ProRes Mid-Term

Attorney worked as in-house counsel for a petroleum refinery. One day, after weeks of stalemate in a round of collective bargaining, the refinery workers decided to go on strike to demand higher wages and more vacation time. The workers abandoned their workstations and picketed on the sidewalk in front of the building. Late in the evening, some of the picketers moved their protests onto the refinery compound, including some hazardous areas. The usual safety personnel were also on strike, so there was a substantial risk of an explosion at the refinery if the protestors engaged in vandalism, and a risk for injuries to the protestors. At midnight, the management called in Attorney to ask if it would be legal for them to call in a private security force and have all the picketers arrested and removed from scene, or if federal labor laws and Free Speech laws protected their right to protest. Attorney initially suggested that they simply remove the protestors from the hazardous areas of the compound, but the management believed that the protesters on the sidewalk would simply migrate over to the same areas to fill the gaps from those removed, and then pose an ongoing safety risk. Attorney knew nothing about protester rights or the rights of striking workers, because all of his legal work up to that point has involved reviewing contracts with suppliers and distributors for the refinery. Attorney tried to call one or two lawyers he knew who might know the answer, but nobody answered his calls given the late hour. Attorney then guessed that it would be fine for the management to remove the picketers by force, and advised accordingly. Unfortunately, during the ensuing scuffle with the private security force, several workers and security offers received serious injuries, and it turned out that Attorney's advice about labor laws was incorrect given the special circumstances surrounding the collective bargaining. The refinery was subject to substantial liability both to the injured individuals and faced fines from the federal labor board. Should Attorney be subject to discipline in this situation?

No, because in an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical.

Attorney interviewed an expert witness that he thought he might hire to testify at Client's trial. Attorney explained that he was meeting with several expert witnesses and would hire the one that he thought would seem most persuasive to the jury. The expert witness offered to work on a contingent fee basis if Attorney did not win the case at which the expert testified, no fee would be due. Attorney would have to pay the expert witness only if his testimony was compelling enough to produce a favorable outcome in the case. Attorney thought that this would give the expert an incentive to prepare more thoroughly for trial, and that it would be fairer to Client, who would be left bankrupt if they lost at trial and would have trouble paying the expert's fee anyway. Would it be proper for Attorney to hire the expert witness under such terms?

No, because it is improper to pay the expert witness a contingent fee.

Attorney is a partner in a seven-lawyer firm. Client retained Attorney to handle his workers' compensation matter. Attorney did discuss with Client that he would normally disclose to the other partners in the firm some of the details about his cases and clients, and Client expressly forbid Attorney from telling anyone in his firm anything about his case. Nevertheless, at the weekly meeting of the partners, as everyone discussed their pending cases, Attorney explained Client's case and solicited input from the partners. One partner had an ingenious suggestion that would have been very helpful to Client's case. Attorney mentioned to Client in their next phone call that one of his partners had made a brilliant suggestion that could turn the case in Client's favor. Client was upset that Attorney had discussed the case with anyone else. Was it proper for Attorney to discuss the case with the others at the firm?

No, because lawyers in a firm may not disclose to each other information relating to a client of the firm if the client has instructed that particular information be confined to specified lawyers.

A prosecutor in a felony drug case addressed a group of reporters outside the District Attorney's office. In response to questions about the specific case underway, the prosecutor explained that the judge had consolidated the trials of three co-defendants into a single proceeding and had postponed the proceeding until the next summer, four months away. Was it proper for the prosecutor to disclose such details about the case to reporters?

Yes, because a lawyer may tell reporters the scheduling or result of any step in litigation.

While conducting research on a litigation matter, Attorney finds a very new case from the highest court in his jurisdiction that is directly adverse to his client's legal position in the case. The opposing party did not mention the case in its briefs, and Attorney realizes that the opposing party's lawyer has been recycling his firm's briefs for this type of case for several years without updating his research. Does Attorney have an ethical duty to disclose the unfavorable binding precedent to the court?

Yes, because a lawyer must disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.

Attorney represents Client before an Administrative Law Judge in a regulatory enforcement matter. The Administrative Law Judge orders Attorney to disclose whether Client had received legal counsel about the regulatory requirements in question before the violation occurred. Client forbids Attorney to answer the question. Should Attorney object and try to assert various claims that the order is not authorized by law, or that the information is not relevant to the proceeding, or that the information is covered by the attorney-client privilege?

Yes, because a lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law.

Attorney is a partner in a seven-lawyer firm. Client retained Attorney to handle his workers' compensation matter. Attorney did not discuss with Client that he would normally disclose to the other partners in the firm some of the details about his cases and clients. At the weekly meeting of the partners, as everyone discussed their pending cases, Attorney explained Client's case and solicited input from the partners. One partner had an ingenious suggestion that would have been very helpful to Client's case. Attorney mentioned to Client in their next phone call that one of his partners had made a brilliant suggestion that could turn the case in Client's favor. Client was upset that Attorney had discussed the case with anyone else. Is Client correct that Attorney should not have discussed the case with the others at the firm?

No, because lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.

Attorney has her own firm and works as a sole practitioner. She has been practicing law for about twenty years, and is now in her mid-40's. Recently, though, a routine visit to her doctor revealed indications of multiple sclerosis, and she has scheduled appointments with specialists for more testing. She has been struggling with several symptoms that usually result from this condition. Does Attorney have any ethical obligations toward her clients, at least related to her possible condition?

Yes, because each sole practitioner shall prepare a plan that designates another 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.

Attorney works in a partnership with one other lawyer. Client wants Attorney to represent her in litigation over a contract dispute, because Attorney helped negotiate the contract. In fact, Attorney was the only other party in the room when Client and the other party reached a final agreement on the terms and signed the contract. Attorney explains that he will probably have to testify as a witness at Client's trial, as the dispute involves the parties' intention regarding a certain ambiguous provision of the contract. Attorney said he would truthfully corroborate Client's version of the events. As a result, Attorney explains, he cannot represent Client at the trial, but his partner at the firm (a two-lawyer partnership) could represent Client instead. Client retained the Attorney's partner to represent her in the litigation. Is this arrangement proper?

Yes, because 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.

Attorney received a call from his cousin, who lives in another city, one evening after work. The cousin was serving on a jury in a misdemeanor criminal case, and deliberations were set to begin the following morning. The cousin explained that part of the jury instructions focused on whether the defendant committed the act "knowingly." She is confused about whether that means that the defendant knew that he was committing the act, or that the defendant knew he was doing something illegal at the time. She called Attorney hoping for some clarification. Attorney practiced real estate law and had never handled a criminal case, but he vaguely remembered something about this from his first-year law school course in criminal law. Given that there was no time for him to research the subject, or to create an agreement for representation, and the fact that he had very limited information, Attorney offered the best explanation he could. Was it proper for Attorney to answer her question under these circumstances?

Yes, because the Supreme Court has held that any restrictions in this area violate the First Amendment.

Attorney represented Client in her divorce and custody case. Client's husband had been abusive, so she asked Attorney to obtain a temporary restraining order against her ex-husband. The application for the temporary restraining order is an ex parte proceeding, so opposing counsel is not present. Attorney knows that the ex-husband has not been physically abusive to Client in over two years, and that he has been faithfully attending an anger-management support group during that time that appears to have produced genuine results. At the same time, Client is fearful that the ongoing custody battle will push her ex-husband over the edge, and that the abuse she endured in the past will resume. At the hearing for the temporary restraining order application, does Attorney have an affirmative duty to disclose the length of time since the last abuse occurred and the husband's faithful participation in an anger management program?

Yes, in an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Which of the following is NOT one of the factors listed by the Rules of Professional Conduct that lawyers should use in determining the reasonableness of a fee?

"whether the fee will involve cash payments or the exchange of goods or services"

What is the difference between a static contingent fee and a sliding contingent fee?

A static fee has a fixed percentage rate, while a sliding fee has the percentage increase with either how long the case takes or the amount of the recovery.

Legal malpractice lawsuits require proving that the plaintiff would have prevailed but for the lawyer's negligence, and proving damages. As mentioned in class, which of the following is necessary to prove these elements of a typical malpractice action?

A trial within a trial

Attorney normally does business transactional work for clients, and has done so for a decade. One of Attorney's clients recently injured another driver in a car accident, and he asked Attorney to defend him in the personal injury lawsuit over the incident. Attorney has never taken a case to trial, but took trial advocacy courses in law school, and has served as second chair on other lawyer's commercial litigation trials. Attorney would like to keep the client and would not mind expanding his practice into a new area. Which of the following would be an improper course of action?

Attorney could refer his client to another lawyer and charge the other lawyer a substantial referral fee.

Attorney represents Mr. Sharp in several contract dispute cases regarding services for which Mr. Sharp was paid but which were not provided. The local District Attorney's office recently indicted Mr. Sharp on offenses related to a financial investments fraud run by Mr. Sharp. Mr. Sharp retains Attorney for representation for his criminal case as well. During a meeting that Attorney had with Mr. Sharp to discuss his criminal case, Mr. Sharp tells the attorney in confidence about some financial transactions he made recently that are the cause of the criminal charges. Specifically, Mr. Sharp advises that he solicited and accepted money from Ms. Mayfield, a 75-year-old widow, for a financial investment company that did not exist. Mr. Sharp explained that his construction business ran into financial troubles and he used this scheme to obtain money to pay his construction company's expenses. Mr. Sharp explained that he would not do this again. What may Attorney do in this situation?

He cannot disclose the information because the client retained the attorney to represent him on the matter and the details provided are confidential.

Suppose the lawyer knows at the outset that the case is a sure winner - is a contingent fee proper?

In theory, a disciplinary board could conclude that a contingent fee is unreasonably high in a case involving zero risk for the lawyer, if such a case existed

Client hired Attorney to represent Client in a litigation matter, but after he filed the notice of representation and the initial pleadings in the case, the opposing party hired Big Firm to represent it. Attorney has already completed three rounds of job interviews with Big Firm and is now simply waiting for their answer, which he hopes will be an offer of employment. Rather that notify the client that an unforeseen conflict of interest has possibly emerged, Attorney simply slows down his work on the case, because if the job offer comes through, he will have to transfer Client's case to another lawyer anyway, and if he does not receive an offer, the potential conflict disappears and he can proceed with the litigation. Attorney thus waits until the last possible day to respond to any filings or discovery requests, and frequently calls the opposing party asking for more time, which they always grant. Is it proper for Attorney to stall the progress of the case for a while, to allow time for the conflict either to disappear or for him to need to transfer the case to some other lawyer?

No, because a lawyer has a duty to make reasonable efforts to expedite litigation consistent with the interests of the client.

Attorney submitted a brief to the court arguing against the opposing party's motion for summary judgment. In his brief, Attorney never mentioned specific cases that were controlling authority in that jurisdiction and that were adverse to Attorney's position, because the opposing party's brief already discussed all adverse controlling authority. Instead, Attorney focused on a few outlier cases that supported his side, and dismissively referred to all the contrary authority, discussed at length in the opposing party's brief, as "easily distinguishable from the present case on factual grounds." No objective reader would have thought that Attorney presented a fair, even-handed exposition of the law relevant to the case, and no objective reader would have found Attorney's brief convincing. Has Attorney violated an ethical duty by writing such a one-sided brief?

No, because a lawyer in an adversary proceeding is not required to present an impartial exposition of the law.

Attorney represents Client before an Administrative Law Judge in a regulatory enforcement matter. The Administrative Law Judge orders Attorney to disclose whether Client was informed by counsel about the regulatory requirements in question before the violation occurred. Client forbids Attorney to answer the question. Attorney initially objects, but the Administrative Law Judge insists. Could Attorney be subject to discipline for disclosing such confidential client information to the Administrative Law Judge?

No, because a lawyer may comply with an order to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure.

Attorney is representing a client who is a notorious celebrity-turned-criminal. Attorney is confused about whether he may publicly disclose information that he learned in confidence from his client if the information is already a matter of public record, and his research indicates there is a split of authority on this question. Attorney calls another lawyer who specializes in lawyer malpractice and lawyer disciplinary matters to seek advice about what course of action would comply with the Rules of Professional Conduct. The other lawyer, an expert in legal ethics, agrees to provide an opinion and to keep the conversation a secret. Attorney tries to use a hypothetical to explain the problem, but given the client's national reputation and celebrity status, the other lawyer knows immediately who the client is, and can easily surmise the nature of the confidential information. Is Attorney subject to discipline for disclosing confidential information about his client?

No, because a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to secure legal advice about the lawyer's compliance with the Rules of Professional Conduct, even when the lawyer lacks implied authorization to make the disclosure.

Attorney represented a newspaper publisher in a defamation case brought by a popular actor. A radio talk show invited Attorney to participate in their afternoon program and respond to calls from the radio listeners. The first caller asked Attorney to explain the case involving the superhero that the popular actor had played in a recent film. Attorney explained that the actor (using the actor's legal name as it appeared in the pleadings, rather than his stage name or the character for which the actor was most famous), and the legal name of the publisher Attorney represented. He also explained that the lawsuit was over alleged defamation by the newspaper, and that the newspaper planned to raise an affirmative defense of truth, that is, it would attempt to show that the stories it printed about the actor were factually accurate, even if they were unflattering. Attorney also mentioned that the actor owns a home and a business in the state, which is a matter of public record, and that is why the case is in the courts in that state. Did Attorney violate the Rules of Professional conduct by making these statements on a radio talk show program?

No, because a lawyer may state the claim, the defense involved, and the identity of the persons involved.

Client hired Attorney to represent him in litigation, and explained to Attorney his version of the incident that gave rise to the dispute with the other party. Attorney took notes on the account that Client provided, and drafted pleadings that alleged the facts as alleged by Client. Attorney did no investigation before filing the pleadings to provide independent verification of Client's version of the story, because he thought that discovery would bring to light the necessary facts to reveal the truth of the matter. Similarly, Attorney submitted as evidence the various documents client provided to him, without doing his own assessment of the authenticity of the evidence so that he could vouch for the evidence himself. It turned out, as the other side submitted its evidence, that Client's account of what happened was full of fabrications, and some of the evidence was invalid. Attorney did not know the Client was being untruthful, but he neglected to make any efforts to verify Client's story before presenting it in court. Could Attorney be subject to discipline for undermining the integrity of the adjudicative process?

No, because a lawyer need not have personal knowledge of matters asserted in pleadings, for litigation documents ordinarily present assertions by the client, and not assertions by the lawyer.

Attorney represented Client in a residential real estate transaction. At the same time, Attorney agreed to represent the defendant in a large class-action lawsuit, an alcoholic beverage maker that understated the alcohol content of its products on its labels, leading to numerous cases of inadvertent intoxication, liver damage from continuous consumption, and a few deaths from overconsumption that led to alcohol poisoning. Client was an unnamed member of the plaintiff class in the class-action lawsuit against the alcohol producer. Attorney did not inform Client that he was representing the defendant in the class-action lawsuit or seek consent from Client or from the alcohol producer. Plaintiffs' counsel in the class action lawsuit discovered this situation, and asked the court to disqualify Attorney from representing the defendant. Should Attorney be subject to disqualification under such circumstances?

No, because a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter.

As he left work one evening, Attorney was approaching his car in the parking garage when he noticed two men arguing near a car at the far end of that floor of the garage. He could not hear what they were arguing about, but could hear occasional profanities and insults, and one of them shouting, "I warned you!" Then he saw that the men began to fistfight. A few other people by this point had stopped to watch in the parking garage and someone called the police, who arrived within five minutes. By that point, one of the men who had been fighting was bloody and could not walk away from the fight on his own. The police took the men into custody and the other witnesses quickly dispersed, so the police took a statement from Attorney, the only witness who remained. The officer turned to his partner, who was standing near the squad car with its driver door open, and shouted that one of the witnesses was actually a lawyer, which prompted a snide remark from the other officer. One of the arrestees in the car overheard this exchange and asked the officer to get Attorney's business card so that he could hire him. May Attorney represent the arrestee in the criminal or civil proceedings that follow?

No, because a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.

Client committed perjury on the witness stand during his trial, but Attorney did not know it at the time. Client won his case and there was no appeal of the verdict. Client boasts to Attorney after the representation ends that he successfully lied to the court and won the case as a result. Does Attorney have an ethical duty to remonstrate with the client or disclose to the tribunal that the perjury occurred?

No, because a lawyer's duty to take remedial measures after perjury occurs, continue only to the conclusion of the proceeding.

Attorney had been representing Client in a purely transactional matter, drafting incorporation documents for Client's business, as well as other commercial lease and sale agreements. None of Attorney's work for Client has involved information about the Client's finances or assets. As a result, Attorney did not know anything about the average income, assets, or insurance of Client's business, or even for Client personally, except that he has duly incorporated the business under state law. On a wholly unrelated matter, Victim approached Attorney seeking representation for a lawsuit over damage to Victim's expensive car in a parking lot when Client negligently scraped Victim's car while trying to back out of a parking space with his own vehicle. During the initial interview, Victim gave very few details about the accident or the scope of damages, except to identify Client as the intended defendant and that the incident involved a scraped fender in a restaurant parking lot. The attorney believed there was no significant risk that the representation of Client would materially limit the Attorney's responsibilities to Victim, and vice-versa. The attorney's representation of Client involved only the drafting of a few standard documents for Client's business, and Victim's claim did not relate to the business at all, but to Client's conduct outside of work while driving his personal car in a parking lot. Because the attorney believed there was no conflict here, he did not seek consent from either party, although he mentioned to Victim that he had drafted some documents for Client's business, and Client would obviously learn about the representation of Victim when Attorney filed the lawsuit. May an attorney proceed with representing Victim in this case?

No, because 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.

Client meets with Attorney to discuss certain financial decisions Client is considering making in the future. Attorney discusses the pros and cons of making the decisions, but does not give a recommendation to Client. Client goes on to make the financial decisions and ultimately is filed upon by the IRS for tax fraud. Is Attorney subject to discipline?

No, because an attorney may analyze and give an opinion about the likely consequences of a client's conduct.

During his closing argument at a bench trial, Attorney makes the following statement to the judge: "Your Honor, I know this client, because we grew up together and I have represented him in various legal matters for years. I know that he is an honest person who would never lie or try to take advantage of another person unfairly. In fact, I am doing this case on a pro bono basis because I feel so strongly about the justness of his cause." All of these statements were truthful - Attorney had known Client since childhood and had represented him many times, Attorney admired Client's integrity, and Attorney had offered to handle this case without charging any fee because he believed so strongly that Client was on the right side. Was it proper for Attorney to make these comments during closing arguments?

No, because at trial, a lawyer shall not assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness.

Client consults with Attorney, a solo practitioner, about a family law issue. Attorney has never practiced family law, but has spent his years as an attorney practicing strictly construction litigation issues. Attorney accepts the case, as he is only handling a few construction litigation cases at this time and could use the money this case will bring to his practice. Attorney believes he can get advice on how to handle case from attorneys in the area who practice family law, and with whom he has good relationships. Is attorney subject to discipline?

No, because attorneys can represent clients as long as they are able to provide competent representation to a client, and the lawyer does not have to have prior experience to practice in a specific area of law.

Client retained Attorney to represent him in two cases, a criminal case and a divorce case. Attorney required that Client pay a retainer fee for the family law case, which was billed at Attorney's hourly rate. Attorney then arranged for Client to pay him based on a contingency fee for the criminal case. Attorney and Client both signed the combined contract, which detailed each fee arrangement for each case, and Attorney's representation began. Are Attorney's actions proper?

No, because attorneys cannot charge a contingent fee for representing a defendant in a criminal case.

Ms. Mathis hired Attorney to represent her in a burglary charge. During a meeting with Attorney and with the understanding that any information would be confidential, Ms. Mathis advised Attorney about a murder she committed in which another person was on trial. Eventually, Attorney was able to negotiate a plea deal for Ms. Mathis on her burglary charge. Shortly after the plea deal was reached and Attorney's representation of Ms. Mathis concluded, Attorney discovered that the person who was on trial for the murder to which Ms. Mathis admitted was found guilty by a jury and sentenced to life in prison without the possibility of parole. Attorney contacted the District Attorney's office that handled the murder trial and left an anonymous tip stating that Ms. Mathis confessed to committing the murder. Was Attorney's conduct proper?

No, because attorneys cannot disclose client representation information and the death had already occurred, therefore, the disclosure would not prevent certain death or substantial bodily injury.

Attorney works in a law firm with other attorneys. Attorney is handling a case for Client, and Client instructs Attorney not to share any of the case details or any of Client's personal details or information with other attorneys in the firm. While preparing for a hearing, Attorney goes to another attorney in the firm and discusses the case. Attorney advises the attorney with whom he discusses the case that Client would prefer that other attorneys in the firm not be involved in the case. Attorney uses the information and guidance provided by the other attorney to successful win the hearing. Are Attorney's actions proper?

No, because attorneys shall not discuss a client's case with other attorneys of the firm handling the client's case if instructed by a client not to do so.

Client was with three friends in a car when a police officer stopped the vehicle. During the stop, the police officer found cocaine and marijuana in the vehicle. The prosecutor charged Client for possession of a controlled substance. The prosecutor did not charge anyone for possessing marijuana, though it was illegal to possess such substance. Attorney knows Client uses marijuana. Client has expressed that he has never used cocaine but that he knows a friend that was in the car uses it. Client takes a drug test at Attorney's recommendation. The drug test shows Client negative for controlled substances, but positive for marijuana. Attorney wants to use the drug test to show it was unlikely that the cocaine found in the car belonged to Client. However, providing the drug test to the prosecutor would reveal that Client tested positive for marijuana and might lead to charges based on the marijuana found in the vehicle at the time of the stop. Attorney asks his Client if he can show the prosecutor the drug test to prosecutor to evidence that Client did not use cocaine around the time of the finding and that the cocaine likely did not belong to Client. Client tells the Attorney he can share the results with prosecutor. Did Attorney act properly?

No, because client must give informed consent and the attorney did not make client aware of the risks and reasonable alternatives.

A famous professional athlete faced charges for allegedly murdering his wife and her male companion one evening outside their Beverly Hills home. The defendant assembled a legal "dream team" of the five most famous criminal defense lawyers from around the country. One of the lawyers was in possession of a handwritten letter from one of the murder victims saying that a drug cartel had been making death threats against the victim for a few weeks. The evidence would have been somewhat exculpatory for the defendant, but the lawyer would have to take the witness stand briefly during the trial to authenticate the document or explain how he received it. The document was a hotly contested piece of evidence in the case, but was not the only evidence pointing toward the defendant's innocence or guilt. The prosecutor wanted the court to disqualify the lawyer from representing the defendant if he testified about the letter. The defendant insisted that this would work a substantial hardship on him, because this particular lawyer was the only criminal defense lawyer in the county with an undefeated record - he had obtained acquittals in hundreds of criminal trials and had never lost a case. Should the court side with the defendant in this case and allow the lawyer to continue as part of his defense team?

No, because disqualification of the lawyer would not work substantial hardship on the client.

Three years into the litigation in a complex antitrust lawsuit, it became necessary to have Attorney, who alone represented the defendant corporation, testify as a witness at the trial. Attorney had been present at a private meeting between his client and an industry rival, at which they allegedly discussed a price-fixing scheme, and the testimony of the two rivals (the only ones besides Attorney at the meeting) contradicted each other. The question of what occurred at the meeting was a hotly contested issue in the case, but was only one of many issues in the protracted, extremely complex litigation. The opposing party moved to disqualify Attorney from representing his client after Attorney takes the stand to testify. Should the court disqualify Attorney from representation, or from testifying as a witness?

No, because disqualification of the lawyer would work substantial hardship on the client.

Attorney represents Client, who is a defendant in a prosecution for rape. Client turned down several other experienced criminal defense lawyers who offered to take the case and hired Attorney to represent him. Client saw the victim early in the evening on the date when the rape occurred, but he has a solid alibi, supported by multiple credible witnesses, that he was nowhere near the scene where the rape occurred at the time that it happened, and no DNA tests link Client to the rape. The only evidence against Client, in fact, is the victim's memory of seeing him early that evening and feeling uncomfortable around him, as if she could sense that he was a sexual predator. Her rapist wore a mask, so she could not identify his face, but he was the same height and build as Client, so she is convinced he is the perpetrator. Despite the weakness of the evidence against him and his airtight alibi, Client is furious about the false accusation and wants to teach the victim a lesson. He informs Attorney that he plans to take the stand and testify that the victim has a reputation among his friends for being promiscuous, that when he saw her that evening she was wearing provocative clothing, and that he believes she was "asking to be raped." Attorney finds this repugnant, but he believes Client is truly innocent of the rape in this case, and will probably receive an acquittal with or without this testimony attacking the victim's character and reputation. Attorney believes the court will allow him to withdraw from the case and that Client could easily hire one of the other lawyers to take over the representation. Is it improper for Attorney to withdraw from the representation, if he agrees with the objectives Client is pursuing (acquittal), but disagrees with the actions Client plans to take?

No, because even where the lawyer agrees with the overall objectives of the client, a lawyer may withdraw from a case if the client insists upon taking action that the lawyer considers repugnant.

Attorney defended Client in a criminal proceeding that attracted low-level media attention on the local evening news and a few local-interest blogs. One of these bloggers called Attorney at his office and asked for a quote about Client's case. Attorney stated that a member of the local clergy, as well as the Principal of the local high school, would testify as to Client's good character and volunteer activities. Was it proper for Attorney to discuss such things with a blogger?

No, because in a criminal matter, it is presumptively prejudicial for a lawyer to make extrajudicial statements about the expected testimony of a party or witness.

A municipal election for a seat on the city council was very close one year, resulting in a run-off election that was ever closer. Both candidates claimed victory and each accused the opposing candidate of voter fraud and violations of various election rules. There is potential for litigation if the two cannot agree as to a winner in the election, with one or the other conceding. Attorney is a prominent lawyer in the community and has previously represented each candidate in various legal matters. Both candidates would like to hire Attorney to represent them in negotiating a resolution to the election. Each candidate fully understands their adverse interests and the potential conflicts of interest for Attorney, but each is willing to provide written informed consent in order to have Attorney represent them both in facilitating the negotiations. May Attorney represent both candidates in this negotiation?

No, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, even in a negotiation.

Attorney spent several years working for the state Office of the Attorney General in its environmental litigation division. While there, Attorney began a case against a scrap metal facility for burying toxic materials on its grounds. Attorney then left government service and went to work for Big Firm. There, Attorney began representing a group of neighboring landowners in a lawsuit against the same scrap metal facility over the same burying of toxic material, as it had polluted the groundwater and had migrated to adjacent properties underground. Is it proper for Attorney to represent these plaintiffs?

No, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when authorized to do so by the government agency.

During trial, the plaintiffs complained that Attorney's client had not fully complied with certain production requests during discovery. The judge ordered Attorney to produce the specific records. Attorney believed that his client had no legal obligation to produce the records in question, because they included important trade secrets and were not relevant or material to the current litigation in any way. Attorney openly refused to produce the records and explained his position to the judge. The judge disagreed and ordered Attorney to bring the records to the courtroom the next day. Attorney did not obey the judge's order. Apart from any potential contempt-of-court sanctions, could Attorney be subject to discipline for violating the Rules of Professional Conduct?

No, because a lawyer may disobey an order from a tribunal when the lawyer has made an open refusal based on an assertion that no valid obligation exists.

Defendant was facing charges for a high-profile crime, and he was the subject of constant negative media coverage, strongly presuming Defendant's guilt. Attorney was the criminal defense lawyer representing Defendant. When a reporter asked Attorney for a comment on the case, Attorney replied, "The only one guilty of anything here is the media." Was Attorney's comment proper?

No, because a lawyer should not publicly express any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration.

During opening arguments in a criminal trial before a jury, Attorney, who was representing the defendant, closed his statements by declaring, "My client is innocent I know it in my heart. By the end of the trial, I am confident that you will agree with me that this is an innocent man." Are such comments proper for a defense lawyer to make during trial?

No, because at trial, a lawyer shall not state a personal opinion as to the guilt or innocence of an accused.

Attorney, an associate at Big Firm, applied for a patent for Client and successfully obtained the patent. Three years later, another party sued Client for allegedly infringing on one of their patents. Attorney was a necessary witness in the patent infringement matter, and planned to testify on behalf of Client that Client had successfully obtained a patent to the invention in dispute. Two partners at Big Firm, where Attorney worked, handled the representation of Client in the infringement case, pursuant to Client's written consent. Would the two partners at Big Firm be subject to disqualification from representing Client in the patent infringement case, if Attorney will be a witness about the original patent application?

No, because 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.

Attorney represents Defendant in a murder case. At trial, the jury convicted Defendant and sentenced him to death, and the appellate courts upheld the conviction as well as the sentence. Attorney has now offered to file a habeas corpus petition in federal court in order to appeal the case to the United States Supreme Court, if necessary. Defendant, however, has developed terminal cancer, and does not expect to live another six months. Defendant tells Attorney to drop the appeals because even if they won, Defendant would not live long enough to enjoy his freedom. Defendant does not terminate the representation, however, because he wants Attorney to handle his estate planning matters while he is on death row, and he has some administrative complaints in progress against the prison where he is living. Attorney is passionately opposed to the death penalty and believes his client is innocent, so he files the habeas petition anyway. While the habeas petition is making its way through the federal appellate process, Defendant succumbs to his illness and dies in prison. Is Attorney subject to discipline for filing the habeas petition, despite the client's reservations?

Yes, because a lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued.

An attorney represents criminal defendants. One day, a client appeared in the attorney's office and explained that he had been blackmailing his former employer for the last year. The client had hired a prostitute to seduce the former employer in a room with hidden cameras, then showed the embarrassing photographs to his former employer and demanded monthly payments of $500, which the employer paid, not wanting to destroy his marriage. The prostitute subsequently died of a drug overdose. The client's former employer eventually tired of making the monthly blackmail payments, and went to the police about the matter. The client is now worried that he will face charges for blackmail, which would violate his parole and result in a lengthy incarceration. Client retained the only copies of the photographs, as he merely showed them to the former employer a year ago in order to extort the payments. After the client explained all this to his attorney, he gave the attorney the documents and instructed the attorney to destroy them or hide them so that the police could not find them. Attorney put the photos in a folder marked ATTORNEY WORK PRODUCT - PRIVILEGED AND CONFIDENTIAL, and sent the folder to a secret overseas document storage service in the Caymans. The police obtained an arrest warrant for the client based on the former employer's affidavit, and at trial, the prosecutor obtained a conviction based on the employer's testimony and the bank records showing the monthly transfers. Is the attorney subject to discipline?

Yes, because a lawyer shall not assist a client in conduct that the lawyer knows is criminal or fraudulent, such as destroying evidence when there is a pending criminal investigation.

Client is aware that he is under investigation for student loan fraud. A friend who works at the courthouse tips off client that a magistrate issued a warrant to search Client's home for evidence the next day in the early morning. In a panic, Client calls Attorney, whom he has retained to represent him during the investigation and any prosecution that follows, and asks what he should do. Attorney informs him that the agents executing the warrant will surely seize any computers and hard drives that they find, and that Client should probably wipe and reformat all his drives or dispose of his computers, that he should probably smash his cell phone, and that he might want to go on a long vacation immediately. Is Attorney subject to discipline for this advice?

Yes, because a lawyer shall not counsel or assist another person to destroy or conceal a document or other material having potential evidentiary value.

Attorney must testify briefly at Client's trial about a point that is uncontested but necessary as an antecedent point for the issues in the case. Attorney testified to facts that he believed were true at the time he testified. Later, before the conclusion of the proceedings, Client discharges Attorney, and then informs Attorney of previously unknown facts that compel the conclusion that Attorney's testimony was incorrect. Does Attorney have a duty to take remedial measures to rectify the false statements?

Yes, because a lawyer shall not fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer

Police arrested several protestors who were advocating a cause that Attorney strongly supported. One of the protestors had a violent altercation with police, and she was facing criminal charges. Attorney practices corporate transactional law and not litigation. The news media reported that jury selection would begin the following Monday in the protestor's prosecution. Attorney waited outside the courthouse where prospective jurors were reporting for jury service, and a long line formed at the metal detectors for entering the courthouse. Attorney waited in line and started conversations with the prospective jurors in front of him and behind him in the line, during which he explained that he was a lawyer and that the case against the protestor was ridiculous from a legal standpoint. He told them that he hoped the jury would follow the laws of the state and acquit the protestor. Once Attorney made it through the security line, he walked out of the courthouse and got back in the security line again, and had similar conversations with more prospective jurors. During voir dire, the prosecutor asked the prospective jurors if anyone had spoken to them directly about the case, and three people mentioned their conversations with a lawyer in the security line waiting to get into the building. None of the individuals with whom Attorney spoke ended up on the jury in the case. The prosecutor eventually determined Attorney's identity and filed a grievance with the state disciplinary authority. Could Attorney be subject to discipline?

Yes, because a lawyer shall not seek to influence a judge, juror, or even a prospective juror.

Client asked Attorney to defend him in a small litigation matter. Client explained that he had very limited funds available, and wondered if Attorney could handle the case for $2000. Attorney's usual hourly rate is $200. Attorney explained that he would handle the case for $2000, but would do a maximum of ten hours of work on the case. Attorney expected the case to settle before trial, so ten hours seemed like a reasonable amount of time to draft a demand letter, file the pleadings, and conduct some preliminary discovery, at which point the matter would probably resolve itself in a settlement. Client agreed and they formalized this agreement in writing. Unfortunately, the matter did not settle, and Attorney had already spent ten hours on the case three months before the trial date. Attorney explained that his representation in the matter had terminated and withdrew from the case. Would Attorney be subject to discipline in a situation like this?

Yes, because a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client.

Attorney defended Client in a criminal proceeding that attracted low-level media attention on the local evening news and a few local-interest blogs. A semi-retired reporter for the local evening news called Attorney at his office and asked for a quote about Client's case. Attorney stated that Client had no prior criminal record and that they planned to put on a rigorous defense, and he hoped the prosecutor would drop all the charges before trial. Was it improper for Attorney to make these statements?

Yes, because a lawyer should not make extrajudicial comments about the criminal record of a party during a criminal matter.

Client is a second-year law student at a state law school. Client's Professional Responsibility professor forbid the use of the Internet by students during class sections, out of frustration that students spend the class sessions on social networking sites or doing email, and tune out the professor. The school's student handbook also strictly forbids use of the school's wireless computer network, which provides the only Internet access inside the building, during class sessions unless the professor permits it. Client visited a social networking site during a class session, and when the professor discovered it, he had the student arrested for violating the state's Computer Fraud and Abuse Act, which imposes civil and criminal penalties for unauthorized use of a government computer network. Client, the student, hires Attorney to represent him. Attorney is shocked that the police and prosecutor are involved in such a ridiculous case, and is reasonably certain a judge would dismiss the charges before trial. The prosecutor calls Attorney and explains that the District Attorney regards this as an important test case and wants to bring it to trial, but they will offer a plea bargain of only twenty years in prison if the student will plead guilty and accept responsibility. Attorney blurts out a profanity and hangs up on the prosecutor. He does not even mention the offer to Client, out of fear that it would upset him, and instead drafts a motion to dismiss. The court grants the motion and dismisses the charges against Client. Is Attorney subject to discipline?

Yes, because a lawyer who receives from opposing counsel a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer.

Attorney represented Client in litigation over a breach of contract. After jury selection but before the opening arguments of trial the following Monday, the opposing party contacted Attorney with a settlement offer. Attorney, an experienced litigator, was familiar with opposing counsel from previous cases, and knew that opposing counsel always follows up an initial settlement offer with a better offer a day or two later. Attorney declined the offer immediately, knowing from experience that a better offer was forthcoming. When Attorney met Client at the courthouse the following Monday for the first day of trial, he mentioned that he was encouraged by the opposing party's initial offer the previous week, which he had declined, because it meant that a more generous offer was on the way any time. Client was surprised that Attorney had not consulted with him about the offer, but he accepted Attorney's explanation for declining it and agreed they would wait for the next offer. As both parties and their lawyers took their places in the courtroom, the opposing counsel passed a note to Attorney with a new settlement offer, and just as Attorney expected, it was much more generous. Attorney and Client agreed to settle the case right then, and avoided the inconvenience of going through a trial. Is Attorney subject to discipline?

Yes, because a lawyer who receives from opposing counsel an offer of settlement in a civil controversy must promptly inform the client of its substance prior to taking any action.

Attorney represents Client in patent infringement litigation. Client is a longtime business rival of the opposing party, and has successfully sued the opposing party before over an unrelated matter. The opposing party still loses his temper whenever someone brings up the previous lawsuit he lost, because he felt it was completely unfair and he nearly went bankrupt over it, and his marriage even failed due to the stress from the case and the burdensome verdict. On the eve of trial, Attorney mentions to Client that the opposing party will actually take the stand to testify in the case. Client instructs Attorney to bring up the time that Client won another lawsuit against the opposing party during cross-examination, merely to make the opposing party get upset. He assures Attorney that the opposing party will lose his temper on the stand, and will at least lose credibility before the jury, and may even slip and say something that would undermine his position in the case. Attorney simply refuses to bring up a matter merely to provoke an outburst from the opposing party during trial. Client believes Attorney has a duty to provide zealous advocacy and to pursue every advantage for Client's interests. Would it be proper for Attorney to refuse to bring up the prior unrelated lawsuit during his cross-examination, despite Client's instructions to do so?

Yes, because a lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

Client is the leader of a radical religious group that protests at the funerals of soldiers who died tragic combat deaths overseas. The protests are not against the war, however, but against society's increasing tolerance of homosexuality and gay marriage. Client and his followers stand outside the funerals as grieving family members arrive, and they hold large picket signs emblazoned with hateful sayings against homosexuals, some of which use shocking language. They also hold signs indicating they are happy that American soldiers die frequently, because they believe these deaths validate their point that the country is on the wrong course morally, and has become evil by being more tolerant. The group heckles those attending the funerals, but then disperses once the funeral ceremony starts. The group receives regular national media coverage because of the intentionally sensational and shocking nature of their protests. Client now faces a tort lawsuit by the father of a deceased soldier whose funeral the group picketed;the plaintiff claims intentional and negligent infliction of emotional distress. Client is certain that his First Amendment rights trump such subjective-harm tort claims, and has a recent Supreme Court case supporting his position. Client asks Attorney to represent him in the matter. Attorney reluctantly agrees to take the case and the trial court gives an unfavorable verdict against Client. After the case, reporters interview Attorney asking how he could represent such a client and Attorney states during the interviews that he did not necessarily endorse the client's religious, social, moral, or political views, but was merely providing representation. Are Attorney's actions proper in this case?

Yes, because a lawyer's representation of a client does not constitute an endorsement of the client's political, economic, social, or moral views or activities.

A billionaire business owner decided to run for high-level public office. The billionaire candidate's platform includes a strong commitment to use military force, if necessary, to protect international human rights in foreign nations, especially rights for women, children, and grown men. A college student who operated a radical political blog wrote a blog post saying that the billionaire is "the real face of international terrorism" because the student strongly disagreed with the candidate's foreign policy commitments involving military force. The blog post also called the candidate "another Hitler," who would probably bring "another Holocaust in the nation of Africa." The insults deeply hurt the billionaire candidate's feelings, so he filed a defamation suit against the student blogger, who had not even bothered to spell the billionaire's name correctly. He also vowed that if he were to win the election, he would seek to revoke the citizenship of the blogger, who was born in the United States, and have him deported as an illegal alien to "some hostile nation, such as France." The student immediately filed a motion to dismiss under the state's anti-SLAPP statute, requested a stay of discovery, and asked that the billionaire should have to pay the student's legal costs and fees. Could the billionaire suffer all these adverse results for his defamation suit?

Yes, because anti-SLAPP ("strategic litigation against public participation") statutes are very common and often impose such penalties on public figures who file defamation suits.

Client is ordered to receive child support from her ex-husband. Client's ex-husband stopped making child support payments 12 months ago. Client hires Attorney to handle the enforcement of child support against Client's ex-husband. Attorney agrees to take the case on a contingency basis because Client cannot afford to hire an attorney since she has not been receiving child support from her ex-husband. Client also asks Attorney to pay her court costs, as she cannot afford those either. Attorney prepares a contract that states Attorney will only be paid for his representation if Client prevails on the enforcement motion, but that court costs will be reimbursed by Client within 30 days of the finalization of the case regardless of whether Client prevails. Is Attorney's conduct proper?

Yes, because attorneys may accept cases on a contingency basis in domestic relations issues if the case is strictly intended to enforce a prior order, and attorneys may pay for court costs for clients.

Attorney agrees to represent Client, and obtains Client's written consent to divide the fees with a lawyer in another state, as the trial will occur in the other jurisdiction, but most of the discovery and pre-trial work will occur in the state where Client and Attorney reside. The other lawyer, a well-known litigator and courtroom advocate, will handle the actual trial, but Attorney will handle nearly all of the discovery, settlement negotiations, and pre-trial motions. The case settles the day before the trial was to begin, so the other lawyer did not have to do anything except his usual trial preparation. Attorney had agreed beforehand with the other lawyer to divide the fees in half between them, and that Attorney would take full responsibility for the representation as a whole. Client had agreed to this beforehand, in writing. Attorney sends Client the expected bill at the resolution of the matter, with half the fee going to Attorney and half the fee going to the other lawyer. Could Attorney, or the other lawyer, be subject to discipline for this fee arrangement?

Yes, because division of a fee between lawyers who are not in the same firm may be made only if the division is in proportion to the services performed by each lawyer, if they do not assume joint responsibility for it.

Attorney represented Client in an action for replevin. After the filing of the case, but before the court had sent any notices about the docket number, Attorney spoke to a clerk at the courthouse, and inquired whether the case had received an assignment yet to a judge. The clerk said it was still unassigned. Attorney then asked the clerk to mention to the Director of Judicial Administration, who was also the Chief Presiding Judge, that they should not assign the case to a particular judge, who was notorious for having a biased against parties like Attorney's client, and who had an extraordinarily high reversal rate from the appellate courts in replevin cases. The clerk said he would mention the conversation to the Director, which he did. The Director said she could not accommodate special requests from lawyers regarding case assignments, but when it came time to assign the case, she assigned the case to another judge merely to avoid another embarrassing reversal from the appellate courts. Was it improper for Attorney to ask the clerk to pass his concerns along to the Director?

Yes, because during a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceeding, such as judges, masters or jurors, unless authorized to do so by law or court order.

Attorney represents Client in a litigation matter. Client was not present during the last pre-trial hearing at which the lawyers argued about whether certain experts on each side could testify at trial. The trial was to start the following week. At the end of the hearing, the opposing counsel asked the court to have the record sealed in the upcoming trial, and to have reporters banned from the courtroom. He explained that the testimony at trial would necessarily reveal some of his client's trade secrets, and it was important to the client to keep the trial records sealed. The judge was amenable to this suggestion and asked Attorney if he had any objections. Attorney tried to call Client, but Client did not answer his phone right then. Attorney could not think of a compelling reason for Client to oppose the motion, so he agreed, and the judge set the matter for a sealed-record trial. Three hours later, Client returned Attorney's call, and Attorney explained what had transpired. Client was dismayed because he had planned to use this litigation as a test case for subsequent litigation over the same type of issue, but Attorney explained that it would now be difficult to get the judge to reverse course on this point. Was it proper for Attorney to agree to the request without obtaining Client's prior consent?

Yes, because during a trial, when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation, as long as the lawyer promptly informs the client of actions the lawyer has taken on the client's behalf.

Client hired Attorney to represent him in litigation because of Attorney's reputation for being the meanest, most aggressive litigator in town. Client is the defendant and Attorney bills by the hour. The judge in the case orders the parties to participate in a "caucused mediation" to encourage a settlement before trial. Attorney begins the mediation by declaring that his client is unwilling to compromise at all, even though Client had told him that they might settle the case for a reasonable amount. Attorney overstates the strength of Clients case and grossly understates the strength of the opposing party's position in what everyone knows is a close case. Attorney is merely posturing or bluffing in an effort to obtain a more favorable settlement for his client. Due to Attorney's hardline approach, the mediation drags on for several sessions spanning several days, and ultimately proves to be futile, so the parties schedule a trial. Is Attorney potentially subject to discipline for this approach in court-ordered mediation?

Yes, because even if the statements were not material facts, lawyers must make reasonable efforts to expedite litigation consistent with the interests of the client.

Attorney has represented Client on various small matters in the past. Client now needs representation for a more substantial matter involving a business transaction. During a phone call, Attorney agrees to represent Client at a slightly higher hourly rate, given the complexity of the matter, and when they meet to discuss the transaction in more detail, Attorney double-checks with Client about the fee arrangement verbally, explaining it carefully and answering any questions Client may have. Attorney and Client never formalize the fee arrangement in writing, but Attorney does send printed bills to Client periodically. Eventually, Client starts to feel that the representation is costing too much, and objects to one of the bills. Was it permissible for Attorney to have an oral agreement over hourly fees, without putting the fee agreement into writing?

Yes, because even though it is always preferable to have fee agreements in writing, it is not required in this type of case.

Attorney represents Client in a litigation matter. Client was not present during the last pre-trial hearing at which the lawyers argued about whether certain experts on each side could testify at trial. The trial was to start the following week. At the end of the hearing, the opposing counsel asked the court to have the record sealed in the upcoming trial, and to have reporters banned from the courtroom. He explained that the testimony at trial would necessarily reveal some of his client's trade secrets, and it was important to the client to keep the trial records sealed. The judge was amenable to this suggestion and asked Attorney if he had any objections. Attorney tried to call Client, but Client did not answer his phone right then. Attorney could not think of a compelling reason for Client to oppose the motion, so he agreed, and the judge set the matter for a sealed-record trial. Client never returned Attorney's call, and Attorney did not explain what had transpired until they arrived at the court for the first day of trial. Client was dismayed because he had planned to use this litigation as a test case for subsequent litigation over the same type of issue, but Attorney explained that it would now be difficult to get the judge to reverse course on this point. Is Attorney subject to discipline in this case?

Yes, because even when an immediate decision must be made during trial, and the exigency of the situation may require the lawyer to act without prior consultation, the lawyer must promptly inform the client of actions the lawyer has taken on the client's behalf.

Client asks Attorney to represent him in a complex corporate taxation matter regarding the taxable earnings of an overseas corporate subsidiary that pays its American employees by direct deposits to bank accounts in the United States. All of the overseas subsidiary's sales occur in the United States, but all its products and supplies it purchases overseas, and half the employees are foreigners. A dispute with the IRS over the matter has been going on for several years. Attorney never took a tax course in law school and has no practice experience in the area. Attorney needs more clients, so he agrees to take the case and to conduct the necessary study to provide adequate representation. Client agrees to those terms, and Attorney undertakes the representation. A few months later, due to a change in which political party controlled the White House, the IRS abruptly dropped the case against Client, so Client receives a satisfactory resolution to the matter. Would Attorney be subject to discipline for undertaking this representation?

Yes, because expertise in a particular field of law is a requirement in circumstances where the nature of the matter is complex and specialized, and the lawyer has no training or experience in the field.

Client hired Attorney to research the legality of a musical "mash-up," a sound recording that includes brief sound clips and samples from many other artists' commercial recordings. The client's particular approach puts it in the gray area around "fair use" and "composite works of art" under prevailing copyright law, and no court has yet ruled on the precise issue, though the question has been the subject of seventeen lengthy law review articles in the last two years, reaching a range of different conclusions. No litigation is pending and Client has not yet undertaken any activity that could constitute a copyright infringement;he is seeking reassurance before proceeding that he would not face liability for copyright infringement. Because Client primarily wants a memoranda of law answering his hypothetical legal question, he asks Attorney to limit his research and writing to two hours of billable time. Attorney agrees, spends an hour reading and an hour writing, and gives the Client a short memoranda. Given that the client's objective was limited to securing general information about the law the client needs, was it improper for Attorney to agree to this limitation on the scope of representation up front?

Yes, because given the complexity of the subject and the uncertainty about this particular point of law, two hours was not a reasonable amount of time to yield advice upon which the client could rely.

Client is a defendant in a criminal prosecution, and Attorney is his court-appointed defense lawyer. Client wants to testify at his own trial, despite Attorney's recommendations that he not do so. As they are preparing for trial, Attorney asks Client what he plans to say on the stand. Client's story seems suspicious to Attorney - he has serious doubts about its veracity - but Client insists that he is telling the truth, and Attorney is not sure. Does Attorney have an ethical duty to allow Client to give this improbable testimony at trial?

Yes, because in a criminal case, a lawyer cannot refuse to offer the testimony of a client where the lawyer reasonably believes but does not know that the testimony will be false;unless the lawyer knows that the testimony will be false, the lawyer must honor the client's decision to testify.

After much effort, Attorney located a witness who could fully corroborate his client's story and could impeach the testimony of the opposing party's star witness. The witness, however, was afraid of retaliation from others if she testified, and did not want to be involved. The witness also lives 1000 miles away and works as a waiter, so he cannot afford the travel expenses and lodging, and cannot afford to miss work, because he receives no wages if he does not work. Attorney offers to pay all the witness' expenses. Attorney then pays for airfare and pays to put witness in one of the nicest hotels in the city, and pays for all of witness' dining bills at expensive downtown restaurants. The witness reluctantly agreed. Was it proper for Attorney to offer to pay the expenses for a favorable witness to undergo the trouble of testifying at the trial?

Yes, because it is not improper to pay a witness' expenses, as long as Attorney does not offer to make pay the witness an inducement to provide favorable testimony.

Attorney is a busy litigator, but she is also a single mother of two young children. She has to pick her children up from daycare every weekday by 4pm. As a result, whenever she is scheduling hearings, conferences, settlement negotiations, or trial dates, she simply refuses to schedule anything in the late afternoon, as that could easily run into the time when she must pick up her children. The result is that her cases tend to stretch out over a long period, as she is available for hearings, trials, and other litigation-related meetings only in the mornings and early afternoons, and otherwise must seek postponements. Could Attorney be subject to sanctions for managing her schedule in this way?

Yes, because it is not proper for a lawyer to fail routinely to expedite litigation solely for the convenience of the advocates.

Attorney specialized in aviation law and airline litigation. Client sought to have Attorney represent her smaller airline in a high-stakes antitrust action against the four largest national airlines. The matter was likely to go on for more than two years. Attorney explained that taking the case would present him with a conflict of interest against the largest airlines in the country, and possibly with their affiliates, suppliers, contractors, and subsidiaries as well, which would severely limit Attorney's ability to represent any other clients in his area of specialty for a long time. He would have to seek to withdraw from representing a few existing clients, which was feasible, and would have to decline numerous future cases and matters. Client insisted on having Attorney handle her case, however, due to his specialized knowledge of the field. Attorney then offered to represent Client for quadruple his usual fee, or five times the fees customarily charged in the locality for regular legal services. In addition, Attorney explained that Client would have to pay a large retainer sum up front, against which Attorney would draw fees. Finally, Client would have to reimburse Attorney for every penny of expenses and costs incurred in-house, such as photocopies and telephone calls, plus any costs and expenses incurred from outside services providers such as court reporters or experts. Client was astonished at the exorbitant fees, which she realized would quickly run into hundreds of thousands or millions of dollars, but she reluctantly agreed because she felt she had no real choice. Attorney memorialized their agreement in writing, and obtained client's signature on it. Was the fee agreement reasonable, according to the Rules of Professional Conduct?

Yes, because it was apparent to the client that the acceptance of the particular employment will preclude other employment by the lawyer

Attorney uses an outside billing service to track client billing and send bills to clients each month. Attorney keeps track of his time, and submits computerized reports by email to the billing company at the end of each workday about how much time he spent on which tasks for which clients. The billing company calculates the monthly totals and sends detailed bills to clients on Attorney's behalf. Attorney found this outside billing company online, visited their website, downloaded their app, and used their online lawyer registration form to create an account with the company. At one point in setting up the account and downloading the app, Attorney had to click on an "I accept the terms and conditions" of a long user agreement that Attorney scrolled through quickly, without reading. Clients are not aware that Attorney uses an outside billing service until they receive their bills. Has Attorney violated his ethical duties to his clients?

Yes, because submitting the client names, time worked, and tasks involved constitutes a disclosure of confidential information for which clients must provide informed consent beforehand.

Defendant was indigent and received court-appointed defense counsel, Attorney, in his felony larceny case. Defendant insisted that he was completely innocent and that he would not accept any plea bargains, because he wanted an opportunity to prove his innocence at trial. When Defendant told Attorney his expectations, Attorney explained that there is a special type of plea called an "Alford Plea," in which a defendant may agree to accept a conviction while still contesting his guilt or maintaining his innocence. Defendant refused, and told Attorney, "Do not even contact me with offers from the prosecutor for a guilty plea. I will not plead guilty, but will prove my innocence in a court of law!" The prosecutor indeed made several plea offers, and each time Attorney presented the offer to Defendant, who rejected it and reminded Attorney that he did not want to be bothered with any offers to "make a deal." Defendant's hard line proved effective as a negotiating strategy, and eventually the prosecutor called Attorney to say they would reduce the charges to a misdemeanor and the sentence to "time served" if Defendant would plead guilty. Attorney thought this was a ridiculously generous offer but simply rejected it without consulting his client. Client proceeded to trial and the jury convicted him, and he received the maximum possible sentence for the crimes charged. Was it proper for Attorney to reject the final plea bargain offer without informing the client?

Yes, because the client has previously indicated that the proposal will be unacceptable and has authorized the lawyer to reject the offer

Attorney represents Client in a misdemeanor criminal matter involving minor vandalism. Attorney interviews the victim, who incurred the property damage, hoping to learn more about the value of the damage and how frequently vandalism occurs in that neighborhood. The property owner explained to Attorney that Client had been demanding "protection money" from him and other business owners in the neighborhood for a long time, and that the vandalism followed his refusal to continue paying the protection money. The amount involved was substantial, and Attorney realized that Client could face much more serious charges for extortion. Attorney never discussed this with Client, and Client gladly accepted a plea bargain offer for a few months' probation on the misdemeanor vandalism charge. Several years later, Client died in a car accident, and the property owner became a business-world celebrity when he published a book about how businesses transform neighborhoods. A reporter eventually found Attorney and interviewed him about the vandalism incident, several years prior, that had damaged property owner's building at the time. Attorney explained that the incident was actually part of a larger extortion operation and that the business owner had handled the matter nobly. Should Attorney be subject to discipline for this disclosure?

Yes, because the confidentiality rule applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.

Attorney represented Client, who was a defendant in a criminal prosecution. Client's trial ended in a conviction and a life sentence. After all possible appeals were complete, Attorney's representation of Client ended. Attorney sent Client a letter, which Client received in prison, explaining that his representation was now ending and providing a detailed accounting of all billing matters. No outstanding bills remained. Several years later, Attorney met with some former law school classmates at an alumni event, and they swapped stories over drinks about some of their cases over the years. Attorney mentioned Client, but only by first name, and explained how the guilty verdict felt like a failure on his part even though he knew Client was guilty because Client's friends and family members had all witnessed the crime and told Attorney privately what they had seen. Could Attorney be subject to discipline for disclosing confidential client information?

Yes, because the duty of confidentiality continues after the client-lawyer relationship has terminated.

Attorney was a new law school graduate, and had recently moved to a new town and opened a practice there. Client met with Attorney to discuss representation in a rather simple personal injury lawsuit against the town's largest company and major employer, with the municipal government and local hospital added as co-defendants. Client explained that she had already gone to consultations with every other plaintiff's firm in the town, and that each one declined her case because it presented conflicts of interest for them, as many of their other clients worked for, or were under the ownership or control of, either the town's largest company, the city government, or the local hospital. Attorney quickly realized that he was probably the only lawyer in town who could represent Client in this action, as he was too new in town to have any conflicts of interest. The other potential clients of the lawyer were all domestic relations cases that presented few hurdles with conflicts of interest. Attorney offered to represent Client for four times his usual fee, which would be five times the fees customarily charged in the locality for regular legal services. In addition, Attorney explained that Client would have to pay a large retainer sum up front, against which Attorney would draw fees. Finally, Client would have to reimburse Attorney for every penny of expenses and costs incurred in-house, such as photocopies and telephone calls, plus any costs and expenses incurred from outside services providers such as court reporters or experts. Client was astonished at the exorbitant fees, but she reluctantly agreed because she felt she had no real choice. Attorney did memorialized their agreement in writing. Is Attorney subject to discipline for this fee agreement?

Yes, because the fee is unreasonably high and is merely exploiting the client's predicament.

Attorney is representing a client who is a notorious celebrity-turned-criminal in a criminal case involving drug charges. Attorney is confused about whether he may publicly disclose information that he learned in confidence from his client if the information is already a matter of public record, and his research indicates there is a split of authority on this question. Attorney calls another lawyer who specializes in lawyer malpractice and lawyer disciplinary matters to seek advice about what course of action would comply with the Rules of Professional Conduct. The other lawyer, an expert in legal ethics, agrees to provide an opinion and to keep the conversation a secret. Attorney tries to use a hypothetical to explain the problem, but given the client's national reputation and celebrity status, the other lawyer knows immediately who the client is, and can easily surmise the nature of the confidential information. In addition, Attorney mentions that his client is secretly a bisexual and has been having an affair with both the male and female hosts of a nationally televised morning talk show, though neither of them is aware that the other is having an affair with the same person. Is Attorney subject to discipline for disclosing confidential information about his client?

Yes, because the lawyer revealed more client information than was necessary to secure legal advice about the lawyer's compliance with the Rules

Client sought to have Attorney represent her as the defendant in a litigation matter. Client had previously retained another lawyer in the same matter, but two weeks before trial was to begin, the opposing counsel had moved to have her lawyer disqualified due to her lawyer having a conflict of interest with the opposing party, who was the lawyer's former client. She needed a new lawyer immediately as the trial date was now only ten days away. Attorney agreed to represent her for a much higher fee than he would customarily charge, which was also much higher that the customary fee for legal services in that locality. Client was upset about the seemingly exorbitant fee, and she said that she felt that Attorney was exploiting her predicament. Attorney carefully explained that the fee agreement was hourly, and client would be responsible for all costs and expenses in addition to the hourly fees, and would even have to reimburse Attorney for in-house expenses such as photocopying. Attorney never memorialized the agreement in writing it was merely an oral agreement for fees, and Attorney commenced his representation. Attorney did not prevail at trial and Client had to pay the plaintiff an enormous amount of damages. Was Attorney's conduct proper?

Yes, because the reasonableness of a fee depends in part upon the time limitations imposed by the client or by the circumstances.

A lawyer is representing the defendant in a highly publicized civil trial between two celebrities. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that the (unrelated) criminal trial happening at the courthouse that day is far more important, and he expresses regret that he is not involved in that case at all. He states that he believes the criminal case should result in an acquittal because the police (who are testifying as witnesses in the case) violated the defendant's civil liberties, and because the relevant penal statute itself, which furnished the basis for charges in the case, violates the Bill of Rights. His own civil case, he says, is a brief matter scheduled for a one-day trial, so he hopes to observe the closing arguments tomorrow in the important criminal case in the other courtroom. Were the lawyer's statements proper?

Yes, because the rule limiting trial publicity applies only to lawyers who are, or who have been involved in the investigation or litigation of a case

Client intends to purchase a parcel of real estate, and retained Attorney to analyze the seller's title to the property. Attorney requests information from the seller regarding the seller's original acquisition of the property, and also obtains information from the local tax assessors and title registry. Attorney concludes that the seller does not have clear title to the property, and informs seller of this opinion when the seller asks him about it. Seller forbids Attorney to disclose the information to the prospective purchaser of the property and insists that he showed Attorney his documents about the original acquisition of the parcel with the understanding that Attorney would not say anything unfavorable. May Attorney inform the prospective purchaser of his opinion about the title?

Yes, because the seller does not have a client-lawyer relationship with the attorney.

Attorney was a criminal defense lawyer and she represented Client, who was a defendant in a criminal prosecution. The prosecution called Attorney to the witness stand to authenticate a piece of evidence, which Attorney was willing to do because the authenticity of the evidence was not really in dispute Attorney planned to use alibi evidence to defeat the charges against Client, which would make this piece of evidence relatively unimportant to the case. May Attorney testify in this manner in a case in which she represents the defendant?

Yes, because the testimony relates to an uncontested issue.

Client wants to sell a parcel of commercial real estate, and he hired Attorney to represent him in the matter. As part of the representation, Client asked Attorney to prepare a thoroughly researched opinion memorandum concerning the title of the property, for the information of a prospective purchaser and the purchaser's prospective lender. Attorney gave the title opinion to Client, who gave it to the prospective purchaser, who in turn submitted it to the prospective lender. The prospective lender received and reviewed Attorney's title opinion, but was not aware that the lawyer who prepared the title opinion represented the seller of the property rather than the buyer. Could Attorney be subject to discipline for failing to disclose explicitly in the memorandum what party he represents and that he has a duty of loyalty and confidentiality to the seller?

Yes, because the title opinion should identify the person by whom the lawyer is retained, and should make this clear not only to the client under examination, but also to others to whom the results are to be made available.

Attorney and his partner sued Conglomerate Corporation in a Nicaraguan court for injuries sustained by local farmers from the toxic effects of a pesticide made by Conglomerate Chemical Company, a closely held affiliate of Conglomerate Corporation. Both companies have headquarters in Texas. Conglomerate Chemical Company was not a party in the litigation in Nicaragua, and the Nicaraguan court rejected Conglomerate Chemical Company's attempt to intervene in the case. Nevertheless, at the end of the case, the Nicaraguan court was confused and entered a billion-dollar judgment against Conglomerate Chemical Company, which had manufactured the pesticide, rather than Conglomerate Corporation, which had participated in the lawsuit. Attorney and his partner then brought an action to enforce the judgment against Conglomerate Chemical Company in Texas courts. Conglomerate Corporation, which actually participated in the litigation, is now judgment proof. The trial court dismissed the enforcement action because Conglomerate Chemical Company was not a party to the litigation that ended in the judgment that Attorney sought to execute. Attorney then appealed the decision, still hoping to execute the billion-dollar judgment against the wrong legal entity. Are Attorney and his partner subject to discipline for bringing a frivolous action and appeal?

Yes, because they pursued the attempt to execute a foreign judgment in the United States against a company that had not participated in the litigation.

Attorney has represented Client on a number of matters. Most recently, Attorney has represented Client in a litigation matter against the city's largest manufacturer. The manufacturer, whom Attorney is suing on behalf of Client, is both the city's largest employer and the largest purchaser of goods and services from small businesses in the area. As the discovery phase winds to a close and the court sets a trial date, Attorney learns that Client misused Attorney's services in the past to perpetrate fraud by having Attorney submit falsified documents to government entities and to insurance companies. Attorney is furious and yells at Client, using profanity. Attorney then petitions the court to let him withdraw from the representation, stating the reasons in general terms that do not betray specific client confidences. Client strongly objects to Attorney withdrawing from the representation, because the trial is only two months away, and all the other litigation firms in the city have conflicts of interest that prevent them from taking a case against the large manufacturer. It is indisputable that the withdrawal is materially prejudicial to Client, who may have to proceed into the trial pro se or have to find a new lawyer from out of town. The court is willing to postpone the trial by three weeks to give Client time to find a new lawyer or prepare to represent himself. Is it proper for Attorney to withdraw from representation in this case, if the court has no objection?

Yes, because withdrawal is permissible if the client misused the lawyer's services in the past, even if the withdrawal would materially prejudice the client.

Attorney represents Client in a guardianship proceeding. Client is an adult with Down's Syndrome and has an IQ far below average, in the "mental retardation" range of the DSM-IV. Client's family is trying to have Client institutionalized involuntarily, and Client is fighting this, wanting instead to live semi-independently in a group home. With the help of a social worker, Client has hired Attorney to defend him against the legal proceedings to have Client institutionalized permanently. Having researched this type of case, Attorney knows that case precedents give Client a small chance of prevailing in regular state court, but a good chance of prevailing if Attorney can change the venue to family court or probate court. Attorney has not discussed with Client his decision to seek a change of venue that would be more favorable to Client under that jurisdiction's recent appellate decisions. Switching venue, however, will mean traveling much further (more than an hour) to the proceedings. Is it proper for Attorney to leave Client out of this decision entirely?

Yes, fully informing the client according to the usual ethical standards may be impracticable, because the client suffers from diminished capacity.

Attorney works as a public defender, and she feels completely overwhelmed. Her caseload is so heavy that she has started to double-book two or more trials for the same day, counting on one or more of them to resolve in a plea-bargain agreement before trial. Most clients meet her only for a few minutes before their plea bargaining session, and she emphatically insists with her clients that they accept the prosecutor's second or third offer for a deal. When her cases go to trial, she must waive voire dire entirely, and often does no factual investigation or case research - yet she still wins acquittals in many cases because she is very gifted at destroying the credibility of hostile witnesses during cross-examination. It is now clear to her that she cannot meet the basic ethical obligations required of her in representation of her existing clients. Must Attorney withdraw from representing some of her current clients?

Yes, if she cannot fulfill her ethical duties, she must not continue representation of her current clients.

Attorney represents a small business in a contract dispute with one of its suppliers. Attorney meets with the employees of his client, in groups of four or five at a time, and explains that there is litigation pending, that Big Firm is representing the supplier, and that they should simply decline to discuss the case with anyone, especially lawyers from Big Firm. Was it proper for Attorney to ask the employees not to talk to the other party?

Yes, the Rules of Professional Conduct permit a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client.

An insurer retained Attorney to represent it in a matter, and requested a retainer agreement that limited the representation to matters related to the insurance coverage. The insurance was a homeowner's policy for damage to the policyholder's residential real estate, and included a rider for premises liability. The incident that triggered the claim, however, involved the brutal murder of a woman and her two young children across the street from the house in a neighbor's driveway. Due the limited scope of his representation, however, Attorney ignored the horrific deaths and the fact that the known killer had escaped conviction on a technicality. In a cool and calculated matter, Attorney focused his work exclusively on the property damage from the incident and the premises liability, and obtained a favorable outcome for the insurer. Was it proper for Attorney to limit the scope of his representation in this way?

Yes, when an insurer retains a lawyer to represent an insured, the representation may be limited to matters related to the insurance coverage;a limited representation may be appropriate because the client has limited objectives for the representation.

A lawyer is representing the defendant in a highly publicized trial. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that the prosecutor already held a press conference in which she shared that the defendant had refused to take a polygraph test, that DNA tests had confirmed the defendant's guilt, and that the defendant had refused several offers of guilty pleas. To set the record straight before trial, the defense lawyer explains that his client had actually agreed to take a polygraph test but that none had occurred. He adds that defense experts would testify about problems with the DNA tests, and that the plea offers had all been the same (a life sentence instead of the death penalty) and were unacceptable to the client. Were the defense lawyer's statements proper?

Yes, when prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding.

Attorney represents Client in a transactional matter, a complex business merger. The parties have agreed in advance, by contract, to engage in good-faith negotiations, but that if an agreement does not emerge within six months, either party can abandon the deal and cease negotiations. Three months into the negotiations, the parties are very close to a final agreement. Attorney has been conducting the negotiations without Client present, checking in with Client from time to time. One day, the other party presents a detailed proposal that would resolve all remaining issues, and would give each side most of what it wants, but also requires a few concessions from each party. Attorney calls Client immediately and gives a brief overview of the new proposal, hitting most of the highlights and carefully explaining the bottom-line concerning the final buyout price to complete the merger. Client gives Attorney consent to consummate the agreement. Could Attorney be subject to discipline for how he handled the final agreement?

Yes, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement, and the facts suggest that Attorney did not necessarily explain all the concessions that Client would have to make.

Attorney agreed to defend Client in a lawsuit over the breach of an oral agreement to sell a particular breeding cow, which turned out to be already pregnant at the time the parties made their agreement. Client had agreed to sell the cow to another rancher, and received payment, but before delivery of the cow to the purchaser, Client claims the cow became pregnant. Client now wants to renege on the agreement because delivering a pregnant cow to the purchaser would be like giving the purchaser one animal (the expected calf) for free, which he cannot afford to do. Client wants Attorney to assert a mistake of fact defense to the oral contract, claiming that neither he nor the purchaser knew or could have known that the cow was pregnant at the time of sale or would somehow become pregnant in the short time between payment and delivery. Attorney conducts some research on prior court decisions and concludes that mistake of fact claims usually lose in scenarios like this. Worse, in his various discussions with Client, the story has changed a little each time, so that Attorney now suspects Client either is lying or is so confused that he will not be a credible witness at trial. Attorney would like to withdraw before filing an answer to the lawsuit asserting a defense of mistake of fact, because he knows they will probably not win, and he is not even sure now if his client is telling the truth. Client insists that Attorney should file the answer before withdrawing from the case, so that Client does not miss the deadline and face a default judgment, but does not mind if he must find another lawyer to handle the discovery and trial phase. Would it be improper for Attorney to file the answer to the pleadings, asserting a mistake of fact defense?

No, because the client's defense has some basis in fact and law, even if it seems improbable in both regards.

Attorney agreed to represent a tenant in an eviction proceeding in housing court. Client was facing eviction for nonpayment of rent. Attorney formalized his representation agreement with Client, and filed an appearance in the local housing court, where the eviction was on the docket. The court docket had Client's hearing scheduled for one month later. Four days after filing his appearance, Attorney received a phone call from Client saying she no longer wanted him to represent her, because she wanted to represent herself instead. She offered no reason for discharging Attorney, and conceded that he had done nothing wrong. Attorney tried to persuade her to change her mind, but she was insistent, so Attorney said he would send her all the documents from her case. Attorney then drafted a letter acknowledging the termination of representation, and sent it along with copies of the court documents he had pertaining to Client's case. The letter returned three days later to Attorney, marked "Undeliverable: Not At This Address." Concerned, Attorney tried calling Client, but her phone number was no longer in service. Attorney even tried visiting her apartment, but no one answered the door. Attorney did receive, however, a postcard reminder from the clerk at the housing court about the upcoming hearing. On the date of the hearing, Attorney decided he should appear in person to notify the judge that Client had discharged him and that he was withdrawing from the case. Attorney arrived at housing court, but Client never appeared. When the clerk called Client's case, Attorney stood and explained to the judge that Client had fired him a few weeks prior, and that he needed the court to approve his withdrawal from representation. The judge refused to permit Attorney to withdraw from the case and ordered him to proceed with the representation, because otherwise a default judgment would enter against the tenant for failure to appear. The hearing then proceeded as scheduled, in Client's absence, with Attorney presenting the same defense for nonpayment of rent that he would have presented even if Client had not discharged him. Ultimately, the court ruled in favor of the landlord and ordered the eviction of the tenant. Was it improper for Attorney to represent Client at the hearing after Client had discharged him?

No, because the court refused to grant Attorney leave to withdraw from the case, despite the Client's attempt to discharge the lawyer.

Client hired lawyer to defend him in a criminal matter regarding the murder of Client's girlfriend. During Attorney's interviews and investigation for this case, he learns that Client has also been committing identity theft and credit card fraud, obtaining credit cards in the names of other individuals, and running up charges on the cards without paying the bills, so that the individuals whose names are on the cards will have to pay instead. Attorney urges Client to stop this practice, and Client merely laughs at him. Attorney continues his representation of Client and wins an acquittal on the murder charge. The representation is now over. May Attorney warn some of the individuals in whose names Client has obtained credit cards, according to the Model Rules of Professional Conduct?

No, because the exception that permits disclosure 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 applies only when the client has used or is using the lawyer's services in furtherance of the crime or fraud.

Attorney explains to Client that certain features of Client's business proposal would constitute money laundering under current federal statutes. Attorney explains the statute in detail, and explains why the course of action would meet the statutory definition of money laundering. Attorney explains the various monitoring and reporting mechanisms that federal enforcement agencies have in place to detect money laundering, in an attempt to convince Client that he would not escape arrest and prosecution if he proceeds. Client absorbs the information and uses it to structure a more elaborate money-laundering scheme that exploits some ambiguity in the statute and the reporting requirements to make his enterprise much more difficult to detect, and complicates enforcement and prosecution efforts against him. Attorney's advice turned out to be incredibly useful to Client in avoiding detection and expanding his criminal enterprise. Is Attorney a party to Client's course of action?

No, because the fact that a client uses advice in a course of action that is criminal or fraudulent of itself does not make a lawyer a party to the course of action.

Client met with Attorney for a free consultation, and explained that she had met with two other lawyers for consultations and that she planned to hire one of the three to provide the legal services necessary to set up her professional business. Attorney needed to make a good impression on Client, so he mentioned a few prominent accountants and physicians in town whom Attorney had represented and helped with incorporating their partnerships or practice groups. These former clients had never explicitly authorized Attorney to disclose his representation of them in these matters. Client hired Attorney, and Attorney provided the legal services necessary to set up her business. Unfortunately, a dispute arose between Client and Attorney over the fees, and this fee dispute turned into litigation between Attorney and Client. In order to support his claims and defenses in the fee dispute, Attorney had to disclose to the tribunal exactly what he did for Client and the complexity of the issues involved, which necessarily involved the disclosure of confidential information. Was it proper for Attorney to mention his representation of identifiable former clients to a prospective client in a situation where it seemed necessary to impress the prospective client?

No, because the former clients did not authorize Attorney to disclose that he had represented them or the nature of the matters involved in the representation.

Attorney represents a small business in an enforcement action brought by the National Labor Relations Board over violations of the laws protecting unionized workers. Attorney meets with the employees of his client, in groups of four or five at a time, and explains that there is litigation pending, that government lawyers are representing the NLRB, and that they should simply decline to discuss the case with anyone, especially lawyers from the government. Was it proper for Attorney to ask the employees not to talk to the other party?

No, because the lawyer could not reasonably believe that the employees' interests will not be adversely affected by refraining from giving such information.

A trial judge is going through a divorce, and he hired Attorney to represent him. Attorney's law firm partner is representing another client who is appearing before the same judge in his personal injury lawsuit. The judge and the litigation client both give written informed consent to the representation despite the potential conflicts of interest. Even so, the judge is trying to keep the divorce quiet until after the upcoming elections, because this occurs in a state with elected judges. The judge therefore refuses to disclose to the parties in the personal injury case that counsel for one side is from the same firm as the lawyer representing the judge in his pending divorce. Neither Attorney nor his partner can reveal to opposing counsel in the personal injury case that their firm represents the judge, due to their duty of confidentiality. The judge believes he will be unbiased in the personal injury case, despite the fact that he is the client of a partner of one of the lawyers in the case, so the judge does not need to disqualify himself from the case. The Code of Judicial Ethics does require, however, that the judge disclose the representation to the litigants appearing before him, which the judge has refused to do at this time. Can Attorney continue representing the judge in his divorce?

No, because the lawyer is obligated to withdraw from the representation of the judge under these circumstances

Attorney represents Client in a civil litigation matter. As they prepare for trial, at which Client will testify as a witness on his own behalf, Attorney realizes that Client is probably not going to tell the truth, even though Client insists he will be completely truthful. Attorney believes there is some chance that Client is indeed telling the truth, but he is about 70% certain that Client is being untruthful, despite Client's protestations. Does Attorney have an ethical duty to try to prevent Client from presenting testimony that Attorney believes is probably false?

No, because the prohibition against offering false evidence only applies if the lawyer knows that the evidence is false, and a lawyer's reasonable belief that evidence is false does not preclude its presentation to the trier of fact.

Client, a convicted felon, is serving a thirty-year sentence in prison. Client discharged the lawyer who lost his criminal trial, and recently hired Attorney to handle his appeal in federal circuit court. Attorney has filed a preliminary notice of appeal, but briefs in the appeal are not due for several months, and oral argument will not occur until two or three months thereafter. Yesterday, Attorney received court appointments to handle last-minute appeals in three high-profile death penalty cases, in which the executions are on the schedule for the next few weeks. Attorney also took on a complex class-action suit by prisoners against the state Department of Corrections, which if successful would pay the Attorney several million dollars in statutory legal fees. Given the urgency of the death-penalty cases and the potential fees from the class action suit, Attorney decides to transfer Client's appeal of his life sentence to another competent lawyer, who is glad to take on the case. Client refused to grant Attorney permission to withdraw as counsel, though. Attorney mailed a letter to Client explaining that he was withdrawing from the case, and included all documents and papers relating to the representation Attorney also filed the appropriate notice with the appellate court. Is Attorney subject to discipline for withdrawing from the case over Client's objection?

No, because the withdrawal of representation in this case presents no material adverse effect on the interests of the client.

Attorney is a busy litigator. During one scheduling conference with the judge and opposing counsel, Attorney asked for a continuance (postponement) of a particular hearing until a later date because she planned to be on vacation in Europe during that time. The judge and the opposing counsel agreed. On another occasion, three months later, Attorney asks another judge to reschedule a hearing so that it will not fall on her anniversary, when she has dinner plans in the early evening. In that instance, which was not the same matter or client as the first instance, the lawyer for the other party complained about rescheduling for such a trivial reason, but the judge agreed to reschedule the hearing for a month later. Was it improper for Attorney to seek these postponements?

No, because there are occasions when a lawyer may properly seek a postponement for personal reasons.

A lawyer is representing the defendant in a highly publicized criminal trial. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that his client is still considering whether to enter a guilty plea to lesser charges, as the prosecutor's offer is still open, and that they are waiting to see how jury selection goes before deciding whether to plead guilty or proceed to trial. The lawyer also explains that his client has never actually confessed to the crime charged, despite several lengthy interviews with the police and the client's admitting that he was near the scene of the crime when it occurred. The lawyer has his client's permission to talk to the media, and the prosecution has expressed no objection to him giving interviews like this on the courthouse steps in previous cases. Were the lawyer's statements proper?

No, because there is a presumption of prejudicial effect on the proceedings when a lawyer comments publicly about the possibility of a guilty plea, or a party's refusal to confess to a crime

Attorney seeks to represent a class of plaintiffs in a class-action lawsuit over lethal effects of a popular energy drink. The class action will have three named plaintiffs and approximately two thousand unnamed plaintiffs. After the class action lawsuit is underway, Attorney has the opportunity to represent another plaintiff in a personal injury case over a traffic accident, and the defendant is one of the unnamed members of the class action lawsuit over energy drinks. Must Attorney obtain written consent of the unnamed class member before representing the second client in suing the unnamed class member?

No, because when a lawyer represents a class of plaintiffs in a class-action lawsuit, unnamed members of the class are not clients of the lawyer for purposes of conflicts rules;the lawyer does not need to get the member's consent before representing a client suing the person in an unrelated matter.

Client hired Attorney to represent him in a divorce proceeding and custody battle over Client's children. At one point, Client explains to Attorney that if he loses custody of the children to his estranged spouse, he has detailed plans to murder the spouse and make it look like a suicide, so that he can regain custody of his children. Attorney believes that Client could plausibly carry out this plan successfully, and Attorney is reasonably certain that Client will indeed lose custody of the children in the current proceeding. May Attorney immediately warn the estranged spouse, the tribunal, or the police about Client's plan?

No, because whenever practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure.

Client fired Attorney after two weeks of representation, long before the matter was complete. Client had prepaid a large refundable retainer, against which Attorney was to draw his fees and the representation went on. Client therefore has fully paid her fees up to that point to Attorney. Attorney is very upset about Client discharging him without cause and believes it is unfair and wrongful. Attorney refuses to return the remainder of the fees, and refuses to turn over any documents from the representation to Client. Is it proper for Attorney to take this course of action, if indeed Client had no good reason to discharge Attorney?

No, it is improper for Attorney to retain either the unused funds or the documents.

A lawyer is representing the defendant in a highly publicized personal injury trial between a celebrity plaintiff and a famous hotel, where the plaintiff claims to have suffered injuries due to unsafe conditions. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that his client has already made renovations to the hotel to ensure that no accidents happen in the future, even though they do not admit liability in the present case. He also explains that if his client loses, his insurance company will simply pay the damages, and lawsuits like this make everyone's insurance premiums go up. The lawyer has his client's permission to talk to the media. Opposing counsel is standing nearby waiting for his turn to talk, and he expresses no objection to the first lawyer giving interviews like this, or to the lawyer's comments. Were the lawyer's statements proper?

No, it violates the Model Rules for a lawyer to make public statements about information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial;the defendant's insurance and post-accident renovations would clearly be inadmissible at trial due to their potential for prejudicial effect.

Businesswoman hired Attorney to represent her in a tax dispute with the government, in which the government accused her of hiding assets in overseas accounts and failing to report income from certain obscure investments. During this representation, Attorney learned extensive private financial information about Businesswoman, but the representation ended at the resolution of the tax case. Several years later, after the termination had ended, the husband of the Businesswoman filed for divorce. Attorney was the only lawyer the husband knew, so he retained Attorney to represent him in the divorce against Businesswoman. Businesswoman's lawyer moves to have Attorney disqualified from representing the husband, but Attorney claims that the matters were not substantially related enough to merit disqualification. Is Attorney correct?

No, matters are "substantially related" if there is a substantial risk that confidential factual information that would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter, such as personal financial information.

A lawyer is representing the defendant in a highly publicized trial. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that the prosecutor already held a press conference in which she shared that the defendant had refused to take a polygraph test, and that DNA tests had confirmed the defendant's guilt. The lawyer explains that polygraphs tests are inadmissible due to their unreliability, and that the DNA results are in dispute and will be the subject of expert testimony at trial. He adds that the sleazy prosecutor has a habit of holding such press conferences to trial to prejudice the proceedings before every criminal trial, and that it merely reveals that the prosecutor's cases are too weak to win on the merits without such stunts. His client, he says, is now guilty until proven innocent, which is a shame considering the serious criminal charges in the case. He also mentions that the state's star witness is a dangerous convicted felon who is testifying in exchange for early release from prison. Were the defense lawyer's statements proper?

No, such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.

Client hired Attorney to represent him in a criminal matter. Client faces charges for abducting a young girl from her home three months ago. Attorney learns from Client that Client indeed abducted the girl, that the girl is probably still alive and hidden in a secluded location, and that the child was left alone, locked in a car trunk, with some food and water two weeks ago when police arrested Client. Client refuses to disclose the location of the girl to authorities. There is a chance that someone may happen upon the car where the girl is trapped and help her. Does Attorney have a duty to disclose the location of the girl to authorities or the parents in order to save the girl's life? (Answer according to the Model Rules of Professional Conduct, NOT the Texas rules governing this situation).

No, the Rules of Professional Conduct do not require the lawyer to reveal the client's misconduct or the girl's location.

Attorney worked for several years as a city attorney for a large municipality in its employment litigation division, defending the municipality against employment-related lawsuits from city employees, including discrimination claims. Attorney then left that position and went to work for a federal regulatory agency, the Equal Employment Opportunity Commission. The EEOC is sometimes an adverse party to the municipality where Attorney once worked. Even when not involved in the same matter or litigation, their goals and interests are often adverse, as the city attorneys are usually arguing for limitations on employer liability in discrimination cases, while the EEOC generally seeks to expand protections for workers against discrimination by employers. At her new position, Attorney has no assignments that are the same cases or matters in which she participated as a city attorney, but there are a number of cases pending in the office that are adverse to the interests of her former employer, and some in which they are opposing parties in the same litigation. Must the EEOC screen Attorney from such cases in the same way that a private firm would need to do under the Rules of Professional Conduct?

No, when a lawyer is employed by a city and subsequently is employed by a federal agency, the latter agency is not required to screen the lawyer.

Which of the following is NOT one of the reasons that a conflict of interest might be "nonconsentable" under the Rules of Professional Conduct?

One of more clients pay the lawyer lower fees than the other(s)

As mentioned in class, what is currently the trend for the number of malpractice claims?

Steadily increasing

Attorney agreed to represent plaintiff in a lawsuit. Attorney was in the middle of a three-week trial at the time, however, so he did not start working on the new client's case immediately. By the time Attorney began investigating the case and drafting the pleadings, he discovered to his horror that he had already missed the statute of limitations for filing the lawsuit. Attorney files the pleadings anyway, knowing that the other party will file a motion to dismiss the case based on the statute of limitations within a month or so. Must Attorney withdraw from representation at this point?

Yes, Attorney must terminate the representation and must notify the client promptly of his malpractice.

Client hired Attorney to represent her in a litigation matter. At the end of the first day of trial, client is unhappy with lawyer's performance in the courtroom and informs Attorney that she is firing him and will find another lawyer. Attorney wants to continue representing Client until the end of the trial. May Client discharge Attorney after a trial has begun?

Yes, 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.

Attorney agreed to represent Client in a litigation matter. During their discussions of the case, Attorney mentioned to client that one of the points in the litigation seemed to involve a novel question of law, for which Attorney may need to seek advice from another lawyer with more expertise in that area. At the resolution of the matter, Attorney sent Client a bill that included Attorney's agreed-upon fee, as well as a reasonable fee for three hours of work performed by the expert attorney for research and a brief memorandum. Attorney reduced his own fee by the same amount, so that Client's total bill was the same. Client had been unaware that he would have to pay the other lawyer as well, but reluctantly agreed and paid the bill. Could Attorney be subject to discipline for this additional fee?

Yes, a division of a fee between lawyers who are not in the same firm may be made only if the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing.

Client hired Attorney to represent her federal court litigation, defending against antitrust enforcement actions by the Federal Trade Commission and the Department of Justice. Attorney adopts a "quagmire" strategy, burying the government lawyers in several dozen motions to limit or compel discovery, to compel admissions or stipulations, to limit the admissibility of certain evidence or witness testimony, and so on. On a few occasions, Attorney even re-filed a motion after the court ruled on the motion in the government's favor, merely to make the government lawyer spend the time filing objections or replies based on the court's previous ruling on the same issue. The government lawyers filed a complaint against Attorney with the state bar authorities, but the state disciplinary authority decided not to pursue the matter, in part because it was in federal court and involved exclusively federal issues. Could Attorney also face sanctions or penalties under federal law, if the state bar rejected the complaint?

Yes, a federal statute authorizes federal courts to require a lawyer to pay all the excess costs, expenses, and legal fees incurred because of the lawyer "unreasonably and vexatiously" multiplying the proceedings.

Attorney agreed to represent a plaintiff in a personal injury lawsuit, and the next day agreed to represent a defendant in litigation where the defendant faces vicarious liability. Only after Attorney has conducted some investigation of the case, and has obtained confidential information from each client, does Attorney discover that the plaintiff client is, in fact, suing Attorney's other client, the defendant, under a theory of vicarious liability. The two clients are adverse parties in the same litigation. Must Attorney withdraw from representing both clients?

Yes, a lawyer shall withdraw from the representation of a client if the representation will result in violation of the rules of professional conduct.

Can a contingent fee be unreasonably high?

Yes, and reasonableness is measured at the time of making the contingent fee agreement, not after the fee is due.

Attorney responded to a distressed call from Client asking that he meet him immediately on the street behind Attorney's office. Attorney rushes downstairs to meet Client outside his building. Client is very distraught and has blood splattered on his clothes, hands, and face, and is holding a pistol. Client stammers, "You will not believe what just happened." Attorney takes the pistol and throws it down the closest storm gutter on the street, and they can hear the gun clanging against concrete as it tumbles deep down into the storm sewer. Attorney says, "It is late and you are too upset to talk. Go home and clean yourself up, and do your laundry - you are a mess. We can discuss this tomorrow morning when you are in a better frame of mind." Client goes home to shower and launder his clothes, and Attorney returns to his office and resumes his work on the brief he was writing. Was Attorney's conduct a violation of his ethical duties?

Yes, because Attorney concealed or obstructed the police's access to potential evidence by discarding the gun, and he counseled Client to destroy the evidence on his clothes.

Attorney met with potential clients, a husband and wife, about seeking legal guardianship and power-of-attorney for the wife's elderly mother, who was suffering from early-stage senile dementia. The couple had taken the wife's elderly mother into their home, and needed to be able to help manage her assets and finances as her situation deteriorated. Attorney proposed a flat fee for his legal services, which was reasonable, and the couple agreed. At the close of their meeting, Attorney said he would formalize their fee arrangement in a written document and send them a copy, but a sudden crisis in another unrelated case distracted him, so he forgot to prepare a written fee agreement. Eventually, Attorney drafted and filed the necessary documents to place the elderly mother under the legal custodial care of the couple, including a brief probate proceeding. When the matter reached its conclusion, Attorney sent the couple a bill. The bill included Attorney's flat fee, as the couple had agreed, plus administrative filing fees and court costs, which were accurate and reasonable. Is Attorney subject to discipline for his actions?

Yes, because Attorney did not explain to the clients that they would be responsible for administrative fees and court costs in addition to his legal fees.

Small Firm is considering hiring Attorney, who currently works for Big Firm, in a lateral move. Attorney is a transactional lawyer, so none of the information he possesses is "privileged" in that it was not in anticipation of litigation. In order to check for conflicts of interest, Attorney discloses to Small Firm the clients he has represented while at Big Firm. This includes the names of persons and issues involved in the matters, as well as names and issues for matters handled by other lawyers in the firm about which Attorney had overheard or otherwise acquired some confidential information. Small Firm uses the information solely for checking about potential conflicts of interest before making an offer of employment to Attorney. Attorney did not ask any of the clients for authorization to disclose the representation or the nature of the issues involved in their matters. Was it proper for Attorney to disclose this confidential information without the consent of the clients?

Yes, because Attorney disclosed the information solely to detect and resolve conflicts of interest arising from the lawyer's change of employment.

Attorney is a criminal defense lawyer, and he represents Client, who is facing charges for burglary of a private residence. Client has asserted an alibi - he claims that on the evening of the burglary, he was 100 miles away on a romantic getaway with his girlfriend. Attorney interviews Client's girlfriend, who recounts a similar story about being on a romantic getaway, but a few details do not match Client's account, such as what they ordered for dinner when they stopped at a restaurant, and whether they had to stop for gas along the way. Attorney suspects the girlfriend is lying to protect Client, and that they rehearsed an alibi story without working through the fine details together. Attorney lectures both Client and his girlfriend about the wrongfulness of perjury and the fact that they do not have to testify at all, as well as the hazard of having their stories crumble under rigorous cross-examination. Is it permissible, under the Rules of Professional Conduct, for Attorney to call Client and his girlfriend as witnesses during trial?

Yes, because Attorney does not know with certainty that they are lying, he must allow Client to testify, and it is permissible to call the girlfriend as a witness as well.

Attorney agrees to represent Client in a divorce proceeding against her husband. Client is particularly concerned about obtaining her fair share of the marital property or assets - as much as possible, in fact - as well as a suitable level of child support for their children. Client agrees to pay Attorney his usual flat fee for divorce cases, $5000, but also offers to pay him 10% of whatever he wins in terms of payments and distribution of assets, on top of his usual fee. After a protracted, acrimonious divorce proceeding, Attorney obtains a settlement worth approximately $2 million for Client. Is Attorney subject to discipline in this scenario?

Yes, because Attorney entered into an arrangement for a fee in a domestic relations matter, the amount of which was contingent upon the amount of alimony, support, or property settlement.

Attorney agreed to represent Client as plaintiff in a patent infringement lawsuit. Attorney was part of a partnership that specialized in intellectual property law. Attorney prepared, and Client signed, a written fee agreement that specified the Attorney would receive a tiered contingent fee in the case: 25% if the case settled before trial, 30% if they went to trial and won, and 35% if the case went up on appeal and they prevailed in the appellate stage. In addition, the agreement specific that the contingent fee come from total award before court costs and other expenses, and that Client would be responsible for court cost and expenses out of his own pocket, either along the way as expenses arose during the proceedings, or from the Client's share of the award after Attorney received his contingent fee. Attorney never revealed that his partnership agreement required him to share his part of the fees with three other partners in the firm, or that his fees would go toward a general firm operating budget from which the partnership paid the salaries of non-lawyer staff, such as paralegals and secretaries. Attorney obtained a favorable settlement before trial. He telephoned Client with the good news, and explained that he would deduct his 25% contingent fee, as they had agreed, and would send the Client the remainder of the settlement funds. At that time, there were no outstanding unpaid expenses or court costs. Client was glad to hear the news, and Attorney promptly sent Client a check for 75% of the total amount received from the other party. Attorney and Client had no other contact except to exchange holiday greeting cards. Were Attorney's actions improper?

Yes, because Attorney failed to provide the client with a written statement stating the outcome of the matter and showing the remittance to the client and the method of its determination.

Attorney represented Client in a criminal prosecution. Client agrees to a plea bargain, and the case moves on to a sentencing hearing. The prosecution's pre-sentencing report to the judge erroneously indicates that Client has no prior convictions, and the trial judge asks Client directly whether that is true. Client affirms that he has no prior criminal record, and the judge sentences him leniently, giving his six months' probation. Attorney represented Client previously in another jurisdiction in a criminal matter, and he knows that the pre-sentencing report is erroneous. Before adjourning, the judge asks Attorney if he has anything else to say. Could Attorney be subject to discipline if he does not correct the judge's misperception about Client's criminal record?

Yes, because Attorney must not allow his client to offer evidence that he knows to be false to a tribunal.

Client calls Attorney to ask if it is possible to apply for an extension on filing his annual tax returns, if the deadline for filing returns is still two weeks in the future. Attorney offers to research the matter for a few hours and write a formal legal memoranda for Client about filing extensions. Even so, off the top of his head, Attorney can assure the Client over the phone that it is indeed possible to apply for an extension and that the IRS routinely grants them if they receiving the application for extension before the regular deadline. Attorney practices in the area of tax law and is familiar with the rules. Client thanks the Attorney and says that he is satisfied with the "short answer," and that he does not want Attorney to do any more research or writing about it, but rather to send a bill for the phone call. Attorney agrees and bills Client for the telephone conversation, and conducts no further research on the matter. Is it proper for Attorney to limit his representation to a single telephone call like this?

Yes, because Client's objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, so the lawyer and client may agree that the lawyer's services will be limited to a brief telephone consultation.

Client, age 18, is facing criminal charges of sex with a minor, based on his sexual relationship with his thirteen-year-old girlfriend, who lives in the same tenement building. The relevant statute has strict liability for perpetrators - that is, no mens rea or scienter element - and places the victim's age cutoff for the most serious grade of felony at age 14. It is indisputable in the case that the defendant had a sexual relationship with the victim when she was thirteen, but the victim claims she wanted the relationship and willingly consented to the sexual contact with her boyfriend. A state psychologist examined the victim and included in his report that she was emotionally mature for her age and was making relationship decisions in the same way as an adult. Even though Attorney is certain that the trial court will convict Client, he believes there is a slight chance that he could convince an appellate court to take a loose view of the age-of-consent provision in the statute, either on substantive due process grounds or simply as a matter of progressive statutory construction. Attorney believes that many thirteen-year-olds, and even younger, are sexually active nowadays and that the criminal laws should reflect the changing values of society. Attorney agrees, therefore, to take Client's case and to use it as a test case to try to change the law of sexual consent in the appellate courts. Is it proper for Attorney to make a defense in a criminal case that goes against the clear statutory verbiage and established case precedent?

Yes, because a claim or argument is not frivolous if the lawyer is making a good faith argument for modification or reversal of existing law.

At a press conference about the prosecution of an accused serial killer, the prosecutor stated that the defendant was single and lived with his mother in a particular apartment complex in the city, and that the defendant worked as a butcher. Was it proper for the prosecutor to disclose such information about the case to reporters?

Yes, because a lawyer in a criminal case may state the identity, residence, occupation, and family status of the accused.

Attorney was a well-known criminal defense lawyer, and he agreed to represent Client, a celebrity who is a defendant in a high-profile murder case. Attorney filed the proper notice with the court and the prosecutor's office that he was representing Client. Attorney also filed a motion to exclude Client's confession that he gave to the police on the night of the murder while Client was somewhat intoxicated, in which he concedes the intoxication and contends that this nullifies the voluntariness of the confession for Fifth Amendment purposes. The news media thereby learned that Attorney was representing Client, and news commentators began to speculate that Client must be guilty if he hired such a notorious defense lawyer. Client was furious that anyone knew that he had hired a lawyer, which he claims was confidential. Was it proper for Attorney to make these disclosures without Client's express authorization?

Yes, because a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client's instructions or special circumstances limit that authority.

Client hired lawyer to represent her in bringing a lawsuit against a manufacturer over a defective product that was very expensive. Attorney regularly represents plaintiffs in product liability cases. Client believes that the manufacturer has knowingly sold defective products to other customers as well, and wants Attorney to include a claim for "civil RICO" (accusing the manufacturer of racketeering) as part of the lawsuit. In addition, Client discussed reporting the manufacturer to various governmental regulatory agencies to try to get the company in trouble with them, as this might overwhelm the defendant with simultaneous litigation on several fronts, and might even bring out otherwise undiscoverable information about the manufacturer's wrongdoing. Attorney reluctantly adds the civil-RICO claim to the complaint and is not surprised when the judge strikes that claim at the request of the defendant. Attorney declines to notify government agencies about the manufacturer, and suggests that Client do that on her own, writing complaint letters to whatever agencies she has in mind. Attorney proceeds with the tort litigation and prevails, winning a favorable verdict for the plaintiff. Was it proper for Attorney to decline to pursue the regulatory attack against the manufacturer?

Yes, because a lawyer is not bound to press for every advantage that might be realized for a client.

After Attorney has been representing Client in a transactional matter for six months, Client asks Attorney to draft and deliver some documents that Attorney knows are fraudulent. Attorney tries to dissuade Client, but Client insists. Attorney believes the recipient of the documents will probably realize they are fraudulent before irreparable harm happens to the recipient. Client is willing to sign a private document for Attorney in which Client takes full responsibility for the fraud and states that Attorney was merely following orders and is not blameworthy in the matter. Would it be improper for Attorney to acquiesce, and draft and deliver the documents according to Client's instructions?

Yes, because a lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent.

Attorney is a litigator and finds it helpful to talk to jurors after a trial concludes to see what they thought about the performance of the lawyers in the case. Assuming the judge has not forbid talking to jurors and the jurors are willing to talk to him, is it proper for Attorney to have conversations with jurors in their homes, a week after the trial?

Yes, because a lawyer may communicate with a juror after the discharge of the jury, but must respect the desire of the juror not to talk with the lawyer.

Client is an inexperienced drug dealer and consults with Attorney about the legal ramifications of his business. Without explicitly endorsing or encouraging Client in his criminal enterprise, Attorney conducts research at Client's request about various drug laws and sentencing guidelines. Attorney writes a detailed memorandum of law explaining that certain threshold quantities of drugs, according to the relevant statutes, create a presumption of "intent to distribute" or trigger a significant sentencing enhancement. Similarly, Attorney explains that statutes and sentencing guidelines impose higher-grade charges and severe sentencing enhancements if a drug dealer brings a firearm to a transaction. Client mulls over the information and decides to change his business model from bulk sales of narcotics to selling smaller quantities in more individual transactions, such that each sale constitutes only the lowest-level misdemeanor. Client also instructs all his subordinates to avoid carrying firearms and instead to refill pepper spray devices with hydrochloric acid, which they spray in the face of their opponents in any altercation, causing severe disfigurement. Is it proper for Attorney to provide such legal advice to Client?

Yes, because a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Client hired Attorney to represent her in litigation over the custody of her children following a divorce. Client was concerned about her older sister, in whom she had confided for many years about her struggles with substance abuse and mental illness. Her good relationship with her sister had ended, because of an intense argument over Christmas presents, even before Client married and had children, and Client had been free from substance abuse since she married, and was now managing her mental health issues very well. Her sister knew many of her darkest secrets. Attorney located the sister, explained that Client was fighting for custody of her children, and that he expected the ex-husband's lawyer to call her to testify at the hearing about Client's former troubles. Attorney pleaded with her to show some consideration for the years of good relationship and good memories she shared with Client, and to refuse to betray her sister's confidence and reveal all her dark secrets. The sister felt deeply moved by this entreaty and agreed to stay out of the litigation. Was Attorney's conduct proper?

Yes, because a lawyer may request that a relative of the client refrain from voluntarily giving relevant information to another party.

During the discovery phase of business litigation, Conglomerate Corporation receives a discovery request asking for "all documents, memoranda, emails, or other internal correspondence related to the transaction that is the subject of this dispute." Attorney represents Conglomerate Corporation. Thousands of documents stored in electronic format on Conglomerate's computers and servers would arguably fall under this request for production. Attorney proposes to opposing counsel that they produce the requested documents in electronic form on a set of compact discs, and the opposing counsel readily agrees. Long before the litigation began, Attorney began using software to scrub the metadata from documents - electronically embedded information about the name of the user whose computer created the document, the date and time of creation, redlined changes from each stage of editing, and comments that other readers added to the document before it took its final form. Proposed contracts, letters to business partners, and correspondence with opposing counsel are all free from embedded metadata. Was it proper for Attorney to scrub the metadata from electronic documents that could potentially be subject to a discovery or production request in future litigation?

Yes, because a lawyer may take measures to eliminate metadata from documents that could later fall into the hands of an opposing party.

Client, a judge, hired Attorney to represent her in her divorce proceeding against her husband, who is guilty of marital infidelity. Their fee agreement stipulates that Attorney will bill Client every month for the work performed in the previous thirty days. After two months of representation, Attorney has sent Client two bills, and has received no payments. Is it proper for Attorney to seek to withdraw from the case on the basis of unpaid fees?

Yes, because a lawyer may withdraw if the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.

Attorney represented Husband in a transactional matter twenty years ago, which involved incorporating a small business that Husband later sold to an acquaintance. The proceeds from the sale went to fund college tuition for Husband's grown children. Wife recently retained Attorney to represent her in a divorce action against Husband. Husband and wife both provided Attorney with informed consent, confirmed in writing, waiving any conflicts of interest. Husband barely remembered Attorney, in fact, and the previous representation has no bearing on the current divorce or marital property. Wife then told Attorney, in confidence, that Husband had a homosexual affair last year with a man at his health club, and this was a major factor in her deciding to file for divorce. She explains that it is very important to her that Husband's affair be a centerpiece in the divorce proceedings, as this will give her closure and will help both her parents and her grown children to understand why she felt compelled to end the marriage. Attorney believes her, but finds this allegation unsavory, and does not want to embarrass Husband, especially given that Husband is a former client. Attorney halfheartedly files the divorce petition without any mention of the affair, stipulates to the Husband's request for a sealed record without discussing this move with Wife, and resolves the matter as discreetly as possible. Ultimately, Wife accepts the settlement recommended by Attorney, but is deeply disappointed that the affair has been kept secret, and the family will not believe her about it. Is Attorney subject to discipline for handling the matter in this way?

Yes, because a lawyer must act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.

Client explains to Attorney that he is operating an illegal website where users can anonymously upload and download pirated music and videos, in violation of copyright laws and other anti-piracy statutes. The website is very lucrative for its operator, and Client has become a multimillionaire by founding and operating the site. Client is concerned about potential criminal charges or civil lawsuits over the website. Attorney explains to Client how he could use a series of dummy limited liability corporations, mail forwarding addresses, and offshore bank accounts in order to avoid detection. Each of the steps of the process Attorney describes is technically legal - creating the corporate entities, purchasing real mail-forwarding services, and opening bank accounts in Belize. Attorney decides not to charge Client for this advice session, but bills Client for other transactional work performed. Is Attorney subject to discipline?

Yes, because a lawyer must avoid assisting a client in fraudulent or criminal activity, which includes suggesting how the wrongdoing might be concealed.

In preparation for trial, Attorney and Client sat down together to go over Client's upcoming testimony. Client mentioned, as he recounted his version of the facts, something that Attorney knew would constitute an admission of fault on a critical point in the case. Attorney interrupted Client and said, "If you admit that, you will have forfeited your entire case." Client nods to show his comprehension of what Attorney said. Client testified at trial and changed his story significantly, carefully omitting the statement that Attorney had identified as a legal admission of guilt. Did Attorney violate the Rules of Professional Conduct in preparing Client for his testimony in this way?

Yes, because a lawyer must not counsel another person to conceal a matter with evidentiary value.

Attorney was a litigator and represented Client in a civil lawsuit in which Client is the defendant. Attorney explained the general strategy and prospects of success, and consulted the client on tactics that were likely to result in significant expense, such as the hiring of experts or jury consultants. At the same time, Attorney believes their best shot at winning the case will be to elicit an admission from the plaintiff during cross-examination when plaintiff testifies at trial. More specifically, Attorney plans to elicit a mild, relatively innocuous admission during the first round of cross-examination, expecting opposing counsel to rehabilitate the witness on re-direct examination. Attorney then plans a short, direct, re-cross consisting of three yes-or-no questions that should elicit a devastating admission from the plaintiff, which opposing counsel is probably not anticipating. Attorney has not discussed this plan for cross and re-cross with Client. Even if the re-cross does not go as well as Attorney hopes, they might prevail in the case by several other ways. Is it proper for Attorney to leave Client out of the planning for the cross-examination and re-cross of the plaintiff?

Yes, because a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail.

As mentioned in class, what is currently the requirement under the Rules of Professional Conduct regarding lawyers having liability insurance for legal malpractice claims?

The Model Rules do not require lawyers to have malpractice insurance, but many states require disclosure to clients if the lawyer is uninsured.

The Comment to Rule 1.11, "Special Conflicts of Interest for Former & Current Government Officers & Employees" offers several policy interests that the rule seeks to balance. Which of the following is NOT one of the state policy interests?

"If experience in government service makes lawyers excessively marketable thereafter in the private sector, or results in excessive financial rewards for lawyers with government experience once they enter the private sector, lawyers may enter government service for the wrong reasons or out of self-interest, rather than acting in the public interest."

Which of the following is NOT one of the factors listed by the Rules of Professional Conduct that lawyers should use in determining the reasonableness of a fee?

"the client's financial situation or ability to pay"

Which of the following IS one of the factors listed by the Rules of Professional Conduct that lawyers should use in determining the reasonableness of a fee?

"the skill requisite to perform the legal service properly"

Which of the following is NOT one of the factors listed by the Rules of Professional Conduct that lawyers should use in determining the reasonableness of a fee?

"when the fee will actually be due"

As mentioned in class, how many major malpractice insurers report that they have paid LPL claims over $100 million?

More than half

Which of the following is true about conflicts of interest, according to the Model Rules of Professional Conduct?

Most conflicts are waivable by clients, but only if the clients provide informed consent in writing, and there are three types of conflicts that are nonconsentable

As mentioned in class, what is currently the average hourly rate for defense counsel in legal malpractice claims?

Most pay more than $300 per hour

While preparing for trial, Client tells Attorney that he intends to lie on the witness stand. Attorney tries to dissuade him, but Client insists. May Attorney allow Client to take the stand and conduct direct examination of Client as a witness under these circumstances?

No, Attorney must either disclose the contemplated perjury to the tribunal, or have the client testify in a narrative mode without direct examination.

Client hired Attorney to handle several real estate transactions, and once the representation was underway, Client explains that the transactions are all part of a money laundering scheme and that the money ultimately is being used to fund terrorist activities. May Attorney continue with the representation, if each individual transaction appears to be technically legal?

No, Attorney must withdraw from representation if the client demands that the lawyer engage in conduct that is illegal

Two co-plaintiffs in a personal injury lawsuit hired Attorney to represent them in the matter. The litigation promised to become very complex, with multiple issues pertaining to liability and multiple potential defendants. Attorney had each client sign a detailed "waiver of present and future conflicts of interest" form and carefully explained the specific types of conflicts that can arise between co-plaintiffs in tort litigation, such as indemnification claims, cross-claims, adversarial positions in response to counterclaims from defendants or third-party interveners, and so on. In addition, Attorney encouraged both clients to consult with separate lawyers for consenting to the conflicts, and both do so. Moreover, both plaintiffs were themselves lawyers and were very familiar with the potential conflicts of interest that could arise from this common representation. Attorney reasonably believed that she would be able to provide competent and diligent representation to each affected client. As the trial date approached, a counter-claim by one of the defendants forced one plaintiff to file a cross-claim for indemnification against the other. Will the written, informed consent to potential conflicts that each client signed be effective in this situation, so that Attorney does not have to withdraw from the representation?

No, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable, such as the assertion of a claim by one client against another client represented by the lawyer in the same litigation

Attorney, who often serves as a court-appointed mediator, was appointed to mediate the divorce case between Husband and Wife. The case settled in mediation and the divorce was finalized soon after. A year later, Husband sought to retain Attorney to represent him in a modification suit against Wife. Attorney accepted the case and sent a letter to Wife advising Wife that Attorney had been retained by Husband to represent Husband in a modification suit. Are Attorney's actions proper?

No, an attorney who previously served as a third-party neutral is required to obtain informed consent, confirmed in writing, from all parties to the proceeding prior to representing a party in a suit connected to the previous matter.

Attorney worked for Big Firm for several years, during which he represented Conglomerate Corporation on several matters. At the beginning of representation in each matter, Attorney obtained written informed waiver of future conflicts of interest from Conglomerate Corporation, specifically including the possibility that Attorney might later represent the government in unrelated matters adverse to Conglomerate Corporation. Attorney eventually left Big Firm and went to work for Federal Regulatory Agency, in its enforcement and litigation division. On behalf of Federal Regulatory Agency, Attorney then brought an enforcement action against Conglomerate Corporation for some very recent regulatory violations. The new matter was mostly unrelated to any previous work Attorney performed for Conglomerate Corporation. Is Attorney subject to disqualification in this matter?

No, as long as the appropriate government agency gives its informed consent, confirmed in writing.

Attorney represents Client in a civil suit. Client and Attorney often discuss their hunting trips and have gone hunting together on several occasions. Client tells Attorney he is purchasing a piece of property for hunting with five other people and asks Attorney if he would like to go in on the purchase. Attorney tells Client he would like to join in the purchase and he provides Client with a check for his portion of the purchase price. Is Attorney subject to discipline?

No, attorneys are allowed to enter into fair and reasonable business transactions with clients as long as the client is informed in writing of the benefit of seeking advice from independent counsel and gives informed consent, in writing and signed by the client, of the transaction details.

Attorney represents Company in a civil suit. During Attorney's representation of Company, Attorney begins a sexual relationship with Receptionist at Company. Receptionist's only duties are to answer the phone, route calls, take messages, and prepare outgoing mailings at Company. Receptionist has no authority in decision-making at the Company. Receptionist's only communication with Attorney as an employee of the company is when he calls Company and Receptionist routes his call to the person with whom Attorney wishes to speak. Is Attorney subject to discipline?

No, attorneys are only restricted from having relationships with members of an organization who are directly or are regularly involved with the attorney concerning the organization's legal matters.

Husband and Wife wanted to hire Attorney to prepare their wills. Before the formalities of representation were final, husband spoke with Attorney privately by phone and disclosed that Husband had been having an affair, and that his mistress might be pregnant. Husband forbid Attorney to tell Wife about this. Attorney realizes there could be potential conflicts of interest between husband and wife about the wills, distribution of assets, potential challenges to the will by offspring from outside the marriage, and potential claims for child support against Husband's estate. Would it be proper for Attorney to proceed with representing Husband and Wife in preparing their wills?

No, because Attorney cannot violate the duty of confidentiality to Husband, which would be necessary in order obtain informed consent from Wife.

Attorney is a criminal defense lawyer. The court has appointed him to represent a defendant who has already given a full confession of the burglary to the police, after receiving proper Miranda warnings, and the prosecution has several witnesses who either saw the crime or heard the defendant discussing his plans to commit the crime beforehand. The police properly obtained all necessary warrants during their investigation and arrest, and the defendant's actions clearly meet the elements in the statute. The lawyer explains to the defendant that he has almost zero chance of an acquittal, given the evidence against him and the fact that the Supreme Court has repeatedly upheld the penal code provision that furnished the basis of the charges in the case. In fact, Attorney cannot imagine any viable defense to raise at trial. Does Attorney have an obligation to ask the court for permission to withdraw from the representation?

No, because a lawyer for the defendant in a criminal proceeding may nevertheless so defend the proceeding as to require that every element of the case be established.

Attorney represented Client, who was suing his former employer over wrongful discharge. The former employer claimed that the termination was necessary because the job involved high-level security clearance, and the employer learned that Client had a prior felony conviction that Client had not disclosed on his job application. The phrasing of the question on the job application was confusing and a subject of dispute in the case. The former employer also claimed that they would have needed to terminate Client regardless of whether he was untruthful on his job application, because his prior conviction disqualified him from the necessary security clearance. During a preliminary hearing, the judge asked Attorney if it was true that Client had a prior conviction, and if so, what was the crime. Attorney conceded that Client had a grand larceny conviction in that jurisdiction and had served a two-year jail sentence, which was a matter of public record. Attorney then explained that their theory of the case was that the employer never clearly asked about prior convictions, and that the conviction actually did not disqualify client from the necessary security clearance for his position, but rather than this was a mere pretext for a racially discriminatory termination. Did Attorney violate his duty of confidentiality to Client by making this admission?

No, because a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter.

Client hired Attorney to represent her in litigation over the custody of her children following a divorce. Client was concerned about her former best friend, in whom she had confided for many years about her struggles with substance abuse and mental illness. The friendship had ended, because of an intense argument over Christmas presents, even before Client married and had children, and Client had been free from substance abuse since she married, and was now managing her mental health issues very well. Her former friend knew many of her darkest secrets. Attorney located the former friend, explained that Client was fighting for custody of her children, and that he expected the ex-husband's lawyer to call her to testify at the hearing about Client's former troubles. Attorney pleaded with her to show some consideration for the years of good friendship and good memories she shared with Client, and to refuse to betray her former friend's confidence and reveal all her dark secrets. The former friend felt deeply moved by this entreaty and agreed to stay out of the litigation. Was Attorney's conduct proper?

No, because a lawyer may not request a person other than a client to refrain from voluntarily giving relevant information to another party, except for certain cases that do not apply here.

Attorney has always practiced exclusively in the area of business transactional work and has no litigation experience. Client has used Attorney's services on a number of occasions related to her business transactions. In one instance, Attorney prepared a detailed non-compete agreement for client to use with a nationally known mathematician whom Client hired to work on Client's predictive coding algorithms. The mathematician, however, left Client's firm and began working for Client's main business rival, apparently in violation of the non-compete agreement. Client asked Attorney to bring an enforcement action against the mathematician. Attorney declined to represent Client in the litigation, and reminded Client that their previous retainer agreement over the non-compete agreement specifically stated that Attorney's representation would include only the drafting and related transactional work, and would not include litigation to enforce or nullify the non-compete agreement. Would Attorney be subject to discipline for including this provision in his agreement to represent Client?

No, because a lawyer may reasonably limit the scope of the representation, by informed agreement with the client, at the beginning of the representation, and refusing to do litigation is a typical limitation on the scope.

Client fired Attorney after Attorney had completed 80% of the work involved in the representation. Client refuses to pay any of the fees that were in the original agreement at the beginning of representation. Client demands that Attorney turn over all papers and documents relating to the representation. Must Attorney immediately return Client's documents regardless of the fees owed?

No, because a lawyer may retain papers relating to the client to the extent permitted by law.

Client was an indigent defendant and received court-appointed counsel for his trial. The trial ended in a conviction. Attorney served as his appointed counsel in the case. Client wanted to appeal his conviction, but Attorney reasonably believes that there is no merit to an appeal. Client insisted that Attorney file an appeal before he missed the deadline, and agreed that Attorney could withdraw from the case without Client's objection if he would simply file the appeal and provide Client with the opportunity to pursue the appeal pro se or with another lawyer. Attorney presented a "no-merit" letter to the appellate court explaining that his client was appealing his conviction but that Attorney could see no merit in the appeal. Was Attorney's conduct proper, according to the United States Supreme Court?

No, because a lawyer must prepare a brief referring to anything in the record that might arguably support the appeal, and leave it to the appellate court to decide whether the appeal is truly frivolous.

Client is on trial for a theft case. Witness was with Client at the time police state that Client committed the crime at a location far from the crime scene. Client chooses to take the case to trial. For Witness's attendance at trial, Attorney pays Witness a lump sum amount. Are Attorney's actions proper?

No, because a witness cannot be paid to attend and testify at a hearing or trial.

Client asked Attorney to represent him in a lawsuit. Attorney conducts some preliminary research and quickly discovers that the lawsuit is a very long shot. In fact, based on Attorney's survey of the existing judicial decisions in very similar cases, Attorney estimates that they have only a 15% chance of winning, and it will depend on an extraordinarily lopsided jury, a strongly partisan judge whose political leanings go in their favor, as well as a mediocre lawyer representing the other side. Otherwise, all things being equal, Attorney advises Client that it is about 85% certain that the will not prevail. Client is willing to take risks, however, and urges Attorney to take the matter. Attorney reluctantly agrees, on the condition that he can charge a somewhat higher fee that usual, and files the lawsuit. Could Attorney be subject to discipline for bringing a frivolous claim?

No, because an action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail.

Attorney represents Client in a drug trafficking case. Client asks Attorney to deliver a package to a friend of Client. Client tells Attorney that the package contains illegal drugs but assures Attorney he will not reveal that Attorney made the delivery if police discover that the transfer was made. Attorney advises that he will not participate in the transfer. Attorney does not advise the Court of Client's request and remains Client's attorney on the drug trafficking case. Are Attorney's actions improper?

No, because an attorney is not required to decline or withdraw from cases unless the client demands that the attorney engage in illegal conduct.

Associate Attorney works at a law firm. The Supervising Attorney, who is a partner at the law firm, directs Associate Attorney to prepare a petition for a civil case. Associate Attorney contacts the client and discusses the facts of the case. Associate Attorney discovers that the suit he was directed to file is frivolous and there are no facts to support the claim. Associate Attorney discusses his concerns with Supervising Attorney. Supervising Attorney directs Associate Attorney to file the suit and indicates that he expects it will settle prior to trial. Following Supervising Attorney's direction, Associate Attorney files the suit. Are Associate Attorney's actions proper?

No, because an attorney is responsible for any violations, including the filing of frivolous suits, even if directed to file such suit by a partner of the firm at which the attorney works.

Attorney injured his back and leg badly in a car accident. In the aftermath, Attorney became chemically dependent on prescription pain medications. This addiction progressed until it began to affect Attorney's relationships and work habits. The partners in his firm eventually insisted that Attorney seek professional help, so he enrolled in an outpatient rehab program and a twelve-step support group for painkiller addicts. The supervising psychiatrist in the outpatient program expressed concern about Attorney's complete dependence on the painkillers and his diminished ability to function physically or mentally. He advised Attorney to take a leave of absence from work, because he did not believe Attorney could competently fulfill his obligations to his clients. This same concern had prompted Attorney's partners to insist that he seek professional help. Just before enrolling in the outpatient program, a new client had approached Attorney about representing her in a tax dispute with the Internal Revenue Service. Attorney had handled such cases before, but it was not his specialty. Client is so desperate that he tells Attorney privately that he is considering shredding documents to hide some of his tax fraud from the IRS, which Attorney says he should not do, but worries that Client might do it anyway. May Attorney undertake the representation?

No, because at the moment, physical or mental condition materially impairs the lawyer's ability to represent the client.

At a press conference about the prosecution of a notoriously vice-prone celebrity, the prosecutor stated that the District Attorney's office had filed charges against the celebrity for shoplifting and drug possession. The prosecutor then said he had no further comments and took no further questions. Was it proper for the prosecutor to disclose such information about the case to reporters?

No, because in a criminal case, it is presumptively prejudicial for a prosecutor to state publicly that a defendant has been charged with a crime, unless he includes a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

Attorney represents client in a commercial litigation matter against a small independent bookstore. It is known in the local business community that the opposing party (the bookstore) has been on the verge of bankruptcy for the last two or three years. The facts and law of the present litigation, however, make it a close case - Attorney believes, accurately, that his client has at best a 50% chance of winning at trial. At Client's urging, Attorney files frequent motions asking for more time in discovery, more time to respond to the opposing party's motions, and a postponement of the trial date to allow more time to prepare and locate the necessary expert witnesses. Attorney thinks that the opposing party may have to close down and file for bankruptcy soon, which would make the opposing party's claims moot. The judge has an overcrowded docket, and is always glad to grant postponements or more time on various responses. Is it proper for Attorney to take this "time is on our side" approach to litigation?

No, because realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.

Attorney agreed to represent Client, a foreign national living in the United States. Client explained to Attorney that he was a business owner who owned and operated several small grocery stores catering to immigrants from Client's home country. Nothing seemed suspicious to Attorney until they were about to consummate a deal on the purchase of a small parcel of commercial real estate, and Client insisted on paying with cash, arriving at the closing with duffle bags containing bundles of twenty dollar bills. The parties completed the sale and title transferred to one of Client's businesses, LLC. Attorney was then suspicious that Client might somehow be laundering money through such transactions. Would it be proper for Attorney to inform the FBI about the transaction without Client's consent?

No, because the Rules of Professional Conduct do not mandate that a lawyer perform a gatekeeper role in this context, and mandatory reporting of suspicion about a client is in conflict with the duty of confidentiality.

Attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired Attorney for a substantially higher salary, and Attorney accepted the position and left her government position. One of Attorney's first assigned cases at Big Firm was a new action by Client against Conglomerate Corporation. Attorney had worked on an enforcement against Conglomerate Corporation and learned confidential governmental information about the entity during the litigation. The government agency gives its informed consent, confirmed in writing, to the representation. Is Attorney nevertheless subject to disqualification in Client's matter against Attorney's former employer?

No, because the appropriate government agency gave its informed consent, confirmed in writing, to the representation.

While conducting research on a litigation matter, Attorney finds a very new case from the highest court in a neighboring jurisdiction that is directly adverse to his client's legal position in the case. The issue presents a case of first impression in Attorney's own jurisdiction, where the case is taking place. The opposing party did not mention the case in its briefs, and Attorney realizes that the opposing party's lawyer has been recycling his firm's briefs for this type of case for several years without updating his research. Does Attorney have an ethical duty to disclose the unfavorable authority precedent to the court?

No, because the case is not controlling authority in that jurisdiction.

A government entity provides grants to a legal aid office that represents indigent individuals. The government entity requires reporting of the names of clients, brief factual summaries, and the type of representation involved for all matters where the government entity's funds provided the financial support for the representation. Attorney works for the legal aid office. The government entity uses this information to ensure that the funding is going to its intended purposes and complies with various statutory requirements. Most of his clients are uneducated and unsophisticated, so he does not explain to them how the finances work for the legal aid office or that he must disclose their information. Is it proper for Attorney to represent legal aid clients without obtaining their informed consent to the disclosures required by the funding agency?

No, because the client names, basic facts, and types of cases are confidential information, and require client authorization for disclosure.

After much effort, Attorney located a witness who could fully corroborate his client's story and could impeach the testimony of the opposing party's star witness. The witness, however, was afraid of retaliation from others if she testified, and did not want to be involved. Attorney offered witness $10,000 to appear at the trial for one afternoon and testify for an hour or two. The witness reluctantly agreed. Was it proper for Attorney to offer to pay a favorable witness to undergo the trouble of testifying at the trial?

No, because the common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying apart from expenses.

Client is struggling through a deposition, during which opposing counsel is subjecting him to intense questioning. Attorney, who represents Client, tries objecting a few times in order to break the opposing counsel's momentum, but it was to no avail. Attorney then stood up, shouted, and with a heave overturned the conference table around which the lawyers, court reporter, and deponent were sitting. Notes, cell phones, and open briefcases flew across the room, and the stenographer's equipment tumbled to the floor. Attorney and Client gathered their things and stormed out of the room. A few days later, Attorney called opposing counsel and halfheartedly apologized, and agreed to reschedule the deposition if opposing counsel would agree to behave himself this time. Opposing counsel reported Attorney to the state bar disciplinary authority. Could Attorney be subject to discipline for the way in which he disrupted the deposition?

No, because the disruption was merely at a deposition, which is not as formal as a trial or hearing.

Client hired Attorney to represent him in a criminal matter. Client faces charges over corporate fraud that he perpetrated two years before when he was the Chief Financial Officer of a large, publicly traded corporation. Attorney learns during his interviews with Client that the fraud will have some far-reaching consequences for investors and another large corporation in the area, consequences that the prosecution and regulatory authorities have overlooked so far. Attorney realizes that if he discloses this information now, he could prevent substantial injury to the financial interests or property of innocent people, and that harm is reasonably certain to result otherwise. According to the Model Rules of Professional Conduct, may Attorney disclose the information in order to prevent this substantial injury to the financial interests of others?

No, because the exception that permits disclosure to prevent substantial financial harm to others does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense.

Attorney represents the family members of one of several people who died when a section of a sports arena collapsed. Attorney sent an investigator to talk to the property management company that operated the arena, and that conversation led the investigator to a former employee of the management company, who explained that he had lost his job for insisting that the property managers address some structural problems and maintenance issues in the part of the arena that eventually collapsed. The disgruntled former employee gave the investigator copies of reports he had submitted to his employer, the property managers. Later, the lawyers representing the property management company and the sports arena owners learned that this investigator had talked to their former employee, and asked the court to disqualify Attorney from representing the plaintiffs in the case. They based their motion for disqualification on the ex parte communication with their former employee and taking receipt of a copy of the internal reports about the arena's maintenance problems. Under the Rules of Professional Conduct, should the court grant the motion to disqualify Attorney?

No, because the former employee is no longer working for the property management company, and the reports are not privileged.

Attorney represents a chemical manufacturer. A regional vice-president recently informed Attorney that there was an unfortunate chemical spill that released hundreds of gallons of toxic substances into a stream that ran into the town's nearby water supply reservoir. The spill occurred because a newly hired employee turned the wrong valve during a training exercise at the plant. Attorney explained that the corporation could face civil liability in either tort actions or regulatory actions by governmental entities at the state and federal levels, and urged the vice-president to report the spill immediately, if it was still unreported. The vice-president replied that they could not afford the negative publicity and the impact it would have on their share prices. He reminded Attorney that the upper management of the company received most of its compensation in the form of preferred stocks and options, so it seemed unfair to penalize them through a loss in share price, when the fault was some recently hired manual laborer. Attorney explained that he would have to withdraw from representation and would report the incident to the necessary public health officials, which he did, despite the vice-president insisting that this was confidential information. Is Attorney subject to discipline?

No, because the lawyer believed the company's disposal of waste products was likely to cause serious injury to others.

During the discovery phase of business litigation, Conglomerate Corporation receives a discovery request asking for "all documents, memoranda, emails, or other internal correspondence related to the transaction that is the subject of this dispute." Attorney represents Conglomerate Corporation. Thousands of documents stored in electronic format on Conglomerate's computers and servers would arguably fall under this request for production. Attorney proposes to opposing counsel that they produce the requested documents in electronic form on a set of compact discs, and the opposing counsel readily agrees. After receiving the production request, Attorney began using software to scrub the metadata from documents - electronically embedded information about the name of the user whose computer created the document, the date and time of creation, redlined changes from each stage of editing, and comments that other readers added to the document before it took its final form. Proposed contracts, letters to business partners, and memoranda between managers all have their embedded metadata erased. Was it proper for Attorney to scrub the metadata from electronic documents before delivering them to the other party in response to a discovery request?

No, because the main reason for scrubbing metadata is to conceal information that might be useful to an opposing party or tribunal in the present litigation.

A lawyer is representing the defendant in a highly publicized trial. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that his client has a perfectly clean criminal record, while the state's star witness is already serving time on a felony drug conviction. In his personal opinion, he says, the client is innocent and should receive an acquittal, but he does not explain the defense theory of the case. The lawyer declares that he has his client's permission to talk to the media, which is true, and that the prosecution expressed no objection to him giving interviews like this on the courthouse steps in previous cases. Were the lawyer's statements proper?

No, because the official Comment to the Model Rules says that expressing an opinion about a party's guilt or innocence, or about the criminal record of a party or witness, is more likely than not to have a material prejudicial effect on a proceeding.

Attorney is a managing partner in a law firm, and owns $100,000 worth of stock in Conglomerate Corporation, the named defendant in a new antitrust suit. Attorney's total compensation from the firm is around $120,000 per year, including bonuses, and his stock holdings in Conglomerate are his most valuable asset besides his home, which is worth about $300,000 but Attorney has very little equity in it. Attorney supervises, at least indirectly, all the associates in the firm. Another lawyer in the firm seeks to represent the plaintiffs in the antitrust action against Conglomerate Corporation, which is not a client of the firm. Would it be proper for the firm to represent the plaintiffs in litigation against Conglomerate Corporation?

No, because the personal interest of the firm's managing partner in Conglomerate is so great, relative to his earnings and assets, that there is a significant risk of materially limiting the representation of the plaintiffs in their cause of action against Conglomerate.

After obtaining a favorable verdict at trial, Client asked the court to award attorney's fees, which was permissible under relevant law. Attorney had represented Client throughout the litigation and now had to testify as a witness about the fees he had charged during the representing, authenticating, explaining, and justifying both the billable hours recorded on the timesheets and the lodestar rate for his legal services. Was it improper for Attorney to testify as a witness in the same proceeding in which he had represented a party as trial counsel?

No, because the testimony relates to the nature and value of legal services rendered in the case.

A lawyer is representing the defendant in a highly publicized civil trial between two celebrities. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that his client has agreed to take a polygraph test proving that he is telling the truth about the disputed matter, but that the opposing party has refused to take a polygraph test, which suggests that the other person is hiding something. The lawyer has his client's permission to talk to the media. Opposing counsel is standing nearby waiting for his turn to talk, and he expresses no objection to the first lawyer giving interviews like this, or to the lawyer's comments. Were the lawyer's statements proper?

No, because there is a presumption of prejudicial effect on the proceedings when a lawyer comments publicly about the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test.

Client is an indigent criminal defendant and Attorney is his court-appointed counsel. The trial is taking place in a rural county where only a handful of lawyers practice law. Before appointing Attorney to represent Client, the court had tried to appoint five other local criminal defense lawyers, one after the other, but each was unable to provide representation due either to a conflict of interest or because their current caseload would have precluded them from providing competent representation. In fact, Attorney was the last lawyer on the court appointments list. Unfortunately, Attorney also needed to serve as a witness during part of the trial, in order to authenticate a piece of evidence, and the authenticity of the evidence was a matter of dispute in the case. In addition, Attorney realized that his testimony would radically contradict the testimony of his own client, though Attorney still believed he could obtain an acquittal by impeaching the prosecution's star witness. May Attorney continue to represent Client and testify as a witness in this matter?

No, because there is likely to be substantial conflict between the testimony of the client and that of the lawyer, so the representation involves a conflict of interest that requires compliance with the conflicts rules.

During litigation, a judge issued an order that the parties could not transfer any assets out of the jurisdiction. Two weeks later, Attorney learns from Client's spouse that Client has transferred hundreds of thousands of dollars to secret offshore bank accounts in the Cayman Islands. Although neither Attorney nor Client have made any affirmative representations to the court about following the court's order, it is clear to Attorney that the court and the opposing party are under the impression that both parties are complying with the court's order, and are relying upon that fact in the ongoing proceedings. Client did not use Attorney's services in any way to make the transfers, and Attorney did not recommend it or know about it until after it occurred. Would it be proper for Attorney to do nothing and say nothing about the matter at this time, in order to protect the client's confidential information?

No, because this is a circumstance where failure to make a disclosure is the equivalent of an affirmative misrepresentation.

Client hired Attorney to represent him in suing his employer for wrongful termination. Attorney proposed a fee arrangement that made the fees contingent on the outcome, and included in the fee agreement that Attorney would advance the costs of litigation. Attorney lost the case at trial, and Client then refused to pay back the costs that Attorney had advanced beforehand. Can Attorney force Client to repay the litigation costs that Attorney advanced to him?

No, because under the fee agreement, the client was only obligated to repay the attorney if they won the case.

Attorney has applied to make a lateral move from her firm to Big Firm, and has already gone through the first two of three rounds of interviews for the position. Attorney agrees to represent Client in filing a breach of contract claim against Construction Company over a commercial development project. Big Firm is representing Construction Company, and the firm's lawyers drafted the contract that forms the basis of Client's complaint. Client claims that Construction Company breached a particular provision of the contract that is arguably ambiguous. Construction Company is confident that its conduct falls within the contractual language in that provision. Is it proper for Attorney to undertake representation of Client in this case?

No, because when a lawyer has discussions concerning possible employment with an opponent of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the lawyer's representation of the client.

A government agency contacts Attorney, who works as in-house counsel for Corporation, and requests a report about some of Corporation's activities that come under the agency's regulatory jurisdiction. As Attorney begins to investigate the matter to prepare the report, he learns that the information requested by the agency will subject Corporation to significant regulatory enforcement sanctions, and if the information became public, would adversely affect Corporation's share price. At this point, the agency has not issued a subpoena and compliance with the request is voluntary, although the agency could compel the disclosure eventually. The managers and directors of Corporation instruct Attorney not to submit the report until the agency issues a subpoena, in order to buy some time to mitigate their regulatory violations. May Attorney prepare the report and submit it to the agency at this time?

No, because when a lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.

Attorney represents Client before a government agency that enforces securities regulations. As part of the representation, Attorney must prepare an opinion concerning the legality of the securities registered for sale under the securities laws, for submission to the government agency, which requires such reporting. Client authorizes Attorney to prepare the written opinion, but insists that Attorney exclude any mention of a particular business loss the Client's company incurred recently, in order to avoid upsetting the shareholders. In order to preserve Client's confidential information, Attorney prepares the written opinion without the information Client asked him to withhold. The report does not mention that it excludes some unfavorable information. Attorney prepares the written opinion and gives it to Client, who submits it to the agency. Is it proper for Attorney to follow Client's instructions in preparing this report?

No, because when a lawyer's report categorically excludes certain issues or sources, any such limitations that are material to the evaluation should be described in the report.

Lawyer worked for law firm and represented Client. Sometime after the conclusion of the case, Lawyer left law firm. Potential Client consults with firm after Lawyer left and discusses a potential case with Attorney, another attorney at the firm. Potential Client's interests would be materially adverse to those of Client. Attorney accepts Potential Client's case. Is Attorney subject to discipline?

No, prior attorneys' knowledge is not imputed unless the matter is the same or substantially related or another lawyer in the firm has information that is material to the matter.

Attorney has been practicing law for two years, and has represented some law school graduates in their appeals before the bar when the Board of Law Examiners had denied the applications for licenses on character or fitness grounds. A former law school classmate, who was a first-year student when Attorney was a third-year student, visits Attorney in his office. The former classmate was on law review and graduated near the top of the class, but now he expresses concern about the character portion of the bar application. "I need you to represent me before the Board of Law Examiners," the former classmate said. Attorney asks the classmate to explain the problem. The classmate then explains a history of heroin addiction in college, which led to a criminal conviction and a period of incarceration but a successful rehabilitation program enabled the student to beat this addiction and live drug-free throughout law school. The classmate does not want to disclose this on the bar application. Attorney declines to represent the former student, and later receives a call from the bar examiners, inquiring about this former classmate's character and fitness. Attorney then recounts everything the classmate said about the past addiction and criminal conviction. Was Attorney's conduct proper in this situation?

No, the former classmate here was a prospective client, and the attorney owed a duty of confidentiality, even though no representation occurred.

As mentioned in class, what is currently the practice area generating the largest number of Law Professional Liability claims?

Real estate

Attorney is in-house counsel for a large international corporation and has daily contact with higher-level executives and managers. One day, a senior executive mentions casually to Attorney that he has offered lucrative stock options, worth millions of dollars, to a foreign government official who has agreed to give the firm an exclusive contract to provide certain goods and services to the foreign state. The executive seems to think this is normal and good for the company, but Attorney believes it constitutes bribery of foreign officials, which would violate the Foreign Corrupt Practices Act, and could subject the company to enormous fines and penalties. Attorney explains her concerns to the executive, including her concern that he could face personal criminal charges in addition to bringing liability on the corporation, and she reminds him that she represents the corporation, not him personally. The executive is dismissive of her concerns, even though she approaches him several times about the matter. How must Attorney proceed?

She should approach the executive's immediate corporate superior, advising those next up the chain of authority to stop the transaction and take appropriate actions against the executive involved.

What is wrong with charging a contingent fee in a criminal case, according to the ABA Model Rules of Professional Conduct?

The Comments to the Model Rules do not articulate a clear rationale for this prohibition, but it is a longstanding tradition

Business Manager and Shift Supervisor, who worked at a customer service call-center, became co-defendants in a lawsuit by a disgruntled former employee. The plaintiff claimed to have been the victim of gender discrimination in the form of a hostile work environment, as well as intentional and negligent infliction of emotional distress related to the same factual allegations about her treatment at the workplace. Business Manager hired Attorney to represent both himself and the Shift Supervisor, who had been the plaintiff's direct superior. Based on Business Manager's initial investigation and review of the personnel files of the plaintiff and the Shift Manager, he believes the allegations are baseless and that the suit will end in a dismissal or summary judgment before trial. Shift Supervisor had a spotless work history, but the plaintiff had numerous interpersonal conflicts with her peers, was frequently late for work or missed work completely, and was the subject of several customer complaints. From his consultations with the defendants, Attorney understood that both Business Manager and Shift Supervisor were equally targets of the complaints. Business Manager and Shift Supervisor both gave Attorney written informed consent to the potential conflicts of interest in having Attorney represent both of them. Business Manager obtained tentative permission to have the business cover the legal fees for Attorney. Near the end of the discovery phase, however, plaintiff produced numerous inappropriate love letters to her from Shift Supervisor, many with explicit sexual overtures, and a few that sounded threatening based on her lack of response to previous letters. In addition, several co-workers of plaintiff gave depositions explaining that they had witnessed Shift Supervisor engaging in inappropriate and unwanted touching of plaintiff on many occasions. Several also testified that Shift Supervisor would often accost her for ten or fifteen minutes outside, before she could reach her workstation, and that this was the cause of her tardiness for work. Business Manager had never heard about any of these problems before. Moreover, during depositions the plaintiff explained that she always had very little contact with Business Manager and had no direct complaints about his treatment of her, and acknowledged that she had never complained to Business Manager about Shift Supervisor's harassment of her. She disclosed that Business Manager was a co-defendant only because her attorney believed it was necessary to name someone from upper management in the lawsuit in order to trigger the legal protections of Title VII and other antidiscrimination laws. Business Manager then revoked his consent to the conflict of interest, explaining that he wanted separate representation from Shift Supervisor. Trial was due to begin two weeks later. Would it be proper for Attorney to continue representing either Shift Supervisor or Business Manager, but withdraw from representing the other?

Yes, Attorney can probably continue representing Shift Supervisor but not Business Manager, given the nature of the conflict, the fact that Business Manager revoked consent because of a material change in circumstances, the expectations of Shift Supervisor, and so on.

Attorney has been representing Client in a simple adoption of an orphan from Zimbabwe. Corporation then hires Attorney to defend it against a defective-products lawsuit brought by Victim, whom Attorney does not represent. During the discovery phase of litigation, before trial, Victim's lawyers disclose the list of witnesses they plan to call to support Victim's claims of injuries and the scope of damages. Attorney notices that Client, for whom he has been handling an adoption matter, is going to testify at trial in support of Victim's claims, against Corporation. Client is still unaware that Attorney is representing Corporation, and Client is merely testifying as a friend of Victim about Victim's character traits of caution and care, and the suffering Victim has endured since the incident with Corporation's defective product. Attorney was not aware that Client even knew Victim, and unsurprisingly did not obtain consent from Client, Corporation, or Victim about this issue. Is Attorney subject to disqualification in this case?

Yes, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit.

Attorney obtained a successful outcome in Client's matter, and Client was grateful. Client sent Attorney a gift basket that year as a holiday gift, containing high-quality fresh fruit, sample-size jars of gourmet fruit preserves, and a few other delicacies. The gift basket cost Client $50. Is it proper for Attorney to accept this gift, or must Attorney refuse it?

Yes, a lawyer may accept a simple gift such as a present given at a holiday or as a token of appreciation.

Attorney represented client in a criminal matter. Client had a history of mental illness, and the court ordered a psychological examination to determine if Client would be competent to stand trial. The case did not involve an insanity defense or a defense of diminished capacity. The psychologist who evaluated Client spoke privately to Attorney, and explained that Client was indeed competent to stand trial, but that in his opinion, Client also suffered from delusional narcissism, paranoia, and oppositional-defiant syndrome. The psychologist pleaded with Attorney not to tell Client about this diagnosis, because the disclosure could harm the client, triggering an episode of paranoia in which the client would suspect that everyone around him was conspiring to institutionalize him, and he would become uncooperative at trial and mistrustful of his own lawyer. Attorney told Client that the psychologist had deemed him competent to stand trial and did not disclose the rest of the psychologist's assessment. Was it proper for Attorney to conceal the psychologist's diagnosis from Client?

Yes, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication, including a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client.

Client met with Attorney for a free consultation, and explained that she had met with two other lawyers for consultations and that she planned to hire one of the three to provide the legal services necessary to set up her professional business. Attorney needed to make a good impression on Client, so he mentioned a few prominent accountants and physicians in town whom Attorney had represented and helped with incorporating their partnerships or practice groups. These former clients had never explicitly authorized Attorney to disclose his representation of them in these matters. Client hired Attorney, and Attorney provided the legal services necessary to set up her business. Unfortunately, a dispute arose between Client and Attorney over the fees, and this fee dispute turned into litigation between Attorney and Client. In order to support his claims and defenses in the fee dispute, Attorney had to disclose to the tribunal exactly what he did for Client and the complexity of the issues involved, which necessarily involved the disclosure of confidential information. Was it proper for Attorney to disclose this confidential information about Client merely to prevail in a fee dispute?

Yes, a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.

Attorney represents Conglomerate Corporation in a regulatory compliance matter, drafting documents for Conglomerate to file with the Securities and Exchange Commission and the Federal Trade Commission regarding executive salaries (for the SEC) and product market share (for the FTC's antitrust inquiry). Conglomerate Corporation owns or co-owns numerous subsidiaries and affiliates in unrelated industries. Attorney's retainer agreement limits his representation exclusively to the SEC and FTC regulatory matters. Victim hires Attorney to represent him in a personal injury suit against Subsidiary Corporation, partly owned by Conglomerate Corporation, over a slip and fall accident in Subsidiary's parking lot. Is it proper for Attorney to represent Victim in a tort action against an affiliate or subsidiary of his other client, Conglomerate Corporation?

Yes, a lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary, and the lawyer for an organization may provide representation adverse to an affiliate in an unrelated matter.

Attorney has taken on many new clients recently, and is having trouble managing her time and meeting deadlines, though she has not missed any deadlines yet in any client matter. At one pre-trial hearing, opposing counsel asks for a two-month postponement of the previously scheduled trial, to Attorney's great relief. Attorney readily agrees, because the postponement will enable her to attend to other urgent client matters and will give her more time to prepare for the trial. After she returns to her office from the courthouse, Attorney calls her client to notify him about the trial postponement. Client is upset about the postponement because he wanted the matter resolved as quickly as possible, and he accuses Attorney of putting her own scheduling needs ahead of his interests. Attorney explains that they have not lost anything through the postponement, and that Attorney will now have more time to prepare for the trial, so the delay is probably advantageous for Client's case, both from a strategic and a preparation standpoint. Client accepts Attorney's answer but still feels disappointed that Attorney did not ask him first, in which case he would have expressed his will to contest the postponement. Is Attorney in compliance with her ethical duties under the Rules of Professional Conduct?

Yes, a lawyer's duty to act with reasonable promptness does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client.

Client and her estranged husband have lived separately for several years. Client faces charges for involvement in an armed robbery. Client retains Attorney to represent her in the armed robbery case. Client's estranged husband learns that Client faced criminal charges and looks up her attorney's information in the local court records. Client's estranged husband then contacts Attorney and asks to make a payment for Client's representation because he feels guilty for leaving her several years before. Attorney accepts payment from Client's estranged husband. Is Attorney subject to discipline?

Yes, attorneys are required to obtain informed consent from the client before accepting payment from a third party.

Attorney is representing the plaintiffs in a class action lawsuit over a mass tort, and the case has become surprisingly complex and time-consuming. The federal court has scheduled a five-week trial for the case, and the trial is coming up next week, meaning that Attorney must work long hours on trial preparation from now until then. Attorney has about twenty other open cases with other clients, but none of them have motions due until after the upcoming class action trial, so Attorney has been focusing exclusively on the class action suit and has been temporarily ignoring the other cases. Attorney has not commenced discovery on the other cases or responded to recent discovery requests, because they do not even have scheduled trial dates yet, and there is nothing new to report to the clients about the other cases, so Attorney has not been in touch with them for the last two or three months. Could Attorney be subject to discipline for procrastinating about these other cases?

Yes, because a client's interests often can be adversely affected by the passage of time or the change of conditions, and unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness.

At a press conference about the prosecution of an accused serial killer, the prosecutor stated that the police arrested the defendant at the scene of one of the crimes soon after the crime occurred, at 11 pm on Saturday. Was it proper for the prosecutor to disclose such information about the case to reporters?

Yes, because a lawyer in a criminal case may state the fact, time, and place of arrest.

Attorney was representing Client in a criminal matter. At the bail hearing, the prosecutor told the court that the defendant was a flight risk, and asked the court either to confine the defendant until trial or to set bail at $15,000. When it was Attorney's turn to speak, he assured the judge that Client had a medical condition that would prevent him from leaving the area, and that Client did not intend to flee the jurisdiction, but was confident that he could stand trial and clear his name of all charges. Attorney knew, however, that Client already had plane tickets to Venezuela, a non-extradition country, and that Client had already fully recovered from his serious medical condition. Is Attorney subject to discipline for making these statements to the court?

Yes, because a lawyer may not knowingly make a false statement of fact or law to a tribunal.

A judge lost his temper with Attorney and spoke very abusively to him in open court, in front of a jury, using profanity and calling Attorney "an embarrassment to the profession and a menace to his own clients." Attorney shot back that the judge was completely out of line, that the judge should have retired years ago Attorney also made a mildly obscene gesture at the judge. Eventually, both calmed down and apologized to each other profusely. Opposing counsel reported Attorney to the state bar disciplinary authority, but did not report the judge, before whom opposing counsel appears regularly. Could Attorney be subject to discipline?

Yes, because a lawyer may stand firm against abuse by a judge but should avoid reciprocation;the judge's default is no justification for similar dereliction by an advocate.

Client hired Attorney to represent her in a personal injury lawsuit in which Client is the plaintiff. After an initial consultation and two meetings to review the main evidence in case and to discuss the nature of the claims, Attorney drafted the initial pleadings, served the opposing party, and filed the pleadings in the appropriate court. Attorney did not allow Client to review the pleadings before filing them, and afterward, Client expresses disappointment that she did not have the opportunity to review the pleadings beforehand and make suggested edits, given that it is her case and that Attorney is working for her. Was it proper for Attorney to draft the pleadings based on conversations with the plaintiff and file the documents without first having the plaintiff review them?

Yes, because a lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.

Attorney works as a public defender. The office is always under-funded, meaning they cannot afford to hire enough staff attorneys, and the current attorneys all carry an overload of cases. Attorney feels that she is unable to provide full representation to each client, as she must conduct about seven plea bargaining sessions for different clients per weekday, and usually meets the clients for the first time about fifteen minutes before each plea bargain session. Each plea bargain takes about an hour, with short breaks in between. Attorney strongly encourages nearly all of her clients to accept a plea bargain, because taking one case to trial will mean that the public defender's office must turn away about two dozen indigent clients. Attorney and her colleagues believe that it is better for defendants to have a little representation rather than none at all, and that most defendants would lose at trial anyway. Does Attorney have an ethical problem, under the Rules of Professional Conduct?

Yes, because a lawyer must control her workload so that each matter can be handled competently.

Client hires Attorney to represent her in business litigation. Another lawyer in the firm, unknown to Attorney, approaches Client with a proposal for an unrelated business transaction, the sale of a parcel of real estate adjacent to the lawyer's own land. Client agrees to sell the other lawyer in the firm the parcel of real estate for a reasonable price. The lawyer is not involved at all in the representation of client and works exclusively in the estate-planning department of the firm, rather than in litigation. Must the lawyer nevertheless advise the client in writing of the desirability of seeking the advice of independent legal counsel, and obtain written informed consent from the client before proceeding with the purchase?

Yes, because a prohibition on conduct by an individual lawyer under the conflicts of interest rules would automatically apply to all lawyers associated in a firm with the personally prohibited lawyer, even if the first lawyer is not personally involved in the representation of the client.

Attorney represents Client in a civil matter. Client's case went to trial and Client lost. Client wished to appeal the matter. Attorney did not file an appeal because there was no agreement that the attorney would handle the appeal. The period of time in which Client could file an appeal expired and no appeal was filed. Is attorney subject to discipline?

Yes, because an attorney must discuss the possibility of an appeal prior to relinquishing responsibility for a client's case if there were no prior discussions regarding whether or not the attorney would handle the appeal process.

A state bar adopted a new ethical rule for lawyers that forbid contingent fees higher than 30%. Attorney agrees to represent Client in a tort case that is in federal court due to diversity jurisdiction. Attorney and Client form a written fee agreement that provides for a 33% contingent fee, which is still legal in most jurisdictions. Is Attorney subject to discipline for this contingent fee agreement?

Yes, because applicable state law may impose limitations on contingent fees, such as a ceiling on the percentage allowable, or may require a lawyer to offer clients an alternative basis for the fee.

Attorney gave a consultation to Client, who wanted Attorney to represent him in a regulatory takings case over changes in zoning and land use rules that interfered with Client's intended use of his property. Attorney was a recent law school graduate, and had her own small law firm. She had never handled a regulatory takings case before, which she explained to Client. Nevertheless, Attorney agreed to take Client's case and to do the research necessary to get up to speed on the law in that area. As Attorney began researching the area, she found it terribly confusing, and eventually called a friend from law school for help, another lawyer in the area. The other lawyer had an impressive familiarity with the law of regulatory takings, and offered to join Attorney as co-counsel in the case in exchange for an even split in the fees. Attorney agreed to this arrangement privately with the other lawyer, though Client was not aware of it, and together they achieved exactly the result that Client sought in the case. Attorney's bill to Client at the end of the representation was exactly what they had agreed in the retainer, and Client paid. Attorney then split the amount with the other lawyer who helped her. Is Attorney subject to discipline in this situation?

Yes, because before a lawyer retains or contracts with other lawyers outside the lawyer's own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers' services will contribute to the competent and ethical representation of the client

Attorney has represented Client in the past on various transactional matters. They have always operated under an oral agreement about the fees, and they have never had a dispute over fees in the past - Attorney would send Client a bill, and Client would pay it. Recently, Client contacted Attorney by phone about representing him as a plaintiff in a personal injury lawsuit. Attorney agreed, and then explained that he would charge a contingent fee in the case, so that Client did not have to worry about how much time Attorney had to put into the case, as Client would still receive the same share of whatever amount they won. Given their long history of working together, Attorney offers to set the contingent fee below the rate charged by other attorneys in the area, and they agree over the phone on a 25% contingent fee for Attorney, after costs and expenses. They never formalize this agreement in writing, though at the end of the case, after they prevail and win a large verdict, Attorney sends Client a written statement about keeping 25% of the award for his fee. Client is very happy with the outcome of the case and they have no dispute over this fee. Would Attorney be subject to discipline in a situation like this?

Yes, because contingent fees must always be formalized in writing at the beginning of representation.

Attorney represented Client in a prosecution for murder, and the prosecutor was seeking the death penalty. The trial was not going well, and the judge had not sequestered the jury, so Attorney sent his secretary to visit some of the jurors in their homes one evening, bringing them cookies and talking to them about the seriousness of sentencing a fellow human being to death. The secretary did not say she worked for Attorney, but instead introduced herself as a member of an advocacy group that seeks to abolish the death penalty, and she left pamphlets about abolishing the death penalty in each juror's home. Could Attorney be subject to discipline for this activity?

Yes, because he was communicating ex parte with the jurors through the secretary during the proceeding.

A witness testified on Client's behalf at trial. That evening, when Attorney was reviewing exhibits and documents to prepare for the next day of trial, he noticed a document that completely negated the witness' testimony from earlier that day. The testimony was material evidence in the case. The witnesses left the jurisdiction after his testimony concluded, and he is no longer available to correct the false statements. The opposing party's lawyer waived his opportunity to cross-examine the witness, because the testimony was unfavorable to his side and he was eager to move on to a more favorable witness. Does Attorney have a duty to take remedial measures to correct the false testimony, such as disclosing the falsehood to the court?

Yes, because if a witness called by the lawyer has offered material evidence, and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

Big Firm represents hundreds of corporate clients out of a dozen offices in different states. The firm has no formal procedures in place to check for clients at the outset of representation for new clients, but the managing partner of the firm has an incredible memory and has never failed to spot a potential conflict of interest in the past. Attorney agrees to represent a new corporate client that owns many subsidiaries, and checks with the managing partner, who assured Attorney there are no potential conflicts. After the new corporate client had disclosed a substantial amount of confidential information, it emerged that some of its subsidiaries were directly adverse to other clients of Big Firm. Attorney was completely unaware of the potential conflicts at the time he agreed to the representation, despite asking the corporate client a few questions about the opposing parties in pending litigation it might have. Will Attorney be subject to discipline for not declining representation in this case?

Yes, because ignorance caused by a failure to institute reasonable procedures, appropriate for the size and type of firm and practice, will not excuse a lawyer's violation of the Rules regarding conflicts of interest.

Attorney represents Client, who is a defendant in a criminal matter. Defendant faces felony charges. Attorney is very experienced in handling this type of case, and knows from experience that defendants receive acquittals far more often in jury trials than in bench trials, at least with this type of case. Client, however, does not want to incur the legal fees involved in jury selection (voir dire, etc.), and cannot really afford it, so Client tells Attorney that he does not want a jury trial, but rather a bench trial. Attorney is convinced that Client is innocent of the crimes charged, and that a bench trial is likely to result in a wrongful conviction in this particular case, given some of the evidentiary issues. Attorney postpones notifying the court that the defendant will waive his right to a jury trial, in hopes of changing Client's mind. The court schedules jury selection, and Attorney goes and participates in the voir dire without telling his client, because he still hopes and believes that he will change his client's mind about the issue. On the first day of trial, Client arrives in court and is shocked to see a jury seated. Defendant stands and objects loudly to the jury and explains that he wants to waive his right to a jury trial and have a bench trial instead. The judge refuses to dismiss the jury at this point, informing the defendant that his opportunity to request a bench trial has passed. The trial proceeds and the jury acquitted Client of all charges, as Attorney had expected, and to the apparent dismay of the judge, who would have ruled to convict if it were up to him. Is Attorney subject to discipline in this situation?

Yes, because in a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to whether to waive jury trial.

Attorney works for a state-operated legal aid clinic, which under a state statute counts as a social service agency. The state has a mandatory reporting law for child abuse, which statutorily requires employees of social service agencies to report any instances of child abuse they discover among their clients or constituents. Attorney met with a prospective client and her child to discuss possibly representation at a welfare termination hearing. The prospective client did not meet the agency's guidelines to be eligible for free legal representation, however, so Attorney had to decline the case. Nevertheless, it was evident during the interview that the prospective client's child was the subject of serious physical abuse - a black eye, cigarette burns on her arms and neck, bruises on the backs of her legs, and a demeanor of cowering in fear around adults. Attorney wanted to talk to the mother about it, but has been unable to reach her since declining to represent her. Must Attorney report the prospective client for child abuse?

Yes, because state law requires the disclosure, and a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to comply with other law.

A new federal Treasury Regulation provides that attorneys who prevail in tax cases on behalf of their clients against the Revenue Service are entitled to attorneys' fees at the fixed rate of $100 per hour, not to exceed $100,000. Attorney lives in a state that allows "reasonable" fees, and he makes a written fee agreement with Client for an additional $100 fee per hour, on top of whatever fees the Treasury Regulations allow in their case. If the Client provides written informed consent, could Attorney be subject to discipline for this fee agreement?

Yes, because state rules about legal fees are subject to limitations by applicable law, such as government regulations regarding fees in certain tax matters.

Client hired Attorney to handle a transactional matter. Client, a billionaire, wants to devote several million dollars to philanthropy. There are several alternative ways to achieve Client's goals - incorporating a 501(c)3 charitable corporation, establishing a private foundation, creating a charitable trust, operating a nonprofit unincorporated association, or simply donating the money to an existing charity of some kind. Each alternative has different pros and cons regarding immediate tax benefits for the donor versus tax deductions for subsequent contributors, permissible activities for the charitable entity, donor control versus independence, eligibility for government grants, and administrative costs related to accounting and recordkeeping. Attorney does not discuss all of these details with Client, though, because Client said at the outset that he trusted Attorney's judgment, and Attorney believed Client would find the details tiresome and confusing. Attorney set up a private foundation for Client because this seemed to provide Client with the greatest immediate tax benefits and the highest degree of control in the long term. The downside was that the private foundation option involved burdensome paperwork and reporting to the IRS every year, imposed annual spend-down requirements, and limited the tax benefits for any other philanthropists who wanted to donate to the foundation later. Attorney believed the pros outweighed the cons in this case, but Client was unhappy because he wanted to start something that would grow and attract other wealthy philanthropists who might get involved, and the administrative costs drained some of the funds that Client had hoped would go directly to charitable causes. Could Attorney be subject to discipline for how he handled the matter?

Yes, because the Rules of Professional Conduct require a lawyer to consult with the client about the means to be used to accomplish the client's objectives.

Attorney normally represents Client in commercial litigation matters, but in one particular case, Attorney had to testify as a witness during the trial, so he arranged for another firm to represent Client during the trial at which Attorney testified. Client prevailed at trial, and the opposing party filed an appeal. Attorney's testimony from the trial is not an issue in the appeal instead, the appeal focuses on the apportionment of fault and certain guarantees in a commercial contract. The firm that handled the trial did not do appellate work and ended their termination of Client after the trial ended in a favorable verdict. May Attorney represent Client in the appeal, even though Attorney testified at the trial?

Yes, because the advocate-as-witness rule generally applies only to representation during the trial, unless the lawyer's testimony is an issue on appeal.

Attorney is representing himself in his divorce proceeding. Would it be proper, under the advocate-witness rule, for Attorney to testify as a witness on his own behalf in the proceeding in which he represents himself?

Yes, because the advocate-witness prohibition does not apply to pro se litigants who are attorneys.

During a trial, the judge overruled one of Attorney's objections. Attorney felt that the judge had made a fundamental error and had ignored a clear provision of the official Rules of Evidence. Court adjourned for the day a few minutes later, and the judge retreated to his chambers. Attorney approached the judge's clerk, who was still in the courtroom, and gave him a handwritten note, folded into a square, to pass along to the judge. The clerk gave the note to the judge. The note thanked the judge for recently inviting Attorney to the judge's home, along with sixty other people from the legal community, for a holiday party. It also said that the judge had made a mistaken ruling on Attorney's objection that day, and referred the judge to the relevant provision of the Rules of Evidence. Could Attorney be subject to discipline for his actions?

Yes, because the attorney communicated ex parte with a judge communicating ex parte with a judge during the proceeding, without being authorized to do so by law or court order.

Client, a large auto dealer, retains Attorney to represent him in a bankruptcy case. Attorney's firm represents a bank, through which Client has several large loans that covered loans for the dealership. The loans are all contained in the bankruptcy. Attorney is concerned about whether there is a conflict, so he contacts a lawyer friend of his. While explaining his dilemma, Attorney tells Friend the name of the dealer. Is Attorney subject to discipline?

Yes, because the attorney disclosed more than what details were necessary to accomplish his purpose.

Attorney represents Conglomerate Corporation in a lawsuit against the company brought by an individual plaintiff. The lawsuit could bring very bad publicity to Conglomerate Corporation and could adversely affect its stock share price. Conglomerate offers to settle the matter quietly, but the plaintiff rejects the settlement offer. Attorney then files a counterclaim against plaintiff, alleging libel and slander of Conglomerate Corporation, vexatious litigation, and tortious interference with contract, for which he demands millions of dollars in damages. Attorney and plaintiff's counsel both know these counterclaims lack any real basis in fact, but will be costly for plaintiff to defend. Attorney uses the counterclaims as leverage in reopening the settlement negotiations, offering to withdraw the counterclaims if plaintiff will accept a new, slightly higher settlement offer. The plaintiff calculates the cost of defending against the counterclaims and the difference between the settlement offer and the expected damages if plaintiff wins at trial, and reluctantly agrees to accept the terms of the offer. Could Attorney be subject to discipline for filing the counterclaims?

Yes, because there is no factual basis for the claims, and the lawyer did not bring them in good faith.

Attorney represents Client, who wants to sell his business. A prospective purchaser has required from Client an evaluation of the business' solvency, detailing its current liabilities, potential liabilities, revenue, and assets. Client provides Attorney with documents pertaining to each of these issues, and explains to Attorney in confidence that he has often understated the earnings of the business in order to avoid paying taxes on the business profits. Now he is concerned that the prospective purchaser will undervalue the profitability of the business and refuse to pay an appropriate price to purchase it. He asks Attorney to adjust the earnings figures upward by 25%, the same amount by which Client falsely lowered them in the corporate records, in order to portray the business accurately to the potential purchaser. Attorney finds this objectionable and prepares a report based on what the records actually say regarding the earnings, and gives the evaluation directly to the purchaser. When Client learns about this, he explains to the prospective purchaser over the phone what happened. Despite the low reported earnings, the purchaser pays Client's asking price for the business, because of Client's truthful representations over the phone. Could Attorney be subject to discipline for his conduct in this matter?

Yes, because under no circumstances is the lawyer permitted to knowingly make a false statement of material fact or law in providing an evaluation for a third party.

Attorney agreed to represent Seller, who wishes to sell her business to Buyer, a sale already bogged down in protracted negotiations over sale price, outstanding liabilities, and certain trade secrets. Attorney also represents Buyer in unrelated litigation over custody of his children after a divorce. Buyer and Seller are not litigating against each other, and that Attorney represents each in completely unrelated matters. Must Attorney obtain informed consent from each client to undertake representation of Seller in the negotiations over the sale of the business?

Yes, directly adverse conflicts can also arise in transactional matters, and when a lawyer agrees to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer cannot undertake the representation without the informed consent of each client.

An insurance company hired Attorney to represent one of its policyholders. The insurance company requires periodic updates and detailed billing statements about the matter from Attorney, as part of its agreement to provide representation for its insured. In addition, the insurance company requires Attorney to submit detailed billing statements to a third-party auditor, designated and paid by the insurance company. Client is unaware of these reporting requirements and did not provide explicit consent to either of them. The third-party auditor receives no information except the name and policy number of the client and the time spent by Attorney on various tasks necessary for the representation. Could Attorney be subject to discipline for disclosing confidential information?

Yes, even though the policyholder impliedly authorized the Attorney to provide updates and billing statements to the insurance company, submitting the bills to the third-party auditor constitutes an unauthorized disclosure of confidential information.

Attorney represents Client in a family law matter. A hearing is set for Monday. On the Wednesday prior to the scheduled hearing, Client calls Attorney and advises that Client no longer wants to be represented by Attorney and that Attorney's representation is considered terminated as of the date and time of the call. Client advises that she intends to retain another attorney prior to the hearing. After receiving the call from Client, Attorney schedules another matter for Monday, does not appear at the hearing, and does nothing further on the case. Is Attorney subject to discipline?

Yes, if representation has begun, attorney is required to withdraw from the case and take reasonable steps to mitigate consequences to client if discharged by client.

After much effort, Attorney located an expert witness who could substantiate his client's claims and could refute the testimony of the opposing party's expert witness. The expert witness, however, demanded a large retainer fee to review the case documents and a fee of $1000 per hour of courtroom time. Was it proper for Attorney to agree to pay the expert witness a princely sum to testify at the trial?

Yes, it is proper to compensate an expert witness on terms permitted by law.

Client paid his legal fees to Attorney in cash. The total fees were $11,100, and Client paid Attorney in bundles of twenty-dollar bills. The Internal Revenue Code, 26 U.S.C. § 6050, requires that lawyers disclose, through Form 8300, the identities of clients, amounts, and payments dates of all cash fees in excess of $10,000. Client already forbid Attorney to disclose the information to the IRS. Must Attorney disclose Client's name, the amount, and the dates of payment on Form 8300?

Yes, the Internal Revenue Code supersedes the Rules of Professional Conduct regarding the duty of confidentiality, so the lawyer should make such disclosures as are necessary to comply with the law, after informing the client.

During a deposition, Client gives testimony that Attorney, who is representing Client, knows is false. Does Attorney have an affirmative duty to take remedial measures to correct the false statements offered by Client?

Yes, the ethical duty to take remedial measures when a client offers false statements applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition.

Husband hired Attorney to represent him in a divorce the husband and wife had three adult children. Husband was quite upset when he met with Attorney, because his wife had filed for divorce and he felt deeply betrayed. The couple had a prenuptial agreement that clearly delineated the division of assets in case of divorce, and child custody is not an issue as the children are in their twenties. As part of his routine consultation questions, Attorney asked if there had been any marital infidelity on the part of either the husband or wife. Husband admitted to Attorney that he once had an affair many years ago, that the wife never discovered, and that he wanted to keep secret, if possible. He then speculated that he had no idea if his wife had ever had an affair, then became very emotional as he considered the possibility. Within minutes, he had convinced himself that his wife had been having affairs with other men for years, though he never knew it, and that the three children were probably not even his offspring. Attorney had already looked at Husband's photograph of his children, and their resemblance to their father (Husband) was remarkable. Attorney finds repugnant the idea of subjecting the adult children to paternity tests, which would probably traumatize them unnecessarily, regardless of the result. Attorney also believes that accusing the wife of infidelity would be imprudent, as it will ensure that the family would discover Husband's previous affair, which otherwise might not happen. Without the accusations of infidelity, all the issues of the divorce would come under the prenuptial agreement and not be in dispute. Attorney insists on limiting his representation to the divorce, and wants to include in the retainer agreement that there will be no accusations of infidelity or paternity testing of the children, unless the other side initiates in this regard. After Husband calms down, he agrees to Attorney's conditions of representation. Is it proper for Attorney to insist on such conditions of representation?

Yes, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives, such as actions that the lawyer regards as repugnant or imprudent.

Three individuals hire Attorney to represent them as co-defendants in a tort action. Attorney tells them that there could be a potential conflict of interest if he represents all three of them, and that they will need to sign informed consent forms, which they do. The three individuals have common goals and interests in the litigation, so they do not hesitate to sign the forms or inquire further about the implications of the potential conflicts. No further discussion occurs about the issue, and Attorney proceeds with the representation. Could Attorney be obligated to withdraw from representation later in the litigation, if the clients gave written consent to the shared representation at the outset?

Yes, when representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved.

The ABA Comment to Model Rule 1.7 (entitled "Conflict of Interest: Current Client") mentions a few reasons that, 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. Which of the following, though probably true, is NOT one of the reasons identified in the Comment?

Any time that the lawyer bills for the matter would simultaneously go to both clients, meaning the lawyer inevitably will engage in double billing and receive double fees for every hour worked on the case.

Attorney serves as the lawyer for a corporation and also is a member of its board of directors. Which of the following is true regarding this situation?

Attorney must advise the other board members that in some circumstances, matters they discuss at board meetings while Attorney is there as a fellow director would not be protected by the attorney-client privilege in later litigation;and that conflict of interest considerations might require Attorney's recusal as a director, or might require Attorney to decline representation of the corporation in a matter.

Client owns a partnership share of a closely-held business, and the other partners vote to impose an involuntary buy-out of Client in order to remove him from the firm. Client is very upset about this, but the partnership agreement clearly permits involuntary buyouts by a majority vote of the other shareholders. Client hires Attorney to represent him in the buyout transaction, to review the necessary documents and provide legal counsel about it. No litigation is under consideration yet. Attorney's sister is also a lawyer in that city, at another firm, and the sister represents the other shareholders in the partnership. Attorney did not disclose that her sister represented the other partners, as she and her sister are not close and rarely speak, and the matter is unlikely to turn into litigation. Is Attorney, or the other lawyers in her firm, subject to disqualification in this matter?

Attorney would be subject to disqualification, but ordinarily the other lawyers in her firm would not be subject to disqualification.

As mentioned in class, what is currently the most frequently alleged malpractice error in Law Professional Liability claims?

Conflicts of interest

What is the most frequently occurring enforcement mechanism for the rules regarding conflicts of interest?

Disqualification from representation at the request of the opposing party in litigation

How does a contingent fee work, outside of plaintiff's personal injury cases?

In contract litigation, sometimes the lawyer's fee depends on the amount saved, rather than the award;in some stock offerings, fees depend on capital generated

Attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired Attorney for a substantially higher salary, and Attorney accepted the position and left her government position. One of Attorney's first assigned cases at Big Firm was a new action by Client against Conglomerate Corporation. Attorney had worked on an enforcement against Conglomerate Corporation but did not learn any confidential governmental information about the entity during the litigation, but other lawyers who worked on the litigation before and after Attorney did learn confidential government information. Conglomerate Corporation seeks to disqualify Attorney from the representation of client, arguing that the confidential government information known to Attorney's previous employer, while Attorney worked there, is imputable to Attorney. The government agency gives its informed consent, confirmed in writing, to the representation. Is Attorney nevertheless subject to disqualification in Client's matter against Attorney's former employer?

No, because Attorney does not have confidential government information about Conglomerate Corporation, and the Rules of Professional Conduct require actual knowledge on the part of the former government lawyer litigating against a private party;it does not operate with respect to information that merely could be imputed to the lawyer.

Attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired Attorney for a substantially higher salary, and Attorney accepted the position and left her government position. One of Attorney's first assigned cases at Big Firm was a new action by Client against the same government agency for which Attorney had previously worked, defending against an enforcement action that Attorney had initiated while at the agency. The defense will involve challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, Attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in Client's challenge, but instead worked exclusively on enforcement litigation matters. The government agency refuses to consent to Attorney representing Client, who is the adverse party to the agency, in this matter, and seeks to disqualify Big Firm from representing Client. Is Big Firm subject to disqualification in Client's matter against Attorney's former employer?

No, as long as Big Firm screens Attorney in time from any participation in the matter and provides the agency with prompt written notice about the screening measures in effect.

Years ago, as a law student, Attorney worked on a case for Client during a law firm internship. Now, Attorney's firm is representing a Defendant in a lawsuit in which Client is the plaintiff. Client's new lawyer moves to disqualify Attorney's firm from the representation when it learns that Attorney worked for another firm on behalf of Client when Attorney was still a law student. Is Attorney's firm subject to disqualification in this case?

No, as long as the firm screens Attorney from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect.

A legal secretary in a law firm is married to the owner of an independent retail-clothing store. The firm undertakes representation of a clothing wholesaler, who is suing the same independent clothing store over nonpayment for shipments of merchandise. The legal secretary's husband hires another firm to represent his store in the lawsuit, and his lawyer asks the court to disqualify the legal secretary's firm because of her position there. Should the firm be subject to disqualification?

No, as long as the firm screens the legal secretary from any involvement in the case or from access to any confidential information about the case.

Attorney, a partner at a law firm, prepares a will for Sister. In the will, Sister directs Attorney to receive a substantial part of her estate. Attorney also recommends Sister appoint Attorney as the executor of the will because of his knowledge in this field. Attorney explains to Sister the role of the executor and the pay the executor of the estate will receive, and discussed alternative executor choices with her. Attorney recommends Sister seek independent legal counsel regarding the issue of the executor. Sister does so, and then she asks Attorney to list him as executor in the will. Is Attorney subject to discipline?

No, attorneys are not prohibited from including gifts to themselves in a will prepared by an attorney for a person related to the attorney, even if the gift is substantial.

Parent retains Attorney to represent Defendant, who is Parent's 16-year-old child accused of shoplifting. Because Parent is paying for his services and because Defendant is a minor, Attorney generally communicates with Parent about the proceedings, options for disposing of the case, and other case-related issues. After speaking with Parent about a plea deal that would allow Defendant to do several community service hours and have the case dismissed, Parent advises Attorney that Defendant will take the deal. Attorney contacts the prosecutor who sends the paperwork for Defendant to complete and then cancels the court appearance, advising the Court that a plea deal has been reached. Are Attorney's actions proper?

No, attorneys are required to continue a normal relationship with their client as much as possible, even if the client has diminished capacity.

Attorney represents Client, a non-relative of Attorney, in legal matters and has done so for many years. Client retains Attorney to prepare a will for Client. Client asks Attorney to include in the will a substantial amount of money be given to Attorney as a gift of appreciation for Attorney's years of service, though not as any form of payment for services rendered. Attorney asks Client to seek independent legal counsel prior to including the gift in the will. Upon obtaining advice from independent legal counsel, Client asks Attorney to proceed with the will as directed. Attorney includes the gift in the will. Is Attorney subject to discipline?

No, attorneys may include substantial gifts to themselves when preparing a will for a client if directed by a client, as long as the client receives advice from independent legal counsel and the gift is not solicited by the receiving attorney.

Client retained Attorney to represent him in a car accident case. Client sought to recover $5,000.00 for damage to his vehicle and a few medical expenses Client incurred because of the accident. Attorney failed to timely file a lawsuit for Client before the statute of limitations runs. After realizing that the suit was barred because Attorney failed to timely file, Attorney sent Client a letter with a check for $20,000.00 and an agreement for Client to sign and return. The agreement stated that keeping the $20,000.00 check constituted acceptance of the agreement and that acceptance of the agreement included releasing Attorney for any malpractice claims against Attorney. Is Attorney's conduct proper?

No, attorneys must advise the client of the importance of obtaining advice of independent counsel and provide reasonable time for the client to obtain such counsel prior to settling a claim or potential claim for malpractice.

Attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired Attorney for a substantially higher salary, and Attorney accepted the position and left her government position. One of Attorney's first assigned cases at Big Firm was a new action by Client against the same government agency for which Attorney had previously worked, challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, Attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in Client's challenge, but instead worked exclusively on enforcement litigation matters. Is Attorney subject to disqualification in Client's matter against Attorney's former employer?

No, because Attorney did not participate personally and substantially in the matter as a public officer or employee

Attorney is representing two French restaurants located across the street from each other the restaurants are bitter rivals and have sued each other in the past, using other lawyers. They are the only French restaurants in that area, so they compete for the same customers - their menus, décor, and prices are very similar. The owners were childhood friends who became sworn enemies as adults when one started a restaurant to compete with the other. Attorney represents one French restaurant in a dispute with its landlord, and the other French restaurant in a lawsuit by a former employee who claims she was wrongfully terminated for discriminatory reasons. When each French restaurant learns that Attorney represents the other, they both express deep dismay and some sense of betrayal, given that each is the other's worst enemy. One of the French restaurants believes Attorney has a conflict of interest and complains to the state bar. The other French restaurant, when it loses its lawsuit with its former employee, sues Attorney claiming that he had a conflict of interest in the representation. Does Attorney have a conflict of interest here?

No, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients.

Attorney represents several clients in various matters before the Federal Trade Commission. In one proceeding, the FTC adopts a new interpretation of a recently enacted statute about unfair trade practices, and this becomes the rule of the case. Attorney has some new clients who are at the beginning stages of an FTC inquiry of their business pertaining to the requirements of the unfair trade practices statute. Without mentioning the identity of the other client or the exact nature of the proceedings, Attorney informs the new clients that the FTC has just adopted a particular interpretation that could be very favorable to the new clients in their interactions with the agency, as long as the clients conduct certain internal audits and recordkeeping. Is Attorney subject to discipline for sharing with new clients this information he learned during the representation of the other client?

No, the conflict of interest rules do not prohibit uses that do not disadvantage the client, so a lawyer who learns a government agency's interpretation of trade legislation during the representation of one client may properly use that information to benefit other clients.

Attorney works for a firm. She also describes herself as an outspoken advocate for the rights of unborn children, that is, she passionately favors legal restrictions on abortion. A local abortion clinic asks the firm to represent it in litigation over recent zoning measures that would significantly limit its hours of operation and therefore number of clients the clinic take. The firm agrees to the representation. Attorney firmly refuses to have any part in the representation, and though no formal screening measures are in place, everyone else in the firm avoids discussing the case with her or around her, because they are afraid of receiving another lecture about the wrongfulness of abortion. Early in the litigation, the judge considers disqualifying the firm because they employ Attorney, who has a reputation in the community for her advocacy against legalized abortion. Neither the clinic nor the opposing party (the municipal zoning authority) provided written consent to a conflict of interest. Should the firm be subject to disqualification in this case?

No, the firm should not be disqualified where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm.

Comment 16 to Rule 1.7(b)(2) describes three examples of "conflicts that are nonconsentable because the representation is prohibited by applicable state law." Which of the following is NOT one of the examples of conflicts that are nonconsentable because the representation is prohibited by applicable state law?

State hate crime statutes prohibit a lawyer who shares the same protected status as the victim from representing the defendant in the criminal proceeding.

Three co-owners of a successful startup business hire Attorney to help with working out the financial reorganization of their enterprise. Attorney seeks to resolve potentially adverse interests by developing the parties' mutual interests. In assenting to represent all the parties as clients simultaneously, Attorney agrees to adjust the relationship between clients on an amicable and mutually advantageous basis. The clients each provide written consent to the potential conflicts of interest. Is it proper for Attorney to represent three clients with potentially adverse interests in a negotiated transaction?

Yes, common representation is permissible where the clients' interests generally align, even though there is some difference in interest among them, so Attorney may pursue an agreement on an amicable and mutually advantageous basis.

Two sisters are co-tenants of a house that they inherited from their father. They want to sell the house and hire Attorney to handle the real estate transaction. Attorney explains the potential for conflicts of interest in detail, and each sister readily agrees to provide written informed consent in the form of a waiver of future conflicts of interest. After a long period, they finally find a buyer who is interested in the house, but the buyer wants to impose several onerous conditions on the purchase, and engages in unreasonably protracted negotiations over the purchase price. The sisters themselves cannot agree on whether to accept any of the buyer's proposals, further dooming the negotiations. Eventually, one sister becomes frustrated with Attorney over the prolonged, hitherto unsuccessful negotiations, and fires Attorney. The other sister wants Attorney to continue the representation. With regard to the sister who seeks to discharge Attorney, may she do so?

Yes, each client in the common representation has the right to discharge the lawyer as stated in Rules of Professional Conduct and the accompanying Comments.

Client is represented by a lawyer in a law firm for a malpractice suit against a doctor. Client incurred significant medical bills and expenses after a surgery went unusually wrong. Attorney, who works in the same law firm as the lawyer representing Client, offered to give Client a set amount of money each month until the case ended. Client could then repay this attorney with his recovery from the lawsuit. Is Attorney subject to discipline?

Yes, attorneys cannot provide financial assistance to their clients and this rule applies to other attorneys in the firm.

Client consults with Attorney regarding a criminal case in which Client is the defendant. Attorney previously represented Client's friend, who is a co-defendant in the current case, in another matter. Attorney does not believe that the previous representation of Client's friend will disable him from providing competent and diligent services to Client, and the parties are not making any claims against each other. May Attorney represent Client in this case?

Yes, attorneys may represent conflicting parties as long as both clients give informed consent and both parties' confirm their consent in writing.

Attorney represented Husband in a divorce case against Wife. Several years later, Wife contacted Attorney regarding filing an enforcement against Husband for Husband's failure to pay child support. Attorney called Husband at a phone number provided by Wife. Attorney discussed the conflict with Husband and Husband advised that he was not opposed to Attorney representing Wife. Attorney then accepted the case and filed the enforcement. Is Attorney subject to discipline?

Yes, attorneys shall obtain informed consent, confirmed in writing, if representing a person in a case in which that person's interests would be materially adverse to a previous client's interests.

Attorney represents Client, a wealthy executive, for the first time in a divorce case. Attorney learns that Client intends to purchase and develop several parcels of land in an undeveloped area on the outskirts of the city. Attorney also represents Physician in an estate planning matter. Attorney and Physician have a longstanding relationship. Attorney mentions the parcels of land that are for sale on the outskirts of the city, which Client brought to Attorney's attention. Attorney recommends that Physician also try to buy one of the parcels of land as an investment for the estate, knowing that the area will soon see development and the property values will increase. Even in the short term, Attorney knows that Physician could probably make a quick profit by buying a parcel and selling it to Client when Client gets around to purchasing the parcels. Attorney did not mention to Physician that Client was the individual planning to purchase and develop the parcels, or reveal anything about his representation of Client. Is Attorney subject to discipline?

Yes, because using information gleaned from representation of a client to the disadvantage of the client violates the lawyer's duty of loyalty, even when the lawyer uses the information to benefit a third person, such as another client.

Attorney sued Company on behalf of Client in a personal injury matter. During the protracted litigation that ensued, Conglomerate bought Company. Attorney was already representing Conglomerate in a regulatory compliance matter before a federal administrative agency. Assuming this development was unforeseeable at the outset of representing Client against Company, will Attorney have the option to withdraw from one of the representations in order to avoid the conflict?

Yes, but Attorney must seek court approval where necessary and take steps to minimize harm to the clients, and must continue to protect the confidences of the client from whose representation the lawyer has withdrawn.

Attorney worked for a small plaintiffs' firm in Dallas, Texas. The firm undertook the representation of Victim, who suffered severe injuries in a traffic accident with a large truck, allegedly due to the truck driver's negligence. Attorney was not involved in the case at all another associate at the firm represented Victim in the lawsuit. Big Firm, which has offices in several states, is defending the trucking company in the personal injury lawsuit brought by Victim. Attorney's small firm has a single office and a computer network that allows the five lawyers there to share documents and files from all their cases with each other. Any lawyer in the firm could access all of the other lawyers' documents, which saved time as lawyers could copy and paste from various motions and pleadings that other lawyers had drafted previously on unrelated matters. Every Thursday afternoon, there was a mandatory meeting of the lawyers in the firm, in which they discussed whether to accept the cases of new potential clients, and they discussed how the pending litigation of each lawyer was proceeding. The lawyers exchanged advice and suggestions for one another's cases. Attorney did not make partner at the small firm, so he left and went to the Kansas satellite office of Big Firm instead. Big Firm assigned Attorney to work on the trucking company case, the same case in which his pervious firm represented the opposing party. Attorney had not worked previously on the case and had heard about it only in passing during the weekly litigation meetings at his previous firm, and now remembers almost nothing from the conversations. Should Attorney be subject to disqualification from defending the trucking company?

Yes, if a lawyer has general access to files of all clients of a law firm and regularly participates in discussions of their affairs, it creates an inference that such a lawyer in fact is privy to all information about all the firm's clients, and the burden of proof should rest upon the firm whose disqualification is sought.

Attorney represented Husband twenty years ago in a divorce with Husband's first wife. Husband is a well-known local celebrity, a retired professional athlete who became a semi-successful actor and an outspoken advocate of a radical political cause. Recently, Husband's third wife approached Attorney asking him to represent her in obtaining a divorce from Husband. There are no children from the marriage - their children from previous marriages are now adults - and the distribution of assets will follow the terms of a carefully drafted prenuptial agreement between Husband and his third wife, which Husband's new lawyer drafted for them. Husband long ago provided written informed consent for future conflicts of interest if Attorney represented another party with adverse interests to Husband. Attorney does not believe that any confidential information learned from representing Husband twenty years ago in his first divorce will be relevant to the pending third divorce. On the other hand, there is regular media coverage of Husband's trysts and on-and-off sexual relationships with various actresses and female socialites in the area, and marital infidelity could trigger certain except clauses in the prenuptial agreement. Can Attorney use the information about Husband's recent indiscretions in representing the third wife?

Yes, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.

Attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired Attorney for a substantially higher salary, and Attorney accepted the position and left her government position. One of Attorney's first assigned cases at Big Firm was a new action by Client against Conglomerate Corporation. Attorney had worked on an enforcement against Conglomerate Corporation and learned confidential governmental information about the entity during the litigation, but Attorney does not know, and has no reason to know, that the information is confidential government information. Attorney is under the reasonable impression that all the information she learned about Conglomerate Corporation is now public information. The government agency gives its informed consent, confirmed in writing, to the representation. Is Attorney nevertheless subject to disqualification in Client's matter against Attorney's former employer?

No because Attorney does not have confidential government information about Conglomerate that she knows is confidential government information.

After law school, Attorney worked for two years as a judicial clerk for a federal district judge. A few months before her clerkship was to end, Attorney applied for positions at several law firms in the area and interviewed with them for a position as an associate. All of these firms had matters pending before the federal district court, but Attorney did not tell the firms that she was aware that they had some matters on her judge's docket, and the interviewers at the firms did not bring up that they were appearing regularly before the judge that currently employed Attorney as a clerk in chambers. In each case, however, the employers were impressed that Attorney had obtained a judicial clerkship and asked her general questions about how she liked her experience at the courthouse. Attorney submitted to each firm a recommendation letter written on her behalf from the judge before whom they had pending matters. The judge knew that Attorney was interviewing with these firms and did not object or correct her about it at all. Is Attorney subject to discipline for seeking employment with firms that have pending matters before the judge for whom she works as a clerk?

No, a lawyer serving as a law clerk to a judge, other adjudicative officer, or arbitrator may negotiate for private employment in the manner described here.

Attorney began her career as a prosecutor at the District Attorney's Office. During her tenure as a prosecutor, she brought charges against an individual suspected of sending ricin, a deadly toxin, in an envelope to a prominent politician, apparently in an unsuccessful attempt to assassinate the public official. The jury found the evidence too attenuated, and acquitted the defendant. Shortly thereafter, another person, who was a member of a terrorist organization, confessed to sending the ricin and provided extensive evidence of his plot to kill the politician to make a political statement. Attorney resigned from the District Attorney's Office partly out of humiliation over this case, and went into private practice. Eighteen months later, the accused individual decides to sue the government over wrongful arrest, slander, libel, and wrongful prosecution over the case in which he obtained an acquittal. Attorney feels that her superiors at the D.A.'s Office had pressured her to press charges in order to satisfy the public uproar over the ricin letters, despite having scanty evidence that the accused individual was actually guilty. Attorney offers to represent the accused individual in his lawsuit against the government, partly to make amends or atone for her role in what she now views as an abuse of government power and a great injustice. Would it be proper for Attorney to handle this case, given her good intentions?

No, a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction.

Attorney spent several years working for Big Firm in its business litigation division. While there, Attorney represented Client in an action against Conglomerate Corporation alleging unfair trade practices and antitrust violations. Attorney eventually left Big Firm and accepted a position at a federal regulatory agency. There, Attorney's first assignment was to bring an enforcement action against Conglomerate Corporation for violating antitrust laws and unfair trade practice laws. Attorney obtained written informed consent from his previous Client to pursue a related matter against Conglomerate, but not from the agency itself or from Conglomerate Corporation. Is it proper for Attorney to represent the government in an enforcement action against his prior opponent, if the matter is substantially related?

No, a lawyer who has pursued a claim on behalf of a private client may not pursue the claim on behalf of the government, unless the appropriate government agency gives its informed consent, confirmed in writing.

Attorney was a state hearing officer for the Workers Compensation Board. Attorney left that position and opened his own law firm, primarily representing parties before the state Workers Compensation Board. One of the cases is the final rehearing of a case in which Attorney had presided as hearing officer at an initial preliminary hearing and ruled on preliminary matters, but Attorney left the Board without issuing any final decision in the case and the Board transferred the matter to another hearing officer. Attorney represents the injured worker, Client, and the employer is Manufacturer. All the parties involved give informed consent, confirmed in writing, for Attorney to represent Client. Is Attorney subject to discipline for representing Client in this matter?

No, as all the parties involved provided informed written consent to the representation, despite the obvious conflicts of interest at stake.

Attorney works for a firm where another lawyer is representing Defendant in a personal injury lawsuit. The other lawyer has represented Defendant for a long time on unrelated, non-litigation matters, but the personal injury lawsuit is a new case. Victim, the plaintiff in the same personal injury lawsuit, was a college classmate of Attorney and he asks Attorney to represent him in the litigation. Attorney has not learned any confidential information yet about Defendant from his fellow associate at the firm, nor has Attorney learned any confidential information from Victim during their preliminary consultation. The firm decides to undertake the representation of Victim as well. The firm will carefully screen Attorney and lawyer from one another, forbidding them to discuss the case with each other or anyone else in the office, and ensuring that they do not have access to each other's files for the case. In addition, neither lawyer will receive a bonus from the fees received for this litigation. Under the Rules of Professional Conduct, is it proper for Attorney to represent Victim, given these circumstances?

No, because the Rules of Professional Conduct impute the conflict of the other lawyer to Attorney, and screening procedures do not apply to conflicts between current clients.

Attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired Attorney for a substantially higher salary, and Attorney accepted the position and left her government position. One of Attorney's first assigned cases at Big Firm was a new action by Client against the same government agency for which Attorney had previously worked, defending against an enforcement action that Attorney had initiated while at the agency. The defense will involve challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, Attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in Client's challenge, but instead worked exclusively on enforcement litigation matters. The government agency gives its informed consent, confirmed in writing, to the representation. Is Attorney nevertheless subject to disqualification in Client's matter against Attorney's former employer?

No, because the appropriate government agency gave its informed consent, confirmed in writing, to the representation.

Attorney agrees to represent a group of three individuals in the same matter, a business transaction. Their interests are not directly adverse. Attorney has represented each of the clients in separate matters previously, and is already working under a retainer to do legal work for each under the same hourly rates. Two of the clients are currently traveling overseas, but everyone agrees to the representation by conference call. Attorney explains potential conflicts of interest that could arise in common representation, and all clients consent orally to the common representation despite the potential conflicts. Attorney proceeds with working on their matter for three weeks until all the clients are back from traveling and can sign written consent forms. By that time, Attorney has completed 50 hours of work, and has acquired significant confidential information by and about each of the three clients. Would Attorney be subject to discipline for performing this legal work before obtaining written consent to the conflict by each conflict?

No, it was not feasible to obtain or transmit the writing at the time the client gives informed consent, so the lawyer could obtain or transmit it within a reasonable time thereafter.

Attorney previously represented Client in securing environmental permits to build a shopping center. State and federal agencies granted the necessary permits. Construction of the shopping center, however, did not begin immediately, because demolishing the outdated structures on the land and clearing the debris exhausted Client's initial supply of investment funds. Attorney's representation of Client ended once the environmental permits were securely in hand. Two years later, Client found another investor and was ready to begin construction. In the meantime, the residents of the neighborhoods around the shopping center had turned against the project, out of concerns for the increase in traffic and litter that it could bring to the area, as well as the flooding of adjacent yards that would result from the rainwater runoff from a new parking lot. The "Not In My Back Yard Association" (NIMBY Assoc.) formed and learned that the rezoning of the property by municipal authorities to permit a shopping center was still pending, with an upcoming public hearing on the schedule. NIMBY Assoc. hired Attorney to represent the neighbors in opposing the rezoning on the basis of environmental considerations. Would it be proper for Attorney to represent the neighbors in this matter?

No, because the matters are "substantially related," as there is a substantial risk that confidential factual information that would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter, such as detailed reports about the potential environmental impact of constructing the shopping center.

Husband and wife decide to divorce, and reach an agreement to share the same lawyer in order to save money. They hire Attorney to represent each of them in Family Court for the dissolution of marriage. Attorney explains that there is an obvious conflict of interest here, but Husband and Wife insist, and sign informed consent forms waiving the conflict and their rights to assert any future claims related to the conflict. Husband and Wife have no children, and have always kept separate bank accounts. Each purchased their own car from the money in their own bank account and each car's title is in only one name. They live in an apartment whose lease is expiring soon, so there is no real property to divide. Would it be proper for Attorney to represent both in the divorce?

No, because the representation involves the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal

Client manufactures a new generation of magnetic-resonance imaging machines for medical diagnostics in hospitals. The machines sell for nearly one million dollars apiece. Three years ago, Client hired Attorney to draft a Purchase and Sale Contract for Client to use whenever Client sells one of the devices to a hospital. Attorney's representation of Client ended after drafting a model contract, and Attorney has done no legal work for Client since. Last week, Hospital Administrator hired Attorney to handle a dispute with the manufacturer of one of its high-end diagnostic machines. Attorney quickly learns that the faulty device is one of Client's magnetic-resonance imaging machines, and that the Hospital Administrator consummated the purchase by signing one of the contacts that Attorney had drafted. Hospital Administrator merely seeks to rescind the contract and return the machine for a full refund the hospital has not yet incurred damages due to the faulty machine, but the device is unusable and was very expensive. Would it be proper for Attorney to represent Hospital Administrator in this case?

No, because under the Rules of Professional Conduct, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client.

Attorney worked for Big Firm in their intellectual property department, specializing in patent applications and patent enforcement, as well as some trademark disputes for clients. Unbeknownst to Attorney, the regular litigation department at Big Firm undertook representation of a trucking company in defending against a personal injury lawsuit over a roadway accident involving one of the trucks. Attorney worked in the Washington, D.C. office of Big Firm, near the United States Patent and Trademark Office, and the litigators handling the truck accident is in the firm's Dallas office. Each office of Big Firm has its own local computer network for sharing documents and files between lawyers there. It is possible for lawyers at Big Firm to access the networks of other satellite offices, however, with a special login that most lawyers never use. Attorney has never accessed the files of the Dallas office except for one trademark case four years ago. Attorney did not make partner at Big Firm, so he left and went to work for a small plaintiff's firm in Kansas. One of Attorney's first case assignments was the same truck accident case in which Big Firm was defending the trucking company - Attorney's new firm represents plaintiff in the case. Attorney was not aware of the case or that Big Firm represented the trucking company until the new firm assigned him to the case as second chair on the litigation. Is Attorney subject to disqualification in this matter?

No, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.

Attorney specializes in intellectual property law, and regularly represents both inventors and venture capitalists in tech startup businesses. Even though Attorney represents only one or the other side in each transaction, she may represent an inventor in one contract with a venture capitalist and represent that venture capitalist in drafting agreements with other inventors. Attorney has drafted a standardized "waiver of future conflicts" form that she asks all clients to sign along with their retainer agreement at the beginning of representation. The waiver of conflicts form explicitly consents to representation despite any and all conflicts of interest that might arise regarding Attorney's past, present, or future clients. When an actual conflict of interest or adverse relationship exists between clients at the outset of representation, Attorney carefully explains the situation to new clients and encourages them to seek advice from other counsel about signing the waiver. When no present conflicts are apparent, but only hypothetical potential conflicts are at issue, Attorney merely says that the form is for hypothetical, potential conflicts of interest that probably will not arise in the current transaction. Is Attorney's standardized "waiver of future conflicts," when signed by new clients, likely to be effective in this situation?

No, if the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved.

Attorney previously represented Client in securing environmental permits to build a shopping center. State and federal agencies granted the necessary permits. Construction of the shopping center, however, did not begin immediately, because demolishing the outdated structures on the land and clearing the debris exhausted Client's initial supply of investment funds. Attorney's representation of Client ended once the environmental permits were securely in hand. Two years later, Client found another investor, overcame neighborhood opposition to the construction, obtained favorable rezoning for the parcel, and constructed the shopping center. Several business tenants moved in and operated in the shopping center. Eighteen months later, one of the tenants, an organic pet food store, was unable to pay rent for her unit for two consecutive months, so the property manager commenced eviction proceedings. Tenant hired Attorney to represent her in the eviction proceedings, but the shopping center's lawyer filed a motion to have Attorney disqualified due to the substantial relationship between his previous work in securing environmental permits for the building and the present legal dispute with one of the shopping center tenants. Is Attorney subject to disqualification from representing Tenant?

No, the matters are not substantially related because they do not involve the same transaction or legal dispute, and the confidential information Attorney learned in the process of securing environmental permits prior to construction would not relate to the nonpayment of rent by a tenant a few years later, after the shopping center is operational.

On the same day, Attorney agrees to represent Undocumented Immigrant in a visa-revocation matter, as well Victim in a tort action (product defect) against an automobile manufacturer. The two matters are unrelated. In the second case, Attorney anticipates that the defendant automobile manufacturer will argue that extensive federal safety regulations of automobiles, which require certain safety features and specifications, should preempt state tort law and therefore prevent a state court from adjudicating the case. On the other hand, many undocumented immigrants have relied upon federal preemption of state law in challenging onerous state penal statutes targeted at illegal immigrants. If Attorney prevails in his preemption argument in the vehicle manufacturing defect case, and on appeal creates precedent against federal preemption of state law, the precedent would probably be unfavorable to Attorney's other client, Undocumented Immigrant. The state legislature has several bills pending that would impose criminal sanctions on landlords who lease apartments to undocumented aliens, drivers who transport undocumented aliens to work sites, and contractors who hire subcontractors that employ undocumented aliens. Does the fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of the other client create a conflict of interest, for which the lawyer must obtain consent from each client?

No, the mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest.

A group of several individuals seeking to form a joint venture asked Attorney to represent them in drafting the necessary documents and making the necessary filings with government agencies. Two of the individuals were to provide most of the initial funds for the startup two others were experienced inventors who were to provide new product designs;two others had expertise in business management and were to serve as managers;and two had proven records in high-end sales and marketing. They have not yet resolved the allocation of ownership shares, bonuses for managers, whether to have anti-compete agreements for each participant, whether patents will belong solely to the joint venture or partly to the inventors themselves, and whether sales reps will work on salary or commissions. Each individual says that she wants whatever terms would be best for the joint venture overall, rather than what would be most beneficial for each one individually. The shared objectives and goals of the group lead Attorney to conclude that no conflicts of interest are present and that it would be counterproductive to try to convince each member of the group to sign an informed consent form acknowledging that conflicts of interest exist and that Attorney may still represent everyone at once. May Attorney trust his professional judgment and proceed without obtaining separate consent forms from each person in the joint venture?

No, the situation is likely to limit materially Attorney's ability to recommend or advocate all possible positions that each might take because of his duty of loyalty to the others;representing the group's overall interests in effect forecloses alternatives that would otherwise be available to the client.

Attorney worked at Big Firm, which was disqualified from representing Client in a case because one of the other lawyers at the firm had a conflict of interest regarding a former client, and this conflict was imputable to the entire firm. The firm was not timely in implementing screening measures and became subject to disqualification. Attorney was at the firm during this time, but was not involved in the matter and did not learn any confidential information about Client. Attorney left that firm and went to work at another firm. It turned out that Attorney's new firm is representing Client instead - Client hired the new firm after the previous firm was subject to disqualification. The new firm has no measures in place to screen Attorney from participation in the matter, though Attorney is not in fact participating in the representation. Will the new firm be subject to disqualification now, because Attorney joined the firm from another firm that was subject to disqualification?

No, there is no doctrine of double-imputation that would impute a purely imputed conflict from Attorney onto the other lawyers in the new firm.

Attorney handles claims against banks for many clients for issues regarding the failure of banks to investigate in a timely manner claims of fraud or unauthorized use of bankcards. Most of Attorney's work consists of sending demand letters, and most cases never actually result in the filing of a suit. Bank, a small local bank, retains Attorney to handle a particular claim against a customer for non-payment of a loan. Attorney has not represented any clients against Bank. Attorney includes in his contract for services a clause in which Bank waives any conflicts that may arise in the future - conflicts that involve Attorney representing clients against Bank for issues regarding failure to investigate claims of fraud or unauthorized use of bankcards. Is Attorney's conduct proper?

Yes, attorneys can include waiver clauses for future conflicts in their contracts if the clients are aware of the waiver and the types of future representations that may arise are limited and detailed in the contract.

Client hires Attorney in high-profile murder case in which Client is the defendant. Client is unable to pay the fee, but offers Attorney full media and literary rights in exchange for representation. Attorney agrees, but specifically states in contract that no media or literary rights shall be used by Attorney until the case concludes. Is Attorney subject to discipline?

Yes, attorneys cannot make an agreement with a client giving the lawyer media and/or literary rights in exchange for representation before the conclusion of the case.

Two clients agree to representation by the same Attorney in a civil action, and both provide written informed consent to the potential conflicts of interest. Halfway through trial, the opposing party unexpectedly makes a settlement offer that one client wants to accept. The other client prefers to decline, as he believes that a favorable jury verdict is a certainty and will be much higher. Attorney strongly encourages them to accept the settlement offer, which he believes is generous, given his perception that their chances for a favorable jury verdict are slim. Unable to reach a consensus on whether to accept the settlement offer, one of the clients revokes his consent to the conflict of interest. Assuming there are no other special circumstances in this situation and that the court would not prohibit withdrawal, must the Attorney withdraw from representation?

Yes, Attorney must petition the court to withdraw from representing both clients.

A subcontractor on a highway construction project negligently damaged the General Contractor's equipment and simultaneously inflicted property damage on a state building storing the equipment. The relevant state office, along with the general contractor, hire Attorney to represent them in a lawsuit against the subcontractor. The state client and the private party each provide written informed consent to potential conflicts of interest in the form of a waiver. Is it proper for Attorney to represent both the government and a private party at the same time?

Yes, The Rules of Professional Conduct do not strictly prohibit a lawyer from jointly representing a private party and a government agency

Two separate clients hired Attorney, signing their retainer agreements one week apart, on unrelated matters, though both involve property owners' rights under the state's common law doctrine of public trust for beaches, which guarantees public access to beaches up to the vegetation line on the shore. In one case, erosion has moved the boundary back on the property owner's lot to the point where his house is now clearly on the public access portion, and he seeks a declaratory judgment that erosion cannot jeopardize the private ownership of a building and its curtilage. Current public trust doctrine in the state would suggest that the property owner has lost all the value in his property, so he needs to seek a change or exception to the current law. The other case involves a property owner whose lots had always been separated from the beach by a small public park, but erosion has eliminated the park and given him water access from his property, which has greatly increased the value of his land under current public trust doctrine. The state government, however, is seeking a declaratory judgment in his case, arguing for an exception or change to the current law that would rob the owner of the windfall he received due to the erosion. Does this situation present a conflict of interest that would require Attorney to obtain informed consent, in writing, from both clients in order to proceed with the representation?

Yes, a conflict of interest exists if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case, as when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.

Attorney is a partner in a law firm, and owns $100,000 worth of stock in Conglomerate Corporation, the named defendant in a new antitrust suit. Attorney's total compensation from the firm is around $15 million per year, including bonuses, and his net worth is around $500 million. His home is worth about $7 million and Attorney inherited it, so the property is unencumbered by any mortgage or liens. Attorney works in a specialized area of law at the firm and does not have much interaction with the other lawyers, except at parties and occasional partners' meetings. Another lawyer in the firm seeks to represent the plaintiffs in the antitrust action against Conglomerate Corporation, which is not a client of the firm. Would it be proper for the firm to represent the plaintiffs in litigation against Conglomerate Corporation?

Yes, as long as Attorney is not involved in the representation, there will be no imputation of Attorney's conflict of interest to the other lawyers in the firm, because it is Attorney's personal interest and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm

Attorney was a judge but has left that job and joined Big Firm. Another lawyer at Big Firm represents Client in a case on the docket at the same court where Attorney worked as a judge. In fact, as a judge, Attorney ruled on some of the pre-trial motions in the case, mostly evidentiary motions. The firm has screening measures in place to screen Attorney from any participation in the matter. Attorney will receive no part of the fee from the matter, and timely notice went to the parties about the screening measures in place. The other parties, however, did not provide informed written consent to Big Firm's representation of Client. Is it proper for the other lawyer at Big Firm to continue representing Client in this matter?

Yes, as long as Big Firm also provides timely notice to the appropriate tribunal as well, so that the tribunal may ascertain compliance screening measures.

The Workers' Union at a manufacturing plant is having annual collective bargaining negotiations with the Management. Wages and benefits are not in dispute this year, as the parties reached an agreement in the previous year's collective bargaining about a five-year schedule for wages and benefits that was acceptable to both the Union and Management. The sole issue in dispute this year is hiring: the Workers' Union wants the plant to hire five or six new assembly line workers so that there will be more efficiency and more flexibility for workers requesting days off or changes in their shifts. The Management wants to hire fewer new workers, perhaps two at most, in order to keep payroll costs down and their stock share prices high. The Union and Management agree to hire Attorney, an experienced labor lawyer at an outside firm, to facilitate the collective bargaining negotiations. Neither side is currently expecting a breakdown in bargaining that would lead to litigation. Would it be proper for Attorney to have both the Union and the Management as clients while facilitating the negotiations?

Yes, as long as both clients provide written informed consent, common representation is permissible where the clients' interests generally align, even though there is some difference in interest among them, so a lawyer may seek an agreement between them on an amicable and mutually advantageous basis

Attorney represented Small Business Associates while working at Big Firm, her first law firm after law school. When Attorney did not make partner at the firm, she ended her employment there and started her own new firm. Attorney took some of her clients with her, including Small Business Associates, whom she continues to represent. Big Firm no longer has Small Business Associates as a client. Big Firm then agrees to represent Conglomerate Corporation in a trademark infringement case against Small Business Associates, the first such case that the latter has ever faced. Can Big Firm represent Conglomerate in a case against its former client, Small Business Associates?

Yes, as long as the matter is not the same or substantially related to that in which Attorney formerly represented the client;and no lawyer remaining in the firm has confidential information about Small Business Associates from when Attorney represented them at that firm.

Attorney recently moved laterally to a new firm. Attorney's previous firm represented Conglomerate Corporation and Attorney occasionally worked on some of Conglomerate's legal matters. Attorney's new firm has recently decided to represent Plaintiffs in a lawsuit against Conglomerate, and the cause of action arises from a new consumer protection statute that the state legislature passed in its last session. Attorney had left the previous firm before the new lawsuit began, and will not work on the new lawsuit at all. Would it be proper for Attorney's new firm to represent the Plaintiffs in an action that is directly adverse to Conglomerate Corporation?

Yes, as long as the new firm screens Attorney from the case, and provides written notice to Conglomerate about its screening procedures, as well as periodic certifications that the firm is indeed following the screening procedures regarding Attorney.

Two successful business partners hired Attorney to help with the dissolution of the partnership, as the two partners no longer want to work together. Attorney was very concerned about the obvious conflict of interest, but the partners insisted that they did not want to complicate matters unnecessarily by hiring separate counsel, and that they were already in complete agreement about how to divide the business. They even signed informed consent statements acknowledging and waiving the conflict. Each partner believed it would be in both of their best interest to use only one lawyer to dissolve the business. The matter was purely transactional at this point, and did not involve any anticipated litigation before a tribunal. One partner had already mentioned to Attorney that he might need his legal services in setting up a new business, as well as handling some estate planning issues for him. Attorney still believed that dual representation was not a good idea, given the complexity of the business and the debatable future value of some of the patents, goodwill, and other intellectual property involved, and because one partner contributed a much larger share of the startup funds years before. The partner who mentioned hiring Attorney to do estate-planning work wanted the dissolution to include assigning his proceeds from the business to his heirs. Attorney proceeded with the dual representation and the dissolution appeared to proceed smoothly. Is Attorney subject to discipline for representing both partners?

Yes, because Attorney did not reasonably believe that he would be able to provide competent and diligent representation to each affected client.

Attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired Attorney for a substantially higher salary, and Attorney accepted the position and left her government position. One of Attorney's first assigned cases at Big Firm was a new action by Client against the same government agency for which Attorney had previously worked, defending against an enforcement action that Attorney had initiated while at the agency. The defense will involve challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, Attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in Client's challenge, but instead worked exclusively on enforcement litigation matters. Is Attorney subject to disqualification in Client's matter against Attorney's former employer?

Yes, because Attorney participated personally and substantially in the matter as a public officer or employee

Attorney spent several years working on the state intermediate appellate court as one of its nine justices, in a state in which such judges run for election in the general elections every four years. When Attorney ran for re-election, she lost, and needed to return to private practice. Client wants Attorney to represent her in her appeal of a state trial verdict. The case previously came up on appeal before the state intermediate appellate court, but Attorney was not on the panel that decided the case. The state Supreme Court subsequently reversed the decisions of both the appellate court and the trial court, and remanded the case for a new trial. The new trial resulted in an unfavorable verdict for Client, so she wants to appeal the case again. Would it be proper for Attorney to represent her in this matter?

Yes, because a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate.

Attorney worked for several years for a federal government agency in regulatory enforcement. Attorney was involved in several enforcement matters against Conglomerate Corporation. Big Firm has always represented Conglomerate Corporation in all its litigation and regulatory compliance matters. Attorney made a good impression on the Big Firm partners when serving as opposing counsel in the same litigation. At the end of a deposition of Conglomerate Corporation's executives during the discovery phase of an enforcement proceeding, Big Firm partners approached Attorney privately and asked if Attorney would be interested in leaving the agency for a position at Big Firm. Attorney explained that they would have to match his current salary at the government agency in order for him to consider the proposal. Big Firm then scheduled an employment interview with Attorney, at the end of which they offered to double his salary if he left the agency and accepted a position at Big Firm. Attorney decided to postpone making a decision until the pending agency enforcement matters against Big Firm's client were complete, in order to avoid the appearance of a conflict of interest. The matters dragged on for another year, however, and Big Firm eventually withdrew its offer. Is Attorney subject to discipline?

Yes, because a lawyer currently serving as a public officer or employee shall not negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially.

Attorney represents Defendant in a criminal case in which Defendant is accused of assault causing bodily injury. Defendant details the events that led to the charge to Attorney. Attorney believes Defendant is not guilty and has defeated such charges against other clients in the past. Defendant asks Attorney to get him the best possible plea deal and explains that he does not want to take the case to trial. Attorney contacts Prosecutor who offers Defendant a reasonable settlement, but it requires the Defendant to serve jail time. Attorney refuses the offer and tells Defendant they are taking the case to trial because Prosecutor did not offer ideal plea. Is Attorney subject to discipline?

Yes, because attorneys shall abide by client decisions regarding plea deals, regardless of the attorney's opinion about the guilt or innocence of the defendant.

Attorney represented Client in litigation over a breach of contract. After a long period of discovery, as the trial date approaches, the two parties make a new attempt at settlement negotiations, with each party's lawyer acting as representative. Client is the plaintiff in the case, and has told Attorney on several occasions that she will not consider any settlement offer less than $100,000. Client is a sophisticated business owner who has weathered litigation many times in the past, including litigation over a breach of a nearly identical contract term. Based on her experience, Client has made an informed estimate that her chances of winning a $250,000 verdict at trial are almost exactly 50%, and that trial expenses are likely to be around $50,000 whether she wins or loses, and from there she derived her reserve amount of $100,000. Attorney met with Client the evening before Attorney would meet with opposing counsel for negotiations, and Client reiterated her reserve amount to Attorney, adding, "Do not even call me if the opposing party offers less than $100,000 - I will not accept it, and I want you to simply decline lowball offers." The next day, Client leaves on a business trip, and Attorney heads to the settlement negotiation meeting, where opposing counsel offers $90,000 to settle plus a written apology from the defendant to Client for breaching their contract. May Attorney reject this offer without first consulting with Client?

Yes, because the client has previously indicated that the proposal will be unacceptable and has authorized the lawyer to reject the offer.

Three individuals plan to form a joint venture and ask Attorney to represent them in drafting the necessary documents and making the necessary filings with government agencies. They have already agreed that each individual will contribute exactly one-third of the startup funds for the venture, each will own a one-third share, each will have equal control over the Board, and each agrees to indemnify the others for a one-third share of any personal liability related to the joint venture. They have also agreed that they will have no non-compete agreements. The joint venture will hire managers, marketers, and other employees to operate the business. The three individuals are co-owners of a patent that could potentially be very lucrative when they bring it to market, and have known each other and worked together for a long time. The attorney cannot find any current areas of conflict between them, though he knows that it is technically possible that some unforeseen conflict could arise in the future. The shared objectives and goals of the group lead Attorney to conclude that no conflicts of interest are present and that it would be counterproductive to try to convince each member of the group to sign an informed consent form acknowledging that conflicts of interest exist and that Attorney may still represent everyone at once. May Attorney trust his professional judgment and proceed without obtaining separate consent forms from each person in the joint venture?

Yes, because the mere possibility of subsequent harm does not itself require disclosure and consent.

Attorney's new firm agrees to represent Client in an action against Corporation, which Attorney's previous law firm has represented for many years, and continues to represent in the present matter. Conglomerate's lawyers, that is, Attorney's previous firm, moves to disqualify Attorney's new firm from representing Client. The partners at Attorney's new firm were unaware that Attorney's previous employer represented Conglomerate, and the partners at her new firm first learned of this when they received the motion to disqualify their firm. The firm immediately implemented screening procedures to keep Attorney from working on the case or receiving or sharing any confidential information about the case or about Conglomerate's other legal matters. The firm provided notice to opposing counsel about the screening procedures and plans to provide periodic certifications of compliance as well. Should Attorney's new firm be subject to disqualification under these facts?

Yes, because the new firm did not implement the screening procedures soon enough.

Attorney has a private practice in a large rural township, and she specializes in commercial real estate transactions, such as the sale and lease of farmland, stables, granaries, and mills. As the only lawyer in the township with expertise in this area, she has represents most of the parties who buy and sell commercial real estate there. As a result, most of her clients pose potential conflicts of interest with other current, former, or future clients, so Attorney has a standard "waiver of future conflicts" form that explains conflicts of interest that typically arise in commercial real estate transactions, and she asks every client to sign it at the commencement of representation. Client is a major landholder in the township, who inherited extensive tracts of farmland from his family, who in previous generations were some of the original settlers in the area. Over the years, Client has sold off dozens of small parcels of farmland to neighboring farmers or small businesses such as honey processors, taxidermists, a hardware store, and a veterinarian. Client has also bought properties at times that were adjacent to his existing landholdings. Client has always used other lawyers for these transactions in the past, and in each previous instance, the other party had separate counsel. Client now wants to hire Attorney to sell a parcel to a real estate developer. Buyer (the developer) is also a client of Attorney on unrelated matters, but the Buyer has hired another lawyer to handle this particular matter. Client and Buyer have had a good working relationship in the past and have consummated a few transactions that went smoothly. When Client meets with Attorney to review and sign a retainer for this representation, Attorney includes with the retainer her standard "waiver of future conflicts" form, without additional oral explanation except to mention that she represents Buyer in an unrelated matter. Client reads the form and signs it. As the negotiations for the sale to the developer proceed, an unforeseen conflict emerges between Client's interests and the unrelated matters for which Attorney has represented the developer, as one will significantly affect the road traffic for the other. Is Attorney's standardized "waiver of future conflicts," signed by Client, likely to be effective in this situation?

Yes, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict.

Attorney represented Defendant in a criminal case involving serious felony charges. Defendant rejected all proffered plea bargains from the prosecutor, and insisted upon a jury trial, and he then expressed his desire to testify at his trial to assert his innocence. Attorney knew that it would be a disaster for Defendant to testify. First, Defendant initially confessed to the crime, but Attorney managed to have the confession excluded due to a technical defect in the Miranda warnings Attorney believed that the otherwise excluded confession will become admissible for impeachment purposes if Defendant took the stand and tried to assert a contradictory version of the facts. Defendant also has a long record of prior convictions involving fraud and embezzlement, which also would otherwise be inadmissible at trial, but will become admissible to impeach Defendant's credibility if Defendant actually testifies. Even worse, Attorney has confidential information that Defendant committed several related crimes to those charged in the case, and the prosecutor would probably be able to elicit testimony implicating Defendant in additional crimes if Defendant waives his Fifth Amendment rights and insists on taking the stand. Attorney knows the prosecutor in the case is notorious for aggressive cross-examination of witnesses at trial, and even teaches special training courses to other litigators on how to conduct merciless, devastating cross-examination. Finally, Defendant is not very articulate;he constantly uses street slang, gratuitous profanity, and incorrect grammar when speaking, which combined with his odd mannerisms, would be very alienating for most jurors. Attorney angrily explains all of this to Defendant, and then reminds Defendant that he already rejected several generous plea offers, insisted on a jury trial in a case where a bench trial would have been more strategic, and now is about to lose any chance of winning at trial due to his insistence about testifying. Attorney ends by saying, "There is no way I will allow you to testify in this case;it would be malpractice on my part." Defendant understands this to mean that he has no choice, so he gives up and does not testify. The trial went well and the jury acquitted Defendant of all charges. Would Attorney be subject to discipline under these circumstances?

Yes, in a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to whether the client will testify.

A producer of popular energy drinks and the owner of a popular chain of video-rental kiosks wanted to undertake a joint venture to distribute energy drinks and DVD rentals through the same kiosks. They approached Attorney to work out the details of the joint venture and draft the necessary legal documents. Attorney would provide common representation to both as clients in the matter. As part of obtaining informed consent from the clients regarding potential conflicts, Attorney explains that all information would be shared, even information that otherwise would have been confidential information in a normal representation with a single client. Attorney explains he will have to withdraw if one client decides that some matter material to the representation should be kept from the other. The energy drink maker, however, has a secret formula for the drinks, and the DVD kiosk owner has a trade-secret method of tracking the distribution and stocking of the DVDs in the kiosks minute-by-minute. Neither wanted the other to discover their trade secrets, but Attorney may eventually possess the secrets as part of his document review for the joint venture. Neither client actually needs to know the trade secrets of the other, however, in order to proceed with the joint venture. Attorney concludes that failure to disclose one client's trade secrets to another client would not adversely affect the representation in this case, and agrees to keep that information confidential with the informed consent of both clients. Is Attorney's conduct proper?

Yes, in limited circumstances like this, it would be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential.

Attorney represents Client in a civil matter, and has represented Client several times before. Client and Attorney purchase a piece of property together, with an appraisal value of $4 million. Each contributes fifty percent to the purchase price. Client received a five percent interest in the property and Attorney receives a ninety-five percent interest in the property. Attorney received a greater interest in the property as payment for representing Client for several traffic citations recently, with the total fees being around $2000, but the value of the representation is far less than the value of the additional interest Attorney received in the property. Client was represented by independent legal counsel for the property purchase. Is Attorney subject to discipline?

Yes, the business transaction must be fair and reasonable even when the client obtains representation by independent legal counsel, though representation by counsel will be a factor in determining the fairness of the transaction.

Attorney was a judge for several years. Near the end of her tenure as a judge, she functioned in the role of the chief administrative judge in that court, assigning cases to the other judges and supervising their work, and had only a limited docket of her own trials. Attorney then left the bench and opened her own law practice. Attorney agrees to represent Client in a matter in the same court house where Attorney formerly served as a judge. Attorney even remembers the case, but only the names of the parties and the nature of the action, because she assigned it to the trial judge who currently has the case on his docket, but Attorney had no other involvement in the matter. Client's previous lawyer in the matter was subject to disqualification at the motion of the opposing party due to a conflict of interest. Is it proper for Attorney to represent Client in this matter?

Yes, the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits.

Two brothers work together in a family landscaping business, and each is a named defendant in a lawsuit over a broken sewage pipe on a client's property where the brothers were digging holes to plant new trees. The two brothers hire their family's lawyer, Attorney, to represent them. Though the brothers get along reasonably well, there are a number of topics they avoid discussing, especially related to family matters and the inheritance, and who is to blame for some lost clients and damaged equipment in the recent past. Attorney explains the potential for conflicts of interest in the common representation and asks if they are willing to sign a waiver to the conflicts. One asks the lawyer privately about the issue of confidentiality and privileged information, because it is possible that litigation could emerge within the family later over various issues - the inheritance, control of the business, liability for business losses, and even a marital dispute. Does the common representation have implications for the attorney-client privilege?

Yes, with regard to the attorney-client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach, and lawyers should assume that if litigation eventuates between the clients, the privilege will not protect any such communications.