Legal Profession: Yosifon Fall 2010

I. CLIENT CONFIDENTIALITY
a. STATUTES
MR 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 interests or property of another that is
reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of
which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client,
to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the
client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of
the client; or
(6) to comply with other law or a court order.

i. Ca Bus. & Prof. Code 6068(e):

1. it is the duty of an attorney... to maintain inviolate the confidences, & at every peril to
himself/ herself to preserve secrets, of his/ her client
a. However, a lawyer may reveal clients confidences: to the extent the attorney
reasonably believes necessary to prevent a criminal act that the attorney reasonably
believes is likely to result in death, or substantial bodily harm to, an individual
b. Admitting a crime to lawyer will not suffice to break AC privilege in CA; would have
to be planning to commit crime in future
b. DUTY OF CONFIDENTIALITY
i. Lawyers obligation to hold confidential the information learned in the course of
representing a client
1. Agency relationship agent (lawyer) required to keep principals secrets
a. Its a fiduciary duty; so even if there are no rules, he has to keep info confidential
2. A lawyer cannot:
a. Reveal information relating to representation of client w/o clients consent
b. Use confidential client information against the interests of a current/ former client
3. Standard: reasonable care not to divulge information
4. Client can consent to disclosureconsent can be express or implied
5. Prospective clients
a. Lawyer shall not reveal information learned in a discussion w/ a prospective client or
use that information to the disadvantage of the prospective client (MR 1.18(b)).
ii. Purpose of Rule:
1. Promotes clear and frank attorney-client communication
a. We want the client to tell the lawyer everything since he does not necessarily know
what is important & what is notonly lawyer can pick that out so client must be
completely forthcoming
b. Functional purpose makes it possible for lawyer to do his job
2. Clients interest in autonomy
a. Considers that the lawyer is merely an intellectual extension of the client, expanding
upon the clients own capacities
1
Legal Profession: Yosifon Fall 2010

3. It is the right thing to do

4. Must balance with other interests
c. EXCEPTIONS TO CONFIDENTIALITY
i. Lawyer may disclose information when he reasonably believes it is necessary to accomplish
one of these purposes:
1. MR 1.6(b)(1): disclosure allowed to prevent reasonably certain death or substantial
bodily harm
a. Reasonably certain = harm would be suffered imminently OR there is a present &
substantial threat that a person would suffer harm later if the lawyer didnt take
action to eliminate threat
2. MR 1.6(b)(2): disclosure allowed to enable affected people or appropriate authorities to
prevent the client from committing a crime/ fraud that is reasonably certain to result in
injury to financial interests or property of another
a. Potential crime needs to be in furtherance of which client used lawyers services
3. MR 1.6(b)(3): lawyer allowed to disclose information relating to representation of client
to the extent necessary to help people affected by an already-committed crime/ fraud to
prevent/ mitigate reasonably certain losses or recoup them
a. Already-committed crime needs to be in furtherance of which client used lawyers
services
4. MR 1.6(b)(4): disclosure allowed to help lawyer secure confidential legal advice about
lawyers personal responsibility to comply with the Rules
5. MR 1.6(b)(5): disclosure allowed to defend himself (lawyer) against the client or 3rd
party; OR to prove services in action to get fee
a. This exception applies when lawyers own interests are at stake
b. POLICY:
i. No guilt by association; protects lawyer from clients predatory conduct
ii. Attorney does not have to wait for charges to be brought to reveal the
information
iii. Revealing information must be reasonably necessary for lawyer to protect
himself
iv. Privilege can be used to protect communications b/w attorneys & PR experts
v. Inadvertent production of documents may waive privilege
6. MR 1.6(b)(6): disclosure allowed when other law supersedes the rule
7. MR 1.6(a): clients can explicitly or implicitly waive confidentiality
ii. These provisions permit disclosure but dont require it
1. Lawyer has discretion, and may consider facts such as:
a. The nature of the lawyers relationship with client & those who might be injured by
the client
b. The lawyers own involvement in the transaction
c. Factors that might extenuate the conduct in question
d. CONFIDENTIAL V. PRIVILEGED
i. Confidential
1. Confidential = ethically protected information
2. Confidential client information gained from the client or from others in the course of
representing the client, which, absent exception, a lawyer may never reveal unless doing
so benefits the client
3. Confidential communications can be subpoenad (unlike privileged information)
ii. Privilege

2
Legal Profession: Yosifon Fall 2010

1. Law of evidence
2. Only protects communications between lawyer (or his agent) & client (or his agent)
3. Privilege does not exist if a stranger is present during communications
4. Privileged information is always also ethically protected
iii. Policies
1. Privilege & confidentiality will encourage clients to trust lawyers & to be forthcoming
with information
a. CON: no rigorous test that demonstrates that clients will conceal info from their
lawyers absent protection
b. Clients need to be able to trust that lawyers wont reveal info that they dont want
out
c. Does not work for communications with unrelated 3rd parties
2. Lawyers should respect a client's confidences just because it is right to do so
a. Client should be in control of info about his legal matter
3. Rules are closely tied to how lawyers see themselves as professionals
iv. Alton Logan case
e. ENTITY CLIENT
MR 1.13: Organization as Client
A lawyer has the same confidentiality duties under Rule 1.6 whether the client is a biological person or an entity like
a corporation, a labor union, the government, or a partnership.

i. Control Group Test

1. The larger the group of constituents whose communications w/ counsel will be deemed
to be privileged, the greater a companys ability to keep information secret
2. Privilege protects only communications w/ those who actually run the company
a. i.e. employees who exercise direct control over managerial decisions of company
b. Least protective of entity clients
3. Policies for narrow privilege:
a. Will shield a wide range of communications from discovery (e.g. fact witnesses)
b. Can create a zone of silence by routing routine communication through legal dept.
c. Control group personifies the corporation b/c looking at people who make decisions
on behalf of the corporation
4. Criticism:
a. Threatens to limit the valuable efforts of corporate counsel to ensure their clients
compliance w/ the law
b. Although control group makes decisions, lower-level employees can still commit the
corporation to a course of action
c. Attorney must know information w/in the possession of the corporate client, which
might be held by employees outside of the control group
5. Upjohn Co. v. U.S. (1981): SCOTUS rejected control group test
a. Communications of lower ranking employees are protected by A/C privilege when
protection is necessary to defend against litigation
b. The communications were (1) made by corporate employees (2) to counsel for the
corporation (3) acting as such (4) at the direction of corporate superiors (5) in order
to secure legal advice from counsel. (6) The information was not available from
upper-echelon management, (7) concerned matters w/in the scope of employees
corporate duties, (8) & was given by the employees w/ an awareness that they were
being questioned for the purposes of the corporation obtaining advice. (9) The
communications identified the attorney as the author of the documents, and (10)
3
Legal Profession: Yosifon Fall 2010

were accompanied by a statement of policy respecting the payments & the

communications were considered highly confidential when made & (12) have been
kept confidential by the company.
ii. Subject Matter Test
1. Was the communication intended to enable the attorney to give legal advice to the
entity?
a. Looks at the nature & purpose of the information to the lawyer
b. More protective of clients b/c it does not merely look at the identity of the source
2. Employees that discuss the subject for the purpose of securing legal advice are entitled
to A/C privilege
iii. Functionality Test
1. Only those conversations w/ an attorney & any individual whose behavior tends to raise
liability to the entity are privileged
a. If the individuals behavior is only incidental, then it is not privileged
2. Samaritan Foundation v. Goodfarb (1993): where someone other than the employee
initiates the communication, a factual communication by a corporate employee to
corporate counsel is w/in the scope of his employment & made to assist the lawyer in
assessing/ responding to the legal consequences of that conduct for the corporate client
II. LAWYER AND CLIENT ROLES
a. AGENCY
i. Lawyers are their clients agents
1. Authority to act & speak for client on the subject matter of the retainer
ii. Important to define what the attorney is retained to do:
1. Need to know what attorney is retained to do to make sure that lawyer stays w/in scope
of work the client gives her
2. Protect the lawyer against a charge of neglect or malpractice
3. Taylor v. IL (1988): to gain a tactical advantage, lawyer did not reveal the identity of a
prospective witness. Court did not allow witness. Client claims inadequate counsel.
a. Client sets the goal of the representation, & attorney sets the means
b. Attorneys decision was misconduct (b/c broke court rules), but was not inadequate
iii. The conduct of an attorney is normally imputed to his client
1. Allowing a party to evade the consequences of the acts or omissions of his freely
selected agent would be wholly inconsistent w/ our system of representative litigation,
in which each party is deemed bound by the acts of his lawyer-agent
2. SEC v. McNulty (1998): willful default of Ds attorney is imputed on D b/c D made no
showing of diligence that would warrant relieving him of default judgment
b. FIDUCIARY
i. Fiduciary duty lawyers must place their clients interests above their own in the area of
the representation & must treat their clients fairly
ii. POLICY for imposing fiduciary obligations:
1. Client presumably begins to depend on attorneys integrity, fairness, superior
knowledge, & judgment, putting aside the usual caution when dealing w/ others
2. Attorney may have acquired information about client that gives attorney an unfair
advantage in dealings w/ the client
3. Many clients will not be in a position where they are free to change attorneys; rather
theyre financially & psychologically dependent on attorneys continued representation
c. LOYALTY & DILIGENCE

4
Legal Profession: Yosifon Fall 2010

i. Duty of loyalty requires the lawyer to pursue, & to be free to pursue, the clients
objectives unfettered by conflicting responsibilities or interests
ii. Duty of diligence obligation to pursue the clients interests w/o undue delay
MR 1.3: Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.

1. Divided loyalties may undermine lawyers ability to be diligent

d. AUTONOMY OF ATTORNEYS & CLIENTS
MR 1.2: Scope of Representation & Allocation of Authority b/w Client & Lawyer
(a) lawyer shall abide by a client's decisions concerning the objectives of representation and 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, 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.

i. The lawyers autonomy

1. Lawyers delegate the means to achieve the clients delegated goals
a. POLICY: due to their education & experience, lawyers are expected to know better
than their clients what the most effective way would be to realize their objectives
b. Lawyer can only assist client to make decisions that are the lawyers to make
2. What is the clients best interest?
a. Clients best interest can be what the attorney thinks is best OR what the client
thinks is best
3. Jones v. Barnes (1983): client wanted to make certain points in his criminal appeal.
Court-appointed attorney refused, & he lost. Lawyer is not expected to raise every
colorable claim suggested by a clientthat would not be effective advocacy.
ii. The clients autonomy
1. Clients authority whether to settle/ agree to plea

Clients Authority Lawyers Authority

Objectives of representation, including Means by which the objectives of

expenses to be incurred & effect on 3rd representation are to be pursued, including
persons who might be adversely affected. technical legal & tactical issues

In civil cases, whether to accept offer of Clients normally defer to the special
settlement knowledge and skill of their lawyer with
respect to the means to be used to accomplish
their objectives, particularly with respect to
technical, legal and tactical matters.
Conversely, lawyers usually defer to the client
regarding such questions as the expense to be
incurred and concern for third persons who
might be adversely affected

In criminal cases, whether to plead guilty, Lawyer must refuse to counsel or assist a client
5
Legal Profession: Yosifon Fall 2010

waive jury trial, or take the stand in committing a criminal or fraudulent act

III. COMMUNICATION
a. COMMUNICATING W/ ANOTHER LAWYERS CLIENTS
MR 4.1: Truthfulness in Statements to Others
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.

MR 4.2: Communication w/ Person Represented by Counsel

a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized
to do so by law or a court order.

MR 4.3: Dealing w/ Unrepresented Person

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply
that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person
misunderstands the lawyers role in the matter, the lawyer shall make reasonable efforts to correct the
misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to
secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a
reasonable possibility of being in conflict with the interests of the client.

i. A lawyer cannot talk to another lawyers client w/o consent from the other lawyer
1. If lawyer is not in a representative capacity in the matter, he is not foreclosed from
talking to another lawyers clients
a. POLICY: a dissatisfied client can shop for a new lawyer w/o fear of other lawyers not
speaking to her
2. Rule applies only when the lawyer knows or should know that the person he is speaking
to is represented by another lawyer on that matter
3. Applies to agents alsolawyers cannot use agents to get around the no-contact rule
(e.g. cannot hire an investigator)
4. Communicating lawyer only forbidden to communicate on the subject of representation
5. Clients are still free to talk to one another; lawyers do not have to discourage that
6. POLICY the rule prevents the lawyer from:
a. Learning facts or getting documents she would not learn/ get if counsel were
present to protect the opposing client
b. Learning clients strategy or gaining information protected by the attorney-client
privilege or the work-product doctrine
c. Disparaging opposing lawyer to the client
ii. Civil Matters
1. When corporation is a client, who is considered a party for the purposes of MR 4.2?
a. Party is defined to include corporate employees whose acts or omissions in the
matter under inquiry were binding on the corporation or imputed to the corporation
for purposes of its liability, or employees implementing the advice of counsel
i. POLICY:
1. Consistent w/ the purpose of the ruletargets the potential unfair
advantage of extracting concessions & admissions from those who will bind
the corporation
2. Rooted in developed concepts of the law of evidence & the law of agency
3. Similar to that adopted by courts & bar associations throughout the country

6
Legal Profession: Yosifon Fall 2010

ii. Niesig v. Team I (1990): employees w/ speaking authority for the corporation,
& employees who are so closely identified w/ the interests of the corporate
party as to be indistinguishable from it, are deemed parties
2. Testers
a. Tester: someone who pretends to be what she is not
b. Form of pretextingdeveloping a false pretext to get information, & because
pretexting relies on deceit, it may be improper whether or not the source of the
information is known to have counsel on the matter
c. Whether or not testers are permitted depends on what the tester is seeking
i. If tester is just pretending to be member of buying public, he is seeking
information that seller freely offers to anyone
iii. Criminal Matters
1. Informants
a. U.S. v. Hammad (1990): government can use agents to communicate w/ parties that
they are not supposed to communicate with
i. Govt. has a higher standard in the criminal context (reasonable doubt) than
everyone has in the civil standard (preponderance of evidence), so can use
mechanisms that you cannot use in civil matters
b. Not many courts follow Hammad ruling
b. IMPROPER OR ACCIDENTAL ACQUISITION OF CONFIDENTIAL INFORMATION
MR 4.4: Respect for Rights of 3rd Persons
(b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably
should know that the document was inadvertently sent shall promptly notify the sender.

i. Rico v. Mitsubishi Motors (2007): Ps attorney inadvertently obtained Ds counsels notes. He

should not have read the document any more closely than necessary to ascertain that it was
privileged
ii. As long as sending party took reasonable precautions before the material was inadvertently
disclosed, it does not destroy A/C privilege as to the inadvertently disclosed materials
1. POLICY: if just any inadvertent disclosure would break A/C privilege, it would cost a lot in
litigationcost of discovery would be high to prevent disclosure
IV. CONFLICTS OF INTEREST
a. PERSONAL CONFLICTS
i. If your representation of a potential client might be materially limited due to a current client,
third party, or past client, you have to inform the potential client
1. Client can waive the right to unconflicted representation
ii. Business Interests
MR 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 are fair and reasonable and are fully disclosed and transmitted in writing,
(2) the client is advised in writing of the desirability of seeking independent counsel and is given a reasonable
opportunity to do so, AND
(3) the client gives informed, written consent 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. Lawyer engaging in business w/ client must make full disclosure that:

a. Lawyer is not representing client in the business deal
b. Every circumstance & fact which the client should know to make an intelligent
decision concerning the wisdom of entering the agreement.
7
Legal Profession: Yosifon Fall 2010

2. Matter of Neville (1985): by investing in his clients real estate w/o full disclosure & w/o
obtaining a knowing consent. Even though client knew lawyer was not representing him
in transaction, lawyer should have risks & disadvantages that flowed from transaction.
3. Courts & clients are unlikely to see post-retainer deals as being at arms length.
4. Lawyer cannot take a financial interest in the matter w/o complying to MR 1.8(a)
a. e.g. cannot take a security interest in clients property to protect his fee
5. Fiduciary duty law transactions b/w an attorney & client are presumed to be
fraudulent, so the attorney has the burden of proving the fairness & honesty thereof
a. Attorney cannot take advantage of his superior knowledge & position
b. Clients sophistication is not a defense to entering into a conflict
6. POLICY: client trusts lawyer, and lawyer holds client confidences, thus giving lawyer an
unfair advantage in business transactions
iii. Media Rights
MR 1.8: Conflict of Interest: Current Clients
(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the
lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the
representation.

1. POLICY: If lawyer obtains media rights, his incentives will be skewed in favor of going to
trial (for publicity), which may not be in clients best interest
a. The media rights will be more valuable if theres a trial than if the client takes a plea
b. Also, lawyer must be careful not to reveal confidences in movie/ book or cast his
client in a bad light (MR 1.6)
iv. Financial Assistance & Proprietary Interests
1. Lawyer cannot advance more than court costs and litigation expenses for client
a. No humanitarian exception cannot advance living or medical expenses
b. No ban at all if the clients matter is not litigation
2. POLICY: prevent clients from selecting lawyer based on improper factors and avoid
conflicts of interests, including compromising a lawyers independent judgment in the
case
v. Fee-Payer Interests
MR 1.8: Conflict of Interest: Current Clients
(f) A lawyer shall not accept compensation for representing a client from one other than the client unless (1) the
client gives informed consent, (2) there is no interference with the lawyer's independence of professional judgment
or with the client-lawyer relationship, AND (3) information relating to representation of a client is protected as
required by Rule 1.6.

1. POLICY: lawyers representation of client should not be influenced by third parties

2. Insurance contracts generally the insurance company has right to settle case
a. If the insured & insurer are at odds during case, & Insured reserves the right to sue
Insurer afterward, Insured has to get an independent lawyer (which Insurer is
generally responsible to pay for)
b. Lawyer that represent client in prior insurance claims case, is precluded from
standing for ether the Insured or the Insurer
vi. Related Lawyers, Significant Others, & Friends
1. Gellman v. Hilal (1994): Ps attorney is married to a former partner of the firm that is
representing D. The former partner's representation of the hospital in a separate suit
involving the medical procedure at issue in Ps case was insufficient to create a factual
predicate that justified disqualification of the P's attorney

8
Legal Profession: Yosifon Fall 2010

2. MR 1.8(j): lawyer may not have sexual relations w/ a client, unless the sexual
relationship started before the attorney-client relationship started
a. POLICY: sexual relationship can be exploitative & manipulative; it can be emotionally
and physically disruptive
vii. Lawyers Legal Exposure
1. When representing a client could lead to information implicating the lawyer in a crime or
exposing him to civil liability
2. e.g. W says Ds attorney did criminal conduct
a. If D is guilty, attorney might worry a diligent defense for D will uncover evidence of
his guilt
b. If D is innocent, defense still impaired b/c D cannot get a cross-examination of a vital
witness
viii. Gender, Religion, Race
1. Moral issue more than an ethical issue
a. Client can determine what is in his best interest
2. Karen Horowitzs Dilemma jury is prejudiced against attorney on your team
a. Take attorney off b/c its in the best interest of your client, or
b. Allow attorney to stay on because jurys opinion is discriminatory
b. CONCURRENT CONFLICTS
MR 1.7: Conflict of Interests: 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, former client or 3rd 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.

i. Criminal Cases
1. Conflict issues are intertwined w/ Sixth Amendment guarantee in criminal cases
2. Single lawyer represents 2 or more defendants or persons under investigation
a. Defendants can waive right to unconflicted representation
b. But b/c of conflict the lawyer may not be able to ethically represent defendants or
offer constitutionally effective representation
3. In alleging conflict, one must prove that there was an actual conflict w/ adverse effects
a. Cuyler v. Sullivan (1980): Ds lawyer was representing co-defendants too. D claims
conflict. He cannot just show possibility of conflict. Must show actual conflict that
adversely affected his case (meaning he would have otherwise won).
b. Strickland Test:
i. Was counsels performance reasonable considering all the circumstances?
ii. If NO, then D must show that there is a reasonable probability that, but for
counsels unprofessional errors, the result of the proceeding would have been
different.
4. 6th Amendment right to counsel is often circumscribed by the right to effective counsel
a. Wheat v. U.S. (1988): Wheats attorney was representing 2 other Ds on crimes
arising out of same course of events. Even though D could waive his right to
9
Legal Profession: Yosifon Fall 2010

unconflicted representation, right to effective assistance of counsel is more

important.
b. While the right to select & be represented by ones preferred attorney is
comprehended by the 6th Amendment, the essential aim of the Amendment is to
guarantee an effective advocate for each criminal D rather than to ensure that D will
inexorably be represented by the lawyer whom he prefers.
ii. Civil Cases
1. Lawyer is not allowed to take on a client in civil litigation if your representation of that
client will be severely limited by the representation of another client
a. Cannot represent both parties in the same matter
b. Lawyer may not represent an adversary of his former client if the subject matter of
the two representations is substantially related
i. If the lawyer could have obtained confidential information in the 1st
representation that would have been relevant in the 2nd
c. Lawyer is not permitted to concurrently stand adverse to a current client that he has
on an unrelated matter
d. Lawyer cannot concurrently stand adverse to his client in a substantially related
matter
i. A lawyer is prohibited from using confidential information that he has obtained
from a client against that client on behalf of another one
2. Clients can still waive right to unconflicted representation
a. Fiandaca v. Cunningham (1987): Ps attorney was representing another case against
govt., and the clients interests conflicted when it came to remedy. This conflict was
so serious that is was unwaivable.
3. Imputed Conflicts
a. Client conflicts are imputed to all affiliated lawyers
b. Firms that are affiliated but retain independent legal status, will be deemed a
single firm for conflict purposes (conflicts are imputed b/w them)
c. Generally, conflicts w/in a public defenders office are not imputed
i. POLICY: lawyers in the same firm should be able to communicate freely on cases
that they are working on (2 heads are better than 1 philosophy)
d. No imputation when one lawyers conflict is based on a personal interest
e. Lawyer can be disqualified if his partner is representing the opposing party in an
unrelated matter
4. Clients with diminished capacity
a. MR 1.14: When a clients capacity to make adequately considered decisions in
connection w/ a representation is diminished, lawyer shall maintain a normal client-
lawyer relationship w/ the client
i. Lawyer cannot doubt clients ability to select their goal in their best interest
b. If lawyer cannot reasonably maintain a normal client-lawyer relationship, he should
contact legal authority to appoint a guardian ad litem, conservator or guardian
5. Can a lawyer represent both sides for a contract negotiation?
a. POLICY for it:
i. Efficient in terms of money & time,
ii. More likely that both parties will get their stories straight
b. POLICY against it:
i. Even if interests are aligned, they may become contradictory down the road

10
Legal Profession: Yosifon Fall 2010

1. Conflict may arise during negotiationthen lawyer will not be able to

effectively represent either parties
c. SUCCESSIVE CONFLICTS
MR 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.

i. Lawyer may not represent an adversary of his former client if the subject matter of the two
representations is substantially related
1. If the lawyer could have obtained confidential information in the 1st representation that
would have been relevant in the 2nd
2. ANALYSIS:
a. Has the lawyer formerly represented a client who might complain about the
conflict?
b. What is the nature of the matter for which the lawyer formerly provided
representation?
c. Is that matter the same or substantially related to the present matter?
d. Are the interests of the present & former client materially adverse?
e. Did the former client provide informed consent?
ii. Representing the client
1. Lawyer did not actually have to represent the adversary for it to be a successive conflict
a. Adversary could be a former prospective client, or an employee of a former client
as long as confidential information was relayed
2. A matter = lawsuit, deal, transaction, or an issue on which the client requires
counseling & legal advice
iii. The Substantial Relationship Test
1. Test: the lawyer could have obtained information in the first representation that would
be relevant to the second (Analytica).
a. Former client only needs to show that matters that Attorney assisted him with, &
matters that Attorney is representing adverse party with are substantially similar
2. Functionalitywhat are the reasons for prohibiting successive adverse representation of
two clients
a. Confidentiality relatedness of two matters may be in the nature of confidential
client information that the lawyer may have learned in the course of representing
the former client
i. Follow the secrets
ii. Analytica v. NPD Research (1983): S&F law firm is representing P, but
represented D in a substantially related matter, giving it access to potentially
relevant confidential data
iii. Former client does not have to show confidential info the lawyer actually had
received
1. POLICY: requiring actual disclosure of information would force client to
disclose these secrets in order to protect them (ironic)
b. Loyalty
i. A client would feel wronged, betrayed, or sold out if his previous lawyer
turned around & represented one of the former clients adversaries
ii. Two situations where lawyer will be disqualified:
1. Lawyer switches sides in middle of case (e.g. migrates to adversarys firm)
11
Legal Profession: Yosifon Fall 2010

2. Lawyer attacks work he previously had performed for a client

3. Lawyer represents client on multiple cases over multiple years, while having
an affair w/ clients wife violation of duty of loyalty
iii. Policy against: dangerous to justify w/ loyalty b/c it may be used to create a
broad zone of prohibition on future representation by a lawyer
iv. CA 3-320:
3. Restatement Test:
a. Two matters are substantially related if:
i. Current matter involves work the lawyer performed for the former client, OR
ii. There is a substantial risk that representation of the present client will involve
the use of information acquired in the course of representing the former client,
unless that information has become generally known
iv. No playing Hot Potato
1. Law firms cannot escape the stricter current-client conflict rules simply by withdrawing
from a representation & converting a current client to a former one
a. Client can only withdraw from a case for reasons listed in MR 1.16
i. Firms own economic interests is not deemed an acceptable reason for dropping
a client
b. POLICY: clients interest in uninterrupted representation to the conclusion of the
matter is interrupted
2. Thrust upon exception
a. A conflict is thrust upon a well-behaving & conscientious firm that does not fail its
policing duty
b. Rather, conflicts occur b/c of client mergers/ acquisitions or through operation of
law
d. IMPUTED DISQUALIFICATION & LAWYER MIGRATION
i. A laterals new firm is saddled w/ the conflicts he had at his former firm
1. Policy against imputed disqualification: impinges on career mobilityfirms will be wary
to hire laterals as business killers
2. If conflict was imputed on lateral b/c of work a colleague at old firm did, it should not
evaporate upon lawyers departure
ii. Screening conflicted lawyer kept away from anything related to the case & silenced from
any communications related to the case
1. Cromley v. Board of Education (1994): general rule is lawyer is disqualified if there is a
successive conflict that is substantially related to old case, unless presumption of shared
confidences is rebutted. Here, presumption was rebutted by timely screening.
a. Lateral was denied access to relevant files, he was not allowed to share fees derived
in the case, other lawyers admonished from discussing the case
2. Not all jurisdictions accept screening
a. CA makes no allowance for screening
i. CA courts determine how great the threat of revealing confidences is
b. 7th Circuit allows screening if (adopted by Model Rules):
i. New matter is substantially related to (or the same as) the old matter, AND
ii. Lawyer shared confidences while working at old firm, AND
iii. Other lawyers at new firm have received (or are likely to receive) those
confidences from lawyer after he arrives there
c. Courts that allow screenings insist that be formally established & in place when the
conflicted lawyer arrives
12
Legal Profession: Yosifon Fall 2010

3. Other factors that determine adequate screening (& protection of client confidences):
a. Size of the law firm
b. Its structural divisions
c. The screened attorney's position in the firm
d. The likelihood of contact b/w the screened attorney & one representing the party
e. Law firm's & lawyer's value of reputation for honesty, integrity, & competence
4. POLICY: allows lawyer mobility b/c the presumption that lawyer learned client
confidences is not conclusive (especially for young lawyers)
iii. Removing Conflicts from a Former Firm
1. Firm can represent a new client, even if matter is same/ substantially related to the one
in which the formerly associated lawyer represented the former client IF:
a. No lawyer remaining in the firm has protected info that could be used to the
disadvantage of the former client
iv. Chinese Wall
1. Chinese Wall metaphor for the ethical screen required to avoid imputation of
conflicts
2. Inappropriate because:
a. Ethnic focus which many would consider a subtle form of linguistic discrimination
i. Courts should not perpetuate biases which creep into language from outmoded
ways of thought
b. Using the word to describe a barrier of silence & secrecy is appropriating a negative
use of the image of the Great Wall
e. GOVERNMENT SERVICE
i. Attorney involved in govt. investigation that joins a private firm in the same matter, is not per
se disqualified
1. Armstrong v. McAlpin (1981): Lawyer worked on investigation of D while at the SEC,
then went to private firm that represented P involving same matter against D
a. Lawyer can still work on the case as long as the SEC approves it
2. POLICY:
a. It would be extremely difficult for govt. to receive qualified lawyers to work for it, as
they would face prospect of never obtaining private employment again
b. Disqualification should be considered on a case-by-case basis
3. RULE: a lawyer is allowed to represent a private client in connection w/ a matter in
which the lawyer participated personally & substantially as a public officer or employee
so long as the appropriate govt. agency gives its informed consent
a. If a lawyer has confidential government information, he cannot represent the private
client
i. The private firm can still represent the client, as long as the conflicted lawyer is
screened from the case
ii. City of SF v. Cobra Solutions (2006): City Attorney used to work at D, then elected City
Attorney of SF. City of SF sued D for civil fraud. Court disqualified City Attorney, in turn
dismissing the case.
1. Public perception that City Attys subordinates are influenced by boss prior affiliation
2. City Attorney has confidential information about D
V. DUTY OF CANDOR
a. TRUTH & CONFIDENCES

13
Legal Profession: Yosifon Fall 2010

MR 3.1: Meritorious Claims & Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in
law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or
reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that
could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the
case be established.
MR 3.3: Candor Toward the Tribunal
A lawyer (L) 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 L;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to L to be directly
adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that L knows to be false. If L, Ls client, or a witness called by L, has offered material
evidence and L comes to know of its falsity, L shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. L may refuse to offer evidence, other than the testimony of a
defendant in a criminal matter, that L reasonably believes is false.

i. Counsel is precluded from taking steps or in any way assisting the client in presenting false
evidence
1. To make a 6th Amendment deprivation of effective counsel claim, you have to show:
a. Attorney acted unreasonably, and
b. Outcome would have been different if attorney had not acted so
2. Nix v. Whiteside (1986): D wanted to lie on the stand, & his attorney forbade him. D told
the truth & was convicted. D argues he was deprived of a fair trial b/c attorney did not
allow him to lie. Court said D has no right to testify if hes lying.
a. Ds attorney did not fail to adhere to reasonable professional standards
3. An attorneys 1st duty when faced w/ prospective perjury is to dissuade the client from
the unlawful course of conduct
a. Attorney cannot knowingly allow a client to testify falsely,
b. BUT, if attorney only reasonably believes that client is lying, he may still allow it
4. Belief that client is lying
a. Lawyer may allow testimony that he only reasonably believes is false
b. Alternatives to reporting it:
i. Narrative Approach D tells story on stand instead of Q&A by attorney
1. Allows D to tell jury, in his own words, his version of what occurred, a right
which has been described as fundamental
a. D is still subject to impeachment & can be cross-examined
2. Allows attorney to play a passive rolenot actively participating in Ds
(possibly perjured) testimony
5. Lawyer can avoid knowledge by not doing investigation or not asking for clients story
a. Risks malpractice b/c of intentional ignorance
ii. The Adversarial System
1. When the Code does not proscribe behavior, do we set our own rules?
a. Community Standard
i. Which community? What is appropriate in the South is vastly different than
whats appropriate in NYC
ii. e.g. accepting tickets to a sports game is OK in closer communities
b. Other laws
i. Criminal law, contract law, & even employment law could address some of these
issues
ii. Just b/c we are a profession does not mean that we disregard the other laws
that regulate the rest of our lives
14
Legal Profession: Yosifon Fall 2010

c. Using existing principles to govern conduct

i. e.g. no rule about sleeping w/clients wife, but it is still a breach of lawyers duty
of loyalty to clientso its still a violation
2. Why embrace the Adversarial system?
a. The legal system is fundamentally adversarial in nature
i. We work well in us v. them environments it motivates us
1. We tend to free-ride when we believe were in cooperative environments
ii. If adversarial system didnt exist, people might fight enemies through violence
b. We are in the pursuit of truth
i. Legal profession places value on timeliness of finding truth we need finality
ii. Other professions are in pursuit of truth too (e.g. scientific research), but they
arent adversarialthey are comfortable not knowing truth
iii. We must also take into account 3rd party interests & will not chase truth all the
way down the rabbit hole b/c there are collateral interests
3. The Lawyers Role in our system:

Cooperative Adversarial Cooperative

Lies Confidences Discovery

No-contact Perceptions Real evidence

Precedent Opinions Speech to media

Legal analysis Inferences (Govt.)

Variables in Analyzing Issues Concerning Perjury 3. Withdraw if allowed

i. Timing 4. Let criminal D testify in narrative &
1. Prospective perjury refrain from arguing in summation
2. Surprise perjury 5. Refuse to call client (prospective
3. Concluded perjury perjury)
ii. Nature of the case 6. Let criminal D testify, question client,
1. Criminal argue testimony
a. D as witness v. Legal considerations
b. Other witnesses 1. Test of jurisdiction's rule
2. Civil (court, other adjunctive tribunal) 2. Constitutional right of criminal Ds to
iii. Lawyers' state of mind testify & to assistance of counsel
1. Knowledge 3. Client autonomy
2. Reasonable belief 4. Duty of confidentiality
iv. Remedies 5. Duty of competence
1. Remonstrate w/ client 6. Criminal law prohibitions against
2. Reveal to tribunal suborning perjury (and like crimes)

b. FOSTERING FALSITY OR ADVANCING TRUTH?

i. Literal Truth
1. Conversation v. adversarial situation
a. In conversation, words are used to enhance anothers understanding of whats going
onwe answer what is responsive to the other persons questions
b. The words used in an adversarial situation might not be as accurate

15
Legal Profession: Yosifon Fall 2010

2. Bill Clinton
a. Clinton said there is no sexual relationship when affair ended two months ago
b. Clinton admitted that he gave false answers under oath, but did not lie
i. Gave answers that he did not know was false at the time (so unintentionally)
c. His answers were still conduct that is prejudicial to the administration of justice,
violating MR 8.4(d)
3. Law of Perjury
a. Perjury: willfully false statement under oath, regarding facts material to the hearing
i. "false" is broader than "fraud" and "fraudulent"
ii. Reach of ethical rules is not limited by criminal law definitions
1. Even though one cannot be prosecuted for perjury, he may violate ethical
rules
b. An answer can be false, while still not being perjurious
i. Bronston v. U.S. (1973): Court unanimously found that Bronston's response to
questioning about his Swiss bank accounts were "true & complete on its face,"
even though it was intended to evade & mislead
1. He gave literally true answers that were nonresponsive, thereby alerting
the questioner & permitting the questioner to pursue line of inquiry further
ii. It is the interlocutors responsibility to test the veracity of witnesss statement
1. Court cannot expect adversary to help lawyer get the answer he wants
4. Law of Contempt
MR 8.4: Misconduct
(d) It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice

a. Bill Clinton was cited for civil contempt for denying he was ever alone w/ Lewinsky
in the White House & his denial of sexual relations w/ her
i. Clintons statements were intentionally false
5. If the lie is not criminal or fraudulent, & if the advice doesnt aid a crime or fraud, then
the advice is allowed
ii. Cross-examining the truthful witness
iii. Appeals to Bias
1. If lawyer explicitly makes an argument based on bias, it is prejudicial
a. POLICY against bias:
i. Once lawyers argument becomes bias, it is no longer based on truththeres
no probative value to it
ii. Once stereotypes are made salient, its difficult for the human brain to blind
itself from the bias
b. Distinguish why the bias is being used:
i. Are attorneys putting female of color on table to appeal to jurys bias against
white men?
ii. OR are the attorneys putting her at the table to eliminate jurys bias, & actually
listen to their argument?
2. If lawyer only implicitly makes an argument based on bias, then its OK
iv. The Boundaries of Proper Argument
1. Improper Argument
MR 3.4: Fairness to Opposing Party & Counsel
(e): A lawyer shall not, in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that
will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as
a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a
civil litigant or the guilt or innocence of an accused

16
Legal Profession: Yosifon Fall 2010

2. Arguing for False Inferences

a. A lawyer who asks the jury to draw an inference from the evidence when the
evidence does not rationally support that inference may be in violation of MR 3.4(e)
i. If a prosecutor does so, it denies D a fair trial
b. If lawyer has harmful evidence that cannot be excluded, he may:
i. Discredit the evidence through impeachment devices encourages the jury to
believe that a witness is mistaken/ lying or that a document is false
ii. If evidence is ambiguous, ask the jury to draw inference most favorable to his
client
c. Can a lawyer ask jury to draw an inference that he knows is false, as long as evidence
rationally supports it?
i. Criminal YES, as long as he doesnt rely on perjurious testimony
1. Unless you represent the govt. they have other interests than just winning
ii. Civil leading authorities say NO but no clear language
1. Model Rules still prohibit false statements of fact
c. HARDBALL & INCIVILITY
i. Hardball tactics indicate a decline in professionalism
1. Throwing your adversary off-balance by using gender-based insults is not a legitimate
litigation tactic
a. Mullaney v. Aude (1999): engaging in uncivil gender-based conduct undermines the
entire legal profession & system of justice that provides a stage for such oppressive
actors
2. POLICY: objectionable behavior b/c rather than attack the legal issue or the argument
advanced, demeaning terms are used to dismiss her position/ relegate it to lesser status
d. MISSTATING FACTS, PRECEDENT OR THE RECORD
i. Lawyer has duty not to knowingly misstate fact or law
ii. Not the same adversary system when youre talking to the judge as it is when talking to
opposing lawyer
1. Omitting language when quoting is giving the court misleading impression of the state of
the law on the point
e. REAL EVIDENCE
i. Real evidence a document or object that may have relevance to a pending or impending
case
1. Lawyer cannot destroy evidence in a current or prospective case
ii. Real Evidence & Criminal Law
1. Lawyers are not immune to obstruction charges arising out of representation of a client
a. Even if evidence would not have been used in trial b/c of privilege or irrelevance, if
you attempt to destroy it, its still obstruction
b. U.S. v. Russell: D destroyed evidence for client, and was charged w/ obstruction
iii. Real Evidence & Attorney-Client Privilege
1. People v. Meredith (1981): after D tells lawyer where he stashed stolen wallet, lawyer
retrieves it & gives it to prosecutor. Lawyer mandated to reveal communication w/ D to
reveal source of the wallet.
a. b/c lawyer removed it from its real location, the context associated w/ real location
is lost. Communication providing that context must be revealed.
b. If court does not have real evidence, it must have the context of the real evidence
2. The Turnover Duty

17
Legal Profession: Yosifon Fall 2010

a. Where evidence is a fruit or instrumentality of a crime, illegal in itself to possess,

lawyer cannot keep the evidence
i. If lawyer never possessed evidence, then he has no obligation to reveal location
b. Lawyer may assert A/C privilege in resisting a summons to produce documents that
were delivered to him by his client, if the documents would have been privileged
while in clients possession
i. e.g. tax workpapers would have enjoyed 5th Amendment immunity while in
clients possession, so when given to lawyer, he does not have to turn them in
VI. JUDICIAL ETHICS
a. Introduction
i. Discipline cannot be used to remove a federal judge appointed under Art. III of Constitution
1. Impeachment + conviction by Congress is constitutionally required
ii. Ex Parte Communications
1. All parties get to hear info that other parties give the court (judge or jury) & to reply
a. Judge may not let lawyer/ litigant communicate w/ judge in absence of other parties
b. CONFLICTS & DISQUALIFICATION
i. What judicial conflicts violate the due process clause?
1. A judge that has a substantial interest in the outcome on a case necessarily imports a
bias & deprives litigants of the assurance of impartiality required of due process
a. Aetna Life Insurance v. Lavoie (1986): deciding judge had a similar case against
other insurance companies. Affirmed a large award against Aetna, in effect
enhancing the legal status & settlement value of his case.
2. Judge does not have to actually be influencedquestion in only whether sitting on the
case would offer a possible temptation to the average judge to lead him not to hold the
balance nice, clear & true
ii. Ethical & statutory disqualification
1. Judges knowledge of his interest required??
a. Liljeberg v. Health Services Acquisition (1988): Judge was on board for school that
has hospital that P wanted to acquire. Negotiations to acquire hospital would be
affected by the outcome of this case
iii. What conflicts can prevent a judge from sitting?
1. Personal relationships that will automatically disqualify a judge:
a. He served on the matter while in private practice as a lawyer (or the firm did)
b. In prior govt. employment, he participated in the matter (counsel, adviser, witness)
c. He, his spouse, or minor children have a financial interest in the case
d. He, spouse, or 3rd relative is a party, lawyer, has a substantial interest in case, or is
likely to be a material witness
2. Extrajudicial source doctrine a judge who becomes disposed (or biased) against a
party b/c of what she learns in doing her joblike hearing evidencewill not in this
view trigger the statutes actual bias standard
a. POLICY: judges are supposed to form opinions based on what they learn in court
3. Judicial Seminars
a. Judges may be disqualified for attending seminar/ conference by corporate sponsor
b. POLICY: question of influence
i. Whether the impartiality of a judge who goes on these trips might reasonably
be questioned in a case in which a benefactor is a party or has an interest
c. Judges must report these trips on financial disclosure form
4. Campaign Contributions
18
Legal Profession: Yosifon Fall 2010

a. Campaign donations by lawyers or parties w/in the states campaign donation limits
does not require recusal
5. Employment Interests
a. Even if no actual impropriety, an objective observer might wonder whether judge
would at some unconscious level favor the firm that didnt reject his employment
6. Duty to Sit?
a. Federal judges have a duty to sit where not disqualified which is equally as strong as
duty to not sit where disqualified
i. Especially in Supreme Court, where there arent replacement Justices
b. Rule of Necessity a judge having a personal interest in a case not only may but
must take part in the decision if the case could not otherwise be heard
i. U.S. v. Will: district judges sue govt. to recover addl compensation. All district
judges would benefit, but a district judge could still sit so case can be heard.
7. Financial Interest
a. A judge must recuse himself if he knows that the judge, spouse, or minor children
residing in the household has a financial interest in a party, however small
b. If a judge discovers his financial interest after matter was assigned & after he has
already devoted time to the matter, he may remain on the matter if his interest
could not be substantially affected by the outcome
8. Lawyer Relatives
a. Judge must recuse himself if a third degree relative is a partner of a firm appearing
in the case, or stands to profit/ lose from the judges action
9. Judges Prior Affiliation
a. Judge is disqualified based on work he or his firm may have done while the judge
was in private practice
c. JUDICIAL & COURTROOM BIAS
i. Gender Bias
1. In re Marriage of Iverson (1992): Judge was so replete w/ gender bias, that wife did not
have a fair trial
a. Judges comments demonstrate an appearance of impartiality
ii. Racial Bias
1. Matter of Bourisseau (1992): Judges racist comments outside of court call into question
the impartiality of the judiciary, & exposed the judicial system to contempt & ridicule
iii. POLICY against bias:
1. Creates an appearance of impropriety
2. Undermines the publics confidence in an impartial judiciary
3. Impugns the dignity & seriousness of ongoing court proceedings
VII. BILLING
a. IOLTA Accounts
i. Interest on Lawyer Trust Accounts (IOLTA): programs that pool client money in a single
account & contribute the interest to a trust that is then used to fund legal help for
individuals who cannot afford it
1. Compelling interest in providing legal services to needy Americans
ii. Lawyers have to deposit client funds in non-IOLTA accounts whenever those funds could
generate net earnings for the client (more than $50)
b. THE ROLE OF THE MARKETPLACE
i. Excessive Fees
1. Unconscionable
19
Legal Profession: Yosifon Fall 2010

a. A situation where one party took advantage of anothers ignorance, exerted superior
bargaining power, or disguised terms in small print
b. Unconscionability determined w/ reference to the time when the contact was made
& cannot be resolved by hindsight
2. Brobeck, Phleger & Harrison v. Telex (1979): fee can be high w/o being unconscionable
a. Telex, a multi-million corp., represented by able counsel, sought to secure the best
attorney it could find, resulting in high fees b/c of attorneys abilities
3. A contingent fee may be disallowed as b/w attorney & client where the amount
becomes large enough to be out of all proportion to the value of the professional
services rendered
ii. Time or Value
1. Value-billing fee determined by what the lawyer actually achieved
c. UNETHICAL FEES
MR 1.5: Fees
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for
expenses.

i. In ascertaining the reasonableness of a fee, it should be considered to the fee customarily

charged in the locality for similar legal services
1. Matter of Laurence S. Fordham (1997): even though lawyer charged client same hourly
rate as he does for all his clients, it was excessive for OUI case
d. MANDATORY PRO BONO PLANS
MR 6.1: Voluntary Pro Bono Publico Service
Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire
to render at least (50) hours of pro bono publico legal services per year.

i. Policy for mandatory Pro Bono:

1. Its not charityits a professional responsibility
2. Even if a lawyer is not competent in the particular area of law, his education alone makes
him still more so than the under-represented client
3. Vindication of individual rights requires that individuals all have access to lawyers
4. Its a response to the monopoly that lawyers have created themselves
ii. Policy against mandatory Pro Bono:
1. Compulsory charity is a contradiction, in principle
2. Requiring service undermines its moral significance & compromises altruistic
commitments
3. Ineffective in practicewhat would satisfy as pro bono?
4. Lawyers who lack expertise/ motivation to serve under-represented clients will not
provide cost-effective assistance
VIII. QUALITY CONTROL
a. MALPRACTICE & BREACH OF FIDUCIARY DUTY
i. How threat of malpractice effects the way lawyers practice
1. The fact that more claims are being brought demonstrate an increased willingness to sue
lawyers
2. POLICY: change in lawyers behavior
a. Lawyers will begin to think of themselves first & their clients second
i. No longer be as zealous for their clients
b. Threat of discipline gets lawyer to conform, & seeing her disciplined gets others to
conform

20
Legal Profession: Yosifon Fall 2010

c. Increased risk forces lawyers to be less creative, just as it forces doctors to practice
defensive medicine
3. Greater threat of liability for doctors & accountants effect lawyers risk of liability
a. No longer seen as thankless to sue someone who helped you when in trouble
ii. Liability to Clients
1. What is the Required Standard of Care?
a. Malpractice is a tort: P has to show (1) duty, (2) breach, (3) causation & (4) damages
b. Who is a client?
i. Lawyers always owe clients a duty of care in performance of legal work, but not
so w/ non-clients
ii. Togstad v. Vesely, Otto, Miller & Keefe (1980): P sought legal advice from D. D
never followed up. P went to another attorney 1 year later, & SOL ran out
1. Attorney-client relationship formed as soon as P walked into Ds office,
despite fact that she never formally retained him.
2. D had duty to further investigate before determining she did not have claim
c. Mere error of judgment does not constitute malpractice
d. Standards of Care:
i. Normative what an ordinarily prudent attorney would do in rendering legal
advice in a case of the same nature
1. Togstad standard; most courts follow normative standard
2. if lawyer claims an expertise in a particular field, she is compared to other
specialists knowledge & skill in that particular field
ii. Positive what prudent attorneys should do in rendering legal advice in a case
of the same nature (regardless of how lawyers actually act)
e. Settlement duties
i. Lawyer has duty to attempt to effectuate a reasonable settlement where it
would be the most reasonable way to achieve the clients goals
1. Where lawyer does recommend settlement, he risks liability if he doesnt do
legal & factual research necessary to determine its adequacy
f. A lawyer that defrauds a client will be liable for that conduct
g. Breach of Fiduciary Duties
i. Fiduciary duty is broader than malpractice
ii. Fiduciary duty of loyalty requires lawyer to avoid conflicts of interest
iii. A fiduciary cannot use a clients confidential info. to the clients disadvantage
2. CPC 3-410: Disclosure of professional liability insurance
a. Bar member who knows that they dont have liability insurance is required to tell
client that they dont
b. POLICY: clients know that they cannot recover if they sue that lawyer
3. Is Sex w/ Clients a Breach of Fiduciary Duty?
a. Lawyer knows clients confidences, putting her in a position of power compared to
her vulnerable client
i. These situations are often in divorce cases, where client is under emotional
distress
b. Tante v. Herring (1994): Lawyer sleeping w/ his client is a breach of fiduciary duty
b/c he misused, to his own personal advantage, confidential info in medical &
psychological reports that he obtained in his representation of her
c. Lawyer should withdraw if he cannot wait until matter is over to start a relationship
iii. Third Parties as Client-Equivalents

21
Legal Profession: Yosifon Fall 2010

1. Even though 3d party never actually retained/ sought to retain lawyer, nevertheless 3rd
party is entitled to the benefit of the service& the same duty of carethe lawyer has
agreed to provide to the actual client
a. e.g. lawyer that drafts will can be liable to the intended beneficiaries
2. Not all courts accept that the lawyer had a duty to 3rd party
iv. Vicarious Liability
1. Law partners, like other partners, are responsible for each others professional failures
w/in the scope of the legal partnership
b. PROVING MALPRACTICE
i. Use of Ethics Rules & Expert Testimony
1. Expert testimony needed for malpractice claims to explain the practice & how lawyers in
the state perform in that area
a. Expert often explains standard of care
b. Some defaults are so obvious that theres no expert needed (judge can explain it)
2. Rules of Professional Conduct may be relevant & admissible in assessing the legal duty of
an attorney in a malpractice action
a. Violation of Model Rules is not proof that a lawyer has breached a duty of care, but
it is evidence of a breach
3. Because attorneys are generally regulated on a statewide basis, the standard in
determining legal malpractice issues is statewide
c. RESTRICTING LEGAL PRACTICE TO LAWYERS
i. The practice of law
1. One can only practice law in CA if she is a member of the bar; one can only become a
member of the bar if shes a lawyer one can only practice law in CA if shes a lawyer
2. Giving legal advice is the practice of law
a. Giving legal advice on non-controversial matters are alright
3. Barron v. LA (1970): the resolutions of legal questions is practicing law if difficult or
doubtful legal questions are involved
a. Difficult or doubtful is what another lawyer would view as difficult/ doubtful
4. Non-lawyers (i.e. law students) can do preparatory work, so long as its supervised &
looked over by a member of the bar
5. Non-lawyers can give general advice, as long as its not targeted to particular individual
a. e.g. non-lawyer can write a book on how to file a personal injury claim
ii. Nonprofit Entities & Intermediaries
1. Lay persons are banned from working in the law industry
a. Threat to professionalism
2. Law firms should not expand into areas that are not the practice of law
a. Threat to professionalism if law firms offer services ancillary to practice of law
3. The First Amendment protects vigorous advocacy of lawful ends against govt. intrusion
a. NAACP v. Button (1963): In the context of NAACPs objectives, litigation is not a
technique for resolving personal matters, it is a means for achieving equality in the
treatment of members of the black communitypolitical expression
i. Dissent: litigation, whether or not associated w/attempt to vindicate
constitutional rights, is practice of law
iii. Labor Unions
1. Unions seek to provide lawyers to their members for routine legal services (i.e. workers
comp or disability claims), to control costs of the claim
a. Although good for workers, its an economic threat to lawyers

22
Legal Profession: Yosifon Fall 2010

2. Collective activity undertaken to obtain meaningful access to the courts is a fundamental

right w/in the protection of the First Amendment
a. United Transportation Union v. State Bar of MI (1971): workers may act collectively
to obtain affordable & effective legal representation
d. ADMISSION TO THE BAR
i. States restrict admission to its bar:
1. Policy for: state interest in assuring the minimum competence of the lawyers who
practice in their courts & advise their citizens
2. Policy against:
a. Protectionistprotects in-state lawyers against Commerce Clause
b. Does not serve 21st century practice of lawother state resources readily available,
business cross states frequently, firms in many states, communication is easy
ii. Geographical Exclusion
1. Practice of law is a fundamental right, protected by the Privileges & Immunities clause
a. Supreme Court of NH v. Piper (1985): NH rule prohibiting out-of-state lawyers from
practicing in NH was unconstitutional
b. A state restriction against nonresidents is permissible when:
i. There is a substantial reason for the difference in treatment AND
ii. The discrimination against non-residents bears a substantial relationship to the
states objective
2. States can restrict admission by making everyone take the bar exam (even if passed in
another state)refuse reciprocity
iii. Education & Examination
1. Why use the bar exam?
a. A state has an interest in assuring that those whom it holds out to the public as
competent are competent, at some level gives public confidence in lawyers
b. Entry barrier that allows state to limit competition
2. Rules requiring applicants for admission to be graduates of accredited law schools have
been upheld
iv. Character Inquiries
1. Character inquiries in 4 aspects of the lives of bar applicants:
a. Mental health
b. Honesty & integrity
c. Personal life (including financial probity)
d. Loyalty to the American system of government
2. In re Mustafa (1993): too short of a time passed b/w Mustafas improper conduct of
converting moot court funds for personal use & application to the bar. At the time, there
was no substantial evidence to demonstrate that he had good character.
3. Frequently cited grounds for delaying/ denying admission to the Bar:
a. Criminal conduct (regardless of conviction
i. Policy: burden of proof in criminal cases is beyond a reasonable doubt, but
burden to prove moral character is lower
b. Lack of candor in the application process (lethal)
c. Dishonesty or lack of integrity in legal academic settings
i. By the time youre in law school, one cannot plead youth or inexperience
d. Mental health
e. Financial probity (e.g. student loans)
f. Applicants private life
g. Ability to speak English (communication skills essential to practice of law)
23
Legal Profession: Yosifon Fall 2010

IX. FIRST AMENDMENT RIGHTS OF LAWYERS

a. SPEECH ABOUT CASES & THE JUSTICE SYSTEM
i. Lawyers may criticize government, including courts & judges, & speak about public issues
1. Exceptions:
a. A lawyer enjoys less freedom than others do to speak publicly about her own cases
b. Lawyers may sometimes be disciplined for false accusations against judges
ii. Public Comment about Pending Cases
MR 3.6: Trial Publicity
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an
extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public
communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the
matter.
(b) Notwithstanding paragraph (a), a lawyer may state (1) the claim, offense or defense involved and, except when
prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an
investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance
in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person
involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the
public interest; and (7) in a criminal case, in addition: (i) the identity, residence, occupation and family status of the
accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the
length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required
to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the
lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to
mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a
statement prohibited by paragraph (a).

CRPC 5-120: Trial Publicity

Substantially similar to MR 3.6, except no (d).
1. Policy against speaking publicly about cases:
a. Lawyers may be sued for defamation
2. Policy against ethic rules forbidding public comments:
a. Violators are hard to identify, especially if the source is in a government agency,
where hundreds of people may have access to the information
b. Investigation & prosecution may be the job either of the very agency whose
personnel are suspect or of prosecutors who work closely w/ it
3. Gag order order by trial judges seeking to reduce the incidence of pretrial comment
4. Ethics rules may forbid public comments that will have a substantial likelihood of
materially prejudicing an adjudicative proceeding
a. Gentile v. State Bar of NV (1991): although defense attorney held press conference
to share his entire case, he did not violate NVs rule b/c the rule was worded in such
a way that it did not give attorney fair notice that he would be subject to discipline
i. Permissible balance b/w 1st Amendment rights of attorney in pending cases &
States interest in fair trials
iii. Public comments about Judges & Courts
1. Criticizing the Administration of Justice
a. A single incident criticizing the justice system may be considered a lack of
professional courtesy, but it does not warrant a finding that the lawyer is not
presently fit to practice law in the federal courts.
2. Criticizing Particular Judges

24
Legal Profession: Yosifon Fall 2010

a. Actual malice standard of defamation of public officials does not extend to lawyer
discipline
i. POLICY: unlike defamation cases, professional misconduct is not punished for
the benefit of the affecter person; the wrong is against the preservation of a fair,
impartial judicial system
ii. Objective standard of what a reasonable attorney would do in similar
circumstances
iii. Matter of Holtzman (1991): Holtzman accused Judge of misconduct, & publically
disseminated accusation to news media. This demonstrates an unfitness to
practice law b/c she released info w/o any support.
b. COMMERCIAL SPEECH
MR 7.1: Communications concerning a lawyers 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.

i. Lawyer advertising became constitutional in 1977

ii. Defining the Borders
1. Advertising by lawyers is commercial speech, entitled to First Amendment protection
(Bates v. State Bar of AZ)
2. Policy against lawyer advertising: has an adverse effect on professionalism & encourages
commercialization
a. A lawyers focus on making money is to the detriment of the client & justice system
3. State may regulate commercial activity deemed harmful to the public whenever speech
is a component of that activity
a. Ohralik v. Ohio State Bar Assn. (1978): solicitation of business by a lawyer through
direct, in-person communication w/ the prospective client is inconsistent w/ the
professions ideal of the attorney-client relationship
4. A prophylactic rule
a. Permanent & categorical ban on in-person solicitation
i. POLICY: attorneys are trained in the art of persuasion, prospective clients are
typically vulnerable & susceptible to manipulation
iii. Targeted Mail
1. Blanket prohibition on lawyer advertising is a direct violation of the First Amendment
protections afforded to free speech
a. Shapero v. Kentucky Bar Assn. (1988): targeted mailings are different than in-person
solicitation, & is still constitutionally protected
2. The response to Shapero
a. If advertising to people known to be in need of legal services, the words Advertising
Material must appear on the outside of the envelope
iv. Defining the Methodology
1. How does the court know things? Through surveys
X. DISCIPLINARY PROCCEDINGS & SARBANES-OXLEY
a. DISCIPLINARY PROCCEDINGS
i. Disciplinary System
1. Headed by chief trial counsel
a. Receives complaints & investigates these complaints
b. Has to show by clear & convincing evidence that lawyer broke discipline rules
2. Anyone disciplined by trial counsel has right to appeal at CA Supreme Court level
25
Legal Profession: Yosifon Fall 2010

3. Bar can still discipline lawyer for abiding by the advice given by ethics hotline
ii. Dishonest & unlawful conduct
1. Its unethical to commingle trust funds w/ lawyers own money, & even worse to make
actual (even if temporary) use of trust funds
a. In re Warhaftig (1987): even though lawyer would return funds to client trust funds
after using it, the conduct is still unlawful. That he didnt feel like he was stealing is
no distinction in terms of discipline. Lawyer was disbarred.
b. Knowing misappropriation = lawyer taking a clients money entrusted to him,
knowing it is the clients money & knowing that hes not authorized to take it
2. Disciplinary Board may take into account mitigating factors
a. In re Austern (1987): mitigating factorsno prior disciplinary record, notable
contributions in the area of legal ethics, non-pecuniary motivation, no pecuniary
injury to those involvedtaken into account to determine appropriate sanction
b. SARBANES-OXLEY
i. Whos your Client?
MR 1.13: Organization as Client
(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized
constituents.

1. Issuethe lawyers boss (constituent) is not the lawyers client (organization

a. While this is supposed to be irrelevant to how the lawyer acts, realistically its hard
to ignore when faced w/ a duty to her client
2. If a company engages in wrongdoing, both the company & the officers/ employees can
be charged
a. Sometimes (but rarely), lawyers get charged too for their related legal opinions
3. Should corporate lawyers be held responsible for companys wrongdoing?
a. Lawyers should be held responsible:
i. Many regulators feel they should lawyers are an early warning system against
corporate wrongdoing & are expected to protect their client
1. Because theyre close to the action, they will either know or be on notice
b. Lawyers should not be held responsible:
i. Companys officers will exclude lawyers from learning about questionable
behaviors for fear of being reported, so lawyers will never get a chance to
prevent wrongdoing
4. CRPC 3-600: in representing an organization, a lawyer shall conform her representation
to the concept that the client is the organization itself, acting through its highest
authorized officer, employee, body, or constituent overseeing the particular
engagement.
a. The lawyers duties, including confidentiality, are therefore owed to the organization
rather than to its constituents.
ii. Tension b/w Sarbanes-Oxley & State rules
1. 17 CFR 205: Sarbanes-Oxley (SOX)
a. If lawyer becomes aware of material violation of federal or state law, the lawyer
must report the violation to firm's chief legal officer (CLO); CLO investigates; if CLO
does not give appropriate response, attorney must report the violation to the Board
of Directors
b. Lawyer may reveal to SEC confidential information to prevent firm from financial
injury or potential fraud
c. Failure to comply w/ Sarbanes-Oxley subjects lawyer to civil penalties
26
Legal Profession: Yosifon Fall 2010

i. However, an attorney who complies in good faith shall not be subject to

discipline or in attempt to comply w/ other state laws
2. Model Rules
a. MR 1.13 was only changed recently to reflect Sarbanes-Oxley
3. California
a. CRPC 3-600 permits attorney refer the matter up the ladder, including the Board of
Directors (if it is sufficiently serious)
i. Following SOXs corresponding rule (requiring disclosure up the ladder) would
not violate any CA rules
b. BUT, attorney is still required to protect all client confidences & secrets
i. If the companys highest authority persists in illegal conduct, attorney has the
right to resign
ii. Following SOXs rule (permitting disclosure to SEC) would violate CA rule
c. Because 17 CFR 205 has not been held to preempt state law, CA lawyers cannot
presume that there is a safe harbor if they reveal client confidences to the SEC

27