Ethical Lawyering Quizlet

SAMMARITAN / BYSTANDER TEST

1. Control Group + Agents and Employees where: a. Employee's conduct is within the scope of his/her employment, and b. Made to assist the lawyer in the legal consequences of that conduct in the corporation. 2. Employee witnesses are not covered under this test. 3. California is close to the Samaritan test.

Rule 1.16(a)(3). Court says the clause is upheld if it considered not to be a penalty. Factors:

1. Costs were difficult if not impossible to estimate, 2. Parties intended to provide for damages instead of a penalty, 3. The amount is a reasonable pre-breach estimate of the probable loss. 4. (Note: argument again that the sophistication of clients makes a difference).

Criminal Matters

1. Defense—the prosecutor's client is "the people," and hence the defense counsel can contact anybody, including the victim. 2. Prosecutor—the no contact rule applies to prosecutors in criminal matters.

Diversity in Staffing (page 95)—Client wants to hire you, but wants to know the ethnicity, sexual orientation, etc. for every attorney working on your case. Can they ask this?

1. The client doesn't have a right to know this, nor would a firm want to ask this to their employees. But you would do it if you want the business. The choice is up to the firm.

All's Not Well - Lawyer's client falsified a report saying that a house was in perfect shape when in reality a well was about to dry up and it was going to cause substantial damage to the house in the coming winter months. Can he tell the other side?

1. The lawyer MAY tell the other side because this appears to be a financial harm exception (note that this exception doesn't exist in California).

The Innocent Lifer Scenario ? - i. Client admitted to lawyers that he murdered someone. An innocent man was convicted for this murder. What can the lawyer do?

1. There does not seem to be an exception that applies in this case. 2. Maybe an exception would apply if the innocent man were going to be executed for the crime. 3. This situation justifies the MRPC adopting a prevention/rectifying a wrongful conviction exception

I Don't Plea Bargain" (page 88)—Lawyer refused to bargain or settle. He takes all cases to trial. Is this policy ethical?

1. This methodology, like the polar opposite—collaborative law, does not represent your client's best interests. Your client may benefit in taking a plea instead of going to court. The lawyer is putting himself and his reputation first, not the client.

Upjohn Subject Matter Test

1. Used in federal courts when applying federal law (federal question). 2. Note—the information itself is still discoverable. The IRS can obtain it by interviewing the employees itself, it just can't get the lawyers' notes or ask the employees what they told the lawyers.

Niesig v. Team 1

Employees of the defendant corporate party were witnesses to an accident. Can opposing counsel contact them? Court said yes, their actions are not binding on the corporation, they were just witnesses.

Evans v. Jeff

Federal civil rights law provides for fee shifting. P was basically a class of indigents. D conditioned settlement of a waiver of attorney's fees, pitting P's attorney's interests against his clients. P should accept settlement.

McQueen v. CITGO

Firm agrees to open an office and represent a company. This contract includes an annual fee, and a fee schedule. Problems ensue, and CITGO terminates the firm. Contract has a liquidated damages clause of $4.6 million. CITGO argues that it interferes with their right to discharge a lawyer under Rule 1.16(a)(3). Court says the clause is upheld if it considered not to be a penalty. Factors

Janik v. Rudy

Firm recoverd $90 million in class action regarding overtime pay. Class members sued, claiming that another state right to action should have been brought. Firm says class certification limited their scope. Court agrees, but says that the firm should have considered all alternatives and shared them with the class representatives.

AmBase v. Davis Polke

Firm represented client in successfully dismissing a tax liability assessed by the IRS. Client then sues firm alleging that the firm should have asserted that the parent company was liable, and the company had to forego business opportunities because of the extensive litigation. Court rejects argument, the retainer agreement specifically stated that this issue was outside the scope of representation.

Can a lawyers conduct be attributable to the client ?

General rule—A lawyer's conduct can be attributable to the client even if the lawyer makes a negligent mistake or willfully misbehaves.

Unethical Fees ?

General rule—excessive fees are unethical

U.S. v. Jamil

Government investigator made contact with a represented suspect but without the prosecutor's knowledge. Court found no violation, but left it open as to what would happen if the investigator were acting as an "alternate ego."

Samaritan Foundation v. Goodfarb

Med-Mal case where P sought discovery of hospital staff interview summaries prepared by D's paralegal in anticipation of litigation. Hospital staff that was interviewed were, but for their employment, only witnesses, so their statements were discoverable. i. ARIZONA LAW: 1. Any communication is privileged for the purpose of obtaining legal advice, 2. Or for the purpose of obtaining information in order to provide legal advice. ii. RESTATEMENT TEST: 1. Communications between the agent of an organizational client and a lawyer (or the lawyer's agent) regarding a legal matter of interest to the organization are privileged. 2. It doesn't matter who initiates the communication.

Contingency for criminal cases ?

No contingency for criminal cases—not allowed in any situation

Olfe v. Gordon

P hired L to represent her in property sale, explicitly stating she'd only accept a 1st mortgage. L thought it was in her best interest to take a 2nd mortgage position, but he told her it was a 1st. The buyer defaulted and she lost her $$. Court says L is liable for all losses caused by his failure to follow P's explicit instructions, despite his god-faith belief that he is acting in P's best interest i. Note—the difference between Olfe and Jones is that you have to consult with your client under MR1.2(a), and Olfe didn't do that.

Nichols v. Keller

P sued his lawyer, a workers comp attorney, after finding out the statute of limitations ran out on civil claims that he could have brought. L claims it is outside the scope of his representation. Court disagrees, this is not informed consent. L must advise on all available remedies.

Cotto v. U.S

P's claim was tossed out because his lawyer failed to prosecute. Court says that a client will be bound by the actions of his attorney, even if those acts may warrant disciplinary measures against the attorney.

Client Autonomy—

i. Objective/Means Test—the client chooses the objectives, the lawyer chooses the means. However, attorney must consult with the client with regard to the means. The client has an unqualified right to (MR 1.2): 1. Accept/reject a settlement 2. How to plea 3. Whether to testify 4. Jury v. bench trial

Tort Remedies?

i. One court held that a party cannot sue an attorney who was acting wrongfully to obtain confidential information because it was not a recognized cause of action. However, that may catch on.

Brobeck v. Fordam

i. Telex was a much more sophisticated client that actively negotiated fees. The plumber agree d to the hourly rate of Fordham, but no idea that $200 an hour would result in a $50k bill. Telex was arguing unconscionability (Rule 1.5—fees must be reasonable), whereas the plumber argued that it was excessive and unethical.

Courts may reduce or deny unethical fees

i. This is a consumer/public interest argument when courts do this; this is an ethical transgression that goes directly to the heart of the fiduciary relationship. ii. Courts are strict in reviewing fee arrangements for fairness (one lawyer was suspended for changing from hourly to contingency fee when he found out that the estate had substantial assets).

Court-Awarded Fees - Common Fund Cases

i. When a class receives a judgment or a settlement that yields a fund for payment to the class, courts can award attorney's fees from the fund using either Lodestar of a percentage of the total.

a. Inflating bills:

i. You cannot inflate bills. There are severe disciplines for defrauding clients. ii. Example: some lawyers would offer clients a reduced fee for prompt payment, and would then inflate the bill to net the same amount.

EXCEPTIONS (MR 1.6(b))

i. a lawyer MAY reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary (see graph—outside smaller circles but still within the realm of MR 1.6): 1. Client consents / waiver. 2. Collection of fees 3. Implied authorization—some disclosure in order to carry out representation (to do something like get a settlement). 4. Prevent reasonably certain death or substantial bodily harm. 5. Prevent a crimes, fraud, or harm. 6. To prevent or mitigate injury to financial interests or property. 7. To secure legal advice about compliance with these rul es. 8. Establish a claim or self-defense for: a. A case between the lawyer and the client, b. Establish a defense in a criminal case based upon the client's conduct, or c. In response to allegations regarding the lawyer's representation of the client. 9. To comply with law or a court order. 10. Put the communication at issue. "My lawyer told me to do it." 11. Noisy withdrawal (saying your are withdrawing but not saying why). 12. Identity of your client. Last link exception. 13. Public Policy—maybe to eliminate sexual harassment or discrimination. 14. Note: Good faith IS NOT an exception. Note: California is much more restrictive.According to §6068, there are no exceptions aside from

Communication with Another Lawyer's Client (MR 4.2) Pro-Se Lawyers

i. authorities are divided as to whether they can contact opposing counsel's client. In CA, pro se lawyers MAY directly contact opposing parties. (CRPC 2-100).

Lawyer's Duties to Clients - Competence MR 1.16

i. comment 1)—A lawyer should not accept representation in a matter unless it can be performed competently. . . ii. A lawyer may require further preparation depending on the client's needs; and/or may need referral to another lawyer if ill-equipped. iii. A lawyer isn't required to know the law pertaining to a client's issue before taking on the representation as long as he'll be able to within reasonable diligence. iv. Lawyers who claim to be specialists will often be held to a higher standard. v. Lawyers need to keep up w/ changes in the law and any continuing legal education requirements of the state. The Bar may sanction for incompetent representation

Communication with Another Lawyer's Client (MR 4.2) No-Contact Rule

i. lawyers are not allowed to communicate about the subject matter of a dispute with opposing parties that are represented by counsel unless they have permission. 1. Note: surveillance is not communication. 2. Remedies—disqualification, exclusion/suppression of information, sanction by state bar, disbarment.

Confidentiality - Control Group test

1. Communications by those employees who have the power and authority to "control" the corporation (senior management) are privileged.

Duty to inform/advise : (page 84)

1. "In a Box" (page 84)—Attorney found out from one client that a company was under investigation from the state. Another client was entering into a transaction with that same company. Can you tell them what you know? No it is confidential information, and you have a duty to your client not to disclose. However, you can advise them not to do the deal, and tell them that you are barred from saying why. Can you get consent from the first client to tell the other? Yes, probably. Can you continue to represent both clients? If pursuing representation causes you to breach your duties, you must resign (more addressed later in conflict of interest chapter).

"Ms. Niceperson" (page 87)—Lawyer realizes that her friend, opposing counsel, made a procedural mistake in the case (any second filing extension must be approved by the court). She realizes that if she does nothing she will win a $15 million judgment. Does she a duty/right to tell opposing counsel?

1. ? This is an allocation of authority issue. Is this a decision to be made by the lawyer or the client? Lawyer has a duty to convey settlement offers, but is there a duty to consult with the client when granting a filing extension? Could be argued both ways. What about opposing counsel? One argument is that by telling them you are putting your reputation before your client. Alternatively, you are responsible for being loyal to your client, and there is arguably a duty to inform your client under Rule 1.4. No bright line answer. Both actions can be justified. Lawyer "may" decide to tell their client.

Results of Hammond

1. Attorney General, Dick Thornburgh—Justice Department is exempt from state ethic rules. 2. Reno rebuts—federal prosecutors are bound by this except for the authorized by law exception. 3. Dade Amendment—Made a law saying that federal employees are subject to state ethical rules.

AGENCY (MR 1.2)

1. Attorneys, as agents, have certain authorities and duties within the scope of their agency. Fiduciary and confidential duties are also applicable under agency law.

What are the Odds?" (page 85)

1. Client has a business plan, and asks attorney for advice of how risky (legally) certain courses of action will be. He pushes the attorney to assign percentages/odds for each decision. Can the lawyer use low/medium/high risk, or should they assign percentages? Risk of malpractice? Client has a right to be informed, this is pitted against the lawyer giving information that they cannot be certain about (law is more of an art than a science). No real answer here. Just need to discuss with clients the risks involved and what could vary those factors.

How long does the privilege last?

1. If client died you still cannot disclose. Reasoning: if you think that the lawyer is going to disclose after you die, you would be reluctant to tell them. You want that confidence. California asserts the privilege up and until the estate is distributed and the personal representative is discharged

Accept the Offer (page 96)—Client is in a divorce, and wants to accept a low ball offer because she feels bad for divorcing her husband. Usually this happens, and they end up regretting it later

1. Lawyer cannot counter without her client's permission. Best thing to do is to try to counsel and warn the client, but in the end it is their decision. If your legal rights are much stronger than what you are seeking, it doesn't matter. The attorney needs to be smart and get something signed so the spouse tries to come back and sue them later.

What default/admissions may bind a client ?

1. Procedural defaults—Acts and omissions of counsel are customarily imputed upon the client because there are presumed strategic/tactical. In criminal case, D must show actual innocence to the procedural default. a. Remedy—the client should seek relief against his attorney. He will have to show that he would have won if it were not for the attorney's malpractice. b. Example: An attorney did not comply with pretrial discovery rules and procedures requiring disclosure of witnesses. The court sanctioned him by precluding that witness. c. Example: Opposing attorney asks for a time extension, but fails to ask court's permission because one extension was already granted. Do you tell him? Either option is likely defensible. However, you should at least consult with the client as per rule 2.1 (Duty as counselor). d. You know that other side has left out a critical claim or defense. Do you tell them? No, because that deals with substance and not procedure. That would breach the duty to the client.

Lawyer's Duties to Clients - Confidentiality

A lawyer SHALL not review information relating to the representation of a client unless the client gives informed consent.

Lawyer's Duties to Clients - Competence MR 1.1

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

What Are You Worth" (page 151)—Billionaire gets charged with homicide. He asks a retired attorney to represent him, the best in the world. The attorney says he will do it, but he wants 2 percent of his net worth ($500 million). If the billionaire agrees, is this unethical?

Argument goes both ways. Lawyer will have a strong argument if he puts it in writing and it is carefully and clearly communicated.

Clinton

Bill Clinton's communication with white house counsel and Hillary's communications with her attorney during the scandal. Issue is who is the client when dealing with the government? 8th Cir. Said that there is no privilege when there is a grand jury subpoena. Reasoning: the client is really the public in this situation, not the office or employee (including the President).

Perez v. Kirk & Carrigan

Bus driver came to corporate lawyers and gave incriminating evidence about accident. They got him a new lawyer because of the competing interests, then turned over the statements to the prosecution. Driver sued. Court found that duties arose during the preliminary meeting and the lawyers were obligated to keep it confidential. Violation arguments include MR 1.13(f)—corporate lawyers must explain their clients identity, MR 4.3—dealing with unrepresented parties, and MR 1.18—duties to prospective clients.

Jones v. Barnes

Client, while in jail, tells the lawyer to raise certain defenses. Lawyer feels that some of them are frivolous and doesn't raise them (uses only 3 out of the 7). Client says this violates his constitutional rights. Court says no, the lawyer has specialized knowledge, and is best in making these decisions (scope of his authority). Dissenting opinion—lawyer is the agent and should do what the client requests. This violates the client's autonomy (Rule 1.4).

Confidentiality with Corporate Clients MR 1.13

Control Group → Samaritan → Upjohn → Arizona Law → Restatement (Narrowest) (Broadest)

Goldfarb .v Virgina State Bar

Couple couldn't get a single lawyer in town to haggle on the price of a title search because the state bar set the minimum fee schedule. Supreme Court reversed lower court and said that bar associations are subject to the Sherman Act, and cannot engage in price fixing.

SEC v. McNutly

D was assessed a default judgment for failing to answer the complaint. Court would not vacate the judgment. Lawyer's actions were imputed to the client. No evidence that D, an experienced businessman, was making sure his lawyer was tending to the lawsuit.

U.S. v. Dobbs

D was suspected of extortion, so he retained counsel. D was interviewed by the FBI and later tried to suppress the evidence. Court said it was o.k., it was investigatory proceedings done prior to the initiation of judicial proceedings

U.S. v. Hammond

D's company bilked Medicaid out of $400k in reimbursements. Prosecutor directs informant, Goldstein—accountant for D, to record conversation with D. Goldstein says he was issued a subpoena (fake) and got D to indulge incriminating evidence. D, however, at this time was represented by ongoing in-house council. Court found inappropriate conduct because the subpoena was a sham, otherwise it would be pre-indictment conduct that was "authorized by law." However, the court found exclusion an inappropriate remedy.

Rico v. Mitsubishi

D's lawyers take attorney-work product notes from P's briefcase while they are out of the room. D used this against P at trial. P couldn't prove how D got it, but court still found an ethical violation under Rule 4.4(b). D held onto it and used it against P instead of examining it just long enough to find out that it was confidential. D was excluded as an attorney form working on the case.

I'd Rather Die (page 95)—Client doesn't want to pursue an appeal while sitting on death row, and would rather die than go through the process. Lawyer thinks there is a good case and an appeal would be successful.

I'd Rather Die (page 95)—Client doesn't want to pursue an appeal while sitting on death row, and would rather die than go through the process. Lawyer thinks there is a good case and an appeal would be successful.

Brobeck v. Telex

IBM sued Telex, but Telex won with a $259m counter claim. On appeal, the 10th Cir. reversed and found for IBM. Telex approached Brobeck to represent them and take their case to the Supreme Court. Parties decide to cancel both claims instead of going to the Supreme Court. Brobeck then sends Telex $1m bill for services rendered. Telex refuses to pay because it is excessive, Brobeck sues for breach of contract. Brobeck wins in District Court, and Telex appeals arguing that the contract is unconscionable. 9th Circuit finds that the contract was not unconscionable at the time it was made (cannot be resolved in hindsight). Although a high fee, Telex sought to secure the best firm, the firm saved Telex from bankruptcy, Telex was a sophisticated client, and substantial value was received from Telex. Affirmed

Upjohn v. US

IRS sought discovery of communications between Upjohn's Attorney's and some mid/lower level employees. The communications sought were made within the course of their duties with knowledge that the corporation was preparing for litigation. Court rejects the Control Group Test (6th Circuit) in favor of the Subject Matter Test.

Smith / Lerner

L offered to be an undercover informant and to record incriminating conversations with his former client. L was suspended for 2 years for doing it.

Benson

L was in a lot of debt, so asked client for a loan. L was disbarred. Conflict of interest created. He breached his position of trust and power. He was supposed to act in their best interest, but instead is hitting them up for money.

Matter of Laurence Fordham

Plumber gets a DUI and talks about it with a client. She recommends her husband, Fordham, who takes the case. He gets the plumber acquitted, and sends him a $50k bill. Bill was so high because this was a novel area of law for the lawyer (he was a civil attorney). Instead of paying, the plumber alleges to the state ethics board that they were excessive and unethical fees (average fee is $1k to $7.5k, but never in excess of $15k). Ethics Review Board determined that ultimately there was no violation under the "safe harbor" doctrine—the hourly rate was agreed to, and the time was actually spent by the attorney. Plumber appeals to the district court who rejects the decision and determines that there was a violation; it doesn't matter whether the client acquiesced, the issue is whether the fee was clearly excessive (which it was in this case).

U.S. v. Foley

Prosecutor interviewed D despite soon-to-be court appointed lawyer's request not to do so; concern that the no-contact rule only applies to indigents

Are reverse contingency acceptable ?

Reverse contingency are acceptable—client agrees to pay lawyer a percentage of what the lawyer saves the client. These are okay

Testers

Someone who pretends to be what he/she is not. Lawyers are forbidden from engaging in misrepresentation (MR 8.4(c)), the contrary argument is that it is legitimate investigatory technique (page 119). Fact specific determination, courts have gone both ways

Government Adversary

The no contact rule only applies to those people who can bind the government (can take or recommend action in the matter).

Investigator v. Lawyer / Authorized by law

as lawyer, they are subject to the rule. As investigator, they are allowed to conduct investigative techniques authorized by law. Authorized by law exception is written into MR 4.2.

Client is HIV Positive Scenario Your client tells you that they are HIV positive, and you feel bad for the single mother that he is having unprotected intercourse with. Can you tell her?

This seems to fall within the exception of trying to prevent bodily harm

Togstad

Widow consulted with attorney about husband's death. Attorney said that there probably was no case, and he would get back to her if he thought he could make one. He forgot. Later she sued when the SOL passed for her to be able to bring a suit. He claimed no attorney-client relationship was ever formed. Court disagreed. The client had a reasonable expectation of there being a relationship.

Example of improper accidental acquisition of confidential information Example—you receive a misdirected fax which says that it is "confidential and privileged information", which was sent to you in error by opposing counsel. Can you use it?

a. ? Different jurisdictional splits: i. Can't be used—A disclosure that was merely negligent can never be waived because the holder of the privilege lacks a subjective intent to waive the privilege. ii. Can be used— Strict accountability, privilege is waived. Balancing test—(1) Reasonableness of precautions taken (2) Amount of time before error was recognized (3) Scope of production (4) Extent of inadvertence (5) Overriding interest of fairness and justice

Authority to bind

a. Actual Authority - acceptable amount has been communicated and client has given specific permission. b. Inherent Authority - "settle up to $1 Million." c. Apparent Authority - opposing party reasonably believes the attorney has authority to bind client and they reasonably rely on that belief.

1- Contingency Fees: -(MR 1.5(c))

a. Fee may be contingent on outcome if it is (1) in writing, (2) signed by client, and (3) material terms that specify how the fee is calculated.

Who Is a Client?

a. It is important to distinguish between clients, prospective clients, and non-clients. RULE: An Attorney-Client Relationship is formed when (1) a person manifests to a lawyer the person's intent that the lawyer provide legal service for the person, and. . . (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services. ~Attorney Grievance Comm'n of Maryland v. Kreamer i. No formal relationship is required, it can be express or implied. ii. A person consulting with a lawyer about a possible cause of action is sufficient to create an attorney-client relationship. iii. Fee collection and retainer are not required.

1- Improper / Accidental Acquisition of Confidential Information:

a. MR 4.4(b)—a lawyer must notify the sender of any document that he receives that relates to the representation of his client if he knows, or reasonably should know, that it was sent by mistake.

Rights that cannot be waived (MR 1.2)—The client has the unqualified right to decide

a. Whether to settle b. How to plea c. Whether to testify d. Jury v. bench trial

Judicial admissions

an admission made by the lawyer in court is binding on the client.

Vicarious admissions

an admission made by the lawyer out if court may be used against the client, but they don't' bind him. The client may try to disown them or introduce contrary evidence

Terminating the Relationship (MR 1.16): Termination by the Client

i. A client can terminate the ACR for any reason that doesn't violate normal discrimination rules (i.e. race, gender, or religion). ii. If the case is too close to trial, the court may not let the client fire his attorney because it is unfair to the court, opposition, and would cause undue delay. iii. Also, criminal D's can't fire court-appointed counsel without court approval.

FIDUCIARY

i. A fiduciary relationship is one where the agent must put his clients' interests above his own. ii. Lawyers hold a unique position of trust and confidence toward clients and former clients.

General Non-refundable Retainer

i. OK. Client receives certain benefits: (1) Name ("Sara Bennet is my lawyer"). (2) Availability, (3) Conflicting attorney's interest- cannot take adverse claims. 1. Example: "Meet Sara Bennet" (page 161)—Famouns anti-trust attorney is paid a $10k retainer to be able to step in if negotiations fail. This is just for her to be available. In addition, she wants a $24k non-refundable fee against the first 30 hours of work if she has to do any work (She normally bills out $800 an hour).

Permissive Withdrawal

i. A lawyer MAY terminate the ACR without violating a duty to his client if it can be done without: 1. Adverse material effect to the client, or 2. Some material to the client, but: a. Attorney reasonably believes the client is acting fraudulently or criminally, b. Client insists on strategy that is repugnant or imprudent, c. Client substantially fails to meet obligation to attorney and has been given warning, d. Representation will result in Unreasonable burden to attorney (financial or personal), e. Client is unreasonably difficult to work with, or f. Other good cause exists. 3. However, a court may order the attorney's continued representation of the client, even if he has good cause to withdraw. ii. Procedural Requirement— 1. Must give client reasonable notice, Must get court permission if litigation is pending

a. Reasonable Standard (MR 1.5)—

i. A lawyer's fees must be reasonable. Consider the following factors: 1. Time and labor required; novelty and difficulty of the issues; skill required to perform the legal service properly. 2. The likelihood that the job will preclude the lawyer from taking other jobs, if it is apparent to the client. 3. Customary fee for similar work in the area. 4. Amount involved and the results obtained. 5. Time limitations or imposed 6. Nature and length of the professional relationship w/ the client 7. Experience, reputation, and ability of the lawyer 8. Whether the fee is fixed or contingent. ii. The scope of the representation and the basis for the fee, and any changes to the fee, must be communicated, preferably in writing, within a reasonable time of starting representation unless the client is a regular client who always pays the same basis rate.

Termination by Drift

i. Argument that the ACR ends by the mere passage of time (not a good argument). ii. Courts MAY or MAY NOT recognize a time drift as an effective termination of an ACR. An attorney may still have a duty to protect a client's interests if the relationship was not properly terminated. iii. Courts recognize "episodic clients" who have work done at somewhat regular intervals because it creates a reasonable expectation in the client that the ACR continues to exist.

Settlements Contingent on Fee Waiver

i. Attorneys must act in the best interest of their client, even if it means they don't get paid anything.

i. Communication under (MR 1.4), A lawyer shall:

i. Communication under (MR 1.4), A lawyer shall:

1- Court-Awarded Fees - a. Generally:

i. Courts won't hesitate to adjudicate fees. Federal fee shifting cases usually use the Lodestar Method— the number of hour reasonably expended, times a reasonable hourly rate

Communication with Another Lawyer's Client (MR 4.2)

i. Employees of a Corporate Party— 1. Three different approaches: a. Niesig Rule—protected if acts or omissions are binding on the corporation / imputed to it for liability, OR the employee is implementing counsel's advise (MR 4.2). b. Narrow approach—Only the control group (Upjohn). c. Broad approach / Federal standard—blanket test; vicarious admissions test.

Noisy withdrawal

i. If a lawyer must withdraw because of crime or fraud, he may be allowed or required to alert others that he retracts a document or opinion that the client may be using for the illegal purpose.

a. Criminal cases:

i. If the prosecutor improperly acquires confidential information, split in jurisdictions: 1. Government must show that they did not use the privilege information, 2. D must show deliberate misconduct or prejudice.

Truthfulness in Statements to Non-Clients (MR 4.1

i. In the course of representing a client a lawyer shall not knowingly: 1. Make a false statement of material fact or law to a third party, or 2. Fail to disclose a material fact when it's necessary to avoid assisting his client in a crime or fraud, unless disclosure is prohibited by 1.6.

Unrepresented Parties (MR 4.3)—

i. Lawyer may contact unrepresented person, but the lawyer should disclose who his client is, and not pretend that he is disinterested. May advise them to obtain counsel.

a. California Standard—

i. Looks at whether the fee unconscionable.

Fee arrangements do not have to be in writing

i. MR 1.5(b)—fees shall be communicated to the client, preferably in writing.

Clients with Diminished Capacity (MR 1.14)—

i. Maintain a normal client-lawyer relationship with the client whenever reasonably possible. ii. But under MR 1.6, the lawyer may reveal confidential information to the extent reasonably necessary to protect the client's interests.

Government as an Entity:

i. Much authority seems to suggest that the government, as an entity client, enjoys the same protection for conversations between its lawyers and its agents as Upjohn bestowed upon clients. ii. Same issues as to who the client is in the dispute especially when dealing with a grand jury, as evidenced in Clinton:

Special Non-refundable minimum fee

i. NO. A client must be able to fire his lawyer, and this is holding money hostage. This is payment for a particular service. The fee must be returned if the service is not rendered.

Charging client for learning

i. NO. An inexperienced attorney may not charge client for research necessary to become an experienced attorney.

Contingency fees for divorce ?

i. No contingency for divorce—No contingency fees for domestic relations matters where payment is contingent upon divorce, amt. of alimony or support, or property settlement in lieu thereof. 1. California does not have this limit

Lawyer Autonomy

i. No duty to raise every possible issue the client wants to pursue, but must be acting in his client's best interest and as a matter of professional judgment.

Terminating the Relationship (MR 1.16): a. Termination by the Lawyer—

i. Note: many of the attorney's duties to his former client continue after termination, such as confidentiality and conflict avoidance. ii. Required withdrawal—lawyers are subject to disciplinary action if they commence or fail to withdrawal from representation that would: 1. Violate ethics rules, 2. Violate other law, or The lawyer's physical or mental health is impaired

Taylor v. Illinois

lawyer did not disclose potential witness (tactical measure). Witness was excluded and could have provided an alibi for D. D claims it is a 6th amendment violation. Court disagrees. Client is bound by attorney's actions. The lawyer has and must have full authority to manage the conduct of the trial

Matter of Cooperman

— Lawyer is disciplined for charging non-refundable fees, and for not refunding clients their fees when they fire him 2 days later. Found to be a violation of rule 1.5 because it impedes the clients ability to sever the fiduciary relationship with the lawyer. 1. Distinguising "Meet Sara Bennet" from Cooperman— Sara Bennet is making herself available to them and from representing opposing clients (like an option contract), whereas Cooperman seems to be taking advantage of clients and not caring about the fiduciary care owed. (Again there is also a distinction between sophistication of clients).