PROFESSIONAL RESPONSIBILITY

Table of Contents
Course Goals..........................................................................................................................................................................4
Introduction – The Idea of a Profession ..............................................................................................................................5
Rule 1.0 Terminology ....................................................................................................................................................... 5
A. What is “Professional Responsibility”? ...................................................................................................................5
1. Two kinds of professional responsibility ..........................................................................................................5
B. What is “legal ethics”? ............................................................................................................................................5
1. Ethics v. Law ..................................................................................................................................................5
C. ABA Model Rules - 8 Main Sections .......................................................................................................................5
ABA MR Scope ....................................................................................................................................................6
1. Client-Lawyer Relationship 1.1 – 1.18.............................................................................................................6
2. Counselor 2.1 – 2.4 .........................................................................................................................................6
3. Advocate 3.1 – 3.9 ...........................................................................................................................................6
4. Transactions with Persons other than Clients 4.1 – 4.4 ..................................................................................6
5. Law Firms and Associations 5.1 – 5.7 .............................................................................................................6
6. Public Service 6.1 – 6.5 ...................................................................................................................................6
7. Information about Legal Services 7.1 – 7.6 .....................................................................................................6
8. Maintaining the Integrity of the Profession 8.1 – 8.5 .......................................................................................6
D. Profession– per ABA (RLC 36) ...............................................................................................................................6
E. Introductory Problem ...............................................................................................................................................6
Images of the Lawyer’s Role................................................................................................................................................. 8
ABA MR Scope (pp. 7-8) ................................................................................................................................................. 8
A. Film: To Defend A Killer ...........................................................................................................................................8
1. Themes Discussed ..........................................................................................................................................8
2. Three Perspectives on Role of Ethics .............................................................................................................8
3. Agency ethics ..................................................................................................................................................8
4. Client loyalty ....................................................................................................................................................8
Neutral Partisanship and the Lawyer’s Role ....................................................................................................................... 9
ABA MR Preamble, ABA MR 1.2, 1.3, 1.4 ....................................................................................................................... 9
A. Lawyer’s Roles ........................................................................................................................................................9
B. Neutral Partisanship ................................................................................................................................................9
C. Jurisdiction and Choice of Law - Determining Which State’s Rules Apply ............................................................10
How to Determine Which State(s) Rules of Professional Responsibility Apply .................................................10
D. Accidental Document Discovery ...........................................................................................................................10
The Legal Framework of Lawyers’ Ethics & Discipline .................................................................................................... 12
ABA MR 8.3, 8.4 & 8.5A ................................................................................................................................................ 12
A. Historical Background of Ethical Codes ................................................................................................................12
B. What is a Code of Ethics For? ..............................................................................................................................12
C. Disciplinary Authority .............................................................................................................................................13
D. Duty to Report Misconduct ....................................................................................................................................13
E. Sanctions ..............................................................................................................................................................14
Adversarial Ethics................................................................................................................................................................15
ABA MR 3.1, 3.2 ............................................................................................................................................................15
A. Justifying the Adversarial System .........................................................................................................................15
B. Limiting the Adversarial System: Rules 3.1 &3.2, and Fed.R.Civ.Pro 11 ..............................................................15
1. Sanctions under Rule 11 ...............................................................................................................................15
D. Zealous representation or Harassment? ...............................................................................................................16
Alternatives to Neutral Partisanship - I.............................................................................................................................. 17
A. Introduction ...........................................................................................................................................................17
B. DOMA Case ..........................................................................................................................................................17
Representation and “Group Identity” .................................................................................................................17
C. Rule 1.16 Declining Or Terminating Representation .............................................................................................17
Alternatives to Neutral Partisanship - II............................................................................................................................. 19
A. Discrimination in Client Selection ..........................................................................................................................19
B. Current ABA Rule 8.4 ............................................................................................................................................19
C. Proposed ABA Rule 8.4 Amendment ....................................................................................................................19
Ethics and Organizations.................................................................................................................................................... 21
ABA MR 1.6, 1.13, 5.1 ...................................................................................................................................................21
A. Clash between Ethics and Ethics of Corporate Management ...............................................................................21
B. Organizational Clients ...........................................................................................................................................21
C. Supervisory and Subordinary Lawyers .................................................................................................................22
1. Rule 5.1 Responsibilities of a Partner or Supervising Lawyer.......................................................................22
2. Rule 5.2 Responsibilities Of A Subordinate Lawyer ......................................................................................22

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Behavioral Ethics – I Bystanding and Upstanding ........................................................................................................... 24
A. Models of Ethical Collapse ....................................................................................................................................24
B. Subordinate and Supervising Attorneys ................................................................................................................25
1. Rule 5.1 Responsibilities of a Partner or Supervising Lawyer.......................................................................25
2. Rule 5.2 Responsibilities Of A Subordinate Lawyer ......................................................................................25
C. Bystanders and Upstanders..................................................................................................................................26
Prosecutorial Ethics ............................................................................................................................................................28
ABA Model Rule 3.8 .......................................................................................................................................................28
Criminal Defense.................................................................................................................................................................. 30
A. Justifications for defense attorney’s zealous advocacy ........................................................................................30
B. Defense of Adversarial System .............................................................................................................................30
C. Representing Someone you Believe is Guilty .......................................................................................................30
D. Podcast - McCracken Poston’s defense of Alvin Ridley .......................................................................................30
E. Perjury trilemma ....................................................................................................................................................30
F. Rule 3.3 Candor Toward the Tribunal ...................................................................................................................30
Confidentiality and the Attorney-Client Privilege (I) .........................................................................................................32
ABA MR 1.2, 1.6, 1.16, 3.3, 3.4 .....................................................................................................................................32
A. Confidentiality........................................................................................................................................................32
Rule 1.6: Confidentiality of Information ...............................................................................................................32
PA Confidentiality Exceptions ....................................................................................................................................32
B. Confidentiality vs. Attorney Client Privilege ...........................................................................................................33
C. Additional Rule Sections .......................................................................................................................................33
D. Attorney-Client Privilege ........................................................................................................................................33
Rest. Section 68: ...............................................................................................................................................33
Confidentiality and the Attorney-Client Privilege (II) ........................................................................................................ 35
A. Confidentiality........................................................................................................................................................35
Rule 1.6: Confidentiality of Information ...............................................................................................................35
PA Confidentiality Exceptions ............................................................................................................................35
B. Privilege ................................................................................................................................................................35
1. Crime Fraud Exception to Privilege ...............................................................................................................36
Confidentiality and the Attorney-Client Privilege (III) ....................................................................................................... 37
ABA MR 1.6, 3.3, 4.1, 1.16 ............................................................................................................................................ 37
A. Organizational Privilege ........................................................................................................................................37
Upjohn Test .......................................................................................................................................................37
B. Confidentiality and Client Fraud ............................................................................................................................37
1. Crime-fraud and lawyer’s duties of loyalty to client .......................................................................................37
Confidentiality and the Attorney-Client Privilege (IV) ......................................................................................................39
Behavioral Ethics II – Identifying and Countering Implicit Bias..................................................................................... 41
A. Implicit Bias ...........................................................................................................................................................41
B. Confirmation Bias ..................................................................................................................................................41
C. Giving Voice to Values Handout - how you get yourself to behave how you want to in a situation ......................41
The Counseling Function.................................................................................................................................................... 42
ABA MR 1.2, 1.4, 1.13, 1.16, 2.1 ................................................................................................................................... 42
A. Lawyer as Counselor vs. as Adversarial Advocate ...............................................................................................42
B. Government Lawyer vs. Private Counsel ..............................................................................................................42
C. The “Torture Memos” ............................................................................................................................................42
D. The Drone Memo - "Independent professional judgment and Candid Advice?” ...................................................43
Conflict of Interest (Criminal Defense) .............................................................................................................................. 44
ABA MR 1.7 ................................................................................................................................................................... 44
A. Introduction to Conflicts .........................................................................................................................................44
1. Three (typical) kinds of conflict situations ......................................................................................................44
2. Model Rules ..................................................................................................................................................44
3. Civil Litigation Disqualification .......................................................................................................................44
4. Criminal Litigation Disqualification .................................................................................................................44
B. Concurrent Conflicts and Criminal Defense Strategy ...........................................................................................45
1. Habeas Challenge to Criminal Conviction .....................................................................................................45
Concurrent Conflicts in Civil Cases................................................................................................................................... 47
ABA MR 1.7 ................................................................................................................................................................... 47
A. Introduction ...........................................................................................................................................................47
1. Definition of Concurrent Conflict....................................................................................................................47
2. Two duties to Current Clients ........................................................................................................................47
3. One duty to Former Clients ...........................................................................................................................47
B. Problems ...............................................................................................................................................................47

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Conflict of Interest (Former Client Conflicts & Imputed Disqualification)......................................................................49
ABA MR 1.7, 1.9, 1.10, 1.16, 1.18 .................................................................................................................................49
A. Successive vs. Concurrent Conflicts .....................................................................................................................49
B. Conflicts that Potentially Harm Former Clients .....................................................................................................49
1. “Substantial Relation” Test ............................................................................................................................50
2. Problem 4 - page 588 ...................................................................................................................................50
C. Imputed Disqualification ........................................................................................................................................51
1. Rule 1.10 Imputation of Conflicts of Interest: General Rule ..........................................................................51
2. Screening ......................................................................................................................................................51
Other Conflicts of Interest ...................................................................................................................................................52
ABA MR 1.5, 1.7, 1.8, 1.9, 1.10, 1.18 ............................................................................................................................52
A. Positional Conflicts ................................................................................................................................................52
B. Client-Lawyer Conflicts .........................................................................................................................................53
1. Business Conflicts: ........................................................................................................................................53
2. Family and Personal Relationship Conflicts ..................................................................................................54
Lawyer-Client Decision-making (I) .....................................................................................................................................55
ABA MR 1.2, 1.14, 2.1 ...................................................................................................................................................55
A. The Client-Centered Approach ..............................................................................................................................55
B. Client with Diminished Capacity ............................................................................................................................55
C. Problem 1a, page 663...........................................................................................................................................55
D. The Plea ................................................................................................................................................................56
Lawyer-Client Decision-making (II) ....................................................................................................................................57
ABA MR 1.2, 1.14, 2.1 ...................................................................................................................................................57
A. Article by Richard Wasserstrom, “Lawyers as Professionals: Some Moral Issues” ..............................................57
B. Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer .................................57
C. Client with Diminished Capacity ............................................................................................................................57
Rule 1.14 Client With Diminished Capacity .......................................................................................................57
Advertising & Solicitation ...................................................................................................................................................59
ABA MR 7.1, 7.2, 7.3, 7.4, 7.5 ....................................................................................................................................... 59
A. ABA Rule Basics ...................................................................................................................................................59
B. Advertising.............................................................................................................................................................59
1. History ...........................................................................................................................................................59
2. In Re RMJ: (US 1982) Standard and Rationales ..........................................................................................59
3. How potentially misleading does the info need to be to ban ad? ..................................................................60
4. Examples of Ads ............................................................................................................................................60
5. PA Advertising Rule .......................................................................................................................................60
C. Solicitation.............................................................................................................................................................61
1. Definition .......................................................................................................................................................61
2. Ohralik v. Ohio State Bar (US 1978) ............................................................................................................61
2. Auerback essay (pages 739-40)....................................................................................................................61
3. In re Primus (US 1978) ..................................................................................................................................61
D. Takeaways ............................................................................................................................................................61
Negotiation Review.............................................................................................................................................................. 62
ABA MR 4.1, 1.6, 8.4(c) ................................................................................................................................................. 62
A. Common ethical issues in negotiation ..................................................................................................................62
B. Sources of ethical norms in negotiation ................................................................................................................62
C. Valdez v. Ace Ethical Issues .................................................................................................................................62
1. Lying/nondisclosure .......................................................................................................................................62
2. Coercion ........................................................................................................................................................63
3. Communication/Consulting w/clients .............................................................................................................64
4. May/must Ace use Plaintiff negligence as leverage ......................................................................................64
D. Cooperative v. Competitive bargaining styles – ....................................................................................................65
E. Settlement and Client’s Authority & Interests ........................................................................................................65
Behavioral Ethics –III Legal Education ............................................................................................................................. 66
A. Introduction................................................................................................................................................ 66
B. Inequality and the Law School’s Responsibility for that Inequality ............................................................ 66
C. Proposed Rule Change to 8.4:.................................................................................................................. 66
D. Dr. Claude Steel - Stereotype Threat ........................................................................................................ 67
Legal Ethics and Access to Justice ................................................................................................................................... 68
ABA MR 6.1, 6.2 ............................................................................................................................................................68
A. The Ethical Problem ..............................................................................................................................................68
B. The Solution ..........................................................................................................................................................68
1. Constitutional Right to Counsel? ...................................................................................................................68
i. Criminal - YES .......................................................................................................................................68
ii. Civil - Not so much .................................................................................................................................68

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Course Goals
 
There are four main legal-education goals in this course:
 
1. Become familiar with norms, sources of authority, principles and rules governing lawyers’
professional conduct and that help to shape lawyers’ roles: 

You should come out of this class with an understanding of two different bodies of law
that fit together:  (1) state defined and administered professional codes that are tied to bar licensing and
(2) general law that applies to lawyers’ conduct, e.g., tort, contract and agency doctrines and statutes.

You should be able to research and articulate the professional norms and tensions that are
generating and/or relevant to an ethical problem; you should know where to look in legal authorities for
rules, principles and doctrines that address the problem.

2. Become sensitized to ethical issues that arise repeatedly in legal practice:

After this class, you should be able to recognize some perennial ethical conflicts and issues when
they come up in new settings. 

You should recognize situations in which certain types of legal-ethical problems and conflicts are
likely to arise.

3.      Develop habits of reflective analysis of and response to ethical issues:

In this class you should begin to create professional habits that you will continue developing in
practice.  You will practice considering, analyzing, and deciding what to do in ethically challenging
situations, such as recognizing and managing conflicts of interest and balancing the duty to advance
clients’ goals with the duty to advise clients candidly about problems with those goals. 

4. Develop critical perspectives:

You should finish the course with an awareness of some ways in which the structures of the legal
system and professional legal practice create potential ethical problems.
 
For instance, you should be able to articulate ways in which bar association rules protect clients
and ways those rules protect lawyers’ elite status. You should be able to articulate arguments for and
against imposing a requirement that lawyers, and/or law students perform some pro bono representation
every year. 

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Introduction – The Idea of a Profession
Rhode, Luban & Cummings (RLC), Chapter 1, pp. 35-47
Rule 1.0 Terminology

Learning Objectives
• Become familiar with sources of authority, doctrine, legal cultural norms
• Learn to recognize perennial legal-ethical problems
• Develop professional habits for how to deal with an ethically challenging situation
• Sharpen critical insight into received views about professional ethics
• Prepare for MPRE

A. What is “Professional Responsibility”?

• Legal ethicsF
• Role based ethics, i.e., duties assumed because of professional identity
• Descriptively – Behavior that identifies you as a (legal) professional
• Prescriptively – Actions and reactions you are required to perform (or refrain from performing) in order to be a good
professional

1. Two kinds of professional responsibility

1. Personal, Individual responsibility – individual choices, personal integrity (e.g., behavior in negotiations,
witness prep)
2. Collective responsibility – structural issues, social justice (e.g., distribution of legal services; racial impact of
prosecutorial policies)

B. What is “legal ethics”?

• Narrowest: System of regs governing lawyers’ behavior (state codes based on ABA Model Rules of Professional
Conduct)
• Middle: The “law governing lawyering” – all the federal and state statutes, administrative rules, professional codes, and
common law doctrines/decisions
• Broadest: social/cultural/philosophical normative context, including laws, moral/ethical norms, professional customs,
critical perspectives, political issues, personal beliefs and points of view in which normative questions about lawyers’
behavior arise

1. Ethics v. Law
• Ethical rules are no more or less complex and indeterminate (squishy) than legal rules
• There might be no right answers . . .
• but there are better and worse ways of analyzing the questions,
• better and worse ways of deciding what to do in a difficult situation
• better and worse reasons for what you decide to do
• Casebook:
- “There is always the question whether to comply with the law or to engage in conscientious disobedience.”
R&L, p. 8
- “When disobedience is justified can be controversial, but that disobedience is sometimes the right thing to do
can hardly be denied.” Id.
- Do you agree? Why or why not?

2. Looking Critically at Legal Ethics

• Considering
- the role of money
- self protective aspects of the ethical rules
- professional norms’ balance of self-interest and social responsibility
- intersection of politics and legal ethics
- issues of social hierarchy
-
C. ABA Model Rules - 8 Main Sections

• Rules leave a lot up to you:

- Reveal confidential info to prevent reasonably certain death?
- Reveal confidences if corporate CEO is damaging corporation?
- Decline to represent a client who does something repugnant?
- Include moral and social judgments in advice to client?

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 ABA MR Scope
[14] The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the
purposes of legal representation and of the law itself. . . . .
[16] . . . . The Rules do not . . . Exhaust the moral and ethical considerations that should inform a lawyer, for no
worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for
the ethical practice of law.

1. Client-Lawyer Relationship 1.1 – 1.18

2. Counselor 2.1 – 2.4
3. Advocate 3.1 – 3.9
4. Transactions with Persons other than Clients 4.1 – 4.4
5. Law Firms and Associations 5.1 – 5.7
6. Public Service 6.1 – 6.5
7. Information about Legal Services 7.1 – 7.6
8. Maintaining the Integrity of the Profession 8.1 – 8.5

D. Profession– per ABA (RLC 36)

• “An occupation whose members have special privileges, such as exclusive licensing, that are justified by . . .
- Intellectual training and complex judgments
- Clients must trust
- Practitioner’s self interest is overbalanced by serving client interest and public good
- Self regulating
• “preserves the separation of powers and protects the independence of the legal profession from government
domination”“
• “safeguarding individual rights”
• “checking official misconduct”

“The biggest problem, is that ordinary citizens cannot afford to hire a lawyer.”
-- Fred Ury, former pres. CT Bar Assn.

“In CT, 80-85% of divorces have a self-represented party because most families can’t afford to hire one lawyer, let alone
two. Nearly 90% of criminal cases are self-represented or by a public defender because families can’t scrape together a
retainer.”

Louis Brandeis (1905)

- We hear much of the ‘corporation lawyer,’ and far too little of the ‘people’s lawyer’ . . . .
- Leaders of the Bar have . . . . erroneously assumed that the rule of ethics to be applied to a lawyer’s advocacy is the
same where he acts for private interests against the public [whose interest is not represented] as it is in litigation
between private individuals.
• special duty argument: help individuals navigate murky waters of laws that apply to everyone
• people like everyone else argument: they are in privileged position and would not do it not paid for services

E. Introductory Problem

What should you do?

You are working late on a litigation, when you receive an email from opposing counsel. You open it and quickly
realize that it’s a mistaken “reply all,” and was meant only for your opponent’s co-counsel. At the top the message is
marked “PRIVILEGED ATTY-CLIENT WORK PRODUCT.” Glancing at the contents, you realize that the message
may contain material that would be useful to your client’s case and potentially damaging to your opponents.

ABA MR 4.4 Respect For Rights Of Third Persons

(b)    A lawyer who receives a document or electronically stored information relating to the representation of the
lawyer's client and knows or reasonably should know that the document or electronically stored information was
inadvertently sent shall promptly notify the sender.

ABA Model Rule 1.3 Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.
[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal
inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a
client’s cause of endeavor. . . .

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 Client-Lawyer Relationship
Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer
(a) . . . a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by
Rule 1.4, shall consult with the client as to the means by which they are to be pursued.

ABA MR 1.4 Communication

A lawyer shall:
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

Rule 1.0: TERMINOLOGY

(a) "Belief" or "believes" denotes that the person involved actually supposed the fact in question to be true. A person's
belief may be inferred from circumstances.
(b) "Confirmed in writing," when used in reference to the informed consent of a person, denotes informed consent that is
given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed
consent. See paragraph (e) for the definition of "informed consent." If it is not feasible to obtain or transmit the writing at
the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.
(c) "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or
other association authorized to practice law; or lawyers employed in a legal services organization or the legal department
of a corporation or other organization.
(d) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the substantive or procedural law of the applicable
jurisdiction and has a purpose to deceive.
(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.
(f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be
inferred from circumstances.
(g) "Partner" denotes a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a
member of an association authorized to practice law.
(h) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably
prudent and competent lawyer.
(i) "Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes that the lawyer believes
the matter in question and that the circumstances are such that the belief is reasonable.
(j) "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence and
competence would ascertain the matter in question.
(k) "Screened" denotes the isolation of a lawyer from any participation in a matter through the timely imposition of
procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated
lawyer is obligated to protect under these Rules or other law.
(l) "Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty importance.
(m) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative
agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an
adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will
render a binding legal judgment directly affecting a party's interests in a particular matter.
(n) "Writing" or "written" denotes a tangible or electronic record of a communication or representation, including
handwriting, typewriting, printing, photostating, photography, audio or videorecording and e-mail. A "signed" writing
includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted
by a person with the intent to sign the writing.

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Images of the Lawyer’s Role
Film:  Ethics in America: To Defend a Killer
ABA MR Scope (pp. 7-8)

A. Film: To Defend A Killer

1. Themes Discussed
• Ethical Duty as Attorney vs. Personal Beliefs on Morality
• Money is always a factor
• Norm of Attorney’s Taking Cases - selection up to attorney
- unless you are only lawyer in town - then you have ethical conflicts
- ex. lawyers in clinic are only lawyers client can afford
• A Separate Ethical World
- turning guy in is not moral thing to do

2. Three Perspectives on Role of Ethics

• ‘psychiatrists is not first person I am’
- is there any point at which a defense attorney is a person first and defense attorney second
• Defense attorneys ‘ know only one person in the world and that person is their client’
• ‘I find it very difficult to nearly sort out my personal and professional choices’
- more realistic perspective

3. Agency ethics
• “Lawyers are amoral agents” (Steve Gillers, law professor)
• “[T]he lawyer is the fiduciary of his client, whom he must therefore treat as he would himself rather than as he
would treat the other party to a normal arms length contract.”
• But, isn’t there a point at which one man has to be willing to step outside . . . ? (Anna Quindlen)

4. Client loyalty
“If they don’t like the case they can walk away. Once they take the case, their autonomy is out the window. Then
they know only one person in the world, and that person is their client, and regardless of how repulsive the case
might be to them as human beings, as lawyers they have to be loyal to an infinite degree.”
-- Steve Gillers

5. Professional Duty or Professional Privilege?

• Society has “made a judgment” that defense attorneys should protect client confidences
• “Isn’t it lawyers who made this rule for lawyers”?

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Neutral Partisanship and the Lawyer’s Role
RLC, Chapter 4 Sections A & B
ABA MR Preamble, ABA MR 1.2, 1.3, 1.4
 
A. Lawyer’s Roles

From ABA MR Preamble:

• Representative of Clients
• Officer of the Legal System - special responsibility for equality of justice
• Public Citizen
• Advisor
• Advocate
• Negotiator
• Evaluator
• “Third-Party Neutral”

ABA MR Preamble
Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as
substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation
of professional peers.

Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal
system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.

[9] “[M]any difficult issues of professional discretion . . . . must be resolved through the exercise of sensitive
professional and moral judgment guided by the basic principles underlying the Rules.”

ABA MR - Scope
[16]. . . . The Rules do not . . . Exhaust the moral and ethical considerations that should inform a lawyer, for no
worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework . . . .

ABA MR 1.2 (b)

A lawyer's representation of a client, including representation by appointment, does not constitute an
endorsement of the client's political, economic, social or moral views or activities.

ABA MR 1.3 Diligence - “Zealous Advocacy”

• From old code system
• Not in Rules per se, but, see comment to Rule 1.3
• [14] . . . . Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the
Rules.

MR 1.3 A lawyer shall act with reasonable diligence and promptness in representing a client.
Comment: [1] . . . . A lawyer must also act with commitment and dedication to the interests of the client and
with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage
that might be realized for a client. . . .

B. Neutral Partisanship

Neutral Partisanship - lawyer remains detached from client’s ends, but must also work aggressively to advance his
clients ends even if they themselves and society find them counterproductive
• Neutrality = detached from the client’s ends
• Partisanship = work aggressively for client’s ends
• emphasis on extremity of situation
• lawyer is separated from the client’s goal - may not go about same issue the same way their client wants

Justification
- Role Morality - overall there is a belief that system of justice is a higher good, and that lawyer’s role within it
requires things society wouldn’t justify but actions are OK b/c are inside the system

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C. Jurisdiction and Choice of Law - Determining Which State’s Rules Apply

Two different issues:

1. Jurisdiction = “disciplinary authority,” i.e., power to bring to court; what state’s court has power to decide
whether lawyer has violated professional responsibility and to set the choice of law rule?

ABA MR 8.5(a)
Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the
disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer
not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the
lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be
subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the
same conduct.

2. Choice of law =substantive law that applies; what state’s rules of professional conduct will be used to
decide whether lawyer’s conduct was right or wrong?

ABA MR 8.5(b)
Choice of Law. In any exercise of . . . disciplinary authority . . . the rules of professional conduct
to be applied shall be as follows:
(1) For conduct in connection with a matter pending before a tribunal, the rules of the
jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred,
or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that
jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the
lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes
the predominant effect of the lawyer’s conduct will occur.

How to Determine Which State(s) Rules of Professional Responsibility Apply

1. What is(are) the issue(s)? (e.g., confidentiality)
2. What rule deals with the issue? (1.6)
3. What state’s rule of (confidentiality) applies? (1.6)
4. To decide whose rule applies you need to do choice of law analysis of 8.5(b)
(1) in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the
tribunal sits, unless the rules of the tribunal provide otherwise
(2) any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or
(3) if the predominant effect of the conduct is in a different jurisdiction
(a) a lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a
jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s
conduct will occur
5. But what state’s choice of law applies?
a) the state you will be prosecuted
(1) check 8.5(b) in every state that potentially claims disciplinary authority under 8.5(a)
6. What state(s) claim power to prosecute you? - check 8.5(a) in all
a) any state where you are barred
b) any state where you provide legal services
c) conceivably any state affected by the conduct at issue
7. For each state who’s 8.5(a) asserts authority to discipline you, apply Choice of Law analysis in that
state’s 8.5(b) to determine which state’s substantive ethics rule would apply
8. Different states’ Rule 8.5(b) may lead you to the same or different substantive rules. If different,
consider how to proceed

D. Accidental Document Discovery

- different types of rules for receiving confidential document accidentally
• may you read the document?
• must you read the document?
• should you read the document?

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 Rule 1.3
A lawyer shall act with reasonable diligence and promptness in representing a client.

Rule 1.3
COMMENT [1] . . . . A lawyer must . . . act with commitment and dedication to the interests of the client and
with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every
advantage that might be realized for a client. . . . The lawyer’s duty to act with reasonable diligence does not
require the use of offensive tactics or preclude the treating of all persons involved in the legal process with
courtesy and respect.

Pennsylvania
Rule 4.4. Respect for Rights of Third Persons.
(b)    A lawyer who receives a document, including electronically stored information, relating to the
representation of the lawyer’s client and knows or reasonably should know that the document, including
electronically stored information, was inadvertently sent shall promptly notify the sender.

Rule 8.5
(a)    Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary
authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in this
jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to
provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this
jurisdiction and another jurisdiction for the same conduct.
(b)   Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional
conduct to be applied shall be as follows:
 (1)  for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in
which the tribunal sits shall be applied, unless the rules of the tribunal provide otherwise; and

North Carolina
Rule 4.4 Respect for Rights of Third Persons
(b) A lawyer who receives a writing relating to the representation of the lawyer’s client and knows or
reasonably should know that the writing was inadvertently sent shall promptly notify the sender.
 
RPC 252. Opinion rules that a lawyer in receipt of materials that appear on their face to be subject to the attorney-
client privilege or otherwise confidential, which were inadvertently sent to the lawyer by the opposing party or
opposing counsel, should refrain from examining the materials and return them to the sender.

Rule 8.5
(a) Disciplinary Authority. A lawyer admitted to practice in North Carolina is subject to the disciplinary
authority of North Carolina, regardless of where the lawyer's conduct occurs. A lawyer not admitted in North
Carolina is also subject to the disciplinary authority of North Carolina if the lawyer renders or offers to render
any legal services in North Carolina. A lawyer may be subject to the disciplinary authority of both North
Carolina and another jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of North Carolina, the rules of professional
conduct to be applied shall be as follows:
 (1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in
which the tribunal sits, unless the rules of the tribunal provide otherwise; and . . .

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The Legal Framework of Lawyers’ Ethics & Discipline
RLC, Chapter 3, Section B, pp. 110-114 & 119-121; Chapter 15, Section A; Section B pp. 931-935; Section C pp.
944-950 (not including questions on p. 950)
ABA MR 8.3, 8.4 & 8.5A

TAKEAWAYS
- Model rules don’t control
- Every state has its own set of rules regulating lawyers’ conduct (and fed courts have different ones)
- Because lawyers practice in lots of states and for people who live in different places, and on matters that affect people in lots
of states, issues of jurisdiction and C of L arise
- Rule 8.5(a) covers jurisdiction (which state has authority to discipline? Could be more than one)
- Rule 8.5(b) covers C of L (Whose rules apply?)
- Lawyers’ disciplinary self regulation includes duty to report other lawyers – Rule 8.3
- Bar sanctions are intended not to punish lawyers or retribute wrongs but to protect the public – clients and administration of
justice- and lawyers’ professional reputation
- Disciplinary enforcement is spotty and irrational

A. Historical Background of Ethical Codes

1906 Report - Roosevelt

- ‘Here in America … the lawyer is and must ever be the high priest at the shrine of justice’
- ‘…the shyster, the barratrously inclined, the ambulance chaser, the member of the Bar with a system of runners
pursue their nefarious methods…’
- historical context on quote
• many immigrants coming to US, no established clients and connections
• people would ‘chase after clients’
• US born prominent attorneys were saying these immigrant lawyers are the ethical problems and were dragging
down reputation of the bar

History
- Progression of Rules
• Canons of Professional Ethics
• Code of Professional Responsibility
• Model Rules of Professional Responsibility

the old “Ethical Considerations” (EC)

EC 2-27 History is replete with instances of distinguished and sacrificial service by lawyers who have
represented unpopular clients and causes. Regardless of his personal feelings, a lawyer should not decline
representation because a client or a cause is unpopular or community reaction is adverse.
EC 2-28 The personal preference of a layer to avoid adversary alignment against judges, other lawyers,
public officials, or influential members of the community does not justify his rejection of tendered
employment

The current rule:

ABA MR 6.2: A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for
good cause.
Comment: A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards
as repugnant.

B. What is a Code of Ethics For?

- code contradicts notion of ethics itself - persons are autonomous moral agents
- purpose of code of ethics - increase probability that people will behave in some ways rather than others
• give a person a reason sometimes to act in one way rather than another
• we need code for situations that are not clear
- code of ethics can force people’s consciousness descriptions of what they are doing that will render at least those typical
sensibilities uncomfortable
- code can affect both their motivation to act and the nature of their acts
- not only prohibits certain conduct but also publicly avows our rejection of it
- functions as means to say ‘I could be disbarred for that’ in unethical situation
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Wieder v. Skala
- Facts: Wieder asked associate in firm to represent him in purchase of condo. LL dropped the ball and lied to cover it up.
Wieder reported this to partners at firm who said LL was pathological LL. Wieder insisted they report LL to bar’s
disciplinary authorities. Firm eventually and reluctantly did so, but also fired Wieder
- Wieder sued for breach of Contract
- Court Held: π stated valid claim for breach of K based on implied-in-law obligation in his relationship with ∆s
- Analysis
• implied understanding b/w associate and firm that both associate and firm in conducting the practice will do so in
accordance of ethical standards of the profession
- firm breached this implied element

Bohatch v. Butler & Binion, et al.

- Facts: Partner Bohatch reported that managing partner was over billing, firm investigated but said wasn’t the case.
Bohatch thought it was a coverup. Eventually informed her she should seek other employment, then partnership draw
was reduced, and then her partnership was terminated.
• Bohatch’s argument
- violation of PP and legal ethics - a partnership must retain a whistleblower partner
- permitting firm to retaliate against partner who in good faith reports suspected overfilling would discourage
compliance with rules of professional conduct and thereby hurt clients
- Court Held firm did not owe Bohatch a duty not to expel her for reporting suspected overfilling by another partner
• partnership exists solely b/c partners choose to place personal confidence and trust in one another
• Takeaway: can exclude people since you don’t have to be forced to be partners with people they do not want to be
partners with

Distinguished Wieder from Bohatch

• Weider - duty to client
• Bohatch - at will employee in partnership, can’t force people to be partners with people they don’t want to be
partners with

C. Disciplinary Authority

- Jurisdiction = “disciplinary authority,” i.e., power to bring to court; what state’s court has power to decide
whether lawyer has violated professional responsibility?
• about Jurisdiction - state bar where lawyer is licensed to practice, and generally a state where you are practicing
whether or not you are barred there
(1) relates back to Choice of Law discussion from last week

ABA MR 8.5(a)
Disciplinary authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary
authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in this
jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to
provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both
this jurisdiction and another jurisdiction for the same conduct.

D. Duty to Report Misconduct

• self-regulation necessarily includes lawyers reporting other lawyers - but is this really true?
• except in really bad situations, it may be difficult to uncover ethical violations
• no obligation to report just any violation - but must report violation that raise substantial question regrind lawyer’s
honesty, trustworthiness or fitness of lawyer

Rule 8.3 Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that
raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects,
shall inform the appropriate professional authority.
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained
by a lawyer or judge while participating in an approved lawyers assistance program.

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E. Sanctions
 
1. ABA Standards
• see Rule 11 under next section

“The purpose of lawyer discipline and disability proceedings is to maintain appropriate standards of
professional conduct in order to protect the public and the administration of justice from lawyers who have
demonstrated by their conduct that they are unable or are likely to be unable to properly discharge their
professional duties.”

a) Three Main Functions of Bar Sanctions

(1) Protect Public - past, present, future clients
(2) Protect the Administration of Justice
(3) Protect Public Confidence in Lawyers

b) Compare with Rationales for Criminal Punishment

(1) Incapacitate
(2) Deter
(3) Rehabilitate
(4) Reattribute

2. Problems - point is if you are serious about protecting the public, the bar sanctions don’t reflect that but
instead reflect importance of protecting reputation and elite standing of lawyers from public view
a) Holloway - held subject to discipline b/c he deceived clients, failed to promptly deliver unearned fees
and other funds rightfully belonging to client, neglected clients’ case and abused clients’ trust
(1) Result: 45 day suspension
b) Moore - subject to discipline b/c knew marijuana growing on his premises and failed to destroy the
plants
(1) Result: disbarment - was acting illegally
c) Perkins and Fortenberry: - Perkins was partner and to avoid turning over documents during discovery
liked he destroyed them. Fortenberry was present at depo, he remained Perkins docs weren’t
destroyed but remained silent when partner

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Adversarial Ethics
RLC, Chapter 4, Section D pp. 154-159; Section F pp. 201-214; 228-233
ABA MR 3.1, 3.2
 
A. Justifying the Adversarial System
• search for truth
• protect rights
• public ritual of legitimacy

“The advocate plays his role well when zeal for his client’s cause promotes a wise and informed decision of the case. He
plays his role badly . . . when his desire to win leads him to muddy the headwaters of decision, when, instead of lending
a needed perspective to the controversy, he distorts and obscures its true nature.”

B. Limiting the Adversarial System: Rules 3.1 &3.2, and Fed.R.Civ.Pro 11

ABA Model Rule 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.

ABA Model Rule 3.2

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

Fed. R. Civ. Pro. 11

• Rule 11 was amended in the 80s to cut down on abuses of the adversarial system
• Amended again in the 90s because too many people were filing Rule 11 motions à “safe-harboring.” Sanctions
involved, so it became another tool for people to threaten their adversary with

Fed. R. Civ. Pro. 11

(b) By presenting to the court a pleading, written motion, or other paper—whether by signing, filing,
submitting, or later advocating it—an attorney . . . certifies that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are
reasonably based on belief or a lack of information.
(c)(2) . . . The motion must be served under Rule 5, but it must not be filed or be presented to the court if the
challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days
after service or within another time the court sets.

1993 Advisory Committee Notes – Rule 11

Arguments for extensions, modifications, or reversals of existing law or for creation of new law do not violate
subdivision b(2) provided they are “nonfrivolous.” This establishes an objective standard, intended to
eliminate any “empty-head pure-heart” justification for patently frivolous arguments.

1. Sanctions under Rule 11

• Sanctions are discretionary if motion is filed by opposing party.

Fed. R. C. Pro. 26(g)(1)

. . . By signing, an attorney or party certifies that to the best of the person's knowledge, information,
and belief formed after a reasonable inquiry:
(A) with respect to a disclosure, it is complete and correct as of the time it is made; and
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing law, or for establishing
new law;

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 (ii) not interposed for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive, considering the
needs of the case, prior discovery in the case, the amount in controversy, and the
importance of the issues at stake in the action.

Fed. R. C. Pro. 26(g)(3)

If a certification violates this rule without substantial justification, the court, on motion or on its own,
must impose an appropriate sanction on the signer, the party on whose behalf the signer was
acting, or both. The sanction may include an order to pay the reasonable expenses, including
attorney's fees, caused by the violation.

Problem 8 on pg. 201

- Deny the claims, even though you know the case law says that building code violations are not a good reason to withhold
rent. You want to delay this so your client can save up enough money to pay the back rent We were assigned to position
of the landlord’s attorney)
- the law is clear (11(b)(2)); no basis to expand existing law; frivolous; this is black-letter law
• Only reason is to cause unnecessary delay
- Not a clear answer: plaintiff would say that this is not a frivolous lawsuit because the law has not caught up with the
times. This is a common law system and the law needs to change.

D. Zealous representation or Harassment?

Lee v. American Eagle Airlines

Facts: Trash-talking attorney; judge lowers attorney’s fees and atty sanctioned for $300. Also laughed at the
judge’s ruling.No accusations of intimidation or lying. This is just his style.
• This is a racial discrimination case in the big picture. One of the ways that the attorney would boost the
morale of the client, who has been discriminated against, would be to show that he has his back.
• f it is out in the open in court, it is probably ethical. Stupid, but ethical.
• The phone call would be unethical because it was intimidation and was behind closed doors.

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Alternatives to Neutral Partisanship - I
RLC, Chapter 4, Section E pp. Sect. E pp.177-182, 191-201
 
A. Introduction

Neutrality = detached from the client’s ends

Partisanship= work aggressively for client’s ends

Neutral Partisanship - detached from the client’s ends and work aggressively for client’s ends

- Representation -- in representing someone else, some people think that who the lawyer is should/does "go away”
• Transparent representation -- the idea of the amoral lawyer (doesn't really exists)
• If you represent a person whose morality you find disturbing, you do it by finding another reason why representing him
is ethically acceptable
 
3 ways of representing clients
(1) The amoral lawyer -- lawyer has no moral responsibility whatsoever for representing a particular client or for the
lawful means used or the ends achieved for the client
(2) Moral control of the client - lawyer can impose his moral views on client by controlling both the goals pursued
and the means used during the representation
(3) Choice of client as a moral decision - client is entitled to make important decisions about client’s goals and
lawful means to pursue them
- lawyer has broadest power - ethically and in practice - to decide which clients to represent
- lawyer’s decision to accept or reject a particular client is a moral decision, and one which lawyer can properly
be held morally accountable for

B. DOMA Case
- Solicitor general has jurisdictional power to decide if the govt will appeal a case when it loses somewhere in the court
system
- Solicitor general is appointed by president, confirmed by senate, and they must defend against constitutional challenges
to federal statutes
- Vary rarely, the govt will acquiesce and not defend the constitutionality of the statute, and the DOMA statute was one
such time
• DOMA -- govt didn't recognize state same-sex marriages.
- Obama administration's SG didn't defend the statute, so republican members of congress went to private firms to get a
lawyer to defend the statute. The firm agrees to defend the statute
- Poor publicity for the firm, the firm withdraws, and the selected attorney resigns

MR 1.16 involves declining, terminating, withdrawing from representation

• The firm withdrawing doesn't seem to violate the rule [(b)(1),(7)]
• The rule is disjunctive --- it is not a requirement that (b)(1) the client not be materially adversely affected.
- Either the client won't be harmed, or you have to have one of these good causes
- much discretion for the lawyer, especially when (7) is a catch-all
• The firm's action still seems unethical, though
- they wouldn't have closed their business down -- in fact they lost some clients for withdrawing

Representation and “Group Identity”

• Do you have a special ethical duty to clients that are of the same demographic/minority status as you are?
(black, women, etc.)?
- you have to abide by such a duty because the duty does exist.
- people experience a lot of conflict around this, and the need to rationalize these situations.

C. Rule 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;

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 (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 . . . .

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Alternatives to Neutral Partisanship - II
Gabriel Chin, Do You Really Want a Lawyer Who Doesn’t Want You? TWEN;
Chris K. Iijima, When Fiction Intrudes Upon Reality: A Brief Reply to Professor Chin, TWEN;
Memo of the ABA Standing Committee on Ethics and Professional Responsibility: Draft Proposal to Amend Model
Rule 8.4, TWEN
 
A. Discrimination in Client Selection
• example: lawyer that refused to represent man, known for and only wanted to represent women in divorce
proceedings
- was found to violate law that prohibits discriminating on basis of gender in public services

Chin Article: Do You Really Want a Lawyer Who Doesn’t Want You?
Lawyers should be permitted to reject clients based on race, gender etc. because:
1. No intelligent client wants a lawyer that doesn’t want him
2. The relationship between a client and lawyer is special – privileged, confidential, fiduciary – demands single-
minded loyalty
3. Lawyers aren’t “public accomodations” like lunch counters or bowling alleys.
- public accommodations law - civil rights laws that affect how private property owners can exclude others
from their property
4. Rules forbidding such discrimination violate lawyers’ first amendment rights. “Lawyers should have the right
to use their lives for their private interests. . . . People should have the right to choose to become political
lawyers.”
5. issues with zealous representation if person does not want to represent you
6. lawyer could turn away client for non-biased reason
7. A rule that lawyers cannot decline to represent clients based on race or gender “will have paradoxical
consequences.”

“Every lawyer has friends or classmates who went to law school because they wanted to help people who have
historically been subordinated by law or who have had unequal access to the legal system . . . . Lawyers and
public interest law firms dedicated to the needs of women, members of particular races, or natives of particular
countries . . . Will be sitting ducks for prosecution.”

Iijima Response to Chin: When Fiction Intrudes Upon Reality: A Brief Reply to Professor Chin
3. Pragmatic Point - Chin’s article rests a lot on idea that if lawyer rejects you that you can get another lawyer
a) assumes everyone has access to a lot of lawyers, if you can afford one you can afford another
b) if you are in a small town or isolated area, maybe not so easy to go get another lawyer
c) lawyers part of agencies have no choice
4. Hypocrisy Point
a) after all, lawyers often credit themselves with legal eradication of racial discrimination
b) an institution and profession that would enforce society’s decision to ban invidious discrimination but
consciously exempt itself from that ban neither fosters nor deserves the public trust

B. Current ABA Rule 8.4

- rule does not mention attorney discrimination, but comment does
- about 20 states have rules that mention discrimination

It is professional misconduct for a lawyer to:

. . . (d) engage in conduct that is prejudicial to the administration of justice;

Current ABA MR 8.4 Comment 3

A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or
prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic
status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate
advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge's finding that
peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this
rule.

C. Proposed ABA Rule 8.4 Amendment

- Rationale for getting comment incorporated into rule
• comments do not add obligations to rules, just provide help interpreting the rules

• not everyone reads comments

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Proposed ABA Rule 8.4 Amendment (July report)
It is professional misconduct for a lawyer to:
***
(g) knowingly harass or discriminate against persons, on the basis of race, sex, religion, national origin, ethnicity,
disability, age, sexual orientation, gender identity, marital status or socioeconomic status, while engaged [in
conduct related to] [in] the practice of law.

Proposed comment (July report)

Conduct that violates paragraph (g) undermines confidence in the legal profession and our legal system
and is contrary to the fundamental principle that all people are created equal. A lawyer may not engage
in such conduct through the acts of another. See Rule 8.4(a). Legitimate advocacy respecting any of
these factors when they are at issue in a representation does not violate paragraph (g). It is not a
violation of paragraph (g) for lawyers to limit their practices to clients from underserved populations as
defined by any of these factors, or for lawyers to decline to represent clients who cannot pay for their
services. . . .

Proposed amendment to ABA MR 8.4(December 2015 report)

It is professional misconduct for a lawyer to:

(g) in conduct related to practice of law, harass, or knowingly discriminate against persons on basis of race,
sex, religion, national origin, ethnicity, disability, age sexual orientation, gender identity, marital status, or
socioeconomic status

Proposed comment (Dec report)

[3] Paragraph (g) applies to conduct related to a lawyer’s practice of law, including the operation and
management of a law firm or law practice. It does not apply to conduct unrelated to the practice of law or
conduct protected by the First Amendment. Harassment or discrimination that violates paragraph (g)
undermines confidence in the legal profession and our legal system. Paragraph (g) does not prohibit lawyers
from referring to any particular status or group when such references are material and relevant to factual or
legal issues or arguments in a representation. Although lawyers should be mindful of their professional
obligations under Rule 6.1 to provide legal services to those unable to pay, as well as the obligations
attendant to accepting a court appointment under Rule 6.2, a lawyer is usually not required to represent any
specific person or entity. Paragraph (g) does not alter the circumstances stated in Rule 1.16 under which a
lawyer is required or permitted to withdraw from or decline to accept a representation. 


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Ethics and Organizations
RLC, Chapter 7, Section C pp. 412-418; Section A pp. 385-394,Section C pp. 426-432
ABA MR 1.6, 1.13, 5.1

A. Clash between Ethics and Ethics of Corporate Management

5. example of accountant living by the code and the idea that you have professional ethic apart from doing what is
commercially best
a) accountant fired b/c blew horn on slush found
(1) corporate officers thought unusual b/c it was not his problem - shouldn’t have gone above his boss
6. lawyer with client as corporation is example where tension manifests and how you balance legal vs. corporate
management ethics

B. Organizational Clients

1. Ford recall scandal

a) Facts: Ford made small cheap car called Pinto, and to keep production price down, Ford put gas tank in
rear of vehicle. Engineers determined doing so would cause car to explode if car impacted at low rates
of speed, but despite this and small cost of moving gas tank, Ford left gas tank where it was and
resulted in lots of deaths when cars exploded.
b) How would attorney address?
(1) under legal ethics rules, if you believe situation is bad enough, is tell person higher up in corporation
who can fix
c) Here - if you think exploding tank reasonably certain to result in substantial injury, then can violate 1.13
or Rule 1.6

2. Consider when confronted with such an issue:

a) costs and benefits, and if route is best decision

Rule 1.13 - Organization as Client

(a) lawyer employed or retained by organization represents the organization acting through its
duly authorized constituents
(b) If a lawyer for an organization knows that an officer, employee or other person associated with
the organization 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 likely to result in substantial injury to the
organization, then the lawyer shall proceed as is reasonably necessary in the best interest of
the organization. Unless the lawyer reasonably believes that it is not necessary in the best
interest of the organization 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
i) 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
ii) 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.
- 1.13 does NOT cover lawyer’s duty to find out more

b) if Rule 1.13 does not prevail, then you can violate Rule 1.6 Confidentiality
Rule 1.6: Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the client
gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the
lawyer reasonably believes necessary:
i) to prevent reasonably certain death or substantial bodily harm;

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 ii) to prevent the client from committing a crime or fraud that is reasonably certain to
result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer's services;
iii) to prevent, mitigate or rectify substantial injury to the financial interests or property of
another that is reasonably certain to result or has resulted from the client's commission
of a crime or fraud in furtherance of which the client has used the lawyer's services;
iv) to secure legal advice about the lawyer's compliance with these Rules;
• states differ on triggers for confidentiality to be broken
- some states change may from Federal Rule to a must

C. Supervisory and Subordinary Lawyers

• 5.2 (a) -  a lawyer is bound by Rules notwithstanding that lawyer acted at direction of another
• 5.2 (b) - a subordinate lawyer does not violate Rules if lawyer acts in accordance with supervisory lawyer’s
reasonable resolution of an arguable question of professional duty
- MEANING if matter is a gray area, to not be legally responsible and in violation of Rules you have to ask
supervisory lawyer’s opinion for reasonable resolution

1. Rule 5.1 Responsibilities of a Partner or Supervising Lawyer

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

2. Rule 5.2 Responsibilities Of A Subordinate Lawyer

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction
of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with
a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

- ABA MRs - allocation of responsibility b/w supervisors and subordinates in Rule 5.1 ‘Responsibilities of
Partner or Supervisory Lawyer’ and Rule 5.2 “Responsibilities of a Subordinate Lawyer
• 5.1(c) - supervisory lawyers accountable for subordinates’ disciplinary violations either when:
- supervisory lawyer orders or ratifies conduct, or
- when supervisory lawyer knows of conduct but fails to take reasonable remedial action
• 5.1(b) - supervisory lawyer should make reasonable efforts to ensure subordinates conform to rules of
professional conduct
- COMMENTS
- i.e. up to partner to ensure you act ethically
- setting of this rule reinforces the authority hierarchy
• 5.1(a) - partners in law firm responsible for ensuring firm's policies give 'reasonable assurance all lawyers in firm
conform to rules of professional conduct’

- Individual accountability of subordinate lawyers

• 5.2(a) - lawyer bound by rules of professional conduct notwithstanding lawyer acted at direction of another
person, i.e. you are responsible for you no matter who tells you what to do something
• 5.2(b) - subordinate lawyer does not violates rules if lawyer acts in accordance with supervisory lawyer's
reasonable resolution of arguable question of professional duty
- problem - pressures on subordinate lawyers may lead them to misjudge when a question of professional
duty is arguable and when the supervisor’s resolution of it is reasonable
- rule ignores the cognitive dissonance that cognitive lawyers experience
- structure of ethical rules extremely unhelpful and reinforces authority hierarchy

- other professions do not provide comparable ‘superior orders' defense

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GM Spares Its Top Lawyer but Not Those Below Him (NYT 6/5/2014)
NEW YORK — Lawyers at General Motors Co came under withering criticism in an internal company report on Thursday
and at least two of them were fired, but the company’s general counsel, a key adviser to CEO Mary Barra, was expressly
asked by the board to keep his post.

Black and Reed

1. attorneys at chemical corporation
2. Black receives call from plant manager (one of corporation’s locations) - was told by fire department to install dikes to reinforce
tanks that stored chemicals to ensure safety of chemicals in event of a fire (i.e. told to comply with legal regulation)
a) plant manager asked Black whether there is way around this requirement (bribery)
b) manager laughs it off
c) Black finds out dikes never built, no action by fire authority to enforce, plant manager always is around the bush
whenever Black talks to manager
(1) leads Black to suspect bribery did actually happen
3. Reed receives call from former employee about pension payment issues, threatened that unless issue resolved he would go tell
Feds that pesticides buried on land of plant that company recently sold
a) if pesticides really there, you are not complying with law and this is legal issue
b) Reed went to try and get former employees file, superior told him it was lost
(1) Reed went to his boss to discuss buying site back to make right of situation
c) but then asking price of site tripled, gradually Reed felt excluded from discussions about problem
(1) problem seemed to disappear overnight
(2) eventually Reed assigned to other cases and knew issue was deemed closed
4. What MUST you do?
a) report to higher up
(1) 1.13 (b) - shall refer matter to higher authority if lawyer knows someone is violating the law, BUT unless he
believes it is not necessary or in best interest
(2) can’t whistle blow until he has exhausted all of his options under 1.13(d)
5. What MAY he do
a) can report out if he has ‘knowledge’ - look at rule 1 to see definition of knowledge which is ‘actual knowledge’
b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes
necessary:
(1) to prevent reasonably certain death or substantial bodily harm; What you MUST do?


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Behavioral Ethics – I Bystanding and Upstanding
RLC, Chapter 7, Section C pp. 434-444; Martha Minow, Upstanders, Whistle-Blowers, and Rescuers, TWEN
 
A. Models of Ethical Collapse
• authority
- in all three essays, the settings involve a ‘looking up’ to a person and being ethically challenged
- doing something according to authority is the make or break moment to be included or be outcasted

C.S. Lewis, “The Inner Ring” in They Asked for a Paper: Papers and Addresses (1962)
c) almost certain at least 2 or 3 of us before we die will become something like a scoundrel - unscrupulous,
treacherous, ruthless egotists
d) choice which can lead to scoundrelism will not initially present itself in any dramatic way
(1) bad men almost certainly won’t appear
(2) it’ll happen over some routine interaction, you’ll get the hint of something not in accordance with
technical rules of fair play, which which the public wouldn’t understand
(a) something even outsiders in your own profession will fuss about
(b) will be phrased as something ‘we always do’
(c) you’ll get drawn in b/c you want to be accepted into this inner circle and not be cast into the cold outer
world
i) you don’t want to disappoint the person you look up to and be rejected by them
(3) if you are drawn in, next week it will be something a little further from the rules, then next year something
further still but still in a friendly spirit
e) it may end in a crash or millions or an award from our old school, but you will still be a scoundrel
f) TAKEAWAY
(1) you can either listen to your own internal voice, or after ignoring it for awhile you stop to hear it
(2) cause of ethical collapse - desire for connection instead of feeling of alienation
(a) creates vulnerability to making choices in order for you to “make the connection”
(b) becomes more important than abstract rule you read

Patrick J. Schiltz, “On Being a Happy, Healthy and Ethical Member of an Unhappy, Unhealthy,
and Unethical Profession” (1999)
a) you’ll start acting unethically with your time sheets
b) it will become easier and easier to take little loans against future work
(1) after awhile, you’ll stop paying back the little loans
c) you’ll then pad more and more - continuing to rationalize your dishonesty to yourself until one day you don’t
even do that
(1) before long you will be stealing from your clients almost every day, and you won’t even notice it
d) after a couple of years, you won’t even notice you are lying and cheating and stealing every day that you
practice law
(1) you will be making dozens of quick, instinctive decisions, but instead of reflecting notions of right and wrong by
which you conduct your personal life, will reflect the set of values you conduct your professional life - values
that embody what is profitable and what you can get away with
e) TAKEAWAY
(1) fast paced thinking - now you don't really think about, but down the road you regret it
(2) slow thinking - involves more of a rational thought choice
(3) cause of ethical collapse - slippery slope (once you do this, easier to do that)
(4) tone sort of annoying, kinda preachy

David Luban, “The Ethics of Wrongful Obedience” in Ethics in Practice: Lawyers’ Roles,
Responsibilities and Regulation (Deborah L. Rhode, ed) (2001)
a) best example of wrongful obedience by lawyers was Berkey-Kodak antitrust litigation in 1977
(1) Perkins an admired senior litigator, lost it - lied to conceal documents from discovery and then perjured himself
to cover up the lie
(a) he eventually owned up and resigned from firm and went to prison for a month
(2) Fortenberry, the associate working for Perkins, knew he perjured himself but kept silent
(a) kept thinking must be a reason guy lied - he was his boss and a great guy
b) range of explanations here - p. 436
(1) appeal to hierarchy - guy was his boss
(2) personal loyalty - guy was great guy
(3) helplessness - no clue what to do
(4) couldn’t believe it - kept thinking there must be a reason
(5) like cognitive dissonance - Fortenberry's own ethical judgment was undermined by the situation he
found himself in
(a) what’s likely to cave is your own judgment about right and wrong
(b) more likely to rationalize behavior of someone you respect than say that the person you respect is acting
wrong
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 c) neither attorney received explicit order to break rules, but sometimes lawyers do
(1) 5.2(a) - denies defense of superior orders to subordinate lawyer ordered to behave unethically
(2) 5.2(b) subordinate may defer to ‘supervisory lawyers reasonable resolution of arguable question of professional
duty’
(3) problem - pressures on subordinate lawyers may lead them to misjudge when a question of professional duty
is arguable and when the supervisor’s resolution of it is reasonable
(a) nothing reasonable about perjury
d) what we can learn from wrongful obedience from Milgram’s experiments at Yale
(1) Experiment shows:
(a) in right circumstances we are prone to destructive obedience
(b) we don’t believe this about ourselves or about our neighbors - nor do we condone it
(c) we believe three things about ourselves:
i) we disapprove of destructive obedience
ii) we think we would never engage in it
iii) we are wrong to think we would never engage in it
(2) places moral norms in conflict
(a) performance principle: norm of obeying authority, coupled with norm of doing your job
(b) no-harm principle: prohibition on torturing, harming and killing innocent people
(c) what we think in abstract is dead wrong
(3) slippery slope character of electrical shocks
(a) to conclude administering 330 volt shock would be wrong is to admit that the 315 volt shock was probably
wrong, and perhaps all shocks were wrong
(4) cognitive dissonance theory - when our actions conflict with our self-concept, our beliefs and attitudes
change until conflict is removed
(a) what’s likely to cave is your own judgment about right and wrong
(b) more likely to rationalize behavior of someone you respect than say that the person you respect is acting
wrong
(5) moral decision making requires good judgment - knowing which actions violates a moral principles and
which do not
(a) knowing rule of law and being able to apply it to particular cases
(b) need good judgment to know at what point electrical shocks violate no-harm principle
e) corruption of judgment explanation of Milgram experiments
(1) every litigation associate goes through rite of passage
(a) after awhile, line between zealous advocacy and deception becomes blurred
(b) like any other piece of elastic, the no-deception principle loses its grip if it is stretched too far

B. Subordinate and Supervising Attorneys

1. Rule 5.1 Responsibilities of a Partner or Supervising Lawyer

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

2. Rule 5.2 Responsibilities Of A Subordinate Lawyer

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction
of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with
a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

- ABA MRs - allocation of responsibility b/w supervisors and subordinates in Rule 5.1 ‘Responsibilities of
Partner or Supervisory Lawyer’ and Rule 5.2 “Responsibilities of a Subordinate Lawyer
• 5.1(c) - supervisory lawyers accountable for subordinates’ disciplinary violations either when:
- supervisory lawyer orders or ratifies conduct, or
- when supervisory lawyer knows of conduct but fails to take reasonable remedial action
• 5.1(b) - supervisory lawyer should make reasonable efforts to ensure subordinates conform to rules of
professional conduct
- COMMENTS
- i.e. up to partner to ensure you act ethically
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 - setting of this rule reinforces the authority hierarchy
• 5.1(a) - partners in law firm responsible for ensuring firm's policies give 'reasonable assurance all lawyers in firm
conform to rules of professional conduct’

- Individual accountability of subordinate lawyers

• 5.2(a) - lawyer bound by rules of professional conduct notwithstanding lawyer acted at direction of another
person, i.e. you are responsible for you no matter who tells you what to do something
• 5.2(b) - subordinate lawyer does not violates rules if lawyer acts in accordance with supervisory lawyer's
reasonable resolution of arguable question of professional duty
- problem - pressures on subordinate lawyers may lead them to misjudge when a question of professional
duty is arguable and when the supervisor’s resolution of it is reasonable
- rule ignores the cognitive dissonance that cognitive lawyers experience
- structure of ethical rules extremely unhelpful and reinforces authority hierarchy

- other professions do not provide comparable ‘superior orders' defense

C. Bystanders and Upstanders

Martha Minow, Upstanders, Whistle-Blowers, and Rescuers

TAKEAWAYS
• by naming something, is step towards creating it
• need to create culture for people to come forward and foster upstanding rather than bystanding

Summary
• Bystander: person who is near but does not take part in what is happening
- BUT lack English word for opposite of a bystander
• Upstander - recognition and approval to people who stand up for their beliefs, even if they are alone, i.e. not
being a bystanders
- maybe by naming opposite of bystander, concept can become a practice

Reasons for Bystanding

6. Passivity is easier than Action
a) people attribute more regret to action than to inaction
b) common human response is inaction
7. Peer Pressure
a) conformity and peer pressure reinforce inaction
8. Fear
a) fear for safety or reputation of oneself or others
b) in workplace, fear of retaliation and job loss why workers do not report own and others injuries or
illnesses
9. Denial
a) people surprisingly do not see or can deny atrocities and suffering
b) Cohen discussed in book how people live in communities and societies that engage in widespread
denial, making it easy for individuals to turn a blind eye
10. Being Overwhelmed
a) people secure in own safety fail to respond to atrocities b/c they fear being overwhelmed or having to
give up all their life for uncertain goal of redressing the horror
b) compassion fatigue - diminished ability to feel or respond in face of images of suffering
c) distance
11. Diffused Responsibility
a) when others could respond, why should i?
b) when many others are present the onlooker is less likely to help
12. It Seems to Take Remarkable Individual Courage and Commitment - But This is Not Always the Case
a) narratives about heroes suggest extraordinary personal qualities
b) many of those who stand up do so more b/c of relationships and context than a sense of personal
courage or personal beliefs
13. slacktivism - people may click ‘like’ button rather than become engaged in political action

Upstanders May
• speak publicly against injustice
• be a whiten-blower who exposes wrongdoing w/ hope of stopping it
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 • resit temptation of silence and passivity by expressing and offering support to victims of injustice
• rescue individuals who are in danger - through secret or overt actions

Creating Cultures of Upstanding

• Shared practices to expose problems
• Signaling systems that involve group in problems individual detects
• Normalize identification and interruption
• Addressing fears, sources of denial, and feelings of being overwhelmed

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Prosecutorial Ethics
RLC, Chapter 6, Section D, pp. 345-355 (omit Problem 7), 365-367;
Rules and Articles at links posted on TWEN
ABA Model Rule 3.8   

A. Introduction
1. prosecutor’s have duty to seek justice
2. under ABA model rules, section F deals with comments to the press
a) Comment to Rule
(1) prosecutor is administrator of justice and not just an advocate
b) Preamble stresses zealous advocacy for client

B. Prosecutors in the Press

1. Rule 3.8. Special Responsibilities of a Prosecutor.
a) can make statements that serve legitimate law enforcement purpose
b) refrain from making comments that heighten likelihood of public condemnation of the accused
2. Articles on Prosecutors Statements to the Press
a) Freddie Gray
(1) Marylin Mosbey’s Statements
(a) said that they will adjudicate case
(b) recognized there were officers in her family
(c) also recognized need to find the truth
(2) Defense attorney’s statements to the cops
(a) talked about how prosecutor did not hand over discovery material that would have looked bad
for officers
(b)
b) Steven Avery - extreme example
(1) prefaced statement by saying ‘viewer discretion advised’
(2) confession broadcast by prosecutor - went into details of confession
(3) made it so presumption of guilt difficult to overcome during trial
(4) goes to heightening likelihood of public condemnation of the accused
(5) uniqueness of a confession

C. Grand Juries
1. Basic Grand Jury Facts
a) very one-sided
b) prosecution tells their story
(1) can subpoena documents and witnesses to appear
c) no defense lawyers challenging evidence or credibility
2. Articles
a) Prosecutor in Ferguson GJ knew some witnesses were lying
(1) let some witnesses testify even though their testimony was not accurate
(a) one lied, was not present, and known to make racist comments in past
(2) should he have corrected her if he knew her statement was false?
(3) what if the witness was offering exculpatory evidence that would help the ∆  out, does prosecutor
have to make that info available?
b) Ferguson: Shadow Trial
(1) special prosecutor used his release of material as shield to say he was doing the right thing
c) California article
(1) governor said state will ban use of GJ’s in police deadly force cases
(2) ethical issue:
(a) who are we seeking justice for? the defendant? the victim? or larger justice system?

D. Race in Prosecutions
1. Problem on page 354
a) Issue
(1) person comes to DA and says controller has given people a pass where he should have called
attention to financial misdealing
(2) former employee says by the way, the guy is a big cocaine user
(a) says reason he is telling DA is controller blocked promotion

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 (3) after investigation, you believe that the controller has knowingly ignored financial improprieties, but
no direct evidence he did it in exchange for campaign money
(4) controller is african american, and is first high elected minority in your community
(5) junior prosecutors say case involves discretion to prosecute, but said would make him look bad
b) Question - you are deciding whether or not to file charges, should prosecutor consider racial undertones
as reason not to go ahead

2. Kathleen Kane example of prosecutor determining whether to pursue charges with race as a factor
a) Facts
(1) office decided to not bring changes
(2) told press case flawed, but one reasons was b/c investigation was racially motivated - all officials
are african americans
(3) Philly DA’s office said they would take case
(a) DA is black man and moved forward with prosecution, got several guilty pleas off bat

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Criminal Defense
RLC, Chapter 6, pp. 300-305, 307-315
Listen to NPR podcast: Snap Judgment, Snap #630 Dirty Work – The Writing Is on the Wall
http://www.wnyc.org/story/writing-wall-snap-630-dirty-work/
(27 min)
 
A. Justifications for defense attorney’s zealous advocacy
3. truth - need to protect those who are factually and legally innocent
4. rights - right to affective assistance, and right to fair trail and representation
a) 5th and 6th Am
5. humanitarian aspect - in providing zealous defense of criminally accused, you protect the humanity of an
individual in society who would otherwise likely be dehumanized

B. Defense of Adversarial System

1. want to protect above justifications and ensure justice

C. Representing Someone you Believe is Guilty

1. even though you believe they are guilty, you are required to represent them as zealously as you would a client
you believed was innocent

D. Podcast - McCracken Poston’s defense of Alvin Ridley

1. how McCracken offered to represent Alvin may have made him more zealously advocate Alvin than another attorney would
have
2. surprising McCracken did not ask Alvin about rumors that were circulating around the town
a) maybe he did not want to know - did not want to know whether he was guilty or not b/c it would have impacted how
he represented Alvin

E. Perjury trilemma
A lawyer should:
1. Zealously advocate for her client (which requires her to learn the facts)
2. Keep client confidences
3. Expose perjury (to be truthful in the court)

F. Rule 3.3 Candor Toward the Tribunal

(a) A lawyer shall not knowingly:
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the
lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take
reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer
evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is
false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is
engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial
measures, including, if necessary, disclosure to the tribunal.

Rule 3.3
• What is the standard of knowledge?
• What does “knows” mean?
• Is the standard the same for all kinds of evidence – for client testimony and other witnesses? For physical
evidence?

Rule 1.0
(f) “Knowingly” “known,” or “knows” denotes actual knowledge of the fact in question. A person’s
knowledge may be inferred from circumstances.”

Monroe Freedman says:

The . . “actual knowledge” standard virtually never results in whistle-blowing by the lawyer unless the
lawyer is court-appointed and representing someone who is poor and, typically, a member of a minority
group.  . . . Consider . . . the Enron litigation, where two juries were able to decide, beyond a reasonable
doubt, that Ken Lay and Jeff Skilling were lying, but their lawyers couldn’t figure it out or, at least, didn’t
“know” it.

Steve Gillers asks:

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 Is Monroe's claim empirically true? . . . I know of no studies that purport to use a statistically reliable
sample to conclude that assigned lawyers "know" of client perjury disproportionately when compared to
retained lawyers. . . .Monroe's equal protection argument . . . depends on the correctness of his
empirical assumption.

Ellen Yaroshevsky adds

[Lawyers who disclose potential perjury] are not doing a very good job. . . . : “Judge, judge, my client is
going to lie, my client is going to lie,” rather than what a competent defense lawyer would do, which is
figure out a way to talk to that client, so that the client doesn't take the stand and commit perjury.

Three Questions
What must I do?
What may I do?
What should I do?

Problem 1(a) p. 314

May you, must you, should you call the sister as a witness?

A. Facts:
1. you represent ∆ accused of robbery
2. client claims was elsewhere on evening in question
a) first, indicates he was shopping at mall with two friends
(1) investigation reveals his friends were at sports event that night
b) then, client remembers he was at a part
(1) but alleged host does not recall having party
c) finally, recalls he was at movies with his sister
(1) sister confirms the story, but unable to provide further corroboration
3. case goes to trial
a) prosecution establishes robbery could have taken place after the movie
b) on cross, your client states that after the movie he went to the party that your previous investigation failed to confirm
(1) explains his failure to disclose this info during direct examination on group that party involved drugs and he did
not want to implicate his friends in criminal activities

B. What may you do? Duty to Put on Witness

1. 3.3(a)(3) - A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer
reasonably believes is false.
2. so he may refuse to call sister as witnesses he reasonably believes her alibi testimony is false
a) but comment says encourages putting her on unless it is obviously false
3. could not put sister on for strategic reasons - she may not be credible, may hurt client more than help
a) strategy development could also be way to avoid making hard ethical call yourself

C. What must you do?

1. 3.3(b) if his client’s sister testifies that she was at movie with her brother, and lawyer knows is is lying, he must take reasonable
remedial mesuareg including, if necessary disclosing this to the court


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Confidentiality and the Attorney-Client Privilege (I)
RLC, Chapter 5, Problem 1 pp. 235-236, Notes, pp. 237-238, Section A pp. 239-244 (exclude  Problem 2)
ABA MR 1.2, 1.6, 1.16, 3.3, 3.4
 
A. Confidentiality
• Under Model Rule 1.6 duty of confidentiality protects all “information relating to representation of a client” – i.e., not
only information communicated by the client, but information from any source
• Confidentiality is an ethical duty under the Model Rules
• Confidentiality is BROAD
• Under Rule 1.6, disclosure of confidential material is never mandatory
- Note that these are only model rules, so in some states disclosure IS mandatory
- very few jx have mandatory exceptions.

RULE 1.6: CONFIDENTIALITY OF INFORMATION

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives
informed consent, the disclosure is impliedly authorized in order to carry out the representation or the
disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably
believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial
injury to the financial interests or property of another and in furtherance of which the client has used or is
using the lawyer's services;

(3) to prevent, mitigate, or rectify substantial injury to the financial interest or property of another that is
reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance
of which the client has used the lawyer’s services

Rule 1.6, comment 12:

Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule
1.6 is a question of law beyond the scope of these Rules. When disclosure of information relating to the
representation appears to be required by other law, the lawyer must discuss the matter with the client to
the extent required by Rule 1.4. If, however, the other law supersedes this Rule and requires disclosure,
paragraph (b)(6) permits the lawyer to make such disclosures as are necessary to comply with the law.
- NY public health law requires that “anyone knowing of the death of a person without medical attendance
report the fact to the property authorities.”

Rule 1.6, comment 13

[13] A lawyer may be ordered to reveal information relating to the representation of a client by a court or by
another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent
informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all
nonfrivolous claims that the order is not authorized by other law or that the information sought is
protected against disclosure by the attorney-client privilege or other applicable law.

Rule 1.6, comment 16

Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to
accomplish one of the purposes specified.

PA Confidentiality Exceptions
(1)  to prevent reasonably certain death or substantial bodily harm;
(2)   to prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial
injury to the financial interests or property of another;
(3)   to prevent, mitigate or rectify the consequences of a client’s criminal or fraudulent act in the commission of
which the lawyer’s services are being or had been used; or
(4)  to establish a claim or defense on behalf of the lawyer in a controversy . . . .
(5)  to secure legal advice about the lawyer’s compliance with these Rules; or
(6)  to effectuate the sale of a law practice consistent with Rule 1.17; or
(7)  to detect and resolve conflicts of interest. . . .

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B. Confidentiality vs. Attorney Client Privilege
• Under Model Rule 1.6 duty of confidentiality protects all “information relating to representation of a client” – i.e., not
only information communicated by the client, but information from any source.
• The attorney-client privilege protects only confidential communications from a client, and only from disclosure to a
tribunal.
• Confidentiality is an ethical duty under the Model Rules
• Privilege is a rule of evidence
• Confidentiality is BROAD
• Privilege is NARROW

C. Additional Rule Sections

Model Rules Preamble

Comment 14: "The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to
the purposes of legal representation and of the law itself. "

Comment 16: "…The Rules do not, however, exhaust the moral and ethical considerations that should inform a
lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a
framework for the ethical practice of law."

1.2(d) “A lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or
fraudulent”

1.16 (a) (1) a lawyer . . . shall withdraw . . . if: (1) the representation will result in violation of the rules of professional
conduct or other law

D. Attorney-Client Privilege
• The attorney-client privilege protects only confidential communications from a client, and only from disclosure to a
tribunal.
• Privilege is a rule of evidence
• Privilege is NARROW

Rest. Section 68:

Attorney-client privilege protects ONLY
1. A communication
2. Made between privileged persons – i.e., client, prospective client, client’s lawyer or those persons agents
3. In confidence
4. For the purpose of obtaining or providing legal assistance to the client

What does this mean?

“Communication”
Can be in any form – including non-verbal (e.g., pointing, facial expressions, holding up fingers, photos, etc.)

But only the communication is covered – not the knowledge or information in the
communication if it is available elsewhere—e.g., in preexisting documents.

“Privileged persons”
When is a third party an unprivileged stranger and when is she a client’s “agent for communication”?
E.g., translator, friend client sends to lawyer with message

“In Confidence”
“A communication is in confidence . . . if, at the time and in the circumstances of the communication, the
communicating person reasonably believes that no one will learn the contents of the communication except
a privileged person . . . .”
Rest. Section 71

For the purpose of obtaining/providing legal assistance [Restatement Section 72]

. . . . If it is made to or to assist a person
1. Who is a lawyer or who the client reasonably believes to be a lawyer; and
2. Whom the client . . . Consults for the prupose of obtaining legal assistance.
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Rest. Section 69, comment g
“Courts have sometimes asserted that the . . . privilege categorically does not apply to such matters . . . .
Testimony about such matters normally does not reveal the content of communications from the client. . . . The
privilege applies if the testimony directly or by reasonable inference would reveal the content of a confidential
communication.”

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Confidentiality and the Attorney-Client Privilege (II)
RLC, Chapter 5, Sections C 1 & 2 pp. 250-257, & Section E pp. 273-280
  
A. Confidentiality
- Under Model Rule 1.6 duty of confidentiality protects all “information relating to representation of a client” – i.e., not
only information communicated by the client, but information from any source.
- Confidentiality is an ethical duty under the Model Rules
- Confidentiality is BROAD

RULE 1.6: CONFIDENTIALITY OF INFORMATION

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives
informed consent, the disclosure is impliedly authorized in order to carry out the representation or the
disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably
believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial
injury to the financial interests or property of another and in furtherance of which the client has used or is
using the lawyer's services;

(3) to prevent, mitigate, or rectify substantial injury to the financial interest or property of another that is
reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance
of which the client has used the lawyer’s services

PA Confidentiality Exceptions
(1)  to prevent reasonably certain death or substantial bodily harm;
(2)   to prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial
injury to the financial interests or property of another;
(3)   to prevent, mitigate or rectify the consequences of a client’s criminal or fraudulent act in the commission of
which the lawyer’s services are being or had been used; or
(4)  to establish a claim or defense on behalf of the lawyer in a controversy . . . .
(5)  to secure legal advice about the lawyer’s compliance with these Rules; or
(6)  to effectuate the sale of a law practice consistent with Rule 1.17; or
(7)  to detect and resolve conflicts of interest. . . .

Spaulding Case (Supreme Ct of Minnesota, 1962)

a) Facts
(1) Spalding in crash with Zimmerman, dad brought action against driver. π’s doctors said his heart
was fine, but ∆ doctors noticed problem with his heart. During settlement, ∆ attorneys never
disclosed this to π counsel. Later army discover π had heart condition. Lower court vacated
previous jj

b) Rationale for Undoing the Settlement

(1) also relevant - Rule 3.3: (b) A lawyer who represents a client in an adjudicative proceeding and who
knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent
conduct related to the proceeding shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal.

c) Takeaway

(1) rules themselves don’t account for circumstances

(2) rules don’t exhaust the moral problem

B. Privilege
• Privilege
- The attorney-client privilege protects only confidential communications from a client, and only from disclosure to a
tribunal.
- Privilege is a rule of evidence
- Privilege is NARROW

Rest. Section 68:

Attorney-client privilege protects ONLY
1. A communication
2. Made between privileged persons – i.e., client, prospective client, client’s lawyer or those persons agents
3. In confidence
4. For the purpose of obtaining or providing legal assistance to the client

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1. Crime Fraud Exception to Privilege
- Client’s intent to commit act creates exception – even if client doesn’t believe act is crime/fraud or decides
after asking advice to commit
- Client’s intent counts, not lawyer’s – exception even if lawyer has no knowledge
- Exception applies only to communications in furtherance of crime/fraud: discussion of ongoing or future
crimes/frauds typically unprotected, talk about past misconduct usually protected
- Baseline is time of communication, not time when privilege asserted

Rest Section 82: The attorney-client privilege does not apply to a communication occurring when a
client:
(a) consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime
or fraud . . .or
(b) Regardless of the client’s purpose at the time of consultation, uses the lawyer’s advise or other
services to engage in or assist a crime or fraud

What does this mean?

“In furtherance of . . .”
• Generally means consultations relating to crimes that are ongoing or yet to occur, but only rule
of thumb – e.g., person consults attorney re past crime for advice on safest way to flee the
jurisdiction, then communication is in furtherance of the past crime and is not privileged
• BUT your involvement can make past crime not privileged when used in furtherance of the
crime

Crime-fraud and lawyer’s duties of loyalty to client

Rule 1.2 (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer
knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed
course of conduct with a client and may counsel or assist a client to make a good faith effort to
determine the validity, scope, meaning or application of the law.

Bersani v. Bersani
- Facts: divorce action, wife got temp custody, but she fled to Spain. Divorce went present w/o her. Ct
gave custody to father, but wife refused to return children from Spain. The wife’s attorney knew where
she was but argued privilege applied
- Court: found privilege did not apply
- reasoning: attorney’s refusal to disclose location constituted fraud on the court
- failure to disclose - attorney knows something and holding it back

Problem 3
- argument for info not being privileged

- discussed in furtherance of client’s intent to not report their income

- client doesn’t need formed intent to use info, can develop intent after discussion

- what do you do as an attorney

- assert privilege

- difference in time is evidence this is not privilege

- judge gets to decide


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Confidentiality and the Attorney-Client Privilege (III)
RLC, Chapter 5, Section D pp. 260-266, Section F 280-291; Section G     
ABA MR 1.6, 3.3, 4.1, 1.16
 
A. Organizational Privilege

Upjohn Test
case by case approach (page 264)
if:
i) the communications were made by Upjohn employees,
ii) to counsel for Upjohn action as such,
iii) at the direction of corporate superiors in order to secure legal advice from counsel
then these communications must be protected [by the attorney client privilege] against compelled disclosure
Corporation has the burden of showing that the communication in issue meets all of the requirements

Upjohn v. US (1981)
(1) Facts: two foreign officials are bribing gov’s overseas to get them shares and market contracts (illegal). IRS is
investigating, Upjohn Co lawyer is investigating as well (in house investigation to figure out what is going on).
Questionnaires were filled out by employees to gather info. Upjohn Co asserts attorney-client privilege.
(2) Issue: what is the scope of the attorney-client privilege in the corporate context?
(3) Approaches to question prior to Upjohn
(a) Control Group Test: only the higher-up officials like senior management had the privilege
(b) what the lower court used
(c) rationale - they are who would seek legal advice for corporation
(d) con - if you are getting information from someone who is not in control group it is not privileged
(e) Subject Matter Test - does not spell out, but Upjohn approach is a variation of
(4) Holding: questionnaires are privileged
(5) Rationale: if they were not privileged, it would be difficult for counsel to give sound results

B. Confidentiality and Client Fraud

1. Crime-fraud and lawyer’s duties of loyalty to client

Rule 1.2 (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is
criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with
a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or
application of the law.

Rule 1.16
. . . A lawyer . . . shall withdraw from the representation of a client if:
the representation will result in violation of the Rules of Professional Conduct or other law;

... 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

1. The O.P.M. case - big case in 1970s

a) Facts: OPM was computer leasing company that went through fraudulent cycle of leases to companies
and taking loans to acquire new computers. OPM got market share by leasing at really low rates.
Problem was the rates were so low that OPM did not have enough money to buy more computers to
lease out or acquire loans to get more machines. OPM starts forging leases that say they are making
more money so they could get loans to acquire more computers. Got millions of dollars of loans this
way by sending their lawyer (from Singer, Hutner, Levine, & Seeman) to the bank to negotiate the loans

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 using the fraudulent leases. The lawyers do not know the leases are forged. OPM accountant blows the
whistle to an attorney in the firm.
b) Question from class: at point attorney’s hear from accountant, is that privileged?
(a) under Crime-Fraud exception, seems like they could reveal this and it is not privileged
c) NY Code in force for OPM
(1) DR4-101(C)(3): ’a lawyer may reveal the intention of his client to commit a crime and the
information necessary to prevent the crime’
(a) lawyers at time argued this only applied to future crimes
(b) also was just a ‘may’
(2) DR&-102(B)(1): ’a layer who receives info clearly establishing his client has in course of his
representation, perpetrated a fraud upon a person…shall promptly call upon his client to rectify the
same, and if his client refuses…he shall reveal the fraud to the affected person….except when the
information is protected as a privilege communication
(a) here - lawyer's must no reveal what they know

2. Problem 4
a) You are senior partner under circumstances described in OPM.

b) Q: What would you have done under the Model Rules?

(1) under 1.6, the lawyer may reveal
(a) Rule 1.6 (b) A lawyer may reveal information relating to the representation of a client to the
extent the lawyer reasonably believes necessary
(2) to prevent the client from committing a crime or fraud that is reasonably certain to
result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of
another that is reasonably certain to result or has resulted from the client's commission of
a crime or fraud in furtherance of which the client has used the lawyer's services;

(2) other Rule Sections

(a) 1.2(d): ‘a lawyer all not counsel a client to engage, or assist a client, in conduct the lawyer
knows is criminal or fraudulent’
(b) 1.16(a)(1): ‘ a lawyer…shall withdraw…if: (1) the representation will result in violation of the
rules of professional conduct or other law

c) Q: since OPM is 60% of Singer’s billings and they want to maintain that relationship, even if lawyer
does not reveal, you may still be subject to criminal liability for being part of conspiracy if there was
intent or knowledge
(1) Must you tell?
(a) if you know client is using your services to commit fraud you must tell
i) if you are going off of accountants view, you don’t necessarily need to tell
(2) Should you tell?
(a) depends on your moral compass
(b) no affirmative duty to investigate whenever you hear something, but here you probably should
investigate
i) if this triggers duty to tell, then you are effectively policing your clients which would
impact your clientele and result in people not wanting you to represent them
d) TAKEAWAY: while you may not have professional duty to investigate under circumstances, once it
raises to point where you are turning blind eye to conduct you know is illegal that your are helping to
advance through your representation, you will be criminally liable and privilege will not protect you


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Confidentiality and the Attorney-Client Privilege (IV)
Written Assignment Due by Class Time.

 
Confidentiality/Privilege Problem 5

Consider ABA MR 1.6, 3.3, 4.1, 1.16

May I?
Must I?
Should I?

Problem 5
You could structure your answer several different ways and be successful
-- Track the problem’s questions
-- Discuss different levels/sources of authority – rules, cases, principles
-- Begin with conclusion and unfold argument
-- Describe how you would proceed in real life
Track the Problem’s structure

Question 1 asks what your obligations are under the state’s Child Abuse and Neglect Reporting Act

Threshold question: Is the client’s behavior criminal?

Or – in the words of the CANRA – do you have “reason to believe that a child has been subjected to abuse
or neglect”?

Per statute, child neglect is a “knowing failure to provide ordinary and proper care and attention.”

Threshold question: Are three phone calls finding the mother gone and a 10-year-old in charge enough to create

“reason to believe a child has been subjected to . . . neglect” i.e., a

“knowing failure to provide ordinary and proper care”

Knowledge that a four year old was scalded in the bath but not knowing whether the mother was in fact
there?

If reason to believe criminal abuse/neglect: Are the statute’s exceptions triggered?

Is it privileged?
(1)Communication
(2)Made between privileged persons – i.e., client, prospective client, client’s lawyer or those
persons agents
(3)In confidence
(4)For the purpose of obtaining or providing legal assistance to the client

Is the information a ‘matter communicated in confidence by a client to the client’s attorney or other
information relating to the representation of the client?’

Interpret Privilege language

Broadly – exception covers anything that meets basic privilege definition
Or
CANRA exemption covers only matter that remains privileged, i.e., not covered by standard exceptions,
e.g., crime/fraud

Depends
Interpret statutory exception with reference to state rule of confidentiality (and its exceptions)?
or
Interpret statutory exception independently?

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 ABA MR 4.1
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal
or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

ABA MR 3.3
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material
fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to
be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness
called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the
lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter,
that the lawyer reasonably believes is false.

Crime-fraud and lawyer’s duties of loyalty to client

Rule 1.2 (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or
fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may
counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
Rule 1.16
. . . A lawyer . . . shall withdraw from the representation of a client if:
the representation will result in violation of the Rules of Professional Conduct or other law;
... 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.

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Behavioral Ethics  II – Identifying and Countering Implicit Bias
 Matthew Hutson, Book Review--  Blind Spot: Hidden Biases of Good People, Washington Post
Project Implicit FAQs https://implicit.harvard.edu/implicit/faqs.html#faq13
Project Implicit – Take a Test https://implicit.harvard.edu/implicit/takeatest.html
David McRaney, Confirmation Bias http://youarenotsosmart.com/2010/06/23/confirmation-bias/
Robert Wright, How Confirmation Bias Can Lead to War,Atlantic Monthly http://www.theatlantic.com/international/
archive/2012/07/how-confirmation-bias-can-lead-to-war/260347/
Johanna Wald, Can “De-Biasing” Strategies Help To Reduce Racial Disparities in School Discipline?
 

A. Implicit Bias
3. Definition: how unconscious responses and attitudes might be generated from stereotypes
4. Implicit Association Test
a) tests are picking up something real about imply bias
b) dropped curtain in symphonies - blind auditions that resulted in more equal representation of women in orchestras
c) if you have implicit biases about your client, you may not choose them or zealously represent them
5. Strategies for De-Biasing - by Wald
a) intention (acknowledgment -accept fact bias excepts)
b) attention - pay attention to bias situation
c) time- take time to break out of biased habit
(1) practice can strengthen ability to behave how you want to
(2) idea of ritual
d) Prejudice Habit Breaking Strategy
(1) Stereotype replacement - An individual recognizes that he or she is responding to a situation or person in a
stereotypical fashion. (S)he considers the reasons and actively replaces this biased response with an unbiased
one.
(2) Counter-stereotypic Imagining - gathering very specific information about a person’s background, tastes,
hobbies, and family, so that one’s judgments will be based on the particulars of that person, rather than on
group characteristics.
(3) Individuating - stepping into the shoes of a stereotyped person.
(4) Perspective-taking - stepping into the shoes of a stereotyped person.
(5) Increasing Opportunity for Positive Contact - actively seek out situations where one is likely to be exposed to
positive examples of African Americans or others subject to stereotypes

B. Confirmation Bias
1. Definition: when you purposefully seek out information that confirms your beliefs
2. you may think you really know a lot about something, but really you are just reinforcing what you already believe
3. Why it is important for lawyers to know about confirmation bias - inhibits your ability to advocate zealously for your client
without you even consciously being aware of doing so
a) seek out information that already confirms what legal arguments you are making, leaves counterarguments
unaddressed and this weakens the strength of your overall legal position

C. Giving Voice to Values Handout - how you get yourself to behave how you want to in a situation
1. values - know and appeal to short list of widely shared values (honesty, respect, responsibility, fairness, compassion)
2. choice - believe you have choice about voicing values by examining own track record
a) know what has enabled and disabled you in past
3. normality - expect value conflicts and approach them calmly and competently
4. purpose - define your personal and professional purpose broadly before conflicts arise
5. self-knowledge, self-image and alignment - generate a self-story about voicing and acting on values that is consistent with
who you are and builds on your strengths
6. voice - practice voicing your values in front of respected peers
7. reasons and rationalizations - anticipate typical rationalizations given for ethically questionable behavior and identify your
counter arguments

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The Counseling Function
RLC, Chapter 9, Section E pp. 532-542
ABA MR 1.2, 1.4, 1.13, 1.16, 2.1
 
A. Lawyer as Counselor vs. as Adversarial Advocate
• just you and client when you are counselor
• often involve longstanding on-going relationship with client

Rule 1.2
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of
representation
(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.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or
fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and
may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of
the law.

Rule 1.2 -- Comment

[9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud.
This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual
consequences that appear likely to result from a client's conduct. Nor does the fact that a client uses advice
in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is
a critical distinction between presenting an analysis of legal aspects of questionable conduct and
recommending the means by which a crime or fraud might be committed with impunity.

Rule 2.1. Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.
In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social
and political factors, that may be relevant to the client’s situation.

Rule 2.1 Comments

[1] A client is entitled to straightforward advice expressing the lawyer’s honest assessment.
. . . . a lawyer should not be deterred from giving candid advice by the prospect that the advice will be
unpalatable to the client.
[2] Advice couched in narrow legal terms may be of little value to a client, especially where practical
considerations, such as cost or effects on other people, are predominant. Purely technical legal advice,
therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical
considerations in giving advice.
[5] In general, a lawyer is not expected to give advice until asked by the client.
. . . . A lawyer ordinarily has no duty to initiate investigation of a client’s affairs or to give advice that the client has
indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the
client’s interest.

B. Government Lawyer vs. Private Counsel

• kind of like a corporate attorney, working for entity but working with individuals
• when there is no judicial review, the legal interpretations gov’t lawyers provide to officials become practical binding
law
• less transparent to the public than private counsel
• you, client, and the government

C. The “Torture Memos”

• memo defined torture - interrogation isn’t torture unless inflicted certain physiological or psychiatric systems (from
Medicare statute)
• CIA counsel at GTMO mtg cited torture memo
- To be torture treatment must entail:
• severe physical pain described as anything causing permanent physical damage to major organs or body parts.
Mental torture described as anything leading to permanent, profound damage to the senses or personality.” (p.
538)
• takeaway - in real world situation, a abstract memo can get picked up and used to promote or instigate the behavior
• moral ethicist argument: absence of any counseling, shotty precedent

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D. The Drone Memo - "Independent professional judgment and Candid Advice?”
• insufficiently describes/applies holding in Hamdi – a right of some due process even in cases of a captured
“terrorist”.
• Is the lawyer advising the client “the government aka the people” correctly? Or is he catering to the wants/needs of
the individual gov’t members he is counseling.
- Is this more a defensive piece than a counseling piece, considering that there have already been 400 drone
strikes
• Mathews test for due process
1. individual’s private interest that is affected by the action
2. government’s interest and burden to provide greater process
3. governments risk of error - wrong person, taking more than they should take

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Conflict of Interest (Criminal Defense)
RLC, Chapter 10, Sections A & B, pp 543 - 565
ABA MR 1.7
 
A. Introduction to Conflicts

1. Three (typical) kinds of conflict situations

a) Concurrent :Multiple clients at the same time w/conflicting interests

- underlying duties: Loyalty and Confidentiality

RULE 1.7 Conflict of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation
involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited
by the lawyer's responsibilities to another client, a former client or a third person or by a personal
interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may
represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client
represented by the lawyer in the same litigation or other proceeding before a tribunal; and

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

b) Successive: One client against former client in a related matter

- underlying duty: Confidentiality

c) Attorney-Client: Clients w/interests that conflict w/attorney’s interest  

2. Model Rules
a) 1.7 Current clients [mostly about litigation conflicts among clients]
b) 1.8 Current clients – Specific Rules [mostly about transactional/business interests and lawyer-client
conflicts]
c) 1.9 Duties to former clients
d) 1.10 Imputation of conflicts
e) 1.11 Special conflicts for government lawyers
f) 1.12 Former judge, arbitrator, mediator or other 3rd party neutral

3. Civil Litigation Disqualification

• P (represented by John at K & L) v. D
• D Motion: Disqualify John from rep’ing P
• D Motion argument: John has a conflict because Mary at K & L was previously part of a team rep’ing D in
related matter. Thus John had access to confidential info re D.

4. Criminal Litigation Disqualification

• U.S. v. Wheat (rep’d by Iredale), 486 U.S. 153 (1988)
• U.S. atty moves to disqualify Iredale from rep’ing Wheat on drug conspiracy charges because Iredale was
also representing other alleged co-conspirators.

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B. Concurrent Conflicts and Criminal Defense Strategy

1. Habeas Challenge to Criminal Conviction

6th Amendment & conflicts

When does a conflict of interest violate 6th amendment right to counsel?
1. possible conflicts of interest
2. actual conflicts that do not impair representation
3. actual conflicts that impair representation but do not affect the outcome (Cuyler v. Sullivan)
4. actual conflicts that impair representation and affect the outcome (might be for successive
conflicts – Mickens)

Test for Ineffective Assistance of Counsel (6 am RTC claim)

Ineffective assistance claims- must have failure to act, show actual event and the result of the trial
would have been different had the atty done or not done XYZ
From Mickens
• where there is a conflict of interest but it is found not to impair representation there is no violation of
6th amend rights, even if trial court knows of conflict and makes no inquiry.
• “reasonable probability that, but for counsel’s unprofessional errors, the result of the proveeding
would have been different.” (Stickland)
- Whereas in Sullivan “a conflict of interest actually affected the adequacy of his representation-
but did not necessarily change the result of the proceeding. (no showing of prejudice required -
i.e. do not need show that outcome was affected’

Strickland v. Washington (1984)

- 6AM RTC violation must demonstrate a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” (Strickland)
• Sixth Amendment right to counsel is instrumental: Its rationale is “the effect it has on the ability of the
accused to receive a fair trial.”
“Assistance which is ineffective in preserving fairness does not meet the constitutional
mandate, and it also follows that defects in assistance that have no probable effect upon
the trial’s outcome do not establish a constitutional violation.

Cuyler v. Sullivan (US 1980)

(1) Facts: Sullivan convicted of double murder, indicted with 2 other ∆s. all ∆’s represented by same
private attorneys. Evidence Sullivan’s attorney’s settled early not to disclose later strategy. Sullivan
tried first, and evidence was circumstantial, primarily of eye witness that say all three ∆’s at scene of
crime. Sullivan’s atty rested w/o presenting any affirmative case, while he ad other witnesses that
would support lack of involvement, but atty didn’t but them on b/c he wanted to also put them on for
later guys
(2) 6AM RTC claim- encompasses claim of ineffective assistance to counsel, i.e. counsel had
conflicting interest
(3) Standards
(a) Duty of Inquiry - unless trial court knows or reasonably should know that a particular conflict
exists, the court need not initiate an inquiry absent objections
i) here - TC had no duty to inquiry
(b) standard SCOTUS uses for what constitutes ineffective assistance:
i) to establish a violation of 6 AM RTC, a ∆ who raised no objection at trial must
demonstrate that [1] an actual conflict of interest [2] adversely affected his
lawyer’s performance
(1) adverse affect - doesn’t have to mean changed outcome of the case, i.e. not
necessary to prove prejudice
(4) Reasoning: better in some cases to have one atty represent multiple ∆’s b/c cheaper, more familiar
with case
(a) court Here thinks there could have been (c) [under the standards below, and if there was then
he gets a do over – appeal should be re-held with this standard.
(5) Other standards court considered:
(a) possible conflict of interest
(b) actual conflict that does not impair representation
(c) actual conflict that impairs representation but does not affect the outcome (adopted in Sullivan)
(d) actual conflict that impairs representation and affects the outcome (moved towards in Mickens)
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 (6) Brennan concurrence
(a) emphasized trial court judge - should have been more proactive
(7) Marshall dissent
(a) wants different standard
(b) plurality standard is difficult to show actual conflict - lawyers sometimes give themselves up and
admit conflict, but others may not want to talk about conflicts they should have realized

Mickens v. Taylor (US 2002)

(1) Facts: Mickens sentenced to death for murder of Sanders. Pickens atty appointed by judge who
previously appointed same atty to represent the murder victim. Day after murder, judge appointed
him to represent guy accused of killing the victim. Mickens arguing duty to inquiry should apply
here, he should get do-over
(2) Standard
(a) where there is a conflict of interest but it is found not to impair representation there is no
violation of 6th amend rights, even if trial court knows of conflict and makes no inquiry.
(b) “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Strickland)
i) Here - conflict did not adversely affect Micken’s counsels performance
ii) Whereas in Sullivan “a conflict of interest actually affected the adequacy of his
representation- but did not necessarily change the result of the proceeding.
(3) Court does away with Duty to Inquire: places burden on ∆’s counsel to object and prove there
was actual conflict that impacted your counsel’s representation

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Concurrent Conflicts in Civil Cases
RLC, Chapter 10, Section C pp. 565-579
ABA MR 1.7

A. Introduction

1. Definition of Concurrent Conflict

• Concurrent Conflict: Multiple clients at the same time w/conflicting interests
- underlying duties: Loyalty and Confidentiality

RULE 1.7 Conflict of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the
lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the
lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may
represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client
represented by the lawyer in the same litigation or other proceeding before a tribunal; and

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

2. Two duties to Current Clients

1. Loyalty AND
2. Confidentiality
• under 1.7, you cannot represent current clients in adverse situation even if those situations are unrelated
- client’s can waive this - must be informed consent, and in writing

3. One duty to Former Clients

1. Confidentiality only
- Lawyer’s loyalty ends with the relationship, confidence does not.

B. Problems

1. Unwanted will- husband and wife are both clients, husband says they want parallel wills where money goes to the
other and then to their children, if not alive goes to spouse or to children. Husband executes the will, wife is alone with
attorney before she executes it and tells attorney that if her husband didn’t know she’d make changes but will execute it
as is to keep the peace but its not what she wants. He can’t execute a will that he knows in not testators intent but
cannot execute a different will without telling husband because this would violate loyalty to him but also cannot tell the
husband about wife’s intent because it would violate confidence to wife.

2. Insurance- insurance company pays to defend the driver, who is being sued by his wife the passenger. Driver tells
attorney that he was driving carefully, but testifies that he was distracted. Attorney suspects that this is to get his wife
more money. Can you/must you impeach the defendant? Is there really a conflicts problem between client and person
employing you?

Answer: Can’t impeach, but must prevent the fraud before you request to withdraw

Rest. 134 Compensation or Direction of a Lawyer by a Third Person

A lawyer MAY NOT represent a client if someone else is paying UNLESS client gives informed consent

A lawyer’s professional conduct on behalf of a client MAY be directed by someone else IF

(a) The direction does not interfere with the lawyer’s independence of professional judgment

Rule 1.16 Withdrawal from representation

A lawyer SHALL withdraw if
(1) the representation will result in a violation of the rules of professional conduct or other law;

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ABA Model Rule 5.4 (c)

A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal
services for another to direct or regulate the lawyer’s professional judgment in rendering such legal
services.

1.2 Scope of Representation

. . . a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as
required by Rule 1.4 shall consult with the client as to the means by which they are to be pursued.
....
(d) A lawyer shall not . . . assist a client in conduct that the layer knows is criminal or fraudulent

1.4 Communication
(a) A lawyer shall
....
(2) Reasonably consult with the client about the means by which the client’s objectives are to be
accomplished;
....
(5) Consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows
that the client expect assistance not permitted by the rules of Professional Conduct or other law.

Rule 3.3 Candor toward the tribunal

(a) A lawyer shall not knowingly:
....
(3) Offer evidence that the lawyer knows to be false. If . . . the lawyer’s client . . . has offered material
evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial
measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence other
than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Montanez v. Irizarry-Rodriguez
641 A.2d 1079 (N.J. Super. Ct. App. Div. 1994)
“Permitting insurance counsel to impeach the credibility of an insured places counsel in a position of
representing conflicting interests, and actually permits counsel to elevate the insurer's interest over the
insured's. Such practice cannot be condoned.”

Defense counsel's reliance upon R.P.C. 1.6(b) and R.P.C. 3.3(a)(2) and (4) [rules on confidentiality and
candor before the court] is misplaced. While either rule may permit the lawyer to reveal information gained
through the lawyer's representation of the client in certain circumstances, neither rule requires or permits
the attorney to represent a conflicting interest hostile to the client's position.

“The remedy for an attorney in such situations is to disclose the information the attorney believes is required
by R.P.C. 1.6(b) and R.P.C. 3.3 to the court, and request permission to withdraw from the litigation pursuant
to R.P.C. 1.16.”

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Conflict of Interest (Former Client Conflicts & Imputed Disqualification)
RLC, Chapter 10, Section D (excluding Problem 4), pp 589-600; Section E, Kirk v. First American pp. 600-609
ABA MR 1.7, 1.9, 1.10, 1.16, 1.18
 
A. Successive vs. Concurrent Conflicts

Concurrent :Multiple clients at the same time w/conflicting interests

- underlying duties: Loyalty and Confidentiality

RULE 1.7 Conflict of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation
involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited
by the lawyer's responsibilities to another client, a former client or a third person or by a personal
interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may
represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client
represented by the lawyer in the same litigation or other proceeding before a tribunal; and

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

A “concurrent conflict” under 1.7 can involve a former client

Rule 1.7 (a) A concurrent conflict of interest exists if:
(2) there is a significant risk that the representation of one or more clients will be materially
limited by the lawyer’s responsibilities to another client, A FORMER CLIENT or a third
person or by a personal interest of the lawyer.
(But this concern is with the interest of the current client(s), are they worried?)

Successive: One client against former client in a related matter

- underlying duty: Confidentiality
• Exception to singular duty – lawyers are forbidden to attack actual work for a former client, i.e. attacking a
contract that you previously drafted Restatement 132

But when concern is risk to former client, look to: Rule 1.9 Duties To Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another
person in the same or a substantially related matter in which that person's interests are materially
adverse to the interests of the former client unless the former client gives informed consent,
confirmed in writing.

B. Conflicts that Potentially Harm Former Clients

Rule 1.9 Duties to Former Clients

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person
in the same or a substantially related matter in which that person's interests are materially adverse to the
interests of the former client unless the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a
firm with which the lawyer formerly was associated had previously represented a client,

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer has acquired information protected by Rule 1.6 and 1.9(c) that is material to
the matter; unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly
represented a client in a matter shall not thereafter:

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

(2) reveal information relating to the representation except as these Rules would permit or require with
respect to a client.

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1. “Substantial Relation” Test

Test: “[W]hether there is a substantial relationship turns on the possibility, or appearance thereof, that
confidential information might have been given to the attorney in relation to the subsequent matter in which
disqualification is sought.” p. 591
• i.e. whether or not there is a likelihood that damaging confidential information from the prior
representation could have passed to the current situation
- if yes - then should decline representation b/c conflict of interest
- if no - then you can represent

Rule 1.9 Duties To Former Clients

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person
in the same or a substantially related matter in which that person's interests are materially adverse
to the interests of the former client unless the former client gives informed consent, confirmed in
writing.

Comment [3] Matters are "substantially related" for purposes of this Rule if they involve the same
transaction or legal dispute or if there otherwise is a substantial risk that confidential factual
information as would normally have been obtained in the prior representation would materially
advance the client's position in the subsequent matter.

Westinghouse v. Gulf Oil-

Facts: Westinghouse was suing Gulf and UNC for alleged price fixing relating to uranium. UNC was
represented by Bigbee, Gulf moved for disqualification because Bigbee had previously represented
Gulf in uranium issues

2 issues
1. “Whether there is a sufficient relationship between matters presented by the pending
litigation and matters which the lawyers in question worked on in behalf of the party now
seeking disqualification”

“Here it could reasonably be said that during the former representation the attorneys
might have acquired information related to the subject matter of the subsequent
representation . . . . therefore there was clearly a substantial relationship between
the two representations.” p. 592

2. “whether the party seeking disqualification has given legally sufficient consent to the dual
representation.”

“It is impossible to conclude that a client could ever have any reason to desire that
information disclosed in confidence should be utilized against him.” p. 593
• Gulf signed waiver that was prospective (if something comes up in future, we
waive the conflict)
- rule 1.9 comments says that the more informed and more specific and
retrospective the informed consent is, the more likely it is going to hold up
- but general prospective waivers almost never bind the person who signed
them

2. Problem 4 - page 588

a) consider: matter can be related, but is there a likelihood of confidential info passing?
b) Facts: you are setting share price for Insatiable to takeover Tidbit, so would have to know info about
Tidbit to set price
c) Issue: whether we think that representation is substantially related and you cannot do representation for
Insatiable
(1) Problem A - disqualify self from representation
(a) a labor representation for Tidbit would expose you to info about their economic situation
(b) would trigger playbook issue - where you represent someone and know how they think other
party would approach the issue
(2) Problem B - do not need to disqualify self from representation
(a) petition for cert on choice of law issue
(b) more procedural
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 (c) no likelihood of confidential information passing
i) matter can be related, but if no likelihood of confidential info passing then can still
represent
(3) Problem C - disqualify self from representation
(a) exception to substantial relation rule - while you can represent current client against former
client if confidentiality not an issue, a lawyer cannot represent client if it attacks work he did
(such as drafting) for a former client)
(4) Problem D - do not need to disqualify self from representation
(a) question: is Tidbit a former client or a current client?
i) are you still their lawyer just on standby?
(b) likely not, but would be safer to send letter saying representation is concluded at this point

C. Imputed Disqualification

1. Rule 1.10 Imputation of Conflicts of Interest: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any
one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the
prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of
materially limiting the representation of the client by the remaining lawyers in the firm.

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter
representing a person with interests materially adverse to those of a client represented by the formerly
associated lawyer and not currently represented by the firm, unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer
represented the client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to
the matter.

(c) A disqualification prescribed by this Rule may be waived by the affected client under the conditions
stated in Rule 1.7.
(d) The disqualification of lawyers associated in a firm with former or current government lawyers is
governed by Rule 1.11.

2. Screening

Kirk v. First American (Cal. Ct of Appeals 2010)

i) in certain cases, the public trust in administration of justice is not advanced (and may be undermined) by
an order disqualifying a party’s long-term counsel due to the presence of another attorney in a different
office of the same firm, who possess only a small amount of potentially relevant confidential information,
and has been effectively screened
ii) Typical Elements of and Ethical Wall:
(1) physical, geographic, and departmental separation of attorneys
(2) prohibitions against sanctions for discussing confidential matters
(3) established rules and procedures presenting access to confidential info and files
(4) procedures preventing a disqualified attorney from sharing profits from the representation
(5) continuing education in professional responsibility
iii) in considering a motion to disqualify a firm on basis of imputed knowledge where that presumption is
refutable, a TC should consider on a case-by-case basis whether the screen is effective in preventing
transmission of confidential information from the tainted attorney
iv) Appellate Court says screen can work
(1) with amount of movement in legal workforce, screening is important b/c. there are client interests on
both sides
v) TAKEAWAY
(1) if one lawyer in firm has a conflict with former client, then the whole firm has a conflict with that client
(2) brings up whether conflict is rebuttable, whether client consented, or whether conflict could be
avoided by a screening


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Other Conflicts of Interest
RLC, Chapter 10, Section C, pp. 584-587; Section E,  pp. 651 - 660
ABA MR 1.5, 1.7, 1.8, 1.9, 1.10, 1.18
 
A. Positional Conflicts

1. Positional Conflicts: when a lawyer advocates a position on behalf of one client that is contrary to a position
being urged by the lawyer or the lawyer’s firm on behalf of another client in an unrelated matter
- can involve factual and legal questions
- a conflict does exist if a conflict with one client will adversely impact the other client - such as creating
precedent that will limit another client

a) Factors to use in analyzing whether a positional conflict exists

(1) where the cases are pending
(2) whether the issue is substantive or procedural
(3) the temporal relationship (if one was going to play out a long time before the other)
(4) the significance of the issue
(5) the client's reasonable expectations in retaining the lawyer

- if there is a significant risk of material limitation, then absent informed consent of the affected clients,
the lawyer must refuse one of the representations or withdraw from one or both matters

b) Examples
(1) conflict could create bad precedent for one client
(2) idealogical conflict - one client may not like you are representing another on idealogical grounds
they disagree with
(a) ex. representing NRA on one matter, and an anti-NRA group on another
(3) representing people before the same judge and taking different sides for different clients

c) positional conflict not explicitly in the rules

(1) implied in 1.7(a)(2)
MR 1.7 Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of interest
exists if:

(2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another client, a former client or a
third person or by a personal interest of the lawyer.

d) Example from Class - to illustrate that positional conflicts regime is tricky

(1) Allen was suing State of Florida representing the Class of 6,000 who are permanently barred from
voting. Students from Gonzaga who were in the process of defending similar ∆’s in Washington and
wanted to join forces with Allen’s case.
(2) Allen’s concern: ∆’s in Fl had fully served their sentences, while in Washington some ∆’s hadn't fully
served their sentences yet
(a) she should be saying diff things in Fl and Wa
(3) Is this a positional conflict of interest?
(a) on the line - could argue either way
(b) Allen's firm eventually withdrew and another group took up the cause

Charles Lamb
“He is no lawyer who cannot argue both sides of a case.”

(But just because you can doesn’t mean you should – or may.)

In Bradwell v. Illinois, Hale argued for a broad intepretation of “privileges and immunities”:
If the legislature may, under pretence of fixing qualifications, declare that no female citizen shall be
permitted to practice law, it may as well declare that no colored citizen shall practice law; for the only
provision in the Constitution of the United States which secures to colored male citizens the privilege of
admission to the bar, or the pursuit of the other ordinary avocations of life, is the provision that ‘no State
shall make or enforce any law which shall abridge the privileges or immunities of a citizen.’

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 In Slaughterhouse Cases Hale argued for, and won, a narrow interpretation:
[T]he privileges and immunities relied on in the argument are those which belong to citizens of
the States as such, and . . . they are left to the State governments for security and protection,
and not by this article placed under the special care of the Federal government . . . .

The opinion just delivered in the Slaughter-House Cases renders elaborate argument in the present
case unnecessary; for, unless we are wholly and radically mistaken in the principles on which those
cases are decided, the right to control and regulate the granting of license to practice law in the courts
of a State is one of those powers which are not transferred for its protection to the Federal government .
. . . It is unnecessary to repeat the argument on which the judgment in those cases is founded. It is
sufficient to say they are conclusive of the present case.

B. Client-Lawyer Conflicts

Client-Lawyer Conflicts (Personal Conflicts): when the lawyer's own interests might be in conflict with the client's
interest

Rule 1.8 Conflict of Interest: Current Clients

(a) A lawyer 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 lawyer's role in the transaction, including whether the lawyer is representing the
client in the transaction.

1. Business Conflicts:

Rule 1.8 Conflict of Interest: Current Clients

(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare
on behalf of a client an instrument giving the lawyer or a person related to the lawyer any
substantial gift unless the lawyer or other recipient of the gift is related to the client.

Rule 1.5 Fees

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses. The factors to be considered in determining the reasonableness of
a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill
requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will
preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

Problem 12
(1) Fees - Rule 1.5: whether shares are ‘unreasonable’
(a) generally would be OK - has been accepted starting in the 1990s
(2) Fair Market value
(a) overarching concern - you don’t have a clear market value and valuing the shares is where the
conflict arises
(b) fair thing would be to offer the par value - the basic value based on number of shares, assets
and liabilities on the books

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 (c) your valuation could conflict with what would be best valuation for the company
(3) unlikely to be able to render independent legal judgment - stand to get rich or lose your job
(a) no simple answer here
(b) 1.8(a)(2) - would need to figure out share and discuss potential conflicts with the clients and
they decide whether or not they consent or not
(4) can you draft ‘golden parachute’ provisions for yourself?
(a) still would have to be approved by board of directors
(b) but see 1.8(c) - could try and distinguish - severance package not a gift

2. Family and Personal Relationship Conflicts

MR 1.8(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship
existed between them when the client-lawyer relationship commenced.
- can represent your partner in court, but can’t commence relationship after you took someone on as a
client

• rule is different from the business rule

- business rule is not per se ban - shouldn’t do it unless
- sexual relationship rule - never permitted
• distinguished from Lawrence - could argue rule furthers state interest (in Lawrence can't imagine any situation
where there would be an interest in preventing consensual relationship)
- example: divorce atty shouldn't be able to have sexual relationship w/ client
• look at the actors: the lawyer and the client


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Lawyer-Client Decision-making (I)
No assigned reading.  We will discuss video clips in class
ABA MR 1.2, 1.14, 2.1
 
A. The Client-Centered Approach
• lawyers are counselors
- can’t just toss options at client
- must talk through options with them and discuss potential non-legal implications

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

B. Client with Diminished Capacity

Rule 1.14 Client with Diminished Capacity

(a) When a client's capacity to make adequately considered decisions in connection with a representation is
diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as
reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical,
financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer
may take reasonably necessary protective action, including consulting with individuals or entities that have the
ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad
litem, conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When
taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal
information about the client, but only to the extent reasonably necessary to protect the client's interests.

Rule 1.14 [comment 6]. Factors to balance and consider in determining extent of diminished capacity:
- the client's ability to articulate reasoning leading to a decision,
- variability of state of mind and ability to appreciate consequences of a decision;
- the substantive fairness of a decision; (does decision person is making seem fair)
- the consistency of a decision with the known long-term commitments and values of the client.
In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

Rule 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).

Rule 2.1 Adivser

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In
rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and
political factors, that may be relevant to the client's situation.

C. Problem 1a, page 663

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 You represent an elderly client of limited means. Under pressure from his ex-wife, he signed a promissory note secured by
his house for his stepson’s new business. Fraudulent misrepresentations were made about the business inducing him to
sign the note. Now the business is bankrupt, the note has come due, and he will lose his house unless he takes action.

Your client doesn’t want to sue because he’s embarrassed about being cheated and because he doesn’t want the family
conflict.

Are you free to disregard your client’s short-term instruction not to file suit in favor of his long-term value of keeping his
house? What should you do?
• walk through options with client - get him to articulate reasoning
• reflect what client has said to you in the past

Rule 1.14 [comment 6]. Factors to balance and consider in determining extent of diminished capacity:
- the client's ability to articulate reasoning leading to a decision,
- variability of state of mind and ability to appreciate consequences of a decision;
- the substantive fairness of a decision; (does decision person is making seem fair)
- the consistency of a decision with the known long-term commitments and values of the client.
In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

ABA Model Rule 1.2 (a)

. . . . 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.

ABA Model Rule 1.2(d)

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is
criminal or fraudulent . . . .

D. The Plea

Rule 1.2
• 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.

• A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or
fraudulent

Kelly (client): I love Abbe and Claudia, but in my heart it’s just not the right thing for me to do.

Bruce (ethicist): Well, in the end of the day, in this case, evidently the client has certain values that she places
above liberty.

Claudia (lawyer): I accepted her decision, and I left. . . . and I regret it every day of my life, every day of my life. I
could have insisted . . . I should have reached across the table and grabbed her by the throat . . . and these last 20
years she would have been with us, instead of buried in there.

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Lawyer-Client Decision-making (II)
RLC, Chapter 11, Section A pp. 663-668; Section C pp. 702-711; Review NPR podcast: Snap Judgment, Snap #630
Dirty Work – The Writing Is on the Wall http://www.wnyc.org/story/writing-wall-snap-630-dirty-work/
ABA MR 1.2, 1.14, 2.1

A. Article by Richard Wasserstrom, “Lawyers as Professionals: Some Moral Issues”

- lawyer paternalism vs. client autonomy
• is lawyer paternalism good?

- can be against morality

- but not necessarily against morality or wrong when decision maker has a decision to make that will greatly impact
their life

- Lawyer’s expert knowledge (technical language; client can’t evaluate competently)

- vulnerability of client (because personal concerns involved lack perspective)

• but sometimes client begs you to tell them what they should do

- professionals taught to see themselves as superior (not everyone can do what we do)

• you feel like you went through the school, put in the time, and have the knowledge to know what decision is best for
the client

B. Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer

(a) . . . a lawyer shall abide by a client's decisions concerning the objectives of representation and, as
required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take
such action on behalf of the client as is impliedly authorized to carry out the representation. . . .

A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide
by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial
and whether the client will testify.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or
fraudulent . . . .

C. Client with Diminished Capacity

Rule 1.14 Client With Diminished Capacity

(a) When a client's capacity to make adequately considered decisions in connection with a representation is
diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as
far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical,
financial or other harm unless action is taken and cannot adequately act in the client's own interest, the
lawyer may take reasonably necessary protective action, including consulting with individuals or entities that
have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a
guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When
taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to
reveal information about the client, but only to the extent reasonably necessary to protect the client's
interests.

COMMENT 6
[6] In determining the extent of the client's diminished capacity, the lawyer should consider
and balance such factors as:
- the client's ability to articulate reasoning leading to a decision,
- variability of state of mind and ability to appreciate consequences of a decision;
- the substantive fairness of a decision; (does decision person is making seem fair)
- the consistency of a decision with the known long-term commitments and values of the
client.
In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

Faretta v. California (1975)

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 “The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the
accused personally the right to make his defense. It is the accused, not counsel, who must be ‘informed of the
nature and cause of the accusation,’ who must be ‘confronted with the witnesses against him,’ and who must be
accorded ‘compulsory process for obtaining witnesses in his favor.’”

“The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools
guaranteed by the Amendment, shall be an aid to a willing defendant-not an organ of the State interposed
between an unwilling defendant and his right to defend himself personally.”

United States v. Kaczynski (2001)(Kozinski, J., dissenting from denial of en banc review)

“Is this 1984 or what?”

“Weird and misguided though his ideas may be, Kaczynski is entitled to insist that he win or lose on the merits, rather
than present to the jury what he considers to be a lie . . . . To deny him the right to make that decision – ostensibly for
his own good – may soothe our collective consciences, but it treats Kaczynski as something less than a full, adult,
sane human being.”

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Advertising & Solicitation
RLC, Chapter 12,  Section A pp. 724-731; notes 6-7, pp. 736-737; Section B pp 738-752 (excluding problem 2).
ABA MR 7.1, 7.2, 7.3, 7.4, 7.5
 
A. ABA Rule Basics

Default Rules
2. legal default for advertising is go for it unless there is something specifically wrong
3. legal default for solicitation is don’t do it unless there are necessary circumstances
4. for both - no misleading communication is allowed
a) a state can punish

ABA Rule 7.3 Comment 1

A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and
that offers to provide, or can reasonably be understood as offering to provide, legal services.  In contrast, a
lawyer’s communication typically does not constitute a solicitation if it is directed to the general public,
such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in
response to a request for information or is automatically generated in response to Internet searches. 

Rule 7.1 Communications Concerning A Lawyer's Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A
communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a
fact necessary to make the statement considered as a whole not materially misleading.

ABA Model Rule 7.2 Advertising

(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written,
recorded or electronic communication, including public media…not within the purview of Rule 7.3.
....
(d)    No advertisement or public communication shall contain an endorsement by a celebrity or public
figure.

ABA MR 7.3 Solicitation of Clients

(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional
employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s
pecuniary gain, unless the person contacted:
(1) is a lawyer; or
(2) has a family, close personal, or prior professional relationship with the lawyer

B. Advertising

1. History
• dates back hundreds of years
• historical argument against advertising
- would blend the profession into a trade
- clients should seek out lawyers, lawyers should not seek out clients
- advertising cast in negative light by same bar disciplinary codes that were meant to protect the elite
- codes meant to prohibit the newbies (immigrants)
- would erode professionalism
- would invite deception

2. In Re RMJ: (US 1982) Standard and Rationales

Truthful advertising related to lawful activities is entitled to the protections of the First Amendment . .. .
Misleading advertising may be prohibited entirely. But the State may not place an absolute prohibition
on certain types of potentially misleading information, e.g., a listing of areas of practice . . .

Even when communication is not misleading, the State retains some authority to regulate. But the State must
assert a substantial interest and the interference with speech must be in proportion to the interest
served . . . . Restrictions must be narrowly drawn . . . .

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3. How potentially misleading does the info need to be to ban ad?
• Example: PA Rule 7.2 Advertising Rule: (a) subject to requirements of Rule 7.1, a lawyer may advertise
through written, recorded or electronic communications including public media, not within purview of Rule 7.3,
(d) no advertisement or public communication shall contain an endorsement by a celebrity or public figure
- Is this too much regulation? (really no right answer, just discussion problem on where the line may be
drawn)
- seems acceptable because banning all celebrity endorsements
- celebrities are inherently misleading
- fact that you got a celebrity to do is endorsing based on being a celebrity, not actual knowledge
- person doing endorsement doesn’t really know about what they are endorsing

• What other interests might states claim are ‘substantial’ enough to justify prohibiting ads that violate
them?
- public trust in the legal system?
- professional dignity?

4. Examples of Ads
• Edgar Snyder: ‘There’s never a fee unless we get money for you!”
- consider PA rule: can’t say this if he charges any costs, but presumably he doesn't
• ‘Get a divorce. Life is Short’ with pic of guys abs and half naked girl
- tasteless, but is this a reason to prohibit it?
• 9/11 responder saying firm took care of him
- also says ‘If you were there call us’
- may be misleading
- again, tasteless
• for video ads
- concerns about being too flashy and dramatic, first insulted former client (criminal ∆’s), misleading
(guarantees will get you out of charges)
- distinction b/w celebrity ads and lawyer ads depicting themselves in dramatic way - materiality (ad doesn’t
change what lawyer can do for you, celebrity may create impression services aren’t what they actually are)

Daniel Muessig (Slate interview)

Slate: Anything else you want the public to know?
Muessig: I did this to connect with clients and help people. As crazy and heavy-handed as the commercial is, it’s
a send up of that typical lawyer trope. Anybody I’ve actually represented in court can tell you that I’m
conscientious, I care, and I work hard for my clients.

5. PA Advertising Rule

PA Rule 7.2 Advertising

(h)    Every advertisement that contains information about the lawyer’s fee shall be subject to the following
requirements:
   (1)  Advertisements that state or indicate that no fee shall be charged in the absence of recovery
shall disclose that the client will be liable for certain expenses in addition to the fee, if such is the
case.

PA Rule 7.2 Advertising, Comment 1

To assist the public in learning about and obtaining legal services, lawyers should be allowed to make known
their services not only through reputation but also through organized information campaigns in the form of
advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer
should not seek clientele. However, the public’s need to know about legal services can be fulfilled in part
through advertising. This need is particularly acute in the case of persons of moderate means who have not
made extensive use of legal services. The interest in expanding public information about legal services
ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the
risk of practices that are misleading or overreaching.

PA Rule 7.2 Advertising, Comment 3

Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment.

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C. Solicitation

1. Definition

ABA Rule 7.3, Solicitation of Clients Comment 1

A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and
that offers to provide, or can reasonably be understood as offering to provide, legal services.

Rationale for Rule

• ‘ambulance chasing’ is what bar wanted to prevent
• idea that lawyers that needed clients would chase the ambulance to get the case

2. Ohralik v. Ohio State Bar (US 1978)

• RULE cannot solicit for pecuniary gain in personal interactions
- rationale - puts pressure on people to make uninformed decisions

The substantive evils of solicitation have been stated over the years in sweeping terms: stirring up litigation,
assertion of fraudulent claims, debasing the legal profession, and potential harm to the solicited client

Unlike a public advertisement, which simply provides information and leaves the recipient free to act
upon it or not, in-person solicitation may exert pressure and often demands an immediate response.

The efficacy of the state’s effort to prevent such harm to prospective clients would be substantially diminished if,
having proved a solicitation in circumstances like those of this case, the State were required in addition to prove
actual injury.

Marshall, J. (dissenting):
I find somewhat disturbing the Court’s suggestion . . . that in-person solicitation of businesses, though
entitled to some degree of constitutional protection as “commercial speech,” is entitled to less protection
under the First Amendment than is ‘the kind of advertising approved in Bates’.
- wants to point out that personal speech is protected by 1st Amendment
- thinks there is pro to allowing solicitation - letting them know about legal rights and remedies

2. Auerback essay (pages 739-40)

- canon prohibiting solicitation discriminated against those in personal injury practice, who bore the pejorative
label ‘ambulance chasers’
- consequences were exposed in Crystal Eastman’s study Work-Accidents and the Law published in 1910 as
part of landmark Pittsburgh Survey
- Pittsburgh Study represented one way of studying family life in an industrial and urban community
- Crystal Eastman - co-founded NCLB (became ACLU in 1920)
- TAKEAWAY: Ohralik rule would prevent attorneys from soliciting clients that were victims of work
accidents, but insurance agents can do this when trying to get victims to settle claim

3. In re Primus (US 1978)

Unlike the situation in Ohralik, . . . [the] act of solicitation took the form of a letter to a woman with whom [the
lawyer] had discussed the possibility of seeking redress for an allegedly unconstitutional sterilization. This was
not in-person solicitation for pecuniary gain.

D. Takeaways

1. Advertising (i.e. public information) generally protected if not misleading.

2. Solicitation (direct contact) generally prohibited unless not for profit.
3. Many different rules apply in different jurisdictions – CHECK LOCAL RULES!

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Negotiation Review
RLC Chapter 8,  Sections A, B & C
ABA MR 4.1, 1.6, 8.4(c)  

- Settlement range
• 56 Negotiation pairs
• 24 greater/= $200,000
• 16 between $100, 000 and $200,000
• 12 less than/= $100,000
• 1 outside client authorized range
• 3 no settlement
- This is the work
• Most lawyers spend much more time negotiating for their clients than fighting for them
• Many lawyers spend most or all of their time doing transactional work
• Even litigators negotiate all the time
- In fed court, less than 2% of cases filed go to trial
- Even during litigation one negotiates – schedules, extensions, witnesses, discovery disputes etc.

A. Common ethical issues in negotiation

• Honest dealing with negotiation partners
• Loyalty to clients
• Lawyer-client decisionmaking and communication
• Role of lawyer reputation
• Truthfulness in court (if court is signing off on bargain)

B. Sources of ethical norms in negotiation

• Rules of professional responsibility
• Contract law (bargain may be undone in some cases for misleading bargaining)
• Tort law (fraud, malpractice)
• Criminal law (fraud, extortion)
• Laws sanctioning untruthful court filings (if settlement will be court supervised)
• Legal-cultural norms of practice
• Other?

C. Valdez v. Ace Ethical Issues

1. Lying/nondisclosure
• Mr. Valdez may have lied in deposition re braking problems; In any case he has changed his story
• Mrs. Valdez says he was driving too fast
• Ace counsel thinks Valdez counsel doesn’t know about shift to comparative neg
• Candor to the tribunal (if settlement has to be ratified)

Class Comments
- I was honest with my partner but used some legal manipulation to ease around some unfavorable facts
. . . when the topic came up of the seatbelt, I made a comment about not knowing for certain whether
Rickie actually wearing his seatbelt would have prevented his death. Even though I knew that the
family doctor opined th[at] neither death nor serious injury likely would have occurred . . . .
- I also wrestled with whether not saying we are a comparative negligence state was unethical. In the
end I decided it’s not my job to make sure opposing counsel is competent.
- I will reveal that the laws have changed and that we are now in a comparative negligence jurisdiction.
Hopefully this will persuade the opposing counsel to settle, because now it isn’t a take it or leave it and
they won’t have to litigate as vigorously that the Valdezes weren’t negligent.
- Ace attorney responding to Valdez attorney’s assertion that damages awarded by a trial jury could be
very high, given the horrific nature of the accident: “That would be true if the jury does not find your
client contributorily negligent.”

Rule 3.3 Candor to the Tribunal

A lawyer shall not knowingly:
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness
called by the lawyer, has offered material evidence and the lawyer comes to know of its

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 falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure
to the tribunal. 

Restatement of Contracts 161

Disclosure is required when necessary to correct a previous assertion that is erroneous or when
the fact in question concerns a basic assumption of the negotiation and nondisclosure would violate
“good faith and . . . reasonable standards of fair dealing”
(Casebook at page 468 )

A person's non-disclosure of a fact known to him is equivalent to an assertion that the fact does
not exist in the following cases only:
. . . .

(b) where he knows that disclosure of the fact would correct a mistake of the other party
as to a basic assumption on which that party is making the contract and if non-
disclosure of the fact amounts to a failure to act in good faith and in accordance with
reasonable standards of fair dealing.
[ or is required when necessary to correct a previous assertion that is erroneous.]

ABA MR 4.1
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule
1.6.

ABA MR 4.1 – Comment [1]

A lawyer is required to be truthful when dealing with others on a client’s behalf, but
generally has no affirmative duty to inform an opposing party of relevant facts. A
misrepresentation can occur if the lawyer incorporates or affirms a statement of another
person that the lawyer knows is false. Misrepresentations can also occur by partially true
but misleading statements or omissions that are the equivalent of affirmative false
statements. 

ABA MR 4.1 – Comment [2]

Under generally accepted conventions in negotiation, certain types of statements
ordinarily are not taken as statements of material fact. Estimates of price or value
placed on the subject of a transaction and a party’s intentions as to an acceptable
settlement of a claim are ordinarily in this category, and so is the existence of an
undisclosed principal except where nondisclosure of the principal would constitute fraud.
Lawyers should be mindful of their obligations under applicable law to avoid criminal and
tortious misrepresentation.

Survey of lawyers & judges

- If asked during negotiation about the portion of the deposition testimony now known to be false, how
should the lawyer respond?
- Half say answer must be truthful and complete; half say partially true incomplete answer okay.

May lawyer enter into settlement without disclosing false deposition testimony?
• Only 39% of litigators say yes

2. Coercion
• May/must/ should Ace attorney leverage Valdez immigration status in negotiation with (perhaps implied) threat
to report it to immigration authorities?
- I was on the fence about threatening to disclose the Valdezes’ illegal status, as that feels unethical or
pretty extreme.
- I never intended to include this knowledge in my negotiation because I felt that it amounted to
blackmailing the Valdezes to settle or risk being deported.
- I struggled with how their immigration status played into the situation. It felt wrong to use that as
leverage, so I tried to phrase it as more that I would have to tell my client and they would report them
and it would be out of my hands.
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 - I planned to reveal the information from the investigator that the Valdezes were undocumented. This
would be effective to downplay any sympathy the jury may have for them. I also believed my opposing
counsel may not be aware of it and should know that before committing himself to trial.
- I told opposing counsel that I would find a way to reveal their illegal status if the case went to trial. . . .
This was my trump card, so to speak, so I felt that I must use it in order to obtain the best possible
settlement. . . . I believe that I had a duty on behalf of my client to use this information in a way that was
most advantageous to them.

- I held back the information about the Valdezes’ immigration status from my client. I did this because I
believe that the requirements of disclosure under the Model Rules are that I disclose all information
relating to my client’s representation. In my opiion the immigration status of the opposing party has no
play in the present representation of my client, rather using such information against them in the present
case would be a violation of the ethical standard set out in the Rules. I actually believe it will be
unethical to intimidate someone out of a negotiation . . ., especially when the information does not relate
to the present case.
- Although the ABA Ethics Committee Op 92-363 concludes that a lawyer may use the possibility of
pressing legal charges against an opposing party in a private civil matter to gain relief for the client, here,
it is the undocumented status is NOT related to the current claim . . . .
- However, there is no rule in the MR that addresses this, because the drafters considered it unrealistic to
expect lawyers to refrain from discussing potential criminal liability in negotiations of civil claims. I’m glad
I didn’t have to cross that bridge.

• Re coercion: ABA MR 1.2 Scope of Representation

• (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is
criminal or fraudulent . . . .

• PA Section 3923 – Theft by Extortion

(a) Offense Defined.--A person is guilty of theft if he intentionally obtains or withholds property
of another by threatening to:


(2) accuse anyone of a criminal offense;

(3) expose any secret tending to subject any person to hatred, contempt or ridicule; 

(4) take or withhold action as an official, or cause an official to take or withhold action; 

...

(6) testify or provide information or withhold testimony or information with respect to the legal
claim or defense of another

• Generally threat to assert legal right is not duress, BUT the old Model Code prohibited a lawyer from
threatening to file criminal charges to gain an advantage in a civil matter
- Nothing in the ABA Model Rules forbids this specific conduct, but some jurisdictions adopt rules
against such threats; CA has rule against administrative threats

• Survey of lawyers & judges

• May or must D atty leverage immigration status?
• MAY 55% attys MAY NOT 38% attys
• HOWEVER only 16% believed threat to report would be proper negotiation tool

3. Communication/Consulting w/clients
• following clients’ instructions – staying w/in bargaining limits
• telling ACE exec about the Valdez’s immigration status
• Valdez atty wants settlement to conserve cost outlay;
- concerned with professional reputation as fair and honest negotiator

4. May/must Ace use Plaintiff negligence as leverage

• It felt wrong and insensitive to continue to bring up their negligence, however, it’s not unethical.
• Survey of lawyers & judges
- May or must D atty use P sense of guilt and anguish as a negotiation lever if it seems likely to improve
client’s settlement result?
- MAY 84% attys MUST 50% attys
- WOULD NOT 18% attys

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 D. Cooperative v. Competitive bargaining styles –
• Is one better in certain circumstances?
• If competitive is better for one time use; is going to coop style a conflict?

I . . . think you can be both competitive and cooperative. Rather than focusing on which approach to take, the better
question is how will an attorney maintain control of the negotiation.

I could see the benefit of building a sense of reciprocity and trust with the opposing counsel, particularly in situations
where I thought there would be an ongoing relationship. I could imagine the difficulty in real life of balancing long-
term gains of cooperative bargaining with the one-time advantage of competitive bargaining. However, ethically, I
would want to put my present client’s interests aove those long-term considerations.

E. Settlement and Client’s Authority & Interests

Ace Attorney: Another ethical issue I came to was whether I should settle for a higher number despite my feelings that
my client’s case was strong. It started an internal conflict of whether settling or going to trial was the best option. In
assessing the internal conflict I was caught emotionally feeling like I could win the case at trial which place[d] more of an
emphasis on my feelings than my client.

Valdez Attorney: [Re client’s satisfaction with $100K settlement] I think they should be very happy considering they didn’t
see it important to put their five year old in a seatbelt!
I wouldn’t have taken this case as is probably obvious from my hostility toward this client . . . . Who doesn’t put their kid in
a seatbelt . . . .

Perceived disadvantage of Plaintiffs’ Attorney

“I presumed my partner held a relatively dominating position.”

“ I was . . . operating from a position of weakness. . . With all the facts out on the table, it was clear that I was coming to
Ace for a handout.”

“I think that if I was working for a large firm on behalf of a company, like Ace Auto, I would have been much more tough
during the settlement.”

“I mean they knew all my client’s dirt and my side was basically a dead loser at trial. I probably would’ve taken ten
bucks.’”

Defendant’s Attorney

This seemed like a legitimate case against the company at least to some degree so I wanted to reach a fair result. That is
we likely owed something to the plaintiff, but not to the degree they wanted.

I think that because Ace is such a substantial and large corporation, that the outcome would be the same [in a real case].
Big companies typically prefer to settle instead of going to trial.

[M]y client would probably appreciate avoiding a trial and keeping all information about the accident confidential, and thus
avoiding negative publicity. My client most likely understands that the amount of money saved by defending a good
name of the company is incomparably higher than the amount of the settlement. The economic value of the Ace Auto
Repair brand name should not be underestimated in this case scenario.
. . . Based on a similar case with similar facts, this settlement [$250,000] is half of the ‘average’ award in this type of case.
A five-year-old son with an emotional mother would surely appeal to the jury’s sympathy, and the lack of credibility on
behalf o our chief witness would also risk a verdict against us.
 

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Behavioral Ethics –III  Legal Education
Martha Minow & Robert Post, Trust in the Legal System Must Be
Regained, Boston Globe, TWEN; Gary Peller, Legal Education and the Legitimation of Racial Power (edited) TWEN
 
A. Introduction
• What do the three have to do with each other?
- Justice
- Ethics
- Professional Responsibility

B. Inequality and the Law School’s Responsibility for that Inequality

1. Peller criticizes Minow

• Peller is professor and longtime theorist in law
• is big fan of Minow and Post, but they have the wrong approach to the problem we all see
- they think problem is ‘the system is not working, procedures are broken’
- but from colonialist and black nationalist approach, the system is working how it was supposed to - system
was made to subordinate
- we don’t need to fix the system so the ‘neutral principles’ idea continues to be encoded
• it is not that system isn’t functioning how it is supposed to, but we need to change the system all together
• law schools and way legal education functions were developed when fewer people had a problem with
subordination
- systems developed during society of apartheid in order to legitimate that society, so why are were surprised it
continues to produce such inequalities
- things are proceeding on track that was built, system isn’t going off the track like Minow suggests
- need to restrure police force, judicial system, education approach, if you want to fix how the system works
• his recommendations
- rather than add body cams, you want more diverse police force
- rather than trying to make procedures for whose on law review more fair, you want more women in the law
school

2. Minow is Dean of Harvard Law

b) what is wrong is the procedures that would make law a legitimate institution
(1) causing people to lose faith in rule of law, and we are losing faith in it
c) written in wake of recent grand jury decisions in Fergusson and New Jersey
d) what legitimates state is law, and what helps that is transparency
(1) in Fergusson and NJ lack of transparency made people lose faith in the law
e) important to provide more training for police

C. Proposed Rule Change to 8.4:

• nothing in rule that prohibits discrimination of any kind
- online proposed comment to 8.4

Rule 8.4: Misconduct

It is professional misconduct for a lawyer to:
. . .
(g) in conduct related to the practice of law, harass or knowingly discriminate against persons on 7 the basis of
race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, 8 gender identity, marital status or
socioeconomic status

Rule 8.4: Misconduct – COMMENT

. . . . Although lawyers should be mindful of their professional obligations under Rule 19 6.1 to provide legal
services to those unable to pay, as well as the obligations attendant to 20 accepting a court appointment under
Rule 6.2, a lawyer is usually not required to represent any 21 specific person or entity. Paragraph (g) does not
alter the circumstances stated in Rule 1.16 22 under which a lawyer is required or permitted to withdraw from or
decline to accept a 23 representation.

• Auerbach (casebook 739-740)

- “The canon prohibiting solicitation discriminated against those in personal injury practice, who bore the pejorative label
“ambulance chasers.” . . . . the consequences were starkly exposed in Crystal Eastman’s study Work-Accidents and the
Law . . . published in 1910 as part of the landmark Pittsburgh Survey.”

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 • 1906 ABA Report - regulation is needed to contain ‘the shyster, the barratrously inclined, the ambulance chaser, the
member of the Bar with a system of runners’

• I keep coming back to the question you raise about why lawyers should be treated differently from hairdressers.
- And I guess my answer boils down to the basic fact that lawyers’s work is law work. That is, when lawyers provide
service to clients, they are engaging in legal interpretation. And fundamental to that task is that lawyers themselves - as
professionals - decide how to interpret the law.  They control their own work. So it’s not a First amendment issue in my
mind - it’s more basic than that since it goes to the heart of what it is to be a lawyer.

D. Dr. Claude Steel - Stereotype Threat

• people crossing street to avoid African American - being seen through the stereotype and it is depressing to him
• man leans that if he whistles Vivaldi he is seen differently, i.e. a black grad student instead of menacing individual
• stereotype threat: if you are trying to perform in area where your group is negatively stereotyped, you feel distracting press
that impacts how you perform
- under performance - groups whose abilities are negatively stereotyped perform worse
• ex. students perform worse than test scores predict if they are ‘stereotyped’ by society that they will do bad
• can easily produce under performance in lab
- women just as prepared as men do not perform as well as men
• to fix - build sense of identity safety (person can trust they won’t be exposed to negative experiences based on having an
identity)
- something extra we have to do so everyone can flourish in situation without pressure
- to build identity safety - valuing diversity that people bring to a situation


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Legal Ethics and Access to Justice
RLC, Chapter 13, Section B  pp. 831-836; Section C pp. 836-842; Section D pp. 842-844; Michelle Alexander, Go to
Trial Crash the Justice System TWEN
ABA MR 6.1, 6.2
 
A. The Ethical Problem
- if the foundation of the system we are professional responsible for includes a guarantee of equal access and justice, and having a
lawyer is necessary to fulfill that guarantee, then if a large part of the population is cut out from those services there is no equal justice

B. The Solution

1. Constitutional Right to Counsel?

i. Criminal - YES
(1) Amendment VI - ‘in all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of
Counsel for his defence’
(a) originally enacted not with notion of gov providing free attorneys, but under English Common Law felony
prosecution you were not allowed lawyer
(2) 1942 - Betts v. Brady - case by case due process inquiry - does ‘fundamtenal fairness’ requires?
(3) 1963 - Gideon v. Wainwright - indigent ∆ in state felony proceeding entitled to an attorney (later, misdemeanors if
risk of incarceration)

ii. Civil - Not so much

(1) 1981 - Lassiter v. Dept of Social Services - when no ’potential deprivation of physical liberty’ case by case
due process
(2) DP test for civil right to counsel under Mathews v. Eldridge
(a) balance 3 factors:
i) private interest
ii) government interest
iii) risk of error under challenged procedure - here, the risk that lack of counsel at the civil hearing
will produce and erroneous result
(3) idea - constitutional and national emphasis on individual liberty, why liberty privileged and attorney provided in
criminal cases
(4) Turner v. Rogers
(a) “the Due Process Clause does not automatically require the provision of counsel at civil contempt
proceedings to an indigent individual who is subject to a child support order, even if that individual faces
incarceration.”
(b) Facts: civil case, woman suing ex husband for non-payment of child support in South Carolina. In SC, if you
don’t pay court ordered payments for certain amount of time, you can face contempt and that can land you
in jail. This is civil case where there is ‘potential deprivation of physical liberty’
(c) Court: no right to attorney in a civil case, but right to some guarantees and if those don’t exist, you have
right to attorney; goes to Mathews v. Eldridge; could utilize form that and look at to determine if ∆ could go
to jail, i.e. produce procedural protections
i) not just deprivation of liberty we are talking about, also about fairness and who is on other side
(1) in criminal case it is state on other side
(2) in civil case like this, it is guy who is not paying ex wife
ii) here, attorney would have made no difference here
(1) ask - if had atty, would any such risk be reduced?
(2) here - having atty wouldn’t have made difference, would have lost kids anyways

C. What do we mean by "Access to Justice”

• Provide a lawyer for:
- Every nonfrivolous potentially viable claim?
- Every case that would be cost-beneficial if brought at market rates?
- Every viable case involving a crucial interest?
- Personal general counsel?

• The Numbers
- Multi-state study shows less than one in five legal problems of low-income people receives the attention of a private or legal-aid
lawyer
- Nationally, number of attorneys providing assistance in civil matters to the general public is 15 times that of legal aid attorneys
serving the poor
- 1/429 atty/gen pop
- 1/6,415 legal aid atty/poor
- Update

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 • The 2009 Justice Gap Report also included new data showing that state courts, especially . . . such specialized courts as
housing and family courts, are facing significantly increased numbers of unrepresented litigants.
• “Even if precise specification of equal justice under law eludes us, we know what equal justice is not. Creating legal institutions that
can be navigated only by people with lawyers violates any meaningful interpretation of “equal justice under law” if large segments of
the population cannot obtain a lawyer.” (David Luban, p. 842)

D. Responses
1. Reduce the need for legal assistance (no-fault insurance, forms for wills)
2. Reduce cost of legal assistance (hotlines, websites, court house facilitators, nonlawyer help– UK “Tesco law” and non-lawyer
specialists
3. Subsidize legal assistance (LSC/legal aid, public interest orgs, pro bono)—UK spends $76/capita; US $13/capita

1. How and how much should we subsidize legal services?

• www.qualitysolicitors.com
- In securing an exclusive partnership deal with online legal services provider, LegalZoom, QualitySolicitors is again showing
it is one step ahead of the competition. The beauty of the tie up with QualitySolicitors is that individual consumers and
small businesses will be able to access a wide range of online documents they can personalise but, and here comes the
good bit, with local QS firms able to help, review, provide face-to-face advice or even representation where necessary. 

• Gillian Hadfield, Post-Gazette OpEd

- “In other countries, consumer and community organizations can provide legal services, as can unions and other workplace
groups. . . . so too can large companies such as Tesco, the European equivalent of Wal-Mart. There are online subscriber
services giving legal advice on employment or consumer problems.

• Rural law initiatives

- “Just 2 percent of small law practices are in rural areas, where nearly a fifth of the country lives.” NYT
- South Dakota passed a law that offers lawyers an annual subsidy to live and work in rural areas.
- Other states have programs to match law students and new attorneys with experienced rural practitioners
- ABA’s Legal Access Job Corps is providing “catalyst grants” to innovative programs that address lo income legal needs,
targeting rural areas.

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