PRO RES - Different roles of the lawyer

An attorney represented a criminal defendant charged with murder. During their consultations, the client informed the attorney that he had committed another murder, but that someone else - an innocent bystander - was standing trial for that crime. The attorney was aware of this other case, as it had received media coverage, and realized that an innocent person would potentially go to jail for many years, or even face the death penalty, for the crime his own client had committed. Which of the following is true, regarding the attorney's ethical obligations in this situation?

-It would be permissible for the attorney to urge his own client to come forward and confess to this other murder to save the innocent person accused of it, even though such advice would be contrary to his own client's legal interests. -Rule 2.1

Don't worry . . . . A client repeatedly calls an attorney to discuss her pending divorce case. The client wants above-guideline child support, alimony, and a large percentage of the estate, even though the parties have only been married two years. The attorney has continuously given his honest opinion about what he believes the client is eligible to receive, and what he believes she may receive in the divorce based on his experience. The client has recently become angry with the attorney because she is unhappy with his opinion. She has even asked, "Are you working for me or my husband?" In an effort to keep the client happy, the attorney begins to tell the client what he believes she is eligible to receive when she asks, but simply states "the court will decide" when the client asks the attorney what he believes she will receive. Are the attorney's actions proper?

-No, an attorney should give his honest opinion about the case when asked, even if the opinion is unsatisfactory to the client. -Rule 2.1 requires lawyers to provide candid advice to clients. Here, the lawyer began to appease a difficult client with a vague, almost evasive answer. It is understandable why a lawyer would feel pressured to tell a client what she wants to hear, but that is exactly why we have a rule mandating that lawyers give their clients a realistic picture of the situation. -[answer is] correct . . . because it properly reflects the requirement stated in Rule 2.1: "A lawyer shall exercise independent professional judgment and render candid advice when representing a client."

The former mediator. An attorney, who often serves as a court-appointed mediator, received an appointment to mediate the divorce case between a husband and wife. The case settled in mediation and the divorce became final soon after. A year later, the husband sought to retain the attorney to represent him in a modification suit against his ex-wife. The attorney accepted the case and sent a letter to the ex-wife advising her that her ex-husband had retained him to represent him in a modification suit. Are the 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. -Comment 4 for Rule 2.4 addresses this type of scenario: "A lawyer who serves as a third-party neutral subsequently may be asked to serve as a lawyer representing a client in the same matter. The conflicts of interest that arise for both the individual lawyer and the lawyer's law firm are addressed in Rule 1.12." The operative provision in Rule 1.12, in turn, says, " . . . [A] lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing." In other words, a lawyer who served as a mediator cannot later represent one of the parties against the other in the same or related matter. -The lawyer in this question served as a third-party neutral between the husband and wife, so he cannot later represent one against the other in a suit to modify the agreement.

Clash of the titans. An attorney worked for a corporation as its in-house counsel. Hostility breaks out between the Chief Executive Officer (CEO) and the Chief Financial Officer (CFO), with each threatening to sue the other over allegations of slander, libel, trespass to chattel, and so on. Does this personal clash between top managers present the attorney with a conflict of interest?

-No, because a lawyer employed by an organization represents the organization acting through its duly authorized constituents, so the lawyer represents neither of these officers individually. -Rule 1.13(a) says, "A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents." In this question, the attorney works as in-house counsel representing the corporation, not the individual managers who are at odds. The attorney has no duty of loyalty to either one, but instead must look out for the best interest of the corporation. Of course, in practice one or the other manager might be the attorney's direct supervisor or have the ability to fire him, which can affect how the lawyer may interact with different individuals on a day-to-day basis. -A lawyer representing a corporation represents the corporation, not its constituents, unless those constituents are (1) duly authorized and (2) acting for the corporation. In the facts above, neither the CFO nor the CEO is purportedly acting for the corporation, and therefore the lawyer does not represent either of them for their individual conduct.

Risky business. A client hires an attorney to help with the legal documents necessary to liquidate most of his investments so that he can use the cash to fund a new business venture. The client explains that he plans to quit his regular job and start a new career working from home as a "day trader," buying and selling stocks online every day in hopes of making large profits. The client has no experience or training in finance or investments, but he attended a seminar that featured testimonials from others who claimed to have made millions as day traders. The attorney thinks this is a foolish idea, but the client does not ask the attorney for his advice. Does the attorney have an ethical duty to caution the client against his seemingly reckless decision?

-No, because a lawyer is not expected to give advice until asked by the client. -Comment 5 for Rule 2.1 opens with a general rule of thumb followed by a caveat: "In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer's duty to the client under Rule 1.4 may require that the lawyer offer advice if the client's course of action is related to the representation." In this question, the client's proposal is to undertake a notoriously risky line of work at the expense of his regular (presumably more secure) job. It would be going too far, though, to say that this is "likely to result in substantial adverse consequences to the client," which would obligate the lawyer to interject a word of caution. A few people succeed at day trading, and others who fail are able to minimize their losses or return to a secure job easily — it depends on the person. -Here, a client has asked an attorney for help with legal documents to liquidate investments and the client has not asked the attorney for advice with his new business venture. The lawyer has discretion about whether to warn the client about the risks of failure in the proposed venture — there is no duty to warn in this case.

My client is a suspicious character. A client hired an attorney to represent him in a simple real estate matter. When the attorney asked some standard questions about the financial arrangements for the sale and purchase of the property, the client was somewhat evasive on a few points, but provided the information necessary to complete the legal work for the transaction. The attorney also heard from a friend that the client frequently cavorted with prostitutes. The attorney finds the client rather suspicious and has many unanswered questions, but none surrounding the transaction that occasioned the representation. Does the attorney have an ethical duty to inquire into the affairs of a suspicious client?

-No, because a lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted. -Comment 5 for Rule 2.1 says, "A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest." Lawyers often have clients whose personal decisions might seem imprudent or socially unacceptable, but the lawyer does not have an automatic duty to function as the client's life coach or to pry into a client's other matters that are unrelated to the representation. -Here, the facts state that the attorney has unanswered questions that are not related to the transaction that occasioned the representation. Thus, the lawyer has no duty to offer advice because the client's course of action is not related to the representation.

An insurance company retained an attorney to represent one of its policyholders (i.e., an insured) against a lawsuit. The insurance company that hired the attorney requires its retained counsel to follow its own litigation management guidelines, designed to monitor the fees and costs of the lawyers the insurer retains. The litigation management guidelines include the requirement of a third-party audit of legal bills. Although the guidelines usually serve the interests of both the insured and the insurer by keeping litigation costs low and expediting the resolution of the case, in this instance the attorney finds that the guidelines require tactical moves that are adverse to the insured's interests. The insurer claims that the insured impliedly consented to the guidelines by agreeing contractually in the insurance policy to "cooperate" during litigation. The insurance company hired the attorney for the case. Should the attorney comply with the insurer's litigation management guidelines?

-No, because a lawyer shall exercise independent professional judgment, and the insurer's litigation management guidelines in this instance materially impair the lawyer's professional judgment. -Rule 2.1; ABA Formal Op. 01-421

Protecting the client's feelings. Halfway through a trial, an attorney can tell that his client is going to lose. The opposing party successfully impeached the attorney's only favorable witness, and the judge has already told the parties that he plans to follow the state's model jury instructions for this type of case, which effectively preclude the legal theory that the attorney had made the centerpiece of his case. During a lunchtime break, the client turns to the attorney and tearfully asks if they still have any chance of winning. The attorney does not want to make her cry and feels very awkward about the situation, so in order to spare her feelings, he assures the client that they still have a good chance of prevailing. The attorney is representing the client on a contingent fee basis, so he knows it will not cost the client any more in legal fees to finish the trial. At the same time, there is still an open settlement offer on the table from the other party, albeit a very small, unsatisfying settlement, which the client could accept at any time if she wants to terminate the litigation. Is it proper for the attorney to feign confidence in order to protect his client's feelings?

-No, because in representing a client, a lawyer shall render candid advice. -Rule 2.1 requires lawyers to "render candid advice." Such candor with clients is particularly important when there are additional costs facing a client, such as ongoing litigation expenses or forfeiting a settlement offer, as in this case. Recognizing the frequency of situations such as that described in this question, Comment 1 for Rule 2.1 says, "In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client." -Rule 2.1 states that a lawyer shall exercise independent professional judgment and render candid advice when representing a client. A client is entitled to straightforward advice expressing the lawyer's honest assessment. As Comment 1 observes, "A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client."

Now that we're already in trouble. A large corporation was under investigation by a government regulatory agency over possible violations of securities law. The corporation hired an attorney to represent it in the matter, and authorized the attorney to make a full internal investigation to discover the merits of the accusations. The attorney discovered that a high-level manager had falsified quarterly earnings reports, a clear violation of the law that could expose the corporation to devastating sanctions and civil liability. The attorney confronted the officer involved, but this proved unfruitful, and then he proceeded up the corporate chain of command, eventually going to the Chief Executive Officer and the Board of Directors. The officers and directors refused to address the problem because they thought it would send their stock prices into a freefall and make the corporation vulnerable to a hostile takeover from corporate raiders. Would it now be proper for the attorney to become a whistleblower and reveal the problem to the relevant government authorities?

-No, because the attorney has a duty of confidentiality to the corporation, and the corporation hired the attorney to defend the organization against a claim arising out of an alleged violation of law. -Rule 1.13(d) says that the whistleblower duties outlined in an earlier section of the rule "shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law." Here, the corporation is already under investigation and hired the lawyer to represent it during the enforcement proceedings. This situation changes the lawyer's role, and makes the duty of confidentiality paramount. -[answer] is correct because the lawyer was hired specifically to represent the corporation regarding a violation of the law. Under Rule 1.13(c), the obligations to apprise the chain of command about wrongdoing is not applicable because the lawyer has been retained as part of the process to deal with the defense of the actions in question taken by the officers or directors in their capacities as the representatives of the company.

A certain client applied for a bank loan from Big Bank based on a security interest in farm land and farm machinery. Big Bank required an opinion letter at the time of closing from the client's attorney, vouching for the deed of trust executed by the client that would give Big Bank a mortgage lien on the property, prior to any other recorded liens. The client's attorney provided the opinion letter. It states that the attorney has neither physically inspected the property nor investigated the state of the record title with respect to the mortgaged property, relying instead on the preliminary title report of a title-insurance company that there are no other liens on the property and that the client has clear title to the property. Unknown to the attorney, a third party had already acquired adverse possession rights in the property. The third party has also incurred unpaid bills that resulted in mechanics' liens on the property. All this occurred after the date of the preliminary title report. Which of the following is correct, based on these facts?

-The attorney did not violate a duty of care to Big Bank by relying as stated in the opinion letter solely on the preliminary title report and not conducting any other investigation. -RESTATEMENT § 95

Whether to appeal. An attorney represented a client in tort litigation against a pharmaceutical company over injuries allegedly resulting from one of the company's drugs. During a pretrial hearing about the admissibility of certain evidence, the court ruled against the attorney and ordered that the evidence was inadmissible at trial. The attorney then contacted a reporter from a prominent newspaper and gave him a lengthy interview explaining the case, discussing the upcoming trial, and giving the reporter the very evidence that the court had held should be inadmissible at the trial. The newspaper ran the story on the same day that jury selection began for the trial. Opposing counsel moved to disqualify the attorney due to misconduct in the matter, that is, the public disclosure of the inadmissible material in an attempt to taint the jury pool. The court agreed to disqualify the attorney on the eve of the trial. Another firm was already representing the client as co-counsel, so that firm agreed to continue with the trial work alone. The attorney filed an interlocutory appeal, which he lost at the appellate court and appealed to the Supreme Court. Delaying the trial with this interlocutory appeal was clearly against the client's interest, but was necessary for the attorney to continue to handle this big case. Is it proper for the attorney to recommend to the client that they appeal his disqualification, if it is not clearly in the client's interest to do so?

-No, because the decision to appeal should turn entirely on the client's interest. -Rule 2.1 requires lawyers to exercise independent professional judgment, which includes separating the lawyer's own interests from what would be best for the client. The Supreme Court addressed a situation like this in Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 435 (1985). -Here, the facts state that the attorney's actions are clearly not in the best interest of the client. Thus, it was not proper for the attorney to delay the trial.

The prosecutor's secret. A district attorney (D.A.) discovers a single item of evidence that partly undermines the state's case against a criminal defendant — the state's star witness in the case, the prosecutor learns, had a suspension from high school for an instance of egregious plagiarism. The D.A. believes this is not material in that it would not change the outcome of the case, because the incident occurred ten years ago, and the witness is now an undercover police officer-informant. In fact, the D.A. believes it is trivial, and he is correct that the item would not fall under the duty of disclosure set forth by the Supreme Court in Brady v. Maryland. At the same time, the defense lawyer in the case has a reputation for making much ado about nothing, prolonging trials unnecessarily with tedious minutia. The D.A. decides to keep the information about the high school suspension to himself and let defense counsel discover it on his own if he wants. Did the D.A. act within the requirements of the Model Rules?

-No, because the evidence tends to negate the guilt of the accused. -Rule 3.8(d) provides that a prosecutor shall "make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. . . ." This rule does not distinguish between evidence that substantially versus partly undermines the prosecution's case against the defendant. The responsibility of the prosecutor is to strive for justice. Even if a piece of evidence is immaterial or does not completely undermine the state's case, the prosecutor has a responsibility to disclose that information if justice calls for it. In this case, the fact that the star witness was suspended from high school for egregious plagiarism could call into question his reliability and truthfulness. Even though this may be immaterial, since it partly undermines the state's case and tends to negate the guilt of the accused, the prosecutor must inform the defense counsel. Remember that the ethical rule set forth in Rule 3.8(d) is stricter than the constitutional due process rule outlined by the Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963). -[answer] is correct because since the evidence tends to negate the guilt of the accused, the prosecutor must inform the defense counsel of the information.

The dreaded conversation. An attorney served as in-house counsel for a corporation, and uncovered illegal actions taken by a particular senior manager (not the Chief Executive Officer or any comparable officer or director, but an individual with decision-making authority and several direct subordinates in the organization). The senior manager had a reputation for being arrogant and unreasonable, and he and the attorney had clashed on several occasions and were barely on speaking terms. At the same time, the senior manager was exceptional in his area of expertise and was an asset to the company despite his unpleasant demeanor. The attorney summoned the nerve to confront the senior manager about the problem as graciously as possible, and the senior manager's initial response was to be dismissive, saying that he was unaware of any laws or regulations that he might have violated. The attorney walked away from the conversation discouraged and planned to take the matter up with the corporate officers, and perhaps the Board of Directors. Before doing so, he reconsidered and returned to the manager, and patiently explained to him the relevant laws and regulations that the manager had violated. The senior manager begrudgingly accepted the attorney's advice and took all necessary measures to rectify the wrongdoing and prevent any long-term repercussions. The senior manager also insulted the attorney, called him incompetent for not bringing up the matter earlier, and suggested that the attorney's incompetence was due to the attorney's ethnic background. Could the attorney be subject to discipline for not referring the matter of the illegal actions to a higher authority in the corporation?

-No, because the manager took the lawyer's advice. -Comment 4 for Rule 1.13 says, ". . . [I]f the circumstances involve a constituent's innocent misunderstanding of law and subsequent acceptance of the lawyer's advice, the lawyer may reasonably conclude that the best interest of the organization does not require that the matter be referred to higher authority." Remember that the manager is not the lawyer's client — and in a sense, the lawyer is dealing with an unrepresented person in the corporation. The corporation itself is the client. Thus, if the manager had remained recalcitrant, the lawyer would have had a duty to report it up the chain of command, a step at a time, until someone with authority addressed the matter. Nevertheless, the manager accepted the lawyer's reproof, albeit grudgingly, and not without insulting the lawyer out of spite. The parting insults, though serious (and highly inappropriate), do not change the answer — what matters is that the lawyer obtained a change in behavior that rectified the problem, so there was no need to escalate it further. -The facts here indicate that the employee agreed with the attorney to rectify the wrongdoing and to prevent long-term repercussions. An attorney is supposed to consider the seriousness of the wrongdoing and the likelihood of substantial repercussions to the company when deciding whether to refer a matter up the chain of command, and here, the problem was resolved so the likelihood of substantial harm to the company is absent under these facts.

The chief financial officer of Investors' Club, a private investment trust, is under suspicion for converting $100,000 of Investors' Club's assets for personal use. The other responsible corporate officers of Investors' Club, acting on the trust's behalf, retain an attorney to recover the money from the chief financial officer. At the same time, they direct the attorney not to reveal the loss, or file a lawsuit, until she has first exhausted other collection efforts. Given these restrictions, would it be a conflict of interest for the attorney to proceed with the representation?

-No, it would certainly be proper for the attorney to represent Investors' Club, and in doing so she must proceed in the manner directed. -RESTATEMENT § 131

The good deal. A husband and wife are attending court-ordered mediation with an attorney, who is serving as the neutral mediator. The husband has retained counsel, but the wife has not. During mediation, the wife asks the mediator for his advice, and asks whether he believes that the husband's offer is a "good deal" for her. The attorney explains that his position as mediator only allows him to facilitate the negotiating process. The wife continues to seek the attorney's advice about the settlement proposals the husband makes. The attorney finally tells the wife what she is getting is a decent percentage of the estate and that he believes it to be a "good deal" for her. The attorney also informs the wife again that he does not represent her and that anything he says is merely general information, not legal advice. Are the attorney's actions proper?

-No, the lawyer should decline to advise her, and instead explain more carefully the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client. -Rule 2.4(b) requires a lawyer acting as a third-party neutral to be careful about leaving either party with the wrong impression that the lawyer is there to represent them. This question describes a particularly awkward situation for mediators — one party has his own counsel present for the mediation, while the other party is unrepresented, and the mediator is the second lawyer in the room, but without an individual client. It is natural for the unrepresented party to start treating the mediator as her lawyer in the situation, and it is particularly important for the mediator to clarify his neutral role. Neutrality includes refusing to advise one side to accept the other party's offer. -The attorney should have known that the wife did not fully understand the attorney's role in the matter when she continued to ask for his advice after he told her the first time that he was not representing her.

A certain client applied to for a loan from a Big Bank based on a security interest in farm machinery that the client claims to own. Big Bank required that all borrowers provide an opinion letter at the time of closing from the borrower's lawyer. The legal opinion letter was to verify, based on a check of courthouse records, that the borrower's title to the machinery carried no encumbrances, such as recorded liens. The client asked his attorney to provide the required opinion, and the attorney produced the letter addressed to Big Bank. Unfortunately, the attorney had in fact made no effort to verify the facts stated by checking courthouse records, instead relying entirely on his client's statements concerning the state of title of the property. If the attorney had conducted the investigation described in the opinion letter, he would have seen that the public records indicated several liens superior to Big Bank's security interest. Which of the following is correct, given these facts?

-The attorney failed to conduct the investigation described in the opinion letter and therefore violated his duty of care. RESTATEMENT § 95

An attorney worked for a corporation as in- house counsel. The attorney discovered that the Chief Financial Officer falsified the corporation's quarterly earnings report to prop up the firm's share price, as the CFO's compensation is partly in stock options. The attorney knows that these misrepresented earnings appeared in the filings to the Securities and Exchange Commission, and the misrepresentations will eventually result in severe regulatory fines or civil liability for the corporation. The attorney believes, with good reason, that the violation will result in substantial injury to the organization. The Chief Financial Officer hired the attorney, and he directly supervises the attorney in the organizational chain of command. The attorney confronted the Chief Financial Officer, but this proved unfruitful, and then the Chief Financial Officer discharged the attorney. What should the attorney do in this situation?

-The attorney should proceed as the lawyer deems necessary to assure that the organization's highest authority knows about the circumstances of the lawyer's discharge. -Rule 1.13(e)

A recent law school graduate obtained her law license and spent several months searching for a job. Eventually, she went to work for a medium-sized corporation as in-house counsel. The company had only recently grown to the size that it could afford to keep legal counsel on staff, as opposed to hiring outside firms to handle legal matters when they arose. This meant the newly-licensed attorney was the first lawyer to work as in-house counsel at this corporation. After seven months, the attorney discovered that the Chief Financial Officer had falsified the corporation's quarterly earnings report to help boost the firm's share price. Both the attorney and the CFO received stock options every quarter as part of their compensation plan. Realizing that these misrepresented earnings appeared in the filings to the Securities and Exchange Commission, and the attorney feared that the corporation would eventually face severe regulatory fines or civil liability for false earning reports. What should the attorney do in this situation?

-The attorney should start with the Chief Financial Officer, then take the matter to up the chain of command in the organization if necessary, eventually bringing the matter to the board of directors if nobody in management will address the problem.

An attorney represented a client who had an explosive temper. The representation concerned multimillion-dollar litigation, and the attorney received notice that the judge in the case had refused to qualify the attorney's expert witness to testify at trial. Without the expert, the client's case was unlikely to prevail. Faced with the daunting prospect of delivering this unwelcome news to the client, the attorney emailed the client and explained the setback in highly technical terms, citing the relevant sections of the Federal Rules of Civil Procedure, local court rules, precedential cases, and the Code of Judicial Conduct. He also used archaic legal terms in several places. A nonlawyer would have been unlikely to understand the conclusion - that the disqualification of the expert meant the client would lose the case and should withdraw or settle immediately. Based on the Model Rules, which of the following is true?

-The attorney violated his ethical duty to the client by providing purely technical legal advice that would be unhelpful to a nonlawyer. -Rule 2.1 Cmt. 2

A deeply divided law school faculty. A law school suffers from deep divisions among its faculty. One group of the faculty dislikes the Dean and wants to force his resignation with a vote of no confidence and pressure on the Board of Trustees. The other group is loyal to the Dean and resents their disloyal colleagues, whom they consider unprofessional. The controversy surrounding the law school's Dean overlaps with faculty divisions over hiring practices, tenure, and whether the school should try to emulate top-tier law schools in order to boost their national rankings, or if they should focus instead exclusively on pedagogy and preparing the students for the practice of law after graduation. The divisions are so great that each faction has threatened to quit, or take other drastic action that would imperil the school's existence, if their side does not prevail. The Board of Trustees obtains an agreement from both factions on the faculty that they will hire an attorney to function as a third-party neutral to attempt to broker a compromise between the factions on the faculty. The attorney is an alumnus of the law school and offers to serve in this capacity without charging legal fees. He claims that he is not representing the Board, the Dean, or either side of the balkanized faculty. He begins to schedule private conferences with each faculty group, the Dean, and the Board, as well as meetings attended by representatives from each faction of the faculty to have deliberations and consider possible compromises. The attorney also insists that he is not an arbitrator or mediator because no litigation over the dispute is pending or even contemplated at this point. Is it proper for the attorney to serve in this capacity?

-Yes, because a lawyer can serve as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. -This question highlights the fact that the "third-party neutral" concept in Rule 2.4 covers more than official arbitrators and mediators. Third-party neutrals also assist with business transactions (such as the negotiations involved in corporate mergers and acquisitions) between parties with divergent interests, and to resolve disputes like the one described in this question. Here, neither side has necessarily threatened litigation — and litigation is not likely to result even if the third-party neutral is unsuccessful. Instead, resolving the conflict would preserve the institution from disruption or dissolution, much like saving a business partnership after a conflict has arisen between partners. Even if the direst consequences were never to materialize for this law school — maybe nobody will actually quit — resolving the conflict or smoothing over some of the points of tension could foster institutional cohesiveness and teamwork that would enable the school to function better in the future. -Rule 2.4(a) applies and these warnings are appropriate. Aside from representing clients in dispute-resolution processes, lawyers often serve as third-party neutrals. Whether a third-party neutral serves primarily as a facilitator, evaluator, or decision maker depends on the particular process that the parties select or the court mandates.

The people want to know. An attorney represented a large corporation as a defendant in a toxic tort action. The matter had received little media attention and the corporate officers who retained the attorney emphasized the need to be discreet as long as possible, so that the pending litigation would have a minimal effect on stock prices. The representation necessitated that the attorney interview some of the employees involved in the incident that gave rise to the litigation, including some of the lowest-level unskilled laborers. A few of these individuals, as well as their co-workers whom the lawyer did not interview, asked the lawyer for details about what was happening with the case. The lawyer felt that they had a right to know about the case as it could affect the company, and their jobs, so he explained who the plaintiffs were, how strong the evidence appeared to be on each side, and the potential liability the company was facing. Could the attorney be subject to discipline for sharing this information with the company employees?

-Yes, because a lawyer may not disclose to company employees any information relating to the representation except for disclosures explicitly or impliedly authorized by the organizational client in order to carry out the representation. -Comment 2 for Rule 1.13 says that constituents of an organizational client are not necessarily the clients of the lawyer: "The lawyer may not disclose to such constituents information relating to the representation except for disclosures explicitly or impliedly authorized by the organizational client in order to carry out the representation or as otherwise permitted by Rule 1.6." Here, the lawyer should not discuss the case with lower-level employees, even though the outcome of the case could affect their jobs. Most of the decisions of upper management in large corporations could affect future salaries or layoffs, but such decisions are within the management's purview, and do not have to be discussed with everyone who might have an indirect stake in the issue. -[answer] is correct because the lawyer has a duty to keep information about the lawsuit confidential, and there is no indication that the company expressly or impliedly authorized the lawyer to disclose information about the plaintiffs or the strengths or weaknesses of the company's case to the employees.

Disinheriting the daughter. An attorney agreed to prepare a will for a client, a wealthy widow with three grown children. An earlier will divided her estate equally between her children, but the client now wants to modify the will to disinherit her only daughter, who disobeyed the client's wishes by marrying outside their nationality. The daughter is also a lawyer and is married to a lawyer, and the estate is substantial. The client's two sons are both working as manual laborers and they struggle financially. In the past, there had been some tension between the brothers and their sister, although the relationships seem to be cordial now. The attorney believes that disinheriting the daughter will ensure that the daughter and her husband will contest the will after the client's death, and will rupture the tenuous relationship between the siblings. The client did not ask for the attorney's advice about disinheriting the daughter, she just insisted on it. The attorney initiated a debate about it, explaining that he believed it could be against the client's best interests and would cause unnecessary acrimony between her children. Was it proper for the attorney to initiate such advice when the client did not ask for it?

-Yes, because a lawyer may offer unsolicited advice to a client when doing so appears to be in the client's interest. -Comment 5 for Rule 2.1 concludes, "A lawyer ordinarily has no duty . . . to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest." (See also the recent ABA clarification in ABA Formal Op. 05-434, note 15.) There is no prohibition against an attorney offering unsolicited advice for the benefit of the client. -Here, the attorney is aware of the consequences that are likely to result if the client proceeds to disinherit her daughter and believes the unnecessary hassle can be avoided and be dealt with strategically. Thus, it was proper for the attorney to initiate the advice to the client because the advice was in the client's interest.

An attorney served as general counsel for a municipal auditing and enforcement bureau, which monitored the internal affairs and expenditures of the municipal government. The attorney discovered that the head of the bureau engaged in selective enforcement and self- dealing, and he suspected that bribery had occurred in a few instances. The attorney's confrontation of the bureau head proved futile, so the attorney then needed to proceed up the chain of command. Can the attorney, now serving as general counsel for a government bureau, report wrongdoing to anyone higher within that municipality?

-Yes, because if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part, or the relevant branch of government may be the client for purposes of the Rules of Professional Conduct. -Rule 1.13 Cmt. 9

Corporate counsel and the tortfeasor employee. An attorney represents a corporation. One of the corporation's delivery trucks, driven by a corporation employee, had a tragic accident with a school bus full of children, and many children died. The delivery truck driver suffered severe injuries, but survived, and spent three weeks recovering in the hospital. In preparation for the wrongful death lawsuits by the deceased children's families, the corporation's attorney visited the truck driver in the hospital and interviewed him about the accident. The attorney did not explain that he was not representing the driver, or that the driver should retain his own lawyer. The unsophisticated driver may have assumed that his employer's lawyer was also looking out for his (the driver's) interests. The driver made some incriminating admissions to the lawyer about being slightly intoxicated at the time of the accident and having been careless while driving. He also admitted that at the time of the accident, he had taken the corporate delivery truck off its assigned route to attend to some personal business for about twenty minutes. Could the attorney be subject to discipline in this case?

-Yes, because in dealing with an organization's employees, the lawyer should explain the identity of the client when the lawyer should reasonably know that the organization's interests are adverse to those of the employee with whom the lawyer is dealing. -This question draws its facts from an actual case on this point. Rule 1.13(f) says, "In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing." Here, the lawyer for the corporation is interviewing an employee who caused an accident. It will eventually be in the corporation's interest to deny responsibility and claim that the employee acted outside the scope of his employment, so the employee's self-incriminatory statements could constitute admissions against interest for purposes of shifting all the liability to him. -According to Rule 1.13(f), a lawyer has the obligation to explain the identity of the client to the organization's directors, officers, employees, or other constituents when the lawyer has reason to believe that the interests of the constituent is adverse to the interests of the company. Here, the facts provide that the lawyer is representing the corporation. He is interviewing the driver of a truck who was severely injured while driving a company vehicle and caused an accident with multiple fatalities. At a minimum, the lawyer should expect that it is highly likely that the driver's interests are or may be adverse to the company's interests. Therefore, he had a duty to explain that he represented the company and not the individual truck driver when he interviewed him at the hospital.

Don't lecture me. An attorney represents a client, who lost his criminal appeals and is now serving a life sentence in a federal penitentiary. The client confesses to the attorney that he (the client) committed a murder for which a jury incorrectly convicted another (innocent) man. The client says he is happy that someone else took the fall for that crime and that he will never tell anyone. The attorney lectures the client about the morality of this situation, allowing an innocent man to face life imprisonment or even capital punishment for a crime that the client committed, and pleads with the client to reveal the truth. Was it proper for the attorney to bring morality into his consultation with the client, and to sermonize on this point for a few moments?

-Yes, because in rendering advice, a lawyer may refer not only to law but to other considerations such as moral factors. -The facts are similar to two actual cases — in both instances, a client refused to come forward and let an innocent person face a murder conviction and life sentence in prison. Rule 2.1 says that it is proper for a lawyer to bring in moral, social, and other factors when giving legal advice. While a client may not agree, it is not a violation for the lawyer in this question to urge the client to do the right thing, especially when the consequences for an innocent third party are so serious. -Comment 2 for Rule 2.1 observes, "Purely technical legal advice can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice." Ethical considerations "impinge upon most legal questions and may decisively influence how the law will be applied," so it is appropriate for the lawyer to include such factors in a discussion of the client's options.

The lobbyist. An attorney represented an alternative energy firm that is lobbying the state legislature to provide subsidies for companies that develop wind, solar, or geothermal energy sources. When appearing before a legislative committee, the attorney disclosed that he represents the company and submitted reports from his client about the efficiency of his client's products and the savings that could accrue to the public if more people used their products. The reports also purported that the company was having trouble staying in business and could not survive without a large government grant or subsidy. The attorney knew, however, that many of these figures were inaccurate, and that in fact the company was making a handsome profit on products that were less efficient than fossil fuel sources of energy. Was it improper for the attorney to submit such documents to a legislative committee?

-Yes, because lawyers appearing before a legislative body in a nonadjudicative proceeding shall conform to the same standards of candor and honesty that are expected of lawyers in a courtroom. -Rule 3.9 provides that lawyers who are representing clients before a legislative body in a nonadjudicative proceeding must disclose that they are appearing in a representative capacity and must also conform to the Model Rules regarding candor toward the tribunal, fairness to opposing party and counsel, and so on. The policy behind this reasoning, stated in Comment 1, emphasizes that although this kind of representation may not be traditional litigation, it is still important that the decision-making body be able to rely on the integrity of the submissions that lawyers make. This means that any facts or information that the attorney presents should be honest and trustworthy. The attorney in this case cannot submit documents to the legislative body that he knows to be false or misleading. Doing so would violate the attorney's duty of candor toward the tribunal, and thus it would be a violation of the Model Rules. -[answer] is correct because it precisely states the rule. The attorney has a duty of honesty toward the tribunal, even in a nonadjudicative proceeding. Therefore, it would be a violation of the rules for the attorney to submit information that he knows to be false.

Trouble with the FEDs on the horizon. An attorney worked for a corporation as in-house counsel. The attorney discovered that the Chief Financial Officer falsified the corporation's quarterly earnings report in order to prop up the firm's share price, as the CFO's compensation is partly in stock options. The attorney knows that these misrepresented earnings appeared in the filings to the Securities and Exchange Commission, and will eventually result in severe regulatory fines or civil liability for the corporation. The attorney thus reasonably believes that the violation is reasonably certain to result in substantial injury to the organization. The attorney confronted the CFO, but this proved unfruitful, and then he proceeded up the corporate chain of command, eventually going to the Chief Executive Officer and the Board of Directors. The officers and directors refused to address the problem because they thought it would send their stock prices into a freefall and make the corporation vulnerable to a hostile takeover from corporate raiders. Would it now be proper for the attorney to become a whistleblower and reveal the problem to the relevant government authorities?

-Yes, because the attorney has exhausted all other reasonable avenues to address the problem internally, so the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure. -Rule 1.13(c) has an exception for extreme circumstances when a company's activities clearly risk hefty sanctions from government regulators, and the lawyer has exhausted the internal options for addressing it — not even the Board will take action. In such a case, the lawyer must protect the corporation itself — that is, the owners or shareholders — by reporting the problem to the proper authorities. -The in-house lawyer was not retained to investigate an alleged violation of law or to defend the organization or its officers for specific conduct described above. Further, the conduct described above is sufficiently serious, and the consequences significantly dire, such that the lawyer confronted the alleged wrongdoers to encourage them to rectify the situation, and has gone up the chain of command with his concerns. Because those actions have failed, the lawyer may reveal information to the extent necessary to prevent reasonably certain substantial harm to the company, which may include revealing the identity of the wrongdoers to the authorities.

The chief financial officer of Investors' Club, a private investment trust, is under suspicion for converting $100,000 of Investors' Club's assets for personal use. The other responsible corporate officers of Investors' Club, acting on the trust's behalf, retain an attorney to recover the money from the chief financial officer. At the same time, they direct the attorney not to reveal the loss, or file a lawsuit, until she has first exhausted other collection efforts. Although the matter is not yet in litigation, would it be improper for the attorney to proceed with dual representation, of both the organization and the chief financial officer in this matter, if both consent?

-Yes, the interests of Investors' Club and the chief financial officer are so adverse that even informed consent of both would not permit their common representation by Lawyer in the matter. -RESTATEMENT § 131