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Professional Responsibility MurphyOxford 2002 1

I. General Relationship of Law, Lawyers, and Ethicsa. Legal ethics are not the morals of Plato; they are more binding than

the idea of law and more general than morals

b. Ethics rules are derived from deliberation about what a lawyer ought to do when given a certain situation, but their enforcement is generally less formal than that of law.

c. Ethics are a problem because we have legal duties to the court and the client, which may conflict

i. In England, there is a higher duty to the court than the client;1. They are not as adversarial as the US

ii. UK has a bifurcated legal system—barristers and solicitors1. Barristers—Highest level

a. Originally only ones allowed to advocatei. “Rights of Audience”

b. Wigs and robesc. Independentd. No direct contact with client, just other solicitorse. 1 : 10 :: barrister : solicitor

2. Solicitorsa. Less educationb. Originally did land transactions, etc while

barristers did courtc. Give clients who need court representation to

barristers, negotiate fees, etc, unlessi. “Solicitor advocate”

iii. UK—Parliament has power over judiciary, including sanctions, etc

iv. US—State Supreme courts have inherent authority to regulate state lawyers

1. May delegate power to state bar ass’ns

d. Four major problems:i. Prohibited Assistance

ii. Competenceiii. Confidentialityiv. Conflicts of Interest

e. Spaulding v. Zimmerman —MN 1962—Gallagher—D’s lawyer knew that P had aorta aneurysm, but still settled for considerably less than the injury was worth. P’s lawyer reasonably didn’t know about the aneurysm.

i. Judge allowed settlement to be revoked, but only because P was a minor.

ii. D lawyer had no affirmative duty to reveal knowledge, but had he done so, it would be considered a “privileged violation of the rules”

1. In UK, if the knowledge would endanger life, there may be an affirmative duty


iii. Questionable whether D’s lawyer was ethical in his denial to the tribunal of all necessary facts of the case

iv. Q—was the D’s duty to the insurance company or the insured?v. Prior to Rule 26, which requires more disclosure in discovery.

vi. Concept of “non-accountability” – the lawyer’s duty to the client removes any responsibility he might have for damage caused to the other party within the proper scope of his legal actions.

f. Moral Issues of lawyering—Richard Wasserstrom:i. Is a lawyer’s indifference to generally accepted norms of

morality acceptable in light of the adversarial nature of the system?

1. If so, what does that say about the system?ii. S

iii. Attributes of a Profession—create the unequal relationship between a lawyer and a client

1. Technical body of knowledge—shows the client lacks perspective and skill to work in his own best interests

2. Advanced, difficult course of study—acculturates and initiates

3. Complicated language—creates and affirms the membership

g. EXAM:i. In a pre-sentencing hearing, should the judge ask the defense

counsel whether D has any prior convictions, and D knows P doesn’t know, and D knows D has prior convictions, and the only way this bit of adverse information will get into the record is if he goes against his client’s interests and says so, what does he say?

1. Yes—contrary to client’s interests, truthful2. No—Perjury3. I’m sorry, your Honor, that is not a proper question

h. The “Standard Conception” of Lawyer’s Rolei. Samuel Johnson—A lawyer must do all that his client might

fairly do for himself, if he had his lawyer’s knowledge and skill. If the lawyer has an advantage over his adversary, due to intelligence, skill, attention, etc, then it is an advantage to which he is entitled.

1. Partisanship—A lawyer must, within the bounds of the law, maximize the chances that his client’s objectives will be obtained

2. Nonaccountability—When representing a client, the lawyer is not legally, professionally, or morally accountable for the means used or the ends achieved.

ii. Monroe Freedman supports this idea;1. It serves client autonomy,


2. Allows a better range of potential moral outcomes if the lawyers are just advocates, and not paternalistic statesmen, and

3. It is justified by the legitimate expectations of clients

i. Holmes and “The Bad Man” i. If you want to know the law and nothing else, you must look at

it from the perspective of the bad man, who seeks only material consequences

j. Relational Feminism and Carol Gilligani. Men look to getting the best value, women look to hurting the

fewest number of relationships, and as women become more educated, they look more to screwing relationships and getting the best economic value.

k. Commonwealth v. Stenach —PA 1986—Hester—Stenach brothers were PD, their client gave them the murder weapon along with a cock-and-bull story, they kept the murder weapon in their office for months, didn’t tell P or cops about it, didn’t consult ethics advisors. Claimed it was privileged, and disclosure was legally and ethically prohibited.

i. If given something like this, a lawyer may keep it for a reasonable time, but must not keep it; you have to turn it over after you’ve tested it or whatnot.

ii. By keeping the rifle butt, D hindered P’s ability to find the evidence.

iii. You can’t keep possession of the fruits or instrumentalities of a crime

iv. Restatement @ 119 —Fruits or Instrumentalities of a Crime—If you take possession of it, then you have to turn it over and stipulate as to the chain of evidence; if you don’t take possession, then you can leave it (think the Dead Bodies case)

v. Ultimately, the Stenach brothers got off because the statute under which they were charged was unconstitutionally overbroad, when applied to attorneys representing criminal defendants.

1. Some evidence, which a lawyer could take and reasonably believe was could be kept, like narratives, were possibly within the breadth of the statute.

l. Incriminating Evidencei. Lawyers must turn over incriminating physical evidence,

althoughii. The fact that something privileged (like a letter from the client

to the lawyer) is in a physical form does not mean that it must be turned over.

iii. Questionable whether the lawyer must turn over incriminating physical evidence (e.g., documents from a corporation) when that evidence and those documents are those that are produced in the ordinary course of business.


m. Dead Bodies Case —Two lawyers representing a psychopath (Garrow) for murder were told where two of his victims were. They went, took pictures, but no physical evidence, and left the bodies for others to find, months later.

i. Rule: Professional morality =/= ordinary morality

II. Conformity to the Lawa. United States v. Benjamin —2nd 1964—Friendly—Where a lawyer

writes an untruthful opinion letter, the plaintiff must show that the lawyer wilfully/knowingly/intentionally/deliberately lied, or was wilfully blind.

b. MR 1.2 (d) —a lawyer may not counsel a client to engage or assist a client in conduct that the lawyer knows is criminal or fraudulent.

c. Actus reus—a lawyer may not aid and abet a client’s unlawful activity and may result in professional discipline as well as criminal liability.

d. Obstruction of Justicei. Attempting to alter or prevent the testimony of a witness

ii. Interfering with a grand jury investigationiii. Destroying evidence sought by a court or grand juryiv. Legal means can still obstruct justice if employed with a

corrupt motive

e. Mail Fraud—18 USC @ 1341, 1343i. Prohibit the use of mail or electronic transmissions to execute

any scheme to defraud, or to obtain money or property by false or fraudulent purposes

ii. If you send insider trading info through the mail, you’re fucked.iii. Can apply to schemes to deprive people of £ $, or even things

like civil rights.1. Allows protection of elections

f. Conspiracy—An agreement to do something unlawfuli. Forms a separate criminal offense

ii. May also be a tort

g. RICO—Racketeer Influenced and Corrupt Organizations Acti. Racketeering—murder, kidnapping, mail, wire, securities fraud

ii. Intended to get the mob, but also gets lawyers. HA!iii. PROHIBITS, in any enterprise affecting interstate commerce:

1. Investing income derived from a pattern of racketeering2. Acquiring or maintaining an interest through a pattern

of racketeering3. Participating in the enterprise’s affairs through a pattern

of racketeering4. Conspiring to engage in any of these activities


h. If a lawyer is paid through the proceeds of crime, she is committing a crime of receiving stolen property or contraband.

i. Cases usually rule the lawyer lacks the requisite scienter.

i. Greycas, Inc. v. Proud —7th 1987—Posner—Lawyer accepted his brother-in-law’s statements regarding liens on farm equipment and wrote an opinion letter as to the fact that there were no prior liens. In reality, there were, and the lender got screwed.

i. Issue of privity, because the lawyer was Proud’s client but Greycas is the party who got screwed.

ii. Court decided that for a third party to succeed in a negligence action against a lawyer, he has to prove that the primary purpose and intent of the attorney client relationship itself was to benefit or influence the third party.

1. Greycas sued in tort of negligence rather than in intentional tort because they knew the lawyer’s insurance policy wouldn’t cover intentional acts.

j. Restatement @ 51 (73 draft) noted three privity issues:i. Inviting reliance of non-clients

1. Think negligently researched opinion letterii. Non-client enforcing duties to client

1. Think negligently drafted williii. Breach of fiduciary duty owed by a client-fiduciary to a

beneficiary1. Where the client is a trustee to a third party, and the

lawyer doesn’t stop him from screwing up the trust.

III. Competencea. Model Rule 1.1—legal knowledge, skill, thoroughness, and

preparation reasonably necessary for the representation is competence.

b. Lucas v. Hamm —CA 1961—Gibson—A lawyer drafted a will with a trust that accidentally violated the RAP. The court said that this inadvertent oopsy was so easy to make and so common that he wasn’t guilty of malpractice.

c. Traditional rule is that absent fraud, collusion, or privity of contract, an attorney is not liable to a non-client third person for professional malpractice.

d. Malpractice—while relatively rare, the threat is probably the most significant deterrent of bad behaviour.

i. Rarely successful by a convicted criminal defendant

e. Elements for Legal Malpractice:i. Duty

ii. Breach of that dutyiii. Proximate causeiv. Actual cause


1. Often successful defense, because it requires a “trial within a trial”

2. But for the lawyer’s actions, would the plaintiff have won?

3. Smith v. Lewis —CA 1975—Mosk—Defendant lawyer negligently failed to properly advise a woman about her rights to her husband’s retirement benefits in a divorce.

a. The lawyer negligently failed to conduct any reasonable research into the matter before advising her.

b. Dissent argued the causation factor was insufficient

v. Actual harm—proved damages

f. Standards of Carei. Negotiations—most j hold negotiated settlements are final,

absent fraud, coercion, or duress, but some now will hold a lawyer liable for failure to have complete and accurate information from his client.

ii. Standards set by professional custom—Is this action the same action a reasonable lawyer would take?

iii. In a malpractice suit, the Plaintiff has to produce expert testimony that the lawyer failed to reach the standard of care.

1. Rough issue because it forces lawyers to testify against each other.

2. Unnecessary where the lawyer’s conduct is so bad that it would be negligent according to plain old common knowledge.

iv. National v. Local Standards—should a lawyer be held to higher, more expensive standards of DC when he practices in Podunksville?

1. Related: Where a GP gets a case that he should refer to a specialist, and he doesn’t and instead takes the case on his own, he is still held to the higher level of care of the specialist in a malpractice action.

g. Ethical Rules and Malpractice—Courts generally state that a violation of the ethics rules does not create a civil action or constitute negligence per se. But, violation of the rules can be evidence of a rebuttable presumption of negligence.

h. You can’t make your client sign a release of malpractice claims.

i. Malpractice Insurancei. Occurrence Insurance—covers the lawyer for acts or

omissions made during the term of the policy, regardless of when the claim is filed.

1. More expensive but saferii. Claims Made Insurance—Covers only claims made during the

policy term, regardless of when the act or omission took place.


iii. Oregon is the only state with mandatory malpractice insuranceiv. LLP’s tend to have insurance problems because they can cut

the damage to just those people directly involved in the malpractice

j. Effective Assistance of Counsel—Strickland v. Washington—US 1984—O’Connor—Criminal defendant’s counsel didn’t really believe D was innocent, D went against his advice, pled guilty to everything, received the death penalty when counsel failed to present mitigating factors, partially because there weren’t really any, and partially because he didn’t think there were any aggravating factors.

i. To reverse a conviction, must show:1. Counsel’s performance was deficient—gross deviation

from accepted standards of conduct2. Deficient performance prejudiced the defense—

reasonable probability that but for the deficiency, the result would be different

a. In non-capital cases, this essentially means the defendant must prove innocence.

ii. Sixth Amendment only guarantees effective assistance of counsel, not a win at trial.

iii. Strong presumption that counsel’s actions are within an extremely wide spectrum of competence.

1. The attorney’s duty is to do everything ethically proper to ensure the most favourable outcome for his client.

2. Prejudice presumed occasionally:a. Failure to file an Anders brief

i. Anders v. California created the Anders brief, which is a brief that refers to anything in the record that might arguably support an appeal

b. When the defendant is prevented form conferring with her counsel for any significant amount of time

IV. Confidentialitya. Combination of agency law and evidence law.

b. The attorney-client privilege extends only to information transmitted directly between the client and lawyer in seeking legal advice.

i. Restatement @ 118: To show a privilege:1. Communication

a. NOT observation, etc.b. Communication must relate to the legal matter

2. Made between privileged personsa. Joint clients have no privilege against each other

—the “co-client rule.”b. When a communication is from client =>

lawyer, it is privileged


c. When a communication is from lawyer => client, it may be privileged.

i. Some courts hold it privilegedii. Others only hold it privileged if it reveals

the substance of a client confidence.3. In confidence

a. Third parties break the privilegei. Except co-client rule, and where the

parties have common interest privilege, which allows parties with common interests to coordinate without destroying privilege.

b. Client may waive privilegec. Agents of the lawyer or those necessary to

protect the interests of the client do not break the privilege.

4. For the purpose of obtaining or providing legal services to the client

a. Look to the intent of the client

ii. Purpose:1. Encourage open and honest communication2. Ensure effective representation

iii. Protects documents prepared on advice of counsel, but not documents prepared prior to consultation

iv. Exceptions (Restatement @131-134B; p. 209 text)1. A dispute regarding a decedent’s disposition of property2. Client crime or fraud3. Lawyer self-protection4. Disputes in which a trustee or other fiduciary is charged

with a breach of fiduciary duty by a beneficiary5. Disputes between representatives of an organizational

client and constituents of the organization

v. Upjohn v. United States —US 1981—Rhenquist—p. 209—Upjohn gathered a lot of financial information relating to an internal investigation of bribery and fraud. The IRS sought all of it. Issue: In a corporation, who and what is protected by the attorney-client privilege?

1. All—Everyone, from CEO to janitor.a. Rejected because creates too broad a zone of

silence2. Control Group—Just those employees who are

essentially synonyms for the company—CEO, COO, CFO, etc. (3rd Circuit took this approach)

3. Control Group + Relevant Underlings—SCt took this approach here—Where a lower employee provides information necessary to formulate legal advice, and


that employee knows that is the purpose of the communication, and it is within the scope of his corporate duties, then his communication is privileged.

a. Applies to current and former employees

vi. The Crime Fraud Exception—In Re Sealed Case (Lewinsky)—District of Columbia 1998—Randolph—Monica got a lawyer to prepare her affidavit for Jones v. Clinton, in which she lied. Her lawyer got subpoenaed for the documents, unless they would violate her 5th Amendment rights, because no attorney-client privilege existed because the affidavit was prepared to do a crime.

1. Anything the lawyer does in furtherance of a crime is under the “crime-fraud exception” and has no attorney-client privilege.

2. You can’t retain a lawyer to try to get around the law3. Tobacco created the Center for Tobacco Research and

ran it under their lawyers, so they could only release any possible good studies.

a. Judge Sarokin saw it as a violation of the privilege and under the crime fraud exception.

vii. Waiver—May be voluntarily waived by client, but once waived, you can’t go back.

1. ACP continues indefinitely unless waived—even after death.

2. Waiver by putting-at-issue—When the client places the lawyer’s actions or conduct at issue, he waives the privilege, so the lawyer can defend himself.

3. Privilege may be waived expressly or through conduct inconsistent with maintaining the privilege.

viii. Client Identity and Fee Arrangements—Technically, not usually privileged. It does not usually provide information relating to the communications from the client.

1. Baltes —1988—Client showed up at lawyer’s office, gave his name and said he’d just killed a pedestrian in a hit-and-run. He wanted to negotiate a settlement without using his identity. P tried to get client’s name, but FL ruled that it was protected by the ACP.

a. This is because the crime wasn’t ongoing; he’d already done the hit-and-run.

ix. If your client pays you more that $10,000 cash, you have to report it under the Tax Reform Act of 1984.

c. Professional duty of confidentiality protects all information the attorney learns about his client, regardless of the source.

i. “Confidences” are those things protected by the ACP under applicable law


ii. “Secrets” refer to other information gathered in the scope of professional relationship that the client has requested be held inviolate or that would be embarrassing or detrimental to the client if disclosed.

1. Covers non-privileged info gathered during relationship, but not info gathered before or after it.

iii. MR 1.6—key provision on confidentiality—protects all information relating to the representation, before, during or after. Applies regardless of whether it will embarrass the client. Lawyer can’t do it negligently or otherwise.

1. While it says nothing about using client info for yourself, that is prohibited by the law of agency.

2. Applies whether or not the info is publicly known.

iv. Exceptions:1. Self-Defense Exception—Lawyers may protect

themselves when threatened by a claim or charge brought by the client or a third person

a. When a client charges lawyer with wrongdoingi. Client waives it by putting performance

at issueb. When the lawyer seeks to enforce some duty

from the clienti. Lawyer has to prove he did whatever to

be owed a dutyc. When a third party charges the lawyer with

wrongdoing in the course of representing a client

d. Meyerhofer v. Empire Fire and Marine Ins. Co.—2nd 1974—Moore—Lawyer has right to reveal proposed client fraud.

2. Protection of Innocent Third Parties who are or who may be victimized by the client

3. Prevention or Rectification of Fraud on the Tribunal

v. Client Fraud1. Destroys duty of confidentiality because lawyer is

prohibited from counselling or assisting in crime.2. Lawyer may withdraw from representation, noisily to

send up red flag to other lawyers, when her services have inadvertently been used in fraud.

3. Restatement @ 117B allows a lawyer to disclose to prevent client fraud, but also agrees with the minority that allows disclosure to rectify past client fraud.

4. Klein v. Boyd —3rd 1998—Mansmann—Where a lawyer participates in the drafting of a statement that is materially misleading, he can be liable for reliance on that statement, even lacking his signature. (p. 296)


vi. O.P.M. Lessons:1. Rely on instincts, feelings, knowledge about other

people in deciding whether to rep them2. Don’t pretend to be invulnerable3. Be fussy about the details4. Take disclaimers seriously, in opinion letters, etc5. Look at the law, not just the law codes6. Learn about the business and ask about sudden changes7. Inquire about a client’s termination of long-term

advisors8. Don’t become dependant on a single client if possible9. Don’t assume work product and ACP will protect you

vii. Limits1. People v. Fentress —Duchess County Ct 1980—

Rosenblatt—Where the client shows an intent to commit serious bodily injury, the lawyer may breach confidentiality. 4-101(c)(3).

a. Here, the lawyer’s friend killed a kid and was just insane, he wanted the lawyer, the lawyer was far away and sent his mom, the question was whether the mom was the lawyer’s agent (and therefore privileged) or whether she was just a friend. She was the latter.

b. Not every communication made to the lawyer in his professional capacity if confidential, nor is it intended to be so.

2. Hawkins v. King County —Ct App WA 1979—Swanson—Lawyer’s client wanted out, the lawyer got him out against the advice and pleas of client’s mother and psychiatrist, client then assaulted mother and attempted suicide

a. Issue: Does the lawyer have a duty to protect the client from himself when he has some information that indicates the client may not be safe?

i. No, the lawyer’s duty is to the client’s wishes, and the client appeared sane and competent.

duty of confidentiality

attorney-client privilege

V. Duty—Court a. Perjury—Lying under oath (testimony, deposition, interrogatory, etc)

i. Committee on Professional Ethics and Conduct of the Iowa State Bar Ass’n v. William R. Crary—IA 1976—Uhlenhopp


—Crary was having sex with a client, let her lie in a deposition, the other side knew.

1. Essentially disbarred because he let her lie and probably helped contrive the story

2. Suborning perjury:a. Help get perjured testimony as to a material factb. The perjury must actually occur

i. If it doesn’t, it can still be obstructing justice

c. The lawyer must have scienter of the perjury

ii. Rule 3.3—The duty of candor to the tribunal can override the duty of confidentiality. If the client refuses to be honest, in a civil case, the lawyer must:

1. Remonstrate—Sit on the client, make em be honest2. Rectify—Fix it if the client does present false testimony

a. The lawyer can’t use testimony he reasonably believes is false in his arguments (3.3(c))

3. Reveala. In the Lewinsky case, when the lawyer realized

she lied, he wrote a letter saying that the judge shouldn’t rely on any of his remarks re: that affidavit. He didn’t fully say there was a lie, but he waved a flag about the President’s testimony.

4. Resigna. Seek leave, may be refused

iii. Criminal Case Perjury—Nix v. Whiteside—US 1986—Burger—A criminal defendant’s 6th amendment right to assistance of counsel is not violated when his counsel refuses to assist in presenting perjured testimony.

1. No right to lie2. Some jurisdictions allow a criminal defendant to give a

narrative, with no questioning from the lawyer, if the lawyer reasonably believes the client is going to offer perjured testimony.

a. Rejected by the ABA

iv. Coaching—giving your client ideas on what to say when is different than feeding him a defense.

1. It’s ok to be detailed and precise, so long as the ultimate testimony is true and not misleading

2. “The Lecture” is what Paul Biegler said smart lawyers give their clients prior to taking on the case. It tells them everything they need to know about the ins and outs of the law, and kinda suggests the path best take for the situation, without telling the client to lie, per se.

3. Telling the law before you know the facts is another way to coach a client into saying what will get him off.


v. If the government knowingly uses perjured testimony to gain a conviction, the defendant is entitled to a new trial if, in any reasonable likelihood, the false testimony could have affected the decision of the jury

vi. Monroe Freedman—The Lawyer’s Trilemma—How does a lawyer learn everything the client knows, hold it in strictest confidence, and still maintain candor to the tribunal?

1. Believes that the criminal defense att’y has to examine a perjurous client the same as any other

b. Rule 11—By presenting something to the court, the att’y has to sign it and certify that to the best of that person’s belief, it is not being presented for any improper purpose and the claims, defenses, and other legal contentions are warranted by existing law or a non-frivolous attempt to change existing law.

i. Sanctions are possible if they are frivolous and not rescinded within 21 days after the opposing party cries foul.

1. Sanctions used to be mandatory, and there was no 21 day safe harbor period.

2. Scalia hates the new rule, says it’s got no teeth.

ii. Civil rights plaintiffs sanctioned at a higher rate, their claims are more likely to be novel and therefore maybe frivolous

1. Does this unduly chill civil rights litigation?

iii. Blind reliance on a client’s word is not usually sufficient investigation

iv. Papers filed for an improper purpose:1. Filed to delay2. Repetitive papers3. Harrassing counterclaims4. Misstatements as a method of discovery abuse

v. Sanctions paid into court1. Used to pay for other’s att’y fees incurred as a result of

the violation, but now you don’t2. This might have a weakening effect on the rule

vi. 28 U.S.C. @ 1927—When an attorney vexatiously multiplies proceedings, he can be sanctioned. This goes outside Rule 11 and doesn’t require the safe harbor or anything.

vii. Courts have the inherent authority to sanction sua sponte, even when sanctions wouldn’t be available through Rule 11 or @1927.

1. May sanction or even dismiss for discovery abuse2. Rule 38 FRAP allows sanctions for frivolous appeals


3. In appeal, if counsel seeks to withdraw, she still has to do an Anders brief.

c. Prosecutors—M.R. 3.8—The prosecutor is a minister of justice, not just an advocate.

i. Brady Rule—The prosecutor must reveal to the defense, upon request, any exculpatory evidence material to either guilt or punishment

ii. Kyles v. Whitney —US 1995—Prosecutor has a duty to learn of any evidence favourable to the defendant held by the state

1. In GB, the defendant can raise issues for the police to investigate.

iii. Thornberg Memorandum—controversial memo that essentially said federal prosecutors are law unto themselves. Reno narrowed, then in 1998 (p. 551) Congress enacted the Citizen’s Protection Act, which requires federal prosecutors to comply with state court rules

iv. Prosecutor has a duty to preserve material evidence1. Material:

a. Exculpatory value of the evidence must have been evident prior to its destruction

b. The defendant would be unable to obtain comparable evidence by other reasonably available means

v. No-contact rule—After a formal charge, law enforcement may not question a criminal defendant in the absence of counsel unless the accused knowingly and intelligently waives her right to have defense counsel present.

d. Publicityi. Gentile v. State Bar of Nevada —US 1991—Rhenquist—To

what extent can ethics rules be used as a restraint on First Amendment rights?

1. Lawyer’s client was getting screwed in the press, so lawyer carefully made some statements that made the cops sound like they were the crooks.

a. He did the research, and still oops’d, which indicates that it is a trap for the wary and he’s ok

2. In order to suppress free speech, the government must show a clear and present danger, and they didn’t here.

ii. A lawyer who wrongfully criticizes a judge may be subject to professional discipline or even civil liability, although the Sullivan standard does not apply.

VI. Duty—Client a. Three models:


i. Fiduciary Model—client is dependant on lawyer’s knowledge and skill, client trusts lawyer to do what’s best for her, lawyer’s professional ethics prevent abuse of trust, client’s interests ahead of lawyer’s self-interest

ii. Market Model—consensual exchange, mutually beneficial. The client gets services and the lawyer gets money. Assumes client can select and retain an appropriate person for the service.

iii. Regulatory or Public Utility Model—Lawyers are quasi-public officials whose duty is the justice thing, and thus must be closely regulated to serve legitimacy, finality, fairness, and efficiency.

1. Think English att’ys here.

b. Paternalism and manipulationi. Does a lawyer always act in his client’s best interests, or in the

way he thinks is his client’s best interest?

c. Formation—Togstad v. Vesely, Otto, Miller, & Keefe—MN 1980—Per Curiam—If the lawyer is consulted but not actually retained, there is still a minimum duty of competence. E2K 1.18

i. Togstad’s wife asked Miller if her husband had a medical malpractice case; he didn’t think so but said he’d get back to her if there was one, then never spoke again. Didn’t warn her about the SoL running out. That screwed him.

ii. When refusing to take on a client, send them a letter of non-engagement, to cover your ass and tell em to get another attorney, you have this long for the SoL, and just because we don’t want it doesn’t mean it’s got no merit.

1. Get it in writingiii. In US (unlike UK), lawyers can refuse to take on someone as a

client.1. 1.16—Rules for accepting or declining representation

a. Client has absolute right to fire the lawyer for any reason

b. Lawyer doesn’t have absolute right to withdraw from representation, depending on when and the circumstances and such.

2. 1.2(b)—US alternative to cab-rank, it basically states that a lawyer’s acceptance of a case does not equal endorsement of the client’s views.

d. Termination—1.16i. Withdrawal is required when the client discharges the lawyer,

when the lawyer is too ill to continue the representation, and when the continuing representation results in a violation of ethics rules or other law.

ii. Permissive withdrawal—when the client’s screwing you over, you might get to withdraw, but you can’t withdraw to take on a


case adverse to your client’s interests, or because the case becomes more complex than you anticipated.

1. You can only withdraw when there is no material adverse effect on the client

2. Hot potato rule—1.9, you can’t drop a client to take the other side.

a. 1.16(a)—If you have a hot potato, you have to drop both, rather than just the unfavourable one

3. When you stop representing a client, you have to give them what they are entitled to (1.15, 1.16), like their files and work product they paid for, but not internal firm documents

a. You can keep it as a lien on the unpaid bills.

iii. Clients can discharge with or without good cause.1. Tribunal may have to approve if the matter is litigation2. This is why courts don’t like non-refundable retainers;

they limit client autonomy3. Lawyers can usually only recover in quantum meruit

when fired, although some liquidated damages clauses may be upheld, and clients usually cannot contractually waive the right to terminate.

e. Scope of Representationi. Settlement Authority—International Telemeter Corp. v.

Teleprompter Corp.—2nd 1979—lawyer’s negotiated settlement bound parties, even though one party changed management before it was finalized.

ii. Actual authority:1. Express—When the principal through word or deed

causes the agent to reasonably believe that she has authority

2. Implied—Flows when legal rules delegate authority on some matter to the lawyer

a. Can allow lawyer to give up certain information, but most states don’t allow it to be used to settle a case.

iii. Apparent authority—When the principal, through words or deeds, causes the third person to reasonably believe the agent has authority to act on the principal’s behalf.

iv. Criminal Matters—some decisions can only be made by a criminal defendant, or else he gets a new trial:

1. Waiver of the right to a speedy trial2. Entry of an insanity plea3. Presentation of a diminished capacity defense in a death

penalty case


4. Lawyer’s conduct that is the “practical equivalent” of entering a guilty plea, over the client’s objections, is grounds for reversal.

5. Criminal Defense can decide:a. Strategic matters, such as objections to evidenceb. Witnesses to callc. Whether to agree to a mistriald. Whether a defense is plausiblee. Opening/closing arguments and/or their waiverf. Whether to waive objection to the racial

composition of the grand juryg. Change of venue

v. Jones v. Barnes —US 1983—Burger—Appointed criminal defense counsel does not have the duty to raise every non-frivolous appeal; it is strategy to only argue the most likely ones.

1. Dissent said that it was not a constitutional issue, but an ethical one, that the lawyer should raise the appeals as the client demands

vi. People v. Deere —CA 1985—Where a defendant wanted the death penalty, his lawyer’s failure to present any mitigating evidence deprived Deere of effective assistance of counsel.

vii. Disabled Clients1. MR 1.14—Lawyer has to maintain as normal a

relationship as possible, and if necessary, seek the appointment of a guardian

2. Options:a. Follow the client’s wishes no matter the

consequencesb. Seek a guardianc. Allow the family of the disabled client to make

the decisionsd. Act as a de facto guardiane. Try to persuade the client to take the lawyer’s

judgmentf. Withdraw

f. Feesi. Types:

1. Flat fee ($500 for a divorce)2. Hourly rate ($125/hr)3. Proportional fee (10% of the sale price)4. Contingent fee (1/3 or 10K if the result is achieved)

ii. Amount—In the Matter of Fordham—MA 1996—O’Connor—A non-criminal lawyer charged $50K for a drunk driving case, which was clearly excessive and departed from his duty to the client, so he was reprimanded.


1. Brobeck, Phleger, & Harrison v. Telex Corp. —9th 1979—Where Brobeck charged a corporation $1 million, per the contract, for a certiorari petition which was later not needed, the sophisticated nature of the corporation kept it from being unconscionable.

2. To determine reasonableness:a. When the agreement was made, did the lawyer

give the client a free and informed choice?b. Is the fee within the range of similar fees

charged by others?c. Was there a subsequent change in circumstances

that made the fee unreasonable?d. [I would add “Is the party questioning the fee

sophisticated and experienced with the legal profession?”]

iii. Illegal fees1. Duplicating bills, overstaffing, overestimating hours

worked, etc all bad things2. Federal and State statutes limit the fees a lawyer can

charge for certain times of worka. Worker’s comp lawsb. Percentages of contingent fees

i. Committee on Legal Ethics of West Virginia State Bar v. Gallaher—unwritten 50% contingent fee on a simple settlement excessive

3. No contingent fees on criminal defense matters, public litigation, or divorces

iv. Negotiation—Should the adversarial concept predominate in a setting with no neutral arbiter?

1. Game theory2. Cooperative negotiation (p. 1156)

g. No-Contact Rule—4.2—In representing a client, the 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 by law to do so.

i. Neither client can consent to a prohibited contact w/o lawyer’s consent

ii. A lawyer can’t get around the rule by getting a non-lawyer to communicate with the other party instead (p. 534).

iii. Neisig v. Team I —NY 1990—Kaye—Who, in a corporation, are considered “parties” for the no-contact rule?

1. Balancing test—Any corporate employee whose acts or omissions are binding on the corporation, anyone whose acts or omissions are imputed to the corporation for purposes of liability, and anyone who is implementing the advice of counsel.


h. Lawyer-client transactionsi. Fiduciary obligations:

1. Segregationa. Keep funds in a separate trust account. With a

retainer that is payable upon performance, you can take out what you’ve earned when it becomes due, BUT NO MORE!

b. Violation occurs even if it was just negligence that commingled the funds

i. Intentional commingling = disbarmentc. If the client disputes the payment:

i. Take what you both agree is yoursii. Leave the rest in until it’s settled

2. Notification3. Record-keeping

a. Keep records for ~ 7 years, or however long your jurisdiction requires

4. Delivery and accounting5. See Restatement @ 56(1)

ii. IOLTA—Interest On Lawyer’s Trust Accounts—since the interest off a fund with multiple clients is pretty tough to figure, this took the interest and used it to fund legal services for the poor, etc

1. Questionable under the Takings Clause of the 5th.2. Now requires client consent

iii. Transactions with Clients1. Constructive Fraud Doctrine—The law presumes

business deals between lawyers and clients are fraudulent, but this is rebuttable.

2. Don’t advance clients money if you want it back3. Don’t take really big gifts from clients4. Don’t fuck your clients, unless you were fucking him

before he was your client5. You can’t put yourself fin a client’s will unless you are

related to him 1.8(c)a. If you are in the will, be fair or be sued

6. You can’t be a witness as to material elements in a case in which you are also the advocate. MR 3.7

7. Committee on Professional Ethics and Conduct of Iowa State Bar Ass’n v. Mershon—IA 1982—McCormick—Lawyer got involved as the capital in a business deal with a client. Under MR 1.8(1) to do this, lawyer must:

a. Make sure the deal is fair on both sidesb. Make sure everything is fully disclosed

i. Full disclosure in ongoingc. Advise the client to seek independent counseld. Obtain written consent


e. Lawyer didn’t do this, so he got reprimanded8. Passante —CA 1997—Lawyer Passante got Upper

Deck a loan in exchange for 3% of the company’s stock. Stock went up, jury awarded Passante $33m when he tried to collect, judge set aside and dismissed.

a. Oral contract was bargained for but obtained in violation of ethical rules.

b. Passante did not tell Upper Deck to get other counsel, etc.

c. “Stranger Rule” says that when doing business with a client, treat it as though the client was a stranger

VII. Conflicts of Interest—1.7—General Rulea. Concurrent Conflicts—Current A, Current B

i. When the interests of two clients run (or may run) counter to each other (Diverging Interests)

ii. When the antagonism between the two is greatiii. Directly Adverse—1.7(a)—you can’t represent two clients

with directly adverse interests unless:1. The lawyer reasonably believes the representation will

not adversely affect the relationship with the other client and

2. Each client gives informed consentiv. Materially Limited—1.7(b)—A lawyer can’t represent a

client if the representation would be materially limited by that lawyer’s duty to another client. She can proceed, think reasonableness and consent.

v. Courts hesitate to overrule client consent

b. Concurrent in Civil Litigationi. Westinghouse Elec. Corp. v. Kerr-McGee Corp. —7th 1978

—Sprecher—Kirkland and Ellis was a huge firm that was counsel for oil companies and Uranium producers, on the same day, it produced two documents from different offices that said pretty much opposite things about stuff.

1. No matter the size of the law firm, it is still subject to the same ethical considerations. Therefore, the “wall” between the Chicago and DC offices was insufficient to protect from leakage and conflict and KE had to withdraw.

ii. A pattern of recurrent retainers, even if you aren’t currently representing a company, can indicate that they are nevertheless a client—IBM v. Levin

iii. Client can’t waive future conflicts of interest in advance, unless it describes the future with sufficient clarity so the client’s consent can be considered fully informed

iv. Law firms must take reasonable procedures to discover conflicts. Keep clients and major players in client corps names on file.


v. When a lawyer is related to another lawyer, 1.8(i) prevents them from representing directly conflicting interests

vi. When you move to DQ for conflict, make sure it’s good, because judges don’t like it, esp. as a delay or harassment tactic.

1. Rule 11 sanctions are possible for frivolous motions to DQ

2. In civil cases, orders granting or denying DQ of lawyers are not immediately appealable, they are interlocutory.

33 In criminal cases, ditto for granting most likely, and who knows for denying.

vii. When a lawyer has been DQ’d for a conflict, that lawyer’s work, if it is tainted by confidentiality or other advantage gained from the dual representation should be unavailable to successive counsel. First WI Mortgage Trust v. First WI Corp.

1. The DQ’d lawyer may consult with successive counsel as to work that is ok to turn over, but not other matters

c. Concurrent Representation in Criminal Litigationi. Cuyler v. Sullivan —US 1980—Sullivan’s counsel was kinda

mooched off two other defendants, they got off and he took the fall. The counsel put on no evidence in his defense—strategy or sacrifice?

1. The mere possibility of a conflict of interest does not warrant the conclusion that a defendant was denied assistance of counsel

a. The D must establish that there was an actual conflict that adversely affected his rights.

b. D need not show actual prejudice2. A state trial judge does not have the duty to inquire into

the propriety of multiple representation of defendants by counsel.

a. Plural representation STRONGLY discouraged3. When 3rd took the case on remand, they granted habeus

because counsel did not act as loyal counsel would.ii. When a criminal defendant is denied her choice of counsel, her

6th amendment right is wonked.

d. Concurrent Representation in a Transactioni. State v. Callahan —KS 1982—Per Curiam—Callahan acted as

lawyer between Fulton and Lygrisse in a land deal. Fulton thought Callahan was like an escrow officer, an objective third party. He was really Lygrisse’s personal attorney and business partner. He screwed her out of the final payment of an instalment contract on the land and had her sign over the title before it was paid for.

1. Callahan disbarred for his failure to disclose the other relationship and misrepresenting to Fulton that she had


the second mortgage on the property, when she really just had a promissory note.

ii. When representing joint clients, there is no ACP as to each other. However, if one party of the representation wants to hide some material fact (e.g., get an illegitimate child into a will), the lawyer may have discretion to reveal the fraud.

1. When this sort of situation may occur, make the clients sign a waiver of conflict of interest form.

iii. When the parties already agree on the material terms of a sale, a lawyer may probably represent both parties, if:

1. He discloses the risks of joint representation, 2. Tells them of the benefits of separate representation,3. Warns that he can’t represent either party in any

ensuing litigation, 4. Tells them the ACP may not apply, and5. Both parties consent.

e. Marriage and divorcei. Lawyers should not rep both parties in a divorce because:

1. The fact of divorce, even an amicable one, indicates antagonism

2. If negotiations fail, the parties are legally bound still, and the lawyer can’t rep either party in any ensuing litigation

3. If there is a dominant spouse, he may tromp on the rights of the other—undue influence

ii. In a prenup, both parties should get their own attorneys to ensure the weaker party is not screwed over.

iii. In divorce mediation, the lawyer doesn’t really have an attorney-client relationship with either party.

1. Dangers:a. Divergent interests of partiesb. Likelihood that one or both parties do not

understand the risksc. Unequal bargaining powerd. Lawyer liability

2. The lawyer can help reduce the agreement to writing if:a. The parties are fully advised of the risksb. Lawyer is satisfied both parties understand the

risksc. Legal advice is only given to both parties at the

same timed. The parties are advised of the advantages of

independent counsele. The lawyer does not represent either party in any

subsequent legal proceedings related to the divorce

f. The Insured and the Insurance Company


i. The lawyer has a duty to protect the interests of the insured and maintain his confidence even to the insurance company.

ii. MR 1.8(f) applies to insurance companies, stating that a lawyer should not accept payment for services from a third party unless:

1. The client consents after consultation2. There is no interference with the lawyer’s independence3. Information relating to the client is protected as under

1.6iii. If the insurance policy covers accidents, and the lawyer later

discovers it was intentional, he can’t reveal that to the insurer.1. This is why most insurance policies contain a

“reservation of rights,” which allows the insurer to litigate against the insured if it is later proven that the insurer had no duty to indemnify.

iv. “Duty-to-settle” states that if a settlement offer, within policy limits, is made, a consideration in good faith of the insured’s interests requires the insurer to settle the claim.

g. Successive Conflicts—Current A, Former B—Rule 1.9i. In successive representation, the lawyer does not have to

consult the former client if the matters are not the same or substantially related.

ii. Restatement @ 213—Substantial Relationship Test—says a lawyer may not proceed adversely to a former client if either the lawyer acquired confidential information during the first that would be useful in the second or the second matter involves work the lawyer did for the first.

iii. Where there might be a conflict, ask:1. What was representation #1? What was #2?2. Are they the same or substantially related?3. What was the nature of each representation?4. Was there consent by #1?

iv. 1.9(a) says that a lawyer can’t represent a successive materially adverse client in matters that are the same or substantially the same without consultation of the previous client and consent.

v. Lawyer’s duty of confidentiality to former client remainsvi. Joint Clients—Brennan’s Inc. v. Brennan’s Restaurants,

Inc.—5th 1979—Tjoflat—Wegmann was counsel for the family business, there was a rift, he followed one side.

1. He argued that the two sides of the family had no ACP or confidentiality that might be breached, because they were originally one client.

2. He was DQ’d because switching sides on a client is contrary to public policy and all that is good and right in the world.

vii. Substantial Relationship Test—In Re American Airlines, Inc.—5th 1992—Higgenbotham—VE partner agreed to rep AA v. N’Western, while another partner agreed not to rep anyone but N’Western.


1. Was AA “taint shopping?”a. Taint shopping is where a potential client will

give a potential firm just enough information to prevent them from being able to represent any adverse party.

b. To protect yourself from a taint shopping client, don’t let them show you too much and make them sign an “advance waiver of conflicts” before you look at their case.

2. Did VE take AA as a client and then switch on them?3. Keep a file of your work and copies of your motions

and briefs in order to prove to a client the quality and nature of your work on a particular case.

h. Imputed Conflictsi. Old Model Code Rule was that if one lawyer in a firm was

DQ’d for conflict, all lawyers in the firm were. 1. Reasons:

a. Lawyers who practice together talk together, and this protects confidences

b. Lawyers who practice together share professional and financial interests

c. The idea of sharing confidences could make the public lose confidence in the legal system

2. Restatement @204(2)—Removing Imputation—where one lawyer is DQ’d, others may proceed provided that:

a. Any confidential info the tainted lawyer has is unlikely to be significant in the subsequent matter

b. The tainted lawyer is screened from the matter, both physically and intellectually

c. Timely and adequate notice of the screening has been given to the affected clients

ii. Nemours Foundation v. Gilbane —DE 1986—Farnan—Bradley worked for Berg on the mini-trial of Furlow, but nothing else. He then moved to Biggs, who was suing Nemours, a co-party of Furlow.

1. Is Bradley DQ’d?a. Yes, because it is likely he has some information

that may be confidential, even if he doesn’t know what it is.

b. He had an attorney-client relationshipc. The present matter is the same or substantially

related to the previous matterd. The interests of the present party are adverse to

the interests of the former partye. The former client did not consent to the

representation of the present client2. Is Biggs DQ’d?

a. NO


b. Former government attorneys are not imputed to be DQ’d (Rule 1.11); they may be screened

c. This should also apply to attorneys who switch firms

d. DQ based solely on the appearance of impropriety cannot be justified as long as the firm’s representation does not pose a threat to the integrity of the judicial process.

e. Emphasize the ethical rules, rather than presume they will be circumvented

i. The lawyer should stay silent as to his former clients, rather than assuming he needs help keeping quiet

f. Ask:i. Did the attorney control the former

litigation strategically?ii. How great was his involvement?

iii. Was he an associate or a partner?iv. Did he share legal fees?v. How big is the firm?

vi. How are records kept?vii. How do the lawyers in the firm

communicate?g. Imputed disqualification limits attorney

mobility h. Will the disqualification of the firm

substantially prejudice the client?iii. Screening

1. Physical and procedural barriers established by a firm to prevent the tainted lawyer from transmitting or receiving information on a particular matter

2. Law students are bound to keep former client’s confidences, but their new firms are not DQ’d

i. Government Lawyersi. Duty is to seek justice, not convictions, but government

lawyers may act in their public capacity to better their later private careers.

ii. “Revolving door” also suggests undue influence, corruption, etc.

iii. Policies that narrow the prospects of private employment (e.g., a law that doesn’t allow the government employee to go private and screen later) would take away from the quality of government lawyers.

iv. A lawyer can’t take employment on a matter in which she acted as a judge or on which she substantially worked as a public employee, even if the matter is the same side as the government’s.

v. 1.11—When a lawyer is DQ’d for participating personally and substantially in a matter while with the government, the whole firm is DQ’d unless:


1. The DQ’d lawyer is screened from any participation in the matter and gets no money from its fee, and

2. Written notice is promptly given to the proper government agency to ensure compliance.

VIII. Who is the Client?a. When there is no physical embodiment of the client, the lawyer must

remember that he represents the corporation or the organization, NOT the CEO, board members, etc personally.

b. The client is the entity; not those who represent it. 1.13(a)c. 1.13—Organization as Client

i. If the lawyer knows an officer, etc is engaged, intends, or refuses to act in a way with the bests interests of the organization in mind, like when he is violating a duty to the entity or violating law in a way that may be imputed to the corporation, and this is likely to result in a substantial injury to the corporation, she must:

1. Ask reconsideration2. Advise for a separate legal opinion, from outside

counsel, on the matter3. Refer to the highest authority—like the Board in a

corporationa. Rejected Kutak option said tell the stockholders

ii. US Sentencing Guidelines encourage regular housecleaning by corporations as a mitigating factor should any bad stuff come to light

d. Meehan v. Hopps —CA 1956—Bray—The firm represented the company, with Hopps as the contact. Hopps screwed up, the company reorganized into a receivership, so the firm now communicated with the receiver, as he was now head of the company. The receiver sued Hopps, Hopps tried to get the firm DQ’d because he claimed they represented him personally.

Lawyer Corporation

NO

Officeri. Court refused to DQ because the firm never represented Hopps

personally, they just represented the company, in which Hopps had a personal interest.

ii. Look at:1. Size of the corporation—is it large or closely-held?2. The extent of the involvement between the lawyer and

the officer3. The facts that gave rise to the corporation

iii. Restatement @ 51(4)—A lawyer can be held civilly liable to a non-client when the lawyer actively assists the client in breaching a fiduciary duty.


e. E.F. Hutton & Co. v. Brown—where an officer gave the impression and said “yes, these are my lawyers” and the lawyers didn’t stop him, they represented him, even if there was no retainer or anything and they were actually representing the corporation.

f. A lawyer may technically serve on his client’s board, but that can screw attorney-client privilege.

g. Fassihi v. Sommers Schwartz Silver Schwartz & Tyler, PC —MI 1981—Per Curiam—Epstein was Lopez’s lawyer, who helped him do a K with the hospital for exclusive rights to radiology services. Lopez invited Fassihi to make a PC with him for the radiology, and Epstein did the legal, without telling Fassihi that he was already in with Lopez. Lopez wanted to boot Fassihi, so Epstein helped, despite his fiduciary duty to Fassihi.

i. This was a closely-held corporation, in which the lawyer had a duty to not only the corp, but also the shareholders (Fassihi and Lopez), to not screw each other over.

Lawyer Client (corporation)

YES

Fassihi (Θ)h. Under Skarbrevik, corporate counsel for a closely held corporation has

no duty to a shareholder not to let the majority shareholders screw him over.

i. Other courts hold that a lawyer in a closely-held corporation does have some fiduciary duty to the individual stockholders. P. 766

i. Fickett v. Superior Court of Pima County —AZ 1976—Howard—Guardian 1 screwed over his ward, so Guardian 2 sued 1’s lawyer.

i. Lawyer can be held civilly liable to the third party ward if they know or reasonably should know the guardian (their client) is screwing over the ward (third party).

Lawyer Client

YES

Ward

IX. The Bara. Oklahoma Supreme Court has plenary authority to regulate all

Oklahoma-admitted lawyers, and it delegates some of these duties to the Oklahoma Bar Association

i. Pro hoc vice is a motion made before a court to allow you to practice in front of that court without passing that state’s bar.

b. Integrated Bar is a bar association that is required in order to practice in that state

i. You can’t use mandatory dues to support partisan political things, so there are some states with mandatory integrated bars and voluntary other bars.


c. If you are disbarred in Oklahoma, you may apply for readmission in five years

d. Character and Fitness—In Re Hale—IL 1998—Avowed racist denied admittance to the bar, because his stated life’s objective was to change the Constitution, not uphold it.

i. In IL, you have to establish your good character through clear and convincing evidence.

ii. Silence has been held as not admittance of wrongdoings, but a failure to prove yourself fit.

e. 8.4—Misconduct of Lawyersi. b) says a criminal act that occurs outside the practice of law can

still lead to misconduct chargesf. 8.3—Duty to Report

i. In Re Himmel —IL 1988—Stamos—A lawyer suspended for one year for failure to report his client’s old lawyer’s conversion in the interests of getting a settlement with the old lawyer

g. 5.5—Unauthorized Practice of Lawi. a) Don’t practice where you aren’t licensed to practice

ii. b) Don’t help others practice where they aren’t licensed to practice

iii. Causes issues when you call someone in CA to give them advice on OK laws—are you practicing law in CA without a license?

1. “MJP” troubles X. Competition

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