lawyers spend much time subverting the law by blocking the way to the truth
3. Lawsuits are like battles  the cunning and eloquence of the lawyer is very important and the person who is “right” doesn’t always win

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iii. MRPC Rule 4.1 – Truthfulness in Statements with Others

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1. In the course of representing a client a lawyer shall not knowingly:
a. Make a false statement of material fact or law to a third person
b. Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

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nix v. whiteside

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1. Lawyer refused to help client present perjured testimony. D. wished to testify falsely that he had seen victim holding a gun; atty advised against such testimony and D was convicted after testifying truthfully. Appealed on ineffective assistance of counsel grounds.
2. Issue – whether 6th Amendment right to assistance of counsel is violated when atty refuses to cooperate with D in presenting perjured testimony
3. The case stands for the proposition that the lawyer does not provide ineffective assistance of counsel by refusing to help the client commit perjury.
a. Holding – counsel’s conduct cannot establish prejudice required for relief
4. D. was required to show
a. Serious attorney error
b. Prejudice – lapses in performance rendered trial unfair so as to undermine confidence in trial’s outcome
5. The Court says your first duty:
a. It’s to try to convince him not to (Rule 2.1 Conversation).
b. If the client still decides to go forward with the perjury, you have a 3.3 conversation – you have a duty of candor to the court.
c. In a criminal case, if the defendant insists on testifying, you can allow him to present testimony in “narrative form” with no participation by the lawyer . . . If you know it’s false, you must take subsequent remedial measures under 3.3

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nix v. whiteside

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1. Lawyer refused to help client present perjured testimony. D. wished to testify falsely that he had seen victim holding a gun; atty advised against such testimony and D was convicted after testifying truthfully. Appealed on ineffective assistance of counsel grounds.
2. Issue – whether 6th Amendment right to assistance of counsel is violated when atty refuses to cooperate with D in presenting perjured testimony
3. The case stands for the proposition that the lawyer does not provide ineffective assistance of counsel by refusing to help the client commit perjury.
a. Holding – counsel’s conduct cannot establish prejudice required for relief
4. D. was required to show
a. Serious attorney error
b. Prejudice – lapses in performance rendered trial unfair so as to undermine confidence in trial’s outcome
5. The Court says your first duty:
a. It’s to try to convince him not to (Rule 2.1 Conversation).
b. If the client still decides to go forward with the perjury, you have a 3.3 conversation – you have a duty of candor to the court.
c. In a criminal case, if the defendant insists on testifying, you can allow him to present testimony in “narrative form” with no participation by the lawyer . . . If you know it’s false, you must take subsequent remedial measures under 3.3

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v. Different possible solutions when atty suspects client will perjure himself on stand:

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1. Full cooperation w/ D’s testimony even when D intends to commit perjury (subornation of perjury – bad)
2. Persuading the client not to commit perjury – ideal solution when it succeeds; but does not tell a lawyer what to do if client refuses
3. Withdrawal from representation – protects atty’s interest but court may deny motion to withdraw. Even if lawyer withdraws, client might still commit perjury
4. Disclosure to the court – criticized because it compromises atty’s ethical duty to keep client communications confidential. Also bad because there’s a chance that D will change mind and testify truthfully and could result in a mini-trial on perjury issue
5. Refusing to permit D. to testify – criticized because it substitutes defense counsel for jury as judge of witness credibility. Might end up w/ atty testifying against D. Results in complete denial of D’s right to testify
6. Narrative approach – counsel would stand mute when D. undertook to present false testimony unaided by direct examination. Would signal to judge that atty believed testimony was false.

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i. MRCP Rule 3.1 – Meritorious Claims and Contentions

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1. A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that isn’t frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the D. in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

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ii. FRCP Rule 11

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1. Prohibits filing any paper – complaint, answer, motion, but not discovery request or response (governed by FRCP 26) – without a good faith basis to believe that the factual and legal claims it contains are well-grounded
2. Standard – what is reasonable is determined by what a similarly situated lawyer would have done under the circumstances
3. Still have the safe harbor provision
4. Pleading isn’t considered frivolous if the contention is likely to gain evidentiary support after a reasonable period for further investigation

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i. Ethics, Lies and FRCP Rule 26

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i. A party who has made a disclosure under Rule 26(a) must supplement or correct it with info thereafter acquired if party learns that in some material respect info disclosed is incomplete or incorrect and if the additional or corrective info had not otherwise been made known

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j. MRCP Rule 3.4(d) – Fairness to Opposing Party and Counsel

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i. A lawyer shall not in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party

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i. MRPC Rule 3.3 – Candor Toward the Tribunal

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1. (a) A lawyer shall not knowingly:
a. Make a false statement of material fact or law to a tribunal
b. Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by client
c. Fail to disclose to tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel
d. Offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures
2. Duties stated in (a) continue to conclusion of proceeding and apply even if compliance requires disclosure of info protected under 1.6
3. Lawyer may refuse to offer evidence that lawyer reasonably believes is false
4. In an ex parte proceeding, a lawyer shall inform tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision

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ii. Duty – adverse legal authority

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1. Don’t have to highlight promising legal theories to opposing counsel
2. If opponent fails to cite legal authority in the controlling jurisdiction for a position that would be directly adverse to your case, you have a duty to disclose it to the court.
3. Includes not only case law, but also statutes and regulations not disclosed by opposing counsel.

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what should a lawyer do if he learns, through a confidential communication, that a client has committed or is in the process of committing a fraud on the court, himself or through others?

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i. The fraud may come in the form of false documents that the lawyer has unwittingly introduced in evidence. Or it may come via client perjury of a witness for the client, who lies with or without the client’s connivance.
ii. The specter of perjurious criminal defendant requires us to address not only the ethical issue, but also the Sixth Amendment right to the effective assistance of counsel

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a. Matter of Thonert

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i. Facts: attorney presents to client the case Snowe. In that case, the court decided that solely displaying a videotape advising the accused of his rights is not sufficient to prove that the accused knew his rights. Now, we seeks to withdraw the client/accused guilty plea alleging that his client had a right to withdraw the plea because, due to the absence of counsel at the time he entered it and the fact that the record did not reflect that the trial court properly examined the client as to waiver of his rights, the client had not made it knowingly, intelligently and voluntarily. However, in making his argument, the attorney failed to cite Fletcher (he had actual knowledge of this case). The ruling of Fletcher was adverse to the arguments that the respondent offered. The attorney also failed to advise his client of that case and of the consequences it might have on his case.
ii. Issue: did the attorney by failing to disclose Fletcher violate his ethical duty?
iii. Rule: Rule 1.4 – this rule provides that a lawyer shall explain a mater to the extent reasonably necessary to permit a client to make informed decisions regarding representation.
iv. Application: by failing to advise his client of a ruling in the controlling jurisdiction that was adverse to the legal arguments contemplated for his client’s case on appeal, and instead choosing only to advise the client of an earlier appellate decision favorable to his position, the respondent effectively divested his client of the opportunity to assess intelligently the legal environment in which his case would be argued and to make informed decisions regarding whether to go forward with it. Accordingly, we find that the respondent violated rule 1.4(b)

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A has sued B for trademark infringement. B hires lawyer X to represent him. X realizes he needs co-counsel and calls his friend at another firm lawyer Y to discuss the general terms of the case saying he expects to use the usual affirmative defenses. Y asks for more information about the company and says that she can’t commit until she does a conflict check. Y later informs X that her firm represents A and she cannot help him. B files a motion to disqualify Y’s firm from representing A. result?

Back 231

Motion denied. Unlike Togstad, where the client had a reasonable expectation to believe that she did not have a case, when the attorney really meant he did not have interest in her case, X could not reasonably believed that Y was providing legal services during the preliminary consultation. He is sophisticated enough to know that a lawyer cannot commit to representing a prospective client before ensuring that she is not already representing an adverse party. There was no justified expectation that Y was providing legal services to B and the client cannot claim that it has a protectable interest in the information its lawyer shared.

Front 232

Attorney X has a website that invites clients to message him for a consultation and that he would be happy to discuss the case and possibly represent you. Client A emails him about a custody issue with his child. He has taken the child to Canada and is worried he might be violating the law. A few days later, the attorney messages him back stating “I am unable to represent you at the present time. Best of luck.” A month later, A’s wife retains attorney X to represent her in the child custody matter. Corbin files a motion to disqualify on the grounds that attorney X had previously represented him. Result?

Back 232

Clearly lawyer X declined to take A's case.

A might argue that the website was an invitation to discuss the case. However, lawyer X did not Respond with any sort of advice. The only argument that A can make is that the lawyer did not decline representation immediately. But the mere delay does not give A a reasonable basis for the belief that X was his lawyer.
However, A is a prospective client because he discussed the possibility of forming an attorney-client relationship. Thus, the lawyer must not reveal any information learned from him. X will not be allowed to represent an adverse party without the consent of both parties.

Front 233

A company hires a law firm to do an investigation into the accounting practices. The law firm agrees, but with limitations. They offer to do a "preliminary investigation" without reviewing all details from the ground up. They only want to look at certain relevant information. Can they do this?

Back 233

Rule 1.2 allows a lawyer to limit representation but only if it is reasonable under the circumstances. By calling an investigation preliminary, it does not excuse them from doing it properly. The lawyer must conduct it in such a way that it will reasonably discover misconduct.

Front 234

P is employed as a line cook at a restaurant owned by a partnership of Q and R. He was injured when a grease fire flared up. He alleged the owners knew of a problem with the ventalation system and failed to correct it. You represent P in his lawsuit. Q's daughter plays on the soccer team you coach on your spare time. Are you allowed to approach him and say "hey how is your restaurant doing?"

Back 234

As a general partner, Q is authorized to settle the lawsuit on behalf of the restaurant. Thus, if he is represented by counsel the no-contact rule applies. If you have no knowledge of representation, the rule would not apply.

Front 235

C works for Spur corporation and is involved in an auto accident while on the job. The lawyer for the other attorney wants to interview:

1. C
2. Rose, who is regional director of sales and C's immediate supervisor
3. a mechanic at Spur who recently worked on C's brakes
4. an HR rep at Spur who recently did a background check of C and discovered many speeding tickets
5. a friend of C and employee in the same level at Spur
6. CEO of spur

Back 235

Under the restatement and model rules, the driver could not contact the CEO under the no-contact rule because he has authority to settle the case.

Under the restatement, the driver cannot speak to employees whose acts or ommissions may be imputed to the company for the purposes of liability. This includes C, parker, and the HR rep.

The driver can talk to the friend under these standards although some courts prohibit contact with all employees.

Also, new jersey applies a control group test which allows communication with all employees except those responsible for detrmining the organization's legal position. This would include the CEO.

Front 236

A group of 17 homeowners band together and hire a lawyer to sue a nearby dump for nuisance. Who does the lawyer represent?

Back 236

The more formal the association, the longer its duration, and the more elaborately defined its purposes, the more likely it is that the group will be regarded as an entity that is distinct from its individual constituents. Extremely informal partnerships and joint ventures may therefore be treated as aggregations of individuals rather than entities.

Front 237

Lawyer represents a three person general partnership. The managing partner is X and he hired another partner Y to operate the partnership's apartment building on a daily basis. X then decides he wants to terminate Y as permitted by their employment contract. However, X tells you not to inform Y of his impending dismissal until after he assumes personal liability of the refinancing of he mortgage on the building. What should you do?

Back 237

A lawyer has no duty to protect partner Y against the fiduciary breach of partner X, UNLESS X breaches a duty owed to the organization. If the organization will be sued by Y and suffer financial loss as a result of X's instructions, the lawyer must not follow those instructions.


This is the majority view. some jurisdictions differ and hold that you cannot assist in a breach of duty even where it does not harm the organiztion

Front 238

how do you analyze an issue pertaining to the lawyer's competence?

Back 238

if it is professional discipline, analyze under rules 1.1 and 1.3

If the client not the state is the disciplinary authority, analyze in terms of tort law (negligence) and agency law (fiduciary duty)

Front 239

client auditor calls his corporate lawyer asking if he should continue representing a particular accounting firm. Lawyer immediately responds "yes you can." Turns out that new legislation was passed requiring accounting firms to only retain the same auditor for 5 years. If client sues lawyer for malpractice, what result?

Back 239

A corporate lawyer is expected to know recent developments in the law. If he did not have the information handy he is required to do some research.

There will be exceptions in emergency situations where the client cant wait for a thoroughly researched answer. Alternatively, a client may not want to spend a lot of money on the research - there are some cases where doing limited research is reasonable, for example when the client spends $500 for an answer that the lawyer is 90% sure is correct vs. $5,000 for an answer that he is 98% sure is correct.

In this case, there was no emergency and client did not ask for the least expensive opinion. Without full disclosure of the risks and benefits of limited research, the client could not provide informed consent.

Front 240

Client hires a real estate lawyer to help him secure the necessary permits to build a condominium on a beach in miami. Although the lawyer was experienced in real estate, he had never worked on a beachfront project and neglected to secure a permit from the coastal commission which regulates beachfront property to protect coastal environment. As soon as client started building, the coastal commission obtained an injunction and barred him from seeking a license to build. He had to sell the property at a loss.

Can client recover his expected profits in a malpractice action against lawyer?

Back 240

DUTY/BREACH - even if client fails to raise the argument that lawyer should be held to a higher standard as an experienced real estate lawyer, the lawyer's failure to discover the permit would be a breach of duty of care regardless. he had a duty to exercise the competence and diligence normally exercised by lawyers in similar circumstances - that would include reseraching applicable statutes and regulations

CAUSATION - client has to prove a case within a case. must establish that the condo would have otherwise been approved and would have made $X in profits if built. This requires expert testimony from economists or marketing specialists. in addition he may recover fees paid to negligent lawyer and the fees paid to the new lawyer that were made necessary by 1st lawyer's negligence.

Front 241

Lawyer represents client real estate developer. Client finds a buyer interested in building a daycare center on a parcel of land client is selling. Client asks lawyer if the land is suitable for such daycare center. Lawyer does some research and delivers a letter stating that all legal requirements are met. Unfortunately lawyer did not notice a provision of a certain code requiring that the land pass percolation tests designed to show whether soil would permit a septic system. After the sale closed, can buyer recover from attorney?

What if report was given to seller and not buyer directly but seller subsequently gave to buyer?

Back 241

DUTY - it is clear that lawyer invited buyer to rely on his opinion. there is no reason to prepare an opinion letter except to induce the reliance of a third party on the representations it contains. buyer required the letter as a condition of purchasing the land. clearly a duty

BREACH - a reasonable professional handling a commercial real estate closing would be expected to know all applicable legal requirements that might pertain to a buyer's contemplated use of land.

CAUSATION - connection between breach of duty and harm because buyer would not have bought property if it were not suitable for day care center.

DAMAGES - measured by the difference between the purchase price of the land and its fair market value (expectation damages not recoverable under negligent misrepresentation theory)


it arguably was forseeable that he would give it to prospective purchasers.

Front 242

X was convicted of felony murder for his role in a convenience store robbery. His lawyer began dozing off at several points during a 6 day trial. The states case against X was strong because they had his confession and eyewitnesses. He was convicted and lost on appeal. He claims ineffective assistance of counsel. Should petition be granted?

Back 242

It is true that counsel has a wide latitude to make tactical decisions, but falling asleep during trial is not a tactic - it is an error.

However, X still has to establish prejudice. The evidence agaisnt him was so overwhelming that there was little the state had to prove to convict him. Thus, even though the lawyer's conduct was an unprofessional error, it was not prejudicial.

5th circuit held that if lawyer slept through a substantial portion of the case, prejudice would be presumed.

Front 243

Under the rules, what is the difference between confidences and secrets?

Back 243

confidences = matters protected by attorney-client privilege

secrets = information subject to the professional duty of confidentiality

Front 244

Is the following protected by attorney client privilege, professional duty of confidentiality, work-product doctrine, or a combination of two or more of these:

interviews with a third party fact witness who observed an accident involving your client. interview takes place after a lawsuit was filed against your client.

Back 244

WPD & PDC

Front 245

Is the following protected by attorney client privilege, professional duty of confidentiality, work-product doctrine, or a combination of two or more of these:

Your recollection of a client's discussion with you of the business opportunities presented by a proposed merger with a competitor.

Back 245

PDC.

This conversation, though a communication from a lawyer to a client, is probably not covered by ACP because it is not a communication for the purpose of obtaining legal advice. some courts apply the privilege to mixed legal/business advice where the lawyer is an employee of a corporate client and essentially "wears two hats" as a legal and business advisor. other courts take a strict approach and apply ACP only to "pure" legal advice.

Front 246

Is the following protected by attorney client privilege, professional duty of confidentiality, work-product doctrine, or a combination of two or more of these:

information about your client's demeanor - whether he appeared nervous when talking to you - sought by a prosecutor to establish that your client intended to flee the jurisdiction at the time he spoke with you

Back 246

PDC

This falls outside of ACP because it is not a "communication" from client to lawyer. It is still within PDC because it is information related to the representation.

Front 247

Is the following protected by attorney client privilege, professional duty of confidentiality, work-product doctrine, or a combination of two or more of these:

information pertaining to the guilt or innocence of a potential client who did not choose to retain you as counsel but confessed his role in an armed robbery the previous day

Back 247

ACP & PDC

this communication is covered by ACP even though no formal attorney client relationship resulted as long as the would-be client disclosed confidential information to you with the expectation that you would keep it confidential and the disclosure was for the purpose of potentially obtaining legal assistance.

Front 248

Is the following protected by attorney client privilege, professional duty of confidentiality, work-product doctrine, or a combination of two or more of these:

your client's intention to file for divorce from his wife. you represent the client only on business matters and will not be handling the divorce. assume your client is a public figure and the news of the divorce has been accurately reported.

Back 248

not protected by ACP because communication was not made for the purpose of securing legal advise

is it a PDC? 1.6 applies to all information related to the representation of the client. one could argue the infomration is not related to the representation on business matters. However, courts tend to interpret PDC broadly and indicate that personal information that the client evidently would not wish disclosed is covered.

Another issue is whether the PDC still applies if information is publicly available. 1.6 doesn't provide an express exception for this. some courts may find that PDC doesn't apply to info publicly available but a lawyer should avoid disclosing it to be careful

Front 249

Is the following protected by attorney client privilege, professional duty of confidentiality, work-product doctrine, or a combination of two or more of these:

your client's statement that it intends to make a tender offer for X corporation made in connection with a discussion of whether necessary to disclose information in a filing with the SEC. you would like to buy stock in X before the tender offer is announced.

Back 249

ACP if adversary in litigation subsequently tries to discover what was said concerning the tender offer

PDC only if no request for information

NOTE - PDC also covers USE of confidential client information gained in the course of represetnation to the disadvantage of the client

Front 250

explain the differences between the source, scope, duration, who controls, effect, and remedy for breach of:

attorney client privilege, PDC and WPD

Back 250

see p 151 of examples and explanations

Front 251

Is a memo from a CFO to in-house counsel with a copy to an outside accounting firm, discussing plans for acquisition of a competing company and requesting advice protected by ACP?

Back 251

If the accounting firm had been hired by the lawyer and directed to provide an analysis of the acquisition to enable the lawyer to evaluate the transaction, the memo to the firm would not destroy privilege.

If the firm had been hired by the client for the purpose of providing general accounting services, sharing the memo might cause privilege to be lost because it is no longer "in confidence."

Pay attention to the purpose for which the outside firm was hired.

Front 252

Is copying a lawyer on the transmission of documetnts sufficient to create an attorney client privilege?

Back 252

not unless the communication is made for the purpose of obtaining legal advise.

Front 253

A client tells his lawyer the location of where he dumped toxic waste. The lawyer's investigator goes to the sight and observes the waste. The EPA is suing the client.
is the location of the site protected by ACP if the EPA asks the client? what if they ask the investigator?

Back 253

If the client divulges, under the greatest of secrecy, an incriminating fact to the lawyer, the client is not protected by ACP from answering the question truthfully about the fact in question (although in criminal cases they can plead the fifth)

as for the investigator, the fact that he is an agent of the lawyer who is necessary to enable the lawyer to carry out the representation of the client does not destroy privilege. In many instances the ACP protects the "fruits" of a confidential communication so that a lawyer or agent may not be compelled to testify to an observation that resulted from information contained within a confidential communication from the client.

Here, forcing the lawyer or investigator to reveal facts learned by observation would be tantamount to revealing the content of privileged communication because the only reason the lawyer knew about the waste is that the clienet revealed its location.

Front 254

A client places a gun on your desk. He is a suspect in a robbery and shooting. What do you do?

Back 254

taking property from a client is not receiving a communication so the ACP has no application to locking the stuff up in a safety deposit box.

A communicative act is also protected by ACP, A lawyer's observation would be protected to the same extent. but observations not related to the communicative act would be treated differently. For example, if the lawyer observed a tatoo.

Front 255

A client comes to you asking to amend his tax filings. You comply. It turns out the amendments he asked you to make were for the purpose of concealing that he was inflating the costs of goods sold so that his income appeared lower so that he could pay less income tax. The DA subpeonas you to testify about communications made between the client regarding this transaction. Protected by ACP?

Back 255

no. this is the crime-fraud exception. All that is relevant is the client's purpose, not the attorney's knowledge or intention with respect to the client's crime or fraud.

However, if the client came to you after being indicted for tax fraud, seeking assistance in defending him, any communications would be privileged.

Front 256

You are at lunch with other lawyers in the firm and you tell them how you are going to appeal the case next month when the judge is due for surgery so that you get a different judge. The opposing counsel is sitting at another table and overhears this and objects to the continuance. Your client loses his case. He finds out about your big mouth and wants to sue for breach of fiduciary duty. could you be subject to bar discipline?

Back 256

1.6 provides that lawyers in a firm may in the course of their firm's practice disclose to each other information relating to a client of the firm unless the client has instructed that particular information be confined to specified lawyers. But lawyers must be careful not to have these conversations outside the privacy of their own offices. Blabbing about the case in a restaurant or bar is unreasonable in view of the foreseeable risk of being overheard by someone who might take an interest in the conversation.

Front 257

in the course of working on your clients case you run into an issue on maritime law. your law school classmate is a maritime lawyer. can you call him up and disclose the facts of your clients case so that he can ascertain whether additional research or a specialist is required?

Back 257

A lawyer's use of a hypothetical to discuss the issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved. the safest course of action would be to obtain informed consent from the client first.

Front 258

your client accidently dumps toxic waste into a lake. you advise him to clean it up or notify the EPA but he refuses. This chemical is known to cause cancer if ingested and the place where it was dumped is a municipal water source. Can you disclose the dumping?

Back 258

A lawyer who knows that a client has accidently discharged toxic waste into a town's water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening disease or debilitating disease and the lawyer's disclosure is necessary to eliminate the threat or reduce the number of victims.

The harm must be "reasonably certain" to result.

Front 259

MRPC Rule 1.7 – Current Clients

Back 259

i. (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
1. Representation of one client will be directly adverse to another client; or
a. Co-D.s or co-P.s can have positions that are directly adverse
b. Even if there is direct adversity between clients, conflict may still be consentable
2. There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
a. Lawyer’s judgment can’t be tainted by the desire to please another client, make money in another deal, etc.
b. Rules apply to transactional work as well as litigation
ii. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
1. Lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
2. Representation is not prohibited by law;
3. Representation doesn’t involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; AND
4. Each affected client gives INFORMED CONSENT, confirmed in writing.
iii. Comments
1. 1.7(b)(3) prohibits representation of opposing parties in the same litigation even with the client’s consent
2. Simultaneous representation of parties whose interests in litigation may conflict, such as co-plaintiffs or codefendants is governed by (a)(2)
a. Conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question
3. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest
a. A conflict exists, however, if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case
b. Example: when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client
c. Factors relevant to determining whether to advise the client of the risk:
i. Where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long term interests of the clients involved and clients’ reasonable expectations in retaining the lawyer
ii. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.

Front 260

MRPC Rule 1.8 – Prohibited Transactions

Back 260

i. A lawyer shall not enter into a business transaction with a client or knowingly acquire a pecuniary interest adverse to a client unless
1. Transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed … in writing to the client
2. Client is given a reasonable opportunity to seek the advice of independent counsel, and
3. Client consents in writing
ii. Prior to the conclusion of the representation, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights based on info relating to the representation
iii. No financial assistance to clients except
1. May advance court costs and expenses of litigation, repayment of which is contingent
2. Lawyer representing indigent client may pay court costs and expenses of litigation
iv. A lawyer shall not accept compensation for representing a client from one other than the client unless
1. Client consents after consultation
2. No interference with lawyer’s independence of professional judgment or atty-client relationship, and
3. Info relating to representation is protected as required in 1.6
v. While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one them shall apply to all of them