Introduction to Legal Profession I. Why Its Important: A Preface for Students A. Introduction 1. Applies to all legal fields. 2.

Conflicts of interest and duty of confidentiality (focal points in this course). B. Conflicts of Interest: 1. Representing someone adverse to former/existing client. 2. When personal interest conflicts with clients interest. 3. Very important to monitor conflicts of interest. C. Duty of confidentiality 1. Old and sacred duty. 2. If your client gives you information, when should you disclose it? What else could you do? II. Where do Ethics Rules Come From? A. Sources 1. Constitution: 1 (advertising, solicitation, etc), 5, 6(effective counsel in crim cases). 2. State Bar Associations 3. Statutes 4. Courts v. Legislators a. Negative inherent power courts overriding laws by leg. b. Power to regulate bar belongs to courts. c. Some courts are more tolerant of legal work. B. Self Regulated 1. We make and enforce our own rules. 2. Why do we get to make our own rules? a. Were a public trust; a public service organization. b. So we dont want to be regulated by the govt because it might harm us looking out for the public. 3. We make our own ethics rules. C. ABA Model Rules of Professional Conduct 1. Previously was the code. 2. Model Code established in 1968. 3. The rules mean nothing until its adopted by the courts (s cts. of the states). 4. The Code became obsolete and the Model Rules were established in 1983. 5. GA hasnt adopted the current version. Part 1: The Attorney-Client Relationship Defining the Attorney-Client Relationship I. Is There a Client Here? A. Attorney Client Relationships 1. Sometimes ambiguous. 2. Most ACR are formed by agreement. a. When a person manifests to a lawyer the persons intent that the lawyer provide legal services for the person; b. And the lawyer fails to manifest lack of consent to do so, and the lawyer knows/reasonably should know that the person reasonably relies on the lawyer to provide services. 3. Money doesnt have to exchange hands, but its good evidence of rel. 4. Can come from website or phone advice. 5. Rel. continues until client knows its over.

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6. Duties are based in part on agency law. 7. Doesnt have to be in writing, and doesnt have to be just two people. 8. ACR cant be created with a fugitive D because he cant consent. Other ex. Pg. 27. II. What do Lawyers Owe Clients? A. Competence 1. MR 1.1: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. B. Confidentiality & A-C Privilege (1.1, 1.6., 1.9(c), 1.8(b)) 1. The rules define the category of confidential client information gained from the client or from others in the course of representing the client, which, absent exceptions, a lawyer may never reveal unless doing so benefits the client. 2. Alton-Logan discussion a. Public opinion believes the lawyers should go to jail. b. DR 4-101: Preservation of Confidences and Secrets of a Client c. 1st question: is it confidential? a. Here, yes. Gained in professional relationship + disclosure would be detrimental. d. DR 4-101(b): Cant knowingly reveal, or use a confidence to his disadvantage or to the attorneys/someone elses advantage. e. DR 4-101(c): Exceptions: i. Consent. ii.When required by law or other rules. iii. Intention to commit a crime. iv. To collect fees or to protect themselves. f. Under that rule, they couldnt tell. g. Even if there was a threat of death, they couldnt tell under this rule. h. If they were under rule 1.6 of the Model Rules: i. As long as it relates to the rep of client then its protected. ii.Under exception (b)(1) could argue prison is serious bodily harm. iii. If he had been sentenced to death, you could still argue the death wasnt imminent. iv. What would happen to their client? Would evidence be allowed in? i. Life in prison dont have to disclose. i. Proposals for rules that allow disclosure but then clients wont tell you things. ii. Prosecution was corrupt anyway. 2. My Client is HIV Positive a. Client isnt telling his girlfriend (former client) that he has HIV. b. Its confidential because it was gathered in regards to his bail related to repping him. c. 1.6(b)(4) ok to talk to other lawyers for advice about the rules. d. 1.6(b)(1) argue this applies because HIV can cause substantial bodily harm. e. 1.6(b)(2) to prevent a crime (not telling about HIV) that financially injures her (treatment). But hard to say the lawyer is being used to further the crime. f. Girlfriend is paying for him, but she is technically not a client even though she is paying. 1.8(f): lwyr shall not accept compensation for reping a client from one other than the client unless the client gives informed consent; there is no interference with the lawyers independence of professional judgment or with the client-lawyer relationship; and information relating to representation of a client is protected as required by 1.6 no duty to her.

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3.

4.

5.

6.

7.

2.1: Advisor. Lwyr shall exercise independent professional judgment and render candid advice. Lwyr may refer to law, moral, economic, social and political factors that may be relevant to the clients situation. Sometimes a fine line. h. Withdraw. Sometimes hard to do. i. Last option and sometimes the only possibility. Withdrawal might send single to Anna. ii. 1.16: declining or terminating representation: b) A lwyr may withdraw from representing a client if: o 4) Client insists upon taking action that the lwyr considers repugnant or with which the lwyr has a fundamental disagreement (could apply here). Alls Not Well a. Lwyr hired in connection with closing of a home. Finds out that the inspection sent to the buyers was false and there was substantial damage to the home. Had no knowledge. b. Its confidential even though it didnt come from client. c. Talk to client to see if it was on purpose (communication is important). d. Assume the Winklers are evil. Get them to come forward by telling them all the trouble they could get into. e. If they dont consent: i. 1.6(b)(3) used the lwyrs services to perpetrate a crime or fraud ii.May disclose, but not required. If he doesnt, could be responsible for aiding and abetting fraud. f. Be careful when disclosing. Still owe a duty of loyalty to client. Only what is reasonably necessary. GA Rule 1.6 a. (i) may apply has to be criminal b. 1.6(3) must make good faith effort to convince client to come forward. c. The lwyr must withdraw (comment 13) its in other rules like a noisy withdrawal. Perez v. Kirk & Carrigan a. Coke driver got in wreck. Cokes lawyers questioned him and told him they represented him too and what they talked about was confidential. b. They didnt rep him and they gave his statement to the DA, under threat of subpoena. c. Agreement can be implied d. Their conversation was enough to form an ACR. They breached their fiduciary duty. e. Take away: ACP and duty of conf. protect info from a potential client, even if no retention ensues. Privileged & Ethically Protected Info: the Difference? a. Rules 1.6, 1.8(b), 1.9 (c) = confidential information gained from client or others in course of repping a client, which a lawyer cant reveal unless it benefits the client (absent exception). Ethics rule. b. Law of evidence creates a privilege only for communication between lawyer and client. Evidence rule. a. They can refuse to give the info. b. If a stranger is present then its not privileged. c. A subpoena can reach information that is confidential, but NOT privileged. Policies behind privilege and confidentiality rules: a. Two purposes: empirical and normative.

g.

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b. Empirical: trust & give more information. This argument doesnt apply to third parties. c. Normative: respect confidentiality because its right to do so. Respects autonomy. d. States vary on their rules about confidentiality. 8. Time to Kill Discussion a. Courts narrowly construe privilege and the definition varies from state to state. b. Observations that anyone can see arent privileged: like a tattoo. c. Obviously here, it is communicated. d. Privileged persons: here, a prospective client privileged. e. It was said in confidence here (eavesdropping doesnt count btw). f. Obtaining legal assistance: issue over what qualifies as legal assistance. g. If prosecution wanted to know if Carl Lee visited: i. Not protected, more like an observation. ii. Exception: last-link exception. Last link of incriminating evidence. h. Did Jake seem nervous/sweaty, etc? Not protected, demeanor isnt really considered in confidence unless it is so wrapped up in the communication. C. Exceptions to Privilege or Ethical Duty 1. Circumstances may require lawyers to reveal info clients may want to protect. 2. Self-defense & legal claims: a. Rule 1.6(b)(5) allow to disclose for self-defense of the attorney. Doesnt have to wait for an action to start. b. Meyerhofer v. Empire Fire & Marine. Goldberg (attny) quit after issue with client, gave the SEC the info. Later named a D, so he gave the Ps lawyers the same info. Ct said it was proper. i. He was a victim, not instigator. c. In re Friend allowed to give evidence clearing his name to the grand jury. d. Dont have to wait for an action to start before presenting defense. e. Rule of reasonable necessity: must have good reason to believe that revelation of the info is necessary for self-protection. 3. Collection of fees: rule 1.6(b)(5). 4. To comply with other laws. 5. Crime-Fraud exception a. Communications arent privileged when the client has consulted the lwyr in order to further a crime or fraud regardless of whether the crime/fraud is accomplished and even though the lwyr is unaware of the clients purpose and does nothing to advance it. b. Applies even with all 4 elements of ACP are met. Doesnt apply to 5th amendment right against self-incrimination. c. Counsel sought must be closely related to the actual crime. d. Purcell i. Ct ruled that telling lwyr he was going to burn down the building was privileged. ii. Crime-fraud exception didnt apply because the advice sought didnt relate to the actual crime. iii. So the exception didnt apply, but so then why was it privileged in the 1st place? iv. Only reason it could be privileged for policy reasons is fot that the lwyr could try to do something to stop the wrongful activity. 1.6(b) permitted him to disclose. e. Hypo:

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i. Tells Carl Lee he definitely wont help. Someone else kills them, but he gets charged. ii. 82 Comment c dont want to penalize a client for seeking attorney help and complying with the law but there is a proof problem. iii. The Prosecutor needs to prove Carl Lee didnt commit the crime for crime fraud exception not to apply prosecutor has to show a reasonable basis to get to the case before. iv. Test: pg. 62 for court to pierce the privilege and allow the testimony. 6. Waiver a. Can be voluntary by C or involuntary by A or C (I told my lwyr) b. Told his wife he thought Carl Lee was going to kill them. He didnt waive it because was Carl Lees and only he can waive it. Attorneys cant wait confidentiality. c. Can be waived by clients. d. You can accidently wave it by faxing to O.C but an unauthorized disclosure. e. If disclosure was authorized and was used for some advantage partial waiver. Youd waive the privilege for anything that relates to that subject matter. f. In re Bulow: Wrote a book and it was partial waiver but it wasnt to gain some sort of an advantage so the court didnt say it was a waiver. g. Waiver can be explicit or implicit. h. Inferred when the client puts the info in issue in litigation. i. Clients waive ACP by revelation of all or part of confidential communication. Cant pick and choose what to use for fairness purposes. j. Subject matter waiver if you mention one thing by accident, you may have waived your privilege in regards to anything about SM. i. Agents of clients may discuss attorneys advice and its still protected. j. Debate over DOJ Requests: whether or not the DOJ may condition favorable treatment (like a promise not to indict) on the companys agreement to waive ACP and WP protection. i. Bar has been against the idea because it destroyed lwyrs ability to effectively represent the corp. ii. Voluntary waiver of privilege/ work product doctrine would go to deeming you cooperate and could affect your plea bargain, etc. iii. Compelled voluntary waiver upset the corp lwyrs so then the client will be less candid with you youd be less thorough (ques against idea of ACP). iv. Concern that lwyrs wouldnt work hard because they wouldnt want a paper trial. v. If employee knows DOJ can get to certain into they wont disclose anything that could possible get themselves in trouble. vi. Employees think everything will be turned over to DOJ so internal investigation will be truth less. vii. LB doesnt like these arguments because he things lwyrs have a duty of competence (threat of malpractice they will still do a good job and will represent the entity and indl employees who have done wrong probably wont talk anyway wont change how they communicate anyway). viii. Now, no longer permitted to take into account a corps failure to waive. Corps want more though because they think there is a unspoken pressure to waive. ix. Most significant issue: effect of waiving to the DOJ: Because once the company waives to the DOJ then theyve waived the privilege to the whole world and it leads to shareholders who can

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come after you with a derivative suit. Once you waive, its waived to everyone. k. 8th cir is the only cir thats approved selective waiver can only waive to DOJ/SEC and not to anyone else. Corp- didnt want selective waiver because theyd have to turn it over to the govt. l. Limited waiver: (selective waiver & partial waiver) i. Selective: Discrete group of people/entitles. ii. Partial: Disclose some info thats privilege but not all usually results to subject matter waiver. m. Did Jake violate his duty of confidentiality by discussing with his wife? i. The exchange was definitely confidential. ii. Was a violtion even to tell the spouse. iii. There is a lot covered by confidentiality that isnt covered by privilege. 9. Future crimes or frauds (1.6(b)(2)). 10. Noisy Withdrawal (1.2) a. Lawyer retracts things said earlier. b. Dont disclose why. 11. Identity and Fees a. Client ID & fees arent privileged. b. Exceptions: a. Legal advice protects it when likely to implicate client. b. Last link in existing evidence. c. Conf comm if it would disclose info. 12. Public policy a. Sometimes A-C-P is trumped by public policy. 13. Need A-C-R to have privilege. D. Entity Clients and the A-C Privilege 1. Weve been talking about 1-on-1 with an individual. 2. At common law prohibition against parties testament lawyer couldnt be forced to testify about communications with the party. 3. Now ours belongs to the client, and ours has constitutional underpinnings (5th & 6th). 4. Maintained for a long time that corporations shouldnt have a right to the privilege. 5. We do have it now, but difficulty in the proper scope. 6. UpJohn Co. v. U.S. Federal Law a. Addresses ACP with corporations. Established the federal standard. b. Thinks it should apply to everyone. c. An uncertain privilege is little better than no privilege at all. d. Independent accountants audit of pharm company foreign subsididiaries paying bribes. e. Acct take info to the GC consults outside counsel/ chairman of the Board. f. Internal investigation: i. Questionnaires to all managers ii. Chairman of the Board letter fill out the forms and return them to counsel emphasized the confidential nature of investigation. iii. Probably statement about non-tolerance of this behavior. iv. GC/outside counsel conducted interviews of managers and employees that might have info. v. IRS wants copies of the questionnaires. Upjohn argues they are WP and are protected by ACP. Ct agreed.

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7.

8. 9.

10.

g. Appellate ct used a control group test to determine whose information is privileged. Only applies to officers who play a substantial role in deciding/directing a legal response. (Test 1). i. Can get good info from other people not in the control group. ii. Sometimes people outside that group are the ones that give advice. iii. Unpredictable because hard to determine who the control group is in every situation. h. Here, dont really give a test. Says its case by case. i. If Upjohn governs, do what lose lwyrs did. j. Key to this test look at the comm: the nature of it, the purpose, and the process that it used to get the information. k. Concern it will create too much privilege. l. Lot of states follow this. Samaritan Foundation v. Goodfarb a. Facts: i. Kid died. Nurses & scrub tech were interview after and were told they were repped by the legal department. ii. 4 years later they couldnt remember the facts of the deposition. Ps tried to get the early interviews. iii. Samaritan said it was ACP. b. Always privileged: comments made in confidence to counsel in which the communicating employee is directly seeking legal advice. c. Issue: ACP to factual comm made in response to an overture initiated by someone else. More problematic because it can include witnesses. End up with privilege broader than individual privilege. d. Always look at the relationship between communicator and the incident giving rise to the legal matter, the nature of comm, and its context. e. Test here (3rd): where someone other than the employee initiates the communication, a factual comm by a corporate employee to corporate counsel is priv if it concerns the employees own conduct within the scope of his employment and is made to assist the lawyer in assessing/ responding to legal consequences of that conduct for the corp. client. i. Pretty narrow. But could still be protected under work-product maybe. Wont keep lwyrs from doing good investigations because they still need they information. f. Here, not priv. Restatement Position (4th test): 73. very broad. Arizona Statute (5th test): Privileged if either: a. For the purpose of providing legal advice to the entity or employer or to the employee, agent or member b. For the purpose of obtaining information in order to provide legal advice to the entity or employer or to the employee, agent or member. Five different approaches: control group test, Upjohn, Samaritan, Statute, & RST. a. RST is broadest because it allows for things that happened before. b. Reasons for narrower: too much protection for a corporation. Disadvantages the other party. c. LB likes Goodfarb. d. Most are like Upjohn. e. Under control, Upjohn, and RST approaches, companies are encouraged to place investigators under authority of counsel to increase chance of claiming privilege successfully against investigators.

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11. Warnings Hypo: a. You rep the co. & you tell an employee you in a sense, rep them & what they say is confidential. b. Employee might think the lwyr is his lwyr. c. Bad because it creates an ACP with the employee which might trump the ACP with the corporation so that you cant get that info, etc. Could create a conflict of interest (COI). d. Dont want to warn too much though, b/c then they wont talk. But better to err on the side of too much warning. e. Rule 1.13(f) could be too late to clarify. E. Agency/Fiduciary Duties 1. Acting for the client means that the lawyers conduct will be attributable to the client. a. They can be repercussions for a lwyr not doing what he should have done. 2. Who makes the choices? a. Generally, lwyrs are in control of the means. 3. Taylor v. Illinois a. Lwyr didnt reveal the identity of a prospective witness, so client couldnt call the witness at trial. Client claimed a violation under 6th A. b. Client must accept the consequences of the lwyrs decision at trial. c. Here, he cant disavow his attorneys actions. This was a tactical decision. d. Dissent (Brennan): different between misconduct and tactical errors, this was misconduct. 4. S.E.C. v. McNulty a. Client appeals the cts imputing his lwyrs neglect to him. b. Was the failure to answer the complaint more than negligence & can that be attributed to the client? c. Willfulness: conduct was egregious and not satisfactorily explained. d. Here, it was egregious. e. Client made no effort showing he should be relieved. He was sophisticated. Client has to be responsible for his freeing selected agent. i. He was sued but didnt talk to his attorney for a year. 5. Binding the client: a. Clients choice whether or not to settle. b. If lwyr settles without actual or implied authority, might have apparent authority. 6. Vicarious admissions: a. Admissions of lwyr may be used in evidence, but wont bind the client. Can disown them. b. Judicial admissions (bind clients) statements the lwyr makes when the case is on trial in open court. 7. Confidentiality duties in agency law a. Lwyrs have a parallel duty of confidentiality under agency law. b. Ethics rules are more focused than agency doctrine. 8. Fiduciary a. Must place clients interests above their own. b. Ultimate trust and confidence. c. Duty arises after the formation of the ACR. d. Three reasons why it begins then: i. Client begins depending on lwyrs skills, etc. ii. Attorney may have gained info about client that could lead to unfair advice. iii. Client may be financially dependent on attorney.

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e. Benson v. State Bar i. Borrowed $ from client disbarred. ii. Breached her trust. f. Lwyr became informant and ratted out a former client. He was suspended because he tricked him and broke his trust. g. Excelsior v. Lerner i. Lwyr was on Board and Legal Comm for his apt. ii. He recommended a firm for them, but didnt tell them he was splitting its fee with him. iii. Even if P doesnt lose money, still have to tell. 9. Loyalty and Diligence a. Loyalty: requires lawyers to pursue clients objective without conflicting interests. b. Survives termination of the ACR. Prevents acting adversely in matters substantially related. c. Rule 1.3 diligence. 10. To ensure clients that you wont represent them for certain things: a. R. 1.2 (c) reasonableness limitation b. R. 1.0 (e) informed consent. F. Duty to Inform and Advise 1. Nicholas v. Keller a. Lwyrs didnt tell their workers comp client that he might also have a tort claim against 3rd parties. b. Liability can exist because the lwyr failed to provide advice. c. Workers comp lwyr can limit the retention if: i. Client is informed there may be other options that he wont look into and ii. Talk to other counsel about it iii. Except if the legal problems are reasonably apparent. d. Lwyr knows more than client. Reasonably foresee in personal injury that they will rely on their lwyrs for the remedies. e. We are super fiduciaries upmost duty of care. 2. In a Box a. Rule 1.8(b) using but not disclosing. If it disadvantages client then cant use it. b. Really, can only withdraw, but not noisily. 3. Discussion on Informing a. Some areas require lwyr ask the client. b. Better to over inform. c. A lot of problems can be fixed by just communicating with the client more. d. Rule 1.4 the rest kind of revolve around this rule. e. Communication varies based on the issue and the level of sophistication of the client. G. Summary: 1. ACP Protects: a. Communication b. Between privileged persons c. Made in confidence d. For the purposes of obtaining or providing legal advice/assistance. 2. Doesnt protect: a. Fee arrangements b. Physical characteristics c. Client whereabouts

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d. Client identity (except in tax cases and hit and run cases when the ID is woven into advice anonymity is sought as part of advice). 3. Privilege belongs to the client, but the lwyr can involuntarily waive it by accidentally disclosing because lwyr is agent of client. III. Autonomy of Attorneys and Clients A. The Lawyers Autonomy 1. Ms. Niceperson a. Means based decision to agree to the extension. Comm. 1.3. 3. b. Talk to your client and explain the sitch. If you dont warn, you could ruin your professional relationship, etc. 2. Jones v. Barnes a. A criminal defense attorney isnt required to raise all non-frivolous defenses that the client suggests. b. Making the lwyr do that undermines his ability to do it his way. i. Opposing argument: its the clients life & liberty on the line. c. Its better to argue a few good points. d. Dissent: 6th A gives client control. 3. Plea bargaining clip a. 1.2(d) if client perjures because you made him plea. b. 2.1 says attorney can appeal to emotions and be candid. B. The Clients Autonomy 1. Olfe v. Gordon a. Lwyr mislead client about mortgage then she lost money. b. General rule: lwyr liable for clients losses cause by not following their instructions. c. Held for client. Lwyr held liable for damages caused by his negligent disregard of Olfes instructions. d. A lwyr, as an agent to his client, must act in conformity with his authority and instructions and is responsible to his principal if he violates this duty. 4. Hypo: if he was convicted of murder and he didnt want any mitigating evidence a. Lwyrs are officers of the court and they owe a duty to the system. b. Maybe cant abdicate those duties. c. This is based off a real case lwyr put in the evidence judge said to do what youre told. Lwyrs are gas attendants. 5. Clients with diminished capacity (1.4) a. Same obligations to the client. b. Shouldnt take instructions from 3rd parties. IV. Terminating the Relationship A. Introduction 1. Clients can fire you at will. 2. There are times when youre required to terminate the relationship. 3. Have to get permission to withdraw. 4. Still a fiduciary duty after withdrawal. 5. Once you are finished, you need to ensure the client knows the relationship is over. a. COIs etc. b. Send a disengagement letter. Protecting the Attorney Client Relationship against Invasion I. Communicating with Another Lawyers Clients A. Introduction 1. 4.2 communicating with person represented by counsel.

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2. Were worried lawyers might get damaging confidential info. 3. To preserve sanctity of ACR. 4. This cant be waived by the client. a. To protect the attorney. Its the attorneys right. 5. If the client thinks she can work things out with the OP by talk to that client, thats ok. Comment 4. a. Gray area about whether you can instruct your client on what to say. b. You should tell her what not to do. 6. RST 99: LB thinks its really helpful here. 7. GA rules are squirrelly about this. Comm 8 makes it tricky. Cant request your client talks to the other party. 8. 4.2 Applies to any person repped by counsel, not just OP. B. Niesig v. Team 1 1. P was injured on a corp construction site and wanted his attorney to interview his fellow employees without having counsel present. 2. Argument over who is protected with corporations. 3. TC: lwyr cant contact ANY employee. Blanket rule would undermine informal discovery. 4. Ct rejected the broader rule that protected everyone because it would go against judicial economy. 5. Ct also rejected the control group approach because its too narrow. It would undermine the anti-contact rule. 6. Adopted the test: cant interview corp employees whose acts/omissions in the matter under inquiry are binding to the corp or imputed to the corp for purposes of its liability, or employees implementing the advice of counsel. ALL other employees must be interviewed informally. A lot like the Goodfarb test. a. Pretty much the same as R 4.2. b. Comm 7 modeled after this case. c. Majority of cts use this. d. The GA rule goes a little bit further- or when the statement would be an omission. II. Improper or Accidental Acquisition of Confidential Information A. Introduction 1. Old rule: automatic waiver of protection. a. Strict interpretation of the rule, it has to be kept confidential and if it isnt, then its waived. 2. Over time, courts got more pragmatic. 3. Test began to require negligence: a. Look at safeguards b. Must ask for the document back quickly c. Look at fairness was it 1 out of 2,000 or 2,000 out of 50,000 documents. 4. Rule 502(b) of evidence basically lays out the previous test. 5. Rule 502(a) never SM waiver, unless its intentional, basically. 6. To protect your client: a. Come up with an agreement with the other attorney that documents will be returned and wont be waived. Claw back agreement. b. Something more than an agreement? With non-parties? Wouldnt work because they arent bound by K, unless court signs off on it. 7. More generally (not just litigation) a. Mark it with confidentiality disclaimers, etc. b. Some disclaimers are really elaborate.

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8. Comments 16 & 17 of Rule 1.6 very important. About 3rd part disclosure. 9. No SM waiver of inadvertent disclosure, you only waive the specific documents. B. Rico v. Mitsubishi 1. Looks like a lwyr stole a document at a disposition. Ct assumes he didnt steal the notes. He used them in a depo to benefit his client. 2. The documents expose weakness on the other side. 3. Here, the rule says the lwyr should refrain from examining any more than is essential if theyre privileged and should notify the other guy that you have it. a. Only duty is to notify. 4. Under 4.4(b) dont have to return, just notify & it doesnt have to be privileged. 5. Rule used to be that you were required to exploit. 6. ACR is so sacred; we want to protect their relationship too. Its a respect thing. 7. Here, he didnt tell the other side & then went overboard in exploiting. 8. Comment 4.4(3) he can return if he wants to. Avoid the fight. C. Something you Should Know 1. Its dangerous to take the documents. They might be privileged. 2. If she signed confidential confidentiality agreement with former employee, you can be liable. 3. Might be stolen, etc. 4. You can talk to her, she is a former employee. Maybe smarter to dispose her. D. Metadata 1. Data within data. 2. Does the sender violate confidentiality by sending it? a. The other side has to work to see it. Its not openly visible. 3. You can scrub e-mail. Get rid of the metadata. 4. No consistency across the country at the moment about duties of the recipient. 5. Be careful though, scrubbing could be obstructing justice. Lawyers, Money, and the Ethics of Legal Fees I. Introduction A. Types of Fees 1. Flat fees- set price. 2. Hourly billing have to keep track of everything you do. a. Encourages unethical behavior because with more hours you get more bonuses, etc. 3. Blended rates: flat rate for all attorneys. 4. Proportional fee 5. Taking an investment interest in the clients business, etc. a. Used to be popular. b. Ethical issues. Supposed to have an unbiased interest judgment. c. Needs to be a reasonable fee. d. Rule 1.8(a) cant enter into business with client unless e. You are the agent and without this rule, you could really overreach. 6. Contingent fees: usually a % but can also be a set amount. a. Risk of non-recovery. 7. 1.5(a) key rule with fees. Cant change or collect an unreasonable amount. 8. Lwyrs are required to hold a clients $ in separate accounts, called escrow or IOLTA. II. Unethical Fees A. Matter of Lawrence S. Fordham 1. Lwyr told him that hes never done this type of work before. 2. He won, but charged $50,000.

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3. Charged his client to educate himself. 4. Court said he spent an excessive amount on the case. 5. Billed for time he shouldnt have billed for. 100 hours to be educated is too much. 6. If he paid the $50k without arguing, it would still be unethical. III. The Role Of the Marketplace A. Brobeck v. Telex 1. $ 1 Mil fee. 2. Not excessive. 3. This wasnt so ridiculous to be unconscionable. 4. Unconscionable is a more difficult standard than the unreasonable ethical standard. 5. This lawyer was the Lebron James of S. Ct. cases. B. Discussion 1. Assume in Fordham the lwyr was famous and he said up front he cost $50k. 2. Might be ok, which shows the rule isnt that good. Famous lwyrs can charge more. 3. Disciplinary bodies dont like disputes. Very few cases 2nd guess the fee. 4. No ethical rule requiring fee arrangement in writing. But you should. IV. Contingent Fees A. Introduction 1. Broadens access to justice. 2. Shifting of risk a. Taking a 40% case now & 80% later. 3. They used to be banned. a. Incentives for the lwyrs no settle instead of maximizing their potential recovery. 4. There is supposed to be a risk of loss. a. Taking 50% of a sure thing is wrong. 5. 1.5(c) - Designed to prevent over-reaching. 6. 1.5(d) contingent fees not allowed in domestic disputes or criminal case. a. Dont want lwyrs to encourage divorce, etc. b. Argument for allowing it: not able to get a good lwyr. too paternalistic. c. By & large, not appropriate. d. In criminal cases, lwyrs would have an incentive to fight the case instead of accepting a plea bargain. 7. Many places regulate with statutes. B. Hybrid Contingent Fee Problem 1. If the contingent fee is too low, can she get her hourly rate? 2. Upfront negotiation. 3. Issues: a. Reduce clients ability to control the case. Client might want to settle, but wont because it would be cheaper for them not too. b. Plus, contingent fees supposed to have a risk you wont make $. V. Who Gets the Money A. Sharing Fees 1. 1.10 allows for screening in firms that make lateral moves. a. Not the rule in GA b. If screened cant share fees because of conflict of interest. 2. 7.2(b) cant get money for referrals. a. Exceptions: 7.2(b)(4) reciprocal referrals. Cant be exclusive, client must know. Ill send you my criminal cases if you send me your T&E cases. b. GA hasnt adopted that.

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3. 1.5(e) usually applies to lwyrs who dont go to trial, but the case goes to trial, so they need to bring in a trial lwyr. A division of a fee between lawyers who arent in the same firm may be made only if: a. Can share fees. b. Needs to be in writing. c. Have to meet requirements: total fee is reasonable, client agrees, the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility. 4. Generally, cant share fees with non-lawyers. 5.4 a. They dont have duties to their clients. Arent subject to ethical rules. b. Might affect their fiduciary duties. 5. The rules generally dont limit how profits are divided within a firm. Part 2: Conflicts of Interest Concurrent Conflicts of Interest (COI) I. Introduction A. Duties 1. If a lwyr reps a D & the prosecutors witness is also a client, what duties would be compromised? a. Might hold back on the witness. b. Confidentiality maybe you use info you know about the witness against them. c. Loyalty how can you be loyal to both? 2. When an actual conflict exists at the beginning, then you cant go forward. 3. If at the middle then you must withdraw unless you have informed consent. B. Rules 1. Governed by 1.7(a). 2. Concurrent if rep of 1 client with conflict with another client. Or when the lwyr has current personal interests that pose a loyalty threat. 3. Or, 1.7(a)(2) potential conflicts. II. Client-Lawyer Conflicts A. Violations 1. Most likely disqualification big deal because client has to hire new counsel, harms reputation, etc. 2. Does it unduly punish the client? a. Cts have discretion here. b. If there is disqualification then the case stops. 3. If it unduly prejudices them then court can deny the motion to disqualify. 4. Judges dont like it, so make sure its good. B. My Opponents Firms 1. Client wants to sue MP for infringing on its trade name. MPs lwyr is Pez, a firm that the lwyr represents from time to time for malpractice. Pez is a client of a partner. He is a recurring client. Existing. 2. Under 1.7(a)(1) if there is a conflict? a. Confidentiality? 3. Under 1.7(a)(2)? a. Significant risk that the rep of one or more clients will be materially limited by the lwyrs responsibilities to another client. b. Here, not a conflict because the clients arent directly adverse. Just the clients client thats directly adverse. C. Matter of Neville

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1. Attorney Neville had repped Bly, a sophisticated client. Client dictated transactional contracts to lwyr for real estate transaction (lwyr was involved in the business transaction) but the lwyr didnt offer any changes. 2. In another transaction: a. Chart.

3. Ct says the client doesnt see their relationship with their attorney as transactional. They think the lwyr will continue to act in their best interest. So they apply DR 5-104: lwyr cant enter into a business transaction with a client if they have differing interests therein and if the client expects the lwyr to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure. 4. Ct holds the rule is applicable (broad interpretation). a. The fiduciary duty still applies the client still depends on lwyr, even though not formally in an ACR with the adverse party. B/c might reasonably be said the person would look to the lwyr as a protector. b. So long as the relationship continues. 5. Neville would have to give full disclosure, advantages & disadvantage. 6. 1.8(a) tell client in writing that he should seek other counsel. 7. Its hard to make your client not rely on you. 8. Is Bly kind of person that needs protection? a. Apparently the K was kind of ridiculous. 9. Have to lay everything on the table. D. 1.8 (e) 1. Lwyr cant give $ to client for like living expenses, etc. 2. We dont want people to bring a case just to pay rent. 3. Maybe some lawyers cant afford to pay clients competition. 4. Gives lawyers a weird incentive. 5. Partly paternalistic and wrong. E. Gellman v. Hilal 1. Relatives in a lawsuit. 1.7 Comment 11. Generally, can represent a client where the other lwyr is repping the other gives unless each client gives informed consent. 2. Ds former lwyr was Ps current lwyrs wife. 3. His wife has confidential information. 4. Couples have shared economic interest. 5. Files may be lying around at home, etc. 6. Here, there was a substantial risk, but we shouldnt assume they would breach their ethics. 7. There is an inevitable presumption lwyrs in a firm share info. 8. This wouldve been different if she had still been repping the D. F. The Client Says we Messed Up 1. Client calls lwyr and says the lwyr messed up. Client wants to continue with rep, but says they may sue for malpractice later. 2. Can the firm continue? a. Lwyr might be overly cautious. b. Maybe they look for ways to mitigate damages to themselves. 3. 1.7(a)(2) conflict not really directly adverse here. 4. Can you consent to continue? Waiver? Doesnt seem like it. 5. 1.7(b)(3) this is about cross claims cant get consent there.

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6. Under 1.7(b) can they get a waiver? a. Probably not. 7. Any other options: a. Can ask them not to sue you at the beginning under 1.8(h). b. Why would someone agree to that? c. Only going to happen in the corporate counsel maybe if there are time pressures. 8. Settling now? 1.8(h) a. Maybe a good thing to do here. b. Lets get it over with. 9. Internal investigations: who does it? a. General counsel or should you get outside counsel becase if not you have a conflict between your own findings and your current client who wnts to sue b. Becomes a conflict because the firm and Marginex are both repped by the GC. c. Something unseemly about letting GC do it. G. Karen Horowitzs Dilemma 1. Doesnt allow Jewish lwyr to go to trial with them because the jury is racist. 2. LB things it sounds like exploitation because she worked for 2 years on it. 3. Seems like it sucks, but it makes sense. 4. Maybe conflict is the partner allow her to work, because conflict over the personal interest of the client. III. Client-Client Conflicts A. Introduction 1. Most common conflict is when 1 lwyr represents multiple Ds. B. Cuyler v. Sullivan Criminal Cases 1. In the criminal context the same rule applies, but its complicated by the 6th amendment right to counsel. 2. Facts: a. 2 lwyrs rep same three clients. Shady mob sitch. b. Sullivan went to trial 1st. Neither he nor the lwyrs objected to the multi rep. c. His lwyrs didnt put up any evidence and he was sentenced to life in prison. 3. Sullivan claims there was a COI. 4. Ok to divulge ACP stuff here because its in self-defense. 5. 3rd circuit: multi rep isnt per se finding of conflict. 6. Ct went on to hold that a mere possibility of conflict was enough. 7. If there was an objection the trial court would have to: a. Ask counsel questions, etc. Investigate. b. If they fail to investigate, then its an automatic reversal if they appeal. c. Want to encourage it to be done right the 1st time. Rule protects the system. 8. If no objection, should the TC have a duty to investigate? a. No. b. Because counsel has an ethical obligation, so theyre the ones that should be objecting. Ct has faith in lwyrs. 9. Perhaps if the conflict was obvious to the judge, he would have a duty to inquire without having someone object. 10. If the ct fails to investigate & it is obvious they shouldve: a. No automatic reversal (Mickens v. Taylor) The possibility of conflict is insufficient to impugn a criminal conviction. b. Actual COI that adversely affects rep is reversed. 11. Glasser case: failure to cross-examine, to object, etc. led to conflict having adverse effects. If you know theres an actual conflict, then this applies.

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12. Rule: Raised no objection @ TC, then must show actual COI that adversely affected his lwyrs performance. No need to show prejudice (that results would have been different) 13. Concurrence (Brennan): a. Whenever there is multi rep, then the Judge should let the Ds know the problems. b. If D knowingly entered, knew the risks, etc. then the Cuyler standard is ok. c. Here, there should be a presumption of adverse rep. 14. Concurr/Dissent (Marshall): just need to show that there is a conflict. 15. Here, case remanded. There was an adverse conflict. 16. Quick summary: a. If D objects about a conflict the court has a duty to investigate. If the court doesnt, automatic reversal. b. If D doesnt object, the judge has no affirmative duty to inquire further C. Wheat v. US Criminal Cases 1. When there is a conflict, but the D really wants that lwyr. 2. Can the D waive the right? 3. Lwyr repped multi Ds under one big drug bust. a. Prosecutor wanted to disqualify the Ds lwyr because a former client would be called as a witness. b. Standing dont want it to be reversed later. 4. Conflict was about calling witnesses that were also his clients. Only happens if the plea agreement is rejected. a. Speculative conflict. 5. Ds agreed to waive. 6. District ct said they couldnt waive. 7. Ct grants a lot of deference to DC: a. Up to the DC whether they want to decline a waiver. b. Because might be more about making the system work over the Ds rights. c. Plus, maybe D will agree now, but object later gives him a free pass. d. Paternal view of D looking out for them. 8. Dissent (Marshall) went too far, the conflict was too speculative. a. Stevens agreed. Voluntariness of the waiver. Client had independent counsel here too. 9. Paternalistic case. D. Criminal Cases Summary 1. A defendant has waived the right to conflict free counsel, then on appeals its held that DC abused its discretion. 2. Gonzalez case: TC erroneously concluded that the lwyr had violated the non-contact rule and revoked his admission. a. The remedy should be automatic reversal. 6th A right was violated. E. Will You Represent us Both? Civil Cases 1. Two clients suing employer for discrimination. Fighting over same position. 2. Types of relief here that would avoid conflict: a. Damages instead of getting the job. Maybe an injunction at the co. b. Or declaratory relief. c. If they were both seeking the job, that wouldnt work. 3. If evidence only supports 1 client, then their interests have diverged. 4. 1.7 Comment 29 would have to withdraw from both clients. If lwyr undertakes common representation and it fails because the potentially adverse interests cant be reconciled, the lwyr ordinarily will have to withdraw from rep all the clients. 5. Protect yourself at the beginning:

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a. Put in a consent the risks and you have right to withdraw & limit the scope of representation. b. Agreement under 1.2(c). F. Fiandaca v. Cunningham- Civil Cases 1. Lwyr has concurrent conflict 1st client (lady prisoner suing b/c male prison is better); 2nd client involved in litigation of the site where the female prisoners have suggested being moved, Ps opposed the use of the facility. 2. Adverse clients with adverse interests. 3. TC denied motion for disqualification b/c they didnt want to delay the trial any longer. 4. Appeal: a. Held there was a conflict zealous representation & loyalty, and no reasonable basis for TC to deny it. b. Very serious and irresolvable conflict. c. Cant be a no harm, no foul rule. d. Not a strategic motion to disqualify because no evidence of bad faith. e. If you delay bringing up the conflict then thats evidence its strategic. f. Need true necessity. 5. Proper remedy: a. Didnt want to re-do the whole trial, so only remand in regards to remedy. 6. Should a granting of a motion to disqualify be allowed to be appealed? a. Used to could, but SCOTUS said no. 7. Standing: a. 1st circuit (minority rule): every lwyr has a duty to call the cts attention to another lwyrs violation of conflicts rule. Opens up more room for standing. b. Harsh rule (5th cir): only a client or former client has standing to complain about a conflict. c. Middle Position: nonclients dont ordinarily have standing to assert an opposing lawyers conflict. But a nonclient would have standing ONLY if he or she can demonstrate that the opposing counsels conflict somehow prejudiced her rights. G. Unrelated Matter 1. Garrity v. Fiandora 2. 1.7(a)(1) comm. 6. 3. A lwyr may act adversely on an unrelated matter because there is no confidential information at risk. H. Confidentiality & Privilege Joint Representation 1. If ACR has two clients, the communications are still privileged, unless they become adverse in the their matter. 2. Comment 18 & 30 address this. 3. Eureka Exception if its known to lwyr, but he continues to represent, then client doesnt lose privilege. Applies when common lwyr shouldnt have accepted the representation in the 1st place. Exception to below rule. 4. RST 75: rule that joint clients cant assert privilege in a later dispute between them. 5. Confidentiality hypo: a. Rep couple doing their wills. b. Husbands comes in separate to tell you he has a love child & his wife doesnt know. c. Can you keep it a secret from his wife? i. R 1.4 inform client; loyalty, and confidentiality. d. Comm. 31 conf cant continue, should you disclose? Have to with 4.1, unless ok by 1.6.

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e. Best thing to do is address this at the beginning Comm 31. Tell them what will happen if one tries to keep a secret with the lawyer. I. Common Interest Rule 1. If two clients in similar case hire separate counsel, but still have general interests in common, the different lawyers can have authorization to share some of the clients communications with the other lawyer in order to advance the common goal. Client privilege wont be lost. 2. Usually happens in white collar crime. 3. Repped by other people, but you want to have a joint defense. 4. Still privileged information if shared between people with common interest. 5. You want an agreement that spells it out because you dont want to create an ACR. J. Consent Worldspan v. Sabre Group Holdings 1. Overhead projection: Tax Representation (1992-98) (GA/TN) Worldspan (A&B) ($175,000 over 7 yrs) small amount. Antitrust litigation (1998) (N.D Ga) Worldspan v. Sabre Group (A&B) New client big $ 2. Local counsel is needed so you have someone who has jurisdiction. 3. Worldspan was angry that their lwyr was repping their OP. a. Moved to disqualify. 4. No disputing that there is a conflict. 5. The issue is about whether Worldspan gave informed, perspective intent. 6. There had been a waiver letter about Worldspans consent when they 1st started working with A&B. a. Typically the firm should have the client agree to it. 7. Ct held the language didnt provide A&B with consent. a. Need names and the matter. 8. Basically, now, you cant get consent. 9. Plus, telling your client that your other client is going to sue them is a breach of conf. 10. Big decision. Firms upset. 11. Big firms believe they wont be able to take on minor clients because theyll get disqualified later. 12. If you understand risks, why cant you consent? a. Judge talks about ACR and public, etc. ACR is too important to K away. 13. Different standard for sophisticated clients? a. 1.7(b)(4) comm. 22 sounds like what A&B did. But this rule wasnt around yet. b. Means that there are different standards for sophisticated clients. c. This isnt the rule in GA. 14. If they just dropped Worldspan: a. Theyd become a former client and the test would become substantial relationship. b. Hot potato issue. Cant just drop them. c. Exception: if theyre thrust upon you. i. Client mergers (when companies merge). ii. Operation of law dropped by engagement letter, etc. 15. 2nd half of opinion is about a motion to reconsider the disqualification. a. Have to look @ factors. b. Ct still decided to disqualify. K. Duane Morris

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1. Selected to represent McKesson (huge co.) 2. Chart:

Order to disqualify DM DM has an engagement. Rule GA 1.7 didnt really change anything, but we have a different letter. Rule says youre supposed to put in writing the stuff about downsides, which isnt mentioned here. 7. Letter is very specific to which McKesson subsidiaries they represent. a. Arent repping all of McKesson. 8. Ct granted the injunction because of Worldspan a. So the letter didnt really help. 9. Wont be tested on GA R 1.17 10. The engagement letter: a. Good definition of scope. b. 2nd paragraph guarantees c. Next 7 are about fees. IV. Advocate-Witness Rule A. Introduction 1. Rules for the lwyr as a witness. 3.7 2. Lwyr cant be advocate and witness, unless it relates to an unrelated issue; nature and value; etc. 3. Jury is going to think he is both, it undermines the judicial process. 4. You cant waive it, even if the lwyr is adverse. 5. Individual personal conflict = not imputed. 6. Cant cross a colleague in your firm because its a 1.7 conflict. The entire firm would be disqualified. Successive Conflicts I. Introduction 1. Issue is whether confidential info gained from the former client can be used for the new client or to the disadvantage of the former client. 2. If theyre substantially related. 3. You owe some duties to prospective clients. Often treated like former conflicts. 4. 4 requirements under 1.9: a. Substantially related b. Materially adverse c. Consent of former client to waive. II. Private Practice B. Introduction 1. Duty of loyalty. 2. Principal concern is different with former clients. Focus is duty of confidentiality. 3. Substantial relationship test: a. Key: matters have to be the same or substantially related. 4. Substantially related: if the lwyr could have obtained confidential information in the 1st representation that would have been relevant in the 2nd. 5. Also has to have a materially adverse relationship.

3. 4. 5. 6.

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6. Most people just look to see if it looks bad. C. Analytica, Inc. v. NPD Research 1. Chart.

2. Malec was employee of NPD and NPD wanted to give him stock in the co and instructed him to get a lwyr to represent them both in the transaction. NPD gave lwyr financial information. Later, Malec started a co that competed with NPD and retained the lwyr against NPD. NPD moved to disqualify. 3. Doesnt matter if no confidential info was actually used, just that it could. Irrefutable presumption. 4. It would be impractical to have another rule: proof, the client would have to disclose what was disclosed, etc. 5. Exception: member of law firm changes jobs, & later his firm is retained by an adversary of a client of his former firm. a. We want lwyrs to be able to be mobile and switch firms. 6. Doesnt matter that there wasnt an express ACR between S&F and NPD, there was an implied ACR. D. Substantial Relationship Test 1. Varies by jurisdiction. a. GA: material & logic connections. b. 5th cir: akin to present action. Prior and current representation are akin in a way that a reasonable person would see as important. c. 2nd cir: patently clear, identical issues, or essentially the same. Relationship between the two matters must be patently clear and the issues identical or the same. 2. 1.9 comm 3 sub risk infor would have been 3. RST 132: if it involves a matter that you did earlier. Fouling ones next. Or substantial risk unless generally known. 4. For exam, acknowledge other tests. E. Hypo 1. Analyticia & NPD have joint rep with S&F. 2. If that deal goes bad, can S&F rep NPD against Analyticia? 3. There are no confidences between the two sides because they were joint. 4. There is a loyalty issue: a. The lwyr is taking/switching sides. F. Discussion 1. Conflict may arise with a prospective client or someone who is a non-client. 2. 1.18 whats owed to prospective client is similar as to whats owed to a fromer client. a. Existing former prospective (order of duties owed). 3. Most jurisdictions have adopted this rule but GA hasnt. 4. What does that mean- does it have to be a conversation? a. Nope. Can be established by an email 6. Duty of continued can develop with prospective only owe duty if had discussion. 7. Triggered by: same or substantially related substantially related + test = must be significantly harmful. 8. Both must give consent:

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a. Does have to be consent + like 1.7 because you have to make sure its consentable there. All contacts will be consentable under 1.18 i. Individual lawyer can carry our representation ii. Screening avoided being overly exposed to receiving too much info. 9. What do you do what a client walks into your office with a matter? a. 1st ask who is involved? Figure out conflicts 1st. b. May not want too much info from the get go so that you cant get those other people as clients in the future. c. May want to try to get informed consent. Comm 4 & 5 = agreement. i. Very hard standard. Have to tell all risks and issues. 10. What happens when you get an uninvited communication an email? a. Comment 2: a person who unilaterally communicates info to a lawyer without a reasonable expectation that lawyer is willing to discuss possibility of forming ACR. b. Maybe have a disclaimer: so they clink on the link thats a disclosures. c. But have you already waive confidentiality like this? d. Cant hide disclaimer at the bottom of the website. e. Better to have someone talk to them on the phone. III. Imputed Disqualification and Migratory Lawyers A. Introduction 1. Will one disqualified lawyer input the entire firm? 2. 1.10 tricky rule how you consent, screening, interacts with 1.9(b). 3. 3.7 carves out imputation? 4. Two types of disqualification: a. 1.9(a): you were the actual lawyer taking out the rep. b. 1.9(b): leaving a tainted firm, you may not have been involved. 5. We view firms as one because: a. Lwyrs in the same firm talk to each other. b. Looks bad. Because are clients really going to be that trusting? c. Pressure to reveal info is strong. d. Share economic case e. Also get to bounce ideas off one another. B. Policy Against 1. Clients right to choose their rep. 2. Desire not to hinder lwyr mobility. a. Lwyrs will want to switch firms from time to time. 3. We address those issues with screening. C. Screening 1. Limited to only lateral lwyrs. Not concurrent COI. 2. Presumption that matters are substantially related. Can be rebutted. 3. Must be timely. 4. Written notice to former client former client gets to monitor the screen. a. Statement from the firm nature of screen, certificates of compliance. b. Client request @ intervals must respond about the screen. c. Have to think about how it must/may be leaked. d. Need updated screens, etc. 5. Move towards more screening. 6. 7th cir. was one of the 1st to recognize it. Cromley. 7. Most jurisdictions dont screen. 8. However, most firms still use screens because it makes it easier to consent. 9. Chart on pg. 120 in RB

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10. Lwyrs should do the following to protect themselves so they dont lead to disq later: a. Dont get involved in other peoples cases. b. Keep track of your matters so you can tell your new firm who you worked for and the scope of involvement. i. Runs the risk of breach of confid. ii. ABA says they should be able to disclose enough to do a conflict check. 11. Also affects summer associate jobs. a. Might have to be screened at times. b. Identifying the client is gernally ok. D. Cromley v. Board of Education 1. A teachers lawyer, Weiner, went to the Ds law firm. 2. After two years of working with her, he left. 3. Was there an ACR? If no, then wont be an issue. 4. 1st question: a. Should the lwyr be individually disqualified? Substantially related? b. Should he be individually disqualified? Shared confidences? c. Is the taint so much the whole firm cant rep them? Are other lwyrs at new firm likely to receive these confidences with lwyr arrives? 5. Question 2: Substantially related test. 6. The substantial relation is met, so presume he got confidential information from the client (can be rebutted, but not here because of 2 years R). 7. Next presumption: he shared his conf info with his coworkers. Can be rebutted and is here by showing the screening process. 8. Factors they look at to see if its an effective screen: a. Instructions to employees, access to files, locked cases, secret codes, prohibited shares of fees, size of firm, lwyrs positions, etc. 9. Here, they did enough. 10. Doesnt address the fact that he was negotiating for a job with the other side while he was working on the case. LB thinks this is crazy. a. 1.7 conflict. Personal interest in conflict. 11. Case demonstrates how screens work.

Part 3: Special Roles of Lawyers Ethics in Advocacy I. Four Views of Adversary Justice A. List of Quotes 1. Abbe Smith you have to do everything you can for your client. 2. Lord Brougham: go all out despite consequences. B. Criminal Law 1. Can a prosecutor use the Abbe Smith model? Go all out, use stereotypes, etc. 2. They are repping the state, so maybe they shouldnt act like that. 3. Plus, theyre ministers of justice. Comm 1 R 3.8 4. Ex: a prosecutor is trying to find a child killer. The guy says hell turn himself in if he has a lwyr. The prosecutor poses as a DA and brought him in. Justice? a. Prosecutor is a branch of the govt. b. Big difference between what cops can do and what lwyrs can do. 8.4(c). 5. Prosecutors in the media R 3.8/3.6 a. Could prejudice the jury pool. 6. Pros have a lot of power, generally.

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C. Civil Context 1. Can an attorney go all out in a civil case? 2. What if the client will lose their home, etc. 3. Life and liberty arent at stake. II. Are Lawyers Ever Morally Accountable for their Clients? A. Standard Conception 1. Lwyrs are supposed to be amoral with regard to objectives and maybe means of the case. 2. Not your job to judge your client. 3. Should be about the systems truth. 4. Standard conception says you can also be immoral. 5. Zimmerman case: a. Ds found an aneurism in P, but didnt tell him. b. Ct found they didnt have a duty to disclose. 6. Some argue you should be a bad man. 7. Limits: a. R 2.1 role as an advisor. Should exercise independent judgment and render candid advice to his client; allowed to weigh considerations of a political, moral, economic, or social nature. b. You may miss how a jury would think, etc. c. Some argue we are officers of the court. 8. Most lwyrs adopt the Abbe Smith model. 9. Then you should think long and hard about who you represent. B. Who should you advocate for? 1. Bin Laden: a. He wants you to rep him. b. Would you? Maybe if you werent paid. c. Other interests: protect your family, firm, other clients. 2. Tobacco Client R.J. Reynolds a. They volunteered to smoke. III. Truth and Confidences A. Introduction Trilema 1. Tri-lema: Three conflicts converge when faced with perjury. a. Duty to investigate/competent. (1.1) b. Duty of confidentiality along with the duty of loyalty. Role of advocating on behalf of the client. (1.6) c. Duty of candor, duty to the court: officer of the court. (3.3) 2. In the older days, primacy was placed on the duty of confidentiality. 3. DR 7-102(b)(1): have to disclose. Used in a case & ABA responded with except when the info is protected as a priv. communication. 4. ABA says the privilege communication = confidentiality and secrets. 5. Basically, the except clause completely destroyed the rule. So you didnt have a duty to disclose past perjury. 6. 3.3 charged things trumps duty of confidentiality with duty of candor. 7. Suggests that in the criminal setting, candor to the court should be the rule that gives: the purpose of prosecution is to seek the truth by presenting evidence beyond a reasonable doubt and to unearth the truth, so lwyr should just reamin quiet when their client perjures and let the process work it out. a. Your obligation is to STOP the lie, not to reveal the truth. 8. Selective or Intentional Ignorance: a. Explain to client up front that not everything can be protected.

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b. Cons: undermines the duty to investigate and you may be tacitly consenting to perjury. 9. Narrative approach: a. Just let them tell their story. b. Cons: sends a flag to the jury and the ct; also lessens your role of advocate; plus you cant mention those facts in the closing; lwyr might be wrong about the clients. c. 1.2(d): if you dont ask questions then youre not violating this rule. 10. Withdrawal a. Might not let you withdraw or if you can, then the next lwyr will have the same problem. 11. Other option: let him testify. The other side could impeach him. a. Con: Youre violating the rules. 12. Basically no way to get around the trilema. B. Criminal Context Nix v. Whiteside 1. What should a criminal defense attorney do if he knows his client is committing perjury? 2. No evidence that Love had a gun. Whiteside said he didnt see a gun and then he changed his mind. 3. He told him if he lied, he would tell the court or withdraw. 4. He didnt perjure, he lost, and then he filed Habeas plea. 5. To have ineffective assistance, you need serious attorney error and prejudice. 6. They didnt want to make a blanket rule because they didnt want to interfere with the states rules. 7. He says if you adhere to the rules, then a court may say you did good, but you cant say that if you fall below the standards that you are automatically at fault. 8. Cant be prejudice here because you dont have a right to falsely testify. 9. Dissent (Blackmun): a. He would not have used the standards because this court would have solved this only based on prejudice. 10. Wilcox case (ftnt) a. Lwyr was just speculating about falsity of testimony he was wrong must have reasonable basis for believing theyre lying. b. What if he has reasonable belief? Is that enough to permit a lawyer to disallow a client from testifying? i. In civil case: cant put it in. ii. 3.3(a)(3) importance of a criminals right to testify. If the lwyr realizes after the testimony has been made that its false, 3.3(a) will require the lwyr to remedy the situation even if it means revealing confidence. Mandatory. c. In concurrence: how can you know theyll testify wrongfully might change their minds. 11. How far can a lawyer go: a. All lwyrs should expect to prep the witness: i. Want to tell the truth, but you dont want them to tell everything. ii. You want the jury to like them and speak in terms they understand and are sympathetic to. iii. You want to stimulate the real court room environment. b. Where it crosses the line: i. Coaching to the point where you dont care what they know or what the truth is. ii. Convincing your client to take a guilty plea.

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iii. Introducing evidence that you know is false, or pursuing a frivolous claim, but its ok to raise issues that you arent sure whether its true false, but its possible its true. iv. 3.4 introducing inadmissible evidence in the course of your closing. v. Lwyr cant assist/help create a story. Lwyrs have to help prepare a witness to testify in US not the case elsewhere. 12. Look at timing (prospective perjury, surprise perjury, concluded perjury), nature of the case (civil, or criminal), and lawyers state of mind when analyzing witness perjury (knowledge, reasonable belief) 13. Remedies: a. Remonstrate with client b. Reveal to tribunal c. Withdraw if allowed d. Let criminal D testify in narrative and refrain from arguing in closing e. Refuse to call client f. Let criminal D testify, question client, argue testimony. IV. Fostering Falsity or Advancing Truth A. Depositions 1. Defending depositions important but LB says its overrated. 2. Hypo: a. Client has told you the light was yellow, but now in the depo she says it was green. b. What should you do? Comment 1.3(3) rule 1.0? c. There are situations where you might know theyre going to act up - ask a judge to be there. d. Need to confront your client on the mistake. 3.3. e. Maybe they say they just remembered. Need to tell them to correct it. f. 3.3: you dont have to noisily withdraw, because you can disclose. Comment 10. i. Must take remedial measures to remedy the situation. So cant necessarily withdraw if it wont fix the problem. g. 3.3 trumps 1.6 3. What is a sufficient disclosure? a. Robert Bennetts letter. b. Lewinsky lied in her affidavit and Clinton agreed with it in his deposition. c. Bennett, his lawyer, wrote a letter to disclose. d. Sufficient disclosure? He didnt say anything about Clintons deposition. e. So it doesnt mention the fact that he lied under oath. f. Comment 10 says you only need to do what is reasonably necessary, dont want to go too far. Still owe a duty of loyalty to your client. g. If you think this letter is enough, its sort of problematic in regards to rule 3.3. i. Requires the mistake be material. By making the correction he might be conceding it is material. h. Be careful, but dont be too cute with the rules. B. The Eyewitness I. Witness is going to tell the truth. Can you try to impeach her based on a past mistake? a. If you have a doubt to the truth, then probably. b. If you know theyre telling the truth, you can say you arent the jury, and youre just presenting some doubt. c. Ask the jury to draw it own conclusions. Probably ok. d. She lied 3.4(e)(2). I submit is different from I believe.

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e. She lied today. 3.3(a)(1) cant lie to the jury. This is too definitive probably. i. But lawyers do this and get away with it. V. Frivolous Positions, Abusive Tactics and Candor in Advocacy A. Frivolous Positions, Abusive Tactics & Candor in Advocacy 1. court-imposed sanctions for frivolous claims or defenses and abusive tactics have increased dramatically in the last 3 decades (FRCP 11) 2. Frivolous Positions M.R. 3.1 -- A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. 3. HYPO: A very nice person in the community walks out of Wal-Mart with merchandise. The item cost $5 and the person had $20 in their pocket. Client admits however that they INTENDED to steal the item. Can the attorney at trial argue that this was NOT shoplifting, just absentminded mistake? 4. Better to argue that the prosecution prove every element of the case! (MR 3.1) 5. Rule 11 of FRCP As amended. a. If violated, sanctions must be limited to what suffices to deter repetition of such conduct or comparable conduct (sanctions are against the ATTORNEY) b. If motion for sanctions made, there is a SAFE HARBOR: c. This gives opposing party 3 weeks to withdraw the offending document before the motion for sanctions can be decided B. Hardball and Incivility 1. Committees and commissions nationwide have called for a return to civility 2. Communications Inc. v. QVC Network (Del. 1994) court chastised famed Texas lawyer Joe Jamail for the manner in which he defended a deposition held in Texas but incident to a Delaware. In deposition Jamail said Dont Joe me, asshole . . . You could gag a maggot off a meat wagon 3. Mullaney v. Aude lawyer engaged in adversarial use of gender bias in the discovery process called opposing counsel babe a. Mr. Harris defends comments saying they werent disruptive to discovery process COURT REJECTS THAT ARGUMENT b. If Mr. Harris, by the use of such tactics, can evoke in Ms. Green any emotional response that puts her off-balance, makes her defensive, makes her feel inadequate, or just plain angry and distracted then he has succeeded in his sexual tactics THIS INTERFERES WITH DISCOVERY PROCESS c. Such a sexist distraction interferes with discovery process C. Misstating Facts, Precedent, or the Record 1. Attorney cannot fail to cite correctly the authority used in briefs to the court 2. Cannot grossly mischaracterize cases or statements to the court 3. Failure of adversary to discover the mistakes is NOT an excuse for what may turn out to be an imposition on the court, even if it can be attributed merely to carelessness and lack of thoroughness in the preparation of the appeal 4. M.R. 3.3(a)(1) a lawyer shall not knowingly make false statement of fact or law to tribunal 5. M.R. 4.1(a) prohibition against making false statement of material fact or law to a third person 6. M.R. 8.4(c) forbids a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation

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D. The Obligation to Reveal Adverse Legal Authority 1. 3.3(a)(2) A lawyer shall not knowingly 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 2. Matter of Thornert client charged with DWI. An adverse case, Fletcher, was never mentioned by respondent defense attorney (even though the SAME attorney was involved in the Fletcher case) a. By failing to argue that the holding in Fletcher be changed or extended the attorney violated rules of required conduct b. Attorney not only offended the court the attorney by failing to advise client of the adverse authority effectively divested his client of opportunity to assess intelligently the legal environment in which his case would be argued client couldnt make an informed decision regarding whether to go forward with defense! Special Issues in Litigation I. Real & Electronic Evidence A. Real Evidence and Legal Ethics 1. In Re Ryder a. Cook (D) robbed a bank. Ryder was his attorney. b. He told his lwyr two stories about where the money came from. c. He was afraid the client was going to dispose of the evidence, so he called a former bar official to discuss moving the money from Cooks safety box to his so it would be privileged. i. He moved it along with the weapon, but he didnt tell the client he planned on it later? d. He then went and spoke to a judge and attorney. They told him he couldnt keep the evidence. i. He ignored their advice. e. He was indicted and then put under ethics investigation. f. This evidence was particularly bad because its illegal to have stolen $ and a sawed off shotgun. i. Plus, hindering the prosecution/obstruction of justice. g. Evidence wasnt privileged because it wasnt really a communication. It was just a product of communication. h. Bottom line: Ryder couldnt affirmatively hinder the prosecution. i. He wasnt disbarred because of mitigating evidence - like seeking advice. B. Real Evidence and Criminal Law C. Real Evidence and the ACP 1. People v. Meredith a. Is lwyr ever required to turn over evidence? How does ACP come into play? b. Lwyr had an investigator go and get the wallet, examine it, and then give it to the cops. c. Ct held it was proper. d. A lwyr who comes in possession of incriminating evidence: i. Can keep it for a minute to examine it. ii.Then can return it, if it wont hinder apprehension/prosecution/conviction/punishment of another and wont result in the alteration/destruction/or concealment of the evidence. iii. Otherwise, lwyr has an affirmative duty to disclose the evidence to the prosecutor.

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Original location of the evidence and its original condition is admissible. Limit: in offering the evidence, prosecution should present the information in a manner which avoids revealing the content of the AC communications or the original source of the information. g. Hypo: the lwyr knows about the wallet, but he just leaves it there. i. He was never in possession. h. Hypo: He observed it, but didnt pick it up? i. Fine, and probably dont have to disclose because of ACP. i. Here, lwyr was forced to testify. i. Observations are protected. j. The general rule doesnt apply here because taking possession of it kept the prosecutor from ever finding it on their own. i. Exception to general rule: altering it by moving it, etc. k. Holding otherwise would make it a race to the evidence before the cops. ii. 3rd Parties a. If a 3rd party delivers the information then its not privileged, unless he is an agent. b. Have to turn it over. iii. People v. Belge a. D accused of horrible murder, and he told his lwyrs he had killed three others. He told them where the bodies were. b. They took pictures of the bodies, but didnt move them (except for a head). c. Tried to use the pictures as a plea bargain, but it was rejected. d. Then used insanity plea and had him talk about all the murders. e. Lwyrs confessed to knowing not guilty because of the ACP. D. A Lawyers E-Discovery Obligation 1. Tax documents, etc, that a client gives to you arent protected because its a pre-existing document. 1. Fisher case, pg. 469. 2. If t wouldve been protected before being turned over, still privileged. 3. There is not a turn over obligation. They are treated differently. No good reason why. Not really consistent. 4. Zubulake v. UBS Warburg LLC. a. Know clients polices of document retention and destruction. b. Very heavy burden on lwyrs. c. Counsel must: issue a litigation hold; communicate directly with key players; and instruct all employees to produce electronic copies of their relevant active files. Negotiation and Transactional Matters I. Client Fraud A. O.P.M Case 1. OPM = big fraud. 2. Forged signatures on leases to get loans. 3. Lwyrs figure out what is happening and confront their clients. 4. Get experts to advise them on how they can keep OPM as a client. a. Cant tell anyone, and they can continue rep if OPM says theyll quit frauding. b. Fraud was in the past c. No direct knowledge of the fraud. d. They can carry on representation until the investigation is complete if Goodman will certify in writing that all new transaction are legit. c. OPM continued doing it, and the lwyrs quietly withdrew.

f.

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d. OPM finally got busted. e. Given todays rules, what advise should they have been given: a. 1.6(b)(3) permitted to disclose. b. 4.1(b) if the fraud is over, dont have to disclose. c. Could have civil liability if you dont disclose. d. If fraud is on-going? Maybe required to nosily withdraw or else you may be assisting fraud. e. Might be required to disclose: i. 4.16 ii. Comm 3: last resort. B. Fire Insurance Exchange v. B 1. Misrepresentation on amount of money for policy limit. 2. It was the OP counsels fault. 3. Its ok to rely on what OP tells you. 4. Comment 2 puffing 4.1 5. This isnt puffing here. This is more definitive and material. 6. This isnt intentional or whether youd settle. C. Hoyt v. Production 1. Can we pierce the corporate veil? No. 2. Lwyr relies on that statement, turns out it wasnt true. 3. Ct held there were issues of fact for a jury to decide. 4. Would you believe your OP when they told you that you didnt have a case? 5. LB thinks this is kind of a crazy case. II. Exploiting an Opponents Mistake A. Correcting Opponents Mistake 1. Do you correct them? 2. Anything wrong with capitalizing on a mistake? 3 Failure to say something could be a material misrepresentation. 4 Not disclosing can sometimes overturn the settlement, etc. 5 Always keep in mind that youll likely make a mistake later. B. Virzi v. Grand 1. Client died and lwyr didnt tell OP or the court. 2. Case settled and then he told them. 3. Ct said he had a duty to disclose. 4. It was material to the case. Ct basically thinks its wrong. 5. Shouldve told the court. Lawyers for Corporations and Other Organizations I. Retaliatory Discharge and Whistleblowing A. Introduction 1. You work for the corporation so you become connected to the individuals. 2. But you are the lwyr for the corp, not the individuals. 3. Have to worry about continued employment. B. Crews v. Buckman Lab 1. Lwyr (assoc GC) found out the GC wasnt licensed. Very illegal. 2. Then GC based the bar, but didnt take the MRPE. Lwyr reported. 3. GC fires her. 4. P sues GC. She has an at-will employment (can be fired anytime). a. In Tennessee, however, you can sue for retaliatory discharge b. Cant be fired for doing something with public policy or constl rights, etc. c. Similar to workers compensation.

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d. Or reporting a criminal act. 5. Never applied to lwyrs in this jurisdiction. 6. Ct looks at other jurisdictions: a. Balla rejected it for lwyrs. i. Co was violating regulations and harming the public. Fired for trying to stop them. ii. Reasons: he had to disclose because of legal ethics; plus bad for ACR. 7. Tenn. said those policies were bad because this is their only client; livelihood depends on the corp., so theyre not going to want to tattle if they dont have a remedy. a. Plus, rewarding the wrong-doing client. b. Wont chill the ACR because that assumes the corp. wants to break the law. Also assumes lwyrs wont investigate thoroughly. 8. Other courts recognize the retaliatory discharge. a. But some have concerns with using confidential information. b. Dont want lwyr to breach that duty. 9. Tenn. Ct adopts a new rule: can disclose confidential information if necessary for retaliatory discharge. C. Associates in Law Firms 1. Have to report fraud, etc. in your law firm. 8.3 1. Some courts recognize an implied K so associates can recover if fired. 2. But, most jurisdictions dont give as much protection to associates when fired. 3. We police ourselves, so we have to disclose. 4. Bottom line associates are more vulnerable. 5. Sarbanes-Oxley and Rule 1.13 Amendments a. Background 1. Sarbanes-Oxley passed by Congress as result of Enron, etc. 2. 307 directed SEC to make more rules for securities lawyers basically. 3. Congress had never regulated lawyers before. 4. ABA was upset. a. Afraid it would create duties on lwyrs for not reporting civil liabilities. b. Didnt think lawyers should be responsible for policing clients. B. Changes to 1.13 1. Made substantial revisions, but did they really do enough? 2. 1.13(a) client is the corporation. 3. 1.13(b) triggers lawyers duty. a. Ridiculous sentence. Can weasel out of the duty. Even if trigger is satisfied, the lwyr still must only act in the best interest of the corp. b. Nothing to do with injuries to 3rd parties, which is what SEC was concerned with. c. Comment 4 qualifiers. Any measure should risk tip toe, dont let people outside know. d. 1.13(c) if the highest authority isnt acting, then lawyer may reveal blah blah but not to protect 3rd parties and lots of qualifiers. i. Allows for disclosure, but not a lot, and not often. e. 1.13(d) exception to c. f. Already looked at. g. Ok to rep constituents and the co. like repping the CEO and the Co. h. If in best interest of corp, must refer the matter to higher authority even the highest authority that can act on behalf of the organization (part b). i. If still no satisfactory response, lwyr may reveal info relating to the rep whether or NOT 1.6 permits disclosure, but only if and to the extent the lwyr reasonably believes necessary to prevent substantial injury to the organization.

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4. The ABA didnt leave out qualifiers because: a. Not always black and white. b. Fear of lawyer liability. 5. The provisions pulled back the SEC. 6. Problems with the rule: a. Too much leeway. Like the OPM case. b. May have a legal duty, but might still be liable for malpractice, etc. 7. Not all bad. a. Did lead to some advances in corp. lwyr responsibility. Part 4: Avoiding and Redressing Professional Failure Control of Quality: Reducing the Likelihood of Professional Failure I. Introduction II. Admission to Practice A. In Re Mustafa 1. Took $. Wasnt allowed to sit for bar in DC. 2. 1.15 very serious rule. Strict liability rule. If intentional most likely disbarred. a. Need a client trust account. b. Typically only need 1. b. Exception: can put your own money in it for paying fees. c. Cant borrow money and put it back later. B. Discussion 1. Cant borrow because there is a risk you might lose and then the money is gone. 2. Also, youre supposed to take care of it. 3. It is bad if you accidently mix funds: a. If youre in trouble with creditors, then your client is too now. b. May have a dispute with client. 10. Very serious duty/obligation. III. Supervisory Responsibilities IV. Unauthorized Practice of Law A. Introduction 1. Some situation where non-lawyers can rep 3rd parties. 2. 5.5 now gives some exceptions to being able to practice outside your state. 3. No uniform definition of what the practice of law is. a. Based on state law. b. GAs is very broad. c. Some jurisdictions arent that broad. B. Rainmaker 1. Cant share fees 5.5(a) with non-lawyers 2. Dont want non-lawyers dictating what lawyers do. 3. Bruiser should be supervising non-lawyers. 5.3, 5.4, 5.5 4. You can void a fee K if you establish unauthorized practice. 5. Big penalty injunction for unauthorized practice. 6. The law student acting like a lawyer, could keep him from practicing the bar. 7. We dont allow non-lawyers to practice because the ethical standards dont apply to them, so how would you hold them accountable. 8. If the client knows the non-lawyer doesnt have ethical obligations, should we allow it? a. Strong argument for it. b. Movement for breaking down the monopoly.

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Control of Quality: Remedies for Professional Failure I. Malpractice and Breach of Fiduciary Duty Part 5: First Amendment Rights of Lawyers Marketing Legal Services A. Advertising and Solicitation 1. 1st ad: all the $ you deserve. Might be misleading. 2. See handouts for rest of comments.

I.

Rules: 1.1: Competence 1. Cmt. 1 To determine whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the: a. Relative complexity and specialized nature of the matter, b. The lawyers general experience, c. The lawyers training and experience in the field in question, d. The preparation and study the lawyer is able to give the matter, and e. Whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. 2. Cmt. 2 A lawyer need not necessarily have special training on prior experience to handle legal problems of a type with which the lawyer is unfamiliar. . . . Some important legal skills, such as the analysis of precedent, the evaluation of evidence, and legal drafting, are required in all legal problems. 3. Cmt. 3 In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. 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 lwyr may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: 1) To prevent reasonably certain death/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 lawyers 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 clients commission of a crime or fraud in furtherance of which the client has used the lawyers services; 4) To secure legal advice about the lawyers compliance with these rules; 5) To establish a claim or defense of the lawyer in a controversy between the lawyer and the client, or to respond to allegations in any proceeding concerning the lawyers representation of the client; or 6) To comply with other law or a court order.

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Comment 16: lwyr must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject in the lawyers supervision. Comment 17: When transmitting a communication with information relating to the rep of a client, lwyr must take reasonable precautions to prevent the information from going into the hands of unintended recipients. Doesnt require special methods if the method of communication affords a reasonable expectation of driving (like email). Look at sensitivity of information & the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. 1.8: Conflict of Interest: Current Clients: Specific Rules (a) A lwyr shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) The client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) The client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyers role in the transaction, including whether the lawyer is representing the client in the transaction. (b) Lwyr shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these 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. 1.9(c): Duties to Former Clients (c): A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter. (1): use information relating 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 representation except as these Rules would permit or require with respect to a client. GA Rule 1.6 (a) A lawyer shall maintain in confidence all information gained in [MR says information related to the representation] the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, or are required by these rules or other law, or by order of the Court. (b) (1) A lawyer may reveal information covered by paragraph (a) which the lawyer reasonably believes necessary:

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(i) to avoid or prevent harm or substantial financial loss [MR allows disclosure to mitigate or rectify fraud] to another as a result of client criminal conduct [MR allows for civil fraud] or third party criminal conduct clearly in violation of the law; (ii) to prevent serious injury or death not otherwise covered by subparagraph (i) above; (iii) 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. (2) In a situation described in Subsection (1), if the client has acted at the time the lawyer learns of the threat of harm or loss to a victim, use or disclosure is permissible only if the harm or loss has not yet occurred. (3) Before using or disclosing information pursuant to Subsection (1), if feasible, the lawyer must make a good faith effort to persuade the client either not to act or, if the client has already acted, to warn the victim. [Georgia REQUIRES you talk to client first] (c) The lawyer may, where the law does not otherwise require, reveal information to which the duty of confidentiality does not apply under paragraph (b) without being subjected to disciplinary proceedings. (d) The lawyer shall reveal information under paragraph (b) as the applicable law requires. (e) The duty of confidentiality shall continue after the client-lawyer relationship has terminated. The maximum penalty for a violation of this Rule is disbarment. 1. Cmt. 13 Georgia rule also REQUIRES that you withdraw when lawyers services will be used by the client in materially furthering a course of criminal fraudulent conduct 2. Cmt. 14 Allows for a Noisy withdrawal lawyer can withdraw AND disaffirm any opinion, document, affirmation, or the like

RST 68-72: Attorney Client Privilege. RST 73: The Privilege for an Organizational Client b. When a client is a corp, unincorporated association, pship, trust, estate, sole proprietorship, or other for-profit or not-for-profit organization, the ACP extends to a communication that: A. Otherwise qualifies as privileged under 68-72; B. Is between an agent of the organization and a privileged person as defined in 70; C. Concerns a legal matter of interest to the organization; and D. Is discovered only to: 1. Privileged persons as defined in 70; and 2. Other agents of the organization who reasonably need to know of the communication in order to act for the organization. 1.13: Organization as Client a. Lwyr employed or retained by an organization represents the organization acting through its duly authorized. (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, or a violation of law that reasonably might be imputed to the organization, and that is likely

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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 to do so, the lawyer shall refer the matter to higher authority in 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. (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. c. In dealing with an organizations 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 organizations 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. 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer (a) Subject to paragraphs c & d, a lwyr shall abide by a clients decision 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 lwyr 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. Can limit scope of rep if its reasonable under the circumstances and the client gives informed consent. d. Lwyr cant counsel a client to engage in conduct, or assist a client, in conduct that the lwyr knows is criminal or fraudulent, but a lwyr may discuss the legal consequences of any

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proposed course of conduct with a client and may counsel or assist a client to make a good faith to determine the validity, scope, meaning or application of the law. Cmt. 10 -- A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. 1.3: Diligence: a lwyr shall act with reasonable diligence and promptness in representing a client. a. Comment 1: lwyr may have authority to exercise professional discretion in determining the means by which a matter should be pursued. d. Comment 2: lwyrs duty to act with reasonable promptness, however, doesnt preclude the lwyr from agreeing to a reasonable request for a postponement that will not prejudice the lwyrs client. e. Comment 3: Lawyers duty to act with reasonable promptness, however, doesnt preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyers client. 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 and reasonably available alternatives to the proposed course of conduct. Cmt. 6 on Informed Consent: The lawyer must make reasonable efforts to ensure that the client or other person possess information reasonably adequate to make an informed decision. A lawyer who does NOT personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid. In determining whether the information and explanation provided are reasonably adequate, relevant factors include: 1. Whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and 2. Whether the client or other person is independently represented by other counsel in giving consent. 1.2(a): Scope of Rep and Allocation of Authority 1.4: Communication a. Lawyer shall: i. Promptly inform the client of any decision or circumstance with respect which the clients informed consent is required by these Rules ii. Reasonably consult with the client about the means by which the clients objectives are to be accomplished; iii. Keep the client reasonably informed about the status of the matter; iv. Promptly comply with reasonable requests for information; and v. Consult with the client about any relevant limitation on the lawyers conduct when the lawyer knows that the client expects assistance not permitted by the Rules 11. Lwyr shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 1.14: Client with Diminished Capacity a) When a clients capacity is diminished, the lwyr shall as far as reasonably possible, maintain a normal ACR.

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b) When the lawyer reasonably believes the clients diminished capacity is at risk of substantial physical, financial or other harm, the lwyr may take reasonably necessary protective action, including consulting with individuals that have the ability to take action to protect the client, and in some cases seeking the appointment of a 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. 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. 3.4: Fairness to Opposing Counsel: A lawyer shall not: (a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

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(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. Cmt. 2 Applicable law may permit a lawyer to take temporary POSSESSION of physical evidence of client crimes for the purpose of conducting limited examination that will not alter or destroy material characteristics of the evidence. In such a case, applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances. 4.2: Communication with Person Represented by Counsel: in reping a client, a lwyr shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lwyr in the matter, unless the lwyr has the consent of the other lwyr or is authorized to do so by law or a ct order. Comment 4: Doesnt apply to matters outside the representation. The clients can talk to each other, and the lawyer can advise them to an extent about what to say. Comment 7: In the case of a rep organization this Rule prohibits comm. with constituent of the organization who supervises directors or regularly consults with the organizations lawyer concerning the matter who has the authority to obligate the organization with respect to the matter, or whose act or omission in connect with the matter maybe imputed to the organization for purpose for civil or criminal liability. Consent of the organizations lawyer isnt required for comm. with the former constituent. If the constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purpose of this Rule. GA Rule 4.2: Communication (a) A lawyer who is representing a client in a matter shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by constitutional law or statute. (b) Attorneys for the State and Federal Government shall be subject to this Rule in the same manner as other attorneys in this State. The maximum penalty for a violation of this Rule is disbarment. 4.4: Respect for Right of 3rd Parties (b) Lwyr who receives a document relating to the representation of the lwyrs client and knows or reasonable should know that the document was inadvertently sent shall promptly notify the sender. Comment 3: Can return a document unread if you want to. 1.5: Fees see RB. a), c), d), e) 1.8(i) 5.4 5.6 1.7 1.8 1.7 comments 18, 29-31

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1.0(b), (e) 1.7 comments 18-22 GA Rule 1.7 3.7 1.9 1.18 1.10: Imputation of Conflicts of Interest: General Rule see book. 1.0(k) comments 8-10 1.2(b) 1.3 6.2 3.3 3.4(b) 3.3 4.4(a) 8.4(c) 3.1 3.2 3.4(a), (c)-(e) 4.4(a) 8.4 comment 3 3.4 1.2(d) 4.1 8.4(c) 1.13 (crossed through) 8.3 1.15 8.1 5.1 5.2 5.3 5.4 5.5 7.1 7.2 Advertising 7.3 7.4 82 99: A represented Non-Client General Anti-Contact Rule a. Cant talk about the matter with a nonclient that is involved in the matter and is repped by someone else unless: a. Communication is with a public officer or agency b. Lawyer is a party and represents no other client in the matter; c. The communication is authorized by law; d. The communication reasonably responds to an emergency; e. Or the other lawyer consents b. This doesnt prohibit the lawyer from assisting the client in otherwise proper communication by the lawyers client with a represented nonclient.

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