I. Regulation of LawyersA. Institutions

1. Inherent Powers Doctrine – powers thought essential to the existence, dignity, and functions of the court because it is a court or for an orderly, efficient, and effective administration of justice

2. Highest court in each state have inherent power to regulate lawyers by adopting codes of ethics, court rules and licensing lawyers to practice.

B. The Law Governing Lawyers 3. When a client brings a case against a lawyer, the plaintiff is the state

agency that prosecutes lawyers for violating ethics rules, breach of contract, malpractice. If breach of duty is questioned, client must prove lawyer failed to exercise “the competence & diligence normally exercised by lawyers in similar circumstances.”

i. Ex; Lawyer says to lender that there are no liens on property without checking. Borrower defaults on loan and commits suicide. Lender sues attorney.

4. Fiduciary duty establishes a legal relationship of trust between two parties5. Research on ethics law begins by looking at the applicable state ethics

code and the Restatement (Third) of the Law Governing Lawyers.

C. Admission to Practice & Prob. 1-1 (RULE 8.1)6. In re Mustafa – Mustafa was on moot court and had control over

checking account, of which he used for personal use. Mustafa disclosed his conduct to the school and the firm he is working. Mustafa was cooperative and testimony was given on his behalf of his good behavior. His application was denied because his conduct could be considered criminal, were he an attorney he would have been disbarred, and he has failed to establish good moral character required for admission.

7. California Bar Journal (Mustafa cont…) – Mustafa was further suspended from practice in 2002 and he resigned his bar membership rather than respond to the charges. He was charged for conversion of settlement funds and failing to compensate an attorney, he failed to appear at many court hearings, and files a wrongful termination complaint in which he did not respond to any of four motions filed by defendants.

D. Rules 8.1, 1.2(d)Maintaining The Integrity Of The ProfessionRule 8.1 Bar Admission And Disciplinary MattersAn applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:(a) knowingly make a false statement of material fact; or(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

Client-Lawyer RelationshipRule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer(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.

II. Lawyer Liability: Professional Discipline F. Criminal Liability of lawyers G. Client Protection FundsA. Claims against lawyers can be either:

1. Disciplinary claims2. Civil claims3. Criminal claims

B. Professional Discipline1. Most complaints are dismissed. Most people disciplined are sole practitioners.

Lawyers have been disciplined for failure to pay child support, domestic violence, putting slugs in parking meters. Nixon was disbarred due to his conduct as President when dealing with the issue of the Pentagon Papers.

2. Process normally confidential, until point of public sanctions, reprimand, disbarment, etc.

C. Factors Considered in Imposing Lawyer Sanctions:1. Whether there was a duty owed to client, public, profession2. Whether lawyer acted intentionally, knowingly, negligently3. Amount of actual or potential injury cased4. Existence of any aggravating or mitigating factors.

D. Reporting Misconduct by Other Lawyers 1. Lawyers must report conduct that raises “a substantial question as to a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” This is done by using an objective reasonableness standard of knowledge of the other lawyer’s

activities. Must be substantial.2. Exceptions:

i. Information protected by confidentiality rules – RULE 1.6ii. Information learned in the course of service on lawyers’ assistance

program. (i.e. Counseling issues)3. A lawyer may defer reporting misconduct until after the adversary proceeding

has concluded, if deferral is necessary to protect a client’s interests.4. Illinois sustained the suspension of a lawyer’s license for failing to report

another lawyer; this has led to an increase in reports.EX: Attorney pockets funds from client. Client hires Himmel to sue to

recover from previous attorney. They recover but Himmel’s license is suspended for failing to report the first attorney’s actions.

4. ISSUE: failing to rat out an attorney may be a gateway to commit certain acts that one may not have been prone to commit previously.

5. Law Firm Rule: Holds the entire firm liable for conduct even when an individual culprit cannot be identified.a. Most states only individual discipline b. NJ and NY allow whole firm discipline

6. Kelly v. Hunton & Williams – Kelly is a law clerk at a firm. He comes across fraudulent billing hours of one of the partners, Scott Wolas. He is

subsequently let go and receives bad references. Firm argues that Weider does not apply b/c he was not admitted to the bar. Court holds that it does apply and MSJ is denied in favor of Kelly. Case later settles before trial.

7. California: requires lawyers to self-report to the disciplinary authorities certain complaints, judgments, sanctions that have already been directed at them,

but imposes NO duty to report on other lawyers8. Georgia- lawyers SHOULD report9. Washington- lawyers aren’t required to report misconduct 10. MOST states require lawyers to report serious misconduct that is NOT

confidential

11. **Must report only those that raise a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respectsa. objective standardb. more than a mere suspicionc. whether a reasonable lawyer in the circumstances would have a firm

opinion that the conduct in question more likely than not occurredd. for protection of public e. does NOT include self-reporting of misconduct

1. **constitutional right against self-incrimination

E. NOT required to report:1. Information protected by the confidentiality rules2. information learned while participating in a lawyer’s assistance program

F. No client approval necessary for reporting misconduct

G. A lawyer who fails to report serious misconduct by another lawyer may be subject to discipline

H. Civil Liability of lawyers:1. Legal Malpractice

a. claim of negligence or claim of intentional misconduct1. lawyer owed a duty to P2. lawyer failed to exercise the competence and diligence normally exercised by lawyers in similar circumstances 3. that breach of duty caused harm to P

b. Difficult to win a malpractice claim because you have to show that “but for” the attorneys conduct, the harm would not have occurred

c. Most common mistakes leading to malpractice liability:1. ignore conflicts of interest; sue your former client for an unpaid

fee; accept any client/matter that comes along; do business with your client; practice outside your area of expertise; leaving partner peer review to the other firms; settle matter without written authorization from your client; fail to communicate with your client

2. Malpractice Insurancea. lawyers are not required to purchase malpractice insurance; only in

Oregonb. about ½ states require disclosure of having malpractice insurance or not, to Bar or directly to client

3. Other Civil Liabilities of Lawyers a. liability for breach of contractc. for violation of regulatory statutes

D. Rules 5.1, 5.2, 5.3, 8.3Law Firms And AssociationsRule 5.1 Responsibilities Of Partners, Managers, And Supervisory Lawyers(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Law Firms And AssociationsRule 5.2 Responsibilities Of A Subordinate Lawyer(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.(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.

Law Firms And AssociationsRule 5.3 Responsibilities Regarding Nonlawyer Assistance

With respect to a nonlawyer employed or retained by or associated with a lawyer:(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;(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and(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:(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the 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.

III. Confidentiality A. The Basic Principle- Rule 1.6- reason for this rule: so client can fully convey problems to lawyer, creating a free-flow of information with mutual trust and respect

1. Rule 1.6. Lawyers cannot reveal information relating to the representation of a client without informed consent. This includes personal information;

information learned before representation began, and notes create during the matter. Excludes information that is “generally known” to the public. The fact of consultation itself, however, may be deemed confidential

2. Restatement- confidential information is protected if there is a reasonably prospect of harm to a client’s interest. a. Test: whether a lawyer of reasonable caution, considering only the

client’s objectives, would regard use of disclosure in the circumstances as creating an unreasonable risk of adverse effect either to those objectives or to other interests of the client

b. EXCEPT information that is generally known- lower standard than ethical rule

1. Consequences for breaching confidentiality:a. getting fired from client, professional discipline, client suffers damages as result of breach, client refuses to pay lawyer, damage attorney

reputation, attorney can be disqualified

B. Exceptions to the duty to protect confidences 1. A lawyer may reveal information to the extent he reasonably believes necessary (1) to prevent certain death or harm, (2) to prevent client from committing a crime or fraud that is reasonably certain to result in substantial injury (imminent or a

later date) to financial interest or property of another (must be in the furtherance of the lawyer’s services)

2. People v. Belge- client discloses location of missing bodies which he admittedly killed. Attorney checks on the location but does not disclose

their whereabouts to the authorities. Court rules that the indictments brought against the attorney are dismissed due to attorney client privilege and in the interests of justice

3. The Risk of Injury or Death:a. Spaulding v. Zimmerman: attorney for insurance co. knows of

injured’s severe condition. A settlement agreement was reached without P’s knowledge of that condition. It was not until a few years later when the condition was discovered by P during a physical examination by the army. The court set aside the previous settlement, while there is no legal obligation by the parties, it was determined that the settlement then made did not contemplate or take into consideration the disability described (similar to doing a land deal and the survey shows more acres than expected)

4. Client Frauds and Causing Financial Harma. a lawyer who practices before the commission of who advises

companies regulated by the commission is required to report any information about securities fraud to the highest official of

the corporation b. Rule 4.1(b)- a lawyer shall not knowingly fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent

act, unless prohibited by Rule 1.6c. Rule 1.2(d)- a lawyer shall not counsel a client to engage, or assist a

client, in conduct that the lawyer knows is criminal or fraudulent1. Rule 1.16- once fraud is found, lawyer must withdraw from

representation d. Rule 8.4(c)- prohibits lawyers from engaging in dishonesty, fraud,

deceit, or misrepresentatione. Fraud- depends on the substantive or procedural law of the applicable

jurisdiction to the issue at hand1. Intentional- contract law doesn’t require intent as long as its

material2. Misrepresentation3. Inducing reliance or action4. That results in financial loss- criminal law doesn’t require a

showing of harm as torts does 5. Reese’s Leases- company leases luxury cars for use by

corporate managers. They are cooking the books (inflating value) to get larger loans from the bank in order to grow. They create counterfeit leases for fictitious transactions. The higher volume they show, the larger loans they can get. Here, the lawyer’s services were not used. Although the lawyer may be in violation of Rule 8.4 or Rule 4.1

5. Protecting the Attorney’s Interests a. Rule 1.6(b)(5)- allows a lawyer to reveal confidential information to

protect their own interest/ to collect a fee/ to defend against a criminal or disciplinary proceeding.

1. Lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure

2. it should not be greater than the lawyer reasonably believes necessary

3. should be made in a manner that limits access to the information4. lawyer need not wait until a malpractice suit is filed to disclose

confidential information5. a lawyer may be allowed to reveal confidences even if he is not

alleged to be the primary wrongdoer6. other law trumps the ethics rule- I.E. if state law requires

disclosure of known ongoing child abuse regardless of confidences, then the attorney must disclose

b. Rule 1.8- attorney cannot use confidential information obtained from one client to advantage another UNLESS there is consent or it is

reasonable that the other client will not be disadvantaged

C. Revelation of past criminal conduct- allows lawyer to reveal information about the client fraud despite the lawyer’s obligations to protect confidences

1. Rule 1.6(b)(2)- applies if the client plans to commit or is committing the crime or fraud

2. Rule 1.6(b)(3)- refers to a past crime or fraud

D. Policy allowing exceptions to the confidentiality rules:1. to encourage frank communication between clients and lawyers2. to prevent harm to the public3. to protect the integrity of the profession by allowing lawyers to blow the

whistle of their own work is being used to commit crimes or fraud

E. Rule 1.6 doesn’t allow a lawyer who has not assisted a client’s financial crime or fraud to make a disclosure to protect another person from injury. If the client hasn’t used and is not using the lawyer’s services to commit a fraud, the lawyer may not warn the unintended victim of the fraud

Rules 1.6, 1.0(f), 1.2(d), 1.16(a) and (b), 3.3, 4.1, 8.4(c) Client-Lawyer RelationshipRule 1.6 Confidentiality Of Information(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).(b) A lawyer may reveal informa tion relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;(2) to prevent 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) 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) to secure legal advice about the lawyer's compliance with these Rules;(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 proceeding concerning the lawyer's representation of the client; (6) to comply with other law or a court order; or(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. (c)  A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Client-Lawyer RelationshipRule 1.0 Terminology(f)  "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.

Client-Lawyer RelationshipRule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer(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.

Client-Lawyer RelationshipRule 1.16 Declining Or Terminating Representation(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) the representation will result in violation of the rules of professional conduct or other law;(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or(3) the lawyer is discharged.(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:(1) withdrawal can be accomplished without material adverse effect on the interests of the client;(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;(3) the client has used the lawyer's services to perpetrate a crime or fraud;

(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;(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) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or(7) other good cause for withdrawal exists.

AdvocateRule 3.3 Candor Toward The Tribunal(a) A lawyer shall not knowingly:(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) 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) 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) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Transactions With Persons Other Than ClientsRule 4.1 Truthfulness In Statements To OthersIn the course of representing a client a lawyer shall not knowingly:(a) make a false statement of material fact or law to a third person; or(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.

Maintaining The Integrity Of The ProfessionRule 8.4 MisconductIt is professional misconduct for a lawyer to:(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;(d) engage in conduct that is prejudicial to the administration of justice;(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

IV. Attorney Client Privilege & Work Product Doctrine-Privilege means something subject to the attorney client privilege one cannot be

compelled to testify about in court-JUST of client-lawyer communications A. Comparing Confidentiality and the Attorney Client Privilege:

(Confidentiality takes the evidence law of privilege a step farther in stating that confidences should be kept regardless of whether someone is trying to

compel disclosure. Duty to protect privileges means protect information regarding communications between the lawyer and the client. Client also has a duty to lawyer’s disclosure as well)

1. First distinction- scope of what is protected: a. Confidentiality-info related to the representation and regardless of the

source, coming from documents, investigators, and the other sideb. privilege- only protects communications between the lawyer and the

client- this source which is narrower, source is the client, communicated from the client to the lawyer in private

c. In most cases, what the lawyer tells the client is also privilege 2. Second distinction- consequences of breach:

a. confidentiality- disciplinary sanctions, possible malpracticeb. privilege- information is no longer protected and therefore revealed in

court and elsewhere; if breach is attorney’s fault it could be contract liability

3. Third is similar in both- policya. even in court we understand there’s a benefit of the lawyer and client

speaking freely

Confidentiality- Ethical RulePrivilege- Rule of Evidence

B. Elements of attorney client privilege:1. There has to be an attorney client relationship 2. Communication must have been made in private3. Communication must be made for purposes of giving or obtaining legal advice

C. Privilege= Evidentiary/ Confidentiality= Rules of Ethics 1. Remember, privilege belongs with client, NOT lawyer, so client can waive it,

however, lawyer can also waive it when acting on behalf of the client2. Client might decide to waive client privilege when: if it was a communication

that might somehow exonerate the client or mitigate.

a. i.e. “I told my lawyer”- whole conversation is waived- that conversation; doesn’t mean the whole communication

D. Client identity: law is not entirely settled as to whether or not a lawyer must reveal the identity of his/her client. May be privileged if identity represents the last link in a chain that criminalizes client’s product

E. The Privilege for Corporations:1. In Federal Court, corporate entities claim attorney client privilege. The scope

should depend on the subject matter of the communication, not on who was doing the communicating. State courts, however, apply the control group test or the subject matter test

2. Privilege for senior officers but also to low level employees3. Scope of privilege for corps.- should depend on the subject matter of the

communication, NOT on who was doing the communicating 4. Upjohn v. US- Pharmaceutical Co. discovers that its subsidiary made payments for the benefit of foreign officials to secure foreign business. The company

conducted an internal investigation and submitted a company-wide questionnaire. The results of this were sent to the SEC in a preliminary report. The IRS issued a summons demanding production of the written questionnaires. Sixth Circuit limited the privilege to communications between counsel and senior corporate managers who were members of the “control group.” Supreme Court says the “control group” test frustrates the purpose of privilege by discouraging the communication of relevant information. IRS was free to investigate Upjohn’s employees themselves; there is no need to rely on Upjohn’s personal internal investigation.

a. Control group test- limits privilege communications from persons who have authority to mold organizational policy

1. members of the board, CEO, whoever makes decisions, those whom control the corp.A. these are the only ones covered as clients with this testB. Supreme Court NOT comfortable applying this test

b. Subject matter test- extends to any lower-echelon employee or agent so long as the communication relates to the subject matter of the

representation 1. created for federal purposes by this judge2. all workers should be protected as well3. it’s the subject matter of the representation

5. Why would attorney want to expand privilege?: make govs. job harder/ discovery- can get underlined records, not privileged records

F. The Crime-Fraud Exception 1. no privilege is a client seeks assistance with a crime or fraud regardless of

whether or not the client knows it is a crime2. In most states, advice about a planned crime which does not assist in the legal

act is protected.

3. advice about a past act is protected so long as the act really is past4. Only the client’s intentions are relevant, concealed information from the

attorney regarding the crime and his subjective knowledge is not.5. If advice is given, then crime never happens, it should be protected.6. Opposing lawyer may not be fully aware of a crime fraud exception so may be

allowed access to certain documents based on guesses about what they may contain under suspicious circumstances.

2. Tobacco litigation Example:a. Tobacco companies put general counsel in charge of health research to

claim privilege so States cannot prove they knew of adverse effects. Courts held that this was done to defraud the public. Covered by the crime-fraud exception

G. The Death of the Client1. Swidler & Berlin v. US- Foster fired employees at the White House travel

office after $18K went missing. Republican congress investigates the matter. Foster retains James Hamilton as an attorney. Foster commits suicide. Federal grand jury issues subpoena for Hamilton’s notes. Lower court found they were privileged. Ct. of Appeals said the privilege is gone when information is of substantial importance to an ongoing investigation. The court finds that intent behind previous exceptions is to further deceased’s intent, not simply to settle disputes. Foster may have already been contemplating suicide and this would have deterred him from retaining counsel

H. Waiver1. Express waiver by client2. Waiver by inaction 3. Waiver by revealing privileged communication to a non-privileged person

a. privilege people may include ministers, doctors, spouses, psychologists4. waiver by putting privileged communications into issue

a. malpractice suit5. disclosure of part of the conversation6. compliance with court orders

a. lawyers may commit contempt of court but is not required 7. Lawyer can also waive privilege:

a. if lawyer discloses privileged information, only info that is actually disclosed and only if the lawyer had actual or apparent authority

to make the waiverb. Inadvertent waiver by lawyer:

1. an email is supposed to go to client but instead goes to adversary2. General Rule: an inadvertent disclosure is not going to operate

as waiver if lawyer took reasonable precautions to prevent and take prompt action to recover the misinformation

3. Reasonable precautions boiler plate in email- is that enough? By itself might not be enough but should always have it

Remember- privilege protects both: what the client tells the lawyer and what the lawyer tells the client

I. The Work product doctrine1. Work prepared in anticipation of litigation

a. Lawyer must take notes that reflect their strategic thinkingb. Only the lawyer’s need to use the materials creates a degree of

protectionc. If documents are given by client that is relevant to IMPENDING

litigation, then they may not be protected unless lawyer can show otherwise

d. Protection may be disclosed if there is a substantial need and opposing party is unable without undue hardship to obtain it by an

alternative mean2. Applies to material prepared by lawyer in anticipation of litigation:

a. Could be communications- between lawyer and client, but also notes on interviews with non-client witnesses, or memos of lawyer’s

thoughts, or memos on mental impressions/ strategies (not privileged because it wasn’t communicated to the client, BUT STILL PROTECTED HERE)

b. Documents that include mental impressions, conclusions, opinions or legal theories of an attorney about the cause

3. DOCUMENT MUST BE PREPARED IN ANTICIPATION OF LITIGATION

J. Joint Clients1. If a lawyer represents two parties in one matter, communications are privileged

against third parties, but not as against each other:a. Unless parties have explicitly agreed

2. Confidentiality: generally, lawyers will NOT accept information from one client that the client wants to keep confidential from the other Conflict

of Interest

V. Lawyer-Client Relationship A. Formation of Lawyer-Client Relationship

1. Lawyers can be picking in representing clients, but should aspire to provide 50 hours per year of pro bono representationa. Rule 6.2- lawyers should accept court assigned clients unless there is a

good cause to do otherwise 1. Rule 1.2(b)- such representation doesn’t constitute an

endorsement of the clients political, economic, social or moral views or activities

b. Lawyers may not discriminate based on race, etc.

3. Choosing Client:

a. attorney may be precluded from taking on work because: conflict of interest, lack of expertise, another problem (may dislike client or

may disagree with goal of representation)b. Lawyer may take on work that requires knowledge of an area of law in

which the lawyer has no expertise- but lawyer must compensate for inexperience with study or affiliation with another lawyer 1. Rule 1.1- provide competent representation- can take it on if

he/she has time and resources to get up to speed in that area of law

2. Attorney might be disciplined for charging for unnecessary or unreasonable time of research though

c. Discretion in choosing clients:1. Having to take on indigent clients (unpopular clients)2. Rule 1.2 and 1.16 Fraudulent clients- a lawyer may not agree to

represent a client if the assistance sought by the client would involve the lawyer in a violation of law or of the professional ethics rules

3. Lawyer cannot reject client for discriminatory reasons- race, religion, nationality, sex, age, disability, etc.

4. Offering advice as the basis for a lawyer-client relationship: a. to form relationship- no need to sign agreement or pay freeb. when lawyer receives confidences, gives legal advice, or provides legal

services- may owe some professional duty now

Togstad v. Vesley- wife approaches attorney for legal advice. Her husband had an aneurism. A clamp was surgically implanted which

required the pressure to be relieved for proper blood circulation- physician did not adjust clamp. Attorney simply stated she did not have a claim and the statute of limitations runs. She brings suit against attorney and he is found to be negligent. Attorney could have clarified that she should have sought out someone who practices in that particular area. Community standards require that he consult medical records and an expert. Client had a reasonable expectation that a relationship existed

B. Lawyers responsibility as agents1. Lawyers are agents, clients are principles (the people in charge)

a. Client is bound by what the lawyer does or fails to do, regardless of the clients own actions or culpability- with rare exceptions

2. Express and Implied Authority:a. client gives attorney express authority to act on client’s behalf- or

implied authority- both bind client to attorneys actions3. Apparent Authority:

a. Client tells third party lawyer has authority to do something, 3rd party relying on lawyers actions

4. Authority to settle litigation:

a. No implied authority to setline JUST by retaining lawyer

C. Lawyers duties of competence, honesty, communications, and diligence 1. Competence:

a. Rule 1.1-a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill,

thoroughness and preparation reasonably necessary to for the representation.

b. Matter of Neal- Neal does not provide competent representation because he thought an appeal was automatic but did not know he

still needed to file a series of motions and paperwork before the court, which he didn’t

c. Fundamental Lawyering Skills:1. problem solving, legal analysis and reasoning, legal research,

factual investigation, oral and written communication, counseling, negotiation, litigation and alternative dispute resolution procedures, organization and management of legal work, and recognizing and resolving ethical dilemmas

d. Competence in criminal cases: 1. 6th Amendment requires the effective assistance of counsel 2. Unlikely defendant will win ineffective assistance of counsel

appeal unless lawyer’s performance was really awful. Defendant must prove:

A. Assistance was unusually poor; ANDB. Better representation would have made a difference

(prejudice/ deprived of unfair trial) 3. Strickland v. Washington: Washington confesses to murder. He agrees to testify against co-D. attorney relies on the fact that he turned himself in, was willing to testify against co-D, was under stress, and had no

significant criminal record, and judge’s history, to justify a verdict against the death penalty. Judge imposes the death penalty anyway. Washington sues attorney, provides affidavits of people willing to testify on his behalf and 2 psychological reports stating he was chronically depressed. Court finds the attorney’s actions to be reasonable and not unprofessional. Attorney’s performance must be DEFICIENT and that performance must PREJUDICE the defense. Allowing such evidence may have, even been harmful to D’s case, rather than helpful. Dissent- D should not be burdened with sowing that an incompetent attorney’s actions did or did not somehow affect final judgment

2. Communication- Rule 1.4: Promptly inform client of any decision of circumstances where informed consent applies. Keep client reasonably

informed/ comply with reasonable requests/ reasonably explain duty and the matter at hand in order for the client to make an informed decision

3. Diligence- Rule 1.3- must act with due diligencea. Fundamental duty of lawyers towards clients- do the work they have

been hired to do, and to do it without undue delay b. “A lawyer shall act with reasonable diligence and promptness in

representing a client”

4. Candor and communicationa. Okay lies- white lies to avoid embarrassment or hurting feelings; lies to

protect people; lying to protect your own privacy b. Lying vs. Deception- relies on whether you INTENDED to deceive the

other person c. Ethic Rules explicitly direct lawyers not to like to tribunals or to persons other than clients/ No explicit requirement for lawyers to be honest with

their clients d. Rule 8.4(c)- prohibits lawyer from engaging in conduct involving

dishonestly, fraud, deceit, or misrepresentation

D. Who calls the shots?1. Rule 1.2- Civil Case: client decides whether to settle. Criminal Case: Whether

to plead guilty, waive jury trial, testify, client decides 2. Restatement- lawyer may take any lawful measure within the scope of

representation that is reasonably calculated to advance a client’s objective 3. Jones v. Barnes- Butts is robbed. He recognizes Barnes as froggy. Butts

testimony convicted Barnes but on cross he was asked whether he had undergone psychiatric treatment, and defense claimed identification testimony should be suppressed. Barnes appeals on these issues. His new attorney Melinger accepted some claims Barnes set out in pro se brief but went with his own brief instead. Barnes’ decision was affirmed. Barnes sued Melinger. Lower court finds for Melinger, appellate court reverses stating that he should have argued every point possible. Supreme Court reverses in favor of attorney. This involved a matter of professional judgment and Barnes could have represented himself had he wished. Brennan- court is deciding what assistance and counsel means. Since D will bear the consequences, D should be able to decide which issues are brought forth

E. Clients with Diminished Capacities:1. Rule 1.14- Comment 6: in determining the extent of the client’s diminished

capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician

F. Terminating Lawyer- Client Relationship 1. Restatement Sec. 46- allows documents relating to representation to be given

to client. Documents intended only for internal review may be withheld. If no money received from client, no requirement to show documents

2. Rule 1.16- Grounds for Terminationa. Mandatory- when lawyer is fired, continued representation would

involve unethical conductb. Permissive- only if without material adverse effect to client’s interests.

Must obtain permission to withdraw from court if suit is already filed and in litigation. May withdraw when no fee is paid or when there is an undue financial burden on the lawyer, or when client does not cooperate

Rules 1.1, 1.2, 1.3, 1.4, 1.14, 1.15, 1.16, 6.2 Client-Lawyer RelationshipRule 1.1 CompetenceA lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Client-Lawyer RelationshipRule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Client-Lawyer RelationshipRule 1.3 DiligenceA lawyer shall act with reasonable diligence and promptness in representing a client.

Client-Lawyer RelationshipRule 1.4 Communication(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;(3) keep the client reasonably informed about the status of the matter;(4) promptly comply with reasonable requests for information; and(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.(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Client-Lawyer RelationshipRule 1.14 Client With Diminished Capacity(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.(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 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.(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.

Client-Lawyer RelationshipRule 1.16 Declining Or Terminating Representation(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) the representation will result in violation of the rules of professional conduct or other law;(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or(3) the lawyer is discharged.(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:(1) withdrawal can be accomplished without material adverse effect on the interests of the client;(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;(3) the client has used the lawyer's services to perpetrate a crime or fraud;(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;(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) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or(7) other good cause for withdrawal exists.(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) 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.

Public ServiceRule 6.2 Accepting AppointmentsA lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:(a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.

VI. Concurrent Conflicts of Interest- General Practice A. General Principles: Rule 1.7

1. Consequences: malpractice liability, distrust, disqualification2. Remedies: withdrawal, informed consent, limited representation, screening 3. Rule 1.7:(a) Except as provided in paragraph (b), a lawyer SHALL NOT represent a client if the representation involves a concurrent conflict of interest. A concurrent

conflict of interest exists if:(1) the representation of one client will be directly adverse to another

client (representation of one will act against the other, exists even if cases are not related); OR

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities of

another client, a former client or a third person or by a personal interest of the lawyer (use reasonableness standard: (1) how likely, (2) will it materially

interfere; even if there is no direct adversity, there is a conflict if there is a significant likelihood that a difference in interests will eventuate and if it does that it will materially interfere with the lawyer’s independent professional judgment)

(b) Notwithstanding the existence of concurrent conflict of interest (you found, yes there is a problem from a) under paragraph (a), a lawyer MAY

represent a client if: (if 1-3 is not satisfied, lawyer cannot ask for 4) (1) the lawyer reasonably believes that the lawyer will be able to provide

competent and diligent representation to each affected client (Rule

1.1, 1.3; does it involve joint representation, two present clients, friends, how sophisticated is the client is there a conflict? Who can you represent? ; might also be a loyalty issue if you advise one client to the fullest and hurt the other);

(2) the representation is not prohibited by law(3) the representation does not involve the assertion of a claim by one

client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal (you cannot

represent both sides); AND(4) each affected client gives informed consent, confirmed in writing

(Rule 1.0(e)- informed consent denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of a reasonably available alternative to the proposed course of conduct)

-have lawyer orally explain to the client risks, advantages and possible alternatives to the lawyer going forward with the

representation

4. “Directly adverse”:a. if the lawyer’s conduct on behalf of one client requires the lawyer to act

against the interests of another current client i.e.- a lawyer who files suit on behalf of one client against another

of his own clients5. “Material Limitation” by other responsibilities:

a. When client would receive less vigorous representation from a lawyer because of the lawyer’s other responsibilities- might be a material

limitation b. Mere possibility of harm NOT enough c. Ask:

1. How likely is it that a difference in interests will eventuate?2. If there likely is such a divergence, would it materially interfere

with the lawyer’s advice to or representation of a client

4. Rule 1.10: Imputation of Conflicts of Interest a. Cannot represent client if another partner in firm represents adverse

client also (does not apply to law clerks, paralegals, secretaries, or other non-lawyer employees- still have to do the analysis under 1.7 FIRST)

(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…-must do 1.7 analysis FIRST as if for just 1 lawyer-analysis under (b)(1) might be different under a scenario where

law suits are in two different states- loyalty and confidentiality would be different- there might not be any contact with the other office, no contact with other state clients-

electronic files, no disclosure of confidential information; loyalty- more likely to happen in business matters instead of injury and divorce)

B. Evaluating Conflicts- to resolve a concurrent conflict under Rule 1.7 lawyer must:

1. clearly identify the client or clients and determine whether each is a present client or a former client

2. determine whether a conflict of interest exists3. decide whether the lawyer is permitted to represent the claim despite the

existence of a conflict (whether conflict is consentable)4. if so, consult with the clients affected under paragraph (a) obtain their informed consent, and sent written confirmation to the clients of the informed consent

C. Determine if Conflict is Consentable, 1.7(b) directs lawyer to ask:1. whether she reasonably believes that she will be able to provide competent and

diligent representation to the relevant claimsa. what a reasonable lawyer would think b. are the conflicting representations related or unrelated? If the matters

involved are not factually interrelated, the conflict may be Waivable

c. does the problem involve joint representation of two parties with very divergent interests? If so, it may not be possible to pursue the

interests of one without harming the otherd. Is the conflict between two present clients or between one present and

one former client? If the conflict could adversely impact only a former client, the conflict is consentable

2. whether the representation is prohibited by law 3. whether the representation involves litigation in which the lawyer is

representing one client against another client whom the lawyer is representing in that matter

D. Conflicts between current clients in civil litigation- Suing Current Clients 1. Suing Current Clients

Fred (your client) v. Wife (another lawyer)Mona (your client) v. Fred (3rd lawyer)a. Lawyer cannot file suit against another present client UNLESS the

lawyer reasonably believes that she can represent both without adverse impact on either and unless both clients give informed consent

2. Cross-Examining a Current Client a. A lawyer can have an adverse relationship to a current client n litigation even if the client is not a party in the case in which the conflict arises. One such situation occurs if a lawyer is called upon to cross-examine one of

her clients in a trial involving charges against another of her clients 3. Representation of Co-P’s or Co-D’s in civil litigation

a. Most serious type of conflict of interest 1 lawyer to sue one client on behalf of another

b. Relationship of your Co-D’s or Co-P’s isn’t adverse but their interests might conflict

c. Accident cases:1. 2 passengers sue driver of other car; pr2. 1 passenger and 1 driver sue driver of another car

A. Passenger and driver have sufficiently different interests that they may not be represented by a single lawyer B. Restatement 128- this conflict MAY be Waivable by

client after FULL disclosure e. Rule 1.7(b)- if you should represent Co-P’s or Co-D’s in single

litigation- “the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client

f. Disclosure everything that will adversely affect client’s interest 4. Positional conflicts- taking inconsistent positions in litigation

a. Legal arguments may be made contrary to clients position in another case so long as the decision in that case does not create a legal

precedence adverse to client’s interests1. A Conflict exists, however, if there is a significant risk that a

lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case. i.e. when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters

b. Factors to consider:1. trial or appellate court2. practical significance of argument3. substantive or procedural

c. Rule 1.13- a lawyer retained by an organization represents the organization acting through its duly authorized constituents

E. Conflicts involving Prospective Clients-Rule 1.181. Rule 1.18- prospective client is anyone who discusses (communicates and

has a reasonable expectation that the lawyer is willing to consider forming a lawyer client relationship, even though no such relationship is actually formed) the possibility of forming a lawyer-client relationship

a. mandates protection of confidences received from prospective clients and lays out a set of standards by which to evaluate conflicts with

prospective clients b. Rule 1.18(a)-defines a prospective client

c. Rule 1.18(b)- bars a lawyer from using or revealing information learned from a prospective client except to the extent permitted by Rule 1.9d. Rule 1.18(c)- bars a lawyer from continuing to represent a current client if she receives information from a prospective client that could be

significantly harmful to her if it were revealed to another client e. Rule 1.18(d)- another lawyer in the firm may continue to represent the

current client(1) if both the current and prospective clients give informed

consent; or(2) if (a) the lawyer who received the potentially damaging

information took steps to prevent being exposed to more than the necessary amount of information to determine whether the firm could represent the client, (b) the disqualified lawyer is screened from contact with the matter, and (c) written notice of the conflict is given to the prospective client

2. Lawyer cannot subsequently disclose any information discussed, nor can represent a client that would materially adverse that party’s interests

Rules 1.7, 1.10, 1.18Client-Lawyer RelationshipRule 1.7 Conflict Of Interest: Current Clients(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:(1) the representation of one client will be directly adverse to another client; or(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;(2) the representation is not prohibited by law;(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and(4) each affected client gives informed consent, confirmed in writing.

Client-Lawyer RelationshipRule 1.10 Imputation Of Conflicts Of Interest: General Rule(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(1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or(2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, and

(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and(iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures.(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

Client-Lawyer RelationshipRule 1.18 Duties To Prospective Client(a)  A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.(b)  Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.(c)   A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).(d)   When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:(1)   both the affected client and the prospective client have given informed consent, confirmed in writing, or:(2)   the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and(i)    the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(ii)   written notice is promptly given to the prospective client.

VII. Current Client Conflicts- Particular Practice Settings A. Representing both parties to a transaction- Joint Representation

1. Rule 1.7- whether there is a direct adversity conflict or a material limitation conflict under 1.7(a). If so, the lawyer must evaluate whether she

reasonably believes that she will be able to provide competent and diligent representation to each affected client.

a. If yes, the lawyer may seek the consent of the affected clients 2. In most cases, lawyer may seek to represent both with a common goal 3. If interests conflict, lawyer must provide clients with information about the

possible downsides of the joint representation and obtain their consent i.e. clients forming a corporation, setting a dispute without litigation,

doing estate planning, or buying a house 4. If no apparent conflict, no informed consent requires 5. How to know if you need informed consent:

a. whether there is an actual or potential conflict that is reasonably apparent to the lawyer

b. divergent interests and goals c. tensions in communications

6. Can a lawyer keep confidences learned from one client from the other?a. a lawyer owes both clients a duty of loyalty- which might be

compromised if the lawyer keeps secrets from either one of themb. there is no attorney-client privilege shielding information from either of

the clients when jointly represented BUT the ethical duty to protect confidences is less clear-cut

c. Rule 1.7 Comment 31: lawyer usually should NOT keep confidences received from one joint client from the other

B. Representing Organizations- Rule 1.13 (a) A lawyer employed or retained by an organization represents the organization

acting through its duly authorized constituents (the client is the entity itself that cannot act except through its officers, directors, employees, shareholders, or other constituents- constituents. When constituents communicate with lawyer, protected by 1.6)

(b) If a lawyer for an organization knows that an officer, employee, or other person associated with the organization is engaged in action, intends to act

or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law (what action is required of the lawyer depends on the

seriousness of the violation and its consequences, the responsibility in the organization and the apparent motivation of the person involved)

(c) Except as provided in paragraph (d), if

(1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to

address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and

(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization,

then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the

lawyer reasonably believes necessary to prevent substantial injury to the organization.

(d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law,

or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.

(e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who

withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal.

(f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of

the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.

(g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject

to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

1. Who is the client?: usually the client is the corporation itself, not the officers or shareholders, but sometimes the lawyer has obligations with

individuals with the client organization. Factors affecting whether a related entity is a client:

Related entity more likely to a client if: Related entity less likely to be a client if:

The lawyer received confidential information from or provided advice to the subsidiary

The lawyer no longer represents the initial corporate client

The entity was controlled and supervised by the parent organization

The two became linked (merger) after the lawyer began representation of the corporation

The original client could be materially harmed by the suit against the subsidiary

2. Can a lawyer who represents a corporation provide legal services to individual employees of the organization?:a. in private practice yes, UNLESS the interests of the organization and

the individual conflict, in which case lawyer may proceed only with consent of the affected parties

b. Restatement 131: A lawyer may not represent both an organization and a director, officer, employee, shareholder, owner, partner, member or

other individual or organization associated with the organization if there is a substantial risk that the lawyer’s representation of either would be materially and adversely affected by the lawyer’s duties to the other

3. Duty to protect confidences of employees: a. if lawyer represents only organization, and not employees- no duty to

protect info employee told you

C. Representing Criminal Co-D’s“United opposition to the government”- efficient/ strategically appealing1. Risky for criminal co-D’s represented by one lawyer:

a. Could involve a significant sacrifice of the interests of one client on behalf of another- one may seek to reduce a potential penalty by

offering to give the P inculpatory information about another D 2. Ethical Rules and the 6th Amendment: case law, ethics rules, scholarly

commentary ALL discourage joint representation of criminal co-D’s because of the potential for conflicts

3. Restatement: lawyer may NOT represent co-D’s UNLESS clients give informed consent and it is reasonable likely that the lawyer will be able to

provide adequate representation to the clients 4. In federal cases: judge holds hearing to advise both D’s of their right to

separate counsel 5. Test Conflict of Interest Rule 1.7

a. D may state he was denied effective assistance of counsel 1. charge will be overturned if ineffective assistance of counsel if

the conflict significantly affected the representation

6. D may waive a conflict created by lawyers representation of another co-D- but forecloses from challenging a subsequent conviction on the basis of the

conflict

D. Representing family members1. Ability to represent husband and wife in a divorce proceeding depends on

jurisdiction a. even if no apparent disagreement, a financial disagreement could

emerge2. Representing family members in estate planning: Florida Bar Opinion- Lawyer prepares wills for husband and wife. Husband

amends will, through another firm, to include his mistress. Lawyer should withdraw from the joint representation as there is a conflict of

interest. Florida is basically saying you cannot disclose and should withdraw in this circumstance. Other jurisdictions allow the lawyer discretion to decide for themselves

-Duty to Communicate Information

E. Representing insurance companies and insured persons1. If damages are awarded, insurance company will cover the damages up to the

amount of the insurance policy 2. Rule 1.8- cannot collect payment from 3rd party unless there is informed

consent and no interference with lawyer’s independence of professional judgment

3. Fundamental issue- about payment. Lawyer is being paid by one client (insurer) to represent BOTH itself and another client (insured)

a. governed by contract law, insurance law, ethical rules 4. Who is the client?: the insured is the client; BUT the insurance can also be the

client given what the contract says and on state law (it is not automatically the client just because it designates the lawyer)

5. Communications between insurer and counsel for the insured should be privileged- immune from discovery

Rule 1.8:A lawyer shall not accept compensation for representing a client from one other

than the client unless:(1) the client gives informed consent(2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and(3) information relating to representation of a client is protected as

required by Rule 1.6

*****FINISH THIS

F. Representing P’s in class actions1. Rule 1.8(g)2. I.E.'s of potential Conflicts:

a. a greater concern for the interests of the class representatives than for the unnamed members of the class

b. a prior relationship with the named defendants in the class actionc. a greater concern for receiving a fee than for pursuing the class claim d. the settlement of claims by collusion rather than through a fair process

where class members' interests are adequately represented 3. More work to litigate a class action and longer to get results, but a potential for

enormous attorney's feesa. even if lawyer does not charge a fee for the P's there might still be a

conflict of interest1. lawyer's ideological interests or with policies of the organization that pays the salary to the lawyer

4. Lawyer MUST discuss potential risks and benefits with individual clients- of even if the matter is appropriate for a class action

5. Application of Rule 1.7 and 1.9 in a class action:a. each litigant MUST NOT have an advocate who's loyalty is undivided

to him/her- BUT there is a balance between:1.the ideal that each client should have an unconflicted advocate

vs. 2. the goal of allowing citizens access to the courts to get remedies

for harm b. traditional principles of 1.7 and 1.9 do NOT fit in well with class

actions1. often takes on cases that could not happen individually due to

conflicts of interests- needing consent from all parties 2. not PRACTICAL to sit down with each class action client and

have them consent or inform them of said conflicts c. Rule 1.7 Comment 25- conventional conflicts analysis vs. class actions"When a lawyer represents or seeks to represent a class of P's or D's in a

class-action lawsuit, unnamed members of the class are ordinarily not considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of 1.7. Thus, the lawyer does not typically need to get the consent of such a person before representing a client suing the person in an unrelated matter. Similarly, a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter."

6. Conflicts often emerge during settlement-one or more class representatives will object to a settlement and become adverse parties to the remaining class

representatives and the rest of the class (usually, there would be a Rule 1.9 problem- former clients) i.e.- a member of a class may become disillusioned with a settlement

desired by other class members and may formally object to judicial approval of the settlement - attorney who advocated for said class

might later change position and advocate against said settlement

a. courts allow great leverage when this happens given that said attorneys spent months or years creating their case in chief or creating

fruitful settlement negotiations- would diminish the efficacy of class action as a method of DISPUTE RESOLUTION

G. Representing parties to aggregate settlements of individual case1. Rule 1.8(g)/ Related to Class Actions - in which many related individual cases

are settled simultaneously a. Mass tort claim

2. Types of claims included under "aggregate settlement" umbrella: "large-scale multiparty litigation generally settles in clusters rather than one claim at a

time3. Rule 1.8 Comment 13- Consent requirements here: "Differences in willingness to make or accept an offer of settlement are among the risks of common representation of multiple clients by a single lawyer. Under Rule 1.7, this is one of the risks that should be discussed before undertaking the

representation, as part of the process of obtaining the clients' informed consent. In addition, Rule 1.2(a) protects each client's right to have the final say in deciding whether to enter a guilty or nolo contendere plea in a criminal case...Before any settlement offer or plea bargain is made or accepted on behalf of multiple clients, the lawyer must inform each of them about all the material terms of the settlement, including what the other clients will receive or pay if the settlement or plea offer is accepted. Lawyer's representing a class of P's or D's, or those proceeding derivatively, may not have a full client-lawyer relationship with each member of the class; nevertheless, such lawyers must comply with applicable rules regulating notification of class members and other procedural requirements designed to ensure adequate protection of the entire class."

3. Louisiana- attorney must communicate with each client

Rule 1.7, 1.10, 1.13, 1.8(f) 1.8(g) Client-Lawyer RelationshipRule 1.7 Conflict Of Interest: Current Clients(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:(1) the representation of one client will be directly adverse to another client; or(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;(2) the representation is not prohibited by law;(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

Client-Lawyer RelationshipRule 1.10 Imputation Of Conflicts Of Interest: General Rule(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(1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or(2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, and(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and(iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures.(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

Client-Lawyer RelationshipRule 1.8 Conflict Of Interest: Current Clients: Specific Rules(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:(1) the client gives informed consent;(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and(3) information relating to representation of a client is protected as required by Rule 1.6.(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing

signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

VIII. Conflicts Involving Former Client- Successive AND Current Conflicts A. Nature of Conflicts between present and former clients

1. Conflicts between former clients and current clients might:a. betray confidences of former client to current clientb. make adverse use of confidences that the lawyer learned during the

representation of the former client c. attack or challenge work that the lawyer did on behalf of the former

client; ord. engage in work that is in some other way disloyal to the former client or at least causes former client to feel betrayed

2. CONFIDENTIALITY & LOYALTY major concepts to watch fora. Duty of Loyalty --> MORE loyalty to CURRENT client

1. VS. when they're BOTH current clients there is an EQUAL duty of loyalty to your current clients

b. Lawyer might be less zealous with current client because strong sense of loyalty with former client

c. Lawyer might compromise interests of FORMER client (in favor of current client) because current client is currently paying fees- vs.-

lawyer might compromise interests of CURRENT client (in favor of former client) because previous financial relationship, expectation of future work, continuing emotional ties = either might make the attorney a less vigorous advocate

3. Rule 1.9 governs former clients, but Rule 1.7 governs current clients- BOTH MUST BE ANALYZED a. If the present and former client's interests conflict- refer to Rule 1.7 for

guidance on protecting the interests of the present client AND to Rule 1.9 for guidance on protecting the former client's interests

b. Rule 1.7(a)(2) Current Conflict of interest= situation in which "there is a signifiant risk that the representation of one or more clients will

be materially limited by a lawyer's responsibilities to another client, a former client, a third person or by a personal interest of the lawyer"

4. Rules LESS restrictive to successive conflicts than to concurrent conflicts a. lawyers duty to former clients mainly limited to Confidentiality,

avoiding side-switching, and refraining from attacking the work the lawyer did for the former client

B. Duties of former clients1. Duty lawyer owes a former client:

a. Confidences: lawyer must decline any new matter that presents a substantial risk that the lawyer would make material adverse use of

the former client's confidences 1. UNLESS THE FORMER CLIENT CONSENTS

Rule 1.9 Duties 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 substantially related matter in which the person's interests are materially adverse to the interests of the former client UNLESS the former client gives informed consent, confirmed in writing (Comment 3 Substantially related matter= Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter)

(b) A lawyer shall NOT knowingly represent a person in the same or substantially related matter in which a firm with which the lawyer formally was associated

had previously represented a client (ARISES WHEN A LAWYER MOVES FROM ONE FIRM TO ANOTHER)

(1)whose interests are materially adverse to that person; AND(2) about whom the lawyer had acquired information protected by Rules 1.6

and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing

(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: (Bars use/

revelation of confidences of former clients or clients of a former firm to the SAME extent as such use/ revelation is barred for PRESENT clients)

(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 the client, or

when the information has become generally known; OR(2) reveal information relating to the representation except as these Rules would

permit or require with respect to a client

2. Difference between consent in former clients and present clients: a. Former clients- even if adversity is present- waivable through consentb. Present clients- if adversity is present- NOT waivable through consent

C. Distinguishing present and former clients1. Concurrent Conflict = 2 present clients OR 1 present client and 1 prospective

client2. Successive Conflict = 1 present or 1 prospective and 1 former client 3. Is client present or current client?:

a. Restatement- lawyer's representation ends because the lawyer has completed the contemplated services

b. IT'S THE CLIENTS REASONABLE UNDERSTANDING OF THE SCOPE OF REPRESENTATION CONTROLS

4. Long-term clients that you haven't done work for in a year or more?:

a. if a lawyer has not formally concluded representation of the client, a court might still find that the client is a present one and that a

conflict with another client should be evaluated as a concurrent conflict 5. Lawyer cannot drop one client to accept another -therefore avoiding conflicts-

but if one of the following conditions are satisfied the lawyer may use the more lenient successive conflict (Former clients) standards to evaluate the conflict:

a. lawyer withdraws at the natural end point in the representationb. client fires the lawyer for reasons other than the impending conflictc. client triggers a conflict for the lawyer by some action that was

unforeseeable to the lawyer. This type of conflict is sometimes referred to as one thrust upon a lawyer by the client - lawyer's withdrawal makes this client a former client

d. lawyer withdraws for some other good reason

D. Evaluating successive clients

1. "The Same Matter": (when is one matter the same matter as a pervious one?)

a. Matter= anything that is the subject of representation: litigation, transaction, subject on which the requests advice

b. Single matter= single transaction or lawsuit 1. OR if the new representation involves a document that the

lawyer was involved in producing (subject matter is the same)

i.e.- a lawyer drafts a will for a client who wishes to disinherit his eldest son. After the client dies, the eldest son asks the lawyer to

represent him to challenge the validity of this will. The lawyer may not take on this work

2. "Substantial Relationship": focus on the FACTS of a problem and on what a lawyer might have learned during the first matter that could be used adversely to

the former client in the second a. When is there a substantial relationship: Rule 1.9 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 materially advance the client's position in the subsequent matter"

b. Existence of substantial relationship depend on common facts OR issues?:1. whether FACTUAL information would normally have been

learned during the first matter that could be used adversely to the first client during the second representation

2. look at OVERLAPPING FACTS

c. Questions to ask (are two matters substantially related?):1. Do the matters involve the same transaction or legal dispute?

A. If YES, they ARE substantially related2. Is there a substantial risk that a lawyer representing a client in a

matter like the one handled for the former client would normally have learned confidential information in the first matter that could be used to materially advance the new client’s position in the second matter?

A. Ask: what types of information a lawyer handled a matter like the first one would normally acquire? /

Would that information (if revealed or used on behalf of the second client) provide the second client with a material advantage?

B. If both these questioned are answered YES, the two matters ARE substantially related

C. If the matters are substantially related, the lawyer may not represent the new client unless the former client

gives informed consent

d. Lawyer did not have to ACTUALLY learn confidential information in the first representation, but on what kinds of confidences a

lawyer ordinarily would have learned

e. Reliance on ALL facts, NOT just facts on its face.

f. Obtaining only general knowledge from first representation:“In the case of an organizational client, general knowledge of the client’s

policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific

facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such representation”

g. General knowledge or public information may NOT create a conflict of interest

3.”Material Adversity”: Rule 1.9 uses “material adversity” while Rule 1.7 uses “direct adversity). While they may seem the same, it is likely that they are

now- however, “material adversity is LESS restrictive than “direct adversity”- because a more rigorous standard would be used to protect current clients

a. Intention of the rule is to require consent IF the use of the former client’s confidences might harm the former client’s interests

b. One court held that adversity is a product of the likelihood of the risk and the seriousness of its consequences

c. Restatement material adversity is limited to potential harm to the type of interests that the lawyer sought to advance on behalf of the former

clientd. Anything that might harm the former client

E. Addressing former client conflict in practice 1. If lawyer discovers a conflict between a former client and a present client, the

lawyer may:a. conclude that the two matters are unrelated and simply proceed with the

new matter without seeking consent b. conclude that there is a substantial relationship between the matters and

material adversity and tell the new client that the firm cannot accept the matter

c. disclose the problem to the former client and ask for consent 1. Former client is unlikely to consent. He/ She would have little

reason to give consent2. might claim that it was a current rather than a former client3. might later claim that the request for a waiver constitutes an

admission that a waiver was needed 2. If a lawyer decides there is no substantial relationship and goes forward without consent, she may face a motion to disqualify (Must show that he has confidential information and that it will cause an adverse effect, also there must be no other

way that they got the information)

???? What if former client thinks he is a current client, and therefore doesn’t think he needs to consent. Would you have to do an analysis on whether he/she is a former client first (since it is the clients subjective feeling if they are still a client or not)? Then proceed with seeing if there is a problem under 1.9 WITHOUT the consent

F. Conflicts between interests of a present client and a client who was represented

by a lawyer's former firmRule 1.9(b)A lawyer shall not knowingly represent a person in the same or a substantially

related matter in which a firm with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; and(2) about whom the lawyer had acquired information protected by Rules

1.6 and 1.9(c) that is material to the matter;Unless the former client gives informed consent, confirmed in writing

1. Analysis just about the same as 1.9(a) problems- is the matter the same or substantially related? Is there material adversity? If so, you need

informed consent b. BIG DIFFERENCE (b)(2) consent is not required unless “ the

lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter.:

c. 1.9(a)- COULD have acquired confidential information vs. 1.9(b) DID ACQUIRED confidential information

2. Analyzing former firm conflict:a. To know if a lawyer has acquired material confidences, one must

analyze the specific facts relating to the lawyer’s access to or information about the relevant matter

b. The firm whose disqualification is sought should have the burden to prove that the lawyer who changed firms does not possess

confidential information that is material to the new matter

3. Using or revealing a former client’s confidences: confidences must be protected indefinitely

Rule 1.9(c)A lawyer who has formerly represented a client in a matter or whose present or

former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has been generally known; or(2) reveal information relating to the representation except as these Rules

would permit or require with respect to a client

a. Dysfunctional Family Problem – one company splits into 2 and both want to continue using the same logo exclusively. An injunction is brought. You were the attorney for the company and now one

member wants you to represent them and not the other. Is there a conflict? Yes because it is substantially related and does materially adverse the other client’s interests.

G. Imputation of former client conflicts to affiliated lawyers: Rule 1.10 1. GENERAL RULE: If one lawyer in a firm has a conflict, meaning he/she

can’t represent client, then NO OTHER lawyer in the firm can do so either (while there are few exceptions)

a. one exception allows use of screening procedures to avoid imputation to a firm of conflicts of a lateral lawyer

2. Answers- to what extent are conflicts caused by work done for former clients imputed to other lawyers in the firm

3. Screening is allowed in 6 Model Rule situations:a. where a lawyer has moved from one firm to anther- 1.10(a)(2)b. where one lawyer in a firm has a conflict that is based on a personal

interest- i.e. family, political, financial- that does not present a significant risk of materially impacting the other lawyers’ representation of the client- 1.10(a)(1)

c. where a former non-lawyer employee has become a lawyer- comment 4d. where a former Gov. lawyer entered a law firm- 1.11e. where a lawyer received confidential information from a prospective

client who did not become an actual client- 1.18f. where a lawyer is disqualified from working on a matter because the

lawyer previously worked on the matter as a judge, law clerk, arbitrator, mediator- 1.12

4. Rule 1.10(a)- states the general rule that if one lawyer in a firm is barred by Rule 1.7 or 1.9 from handing a matter, then everyone else in the firm is

barred as well, UNLESS one of the exceptions applies a. Rule 1.10(a)(1)- First exception: a conflict is not imputed if it

involves a personal interest of the lawyer and does not threaten client loyalty or protection of confidences. i.e.- strong political believes

antagonistic to the goals of a client being represented by the firm or a family relationship with a party who is in litigation against a client of the firm

b. Rule 1.10(a)(2)- Second exception: applies ONLY to conflicts that involve the work a lateral lawyer did at a former firm or the work

that other lawyers did at the former firm. In these cases, the firm may proceed without seeking the informed consent of the former client if it complies with the screening and notification conditions listed below

c. Rule 1.10(a)(2)(i)- “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

1. May not receive compensation directly related to the matter

d. Rule 1.10(a)(2)(ii)- notice should include a description of the screened lawyer’s prior representation and be given as soon as practicable

after the need for screening becomes apparent. It also should include a statement by the screened lawyer and the firm that the client’s material confidential information has not been disclosed or used in violation of the Rules

e. Rule 1.10(a)(2)(iii)- cert. will give the former client assurance that the client’s material confidential information has not been disclosed or

used inappropriately, either prior to timely implementation of a screen or thereafter. If compliance cannot be certified, the cert. must describe the failure to comply

f. Rule 1.10(b)- if a lawyer leaves a firm, his former firm should use this rule to evaluate new business that conflicts with the former

lawyer’s work at the firm. Conflict leaves with the lawyer UNLESS:

(1) the matter is the same or substantially related(2) a remaining lawyer knows material confidential information

g. Rule 1.10(c)- most imputed conflicts may be waived1. same analysis as that for concurrent conflicts Rule 1.(b)

5. What kinds of steps are needed to effectively screen off one lawyer from a matter that he is disqualified from working on?- whether the procedures

adopted are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect

Rules 1.7, 1.9, 1.10 Client-Lawyer RelationshipRule 1.7 Conflict Of Interest: Current Clients(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:(1) the representation of one client will be directly adverse to another client; or(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;(2) the representation is not prohibited by law;

Lawyer moves from firm A to firm B. The lawyer does not bring any clients with himTo analyze conflicts the lawyer carries with him into firm B based on confidences learned at firm A: 1.9(b)To analyze conflicts that other lawyers at firm B may have because of the lawyer’s work at firm A: 1.10(a)To analyze conflicts remaining at firm A as a result of work the lawyer did while there: 1.10(b)

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and(4) each affected client gives informed consent, confirmed in writing.

Client-Lawyer RelationshipRule 1.9 Duties 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.(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client(1) whose interests are materially adverse to that person; and(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;unless the former client gives informed consent, confirmed in writing.(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Client-Lawyer RelationshipRule 1.10 Imputation Of Conflicts Of Interest: General Rule(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(1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or(2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, and(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and(iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures.

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.IX. Conflicts between Lawyers and Clients

A. Legal fees1. Lawyer-Client Fee Contract: when client hires the lawyer, enter into written

agreement or conversation with perfunctory letter stating she will charge for each hour of her time- hiring an attorney brings in contract law (if client fails to pay, attorney can bring suit for breach of contract)

a. Types of fee agreements:1. 70% of legal services billed by time spent 2. In personal injury cases- attorney charges contingent fees

(lawyer gets a percentage of damages paid to the client) 3. Clients rarely question retainer fees or bargain about size

b. Reasonable Fees: attorneys have wide discretion in deciding how much to charge

1. Much of the calculus of what is reasonable depends on the norms in a local legal community and in a particular area of practice

2. Must disclose information as to the scope of the representation- the general nature of the services provided. Disclosure must

occur within a reasonable time after commencing the representation. Lawyer does not necessarily need to provide an estimation of the services provided

Rule 1.5(a) requires fees to be reasonable (1) Time and labor required(2) Custom(3) Likelihood that acceptances will preclude other acceptances(4) Amount of money involved(5) Time limitations(6) Nature and relationship with client(7) Experience of lawyer(8) Whether the fee is fixed or contingent

c. . Brobeck, Phleger & Harrison v. Telex Corp. - client was looking for best antitrust attorney. Firm arranges contingency fee agreement with

maximum and minimum fees becoming due. An agreement was drafted where hypothetical situations were noted. The company

was given the hypos and provided no response, thus acquiescing to the lawyer’s interpretation. Agreement was not excessive because company had won the largest judgment in history, which was reversed, and the potential for profit was present.

d. In the Matter of Fordham- Attorney discipline action was brought, alleging that attorney charged excessive fee for defending client in

prosecution for operating motor vehicle while under the influence of intoxicating liquor (OUI) and other related charges. The Board of Bar Overseers accepted recommendation of hearing committee and dismissed petition for discipline. Bar counsel appealed, and attorney moved for dismissal of appeal. Lynch, J., denied attorney's motion and reported the case to the full court. The Supreme Judicial Court, Suffolk County, O'Connor, J., held that: (1) charging of excessive fee warranted public censure, and (2) discipline did not violate due process. Public censure ordered.

1. Safe harbor rule states that as long as the fee is in reasonable proportion to hours and in good faith, it is permissible.

This, however, was clearly excessive. The test is whether the fee charged is clearly excessive, not whether the fee is accepted

as valid or acquiesced in by the client

Rules 1.4, 1.5, 7.1, 8.4 Client-Lawyer RelationshipRule 1.4 Communication(a) A lawyer shall:(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;(3) keep the client reasonably informed about the status of the matter;(4) promptly comply with reasonable requests for information; and(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.(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Client-Lawyer RelationshipRule 1.5 Fees(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;(3) the fee customarily charged in the locality for similar legal services;(4) the amount involved and the results obtained;(5) the time limitations imposed by the client or by the circumstances;(6) the nature and length of the professional relationship with the client;(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and(8) whether the fee is fixed or contingent.(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.(d) A lawyer shall not enter into an arrangement for, charge, or collect:(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or(2) a contingent fee for representing a defendant in a criminal case.(e) A division of a fee between lawyers who are not in the same firm may be made only if:(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and(3) the total fee is reasonable.

Information About Legal ServicesRule 7.1 Communications Concerning A Lawyer's ServicesA lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Maintaining The Integrity Of The ProfessionRule 8.4 MisconductIt is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;(d) engage in conduct that is prejudicial to the administration of justice;(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.