3 goals: familiar w/ the rules, polices behind them, application

Sources of Law
ABA Model Rules
State rules is #1 primary source.
o State rules are adopted from the ABAs w/ slight tweaks.
Other rules like rule 11 in FRCP.
Case law (mostly state).
Disciplinary decisions grievance agencies.
o In NY each of the 4 departments has its own grievance
committee.
Advisory board opinions send in your situation and theyll give an
opinion.

Consequences to Unethical Conduct

Malpractice Claim
o Malpractice is not ethical, its a negligence COA.
o What would a reasonable lawyer have done?
o What are the possible consequences?
Money/damages
Will have to report to insurance
Will also have to report for license renewal
o Ex. Arnold v. Devane (malpractice claim for lack of effective
counsel where he just didnt do a good jobineffective
questioning, etc.)
Grievance Proceeding
o This is based on ethics.
o From state committee of some sort.
o Ex. In re Meltzer (lawyer tells witness to to downplay how many
times they met to prep for testimony)
Here the judge prob filed the grievance.
Made him resign from the practice of law!
Informal Admonition
o Ex. In re Blakey (professors former students asks question and
advised her to release confidential client info)
Slap on the wrist.

Informed Consent
Rule 1.0(e)
Necessary for all important things!
Informed consent:
o Denotes the agreement by a person
o To a proposed course of conduct
 o After the lawyer has communicated adequate information
o And has explained:
The material risks, AND
The reasonable available alternatives
o To the proposed course of conduct
Need to talk to them about the issue, rather then just having them sign
a form or something.

Fiduciary Duties
Fiduciaries must put fiduciarys (clients) interests over everyone
elses in the context of the representation.
o Focus on individuality in US so thats why the primary duty is
to the client.
Fiduciary Duties:
o Competence (1.1)
o Diligence (1.3)
o Communications (1.4)
o Confidentiality (1.6)
o To avoid conflicts
o To be a zealous advocate (Preamble)
As long as it doesnt violate another rule (push back).

Competence
Competence Rule 1.1
Shall provide competent representation.
o Must do it.
Competent representation requires the legal knowledge, skill,
thoroughness, and preparation reasonably necessary for the
representation.
New lawyers and general practitioners are not categorically excluded.
Comments 1 and 5 list factors relevant to whether the lawyer has the
requisite competency in a given situation, which include:
o Complexity and specialized nature of the case
o Lawyers general experience and experience specific to this
matter
o Feasibility of necessary prep and study
o Availability of another attorney to consult with
o What is at stake
Comments 2 and 5 tell us that competent legal practice involves:
o Inquiry and analysis of factual and legal elements
o Adequate preparation
o Analysis of precedent
o Evaluation of evidence
 o Legal drafting
o Determining what kind of legal problems are involved
Violation of this rule can be grounds for discipline, though more
frequently it gives rise to a malpractice lawsuit.
Pg. 41 Problem 2 New lawyer domestic relations case and
incorporation of small business.
o Can u take either case? Maybe
o Do you have to tell them its ur first case of that type? Yes, rule
1.4.
Client must be able to make an informed decision (1.0).

Diligence
Diligence Rule 1.3
A lawyer shall act with reasonable diligence and promptness in
representing a client.
Matter should be pursued despite opposition, obstruction, or personal
inconvenience to lawyer.
Lawyer must act with commitment and dedication to interests of the
client.
o Lawyer should take whatever lawful and ethical measure are
required to vindicate clients cause.
o Lawyer must act with zeal in advocacy on behalf of client
Means of pursuing goal may be within lawyers discretion though.
A lawyer must make sure their workload is controlled so they are able
to appropriately represent the client.
A lawyer should also not unnecessarily procrastinate, since this can
often be detrimental to the client.
o Ex. missing the SOL
Should carry representation to conclusion usually.
o If not, make sure the client knows this.
o If it a long term relationship, make sure to tell them its
terminated.
If a solo practitioner, may need to have a plan in case of death
disability.

Communication
Communication Rule 1.4
A lawyer shall:
o Promptly inform the client of decisions requiring informed
consent
o Reasonably consult with a client about the means by which
objectives of representation are to be accomplished.
o Explain a matter to the extent reasonably necessary to permit
the client to make informed decisions.
 o Promptly comply with requests for info
Communication is super important so that the client can effectively
participate in the representation!
Note: What if your client wants info and youre not sure you want to tell
that info?
o Comment 7: Can withhold info sometimes if you think theres risk
of the client acting imprudently or it causing them harm. Cant
do it to serve the lawyers or others interests.

Creating the Attorney Client Relationship

What creates an attorney-client relationship? Why do we care?
o Duties and responsibilities kick in when the relationship starts.
Prospective clients
o Rule 1.18
o A person who discusses with a lawyer the possibility of forming a
client/lawyer relationship with respect to a matter is a
prospective client.
o They are awarded some, but not all, of the protections afforded
to clients.
o The duties they still owe: competence, communication,
confidentiality, and no conflicts.
o How does some one become a prospective client?
Comment 2: A person who communicates information
unilaterally to a lawyer, without any reasonable
expectation that the lawyer is willing to discuss the
possibility of forming a client-lawyer relationship, is not
prospective client.
Unilateral request for advice or unanswered phone or email
messages usually arent enough to give individuals a
reasonable belief that a relationship has been created.
So unilateral actions are generally not enough!
o Conflicts
Lawyers cant represent someone with interests materially
adverse to a prospective client.
Neither can any other lawyer in their firm, UNLESS
o Both the client and prospective client give
informed consent in writing, OR
o The lawyer who got the info took reasonable
measure to avoid unnecessary exposure to
confidential info, the lawyer is
screened/uninvolved in the case, and written
notice is given to the prospective client.
Comment 4: The attorney should take rble steps to stop
prosepective clients from giving confidential info beyond
 what is necessary for a conflicts check and other
information rbly necessary to determine whether the
lawyer will take the case, to avoid receiving information
which will potentially disqualify them from other
representations.
Ex. Fender bender P comes to lawyer, lawyer declines,
and then D comes to same lawyer. Can you take D as a
client?
Attorney/Client Relationship
o What makes the attorney-client relationship exist?
The key inquiry is whether there is a reasonable belief of
the client that an A/C relationship has been established?
Ways this happens:
Client giving confidential information.
Lawyer giving advice.
Its a spectrum so the more you and the client give, the
more likely the relationship is formed.
o Posting something, giving a speech, or distributing legal articles
is usually not enough.
Provision of information provision of advice.
o But if there is some kind of consultation given, an A/C may
emerge if applying given legal principles to a given situation.
o Ex. What if your doing a CLE or a presentation and someone asks
you a question?
Pg. 87 Problem 1 old friend asks question after lecture
prob something, maybe prospective client rather than A/C.
Generic broad advice.
Told her to talk more/come into the office.
o Ex. What about a law firm website where you can ask questions
on the website?
Ask is it info or advice?
If it sounds too much like advice dont answer.
Ex. Where could I find a sample order of protection? Info.
Ex. Should I file an order of protection? Maybe advice.
o How do you protect yourself?
Pg. 87 Problem 1 write a letter mentioning follow-up
and saying there is not A/C relationship.
Protects you and the client.
For websites have disclaimers and click wrap Ks that say
no A/C relationship unless lawyers says so.
To avoid the situation altogether, just tell them that you
would like to talk further at your office on Monday.
So . . . whether you have any duties hinges on whether an A/C or
prospective client relationship exists, as opposed to nothing at all.
 o Then, which duties you have depends on if they are prospective
or a full blown client with an A/C relationship.
Similarly, malpractice would hinge on A/C relationship existing.

Scope of Representation
Rule 1.2
Scope of representation is client based.
o Client decides the objectives.
o Communication is essential to determining this
The less substantive the more the lawyer can decide.
o Comment 1: But if its related to the means to the ends you
should collaborate with the client (1.4(a)(2)).
1.2(c): Lawyers can limit the scope if its reasonable under
circumstances and client gives informed consent.
o Comment 7: Considerable latitude to limit, but must be
reasonable.
o Limited scope may not be reasonable if it prevents the client
from access to advice on which he can rely.
o Limited scope also does not exempt lawyer from duty to provide
competent representation, though may be a factor when
determining what competence is in that situation.
1.2(d): A lawyer shall not counsel nor help a client to engage in
conduct the lawyer knows to to be fraudulent or criminal.
o BUT, may discuss the legal consequences of such conduct.
o Also cant be frivolous (need good faith claim).
o Ex. Client wants to do a KKK parade.
Pg. 88 Problem 2 only wants lawyer to deal with the purchase of the
marina itself very vague scopedoes it include the jet skis?
o Should have made it more specific to protect both of them.

Intro to Fees
Fee Agreements: Reasonableness
o Rule 1.5
o Fees must be reasonable, with the following considerations:
Time & labor, novelty & difficulty, skill needed
Likelihood that acceptance will preclude other work
Fee customarily charged in locality for similar services
Amount involved and results obtained
Time limitations imposed by client or by circumstances
Nature and length of professional relationship with client
Experience, reputation & ability of lawyer
Whether fee is fixed or contingent
o Also, courts often look at sophistication of client.
 Fee Agreements: Stock for Services
o No per se rule that forbids this kind of agreement.
o Ask whether the fee arrangement causes the lawyers interest to
conflict with the clients?
o Rule 1.8(a) (conflicts of interest)
o Lawyers entering into business transactions with clients must
abide by the following rules:
The transaction and its terms are fair and rble to the
client.
The transaction/terms are fully disclosed in writing in a
manner that can rbly understood by client.
The client must be advised in writing to seek independent
counsel and be given rble opportunity to do so.
Explain transaction in detail, including downsides and
alternatives that an impartial lawyer would detect.
The client must give informed consent in writing to terms
of transaction and lawyers role in the transaction.
o Basically . . . be fair and transparent! Explain to the client the
possible outcomes. Make sure they get it. Informed consent!
o Ex. Pg. 88 Problem 2

Confidentiality
Rule 1.6
Policy Rationale Behind Confidentiality:
o Want to encourage info want client to know that what they say
stays between the two of you thats how the lawyer can best
represent the client.
o Need trust to accomplish this!
o Fiduciary rship is grounded in trust and confidentiality.
1.6(a): A lawyer shall not reveal ANY info relating to the
representation.
o Communications and info.
o Not just what client tells youalso people you see/talk to,
documents, things that are public, info that could be gotten in
other ways, etc. NOTHING!
Cant even say their identity or what you are representing
the person for.
o Applies in all situations, not just litigation.
UNLESS
o You get informed consent, OR
o It is impliedly authorized, OR
Usually in court or in a negotiation
 Ex. a fact that could not be disputed, something that
can help you resolve an issue in the way that the
client wants you to.
Impossible to ask for consent on every single thing.
Comment 5: You are impliedly authorized to talk to other
members of your firm.
If the client asks you not to and thats a problem for
effective representation, then thats an issue you
would have to address.
o It is in the list of exceptions.
1.6(b):Exceptions
o A lawyer may reveal such info to the extent the lawyer
reasonably believes necessary
May discretionary.
Extent reasonably believed necessary so give as
little info as possible.
Ex. Tamm case dont give confidential info to the
NY Times.
Each exception starts with to.
Can only disclose the info necessary to which ever
exception it is.
o Exception #1 - to prevent reasonably certain death or
substantial bodily harm.
Ex. Client tells you theyre going to go kill the opposing
party.
Can call the cops or opposing party.
Try to convince the client out of it obvi.
Might also want to tell the client that theyre under
an exception and youll have to tell the police.
Ex. Defense doctor finds life-threatening, but treatable,
medical condition that is bad for Ds case (pg. 132 #3).
Related to the rep and life threatening.
Exception #1 prob applies.
How to handle: talk to your client, maybe set up
meeting with both parties.
o Exception #2 - to prevent the client from committing a crime or
fraud that is reasonably certain to result in substantial injury to
the financial interests or property of another AND in
furtherance of which the client has used or is using the
lawyers services.
Ex. Client says theyre going to go and smash up the
opposing partys car.
Not using lawyers services in furtherance so cant
reveal.
 Ex. Client using forged document in transaction that the
lawyer is representing in.
Now u can reveal.
o Exception #3 - to prevent, mitigate, or rectify substantial injury
to the financial interests of property of another that is
reasonably certain to result or has resulted from the clients
commission of a crime or fraud, in furtherance of which the
client has used the lawyers services.
o Exception #4 - to secure legal advice about the lawyers
compliance with these Rules.
Ex. You think your client lied in court but youre not sure
and call professor Liebmann
That fine.
o Exception #5 - to (a) establish a claim or defense on behalf of
the lawyer in a controversy between the lawyer and the client;
(b) establish a defense to a criminal charge or civil claim against
the lawyer based upon conduct in which the client was
involved; or (c) to respond to allegations in a proceeding
concerning the lawyers representation of the client.
This exception is where extent reasonably necessary is
very important.
o Exception #6 - to comply with other law or a court order.
Ex. Judge asks where your client is at hearing.
You dont have to asnwer, but you can.
Ex. Some states have laws making lawyers mandated
reporters for things like child abuse.
Most lawyers would call that in.
o Exception #7 - to detect and resolve conflicts of interest, as long
as it will not breach A/C privilege or prejudice the client.
This exception is newit was always kind of an unspoken
rule but lawyers are more transient now so they made it
official.
Confidentiality survives even when its a former client bc of trust
issues.
o Rule 1.9(c)
o Can be waived with informed consent.
Ex. Creative non-fiction about case still in appellate process. Litigation
strategy and client state of mind revealed.
o Violation bc she revealed info relating to the rep and it wasnt
covered under an exception, there was no informed consent, and
it wasnt impliedly authorized.
Confidentiality vs. Honesty
o A lawyers duty of candor to the tribunal (Rule 3.3) may conflict
with confidentiality in some instances (3.3(c)).
 Comment 10: If a lawyer knows that material info
presented by a client is false, they may have to reveal info
reasonably necessary to remedy the situation, even if that
includes info protected by confidentiality.
Comment 12: Same thing if the client is engaging in
fraudulent or criminal conduct related to the proceeding.
o Also, a lawyer is prohibited from knowingly failing to disclose a
material when doing so would assist a criminal or fraudulent act
by a client, UNLESS prohibited by 1.6.

A/C privilege vs. Confidentiality

A/C privilege: Rest. of the Law Governing Lawyers 68-72
o A communication (verbal or written expression)
o Made between privileged persons (client, prospective client,
lawyer, and/or agents of either)
o In confidence (private based on reasonable belief)
Ex. If third person was there covered under
confidentiality but not A/C privilege.
o For the purpose of obtaining or providing legal assistance for the
client (in the context of the representation/anything for which a
lawyer would have special knowledge or skill based on their
professional training)
FRE 502
o Any waiver of A/C is generally only a wiaver for the specific info
disclosed, not all material on the subject. Other info may be
included only if its necessary for fairness, bc the info disclosed
was done so in a selective/misleading way.
o Inadvertent disclosure is only a waiver of A/C if reasonable steps
werent taken to prevent the disclosure and reasonable steps
also werent taken to rectify it.
A/C privilege is an evidentiary rule, while confidentiality is an ethical
rule.
o So one big difference is in terms of what evidence can be
admitted.
A/C is less broad then confidentiality.
A/C privilege protects info from disclosure only in judicial or other
proceedings, while confidentiality operates all the time.

Confidentiality and Physical Evidence

Real Evidence questions raise three primary issues:
o What is lawyers ethical responsibility when learning about
and/or coming into possession of tangible evidence that may be
relevant to a pending (civil or criminal) case or one that may
potentially come in the future?
 o What are the limits imposed by criminal law on what the lawyer
does with such evidence?
o What is the evidentiary impact of the evidence and
communications between lawyer and client about the
evidence?
Evidence is included in confidentiality bc it is info gained in the course
of the representation. Also goes back to the issue of trust.
People v. Belge (case where lawyers knew of additional murder
victims and went to photograph the bodies, but refused to tell anyone
anything, even when the father of a victim directly asked)
o None of the 1.6(b) exceptions apply in this situation.
o Court said it was ok. Lawyers need to be zealous advocates, and
confidentiality is key to that.
Rule 1.2(d): Prohibits a lawyer from counseling/assisting a client to
engage in crime or fraud.
Rule 3.4(a): A lawyer shall not unlawfully obstruct another partys
access to evidence or unlawfully alter, destroy, or conceal a document
or other material having potential evidentiary value.
o Nor shall they counsel someone else to do such act.
o Comment 2: Applicable law may permit a lawyer to take
temporary possession of physical evidence of a clients crimes
for the purpose of conducting a limited examination that
will not alter or destroy material characteristics of the evidence.
In such a case, applicable law may require the lawyer to turn the
evidence over to the police or other prosecuting authority,
depending on the circumstances.
In re Ryder (attorney moved Ds shotgun and stolen money from Ds
safe deposit box to the attorneys own safe deposit box)
o Went too far. Attorney took the initiative/played an active role in
hiding evidence.
People v. Meredith (D told lawyer where he had put wallet of victim
and Ds lawyer told investigator to get the wallet out of trash can
later turned it into the police)
o Issue 1: Whether an observation which was the product of
privileged communications is protected by the A/C privilege?
Yes.
o Issue 2: Whether an attorneys alteration or removal of evidence
changes the A/C privilege protection.
Yes. Investigators testimony can be admitted bc they
altered/removed the evidence.
Pg. 117 Problem 1
o Adams (current client puts gun on desk) might have to say
something eventually
 o Baker (current client says where evidence is located) should be
able to say nothing
o Earl (unknown person confesses to crime and puts gun on desk)
cant force an attorney client privilege on someone
o Dunn (long-time client tells all about the heist hes planning next
week) prob cant reveal
Rule 1.4: A lawyer should consult with their client about relevant
limitations on the lawyers conduct when the lawyer knows that the
client expects assistance not permitted by the Rules or other law.
o Such as hiding evidence.

Confidentiality and Technology

Rule 1.6(c)
o A lawyer shall make reasonable efforts to prevent inadvertent or
unauthorized disclosure of or access to info relating to the
representation of a client.
Just added in 2012 bc of technology.
Ex. passwords, the cloud
o Comments 18 and 19: Recognizing higher risks of inadvertent
disclosure, lawyers must act competently (and competently
supervise others) to safeguard confidential info and take
reasonable precautions to protect transmission of info to
unintended recipients.
o Comment 18: Generally, lawyers must simply make reasonable
efforts to prevent disclosure.
Factors to determine reasonableness of lawyers efforts:
Sensitivity of info
Likelihood of disclosure if additional safeguards not
employed
Cost of employing additional safeguards
Difficulty of employing additional safeguards
Extent to which additional safeguards would
negatively affect the lawyers ability to represent
clients.
o Special security measures are usually not necessary if the
method of communication gives a reasonable expectation of
privacy.
Though special circumstances may warrant special
precautions.
A client may also request additional security.
Whether a lawyer has to comply is beyond these
rules.
o Comment 19: Lawyers must take reasonable precautions to
prevent unintended recipients of information.
 Factors to be considered in determining the rbleness of a
lawyers expectation of confidentiality:
Sensitivity of the info.
Extent to which privacy of communication is
protected by law or by a confidentiality agreement.
This is the extent of the aid given by the ethical rules for technology.
o Bc the Rules are difficult to changeso they cant keep up with
changing tech.
Ex. Rate my attorney type situations.
o Subject to Exception #5 (1.6(b)(5)).
o 5(e) of NYSBA Social Media Guidelines: Cant reveal confidential,
even to respond to unflattering comments.
Can make truthful statements that dont contain
confidential info though.
Recipients Responsibilities
o Rule 4.4(b)
o An attorney receives confidential information (in a document or
electronic medium) and knows or rbly should know that the info
was inadvertently sent shall promptly notify the sender.
o Whether the recipient must take further action, such as returning
or deleting the info, is beyond the scope of the Rules.
Its a matter of professional judgment, unless some other
law says otherwise.
o Also beyond the scope of the ABA Rules is whether A/C privilege
has been waived.
FRE 502: Inadvertent disclosure is not a waiver of A/C
privilege if reasonable steps were taken to prevent the
disclosure and reasonable steps also were taken to rectify
it.
Ex. Inadvertent disclosure in text messageaccidentally sent to
opposing counsel instead of the client.
o Can opposing counsel use the info?
o Not an ethical violation prob.
o May have been an ethical violation for the attorney sending the
text bc he didnt take reasonable precautions when in this day
and age everyone knows how to send a text.
Note: Recent case Can you bcc your client if the other lawyer says
no? Yes, according to an ethics committee.

Conflicts of Interest
Rule 1.7
Dont want to do anything that will chip away at your undivided loyalty
to your client.
 o So spirt of all the rules is dont do things that will compromise
your loyalty to the client.
Reasons to not just ban representations with conflicts outright:
o Clients right to choose counsel
o Livelihood of the attorney
o Minimize tactical use of the rules
Ex. case where husband goes to all the divorce lawyers in
town
Current Clients
This is all for current clients.
Note that there is no mens rea requirement for conflicts issues.
1.7(a): A lawyer shall not represent a client if the representation
involves a concurrent conflict of interest.
A concurrent conflict of interest exists if:
o (1) The representation would be directly adverse to another
client
Cant be opposing counsel to your client in some other
lawsuit.
They will feel betrayed, and the other new client will
likely feel worried about your loyalty.
Counts as directly adverse even if your client isnt the
litigant (ex. witness) and the matters are unrelated.
Fine if only economically adverse.
Ex. Representing owners of two competing sandwich
shops.
o OR (2) There is a significant risk that representation of one or
more clients will be materially limited by the lawyers
responsibilities to another client, a former client, a third person,
or by a personal interest of the lawyer.
Questions to ask:
What is the likelihood that interests will divide?
Will those divided interests affect lawyers ability to
judge and consider alternatives?
Will those divided interests foreclose courses of
action that rbly should be pursued on behalf of the
client?
Ex. Personal stake
Cortez (defendants lawyer had her own case
pending against her which was being prosecuted by
the same DAs office)
Is this a conflict? Yea prob. But harmless error
according to the court.
Ex. Wifes attorney represented by husbands attorney in
his own divorce.
 Prob not an ethical violation if you let the wife know.
Note: Risk of conflict when representing multiple co-
defendants is usually so grave that it is almost never
allowed (1.7 Comment 23).
Conversely, representation of multiple clients in civil
litigation is quite common.
A number of personal conflicts for the attorney (1.7(a)) are
clarified in Rule 1.8.
1.8(j): Sexual relationships
o Creates to big of a risk of exploitation of the
fiduciary role and impairment of judgment.
o Ex. Lowe (had sexual relationship with
vulnerable client and billed for meeting in
which they had sexual relations)
o Only allowed if the sexual relationship predates
the attorney/client relationship.
1.8(e): Financial assistance
o Cant provide financial assistance for the
litigation.
Dont want lawyers to subsidize litigation
or have such a stake in the outcome.
o May advance court costs/expenses.
Prob shouldnt be loaning client any
money anyway though.
o May pay court cost/expenses for an indigent
client.
Ex. What if you buy an indigent client
lunch at the court house? Or pay for their
cab to court?
Prob oknot likely to be reported
but not clear from the rule.
1.8(h)(1): Advanced waivers of liability
o Cannot do it unless the client is represented by
independent counsel.
o Ex. Galderma (general counsel for corp.
signed the form)
Sophisticated corp. with independent
counsel these were big considerations
in the matter.
Also included are transactions adverse to the client,
gifts, literary and media rights, aggregate
settlements, etc.
1.7 Comment 24: It is normally OK to take inconsistent
legal positions in different tribunals at different times on
 behalf of different clients, possibly creating adverse
precedent.
Not directly adverse.
However, will create a significant risk of material
limitation if the precedent would seriously weaken
the other clients position.
Factors to consider are whether the cases are
pending in the jurisdiction, whether they are similar
temporally, whether the issue is procedural or
substantive, and whether the conflicting issues are
significant to the case.
1.7(b): Notwithstanding a concurrent conflict, a lawyer may represent
the client if:
o (1) The lawyer reasonably believes that hell be able to provided
competent and diligent representation to each client, and
o (2) The representation is not prohibited by law, and
o (3) The representation does not involve assertion of a claim by
one client another represented by the lawyer in the same
litigation or other proceedings before a tribunal, AND
o (4) Each client gives informed consent in writing.
Comment 19: If confidentiality prevents the disclosure
necessary to have informed consent, effective informed
consent cannot be given.
o AND need all 4!
If a conflict does not meet all 4 criteria it is nonconsentable.
o Main inquiry for nonconsentability is whether the interest of the
clients will be adequately protected if they are permitted to give
consent.
Comments 29 to 33: Representing Multiple Clients in the Same Matter
o There are many concerns in this situation, such as adverse
interests, inability of the lawyer to be impartial, knowledge of
confidential information, etc.
One big problem is differences in settlement possibilities.
o If proceedings will be contentious, this arrangement almost
certainly wont work.
o If you are doing this, will need to make clear to clients that the
lawyers role will be different than usual and that the client will
have to be more responsible for their own decisions.
o Pg. 203 Problem 2 One owner of small business lawyer
represented for many years is selling their interest to the other
owner. Can you draft the papers?
Prob a conflictunless its literally just writing down what
theyve already agreed to without giving any advice.
 o Pg. 203 Problem 3 Married couple suffered varying degrees of
injury in a car accident. Can you represent both?
Need informed consent even if theyre married.
What if they dont agree on what to settle for?
With the informed consent prob need to agree that both
would have to get new attorneys if this doesnt work out.
See also Rule 2.4: Lawyers as 3rd Party Neutrals
o In these situations, the parties involved are not the lawyers
clients, so there is no conflict. But they must be fully informed
and aware of that.
Ex. What if a lawyer is seeking employment with a party adverse to a
client?
o According to DC opinion, two tests:
Subjective The lawyers own perception of his/her own
ability for zealousness for the client.
AND
Objective The perception of an observerwould they
have reasonable doubt of the lawyers ability to be
zealous?

Entities as Clients
Called organizational clients in the Rules.
Rule 1.7 Comments 34 and 35
Representing an organization does not mean you represent their
constituents or affiliate organizations, such as parent, subsidiaries, etc.
o So a lawyer may be able to represent those adverse to them
(Comment 34).
Rule 1.13
Need to know WHO the client is.
o (a) A lawyer who represents an entity does so through its duly
authorized constituents.
o But, the lawyer must act in the organizations best interests,
not the constituents.
(f) Therefore, a lawyer will have to explain the identity of
the client when the lawyer knows, or rbly should know,
that the orgs interests are adverse to those of the
constituents with whom the lawyer is dealing.
(b) A lawyer must proceed as reasonably necessary in the best interest
of the org. when someone in the org. is:
o Violating a legal obligation to the org. (past, present, or future),
OR
o Doing something illegal which could be imputed to the org.,
AND
o Substantial injury to the org. is likely to occur.
 UNLESS the lawyer rbly believes that it isnt necessary in the best
interest of the org. to do so, the lawyer SHALL inform a higher
authority in the org. (up to and including the highest authority therein).
o This is mandatory reporting up.
(c) If, despite the lawyers efforts, the highest authority of the org.
insists upon or fails to address in a timely and appropriate manner OR
refuses to act in violation of the law, AND the lawyer reasonably
believes substantial injury will result, THEN the lawyer may reveal
information relating to the representation (regardless of
confidentiality), BUT only to the extent the lawyer rbly believes
necessary to prevent subl injury to the org.
o This is permissive reporting out.
o (d) Permissive reporting out does not apply, when the lawyer has
been hired to investigate or defend illegality of the organization
or its constituents.
Ex. Tamm again.
o Even if he wanted to report out, still can only be to the extent
necessary prob could have done something less public than
going to the NY Times.

Former Clients
Are the rules stricter for current clients or former clients?
o Fewer obligations in general for former clients.
Former clients are those with which the representation is truly over.
o A lawyer cannot unilaterally decide that they are no longer
representing someone (see Krutzfeldt).
Rule 1.9
(a) A lawyer who formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially
related matter in which that persons interest is materially adverse to
the interests of the former client, unless the former client gives
informed consent in writing.
o This is much more lenient than for current clients 1.7 requires
everything in (b), as opposed to just informed consent.
o Also, more things under 1.7 are considered directly adverse (like
cross exam in totally different matter)here it just cant be
substantially related and materially adverse.
Comment 3: Matters are substantially related if:
o They involve the same transaction or dispute, OR
o There is a substantial risk that the lawyer acquired confidential
info in the normal course of representation which would
materially advance their new clients position.
The former client does not have to prove that the lawyer
actually has any such information
 Therefore, there is an irrebuttable presumption that a lawyer has
received confidential info in substantially related matters.
Only informed consent by the former client will allow the lawyer to
proceed.
(b) If a lawyers former firm represented a client with materially
adverse interests and who the lawyer learned material confidential info
about, in the same or a subslly related matter, to a client at the
lawyers new firm, the lawyer cannot represent that new client unless
the old firms client gives informed written consent.

Prospective Clients
Rule 1.18
A lawyer who got info from a prospective client cant represent
someone with interests materially adverse in a substantially
related matter, if the info would be significantly harmful to the client.
This is disqualifying info.
o Except subject to (d).
o This applies to everyone in the firm by imputation.
1.18(d): A lawyer with disqualifying info can still represent if:
o Both affected and prospective client give informed consent in
writing, OR
o The lawyer who received the info took reasonable measures to
avoid exposure to more disqualifying info than was reasonably
necessary, the DQed lawyer is timely screened, and written
notice is given to the affected client.

Imputation of Conflicts
Conflicts are imputed to everyone in the same firm.
o When one member of a firm is DQd from representing a client,
the lawyers conflict generally will be imputed to the rest of the
firm, the theory being that confidential info known to the lawyer
will be shared with other members of the firm. The rule gives
effect to the principle that a law firm collectively owes its clients
a duty of loyalty.
Rule 1.10
(a) While lawyers are associated in a firm, none of them shall
knowingly represent a client when any of them practicing alone would
be prohibited from doing so by Rules 1.7 or 1.9.
o This does have a mens rea requirement. Must be knowing
(defined in 1.0).
o Automatic disqualification of the firm for current clients.
o Krutzfeldt case disqualified the whole firm.
(a)(1) UNLESS the lawyer had a personal interest conflict and there is
no significant risk of material limitation for the remaining lawyers.
 o See Comment 3
o See also 1.8(k) (all conflicts (a)-(i) imputed does not include
sexual relationships).
(a)(2) OR a lawyer is prohibited based on 1.9(a) or (b) (former client) at
a prior firm AND
o The conflicted lawyer has been timely screened.
o The conflicted lawyer gets no fees, and
o Written notice/certification of compliance is given to the former
client.
No informed consent needed!
1.10(b): Imputation for the Firm Left Behind
o When a lawyer leaves a firm, the lawyer takes her conflicts with
her (i.e. the firm that was left behind is not prohibited from
representing clients who have conflicts with that lawyers
clients), UNLESS:
The matter is the same or substantially related to the
former lawyers client, AND
Any lawyer who remains at the firm has confidential info
about the former lawyers client protected under 1.6 or
1.9(c).
Non-lawyers
o In general, a firm is not prohibited from handling a matter which
a non-lawyer has a conflict with from prior work, such as a law
student, paralegal, or secretary.
o However, these people ordinarily must be screened from
personally participating in the matter and must avoid
communication of confidential info to others in the firm.
o But see Texas Ethics Opinion 644 (law student who worked for
opposing counsel on same matter disqualifies the firm and this
cannot be avoided by screening)

Conflicts Summary
So . . .1.7 Comment 2 working your way through a conflicts problem:
o 1) Clearly identify the client(s).
o 2) Determine whether a conflict exists.
Either where interests are directly adverse, or where there
is a significant risk that you will be materially limited.
The key question: is your loyalty to one client limited by
your obligations to another client?
o 3) Decide whether the conflict is consentable (under (b))
o 4) If so, consult with the clients and obtain informed written
consent.

Decision-Making and Client Autonomy

 Rule 1.2: A lawyer shall abide by a clients 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.
o Comment 2: While clients usually defer to a lawyer with technical
and legal matters, lawyers usually defer to clients when it
involves:
Expenses to be incurred
The interests of a 3rd party
o Lawyer must defer to clients decisions for:
Criminal Matters:
Whether to plead guilty (1.2(a))
Whether to testify (1.2(a))
Whether to be present at trial
Whether to waive a jury trial (1.2(a))
Whether to appeal
Civil Matters:
Whether to settle (1.2(a))
Whether to stipulate to law/facts (if stipulation would
foreclose claims/defenses)
Whether to appeal
Rule 1.3: In pursuing the clients goals, a lawyer must:
o Take whatever lawful and ethical measures are required to
vindicate a clients cause or endeavor.
o Act with commitment and dedication to the interests of the client
and with zeal in advocacy upon the clients behalf.
Must abide by clients goals, even if you dont agree with them.
Rule 2.1: Can (and must) give candid advice though.
o Even if the client wont like it.
If you dont agree, just keep it to yourself, unless you want to withdraw.
o Because its just as bad if you tell the judge that u disagree.
o That is not zealous advocacy.
Conversely, under Rule 1.16(a)(3), the client may resolve the
disagreement by discharging the lawyer.
At the end of the day, its all about the client!
Some limits on client autonomy:
o A lawyer must decline to assist in crimes/fraud (1.2(d)).
o A lawyer can decline to offer evidence she rbly believes is false
(3.3(a)(3)).
o A lawyer might be able to withdraw if she has a fundamental
disagreement with the client (1.16(b)(4)).

Diminished Capacity
Rule 1.14
 What is diminished capacity?
o May be due to minority or mental impairment.
o Factors to consider:
Clients ability to articulate reasoning
Variability of state of mind
Ability to appreciate consequences
Substantive fairness of a decision
Consistency of a decision with long-time goals/values if
known.
Comment 1: The client may still have the ability to understand,
deliberate, upon, and have opinions entitled to weight in legal
proceedings.
Must try to keep a normal client-lawyer relationship default.
A lawyer may (discretionary) take reasonably necessary protective
measures, if the lawyer reasonably believes:
o The client has diminished capacity, and
o The client is at risk of substantial physical, financial, or other
harm unless action is taken, AND
o The client cannot adequately act in the clients own interest.
Comment 5:
o Protective measures might include:
Consultation with client (almost always the first step)
Conversation with family members.
Using a reconsideration period to permit clarification or
improvement of circumstances.
Using surrogate decision makers such as durable powers of
attorney
Consulting with protective service agencies
Seeking appointment of a guardian ad litem, conservator,
or guardian.
o In taking protective action, the lawyer should consider:
Wishes and values of client to the extent known
The clients best interests
Intruding into the clients decision-making autonomy the
least amount feasible
Maximizing client capacities
Respecting the clients family and social connections
Notice, that the rule does NOT say to advocate for a position thats
against your clients wishes.

Withdrawl
Rule 1.16
 Mandatory Withdrawal: A lawyer must withdraw if (1) the
representation will result in a violation of the law or the Rules, (2) the
lawyers physical or mental condtion materially impairs their ability to
represent the client, or (3) the lawyer is discharged.
o Ex. of (1) is a conflict.
Permissive Withdrawal: A lawyer MAY seek withdrawal if:
o (b)(2) and (3): The client has used, or is reasonably believed to
be using, the lawyers services for crime or fraud.
o (b)(4): She has a fundamental disagreement with or finds
repugnant a course of action upon which the client insists.
Shouldnt be done lightly bc then someone else is going to
have the same problem.
Ex. Death penalty cases where the client wants the death
penalty.
o (b)(7): Other good cause exists.
(d): A lawyer still must take reasonable steps to protect the clients
interests.
o Still have obligations even though you are leaving.
Tip: Put warning in your retaining agreement what you expect of your
client and what you will do for them to avoid this.
If you are going to withdraw look at your local rules first.
Also think carefully! Think about if another lawyer will have the same
problem. If so, maybe u should keep the case.

Advising the Client

Preamble Paragraph 2
o As an advisor, a lawyer:
Provides a client with an informed understanding of the
clients legal rights and obligations; and
Explains the practical implications of those rights and
obligations.
Counseling is one of the primary functions of a lawyer.
o Ex. 1.4(b) SHALL explain a matter as necessary
o Ex. 1.2(a) SHALL consult w/ client on how to pursue
o Ex. 2.1 SHALL render candid advice
HOW should lawyers advise clients?
o Dont just say how to win.
o Give ramifications, consequences, how to achieve goals.
o Give candid advice.
What are the LIMITS when advising a client?
3 things to think about for ethical client advising: 1.4(b), 1.2(d), 2.1.
o 1.4(b): Explain questionable conduct to the extent necessary for
client to make an informed decision.
 o 1.2(d): Cant advise a client to engage in fraudulent or criminal
behavior.
Comment 9: But can present the legal analysis of those
actions and their consequences.
o 2.1: Give candid advice, including moral/social considerations.
Ex. In re Rios (lawyers suggested to client where she tripped and fell
when their investigation showed that her original story would not give
a COA)
o Why was it bad? Because they were suggesting facts.
Ex. Tax audit very small chance (1%) of being caughtcan you tell
them that?
o Prob can answer.
Ex. Torture memos
o Was it simply advice on the relevant laws application to facts?
Or twisting the law to what their client wanted it to be

Duty of Candor
Rule 3.3
3.3(a)(1): A lawyer cant knowingly make false statements to a
tribunal, or fail to correct false statements of material fact or law
previously made by the lawyer to the tribunal.
o Knowing = actual knowledge can be inferred (1.0).
Gotta be pretty sure though, basically the client has to say
it.
o Tribunals can be courts, legal authorities, administrative
agencies, legislative bodies, etc.
o Material = outcome determinative (according to the SC)
Leibmann: Err on the side of the client that its
immaterial.
3.3(a)(3): A lawyer cant knowingly offer evidence the lawyer knows is
false.
o If lawyer knows or comes to learn that false material evidence
has been offered, lawyer must take rble remedial measures,
including, if necessary, disclosure to the tribunal.
A lawyer may refuse to offer evidence he reasonably believes is
false, UNLESS it is the testimony of a criminal defendant.
o Discretionary for civil cases dont have to present testimony if
you have a reasonable belief.
o In a crim. case though, you have to let them testify bc of the
constitution, even if you KNOW theyre going to lie.
You cant offer the evidence yourself.
In most jurisdictions, you would just let D testify
themselves without questioning them, etc.
o Monroe Freedman problem pg. 447
 o Called the perjury trilemma. Monroe Freedman
Lawyers 3 duties: duty to investigate all facts, duty of
confidentiality, and duty of candor.
Freedman: The 3rd is the one thats got to give.
3.3(b): If a lawyer knows that a person intends to engage in, is
engaging in, or has engaged in criminal fraudulent conduct related to
an adjudicative proceeding, the lawyer must take rble remedial
measures, including, if necessary, disclosure to the tribunal.
o This subsection is really about preserving the integrity of the
judicial process, not lying in testimony, which is covered under
3(a).
Remedial Measures
o Comment 10
o First talk to the client try to get the testimony removed or
corrected.
o After that might have to talk to the court.
To the extent reasonably necessary.
Even if this requires disclosure of 1.6 protected info.
Then its upt to the court to decide might tell the jury,
declare mistrial, do nothing, etc.
A lawyer cant knowingly fail to disclose to the tribunal legal authority
in a controlling jurisdiction the lawyer knows directly adverse to her
clients position, and that other side did not disclose (3.3(a)(2)).
How far can a lawyer go with a guilty client?
o Whats the difference between lying and putting on a defense?
Or presenting reasonable doubt?
o Ex. Christmas tree star cant outright liecan say its the
prosecutions burden, there are other possible scenarios, etc.
Nix v. Whiteside (D changed story and was going to lie about
whether he saw decedent holding a gun or notlawyer convinced him
not to lielater D claimed ineffective assistance of counsel)
o Duty to be a zealous advocate, but there are limitations.
o This as within the bounds of the Rules.
o Lawyer didnt commit any serious error here by seeking to
prevent the client from testifying falsely or threatening to
disclose or withdraw no prejudice to the client.
Right to testify, but not to testify falsely
Can you try to impeach a witness that you know to be truthful?
o Yea.
If you fail to be honest toward the tribunal, this will also be unfair for
opposing counsel (see 3.4(b)).

Presenting a Claim Ethically

3.1:
 o A lawyer may not bring a frivolous case or make assertions in a
case that have no basis in law or fact.
o The standard is that you must be able to make a good faith
argument.
Lawyers can make good faith arguments for an extension,
modification, or reversal of existing law.
o Comment 2: Lawyers have an obligation to inform themselves
about the applicable law and fact to determine if they can make
good faith arguments.
A claim isnt necessarily frivolous merely because the facts
have not first been fully substantiated or because the
lawyer expects to develop vital evidence only by discovery.
A little more leeway with the facts bc its understood that
more things will come to light.
Arguments arent necessarily frivolous just because the
lawyer believes the client will not ultimately prevail.
o Comment 1: Lawyers have a duty to use legal procedure for the
fullest benefit of the clients cause.
Although cant abuse it.
o Comment 3: Criminal defense lawyers have a bit more leeway all
around.
FRCP 11 = another rule you can get into trouble under if you make
frivolous claims.
o Says that:
Representations cannot be presented for an improper
purpose, such as:
To harass,
To cause unnecessary delay, or
To needlessly increase the cost of litigation
Claims must be warranted by existing law, OR a non-
frivolous argument can be made for extending, modifying,
or reversing existing law or for establishing new law.
Factual contentions must have evidentiary support, OR be
likely to have evidentiary support after a rble opportunity
for further investigation or discovery.
Denials of factual contentions must be warranted on the
evidence or identified as reasonably based on belief or a
lack of information.
Lawyer must have made an inquiry rble under the
circumstances.
o Most attorneys dont file ethics claims against each other.
o BUT it is not that uncommon for attorney to file for sanctions
against each other.
 o Why is that? Might affect the outcome of the lit, could be a
bargaining chip, etc.
Rule 3.2: Delay
o Delay just to delay is not frivolous under 3.1, but its not ok
under 3.2.
o A lawyer shall make reasonable efforts to expedite litigation
consistent with the interests of the client.
Realizing financial or other benefit form the otherwise
improper delay is not a legitimate interest of the client.
Rule 3.7: Lawyer as a witness.
o Generally a lawyer cant be a witness in a case where they are
also an advocate.
o UNLESS:
The testimony is for an uncontested issue, or
The testimony relates to the legal services rendered in the
case, or
The disqualification of the lawyer would work a substantial
hardship on the client.

Ethics in Negotiation, Investigation, and Discovery

Outside of court
o 3rd parties rather than tribunals.
o How honest do you have to be?
Truthfulness of Statements to Others
o 4.1: A lawyer is prohibited from knowingly:
Making false statements of material fact/law to a 3rd party.
Failing to disclose material fact when disclosure is
necessary to avoid assisting crime/fraud by client, UNLESS
disclosure is prohibited by 1.6 (confidentiality).
Ls take: If the info you want to reveal falls under one
of the permissive disclosures (1.6(b)), you can reveal
it.
o So must be truthful, but no duty to disclose relevant facts.
o Comment 1: Misrep can occur when the lawyer knowingly:
Incorporates false statements of another person
Affirms a false statement of another person
Makes a partially true but misleading statement or
omission that is equivalent of affirmative false statement.
Negotiations
o Can you lie? Yea.
o Its expected in that setting.
3 questions:
o Is the statement false? Is it material? Is this a
negotiation?
 o If yes to all, its ok.
Ex. Pg. 519
o 1st scenario. Answer question with a question false statement
probably not a violation tho bc its a negotiation.
o 2nd scenario. Is this a third party or tribunal? Prob third party.
False statement maybe material prob not a negotiation
when you have an outside party there overseeing it.
Two overarching perspectives:
o Lots of lying allowed one negative is that youll get a
reputation .
o If you are representing the less powerful client, in the gray areas
you can push the boundaries a little more.
Rule 4.2 and 4.3: Communicating With Other Parties
o Rule 4.2: Prohibits an attorney from communicating regarding
the subject of the representation with a person who is
represented in the matter, unless you have consent of the
other lawyer.
o Rule 4.3: Does not prohibit communicating with unrepresented
parties, but lawyer cannot state or imply she is disinterested, and
must correct any misunderstanding about her role.
Need to make it very clear who you are and your role in
things.
Special rule for prosecutors (Rule 3.8(c)): May not seek
waiver of important pre-trial rights from unrepresented
person.
o Quiz: Request to follow husbands comments on blog in divorce
case when representing wife.
Have to ask lawyers permission to talk to represented
opposing party.
But is this really communication? How is it different from a
public blog or facebook page?
Friend request is definitely a communication
Different when you send a request like knocking
on someones door and asking to come in.
If its like something you could have heard on the street its
fine
o Investigation
Very different before an arrest and after before an
investigator can go and talk to whoever they want.
If its something you cant do, cant ask non-lawyers who work for you
to do it either.
o Rule 5.3(b): A lawyer with direct supervisory authority over a
non-lawyer must make rble efforts to ensure the non-lawyers
conduct is compatible with the lawyers professional obligations.
 o (c): A lawyer is responsible for the conduct of non-lawyers, if the
lawyer:
Orders or knowingly ratifies the conduct; or
Has managerial authority or direct supervisory authority
over the non-lawyer, AND knows of conduct when
consequences could be avoided or mitigated but takes no
rble remedial action.
3.4: Fairness to Opposing Counsel
o 3.4(a): Cant obstruct evidence.
Ex. representing wife in divorceshe posts stuff on FB that
will be bad for her case.
Can you tell her to just delete it? No.
What about delete but save record? Yes, do that.
o 3.4(b): Cant falsify evidence, counsel or assist witness to testify
falsely, or offer an inducement to a witness that is prohibited by
law.
Inducement prohibited by law Comment 3 cant have
expert witnesss fee contingent on winning the case.
o 3.4(d): Prohibits frivolous discovery requests as well as the
failure to make rbly diligent efforts to comply with the
other partys legally proper discovery request.
o 3.4(f): Cant ask other person (besides client) to not talk to the
other side.
Unless their the clients family, employee, or agent.
Unless the lawyer reasonably believes that the person
(doing the refraining) will not be adversely affected by not
talking.

Special Challenges for Government Lawyers

Prosecutors
Administering justice!
o Comment 1: A prosecutor has the responsibility to act as a
minister of justice and not simply as an advocate.
Opposing side is the Dbut prosecutors still have to look out for their
interests too.
Rule 3.8(a): A prosecutor must refrain from prosecuting a charge that
she knows is not supported by probable cause.
3.8(b): A prosecutor must make efforts to assure an accused has been
advised of right to counsel, and the procedure for obtaining counsel.
3.8(c): Cant ask unrepresented D to waive important pre-trial rights
(see unrepresented communications).
3.8(d): A prosecutor must make timely disclosure to a D of all evidence
or info known to the prosecutor that tends to negate the guilt of the
accused or mitigate the offense.
 People v. Jones (victim/witness in case died towards end of plea
bargaining)
o Court held that the prosecutor did not have to disclose.
o Didnt reduce PC. Didnt negate or mitigate guilt. So didnt have
to say it.
Post conviction responsibilities:
o Rule 3.8(g): If a prosecutor knows of new, credible, and material
evidence creating a rble likelihood that a convicted D did not
commit the offense for which he was convicted, the prosecutor
must:
Promptly disclose the evidence to an appropriate court or
authority
AND
If the conviction was in the prosecutors jurisdiction
Disclose the evidence to the D, and
Investigate or make rble efforts to cause an
investigation to determine whether the D was
convicted of an offense he didnt commit.
o So . . . need to tell people if new evidence comes out whether its
in your jurisdiction or not!
o If not in ur jurisdiction just have to do a little less.
Just have to call them.
o 3.8(h): If the evidence is clear and convincing that the D didnt
commit the crime, and its in your jurisdiction, you have to try
to remedy that conviction.
Comment 8: Efforts to remedy may include disclosure to D,
requesting counsel for an unrepresented D, or notifying the
court.

Trial Publicity
3.6: General Trial Publicity
o Cant make any extrajudicial statements that have a substantial
likelihood of materially prejudicing an adjudicative proceeding.
o Can say general facts about the case.
Special rule for prosecutors (3.8(f)): Prosecutors and all who work for
them should refrain from saying anything about the case that have a
substantial likelihood of heightening public condemnation of the
accused EXCEPT if necessary to inform the public and serves a legit law
enforcement purpose.

Advertising
Advertising used to not be permitted at all.
o Really to prevent certain groups from getting in.
Change was bc of freedom of speech issues commercial free speech.
 Bates v. State Bar (5-4 decision)
o Basic print ad saying what law firm charged for standard
services.
o Law is a profession, but its also a business.
o Better to have more information out there than less people
can decide on their own if its misleading.
o Holding: No blanket prohibition on advertising violates
the 1st amendment.
But cannot be false or misleading.
Rule 7.2: Lawyers may advertise through written, recorded, or
electronic communication or media.
o Comment 1: Want to inform the public of available legal services
by providing more info, especially for people of moderate means
who likely dont know.
Rule 7.1: Codifies Bates by prohibiting lawyers from making false or
misleading communications about themselves or their services.
o False or misleading communications are defined as those
involving material misrepresentations of fact or law, or omissions
of fact necessary to make the statement considered as a
whole not materially misleading.
o Truthful statements that are misleading are included.
o Comment 3 examples:
Statement which is substantially likely to cause a
reasonable person to forma specific conclusion not
supported by fact.
Talking about your achievements in a way that they lead a
person to form an unjustified expectation that she might
get the same results.
Comparing fees or services to those of other lawyers.
o Disclaimers may provide protection from otherwise misleading
statements.
Note: Because its now a constitutional right to advertise, cant limit it
more the SC says, but can give more rights which means that some
jurisdictions could have no limits on advertising at all!
o But we look at the Model Rules.
More on advertising:
o 7.2(b): Lawyers cannot pay for recommendation of their services,
but may
Pay for rble costs of advertising
Pay fee to participate in legal services plan or non-profit or
qualified lawyer referral services.
Refer clients to another lawyer by reciprocal agreement
(not for a fee), but it cant be exclusive and client must be
 informed of the existence and nature of the reciprocol
agreement.
o 7.2(c): Advertisements must include the name and office address
of at least one lawyer/law firm responsible for content.
7.4: A lawyer may say that he or she practices in a certain area of law.
o Can say you specialize or are a specialist.
o Subject to being misleading thought, per 7.1.
7.5: Firm Names

Solicitation
Must distinguish solicitation and non-solicitation cases.
Ohralik (extremely overbearing attny contacts teenager girls after
accident and then tries to charge retainer fee when she changes her
mind the next day)
o This one is a solicitation case.
o In-person solicitation not protected by the 1st amendment.
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 (or can reasonably understood to offer) to provide legal services.
o Something directed to the general public, like a billboard,
internet ad, or TV commercial is not a solicitation.
o Ex. Ambulance chasing attorneys use police reports to then text
victims of accidents
Ohio court said this was advertising, not solicitation!
Rule 7.3 codifies Ohralik Solicitations that are real-time
communications, either in person, via live telephone, or some other
form of communication for pecuniary gain are prohibited UNLESS the
person contact is:
o A lawyer, or
o Has a pre-existing relationship with lawyer (family, close friend,
professional relationship)
So real-time solicitations are mostly prohibited.
o Comment 2 because this is where potential for abuse is
strongest.
If youre not getting money, rules say you can do it though bc there
isnt the same risk of corruption.
Even if allowed to solicit under (a), cant use coercion, duress,
harassment, and cant solicit if prospective client makes clear that she
doesnt want to be solicited.
Any written, recorded, etc. communication must state that it is
Advertising Material, unless prospective client is a lawyer or has a
preexisting rship.
7.3(d): Explicit Exception: Lawyers may participate in prepaid or group
legal services plans that use in-person or telephone contact to solicit
 memberships from persons known to be in need of legal services in a
particular manner.

Fees
Ultimate fiduciary duty to client push back is fees driven by your
own interests/needs.
Reasonableness/transparency top two things to think about!
o Reasonableness 1.5
o Transparency 1.4
1.5(a): A lawyer shall not make an agreement for, charge, or collect an
unreasonable fee or an unreasonable amount for expenses.
o Gives list of factors to consider to determine reasonableness.
1.5(b): The scope of the rep. and the basis or rate of the fee and
expenses for which the client will be responsible shall be
communicated to the client, preferably in writing before or early in
representation.
In terms of ethical billing, think about it from the clients
perspective.
o If you wouldnt want someone to bill you for it prob shouldnt do
it.

Supervisors and Subordinates

Rule 5.1: Supervisors, managers, partners, etc. must take reasonable
measures to assure that attorneys below them follow the MRPC.
o A supervisor is responsible for a subordinate lawyers violation of
the MRPC, if:
The supervisor orders or ratifies the conduct, OR
The supervisor is (1) a partner, or has comparable
managerial or direct supervisory authority over the lawyer,
and (2) knows of the conduct at a time when consequences
could be avoided or mitigate but fails to take reasonable
remedial action.
Rule 5.3: Basically same rules as 5.1 for non-lawyers.
Rule 5.2:
o A lawyer is bound by the MRPC even when acting at the direction
of another.
Not a get out of jail free card.
o Where a lawyer acts in accordance w/ a supervisors reasonable
resolution of an arguable question of professional duty, there is
no violation of the MRPC.

Staying Ethical Under Pressure

What if your supervisor asks you to do something unethical?
 o Pg. 733 Problem 27: In real estate transaction, ambiguous if
hazardous materials on site, but after research attny thinks it
qualifies as hazardous.
Senior partner wants him to write an opinion letter saying
not hazardous.
Opinion letter is a formal memo on the lawyers
views which the client can rely on.
Client want him to write this letter too.
Letter is just for the client
1.2(d): Prohibits a lawyer form counseling or assisting a
client to engage in criminal or fraudulent conduct.
However, the lawyer may discuss the legal consequences
of proposed conduct.
2.1: Requires a lawyer to provide candid advice to a client.
Note: 1.2 and 2.1 often come hand in hand
8.4(c) maybe, although its just for the client so if theyre
told whar you think its not really a misrep
o Tips to avoid this problem:
Try to relatively quickly see who you want to work with.
Dont go into areas of practice where this will be an issue.
What if you see something unethical?
o Rule 8.3(a): A lawyer who knows that another lawyer violated the
MRPC in a way that raises substantial questions about that
lawyers honesty, trustworthiness, or fitness as a lawyer
shall inform the appropriate professional authority.
Knows thats why you dont have a ton of these rolling
in.

Look back at all class supplements!

Look back at outline for skipped things.
Look at social media guidelines again.
Need to work on conflicts.

Exam Info:
Exam!
Posted instruction sheet
Posted sample question
 Also posted old exams on blackboard
Closed book, but get a copy of the rules
10 min per question?
13 questions
up to 5 points per question
answer with a yes/no/maybe/depends 1 pt!
citing the law/quoting the language 1 pt!
o be more specific if possible
o quote the law
o usually just one per question although sometimes theres more
2 points for applying the rule properly
1100 characters per question

Tips:
Dont forget communication!
Dont forget 8.3/8.4