RULES, QUESTIONS, ANSWERS

CRCP Rule 1.5 Fees for Legal Services

(A) A member shall not enter into an agreement for, charge, or collect an illegal or unconscionable fee. (B) Unconscionability of a fee shall be determined on the basis of all the facts and circumstances existing at the time the agreement is entered into except where the parties contemplate that the fee will be affected by later events. Among the factors to be considered, where appropriate, in determining the conscionability of a fee are the following: (1) The amount of the fee in proportion to the value of the services performed. (2) The relative sophistication of the member and the client. (3) The novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly. (4) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the member. (5) The amount involved and the results obtained. (6) The time limitations imposed by the client or by the circumstances. (7) The nature and length of the professional relationship with the client. (8) The experience, reputation, and ability of the member or members performing the services. (9) Whether the fee is fixed or contingent. (10) The time and labor required. (11) The informed consent of the client to the fee.

Four Part Analysis for Duties to Joint Clients

Does the lawyer have a reasonable belief that he can fairly represent all clients given the conflict or potential conflict? Is joint representation reasonably necessary in this matter? If yes to both, then full disclosure and informed consent in writing is required from all clients. If informed consent is obtained under the circumstances, would a "disinterested lawyer or judge" agree that it is in the best interest of one or more clients to give informed consent? If not, consent was improperly asked for and obtained.

CA Requirements on Withdrawal:

California lawyers may not disclose the reason for withdrawal because the reason is a protected secret of the client under confidentiality rules (unless the reason for the withdrawal involves non-payment of fees by the client). So they must merely say: "I withdraw as attorney of record for John Smith in any pending transaction for the Bank of Commerce."

California common law also allows lawyers to reveal certain confidential information to the extent necessary to:

Establish a fee Establish a defense if accused of wrongdoing or misconduct

4.To practice in California, will you have to become a member of:a.The State Bar of California? b.The city or county bar association in the area where you open your office? c.The American Bar Association?

a. yes for most states b. no this is voluntary c. voluntary

1.The County Association of Real Estate Dealers (CARED) is a trade association composed of all the licensed real estate brokers and dealers in the county. Over the years, CARED has provided its members with standard forms of legal documents for use in routine real estate transactions. Last year, the state passed a new statute that requires all legal documents affecting consumers to be expressed in "clear, simple English." Any document that does not comply is void. CARED hired attorney Adler to draft a new standard form apartment lease to comply 368with the new state statute. Adler did so, and CARED distributed the new form to its members. Dearbourne Realty & Investment Company (a CARED member) used the new form to lease one of its own apartment units to one Leon Beckner. Now Beckner seeks to have attorney Adler represent him in a law suit against Dearbourne to have the lease declared void. One of Beckner's several arguments is that two key paragraphs of the lease are totally incomprehensible to the average person. Adler has re-examined the two paragraphs and is inclined to agree that Beckner is very likely correct. May Adler represent Beckner in the lawsuit?

this is a current client- former client situation because there is no indication that Adler is still representing CARED is there a conflict here? the parties are potentially in opposition to each other because he wants the contract to be voided, but Adler worked on that matter and he probably knows confidential information about dearbourne Adler should recognize very quickly that Leon's problem involves the same lease Adler drafted for CARED (either a former client or current client) - the conflict should be obvious. As soon as it is obvious, Adler should stop Leon immediately from going any further with his story or problem to avoid acquiring confidential information about Leon's position, strategy or research. Leon does not know he is in the adversary's tent; Adler does. If former clients CARED or Dearbourne want to later hire Adler to defend the lawsuit after Leon gets a new lawyer and files his suit, Adler can't handle the suit if he let Leon talk at length because he would be in the position of having confidential information that could be used to the detriment of his former prospective client Leon. Leon would be able to successfully disqualify Adler as counsel for either CARED or Dearbourne. Is the Conflict Curable? If Adler accepts Leon's informed consent and represents him, won't CARED and/or Dearbourne object? Adler knew when he drafted the lease for CARED that they would distribute it to their members, so Dearbourne is closely linked to CARED. Adler almost assuredly discussed lots of confidential information and strategy with CARED when he drafted the lease to meet the needs of their members. If Adler agrees to represent Leon, there is an imminent possibility that those confidences and strategies will be used to the disadvantage of Adler's former clients. The interests of CARED and Dearbourne are certainly directly adverse to Leon's interests. Adler should anticipate, if he accepts this employment, that CARED and/or Dearbourne will move to disqualify him because of the confidential information he may potentially use to the disadvantage of CARED, as well as the fact that the interests of the former client and the prospective client are directly adverse. Discussion Problem 1: Let's use our 3 Step Simple Analysis: Is the matter of the lease that Leon wants to challenge and CARED's interest in the validity of the lease substantially related? Yes! Are the interests of Leon and CARED adverse? Yes. Once the lawsuit begins, they are on opposite sides! Is confidential information involved that can be used to the detriment of CARED? Absolutely yes, if Adler decides to undertake the representation of Leon in challenging CARED's lease. Yes to all three. Adler should decline this employment or he will be disqualified. If he gets "informed consent" from his former client, it is likely not valid. Why would either party possibly consent to the lease challenge by the lawyer who wrote it? Note that if we had started the analysis by addressing the confidential information prong of the test, the other two prongs would be irrelevant.

WITHDRAWL litigated v non litigated

In a litigated matter, if our clients refuse to fire us, we must petition the judge for permission to withdraw. Permission may be refused if the matter is too close to trial, or otherwise causes the possibility of disruption, delay or prejudice to the court. Withdrawal in a transactional (non-litigated) matter is usually just a matter of giving proper notice to a client, making sure the client has enough time to retain new counsel.

concurrent client rule

[C6] Loyalty to a client prohibits representation of one client that is directly adverse to another client without that client's informed consent (but if the matter rises to that of litigation BUT SEE: C23: Lawyers can't represent opposing parties in the same litigation, regardless of informed consent)

7.Attorney Adam is your former law school classmate. Adam is a nice person, but he is very disorganized and easily overwhelmed. It has been brought to your attention that Adam has a tendency to procrastinate, and that he might not be current with all of the continuing legal education requirements mandated by the State Bar. a.Do any of the Model Rules address procrastination? b.Do any of the Model Rules address continuing legal education? c.If any of the Model Rules address procrastination or continuing legal education, do you have an ethical obligation to report Adam to the State Bar? d.If Adam is licensed to practice in California, is he required to report himself to the State Bar? [See Cal.Bus. & Prof.Code § 6068(o).]

a. Yes, MODEL RULE 1.3: Diligence Rule 1.3 says that a lawyer must act with "reasonable diligence and promptness," in representing a client. Comments [3] Perhaps no professional shortcoming is more widely resented than procrastination. b. Yes. Maintaining Competence [8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. c. no because I do not KNOW that he has violated the ethics rules, I just know that he "may" d. no. Rule: California lawyers must report themselves if they have -Three or more lawsuits in a 12 month period for malpractice or professional wrongful conduct; The entry of a judgment against the lawyer for fraud, misrepresentation, breach of fiduciary duty, etc. -The imposition of judicial sanctions for $1,000 or more; -An indictment charging a lawyer with a felony, and lots of other circumstances, including convictions and discipline against the attorney by any other professional or occupational disciplinary agency or licensing board, in CA or elsewhere. California will rarely impose discipline for an isolated offense, unless the offense is a felony or misdemeanor involving moral turpitude. Usually, the Bar looks to a pattern of misconduct that indicates a lawyer is not trustworthy, not a fiduciary or is a danger to the public. So unless there is a pattern of misconduct, he does not hav to report.

6.Lawyer Lawrence has come to you for legal advice. He has told you in confidence that he and a group of his friends formed a real estate investment venture. They entrusted him with a large sum of money to invest for them, but he diverted part of it for his own use. They have not yet discovered what he did, and he has asked you for legal guidance. a.If Lawrence was acting in the real estate transaction in his personal capacity, not as a lawyer, is he subject to discipline by the state bar for what he did? b.Do you have an ethical obligation to report him to the state bar?

a. yes because one could argue that this still reflects on his trustworthiness which is an element of moral character b. No because he we have a form of attorney client privilege if I chose to advise him, if not, I would have an ethical obligation to report depending on how "substantial" I believed this offense to be.

implied lawyer attorney relationship, still owe

implied relationship with our clients, imposing upon us all of the duties inherent in an attorney client relationship, such as diligence, competence, loyalty and absolute confidentiality.

Model Rule 1.8(j) prohibits a sexual relationship unless

it existed at the beginning of the relationship; CRPC 1.8.10 is substantially similar.

6.Until ten months ago, attorney Barneo was an Administrative Law Judge for the State Consumer Protection Commission. The Commission's Enforcement Division brought proceedings against Mandel Toy Company to stop Mandel from selling some allegedly dangerous toy rifles. The Commission attorney moved for a preliminary cease and desist order. Barneo was assigned to hear the motion. She declined to issue the order, stating on the record that "the evidence of dangerousness looks exceedingly thin at this time." Several months later, Barneo resigned her position and entered the private practice of law. Ultimately, after a full hearing before a different Administrative Law Judge, Mandel was ordered to take the toy rifles off the market. That order is now before the Appellate Division of the Commission, and Mandel has asked Barneo to argue the appeal on its behalf. May she do so?"

no because if she heard both sides of the case, she can't be a private attorney for one of the sides - rule 1.11: she participated substantially and personally (meaning confidential information is probably involved) in that case as a government lawyer,

Model Rule 1.7, Comment 6: Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client's informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even

when the matters are wholly unrelated.

3.The bar admission application for State X requires applicants to disclose, among other things, whether they have been convicted of a crime. Candidate F embezzled funds from a client while working as an accountant in State Z. Pursuant to a plea bargain, Candidate F did not serve time, but was placed on probation for five years and ordered to pay $45,000 in restitution. Candidate F did not mention this conviction on her moral character application; the State X Bar learned of the embezzlement 31through a letter from Candidate F's former client. Candidate F defends her failure to make this disclosure for the following reasons: (1) The conviction occurred six years ago. (2) She has repaid the restitution in full. (3) She asked a practicing attorney whether she should disclose this and he advised against it. (4) She believed the State X Bar would reject her application if she disclosed this. a.Do any of Candidate F's reasons constitute a legitimate justification for failing to disclose the embezzlement? b.Suppose that the State X Bar does not learn of Candidate F's embezzlement during its review process, and Candidate F is admitted to practice law in State X. Is Candidate F now "home free"—or does the State X Bar have any recourse if it later discovers Candidate F's embezzlement?

the rule is: Any conviction of a crime involving a felony will almost certainly throw you into a "moral fitness" review after you pass the bar exam. You must prove you are sufficiently rehabilitated to be a responsible fiduciary to your client. Usually less serious misdemeanors or infractions as a youth will not trigger a moral fitness review by the Bar so long as you are candid in answering any question asked. a. so no none of her reasons were legitimate justification for failing to disclose embezzlement, in fact since it was 6 years ago this could have been used to prove that she has been sufficiently rehabilitated b. Yes because, It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

MR 1.8 & CRPC Current Clients (h) A lawyer shall not: (2)

(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

"1.Inventor Ivan and marketing genius Gene want to form a new corporation to market Ivan's amazing new design for motion picture projectors. They want to hire attorney Arnold to help them to do the necessary legal work and to help them find venture capital. Because they have almost no hard cash at present, they have asked Arnold to do this work for them in exchange for 4% of the capital stock of the new corporation. The remaining 96% will be divided equally between Ivan and Gene and their respective families. May Arnold agree to their proposal? A.No, because a lawyer must not acquire a personal interest in the subject of the representation. B.No, because a lawyer must not enter into a business transaction with clients. C.Yes, but only if the 4% would not make the fee unreasonably high, and the transaction would be fair to the clients, and the terms are fully disclosed to the clients in an understandable writing, and the clients are advised in writing of the desirability of seeking outside counsel and given a chance to consult such outside counsel, and the clients consent in writing. D.Yes, but only if Ivan and Gene give their informed consent and Arnold promises that he will never vote his stock or otherwise attempt to influence the governance of the corporation.

"1.C. If Arnold acquires 4% of the capital stock of the new corporation, he will in essence be entering into a business transaction with his clients, Ivan and Gene. [See ABA Formal Op. 00-418 (2000) (discussing circumstances in which a lawyer can acquire stock of a start-up client in lieu of a fee).] Therefore, Arnold will have to comply with ABA Model Rule 1.8(a), which requires all of the conditions listed in C, except for the first one. The transaction must also satisfy this first condition because Arnold is accepting the stock in lieu of a fee, and an attorney's fee must not be unreasonable in amount. That would depend on how much the stock was worth, viewed as of the time of the transaction, not through the lens of hindsight. Answer A is wrong because it misstates the rule. The rule in question is ABA Model Rule 1.8(i), which speaks of the "subject matter of litigation," not the "subject of representation." There is no litigation in this problem. Answer B is wrong because it also misstates the rule. The rule in question is ABA Model Rule 1.8(a), which allows a lawyer to enter into a business transaction with a client if the specified conditions are satisfied. Answer D is wrong because it does not satisfy all the conditions of ABA Model Rule 1.8(a), and it incorporates an imaginary rule about not voting the stock or trying to influence governance of the corporation. Note, however, that if the lawyer's acquisition of stock might affect control of the corporation, that is one of the potential conflicts that the lawyer should fully disclose to the clients under Rule 1.8(a). [See ABA Formal Op. 00-418.]

3.Lawyer Lorenz represents client Cramer in a complex business case. The defendant has demanded production of a mass of Cramer's records that contain vital, confidential business information. The defendant has agreed to a protective order that prohibits it from misusing the information, and it has agreed to accept xerographic copies in lieu of the original records. Lorenz's office does not have a copying machine big enough to do the job efficiently. In these circumstances: A.Lorenz must do the copying job herself on her small, slow office machine. B.Lorenz must tell Cramer to make the copies himself, using his own facilities. C.Lorenz may select a trustworthy copying firm to do the work, provided that she makes sure the firm's employees preserve the confidentiality of the records. D.Lorenz may select a trustworthy copying firm to do the work, provided that she is personally present to supervise the work.

"3.C. Lawyers often need to use employees and outside contractors to help them serve their clients. It is proper to do so, so long as the lawyer uses care in selecting such persons and properly instructs them about the need for confidentiality. [See ABA Model Rule 5.3 and the Comment thereto.] Answer A is not correct; the ethics rules do not require Lorenz to waste her time and her client's money in this fashion. Answer B is not correct. Lorenz may wish to make the copies on his own facilities, but the ethics rules do not require that. Answer D is not correct. Lorenz need not be there to supervise personally, so long as she selects a trustworthy copying firm and gives proper instructions about confidentiality.

2.Aaron, Bropovski, and Carter were riding in a car driven by Duffy. The car was hit, head-on, by a truck driven by Emerson. Aaron, Bropovski, Carter, and Duffy have asked you to represent them in a suit against Emerson and his employer, United Fat and Tallow, Inc. Under what circumstances may you represent the four plaintiffs in this case?

"The ABA Model Rules do not prohibit lawyers from representing two or more clients in a particular matter, subject to the Rules' provisions regarding conflicts of interest. Multiple representation also potentially implicates Rule 1.8(g)'s prohibition against "aggregate settlements" unless each of the clients consents after full disclosure. [See ABA Standing Comm. on Ethics and Professional Responsibility, Formal Op. 06-438 (2006) (disclosure requirements under Rule 1.8(g)).] Professor Bassett considers the myriad situations in which joint representation issues arise and sets forth an analysis of the risks and benefits of joint representation in "Three's A Crowd: A Proposal to Abolish Joint Representation," 32 Rutgers L.J. 387, 433-38 (2001)*: Three basic policy considerations underlie the conflict of interest rules dealing with joint representation: (1) the interests of clients in certain objectives that are available through joint representation; (2) the need to protect clients from the dangers of joint representation; and (3) the desire to preserve lawyers' reputations by avoiding apparent impropriety. These policies indicate the ethical rules concerning joint representation involve a balancing of the risks of the latter two considerations with the client benefit resulting from permitting the practice. Accordingly, it is appropriate to examine the benefits resulting from joint representation.Joint representation is desirable from a client's perspective primarily because it is cost-effective. Other proffered justifications include maintaining an amicable relationship with the co-client; the desire to retain a particular attorney—whether due to reputation, prior relationship, or familiarity with the subject of the representation; and the "united front" strategy.Joint representation also confers benefits upon lawyers. The practice is desirable from the attorney's perspective because, assuming the clients desire joint representation, it permits the attorney to please those clients by agreeing to undertake the representation; it generates more revenue; and it eliminates some of the very real problems that can arise in separate representation concerning communications with a party represented by counsel." seems okay if you get consent from all of them and make sure that they are all on the same side of the conflict, it appears that they are according to the facts HOWEVER if A comes with information that is adverse to say D (like they were drunk when driving) you have to tell them to stop telling you because if they finish the sentence you must tell all the other clients (because they waived confidentiality) or withdraw if they finish the sentence

"1.Under the laws of California, what requirements will you have to meet to be admitted to practice? [See Cal. Bus. & Prof. Code §§ 6060 & 6062.]

"To be certified for admission, an applicant must be at least 18 years old, of good moral character, and a graduate of an accredited law school or a graduate of an unaccredited law school who passed the first year law students' examination. The applicant must also pass the General Bar Examination (or the Attorneys' Bar Examination if the applicant is admitted to practice in another state) and must pass the multi-state professional responsibility examination. [Id., Rules II-X.]" Good moral character requirement: defined in California as the "absence of proven conduct or acts which have been historically considered as manifestations of 'moral turpitude.' " Good moral character also is defined statutorily to include "qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, [observance] of the laws of the state and the nation and respect for the rights of others and for the judicial process." (Rule X, § 101(a)) If moral turpitude is found, he must show his rehabilitation and good moral character. "

4.Two years ago, you represented Mr. W in setting up a close corporation for his business and for certain personal investments. That work has long since been completed, and you have not represented Mr. W since then. Now Mrs. W has asked you to represent her in divorce proceedings against Mr. W. The two of them are in sharp disagreement over the division of property, child support obligations, and alimony. Assume that this jurisdiction does not have community property. Under what, if any, circumstances may you represent Mrs. W?

"We next address the issue of the appropriate standard to apply to determine whether the Schlesinger firm should be disqualified. In conflict-of-interest cases such as this arising under the former Code of Professional Responsibility, one seeking to disqualify opposing counsel was required to 373show that (1) an attorney-client relationship existed, thereby giving rise to an irrefutable presumption that confidences were disclosed during the relationship, and (2) the matter in which the law firm subsequently represented the interest adverse to the former client was the same or substantially related to the matter in which it represented the former client. This standard was based on the Code of Professional Responsibility, Canon 4, which provided that an attorney should preserve the confidences and secrets of a client." -dont represent because divorce could be related to the personal investments/business the matters are substantially related because helping with personal investments are related this answer turns on how much confidential information you have, I assume you have quite a bit of confidential information on them so it appears that the conflict is incurable

Model Rule 1.8(e): (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (2)

(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

Model rule 1.5 Client-Lawyer Relationship (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an arrangement for, charge, or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable.

Model Rule 1.13: Organization as Client (CRPC 1.13 is the same)

(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law. (c) Except as provided in paragraph (d), if (1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. (d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law. (e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal. (f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing. (g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

MR & CRPC 5.4 Fee Sharing (a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and (b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. (c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.

What to do with Client's Stuff: MR 1.16 (d)/CRPC 1.16(d):

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. Comment 9: Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law.

California Approach in CRPC 1.7-1.13: CA General Conflict Rule (3 important prongs) The California rule focuses less on specific scenarios and more on relationships that may substantially affect a lawyer's judgment.

1. A lawyer must provide written disclosure to a client where: L has or had a legal, business, financial, professional or personal relationship (LBFPP) with a party or witness in the same matter, or The previous LBFPP relationship would substantially affect the member's representation, or L has or had a previous LBFPP relationship with another person or entity that L knows or should know would be substantially affected by resolution or the matter, or L has or had a legal, business, financial or professional interest in the subject matter of representation 2. A lawyer must obtain informed written consent of each client where: A lawyer has multiple clients with potentially conflicting interests or actually conflicting interests; or A lawyer represents clients in matters that are directly adverse. A lawyer wants to accept new employment adverse to a former client if L has confidential information material to the employment. 3. Lawyers shall not accept fees from a third person who is not the client unless (under both CA and the Model Rules): There is no interference with L's professional judgment; and There is no interference with the attorney-client relationship; and Confidential information is preserved; and The client provides informed written consent. (CRCP 1.8.6)

Model Rule 5.5: Multi-jurisdictional Practice A lawyer not disbarred or suspended in one state may, in another state:

1. Provide temporary services in association with an admitted lawyer; 2. Be admitted by a court to practice in one case on a pro hac vice basis; 3.Provide temporary services reasonably related to a pending or potential matter if the lawyer reasonably expects or anticipates being authorized to appear in the jurisdiction; 4.Provide temporary services in arbitration, mediation or alternative dispute resolution matters if the matter arises out of the jurisdiction where the lawyer is admitted to practice; and 5.Provide temporary services in a matter not covered by items 2 or 3 above, but are reasonably related to a matter in the jurisdiction where the lawyer is licensed.

2.Lawyer Lenschell has recently opened his new law office. Timothy came to Lenschell's office and introduced himself as the "boyfriend" of Tina, a young woman who was just arrested on a prostitution charge. Timothy retained Lenschell to represent Tina and paid him an appropriate fee in advance. Timothy, who seemed to know a great deal about the law pertaining to prostitution despite being a layperson, explained to Lenschell that in prostitution cases in this district, a guilty plea usually results in a $500 fine, but no jail sentence. But if the defendant pleads not guilty, goes to trial, and is found guilty, the judge usually imposes a jail sentence. Timothy further explained that Tina did not want to go to jail, that he would pay her fine for her, and that Lenschell should therefore advise her to plead guilty. Lenschell met Tina for the first time at the courthouse, shortly before her case was to be called on the criminal calendar for entry of her plea. In their hurried 363conference, Tina told Lenschell that Timothy was her pimp, not her "boyfriend." Further, she said that she wanted to escape from Timothy and from her life as a prostitute, and that she wanted to plead not guilty, thus risking a jail sentence, rather than become further indebted to Timothy. What is the proper course of conduct for Lenschell to follow in this situation? A.To adhere to the instructions given by Timothy, and to advise Tina to plead guilty. B.To give Tina whatever legal assistance she needs in entering her plea of not guilty. C.To withdraw from the matter promptly, without advising Tina one way or the other on what plea to enter. D.To telephone Timothy and ask for further instructions in light of Tina's unwillingness to plead guilty.

2.B. Lenschell's client is Tina, not Timothy, no matter who may be paying fine or the legal fee. Therefore, Lenschell must not allow Timothy to orchestrate the case. [See ABA Model Rule 1.7(a); Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) (pornography shop employee defended by lawyer who was paid by shop owner)]. Whether to plead guilty or not guilty is for Tina to decide. [ABA Model Rule 1.2(a).] Thus, answers A and D are incorrect. Answer B is preferable to answer C. Lenschell has gotten this far with the case, and time is short since the case is about to be called on the criminal calendar. Assuming that Tina wants Lenschell to advise her about the plea, he should do so. The question does not provide enough facts to decide whether it would or would not be appropriate for Lenschell to continue representing Tina at subsequent stages of the case. Note that ABA Model Rule 1.8(f) prohibits Lenschell from accepting the fee from Timothy without Tina's informed consent.

GENERAL TYPES OF CONFLICTS Lawyer-client conflicts usually fall into four general groups:

1. When a third party pays the lawyer or tries to interfere with the judgment of the lawyer, (CHAPTER 11) for example: When a third party (not the client) wants to pay L's fees; Where the interests of an insurance company threaten the independent judgment of a lawyer, and/or When close professional or personal relationships with third parties such as relatives or friends affect the independent judgment of the lawyer. 2.When the interests of the lawyer conflict with the interests of his or her client, (CHAPTER 11): for example: When L's financial interests conflict with those of a client, such as doing business with a client; When L has a sexual relationship with the client; and/or When L's personal, political or religious beliefs threaten L's undivided loyalty to the client or competent representation of the client. 3. When a lawyer represents two or more clients (concurrent clients) with conflicting interests, (CHAPTER 12) for example: L represents multiple clients in an accident who seem to have harmonious interests at the outset but whose interests diverge as the case progresses. 4. When the interests of former clients and current clients conflict, (CHAPTER 12) for example: When private lawyers switch firms representing opposing clients When a judge leaves the bench to work at a firm that has or had cases before her as a judge When a government lawyer (such as an IRS lawyer) leaves the IRS to work at a private firm representing taxpayers in disputes with the IRS. Note just because there is a conflict doesn't mean you can't go forward: many can be cured also there are some conflicts that are considered incurable

1.In which of the following situations would the information received by the attorney be covered by both the attorney-client privilege and the ethical duty to preserve the client's confidential information? I.Lawyer L is defending client C in a tax fraud case. With C's consent, L hires a tax accountant to examine C's records, to talk with C, and to prepare some worksheets for L to use in defending the case. The accountant turns the worksheets over to L. II.L is representing C in a boundary line dispute with C's neighbor. When combing through the county land records, L discovers that C's grantor apparently had no legal title to the land he purported to grant to C. III.L is defending C in a first degree murder case. In the course of her investigation, L talks to a taxi driver who tells L that he remembers that on the night in question C rode in his taxi to an address near the scene of the murder. IV.L represents C in an action for breach of an oral contract. When preparing the case for trial, L stumbles across an old newspaper clipping, reporting C's conviction of a felony in a distant state 15 years ago. A.All of the above. B.I, III, and IV only. C.I only. D.III only.

1.C. The attorney-client privilege covers the information in item I. The tax accountant was simply acting as a conduit to help communicate information from the client to the attorney, and the tax accountant's role was to help further the attorney-client relationship. The information is also covered by the attorney's ethical duty to preserve confidential information.(because client gave informed consent) [See ABA Model Rule 1.6.] The items of information in items II, III, and IV are likewise covered by the ethical duty, but they are not covered by the attorney-client privilege because the attorney did not obtain the information through confidential communications with the client. In item II, the information came from public land records. In item III, it came from a third party taxi driver. In item IV, it came from a public newspaper.

2.Client Christenson asked attorney Alder to prepare some legal papers in connection with Christenson's dissolution of marriage proceeding. In the course of conversation, Alder learned that Christenson intended to develop some beachfront property into condominiums. State law requires the filing of 245certain environmental impact statements with the State Commissioner of Real Estate and Development as a prerequisite to any development efforts, including advertising and zoning variances. Later Alder learned that Christenson was proceeding with the project and had not yet filed the required statements. Which of the following items are correct? I.Alder must contact the State Commissioner of Real Estate and Development and reveal Christenson's intentions. II.Alder may contact the State Commissioner of Real Estate and Development and reveal Christenson's intentions. III.Alder may contact Christenson and urge him to take appropriate steps to rectify his wrong. IV.It would be proper for Alder not to tell any outsider about his communications with Christenson. A.I, III, and IV only. B.II, III, and IV only. C.III and IV only. D.IV only.

2.C. Items I and II are not correct. Alder provided no legal services in connection with Christenson's proposed beachfront development; Alder was Christenson's divorce lawyer. Accordingly, this situation does not come within any of the exceptions to the duty of confidentiality under ABA Model Rule 1.6, and Item IV is correct. Item III is correct; surely Alder may volunteer his advice in this context, even though Christenson will probably ignore it.

3.Lawyer Lattimer is on the in-house legal staff of Centennial Corporation, a major manufacturer of steel shipping containers. She regularly provides legal advice to Vice-President Markler, the executive in charge of sales and marketing. In the course of a routine preventive law project, Lattimer discovered that Markler had participated in a series of telephone conferences with his counterparts at the company's two main competitors. Further, she discovered that each such conference was promptly followed by an increase in the prices charged by the three companies. When Lattimer took this up with Markler, she first reminded him that she was not his personal lawyer, but rather the corporation's lawyer. Then she said: "If you have been discussing prices with our competitors, we may be in deep trouble. Your telephone conferences may violate the Sherman Antitrust Act, and that could mean civil and criminal liability, both for you and for the corporation. And, as you know, the corporation has a rule against rescuing executives who get in antitrust trouble." Markler responded as follows: "Ms. Lattimer, I know you're a good lawyer, but you don't know much about the real world. You can't run a business these days if you try to trample on your competition. Now don't worry yourself about my telephone conferences, because I'm sure you have better things to do with your time." If Markler remains uncooperative, which of the following expresses the best course for Lattimer to take? A.Draft a careful, complete memorandum about the matter for her own files, and maintain her conversation with Markler in strict confidence. B.Describe the relevant facts in a carefully drafted letter to the Antitrust Division of the United States Department of Justice, and request an advisory opinion on the legality of the described conduct. C.Describe the entire matter to Markler's immediate corporate superior, the Executive Vice President, and advise him to put a stop to Markler's telephone conferences.364 D.Describe the relevant facts in a memorandum to the corporate Board of Directors, and advise the Board that she will resign unless something is done to stop Markler.

3.C. Once it becomes apparent that Markler will not cooperate, Lattimer's best course of action is to take the matter up with Markler's corporate superior, the Executive Vice President. [See ABA Model Rule 1.13.] Answer C is preferable to answer D because C creates less risk of disrupting the corporate operations and revealing confidential information to outsiders. [See ABA Model Rule 1.13(b).] Answer B is incorrect because 483B would breach Lattimer's duty of confidentiality. Further, a competent lawyer would not need an advisory opinion from the Justice Department to know that phone calls between competitors about future prices raise antitrust problems. [See, e.g., United States v. Container Corp. of America, 393 U.S. 333, 89 S.Ct. 510, 21 L.Ed.2d 526 (1969).] Answer A is incorrect because Lattimer's client is the corporation, not Markler, and she has a duty to warn her client of Markler's activity. [See ABA Model Rule 1.13(b).]

4.Jefferson and Herchberger are involved in a boundary line suit concerning twelve acres of land that lies in a valley between their two farms. Lawyer Lennihan represents Herchberger in the suit.a.May Lennihan purchase from Jefferson a 30% interest in that twelve acres?b.May Lennihan purchase from Herchberger a 30% interest in that twelve acres?c.May Lennihan agree with Herchberger to do the legal work in exchange for a 30% interest in that twelve acres if Herchberger wins the suit?

4. A. no because the interest is an incurable conflict B. big conflict because loyalties divided when personal stake in how judgement is decided Now Lawyer L has a personal financial stake in H winning the lawsuit. Will that affect his judgment as to the best and most objective way to protect the claims of his client? Would his advice be more objective and detached if he didn't have a financial stake in the case? Is H really getting what he is paying for, which is the complete and objective loyalty of his lawyer, if he enters into this arrangement? no You are the "disinterested lawyer" H consults for advice. Would you advise him to enter into this arrangement after looking at it objectively? Is this arrangement in H's best interest, do you think? no Model Rule 1.8(i) prohibits a lawyer from acquiring a proprietary interest in the "subject matter of litigation" the lawyer is conducting for a client. The twelve acres involve the heart of the dispute here. Nonetheless, California has no prohibition here, but would require full disclosure to Hirschberger to continue the representation. C. contingency fee arrangement: is okay but should be distinguished from taking a lien (no conflict for contingency fees)

4.Attorney Aquino defended Dempsey in a criminal assault case. Before trial, Dempsey told Aquino in confidence that he beat up the victim without provocation. Due to Aquino's hard work, coupled with a stroke of luck, the jury found Dempsey not guilty. Then Dempsey refused to pay Aquino's fee. Aquino wrote to Dempsey as follows: "The jury found you not guilty, but your victim can still sue you for civil damages. If you do not pay my fee, and if I have to sue you to collect it, I will have to reveal the whole truth in open court, to explain why the amount of my fee is reasonable. Think this over carefully. I hope to 246receive your check by return mail." Which of the following is most nearly correct? A.Even though heavy-handed, Aquino's letter was proper because he was simply explaining to Dempsey the consequences of refusing to pay the fee. B.If Aquino sues Dempsey to collect the fee, Aquino will be subject to discipline because a lawyer is prohibited from using a civil suit to collect a fee. C.Aquino's letter was proper because a lawyer is required to settle fee disputes amicably if possible. D.If Aquino sues Dempsey to collect the fee, Aquino may reveal Dempsey's confidential communications, but only to the extent necessary to establish his claim against Dempsey.

4.D. Answer D is correct under ABA Model Rule 1.6(b)(2). Answers A and C are not correct. The crime of extortion (blackmail) includes the obtaining of money by inducing fear in the victim. One common way of inducing that fear is by a threat to reveal the victim's secret, and Aquino's letter seems well designed to do that and is therefore improper. [See ABA Model Rule 8.4(b)-(d).] Answer B is not correct. Comment 5 to ABA Model Rule 1.5 encourages lawyers to consider resolving a fee dispute by arbitration or mediation where it is available, but (unless state law makes arbitration mandatory) a lawyer would not be subject to discipline for bringing suit to collect a fee.

Attorney Tillis is a partner in the 138 person firm of Dahlberg & Sneed. The Citizens' Alliance for Coastal Preservation has asked Tillis to represent the Alliance in a public interest law suit against Vista del Oro, Inc., a real estate developer. Vista del Oro owns several thousand acres of beautiful coastline, about an hour's drive from the largest city in the state. It is building vacation homes to sell to the public. When the project is complete, the entire area will be fenced off to prevent access by non-owners. The Alliance seeks to force Vista del Oro to provide access paths across the property, so that members of the public can get from the state highway to the public beaches. Attorney Prentice is also a partner in Dahlberg & Sneed. He is a member of the Board of Directors of Vista del Oro, and he owns seven of the vacation home sites as a personal investment. No Dahlberg & Sneed lawyer has ever represented Vista del Oro, and none will do so in the present case. After careful consideration, Tillis has concluded that his representation of the Alliance would not be adversely affected by Prentice's interest. Which of the following conditions must be met if Tillis is to avoid being subject to discipline for representing the Alliance? I.The Alliance consents after full disclosure. II.Vista del Oro consents after full disclosure. III.Prentice resigns as a director of Vista del Oro. IV.Prentice sells his seven home sites. A.All of the above. B.III only. C.I and II only. D.I only.

4.D. The financial interest held by Prentice is imputed to all lawyers in the firm. [See ABA Model Rule 1.10(a).] Since that interest is in conflict with the Alliance's interests, Tillis cannot accept the case without first disclosing the conflict to the Alliance and obtaining the Alliance's consent. [See ABA Model Rule 1.7(b).] Item II is not correct. Vista del Oro is not now, and has never been, a client of the firm. Thus Vista del Oro's sentiments about the conflict are irrelevant. Neither Item III nor Item IV is a necessary condition of allowing Tillis to represent Alliance. If the Alliance consents after full disclosure of the conflict, that is sufficient; Prentice need not rid himself of his interest in Vista del Oro. Note that an alternative way to resolve the conflict of interest might be for Prentice to resign as a director and to sell his seven home sites, but that is not among the four answers offered in this question. Further, even if Prentice were to get rid of his interest in Vista del Oro, many firms would still disclose the situation to the Alliance, simply as a matter of good client relations.

5.Client Colbert has retained lawyer Lamb to represent her in divorce proceedings instituted by Colbert's husband. Colbert has moved out of the family home and is living in a distant town; she no longer sees her husband or their children. Colbert tells Lamb in confidence that, before the separation, she had been physically abusing the children. A state statute requires physicians and psychotherapists to report to the police all suspected cases of child abuse. The statute makes no mention of attorneys. Which of the following is most nearly correct? A.If Lamb reports the child abuse to the police, he will be subject to discipline. B.Lamb may report the child abuse to the police if he believes that the interests of justice will be served by doing so. C.Lamb must report the child abuse to the police, because the state policy favors the protection of children. D.Lamb must report the child abuse to the police, because child abuse is a crime that may result in death or serious bodily injury.

5.A. ABA Model Rule 1.6(a) makes a lawyer subject to discipline for revealing a client's confidential information. The future crime exception does not apply here. Colbert has revealed past crimes, not an intent to commit future crimes. She has now moved out of the house and is living in 477a distant town, and the facts stated in the question do not suggest that she intends to abuse the children further. Answer B is incorrect; Lamb has no discretion here. Answer C is incorrect. The state statute is directed to physicians and psychotherapists, not to attorneys. Indianapolis Bar Ass'n Op. 1-1986 (1986) involves a similar statute and holds that an attorney has no duty to report past instances of child abuse. Answer D is incorrect because the crimes are past crimes, not future crimes.

6.Eight years ago, attorney Arnott represented client Coleman in connection with a murder investigation. Coleman repeatedly assured Arnott that he was innocent. The investigation proved futile, and Coleman was never formally charged with any crime. At present Arnott is representing client Curtis in a child custody dispute between Curtis and her ex-husband. In that connection, Curtis tells Arnott in confidence about a murder committed eight years earlier by one Coleman, a friend of her ex-husband. The details revealed by Curtis make it clear that Arnott's former client, Coleman, did commit the murder. Curtis insists that Arnott not tell anyone about the murder for fear that Coleman or some of her ex-husband's other friends may retaliate against her or her children. This jurisdiction has no statute of limitations on murder. Which of the following is most nearly correct?247 A.Arnott may reveal the information to the prosecutor without Curtis's consent, because this jurisdiction has no statute of limitations on murder. B.Arnott must reveal the information to the prosecutor because Coleman's evasion of the law is a continuing crime. C.Arnott must keep the information in confidence unless Curtis changes her mind and consents to have it revealed. D.Arnott may reveal the information to the prosecutor without the consent of either Curtis or Coleman, provided that he asks the prosecutor not to disclose the source of the information.

6.C. ABA Model Rule 1.6(a) requires Arnott to keep Curtis's information in confidence, unless Curtis changes her mind and consents to have it revealed. [See Michigan State Bar Op. CI-1141 (1986).] Answer A is not correct; Arnott has no discretion here. Answer B is not correct. The holder of the attorney-client privilege (and the beneficiary of the ethical duty) is Curtis; whether or not Coleman's evasion of the law is a continuing crime, Curtis is still entitled to the protection of confidentiality. Answer D is not correct. Arnott would be breaching the duty of confidentiality even if he asked the prosecutor not to reveal the source of the information. The prosecutor might not comply with the request. Even if the prosecutor does, Coleman or one of the other friends of Curtis's ex-husband may be able to figure out where the information came from, thus putting Curtis and her children in danger.

7.Lawyer Ling represented clients Clark and Craddock who were the sole partners in a business joint venture. In that connection, Clark and Craddock met frequently with Ling to discuss confidential matters relating to the business. One day Clark came alone to Ling's office. Before Ling could stop him, Clark disclosed that he had usurped a business opportunity that properly belonged to the joint venture. Ling informed Clark that she could not advise him on that topic. Further, Ling promptly withdrew as counsel to Clark and Craddock. Ultimately Craddock sued Clark for the usurpation. Craddock's lawyer subpoenaed Ling to testify at a deposition about the statements Clark made to Ling. At the deposition, Clark's lawyer asserted the attorney-client privilege on Clark's behalf. Ultimately the court ordered Ling to disclose what Clark said. Which of the following is most nearly correct? A.It was proper for Ling to withdraw as counsel to Clark and Craddock. Further, Ling must disclose what Clark said. B.It was proper for Ling to withdraw as counsel to Clark and Craddock. However, Ling will be subject to discipline if she discloses what Clark said. C.Ling is subject to discipline for withdrawing as counsel to Clark and Craddock. Further, Ling will be subject to discipline if she discloses what Clark said.D.Even if Ling believes that the court order is correct, she must refuse to disclose what Clark said."

7.A. Clark and Craddock were joint clients of Ling. As joint clients, both of them were holders of the attorney-client privilege. But in litigation between two former joint clients, neither of them can claim the attorney-client privilege. [See McCormick on Evidence § 91.1 at 158 (Hornbook ed. 2006).] Therefore, the court was correct in ordering Ling to disclose what Clark said. Having been properly ordered by the court to disclose the information, Ling must do so. [See ABA Model Rule 1.6, comment 3 ("The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.").]Further, it was proper for Ling to withdraw as counsel for Clark and Craddock because of the conflict between their interests. [ABA Model Rule 1.16(a).] Answer B is not correct; as noted above, Ling must disclose what Clark said. Answer C is not correct. Ling's withdrawal was proper, and she must disclose what Clark said. Answer D is not correct; again, having been ordered to answer by the court, Ling must do so."

9.Yesterday, a potential client visited Attorney Abigail's office, seeking legal assistance on a potentially lucrative matter. Abigail would like to accept the representation but the matter is outside her usual area of expertise. Abigail would like to associate her friend, Lawyer Laura, who has a great deal of experience in this type of case and who Abigail likes much more than Lawyer Linda, who is also experienced and who works at 198Abigail's firm. Under what circumstances may Abigail associate Laura on the case?

A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.

GIFTS FROM CLIENT (MR 1.8(c) & CRCP 1.8.3) MR 1.8(c): A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless

A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship. CRCP 1.8.3: same as MR 1.8(c) EXCEPT: Lawyer shall not: prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift, unless (i) the lawyer or other recipient of the gift is related to the client, or (ii) the client has been advised by an independent lawyer who has provided a certificate of independent review that complies with the requirements of Probate Code.

1.In your law school course in evidence law, you studied (or will study) the attorney-client privilege and its exceptions. Briefly stated, the attorney-client privilege gives the client a legal right to prevent a witness from revealing confidential communications between the client and his or her attorney, or between their respective agents. The holder of the privilege is the client; the attorney can invoke the privilege on behalf of the client, but not on the attorney's own behalf. The privilege applies whenever a governmental body can use the twin powers of subpoena and contempt to compel the giving of information. How does the attorney-client privilege differ from the attorney's ethical duty to preserve the client's confidential information? Consider the following situations:a.While standing around at a P.T.A. potluck supper, lawyer L gossips with a friend about the reasons that L's client V wants to divorce her husband. Does the attorney-client privilege apply at P.T.A. potluck suppers? Does the ethical duty? b.Lawyer L is defending client X in a drunk driving case. Through her own investigation, L learns from a loquacious bartender that X stops in for several double martinis every night after work. Does the attorney-client privilege protect that information? If not, is L free to reveal it to whomever she wishes? c.Client Y tells lawyer L in confidence that he wants to purchase Blackacre to build a new shopping center. Acting as an undisclosed principal, lawyer L instructs her agent to buy Blackacre, hoping to turn a quick profit on resale to Y. Has L violated the attorney-client privilege? Has she violated the ethical duty? d.Suppose instead that lawyer L buys Greenacre, which adjoins Blackacre, knowing that it will triple in value when Y builds the shopping center on Blackacre. Has L violated the ethical duty? e.Client Z told lawyer L in confidence: "Yesterday I intentionally burned down my barn because I need the fire insurance money. I want you to represent me in collecting on my insurance policy." L declined to represent Z, who then hired lawyer M to pursue the insurance claim. (Having learned his lesson, Z did not tell M about intentionally burning the barn.) The insurance company refused to pay, asserting that Z burned the barn to get the insurance money. At the trial of Z's insurance claim, the insurance company lawyer called L to the witness stand and asked: "What did Z tell you about burning the barn?"227 (1)Should the court sustain Z's claim of attorney-client privilege? (2)When Z left L's office, should L have warned the insurance company that Z was planning to file a fraudulent claim?

A.(not a judicial proceeding, just gossip or at a bar) B. (confidentiality applies to things found out by themselves) C. no because that would be using to disadvantage of the client D.(doesn't clearly disadvantage the client so not clear violation of duty of confidentiality ) E.III only. (acp yes because in court in california but note prevention of criminal act likely to result in death or substantial bodily harm exception in some jurisdictions) 2. Yes because rule: Model Rule 1.2 (d): lawyer shall not counsel a client to engage or assist a client in conduct that the lawyer knows is criminal or fraudulent. Model Rule 1.16, comment [7] says that lawyer is justified in withdrawing from a representation if the client wants to engage in conduct that the lawyer reasonably believes is criminal or fraudulent. So if the client were to suggest an illegal motive for the representation at the outset, the lawyer could and should decline to undertake it in the first place.

5.Client Curt hired attorney Annette to advise him during some difficult business negotiations with Danforth Corporation. The negotiations extended over many months; during that time, Annette developed a good working relationship with Curt and a thorough understanding of the factual and legal problems at hand. Only four people were present at the negotiating sessions: Curt, Annette, Danforth's vice-president, and Danforth's house counsel. Ultimately the negotiations failed, and Danforth sued Curt. A key contested issue at trial will be whether Curt made a certain statement during one of the negotiating sessions. Curt wants Annette to represent him at trial, but Danforth has moved to disqualify her on the ground that she may have to testify about Curt's making the alleged statement. a.Should the court grant the motion to disqualify? b.May Annette's law partner, Elmwood, serve as Curt's trial lawyer? c.Does your answer to either question depend on whether Annette's testimony would be for Curt or against Curt?"

Acting as a Lawyer and as a Witness Model Rule 3.7: A lawyer should not be both trial counsel and a material witness in a matter, unless the testimony will relate to an uncontested matter, or it will relate to the fees for services rendered in the case or the disqualification of the lawyer would work a substantial hardship on the client. A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9. ------------------------------------------------- 5. a.MR 3.7, yes unless can show that disqualification would be a hardship B. yes because A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9. C. no it doesnt focus on whether it helps or hurts the client (this is a contested matter) so the court can deny the motion to disqualify.

RETAINER FEES (advanced hourly fee retainer v. engagement retainer)

Advanced Hourly Fee Retainer: Client pays an amount up front (usually 10 hours of work); lawyer holds $ in client trust account and then lawyer withdraws the money after lawyer sends a bill that the client does not dispute. If money remains at the end of the relationship then it is returned to the client. Engagement Retainer: Non-refundable fee paid to guarantee that the lawyer is available; lawyer can keep it all—doesn't have to be deposited in the client trust fund account until earned. (for celebrity/very famous attorneys)

ATTORNEY FEE RULES: (American v. English)

American Rule: parties pay their own lawyers (absent statutory, contract or common law exceptions.) English Rule: Loser in the litigation pays his fees and the other party's fees. (no contingency fees available)

Let's Make this Former Client/Current Client Analysis Simple:

Are the matters between the former client and the current client substantially related? If no, then there is no incurable conflict AND Are the interests of the former client and the current client adverse? If no, then there is no incurable conflict BUT, is confidential information involved that can be used to the detriment of the former client? Regardless of the analysis on parts one and two of this test, the conflict is now incurable if confidential information is obtained that can be used to the disadvantage of a former client. Our lawyer must decline the employment or withdraw from employment. Note: Because of the overriding importance of confidential information in this analysis, it usually makes sense to ASK FIRST WHETHER THERE IS CONFIDENTIAL INFORMATION THAT CAN BE USED TO THE DISADVANTAGE OF THE FORMER CLIENT!

Additional California Business and Professions Code Sections involving Attorneys Fees:

B & P 6146: contingency contracts must be in writing B & P 6148: all cases with fees and costs above $1000 must be in writing B & P 6200: arbitration of fees is always mandatory if the client requests it

(only if there is no potential conflict) WHAT DISCLOSURE IS REQUIRED TO PROPERLY GET INFORMED CONSENT OF THE CLIENT? Before asking for written consent, disclosure requires the lawyer to discuss the following in writing (CRPC 1.7, 1.0.1 (e), and Model Rule 1.7, Comment 18):

CA and the Model Rules prohibit a lawyer from representing clients when interests conflict unless the lawyer first obtains the informed written consent of all affected clients. Conflicts are curable with disclosure and informed written consent in most circumstances. Before asking for written consent, disclosure requires the lawyer to discuss the following in writing (CRPC 1.7, 1.0.1 (e), and Model Rule 1.7, Comment 18): 1.All facts and circumstances that give rise to the conflict or potential conflict; and 2.A description of actual and reasonably foreseeable adverse consequences to the client 3.If L represents multiple clients in a single matter, disclosure must include the implications of common representation, the possible effects on loyalty, confidentiality and the attorney-client privilege, and the advantages and risks of multiple client representation. (Model Rule 1.7, Comment 18 and Comments 29-33). (can no longer protect confidences between clients) Following the disclosure discussion, L must confirm the consent of the client in writing. (Model Rule 1.7 (b)(4) and Comment 20 and CRPC 1.0.1 (e-1).

IMPORTANT RULE DIFFERENCES California

California only allows discretionary disclosure of confidential information when a criminal act is threatened by a client. California imposes a duty to counsel the client where circumstances permit if the lawyer intends to reveal confidential information as allowed by the rule; no such duty is contained in the Model Rule The Model Rule contains a crime/fraud exception relating to substantial financial injury although not many states have adopted this exception. California has no such crime/fraud exception. The Model Rule contains a clear exception to reveal information to establish a fee or establish a defense if the lawyer is accused of misconduct or wrongdoing. The California rule contains no such exception, although lawyers are allowed to reveal confidential information for this purpose by CA common law. Past crimes are always confidential under both rules

A lawyer representing multiple clients must

Clearly identify each client involved Determine if a conflict of interest exists between any of them Decide if the representation of all can continue given the identification of the conflict Consult with the clients identified as affected and Obtain informed consent confirmed in writing from all clients in a multiple representation matter Other comments of note: [C3] Lawyers need to adopt procedures to identify potential conflicts before representation is undertaken [C4] If a conflict arises after representation begins, the lawyer must withdraw unless the affected client provides informed consent [C6] Loyalty to a client prohibits representation of one client that is directly adverse to another client without that client's informed consent (but if the matter rises to that of litigation BUT SEE: C23: Lawyers can't represent opposing parties in the same litigation, regardless of informed consent) [C8] Even if the conflict is not directly adverse, the conflict still exists if the lawyer might be limited in his/her ability to be objective to all clients in recommending or carrying out advice [C10] If a lawyer has an interest that is adverse to that of a client, the lawyer may not be able to give detached objective advice [C15] Some conflicts are just plain not subject to obtaining proper informed consent. The lawyer cannot properly ask the client for consent, nor may the lawyer represent the client on the basis of the client's consent. [C18] Informed consent means each affected client must be aware of the circumstances giving rise to the conflict and the foreseeable ways the conflict may adversely affect the client's interests [C20] Informed consent must be in writing [C21] Clients can always revoke informed consent [C28] Lawyers can represent multiple clients (common representation) where the interests of the clients are closely aligned [C29] If common representation fails because a direct and conflict arises that the common clients can't resolve, a lawyer must withdraw from representing all of the clients. [C30] The attorney client privilege does not attach in situations of common representation [C31] In situations of common representation, confidentiality does not attach and lawyers should advise common clients that information must be shared among the clients

5.Your client, Enos Furman, is in the business of leasing expensive equipment to farmers. First, he arranges long term equipment leases with the farmers. Then he borrows money from banks to purchase the equipment; he uses the long term leases as security for the bank loans. You have acted as Furman's lawyer in ten of these lease-loan transactions over the past two years. Today he revealed to you, in strict confidence, that some of the leases he used in those transactions were fake—he forged them and thus tricked the banks into lending him money which he has long since 228spent. He has solemnly promised you that he will never do that again, and he has asked you to serve as his lawyer in a series of new lease-loan transactions. What are your ethical obligations in this situation?"

Client used your services to commit fraud, What are your ethical obligations under model rules: not required to disclose unless in a jurisdiction where you have to disclose past fraud , exception 2 or 3 if in minority jurisdiction (MR: 1.6) If not must withdraw (noisy withdraw = write to the bank, dissafirm what you did, bank will start researching them) Rule:Model Rules "Noisy Withdrawal": In jurisdictions with the crime fraud exception, Model Rules lawyers may use a "noisy withdrawal" and say: "I withdraw as attorney of record for John Smith in any pending transaction for the Bank of Commerce and disaffirm any work done on his behalf in any transaction at the Bank of Commerce." A noisy withdrawal may only be used when the fraud is continuing. Q: Does this disaffirmation signal anything of importance to the bank? Definition of "disaffirm": "To repudiate; to revoke a consent once given; to refuse one's subsequent sanction to a former act; to disclaim the intention of being bound by an antecedent transaction. In california just withdraw, no financial fraud exception so you dont explain why

And under certain circumstances your relationship must be in writing such as—

Contingency fees (MR 1.5) and under the California Rules is fees and costs will exceed $1000. B&P Code section 6147 & 6148

incurable conflict

Does Problem 4 present an "Incurable Conflict"? Doesn't this sound like one of those "incurable" conflicts that we talked about, even though there is written consent from the client? Why would the lawyer's own client consent to such an obvious conflict of interest if he clearly understood what was at stake or what the inherent problems are in such an arrangement? Was disclosure adequate to explain the conflict clearly to his client? Comment 14 to Model Rule 1.7 notes that some conflicts are not capable of consent - if a disinterested lawyer or judge would conclude that this arrangement is not in H's best interest, then H's lawyer cannot properly ask for consent, and if he gets it, it is not valid informed consent. The discussion following CRPC 1.7 (d) also states that some kinds of conflicts cannot be cured by client consent.

Problem 6: Model Rule 1.11: When Government Lawyers Move to the Private Sector:

Former government lawyers (FGL) cannot represent a private client in a case or matter if the government lawyer participated substantially and personally (meaning confidential information is probably involved) in that case as a government lawyer, unless the government agency gives informed consent in writing. Even if the government lawyer would otherwise be disqualified, another lawyer in the firm can handle the matter (meaning imputed disqualification does not apply under this statute), if: The FGL is timely screened off the matter; and The FGL gets no fees from the matter, and The government agency gets written notice of the screening procedures so it can determine if the private firm is in compliance with the procedures. The government agency consents to the screening procedures.

Why do the business transaction rules apply in Example 1, but not in Example 2?

Example 1 analysis (the lien arrangement): The attorney actually owns a piece of the property once any fees have been earned and that may certainly create the potential for conflict. Will she be as objective in handling the divorce as she would have been without a financial interest in the property? Will she be more interested in preserving her financial interest in the property than in protecting her client? What if the couple reconciles and doesn't plan to now sell the house? Will the attorney subtly oppose the reconciliation to preserve the fee interest in the sale of the house? This is a big conflict, and the client is entitled to the protection of the business transaction rules and particularly to have another "disinterested" lawyer review the proposed lien and give advice. Example 2 (the contingent fee arrangement): The interests of both lawyer and client are in harmony at all times - because attorney owns nothing until (and unless) client wins...the better the lawyer does, the better the client does. No conflict. They both want to get paid and agree in advance on the percentage to be paid to the lawyer. No conflict at all.

WHY DON'T BUSINESS TRANSACTION RULES APPLY IN A CONTINGENT FEE ARRANGEMENT?

Example 1, the lien arrangement - business transaction rules apply: "I will take a lien on the agreed upon future sale of your house in your divorce matter to secure my legal fees at the rate of $250 per hour." Example 2, the contingent arrangement - business transaction rules do not apply: "If I am successful in obtaining a beneficial financial settlement for you in your divorce case, I take 30% of whatever I recover to compensate me for legal fees irrespective of the number of hours I spend. The more I can recover for you, the better off I will be and the better off you will be. If I am not successful in obtaining a financial settlement, I take nothing."

Model Rule 1.8: Conflict of Interest This rule gives us specific scenarios that are potential conflict situations:

Financial and business deals with clients MR 1.8(a): This presumably creates a conflict unless 4 tests are met The transaction must be objective, fair and reasonable The terms of the transaction must be in writing and in language understandable to the client The client must be given a reasonable opportunity to seek independent counsel; and The client must give informed consent in writing Confidential information used to the disadvantage of a client MR 1.8(b): Lawyers can't use information relating to the representation of a client to the disadvantage of the client absent informed consent. Substantial gifts from clients are not generally permitted because they create the possibility of undue influence. MR 1.8(c) Book and media rights may not be negotiated until the representation is concluded. MR 1.8(d) Financial assistance MR 1.8(e): Lawyers can't provide financial assistance to a client except: Lawyers can advance court costs and litigation expenses in a contingent case or if the client is indigent Lawyers may take a lien to secure fees or take the case on a contingent basis When a 3rd party pays the lawyer MR 1.8(f): lawyers can't be paid by someone other than the client unless: The client gives informed consent The lawyer retains independence of judgment and The lawyer protects the confidences and secrets of the client Aggregate settlements MR 1.8(g): Lawyers who represent multiple clients cannot arrange an aggregate settlement without the informed consent of each client Liability in a malpractice matter MR 1.8(h): Lawyers can't make an agreement to prospectively limit liability to a client for malpractice unless the client is independently represented in making the agreement; or Lawyers can't settle a claim with an unrepresented client unless the client is advised in writing about seeking independent representation and is given an opportunity to seek it Proprietary Interests MR 1.8(i): Lawyers shall not acquire a proprietary interest in the cause of action or subject matter of litigation for a client, except a lawyer may acquire a lien authorized by law to secure a fee or expenses and a lawyer may sign a contingent fee agreement with a client Sex with clients MR 1.8(j): No, no, NO unless the sexual relationship predated the lawyer client relationship A prohibition against one lawyer in a firm is a prohibition against all lawyers in a firm (vicarious disqualification) MR 1.8(k) (you can't just pass them off to another lawyer in your firm, they too are disqualified)

Model Rule 1.12: When Judges or Arbitrators Move to the Private Sector: Former judges, arbitrators or mediators (FJ, FA, FM) cannot represent a private client in a case or matter if the FJ, FA or FM participated personally and substantially in that matter as a judge unless If the former judge, arbitrator or mediator is disqualified, another lawyer in the new firm may take the matter if:

Former judges, arbitrators or mediators (FJ, FA, FM) cannot represent a private client in a case or matter if the FJ, FA or FM participated personally and substantially in that matter as a judge unless all parties give informed consent in writing. If the former judge, arbitrator or mediator is disqualified, another lawyer in the new firm may take the matter if: The FJ,A or M is timely screened from all participation; and The FJ, A or M gets no fees from the matter, and The appropriate agency gets written notice of the screening procedures so it can determine if the private firm is in compliance with the procedures. The former agency consents to the screening procedures. Note the more substantial information known

ANALYSIS QUESTIONS: DOES A CONFLICT EXIST?

Is there any possibility that the lawyer's complete loyalty to his or her client(s) will be compromised in any way? Is there any possibility that confidential information obtained from any client, multiple client or former client can be used to the detriment or disadvantage of the client? If the answer to either question is yes, then a conflict or a potential conflict exists. Disclosure and informed written consent must occur. Can consent not actually be "informed?" Some conflicts are so obvious or potentially detrimental to the lawyer's client that the lawyer cannot properly ask for consent, and consent obtained under such circumstances is invalid. Most jurisdictions rely on the "disinterested lawyer" or "disinterested judge" test to determine whether consent was properly obtained. Would a disinterested judge or lawyer, looking at all of the circumstances, conclude that consenting to the conflict is not in the client's best interests? If so, the lawyer cannot ask for informed consent and cannot claim that consent has "cured" the conflict. Lawyers who make mistakes in judgment usually get disqualified.

Model Rules "Noisy Withdrawal": Q: Does this disaffirmation signal anything of importance to the bank?

In jurisdictions with the crime fraud exception, Model Rules lawyers may use a "noisy withdrawal" and say: "I withdraw as attorney of record for John Smith in any pending transaction for the Bank of Commerce and disaffirm any work done on his behalf in any transaction at the Bank of Commerce." A noisy withdrawal may only be used when the fraud is continuing. Q: Does this disaffirmation signal anything of importance to the bank? Definition of "disaffirm": "To repudiate; to revoke a consent once given; to refuse one's subsequent sanction to a former act; to disclaim the intention of being bound by an antecedent transaction.

can you hold files hostage if fired and not paid

In no case may we withdraw and refuse to turn over the file to the client, even if the client owes us money - no hostage file-taking.

MR 1.6 is broader than the ACP because the mr includes....

It includes ALL information from any source, whether secret or not about the client. Basically anything else the client doesn't want disclosed—EVEN IF CLIENT IS NOT THE SOURCE; It applies to all lawyers all of the time, not just those compelled to testify about client communications in court or a deposition. VS. ACP—Prevents compelled disclosure while Confidentiality—Precludes compelled and voluntary disclosure AND use of info to disadvantage client Confidentiality is owed to all clients of the lawyer all of the time --even if the client is not retained after consultation; --even if the lawyer client relationship is terminated; --even after the client dies; Confidentiality may be waived only with client consent. Past crimes committed are always confidential.

screening measures: (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless

MODEL RULE 1.10: (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless (1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or (2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer's association with a prior firm, and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; (ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and (iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the s

1.When attorney Sheila was admitted to law practice a few years ago, she took the Attorney's Oath in which she promised "never to reject, for any consideration personal to [her]self, the cause of the defenseless or the oppressed." Sheila's grandparents narrowly escaped from Austria in 1939 to avoid the Holocaust. Although her law practice is primarily business-oriented, she has served in several cases as a vigorous and skillful advocate of individual civil liberties. The American Nazi Party has asked her to represent one of its members who was arrested for participating in an allegedly illegal street rally in her city. The Party has ample funds to pay a lawyer, but the other skilled trial lawyers in the city have refused to get involved in the case. Sheila believes that the city's refusal to issue a rally permit was a violation of the First Amendment, and she believes that she could present an effective defense. But she is repelled by the defendant and his political beliefs. Further, she knows that her reputation and her law practice will suffer because several of her business clients are among the prominent citizens who actively opposed the Nazi rally .a.Does Sheila have an ethical obligation to take the case? b.Suppose the defendant were indigent, that the Party could not fund his defense, and that the Public Defender could not represent him because of a conflict of interest. If the court appointed Sheila to defend him, may she refuse?

MR 6.1: According to the comment of 6.1, [1] A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant. MR 6.2: Public Service A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law; (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. No. Because 6.2 Accepting Appointments (also applies to clients asking to be represented) Under Model rules 6.2 b , there would be a financial burden (none of shiela's future clients would want to work with her) and she is repugnant by their character. b. Under california rules, no she doesn't have to represent them because they are not defenseless (they have money and there will be someone in the state that can represent them or oppressed because they are oppressors).

Model Rule 1.6: Confidentiality of Information (REMEMBER: this rule does not apply to CA lawyers unless they are practicing in a Model Rules state) MR: lawyers must: (3) Exceptions: A lawyer may reveal confidential information relating to the representation of a client to the extent reasonably necessary: to (6)

MR: lawyers must: (1) keep client confidences and secrets and protect confidential information; (2) leading to the identity of a client; (3) unless the client gives informed consent or an exception applies Exceptions: A lawyer may reveal confidential information relating to the representation of a client to the extent reasonably necessary: 1. To prevent reasonably certain death or substantial bodily harm (future only; past matters are confidential unless might they might result in future death or injury; note client does not have to be the cause of the injury or death); or 2. To prevent reasonably certain substantial financial injury as a result of client crime or fraud where the client has used the lawyer's services (a minority of states adopted this rule); or 3. To prevent, mitigate or rectify substantial financial injury resulting from client crime or fraud when the client has used the lawyer's services (a minority of states adopted this rule); or 4. To secure legal advice by the lawyer about compliance with this rule; or 5. To establish a claim or defense when the lawyer is accused of misconduct or wrongdoing, or to establish a fee; or 6. To comply with any other law or court order.

MR: 1.6 Client-Lawyer Relationship (a) A lawyer shall not reveal information relating to the representation of a client unless ... b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: to....

MR: lawyers must: (1) keep client confidences and secrets and protect confidential information; (2) leading to the identity of a client; (3) unless the client gives informed consent or an exception applies... (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; (6) to comply with other law or a court order; or (7) to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

CRPC 1.6: Confidential Information of a Client California Confidentiality History in a Nutshell

Prior to July 1, 2004, the only "confidentiality" rule applicable to CA lawyers was in CA Business and Professions Code 6068(e) and read as follows: It is the duty of an attorney: (e) To maintain inviolate the confidence, and at every peril to himself or herself, to preserve the secrets of his client. Finally, in 2004, the legislature amended 6068 to include the exceptions that CA State Bar incorporated when it adopted Rule 1.6 to bring California more in line with the rest of the country and Model Rules.

3.After attorney Sarah graduated from law school, she opened her own law office in a small seaside village. She longs for a cottage on the beach, but she has been unable to find one at the right price. Client Willis has retained her to help him find a way out of his financial distress. Among 337his few solid assets is a lovely cottage on a secluded end of the beach. Willis has been unable to pay the taxes on the cottage, and Sarah has advised him to put it up for public auction.a.At the auction, may Sarah have her brother bid for her as undisclosed principal?b.Suppose, instead, that Sarah simply agrees to buy the cottage directly from Willis, subject to the tax debt. Under what, if any, circumstances would that be proper?c.Suppose, instead, that Sarah agrees to lend Willis enough money to pay off the back taxes on his cottage. Under what, if any, circumstances would that be proper?

Model Rule 1.8: Conflict of Interest This rule gives us specific scenarios that are potential conflict situations: Financial and business deals with clients MR 1.8(a): This presumably creates a conflict unless 4 tests are met The transaction must be objective, fair and reasonable The terms of the transaction must be in writing and in language understandable to the client The client must be given a reasonable opportunity to seek independent counsel; and The client must give informed consent in writing Confidential information used to the disadvantage of a client MR 1.8(b): Lawyers can't use information relating to the representation of a client to the disadvantage of the client absent informed consent. Substantial gifts from clients are not generally permitted because they create the possibility of undue influence. MR 1.8(c) Book and media rights may not be negotiated until the representation is concluded. MR 1.8(d) Financial assistance MR 1.8(e): Lawyers can't provide financial assistance to a client except: Lawyers can advance court costs and litigation expenses in a contingent case or if the client is indigent Lawyers may take a lien to secure fees or take the case on a contingent basis When a 3rd party pays the lawyer MR 1.8(f): lawyers can't be paid by someone other than the client unless: The client gives informed consent The lawyer retains independence of judgment and The lawyer protects the confidences and secrets of the client Aggregate settlements MR 1.8(g): Lawyers who represent multiple clients cannot arrange an aggregate settlement without the informed consent of each client Liability in a malpractice matter MR 1.8(h): Lawyers can't make an agreement to prospectively limit liability to a client for malpractice unless the client is independently represented in making the agreement; or Lawyers can't settle a claim with an unrepresented client unless the client is advised in writing about seeking independent representation and is given an opportunity to seek it Proprietary Interests MR 1.8(i): Lawyers shall not acquire a proprietary interest in the cause of action or subject matter of litigation for a client, except a lawyer may acquire a lien authorized by law to secure a fee or expenses and a lawyer may sign a contingent fee agreement with a client Sex with clients MR 1.8(j): No, no, NO unless the sexual relationship predated the lawyer client relationship A prohibition against one lawyer in a firm is a prohibition against all lawyers in a firm (vicarious disqualification) MR 1.8(k) ------------------------------------------------ No secret bidding because she cant do it herself without going through the 1.8 a steps so he cannot do it on her behalf (lawyer-client business transaction rules) She can so long as she satisfies the 1.8a requirements Can she lend? This is 1.8 e. This is fine because it is financial assistance unless there is a tax debt. ------------------------------------------------

ATTORNEY-CLIENT PRIVILEGE: Both CA and all Model Rule states have adopted an evidence code "Attorney-Client Privilege." The ACP only comes into play when... If the communication from the client to the attorney is in fact privileged under the elements set forth in the evidence code, then

NOT AT PLAY IN EVERY INSTANCE IN WHICH THE CLIENT PROVIDES CONFIDENTIAL INFO BECAUSE IT IS AN EVIDENTIARY PRIVILEDGE The ACP only comes into play when the government attempts to compel an attorney by way of a subpoena to disclose a confidential client communication. (not at play unless there is a legal process that forces the lawyer to speak) If the communication from the client to the attorney is in fact privileged under the elements set forth in the evidence code, then the government cannot force an attorney to testify about the substance of the communication, unless the client consents to the disclosure. Only information directly from the client or the client's agent

6.Last August, California lawyer Simon agreed to represent plaintiff Noreen in a personal injury suit pending in California. Their fee agreement provided that Simon would receive 20% of the net recovered by settlement, or 30% of the net recovered after trial, or 40% of the net recovered after trial and appeal. The percentages were to be computed after deducting litigation expenses. The agreement further provided that in no event would Simon's fee be less than $5,000 nor more than $10,000. After Simon spent about 100 hours on the case, Noreen fired him for no apparent reason. She repaid $1,000 for litigation expenses he had advanced on her behalf, but she refused to pay him any fee. Later, she hired another lawyer who promptly settled the suit for $13,000, without incurring any additional litigation expenses. Assume that the reasonable value of Simon's 100 hours' work is $6,000. What are Simon's rights, if any, against Noreen?

NOTE: The quantum meruit rule permits the lawyer to recover the reasonable value of the services that the lawyer rendered before being discharged. This is NOT the same as receiving the contract or agreed upon amount of fees. Under QM, the lawyer can get the reasonable value as limited by the contract/agreed upon amount—under QM the lawyer is Not entitled to more than agreed even if that QM amount would represent the reasonable value of the services provided. $6,000-$1,000 (contract stated to subtract fees so this is the reasonable amount limited by fees)

2.Suppose you have recently become a partner in a small law firm that has a broad, general practice. You are attending a partnership meeting where the item under discussion is a memorandum signed by all three of the newly-hired associates. They have asked the firm to establish a policy that permits and encourages every lawyer in the firm to devote the equivalent of 100 billable hours per year to representing indigent clients. (The lawyers in the firm average about 1,800 billable hours per year.) The state pays a modest fee to court-appointed counsel in criminal cases, but there is no compensation scheme for civil matters, and the state's legal services program has been sharply cut due to lack of public funding. One of your partners has argued that to adopt the proposed policy, the firm will either have to cut its present overhead, or cut the present pay of the staff and the lawyers, or raise its fees to paying clients by about 5%. The discussion has come to a close. How will you vote on the proposal, and why?

Probono not required, just encouraged. if you cut the pay to staff/lawyers, you will likely lose people and be less effective representing anyone so I would note no. proton is required 50 hr a yr typically not 100 by the ethics code

3.While attempting to board a commercial airliner, Chandler was personally injured and publicly humiliated by an employee of the airline company. She hired attorney Adams to sue the company. Adams neglected the matter, and Chandler eventually complained to the state bar. When Adams received a letter of inquiry from the state bar, he checked Chandler's file and discovered that he had let the statute of limitations on Chandler's claim run. Adams met with Chandler, told her honestly what happened, and offered to pay her $6,500 out of his own pocket. That amount was $2,000 more than the medical costs she had incurred as a result of the personal injury. Chandler accepted this offer and signed a form prepared by Adams that released him "from all further responsibility and liability in the aforementioned matter." Adams gave Chandler his personal check for $6,500; the back of the check stated: "Endorsement acknowledges full payment and release of all claims." Adams duly reported the settlement to the state bar. Did Adams handle the matter properly?

No because none of the following conditions were met: MR 1.8 & CRPC Current Clients (h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

4.Crampton lost the use of his right leg when a nurse gave him improper medication at the hospital. Crampton consulted attorney Arlene; she told Crampton that she had never handled a medical malpractice claim before, but that she would do her best on Crampton's behalf. Ultimately Crampton's case went to trial and was lost. Then Crampton sued Arlene for legal malpractice, claiming these defects in Arlene's performance: a.Arlene failed to consult with any expert on hospital operations; an expert could have testified that the number of nurses at the hospital was insufficient to give proper care to all the patients. b.Arlene used only one expert medical witness at the trial, and the jury might have been more impressed had several experts testified .c.Arlene failed to find out whether there were any eyewitnesses around (aides or other nurses) when Crampton received the improper medication. d.Arlene failed to discover a State Department of Health regulation setting the proper staff/patient ratio in hospitals.196 Is Arlene guilty of malpractice for taking on the case in the first place? Do any of the four defects constitute good grounds for a legal malpractice claim?

No, Arlene had competence because it can be acquired: rule: Model Rule 1.1 requires a lawyer to provide competent representation to a client. A lawyer shall possess or acquire the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. And her one expert witness can be viewed as a strategic choice, who is to say that these other arguments could have backfired.

But a lawyer may not, under limited license rules:

Open a law office in a state where the lawyer is unlicensed Hold him or herself out as a practicing lawyer in a state where the lawyer is unlicensed; and Establish a "systematic and continuous" presence in the state where the lawyer is unlicensed Make a court appearance unless the lawyer is specifically admitted in an unlicensed state on a pro hac vice basis or has taken and passed the Bar Exam in the state where services are to be provided.

4.Your law practice includes some criminal defense work. A few minutes ago, one of your steady clients stormed into your office, waiving a pistol and announcing that he just killed his probation officer. You have urged him to allow you to surrender him to the authorities, but he has refused, stating that they will catch him sooner or later and that he wants to enjoy his last bit of freedom. He has laid the pistol on your desk, and he is about to walk out. What should you do about the pistol?

Rule: BROAD ETHICAL CONFIDENTIALY IS FOUND IN ETHICS RULES MR 1.6 AND CRPC 1.6 The broad ethical duty is to maintain client confidences and secrets as well as communications. This duty: 1.6 is broader than the ACP. It includes ALL information from any source, whether secret or not about the client. Basically anything else the client doesn't want disclosed—EVEN IF CLIENT IS NOT THE SOURCE; It applies to all lawyers all of the time, not just those compelled to testify about client communications in court or a deposition. ACP—Prevents compelled disclosure while Confidentiality—Precludes compelled and voluntary disclosure AND use of info to disadvantage client Confidentiality is owed to all clients of the lawyer all of the time --even if the client is not retained after consultation; --even if the lawyer client relationship is terminated; --even after the client dies; Confidentiality may be waived only with client consent. Past crimes committed are always confidential. The attorney client privilege IS NOT at play in every time client is providing confidential info. It's an evidentiary privilege - "Oh, I gotta go to court."It only comes into play when govt attempts to compel an attorney by way of a subpoena to disclose a confidential client communication. ---------------------------------------------------- Allowed to keep it for a bit of time, allowed to protect info given by client but eventually must turn it over to authorities but you dont have to tell them who it was from If he keeps the pistol and the police find it in his possession, that's damaging evidence against him; If he hides or destroys the pistol and the police can prove it, that's damaging evidence against him also; If I advise him to hide or destroy the weapon, that communication would certainly not be privileged information and I'd have to disclose it if subpoenaed; and If I advise him to hide it or keep it, or I hide and keep it, I'm an accessory to a crime and I'd have to disclose this if subpoenaed So at some point you will have to turn it over—but you don't have to say anything about it—that is the balance that has been struck

CRPC Rule 1.6: Confidential Information of a Client in California rule and exception

Rule: Lawyer shall not reveal information protected by B&P Code 6068(e)(1) (which includes client confidences and secrets) without the informed consent of the client, unless an exception applies. Exception: A lawyer may reveal confidential information relating to the representation of a client to the extent reasonably necessary: To prevent a criminal act reasonably certain to result in the death or substantial bodily harm to an individual. This applies to future crimes only; past crimes are confidential.

FACTORS IN DETERMINING THE "REASONABLENESS" OF A FEE MR 1.5 & CRPC 1.5

The amount of the fee in relation to the value of services performed; The sophistication of the lawyer and the client; The difficulty of the case; The skill required to perform the services The amount involved and the results obtained; Time limitations (for example, handling an emergency matter like an injunction); The experience, reputation, and ability of the lawyer; The time and labor required; and The informed consent of the client to the agreement

Model Rule 1.8 (f) and CRPC 1.8.6: When 3rd Parties Pay the Fee L shall not accept compensation from a 3rd party other than the client unless:

The client gives written informed consent; There is no interference with the lawyer's professional judgment in the matter; (third parties can not be involved) There is no interference with the attorney- client relationship Confidential information is protected on behalf of the client

MR 5.3 Supervising Non-Lawyer Employees With respect to a nonlawyer employed or retained by or associated with a lawyer: The duty to supervise non-lawyer employees applies at three levels:

The duty to supervise non-lawyer employees applies at three levels: 1.Partners or shareholders have an obligation to make sure that institutional procedures are in place to give reasonable assurances that non-lawyers will comply with the rules of professional conduct. 2.Lawyers who directly supervise non-lawyers have a duty to take reasonable steps to assure compliance by non-lawyers with the rules of professional conduct; and 3.Lawyers are responsible for the conduct of non-lawyers if they direct, ratify, or fail to correct their misconduct. (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

LAWYER-CLIENT BUSINESS TRANSACTION RULES Model Rule 1.8 (a) says 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:

The terms are fair and reasonable to the client and The terms are fully disclosed, given to the client in writing and are reasonably understood by the client; and The client is advised in writing to seek the advice of independent counsel regarding the transaction; and The client gives informed consent in writing to the terms of the transaction and the lawyer's role in the transaction The California rule is similar.

ACP Exception § 956.5.: Prevention of criminal act likely to result in death or substantial bodily harm

There is no privilege under this article if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in the death of, or substantial bodily harm to, an individual.

"1.Attorney Wharton's law practice consists primarily of insurance defense work. Hamilton Casualty Co. has hired her to defend Silas Combs in a negligence case. The plaintiff in the case alleges that Combs' rice field was plowed negligently, so as to cause a large quantity of water to escape into plaintiff's adjoining tomato field. The water caused plaintiff's tomatoes to rot before harvest. Plaintiff's complaint demands $125,000 in damages. Combs' insurance policy with Hamilton Casualty has a top liability limit of $100,000. After extensive discovery, the case was set for trial. Six weeks before the trial date, plaintiff's lawyer called Wharton and offered to settle the case for $90,000. What are Wharton's ethical obligations in this situation?

They are seeking more than insurance can cover, in this case the client is responsible. The insurance company is the third party that is paying and the client is combs because they are paying. In california, the client is the insurance co and the insured (lawyer owes duties to both and if a conflict arises between client and insurance, they have to hire the client another lawyer) (note this weird conflict thing is not testable) This is called cumulus council (what rule is this?)

California Confidential Information of a Client in California Caveats to the exception: Duty to Counsel: before revealing confidential information to prevent the criminal act, a lawyer shall, if reasonable under the circumstances:

Try to persuade the client not to commit or continue the criminal act Inform the client of the lawyer's intent to reveal the information regarding the belief that a criminal act is imminent that is reasonable certain to result in the death or substantial bodily harm to an individual Lawyers who choose not to reveal confidential information as allowed by this rule do not violate the rule.

Fee Rule Summary

Under the Model Rules and under the California rules, contingent fee agreements must be in writing. Under the Model Rules, other fee agreements, such as an hourly agreement, do not need to be in writing. In CA, if the total cost of the services to be provided is $1,000 or more, the agreement must be in writing. Model Rule states do not allow contingent fees in a criminal case or a family law case CA does allow contingent fee agreements in criminal or family law cases, so long as the agreements are in writing. 40% is the highest you can reasonably ask for as a lawyer (4-6% of pain and suffering)

4.Judicial opinions sometimes state: "A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services." Is there any situation in which the first part of that statement is not true?

WHEN THE CLIENT DISCHARGES THE LAWYER: Clients have an absolute right to terminate the services of a lawyer, unless the attempt to terminate services causes delay or disruption to a court. <---- If not discharged for cause, the lawyer has a quantum meruit claim for unpaid fees. Whether terminated by the client for cause or without cause, a lawyer must still return the client file, other property or unpaid fees.

2.Client Cameron hired the firm of Alarcon & Brown to represent her as plaintiff in a products liability action. Cameron gave the firm a $5,000 advance on attorney fees. The firm's management committee assigned the case to associate attorney Anson. Before doing any significant amount of work on the case, Anson left the firm for personal reasons. The management committee then reassigned the case to associate Benson. Due to his heavy work load, Benson did not get around to filing the complaint for 10 months. Eventually the case came to trial before Judge Jergins as 195trier of fact. Judge Jergins took the case under submission for 18 months, despite a state statute that requires judges to decide cases within 90 days. During that 18 months, Benson did nothing to speed Judge Jergins along, believing that to do so might annoy him to Cameron's detriment. Ultimately Judge Jergins entered judgment in Cameron's favor, but Cameron was angry that justice had been so long delayed. Does Cameron have a valid claim for legal malpractice? Is this an appropriate case for professional discipline? If so, who should be disciplined?

Yes because no professional shortcoming is more widely resented than procrastination especially in a law firm where other lawyers can be delegated to help share the workload.

3.On the afternoon of August 11th last year, a woman walked into your law office, stated her name, and said in confidence: "I'm the driver the police are looking for in that fatal hit and run accident last week." You agreed to represent her, and you advised her about the wisdom of surrendering to the police, but she rejected your advice. The police have never discovered the identity of the hit and run driver. Just prior to the expiration of the statute of limitations, the parents of the hit and run victim filed a wrongful death action against a Jane Doe defendant. Acting on a hunch, the parents' lawyer has subpoenaed you as a deposition witness and has asked you for the names of all persons who consulted you on the afternoon of August 11th. What should you do?

Yes can evoke because acp (attorney client privilege) also protects identity, and protected under rules of confidentiality (which rule is this I'm struggling to find it) Model Rule 1.6: Confidentiality of Information (REMEMBER: this rule does not apply to CA lawyers unless they are practicing in a Model Rules state) MR: lawyers must: (1) keep client confidences and secrets and protect confidential information; (2) leading to the identity of a client; (3) unless the client gives informed consent or an exception applies Exceptions: A lawyer may reveal confidential information relating to the representation of a client to the extent reasonably necessary: To prevent reasonably certain death or substantial bodily harm (future only; past matters are confidential unless might they might result in future death or injury; note client does not have to be the cause of the injury or death); or To prevent reasonably certain substantial financial injury as a result of client crime or fraud where the client has used the lawyer's services (a minority of states adopted this rule); or To prevent, mitigate or rectify substantial financial injury resulting from client crime or fraud when the client has used the lawyer's services (a minority of states adopted this rule); or To secure legal advice by the lawyer about compliance with this rule; or To establish a claim or defense when the lawyer is accused of misconduct or wrongdoing, or to establish a fee; or To comply with any other law or court order.

5.From 1991 through 1999, lawyer Lageson was an attorney with the Argos & Bakeson firm. Argos & Bakeson's practice was primarily insurance defense work. While at Argos & Bakeson, Lageson worked on numerous matters for the Wazoo Insurance Company. In 1999, Lageson left Argos & Bakeson for the Cumis firm where he also did insurance defense work, including matters in which Wazoo insureds needed separate counsel because Wazoo reserved its rights to contest coverage of the claim. [See Beckwith Machinery Co. v. Travelers Indem. Co., supra.] Cumis 369represents Duke Development, a real estate developer being sued by buyers of several hundred Duke-built homes for alleged construction defects. Duke has various insurance policies with Wazoo that it contends cover the defect claims. Wazoo disputes coverage and has sued Duke for a declaration it is not liable for the buyers' claims. Argos & Bakeson represents Wazoo and Cumis represents Duke in the declaratory relief action. Wazoo has moved to disqualify Cumis from the representation based on Lageson's former association with Argos & Bakeson. a.Should Lageson personally be disqualified from representing Duke in Wazoo Insurance Company v. Duke Development? b.If Lageson is personally disqualified, should the entire Cumis firm also be disqualified? c.Are there any steps the Cumis firm could have taken to avoid imputed disqualification? d.Even if sufficient screening procedures can protect a private firm from disqualification, can you see why the former client who is the firm's adversary still might feel uneasy?

a. (is this the former client analysis?) Does the "switching lawyer" have confidential information obtained while representing his former client Wazoo? How could he not? so yes immediately disqualified Are the matters between the former client and the current client substantially related? Yes, and if so, then confidential information was obtained. Are the matters between the parties adverse? yes Problem 5 (b): Is the entire firm disqualified if lawyer in the firm would be disqualified? Model Rule: 1.10 Rosenfeld Principles: What Are the Consequences when a "Substantial Relationship" exists between the matters of a current client and a former client? If a substantial relationship exists between the former representation and the current representation (has the lawyer, in essence, "switched sides?"), the attorney's knowledge of confidential information is presumed; If the attorney was involved in both matters in depth, then confidential information exists. Courts will not inquire into the nature and extent of the confidential information. If a substantial relationship exists, the conflict exists and disqualification of Firm C is the proper remedy because, in essence, Lawyer L "switched sides" to the detriment of Wazoo. not only L would be disqualified, everyone in the firm would be disqualified PROBLEM 5 (c): SUBSTANTIAL RELATIONSHIP ANALYSIS: WHEN CAN SCREENING CURE THE CONFLICT? 1. Does a substantial relationship exist between the prior and present representation? If no, substantial relationship, no ethical problem. 2. If a substantial relationship is found between a current matter and a prior matter, did the attorney gain confidential information in the prior matter? (The Rosenfeld case presumes confidential information if there was a substantial relationship). There is a presumption of shared confidences within the prior firm, but if there are no shared confidences, then there is no need to disqualify or screen anyone. 3. Can the presumption of shared information be rebutted? 4. Yes! Firms can create specific institutional screening mechanisms that will prevent the flow of confidential information from the quarantined attorney (in this case attorney L has been separated from continued representation of Duke) to other members of the law firm? The factors that will be considered to determine whether such screening mechanisms overcome the presumption of shared confidences are: Whether the firm is sufficiently large and whether the structural divisions are separate to minimize contact between the quarantined lawyer and the others The likelihood of contact between the quarantined lawyer and the others; The existence of safeguards and procedures to protect against access to files, information, etc. (e.g., locked files, passwords to information, prohibition on fee sharing). Is there a prohibition on sharing fees in the matter with the infected lawyer? The timeliness of the implementation of screening procedures: were they implemented in time to actually quarantine the infected lawyer? 1.10 allows the law firm to have the case by screening properly BUT this can be a problem if it is done insufficiently or if it does not pass the disinterested judge test

7.The law firm of Shubert, DeWitt, & Howe specializes in family law matters. The firm has three partners and four associate lawyers. a.Partner Rhonda Howe is representing client Curt Callen in a pending dissolution of marriage proceeding. Howe's own marriage was recently dissolved, so she is especially sympathetic to Callen's situation. On several occasions, she and Callen have discussed Callen's legal problems over long dinners. Howe now finds herself quite attracted to Callen, and she believes the attraction is mutual. What advice would you give Howe in this situation? b.Partner Shubert has been asked to represent client Cummings in a child custody dispute with Cummings' ex-husband. The ex-husband is represented by attorney Arnott, a partner in a different law firm. Arnott and Shubert are engaged to be married in the near future. Shubert believes that Cummings' matter could be handled adequately by the senior associate in Shubert's firm. What advice would you give Shubert in this situation?"

a. (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced. Violating 1.8 so she should not b. this is a conflict : rule: When close professional or personal relationships with third parties such as relatives or friends affect the independent judgment of the lawyer. So should be avoided by transferring the case to senior associate (in this scenario the lawyer's outside personal interest creates a conflict) issue is the amount of confidential info that Schubert might know (accidentally accepts phone call from fiancé's client at home) to avoid this she should avoid this conflict because Arnott representing them would also be an issue. disclosure to both parties could not prevent above situation. someone else all together needs to represent them

2.In the Kwasnik case, infra:a.Trace the character investigation procedure that was followed. a, How were the facts determined? Who should bear the burden to show an applicant's good (or lack of good) character? b.Do you think that the decision in the Kwasnik case was correct given the circumstances? c.Should some conduct forever bar an applicant from becoming a lawyer? What about murder? child molestation? major securities or bank fraud? tax evasion? dozens of arrests at pro- or anti-abortion demonstrations? drunken driving convictions? d.If an applicant should be allowed to show rehabilitation, how long should the rehabilitation period be and who should decide? Can numerical standards be set?

a. Here, Kwasnik presented ample evidence of his rehabilitation and good moral character, including letters from a pastor and members of the legal community, evidence of his good standing in the New York bar, evidence of his Florida bar admission, and evidence of his diligence and trustworthiness. (burden on attorney to show good moral character) b. Yes because this incident (drunk driving accident) was a one time incident and had nothing to do with dishonesty or his fitness as a lawyer, or trustworthiness so he was rehabilitated unlike in re glass (falsified many articles) where it was a pattern of behavior and it lended itself to untrustworthiness. c. Even crimes that involve trustworthiness such as driving for a gang member shooting can be rehabilitated from with time. d. This seems to be up to the court (no numerical standard is set because it depends on the situation)

"6.For many years, attorney Alice has looked after the legal and financial affairs of her client Chadbourne, an aged widower. Chadbourne 338has asked Alice to prepare a new will for him, but he does not know whom to name as executor. He does not want an institutional executor, and he has no suitable friends or relatives. a.May Alice suggest herself as executrix? b.May Alice accept as thanks for all her kindness to Chadbourne over the years a modest picture frame she has admired when visiting Chadbourne's townhome? c.May Alice accept Chadbourne's valuable townhome if given to her as a gift? What if it is left to her in Chadbourne's will?

a. [8] Yes This Rule does not prohibit a lawyer from seeking to have the lawyer or a partner or associate of the lawyer named as executor of the client's estate or to another potentially lucrative fiduciary position. Nevertheless, such appointments will be subject to the general conflict of interest provision in Rule 1.7 when there is a significant risk that the lawyer's interest in obtaining the appointment will materially limit the lawyer's independent professional judgment in advising the client concerning the choice of an executor or other fiduciary. BUT In obtaining the client's informed consent to the conflict, the lawyer should advise the client concerning the nature and extent of the lawyer's financial interest in the appointment, as well as the availability of alternative candidates for the position. She can do this because it is a paid position, a job not a gift. b. rule: [6] A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted. If a client offers the lawyer a more substantial gift, paragraph (c) does not prohibit the lawyer from accepting it, although such a gift may be voidable by the client under the doctrine of undue influence, which treats client gifts as presumptively fraudulent. In any event, due to concerns about overreaching and imposition on clients, a lawyer may not suggest that a substantial gift be made to the lawyer or for the lawyer's benefit, except where the lawyer is related to the client as set forth in paragraph (c). [7] If effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance, the client should have the detached advice that another lawyer can provide. The sole exception to this Rule is where the client is a relative of the donee. [8] This Rule does not prohibit a lawyer from seeking to have the lawyer or a partner or associate of the lawyer named as executor of the client's estate or to another potentially lucrative fiduciary position. Nevertheless, such appointments will be subject to the general conflict of interest provision in Rule 1.7 when there is a significant risk that the lawyer's interest in obtaining the appointment will materially limit the lawyer's independent professional judgment in advising the client concerning the choice of an executor or other fiduciary. In obtaining the client's informed consent to the conflict, the lawyer should advise the client concerning the nature and extent of the lawyer's financial interest in the appointment, as well as the availability of alternative candidates for the position. c. If a client offers the lawyer a more substantial gift, paragraph (c) does not prohibit the lawyer from accepting it, although such a gift may be voidable by the client under the doctrine of undue influence, which treats client gifts as presumptively fraudulent. In any event, due to concerns about overreaching and imposition on clients, a lawyer may not suggest that a substantial gift be made to the lawyer or for the lawyer's benefit, except where the lawyer is related to the client as set forth in paragraph (c).If effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance, the client should have the detached advice that another lawyer can provide. She should not accept it because it raises questions of fraud and she is not related to the client. And if there was a will only if the client had been advised by another lawyer in accordance to the probate code. (this is the california rule though)

3.You are one of only five lawyers in the little town of Sand Springs. You represent Sand Springs Hardware Company in a civil suit against Virgil McQuillan to collect $338 on an overdue charge account. Last week, McQuillan and one of his friends got drunk and were arrested trying to climb into the back window of the local bar and grill after closing hours. They were charged with burglary, a felony. Neither man has funds to pay a lawyer. a.McQuillan's friend is being represented by the County Public Defender, but she has declined to represent McQuillan too, on the ground that to do so would pose a conflict of interest. Is her position sound? b.The court has asked you to defend McQuillan in the felony case. How should you respond to the court's request?

a. clients' interest aren't adverse so seems like you can represent them unless one starts blaming the other b. no! you are representing their opponent in another unrelated matter , rule: Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated.

8.Lawyer Louise is a sole practitioner who handles wills, trusts, and estate planning. On her way home from work, her car was broadsided by a drunk driver. Louise is expected to survive, but she is currently in a medically-induced coma. a.What happens to the legal matters of Louise's clients during her recovery period? b.Are the responsibilities of a sole practitioner in this regard different from those of a lawyer who works in a multi-lawyer firm?

a. her due diligence requires her to have a plan just in case a situation like this occurs RULE: [5] "To prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action." b. no because lawyers in multi-lawyer firms mist also prepare similar plans so the next lawyer that picks up the case understands what is going on in the case

1.Lawyer Layton graduated at the top of her class from a famous law school that provides a "national" legal education, and she now practices probate law in Arizona, the only jurisdiction in which she is licensed to practice. Purely for her own enjoyment, Layton regularly uses her home computer to communicate about legal topics with strangers on the Internet. A few months ago, Layton responded to a request for legal advice made by one Cushing, a woman from Rhode Island. Cushing's request was directed to any lawyer willing to answer, not specifically to Layton. Cushing's request described a blatant act of malpractice committed by the Rhode Island lawyer who represented her in her Rhode Island divorce case. The malpractice had occurred 35 months earlier; Cushing realized at the time that her divorce lawyer had made a grave mistake, but she had never done anything about it. Cushing's Internet message asked whether she had a valid claim against her divorce lawyer for malpractice. Layton, relying on her national education at the famous law school, and without doing a scrap of legal research, sent a message to Cushing via the Internet, expressing her opinion that the divorce lawyer's conduct was indeed actionable malpractice, and advising Cushing that it was not too late to sue because the statute of limitations for legal malpractice is four years. If Layton had spent a few minutes in the law library or on Westlaw, she would have discovered that the Rhode Island statute of limitations is three years, not four. Cushing, lulled into inaction by Layton's advice, did not get around to suing the divorce lawyer until two months later, at which point she discovered that the three year statute of limitations had run. a.Is Layton guilty of practicing law in Rhode Island without a license? b.Is Layton subject to discipline for incompetence? c.Is Layton liable to Cushing for legal malpractice?

a. yes because she assumed an attorney client relationship by giving legal advice b. yes because she failed to act with "reasonable diligence" c. RULE: A lawyer is civilly liable for professional negligence: if an attorney client relationship existed (hence, a duty of care); if the lawyer fails to exercise care; The standard of care to which a lawyer must adhere to avoid malpractice is: Lawyers must use the skill and knowledge Ordinarily possessed by lawyers under similar circumstances in the community. if there is legally recognizable harm to the plaintiffs; and but for the lawyer's conduct, the plaintiffs would have been successful in the underlying action. This is the "case within the case." Discussion Problem 1 Part (c): Yes. What does Cushing have to prove in a malpractice case against Layton? 1. That had she been able to file her action on time, she would have won the case against the divorce lawyer. This is what is called "the case within the case." 2. If she can prove the above, then she has next to prove that Layton did not perform with ordinary care and diligence (i.e., that lawyers who perform with ordinary care and diligence do legal research to make sure any advice regarding a statute of limitation is correct). Then she has to prove that the failure of Layton to perform with ordinary care and diligence caused actual damage to her.

6.Attorneys Ames, Bell, and Chen are the three shareholders in a law firm that is organized as a professional corporation. The hardest working person in the firm is Daley, a non-lawyer. Her title is "Office Manager," and her duties include keeping the financial and billing records, supervising the office staff, and managing the client file system. When she has time, she also helps the lawyers with research and prepares drafts of routine legal documents. a.Daley's brother and sister want to buy a small piece of real estate as an investment, and they want to keep the legal costs as low as possible. Over the years, Daley has picked up enough knowledge of real estate law to know exactly what to do. Would it be proper for Daley to do the basic legal work, provided that Chen looks over the work to make sure that it is accurate and complete? b.One of Daley's friends selected Ames, Bell, & Chen to represent him in a major matter, thanks largely to his friendship 197with Daley. May the firm pay Daley a bonus equal to 10% of the fees earned in this matter? c.The firm proposes to set up a retirement program that will be funded in part by fees earned by the lawyers. Would it be proper to include Daley as a participant in the retirement program? d.The state's professional corporation statute requires corporate officers to be shareholders. Bell is officially named as the corporate treasurer, but in fact Daley does all the financial work. May the attorneys sell Daley a token number of shares and name her as the corporate treasurer?

a. yes because there is no conflict of interest here (siblings with a nonlawyer) b. rule: (a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and (b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. (c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services. So no? c. yes d. yes because these are not legal fees?

5.Suppose that you have recently been admitted to practice before the California Supreme Court. a.Client Arnold asks you to represent him in a lawsuit pending in the United States District Court for the Northern District of California. Under what circumstances may you represent him? b.Client Beth asks you to represent her in an appeal pending in the United States Court of Appeals for the Ninth Circuit. Under what circumstances may you represent her? c.Client Carlos asks you to represent him in an appeal that is pending in the United States Supreme Court. Under what circumstances may you represent him? d.Client Deborah, an economics professor who lives and teaches at a California university, asks you to represent her in a dispute over consulting fees for work she did for a business in Colorado. You regularly represent and advise Deborah regarding her consulting work in California. The dispute in Colorado appears headed for arbitration or other alternative dispute resolution proceedings in Colorado. Under what circumstances may you represent her? [See ABA Model Rule 5.5(c).] e.Client Edgar asks you to defend him in an automobile negligence case pending in Arizona, right across the river from 32your office in California. Under what circumstances may you represent him? f.Your law partner, attorney Thomas, suggests opening a branch office of the firm in Nevada. Thomas is admitted to practice in both California and Nevada, but you and the other lawyers in the firm are admitted only in California. Under what circumstances may the firm open the branch office? [See Comments [5]-[8] to ABA Model Rule 7.1.]

a. yes, allowed to practice in california b. same answer as above c. "Yes under these circumstances: An attorney who wants to practice in a federal court must be separately admitted to the bar of that court, because each federal court maintains its own separate bar. Typically, admission is granted upon motion by an attorney who is already a member of that court's bar and who can affirm that the applicant is a person of good moral character. Admission to a federal district court typically requires that the applicant be admitted in the state in which the federal court sits. Admission to a federal court of appeals requires that the applicant be admitted in the courts of any state. Admission to the United States Supreme Court requires 50that the applicant have practiced before the courts of a state for at least three years" d. RULE 5.5c: (c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or (4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice. e. same answer as above? pro hac vice petition f. "[7] Lawyers may not imply or hold themselves out as practicing together in one firm when they are not a firm, as defined in Rule 1.0(c), because to do so would be false and misleading." so the firm can open the office in Nevada but name it only under Thomas's name. My name can not be on the firm because it would imply that I practice together with him there. I may practice there occasionally on a pro hac vice basis but not on a permanent basis unless I get a license there.

10.Lawyer Leonard has received a settlement offer in the matter of Phillips v. Darcy; Leonard represents Plaintiff Phillips. The settlement offer is generous; Leonard knows his client will be delighted with the offer and will accept. The defendant's counsel telephoned with the settlement offer on Monday at 10:00 a.m., and followed up with a written offer less than an hour later. Leonard knows that defendant Darcy is eager to wrap up the matter and is hoping for a prompt response. However, Leonard dislikes Darcy's counsel, who has jerked him around on a number of occasions, so Leonard decides to wait a bit before telling Phillips about the offer—just a couple of days, just enough to make Darcy's counsel sweat. As long as this brief delay does not jeopardize the availability of the offer, may Leonard ethically do so?"

as long as he relays the offer and it does not jeopardize it it seems fine? or is this wrong under the procrastination rule

8.Attorney Amanda agreed to represent Client Cathie in a divorce action. After four months of working diligently on Cathie's case, Cathie abruptly fired Amanda. Cathie said that she met a lawyer at an art auction who seemed friendlier and more knowledgeable than Amanda. Cathie has not paid Amanda for the work completed thus far. May Amanda politely insist upon payment before sending the case file to the new lawyer?"

yes she may to the extend the law provides because Does this not apply because there is no applicable protective order, etc, 1.16 (1) subject to any applicable protective order, non-disclosure agreement, statute or regulation, the lawyer promptly shall release to the client, at the request of the client, all client materials and property. "Client materials and property" includes correspondence, pleadings, deposition transcripts, experts' reports and other writings,* exhibits, and physical evidence, whether in tangible, electronic or other form, and other items reasonably* necessary to the client's representation, whether the client has paid for them or not;