Professional Responsibility

I. Preliminaries & Particulars (Preface)

Comment: The Pre-Outline

A. Rules and Assignments by Date (from TWEN)

1. Tuesday 8/31
1.1. Introduction to Course Institutions that Regulate Lawyers
1.2. Text: Foreword; Preface; 1-45
2. Thursday 9/2
2.1. Admission to the Bar
2.2. Text: 45-71
2.3. RPC: 8.1
2.4. Also: Friedman v. CT Bar Examining Committee, 77 Conn. App. 526 (2003)
3. Tuesday 9/7
3.1. Professional Discipline · Grounds · Reporting misconduct · Subordinate lawyers
3.2. Text: 73-86; 96-112
3.3. RPC: Preamble; Scope; 1.1; 3.1(a)&(d); 5.1-5.3; 8.3; 8.4
3.4. Also: Daniels v. Alander, 268 Conn. 320 (2004)
4. Thursday 9/9
4.1. Professional Discipline · Civil Liability · Criminal Liability · Client Protection Funds
4.1.1. Text: 128-149
4.1.2. RPC: 5.1-5.3; 8.3; 8.4
5. Tuesday 9/14
5.1. Duty of Confidentiality · Basic Principle · Exceptions · Past Criminal Conduct
5.2. Text: 151-170
5.3. RPC: 1.6
6. Thursday 9/16
6.1. Duty of Confidentiality · Risk of Future Injury/Death
6.2. Text: 170-188
6.3. RPC: 1.6(b)
7. Tuesday 9/21
7.1. Duty of Confidentiality · Client Frauds and Crimes · Other Exceptions
7.2. Text: 188-213
7.3. RPC: 1.0(f); 1.2(d); 1.6; 1.9(c); 1.16(a)&(b); 1.18(a)&(b); 3.3; 4.1; 8.4(c)
8. Thursday 9/23
8.1. Attorney-Client Privilege Attorney Work-Product Doctrine
8.2. Text: 215-263
9. Tuesday 9/28
9.1. Lawyer-Client Relationships · Formation · Agency · Duty of Competence ·
Competence in criminal cases

May 7, 2010
Page 1
 9.2. Text: 265-291
9.3. RPC: 1.1, 1.18(a)&(b), 6.1, 6.2
10. Thursday 9/30
10.1. Lawyer-Client Relationships · Duties of Diligence, Honesty, Communication ·
Torture Memos
10.2. Text: 291-304
10.3. RPC: 1.0(d); 1.3; 1.4; 2.1
11. Tuesday 10/5
11.1. Lawyer-Client Relationships · Contractual Duties · Who Decides What · Clients with
Disabilities
11.2. Text: 304-331
11.3. RPC: 1.2; 1.4; 1.14
12. Thursday 10/7
12.1. Lawyer-Client Relationships · Clients with Disabilities (cont’d) · Terminating L-C
Relationships
12.2. Text: 331-350
12.3. RPC: 1.2; 1.4; 1.14; 1.16
13. Tuesday 10/12
13.1. Lawyer’s Duties to Courts · Morality and the Adversary System · Pre-Filing Fact
Investigation · Truthfulness in Litigation
13.2. Text: 593-624
13.3. RPC: 1.2; 1.16; 3.1; 3.3; 3.8; 4.4; 8.4(c)
14. Thursday 10/14
14.1. Lawyer’s Duties to Courts · Truthfulness in Litigation (cont’d)
14.2. Text: 624-643
14.3. RPC: 3.3; 3.4; 3.5; 4.1; 7.1; 8.4
15. Tuesday 10/26
15.1. Lawyer’s Duties to Courts · Concealment of Evidence · Disclosing Adverse Legal
Authority · Ex Parte Proceedings · Improperly Influencing Judge/Jury · Non
adjudicative Proceedings
15.2. Text: 643-677
15.3. RPC: 3.3-3.9; 4.1; 4.4; 8.4(c)
16. Thursday 10/28
16.1. Lawyer’s Duties to Adversaries and Third Persons · Deception · Contact with
Represented Persons
16.2. Text: 679-704
16.3. RPC: 4.1-4.4
17. Tuesday 11/2
17.1. Guest speaker: Hon. Douglas Lavine
17.2. Lavine, Cardinal Rules of Advocacy, Ch. 2
18. Thursday 11/4
18.1. Lawyer’s Duties to Adversaries and Third Persons · Contact with Unrepresented

May 7, 2010
Page 2
 Persons · Prosecutorial Ethics · Conduct Prejudicial to the Administration of
Justice
18.2. Text: 705-730
18.3. RPC: 4.1-4.4; 3.8; 8.4(d)
19. Tuesday 11/9
19.1. Conflicts of Interest · Concurrent Conflicts
19.2. Text: 351-377
19.3. RPC: 1.7; 1.10
20. Thursday 11/11
20.1. Conflicts of Interest · Concurrent Conflicts (cont’d)
20.2. Text: 378-389
20.3. RPC: 1.7; 1.10; 1.18
21. Tuesday 11/16
21.1. Conflicts of Interest · Concurrent Conflicts (cont’d)
21.2. Text: 391-405; 416-421
21.3. RPC: 1.7; 1.13
22. Thursday 11/18
22.1. Conflicts of Interest · Former Clients
22.2. Text: 435-459
22.3. RPC: 1.7; 1.9
23. Tuesday 11/23
23.1. Conflicts of Interest · Former Clients (cont’d)
23.2. Text: 459-481
23.3. RPC: 1.7; 1.9; 1.10
24. Tuesday 11/30
24.1. Conflicts of Interest · Conflicts between Lawyers & Clients
24.2. Text: 483-489; 527-536; 547-561
24.3. RPC: 1.5; 1.8; 1.15
25. Thursday 12/2
25.1. Regulation of Law Practice · Advertising and Solicitation · Multi-Jurisdictional
Practice · Affiliation with Non lawyers
25.2. Text: 791-817
25.3. RPC: 5.4; 5.5; 7.1-7.5
26. Tuesday 12/7
27. Thursday 12/9
27.1. Provision of Legal Services · Unmet Legal Needs · Pro Bono Representation · Role
of Lay Advocates
27.2. Text: 819-825; 853-872
27.3. RPC: 5.5; 6.1-6.5
B. Combined D&A
Comment: (Outline TOC and Quick Ref)
1. Introduction [1]

May 7, 2010
Page 3
 1.1. Ethics, morals, and professionalism [1]
1.2. Some central themes in this book [7]
1.2.1. Conflicts of interest [7]
1.2.2. Truthfulness [7]
1.2.3. Lawyer’s duties to clients versus their duties to the justice system [8]
1.2.4. Lawyer’s personal and professional interests versus their fiduciary
obligations [10]
1.2.5. Self-interest as a theme in regulation of lawyers [10]
1.2.6. Lawyers as employees: institutional pressures on ethical judgments
[11]
1.3. The structure of this book [13]
1.4. The rules quoted in this book: A note on sources [14]
1.5. Stylistic decisions [17]
2. Chapter 1: The Regulation of Lawyers [19]
2.1. Institutions that regulate lawyers [20]
2.1.1. The highest state courts [20]
a. The responsibility of self-regulation [20]
b. The inherent powers doctrine [23]
2.1.2. State and local bar associations [25]
2.1.3. Lawyer disciplinary agencies [26]
2.1.4. The American Bar Association [27]
2.1.5. The American Law Institute [28]
2.1.6. Federal and state trial courts [30]
2.1.7. Legislatures [31]
2.1.8. Administrative agencies [32]
2.1.9. Prosecutors [33]
2.1.10. Malpractice insurers [34]
2.1.11. Law firms and other employers [34]
2.1.12. Clients [35]
2.2. The state ethics codes [38]
2.3. Research on ethics law [43]
2.4. Admission to practice [45]
2.4.1. A short history of bar admission [45]
2.4.2. Contemporary bar admission requirements [46]
2.4.3. The bar examination [47]
2.4.4. The character and fitness inquiry [49]
a. Criteria for evaluation [49]
b. The character questionnaire [54]
1) Problem 1-1: Pot [57]
c. Mental health of applicants [59]
1) Jon Bauer, The Character of the Questions and the Fitness of the

May 7, 2010
Page 4
 Process: Mental Health, Bar Admissions, and the Americans with
Disabilities Act [61]
d. Misconduct during law school [64]
1) In re Mustafa [64]
2) California Bar Journal [66]
e. Law school discipline: A preliminary screening process [68]
1) Problem 1-2: The Doctored Resume [69]
2.5. Fit Ins and Add Ons
2.5.1. RPC: 8.1
2.5.2. Also: Friedman v. CT Bar Examining Committee, 77 Conn. App. 526 (2003)
3. Chapter 2: Lawyer Liability [73]
3.1. Professional discipline [75]
3.1.1. The history and process of lawyer discipline [75]
3.1.2. Grounds for discipline [81]
3.1.3. Reporting misconduct by other lawyers [96]
a. The duty to report misconduct [97]
1) Daryl van Duch, Best Snitches: Land of Lincoln Leads the Nation in
Attorneys Turning in Their Peers [100]
b. Lawyer’s responsibility for ethical misconduct by colleagues and
superiors [104]
1) Problem 2-1: The Little Hearing [109]
3.2. Legal protections for subordinate lawyers [110]
3.2.1. David Margolick, New York Court Shields Lawyers Who Report Dishonest
Colleagues [112]
3.3. Civil liability of lawyers [128]
3.3.1. Legal malpractice [128]
3.3.2. Malpractice insurance [134]
3.3.3. Other civil liability of lawyers [136]
a. Liability for breach of contract [136]
b. Liability for violation of regulatory statutes [136]
3.3.4. Disqualification for conflicts of interest [137]
3.4. Criminal liability of lawyers [137]
3.5. Client protection funds [142]
3.6. Summing up: What law governs lawyers? [147]
4. Chapter 3: The Duty to Protect Client Confidences [151]
4.1. The basic principle of confidentiality [152]
4.1.1. Protection of ‘‘information relating to the representation of a client
[152]
a. Problem 3-1: Your Dinner with Anna, Scene 1 [155]
b. Problem 3-2: Your Dinner with Anna, Scene 2 [157]
4.1.2. Protection of information if there is a reasonable prospect of harm to
a client’s interests [159]

May 7, 2010
Page 5
 4.1.3. The bottom line [160]
4.2. Exceptions to the duty to protect confidences [161]
4.2.1. Revelation of past criminal conduct [164]
a. The missing persons case: The defense of Robert Garrow [164]
b. Problem 3-3: The Missing Persons, Scene 1 [164]
c. Problem 3-4: The Missing Persons, Scene 2 [169]
d. The real case [170]
e. People v. Belge [171]
f. People v. Belge (appeal) [173]
g. Problem 3-5: The Missing Persons, Scene 3 [174]
4.2.2. The risk of future injury or death [176]
a. Spaulding v. Zimmerman: Revealing confidences to prevent injury or death
[178]
b. Spaulding v. Zimmerman [179]
c. Problem 3-6: Your Dinner with Anna, Scene 3 [187]
4.2.3. Client frauds and crimes that cause financial harm [188]
a. Lawyers prohibited from advising or assisting client’s crimes and
frauds [188]
b. Ethics rules allowing revelation of client crimes or frauds to prevent,
mitigate, or remedy harm to others [193]
c. Enron and the Sarbanes-Oxley Act [196]
1) Recent developments in the implementation of Sarbanes-Oxley [199]
2) Problem 3-7: Reese’s Leases [202]
4.2.4. Revealing confidences to obtain advice about legal ethics [205]
4.2.5. Using a client’s confidential information to protect the lawyer’s
interests [205]
4.2.6. Revealing confidences to comply with other law or a court order
[208]
4.3. Use or disclosure of confidential information for personal gain or to benefit
another client [209]
4.3.1. Problem 3-8: An Investment Project [210]
4.4. Talking to clients about confidentiality [211]
4.5. A concluding problem [212]
4.5.1. Problem 3-9: Rat Poison [212]
5. Chapter 4: The Attorney-Client Privilege and the Work Product Doctrine [215]
5.1. Confidentiality and attorney-client privilege, compared [217]
5.1.1. Ethics law versus evidence law [217]
5.1.2. Difference in scope [218]
5.1.3. Different methods of enforcement [219]
5.1.4. When attorney-client privilege is invoked [219]
5.1.5. Why study a rule of evidence in a professional responsibility course?
[220]

May 7, 2010
Page 6
 5.1.6. Source of the privilege [221]
5.2. The elements of attorney-client privilege [221]
5.2.1. Communication [221]
5.2.2. Privileged persons [222]
5.2.3. Communication in confidence [223]
5.2.4. Communication for the purpose of seeking legal assistance [223]
5.3. Client identity [228]
5.4. Waiver [229]
5.4.1. Express waiver by client [229]
5.4.2. Waiver by inaction
5.4.3. Waiver by revealing privileged communication to a non privileged
person [229]
5.4.4. Waiver by putting privileged communication into issue [231]
5.4.5. Waiver as to a conversation by disclosure of part of it [231]
5.4.6. Compliance with court orders [231]
a. Problem 4-1: Murder for Hire [232]
5.5. The crime-fraud exception [233]
5.5.1. 1. No privilege if a client seeks assistance with a crime or fraud
[233]
a. Problem 4-2: The Fatal Bus Crash [237]
5.5.2. Procedure for challenging a claim of privilege [239]
5.5.3. The potential importance of privilege claims in litigation [239]
5.6. The death of the client [240]
5.6.1. Introduction [240]
a. Problem 4-3: The Dead Murderer [240]
5.6.2. The suicide of Vincent Foster241
a. Factual background [241]
b. The Supreme Court evaluates the privilege claim [242]
1) Swidler & Berlin v. United States [242]
5.7. The privilege for corporations [244]
5.7.1. The scope of the privilege for corporations [245]
a. Upjohn Co. v. United States [245]
5.7.2. Governmental requests for waiver of privilege [250]
a. Sarah Helene Duggin, Internal Corporate Investigations: Legal Ethics,
Professionalism, and the Employee Interview [251]
b. Sarah Helene Duggin, The Impact of the War over the Corporate Attorney-
Client Privilege on the Business of American Health Care [254]
c. The McNulty Memorandum [256]
d. Problem 4-4: Worldwide Bribery [259]
5.8. The work product doctrine [261]
5.8.1. Work product prepared in anticipation of litigation [261]

May 7, 2010
Page 7
 5.8.2. Origins of the work product rule [261]
5.8.3. Materials not created or collected in anticipation of litigation [262]
5.8.4. A qualified protection [262]
5.8.5. Protection of lawyer’s ‘‘mental impressions’’ [263]
5.8.6. Protection of work product, not underlying information [263]
6. Chapter 5: Relationships Between Lawyers and Clients [265]
6.1. Formation of the lawyer-client relationship [266]
6.1.1. Choosing clients [266]
6.1.2. Offering advice as the basis for a lawyer-client relationship [269]
a. Togstad v. Vesely, Otto, Miller & Keefe [269]
6.2. Lawyers’ responsibilities as agents [276]
6.2.1. Express and implied authority [276]
6.2.2. Apparent authority [277]
6.2.3. Authority to settle litigation [278]
6.3. Lawyer’s duties of competence, honesty, communication,and diligence
[279]
6.3.1. Competence [279]
a. Problem 5-1: The Washing Machine [283]
6.3.2. Competence in criminal cases [284]
a. Strickland v. Washington [285]
6.3.3. Diligence [291]
6.3.4. Candor and communication [293]
a. Is it ever okay to lie? [293]
b. Lying versus deception: Is there a moral distinction? [294]
c. Truth versus truthfulness [295]
d. Honesty and communication under the ethics rules [295]
e. Civil liability for dishonesty to clients [298]
1) Problem 5-2: Lying to Clients [299]
6.3.5. Candor in counseling [301]
a. Problem 5-3: Torture [302]
6.3.6. Contractual duties [304]
6.3.7. Contractual limits on representation: ‘‘unbundled legal services
[305]
6.4. Who calls the shots? [309]
6.4.1. The competent adult client [309]
a. Jones v. Barnes [313]
b. Problem 5-4: The Package Bomber [321]
6.4.2. Clients with diminished capacity [326]
a. Clients who may have mental disabilities [327]
1) Paul R. Tremblay, On Persuasion and Paternalism: Lawyer
Decisionmaking and the Questionably Competent Client [328]

May 7, 2010
Page 8
 2) Problem 5-5: Vinyl Windows331
3) Problem 5-6: Tightening the Knot333
b. Juveniles334
1) Martin Guggenheim, A Paradigm for Determining the Role of Counsel for
Children [335]
2) ABA, Standards of Practice for Lawyers Representing a Child in Abuse
and Neglect Cases (1996) [337]
3) Frances Gall Hill, Clinical Education and the ‘‘Best Interest’’
Representation of Children in Custody Disputes: Challenges and
Opportunities in and Pedagogy [339]
4) Problem 5-7: The Foster Child [341]
6.5. Terminating a lawyer-client relationship [344]
6.5.1. Duties to the client at the conclusion of the relationship [344]
a. Problem 5-8: The Candid Notes [346]
6.5.2. Grounds for termination before the work is completed [347]
a. When the client fires the lawyer [347]
b. When continued representation would involve unethical conduct
[347]
c. When the lawyer wants to terminate the relationship [348]
d. Matters in litigation [348\
e. When the client stops paying the fee [349\
f. When the case imposes an unreasonable financial burden on the
lawyer [349]
g. When the client will not cooperate [350\
7. Chapter 11: Lawyer’s Duties to Courts [593]
7.1. Being a good person in an adversary system [594]
7.1.1. Charles Fried, The Lawyer as Friend: The Moral Foundations of the
Lawyer-Client Relation [596]
7.1.2. Stephen Gillers, Can a Good Lawyer Be a Bad Person? [597]
7.2. Investigation before filing a complaint [598]
7.2.1. Problem 11-1: Your Visit from Paula Jones [604]
7.3. Truth and falsity in litigation [605]
7.3.1. The rules on candor to tribunals [606]
7.3.2. Which rule applies when? A taxonomy of truth-telling problems in
litigation [607]
7.3.3. A lawyer’s duties if a client or witness intends to give false testimony
[609]
a. When the lawyer believes that a criminal defendant intends to lie on the
stand [609]
1) Nix v. Whiteside [609]
b. A lawyer’s ‘‘knowledge’’ of a client’s intent to give false testimony
[615]

May 7, 2010
Page 9
 1) Problem 11-2: Flight from Sudan, Scene 1 [617]
c. A lawyer’s duties if a client intends to mislead the court without lying
[620]
1) Problem 11-3: Flight from Sudan, Scene 2 [622]
d. Variations in state rules on candor to tribunals [624]
7.3.4. False impressions created by lawyers during litigation [626]
a. How Simpson Lawyers Bamboozled a Jury [626]
b. Problem 11-4: The Drug Test [627]
c. Problem 11-5: The Body Double [629]
7.3.5. Lawyer’s duties of truthfulness in preparing witnesses to testify [629]
a. Problem 11-6: Refreshing Recollection [633]
7.4. Concealment of physical evidence and documents [634]
7.4.1. Duties of criminal defense lawyers with respect to evidence of crimes
[635]
a. Problem 11-7: Child Pornography [642]
7.4.2. Concealment of documents and evidence in civil cases [643]
a. A more limited obligation to reveal [643]
b. A lawyer’s duties in responding to discovery requests [645]
1) Wayne D. Brazil, Views from the Front Lines: Observations by
Chicago Lawyers About the System of Civil Discovery [646]
2) Ethics: Beyond the Rules (symposium) [648]
3) Problem 11-8: The Damaging Documents [651]
7.5. The duty to disclose adverse legal authority [654]
7.6. Disclosures in ex parte proceedings [656]
7.7. Improper influences on judges and juries [658]
7.7.1. Improper influences on judges [658]
a. Ex parte communication with judges [658]
b. Campaign contributions [660]
7.7.2. Improper influences on juries [660]
a. Lawyer’s comments to the press [660]
1) The Gentile case [661]
2) Problem 11-9: A Letter to the Editor [664]
3) Scott Brede, A Notable Case of Exceptionally Unsafe Sex [666]
b. Impeachment of truthful witnesses [666]
1) Harry I. Subin, The Criminal Defense Lawyer’s ‘‘Different Mission’’:
Reflections on the ‘‘Right’’ to Present a False Case [667]
c. Statements by lawyers during jury trials [669]
7.8. Lawyer’s duties in non adjudicative proceedings [674]
8. Chapter 12: Lawyer’s Duties to Adversaries and Third Persons [679]
8.1. Communications with lawyers and third persons [680]
8.1.1. Deception of third persons [680]

May 7, 2010
Page 10
 a. The duty to avoid material false statements [680]
1) Problem 12-1: Emergency Food Stamps [680]
b. Lawyer’s duties of truthfulness in fact investigation [683]
1) Apple Corps, Ltd. v. International Collectors Society [685]
2) The Gatti case [685]
3) In re Gatti [686]
c. Lawyer’s duties of truthfulness in negotiation [689]
1) Carrie Menkel-Meadow, Ethics, Morality and Professional
Responsibility in Negotiation [690]
d. Receipt of inadvertently transmitted information, including meta data
[692]
e. Obligations of disclosure to third persons [694]
8.1.2. Restrictions on contact with represented persons [694]
a. Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard
College [699]
8.1.3. Restrictions on contact with unrepresented persons [705]
a. Problem 12-2: The Complaining Witness [709]
b. Problem 12-3: The Break-In [711]
8.2. Duties of Prosecutors [713]
8.2.1. Ken Armstrong & Maurice Possley, Trial and Error,Part I: Verdict:
Dishonor [714]
8.2.2. Undercover investigations [715]
a. Problem 12-4: The Prosecutor’s Masquerade [717]
8.2.3. Required investigation by prosecutors before charges are filed [719]
8.2.4. Concealment of exculpatory evidence [720]
a. Duff Wilson, Hearing Ends in Disbarment for Prosecutor in Duke Case
[720]
8.2.5. Unreliable evidence [722]
8.2.6. Enforcement [724]
a. Ellen Yaroshefsky, Wrongful Convictions: It Is Time to Take Prosecution
Discipline Seriously [724]
8.3. Conduct prejudicial to the administration of justice [725]
8.3.1. Problem 12-5: The Suggested Boycott [727]
8.4. Are lawyers really too zealous? [728]
8.4.1. Ted Schneyer, Moral Philosophy’s Standard Misconception of Legal
Ethics [729]
9. Chapter 6: Concurrent Conflicts of Interest: General Principles [351]
9.1. An introduction to conflicts of interest [352]
9.1.1. Why the study of conflicts is difficult [354]
9.1.2. How the conflicts chapters are organized [356]
9.1.3. How the conflicts rules are organized [357]

May 7, 2010
Page 11
 9.2. General principles in evaluating concurrent conflicts [359]
9.2.1. Rule 1.7 [359]
a. Direct adversity [361]
b. Material limitation [362]
9.2.2. How to evaluate conflicts [362]
9.2.3. Nonconsentable conflicts [363]
a. The lawyer’s reasonable belief [364]
b. Representation prohibited by law [365]
c. Suing one client on behalf of another client [365\
9.2.4. Informed consent [365]
9.2.5. Withdrawal and disqualification [370]
9.2.6. Imputation of concurrent conflicts [371]
a. Problem 6-1: The Injured Passengers, Scene 1 [373]
9.3. Conflicts between current clients in civil litigation [374]
9.3.1. Suing a current client [375]
a. Problem 6-2: I thought you were my lawyer! [377]
9.3.2. Cross-examining a current client [378]
9.3.3. Representation of co-plaintiffs or co-defendants in civil litigation [379]
a. Problem 6-3: The Injured Passengers, Scene 2 [380]
9.3.4. Representing economic competitors in unrelated matters [380]
9.3.5. Conflicts in public interest litigation [381]
a. Problem 6-4: The Prisoner’s Dilemma [381]
9.3.6. Taking inconsistent positions in litigation [383]
a. Problem 6-5: Top Gun [384]
9.4. Conflicts involving prospective clients [386]
9.4.1. Problem 6-6: The Secret Affair [388]
10. Chapter 7: Concurrent Conflicts in Particular Practice Settings [391]
10.1. Representing both parties to a transaction [393]
10.2. Representing organizations [396]
10.2.1. Who is the client? [398]
10.2.2. Representing the entity and employees [400]
10.2.3. Duty to protect confidences of employees [401]
10.2.4. Responding to unlawful conduct by corporate officers and other
employees [402]
10.2.5. Entity lawyers on boards of directors [403]
a. Problem 7-1: My Client’s Subsidiary [404]
10.3. Representing family members [416]
10.3.1. Representing both spouses in a divorce [416]
10.3.2. Representing family members in estate planning [417]
a. Florida Bar Opinion 95-4417
b. Problem 7-5: Representing the McCarthy's [420]

May 7, 2010
Page 12
 11. Chapter 8: Conflicts Involving Former Clients [435]
11.1. The nature of conflicts between present and former clients [436]
11.2. Duties to former clients [438]
11.3. Distinguishing present and former clients [440]
11.3.1. Problem 8-1: Keeping in Touch [442]
11.4. Evaluating successive conflicts [445]
11.4.1. The same matter [445]
11.4.2. Substantial relationship [446]
11.4.3. Material adversity [455]
11.5. Addressing former client conflicts in practice [457]
11.5.1. Problem 8-2: The District Attorney [458]
11.6. Representing the competitor of a former client [459]
11.6.1. Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz [460]
11.7. Conflicts between the interests of a present client and a client who was
represented by a lawyer’s former firm [469]
11.7.1. Analyzing former firm conflicts [470]
11.7.2. Using or revealing a former client’s confidences [471]
a. Problem 8-3: A Dysfunctional Family Business [472]
11.8. Imputation of former client conflicts to affiliated lawyers [474]
11.8.1. Problem 8-4: The Fatal Shot [480]
12. Chapter 9: Conflicts Between Lawyers and Clients [483]
12.1. Legal fees [486]
12.1.1. Lawyer-client fee contracts486
a. Types of agreements486
b. Reasonable Fees487
12.1.2. Contingent fees527
a. In general527
b. Criminal and domestic relations cases530
12.1.3. Forbidden and restricted fee and expense arrangements532
a. Buying legal claims532
b. Financial assistance to a client533
1) Problem 9-3: An Impoverished Client533
2) Publication rights534
3) Advance payment of fees and nonrefundable retainer fees535
12.1.4. Fee disputes537
a. Prospective limitations of lawyer’s liability and settlement of claims
against lawyers537
b. Fee arbitration539
c. Collection of fees540
d. Fees owed to a lawyer who withdraws or is fired before the matter is
completed542

May 7, 2010
Page 13
 12.1.5. Dividing fees with other firms or with nonlawyers543
a. Division of fees between lawyers not in the same firm543
b. Sharing fees with nonlawyers545
12.1.6. Payment of fee by a third party546
12.2. Lawyer as custodian of client property and documents [547]
12.2.1. Client trust accounts547
12.2.2. Responsibility for client property548
a. Prompt delivery of funds or property548
b. Disputes about money or property in lawyer’s possession549
c. Lawyer’s responsibilities to client’s creditors550
12.2.3. Administering estates and trusts550
12.3. Conflicts with lawyer’s personal or business interests [551]
12.3.1. In general551
12.3.2. Business transactions between lawyer and client552
a. Problem 9-4: Starting a Business556
12.3.3. Gifts from clients557
12.3.4. Sexual relationships with clients558
12.3.5. Intimate or family relationships with adverse lawyers560
12.3.6. Imputation of lawyer-client conflicts to other lawyers in a firm560
a. Financial interest conflicts560
b. General rule on imputation of conflicts with a lawyer’s interests560
13. Chapter 15: The Provision of Legal Services [819]
13.1. The unmet need for legal services [820]
13.2. Sources of free legal services for those who cannot afford fees [826]
13.2.1. Pro bono representation [853]
a. Judith L. Maute, Changing Conceptions of Lawyers’ Pro Bono
Responsibilities: From Chance Noblesse Oblige to Stated Expectations
[858]
b. Deborah L. Rhode, Cultures of Commitment: Pro Bono for Lawyers and
Law Students [859]
c. Problem 15-3: Mandatory Pro Bono Service [862]
13.2.2. Loan forgiveness and scholarships for public service lawyers [862]
13.3. Restricting legal services: Limiting the role of lay advocates [865]
13.3.1. David C. Vladeck, Statement Before the ABA Commission on Non-
lawyer Practice [866]
13.3.2. Problem 15-4: Special Education [870]
13.3.3. Problem 15-5: Service to the Poor and Middle Class [872]
C. By the Notes & Slides
1. Introduction
1.1. Generally
1.1.1. Duty of silence

May 7, 2010
Page 14
 a. Confidentiality; attorney-client privilege
1.1.2. Duty of loyalty
a. Conflicts of interest between present clients; between present and past
client; between lawyer and client
1.1.3. Duty of truthfulness/candor
a. To tribunals, clients, adversaries, and third parties
1.1.4. Lawyer-client relationships
a. Formation & termination; counseling; fees; allocation of decision making
1.1.5. Government regulation of business of law
a. Advertising; solicitation; multi-jurisdictional practice
1.1.6. Provision and (mal)distribution of legal services
1.2. Broader Issues
1.2.1. Ethics vs. morality
1.2.2. Professionalism
1.2.3. Self-regulation of profession
1.2.4. Ethical decision making in classroom vs. real world
2. The Regulation of Lawyers
2.1. Institutions that Regulate
2.1.1. Highest state courts
2.1.2. State & local bar associations
2.1.3. Lawyer disciplinary agencies
2.1.4. ABA
2.1.5. ALI
2.1.6. Federal and state trial courts
2.1.7. Legislatures
2.1.8. Administrative agencies
2.1.9. Prosecutors
2.1.10. Malpractice insurers
2.1.11. Legal employers
2.1.12. Clients
2.2. History of ABA Model Ethics Rules
2.2.1. 1908 Canons of Ethics
2.2.2. 1969 Model Code of Professional Responsibility
2.2.3. 1983 Model Rules of Professional Conduct
2.2.4. 2002 “Ethics 2000” revision of MRPC
2.3. Primary Sources of Law
2.3.1. MRPC
a. ABA Model Rules of Professional Conduct
b. Organization of MRPC
1) Client-Lawyer Relationships
2) Counselor

May 7, 2010
Page 15
 3) Advocate
4) Transactions with Persons Other than Clients
5) Law Firms and Associations
6) Public Service
7) Information about Legal Services
8) Maintaining the Integrity of the Profession
2.3.2. Restatement (3rd) of Law of Layering
2.3.3. Federal constitutional law
2.3.4. Tort law
2.3.5. Evidence law
3. Admission to Practice
3.1. Generally
3.1.1. History
3.1.2. Bar exam
3.1.3. “Multi state” (MBE)- Performance component (not CT)
3.1.4. Essay Qs (MEE)- MPRE
3.1.5. Character & fitness
3.1.6. For further info:
a. http://www.law.uconn.edu/student-handbook/admission-bar
b. http://www.jud.state.ct.us/cbec
c. http://www.ncbex.org
3.2. Model Rule 8.1: Bar Admission And Disciplinary Matters
3.2.1. An 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:
3.2.2. (a) knowingly make a false statement of material fact; or
3.2.3. (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,
except that this rule does not require disclosure of information otherwise
protected by Rule 1.6.
4. Professional Discipline
4.1. History and Process
4.2. Grounds
4.2.1. Very broad
4.2.2. Need not be related to law practice
a. POTUS
b. Dean Geoffrey Peters (see pp. 86-96; not assigned)
4.3. Model Rule 8.4 Misconduct
4.3.1. It is professional misconduct for a lawyer to:
a. (a) violate or attempt to violate the Rules of Professional Conduct,

May 7, 2010
Page 16
 knowingly assist or induce another to do so, or do so through the acts of
another;
b. (b) commit a criminal act that reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects;
c. (c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
d. (d) engage in conduct that is prejudicial to the administration of justice;
e. (e) state or imply an ability to influence improperly a government agency
or official or to achieve results by means that violate the Rules of
Professional Conduct or other law; or
f. (f) knowingly assist a judge or judicial officer in conduct that is a violation
of applicable rules of judicial conduct or other law.
4.3.2. COMMENT 3 OF RULE 8.4
a. A lawyer who, in the course of representing a client, knowingly manifests
by words or conduct, bias or prejudice based upon race, sex, religion,
national origin, disability, age, sexual orientation or socioeconomic status,
violates paragraph (d) when such actions are prejudicial to the
administration of justice. Legitimate advocacy respecting the foregoing
factors does not violate paragraph (d). A trial judge's finding that
peremptory challenges were exercised on a discriminatory basis does not
alone establish a violation of this Rule.
4.4. Daniels v. Alander
4.4.1. 268 Conn. 320 (2004)
4.4.2. Hon. Jon Alander (Superior Court judge)
4.4.3. Attorney Douglas R. Daniels (lawyer/employer)
4.4.4. Attorney Dennis Driscoll (Daniels’ associate)
4.4.5. Inez Montalvo (client/mother)
4.4.6. Attorney Veronica Davis (client’s NJ lawyer)
4.4.7. Rule 3.3: Candor Toward the Tribunal
a. (a) A lawyer shall not knowingly:
1) (1) make a false statement of fact or law to a tribunal or fail to correct
a false statement of material fact or law previously made to the tribunal
by the lawyer;
2) (2) fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the position
of the client and not disclosed by opposing counsel; or
3) (3) offer evidence that the lawyer knows to be false. If a lawyer, the
lawyer’s client, or a witness called by the lawyer, has offered material
evidence and the lawyer comes to know of its falsity, the lawyer shall
take reasonable remedial measures, including, if necessary, disclosure
to the tribunal. A lawyer may refuse to offer evidence, other than the
testimony of a defendant in a criminal matter, that the lawyer
reasonably believes is false.
b. (b) A lawyer who represents a client in an adjudicative proceeding and

May 7, 2010
Page 17
 who knows that a person intends to engage, is engaging or has engaged in
criminal or fraudulent conduct related to the proceeding shall take
reasonable remedial measures, including, if necessary, disclosure to the
tribunal.
c. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion
of the proceeding, and apply even if compliance requires disclosure of
information otherwise protected by Rule 1.6.
d. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all
material facts known to the lawyer that will enable the tribunal to make an
informed decision, whether or not the facts are adverse.
4.5. Reporting misconduct
4.5.1. Duty
4.5.2. Ethical misconduct by superiors
4.5.3. Legal protections for subordinate lawyers
4.5.4. Rule 8.3 Reporting Professional Misconduct
a. (a) A lawyer who knows that another lawyer has committed a violation of
the Rules of Professional Conduct that raises a substantial question as to
that lawyer's honesty, trustworthiness or fitness as a lawyer in other
respects, shall inform the appropriate professional authority.
b. (b) A lawyer who knows that a judge has committed a violation of
applicable rules of judicial conduct that raises a substantial question as to
the judge's fitness for office shall inform the appropriate authority.
c. (c) This Rule does not require disclosure of information otherwise
protected by Rule 1.6 or information gained by a lawyer or judge while
participating in an approved lawyers assistance program.
4.6. Subordinate lawyers
4.6.1. Rule 5.1: Responsibilities Of Partners,Managers, And Supervisory
Lawyers
a. (a) A partner in a law firm, and a lawyer who individually or together with
other lawyers possesses comparable managerial authority in a law firm,
shall make reasonable efforts to ensure that the firm has in effect measures
giving reasonable assurance that all lawyers in the firm conform to the
Rules of Professional Conduct.
b. (b) A lawyer having direct supervisory authority over another lawyer shall
make reasonable efforts to ensure that the other lawyer conforms to the
Rules of Professional Conduct.
c. (c) A lawyer shall be responsible for another lawyer's violation of the
Rules of Professional Conduct if:
1) (1) the lawyer orders or, with knowledge of the specific conduct,
ratifies the conduct involved; or
2) (2) the lawyer is a partner or has comparable managerial authority in
the law firm in which the other lawyer practices, or has direct
supervisory authority over the other lawyer, and knows of the conduct
at a time when its consequences can be avoided or mitigated but fails

May 7, 2010
Page 18
 to take reasonable remedial action.
4.6.2. Rule 5.2: Responsibilities Of A Subordinate Lawyer
a. (a) A lawyer is bound by the Rules of Professional Conduct
notwithstanding that the lawyer acted at the direction of another person.
b. (b) A subordinate lawyer does not violate the Rules of Professional
Conduct if that lawyer acts in accordance with a supervisory lawyer's
reasonable resolution of an arguable question of professional duty.
4.6.3. Rule 5.3: Responsibilities Regarding Nonlawyer Assistants
a. With respect to a non lawyer employed or retained by or associated with a
lawyer:
1) (a) a partner, and a lawyer who individually or together with other
lawyers possesses comparable managerial authority in a law firm shall
make reasonable efforts to ensure that the firm has in effect measures
giving reasonable assurance that the person's conduct is compatible
with the professional obligations of the lawyer;
2) (b) a lawyer having direct supervisory authority over the non lawyer
shall make reasonable efforts to ensure that the person's conduct is
compatible with the professional obligations of the lawyer; and
3) (c) a lawyer shall be responsible for conduct of such a person that
would be a violation of the Rules of Professional Conduct if engaged
in by a lawyer if:
i. (1) the lawyer orders or, with the knowledge of the specific
conduct, ratifies the conduct involved; or
ii. (2) the lawyer is a partner or has comparable managerial authority
in the law firm in which the person is employed, or has direct
supervisory authority over the person, and knows of the conduct at
a time when its consequences can be avoided or mitigated but fails
to take reasonable remedial action.
4.6.4. Rule 1.1: Competence
a. A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
4.6.5. Problem 2-1:The Little Hearing
a. Brand-new lawyer, working for solo.
b. Boss made her handle immigration hearing for which she was utterly
unprepared.
c. Wants her to handle two hearings tomorrow.
4.7. Civil Liability
4.7.1. Negligence; breach of contract; fraud; etc
4.7.2. Damages; possibly injunction
4.8. Criminal Liability
4.8.1. Fraud; theft; etc
4.8.2. Incarceration; fines

May 7, 2010
Page 19
 4.9. DISCIPLINARY
4.9.1. Violation of ethical rule(s)
4.9.2. Reprimand, suspension or disbarment
4.10. Legal Malpractice
4.10.1. Most common causes of action
a. Negligence
b. Breach of contract
c. Breach of fiduciary duty
4.10.2. Notion of “case within the case”
4.10.3. Liability to non-clients
4.10.4. Client protection funds
4.10.5. Malpractice insurance
5. Duty of Confidentiality
5.1. Sources
5.1.1. Ethics codes
5.1.2. Evidence law
5.1.3. Agency law
5.1.4. Civil procedure rules
5.2. Basic Principles
5.2.1. Problem 2-2:Your Dinner With Anna
5.2.2. Rule 1.6 Confidentiality Of Information
a. (a) A lawyer shall not reveal information relating to the representation of a
client unless the client gives informed consent, the disclosure is impolitely
authorized in order to carry out the representation or the disclosure is
permitted by paragraph (b).
b. (b) A lawyer may reveal information relating to the representation of a
client to the extent the lawyer reasonably believes necessary:
1) (1) to prevent reasonably certain death or substantial bodily harm;
2) (2) to prevent the client from committing a crime or fraud that is
reasonably certain to result in substantial injury to the financial
interests or property of another and in furtherance of which the client
has used or is using the lawyer's services;
3) (3) to prevent, mitigate or rectify substantial injury to the 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) (4) to secure legal advice about the lawyer's compliance with these
Rules;
5) (5) to establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and the client, 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

May 7, 2010
Page 20
 proceeding concerning the lawyer's representation of the client; or
6) (6) to comply with other law or a court order.
c. Comment 4 to Rule 1.6: This prohibition also applies to disclosures by a
lawyer that do not in themselves reveal protected information but could
reasonably lead to the discovery of such information by a third person. A
lawyer's use of a hypothetical to discuss 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
d. Comment 18 to Rule 1.6: The duty of confidentiality continues after the
client-lawyer relationship has terminated. See Rule 1.9(c)(2)....
e. Rule 1.6(b)(1) in Connecticut
1) MRPC
i. A lawyer may reveal information relating to the representation of a
client to the extent the lawyer reasonably believes necessary . . . to
prevent reasonably certain death or substantial bodily harm
2) Connecticut
i. A lawyer shall reveal such information to the extent necessary to
prevent the client from committing a criminal or fraudulent act that
the lawyer believes is likely to result in death or substantial bodily
harm.
3) CT Not As Lenient -- Requires more reporting
5.2.3. Restatement 3d, § 60: A Lawyer’s Duty to Safeguard Confidential Client
Information
a. (1) [D]uring and after representation of a client:
1) (a) the lawyer may not use or disclose confidential client information
. . . if there is a reasonable prospect that doing so will adversely affect
a material interest of the client or if the client has instructed the lawyer
not to use or disclose such information
5.2.4. Problems 3-3 & 3-4: Missing Persons
5.3. Exceptions
5.3.1. Past Criminal Conduct
5.3.2. Risk of Future Injury/Death
a. Model Rule 1.6(b)(1):
1) A lawyer may reveal information relating to the representation of a
client to the extent the lawyer reasonably believes necessary: to
prevent reasonably certain death or substantial bodily harm;
2) ABA Canons of Ethics(circa 1962)
i. It is the duty of a lawyer to preserve his client’s confidences. . . .
The announced intention of a client to commit a crime is not
included in the confidences he is bound to respect. He may
properly make such disclosures as may be necessary to prevent the
act or protect against whom it is threatened

May 7, 2010
Page 21
 5.3.3. Client Frauds and Crimes
a. Connecticut's 1.6(b)(1)
1) A lawyer shall reveal such information to the extent necessary to
prevent the client from committing a criminal or fraudulent act that the
lawyer believes is likely to result in death or substantial bodily harm.
2) MBCA - May report when reasonable certain death or substantial harm
3) CT lawyer must report future fiscal harm
b. Fraud?
1) Model Rule 1.0 Terminology: [d&f]
i. (d) "Fraud" or "fraudulent" denotes conduct that is fraudulent
under the substantive or procedural law of the applicable
jurisdiction and has a purpose to deceive
ii. (f)"Knowingly," "known," or "knows" denotes actual knowledge of
the fact in question. A person's knowledge may be inferred from
circumstances
2) 1.2(d) Scope Of Representation And Allocation Of Authority Between
Client And Lawyer
i. (d) A lawyer shall not counsel a client to engage, or assist a client,
in conduct that the lawyer knows is criminal or fraudulent, but a
lawyer may discuss the legal consequences of any proposed course
of conduct with a client and may counsel or assist a client to make
a good faith effort to determine the validity, scope, meaning or
application of the law.
3) An intentional or knowing misrepresentation to another person [page
192]
c. Rule 1.6(b)(2) vs 1.6(b)(3) Confidential Information
1) (b) EXCEPTIONS: A lawyer may reveal information relating to the
representation of a client to the extent the lawyer reasonably believes
necessary:
i. (b)(2) to prevent the client from committing a crime or fraud that is
reasonably certain to result in substantial injury to the financial
interests or property of another and in furtherance of which the
client has used or is using the lawyer's services;
ii. (b)(3) to prevent, mitigate or rectify substantial injury to the
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;
2) Distinctions: PAST VS FUTURE HARM PREVENTION
i. Harm Sought To Be Prevented

1.6(b)(2): Substantial injury to financial or property interests of
another resulting from client crime/fraud

1.6(b)(3): Substantial injury to financial or property interests of
another resulting from client crime/fraud

May 7, 2010
Page 22
 ii. Timing Of Client Crime/Fraud

1.6(b)(2): Future

1.6(b)(3): Past
iii. Likelihood Of Harm Needed To Trigger

1.6(b)(2): Reasonable certainty

1.6(b)(3): Reasonable certainty
iv. Must Lawyer’s Services Have Been Used In Furtherance?

1.6(b)(2): Yes

1.6(b)(3): Yes
d. Rule 1.6(b)(2) AND 1.6(b)(3) VS SARBANES-OXLEY
1) Applies To
i. 1.6: All lawyers (in states that have adopted)
ii. Sar-Ox: Only lawyers practicing before SEC and dealing with
publicly-held companies
2) Disclosure Obligation
i. 1.6: Lawyers may and in some cases must disclose fraud of any
type
ii. Sar-Ox: Lawyers must report securities fraud to management and
may report to SEC
3) Must Lawyer’s Services Have Been Used In Furtherance?
i. 1.6: Yes
ii. Sar-Ox: NO
e. 1.9(c): Duties to Former Clients: Same Exceptions as to Current Clients
1) (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:
i. (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
ii. (2) reveal information relating to the representation except as these
Rules would permit or require with respect to a client
f. Rule 1.16 Declining Or Terminating Representation (a&b are important
here)
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:
i. (1) the representation will result in violation of the rules of
professional conduct or other law;
ii. (2) the lawyer's physical or mental condition materially impairs the
lawyer's ability to represent the client; or
iii. (3) the lawyer is discharged.

May 7, 2010
Page 23
 2) (b) Except as stated in paragraph (c), a lawyer may withdraw from
representing a client if:
i. (1) withdrawal can be accomplished without material adverse
effect on the interests of the client;
ii. (2) the client persists in a course of action involving the lawyer's
services that the lawyer reasonably believes is criminal or
fraudulent;
iii. (3) the client has used the lawyer's services to perpetrate a crime or
fraud;
iv. (4) the client insists upon taking action that the lawyer considers
repugnant or with which the lawyer has a fundamental
disagreement;
v. (5) the client fails substantially to fulfill an obligation to the lawyer
regarding the lawyer's services and has been given reasonable
warning that the lawyer will withdraw unless the obligation is
fulfilled;
vi. (6) the representation will result in an unreasonable financial
burden on the lawyer or has been rendered unreasonably difficult
by the client; or
vii. (7) other good cause for withdrawal exists.
g. Rule 1.2 Scope Of Representation And Allocation Of Authority Between
Client And Lawyer [here (d) is important]
1) (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's
decisions concerning the objectives of representation and, as required
by Rule 1.4, shall consult with the client as to the means by which they
are to be pursued. A lawyer may take such action on behalf of the
client as is impliedly authorized to carry out the representation. A
lawyer shall abide by a client's decision whether to settle a matter. In a
criminal case, the lawyer shall abide by the client's decision, after
consultation with the lawyer, as to a plea to be entered, whether to
waive jury trial and whether the client will testify.
2) (b) A lawyer's representation of a client, including representation by
appointment, does not constitute an endorsement of the client's
political, economic, social or moral views or activities.
3) (c) A lawyer may limit the scope of the representation if the limitation
is reasonable under the circumstances and the client gives informed
consent.
4) (d) A lawyer shall not counsel a client to engage, or assist a client, in
conduct that the lawyer knows is criminal or fraudulent, but a lawyer
may discuss the legal consequences of any proposed course of conduct
with a client and may counsel or assist a client to make a good faith
effort to determine the validity, scope, meaning or application of the
law.
5) COMMENT 10: When the client's course of action has already begun
and is continuing, the lawyer's responsibility is especially delicate. The

May 7, 2010
Page 24
 lawyer is required to avoid assisting the client, for example, by drafting
or delivering documents that the lawyer knows are fraudulent or by
suggesting how the wrongdoing might be concealed. A lawyer may not
continue assisting a client in conduct that the lawyer originally
supposed was legally proper but then discovers is criminal or
fraudulent. The lawyer must, therefore, withdraw from the
representation of the client in the matter. See Rule 1.16(a). In some
cases, withdrawal alone might be insufficient. It may be necessary for
the lawyer to give notice of the fact of withdrawal and to disaffirm any
opinion, document, affirmation or the like. See Rule 4.1
h. Rule 1.18 Duties To Prospective Client [here, (a)&(b) are important]
1) (a) A person who discusses with a lawyer the possibility of forming a
client-lawyer relationship with respect to a matter is a prospective
client.
2) (b) Even when no client-lawyer relationship ensues, a lawyer who has
had discussions with a prospective client shall not use or reveal
information learned in the consultation, except as Rule 1.9 would
permit with respect to information of a former client.
3) Comment 2: Not all persons who communicate information to a
lawyer are entitled to protection under this Rule. A person who
communicates information unilaterally to a lawyer, without any
reasonable expectation that the lawyer is willing to discuss the
possibility of forming a client-lawyer relationship, is not a "prospective
client" within the meaning of paragraph (a).
i. Rule 3.3 Candor Toward The Tribunal
1) (a) A lawyer shall not knowingly:
i. (1) make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously made to
the tribunal by the lawyer;
ii. (2) fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the
position of the client and not disclosed by opposing counsel; or
iii. (3) offer evidence that the lawyer knows to be false. If a lawyer, the
lawyer’s client, or a witness called by the lawyer, has offered
material evidence and the lawyer comes to know of its falsity, the
lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer may refuse to offer
evidence, other than the testimony of a defendant in a criminal
matter, that the lawyer reasonably believes is false.
2) (b) A lawyer who represents a client in an adjudicative proceeding and
who knows that a person intends to engage, is engaging or has engaged
in criminal or fraudulent conduct related to the proceeding shall take
reasonable remedial measures, including, if necessary, disclosure to the
tribunal.
3) (c) The duties stated in paragraphs (a) and (b) continue to the

May 7, 2010
Page 25
 conclusion of the proceeding, and apply even if compliance requires
disclosure of information otherwise protected by Rule 1.6.
4) (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all
material facts known to the lawyer that will enable the tribunal to make
an informed decision, whether or not the facts are adverse
j. Rule 4.1 Truthfulness In Statements To Others
1) In the course of representing a client a lawyer shall not knowingly:
i. (a) make a false statement of material fact or law to a third person;
or
ii. (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.
2) COMMENT 3: Under Rule 1.2(d), a lawyer is prohibited from
counseling or assisting a client in conduct that the lawyer knows is
criminal or fraudulent. Paragraph (b) states a specific application of the
principle set forth in Rule 1.2(d) and addresses the situation where a
client’s crime or fraud takes the form of a lie or misrepresentation.
Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by
withdrawing from the representation. Sometimes it may be necessary
for the lawyer to give notice of the fact of withdrawal and to disaffirm
an opinion, document, affirmation or the like. In extreme cases,
substantive law may require a lawyer to disclose information relating
to the representation to avoid being deemed to have assisted the
client’s crime or fraud. If the lawyer can avoid assisting a client’s
crime or fraud only by disclosing this information, then under
paragraph (b) the lawyer is required to do so, unless the disclosure is
prohibited by Rule 1.6.
k. 8.4(c) It is professional misconduct for a lawyer to:(c) engage in conduct
involving dishonesty, fraud, deceit or misrepresentation;
5.4. Attorney Work-Product Doctrine
5.5. Attorney-Client Privilege
5.5.1. Elements of Attorney-Client Privilege (Rest. 3d § 68)
a. A communication
b. Made between privileged persons
c. In confidence
d. For purpose of obtaining or providing legal assistance for client
5.5.2. Survival of Duty after Client's Death
a. Rule 1.6, Comment 18: The duty of confidentiality continues after the
client-lawyer relationship has terminated. See Rule 1.9(c)(2)....
b. Rule 1.9 (Duties to Former Clients): (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: (2) reveal
information relating to the representation except as these Rules would
permit or require with respect to a client.

May 7, 2010
Page 26
 c. Problem 4-3: The Dead Murderer
1) Actual case: State v. Macumber, 544 P.2d 1084 (AZ 1976)
2) Lawyer obtained informal ethics opinion from state bar OK’ing
disclosure.
3) But trial court barred lawyer’s testimony based on privilege, and AZ
Supreme Court affirmed.
4) Macumber convicted, but new trial ordered on other grounds
5.5.3. Comparison: Duty of Confidentiality & Attorney-Client Privilege
a. Purpose
1) Duty of Confidentiality: Encourage full & frank communication
2) Attorney-Client Privilege: Encourage full & frank communication
b. Source
1) Duty of Confidentiality: Ethics Rule
2) Attorney-Client Privilege:: Evidence rule
c. Scope
1) Duty of Confidentiality: Broad
2) Attorney-Client Privilege: Narrow
d. When Applicable
1) Duty of Confidentiality: Across the Board
2) Attorney-Client Privilege: Proceedings before tribunals
e. Exceptions
1) Duty of Confidentiality: Six explicitly enumerated
2) Attorney-Client Privilege: Common law “crime-fraud” exception
i. Exception for communications in which client sought or received
help from lawyer to plan or commit crime or fraud.
ii. Unnecessary that crime or fraud actually occurred.
iii. Immaterial whether lawyer actually knows about client’s improper
purpose.
iv. Mere disclosure to lawyer not enough to trigger exception
f. Enforcement
1) Duty of Confidentiality: Professional Discipline
2) Attorney-Client Privilege: Objection/Motion/etc
5.5.4. Attorney-Client Privilege: Corporations
a. Upjohn Co. v. US (1981)
1) Expands scope of privilege beyond “control group.”
2) Not binding on states.
b. Privilege belongs to client, i.e., corporation.
c. Raises numerous practical/ethical problems:
1) Whether/when to tell employees whom counsel represents.
2) How to respond to question, “Do I need my own lawyer?”
3) How to advise corporation re gov’t demands for waiver.

May 7, 2010
Page 27
 d. “The internal investigation has become a hallmark of corporate legal
practice.” (Duggin articles)
6. Lawyer-Client Relationships
6.1. Formation
6.1.1. Generally:
a. A lawyer may always turn down a client
b. Rule 1.18 Duties To Prospective Client
1) (a) A person who discusses with a lawyer the possibility of forming a
client-lawyer relationship with respect to a matter is a prospective
client.
2) (b) Even when no client-lawyer relationship ensues, a lawyer who has
had discussions with a prospective client shall not use or reveal
information learned in the consultation, except as Rule 1.9 would
permit with respect to information of a former client.
3) (c) A lawyer subject to paragraph (b) shall not represent a client with
interests materially adverse to those of a prospective client in the same
or a substantially related matter if the lawyer received information
from the prospective client that could be significantly harmful to that
person in the matter, except as provided in paragraph (d). If a lawyer is
disqualified from representation under this paragraph, no lawyer in a
firm with which that lawyer is associated may knowingly undertake or
continue representation in such a matter, except as provided in
paragraph (d).
4) (d) When the lawyer has received disqualifying information as defined
in paragraph (c), representation is permissible if:
i. (1) both the affected client and the prospective client have given
informed consent, confirmed in writing, or:
ii. (2) the lawyer who received the information took reasonable
measures to avoid exposure to more disqualifying information than
was reasonably necessary to determine whether to represent the
prospective client; and

(i) the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee
therefrom; and

(ii) written notice is promptly given to the prospective client.
6.1.2. Exceptions:
a. Rule 6.1 (“Voluntary Pro Bono Publico Service”)
1) Every lawyer has a professional responsibility to provide legal services
to those unable to pay. A lawyer should aspire to render at least (50)
hours of pro bono publico legal services per year. . . .
b. Rule 6.2 (“Accepting Appointments”)
1) A lawyer shall not seek to avoid appointment by a tribunal to represent
a person except for good cause . . . .
c. Nathanson v. MCAD (2003) (P. 268, n.4)

May 7, 2010
Page 28
 6.1.3. Togstad v. Vesely, et al., 291 N.W.2d 686 (Minn.1980) [see also
Gillespie v. Klun, 406 N.W.2d 547 (Minn. App. 1987)]. . involved large
malpractice liabilities to plaintiff who successfully claimed to have been
client, but whom the defendant lawyer did not regard as a client.
a. Facts: Atty Miller, and associate of Df firm, represented the respondents,
involved in a medical malpractice suit. The respondent’s diagnosis was an
anuerism and a clamp was inserted over the artery and gradually closed.
Upon discovery that the clamp was stopping the flow of blood to the brain,
causing paralysis, by a nurse, the staff failed to open or adjust the clamp in
time, and the respondent was left paralyzed in his right arm and leg, and
unable to speak. Respondent’s wife met with the atty and described
everything that happened at the hospital. Miller informed her that he did
not believe there was a legal case. Relying on that information she did not
discuss the case with another atty until a year later, and the statute of
limitations had expired.
b. Issue: Whether the attorney and law firm committed legal malpractice
during the initial consultation with the respondents informing them that
they did not have a legal claim and not providing competent legal advise?
c. Holding: Yes.
d. Procedure: Jury verdict for respondents, $610,000 + $39,000. Affirmed.
e. Rule: Legal malpractice consists of 1) an atty-client relationship existed;
2) the Df acted negligently or in breach of contract; 3) such acts were the
proximate cause of the Pl’s damages; 4) but for the Df’s conduct the Pls
would have been successful in their original claim.
f. Rationale: Mrs Togstad went to Miller for legal advise, was told there
wasn’t a claim and relied on this advise in failing to pursue the claim.
Thus an atty-client relationship existed. Based on the testimony of the Df’s
own witness ordinary care and diligence required Miller to inform the
respondents of the statute of limitations, and it was reasonable for the jury
to determine he acted negligently in failing to so inform the respondents.
The record contains sufficient evidence that Miller failed to perform the
minimal research that an ordinary prudent attorney would do before
rendering legal advise in a case of this nature. When Mrs. Togstad
contacted the other atty a year after speaking with Miller, only three days
maximum would have remained on the limitation period, Miller was the
direct cause of the plaintiff’s damages. The evidence shows that but for
Miller’s negligence the respondent’s would have been successful in their
claim of medical malpractice. The jury should not have been instructed to
reduce any award by the amount of a hypothetical contingency fee.
g. Pl : Mrs. Togstad went to Miller for legal advice, was told there wasn’t a
case, and relied upon that advise in failing to pursue the claim, and Miller
did not urge her to seek advise from another atty, or that he lacked
expertise in the medical malpractice area.
6.2. Agency
6.2.1. Lawyers are agents of their clients (“principals”)

May 7, 2010
Page 29
 6.2.2. Types of authority:
a. Actual
b. Express
c. Implied
d. Apparent
6.2.3. Clients are generally bound by actions of their lawyers except with
respect to:
a. Waiver of privilege
b. Settlement of a case
6.3. Duty of Competence
6.3.1. Rule 1.1 Competence
a. A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
b. A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation
c. COMMENT 2: A lawyer need not necessarily have special training or
prior experience to handle legal problems of a type with which the lawyer
is unfamiliar. A newly admitted lawyer can be as competent as a
practitioner with long experience. . . . A lawyer can provide adequate
representation in a wholly novel field through necessary study. Competent
representation can also be provided through the association of a lawyer of
established competence in the field in question.
6.3.2. Competence in criminal cases
a. Strickland v. Washington (error, alone, is not sufficient to prove that a
defendant was deprived of their constitutional right to effective assistance
of counsel; A claim that counsel was ineffective must rise to the level that
it would be viewed as a denial of the right to counsel)
1) 466 U.S. 668 (1984), the United States Supreme Court established a
two-part test for establishing a claim of ineffective assistance of
counsel. Under this test, a criminal defendant may not obtain relief
unless he can show that counsel's performance fell below an objective
standard of reasonableness, and that counsel's performance gives rise
to a reasonable probability that, if counsel had performed adequately,
the result of the proceeding-the trial, the sentencing hearing, the
appeal-would have been different.
2) Respondent, Strickland, during a ten-day period, committed three
groups of crimes, including three brutal capital murders, torture,
kidnapping and attempted murders. Respondent pled guilty to all
crimes and, stated that he accepted responsibility for the crimes and
had only acted under extreme mental stress resulting from his inability
to care for his family. Against the advice of his counsel, he waived his
right to an adversarial jury at his sentencing hearing, and chose to be

May 7, 2010
Page 30
 sentenced by the Judge. Because the defendant had already claimed
extreme mental stress, his counsel used that, along with information
from his wife and mother to establish his character. He did not request
psychiatric evaluation, did not look for further mitigating evidence,
and did not request a pre-sentencing report. Counsel’s decisions were
said to reflect his hopelessness after his client pled to all offenses.
Strickland was sentenced to death, and he sought habeas corpus relief
due the failures of his counsel to come up with mitigating evidence.
3) Issue. Whether, after a defendant has pled guilty in a capital murder
case, counsel has a duty to present mitigating evidence, in order to
meet the Sixth Amendment standard for effectiveness.
4) Held. The Supreme Court, in an opinion authored by Justice
O’Connor, held that while counsel may have committed error, it was
not so ineffective as to overturn a death sentence. Dissent. Justices
Brennan and Marshall dissented, holding that in the case of a capital
crime, sentencing should be reconsidered if the counsel is found to
have committed error.
5) Discussion. In the course of her opinion, justice O’Connor fully
delineated the rule on what the Sixth Amendment encompasses when
it considers effective assistance: First the benchmark for judging any
claim of ineffectiveness must be whether the counsel’s conduct so
undermined the proper functioning of the judicial process that the
entire trial cannot be relied upon as just in result; Next the defendant
must meet a two prong test in order to show that assistance of counsel
was so defective as to require reversal or setting aside of a death
sentence: (1) the counsel’s performance must be deficient, and (2) that
deficient performance must have prejudiced the defendant so much as
to have deprived him of a the right to a fair trial; When judging the
performance of an attorney, counsel must be given a great deal of
latitude, considering all circumstances. each case must be considered
on a case-by-case basis; and Also, in a federal habeas challenge to a
state criminal judgment, a state court conclusion that counsel rendered
effective assistance is not a finding of fact binding on the federal court,
but it is a mixed question of law and fact.
b. Lawyer “Competence” Compared:6th Amendment vs. Ethics Rules
1) How Raised Procedurally
i. 6th Amendment: Appeal of criminal conviction or habeas corpus
petition
ii. Ethics Rules: Grievance
2) Legal Standard
i. 6th Amendment: Very low bar -- Defendant effectively deprived of
counsel -- Trial unfair, result unreliable
ii. Ethics Rules: Rule 1.1 -- Low bar perhaps, but not that low
3) Showing of Harm Required?
i. 6th Amendment: Yes

May 7, 2010
Page 31
 ii. Ethics Rules: No
4) Remedy
i. 6th Amendment: Reversal of Conviction
ii. Ethics Rules: Lawyer Discipline
6.4. Duties of Diligence, Honesty & Communication [& TORTURE MEMO
NOTES]
6.4.1. Rule 2.1 Advisor
a. In representing a client, a lawyer shall exercise independent professional
judgment and render candid advice. In rendering advice, a lawyer may
refer not only to law but to other considerations such as moral, economic,
social and political factors, that may be relevant to the client's situation.
b. COMMENT 1: A client is entitled to straightforward advice expressing
the lawyer's honest assessment. Legal advice often involves unpleasant
facts and alternatives that a client may be disinclined to confront. In
presenting advice, a lawyer endeavors to sustain the client's morale and
may put advice in as acceptable a form as honesty permits. However, a
lawyer should not be deterred from giving candid advice by the prospect
that the advice will be unpalatable to the client
6.4.2. Duty of Dilligence
a. Rule 1.3 Diligence:
1) A lawyer shall act with reasonable diligence and promptness in
representing a client
2) COMMENT 1: A lawyer must . . . act with commitment and
dedication to the interests of the client and with zeal in advocacy upon
the client's behalf. A lawyer is not bound, however, to press for every
advantage that might be realized for a client. . . . The lawyer’s duty to
act with reasonable diligence does not require the use of offensive
tactics or preclude the treating of all persons. . . with courtesy and
respect.
6.4.3. Duty of Communication
a. Rule 1.4 Communication
1) (a) A lawyer shall:
i. (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;
ii. (2) reasonably consult with the client about the means by which the
client's objectives are to be accomplished;
iii. (3) keep the client reasonably informed about the status of the
matter;
iv. (4) promptly comply with reasonable requests for information; and
v. (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.

May 7, 2010
Page 32
 2) (b) A lawyer shall explain a matter to the extent reasonably necessary
to permit the client to make informed decisions regarding the
representation.
6.4.4. Torture Memos
a. Generally:
1) The Torture Memos, sometimes called the Bybee Memo or 8/1/02
Interrogation Opinion, were a set of legal memoranda drafted by
Deputy Assistant Attorney General of the United States John Yoo and
signed by Assistant Attorney General Jay Bybee. They advised the
Central Intelligence Agency, the United States Department of Defense,
and the President on the use of mental and physical torment and
coercion such as prolonged sleep deprivation, binding in "stress
positions," and waterboarding, and stated that acts widely regarded as
torture might be legally permissible under an expansive interpretation
of Presidential authority during the "War on Terror." These
memoranda have been the focus of considerable controversy, and were
repudiated by President Barack Obama in early 2009
2) The "torture memos" include three documents entitled, "Standards of
Conduct for Interrogation under 18 U.S.C. sections 2340-2340A,"
"Interrogation of al Qaeda" (both drafted by Jay Bybee), and an
untitled letter from John Yoo to Alberto Gonzales
b. Jay Bybee, then Assistant Attorney General of the United States of
America, addressed a memorandum to Alberto Gonzales, then Counsel to
the President, dated August 1, 2002, entitled “Standards for Conduct for
Interrogation under 18 U.S.C. 2340-2340A,” in response to the President’s
reported request for legal opinion on the U.N. Convention Against Torture
and 18 U.S.C. section 2340 and the interrogation of al Qaeda operatives.
1) This is the primary “torture memo,” which defines the Department of
Justice’s interpretation of torture, and is relied upon heavily by the
subsequent “torture memos.” It discusses the language of the torture
statute (18 U.S.C. sections 2340-2340A) in great detail in order to
derive its definition of torture, states that “cruel, inhuman, or
degrading” treatment is not torture according to that statute, and
examines “possible defenses that would negate any claim that certain
interrogation methods violate the statute.”
2) It concludes that torture is only extreme acts according to the
Convention Against Torture, that severe pain (a requisite for his
definition of torture) is “serious physical injury, such as organ failure,
impairment of bodily function, or even death,” that prolonged mental
harm is harm that must last for “months or even years,” that
“prosecution under Section 2340A may be barred because enforcement
of the statute would represent an unconstitutional infringement of the
President’s authority to conduct war,” and that “under the current
circumstances, necessity or self-defense may justify interrogation
methods that might violate Section 2340A.”
c. OPR investigation

May 7, 2010
Page 33
 1) The Justice Department's Office of Professional Responsibility
reviewed the work of principal author John Yoo, now a law professor,
and signatory Jay Bybee, now a federal judge, to determine whether
the advice given "was consistent with the professional standards that
apply to Department of Justice attorneys." In its 261 page final report,
the Office for Professional Responsibility concluded that the legal
opinions that justified waterboarding and other interrogation tactics on
Al Qaeda suspects in American custody amounted to professional
misconduct, and that Professor Yoo in particular "knowingly failed to
provide a thorough, objective, and candid interpretation of the law,"
recommending referral to the Bar for disciplinary action.
i. Exaggerated and/or misstated “the significance of authority that
supported the desired result”
ii. Ignored and/or failed to discuss adverse authority “accurately and
fairly”
iii. Used “convoluted and counterintuitive arguments to support the
desired result while ignoring more straightforward and reasonable
arguments contrary to the desired result”
iv. Adopted “inconsistent reasoning or arguments to favor the desired
result”
v. Advanced “frivolous or erroneous arguments to support the desired
result”
2) However, career Justice department lawyer David Margolis in a
Memorandum dated January 5, 2010 countermanded the recommended
referral. While Margolis was careful to avoid "an endorsement of the
legal work" which he said was "flawed" and "contained errors more
than minor," he concluded that Yoo had merely exercised "poor
judgment" which did not rise to the level of "professional misconduct"
sufficient to authorize OPR to refer its findings to the state bar
disciplinary authorities.
i. No violation of “clear and unambiguous” ethical standard
ii. Yoo lacked scienter because he had drunk too much of his own
Kool-Aid
iii. Divide and conquer approach: no single omission/ exaggeration
amounts to misconduct
iv. Post-9/11 context
v. (Political/institutional concerns?)
d. Criticism
1) The memo has been widely criticized. Yale law school Dean and
former Assistant Secretary for Human Rights Harold Koh called it
"perhaps the most clearly erroneous legal opinion I have ever read"
which "grossly overreads the president's constitutional power."Former
Nixon White House counsel John Dean, whose name was cemented in
the national consciousness by his involvement in the Watergate
scandal, concludes that the memo is tantamount to evidence of a war

May 7, 2010
Page 34
 crime. On March 9, 2006, after emerging from a closed talk at
Harvard Law School sponsored by the student chapter of the Federalist
Society, a legal organization, Bybee was confronted by around thirty-
five protesters.
2) Yoo's legal opinions were controversial within the Bush
Administration. Secretary of State Colin Powell strongly opposed the
invalidation of the Geneva Conventions while U.S. Navy general
counsel Alberto Mora campaigned internally against what he saw as
the "catastrophically poor legal reasoning" and dangerous extremism
of Yoo's legal opinions. Philip D. Zelikow, former State Department
adviser to Condoleezza Rice, testified to the Senate Judiciary
Committee, "It seemed to me that the OLC interpretation of U.S.
Constitutional Law in this area was strained and indefensible. I could
not imagine any federal court in America agreeing that the entire CIA
program could be conducted and it would not violate the American
Constitution." Zelikow also alleged that Bush administration officials
not only ignored his memos, but attempted to destroy them.
3) In June 2004, the memo was rescinded by Jack Goldsmith, who had
taken over OLC in 2003.He called the memo "deeply flawed" and
"sloppily reasoned."Nevertheless, Goldsmith has asserted that he
"hadn't determined the underlying techniques were illegal." He
continues, "I wasn't in the position to make an independent ruling on
the other techniques. I certainly didn't think they were unlawful, but I
couldn't get an opinion that they were lawful either
6.4.5. Rules That Expressly Prohibit Lawyers From Lying
6.4.6. 3.3(a) Lawyers may not make “false statement of material fact or law” to
tribunals.
6.4.7. 4.1(a) Lawyers may not make “false statement of material fact or law” to
third persons.
6.4.8. 7.1 Lawyers may not make “false or misleading communication” about
themselves or their services.
6.4.9. 8.4(c) Lawyers may not “engage in conduct involving dishonesty, fraud,
deceit or misrepresentation.
6.5. Contractual Duties
6.5.1. Rule 1.2 Scope Of Representation And Allocation Of Authority Between
Client And Lawyer
a. (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's
decisions concerning the objectives of representation and, as required by
Rule 1.4, shall consult with the client as to the means by which they are to
be pursued. A lawyer may take such action on behalf of the client as is
impliedly authorized to carry out the representation. A lawyer shall abide
by a client's decision whether to settle a matter. In a criminal case, the
lawyer shall abide by the client's decision, after consultation with the
lawyer, as to a plea to be entered, whether to waive jury trial and whether
the client will testify.

May 7, 2010
Page 35
 b. (b) A lawyer's representation of a client, including representation by
appointment, does not constitute an endorsement of the client's political,
economic, social or moral views or activities.
c. (c) A lawyer may limit the scope of the representation if the limitation is
reasonable under the circumstances and the client gives informed consent.
d. (d) A lawyer shall not counsel a client to engage, or assist a client, in
conduct that the lawyer knows is criminal or fraudulent, but a lawyer may
discuss the legal consequences of any proposed course of conduct with a
client and may counsel or assist a client to make a good faith effort to
determine the validity, scope, meaning or application of the law.
e. COMMENT 9: Paragraph (d) prohibits a lawyer from knowingly
counseling or assisting a client to commit a crime or fraud. This
prohibition, however, does not preclude the lawyer from giving an honest
opinion about the actual consequences that appear likely to result from a
client's conduct. Nor does the fact that a client uses advice in a course of
action that is criminal or fraudulent of itself make a lawyer a party to the
course of action. There is a critical distinction between presenting an
analysis of legal aspects of questionable conduct and recommending the
means by which a crime or fraud might be committed with impunity.
6.5.2. Who Decides What
a. Comment 2: On occasion, . . . a lawyer and a client may disagree about the
means to be used to accomplish the client's objectives. Clients normally
defer to the special knowledge and skill of their lawyer with respect to the
means to be used to accomplish their objectives, particularly with respect
to technical, legal and tactical matters. Conversely, lawyers usually defer
to the client regarding such questions as the expense to be incurred and
concern for third persons who might be adversely affected. . . . [T]his Rule
does not prescribe how such disagreements are to be resolved. . . . If such
efforts [to reach a mutually acceptable resolution] are unavailing and the
lawyer has a fundamental disagreement with the client, the lawyer may
withdraw from the representation. See Rule 1.16(b)(4).
b. Jones v. Barnes 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed. 2.d 987 (1983)
(Respondent presented his appointed counsel with a list of claims on
which to base his appeal. His attorney found these to be untenable, and
proceeded to argue the appeal on different grounds. Respondent now
claims ineffective assistance of counsel)
1) Facts. Respondent, David Barnes, was convicted of robbery and
assault in New York and attorney Michael Melinger was appointed by
the court to represent him in his appeal. Respondent sent Melinger a
copy of a pro se brief that he had written, along with a letter listing
several claims that he felt should be raised in the pending appeal. In his
response, Melinger explained that many of these claims would not be
allowed-as they were based on evidence not on the record-and listen
the seven claims that he was considering, requesting Respondent’s
input. Receiving no response, he proceeded to appeal the case on those
claims and lost. Respondent challenged this decision, claiming

May 7, 2010
Page 36
 ineffective assistance of counsel, and his claim was upheld by the
Second Circuit.
2) Issue. Does court-assigned defense counsel in a criminal case have a
constitutional duty to raise every nonfrivolous issue suggested by the
Defendant?
3) Held. No. Reversed. “No decision of this Court suggests that an
indigent defendant has a constitutional right to compel appointed
counsel to press nonfrivolous points requested by the client, if counsel,
as a matter of professional judgment, decides not to present those
points
6.5.3. Clients with Disabilities
a. Generally: Rule 1.2 Scope Of Representation And Allocation Of Authority
Between Client And Lawyer
1) (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's
decisions concerning the objectives of representation and, as required
by Rule 1.4, shall consult with the client as to the means by which they
are to be pursued. A lawyer may take such action on behalf of the
client as is impliedly authorized to carry out the representation. A
lawyer shall abide by a client's decision whether to settle a matter. In a
criminal case, the lawyer shall abide by the client's decision, after
consultation with the lawyer, as to a plea to be entered, whether to
waive jury trial and whether the client will testify.
2) (b) A lawyer's representation of a client, including representation by
appointment, does not constitute an endorsement of the client's
political, economic, social or moral views or activities.
3) (c) A lawyer may limit the scope of the representation if the limitation
is reasonable under the circumstances and the client gives informed
consent.
4) (d) A lawyer shall not counsel a client to engage, or assist a client, in
conduct that the lawyer knows is criminal or fraudulent, but a lawyer
may discuss the legal consequences of any proposed course of conduct
with a client and may counsel or assist a client to make a good faith
effort to determine the validity, scope, meaning or application of the
law.
b. Diminished Capacity
1) Rule 1.14 Client With Diminished Capacity
i. (a) When a client's capacity to make adequately considered
decisions in connection with a representation is diminished,
whether because of minority, mental impairment or for some other
reason, the lawyer shall, as far as reasonably possible, maintain a
normal client-lawyer relationship with the client.
ii. (b) When the lawyer reasonably believes that the client has
diminished capacity, is at risk of substantial physical, financial or
other harm unless action is taken and cannot adequately act in the
client's own interest, the lawyer may take reasonably necessary

May 7, 2010
Page 37
 protective action, including consulting with individuals or entities
that have the ability to take action to protect the client and, in
appropriate cases, seeking the appointment of a guardian ad litem,
conservator or guardian.
iii. (c) Information relating to the representation of a client with
diminished capacity is protected by Rule 1.6. When taking
protective action pursuant to paragraph (b), the lawyer is impliedly
authorized under Rule 1.6(a) to reveal information about the client,
but only to the extent reasonably necessary to protect the client's
interests.
c. Why Difficult
d. Rule 1.4 Communication
1) (a) A lawyer shall:
i. (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;
ii. (2) reasonably consult with the client about the means by which the
client's objectives are to be accomplished;
iii. (3) keep the client reasonably informed about the status of the
matter;
iv. (4) promptly comply with reasonable requests for information; and
v. (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.
e. Representing Children
1) Two principal contexts
i. Juvenile delinquency
ii. Child protection
2) Role of child’s lawyer in delinquency cases
i. See In re Gault, 387 U.S. 1 (1967)
3) Role of child’s lawyer in child protection cases
4) Issue of state law
5) Lawyer, GAL or both?
6) Conn. Gen. Stat. § 46b-129a
i. (2) a child shall be represented by counsel knowledgeable about
representing . . . children who shall be appointed by the court to
represent the child and to act as guardian ad litem for the child. The
primary role of [such counsel] . . . shall be to advocate for the child
in accordance with the Rules of Professional Conduct. When a

May 7, 2010
Page 38
 conflict arises between the child's wishes or position and that
which counsel for the child believes is in the best interest of the
child, the court shall appoint another person as guardian ad litem
for the child. . . .
6.6. Terminating L-C Relationships
6.6.1. Rule 1.16 Declining Or Terminating Representation
a. (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:
1) (1) the representation will result in violation of the rules of
professional conduct or other law;
2) (2) the lawyer's physical or mental condition materially impairs the
lawyer's ability to represent the client; or
3) (3) the lawyer is discharged.
b. (b) Except as stated in paragraph (c), a lawyer may withdraw from
representing a client if:
1) (1) withdrawal can be accomplished without material adverse effect on
the interests of the client;
2) (2) the client persists in a course of action involving the lawyer's
services that the lawyer reasonably believes is criminal or fraudulent;
3) (3) the client has used the lawyer's services to perpetrate a crime or
fraud;
4) (4) the client insists upon taking action that the lawyer considers
repugnant or with which the lawyer has a fundamental disagreement;
5) (5) the client fails substantially to fulfill an obligation to the lawyer
regarding the lawyer's services and has been given reasonable warning
that the lawyer will withdraw unless the obligation is fulfilled;
6) (6) the representation will result in an unreasonable financial burden
on the lawyer or has been rendered unreasonably difficult by the client;
or
7) (7) other good cause for withdrawal exists.
c. (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 the representation.
d. (d) Upon termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client's interests, such as giving
reasonable notice to the client, allowing time for employment of other
counsel, surrendering papers and property to which the client is entitled
and refunding any advance payment of fee or expense that has not been
earned or incurred. The lawyer may retain papers relating to the client to
the extent permitted by other law.
6.6.2. Issues in Legal Ethics
a. Paternalism

May 7, 2010
Page 39
 b. Conflict of Interest
c. Advocates Role in legal system
7. Lawyer’s Duties to Courts
7.1. Fried v. Gillers
7.1.1. Fried “Role-differentiated behavior” “Neutral partisanship” Lawyer as
“hired gun”
7.1.2. Gillers Lawyers as morally responsible for their choices
7.2. 3.1; 3.3; 8.4(c), FRCP 11
7.2.1. Morality and the Adversary System
7.2.2. Pre-Filing Fact Investigation
7.2.3. Truthfulness in Litigation
7.2.4. Nix v. Whiteside (US 1986)
7.2.5. Professor Monroe Freedman’s“Perjury Trilemma”
a. When clients lie, lawyers can’t possibly fulfill all three ethical obligations:
1) Provide competent and diligent representation by
investigating/ascertaining all pertinent facts (Rules 1.1, 1.3)
2) Protect information relating to representation (Rule 1.6)
3) Disclose perjured testimony to tribunal (Rule 3.3)
7.3. 3.3, 3.4, 8.4(C)
7.3.1. Where's the line with False Impressions
7.3.2. Concealment of Evidence
a. D.C. Code § 22-723Tampering with Physical Evidence
1) (a) A person commits the offense of tampering with physical evidence
if, knowing or having reason to believe an official proceeding has
begun or knowing that an official proceeding is likely to be instituted,
that person alters, destroys, mutilates, conceals, or removes a record,
document, or other object, with intent to impair its integrity or its
availability for use in the official proceeding. (b) Any person convicted
of tampering with physical evidence shall be fined not more than
$5,000, imprisoned for not more than 3 years, or both.
b. Attorney Philip Russell
1) Indicted under Sarbanes-Oxley (see P. 640). Plead guilty to misprision
of felony, sentenced to: 6 months home confinement $25,000 fine 240
hours community service Agreed to one-year suspension of law
license.
c. Concealment/Destruction of Evidence in Civil Cases
1) “It may be difficult . . . to define the point at which legitimate
[document] destruction becomes obstruction of justice.” (Rest. 2d §
118, Comment C)
2) “The bottom line is that a lawyer should never assume that documents
that are or could be pertinent to a civil lawsuit may be concealed or
destroyed, even if a suit has not yet been filed.” (Lerman/Schrag, P.
645)

May 7, 2010
Page 40
 7.3.3. Disclosing Adverse Legal Authority
a. 3.3; 3.5' 8.4(d)
7.3.4. Ex Parte Proceedings
7.3.5. Improperly Influencing Judge/Jury
7.3.6. Nonadjudicative Proceedings
7.4. 3.6, 3.7; 3.9; 4.1
7.5. Comparison of Rules Forbidding Lawyer False Statements
7.5.1. RULE 4.1(a) In the course of representing a client a lawyer shall not
knowingly make a false statement of material fact or law to a third person...
7.5.2. RULE 3.3(a)(1) A lawyer shall not knowingly . . . make a false
statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer.
7.5.3. RULE 8.4(c) It is professional misconduct for a lawyer to ... engage in
conduct involving dishonesty, fraud, deceit or misrepresentation.
8. Lawyer’s Duties to Adversaries and Third Persons
8.1. 4.1; 8.4(a); Negotiation Ethics
8.2. Disclosure to Avoid Fraud
8.2.1. RULE 4.1(B): In the course of representing a client a lawyer shall not
knowingly . . . fail to disclose a material fact when disclosure is necessary to
avoid assisting a criminal or fraudulent act by a client, unless disclosure is
prohibited by Rule 1.6.
8.2.2. REST. (2d) TORTS § 551: One who fails to disclose to another a fact ...
is subject to the same liability to the other as though he had represented the
nonexistence of the matter that he has failed to disclose [whenever the fact is
basic to the transaction and] the other, because of the relationship between
them, the customs of the trade or other objective circumstances, would
reasonably expect a disclosure.
8.3. Deception
8.4. Contact with Represented Persons
8.4.1. Rule 4.2Communication With Person Represented By Counsel
8.4.2. Rule 4.4Respect For Rights Of Third Persons
8.4.3. Rule 8.4Maintaining The Integrity Of The Profession
8.5. Contact with Unrepresented Persons
8.5.1.
8.6. Prosecutorial Ethics
8.7. `Rule 3.8; Comment 1
8.8. Conduct Prejudicial to the Administration of Justice
8.9. Rule 4.2 and Communication with Government Officials
9. Conflicts of Interest
9.1. Overview
9.1.1. Why conflicts are different:
9.1.2. Nature and timing of remedy

May 7, 2010
Page 41
 9.1.3. Possibility of offensive use
9.1.4. Different types of conflicts:
9.1.5. Conflicts with present clients
9.1.6. Conflicts with former clients
9.1.7. Why conflicts are difficult
9.1.8. Important issues that cut across all types of conflicts
9.1.9. Consentability
9.1.10. Imputation
9.1.11. Screening
9.2. Steps in Evaluating a Conflict
9.3. 1. Client Identification
9.3.1. Clearly identify each client and determine status (present or former)
9.4. 2. Conflict Analysis
9.4.1. Determine whether a conflict exists
9.5. 3. Consentability Analysis
9.5.1. Decide whether representation OK despite conflict
9.6. Concurrent Conflicts
9.6.1. Rule 1.7Conflict Of Interest: Current Clients
9.7. Former Clients
9.8. Conflicts between Lawyers & Clients
9.8.1. Rule 1.10Imputation Of Conflicts: General Rule
a. (a) 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.
b. . . .
c. (c) When a lawyer becomes associated with a firm, no lawyer associated in
the firm shall represent a client in a matter in which that lawyer is
disqualified under Rule 1.9 unless:
1) (1) the personally disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee
wherefrom; and
2) (2) written notice is promptly given to the affected former client.
d. (d) A disqualification prescribed by this Rule may be waived by the
affected client under the conditions stated in Rule 1.7.
9.9. Jeffrey v. Pounds, 136 Cal. Rptr. 373 (Cal. App. 1977) (Note husband and wife
reversed.) Husband fired firm after learning it was representing wife in divorce.
Firm subsequently sued for share of fees, and court allowed. Court found that firm
should not have agreed to represent wife but excused.
9.10. 1.6 B Revistited BAR BRI Example

May 7, 2010
Page 42
 9.10.1. BARBRI Practice MPRE Question A client hired a lawyer to draft a will
for him. The client willed his entire estate to a 43-year-old widow. The client
told the lawyer in confidence that he was neither a relative nor a friend of the
widow. The client explained that he felt a moral obligation to the widow
because he had killer her husband, and he had never become a suspect or
confessed his sin to anyone. One day after signing the will, the client
committed suicide. In due course, all of the client’s assets were distributed to
the widow, and the probate court closed his estate and discharged his executor.
The lawyer never told the widow or anyone else that the client had confessed
to killing the widow’s husband. Now, a few years later, an enthusiastic young
prosecutor is charging an innocent man with murdering the widow’s husband
in the first degree with aggravating circumstances, and the prosecutor is
seeking the death penalty.
9.10.2. Question: May the lawyer voluntarily tell the innocent man’s defense
counsel what his client told him in confidence about killing the widow’s
husband?
9.10.3. BARBRI’s Answer Yes, the lawyer may tell, but he would not be
subject to discipline if he decides not to do so. The controlling doctrine in this
case is the lawyer’s ethical duty of confidentiality, not the attorney-client
privilege. The lawyer needs to know whether he can voluntarily reveal the
client’s confession, not whether he would be forced to do so if he were put on
the witness stand in court. ABA Model Rule 1.6(b)(1) states the applicable
exception to the ethical duty of confidentiality. A lawyer may reveal
confidential information if the lawyer reasonably believes that doing so is
necessary to prevent reasonably certain death or substantial bodily harm. One
might quibble whether the innocent man’s death is “reasonably certain” when
his trial has not even started, but surely the ethics rule should not be read to
require the innocent man to order his last meal before being loosed from the
executioner’s grip.
9.11. 1.7 Rule; 1.18; 1.13; 1.8;
9.12. frcp 23a
9.12.1. (a) Prerequisites. One or more members of a class may sue or be sued as
representative parties on behalf of all members only if:
a. (1) the class is so numerous that joinder of all members is impracticable;
b. (2) there are questions of law or fact common to the class;
c. (3) the claims or defenses of the representative partes are typical of the
claims or defenses of the class; and
d. (4) the representative parties will fairly and adequately protect the interests
of the class
9.13. Special Conflict Issues
9.13.1. Economic conflicts
9.13.2. Conflicts in public interest litigation
9.13.3. Positional conflicts
9.13.4. Conflicts with prospective clients

May 7, 2010
Page 43
 9.14. Rule 1.9Duties To Former Clients
9.14.1. (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.
a. Applying Rule 1.9:Basic Analysis
1) Is present matter either “same” as, or “substantially related” to, former
matter?
i. If no, not a conflict.
ii. If yes, go to next step
2) Are interests of present and former clients “materially adverse”?
i. If no, not a conflict.
ii. If yes, go to next step
3) Has informed consent been obtained and confirmed in writing?
b. Applying Rule 1.9:“Substantial Relationship” Test
1) Law here “maddeningly complex and indeterminate”
2) Outcomes highly fact specific
3) Focus of inquiry = lawyer’s access to potentially harmful info. in
earlier matter, not actual information obtained
4) Particular issues:
i. “Playbook” knowledge of former client
ii. Public/obsolete info
iii. Scope of responsibility in former matter
iv. Same standard for discipline and disqualification
v. Suing former clients when no substantial relationship
c. Applying Rule 1.9:Other Issues
1) “Material adversity”
2) Infrequency of waiver requests
3) Conflicts between present clients and those of former firm
4) Governed by Rule 1.9(b)
5) More permissive than 1.9(a)
6) Focus on whether actual confidences obtained
d. Rule 1.9Duties To Former Clients (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) COMMENT 3: Matters are "substantially related" for purposes of this
Rule if they involve the same transaction or legal dispute or if there
otherwise is a substantial risk that confidential factual information as
would normally have been obtained in the prior representation would

May 7, 2010
Page 44
 materially advance the client's position in the subsequent matter.
e. Screening: Defined
1) Rule 1.0(k)
2) “’Screened’ denotes the isolation of a lawyer from any participation in
a matter through the timely imposition of procedures within a firm that
are reasonably adequate under the circumstances to protect information
that the isolated lawyer is obligated to protect under these Rules or
other law.”
i. Screening: What’s Involved
3) “[S]creening measures that are appropriate . . . will depend on the
circumstances. . . . [but may include] such procedures as a written
undertaking by the screened lawyer to avoid any communication with
other firm personnel and any contact with any firm files or other
materials relating to the matter, written notice and instructions to all
other firm personnel forbidding any communication with the screened
lawyer relating to the matter, denial of access by the screened lawyer to
firm files . . . and periodic reminders of the screen to the screened
lawyer and all other firm personnel.” (Rule 1.0, Comment 9.)
4) “In order to be effective, screening measures must be implemented as
soon as practical after a lawyer or law firm knows or reasonably should
know that there is a need for screening. (Rule 1.0, Comment 10.)
5) Screening: When Permitted Not permitted to remedy conflicts:
Between present clients of a lawyer or firm. Between present and
former clients of a lawyer or firm. May be permitted to remedy certain
imputed conflicts: Involving former government lawyers (Rule 1.11),
former judges and neutrals (Rule 1.12) and prospective clients (Rule
1.18). Involving lawyers who switch firms, where former firm
represented client with conflicting interest.
10. Regulation of Law Practice
10.1. 1.15, 1.5, 1.8
11. Provision of Legal Services
11.1. Unmet Legal Needs
11.2. Pro Bono Representation
11.2.1. Pro Bono Publico Service
11.2.2. Rule 6.1Voluntary Pro Bono Publico Service
11.2.3. MRPC
11.2.4. Every lawyer has a professional responsibility to provide legal services
to those unable to pay. A lawyer should aspire to render at least (50) hours of
pro bono publico legal services per year. In fulfilling this responsibility, the
lawyer should:
a. (a) provide a substantial majority of the (50) hours of legal services
without fee or expectation of fee to:
1) (1) persons of limited means or
2) (2) charitable, religious, civic, community, governmental and

May 7, 2010
Page 45
 educational organizations in matters that are designed primarily to
address the needs of persons of limited means; and
11.3. Role of Lay Advocates
12. Other Exam Issues
12.1. Delaware rules and Model Rules
12.2. Tips for success:
12.2.1. Identify all potentially-applicable rules and explain how they bear on
problem.
12.2.2. If additional information is needed to fully analyze a problem, state what
it is, and proceed to analyze the problem making whatever assumptions and
alternate assumptions are necessary.
12.2.3. Avoid a rambling discourse on rules or ethics, unmoored from the
analytic task at hand.
12.2.4. Avoid merely listing and/or quoting rules seriatim-style, with no
explanation of their application.
12.2.5. Begin but don’t end your analysis with the rules, and remember that the
resolution of certain issues will necessarily require closer textual analysis than
others.
12.2.6. Other Exam Issues
12.2.7. Assessment (from last year’s exam):
12.2.8. “Answers will be evaluated primarily on the basis of depth of analysis,
cogency, creativity, and doctrinal insight. Although spotting all or most of the
important issues in a given problem is crucial, I generally value depth over
breadth. I therefore am more likely to overlook a missed issue in an otherwise
thoughtful answer than to reward an answer that correctly identifies all issues
raised by a fact pattern but analyzes them superficially.”
D. Summary (Concise Traditional)
1. Introduction and the Role of The Lawyer
1.1. Prof Responsibility - about relationships of lawyers to their clients, their peers,
the justice system, the profession and the public
1.2. Moral Philosophy & The Law:
1.2.1. MP informs the study of PR law, but does not replace legal analysis as
tool for determining application of PR Law
1.2.2. More than right and wrong
1.2.3. Law governing lawyers is complicated mix from different areas of law
and different sources
1.2.4. Role Morality - Balance process many duties, some conflict and compete
1.3. Role of the Lawyer
1.3.1. Different Conceptions
1.3.2. Different Roles
1.3.3. Different Practice Settings
2. Regulation of the Legal Profession
2.1. Organization of the Bar

May 7, 2010
Page 46
 2.1.1. ABA - Volunteer association
2.1.2. Alternative Associations
2.1.3. State Associations - Some states have mandatory membership
requirements
2.2. Sources of Law Governing Lawyers
2.2.1. Ethics Codes
a. ABA Beginning in 1908
b. States - Adopted (all but one follow ABA) - State Code Controls
2.2.2. Case Authority
a. Interpretation of Code
b. Inherent Power to regulate lawyers
2.2.3. Ethics Opinions - relied upon by court from ABA and state associations
2.2.4. Restatement: 3rd Retme of the LAW GOVERNING LAWYERS
2.2.5. Constitutional Restraints
2.2.6. Other Law
2.3. Admission to Practice
2.3.1. State has need to protect public from incompetence and those who lack
integrity
2.3.2. General Requirements:
a. Education
b. Knowledge - Bar Exam
c. Good Character
d. Misconduct in Application Process - No material false statement, or failure
to disclose fact (MR 8.1(b)
e. No assistance to unqualified person - duty bound not to assist in admission
of unqualified applicant (MR 8.1)
2.3.3. Federal Bar - separate
2.3.4. Pro Hoc Vice
2.4. Unauthorized Practice
2.4.1. Civil and Criminal penalties possible
2.4.2. Court Appearance OR legal advice and counsel
2.4.3. Forms of Unauthorized
a. Extra territorial
b. Multi JX Practice (see MR 5.5)
c. Unlicensed practice (realtors, bankers, insurance is most common)
2.5. Self Governance and the Duty to Report Misconduct
2.5.1. Reporting Requirement Chief feature of self-governing (MR 8.3)
2.5.2. Must have knowledge of misconduct (MR 8.3(a); 1.0(f))
2.5.3. Substantial question as to integrity, honesty, fitness (8.3(a)) and
substantial means material matter of clear and weighty importance (1.0(i))
2.5.4. Confidentiality Limitation on Duty to Report

May 7, 2010
Page 47
 a. No Duty to report if lawyer learned through confidential communication
under MR 1.6 or 8.3(c)
b. Exceptions to confidentiality continue to apply
c. Possible defamation filed by reported-on lawyer
3. Controls on Lawyer Conduct
3.1. Discipline
3.1.1. Rarely imposed
3.1.2. Protection of public and of profession
3.1.3. Broad ranged grounds in and out of court and profession
3.1.4. Forms of Discipline
a. Disbarment
b. Suspension
c. Reprimand - Statement of reproach - published public or private from the
bar
d. Procedure - no appeal for aggrieved party - designed arrounf goal of bar
discipline rather than as a benefit to the complainant
3.2. Malpractice - Civil Claim for relief intended to remedy a wrong done by a
professional to an individual or group of clients
3.2.1. K Theory
3.2.2. Tort Theory - Most Common
a. Duty
b. Breach
c. Causation
d. Damages
3.2.3. Fiduciary Duty
3.2.4. Expert testimony required
3.2.5. Limitation on malpractice liability (MR 1.8(h); DR 6-102)
3.2.6. 3rd part liability - in some instances
3.3. Liability for Client Conduct
3.3.1. Cannot counsel a client to engage or assist a client in conduct that lawyer
knows is criminal or fraudulent (MR 1.2(d))
3.3.2. Also may be criminally and civilly liable for wrongs of the clients that a
lawyer assists
3.4. Contempt of Court - considerable control on conduct of lawyer in litigation
setting
3.5. DQ Motions
3.5.1. Conflict of Interest DQ
a. Substantive Standards - substantially same including shielding or Chinese
wall
b. Other interest considered including delay
3.5.2. FRCP Rule 11

May 7, 2010
Page 48
 a. Money sanctions are available against an offending lawyer under frivolous
claims prohibitions
b. MR 3.1 is like FRCP 11
c. Friv claims lack basis in law or fact
d. Notice is required before FRCP 11 can be filed
e. Sanctions available against lawyer and his firm under FRCP 11
f. Possible application to oral argument (see also 28 usc 1927)
4. Formal Aspects of the Lawyer-Client Relationship
4.1. Generally: Ltd duties before undertaking representation. Full range of duties
following the undertaking
4.2. Undertaking Representation
4.2.1. No duty to undertake
4.2.2. Ltd duty for court appointments and some pro bono
4.2.3. Duty to reject when representation violates ethics rules or other laws (MR
1.16(a))
4.2.4. relationship does not depend upon written contract
4.3. Fees
4.3.1. Regulated for amount and nature under MR 1.5
4.3.2. Must be Reasonable [MR 1.5(a)]
4.3.3. Written K preferred
4.3.4. Contingent Fees [MR 1.5(c)]
a. Must be in writing
b. Must provide ending statement (disposition and calculation of fee and
expense)
c. Not allowed in domestic and criminal cases
4.3.5. Fee Splitting
a. Ok in same firm
b. 1.5(e) governs different firms
1) Total fee must be reasonable
2) Client must agree to arrangement
3) Share in proportion or accept joint responsibility for representation
c. OK with former partners pursuant to profit share, separation agreement, or
retirement plan
d. NOT OK with Non-Lawyers
e. No minimum fee schedules
f. Subject to civil asset forfeiture
4.4. Fiduciary Duties
4.4.1. FD are in addition to K and Tort Duties
4.4.2. General Role: one in whom a special trust is placed. Fiduciary owes to
beneficiary scrupulous good faith, candor, and care in the management of the
beneficiaries interests

May 7, 2010
Page 49
 4.4.3. Handling of client money
a. Violations most serious
b. Client trust accounts kept separate [MR 1.15(a)]
1) No Commingling
2) Prompt delivery and accounting [(MR 1.15(d)]
4.5. Competence and Diligence
4.5.1. Core Lawyer Duties [MR 1.1, 1.3]
4.5.2. Competence requires that the lawyer possess and exercise on the client's
behalf the legal knowledge, skill, thoroughness, and preparation reasonably
necessary for the representation [MR 1.1]
a. Distinct from malpractice
b. Does not require expertise at beginning of representation, provided the
lawyer will be able to acquire the necessary knowledge with reasonable
diligence
c. Basic knowledge and skills required [MR 1.1 comment]
d. Ltd assistance unskilled in emergency
4.5.3. Diligence is the timeliness aspect of competence. Lawyers are obligated
to be diligent on their client's behalf [MR 1.3]
a. Expediting matters [MR 3.2]
b. Starting and Stopping most common complaint
c. Misleading about progress is many disciplinary cases over diligence
d. Excuses mostly rejected by courts
4.6. Communication and Shared Decision Making
4.6.1. Lawyers owe a duty to communicate with clients and to meaningfully
share decision making responsibilities with them [MR 1.2 and 1.4]
4.6.2. Communication is critical to maintaining a quality relationship. Must
respond to reasonable requests for info [MR 1.4(a)]
4.6.3. Shared Decision-Making
a. Scope of Representation -
1) negotiated by contract
2) Duration is negotiated
3) Subject matter is negotiation
b. Means and Ends: Clients set goals, lawyers empowered to determine best
means to obtain those goals [MR 1.2(a) Comment]
c. Lawyers representation does not implicate lawyers sharing of
responsibility for the client's cause or views regarding matters relevant to
the reperesner4tation [MR 1.2(B)]
d. NO counseling crimes or frauds [MR 1.2(d)]
1) Disciplined and subject to criminal and civil liability
2) Exception: no prohibition from discussion proposed courses of action
or assisting in pursuit of test case
e. Lawyer must attempt to maintain ordinary lawyer-client relationship to

May 7, 2010
Page 50
 extent possible with disable clients [MR 1.14]
4.7. Terminating Representation
4.7.1. Generally
a. LC Relationship ends at termination
b. Duty of confidentiality and limited duty of conflict avoidance remains
c. Withdrawal is a critically important device, esp if continued rep will result
in viol of law or rule
4.7.2. Rejection of representation is form for termination
4.7.3. Mandatory withdrawal under some circumstance [MR 1.16(a)]
a. Violate ethics rules [MR 1.16(a)(1)]
b. Violate Other law [MR 1.16(a)(1)]
c. Lawyers physical or mental state is impaired [MR 1.16(a)(2)]
d. Lawyer is discharged [MR 1.16(a)(3)]
4.7.4. Permissive Withdraw in other circumstances [MR 1.16(b)]
a. No Harm to client [MR 1.16(b)(1)]
b. EXCEPTIONS
1) Lawyers reasonable belief that client is acting criminally or
fraudulently [MR 1.18(b)(2)]
2) Past use of service for crime or fraud [MR 1.18(b)(3)]
3) Client actions are repugnant or imprudent [MR 1.18(b)(4)]
4) Client failure to meet obligations [MR 1.18(b)(5)]
5) Unreasonable financial burden [MR 1.18(b)(6)]
6) Client unreasonably difficult to work with [MR 1.18(b)(6)]
7) Other good cause [MR 1.18(b)(7)]
c. Court could order continued representation despite cause [MR 1.16(c)]
d. Procedure to Withdraw
1) Notice to clients [MR 1.16(d)]
2) Court approval when litigation is pending [MR 1.16(d) Comment]
e. Duties upon termination
1) Reasonable measures to minimize hard to client upon termination [MR
1.16(d)]
2) Unearned fee refund
3) Return of paper and property
4) Clients continues to owe obligation for unpaid yet earned fees
i. Quantum Meruit for hourly
ii. Cont dependant upon whether discharge was for cause or not
5. Confidentiality
5.1. Duty of Confidentiality and the Atty-Client Evidentiary Privilege
5.1.1. Secrets & Confidences
a. Model Code [DR4-101] defines the scope of the duty of confidentiality as
the sum of the material protected by the evidentiary atty-client privlege

May 7, 2010
Page 51
 [referred to as confidences] and the material that, although not included in
the attorney-client evidentiary privilege, would be embarrassing or
detrimental to the client if revealed or that that the client has expressly
requested be held in confidence [referred to as secrets]
b. Model Rules abandons and adopts more general and inclusive definition of
"information relating to representation of a client [MR 1.6(a)]
c. Scope of the A-C-P: When info is within the ethical duty of confidentiality
but outside the protection of the evidentiary privilege, a judge may order
the lawyer to speak in form of testimony or otherwise. Coverage of the
evidentiary privilege largely determines whether compulsion will be well
founded
d. Parameters of the Evidentiary Privilege
1) Generally: Created when a client or prospective client communicates
in confidence to a lawyer who is being consulted as a lawyer
2) Clients or Prospective
3) Desire of Confidentiality Required
i. Not created when circumstances do not indicate desire for
confidentiality
ii. Eavesdroppers: If client exercises reasonable care to avoid being
overheard or intercepted, the court should rule the eavesdroppers
testimony inadmissible
iii. Multiple Clients: Each holds a privlege that can be asserted against
3rd parties but none of them can prevent others among the
prospective clients from testifying or otherwise waiving privilege.
Their collective communication indicates an absence of desire for
confidentiality within the group
4) Communication, Not knowledge
5) Privilege protects lawyer observations that result directly from the
clients protected communications as long as lawyer does nothing to
prevent other interested parties from making the same observation
6) Physical Evidence - items collected by lawyer are not privileged
7) Exceptions: Many of the Exceptions to DOC are paralleled by
Exceptions to the Evidentiary privilege
i. Client holds privilege (and controls its assertion)
ii. Future crimes and frauds [crime fraud exception]
5.2. To Whom is the Duty (of Confidentiality) Owed
5.2.1. Former Client
5.2.2. Prospective Clients
5.2.3. No Fee Necessary
5.2.4. Organizational Clients [MR 1.13 Comments 3,6]
a. Communication from agents of an organizational client are within the
evidentiary privilege and therefore, within the DOC if:
1) Info communicated is treated as confidential within the organization

May 7, 2010
Page 52
 AND
2) It is communicated to lawyer to that the lawyer can give advice or
counsel to the organization
b. Gov't Agency Client: Govt lawyers strike a confidentiality balance more
toward public interest of disclosure of gov't wrongdoing
5.2.5. Client and Lawyer Agents - Extends as if the same
5.3. To What does the Duty Apply
5.3.1. Generally: applies to "information relating to representation of a client
[MR 1.6(a)] MC def uses secrets and confidences
5.3.2. DOC OR Evidentiary Privilege: For EP, info must come from client or
agent. For DOC merely. relate to representation, can come from a third party
5.3.3. DOC is broader than the ACP - All info not merely lawyer-client
communication
5.3.4. Also related work-product doctrine
5.4. Exceptions to the Duty of Confidentiality
5.4.1. Consent: Client can give informed consent to disclose [MR 1.6(a)]
5.4.2. Implied Authorization: To carry out the purposes of the representation,
some info must be disclosed
5.4.3. Self Defense Disclosures
a. To establish a claim or defense on behalf of the lawyer on a controversy
between the lawyer and the client
b. To establish a defense to a criminal charge or a civil claim against the
lawyer based upon conduct in which the client was involved [MR 1.6
Comment 8]
c. To respond to allegations in any proceeding concerning the lawyer's
representation of the client
d. Disclosure limited to facts necessary to defend
e. limit disclosure to individual who need to know
5.4.4. Future Crimes & Future Harms
a. Distinguish MR 1.6(b)(1) AND Model Code [DR 4-101(c)(3)]
b. Distinction Past Crimes and Frauds subject to DOC and ACP
c. Policy rationale - when lawyer knows client intends to commit a future
crime or fraud and the lawyers services are used, the lawyer will share
both eh moral and legal responsibility of the wrong
d. Model Code [DR 4-101(C)(3)] Exception for future crimes or frauds is
broad but permissible. Under the code, a lawyer "may reveal the intention
of his client to commit a crime and the info necessary to prevent the
crime"
e. Model Rules:
1) Before 2002 was permissive like code BUT restricted to imminent
death or substantial bodily harm and lawyer had to believe it was likely
2) Feb 2002 Amendment to MR 1.6(b)(1) - allows lawyer to reveal
confidences "to the extent the lawyer reasonably believes necessary to

May 7, 2010
Page 53
 prevent certain death or substantial bodily harm. [future harm as
opposed to future crime because it requires no criminal act by the
client for a trigger]
3) Aug 2003 Amendment to MR 1.6 now permits disclosure "to the
extent the lawyer reasonably BELIEVES NECESSARY:
i. To prevent reasonable certain death or substantial bodily harm
ii. prevent client from committing a crime or fraud that is reasonably
certain to result in substantial injury to the fin interests or property
of another and in furtherance of which the client has used or is
using the lawyers services
iii. prevent, mitigate, or rectify substantial injury to the 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 lawyers services
iv. To secure legal advice about the lawyer's compliance with these
rules
v. to establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and the client, or defense to
lawyers criminal charges based up[in conduct in which client was
involved, or to respond to any allegations in any proceeding
concerning the representation of the client
5.4.5. Other PR Riles - Some ethical rules require or permit lawyers to disclose
otherwise protected information
5.4.6. Other Law - May reveal when required to do so by law or by order of the
court
5.4.7. General Knowledge - Duty is lost if info is generally known such that
continued protection will serve little purposes
5.5. Other - wide range of lawyer duties impose requirements on lawyers only when
the duty does not offend the DOC
5.6. Use for Lawyer's Benefit - Generally restricted since lawyer is agent of the client
[Model Code 4-101(b)(2); 4-101(b)(3)]; Model rules kept only explicit restriction
on using it to client's detriment [MR 1.8(b)] Distinction rarely important because
disadvantage to client will almost always occur where there is advantage to lawyer
because of agency law
6. Conflicts of Interest
6.1. Loyalty and Other General Principles
6.1.1. Loyalty is basic to the lawyer-client relationship
6.1.2. Independence: Lawyers owe clients a duty of independent professional
judgment. When the independence is threatened by some interest other than
the cleinsts, a conflicts question is present and requires analysis
6.1.3. Implications of confidentiality: Many conflict questions are primarily
about breaches of confidentiality
6.1.4. Direct adversity: easy when lawyer attempts to represent directly adverse
interests

May 7, 2010
Page 54
 6.1.5. Material limitations on representation: the application of many of the
conflicts rules is triggered by a determiniation of whether the conflict "will
materially limit the lawyers representation of the client "See MR 1.7(b) This
standard is objective
6.2. Organization of the Model Rules Provision on Conflicts
6.2.1. Model Rules conflicts provisions are found in MR 1.7 through 1.13 and
1.18
6.2.2. General Rule: MR 1.7 sets out the general standards for conflicts of
interest analysis
6.2.3. Specific Transactions: MR 1.8 sets out a series of specific rules that
appoly to particular lawyer-client trnasactions
6.2.4. Special problems of former clients is covered by MR 1.9
6.2.5. Prospective clients: New rule, February 2002, MR 1.18 defines and
identifies duties owed to prospective clients
6.2.6. Role-relevant rules: Conflict rules that apply to lawyers in particular
lawyer roles are found in MR 1.11, 1.12 & 1.13
a. ABA amended MR 1.13 in August 2003 b/c various corporate securities
decalcations. Amended rule retains the actual knmowledge standard - but
expands the lawyer's obligation to report misconduct. SAR-OX Act also
create restrictions on certain corporate lawyers
6.2.7. Imputed DQ MR 1.1.0 provides general imputed DQ rules. Also found in
1.9, 1.11 & 1.12
6.3. Waiver of Conflicts
6.3.1. Rationale: Because most conflicts put client interests at risk and because
client autonomy and decision making are values, cleitns are empowered to
waive most conflicts of interest
a. The gross conflict exception: The general rationale of honoring client
autonomy does not apply when the conflict is sufficiently gross to make
any client waiver suspect [MR 1.7(b)]
b. Interest-other-than-the-clent's Exception: No general rationale when
conflicts rule is less about risk to clinet interersts than it is about risks to
justice system interests
6.3.2. Elements of waiver: At a minimum, a conflicts-of-interest waiver requires
informed consent by the client. Some of the conflict rulkes that allow waiver
require more than informed consent [see MR 1.8(a); (f)]
6.4. Sources of Conflicts: 3 primary sources of conflicts: 3rd party interfernece;
lawyer interst; multiple client interests
6.4.1. 3rd party interference
a. MR 1.7(a)(2)
b. Conflicts occur when someine who is not a party to the lawyer-cleint
relatinship seeks to affect ot becomes positioned toaffect the independence
of the lawyers judgment on behalf of the client
6.4.2. Lawyer-client conflicts
a. General Principles

May 7, 2010
Page 55
 1) Material Limitation:
i. COI only when lawyer;'s representation of a clkient will be
materially limited by lawyer's personal interests
ii. 1.7(a)(2)
2) Waiver
i. Possible if lawyer reasonably beleieves that the lawyer will be able
to provide competent anf dillegent representationm to the client anf
the client gives informed consent, in writing
ii. MR 1.7(b)
b. Particular Transactions: Specifric rules govern certain tyoes of
transacytions
1) Business Transactions
i. MR 1.8(a)
ii. Requires client consent in writing
iii. Requires clkient be advised of "desireabilty of seeking and given
oppy to seek advice of independent counsel
2) Literary Rights - Prohibited from negotiating until conclusion if
representation [MR 1.8(d)]
3) Beneficial Drafting Instruments [MR 1.8(c)] prohibited if substantial
gift is made to lawyer of lawyers family by the document UNLESS
related
4) Sexual or amorous relations with clients [MR 1.8(j)] prohibits unless
relationship predates representation
5) Agreements limitiing lawyer's liability [MR 1.8(h)] - prohibited to
limit malpractice by contract unless state law allows and client is
indeopendently represented in the contract
c. Lawyer-client conflicts with Champerty, Barratry and Maintenance
1) Concerned with stirring up or maintaining litigation
2) Cannot advace funds [MR 1.8(e)]
3) Cannot acquire interest in litigation or subject matter [MR 1.8(i)]
4) Cannot be waived by client
d. Misc lawyer-conflict riles
1) Using CI to the client's detriment - Prohibited always [MR 1.8(b)]
6.4.3. Multiple Client Conflicts
a. Generally: implicates current representation of multiple clients as well as
conflicts between former and current and prospective with current and
with former clients
b. Concurrent Clinets: Variety of types
1) Directly Adverse: easiest [MR 1.7(a). Multiple representation of
clients whose interests are in direct conflict is prohobited and cannot
be waived.
2) Adverse in unrelated actions: In general, such a conflict may not be
waived byt when the adversioty is general, waiver is permitted

May 7, 2010
Page 56
 3) Same-side multiple-client representation: Must use conflict analysis
here too.
c. Prospective and current clients [MR 1.18]: Lawyers owe prospective
clients a limited loyalty duty and the duty of confidentiality. Conflict
breaches are a primary consideration in multiple-client conflicts analysis.
Conflicts analysis must be done on potential conflicts between
prospectvive and current or former clients.
d. Former and current clients: The Substantial Relationship test: duty of
loyalty owed; full measure of confidentiality. so when directly adverse or
substantial relationship between the two representiaions. such conflict is
waivable by both clients by informed consent [MR 1.9]
e. lawyer for an organization [MR 1.13] Lawyer represents the corporation
not the officers. May represent both when interests converge. BUT
lawyer must withdraw if the interests of the organization and the officers
diverge.
f. Positional conflicts of interesy [mr 1.7 comment 24] Conflict if there is a
significant risk that the lawyers action on behalf of one client will
materially limit the lawyer's effectiveness in representinf another client in
a differnet case. Same or different court matters
6.5. Imputed Conflicts
6.5.1. Generally: COI of lawyer imputes to all of the lawyers in the firm
6.5.2. Basic Issues: based on idea that CI is effectively possessed by all lawyers
in the same firm
6.5.3. Motions to DQ: favored tactical device in litigation.
6.5.4. Ambulatory Lawyer: lawyers changing fimrs has increased imputed DQ
6.5.5. Screening Defenses: [support in MRs 1.10; 1.11; 1.12] effective screening
will prevent the apoplication of the imputed DQ rules. Chinese wall defense.
6.5.6. Other Interests at play in the motion to DQ - several factors considered
6.5.7. Special Role-related imputed DQ Rules - special rules for former govt
lawyers and former judges
6.6. Special Role-Related Conflict Rules
6.6.1. Former Judge [MR 1.12]
6.6.2. Former Government Lawyer [MR 1.11]
6.6.3. Lawyer as witness [MR 3.7]
7. Duties to Third Parties
7.1. Generally: Operate as limits on the primary duty the lawyer owes to a client. in
other words, the operate to form boundaries around acceptable, client favoring
actions by lawyers.
7.2. Truth Telling Outside the Court Context:
7.2.1. Generally: Rules inside and outside of court contrast
7.2.2. False Statements of Material Law or Fact: Must be both false and
material.
7.2.3. Fraudulent statements and silences: [MR 1.0(d):] Lawyers are prohibited

May 7, 2010
Page 57
 from making staments that are fraudulent or remaining silent when the
statement or silence would amount to fraud under applicable tort principles.
7.2.4. Negotiation Setting [MR 4.1 COMMENT] Element of misleading is
present in the negotiation process. Differences wheteher statement is to and/or
from party or lawyer
7.3. Harassment & Other Abusive Conduct
7.3.1. In General
a. Unlawful Actgs by lawyers: prohibited from engaging or using agents to
engage in unlawful acts on behalf of clients
b. Assisting client in commiting unlawful or fraudulent acts: may counsel
about the legal consequences of a course of conduct proposed by clinet but
prohibited from counseling a client to engage or a assisting a client
engaged in criminal or fraudulent conduct [MR 1.2(d)]
c. Harassing Conduct [MR 4.4(a_ prohibits lawyer from using means that
have no substantial purpose other than to embarass, delau, or burden a
third person.
7.3.2. Opposing Parties: Special category of third party
7.3.3. Witnesses cannot harass. [MR 4.4(a) and cannot use inlawful means to
gather evidecne from witness.
7.3.4. Jurors: lawyers prohobited frp, engaging in live contact investigations of
jurors and from harassing conduct "duty to justice system" Investogation
allowed throughh 4.4(a)
7.4. Threatening Criminal Prosecution: Prohibited by Model Code under DR 7-105.
MR same effect by reliance on 4.4(a)
7.5. Communicating with Represented Persons
7.5.1. Generally [MR 4.2] lawyers prohibited forem communicating about the
subject matter of a dispute with represented opposing parites without first
obtainign permission from that parties lawyer
7.5.2. Parties and Persons: Includes represented persons even if not a formally a
party to the active litigstion
7.5.3. Who is an opposing party or person
a. Mere Witness - not a party 4.2 does not apply
b. Organizational parties 4.2 prohibits communication between opposing
lawyer and employee with managnment responsiobilities for the subject of
the matter, employees whose acts or omissions may be imputed to the
organzation with respect to the subject matter; and, employees whose stmt
may constitute an admission attributable to the organization
c. Former Employees - controversial as to whether 4.2 covers former
employesss. Majority and ABA say former employees are not parties for
4.2 purposes. distiguish base on category of employee at issue and that
employees relationship to the matter see comment 2
d. Class Action - class members are parties for 4.2
7.5.4. Obtaining Permission - consent of opposing party atty
7.5.5. Authorized by law - allowed if authorized by law

May 7, 2010
Page 58
 7.5.6. Authorized by Court Order - new amendment allows court order to
circumvent consent
7.5.7. Special Criminal Practice concerns - 4AR and 5AR due process and 6AR
counselrestrain prosecutors beyond 4.2 Prosecutors argue crime investigation
is not restricted by 4.2
a. Added Constituional limits
7.5.8. Investigation of a crime
7.6. Communicating with Unrepresented Persons
7.6.1. Generally: Not prohibited but restricted under MR 4.3
7.6.2. Avoid misleading about the lawyer's interst
a. Affirmative Duty: refrain from stalling or implying that lawyer is
disinerested
b. Clarifying Duty - must clarify role when lawyer reasonably should know
that an unrepresented person misunderstands the lawyer's interes
7.6.3. Giving Advice - only can advise to obtain counsel
7.6.4. Fact Gathering - not prohibioted under 4.3 so long as no advice is given
7.7. Civil Liability to Third Persons
7.7.1. Generally - in limited circumstyances, a lawyer may have civil liability
for wrongful or negligent lawyering outseide of the lawyer client relationship.
Lawyers do not owe duty to third party to support negligence
7.7.2. Intended Beneficiaries of the lawyer's work for a client: Duty of care
owed to that third person beneficiart
7.7.3. Invited Relioance - DOC when lawyers work for client soecifically invites
the relaice of a third person
7.7.4. Assisting clients in breachingfiduciary duties - duty to be3neficiary
requires lawyer to refrain from assisting fiduciary to beach the fiduciary dityes
7.7.5. Preventing cleint harm to a third person: highly controversial and not
widely accepted liability to lawyers who know that a client will harm a third
person and fail to engage in reasonable steps to prevent the harm
8. Duties to the Legal System & Society
8.1. Generally - Conflicts between client and court duties
8.2. Truth Telling in the Court - stricter than in out of ocurt
8.2.1. Statements to Opposing Parties Candor requirement out of court to
opposing parties is same as in litigation.
8.2.2. Fact Statments to the Court prohibited from knowingly making false
statements of material fact or otherwise fraud [MR 3.3(a)]
a. Generally - despite candor, no onligation to reveal unfavorable facts, but
must disclose material facts when "disclosure is necessary to avoid
asssiting in a criminal or fraudulent client act [MR 3.3(a)(1)
b. Ex Parte Proceedings [MR 3.3(d)] Must disclose favorable and
unfavorable material facts
8.2.3. Perjury: Difficult problem for lawywer especially when client is doing the
perjuring

May 7, 2010
Page 59
 a. General Duty to refrain from offering false evidence [MR 3.3(a)(3)]
Lawyer prohibited from offering evidence lawyer knows is false
b. Discretion to refuse to offer some evidence {same} may refuse to offer
evidence lawyer reasonably believes is false
c. Perjury by a witness - if by witness other than client - must promptly
reveal to court under 3.3(a)(3)
d. Perjury by a client - unlikke model code which distinguishe client and
witness perjury, under MR, lawyer must report [MR 3.3(a)(3); DR 7-102
(B)
1) Generally [MR 3.3(a)(3); DR7-102(B)]
2) Knowledge before the perjury: lawyer must attempt to dissuade,
attempt to withdraw, and take remedial measures including disclosure
to court
3) knowledge gained after the perjury - must encourage client to rectify.
MRC says, if not rectify, must reveal the perjury if learned before
proceeding coinclude. No obligation to reveal if does not learn until
after conclusion of proceeding [MR 3.3(c)]
4) Duty applies despitre confidentiality - Trumps confidentiality under
1.6 under 3.3(c)
5) Disticntions between criminal and civil representation [more complex
in criminal see 3.3(a)(3)
6) Other suggested options - narrative testimony, refusing to call client,
exempting of counsel in criminal cases
e. Law Statements to the Court - Prohibited from giving false statements but
as an advocate, need not reveal objective analsysi to the court, may make
any nonfrivoulsous arguments under 3.3(a)
f. Disclosing Adverse Authority
1) Generally - Lawyers are obligated to disclose controlling directly
adverse authority {MR 3.3(a)(2)] to the court
2) To Opposing Parites - no obligation
3) To the Court - obligated IF:
i. Controlling: Mandatory authority must be disclosed
ii. Directly Adverse: Authority that does not require extened analogy
iii. Contesting the Disclosed Authority: disclose does not prevent
contestm,ent, inapplicable, distinction, wrong
8.3. Suppressing Evidence and Witness Payment
8.3.1. Generally - lawyer is limitred in ways in which witnesses may be
compensated and in instructing witnesses about whether to make themselves
availble for testimony or interview from opposing side
8.3.2. Suppressing Witness availabilty [MR 3.4(f)] prohibited from requesting
or adving to refrain from cooperation with another litigant
a. Procuring witness unavailaibilty No dissasion allowed [3.4(a)]
b. Instructing witness to coopoerate only if subpoenaed - genrally not alloerd

May 7, 2010
Page 60
 c. Exception - allowed if witness is a relative, employee, or agent of client
and the lawyer reasonably beliebes that the request will not harm the
witness [MR 3.4(f)(2)]
8.3.3. Witness Payment Rules
a. Lay - statutory fee and expenses [MR 3.4 Comment 3]
b. Expert - pay professional fee for someone in that field and reasonable
expenses but not a contiingent fee [MR 3.4 comment 3]
8.4. Limitations on Presentations to A Court
8.4.1. Frivolous Claims and litigation positions - Lawyers are prohibited from
bringing frivoulos actions or taking frivolous litigation positions
a. Generally - Several forms of restreiction
b. Ethics Code Limits [MR 3.1] prohibits like FRCP 11
1) Frivolous Ckaims Rule
i. Whgat is Frivoulsous -0 lack legal or factual basis
ii. Distinction Civil and Criminal Cases - prosecutors have special
obligations regarding meritorious charges
2) Discovery and other Pretrial Conduct if to delay is prohibited [MR 3.4
(d)]
3) Expeditring Litigation - Obligation to expedite to extent this is
consistent with client interests [MR 3.2]
c. FRCP 11 and other Sanctiuons - Sanction liabiliyt beyond disciplinary
liability
8.4.2. Personal Opinion - no personal opinion to jhurors about justness of clinet
cause, credibility of witness, culpability, guilt, or innocence [MR 3.4(e)]
8.4.3. Alluding to matters outside the record [3.4(e)] prohibited from
undermining evidence
a. generally - must be relevant or supported by admissible evidence
b. Reasonable lawyer standard - do not allude if reasonable lawyer would
recognize lack of support oif admissible evidence
c. Certainty not required - need not be certain it wont be admitted
d. Outside Lawyer's control - must notr allude if no control, until evidence is
admitted
e. Matters already ruled inadmissible - prohibited if ruled inadmissible
8.4.4. Obey Court Orders - must obey and make reasonable efforts to preserve
record for challenge on appeal
8.4.5. Intemperate remarks - 1AR protects lawyer expression, butr lawyers
subject to discipkine for intemperate remarks that serve no useful purpose
8.5. Obligation to Improve the Legal System - [MR Preamble; MC Canon 8]
8.6. Limitations on Litigation Publicity
8.6.1. Generally [MR 3.6; 3.8(g)] limits what lawyers, especially prosecutors,
can say to media regarding pendinging litigation and criminal investigations
8.6.2. Constitutional Challenge - orginal rule void for vagueness

May 7, 2010
Page 61
 8.6.3. General Standard - prohibited against statemnts whose possible effects, a
reasonable lawyer, would know to materially prejudice the matter [MR 3.6(a)]
a. Out of Court - this does not apply in court
b. Likely to be disseminated by publiuc communications - only stmts that
reasonable stmt maker would expect to be dissementated by means of
public communication
c. Materially prejudice a matter - lawyer knew or reasonably should known
8.6.4. Permitted statements [MR 3.6(b) - some allowed
8.6.5. Exception for dtatements not necessary to protect the client - can make to
counter effects of public statement by other side [3.6(c)]
8.6.6. Prosecutor's supervision - special duty for prosecutors under [MR 3.8(f)]
8.7. Ex Parte Contact with Judges & Jurors
8.7.1. Generally - strictly regulated can seriously undermiune the justice system
and fairness
8.7.2. Judges - usually prohibited [MR 3.5(b)
a. Subject Matter
1) Unrelated Matters - if totally unrelated then not ex parte because no
party
2) Housekeeping Matters - permissible
b. No Intent requirement - even innocent communciation is prohibited
c. Authorized by law - emerg TRO, etc.
d. Oral or written communications - applies to all forms of communicayion
e. Prohibited even if initiated by judge
8.7.3. Jurors [MR 3.5(c)]
a. Generally
b. Before and during proceedings - none
c. After proceedings end - limited contact for benign purposes of determinign
presentation manner
d. Reporting juror misconduct - duty to report
8.8. Pro Bono Work - encourage
8.8.1. Organized legal Services - through bar and public agencies
8.8.2. Individual lawyer's duty MR 6.1 - comes closest to mandate but is still
aspirational
9. Special Role-Related Duties
9.1. Prosecutors - [MR 3.8] must avoid conflicrs between private rep and duty to
seek justice on behalf of public
9.2. Supervising and Subordinate Lawyers
9.2.1. Generally -
9.2.2. Lawyers subordinate to other lawyers
a. General - subordinates not relieved of prof conduct duty by order of
supervisor [MR 5.2]
b. Exception - subordinate not liable when she acts in accordance with

May 7, 2010
Page 62
 supervisory lawyer's reasonable resolution of arguable question of
professional duty [MR 5.2(b)]
9.2.3. Lawyers Supervising lawyers [5.1 responsible for providing reasonable
supervision]
a. Providing supervision - discipline for failurte to provide adequate
supervision
b. Responsibility for subordinate's misconducrt if ordered or ratified or learns
and fails to take reasonable remedial action
9.2.4. Lawyers supervising nonlawyers - same as supervisiong lawyer
subordinates
9.3. Lawyers as Intermediaries
9.3.1. Generally [former MR 2.2] achieve foals and interests of multiple paries
9.3.2. Requirements - clients must consent after consultation and lawyer must
believe can represent imparitally
9.3.3. fConfidentialty - do not apply as between commonly represented parties
[Evidentiary priv and duty of conf]
9.3.4. Withdrawal - must withdraw if any of the requirementrs ceases to be met
9.4. Ancillary Business
9.4.1. Generally subject to rules of PC if
9.4.2. General Rule
a. Not Distinct [MR 5.7(a)(1)] not distinct from lawyer's legal services
b. Failure to Communicate to client [MR 5.7(a)(2)] must inform clients that
this is not legal services and not protected like normal lawyer-cleint
relationship
9.4.3. What are ancillary services - law-related that are not prohibited by
unautohoirzed practice if being performed by a non-lawyer [MR 5.7(b)] Side
businesses are not ancillary
9.5. Multi disciplinary Practice
9.5.1. Definition - entity includes lawyers and nonlawers - like a consulting firm
9.5.2. Accountants
9.5.3. Professional Independence [MR 5.4] protect independent judgemnt
9.5.4. Other Concerns - enron -- defacto MDP are more difficult and less
profitable
10. Advertising and Solicitation
10.1. Model Code provisions outdated anbd misleading'MR treat advertising [7.2]
and solicitiation [7.3] differently
10.2. General restriction on both found in 7.1; 7.4 and 7.5
10.3. Truthfullnes
10.4. Record Keeping
10.5. Protected Commericial Speech
10.6. No duress or coercion for live solicitiation
10.7. no agents or runners for lawyers [MR 5.3((c)]

May 7, 2010
Page 63
II. Combined Final Outline [The Main Event]
A. Introduction, Regulation, Liability & Discipline
B. Lawyer-Client Relationship
C. Confidentiality
D. Duties to Courts & Legal System
E. Duties to Third Parties
F. Special Roles & Regulation
III. Exam Approach, Flow Charts & Reference
A.
IV. Full Rules and Commentaries

V.

May 7, 2010
Page 64