Professional Responsibility

An attorney represented a municipality for several years, in accordance with a contract for legal services. The contract term ended, and the municipality published a new request for proposals, and in the end chose a different lawyer to provide legal services for the next several years. The municipality requested that the attorney (the one whose contract expired) provide the municipality's new counsel with all files - open and closed. The municipality has already paid the attorney in full for all his legal work. Which of the following would the attorney NOT have to provide to the municipality?

A general assessment of the municipality or the municipality's matter

Rule 3.9: Advocate in Nonadjudicative Proceedings

A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.

Rule 1.3: Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

Rule 3.2: Expediting Litigation

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

Rule 3.5 Impartiality and Decorum of the Tribunal

A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order; (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communication involves misrepresentation, coercion, duress or harassment; or (d) engage in conduct intended to disrupt a tribunal.

Rule 1.1: Competence

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

1.5 (d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case.

1.11 (e) As used in this Rule, the term "matter" includes:

(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and (2) any other matter covered by the conflict of interest rules of the appropriate government agency.

Rule 1.18: Duties to Prospective Client (d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:

(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client.

1.11 (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:

(1) is subject to Rule 1.9(c); and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.

Rule 3.3 Candor Toward the Tribunal (a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to 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; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or 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. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

MALPRACTICE RULE 1.8 (h) A lawyer shall not:

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

1.4 (a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

Rule 3.6: Trial Publicity (b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

1.11 (b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

1.12 (c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule.

1.5 (e) A division of a fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable.

1.10 (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.

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

(1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or (2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer's association with a prior firm, and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; (ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and (iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures.

1.7 (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be *materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer*.

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

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

1.16: Declining or Terminating Representation (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:

(1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) 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; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists.

Rule 2.3: Evaluation for Use by Third Persons

(a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client. (b) When the 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. (c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.

Rule 3.7: Lawyer as Witness

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

Rule 1.6: Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; (6) to comply with other law or a court order; or (7) to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

6.2 Accepting Appointments A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:

(a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law; (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.

Rule 3.4: Fairness to Opposing Party & Counsel A lawyer shall not:

(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

1.11 (d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) is subject to Rules 1.7 and 1.9; and (2) shall not:

(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or (ii) 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, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).

An attorney was an associate at Big Firm. In his first year there, as a recent law school graduate, the attorney had a twenty-minute conversation with a more senior associate about research strategies involving a narrow issue of venue in federal court. The research was part of the representation of Big Bank, in the case of Developer v. Big Bank. The attorney's time sheets (billing records) from the time clearly document the length of the conversation and its subject matter. The entire conversation focused on the facts pleaded in the complaint and answer; the attorney learned no confidential information about the matter. Eventually, the attorney left Big Firm to become an associate at Boutique Firm. Eighteen month later, a partner assigned the attorney to represent the same Developer against Big Bank in a matter that overlapped on many points with the matter in which Big Firm had represented Big Bank. Lawyers at Big Firm still represent Big Bank, and they inform the bank's officials that the attorney who worked for them is now working at Boutique Firm, representing the Developer. Big Bank instructs the lawyers at Big Firm to seek the disqualification of the entire Boutique Firm from representing the Developer in the matter. How could Boutique firm avoid the imputation of a conflict of interest to its lawyers.

At most, Boutique Firm would need to screen the attorney from the matter and have other lawyers represent the Developer, but even this may be unnecessary, because the attorney learned no confidential information about Big Bank at his previous firm.

A prospective client met with an attorney at Boutique Firm for an initial consultation about a personal injury lawsuit over injuries the prospective client had sustained. The attorney declined the representation because he thought the client's case was unwinnable and would therefore generate no fees. During the consultation, the attorney asked some probing questions about the incident, and the client admitted facts indicating an unreasonable assumption of foreseeable risks beforehand, as well as the client's own intoxication at the time, which in the case would constitute contributory negligence. Furthermore, the client had failed to take obvious measures afterward to mitigate the damages. The attorney was certain that all these unfavorable facts would come out during discovery, and the client's claim would become laughable at trial. Two months later, another client came in for a consultation with another lawyer at Boutique Firm. This prospective client had was service of process in a new personal injury lawsuit, and he was the named defendant. The plaintiff in the lawsuit was the same individual who had met with the first attorney for a consultation a few weeks before. *Boutique firm agreed to take the case and represent the defendant in the litigation, and it has no measures in place to screen the attorney who consulted with the prospective client from participating in the matter.* Which of the following is true, according to the MRPC?

Boutique Firm cannot represent the defendant in the case because an attorney there learned confidential information from the opposing party as a prospective client during an initial consultation two months ago, unless Boutique Firm obtains informed consent in writing from both the defendant and the opposing party, who was a prospective client during a one-time consultation.

A certain client hired an attorney to represent her at trial. After voir dire, the attorney wanted to learn as much as possible about each of the jurors, such as their views on political and social issues that might be relevant to issues in the case, so the attorney found each juror's social media accounts and reviewed their postings and comments. Was it permissible for the attorney to review all the social media posts and comments by the jurors, even back to their high school days, if the attorney has no other communication with the juror?

It is permissible for a lawyer to review a juror's Internet presence, which may include postings by the juror or potential juror in advance of and during a trial.

An attorney had her own firm, and she employed a paralegal who had previously worked for another firm. The attorney agreed to represent two new clients: a plaintiff in a personal injury lawsuit, and a seller in commercial real estate transaction. The personal injury plaintiff had a case that was unlikely to succeed due to evidentiary problems, though it was legally valid and factually plausible. The attorney wanted to charge a fixed, non-contingent fee up front for this case, and the client reluctantly agreed. The seller of the commercial real estate, on the other hand, was in a hurry to complete the deal and wanted to liquidate the asset for more than its fair market value, which was possible but also unlikely to succeed. The attorney offered to handle the transaction on a contingency fee basis. If she could negotiate with prospective buyers and convince one to buy the property immediately for a price above the appraised value, she would receive thirty percent of the sale price as a fee, but if it sold at or below the market value, or took more than two months to sell, the attorney would receive only reimbursement for the transaction's costs and expenses. The paralegal told the attorney that these fee agreements were impermissible, because personal injury plaintiff's normally paid contingent fees, and real estate transactions had to be on a fixed or hourly fee basis. The attorney disagreed, but she did not check the ethical rules herself to confirm this. Which of the following is correct?

It is proper to charge a plaintiff in a personal injury case a flat fee regardless of the case outcome, and it is permissible to charge the seller a contingent fee in a real estate transaction. Rule 1.5(c)

An attorney was an associate in Big Firm for eighteen months from early 2003 to late 2004. Another lawyer at Big Firm had been representing MindGames Inc., a creditor in the bankruptcy proceeding of Education Support International since 1999. The associate left Big Firm in 2004 to work for Regional Cancer Center as general counsel, where the medical director was Dr. House. There is a long, sad story here, but the bottom line is that Education Support International, which was still in bankruptcy, also owed money to Dr. House as a major shareholder of the failed company. In the summer of 2005, the bankruptcy court entered judgment in favor of MindGames Inc. and the shareholders, and MindGames immediately filed for sanctions against (compensation from) the shareholders, including Dr. House. At that point, Dr. House's lawyer withdrew from representation because the case had taken a complicated turn, and Dr. House asked the general counsel at his medical center - the associate we met at the beginning of this story - to represent him going forward. MindGames filed a motion to disqualify the attorney from representing Dr. House in the proceeding and the appeal, because he had formerly worked at Big Firm, in an office a few doors down from their own lawyer there. The bankruptcy judge agreed, applying an irrebuttable presumption that the attorney learned confidential information about MindGames while working at Big Firm, but the attorney insists he never worked on any MindGames matters and has did not learn any confidential information. The attorney has appealed the disqualification to the Fifth Circuit. How should the circuit court rule?

It should reverse the disqualification order because the imputed conflict of interest disappeared when the attorney left Big Firm to work for Regional Cancer Center, given that the attorney knew no confidential information about MindGames

An attorney had her own firm, and she employed a paralegal who had previously worked for another firm. The attorney agreed to represent two new clients: a plaintiff in a personal injury lawsuit, and a seller in commercial real estate transaction. The personal injury plaintiff had a case that was unlikely to succeed due to evidentiary problems, though it was legally valid and factually plausible. The attorney wanted to charge a fixed, non-contingent fee up front for this case, and the client reluctantly agreed over the phone, though the fee agreement was not in writing. The seller of the commercial real estate, on the other hand, was in a hurry to complete the deal and wanted to liquidate the asset for more than its fair market value, which was possible but not likely to happen. The attorney offered to handle the transaction on a contingency fee basis - if she could negotiate with prospective buyers and convince one to buy the property immediately for a price above the appraised value, she would receive thirty percent of the sale price as a fee, but if it sold at or below the market value, or took more than two months to sell, the attorney would receive only reimbursement for the transaction's costs and expenses. The client agreed to this arrangement over the phone, after the attorney had carefully explained it, though the fee agreement was not in writing. The attorney was successful in both matters, and both clients were satisfied with the results of the attorney's representation. The paralegal told the attorney that these fee agreements were impermissible, because personal injury plaintiff's normally paid contingent fees, and real estate transactions had to be on a fixed or hourly fee basis. The attorney disagreed, but she did not check the ethical rules herself to confirm this. Which of the following is correct?

It was impermissible for the attorney to represent the seller in a commercial real estate transaction on a contingent fee basis without a written fee agreement, signed by the client, stating the method of determining the fee. Rule 1.5(c)

Attorney Ames and Attorney Adams work in the corporate legal office of Risk Company. A federal regulatory agency is investigating of the activities of Risk Company and is deciding whether to initiate criminal charges against Risk Company, some of its employees, or both. The regulatory agency has a long-established practice of not charging corporations for violations that corporate employees commit, where the corporation can show convincingly that it actively sought to discourage the offense in question. Showing this practice would, however, almost guarantee that an employee would face charges individually for the violation. Stevenson is a Risk Company employee upon whose activities the agency has begun to focus. Before Attorney Adams' employment by Risk Company, she had been in private practice and had advised Stevenson with respect to the very conduct that is the subject of the agency investigation. Can Attorney Ames, who works with Attorney Adams, represent Risk Company in the matter before the regulatory agency, without obtaining informed consent from Stevenson?

Neither Attorney Ames nor any other member of Company's corporate legal office may represent Company without obtaining Stevenson' informed consent.

The Board of Directors of Giant Corporation, acting pursuant to its articles and by-laws, votes not to declare a preferred stock dividend because of a perceived shortage of working capital. The Board takes this action contrary to the recommendation of the attorney for Giant Corporation. The attorney believes that there is a reasonable argument that the dividend can be omitted, but that a tribunal would most likely order the dividend declared. Thereafter, the attorney implements the decision of the Board, memorializing its decision in a resolution. Several shareholders file suit to compel Giant Corporation to issue a dividend. Accordingly, which of the following is correct?

Neither the attorney's earlier advice nor the lawsuit itself creates a conflict of interest that would prevent the attorney from defending against the suit. RESTATEMENT § 131 Illus. 1

A defendant faced charges in a white-collar crime case - corporate espionage, securities fraud, and so forth. The police brought the prosecutor voluminous files, with the file boxes filling an entire storage room at the district attorney's office. These dozens of file boxes were only part of the evidence the police had amassed before making the arrest, so they inform the prosecutor that they have another room full of corporate records documenting the crimes in the basement of their precinct. Unbeknownst the to the prosecutor, some of the files in both locations have a few documents that case doubt on the defendant's role in some of the crimes, and others that might tend to mitigate the some of the other charges. If the prosecutor has not yet reviewed voluminous files or obtained all police files, however, does Rule 3.8 require the prosecutor to review or request such files before the plea bargaining, so that the defense can make better-informed decisions during the plea negotiations?

No, Rule 3.8 does not require the prosecutor to review or request such files unless the prosecutor knows or infers from the circumstances, or it is obvious, that the files contain favorable evidence or information.

An attorney represented a defendant who was facing criminal charges for violating a newly enacted statute. The statute that made certain activities that had previously been minor misdemeanors into felonies. The district attorney handling the case spoke to the defendant's attorney, explaining that this was an important test case of a new statute, so the D.A.'s office was seeking the maximum penalty. The state did, however, offer a reduced sentence if the defendant would plead guilty, but this would still carry three years of jail time. Outraged, the attorney shouted that this had always been a misdemeanor charge in the past, which carried no jail time at all, and ended the conversation abruptly at that point. Without mentioning the conversation to the defendant, the attorney drafted an impassioned motion to dismiss the charges and filed it with the court. The attorney had a reasonable belief that his motion could be successful, though it was far from certain. The judge agreed with the attorney and granted the motion, dismissing all the charges against the attorney's client. Were the attorney's actions permissible under the Model Rules?

No, a defense lawyer who receives a proffered plea bargain in a criminal case must promptly inform the client of its substance, unless the client has previously told the lawyer to accept or to reject the offer.

A federal judge hired clerk for the first two years after the clerk graduated from law school. During his second year as a clerk, he began applying for associate positions at local law firms, to secure a job that would begin immediately after his clerkship ended. A few of the firms to which he applied had pending matters before the same judge, and these were among the firms that interviewed the clerk for an associate attorney position. During the interviewing process, the clerk refrained from mentioning he knew about their pending matters on his judge's docket, though the interviewers always mentioned the fact that their firms regularly appeared before the judge in whose chambers the applicant was then clerking. Each firm that interviewed the clerk received a letter from the judge recommending the applicant to prospective legal employers. Even though some of these firms had pending matters on the judge's docket, the judge knew from the clerk which firms were interviewing the clerk. Was it improper for the clerk to apply for positions at firms that have pending matters before the judge for whom she was clerking?

No, a law clerk to a judge may negotiate for employment with a party or lawyer, even if the prospective employer is involved in a matter in which the clerk is participating personally, after the lawyer has notified the judge.

An attorney represented a client as the plaintiff in a legal malpractice action against another lawyer for simple negligence. The plaintiff's attorney sent a demand letter to the other lawyer, who immediately notified his malpractice insurer. The insurer offered to settle immediately, for the full amount that the client was demanding, mostly to avoid the publicity and attention that would result if litigation ensued, including the risk that the claim would inspire others to file lawsuits against the same firm. The attorney had received prior authorization from the client, during the initial consultation, to accept a settlement offer for that amount whenever it might come as the matter progressed. The attorney did not file pleadings in court and did not file a grievance with the state bar against the other lawyer. Did the attorney violate his ethical duty of zealous advocacy by not filing pleadings or a grievance?

No, a lawyer does not have to press for every advantage that might be realized for a client, having professional discretion to determine how a matter should be pursued. Rule 1.3 Cmt. 1

Boutique Firm charges its clients five dollars per page for photocopies done in-house on the firm's copiers. All new clients receive a schedule of fees before the representation begins that clearly specifies such charges, and client bills clearly itemize photocopying charges. The charge applies even if the client never sees the photocopies, as when associates conducting research must copy sections of cases, statutes, and regulations, or circulate draft memoranda to other lawyers working on the case. The charge also applies when the firm must produce documents for the other party in response to a discovery request. Boutique Firm set the amount at five-dollar per page, even though photocopies cost the firm only fifteen cents or so per page, because the surcharge generates a side revenue stream for the firm that enables it to charge lower legal fees, and to discourage clients from wasting paper. Boutique Firm is environmentally conscious. Is it permissible for Boutique Firm to assess clients a surcharge per page for photocopies done in-house?

No, a lawyer may charge the client no more than the actual cost of making a copy on the photocopy machine plus a reasonable allocation of overhead expenses directly associated with the provision of the service, such as the salary of a full-time photocopy machine operator. Rule 1.5 Cmt. 1; ABA Formal Op. 93-379

A certain client hired an attorney to represent her at trial. After voir dire, the attorney wanted to learn as much as possible about each of the jurors, such as their views on political and social issues that might be relevant to issues in the case, so the attorney found each juror's social media accounts and reviewed their postings and comments. One juror, the foreperson of the jury, had limited the access of some of her social media accounts so that only her friends or connections on that platform could view what she shared. The attorney asked his law student intern to send a connection request to the juror in hopes of gaining access to the juror's shared photos, commentary, and so on. There would be no reason for the juror to know the intern worked for the attorney in the case, as the intern was never present in the courtroom, and her own social media accounts did not mention her internship. The intern did not otherwise engage in conversations online with the juror, did not discuss the case with the juror, and did not respond to or "like" anything the juror shared or posted through social media. Was it permissible for the attorney to have his intern request access to the juror's social media posts, if the attorney has no other communication with the juror?

No, a lawyer may not send an access request to a juror to review of the juror's electronic social media, even vicariously through an intern. Rule 3.5(b). ABA Formal Op. 14-466

A certain client hired an attorney to represent her at trial. After voir dire, the attorney wanted to learn as much as possible about each of the jurors, such as their views on political and social issues that might be relevant to issues in the case, so the attorney found each juror's social media accounts and reviewed their postings and comments. One juror, the foreperson of the jury, had limited the access of some of her social media accounts so that only her friends or connections on that platform could view what she shared. The attorney sent a connection request to the juror in hopes of gaining access to the juror's shared photos, commentary, and so on. The attorney did not otherwise engage in conversations online with the juror, did not discuss the case with the juror, and did not respond to or "like" anything the juror shared or posted through social media. Was it permissible for the attorney to request access to the juror's social media posts, if the attorney has no other communication with the juror?

No, a lawyer may not send an access request to a juror to review of the juror's electronic social media.

An attorney represented a large pharmaceutical company that was part of an industry consortium. The industry consortium was pressuring the Food and Drug Administration (FDA) to relax its requirements for approval of new drugs. Regulators within the FDA had divergent views on this from a policy standpoint. The issue did not pertain to any individual drug or company; it concerned procedures for new drug approval as a general matter. Representatives from different companies within the industry would meet as a group with a team of regulators tasked with reviewing the FDA's policies in this regard, and during these meetings the regulators would ask the industry representatives probing questions about their research and development costs, market share, and retail pricing of drugs after approval. When executives from the attorney's company were preparing to attend one of these "negotiated rulemaking" meetings, the attorney coached him to say, "I do not recall" whenever the regulators asked questions that would reveal information unfavorable to the company's position. Was it permissible for the attorney to counsel the corporate executives to give evasive or vaguely untruthful answers at an industry meeting like this?

No, a lawyer may not submit false statements or false evidence through another to a rulemaking agency, which should be able to rely on the integrity of the submissions made to it.

Boutique Firm charges its clients fifteen cents per page for photocopies done in-house on the firm's copiers. All new clients receive a schedule of fees before the representation begins that clearly specifies such charges, and client bills clearly itemize photocopying charges. The charge applies even if the client never sees the photocopies, as when associates conducting research must copy sections of cases, statutes, and regulations, or circulate draft memoranda to other lawyers working on the case. The charge also applies when the firm must produce documents for the other party in response to a discovery request. Boutique Firm set the amount at fifteen cents per page because that approximates the firm's own costs in leasing the high-tech photocopiers, purchasing paper and toner cartridges, and paying for frequent maintenance and repairs of the machines by technicians. Could Boutique Firm be subject to discipline for charging clients per page for photocopies done in-house?

No, a lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer.

An attorney represented a client in transactional matters, and another lawyer in the same firm represented the client in pending litigation. The attorney did not appear on a list of counsel for the litigation matter and was not planning to sit at counsel table or otherwise physically appear in support of advocacy. On the other hand, the litigation involves a transaction that the attorney handled previously for the client. Would it be impermissible for the attorney serve as a witness in support of the client's position in the trial?

No, a lawyer serving in a capacity other than that of a courtroom advocate may serve as a witness for the lawyer's client. Restatement of the Law Governing Lawyers § 108; Rule 3.7

A brilliant attorney graduated at the top of his class from Harvard Law School. He was supremely intelligent and well-studied in the law, remarkably handsome, witty, and well-spoken. As he progressed through his career, he was in such high demand that he could afford to take only the cases he knew were mostly likely to win. Regardless of the complexity of the matter, he always won based on his wit, looks, and eloquence. He has been so successful that he has not needed to read a new case in fifteen years, nor has he needed to keep abreast of changes in law. He has never faced disciplinary action or a malpractice lawsuit. Assuming his winning streak continues indefinitely, is he providing competent representation, according to the Model Rules?

No, a lawyer should keep abreast of changes in the law and its practice and engage in continuing study and education. Rule 1.1 Cmt 8

An attorney spent several years working for the state Office of the Attorney General in its environmental litigation division. While there, the attorney began a case against a scrap metal facility for burying toxic materials on its grounds. The attorney then left government service and went to work for Big Firm. There, the 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 the 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.

An attorney served for a while as a municipal court judge, and during that time, she sentenced certain defendants facing criminal charges to terms of probation. Eventually the judge left the court and returned to private practice. Once settled in her new practice, three prospective clients sought to hire her file motions to end their terms of probation early, due to their good behavior and their need to relocate for their jobs. Would it be proper for the attorney to represent them in filing these motions?

No, a lawyer who served as a judge may not represent a client in a matter in which the lawyer had personal and substantial involvement.

An attorney had just graduated and passed the bar when he agreed to represent a certain client. Even though he was new to the practice of law, he devoted plenty of time to study and preparation to understand the relevant statutes and case law, correctly identified all the issues in the case, and conducted a thorough investigation of the facts. His knowledge and skills were normal for newer lawyers in his area. Unfortunately, he was simply no match for the counsel, one of the most famous lawyers in the state, and reputed to be the best in his field. The case went overwhelmingly in favor of the opposing party, so the client ended up worse off than before the matter began. Opposing counsel would have had an advantage over any other lawyer in the area, though an experienced lawyer might have obtained a less adverse result for the new attorney's client. Could the new attorney be subject to discipline for his lack of competence?

No, a newly admitted lawyer can be as competent as an experienced practitioner, even if the outcome in this case was unfavorable.

Conglomerate Corporation spilled a large quantity of toxic sludge along the edge of its property, and spillage polluting two adjacent properties, one parcel owned by a private individual, and the adjoining parcel that was state-owned. The subdivision of the state that owned the polluted parcel agreed with the private landowner to be co-plaintiffs in a tort action against Conglomerate as the polluter, and to use the same attorney to represent both the state and the private landowner. The private landowner was mostly concerned about the loss to his property values, as this was an investment property. The state was concerned entirely with cleanup costs and the threat to public health. An authorized official at the state agency provided the attorney with written consent to the potential conflicts of interest inherent in the joint representation, as did the private landowner. Under such circumstances, *would it be improper* for the same attorney to represent both the government and a private party at the same time, in the same matter?

No, after obtaining the necessary written consent, the attorney may represent both the private party and a government agency. Model Rule 1.11, Cmt. 9

An experienced litigation attorney represented Small Business as a client in a civil lawsuit. The trial resulted in an unfavorable verdict for the client, who then hoped to reverse the decision on appeal. Nevertheless, the attorney and the client had never agreed that the attorney would handle the appeal, so the attorney simply closed out his file for that client. The deadline for the client to appeal the verdict passed, and only afterward did the client discover that the attorney had not filed a timely appeal. Did the attorney fulfill his ethical duty of diligence to the client in this instance?

No, an attorney must discuss the possibility of an appeal prior to relinquishing responsibility for a client's case, unless there was a prior agreement about whether the lawyer would handle the appeal process.

An attorney, who often serves as a court-appointed mediator, was appointed to mediate the divorce case between a husband and wife. The case settled in mediation and the divorce was finalized soon after. A year later, the husband sought to retain the attorney to represent him in a modification suit against his wife. The attorney accepted the case and sent a letter to the wife advising her that the attorney had been retained by the former husband 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.

An attorney provided representation to a plaintiff in a personal injury lawsuit against Conglomerate Corporation. During the discovery phase of the litigation, the attorney felt overwhelmed with other client cases and distracted by family issues at home, and she did not conduct a thorough factual investigation. Her misunderstanding of the facts led the attorney to include a groundless claim in the complaint, which was otherwise valid and had appropriate factual support. The defendant successfully persuaded the court to dismiss that specific claim, but the defendant incurred costly legal expenses in doing so. Assume there is no "loser pays" rule for this type of litigation in this state. Could the plaintiff's attorney be liable in a subsequent negligence action to the defendant for the groundless claim?

No, as a rule, lawyers have no duty of care to the opposing party in litigation that could furnish the basis for liability to that party. RESTATEMENT § 51

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

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

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

No, as long as Big Firm screens the 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, the attorney worked on a case for the client during a law firm internship. Now, the attorney's firm is representing a defendant in a lawsuit in which the client is the plaintiff. The client's new lawyer moves to disqualify the attorney's firm from the representation when it learns that the attorney worked for another firm on behalf of the client when the attorney was still a law student. Is the attorney's firm subject to disqualification in this case?

No, as long as the firm screens the attorney from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the non-lawyers 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.

The *Supreme Court in a state* adopted a new rule that doubled the number of continuing legal education hours each lawyer must complete every year in order to maintain a license to practice law in the state. The fifty-hour annual CLE requirement was the highest of any state in the nation. A legal aid lawyer challenged the new rule on constitutional grounds, claiming that it was unduly burdensome to poverty lawyers, given the high cost of the CLE courses, and therefore could leave more poor citizens without representation. Is the legal aid lawyer likely to prevail in this challenge?

No, as state courts have inherent authority to impose reasonable regulations on the lawyers practicing in their jurisdiction.

A client retained an attorney to represent him in a car accident case. The client sought to recover $5,000 for damage to his vehicle and a few medical expenses the client incurred because of the accident. The attorney failed to timely file a lawsuit for the client before the statute of limitations ran. After realizing that the suit was barred because the attorney failed to timely file, the attorney sent the client a letter with a check for $20,000 and an agreement for the client to sign and return. The agreement stated that keeping the $20,000 check constituted acceptance of the agreement and that acceptance of the agreement included releasing the attorney for any malpractice claims against the attorney. Is the 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.

Big Firm hired associates from the top of their class at the most prestigious law schools. Big Firm's partners often boasted to their clients, truthfully, that all their associates did federal judicial clerkships before joining Big Firm as lawyers. Conglomerate Corporation retained Big Firm regularly as outside legal counsel, partly in reliance on these representations from Big Firm's partners about the credentials and experience of their associates. On one occasion, an associate at Big Firm did several hours of legal research on a certain topic for one client, Conglomerate Corporation. The research later turned out to be relevant to another client's legal matter. Would it be permissible for Big Firm to bill the second client, who agreed to pay fees based on the time spent on the case, the same amount for the recycled work product that it charged Conglomerate, the first client, if Conglomerate consented?

No, attorneys who reuse old work product have not re-earned the hours previously billed and compensated when they first generated that work product.

Alpha Firm and Beta Firm represent the two parties in a high-stakes commercial transaction - the sale of a subsidiary corporation from one large, international conglomerate to the other. An attorney at Alpha Firm is married to a lawyer at Beta firm, but the spouse at Beta Firm is not involved in the representation. If a problem arose, would a tribunal that follows the ABA Model Rules impute the marriage-based conflict of interest that Alpha Firm's attorney to all the other lawyers in the firm, if another lawyer at Alpha Firm handled the representation in this case?

No, because a conflict arising from a lawyer's marriage to another lawyer at an opposing law firm is not necessarily imputed to all other lawyers in the firm. [3] The rule in paragraph (a) does not prohibit representation whether neither questions of client loyalty nor protection of confidential information are presented. Where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, for example, 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, the firm should not be disqualified. On the other hand, if an opposing party in a case were owned by a lawyer in the law firm, and others in the firm would be materially limited in pursuing the matter because of loyalty to that lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm.

An 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, the attorney cannot imagine any viable defense to raise at trial, Does the 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.

A certain client hired an attorney to represent a 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. The 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 than notify the client that an unforeseen conflict of interest has possibly emerged, the attorney simply slows down his work on the case, because if the job offer comes through, he will have to transfer the 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. The attorney thus waits until the last 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 the 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.

After a terrorist attack that claimed many lives, authorities identified and arrested someone they believed to be the perpetrator of the attack. After the arrest, the prosecutor held a press conference, stating that the suspect was single and lived with his mother in a specific apartment complex in the city, and that the suspect would face charges related to the attacks. Could the prosecutor be subject to disciplinary action by the state bar for disclosing such information about the case to reporters?

No, because a lawyer in a criminal case may state the identity, residence, occupation, and family status of the accused.

An associate attorney works at a law firm. The supervising lawyer, who is a partner at the law firm, directs the associate attorney to prepare a petition for a civil case. The associate attorney contacts the client and discusses the facts of the case. During the conversation, the associate attorney realizes that the suit he was directed to file is frivolous and there are no facts to support the claim. The associate attorney discusses his concerns with his supervisor, and the supervising lawyer directs the associate attorney to file the suit, explaining that it will probably settle prior to trial, Following the supervisor's direction, the associate attorney files the suit. Are the associate attorney's actions proper, given that he was merely following orders?

No, because a lawyer 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 lawyer works.

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

No, because a lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness.

An attorney represented the 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 the client had a prior felony conviction that he 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 the 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 the attorney if it was true that the client had a prior conviction, and if so, what was the crime. The attorney conceded that the client had a grand larceny conviction in that jurisdiction and had served a two-year jail sentence, which was a matter of public record. The attorney then explained that their theory of the case was that the employer never clearly asked about a prior conviction. Moreover, the attorney observed, the conviction did not in fact disqualify client from the necessary security clearance for his position, but rather that this was a mere pretext for a racially discriminatory termination. Did the attorney violate his duty of confidentiality to the 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.

An attorney represents a client before an Administrative Law Judge in a regulatory enforcement matter. The Administrative Law Judge orders the attorney to disclose whether the client was informed by counsel about the regulatory requirements in question before the violation occurred. The client forbids the attorney to answer the question. The attorney initially objects, but the Administrative Law Judge insists. Could the 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 government entity claiming authority pursuant to other law to compel the disclosure.

During trial, the plaintiffs complained that the attorney's client had not fully complied with certain production requests during discovery. The judge ordered the attorney to produce the specific records. Yet the 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. The attorney openly refused to produce the records and explained his position to the judge. The judge disagreed and ordered the attorney to bring the records to the courtroom the next day. Of course, the attorney did not obey the judge's order. Apart from any potential contempt-of-court sanctions, could the 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.

A client fired an attorney after the attorney had completed 80 percent of the work involved in the representation. The client refuses to pay any of the fees that were in the original agreement at the beginning of representation. The client also demands that the attorney turn over all papers and documents relating to the representation. Must the attorney immediately return the 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.

An attorney is representing a client who is a notorious celebrity-turned-criminal. The 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. The 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. The 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 the 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.

An attorney represented a newspaper publisher in a defamation case brought by a popular actor. A radio talk show invited the attorney to participate in their afternoon program and respond to calls from the radio listeners. The first caller asked the attorney to explain the case involving the superhero that the popular actor had played in a recent film. The 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 the 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. The attorney also mentioned that the actor owns a home and a business in the state, which iS a matter of public record, and this is why the case is in the courts in that state. Did the 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, the identity of the persons involved, and matters in the public record.

An attorney represented a client in civil litigation. Early in the trial, the attorney had to testify briefly about an uncontested point. The testimony was necessary to establish a minor antecedent point for more critical issues in the case. The attorney made statements that she believed to be true at the time. The next day, while the trial was still underway, the client fired the attorney. When the attorney tried unsuccessfully to dissuade the client from doing so, the client told the attorney that the attorney's testimony was incorrect, and the client also explained some previously unknown information. Under these circumstances, could the attorney keep this information confidential, instead of taking remedial measures to rectify the false statements?

No, because a lawyer must correct a false statement of material fact or law previously made to the tribunal by the lawyer

A certain client was an indigent defendant and received court-appointed counsel for his trial. The trial ended in a conviction. A certain attorney served as his appointed counsel in the case. The client wanted to appeal his conviction, but the attorney believes, for several reasons, that there is no merit to an appeal. The client insisted that the attorney file an appeal before he missed the deadline and agreed that the attorney could withdraw from the case without the client's objection if he would simply file the appeal and provide the client with the opportunity to pursue the appeal pro se or with another lawyer. The attorney presented a "no-merit" letter to the appellate court explaining that his client was appealing his conviction but that the attorney could see no merit in the appeal. Was the 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 potentially support the appeal and leave it to the appellate court to decide whether the appeal is truly frivolous. Anders v. California, 386 U.S. 738 (1967)

A client hired an attorney to represent him in litigation, and he explained to the attorney his version of the incident that gave rise to the dispute with the other party. In response, the attorney took notes on the account that the client provided, and drafted pleadings that alleged the facts as alleged by the client. The attorney did no investigation before filing the pleadings to provide independent verification of the 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, the attorney submitted as evidence the various documents the 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 the client's account of what happened was full of fabrications, and some of the evidence was invalid. The attorney did not know the client was being untruthful, but he neglected to make any efforts to verify the client's story before presenting it in court. Could the 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. Rule 3.3. Cmt. 3 [3] An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer. Compare Rule 3.1. However, an assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(d) not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Regarding compliance with Rule 1.2(d), see the Comment to that Rule. See also the Comment to Rule 8.4(b).

As he left work one evening, an 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 the 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 the attorney's business card so that he could hire him. May the 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.

A flamboyant billionaire who founded a tech company faced charges of violating securities laws and regulations, and he became the target of an enforcement action by the Securities and Exchange Commission. Reports of the alleged crime generated significant media coverage and commentary, and the arrest and prosecution led to even more media attention. His attorney spoke to the press that assembled on the court house steps, and he gave the following statement: "I'm sure the only one guilty of anything here is the media - everyone knows my client is innocent, that the police framed him." Would it be permissible for the attorney to make such statements to the media, under the Model Rules?

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. Rule 3.6 Cmt. 5 & 7

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

No, because a physical or mental condition currently materially impairs the lawyer's ability to represent the client. Rule 1.16(a)(2)

A certain attorney works as a prosecutor and brings charges against a defendant. In this instance, the attorney clearly has probable cause for alleging that the defendant committed the crime, but he also doubts that a judge or jury will find that the evidence satisfies the standard of "beyond a reasonable doubt." Yet the attorney brings the case anyway, and the defendant wins an acquittal. Has the attorney acted improperly, under the Rules of Professional Conduct?

No, because a prosecutor may bring charges if the prosecutor knows the charges have probable cause. Rule 3.8(a)

An attorney was a state hearing officer for the Workers Compensation Board. The 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 the attorney had presided as hearing officer at an initial preliminary hearing and ruled on preliminary matters, but the attorney left the Board without issuing any final decision in the case and the Board transferred the matter to another hearing officer. The attorney represents the injured worker, the client, and the employer is Manufacturer. All the parties involved give informed consent, confirmed in writing, for the attorney to represent the client. Is the attorney subject to discipline for representing the client in this matter?

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

A client asked an attorney to represent him in a lawsuit. The attorney conducts some preliminary research and quickly discovers that the lawsuit IS a very long shot. In fact, based on the attorney's survey of the existing judicial decisions in very similar cases, the attorney estimates that they have only a 15 percent 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, the attorney advises the client that he is about 85 percent certain that they will not prevail. The client is willing to take risks, however, and urges the attorney to take the matter. The attorney reluctantly agrees, on the condition that he can charge a somewhat higher fee than usual, and files the lawsuit. Could the 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.

A certain attorney represents a client in a drug trafficking case. The client asks the attorney to deliver a package to a friend of the client. The client tells the attorney that the package contains illegal drugs, but he assures the attorney that he will not reveal who made the delivery if police discover that the transfer occurred. the attorney advises that he will not participate in the transfer. The attorney does not advise the court of the client's request and remains the client's attorney on the drug trafficking case. Are the attorney's actions improper?

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

A client met with an attorney to discuss certain financial decisions that the client was considering making in the future. The attorney discussed the pros and cons of making the decisions, but did not give a recommendation to the client. The client went on to make the financial decisions and ultimately came under investigation by the IRS for tax fraud. Is the 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, an attorney makes the following statement to the judge: "Your Honor, I know this client, because we grew up together and 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 - the attorney had known the client since childhood and had represented him many times, the attorney admired the client's integrity, and the attorney had offered to handle this case without charging any fee because he believed so strongly that the client was on the right side. Was it proper for the 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, or the credibility of a witness.

During opening arguments in a criminal trial before a jury, an 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, 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.

A famous professional athlete faced charges for 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 might have been 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 it 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 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 the attorney, who alone represented the defendant corporation, testify as a witness at the trial. The 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 the 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 the attorney from representing his client after the attorney took the stand to testify. Should the court disqualify the attorney from representation, or from testifying as a witness?

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

A litigation attorney represented a certain defendant in a lawsuit. The client was absent during the final pre-trial hearing about which experts the court would permit to testify at trial for each side. As the hearing was wrapping up, plaintiff's counsel asked the court to have the record sealed in the upcoming trial, and to have reporters banned from the courtroom. The trial involved sensitive information about the mental health of some of the children involved as parties and witnesses in the case. The court agreed but asked if the defendant had any objections. The defendant's attorney tried to reach his client by phone, but he could not get through. There was no obvious reason to oppose the motion, so the attorney agreed on his client's behalf. The judge ordered the record sealed for the upcoming trial. The client never returned the attorney's phone call, and the attorney forgot to mention what had transpired until they were sitting in court on the first day of trial, two weeks later. The client was upset, having planned to use media publicity about the case to draw attention to the other side's exploitation of children as witnesses in litigation. The attorney told the client that the judge would not reverse the decision now that the trial was underway. Were the attorney's actions permissible, under the Model Rules?

No, because even when an immediate decision is necessary during trial, and the exigency of the situation may require the lawyer to act without prior consultation, the lawyer must tell the client about it as soon as possible. Rule 1.4

An attorney represents a defendant in a prosecution for rape. The client turned down several other experienced criminal defense lawyers who offered to take the case and hired the attorney to represent him. The 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 the client to the rape. The only evidence against the 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 the client, so she is convinced he is the perpetrator. Despite the weakness of the evidence against him and his airtight alibi, the client is furious about the false accusation and wants to teach the victim a lesson. He informs the 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.' The attorney finds this repugnant, but he believes the client is truly innocent of the rape in this case, and the client will probably receive an acquittal with or without this testimony attacking the victim's character and reputation. The attorney believes the court will allow him to withdraw from the case and that the client could easily hire one of the other lawyers to take over the representation. Is it improper for the attorney to withdraw from the representation, if he agrees with the objectives the client is pursuing (acquittal) but disagrees with the actions the 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.

An Assistant U.S. Attorney (federal prosecutor) is working for the Department of Justice, and he must prosecute the defendants arrested in a high-profile sting operation against a terrorist cell. This attorney faces tremendous political and media pressure to win convictions at any cost. As a result, the attorney argues with his supervisor that he is not subject to local ethics rules, as he is litigating exclusively in federal court in cases involving federal law, and that he should therefore be immune from state bar disciplinary proceedings. Is the attorney correct?

No, because federal statute, as well as Department of Justice regulations, subject federal prosecutors to the ethics rules of the state where such the attorney engages in that the attorney's duties. 28 U.S.C. § 530B; 28 C.F.R. §77.3

An 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 the attorney hoping for some clarification. The 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, the attorney offered the best explanation he could. Was it proper for the attorney to answer her question under these circumstances?

No, because he communicated with a juror about a pending case.

An attorney receives a report from a psychologist that provides the psychologist's professional opinion that the client is unstable. The psychologist's report indicates that the client believes himself to be perfectly sane, and that the client has indicated he will cause harm if the psychologist submits a report stating the client is not stable and sane. The attorney chooses not to provide the report to his client when he receives it. Is the attorney subject to discipline?

No, because immediately providing the report to the client may cause harm to 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, there is a presumption of prejudice when a prosecutor states publicly that a defendant is the subject of criminal charges, unless he includes a statement explaining that the charge is merely an accusation and that the defendant still has a presumption of innocence. Rule 3.6 Cmt. 5(6)

An attorney defended a 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 the attorney at his office and asked for a quote about the client's case. The attorney stated that a member of the local clergy, as well as the Principal of the local high school, would testify as to the client's good character and volunteer activities. Was it proper for the attorney to discuss such things with a blogger?

No, because in a criminal matter, there is a presumption of prejudice when a lawyer makes extrajudicial statements about the expected testimony of a party or witness.

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

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

A patient of a well-known doctor suffers complications after her surgery, and believes she is the victim of medical malpractice. The patient writes to a lawyer, describing a medical-malpractice suit that the patient is contemplating, and she inquires about retaining the lawyer to represent her in the lawsuit. The lawyer never responds. Eventually, many months later, the statute of limitations expires for her claim. The patient then files a legal malpractice lawsuit against the attorney due to the failure to file a claim on the original case on time. Could the lawyer be liable for malpractice to the patient?

No, because it was not reasonable for the patient to have relied upon the lawyer, as the lawyer never communicated to the patient.

A court appointed a local solo practitioner to represent and indigent criminal defendant. The attorney sought to decline the appointment on the basis that he did not have legal malpractice insurance; normally, he explained, he could manage his risk of liability by carefully selecting clients whose legal needs were safely within his area of expertise, but the new court appointment involved some unfamiliar legal issues. Moreover, clients who select their attorney themselves are far less likely to blame or sue the attorney than clients who have no choice about the representation. Is the attorney's motion to decline the court appointment likely to succeed?

No, because lack of malpractice insurance is not good cause for withdrawal.

An attorney is a partner in a seven-lawyer firm. A client retained the attorney to handle his workers' compensation matter. The attorney did discuss with the client that he would normally disclose to the other partners in the firm some of the details about his cases and clients, and the client expressly forbade the 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, the attorney explained the client's case and solicited input from the partners. One partner had an ingenious suggestion that would have been very helpful to the client's case. The attorney mentioned to the client in their next phone call that one of his partners had made a brilliant suggestion that could turn the case in the client's favor. The client was upset that the attorney had discussed the case with anyone else. Was it proper for the 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 client is on trial for a theft case. A certain witness was with the client at the time police state that the client committed the crime at a location far from the crime scene. The client chooses to take the case to trial. For the witness's attendance at trial, the attorney pays the witness a lump sum amount. Are the attorney's actions proper?

No, because lawyers may not pay a witness to attend and testify at a hearing or trial.

An attorney used to work at Big Firm, and three years ago moved laterally to Medium Firm. One of the attorney's former colleagues at Big Firm also left and started a solo practice. While working at Big Firm, the solo received an assignment of literary rights from one of his clients about the client's high- profile case, immediately after the end of the case and the conclusion of the representation. That client also assigned any remaining literary rights to Kingpin Publishers in exchange for a hefty payment. The solo is now suing Kingpin Publishers to establish exclusive literary rights in the story. The first attorney's current firm, Medium Firm, represents Kingpin Publishers, and the solo represents himself. Another publisher is interested in acquiring the solo's book or movie script, and is funding the litigation expenses for the solo, even though it is not a client and does not yet have any ownership rights over the story. The case that gave rise to the literary rights occurred while both the solo and the first attorney were working together at Big Firm. The attorney performed some preliminary work on the case-reviewing and indexing a single deposition transcript before the client's trial -but the lawyer who is now the solo actually represented the client at trial. A paralegal at Big Firm is currently engaged to an editor at Kingpin Publishers, and the two are already living together. The attorney at Medium Firm, who is representing Kingpin Publishers, is in a sexual relationship with another lawyer at his own firm, and both are working in some capacity on the case. Executives at Kingpin Publishers have informed the first attorney that if his firm wins this case, they will hire Medium Firm for all their future legal work, which could be very lucrative in the long term. The solo has just filed a motion to disqualify the first attorney and the rest of Medium Firm from representing Kingpin Publishers in the case, alleging simply that there is conflict of interest. Does Medium Firm have a disqualifying conflict of interest in representing Kingpin Publishers in this particular litigation?

No, because neither the attorney nor Medium Firm have any disqualifying conflict of interest in this case.

An attorney represents a 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 - the attorney believes, accurately, that his client has at best a 50 percent chance of winning at trial. At the client's urging, the 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. The 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 the 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.

An attorney prepared a contract for a client in 2015. The matter has concluded, the representation has ended, and the person for whom the contract was prepared is not a client of the attorney or law firm in any other matter. In 2018, while using that agreement as a template to prepare an agreement for a different client, the attorney discovers a material error in the agreement. On those facts, do the Model Rules require the lawyer to inform the former client of the error?

No, because the Model Rules do not require disclosure of material errors to former clients after the representation has ended.

An attorney works for a firm where another lawyer is representing the defendant in a personal injury lawsuit. The other lawyer has represented the defendant for a long time on unrelated, non-litigation matters, but the personal injury lawsuit is a new case. The victim, the plaintiff in the same personal injury lawsuit, was a college classmate of the attorney and he asks the attorney to represent him in the litigation. The attorney has not learned any confidential information yet about the defendant from his fellow associate at the firm, nor has the attorney learned any from the victim during their preliminary consultation. The firm decides to undertake the representation of the victim as well. The firm will carefully screen the 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 the attorney to represent the victim, given these circumstances?

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

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

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

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

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

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

No, because the attorney does not have confidential government information about Conglomerate that she knows is confidential government information.

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

No, because the attorney does not have confidential government information about Conglomerate that she knows is confidential governmental information. Rule 1.11(c)

A trial judge is going through a divorce, and he hired an attorney to represent him. The 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 the 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, even though 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 the attorney continue representing the judge in his divorce?

No, because the attorney must withdraw from the representation of the judge under these circumstances. ABA Formal Ethics Op. 07-449

A certain state has specialized family courts that handle divorces, child custody, child removal cases brought by state social service agencies, and spousal or child support enforcement. An unmarried couple had split up but they had two children, and the family court judge awarded custody of the children to the single father, and ordered the mother of the children to pay $500 per month in child support to the father. A few months later, the judge left the family court and returned to private practice, specializing in family law, which allowed him to draw on his valuable experience as a former judge in the family court. One day, the father from the case described above came for a consultation, and he explained that the mother of the children had been delinquent for the last two months in paying child support to him. Would it be proper for the judge to represent the father in the action to enforce the child support order?

No, because the attorney would be representing a party in seeking enforcement of his own order from his time on the bench.

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

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

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. An 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 the 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.

A criminal defense lawyer represented a defendant in a criminal prosecution. The defendant had given an incriminating confession to the police during his first interrogation, but the police had never given him Miranda warnings. At the beginning of questioning, the defendant had stated that he wanted his lawyer and did not want to answer any questions without his lawyer present. The police said they would let him talk to his lawyer later, but for now, he had to answer some questions. The interrogators even threatened him with physical injury if he refused to confess, so he confessed under coercion. The confession should have been inadmissible at trial due to the lack of Miranda warnings, the questioning without his lawyer present, and the physical coercion. Nevertheless, the lawyer did not inquire about the circumstances of the confession and did not bother objecting to its admission at trial. The jury convicted the defendant, largely on the evidence of the illegal confession. The defendant retained a different lawyer on appeal, who raised the problem with the confession, but the appellate courts affirmed the conviction, until he had exhausted his remedies. The defendant then sued his original lawyer from prison for legal malpractice, claiming that he suffered significant damages due to the lawyer's negligence, given that he was unsuccessful in having his conviction overturned. Assuming the jurisdiction follows the majority rule and the Restatement of the Law Governing Lawyers, could the lawyer be liable for legal malpractice?

No, because the client was unable to convince an appellate court to overturn his conviction.

After much effort, an 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 attorney offered the 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 the 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.

Xavier Firm is about to file a patent-infringement action on behalf of a new client against an alleged infringer (the opposing party). Xavier Firm has no patent lawyers in its office, so it affiliates with Yankee Firm, which specializes in patent and trademark law, to handle the representation. Yankee Firm has had no connection with the opposing party, but an attorney in Yankee Firm represents Bruce Wayne against Tony Stark, another of Xavier Firm's clients, in an unrelated matter. For purposes of analyzing the conflict of interest in the representation of the new client against the patent infringer, would a court or disciplinary authority impute the attorney's representation of Bruce Wayne to Xavier Firm, and Xavier Firm's relationship with Tony Stark to Yankee Firm?

No, because the fact that Xavier Firm and Yankee firm represent opposing clients in a different, unrelated matter would not prevent their affiliation in the patent matter. RESTATEMENT § 123

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

The plaintiffs' lawyers in a large class action suit against an insurer contacted an attorney at another firm seeking some advice. The attorney they called was a former commissioner with the state Insurance Commission, so he had vast insider knowledge of the regulation of the insurance industry in that state. The attorney talked to the plaintiffs' lawyers for thirty minutes on the phone, during which the plaintiffs' lawyers shared some confidential information about the class action, including their theories of the case and litigation strategies. A year later, the attorney left his firm and went to work for Boutique Firm. Around the same time, the defense team representing the insurance company in the class action - three lawyers - also moved as a group to the same Boutique Firm, but to their office in another city. Boutique Firm became the counsel of record for the defendant insurer. The plaintiffs' lawyers learned of this convergence, and they *expressed concern that an attorney who had confidential information from their side of the case was now working with opposing counsel at the same firm. Boutique Firm immediately implemented strict screening procedures, and the managing partners made inquiries to confirm that the attorney had not already transmitted confidential information to the defense team for the matter, who were working in another office. The plaintiffs' lawyers were unsatisfied and filed a motion to disqualify all the lawyer in Boutique Firm from representing the insurer defendant in the class action. While the motion was pending, the attorney who had the confidential information left Boutique Firm to accept a government appointment. Should the court disqualify Boutique Firm, due to the imputed conflict of interest?

No, because the firm avoided imputation of the conflict by implementing effective screening measures, and the fact that the lawyer was geographically in another office, and has already departed to work elsewhere, also support denying the motion.

A prospective client consulted with an attorney about the possibility of securing legal representation in a matter. During the conversation, the client shared openly with the attorney about the strengths and weaknesses of her legal claims, including some personal information that would be embarrassing if it became public. Some of the information indicated the prospective client may have already waived some of her legal claims, and she may have been partly at fault on other points. The attorney considered it for a few minutes and then declined the representation, because he felt he could not devote adequate time to the case, and he thought the case was too problematic. In addition, he was skeptical that the prospective client would be able to pay his fees. A few weeks later, some of the attorney's other matters settled sooner than expected, freeing up his schedule, and another prospective client came for a consultation, who turned out to be the opposing party in the legal matter that the attorney had recently declined. This new prospective client had already gathered some convincing evidence supporting his side, and was wealthy, so paying the attorney's fees was not an issue. Would it be proper for the attorney to proceed with representing this new prospective client?

No, because the information learned from the first consultation with the other party would be so helpful to the new client, and so harmful to the individual the attorney declined to represent.

An attorney formerly represented Pharma Giant in obtaining FDA approval to market prescription drug Opticoton for treating diseases of the eye. Drug Conglomerate has now asked the attorney to help it obtain FDA approval for sale of prescription drug Dermicon for treating diseases of the skin. Drug Conglomerate is also interested eventually seeking FDA approval to market a variant form of Dermicon to treat diseases of the eye. If the FDA approved this application, Dermicon would significantly cut into the market share of Opticoton and Pharma Giant's profits from the drug. The attorney gleaned confidential information while representing Pharma Giant that relates extensively to work that the attorney would undertake in helping Drug Conglomerate obtain approval for Dermicon to be marketed as an eye salve, but none of the information would relate to Dermicon's use as a skin medicine. Drug Conglomerate and the attorney agree that the attorney's work will relate only to FDA approval for use of Dermicon to treat diseases of the skin. With this limitation in place, would it be *impermissible* for the attorney to represent Drug Conglomerate in obtaining the initial approval for Dermicon as a skin medicine, without obtaining Pharma Giant's informed consent?

No, because the limitation on the representation removes any substantial relationship between the two matters or concerns about confidential information from a former client giving a strategic advantage to the new client.

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." An attorney represents Conglomerate Corporation. Thousands of documents stored in electronic format on Conglomerate's computers and servers would potentially fall under this request for production. The 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*, the 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 the 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 certain attorney 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 attorney hoping for comments. The attorney 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 opinion, he says, the client is innocent and should receive an acquittal, but he does not explain the defense theory of the case. The attorney 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 attorney'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.

An attorney represents a client in a civil litigation matter. As they prepare for trial, at which the client will testify as a witness on his own behalf, the attorney realizes that the client is unlikely to tell the truth, even though the client insists he will be completely truthful. Even so, the attorney believes there is some chance that the client is indeed telling the truth, but he is about 70% certain that the client is being untruthful, despite the client's protestations. Does the attorney have an ethical duty to try to prevent the client from presenting testimony that the attorney believes is unlikely to be true?

No, because the prohibition against offering false evidence only applies if the lawyer knows that the evidence is false, and a lawyer's belief that evidence is false does not preclude its presentation to the trier of fact. [8] The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer's reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer's knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(f). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.

An attorney practiced family law. One of her previous cases involved representing a man who wanted to remove his estranged wife as the beneficiary of his life insurance policy. The attorney was successful in this undertaking for the client. Two years later, the client died, never having divorced his estranged wife. The wife asked the same attorney to represent her and to convince the insurer to undo the change in beneficiary so that the wife could receive the proceeds from her husband's life insurance policy. This representation would require extensive negotiation with the insurance company to convince the company that the previous change was invalid. Prior to his death, the husband, whom the attorney had represented, had sent the wife a letter saying that he made a mistake in removing her as the insurance beneficiary, and that he did not understand at the time the consequences of what he was doing. Would it be proper for the attorney to represent the wife in this matter?

No, because the subsequent representation would require the attorney to attack the same work the attorney performed for the former client.

After obtaining a favorable verdict at trial, a client asked the court to award attorneys' fees, which was permissible under relevant law. An attorney had represented the 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 the 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.

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.

An attorney 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 attorney hoping for comments. The attorney 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 attorney 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 attorney giving interviews like this, or to the attorney's comments. Were the attorney'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.

A certain attorney 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 attorney hoping for comments. The attorney 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 attorney 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 attorney 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 attorney'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

A certain client is an indigent criminal defendant and a certain 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 the attorney to represent the 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, the attorney was the last lawyer on the court appointments list. Unfortunately, the attorney also needed to serve as a witness during part of the trial, to authenticate a piece of evidence, and the authenticity of the evidence was a matter of dispute in the case. In addition, the attorney realized that his testimony would radically contradict the testimony of his own client, though the attorney still believed he could obtain an acquittal by impeaching the prosecution's star witness. May the attorney continue to represent the 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 rules about conflicts. [6] In determining if it is permissible to act as advocate in a trial in which the lawyer will be a necessary witness, the lawyer must also consider that the dual role may give rise to a conflict of interest that will require compliance with Rules 1.7 or 1.9. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer the representation involves a conflict of interest that requires compliance with Rule 1.7. This would be true even though the lawyer might not be prohibited by paragraph (a) from simultaneously serving as advocate and witness because the lawyer's disqualification would work a substantial hardship on the client. Similarly, a lawyer who might be permitted to simultaneously serve as an advocate and a witness by paragraph (a)(3) might be precluded from doing so by Rule 1.9. The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party. Determining whether or not such a conflict exists is primarily the responsibility of the lawyer involved. If there is a conflict of interest, the lawyer must secure the client's informed consent, confirmed in writing. In some cases, the lawyer will be precluded from seeking the client's consent. See Rule 1.7. See Rule 1.0(b) for the definition of "confirmed in writing" and Rule 1.0(e) for the definition of "informed consent."

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

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

A jury convicted a defendant of murder, and they sentenced him to death. His lawyer at trial was unimpressive, and there were potential points to raise in an ineffective assistance of counsel appeal. For his appeal, the defendant used a different attorney from the same firm as his trial lawyer - one of the lawyers at the firm handled trials, and the other appeals. Can the appellate attorney from the same small firm as the trial lawyer handle this appeal?

No, because under the legal standard for ineffective assistance of counsel, the appeal would potentially require the attorney to disparage the representation of his own colleague as being unreasonably poor.

A government agency contacts an 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 the 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 the attorney not to submit the report until the agency issues a subpoena, in order to buy some time to mitigate their regulatory violations. May the 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.

An attorney represents a client before a government agency that enforces securities regulations. As part of the representation, the 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. The client authorizes the attorney to prepare the written opinion, but insists that the 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 the client's confidential information, the attorney prepares the written opinion without the information the client asked him to withhold. The report does not mention that it excludes some unfavorable information. The attorney prepares the written opinion and gives it to the client, who submits it to the agency. Is it proper for the attorney to follow the client's instructions in preparing this report?

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

An attorney represented a home builder at the closings of the sales of a few homes that the builder had constructed in a new subdivision. It is not unusual for lawyers who conduct residential real estate closings to encounter issues related to marketability title. Recently, the home builder switched to using another law firm, so the attorney no longer represents the builder. A prospective new client has consulted with the attorney about providing representation. This prospective client is a landowner in an adjacent town, who wants to sue the same home builder, that the attorney formerly represented over a parcel of land on which the home builder plans to construct a few homes. The prospective client claims to have an ownership interest in the property. The contemplated lawsuit would involve whether the landowner or home builder have clear title to the property. Would it be improper for the attorney to represent the new client against the home builder over the marketability of title for this new parcel of land?

No, but only if both the home builder and the new client provide informed consent, confirmed in writing, and the attorney believes that he can provide competent representation to the new client without a material impairment.

A large municipality has a labor dispute with its police union. The chairperson of the city council is a lawyer - she works for the city council part time, and she also has a law partnership with one other lawyer. As chairperson of the city council, she has the final word on which items will be on the council's agenda at each meeting. A few city council members who support the police union want their modest proposal for police pension reform to be on the agenda at an upcoming meeting. The police pension fund has not received its full contribution from the city for several years, and even though all current retired officers are receiving their full pension benefits on time, a wave of expected retirements over the next few years would create a crisis if the pension remains underfunded. The proposal would require the city to make a significant increase in its annual contributions to the fund, which would force cuts elsewhere in the city budget. The chairperson's law firm partner represents the police union in a variety of legal matters. The chairpersons has screened herself from the representation, will receive no share of any legal fees from her partner's representation of the union in the pension reform matter, and she will recuse herself from debating or voting on the proposal at the city council meeting. May the attorney who is the chairperson's partner continue to represent the police union?

No, due to imputation of the chairperson's conflict of interest to her law firm partner.

A prosecutor learned that his cousin was serving jury duty in a criminal trial in the prosecutor's own district, although another lawyer from the prosecutor's office was handling that trial. Nevertheless, before and during the trial, the prosecutor repeatedly communicated with his cousin about the trial, even though the prosecutor himself was not involved in the matter. Was it permissible for the prosecutor to have this contact with the juror?

No, even though a colleague of the prosecutor was handling the trial in which the cousin was a juror, the prosecutor's conversation violated the ethical prohibitions on ex parte communication with jurors.

A client consults with an attorney, a solo practitioner, about a family law issue. The attorney has never practiced family law, but has spent his years as an attorney practicing strictly construction litigation issues. The 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. The attorney believes he can get advice on how to handle the case from attorneys in the area who practice family law, and with whom he has good relationships. Is the attorney subject to discipline?

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

An attorney represented a client in a case for violation of federal employment laws by the client's former employer. The employer filed a motion for summary judgment because the attorney's client had left the company prior to the effective date of the relevant statute. The attorney requested repeated extension for more time to respond to the summary judgment motion, which the court at first granted, but eventually denied. It turned out that the attorney knew the statute as enacted was not retroactive, but he was hoping some case law might develop during the delay that would help his case. There were no pending appellate cases considering the issue of retroactivity for this statute. Was it permissible for the attorney to request more time to file a response when the sole reason for doing so was the remote chance that some courts would modify the law that governed the case?

No, given that the issue was not pending before any appellate courts at the time, it was improper for the attorney to request these extensions.

An attorney was representing a criminal defendant, and he agreed to meet with one of the defendant's co-conspirators to learn more about what happened and to discuss what to expect as the case proceeded. At the beginning of the meeting, the co-conspirator gave the attorney a dollar bill, saying, "This is to establish attorney-client privilege." The discussions then proceeded as planned. Later, the co-conspirator turned state's witness against the attorney's client, and near the end of the proceedings, the prosecution moved to disqualify the attorney due to his conflict of interest. Did it establish attorney-client privilege and a conflict of interest problem when the co-conspirator gave the attorney a dollar?

No, giving money to the attorney did not create any attorney-client relationship

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 are 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 Trucking Company; Attorney's new firm represents Plaintiff in the case. Attorney was not aware of the case or that Big Firm represented 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 are disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.

An attorney worked as an associate for several years at Big Firm, and while she worked there, she started a sexual relationship with one of the clients of the firm, whom the firm had already been representing before she began working there. Nevertheless, the attorney did not make partner at the firm due to this incident, even though it had not resulted in a disciplinary action, so she eventually left and started her own practice. She then made radio commercials to attract new clients to her firm, in which she boasted that she had been an associate at Big Firm, but that she did not make partner there merely because she had sex with a client a few times. This advertisement brought many new male clients to her firm. One day, the attorney was flying cross-country to attend a deposition on behalf of one client. This counted as travel time she would ordinarily bill to that client, as permitted by the ethical rules. During the flight, she decided not to watch the movie or read a book, but to work instead on drafting a motion for another client. Would it be permissible for her to charge both clients, each of whom agreed to hourly billing, for the time during which she was traveling on behalf of one and drafting a document on behalf of the other?

No, if the attorney flies for six hours for one client, while working for five hours on behalf of another, she has not earned eleven billable hours.

An attorney specialized in transactional work for corporate clients, and he focused his practice on this area for many years. An emergency arose in which an attorney needed to give immediately telephone advice to an individual client who had to make an urgent decision. Referring the case to another firm, or even consulting with another lawyer, was not practical in the moment. The attorney did not have the requisite skill or knowledge for the matter, because it was far outside the attorney's regular area of practice, and he explained this to the client before offering any advice. He then gave his best educated guess about what the client should do, based on analogous situations in areas of law more familiar to him, and *confined his comments to the minimum necessary in the circumstances*. The client relied on the attorney's (mostly uninformed) advice, which turned out to be wrong, and the outcome was harmful to the client's legal interests. Could the attorney be subject to discipline for lack of competence?

No, in emergencies 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.

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

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

An attorney consulted with a potential client, a plaintiff in a personal injury lawsuit, and the client agreed to pay the attorney a contingent fee based on a percentage of the award in the case, which appeared to be a complicated matter that would necessitate the testimony of experts at trial, and depositions of the experts and other witnesses beforehand. As the consultation concluded, the client and the attorney signed an engagement contract for the provision of legal representation, which stipulated that the attorney would a contingent fee based on a percentage (one-third) of the award in the case. The document that the client signed clearly explained the percentage that should accrue to the attorney the event of settlement, trial, or appeal; litigation and other expenses that the attorney would deduct from the recovery; and that such deductions would come out of the total before the calculation of the contingent fee. The letter also discussed all potential expenses for which the client could be liable, if the client prevailed in the case or not. To impress the client, the attorney called the defendant's counsel in the matter, at the end of the consultation, while the client was still sitting in his office. Over the phone, the attorney explained the plaintiff's injuries, the medical expenses the plaintiff had incurred, and the one-million-dollar recovery they would seek in the lawsuit they planned to file. The defendant's lawyer checked with the defendant, who was standing next to him at the time, and then immediately agreed to pay the full amount that the client was seeking to recover - a million dollars - without litigation. Would it be permissible for the attorney to charge the client one-third of the million dollars as a fee, given these facts?

No, it is not reasonable for the attorney to charge over three hundred thousand dollars in fees for making one phone call at the end of the first consultation with the client.

An attorney represented a client in commercial litigation. One component of the case necessitated expert testimony about the economic losses suffered, interest calculations, and potential mitigation costs. The attorney hired the most famous expert witness that he could find on such matters, one who would easily be able to counter the opposing party's expert at trial. With the client's consent, the attorney agreed to pay the expert a six-figure retainer fee to review the case documents plus $2000 per hour for any courtroom time. Would the attorney be subject to discipline for paying the expert witness a huge sum to help with the case?

No, it is proper to compensate an expert witness on terms permitted by law, so long as it is not a contingent fee. [3] With regard to paragraph (b), it is not improper to pay a witness's expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.

A lawyer is representing the defendant in a 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.

A certain employee at Big Bank faced criminal charges for alleged embezzlement of bank funds, so she retained an attorney to defend her against the charges for a flat fee of twenty thousand dollars, which the client could pay in monthly installments. The next day, a different Big Bank employee confessed to having taken the money, so the prosecutor dropped the charges against the first suspect, that is, the employee who had hired the attorney. The attorney had done nothing on the case except the original consultation with the bank employee as a prospective client, checking for conflicts of interest, and drafting an appearance for the court. The prosecutor was not aware that the original defendant had retained counsel; the withdrawal of the charges was due solely to another individual confessing to the crime. The attorney did not have to decline any other potential clients when he agreed to undertake the representation. After confirming with the client that the matter was over and further representation was unnecessary, the attorney sent the client a bill for the $15,000 flat fee. Was it proper for the attorney to do this?

No, it would be unreasonable for the attorney to charge twenty thousand dollars for doing so little. RESTATEMENT §34 - Reasonable and Lawful Fees

A businessperson hired a certain 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, the attorney learned extensive private financial information about client, but the representation ended at the resolution of the tax case. Several years later, after the termination had ended, the husband of the client filed for divorce. The attorney was the only lawyer the husband knew, so he retained the attorney to represent him in the divorce against the client. Her new lawyer moves to have the attorney disqualified from representing the husband, but the attorney claims that the matters did not relate to each other enough to merit disqualification. Is the attorney correct?

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

A lawyer worked for Big Law Firm and represented a certain client. Sometime after the conclusion of the case, the lawyer left Big Law-Firm. Another potential client consulted with Big Law Firm after the lawyer left, and this new prospective client discussed a potential case with Attorney Andrews, another lawyer at Big Law Firm. The potential client's interests would be materially adverse to those of the first client, of the lawyer who left the firm. Attorney Andrews at Big Law Firm accepts the new client's case. Can Attorney Andrews or other lawyers still working for Big Law Firm provide representation to the new client, according to the Model Rules?

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

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 the 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 and another lawyer in the firm has information that is material to the matter. Model Rule 1.10(b)

A certain attorney was a solo practitioner with many years of experience. For the last few years, the attorney represented a local cupcake shop, jointly owned by Susan and Diane. Susan was in a traffic accident while doing a personal errand, but she was driving the delivery van of the cupcake shop. Susan was co-owner of the shop and was therefore free to use the shop's vehicle for occasional person errands. The police who arrived on the scene determined that Susan was not at fault in the accident. The attorney did not do personal injury litigation, so Susan asked him to refer her to a personal injury lawyer who could represent her at trial. At the same time, Susan insisted that the attorney who handled the business transactional work for the cupcake shop should receive a referral fee, and the attorney is willing to accept joint responsibility for the matter but will not assist in the litigation. The attorney has a reasonable belief that the cupcake shop will not become a party to the matter. Could the attorney be subject to discipline for making the referral and accept a referral fee without first obtaining written, informed consent of the cupcake shop, Diane, and Susan for a potential conflict of interest?

No, representation of one client is not directly adverse to another client, and there is not a significant risk that the referral of Susan will be materially limited by attorney's responsibility to the cupcake shop.

An attorney undertook the representation of represent a new client, and the attorney's firm searched for potential conflicts of interest. Unfortunately, despite conducting an otherwise adequate conflict search, the opposing party in the new matter had changed its name in the two years since the prior representation (by the same firm), and the attorney's firm was unaware of the name change. The attorney normally relied on her firm to screen for conflicts with clients of the other attorneys, but in this instance a competent search had not revealed the conflict. The attorney then drafted and filed a complaint at the client's behest, and then began planning to file a motion for a preliminary injunction. Before filing for the preliminary injunction, however, the attorney discovered that one of her partners at the firm previously represented the opposing party, under another name, in a closely related matter. The respective clients would not consent to the conflict, so the attorney had to withdraw from representing the new client. Her withdrawal forced the client to search for another lawyer and start over, which delayed the issuance of a preliminary injunction by several weeks, and the client suffered financial losses as a result. Would the attorney be liable to the new client for a breach of fiduciary duty?

No, she is not liable for a breach of fiduciary duty, but the firm could be subject to disqualification from the other client's matter.

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 polygraph 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 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.

An attorney represented a defendant facing criminal charges. The client was concerned that his estranged brother would testify against him at trial to impeach the defendant's own credibility if the defendant chose to testify. The rift between them had begun in high school, with a fight over a girlfriend, and had escalated over the years, so that the estranged brother was always ready to list several of the defendant's greatest failures or lapses in character whenever the two interacted. The attorney approached the brother privately and explained that his client was facing serious jail time that would have long-term consequences for the entire family. He then pleaded with the brother not to testify against the client or even talk to the prosecutors about it. The brother found this entreaty moving and agreed to keep quiet. Could the attorney be subject to discipline for this conversation with the brother?

No, the Model Rules do not forbid a lawyer from asking a family member to refrain from giving information to the other party. Rule 3.4(f)

An attorney undertook the representation of a client, but the representation was in the client's capacity as trustee of an express trust for the benefit of a beneficiary. The client informed the attorney that he wanted to transfer funds into the client's own account, which would legally constitute embezzlement. The attorney explained to the client that the transfer would be illegal and subject to criminal charges. Disregarding the attorney's counsel, the client made the transfer, and informed the attorney what he had done. The attorney took no measures to mitigate or prevent the financial losses sustained by the beneficiary, for example, he did not inform the beneficiary or the supervising court, which would have been permissible under the exceptions to the confidentiality rules. The attorney believes he should not be subject to liability to the beneficiary, whom he does not represent. Is the attorney correct?

No, the attorney could have prevented the breach of fiduciary duty without violating the ethical duty to protect client confidentiality.

` An attorney worked for Big Firm for several years, but he failed to make partner there because he was unable to recruit any new clients to the firm. He also observed numerous minor ethical violations occurring regularly at Big Firm, but none seemed serious enough to warrant a report to the state bar disciplinary authority. He left Big Firm and started his own solo practice, but struggled to attract clients, despite heavy investments in advertising. As a last resort, he tried using an online coupon app, called PleaseTryThis, to market his law practice. The attorney would offer the same "Deal of the Day" every weekday, stating that he would do the first ten hours of legal work at half his usual hourly rate. The ad also noted that many routine legal matters take ten hours or less. The response to his PleaseTryThis ad far exceeded the attorney's expectations. His waiting room was full every day, throughout the morning and afternoon, with new clients, eagerly awaiting their initial consultation for half-price legal representation. The attorney was agreeing to represent ten or more new clients every day, week after week. Are the attorney's actions here proper, according to the ABA Model Rules?

No, the attorney has an ethical duty to limit the number of deals offered, to devote adequate time and attention to each matter

An attorney represented the seller in a commercial real estate transaction. During the negotiations over the sale, the only parties present were the attorney, the client (seller), the buyer, and the buyer's lawyer. After the consummation of the purchase, the buyer sought to rescind the sale, alleging that the seller and the attorney had made fraudulent misrepresentations before and at the closing. Each side had completely different versions of what each party said during the negotiations and at the closing. Could the attorney represent the seller in the litigation over rescinding the sale for fraud?

No, the attorney is a material witness for the seller in the upcoming trial.

A certain client retained an experienced attorney for the drafting and execution of a will. The client wanted the will to leave the client's entire estate to her favorite professor from her law school, the one who had taught her Professional Responsibility course in her 3L year. The attorney drafted the will accordingly, and she arranged for the client to sign the will before the proper number of witnesses. Nevertheless, after the client's death, a disinherited relative sued and had the will set aside, claiming the client was incompetent at the time of the signing. The relative, who had then become the heir of the estate, sued the attorney for her legal expenses in challenging the will successfully. The heir argued that the attorney was negligent in assisting the client in the execution of the will, despite the client's mental incompetence. Is the attorney liable to the heir for negligence, if the heir has already obtained a court verdict that the testator-client was incompetent?

No, the attorney is not subject to liability for negligence to the heir who set aside the will.

An attorney had a firm that specialized in criminal defense work. He managed a team of young lawyers that worked on DUI cases and other noncomplex cases; while he would handle the more complicated or high-profile cases himself. The attorney received a court appointment to represent a defendant charged in a series of automobile thefts, and quickly reached an impasse with the defendant about whether he should maintain his innocence in the face of overwhelming evidence of his guilt. The appointee-client declared that he would gladly represent himself and maintain his own innocence rather than accept the attorney's advice of agreeing to a guilty plea in exchange for leniency. The attorney knew that the county did not pay well for taking court appointments, and the defendant did not accept his advice, so he petitioned the court for permission to withdraw from the representation, and the court reluctantly agreed, but ordered the attorney to stay on the case as standby counsel. The defendant proceeded pro se, the jury convicted him, and the judge applied the maximum sentence. Could the attorney be subject to discipline for withdrawing from the representation?

No, the attorney may ask for permission to withdraw as counsel, or to serve merely as standby counsel in this scenario

An attorney represented a client in a divorce case and charged the client an hourly fee for the representation. The client won primary custody of the child from the marriage, and the ex-spouse (the child's other parent) would take the child during school vacations. A year after the case ended, the client wanted to reopen the case to seek additional child support, because in the intervening months, the child had developed a disability that imposed high medical care costs on the client, and at the same time, the ex-spouse had won the Mega-Millions lottery, and was living a luxurious, profligate lifestyle. Would it be permissible for the attorney to represent the client in this matter on a contingent fee basis, given that the divorce was already final?

No, the attorney may not enter into an arrangement for, charge, or collect any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof Rule 1.5(d)

An attorney represented a defendant in a criminal proceeding. While preparing for trial, the defendant told the attorney that the main witness for their side, the defendant's friend who planned to corroborate his alibi, intended to lie on the witness stand. The attorney tried to dissuade the client and the witness from this course of action. He explained that committing perjury could subject the client to additional criminal changes, and that a rigorous cross-examination from the prosecutor would certainly expose the lies. Even so, the witness insisted on testifying at trial and stated his intention to present a fabricated version of the alibi. Should the attorney allow the witness to testify, and examine the friend as a witness, under these circumstances?

No, the attorney must either disclose the contemplated perjury to the tribunal, or refuse to call the witness, or withdraw from the representation. Model Rule 3.3(b)

An attorney worked as a purchaser for Conglomerate Corporation for many years before law school. After graduating and becoming a licensed practitioner, the attorney opened his own firm and represented many of Conglomerate Corporation's outside vendors in their contractual disputes with Conglomerate. In fact, the attorney advertised every month in local trade journals that he was a former purchaser for Conglomerate Corporation and could provide "affordable and experienced legal representation" to vendors who had legal disputes with corporations like Conglomerate. Regarding fees, the attorney would tell prospective clients that he sometimes billed hourly and sometimes charged a flat fee, depending on the complexity and time demands of each matter, and that this was difficult to predict beforehand. If this uncertainty was acceptable to the client, the attorney would agree to represent the individual. After the representation was complete, the attorney would decide how to bill the client. Is it proper for the attorney to handle fees in this manner?

No, the attorney must inform the client of the basis or rate of the fee and expenses before or within a reasonable time after commencing the representation.

An attorney worked as in-house general counsel for Big Bank. The Federal Trade Commission was holding a series of hearings about the consolidation of the industry and anticompetitive activities, and certain consumer protection groups were advocating in the hearings for regulatory reforms. In one instance, the consumer protection groups persuaded the Commission to subpoena certain corporate from the largest banks to show that they had engaged in undetected predatory pricing and price gouging following natural disasters. After hearing about the request for this subpoena, but before receiving service of it from the Commission, the attorney deleted several computer archives about the company's pricing patterns, and shredded printed records pertaining to the same subject. Big Bank was not currently the target of an enforcement action, and no litigation was pending or immediately contemplated regarding this information. Was it permissible for the attorney to clean up the company archives before receiving a subpoena from the Commission for its public hearings?

No, the attorney obstructed another party's access to evidence and destroyed documents or other material having potential evidentiary value. Rule 3.9 Cmt. 1

An attorney was highly knowledgeable and skillful, but he lost every case that he undertook, either because the law was unfavorable to his clients, or the other side could afford an entire army of elite lawyers, or because he was an unattractive person. He also regularly took on clients that no other lawyer wanted to represent because they seemed likely to lose. Over time, the attorney's clients lost their homes, lost custody of their children, lost their inheritances, and sometimes even went to jail. Despite his vast knowledge, skills, and thorough preparation, could the attorney nevertheless be subject to discipline for lack of competence, because he is consistently losing every time?

No, the attorney seems competent, based on the facts given, regardless of the pattern of unfavorable outcome in his cases, which could be due to other factors. Rule 1.1 Cmt. 2

An attorney represented an immigrant who was facing deportation. At one point in the proceedings, the immigration judge ordered the attorney to file various documents and forms necessary to the case. The attorney simply ignored the judge's order, knowing that the judge would not close the case and issue a deportation order without these important documents in the record. The client's deportation was inevitable, given the facts of the case and the relevant law, so the only thing the attorney could do to help the client was delay the deportation for as long as possible. Months passed, and the immigration judge repeatedly re-issued the orders for production of the documents, and the attorney continued to ignore them. Was it permissible for the attorney to hold off on filing the documents that would have hastened the deportation of his client?

No, the attorney's failure to file the papers was not a legitimate litigation strategy to prevent or delay the deportation. In re Howe, 843 N.W.2d 325 (N.D. 2014)

A state disciplinary authority issued a public reprimand of an attorney for a clear violation of the state's rules about solicitation of clients, and the tribunal ordered the attorney to pay a modest sum for costs and penalties. One of the attorney's improperly solicited clients, whose matter the attorney had handled competently, resulted in an unfavorable outcome for the client. The client brought a malpractice action against the attorney, based on the state bar's finding of an improper solicitation in her case, and she sought to recover damages. Is the client likely to prevail in this malpractice claim?

No, the attorney's violation of the solicitation rule does not prove that the attorney negligently mishandled the representation of the client. Allen v. Allison, 155 S.W.3d 682 (Ark. 2004)

A client asked her attorney to draft a will leaving a bequest in trust to a specific beneficiary, and to do so within one day, as the client was on her deathbed. The attorney wrote the will accordingly. After the client's death, however, the bequest was set aside. The invalidity of the will was due to a defect that most competent lawyers would not have been able to discover within one day. Later, the beneficiary sued the attorney for professional negligence. Can the beneficiary recover damages from the attorney for the invalidity of the will?

No, the beneficiary was not a client of the attorney, and without privity, the attorney owed no duty of care to the beneficiary.

A litigation attorney represented a client in a lawsuit. The case was still at the pre-trial phase, and the parties had filed cross-motions for summary judgement. While researching the case law to write a responsive brief, the attorney discovered, to her dismay, a new decision from highest court in a sister jurisdiction that is directly adverse to her position in the case. In the attorney's own jurisdiction, the issue presents a case of first impression. The briefs from opposing counsel never mentioned this new decision, presumably because the other lawyer had not yet seen it. Is it improper for the attorney to keep this information confidential, and not disclose the unfavorable authority to the court?

No, the case is not controlling authority in that jurisdiction. Model Rule 3.3(a)(2)

A litigation attorney normally represented clients at trial or in binding arbitration, but in some instances, she will represent a client in a mediation. In one mediation, the attorney knowingly made untrue statements of fact to the other party and opposing counsel. Has the attorney violated her ethical duty of candor to the tribunal, as delineated in Model Rule 3.3?

No, the duty of candor in Model Rule 3.3 is inapplicable to mediation; nevertheless, other rules such as Rule 4.1 may apply to the lawyer's untruthfulness here.

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 the number of clients the clinic could accept. 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 it employs 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.

An 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 the attorney was a third-year student visits the 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. The 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. The 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. The attorney then recounts everything the classmate said about the past addiction and criminal conviction. Was the 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.

An attorney grew up in poverty but worked hard to overcome obstacles and achieve success. Now a successful practitioner, the attorney is idealistic and passionate about helping the less fortunate. Every Saturday morning, he uses a small conference room at the local YMCA to assist pro se litigants in divorce and custody matters - the attorney helps them complete their own court forms (court filings) for a nominal fee, gives some advice about their individual situation, and reviews forms they have completed before the individuals themselves file them. The attorney is concerned about these pro se litigants misunderstanding his role and believing he is their lawyer, so the attorney requires each one to sign a printed disclaimer declaring that no attorney-client relationship exists. It reads, in relevant part, "I understand that this attorney has no legal or ethical obligation to provide legal representation to me in this matter." Given that the pro se litigant signed a form acknowledging that no legal representation will follow, is the attorney correct in believing that no lawyer-client relationship exists in these circumstances?

No, the lawyer is reviewing court documents and providing legal advice about pending legal proceedings, which constitutes the practice of law by the lawyer, even if the representation has a limited scope. The facts above are like those described in a 2015 ABA Formal Opinion (state ethics opinions, such as Texas Ethics Opinion 635, reach a similar conclusion). The lawyer is, in practice, providing legal services to the individuals, this constitutes the practice of law, and therefore a client-lawyer relationship exists, even if it is limited in scope. The significance of this conclusion is that the attorney could still be subject to discipline for ethical violations related to the provision of these services, and depending on the situation, sometimes the limited representation still "counts" for purposes of checking for conflicts of interest, unless it is the type of situation described under Model Rule 6.5. Sometimes it is very clear that no attorney-client relationship exists, but there are also confusing situations, as when an attorney gives an oral or written disclaimer stating there is no such relationship, but then provides legal representation anyway.

Attorney Stevenson was willing to represent anyone, and rarely turned clients away. In fact, Attorney Stevenson would push the permissible limits under the conflicts of interest rules. At one point, Stevenson helped a construction company obtain the necessary permits from federal, state, and municipal agencies for constructing a new shopping center in an affluent suburban area. Obtaining the permits was not difficult - in fact, Attorney Stevenson found this kind of legal work boring. Before the construction was complete, another company acquired the property and the building project, and brought the construction to completion. Seventeen months after the building was open for tenants, one of the tenants failed to pay rent for his unit for three consecutive months, and the property manager started an eviction process. The tenant hired the same attorney to represent her in the eviction proceedings. The shopping center's owner filed a motion to have the attorney disqualified due to the substantial relationship between his previous work in securing construction permits for the building and the present eviction action against the tenant. Should Attorney Stevenson's previous work for the construction company disqualify him from representing tenant in the eviction proceedings?

No, the matters are not related enough, because they do not involve the same transaction or legal dispute, and any confidential information learned while obtaining the construction permits prior would be unimportant for the nonpayment of rent by a tenant sometime later. Rule 1.9 Cmt. 3 [3] Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person's spouse in seeking a divorce. Similarly, a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent. Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. In the case of an organizational client, general knowledge of the client's policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.

A *state legislature* enacted a statute that doubled the number of continuing legal education hours each lawyer must complete every year in order to maintain a license to practice law in the state. The fifty-hour annual CLE requirement was the highest of any state in the nation. A legal aid lawyer challenged the new rule on constitutional grounds, claiming that it was unduly burdensome to poverty lawyers, given the high cost of the CLE courses, and therefore could leave more poor citizens without representation. In the alternative, the lawyer claimed that it violated the separation of powers. Is the legal aid lawyer likely to fail in this challenge?

No, the state courts have exclusive inherent authority to regulate the lawyers practicing in their jurisdiction.

An attorney provided lobbying services as part of his practice. He represented Giant Gas Company for a few years lobbying on environmental issues related to fracking. During the representation on a certain matter, the attorney learned the basis for Giant's fracking decisions in terms of location, timing, and methodology. Conglomerate Corporation, a major purchaser of the natural gas produced from fracking, has now asked the same attorney to represent it in an antitrust lawsuit against Giant Gas, alleging a conspiracy to impose limits on production. Conglomerate's claims against Giant Gas are likely to include addressing the same production decisions that the attorney learned about in his representation of the latter. This confidential information would certainly advance Conglomerate's position in the anticipated antitrust matter. The attorney no longer represents Giant Gas, because the company was not timely in paying the attorney's fees for the lobbying work. Would it be proper for the attorney to represent Conglomerate in this matter against Giant Gas?

No, there is a substantial relationship between the matters, so the attorney may not represent Conglomerate in the matter without effective consent from both Conglomerate and Giant Gas. RESTATEMENT § 132(d)(iii). Ill. 2

An attorney worked at Big Firm, which a court disqualified from representing a 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. The attorney was at the firm during this time but was not involved in the matter and did not learn any confidential information about the client. Eventually, the attorney left that firm and went to work at another firm. It turned out that the attorney's new firm is representing the client instead - the client hired the new firm after the previous firm was subject to disqualification. The new firm has no measures in place to screen the attorney from participation in the matter, though the attorney is not in fact participating in the representation. Will the new firm be subject to disqualification now, because the 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 the attorney onto the other lawyers in the new firm. Rule 1.9

The state bar association operated peer-support program. As a participant in the program, Attorney Stevenson consulted with another lawyer in confidence about a thorny issue that Attorney Stevenson was having with his representation of a client. The other lawyer gave Attorney Stevenson some bad advice, which Attorney Stevenson followed. The result was that the client fired Attorney Stevenson, which was a major setback for his law firm. Attorney Stevenson wants to sue the other lawyer for giving him bad advice, and he can make a plausible claim that it was reasonable for him to follow the advice, given the other lawyer's expertise and Attorney Stevenson's inexperience. Does Attorney Stevenson have a potentially valid claim against the other lawyer for malpractice?

No, there was no client-lawyer relationship between Attorney Stevenson and the other lawyer, at least under the facts delineated here. RESTATEMENT § 14

A grand jury indicted a defendant on a multiple-count assault and robbery of a woman, a violent mugging in which the perpetrator stole the woman's purse. The victim did not know her assailant, but afterward she identified the defendant in a photo array and then picked him out of a line-up. A bystander made the same identification from a photo array and a subsequent lineup. At the same time, the police informed the prosecutor that two other eyewitnesses viewed the same line-up, but those witnesses stated that they did not see the perpetrator. Moreover, a confidential informant attributed the assault to someone else. Concerned, the prosecutor interviewed the other two eyewitnesses, but he decided that they did not get a good enough look at the perpetrator to testify reliably. The prosecutor also interviewed the confidential informant, but he learned that the informant had previous convictions for fraud, and therefore was not credible. Given the early state of the proceedings, the prosecutor decides that if the case goes to trial, he will inform defense counsel about the other witnesses, because defense counsel may want to call them to testify. On the other hand, it seems unnecessary to mention the other witnesses during the plea-bargaining negotiations, because they are not part of the evidence the prosecutor would use in the case. Has the prosecutor acted within the parameters of the Model Rules?

No, to allow the defendant to make a well-advised plea at the time of arraignment, prior to a guilty plea, the prosecutor must disclose known evidence and information that would be relevant or useful to establishing a defense or negating the prosecution's proof. ABA Formal Op. 09-454, Rule 3.8(d)

An attorney was a partner at Big Firm, which represented Conglomerate Corporation and Giant Company in corporate merger negotiations. Big Firm had state-of-the-art network firewalls, virus protection, password protection, and other data security features in place. Nevertheless, one Friday evening some hackers managed to breach Big Firm's networks and access client information and partner emails, for purposes of engaging in insider trading. The firm detected the breach within a few hours and notified state and federal law enforcement. The stock exchange had closed for the weekend, and law enforcement managed to apprehend the hackers over the weekend, before they had a chance to review the stolen information and share useful data or engage in illegal stock trades. The clients suffered no losses or adverse effects, but they could have. Big Firm is worried about how news of the breach would affect their reputation, and that it might invite other hackers to target their firm, so they would prefer to keep the incident a secret. The partners at Big Firm claim they have no duty to disclose to its clients that the breach occurred, given that no harm resulted. Are they correct?

No, when a data breach occurs involving, or having a substantial likelihood of involving, material client confidential information a lawyer has a duty to notify the client of the breach. Rule 1.4; ABA Formal Op. 18-483

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.

A client called the same attorney that had previously represented her, asking the attorney to handle a pending antitrust investigation. She requested that the attorney come to the client's corporate headquarters to explore litigation strategies. The attorney visited the headquarters and spent four hours meeting with the client and her management team to discuss strategy, but never gave a definitive answer about whether he would represent the client in the matter. Is it reasonable for the client to assume that an attorney-client relationship exists?

The attorney communicated a willingness to represent the client by her actions.

A potential plaintiff sent an email to an attorney that described a medical-malpractice suit that sender wanted to bring. The email asked the attorney to represent the victim in the matter. The attorney read but never responded to the email. Fourteen months later, the applicable statute of limitations on the claim expired. The plaintiff then sued the attorney for legal malpractice for not having filed the suit on time. Is the attorney liable for malpractice for missing the statute of limitations?

The attorney could not be liable under these facts because no client-lawyer relationship existed.

An attorney normally does business transactional work for clients, and he has done so for a decade. One of the attorney's clients recently injured another driver in a car accident, and he asked the attorney to defend him in the personal injury lawsuit over the incident. The attorney has never taken a case to trial, but he took trial advocacy courses in law school and has served as second chair on other lawyer's commercial litigation trials. The 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?

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

An attorney agreed to represent a client, but the attorney's firm did not search for potential conflicts of interest. The attorney filed the lawsuit in court. During the pleading and motion stage, the attorney discovered that one of her law firm partners formerly represented the opposing party in a closely related matter. As a result of this conflict of interest, the attorney had to withdraw from representing the client. A competent conflicts search would have revealed the conflict. Due to the attorney's withdrawal, the client had a significant delay in obtaining a preliminary injunction against the other party, resulting in financial losses for the client. Which of the following is true, given these facts?

The attorney is liable to the client for a negligent breach of fiduciary duty.

A certain defendant was facing charges for assault with a deadly weapon. A local criminal defense attorney offered to represent this defendant on a contingent fee basis. In other words, the attorney would charge no fee (the client would pay nothing) if the case resulted in a conviction, but he would pay only if the lawyer won an acquittal. Having no funds on hand to hire a lawyer by any other means, the client was eager to do this and consented to the arrangement, in writing. Which of the following best describes the lawyer's situation?

The attorney is subject to discipline for charging a contingent fee in a criminal matter.

An attorney undertook the representation of a client in a breach of contract claim and began working on the matter. A few weeks later, the opposing party in the litigation consulted with another lawyer in the attorney's firm about the same matter, but during the consultation, disclosed no confidential information except the identity of the other party and the nature of the claim. The other lawyer did a routine conflict check, quickly discovered the conflict with this new potential client, and immediately declined to represent the party. The lawyer and the attorney already representing the first client discussed the situation. Would it be proper for the attorney to disclose to his client that the opposing party had come in for a consultation with another lawyer in his firm?

The attorney may not disclose to the client that the opposing party consulted with another lawyer in the firm but may continue to represent the client if the attorney does not use any information gleaned from the other party's consultation against the other party. ABA Formal Op. 90-358, Rule 1.18

An attorney had to abandon his home and his vehicle to take refuge in a FEMA rescue shelter following a natural disaster in his area. Some of the attorney's clients required immediate legal services that the attorney was unable to provide. What would be the attorney's ethical duty in this situation?

The attorney must withdraw from representing the clients mentioned.

A client hired an attorney to represent her as the plaintiff in a contract action. The client sought to recover $100,000 under the contract. The attorney agreed to provide representation on an hourly basis, at a rate of two hundred dollars per hour. The attorney spent ten hours working on the matter, and then withdrew from the representation to go on vacation, on the eve of trial. The client did not have time to find another lawyer, and tried to proceed pro se, resulting in a dismissal of her case with prejudice. The plaintiff then sued the attorney for malpractice and showed that she would have prevailed in her contract claim, but for the attorney's withdrawal. The court in her malpractice action awarded her the full $100,000 in damages that she would have won in the contract case. The attorney then argues that if the client is receiving the full amount she sought to recover originally, then the attorney should receive the two thousand dollars in attorney's fees for the hours she worked, if not the full amount the client anticipated paying the attorney from the beginning. How much should the attorney deduct from the damages owed to the client, toward the attorney's fees for the representation?

The attorney should have forfeited her right to fees by committing malpractice and must pay the full award amount to the client.

An attorney filed a lawsuit on behalf of a client against Conglomerate Corporation as the defendant. The attorney's contingent fee contract stipulated that the attorney would receive thirty percent of recovery, if the case settled before trial, and a higher percentage if a trial was necessary. The client and the attorney signed an engagement contract for the provision of legal representation, which stipulated these terms. The document that the client signed clearly explained the percentage that should accrue to the attorney the event of settlement, trial, or appeal; litigation and other expenses that the attorney would deduct from the recovery; and that such deductions would come out of the total before the calculation of the contingent fee. The letter also discussed all potential expenses for which the client could be liable, if the client prevailed in the case or not. While the case was still in the discovery phase, Conglomerate Corporation offered the client a structured settlement. Under the settlement terms, Conglomerate would pay the client one million dollars up front, which would cover the plaintiff's medical costs, and the defendant would also purchase an annuity for the client. The annuity would cost Conglomerate $153,000, and it would guarantee the client monthly disbursements of $1000 until the client's death. The client is thirty years old. In terms of fees, how much should the attorney receive?

The attorney should receive $300,000 when Conglomerate's million-dollar lump sum payment arrives, and $300 of each subsequent disbursement from the annuity, when the disbursements occur, until the client's death. RESTATEMENT §35 Contingent-Fee Arrangements

A client owns a partnership share of a closely held business, and the other partners vote to impose an involuntary buy-out of the client to remove him from the firm. The client is clearly upset about this, but the partnership agreement clearly permits involuntary buyouts by a majority vote of the other shareholders. Then the client hires an 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. The attorney's sister is also a lawyer in that city, at another firm, and the sister represents the other shareholders in the partnership. Nevertheless, the 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 the attorney, or the other lawyers in her firm, subject to disqualification in this matter?

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

A doctor was facing criminal charges for an illegal kickback scheme - accepting bribes to refer patients to a certain hospital. The attorney representing the doctor in the criminal matter previously represented the hospital, and he had drafted one of the contractual agreements between the doctor and the hospital that federal prosecutor now allege to have been a sham agreement (payment for services never rendered). The attorney also provided some legal advice several years ago to another doctor, in one passing conversation, and that doctor now turns out to be part of the same kickback scheme. This other doctor, in fact, has turned state's witness in the case against the attorney's current client. The federal prosecutors have filed a motion to disqualify the attorney from the case because he is a potential witness about the agreement between the doctor. On the other hand, it has not yet listed him as a witness who will testify at trial, and it does not appear his testimony would be necessary to prove any of the elements in the case, given the number of other witnesses and documentary evidence available. How should the court rule on the motion to disqualify?

The court should deny it because the government has not met its burden of showing that the attorney would be a necessary witness in the case, or that he possessed confidential information about the other doctor who will serve as a hostile witness in the case. United States v. Beauchamp, 2017 WL 1684406 (N.D. Tex. May 2, 2017)

An attorney served for several years as an appellate court judge. At one point, the judge was on a panel that affirmed two trial orders in an ancillary probate proceeding. Soon thereafter, the attorney left the appellate court and returned to private practice at Boutique Firm. The larger probate matter was still dragging on, and relators brought a mandamus appeal arising out of the same ancillary proceeding and hired Boutique Firm to represent them on the appeal. This necessitated filing a motion to substitute counsel from a previous firm that had provided representation up to that point. Opposing counsel did not oppose the motion, as they did not know Boutique Firm had hired a former appellate judge who had signed earlier orders in the case. Boutique Firm did not screen the former judge from the matter. When opposing counsel eventually realized this fact, the lawyer immediately filed a motion to disqualify Boutique Firm from the appeal. Boutique Firm responded that opposing counsel had already consented to the potential conflict when it did not oppose the motion to substitute counsel; moreover, there was no demonstrated prejudice to the opposing party. How should the court rule on the disqualification motion?

The court should grant the motion as the matters related to each other, and the moving party did not have adequate notice about the conflict to give informed consent.

A potential client sought representation from an attorney in a legal dispute over the inheritance rights in an estate matter. The attorney was indecisive, because the estate was extremely complicated, so he met with the client several times over the next few months, trying to understand the intricacies of the will, the trusts involved, and the rival heirs. The potential client provided extensive confidential information about the estate to the attorney in meetings, phone calls, and emails. Eventually, however, the attorney declined the representation. During this time, the attorney had been in negotiations with another lawyer about forming a new law firm together. The other lawyer, unfortunately, was representing the rival heir, that is, the opposing party in the same estate matter. When the attorney and the other lawyer formed their new firm, the heir who had been the potential client then sought to have the attorney's new firm disqualified from the estate matter, arguing for imputation of the attorney's knowledge of confidential information to the other lawyer, who was the heir's opposing counsel in the case. The other lawyer, who was now partners with the first attorney, argued that no client-lawyer relationship had existed between the heir and the attorney, because the attorney had declined the representation at the end. The heir who had been the prospective client insisted that the attorney had received confidential information from her, and that he had disclosed it to the other lawyer, who represented the rival heir in the matter. As a factual matter, the judge ruled that the prospective client-heir had introduced substantial evidence that she had provided extensive confidential information to the attorney in the process of seeking representation from him; conversely, the judge was surprised that the attorney had almost no evidence to show that he had not disclosed any confidential information to his new partner. How should the court rule on the motion to disqualify both lawyers?

The court should grant the motion, because lawyers have some ongoing duties of confidentiality toward prospective clients, even after declining the representation, and the other lawyer has a conflict of interest by imputation.

An attorney worked as a prosecutor in a local district attorney's office. A month before leaving there to go into private practice, she briefly worked on a case in which applied for the search warrants for the police to try to locate a fugitive suspect. When the police apprehended the fugitive a few weeks later, another prosecutor filed the charges and proceeded with the case. Eventually, the attorney who had left to start her own practice received a referral client who turned out to be the same defendant. When she filed an appearance to represent the defendant, however, the prosecutor filed a motion to have her disqualified, because she had worked on the same case by applying for the warrants. The attorney responded that the defendant was not even in custody yet when she applied for the warrants, that the warrant application was a purely administrative chore, and that the filing of the charges did not occur until after she left her position there. How is the court likely to rule?

The court will disqualify the attorney from serving as defense counsel because she had participated in the matter personally and in a substantial way as a prosecutor.

An attorney is a partner in a newer law firm that has no effective measures in place to ensure that lawyers in the firm conform to the Rules of Professional Conduct. An associate at the firm violates the rules, and the state bar investigates the policies and procedures in place at the firm. The state disciplinary authority has determined that the attorney is subject to discipline for his failure to take reasonable measures to ensure conformity with the rules. Because of this determination and the subsequent sanction, which of the following is true?

The determination of an ethical violation does not automatically mean that the attorney would be civilly or criminally liable it does not necessarily constitute legal malpractice. Of course, such a finding would be relevant evidence in a malpractice lawsuit, and a court could give it substantial weight.

A certain client hired an attorney to represent her at trial. After voir dire, the attorney wanted to learn as much as possible about each of the jurors, such as their views on political and social issues that might be relevant to issues in the case, so the attorney found each juror's social media accounts and reviewed their postings and comments. Some of the social media platforms notify the account holder whenever someone views their profile, so jurors with these social media accounts received notifications that the attorney had visited their profile page and reviewed items there. Which of the following is true, given this scenario?

The fact that a juror or a potential juror may become aware that the lawyer is reviewing his Internet presence when a social media network setting notifies the juror of such review does not constitute a communication from the lawyer in violation of Rule 3.5(b).

A lawyer who has previously done only residential real estate closings agreed to represent a new client in a complex estate planning matter for a client who owns numerous residential and commercial properties. The estate assets also include numerous securities (stocks, bonds, and commodity shares), and an art collection. The elderly client has had children with each of his three wives over the years. Concerned about being responsible for a case with such high stakes and conceptual difficulty, the lawyer includes in the representation agreement a provision that limits his liability for any tax consequences or contested inheritance issues, which are unfamiliar to him. At the same time, he does not try to limit his liability for the portions of the representation that pertain to the real estate, as he knows that area well - the limitations on liability apply only to specific areas. The lawyer informed the client in writing of the advisability of "seeking a second opinion" before signing the representation agreement, but the client consulted with no other lawyers and signed the document, along with giving oral consent to the provisions limiting liability on certain points. The client added a codicil to the will explaining that under no circumstances should the executor of the estate (the client's eldest son) or any heirs sue the lawyer for malpractice. The lawyer competently handled the disposition of all the real property within the client's estate except for one small parcel of commercial property, for which he made a mistake with recording the transfer. He also surprised himself by dealing with the tax issues (estate and capital gains tax) properly, after a few weeks of research and consultations with other attorneys. Unfortunately, the lawyer made some serious errors with the federal reporting and notification requirements that applied to some of the client's securities, which later resulted in penalties assessed on the estate. In addition, the lawyer arranged for temporary storage of the art collection in a storage rental facility, without climate controls, and the most valuable paintings sustained damage. What adverse consequences could the lawyer face for his mistakes?

The lawyer could face both disciplinary action (for taking a matter for which he lacked competence and for neglect) and could be liable in tort under a bailment theory for the damaged artwork, and could face personal sanctions from the government for his erroneous reporting about the securities.

Unable to find a convincing defense for his criminal client, the defense lawyer began to think about desperate measures. He felt an overwhelming duty to rescue his client from a long prison sentence, no matter what. Just before the close of evidence, the lawyer raised a defense of entrapment. The defendant had not been the target of a sting operation, and there was no evidence that the police had offered any inducement to commit the crime, which was an aggravated assault on a family member. The prosecutors immediately objected that the defense counsel should have raised this earlier, and the judge quickly dismissed the claim as unfounded and told the lawyer to move on, He next tried stalling, and he told the judge he could prove someone else committed the crime if there could be more time. This was a complete fabrication, and the judge asked several searching questions, but the lawyer was insistent. The judge denied the request for more time. Then the lawyer claimed that he also wanted to challenge the constitutionality of the assault statute itself, claiming the Second Amendment's right to bear arms implied a right to assault people with a weapon under a wide range of circumstances. The judge laughed and agreed to give him two weeks to brief the issue in order to preserve it for appeal. The next day, the lawyer held a press conference, in which he claimed the judge was biased and that it was clear that someone else had committed the crime and had framed his client.

The lawyer could face discipline for the press conference, for raising the entrapment defense, for the request to have additional time, and for raising the constitutional claim.

An Assistant District Attorney, who has recently joined a county prosecutor's office, represented a defendant at a preliminary hearing in a pending criminal case while in private practice. Now that this attorney has joined the prosecutor's office, how can the office proceed with the prosecution of the same defendant?

The office must either hire a special prosecutor for the case, borrow a prosecutor from a neighboring jurisdiction, or implement effective screening measures to exclude the new attorney from the prosecution.

A prospective client met with an attorney at Boutique Firm for an initial consultation about a personal injury lawsuit over injuries the prospective client had sustained. The attorney declined the representation because he thought the client's case was unwinnable and would therefore generate no fees. During the consultation, the attorney asked some probing questions about the incident, and the client admitted facts indicating an unreasonable assumption of foreseeable risks beforehand, as well as the client's own intoxication at the time, which in the case would constitute contributory negligence. Furthermore, the client had failed to take obvious measures afterward to mitigate the damages. The attorney was certain that all these unfavorable facts would come out during discovery, and the client's claim would become laughable at trial. Two months later, another client came in for a consultation with another lawyer at Boutique Firm. This prospective client had was service of process in a new personal injury lawsuit, and he was the named defendant. The plaintiff in the lawsuit was the same individual who had met with the first attorney for a consultation a few weeks before. Boutique firm agreed to take the case and represent the defendant in the litigation. Which of the following is true, according to the MRPC?

The other lawyer at Boutique Firm can represent the defendant in the matter if the first attorney has not disclosed any confidential information to others in the firm, and the firm carefully screens the attorney completely from the matter and provides written notice to the other party.

Rule 3.8: Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) 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, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information; (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule. (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor's jurisdiction, (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit. (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

A prosecutor obtained an indictment from a grand jury against a defendant on a multiple-count assault and robbery of a woman, that is, a violent mugging in which the perpetrator stole the woman's purse. The victim did not know her assailant, but afterward she identified the defendant in a photo array and then picked him out of a line-up. A bystander made the same identification from a photo array and a subsequent lineup. At the same time, the police informed the prosecutor that two other eyewitnesses viewed the same line-up, but those witnesses stated that they did not see the perpetrator. Moreover, a confidential informant attributed the assault to someone else. Concerned, the prosecutor interviewed the other two eyewitnesses, but he decided that they did not get a good enough look at the perpetrator to testify reliably. The prosecutor also interviewed the confidential informant, but he learned that the informant had previous convictions for fraud, and therefore was not credible. Does Rule 3.8(d) require the prosecutor to disclose to defense counsel that two bystanders failed to identify the defendant and that an informant implicated someone other than the defendant?

The prosecutor would have to disclose that two eyewitnesses failed to identify the defendant as the assailant and that an informant attributed the assault to someone else, because the prosecutor knew that information from communications with the police.

Attorney Stevenson did not know anything about the construction industry, but he thought he knew how to draft contracts. Giant Equipment Corporation manufactures cranes, bulldozers, and large backhoes used for building construction. These machines are pricey. Twenty-seven months ago, the manufacturer hired Attorney Stevenson to help with drafting Purchase and Sale Contracts for the manufacturer to use for all these items of heavy equipment. Attorney Stevenson advised the company on what provisions to include and some of the exact wording they should use in the Purchase and Sale Agreements. Then the representation ended, and the company has not contacted an attorney since. Last week, Ashby Building Construction retained Attorney Stevenson to handle a dispute with a manufacturer of one of its construction cranes. It soon becomes apparent learns that the piece of equipment came from Giant Equipment Corporation, and that the procurement officer for Ashby consummated the purchase by signing one of the contacts on which Attorney Stevenson had advised Giant. Now Ashby wants to rescind the contract and return the machine for a full or partial refund, because it used the crane for a week before it broke down. Would Attorney Stevenson be subject to disqualification in a such a latter, if litigation ensued?

Yes, Attorney Stevenson cannot seek to rescind on behalf of a new client a contract drafted on behalf of the former client. [1] After termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest and thus may not represent another client except in conformity with this Rule. Under this Rule, for example, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also 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. Nor could a lawyer who has represented multiple clients in a matter represent one of the clients against the others in the same or a substantially related matter after a dispute arose among the clients in that matter, unless all affected clients give informed consent. See Comment [9]. Current and former government lawyers must comply with this Rule to the extent required by Rule 1.11.

Conglomerate Corporation decided to hire Big Firm to represent it in litigation for an important but complex matter. First, however, Conglomerate offered a proposed a budget for the entire litigation. A partner at Big Firm explained to Conglomerate's in-house counsel that such a limited budget would be feasible only if the firm restricted how much discovery it conducted before trial. The partner also warned that restricting their time and money expenditures during discover could negatively impact their chances of prevailing at trial. Nevertheless, Conglomerate's directors decide that the corporation would be better off having the talents and reputation of Big Firm's attorneys at a limited expense, even though they knew they could have spent more for more thorough and expensive representation. According to the Restatement, may Conglomerate waive its right to more thorough representation?

Yes, a client and lawyer may agree to limit a duty that a lawyer would otherwise owe to the client if the client has enough information and consents, and the terms of the limitation are reasonable in the circumstances.

A client hired an attorney to represent her in a litigation matter. At the end of the first day of trial, the client is unhappy with her lawyer's performance in the courtroom and informs the attorney that she is firing him and will find another lawyer. The attorney wants to continue representing this client until the end of the trial. May the client discharge the 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.

Big Bank hired Big Firm to represent it in a matter against Developer. Big Firm's partners explained to Big Bank before commencing the representation that they had hired an associate who previously worked for the firm that was representing Developer, and that he had worked on various matters for Developer while there. None of the associate's work was on the same case that was now pending, but it was unclear whether some of the matters had overlapping factual or legal issues with the present matter. Big Firm gives consent to the representation despite the conflict of interest, but it conditioned its consent on Big Firm implementing strict measures to screen the associate from any participation in the matter - including relocating the associate to another office at the firm, where he would not have day to day contact with lawyers representing Big Bank. The partners agreed, but it took a few months for them to free up office space to move the associate out of his current office, which was the office between the two lawyers serving as lead counsel in Big Bank's matter. Otherwise, the firm followed the standard screening procedures delineated in Model Rule 1.10. If a disciplinary action or legal malpractice action arose later regarding the representation of Big Bank, would the associate's conflict of interest be imputable to the other lawyers at Big Firm?

Yes, a client's informed consent to a conflict can be qualified or conditional, as here, and Big Firm violated the client's condition, so it did not have valid consent to the conflict.

Client hired an attorney to represent her federal court litigation, defending against antitrust enforcement actions by the Federal Trade Commission and the Department of Justice. The 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. The strategy also includes maximizing the number of depositions and repeated requests for extensions of time and postponements of proceedings. On a few occasions, the 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 the 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 the 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.

An attorney represented Conglomerate Corporation in the company's regulatory compliance work. The Environmental Protection Agency (EPA) proposed new pollution emission regulations through notice-and-comment rulemaking procedures as proscribed under the Administrative Procedure Act. The proposed new regulations would impose burdensome financial costs on Conglomerate Corporation. During the public comment period, the attorney submitted comments arguing that the proposed rules made only marginal improvements to public health but imposed devastating costs on the regulated industry, which would violate the "feasibility" requirement in the relevant governing statute. The attorney relied entirely on published scientific studies to argue that the health benefits were minimal, but knowingly exaggerated how much it would cost his client to comply with the proposed standards. Any member of the public could submit comments during the comment period; there were no public hearings and none of the submissions to the agency were under oath. Could the attorney be subject to discipline for his conduct regarding the submission of comments to the agency?

Yes, a lawyer cannot submit false statements or comments to a regulatory agency functioning in its rulemaking capacity.

An attorney represented a client in a criminal matter. The client had a history of mental illness, and the court ordered a psychological examination to determine if the 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 the client spoke privately to the attorney and explained that the client was indeed competent to stand trial, but that in his opinion, the client also suffered from delusional narcissism, paranoia, and oppositional-defiant syndrome. The psychologist pleaded with the attorney not to tell the 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. Then the attorney told the 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 the attorney to conceal the psychologist's diagnosis from the client?

Yes, a lawyer may delay 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. Rule 1.4 Cmt 7 [7] In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.

An attorney undertook the representation of a client, but the representation was in the client's capacity as trustee of an express trust for the benefit of a beneficiary. The client informed the attorney that he wanted to invest trust funds in a way that would be unlawful, but it would not constitute a crime or fraud under applicable law. The client did not use the attorney's services in finalizing the investment. At the same time, the attorney said nothing to discourage the client from making the unlawful (though not criminal) investment. The beneficiary sustained financial losses due to the bad investment by the client, and eventually sued the attorney for a breach of fiduciary duty. The attorney believes he should not be subject to liability to the beneficiary, whom he does not represent. Is the attorney correct?

Yes, a lawyer owes a duty to the nonclient beneficiary to intervene only where the breach is a crime or fraud or the lawyer has assisted or is assisting the breach.

A very winsome, likable attorney was objectively incompetent in providing representation to his client, but he was lucky - the other side had a terrible case on the merits, and opposing counsel was unlikable and abrasive, so the attorney prevailed in his client's case. Could the attorney nevertheless be subject to discipline for lack of competence?

Yes, a lawyer shall provide competent representation to a client, regardless of the outcome.

An 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 the attorney has conducted some investigation of the case, and has obtained confidential information from each client, does the attorney discover that the plaintiff client is actually suing another of the attorney's clients, under a theory of vicarious liability. The two clients are actually adverse parties in the same litigation, Must the 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.

An attorney represented a client in pending litigation that had just begun. A magistrate judge held a preliminary hearing in the matter to settle whether the matter should remain under seal for the time being; a regular trial judge would later conduct the jury trial on the merits. The attorney's testimony was necessary to establish a matter at the preliminary hearing, so another lawyer from his firm represented the client at the hearing and conducted the direct examination of the attorney as a witness. After the attorney has served as a witness at a preliminary matter, could he then represent the client at the trial, the following year?

Yes, a lawyer who testifies before a judicial officer concerning only a preliminary motion may still serve serving as advocate at a subsequent trial before a jury.

A litigation attorney represented Big Bank in a lawsuit involving many complex issues and numerous expert witnesses. At a preliminary hearing, opposing counsel requested a three-month postponement of the previously scheduled trial date, to allow more time for deposing expert witnesses and the top managers from Big Bank. The attorney for Big Bank acquiesced, relieved that the extension of time would allow him to focus on other urgent client matters. The next day, the attorney notified Big Bank that the judge had postponed the trial. Big Bank's directors were frustrated, as they had hoped to resolve the case sooner, and would have objected to the postponement if the attorney had checked in before agreeing to it. On the other hand, Big Bank suffered no financial or reputational harm from the postponement, and the directors had not instructed the attorney to refuse requests for more time. Was it proper for the attorney to agree to the postponement of the trial?

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

An attorney has spent his entire career practicing family law, and he has never done a criminal trial before. When asked to take a criminal case, he agreed to do only the preliminary pre-trial work, such as the arraignment or bond hearing, initial rounds of plea negotiations, and some basic factual investigation. The client was facing charges for various white-collar crimes, brought under federal statutes, and would involve complex jurisdictional and procedural issues at trial. The attorney knew that he would not be competent to represent the client at such a trial, so he contractually agreed to limit his representation to the few preliminary tasks described above, to allow the client time to find another lawyer with more experience and expertise in this area. Once the representation began, the attorney confined himself to the parts of the matter that he had agreed to handle. Is it permissible for the attorney to be incompetent in certain matters but still provide representation to a client in a more limited capacity?

Yes, agreements between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible.

A defendant faced criminal charges for running a Ponzi scheme and an elaborate conspiracy to help others commit tax fraud. The government seized all his accounts and assets, so he had no funds to hire defense counsel. The court, therefore, appointed a local attorney to represent the defendant in the case. The attorney had spent his entire career up to that point exclusively handling traffic-court charges and driving-while-intoxicated cases. Realizing that the complex case was far outside his range of experience or ability, the attorney tried to decline the appointment, but the court required a "showing of incompetence." The attorney followed through with the showing and the court granted the request to withdraw. Were the attorney's actions proper?

Yes, an attorney can seek withdrawal for good cause, such as lack of competence to handle certain specialized legal matters.

An attorney served for several years as a professional mediator. She decided to change careers and become a litigator, and one of the parties from her final mediation sought to retain her as their attorney in a matter closely related to the subject of the litigation. The other party, which already had legal representation, provided written, informed consent to this arrangement. Under such circumstances, would it be permissible for the former mediator to represent a party in the same matter in which the attorney served as mediator?

Yes, as it appears all parties to the proceeding gave informed consent, confirmed in writing.

An attorney was a judge but has left that job and joined Big Firm. Another lawyer at Big Firm represents the client in a case on the docket at the same court where the attorney worked as a judge. In fact, as a judge, the attorney ruled on some of the pretrial motions in the case, mostly evidentiary motions. The firm has screening measures in place to screen the attorney from any participation in the matter. The 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 the client. Is it proper for the other lawyer at Big Firm to continue representing the 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 with screening measures.

An 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. The 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 the attorney inherited it, so the property is unencumbered by any mortgage or liens. The 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 the attorney is not involved in the representation, there will be no imputation of the attorney's conflict of interest to the other lawyers in the firm, because it is the 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.

An attorney represented Small Business Associates while working at Big Firm, her first law firm after law school. When the attorney did not make partner at the firm, she ended her employment there and started her own new firm. The 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 the attorney formerly represented the client; and no lawyer remaining in the firm has confidential information about Small Business Associates from when the attorney represented them at that firm.

An attorney prepared a contract for a client in 2013. The matter concluded, and the representation regarding that matter has ended, though the attorney continues to represent the same client on some unrelated matters. In 2017, while using that agreement as a template to prepare an agreement for a different client, the attorney discovers a material error in the agreement. On those facts, do the Model Rules require the lawyer to inform the client of the error?

Yes, because Rule 1.4 requires that lawyers disclose material errors made during the representation to current clients, and the attorney's ongoing representation on other matters means a client-lawyer relationship still exists.

An attorney prepared a contract for a client in 2016. The matter is nearing conclusion, so the representation regarding that matter has not ended. In 2018, while using that agreement as a template to prepare an agreement for a different client, the attorney discovers a material error in the agreement. The error does not, however, furnish a colorable claim for malpractice, because the client has not yet suffered any injury, and it is not clear that the attorney's error falls far enough below the industry standards to meet the legal standards for negligence. On those facts, do the Model Rules require the lawyer to inform the client of the error?

Yes, because Rule 1.4 requires that lawyers disclose material errors made during the representation to current clients, even though the error does not furnish the basis for a valid malpractice claim

An attorney prepared a contract for a client in 2016. The matter is nearing competition, so the representation regarding that matter has not ended. In 2018, while using that agreement as a template to prepare an agreement for a different client, the attorney discovers a material error in the agreement. The error does not, however, furnish a colorable claim for malpractice, because the client did not suffer any injury, and the client in the meantime canceled the agreement with the other party due to other factors. Even so, any reasonable client who learned of this mistake would lose confidence in their lawyer's competence or diligence. On those facts, do the Model Rules require the lawyer to inform the client of the error?

Yes, because Rule 1.4 requires that lawyers disclose material errors made during the representation to current clients, whenever the error would predictably cause a client to consider terminating the representation even in the absence of harm or prejudice

A client, age eighteen, 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 fourteen. 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 the attorney is certain that the trial court will convict the 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. The attorney agrees, therefore, to take the 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 the attorney to make a defense in 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.

An 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 the attorney must work long hours on trial preparation from now until then. The 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 the attorney has been focusing exclusively on the class action suit and has been temporarily ignoring the other cases. The 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 the attorney has not been in touch with them for the last two or three months. Could the attorney be subject to discipline for procrastinating about these other cases?

Yes, because a client's interests can be adversely affected by the passage of time, and unreasonable delay can cause a client needless anxiety.

An 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 the attorney ran for re-election, she lost, and needed to return to private practice. The client wants the 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 the 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 the client, so she wants to appeal the case again. Would it be proper for the 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.

An attorney worked for several years for a federal government agency in regulatory enforcement. The 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. The 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 the attorney privately and asked if the attorney would be interested in leaving the agency for a position at Big Firm. The 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 the attorney, at the end of which they offered to double his salary if he left the agency and accepted a position at Big Firm. The 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 the 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.

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.

A client hired a lawyer to represent her in bringing a lawsuit against a manufacturer over a defective product that was very expensive. The attorney regularly represents plaintiffs in product liability cases. The client believes that the manufacturer has knowingly sold defective products to other customers as well, and wants the attorney to include a claim for "civil RICO" (accusing the manufacturer of racketeering) as part of the lawsuit. In addition, the client discussed reporting the manufacturer to various government 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. The 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. The attorney declines to notify government agencies about the manufacturer, and suggests that the client do that on her own, writing complaint letters to whatever agencies she has in mind. The attorney proceeds with the tort litigation and prevails, winning a favorable verdict for the plaintiff. Was it proper for the 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 an attorney has been representing a client in a transactional matter for six months, the client asks the attorney to draft and deliver some documents that the attorney knows are fraudulent. The attorney tries to dissuade the client, but the client insists. The attorney believes the recipient of the documents will probably realize they are fraudulent before irreparable harm happens to the recipient. The client is willing to sign a private document for the attorney in which the client takes full responsibility for the fraud and states that the attorney was merely following orders and is not blameworthy in the matter. Would it be improper for the attorney to acquiesce, and draft and deliver the documents according to the 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 forbidden 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 his attorney about the legal ramifications of his business. Without explicitly endorsing or encouraging the client in his criminal enterprise, the attorney conducts research at the client's request about various drug laws and sentencing guidelines. The 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, the 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. The 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. The 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 the attorney to provide such legal advice to the 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.

An attorney provides itemized billing to her clients: hours worked by partners and associates, expert fees, international phone call charges, court costs, stenographers used in depositions, and so forth. She also includes some itemized prorated charges for overhead costs. Her mobile phone, which she uses exclusively for work, has a plan with a fixed monthly charge and unlimited minutes and data, so she divides her monthly phone bill into hourly increments for each day of the month, and for each hour of time she works on a client's matter, she bills the client for an hourly increment of her phone bill, even if she did not use the phone during that hour. She reasons that she was paying to have a phone available during that time in case clients needed to reach her, so the clients can share the costs. She takes a similar approach with other fixed overhead costs, like the salaries of her support staff - each client bill has a ten-dollar charge for "general staffing costs." A nominal charge on each bill is for the administrative costs of billing clients. Could the attorney be subject to discipline for charging clients a share of her overhead costs and operating expenses?

Yes, because a lawyer may not charge a client for overhead expenses normally associated with properly maintaining, staffing, and equipping an office.

An attorney was representing a 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 the attorney's turn to speak, he assured the judge that the client had a medical condition that would prevent him from leaving the area, and that the client did not intend to flee the jurisdiction, but was confident that he could stand trial and clear his name of all charges. The attorney knew, however, that the client already had plane tickets to Venezuela, a non-extradition country, and that the client had already fully recovered from his serious medical condition. Is the 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 an attorney and spoke very abusively to him in open court, in front of a jury, using profanity and calling the attorney "an embarrassment to the profession and a menace to his own clients." Defensively, the attorney shot back that the judge was completely out of line, that the judge should have retired years ago; the attorney also made a mildly obscene gesture at the judge. Eventually, both calmed down and apologized to each other profusely. Opposing counsel reported the attorney to the state bar disciplinary authority, but did not report the judge, before whom opposing counsel appears regularly. Could the 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. [4] The advocate's function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants. 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. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.

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." A certain attorney represents Conglomerate Corporation. Thousands of documents stored in electronic format on Conglomerate's computers and servers would potentially fall under this request for production. Then the 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*, the 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 the 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.

A client hired a certain attorney to represent her in a personal injury lawsuit in which the 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, the attorney drafted the initial pleadings, served the opposing party, and filed the pleadings in the appropriate court. Nevertheless, the attorney did not allow the client to review the pleadings before filing them, and afterward, the 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 the attorney is working for her. Was it proper for the 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 whatever actions the client has impliedly authorized as part of the representation.

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 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.

A client, who happened to be a judge, hired an attorney to represent her in her divorce proceeding against her husband, who is guilty of marital infidelity. Their fee agreement stipulates that the attorney would bill the client every month for the work performed in the previous thirty days. After two months of representation, the attorney has sent the client two bills, and has received no payments, Is it proper for the 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.

A client explains to his 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 the client has become a multimillionaire by founding and operating the site. The client is concerned about potential criminal charges or civil lawsuits over the website. His attorney explains to the client how he could use a series of dummy limited liability corporations, mail forwarding addresses, and offshore bank accounts to avoid detection. Each of the steps of the process the attorney describes is technically legal - creating the corporate entities, purchasing mail-forwarding services, and opening bank accounts in Belize. The attorney decides not to charge the client for this advice session but bills the client for other transactional work performed. Is the attorney subject to discipline?

Yes, because a lawyer must avoid assisting a client in fraudulent or criminal activity, which includes suggesting how to conceal the wrongdoing. Rule 1.2 Cmt 9 [9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

An attorney works as a public defender. The office is always underfunded, meaning they cannot afford to hire enough staff attorneys, and the current attorneys all carry an overload of cases. The 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. The 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. The 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 the 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.

While conducting research on a litigation matter, an 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 the 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 the 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.

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

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

An attorney is a litigator and represents a client in a civil lawsuit in which the client is the defendant. The attorney explains the general strategy and prospects of success, and consults the client on tactics that are likely to result in significant expense, such as the hiring of experts or jury consultants. At the same time, the attorney believes their best shot at winning the case will be to elicit an admission from the plaintiff during cross-examination when the plaintiff testifies at trial. More specifically, the 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. The 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 the attorney hopes, they might prevail in the case by several other ways. Is it proper for the attorney to leave the 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.

An attorney testified before a state legislative committee about the need for the state to privatize its dysfunctional prison system. The attorney said he was there to testify as a concerned citizen of the state and a taxpayer, and the attorney did in fact believe that prison privatization was smart public policy. Yet the attorney did not disclose that he was representing Alcatraz Incorporated, the largest private prison company in the country, which hoped to secure the lucrative contracts to operate the state's prisons after the legislature votes to privatize them. Was it improper for the attorney to neglect to disclose his representation of the private prison company?

Yes, because a lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity.

A certain attorney represents a defendant in a murder case. At trial, the jury convicted the client and sentenced him to death, and the appellate courts upheld the conviction as well as the sentence. The attorney has now offered to file a habeas corpus petition in federal court to appeal the case to the United States Supreme Court, if necessary. The defendant, however, has developed terminal cancer, and does not expect to live another six months. The defendant tells the attorney to drop the appeals because even if they won, the defendant would not live long enough to enjoy his freedom. Even so, the defendant does not terminate the representation, because he wants the 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. The attorney strongly opposes 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, the defendant succumbs to his illness and dies in prison. Is the 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 how to pursue these ends.

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. The client retained the only copies of the photographs, as he merely showed them to the former employer a year ago 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.

A client is aware that he is under investigation for student loan fraud. A friend who works at the courthouse tips off the client that a magistrate issued a warrant to search the client's home for evidence the next day in the early morning. In a panic, the client calls his attorney, whom he has retained to represent him during the investigation and any prosecution that follows, and asks what he should do. The attorney informs him that the agents executing the warrant will surely seize any computers and hard drives that they find, and that the 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 the 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.

Police arrested several protestors who were advocating a cause that an attorney strongly supported. One of the protestors had a violent altercation with police, and she was facing criminal charges. This 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. The 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. For a long time, the 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 the 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 the attorney spoke ended up on the jury in the case. The prosecutor eventually determined the attorney's identity and filed a grievance with the state disciplinary authority. Could the attorney be subject to discipline?

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

During a personal injury trial, the court took a lunchtime recess for an hour. The plaintiff's lawyer from the case walked across the street from the courthouse to a familiar diner to buy lunch. The diner was very crowded, so it was difficult for patrons to find a table to sit and eat. After ordering his sandwich at the counter, the attorney noticed two jurors from his own trial standing with their food, waiting for a free table. One of the jurors asked the attorney if they could share a table with him when one became available. The attorney agreed, but reminded them that they could not talk about the case. The three sat together and ate their sandwiches. The two jurors talked most of the time, getting to know each other - discussing their children, their jobs, and their pets. The attorney did not participate in the conversation except to answer their questions about how many children he had, and whether he owned any pets. Another juror from the trial was at the diner, and noticed the attorney sitting with the other two jurors, which he reported to the judge when court reconvened. Could the attorney be subject to discipline for sharing a table with the jurors during a lunch break?

Yes, because a lawyer should not have any ex parte social contact with jurors during a proceeding, even if they do not discuss the case.

An attorney defended a 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 the attorney at his office and asked for a quote about the client's case. Then the attorney stated that the 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 the 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.

An attorney represented a client in litigation over a breach of contract. After jury selection but before the opening arguments of trial the following Wednesday the opposing party contacted the attorney with a settlement offer. The 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. Therefore, the attorney declined the offer immediately, knowing from experience that a better offer was forthcoming. When the attorney met his 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. The client was surprised that his attorney had not consulted with him about the offer, but he accepted the 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 the attorney with a new settlement offer, and just as the attorney expected, it was much more generous. The attorney and his client agreed to settle the case right then, and avoided the inconvenience of going through the whole trial. Is the 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.

An experienced attorney represented a new client in civil litigation. The client lied extensively on the witness stand during the trial, but the attorney was not aware of the untruthfulness of the statements at the time. The verdict was favorable to the client and there was no appeal. A year later, the client boasted to the attorney about lying convincingly to the court and winning the lawsuit as a result. Is it permissible for the attorney to keep this information confidential, and not disclose to the tribunal that the perjury occurred?

Yes, because a lawyer's duty to take remedial measures after perjury occurs continue only to the conclusion of the proceeding. [13] A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.

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. The 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. The 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. The client is certain that his First Amendment rights trump such subjective-harm tort claims and has a recent Supreme Court case supporting his position. The client asks an attorney to represent him in the matter. The attorney reluctantly agrees to take the case and the trial court gives an unfavorable verdict against the client. After the case, reporters interview the attorney asking how he could represent such a client and the 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 the 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. Rule 1.2(b)

An attorney agreed over the phone to represent client, and began working on the case immediately. The client came into the office two weeks later to sign the representation agreement. At the same time, the attorney gave the client a written statement of the hours worked so far and requested immediate payment for that portion of the fee, plus a $10,000 retainer up front against which the lawyer would draw fees as the representation proceeded. The fee arrangement was complicated. In addition to the hourly fee for the time he had already worked, the agreement called for an hourly rate of $150 per hour for any work done before trial. If the case were to go to trial, the hourly fee would be $250 per hour for the entire trial phase and any appeals. The agreement also stipulated that it incorporated by reference any oral agreements regarding additional fees and expenses. The client signed the agreement. Then the lawyer explained orally that in addition to the hourly fees and the non-refundable retainer, he would take a 25 percent contingent fee of any money that the other side had to pay the client as a result of the representation, whether in damages, as there were claims and cross-claims in the case, or in court-ordered attorneys' fees. The client agreed, and they shook hands to confirm their oral agreement. Finally, the agreement authorized the lawyer to have full discretion to accept or reject any settlement offers without prior approval from the client, although no such offers occurred. The case proceeded through the discovery phase and went to trial. On the last day of the trial, before closing arguments, it appeared that the client might win a large verdict. The client became resentful about the prospect of sharing this with the lawyer, and fired the lawyer during a recess before closing arguments. The client returned to the courtroom alone, waived his right to closing argument, and still won a significant verdict. The client now refuses to pay the lawyer the contingent fee or even the hourly fees for the last day of trial, because the client claims the attorney performed incompetently that day. The attorney has threatened to sue the client to obtain the fees. Could the attorney be subject to discipline?

Yes, because all contingent fee agreements must be in writing, not merely oral agreements incorporated by reference.

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

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

An attorney has represented his 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 - the attorney would send the client a bill, and the client would pay it. Recently, the client contacted the attorney by phone about representing him as a plaintiff in a personal injury lawsuit. The attorney agreed, and then explained that he would charge a contingent fee in the case, so that the client did not have to worry about how much time his attorney had to put into the case, as the client would still receive the same share of whatever amount they won. Given their long history of working together, the 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 percent contingent fee for the 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, the attorney sends the client a written statement about keeping 25 percent of the award for his fee. The client is very happy with the outcome of the case and they have no dispute over this fee. Would the 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.

An attorney represented a client in an action for replevin. After the filing of the case, but before the court had sent any notices about the docket number, the 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. The 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 bias against parties like the 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 the 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.

A certain attorney represents a client in a litigation matter. The 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 the attorney if he had any objections. The attorney tried to call the client, but the client did not answer his phone right then. Unfortunately, the attorney could not think of a compelling reason for the client to oppose the motion, so he agreed, and the judge set the matter for a sealed-record trial. Three hours later, the client returned the attorney's call, and the attorney explained what had transpired. The client felt dismayed because he had planned to use this litigation as a test case for subsequent litigation over the same type of issue, but the attorney explained that it would now be difficult to get the judge to reverse course on this point. Was it proper for the attorney to agree to the request without obtaining the client's prior consent?

Yes, because during a trial, when an immediate decision becomes necessary, the exigency of the situation may require the lawyer to act without prior consultation, assuming the lawyer promptly informs the client of actions the lawyer has taken on the client's behalf. Rule 1.4 Cmt 3 [3] Paragraph (a)(2) requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client's objectives. In some situations — depending on both the importance of the action under consideration and the feasibility of consulting with the client — this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client's behalf. Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation.

An 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-40s. 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 the attorney have any ethical obligations toward her clients, at least related to her possible condition?

Yes, because each sole practitioner must 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.

A certain client hired an attorney to represent him in litigation because of the attorney's reputation for being the meanest, most aggressive litigator in town. The client is the defendant and the 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. Then the attorney begins the mediation by declaring that his client is unwilling to compromise at all, even though the client had told him that they might settle the case for a reasonable amount. The attorney overstates the strength of the client's case and grossly understates the strength of the opposing party's position in what everyone knows is a close case. The attorney is merely posturing or bluffing in hopes of obtaining a more favorable settlement for his client. Due to the attorney's hardline approach, the mediation drags on for several sessions spanning several days, and proves to be futile, so the parties schedule a trial. Is the 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.

A local abortion clinic hires the McCorvey Law Firm to represent it in an enforcement action brought by a state health agency. The action pertains to alleged health code violations at the clinic. The firm's principle partner, Norma McCorvey, has strong, outspoken political beliefs against abortion, and cannot set aside her personal convictions to provide representation to the clinic in the matter. An associate at the firm, however, supports the clinic's mission, and offers to represent the clinic instead of Attorney McCorvey. If McCorvey agrees to let the associate represent the clinic, would it be proper for the associate to do so, despite the partner's strong convictions that the clinic should be shut down?

Yes, because even though Attorney McCorvey could not effectively represent the client due to her political beliefs, this would not materially limit the representation by the associate at the firm. Rule 1.10 Cmt.3

An attorney has represented a client on various small matters in the past. The client now needs representation for a more substantial matter involving a business transaction. During a phone call, the attorney agrees to represent the client at a slightly higher hourly rate, given the complexity of the matter, and when they meet to discuss the transaction in more detail, the attorney double-checks with the client about the fee arrangement verbally, explaining it carefully and answering any questions the client may have. The attorney and the client never formalize the fee arrangement in writing, but the attorney does send printed bills to the client periodically. Eventually, the client starts to feel that the representation is costing too much, and objects to one of the bills. Was it permissible for the 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.

A client asks an 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. The attorney never took a tax course in law school and has no practice experience in the area. The attorney needs more clients, so he agrees to take the case and to conduct the necessary study to provide adequate representation. The client agrees to those terms, and the 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 the client, so the client receives a satisfactory resolution to the matter. Would the 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.

A client hired an 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 unique 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 the 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 the client primarily wants a memorandum of law answering his hypothetical legal question, he asks the attorney to limit his research and writing to two hours of billable time. The attorney agrees, spends an hour reading and an hour writing, and gives the client a short memorandum. Given that the client's objective was merely to secure general information about the law the client needs, was it improper for the 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 certain point of law, two hours was not a reasonable amount of time to yield advice upon which the client could rely. Rule 1.2 Cmt. 7 [7] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a 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, the lawyer and client may agree that the lawyer's services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.

An attorney agreed to represent a client before the Tax Court, to challenge the amount the Internal Revenue Service said he owed in unpaid taxes. The attorney filed an appearance in the matter and the initial pleadings and forms. Nevertheless, when the client did not pay even the first installment of fees, and did not return the attorney's phone call, the attorney assumed the client did not want his representation. The attorney moved on to other cases and forgot about it. He "failed to appear for a discovery conference, failed to give opposing counsel key documents, failed to show up for trial, and went missing again when the hearing was rescheduled." When the Tax Court asked the attorney to show cause why he should not face discipline, he explained that he no longer represented the client, and had never received any legal fees from the individual. Is it proper for the Tax Court to reprimand him?

Yes, because he has violated the requirement of diligent representation under Rule 1.3, and courts have inherent authority to discipline attorneys who appear before the court in a matter.

A prosecutor sees the backlog of prosecutions coming from his office and feels concern about whether all the cases will come to trial in time to comply with the Speedy Trial Act. To expedite some of the simpler cases, the prosecutor asks arrestees to waive their right to a pre-trial hearing, which saves up to a week due to scheduling complications and allows the defendants' cases to come to trial sooner. Because most of the defendants in these cases are unrepresented by counsel, the prosecutor explains that they have a right to a preliminary hearing, but that defendants without a lawyer usually accomplish little or nothing at such hearings, and that the defendant will have a full trial at which to argue his innocence. He also explains that if the defendant believes he can win an acquittal, waiving a preliminary hearing might bring about the defendant's moment of freedom a bit sooner. Most defendants without representation agree to waive their preliminary hearings, which relieves some of the pressure on the local criminal docket and makes this more manageable for everyone. Is the prosecutor behaving properly in this regard?

Yes, because he is apprising them of their rights before asking them to waive the right to a preliminary hearing.

An attorney represented a 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 the 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 the 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 the attorney be subject to discipline for this activity?

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

In anticipation of a round of settlement negotiations over a business partnership breakup, a client authorized his lawyer to disclose that the client was having personal financial troubles, but added that the lawyer should "leave it at that - don't elaborate too much." The lawyer was to attend the settlement conference without the client. At the settlement conference, when the other parties pressed the lawyer about why his client seemed so inflexible about a settlement amount for dissolving the partnership, the lawyer said that his client was having personal financial problems. Counsel for one of the other partners asked, "Like what? Perhaps the other partners could do something to help, and it would make it easier to resolve the partnership breakup." The lawyer then explained that everyone in the room must keep the following information completely confidential, and went on to explain that his client was on the verge of bankruptcy due to a gambling problem. He also explained, in a hushed tone, that the client had even assigned his equity share in the partnership to a business rival of the partnership in order to pay off a personal loan. The others were shocked, with a mixture of sympathy for their partner's gambling problem, and alarm at the implications of their main market rival owning a significant share of the existing partnership. One of the other attorneys, however, checked the terms of the original partnership agreement, and informed the rest that equity interests in the company were unassignable without a majority vote of the other partners, making the assignment legally void. Could the lawyer be subject to discipline for the disclosures he made at the settlement conference?

Yes, because he went beyond what the client had authorized him to disclose, thus breaching his duty of confidentiality to the client.

A witness testified on a client's behalf at trial. That evening, when the 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 the 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.

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

An attorney represents a client who is defendant in a criminal matter. The defendant faces felony charges. The 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. The client, however, does not want to incur the legal fees involved in jury selection (voir dire, etc.), and cannot really afford it, so the client tells his attorney that he does not want a jury trial, but rather a bench trial. The attorney is convinced that his client is innocent of the crimes charged, and that bench trial is likely to result in a wrongful conviction in this particular case, given some of the evidentiary issues. The attorney postpones notifying the court that the defendant will waive his right to a jury trial, in hopes of changing the client's mind. The court schedules jury selection, and the attorney appears 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, the client arrives in court and is shocked to see a jury seated. The 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 the client of all charges, as the attorney had expected, and to the apparent dismay of the judge, who would have ruled to convict if it were up to him. Is the 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 the right to a jury trial.

Attorney Adams 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 4 P.M. 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 Adams 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.

An attorney located a witness who could corroborate his client's story. The witness, however, was afraid of retaliation from others if she testified, and did not want to be involved. The witness also lives 1,000 miles away and works as a waitress, so she cannot afford the travel expenses and lodging, and cannot afford to miss work, because she receives no wages if she does not work. The attorney offers to pay all the witness's expenses. The attorney then pays for airfare and pays to put the witness in one of the nicest hotels in the city, and pays for all of the witness's dining bills at expensive downtown restaurants. The witness reluctantly agrees. Was it proper for the attorney to offer to pay the expenses for a favorable witness to undergo the trouble of testifying at the trial?

Yes, because it is proper to pay a witness's expenses, as long as the attorney does not offer to pay the witness an inducement to provide favorable testimony.

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

A thirty-lawyer firm in Chicago affiliated with Boutique Firm, three lawyers in a small city in New England. Each firm includes, on its masthead under the list of its own lawyers, the affiliation of the other firm (with its lawyers each named). Each firm also mentions the affiliation with the other in its Martindale-Hubbell listing. Boutique Firm has represented Conglomerate Corporation in intellectual property matters for a few years, and has on file extensive information about Conglomerate's patents, patent applications, and prior patent litigation. Recently, Copycat Company has hired the thirty-lawyer firm in Chicago to seek a declaratory judgment that it is not infringing on certain patents owned by Conglomerate Corp., or in the alternative, that these specific patents are invalid. Conglomerate Corporation hired a new litigation firm to represent it in the matter, due to its concern about its regular firm having a conflict of interest. During the pleading and discovery phase, Conglomerate filed a motion to disqualify the Chicago firm from representing Copycat Company, due to its affiliation with Boutique Firm, even though Boutique Firm is not handling Conglomerate's litigation in this matter. Should the court grant the motion to disqualify the Chicago firm?

Yes, because separate firms that publicly identify themselves as "affiliated," even if they are located several states away from each other, count as the same firm for purposes of imputed conflicts of interest under Rule 1.10.

A lawyer received a court appointment to represent an indigent criminal defendant in a complex case involving felony money laundering, counterfeiting, tax fraud, and other aspects of organized crime. The lawyer tried to refuse the appointment, explaining to the judge that she was handling too many other cases right then, and that she had never before handled a complex criminal case. The judge ignored her concerns and ordered her to take the case. The lawyer reluctantly took the case and did a minimal amount of work on it - no more than she would normally do for a simple misdemeanor matter, apparently as a type of protest. Ultimately, the prosecutor needed her client to agree to testify against another more important member of the same criminal conspiracy, and offered her client a surprisingly favorable (lenient) plea deal. The client was very pleased with the outcome of the matter and grateful to the lawyer who represented him. Could the lawyer be subject to discipline, based on these facts?

Yes, because she did not act with reasonable diligence in representing the client.

A new federal Treasury Regulation provides that attorneys who prevail in tax cases on behalf of their clients against the Revenue Service may receive attorneys' fees at the fixed rate of $100 per hour, not to exceed $100,000. A certain attorney lives in a state that allows "reasonable" fees, and he makes a written fee agreement with the 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 the 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. Rule 1.5 Cmt 3 [3] Contingent fees, like any other fees, are subject to the reasonableness standard of paragraph (a) of this Rule. In determining whether a particular contingent fee is reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer must consider the factors that are relevant under the circumstances. Applicable 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. Applicable law also may apply to situations other than a contingent fee, for example, government regulations regarding fees in certain tax matters.

An attorney uses an outside billing service to track client billing and send bills to clients each month. The attorney keeps track of his time, and submits computerized reports by e-mail 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 the attorney's behalf. The 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, the attorney had to click on an "I accept the terms and conditions" of a long user agreement that the attorney scrolled through quickly, without reading. Clients are not aware that the attorney uses an outside billing service until they receive their bills. Has the 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.

A client hired an attorney to handle a transactional matter. The client, a billionaire, wants to devote several million dollars to philanthropy. There are several alternative ways to achieve the 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. The attorney does not discuss all of these details with the client, though, because the client said at the outset that he trusted his attorney's judgment, and the attorney believed the client would find the details tiresome and confusing. The attorney set up a private foundation for the client because this seemed to provide his 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. The attorney believed the pros outweighed the cons in this case, but the 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 the client had hoped would go directly to charitable causes. Could the 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.

An attorney normally represents a client in commercial litigation matters, but in one specific case, the attorney had to testify as a witness during the trial, so he arranged for another firm to represent the client during the trial at which the attorney testified. The client prevailed at trial, and the opposing party filed an appeal. In this instance, the 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 the client after the trial ended in a favorable verdict. May the attorney represent the client in the appeal, even though the attorney testified at the trial?

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

An attorney is representing himself in his divorce proceeding. Would it be proper, under the advocate-witness rule, for the 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.

An attorney responded to a distressed call from a client asking that he meet him immediately on the street behind the attorney's office. Immediately, the attorney rushes downstairs to meet the client outside his building. The client is very distraught and has blood splattered on his clothes, hands, and face, and is holding a pistol. The client stammers, "You will not believe what just happened." Quietly, the 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. Then the 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." The client goes home to shower and launder his clothes, and the attorney returns to his office and resumes his work on the brief he was writing. Did the attorney's conduct constitute a violation of his ethical duties?

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

A certain attorney is a criminal defense lawyer, and he represents a client, who is facing charges for burglary of a private residence. The 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. Naturally, the attorney interviews the client's girlfriend, who recounts a similar story about being on a romantic getaway, but a few details do not match the 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. The attorney suspects the girlfriend is lying to protect the client, and that they rehearsed an alibi story without working through the fine details together. The attorney lectures both the 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 the attorney to call the client and his girlfriend as witnesses during trial?

Yes, because the attorney does not know with certainty that they are lying, he must allow the client to testify, and it is permissible to call the girlfriend as a witness as well. [9] Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer's ability to discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an advocate. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client's decision to testify. See also Comment [7].

An attorney agrees to represent a client in a divorce proceeding against her husband. The 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. The client agrees to pay the attorney his usual flat fee for divorce cases, $5,000, but also offers to pay him 10 percent of whatever he wins in terms of payments and distribution of assets, on top of his usual fee. After a protracted, acrimonious divorce proceeding, the attorney obtains a settlement worth approximately $2 million for the client. Is the attorney subject to discipline in this scenario?

Yes, because the 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.

An attorney agreed to represent a client as plaintiff in a patent infringement lawsuit. The attorney was part of a partnership that specialized in intellectual property law. The attorney prepared, and the client signed, a written fee agreement that specified the attorney would receive a tiered contingent fee in the case: 25 percent if the case settled before trial, 30 percent if they went to trial and won, and 35 percent if the case went up on appeal and they prevailed in the appellate stage. In addition, the agreement specified that the contingent fee would come from total award before court costs and other expenses, and that the client would be responsible for court costs 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 the attorney received his contingent fee. The 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. The attorney obtained a favorable settlement before trial. He telephoned Client with the good news, and explained that he would deduct his 25 percent contingent fee, as they had agreed, and would send Client the remainder of the settlement funds. At that time, there were no outstanding unpaid expenses or court costs. The client was glad to hear the news, and the attorney promptly sent the client a check for 75 percent of the total amount received from the other party. The attorney and the client had no other contact except to exchange holiday greeting cards. Were the attorney's actions improper?

Yes, because the 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.

An attorney represented a client in a criminal prosecution. The client agreed to a plea bargain, and the case moved on to a sentencing hearing. The prosecution's pre-sentencing report to the judge erroneously indicates that the client has no prior convictions, and the trial judge asked the client directly whether that is true. The client affirmed that he had no prior criminal record, and the judge sentenced him leniently, giving his six months' probation. Yet the attorney had represented the client previously in another jurisdiction in a criminal matter, and he knew that the pre-sentencing report was erroneous. Before adjourning, the judge asked the attorney if he had anything else to say. Could the attorney be subject to discipline if he does not correct the judge's misperception about the client's criminal record?

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

An attorney agreed to represent a plaintiff in a personal injury lawsuit, and the client agreed to pay the attorney a contingent fee based on a percentage of the award in the case. The attorney put all the terms of the fee agreement in written form in a letter to the client. The letter explained the percentage that should accrue to the attorney the event of settlement, trial, or appeal; litigation and other expenses that the attorney would deduct from the recovery; and that such deductions would come out of the total before the calculation of the contingent fee. The letter also explained all potential expenses for which the client could be liable, if the client prevailed in the case or not. The client received the letter, read it carefully, and called the attorney to give verbal assent and confirmation to all the terms. The client's spouse later discarded the letter, and the attorney proceeded with the representation. Could the attorney be subject to discipline, based on these facts?

Yes, because the client did not sign the fee agreement.

93. A certain defendant was indigent and received court-appointed defense counsel in his felony larceny case. The 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 the defendant told the attorney his expectations, the 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. The defendant refused, and told the attorney, "Do not even contact me with offers from the prosecutor for a guilty plea. I will not plead guilty. I will prove my innocence in a court of law!" The prosecutor indeed made several plea offers, and each time the attorney presented the offer to the defendant, who rejected it and reminded the attorney that he did not want to hear about any offers to "make a deal." The defendant's hard line proved effective as a negotiating strategy, and eventually the prosecutor called the attorney to say they would reduce the charges to a misdemeanor and the sentence to "time served" if the defendant would plead guilty. The attorney thought this was a ridiculously generous offer but simply rejected it without consulting his client. The client proceeded to trial and the jury convicted him, and he received the maximum sentence for the crimes charged. Was it proper for the 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.

An attorney represented a 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. The client is the plaintiff in the case, and has told the attorney on several occasions that she will not consider any settlement offer less than $100,000. The 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, the client has made an informed estimate that her chances of winning a $250,000 verdict at trial are almost exactly 50 percent, 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. The attorney met with the client the evening before Attorney would meet with opposing counsel for negotiations, and the client reiterated her reserve amount to the attorney, adding, "Do not even call me if the opposing party offers less than $100,000- I will not accept it, and want you to simply decline lowball offers.' The next day, the client leaves on a business trip, and the 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.

An attorney agreed to represent a plaintiff in a claim against the client's employer for intentional infliction of emotional distress, because of insulting remarks the supervisor makes about his subordinates' intelligence and maturity. The attorney researched past court decisions and concluded that intentional infliction of emotional distress claims usually lose in employment settings like this. Moreover, in his various discussions with the client, the story has changed a little each time. The attorney now suspects that the client either is lying or is so confused that he will not be a credible witness at trial. The attorney would like to withdraw before filing an answer to the lawsuit asserting a defense of mistake of fact, because he knows they are unlikely to win, and he is not even sure if his client is telling the truth. Nevertheless, the client insists that the attorney should file the complaint before withdrawing from the case, so that the client does not miss the statute of limitations and forfeit the potential claim, but the client does not mind if he must find another lawyer to handle the discovery and trial phase. Would it be permissible, under the Model Rules, for the attorney to file the complaint, alleging intentional infliction of emotional distress?

Yes, because the client's defense has some basis in fact and law, even if it seems improbable in both regards.

An attorney agreed to draft a will for a new client who wanted to leave his entire estate to his children, but wanted to disinherit his estranged wife entirely. The will stated that the entire estate would pass to the children. After the client died, the wife claimed her statutory share, which in that jurisdiction was 50 percent of the estate, in spite of the instructions in the will. It should have been foreseeable to the attorney at the time of drafting that the will would not be sufficient to overcome the wife's claim to her statutory share, but he did not explain this to the client or recommend measures to circumvent the problem. Could the frustrated children have a viable claim against the attorney for legal malpractice?

Yes, because the client's intention was clear on the face of the will, and the lawyer therefore could be liable to the heirs even though they are not clients.

A certain client calls an 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. This attorney offers to research the matter for a few hours and write a formal legal memorandum for the client about filing extensions. Even so, offhand, the 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 an application for extension arrives before the regular deadline. The attorney practices tax law and is familiar with the rules. The client thanks the attorney and says that he is satisfied with the "short answer," and that he does not want the attorney to do any more research or writing about it, but to send a bill for the phone call. Then the attorney agrees and bills the client for the telephone conversation and conducts no further research on the matter. Is it proper for the attorney to limit his representation to a single telephone call like this?

Yes, because the client's objective is no more than securing general information about the law the client needs to handle a common and typically uncomplicated legal problem, so the lawyer and the client may agree that the lawyer's services will be no more than a brief telephone consultation.

An attorney represented a client in a misdemeanor criminal matter involving minor vandalism. The attorney interviewed 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 the attorney that the 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 the attorney realized that the client could face much more serious charges for extortion. The attorney never discussed this with the client, and the client gladly accepted a plea bargain offer for a few months' probation on the misdemeanor vandalism charge. Several years later, the 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 the attorney and interviewed him about the vandalism incident, several years prior, that had damaged the property owner's building at the time. The attorney explained that the incident was actually part of a larger extortion operation and that the business owner had handled the matter nobly. Should the 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.

An attorney represented a client, who was a defendant in a criminal prosecution. The client's trial ended in a conviction and a life sentence. After all possible appeals were complete, the attorney's representation of the client ended. The attorney sent the client a letter, which the 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, the 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. The attorney mentioned the client, but only by first name, and explained how the guilty verdict felt like a failure on his part even though he knew the client was guilty because the client's friends and family members had all witnessed the crime and told the attorney privately what they had seen. Could the attorney be subject to discipline for disclosing confidential client information?

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

A client is struggling through a deposition, during which opposing counsel is subjecting him to intense questioning. The attorney, who represents the client, tries objecting a few times in order to break the opposing counsel's momentum, but it was to no avail. The 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. The attorney and the client gathered their things and stormed out of the room. A few days later, the 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 the attorney to the state bar disciplinary authority. Could the attorney be subject to discipline for the way in which he disrupted the deposition?

Yes, because the duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition.

In response to an attorney's advertising, which describes the attorney's education, experience, areas of practice, and contact information, and individual sent an email to the attorney describing their legal problem at length, including many personal details. Some of the information was unfavorable to the individual's legal interests. The attorney, who had never met or had any contact with the individual, read the long email in its entirety, and immediately sent a terse reply declining the representation. There was no consultation with the individual, and the attorney did not promise to provide representation. A few days later, the attorney received an inquiry from the opposing party in the case, and he agreed to represent the opposing party, and used information gleaned from the other individual's email to prevail in the matter. Was the attorney's conduct proper?

Yes, because the individual who sent the original email was not a prospective client for purposes of the Model Rules, and the attorney had no duty to keep the information confidential. Rule 1.18 Cmt. 2 [2] A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer's advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer's obligations, and a person provides information in response. See also Comment [4]. In contrast, a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer's education, experience, areas of practice, and contact information, or provides legal information of general interest. Such a person communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, and is thus not a "prospective client." Moreover, a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a "prospective client."

During a trial, the judge overruled an objection by one of the attorneys. The 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. The 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 the 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 the attorney's objection that day, and referred the judge to the relevant provision of the Rules of Evidence. Could the attorney be subject to discipline for his actions?

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

An associate in a law firm consulted with a prospective client about providing legal representation. The prospective client wanted to file a lawsuit against a nightclub. A fistfight had erupted at the nightclub between two other patrons, and the potential client had intervened to try to break it up. One of the fighting patrons shoved him out of the way, and he sustained some bruising when he fell. Worse, the nightclub's security guard then arrived and misinterpreted the situation, and he thought the prospective client had started the fight. The security guard dragged him outside behind the nightclub, where the two had an angry exchange of words. The security guard became enraged and beat the prospective client badly, leaving him with a concussion, black eyes, some missing teeth, and broken ribs. The security guard had been since quit working there and was judgment-proof, but the nightclub had a long prior history of problems with this guard resorting to unnecessary violence against unruly patrons and the club. The associate attorney immediately agreed to represent the prospective client, and only later discovered that the managing partner at his firm owned a 50% share of the same nightclub as a side investment. Even so, the partner gave the associate permission to represent the victim, because he said the bar's liability insurer would cover the claim and settle quickly, and it would generate fees for the firm. Furthermore, the potential client, who ran a real estate business, might hire the firm for other lucrative legal matters. The nightclub's liability insurer, however, refused to settle the matter before the plaintiff had filed a claim in court, and as soon as the associate filed the claim, the insurer's lawyer filed a motion to disqualify the associate's entire firm from the case. Should the court disqualify the firm because one of the partners has invested money in the nightclub, even if that partner is not directly involved in the representation?

Yes, because the partner's conflict of interest would impute to all the other lawyers in the firm, especially if the managing partner has the conflict and associates are handling the representation with his permission.

A lawyer is engaged in civil litigation. 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.

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

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

Yes, because the testimony relates to an uncontested issue.

A client wants to sell a parcel of commercial real estate, and he hired an attorney to represent him in the matter. As part of the representation, the client asked his 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. The attorney gave the title opinion to the client, who gave it to the prospective purchaser, who in turn submitted it to the prospective lender. The prospective lender received and reviewed the 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 the 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.

An 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. The 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. The attorney and plaintiff's counsel both know these counterclaims lack any real basis in fact, but will be costly for plaintiff to defend. The 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 the 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.

Media Company holds the exclusive right to license and distribute certain pay-per-view sporting events, which commercial establishments must license to broadcast at their facilities. It sued a sports bar, for broadcasting one of its major sporting events without a license. The Three Brothers Law Firm were involved before the Media Company filed suit, and Three Brothers Firm had managed to broker a tentative settlement agreement between the parties. Afterward, however, the parties reneged on the agreement and litigation ensued. Three Brothers Firm now represents the defendant sports bar in the matter, and it is counsel of record. Media Company has filed a motion to disqualify Three Brothers from the case, but the attorneys there claim that Media Company was never their client. There was no representation agreement between Media Company and Three Brothers, and Media Company never paid Three Brothers any legal fees. On the other hand, Media Company was otherwise unrepresented during the pre-trial attempt at negotiating a settlement, and its managers asked attorneys from Three Brothers for advice about whether to agree to the settlement instead of going to trial, and initially followed their legal advice on several points. Should the court now disqualify Three Brothers Firm from the case entirely?

Yes, because they obtained confidential information during the negotiations in the same matter, or a matter with significant overlap.

Early in the pre-trial phase of a civil lawsuit involving multiple crossclaims, the court enjoined the parties from transferring any assets out of the jurisdiction. The next day, an attorney heard that his client had transferred millions of dollars to a confidential Swiss bank account. The attorney did not make any affirmative representations to the court about following the court's order. It was clear to the attorney, however, that the court and the opposing party were under the impression that the client was complying with the court's order, and they were relying upon that fact in the ongoing proceedings. The client did not use the attorney's services in any way to make the transfers, and the attorney did not recommend it or know about it until after it occurred. *Would it be improper for the attorney to do nothing* and say nothing about the matter at this time, to protect the client's confidential information?

Yes, because this is a circumstance where failure to make a disclosure is the equivalent of an affirmative misrepresentation.

A family law attorney represented a client in a divorce proceeding. Early in the representation, before the client's spouse had retained counsel, the attorney advised her client to meet with other lawyers in the area for the sole purpose of creating a conflict of interest, that is, so that the client's spouse would be unable to retain the other lawyers for representation in the divorce. The client did so, and scheduled consultations with several other divorce attorneys in a "taint shopping" campaign, but he never intended to retain any of their services. Could the attorney be subject to discipline for instructing the client to do this?

Yes, because this is dishonest, interferes with the administration of justice, and has no purpose other than to interfere with the opposing party's ability to form a client-lawyer relationship.

An attorney represents a client, who wants to sell his business. A prospective purchaser has required from the client an evaluation of the business' solvency, detailing its current liabilities, potential liabilities, revenue, and assets. The client provides the attorney with documents pertaining to each of these issues, and explains to the 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 the attorney to adjust the earnings figures upward by 25 percent, the same amount by which the client falsely lowered them in the corporate records, in order to portray the business accurately to the potential purchaser. The 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 the client learns about this, he explains to the prospective purchaser over the phone what happened. Despite the low reported earnings, the purchaser pays the client's asking price for the business, because of the client's truthful representations over the phone. Could the 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.

An attorney has already represented a certain client on several matters. Most recently, the attorney has represented the client in a litigation matter against the city's largest manufacturer. The manufacturer, whom the attorney is suing on behalf of the 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, the attorney learns that the client misused the attorney's services in the past to perpetrate fraud by having the attorney submit falsified documents to government entities and to insurance companies. The attorney is furious and yells at the client, using profanity. the 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. The client strongly objects to the 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 the client, who may have to proceed into the trial pro se or must find a new lawyer from out of town. The court is willing to postpone the trial by three weeks to give the client time to find a new lawyer or prepare to represent himself. Is it proper for the attorney to withdraw from representation in this case, if the court has no objection?

Yes, because withdrawal is permissible if the client misused the attorney's services in the past, even if the withdrawal would materially prejudice the client Rule 1.16 Cmt. 7 [7] A lawyer may withdraw from representation in some circumstances. The lawyer has the option to withdraw if it can be accomplished without material adverse effect on the client's interests. Withdrawal is also justified if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with such conduct even if the lawyer does not further it. Withdrawal is also permitted if the lawyer's services were misused in the past even if that would materially prejudice the client. The lawyer may also withdraw where the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.

A certain client retained an experienced attorney for the drafting and execution of a will. The client wanted the will to leave the client's entire estate to her favorite professor from her law school, the one who had taught her Professional Responsibility course in her 3L year. The attorney prepared the will by copying from previous will she had prepared for other clients, and then she arranged for the client to sign the will before the proper number of witnesses. The client's intent to benefit the law professor thus did not appear on the face of the will, which instead listed the sole beneficiary merely as "the legal heir." The professor inherited nothing when the will went through probate, and then he accused the attorney of negligently writing the will to name someone other than professor as the legatee. Can the professor, as the intended beneficiary, recover from the attorney in a negligence-malpractice lawsuit?

Yes, but only by producing clear and convincing evidence that the client communicated her intent to the attorney that the professor should be the legatee.

An attorney specialized in transactional work for corporate clients, and he focused his practice on this area for many years. An emergency arose in which an attorney needed to give immediately telephone advice to an individual client who had to make an urgent decision. Referring the case to another firm, or even consulting with another lawyer, was not practical in the moment. The attorney did not have the requisite skill or knowledge for the matter, because it was far outside the attorney's regular area of practice, and he explained this to the client before offering any advice. He then gave his best educated guess about what the client should do, based on analogous situations in areas of law more familiar to him. *The attorney took the opportunity to give the client extensive advice about the net several steps the client should take, and advice about the subsequent appeal of the matter, all of which was completely outside the attorney's range of knowledge or experience*. The client relied on the attorney's uninformed advice, all of which turned out to be wrong, and resulting in several lawyers of harm to the client's legal interests. If the attorney had limited his emergency advice to the minimum necessary in the moment, the client would have suffered less harm. Could the attorney be subject to discipline for lack of competence?

Yes, even in emergencies, a lawyer should limit assistance to what is necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client's interest.

An attorney works for a firm that handles mortgage lenders in foreclosure actions; she handles foreclosure matters in mediation and at trial. Some close friends of the attorney form a real estate investment company, which buys properties in foreclosure, and sells the properties later at a profit. The friends include the attorney as a passive partner, so she receives a small share of the company's net revenues. The attorney's role in mediation conferences puts her in a position to speed up or slow down foreclosure proceedings, because she negotiates with the defaulting mortgagee for a loan modification. Delayed or failed modifications provide an opportunity for other interested investors, such as her friends' company, to purchase the property at a short sale. The lenders, who are the attorney's clients, often agree to these delays because a short sale may yield a better payoff for the lender than a loan modification. Would it be *impermissible* for the attorney to drag out the loan modification negotiations with the owner-in-default so that prospective buyers may have the chance to purchase the properties at a short sale?

Yes, even with the consent of the attorney's clients, this is an impermissible dilatory litigation tactic with no substantial purpose other than to delay or prolong the proceeding.

An attorney had a dispute with her nonlawyer siblings about the guardianship of their elderly mother. One of the siblings filed a petition for the appointment as the mother's legal guardian, which the court granted. The attorney then filed an appearance on behalf of her mother in the matter to contest the guardianship. Bitter fighting between the siblings continued, and at one point the attorney filed a motion to withdraw, which the court granted, even though it was not clear that the attorney had ever had a client-lawyer relationship with her mother. As the months went by, the attorney grew increasingly concerned about how her sibling was treating their elderly mother, and began filing various motions, petitions, and appeals on the mother's behalf seeking judicial relief and the appointment of a different legal guardian. Could the attorney be subject to discipline, given these facts?

Yes, filing petitions and appeals on behalf of someone no longer legally one's client imposes unnecessary delays in court proceedings.

An attorney undertook the representation of a client, but the representation was in the client's capacity as trustee of an express trust for the benefit of a beneficiary. The client informed the attorney that he wanted to transfer funds into a certain account, which the client says is the trust account, even though it is the client's personal account. The client's intended action would constitute embezzlement. Due diligence by the attorney would have revealed that the client was lying about the accounts, but the attorney forgot to check, gave the client no guidance, and the client proceeded with the illegal transfer. The beneficiary sustained financial losses because of the illegal transfer, and eventually sued the attorney for a breach of fiduciary duty. The attorney believes he should not be subject to liability to the beneficiary, whom he does not represent. *Is the attorney correct?*

Yes, for the attorney did not owe the beneficiary a duty to use care because attorney was unaware that appropriate action was necessary to prevent a breach of fiduciary duty by the client, even though further investigation would have revealed this.

An attorney represents a client in a guardianship proceeding. The client is an adult with Down Syndrome and has an IQ far below average, in the "mental retardation" range of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). The client's family is trying to have the client institutionalized involuntarily, and the client is fighting this, wanting instead to live semi-independently in a group home. With the help of a social worker, the client has hired the attorney to defend him against the legal proceedings to have the client institutionalized permanently. Having researched this type of case, the attorney knows that case precedents give the client a small chance of prevailing in regular state court, but a good chance of prevailing if the attorney can change the venue to family court or probate court, The attorney has not discussed with the client his decision to seek a change of venue that would be more favorable to the 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 the attorney to leave the 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 Stevenson is a partner in ABC law firm, and Lawyer Best formerly was a partner. A new client has sought to retain Attorney Stevenson to file suit on behalf of the client against Conglomerate Corporation. Before joining the ABC firm, Lawyer Best had represented Conglomerate Corporation at an earlier stage of the current dispute. Lawyer Best has now resigned from the ABC firm, disclosed no confidential information about Conglomerate Corporation relevant to the matter to other lawyers in ABC, left no files at ABC that relate to the proposed suit, and will not share in fees derived by the ABC firm from the representation of the new client. Given that Lawyer Best represented Conglomerate Corporation in the same matter, and then worked for ABC law firm in between (but has recently left the firm), is it proper for Attorney Stevenson to represent the new client in the matter against Conglomerate?

Yes, given Lawyer Best's departure and the fact that nobody else at the firm learned confidential information about Conglomerate Corporation, there is no remaining imputation of Best's conflict of interest. RESTATEMENT § 124 sec. c(i).

An elderly retiree was reading the newspaper one morning, and he noticed an advertisement by a local attorney offering to write simple wills for $500. The attorney's name was unfamiliar, but the retiree called the phone number in the ad and asked the attorney to write a simple will for him, and the attorney agreed. Neither party, however, mentioned the advertisement or discussed the attorney's fees. The lawyer drafted the will, met with the client for signing, and then sent a bill for $1500. Under these circumstances, is the client entitled to pay only $500?

Yes, given that the attorney advertised for that amount and the client had seen the ad, the parties have an implicit contract under which the attorney must write the will in exchange for $500.

An attorney has spent his entire career practicing family law, and he has never done a criminal trial before. When asked to take a pro bono criminal case, he whimsically agreed, because the attorney was going through a midlife crisis and wants to try something new. The attorney invested time studying and researching the relevant law and court procedures so that he knows how to proceed and how to advise the client, but still feels nervous doing this for the first time, and certainly does not have the same expertise as the most experienced lawyers in the area. Could the attorney be subject to discipline for his lack of competence?

Yes, he did not spend time carefully considering the decision before agreeing to take the case, and took the case because of a midlife crisis, which is improper.

An attorney had graduated from law school near the bottom of his class, but he told himself that every year someone at graduation had to be at the bottom of their class. Besides, his mentor always told him that law school classes have nothing to do with the actual practice of law. The attorney was unaware that his 1L Civil Procedure Professor had miscalculated his grade two full letter grades higher than he deserved, and otherwise he would have failed out before his second year. The attorney invested a reasonable amount of time preparing for his clients' cases, and put in normal effort for an attorney, but still was far behind his fellow lawyers in his ability. He lacked knowledge of settled principles of Law and was not aware of recent developments in case law and legislation in his area of practice, even though he tried and made an earnest effort, often trying even harder than the lawyers around him, who seemed to coast along effortlessly by comparison. His intentions were always good, and he genuinely cared about his clients. Could the attorney be subject to discipline, including disbarment, for incompetent representation?

Yes, he lacks basic knowledge and skills necessary, despite his efforts and good intentions.

An attorney worked for a small plaintiffs' firm in Dallas, Texas. The firm undertook the representation of the victim, who suffered severe injuries in a traffic accident with a large truck, allegedly due to the truck driver's negligence. The attorney was not involved in the case at all; another associate at the firm represented the victim in the lawsuit. Big Firm, which has offices in several states, is defending the trucking company in the personal injury lawsuit brought by the victim. The 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. The 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 the attorney to work on-the trucking company case, the same case in which his pervious firm represented the opposing party, The 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 the 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.

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

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

A certain attorney was a solo practitioner with many years of experience. For the last few years, the attorney represented a local cupcake shop, jointly owned by Susan and Diane. Susan was in a traffic accident while doing a personal errand, but she was driving the delivery van of the cupcake shop. Susan was co-owner of the shop and was therefore free to use the shop's vehicle for occasional person errands. There is a dispute among the parties involved in the accident about who was at fault. The attorney did not do personal injury litigation, so Susan asked him to refer her to a personal injury lawyer who could represent her at trial. At the same time, Susan insisted that the attorney who handled the business transactional work for the cupcake shop should receive a referral fee, and the attorney is willing to accept joint responsibility for the matter but will not assist in the litigation. The other driver has already filed a claim against Susan and the cupcake shop, and the attorney can see that Susan's interests in the suit are adverse to the cupcake shop's interests. Even though the attorney does not plan to represent the cupcake shop in the lawsuit, the cupcake shop will continue to be the attorney's client for business and transactional matters. Can the attorney make the referral and accept a referral fee, under these circumstances?

Yes, if the attorney obtains the informed consent, confirmed in writing, of both the cupcake shop and Susan as potential co-defendants, and otherwise meets the requirements of Model Rule 1.7(b).

A certain attorney was a solo practitioner with many years of experience. For the last few years, the attorney represented a local cupcake shop, jointly owned by Susan and Diane. Susan was in a traffic accident while doing a personal errand, but she was driving the delivery van of the cupcake shop. Susan was co-owner of the shop and was therefore free to use the shop's vehicle for occasional person errands. There is a dispute among the parties involved in the accident about who was at fault. The attorney did not do personal injury litigation, so Susan asked him to refer her to a personal injury lawyer who could represent her at trial. At the same time, Susan insisted that the attorney who handled the business transactional work for the cupcake shop should receive a referral fee, and the attorney is willing to accept joint responsibility for the matter but will not assist in the litigation. The attorney expects the other driver in the accident to file a claim against Susan, and eventually against the cupcake shop as well, as the owner of the vehicle. In that case, the attorney's duty of loyalty to Susan and the cupcake shop could be in tension, and the attorney could have a material limitation in the representation. Can the attorney make the referral and accept a referral fee, under these circumstances?

Yes, if the attorney obtains the informed consent, confirmed in writing, of both the cupcake shop and Susan as potential co-defendants, and otherwise meets the requirements of Model Rule 1.7(b).

An attorney represented a client in her divorce and custody case. The client's husband had been abusive, so she asked the 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. The attorney knows that the ex-husband has not been physically abusive to the 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, the 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 the attorney have an affirmative duty to disclose the length of time since the last abuse occurred and the ex-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.

An attorney represented a client in a lawsuit over a traffic accident. The client told the attorney about a certain eyewitness who had been present at the scene and who had said at the time that the client was not at fault. The attorney tracked down this witness, but soon discovered that the eyewitness did not want any involvement in the litigation or trial. The witness was necessary to corroborate the client's version of what happened in the accident, so the attorney offered to pay $500 honorarium in cash if the witness would testify at trial. The eyewitness was out of work needed the cash, so he begrudgingly agreed. Would the Model Rules prohibit the attorney from paying the eyewitness an honorarium to testify at trial?

Yes, it is impermissible for a lawyer to pay an eyewitness to attend and testify at a hearing or trial.

An attorney licensed in Texas represented a group of plaintiffs in a foreign court - a third-world dictatorship with no enforcement of lawyer licensing requirements. The lawsuit claimed that a former United States President was personally responsible for international terrorism, colonial imperialism, climate change, the worldwide malaria epidemic, human trafficking, and narcoterrorism. The local court in the third-world dictatorship found the former President liable on all charges, even though he was not present or aware of the proceedings and awarded damages of ten billion dollars to the local plaintiffs. The attorney then filed an action in the United States jurisdiction where the former U.S. President had a ranch and a personal bank account, seeking to execute on the foreign judgment. The state court immediately dismissed the action with prejudice, and the attorney appealed this decision, still hoping to execute the billion-dollar judgment against the former President. Is the attorney subject to discipline for bringing a frivolous action and appeal?

Yes, it was impermissible for the attorney to bring the action for executing the judgment, and to appeal the dismissal, as there was basis in law or fact for doing so.

Conglomerate Corporation became the subject of an enforcement action by the Department of Labor for violating certain wage-and-hour laws protecting workers' rights. Conglomerate's general counsel interviewed many of the company's employees, in groups of eight or ten at a time, and explained that there was litigation pending with the Department of Labor that could hurt their employer in the long run. General counsel then asked each groups of workers that they decline to discuss the case with anyone, especially lawyers from the government. Did general counsel violate the Model Rules by asking the employees not to talk to the other party?

Yes, it was not reasonable for the general counsel to believe that refraining from giving such information would not impinge on the employees' interests.

A client was selling some property to a buyer, and they reached an agreement that, as a condition for the sale, the client would supply an opinion letter by her attorney regarding liens on the property. The attorney knows about the agreement. Nevertheless, the client privately instructs the attorney to rely on the client's own information or assertions in preparing the opinion letter, and not to spend time searching the public lien records, as customary practice would require. The attorney relied on the client's information, so the opinion letter did not mention a recorded lien that the buyer would later discover, after the purchase was complete. Could the attorney be liable to the buyer for lack of diligence in a subsequent malpractice action?

Yes, it was reasonable for the buyer to rely upon the opinion letter, as the client invited this reliance, so the attorney had a duty to follow customary practice in rendering the opinion.

The Office of the Public Defender in a large urban center lacked the budget to hire the number of lawyers they needed. The number of indigent defendants who requiring representation always exceeded the capacity of the lawyers there. An attorney worked as a prosecutor for a few years to get experience, then became a public defender at this office. He soon found himself with an overload of cases, so it was impossible to provide full representation to each client. The attorney, like the other public defenders there, encouraged all his clients to accept a plea bargain, with rare exceptions. Going to trial on any one case meant turning away about two dozen indigent clients, most of whom could reach a plea agreement within an hour or two. The attorney reasoned that it was better for indigent criminal defendants to have a little representation rather than none. Besides, he knew that many of the defendants would lose if they went to trial. Given these facts, is the attorney violating his ethical duty of diligent representation to the clients?

Yes, lawyers must control their workload so that each matter receives competent, diligent representation.

Big Firm bills most of its clients on an hourly-billing basis, measured in fifteen-minute increments. Most of the firm's clients are large corporations. Big Firm's associates have burdensome billable hour requirements, so they spend as many hours as possible on every case, working every angle possible, taking an exhaustive approach to research memoranda, depositions of potential witnesses, and daily written updates to the corporate clients about their matters. The managing partners at Big Firm assign a dozen or more associates to every matter, no matter how small, even if that means some associates are merely double-checking or proofreading the work of other associates. The corporate clients and their insurers pay for these services, and whenever the clients prevail in litigation, they seek attorney's fees from the losing party. Could Big Firm (or its managing partners) be subject to discipline for charging unreasonable fees?

Yes, lawyers should not exploit fee arrangements based primarily on hourly charges by using wasteful procedures. Rule 1.5 Cmt. 5. [5] An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client's interest. For example, 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. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client's ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures.

At a real estate closing, the seller's attorney offered to record the deed for the buyer. Could the lawyer be subject to liability to the buyer for negligence in doing so, even if the buyer did not thereby become a client of the lawyer?

Yes, lawyers who invite reasonable reliance from another party in a transactional setting can be subject to liability to nonclients who rely on the lawyer's promises. RESTATEMENT § 51

Big Firm raises its hourly billing rate for all clients annually, on the first day of the year, by two percent. The initial engagement documents at the outset of representation explain this practice clearly, but Big Firm does not inform clients in writing each time the annual rate increase occurs. Is it proper for Big Firm to handle its billing and rate increases in this manner?

Yes, periodic, incremental increases in a lawyer's regular hourly billing rates are permissible if understands and accepts such practice at the commencement of the client-lawyer relationship, and the periodic increases are reasonable under the circumstances.

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 attorney to represent them. Though the brothers get along reasonably well, there are several 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. Then the 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, regarding the attorney-client privilege, the prevailing rule is that, as between jointly 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. Rule 1.7 Cmt 30 [30] A particularly important factor in determining the appropriateness of common representation is the effect on client-lawyer confidentiality and the attorney-client privilege. With regard to the attorney-client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised.

During a lunchtime recess of a case, the attorney representing the plaintiffs walked with his expert witness to a nearby delicatessen, which full. By coincidence, the server seated the attorney and his expert at the adjoining table to two of the jurors in the case. The attorney recognized the two women from the jury and greeted them, and they chatted for a few minutes about the weather, their favorite sandwiches, and how long the case was taking. They did not discuss the merits of the case itself. Two secretaries from opposing counsel's firm were also eating at the delicatessen and observed this conversation, which they promptly reported to their supervising attorney, who reported it to the judge. The judge ordered a mistrial, dismissed the jurors, and ordered the attorney to reimburse the county for the jurors' fees. Could the attorney also be subject to disciplinary sanctions for running into the two jurors at lunch and making friendly conversation?

Yes, regardless of the attorney's intentions, the conversation violated the prohibition on ex parte communication with jurors.

A certain client hired an attorney to represent him in civil litigation. The client's own testimony at trial would be crucial to the case, and the client was concerned that his embittered former business partner would testify against him as a negative character witness to impeach his credibility. The two had been quite close early in their partnership, but then had a falling out and were no longer on speaking terms. The attorney approached the former partner privately, explained the client's situation, and offered the client's former partner several thousand dollars not to testify or even talk to the opposing counsel in the case. The former partner jumped at the chance to make some easy money by doing nothing, and he accepted the attorney's offer. Could the attorney be subject to discipline for his actions, as described here?

Yes, the Model Rules do not permit lawyers to offer witnesses money to refrain from testifying or providing information about the matter, with exceptions that do not apply here.

An experienced attorney represented a client in commercial litigation. During a deposition, the client gave answers that the attorney knew to be false, regarding a matter of great relevance to the case. The attorney sat silently and permitted the client to give these answers in the deposition. At the subsequent trial, opposing counsel submitted convincing evidence showing that the client had lied during the deposition. It was evident from the circumstances that the attorney must have known that the client's statements were untruthful at the time. Opposing counsel then filed a grievance against the attorney for allowing the client to give false testimony and failing to rectify it. When the attorney filed a response to the grievance, he explained that alleged ethical violation took place during a deposition, long before the trial, so the duty of candor to the tribunal was inapplicable at that point. Is the attorney correct in this argument?

Yes, the Model Rules require a lawyer to take remedial measures when a client offers false statements even during a deposition. [1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal. See Rule 1.0(m) for the definition of "tribunal." It also applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition. Thus, for example, paragraph (a)(3) requires a lawyer to take reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition has offered evidence that is false.

An attorney represents a small business in a contract dispute with one of its suppliers. The 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 the 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 attorney agreed to represent a client who wanted to contest the will of her recently deceased aunt. The matter turned out to be much more complicated than the attorney imagined, however, and he already had an overwhelming number of cases for other clients. The attorney received interrogatories from the opposing parties in the matter regarding the will, and he put them off, and then put them off again, as he was busy with other cases. After several months without a response to the interrogatories, the court dismissed the client's case. The client planned to file a malpractice action against the attorney, but the evidence in her case and the relevant law meant she had been unlikely to succeed on her original claim. Could the attorney be subject to discipline for failing to expedite the proceedings, if the court already punished the attorney by dismissing the client's case?

Yes, the attorney did not make reasonable efforts to expedite the litigation consistent with the interests of the client.

The Office of the Attorney General in Texas ordered administrative suspensions of driver's licenses for parents who failed to pay child support, pursuant to state statutes. An attorney worked for the State Office of Administrative Hearings (SOAH), the agency that adjudicated license suspensions like this one. When he decided to leave the SOAH, the attorney surreptitiously copied a database of individuals facing license suspensions and used the names to solicit clients as he started his own firm. The attorney represented clients who wanted to appeal their license suspensions in court, though he did not represent anyone whose case he had personally worked on during his time at the SOAH. Could the attorney be subject to discipline in the cases in which he represents clients appealing their license suspensions?

Yes, the attorney had access to confidential government information from his time working for the state.

A litigation attorney represented Conglomerate Corporation as the defendant in a personal injury lawsuit. Proceedings were underway, and the discovery phase was nearing conclusion. Cross motions for summary judgment were pending. One day, the attorney received a phone call from the judge presiding over the matter, asking to meet the attorney for coffee. When the attorney met with the judge, the judge asked the attorney how much harm it would cause if Conglomerate if the company had to go to trial instead of winning at summary judgment. The attorney explained that the trial would cost his client millions of dollars in expert witness fees, and that settlement seemed impossible at this point, so summary judgment was the only way for his client to avoid a major financial setback that could affect their share price and solvency. Opposing counsel was not present and the two agreed not to mention their meeting to her. The next day, the judge granted summary judgment in favor of Conglomerate Corporation, the attorney's client. Could the attorney be subject to discipline for his conduct in this situation?

Yes, the attorney had an impermissible ex parte communication with the judge presiding over the attorney's case.

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

Yes, the attorney has confidential government information about a person acquired while working for the government agency, and therefore may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.

An attorney represented a criminal defendant facing extortion charges. The state's star witness against the defendant was a former co-conspirator who had agreed to testify in exchange for a plea deal. To establish the witness' reliability and knowledge of the conspiracy, the prosecution planned to introduce a recorded conversation of an intercepted conference call, from a wiretap, in which the defendant, the witness, and other co-conspirators discussed and planned the conspiracy. The attorney was also part of the recorded conversation, at least at the beginning, though left the call before the later part when the participants agreed to commit their crimes. Even though the attorney was not facing charges as a co-conspirator, his voice would be among others in the recorded conversation when it played at the trial. Given this situation, does the attorney have an ethical duty to have another lawyer represent the defendant at the trial?

Yes, the attorney is in the uncomfortable position of being a potential witness and an advocate in the same trial.

An attorney undertook the representation of represent a new client, but the attorney's firm forgot to screen for conflicts of interest. The attorney normally relied on her firm to screen for conflicts with clients of the other attorneys, and assumed this had occurred, so she drafted and filed a complaint at the client's behest, and then began planning to file a motion for a preliminary injunction. Before filing for the preliminary injunction, however, the attorney discovered that one of her partners at the firm previously represented the opposing party in a closely related matter, which would have been obvious beforehand if the firm had conducted a routine conflict check. The respective clients would not consent to the conflict, so the attorney had to withdraw from representing the new client. Her withdrawal forced the client to search for another lawyer and start over, which delayed the issuance of a preliminary injunction by several weeks, and the client suffered financial losses as a result. Would the attorney be liable to the new client for a breach of fiduciary duty?

Yes, the attorney is subject to liability to the client for negligent breach of fiduciary duty.

A certain client retained an experienced attorney for the drafting and execution of a will. The client wanted the will to leave the client's entire estate to her favorite professor from her law school, the one who had taught her Professional Responsibility course in her 3L year. The attorney prepared the will naming the professor as the sole beneficiary, but negligently arranged for the client to sign it without the correct number of witnesses present at the signing. After the client died, a probate court held the will to be ineffective due to the lack of witnesses, and the nonclient beneficiary thereby suffered monetary loss. The client's intent to benefit her favorite law professor appeared on the face of the will executed by the client. Assuming the majority rule, is the attorney subject to liability to the nonclient beneficiary for negligence in drafting and supervising the execution of the will?

Yes, the attorney knew that the client intended, as one of the primary objectives of the representation, that the attorney's services benefit the nonclient beneficiary.

An attorney worked as in-house counsel for Conglomerate Corporation for eight years, dealing with every aspect of management and corporate affairs, in addition to regulatory compliance. Conglomerate then hired a new CEO, who promptly fired the attorney and replaced him with another lawyer who was a nephew of the CEO. Giant Company has asked the attorney who formerly worked for Conglomerate to represent Giant in an antitrust matter against Conglomerate Corporation. The contemplated lawsuit focuses on specific incidents that took place after the attorney left Conglomerate, but the lawsuit involves sweeping charges of longstanding anti-competitive market strategy and pricing practices by Conglomerate, which would include the time when attorney worked there. *Would it be improper for the attorney to represent Giant Company in this matter against Conglomerate?*

Yes, the breadth of confidential client information of Conglomerate previously accessible to the attorney during the prior representation, and the breadth of issues open in Giant Company's contemplate lawsuit, creates a substantial risk that the information would materially prejudice Conglomerate in the upcoming litigation.

An 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. The attorney then left the bench and opened her own law practice. The attorney agrees to represent the client in a matter in the same courthouse where the attorney formerly served as a judge. The 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 the attorney had no other involvement in the matter. The 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 the attorney to represent the 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.

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 exception 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.

A federal judge hired clerk for the first two years after the clerk graduated from law school. During his second year as a clerk, he began applying for associate positions at local law firms, to secure a job that would begin immediately after his clerkship ended. A few of the firms to which he applied had pending matters before the same judge, and these were among the firms that interviewed the clerk for an associate attorney position. During the interviewing process, the clerk refrained from mentioning he knew about their pending matters on his judge's docket, though the interviewers always mentioned the fact that their firms regularly appeared before the judge in whose chambers the applicant was then clerking. Each firm that interviewed the clerk received a letter from the judge recommending the applicant to prospective legal employers. The judge did not know where the clerk applied, or which firms were interviewing the clerk; the recommendation letter was a general letter that opened with "To Whom It May Concern." Was it improper for the clerk to apply for positions at firms that have pending matters before the judge for whom she was clerking?

Yes, the fact that the judge did not have notice of where the clerk applied, or which firms were interviewing the clerk

A client hired an attorney to represent her in business litigation, as the plaintiff, for a set hourly rate for the fees. By agreement, the fees were not due until the conclusion of the matter and the end of the representation. During the pleading phase of the lawsuit, however, the other party unexpectedly impleaded a third party, which made the case far more complicated and time-consuming for the attorney. The attorney explained the problem to the client, and the two agreed to shift to a contingent-fee arrangement. The attorney carefully explained the tradeoffs involved in the different fee arrangements, and offered to continue, on an hourly basis, but both the client and attorney thought that contingent fees were now more appropriate. The attorney fully complied with the written notice requirements of Rule 1.8(a) for changing fees mid-representation. The following day, in another unexpected development, the opposing party offered to settle for a generous sum, more than the parties thought the case was worth, and the client immediately accepted. Must the client now pay the contingent fee to the attorney, even though the client would have paid significantly less under the original hourly fee agreement?

Yes, the fee change was reasonable under these circumstances, and the attorney followed the notice requirements of the Model Rules.

A potential client called an attorney's office and told the receptionist that he wanted to hire the attorney to represent him at his drivers-license revocation hearing, which was set for two weeks from that date. The attorney regularly represented clients at license revocation hearings and appeals. The receptionist instructed the potential client to send or drop off all the papers concerning the proceeding but did not tell the caller whether the attorney would take the case. The individual dropped off the papers the next day. The attorney did not communicate with potential client until the day before the hearing, at which point the attorney declined to take the case. When the individual subsequently sues the attorney for malpractice, could a court find that a client-lawyer relationship existed in this situation?

Yes, the individual relied on the attorney by not seeking other counsel when that was still practicable, and this reliance was reasonable because the attorney practiced in this area, the receptionists solicited the individual's papers needed for the proceeding, and the hearing was imminent.

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

Yes, the lawyer may reveal information relating to the representation to establish a claim in a fee dispute between the lawyer and the client.

A family law attorney represented a client in a child custody dispute. The divorced parents lived in neighboring states, and the dispute involved allegations of child abuse by the client's ex-husband, the opposing party in the case. The case was complex and involved related petitions in two separate courts. The client received an unfavorable preliminary ruling regarding custody in the initial stages of the proceedings. With her client's consent, the attorney then took her zealous advocacy online, using Twitter and other social media platforms to denounce the injustice of the unfavorable preliminary custody ruling, to urge the judges to uphold the law, and to urge readers to write to the judges in the case or advocate for the children's safety themselves through Twitter. The attorney also created online petitions on websites like Change.org, with names like "Demand Justice for These Children!" The judges presiding over the various petitions in the case received hundreds of letters, emails, and phone calls in response to the attorney's efforts. Many of these communications by concerned citizens to the judges were hostile and vulgar. Could the attorney be subject to disbarment for such zealous advocacy online?

Yes, the lawyer was attempting to communicate with the judges and potential jurors through public commentary.

A family law attorney represented a client in a divorce proceeding. Early in the representation, before the client's spouse had retained counsel, the attorney advised her client to meet with other lawyers in the area for the sole purpose of creating a conflict of interest, that is, so that the client's spouse would be unable to retain the other lawyers for representation in the divorce. The client did so; the client scheduled consultations with several other divorce attorneys in a "taint shopping" campaign, but he never intended to retain any of their services. Could *one of the other lawyers be subject to discipline for representing the spouse anyway,* if they were lucky enough to have evidence to show that the original consultation was merely taint-shopping?

Yes, the person was not genuinely seeking legal representation, so the lawyer would have no duty to protect the confidentiality of the information disclosed and no conflict of interest.

A prosecutor in New York is engaged in plea bargain negotiations with a defendant and defense counsel. The defendant offers to confess to a much more serious crime, committed several years ago in California, if the prosecutor will drop the current charges, which will put the defendant in danger of retaliation from his gang once he is in prison. The prosecutor agrees, and the defendant confesses to a notorious armored car robbery in California ten years earlier that made national news, and for which another wrongfully convicted man was serving his sentence. The defendant describes the crime with enough detail that the prosecutor doubts that he could be fabricating the story. Does the prosecutor have any ethical duties about what to do with this information?

Yes, the prosecutor must promptly disclose that evidence to an appropriate court or authority.

Husband hired a certain attorney to represent him in a divorce; the husband and wife had three adult children. Husband was quite upset when he met with the 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, the attorney asked if there had been any marital infidelity on the part of either the husband or wife. Husband admitted to the 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 unlikely to be his offspring. The attorney had already looked at Husband's photograph of his children, and their resemblance to their father (Husband) was remarkable. the attorney finds repugnant the idea of subjecting the adult children to paternity tests, which would traumatize them unnecessarily, regardless of the result. The 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. Then the 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 the attorney's conditions of representation. Is it proper for the attorney to insist on such conditions of representation?

Yes, the terms of the representation agreement may exclude specific means that might otherwise serve used to accomplish the client's objectives, such as actions that the lawyer regards as repugnant or imprudent. Rule 1.2 Cmt. 6 [6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, 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. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

An attorney graduated from law school in the early 1970's, and he spent his career in solo practice in a small rural town, mostly drafting wills and simple contracts for sale for farm machinery. He has a landline phone in his office and home, but has never had or needed a cell phone, does not use a computer, and has never used email or the Internet. The attorney has an extensive library of law books and treatises. Could the attorney be subject to discipline for not keeping abreast of changes in technology that are relevant to the practice of law?

Yes, to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.

During a trial recess, the judge asked the lawyers for both parties to meet with him briefly in chambers. Once there, the judge explained that he planned to retire from the bench soon and was wondering if either of their firms were hiring litigation attorneys, as he might be interested. Could the judge be subject to discipline under the Model Rules of Professional Conduct for making this inquiry?

Yes, under the Model Rules, a lawyer shall not negotiate for 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 as a judge personally and in a substantial way.

Three years after prosecuting a defendant and obtaining a conviction for murder, another individual comes to the police station and confesses to committing the very murder for which the defendant is already serving time. The defendant always maintained his innocence and the basis of his conviction was an identification (in a lineup) by a single eyewitness. The person now confessing to the crime also fits the description given by the eyewitness and had a plausible motive for committing the murder. Does the prosecutor have a duty report this to the convicted defendant's lawyer?

Yes, when a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant in his jurisdiction did not commit an offense of which the defendant was convicted, the prosecutor shall promptly disclose that evidence to the defendant unless a court authorizes delay, and undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

An insurer retained an 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 to the limited scope of his representation, however, the attorney ignored the horrific deaths and the fact that the known killer had escaped conviction on a technicality. In a cool and calculated matter, the 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 the 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 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 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.

A certain attorney represents a 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 close to a final agreement. The attorney has been conducting the negotiations without the client present, checking in with the client from time to time. One day, the other party presents a detailed proposal that would resolve all remaining issues. This proposal would give each side most of what it wants, but also requires a few concessions from each party. The attorney calls the 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. The client gives the attorney consent to consummate the agreement. Could the 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 the attorney did not necessarily explain all the concessions that the client would have to make. Rule 1.4 Cmt 5 [5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, 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. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0(e).

A major city has large district attorney's office with many prosecutors. In most cases, several prosecutors share responsibility for parts of a single criminal case, so different prosecutors have responsibility for investigating the matter, presenting the indictment, and trying the case. Inevitably, some less important or immaterial information learned by the prosecutor conducting the investigation, or the grand jury presentation, does not pass along to the other prosecutor in the subsequent proceedings. As a result, the prosecutor handling the trial does not know certain minor details that might be helpful to the defendant's case, and therefore cannot disclose the information to defense counsel. Does it constitute a violation of the Model Rules for cases to pass from prosecutor to prosecutor, with the defendant and the prosecutor being unaware of some minor details (whether inculpatory, exculpatory, or mitigating) lost in the process?

Yes, within the district attorney's office, supervisory lawyers must establish procedures to ensure that each prosecutor involved has the exculpatory evidence to disclose.

1.16: Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

` (1) the representation will result in violation of the rules of professional conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged.

After law school, an attorney worked for the local City Attorney's office in a mid-sized municipality, working mostly on enforcement of anti-pollution and anti-littering ordinances. After five years, the attorney left the position at the municipality and went to work for the federal Environmental Protection Agency (EPA). In some cases, the EPA intervenes in litigation over pollution in which the same municipality is also a party. In that situation, may the EPA ignore the usual screening requirements that would apply to a lawyer moving to a private firm?

` Yes, when a lawyer is employed by a city and subsequently is employed by a federal agency, the latter agency does not have to screen the lawyer.

Rule 3.3 Candor Toward the Tribunal (d) 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.

Agreements to split fees between lawyers at different firms who work on the same case must

always be in writing

1.5 (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be ...

communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

Rule 3.3 Candor Toward the Tribunal (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if

compliance requires disclosure of information otherwise protected by Rule 1.6.

1.16: Declining or Terminating Representation (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall

continue representation notwithstanding good cause for terminating the representation.

Contingent fees are never permissible in....

criminal defense cases, divorce, child custody cases (but are permissible in subsequent actions to enforce child support or alimony orders after the divorce

1.2 (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may ...

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

1.16: Declining or Terminating Representation (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as ...

giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

1.5 c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be ...

in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

1.12 b) A lawyer shall not negotiate for 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 as a .

judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer.

1.12 (a) Except as stated in paragraph (d), 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

1.8 (d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer ...

literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

Rule 3.6: Trial Publicity (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not

make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

1.4 (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to ...

make informed decisions regarding the representation.

1.2 (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's

political, economic, social or moral views or activities.

Rule 1.18: Duties to Prospective Client (a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a

prospective client.

Rule 3.6: Trial Publicity (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to

protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

At the end of the representation, lawyers must...

provide clients with a written statement about the outcome of the matter and the fees charged

1.11 (c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not ...

represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term "confidential government information" means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

1.12 (d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from

subsequently representing that party.

Rule 3.3 Candor Toward the Tribunal (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall

take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

1.8 (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless

the client gives informed consent, except as permitted or required by these Rules.

1.2 (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and...

the client gives informed consent.

Rule 1.18: Duties to Prospective Client (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if ...

the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

1.2 (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to ...

the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

Contingent fee agreements much be in writing at

the outset of representation (other types of fee arrangements do not have to be in writing, though it is preferred)

Any written agreement about a contingent fee must state

the percentage(s) and must state whether court costs and other expenses (copying, hiring experts, etc.) are deducted before or after calculating the contingent fees

Rule 3.1: Meritorious Claims & Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless

there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Rule 1.18: Duties to Prospective Client (b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not ...

use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

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

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

1.8 (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and (2) contract with a client for a reasonable contingent fee in a civil case.

1.8 (h) A lawyer shall not:

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

1.8 (f) A lawyer shall not accept compensation for representing a client from one other than the client unless:

(1) the client gives informed consent; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6.

1.7 (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; AND (4) each affected client gives informed consent, confirmed in writing.

1.8 (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; AND (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.

1.9 (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

1.9 (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

Attorney Albert works at Ricks, Sawyer, & Thompson for five years and specialized in real estate. During the last three years, Albert has worked intensively on Client Callahan's properties and disputes that arose. Before leaving Ricks, Albert handled a new real estate deal for Callahan that resulted in the erection of a new apartment complex. Albert now works at Friedman & Grisley and received a new case assignment. Albert discovers that the new client, Raymond Bradley, is a small business owner located next to Callahan's apartment complex and is suing Callahan for a disputed right of way.

Albert may represent Bradley if Callahan consents in writing for him to do so.

Lawyer Laura worked at the Abel & Bentley firm for five years, and specialized in Real Estate. During the last 3 years, Laura Lawyer worked extensively on Client Cain's properties and disputes that arose related to them. Before leaving the Abel & Bentley firm, Lawyer Laura handled a new real estate deal for Client Cain that facilitated the erection of a new apartment complex. Lawyer Laura now works at the Davis & Eldridge firm. One of her first assignments is a case in which Client Seth, a new client of the first, is suing Cain over a disputed right of way through the very property that now holds the new apartment complex -- Seth and Cain are neighbors. Can Laura represent Client Seth against her former Client, Cain.

Lawyer Laura may represent Client Seth if Client Cain consents in writing to her doing so.

An attorney, who often serves as a court-appointed mediator, was appointed to mediate the divorce between a husband and wife. The case settled in mediation and the divorce was finalized soon after. A year later, the husband sought to retain an attorney to represent him in a modification suit against his wife. The attorney accepted the case and sent a letter to the wife advising her that the attorney had been retained by the former husband 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.

An experienced attorney had his own solo law practice. The attorney agreed to provide representation to a certain client, which would entail researching and writing several legal opinions for the client pertaining to the client's anticipated litigation, and the attorney's usual hourly rate. The proposed research and writing would require a substantial amount of time, so their agreement stipulated that the attorney would bill the client every two months. The client paid the first bill and then stopped paying. After several months, the anticipated litigation began, and the client requested copies of all the remaining legal opinions that the attorney had agreed to write. The attorney had followed state laws to secure a lien on his work product for the client after the client stopped paying. Could the attorney be subject to discipline if he were to retain the documents that the client has not yet paid for?

No, a lawyer may acquire and act upon a lien authorized by law to secure the lawyer's fee or expenses. Model Rule 1.8(i) Cmt. 16; RESTATEMENT § 43 [16] Paragraph (i) states the traditional general rule that lawyers are prohibited from acquiring a proprietary interest in litigation. Like paragraph (e), the general rule has its basis in common law champerty and maintenance and is designed to avoid giving the lawyer too great an interest in the representation. In addition, when the lawyer acquires an ownership interest in the subject of the representation, it will be more difficult for a client to discharge the lawyer if the client so desires. The Rule is subject to specific exceptions developed in decisional law and continued in these Rules. The exception for certain advances of the costs of litigation is set forth in paragraph (e). In addition, paragraph (i) sets forth exceptions for liens authorized by law to secure the lawyer's fees or expenses and contracts for reasonable contingent fees. The law of each jurisdiction determines which liens are authorized by law. These may include liens granted by statute, liens originating in common law and liens acquired by contract with the client. When a lawyer acquires by contract a security interest in property other than that recovered through the lawyer's efforts in the litigation, such an acquisition is a business or financial transaction with a client and is governed by the requirements of paragraph (a). Contracts for contingent fees in civil cases are governed by Rule 1.5.

A municipal election for a seat on the city council was remarkably 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. A certain attorney is a prominent lawyer in the community and has previously represented each candidate in various legal matters. Both candidates would like to hire the 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 the attorney, but each is willing to provide written informed consent to have the attorney represent them both in facilitating the negotiations. May the 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. Rule 1.7 Cmt 28 [28] Whether a conflict is consentable depends on the circumstances. For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference in interest among them. Thus, a lawyer may seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis; for example, in helping to organize a business in which two or more clients are entrepreneurs, working out the financial reorganization of an enterprise in which two or more clients have an interest or arranging a property distribution in settlement of an estate. The lawyer seeks to resolve potentially adverse interests by developing the parties' mutual interests. Otherwise, each party might have to obtain separate representation, with the possibility of incurring additional cost, complication or even litigation. Given these and other relevant factors, the clients may prefer that the lawyer act for all of them.

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 scant 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 began her career as a prosecutor for the DA. 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 the 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 DA, partly out of humiliation over this case, she went into private practice. 18 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 acquittal. Attorney feels that her superiors at the DA 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.

An attorney spent several years working for the state Office of the Attorney General in its environmental litigation division. While there, the attorney began a case against a scrap metal facility for burying toxic materials in its grounds. The attorney then left government service and went to work for Big Firm. There, the 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 the 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.

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

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

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

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

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

No, attorneys can enter into fair and reasonable business transactions with clients assuming the client receives an advisory 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. Rule 1.8(a)

A certain attorney, a partner at a law firm, prepares a will for Sister. In the will, Sister directs the attorney to receive a substantial part of her estate. Then the attorney also recommends Sister appoint the attorney as the executor of the will because of his knowledge in this field. The 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. In addition, the attorney recommends Sister seek independent legal counsel regarding the issue of the executor. Sister does so, and then she asks the attorney to list him as executor in the will. Is the attorney subject to discipline?

No, attorneys may permissibly include gifts to themselves in a will prepared by an attorney for a *person related to the attorney*, even if the gift is substantial.

A transactional attorney agreed to represent a new client who already had representation by trial counsel on another matter. The client agreed to a complex fee arrangement, which included a fixed flat fee for the first phase of the transaction, a modest hourly rate for the remainder of the transaction, and a modest contingent fee in addition to these other fees, scaled to the outcome of the transaction - that is, a higher contingent fee for obtaining more favorable final terms in the transaction. The attorney did not advise the client to seek the opinion of independent legal counsel for this transaction, and did not obtain signed, written consent from the client about the attorney's role in the transaction. The client's other lawyer reviewed the terms of the fee agreement and advised the client to accept it. Based on these facts, could the attorney be subject to discipline for violating the provisions Model Rule 1.8 that govern business transactions with clients?

No, because Rule 1.8 does not apply to ordinary fee arrangements between client and lawyer.

An attorney represented a client in a residential real estate transaction. At the same time, the 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. The client was an unnamed member of the plaintiff class in the class-action lawsuit against the alcohol producer. The attorney did not inform the client that he was representing the defendant in the class-action lawsuit or seek consent from the client or from the alcohol producer. Plaintiffs' counsel in the class action lawsuit discovered this situation, and he asked the court to disqualify the attorney from representing the defendant. Should the 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. Rule 1.7 Cmt 25 [25] When a lawyer represents or seeks to represent a class of plaintiffs or defendants in a class-action lawsuit, unnamed members of the class are ordinarily not considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of this Rule. Thus, the lawyer does not typically need to get the consent of such a person before representing a client suing the person in an unrelated matter. Similarly, 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.

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

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

An attorney used to work at Big Firm, and three years ago moved to Medium Firm. One of the attorney's former colleagues at Big Firm also left and started as solo practice. While working at Big Firm, the solo received an assignment of literary rights from one of his clients about the client's high profile case, immediately after the ned of the case and the conclusion of the representation. The client also assigned any remaining literary rights to Kingpin publishers in exchange for a hefty payment. The solo is now suing Kingpin to establish executive literary rights in the story. The first attorney's current firm, Medium Firm, represents Kingpin, and the solo represents himself. Another publisher is interested in acquiring the solo's book or movie script, and is funding the litigation expenses for the solo, even though it is not a client and odes not yet have any ownership rights over the story. The case that gave rise to the literary rights occurred while both the solo and the first attorney were working together at Big Firm. The attorney performed some preliminary work on the case--reviewing and indexing a single deposition transcript before the client's trial.

No, because neither the attorney nor Medium Firm have any disqualifying conflict of interest in this case.

A paralegal at Big Firm is currently engaged to an editor at Kingpin, and the two are already living together. The attorney at Medium Firm, who is representing Kingpin, is in a sexual relationship with another lawyer at his own firm, and both are working in some capacity on this case. Executives at Kingpin have informed the first attorney that if his firm wins this case, they will hire Medium Firm for their future legal work, which could be very lucrative in the long term. The solo has just filed a motion to disqualify the first attorney and the rest of Medium Firm from representing Kingpin in the case, alleging simply that there is a conflict of interest. Does medium firm have a disqualifying conflict of interest in representing Kingpin Publishers in this particular litigation?

No, because neither the attorney nor medium firm have any disqualifying conflict of interest in the case.

An attorney works for a firm where another lawyer is representing the defendant in a personal injury lawsuit. The other lawyer has represented the defendant for a long time on unrelated, non litigation matters, but the personal injury lawsuit is a new case. The victim, the plaintiff in the same personal injury lawsuit, was a college classmate of the attorney and he asks the attorney to represent him in the litigation. The attorney has not learned any confidential information from the victim during their primary consultation. The firm decides to undertake representation of the victim as well. The firm will carefully screen the 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 the attorney to represent the victim, given these circumstances?

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

Husband and Wife wanted to hire a certain attorney to prepare their wills. Before the formalities of representation were final, husband spoke with the attorney privately by phone and disclosed that Husband had been having an affair, and that his lover might be pregnant. Husband forbids the attorney to tell Wife about this. Then the 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 the attorney to proceed with representing Husband and Wife in preparing their wills?

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

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

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

An attorney was preparing a will for one of her wealthy elderly clients. The client had no surviving family members - her spouse had passed away years before, as had her siblings, and she had no children. The client asked the attorney for suggestions about potential beneficiaries of the estate, besides her favorite charities, and she offered to leave the attorney some items. The attorney replied, "Well, I've represented you on various matters over the years, and I have always looked out for your best interests, so I would not object if you included me in the will. I've always admired your collection of antique furniture and books." The client was delighted by the idea and instructed the attorney to include a provision in the will bequeathing all the antique furniture and books in her large home to the attorney. The attorney prepared the will as instructed and the client executed it. Was the attorney's conduct proper?

No, because the attorney should not have prepared the will if the document made a significant bequest to the attorney. Rule 1.8(c)

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, because the legal secretary is not a lawyer, so the Rules of Professional Conduct to not apply to her personal conflicts of interest. Model Rule 1.10 does not apply

A husband and wife decide to divorce and reach an agreement to share the same lawyer in hopes of saving money. They hire an attorney to represent each of them in Family Court for the dissolution of marriage. The attorney explains that there is an obvious conflict of interest here, but the husband and wife insist, and sign informed consent forms waiving the conflict and their rights to assert any future claims related to the conflict. The husband and wife have no children, and they 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 the 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 Rule 1.7(b)(3) Client-Lawyer Relationship (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; *(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal*; and (4) each affected client gives informed consent, confirmed in writing.

A certain client needed to sell a parcel of real estate to pay off a large amount of credit card debt. He brought this situation to the attention of his attorney, who was representing him in his interactions with collection agencies and credit bureaus. The attorney offered to purchase the property immediately for the full amount of the client's outstanding credit card debt - just over a hundred thousand dollars - without delaying the matter by arranging a mortgage first, or having the property appraised. The client was disappointed, because he thought the property was worth more than that, but he agreed due to his dire financial circumstances. The attorney fully disclosed the terms of the purchase to the client, in understandable written form, and advised the client in writing that it would be prudent to consult with another lawyer about the transaction, which the client could not realistically afford to do. The client gave written, informed consent to the terms of the sale and the attorney's role in the transaction. Two months later, the attorney sold the property to a developer for three times the amount he had paid for it. Did the attorney act within the requirements of the Model Rules?

No, because the transaction was objectively unfair. Committee on Prof. Ethics v. Baker, 269 N.W.2d 463 (Iowa 1978) Rule 1.8(a); RESTATEMENT § 126

An attorney has applied to make a lateral move from her firm to Big Firm, and she has already gone through the first two of three rounds of interviews for the position. Then the attorney agrees to represent a 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 the client's complaint. The client claims that Construction Company breached a certain provision of the contract that is ambiguous; Construction Company is confident that its conduct falls within the contractual language in that provision. Is it proper for the attorney to undertake representation of the client in this case?

No, because when a lawyer has discussions concerning potential 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. Rule 1.7 Cmt 10 [10] The lawyer's own interests should not be permitted to have an adverse effect on representation of a client. For example, if the probity of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. Similarly, 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. In addition, a lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed financial interest. See Rule 1.8 for specific Rules pertaining to a number of personal interest conflicts, including business transactions with clients. See also Rule 1.10 (personal interest conflicts under Rule 1.7 ordinarily are not imputed to other lawyers in a law firm).

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 the representation of a trucking company in defending against a personal injury lawsuit over a roadway accident involving one of the trucks. Attorney worked in DC office of Big Firm, near the US Patent and Trademark office, and the litigators handing the trucking accident are 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 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 cases was the same truck accident case in which Big Firm was defending Trucking Company; attorney's new firm represents Plaintiff in the case. Attorney was not aware of the case or that Big Firm represented 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 are disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict

A plaintiff who had prevailed at trial needed representation for the appeal, because the defendant in the case appealed the verdict. Plaintiff's counsel did only trial work, not appellate work, and referred the client to an appellate attorney nearby. The trial lawyer even accompanied the plaintiff to the initial consultation with the appellate attorney to help facilitate the transition and to safeguard his client's interests in retaining new counsel. The appellate attorney asked the plaintiff to sign an agreement waiving potential malpractice claims against the appellate attorney, because the plaintiff had not yet terminated the representation with her trial lawyer, and the appellate attorney did not want to be responsible for the trial lawyer's mistakes. The appellate attorney did not inform the plaintiff fully about the risks or downsides of waiving malpractice future malpractice claims, nor did he advise the plaintiff of the desirability of seeking the advice of independent legal counsel in connection therewith. Could the attorney be subject to discipline, based on these facts?

No, the plaintiff already had independent legal counsel in connection to the malpractice waiver. Rule 1.8(h)

A certain attorney agrees to represent a group of three individuals in the same matter, a business transaction. Their interests are not directly adverse. This attorney has represented each of the clients in separate matters previously, and he 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. The 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. Then the 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, the attorney has completed 50 hours of work, and has acquired significant confidential information by and about each of the three clients. Would the 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. Rule 1.7 Cmt 20 Consent Confirmed in Writing [20] Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. Such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See Rule 1.0(b). See also Rule 1.0(n) (writing includes electronic transmission). If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. See Rule 1.0(b). The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns. Rather, the writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.

Conglomerate Corporation owns a little more than half the stock of Giant Company. Conglomerate's stock, in turn, is public, available on the public stock exchange, as is the remainder of the stock in Giant Company. The president of Conglomerate Corporation has asked Attorney Stevenson to represent Giant Company in a deal by which Giant would make a proposed transfer of certain real property to Conglomerate Corporation. The property in question is unusual because it contains an underground particle collider used for scientific research, but also valuable farmland on the surface, as well as some valuable mineral rights in another part of the parcel. These factors make the property value difficult to assess by reference to the general real-estate market, which means it is difficult for anyone to determine the fairness of the transfer price in the proposed deal. Would it be proper for Attorney Stevenson to facilitate this property transfer at the behest of the president of Conglomerate, if Attorney Stevenson would be representing Giant as the client in this specific matter?

No, not unless the attorney first obtains effective informed consent of the management of Giant Company, as well as that of Conglomerate, because the ownership of Conglomerate and Giant is not identical, and their interests materially differ in the proposed transaction. RESTATEMENT § 131

An attorney decides to purchase "litigation cost protection" insurance for matters she handles on a contingency fee basis. Plaintiffs' lawyers can buy this type of insurance on a case-by-case basis, for a one-time premium payment. The insurance is available for purchase up to three months after the filing of the initial complaint. Note that this policy is separate and distinct from malpractice liability insurance. The purpose of this type of insurance is to reimburse the attorney for litigation costs advanced by the attorney - only in the event of a trial loss. Do the Model Rules of Professional Conduct prohibit the attorney from purchasing litigation cost protection insurance for her contingency fee cases?

No, the attorney may purchase litigation cost protection insurance so long as she does not allow the terms of the coverage to adversely affect her independent professional judgment, the client-lawyer relationship, or the client's continuing best interests. N.C Formal Ethics Op. 2018-6

Attorney works for a firm. She also describes herself as an outspoken advocate for 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 limits its hours of operation and therefore the number of clients the clinics can accept. 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 litigation, the judge considers disqualifying the firm because it employs 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.

On the same day, an attorney agrees to represent an undocumented immigrant in a visa-revocation matter, as well the victim in a tort action (product defect) against an automobile manufacturer. The two matters are unrelated. In the second case, the 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 the 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 the term-0attorney's other client, the 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 who employ undocumented aliens. Does the fact that advocating a legal position on behalf of one client might create a 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.

1.8 (j) A lawyer shall not have sexual relations with a client unless

a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

A group of several individuals seeking to form a joint venture asked an 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. Everyone 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 the 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 the attorney may still represent everyone at once. May the 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 the attorney's ability to recommend or advocate all potential 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. Rule 1.7 Cmt 8 [8] Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer's ability to recommend or advocate all possible positions that each might take because of the lawyer's duty of loyalty to the others. The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

1.8 (k) While lawyers are associated in a firm, ...

a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.

Attorney Adams 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 Adams 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 Adams 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 Adams 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 Adams proceed?

She should approach the executive's immediate corporate supervisor, advising those next up the chain of authority to stop the transaction and take appropriate actions against the executive involved. Rule 1.13

An attorney has a successful blog about legal practice, and the blog generates substantial side income for the attorney. The attorney posts entertaining stories about his clients that attract the attention of his readers and make the blog successful and lucrative. He does not obtain client consent for these posts, but he is careful 1) not to post anything that would seriously injure the client's reputation or legal interests, and 2) not to post information about individuals that is truly confidential, that is not part of the public record. On the other hand, he does post about his personal observations and opinions of clients and their lifestyles, and often shares generalizations based on confidential information of former clients, such as: "On three occasions I've had clients who lived a double life, maintaining separate families in separate cities, and their families never knew." Another post recounted, "Last year I had a client who admitted after the case ended that he had been sleeping with one of the jurors." Apart from potential violations of Rule 1.6 (client confidentiality), which of the following is true?

The attorney has a common-law fiduciary duty not to profit from using client information even if the use complies with the lawyer's ethical obligations, without accounting to the client for any profits made. ABA Formal Ethics Op. 18-480 (2018), fn. 16, citing RESTATEMENT § 60(2)

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

The attorney must advise the other board members that in some circumstances, matters they discuss at board meetings while the 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 the attorney's recusal as a director, or might require the attorney to decline representation of the corporation in a matter. Rule 1.7 Cmt 35 [35] A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the two roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer's resignation from the board and the possibility of the corporation's obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer's independence of professional judgment, the lawyer should not serve as a director or should cease to act as the corporation's lawyer when conflicts of interest arise. The lawyer should advise the other members of the board that in some circumstances matters discussed at board meetings while the lawyer is present in the capacity of director might not be protected by the attorney-client privilege and that conflict of interest considerations might require the lawyer's recusal as a director or might require the lawyer and the lawyer's firm to decline representation of the corporation in a matter.

An attorney, a venture capitalist, and a land developer agreed to form a corporation to develop a new shopping mall. Their agreement allocates ownership shares based on the appraised value of the venture capitalist's land, which he is contributing for this enterprise, the market value of the developer's design and construction work, and the attorney's regular fees for the hours contributed to the formation and ongoing representation as corporate counsel. The attorney was already representing both the venture capitalist and the developer as his clients in unrelated matters. Which of the following is NOT a duty of the attorney in this situation, if the attorney performs the others?

The attorney must withdraw from representing the venture capitalist and the developer on the other matters, at least until the process of forming the corporation is complete, to avoid conflicts of interest. In other words, the attorney must: a) The attorney must fully disclose in writing all the terms of the development corporation ownership agreement to the developer and the venture capitalist in language they understand, and the terms of the agreement are objectively fair and reasonable the two clients. b) The attorney must advise the developer and the venture capitalist in writing that they should obtain the advice of independent legal counsel on the transaction, and give them time to do so; d) The venture capitalist and the developer give informed consent, in writing, to the terms of the transaction and the attorney's role in the transaction, including whether the attorney is representing them in the transaction.

An experienced attorney practiced at a small firm in a rural area. The attorney regularly represented the county school district in employment discrimination matters. One day, a group of citizens asked the attorney to represent them before the county planning commission to oppose the widening of a county road. The school district had separate budgetary funding, and it had an elected governing Board with its own authority to hire legal counsel. In contrast, the members of the county planning commission were appointees by the County Executive, and lawyers at the County Solicitor's office handled the legal work for the commission, though the commission and the County Solicitor's office received their funding from separate line items in the county budget. Would it be proper, under these facts, for the attorney to agree to represent the citizens against the Commission, without informing them of her existing relationship with the School District, and without also securing the Board's consent?

The attorney would have no obligation under the ethical rules to inform the citizens group about her representation of the school district, or the school district about her representation of the citizens group against the county planning commission in the road-widening dispute. ABA Formal Op. 97-405 A lawyer who is engaged to represent a government entity, whether on a full-time or part-time basis, may not agree simultaneously to represent a private party against her own government client, absent the informed consent of both clients. *The lawyer may represent a private client against another government entity in the same jurisdiction in an unrelated matter, as long as the two government entities are not considered the same client*, and as long as the requirements of Model Rule 1.7(b) are satisfied. The identity of the government client for conflict of interest purposes, like that of any other organizational client, will be established in the first instance between the lawyer and government officials who are authorized to speak for the government client, in accordance with the general precepts of client autonomy set forth in Model Rule 1.2. The lawyer may not, by agreeing to a narrow definition of the government client, seek to defeat the reasonable expectation of her other clients that they will get a conflict-free representation from their lawyer.

Lindsey is a single mother working as a cashier in a liquor store. She is behind on rent, and her landlord has provided written notice of his intent to evict her from her apartment; a complicating factor in the eviction is that the landlord did not full honor the terms of the lease regarding conditions in the apartment parking lot. She meets with a lawyer for a free initial consultation, but realizes she cannot possibly afford the lawyer's fees, so she leaves and starts planning to move home with her parents. Lindsey also discusses her problems with one or two friendly customers. To her surprise, the lawyer calls her the next day and offers to represent her free of charge, and she returns to the office and signs a retainer to this effect. Unbeknownst to Lindsey, a regular customer at the liquor store, Richard, is infatuated with her, and having learned of her plight, Richard contacted the lawyer and offered to pay all the fees for the lawyer's representation of Lindsey, on the condition that Lindsey never know about it. Richard wants to keep Lindsey in the neighborhood so that he might someday win her affections. Under the Model Rules, how should the lawyer respond in this situation?

The lawyer absolutely cannot represent Lindsey without obtaining her written consent, even though she would receive the free legal help and the lawyer would represent her diligently. Rule 1.8 says that lawyers must obtain "informed consent," that is, the client must know about "the identity of the 3P payer." It is not enough to tell a client that she has a secret admirer or that an anonymous donor is graciously covering her legal fees. Clients have a right to know WHO is paying the lawyer. This makes sense from a policy standpoint, because clients are usually aware of the nuance of their relationship with the EP payer, especially when it is a friend or relative, and will often have a better sense than the lawyer has about whether the other party will try to push an agenda and control the course of the representation. The lawyer could face discipline, or malpractice liability, for failure to disclose the identity of the payer as part of obtaining the client's written consent.

Mrs. Kramer met with a lawyer to discuss a physical assault by her estranged husband, who had broken into the house of Mrs. Kramer's, friend, where Mrs. Kramer was now living to avoid contact with her husband, and had assaulted her, leaving minor injuries and damaging some of her personal property. The lawyer agreed to represent her in seeking a restraining order against her estranged husband. The next day, upon hearing about this meeting, the estranged husband appeared in the lawyer's office, also seeking representation in the same matter. Mr. Kramer expressed his desire for reconciliation and asked the lawyer to represent him in mediation with his estranged wife, and to defend him in the restraining order hearing. The lawyer accepted a retainer fee from Mr. Kramer and agreed to represent him, just as he had done with Mrs. Kramer. Both the husband and the wife were aware the same lawyer was representing them and proceeded to schedule a hearing and mediation meetings, but neither signed paper work actually consenting to joint representation. Mrs. Kramer is unhappy that the husband hired the lawyer, but she feels she cannot do anything about it. What sanction could the lawyer face because of this dual representation.

The lawyer is subject both to discipline and to disqualification for violating the Model Rules, as the parties are directly adverse in the same proceeding.

Aaron, a college sophomore, is facing criminal charges related a drunk driving accident the previous night. To his great relief, Aaron's parents visit the firm of Lawyer Lucas, and retain him as defense counsel for their son, agreeing to cover all fees and expenses. The criminal charges in this case allow for jail time or hefty fines as potential punishments. The prosecution offers a plea bargain-- a $2000 fine, a few hours of community service, and 6 months probation, but no jail time. Aaron, the defendant, is thrilled but his parents insist that Lawyer Lucas decline the plea bargain and go to jail, which Lucas is certain will result in a conviction and short jail sentence. The parents believe a short jail term will be good for their son and teach him a lesson, and paying the $2000 fine on top of attorney's fees will force them to forego their vacation plans that year. A loud argument ensues in the conference room between the parents and Aaron over the best course of action. How should Lawyer Lucas proceed?

The lawyer must follow the decision of Aaron, who is his real client, and accept the plea; he should have explained to the parents in advance that they could not control the case even if they paid his fees. Rule 1.2(a); Rule 1.7(a); Rule 1.8(f)

A certain attorney obtained a successful outcome in a client's matter, and the client was grateful. The client sent the 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 the client $50. Is it proper for the attorney to accept this gift, or must the 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. Rule 1.8(c) Cmt. 6 [6] A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted. If a client offers the lawyer a more substantial gift, paragraph (c) does not prohibit the lawyer from accepting it, although such a gift may be voidable by the client under the doctrine of undue influence, which treats client gifts as presumptively fraudulent. In any event, due to concerns about overreaching and imposition on clients, *a lawyer may not suggest that a substantial gift be made to the lawyer or for the lawyer's benefit, except where the lawyer is related to the client* as set forth in paragraph (c).

An attorney had his own firm specializing in small business transactions. The clients were small business owners who did not have in-house counsel or other legal representation. His representation agreements with clients included all necessary disclosures, fee schedules and rates, and a clause stipulating that all potential legal malpractice claims would go through binding arbitration. The attorney would explain this term fully to each client, but he would decline representation for any potential client who would not agree to binding arbitration. The attorney did this in hopes of limiting his future malpractice liability to clients. Was it permissible for the attorney to do this?

Yes, a lawyer may make an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable and the lawyer fully informs the client of the scope and effect of the agreement. Rule 18(h) Cmt. 14 [14] Agreements prospectively limiting a lawyer's liability for malpractice are prohibited unless the client is independently represented in making the agreement because they are likely to undermine competent and diligent representation. Also, many clients are unable to evaluate the desirability of making such an agreement before a dispute has arisen, particularly if they are then represented by the lawyer seeking the agreement. *This paragraph does not, however, prohibit a lawyer from entering into an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable and the client is fully informed of the scope and effect of the agreement.* Nor does this paragraph limit the ability of lawyers to practice in the form of a limited-liability entity, where permitted by law, provided that each lawyer remains personally liable to the client for his or her own conduct and the firm complies with any conditions required by law, such as provisions requiring client notification or maintenance of adequate liability insurance. Nor does it prohibit an agreement in accordance with Rule 1.2 that defines the scope of the representation, although a definition of scope that makes the obligations of representation illusory will amount to an attempt to limit liability.

A certain 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. This attorney's retainer agreement limits his representation exclusively to the SEC and FTC regulatory matters. Victim hires the 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 the 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. Rule 1.7 Cmt.34 [34] 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. See Rule 1.13(a). Thus, the lawyer for an organization is not barred from accepting representation adverse to an affiliate in an unrelated matter, unless the circumstances are such that the affiliate should also be considered a client of the lawyer, there is an understanding between the lawyer and the organizational client that the lawyer will avoid representation adverse to the client's affiliates, or the lawyer's obligations to either the organizational client or the new client are likely to limit materially the lawyer's representation of the other client.

An attorney was a judge but left that job and joined Big Firm. Another lawyer at Big Firm represents the client in a case on the docket at the same court where the attorney worked as a judge. In fact, as a judge, the attorney ruled on some of the pretrial motions in the case, mostly evidentiary motions. The firm has screening measures in place to screen the attorney from any participation in the matter. The 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 the client. Is it proper for the other lawyer at Big Firm to continue representing the 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 with screening measures. Rule 1.12(c)(2)

An attorney is a partner in a law firm, and owns $100,000 worth of stock in Conglomerate Corporation, the named defendant in a new anti-trust suit. The attorney's total compensation from the firm is around $15 million per year, including bonuses, and his net worth is $500 million. His home is worth about $7 million and the attorney inherited it, so the property is unencumbered by any mortgages or liens. The attorney works in a specialized area of law at the firm and does not have much interaction with the other lawyers, except at parties or the 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 the attorney is not involved in representation, there will be no imputation of the attorney's conflict of interest to the other lawyers in the firm, because it is the 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.

An attorney represented Small Business Associates while working at Big Firm, her first law firm after law school. When the attorney did not make partner at Big Firm, she ended her employment and started her own firm. The 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 hte latter has ever faced. Can Big Firm represent Conglomerate Corporation in this 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 the attorney formerly represented the client; and no lawyer remaining in the firm has confidential information about Small Business Associates from when the attorney represented them at the firm.

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 about 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, potentially two at most, to keep payroll costs down and their stock share prices high. The Union and Management agree to hire a certain 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 the attorney to have both the Union and the Management as clients while facilitating the negotiations?

Yes, assuming both clients provide written informed consent, common representation is permissible where the clients' interests mostly 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 Rule 1.7 Cmt 28 [28] Whether a conflict is consentable depends on the circumstances. For example, a lawyer may *not* represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference in interest among them. Thus, *a lawyer may seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis*; for example, in helping to organize a business in which two or more clients are entrepreneurs, working out the financial reorganization of an enterprise in which two or more clients have an interest or arranging a property distribution in settlement of an estate. The lawyer seeks to resolve potentially adverse interests by developing the parties' mutual interests. Otherwise, each party might have to obtain separate representation, with the possibility of incurring additional cost, complication or even litigation. Given these and other relevant factors, the clients may prefer that the lawyer act for all of them.

An experienced 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 the 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 the attorney to handle a certain claim against a customer for non-payment of a loan. The attorney has not represented any clients against Bank. Even so, the attorney includes in his contract for services a clause in which Bank waives any conflicts that may arise in the future - conflicts that involve the attorney representing clients against Bank for issues regarding failure to investigate claims of fraud or unauthorized use of bankcards. Is the attorney's conduct proper?

Yes, attorneys can include waiver clauses for specific future conflicts in their contracts, if the clients are aware of the waiver, and if the contract delineates the types of future representations that may arise. Rule 1.7 Cmt 22 [22] Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph (b). The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. Thus, *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. 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. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b).

Client consults with Attorney regarding a criminal case in which Client is the defendant. Attorney previously represented Client's friend, who is the 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.

Client consults with an 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. The attorney does not believe that the previous representation of client's friend with disabling him from providing competent and diligent services to the client, and the parties are not making any claims against each other. May the attorney represent the 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.

An attorney spent several years working on the state intermediate appellate court as one of its nine justices in a state in which such justices ran for election in the general election every four years. When the attorney ran for re-election, she lost, and needed to return to private practice. The client wants attorney to represent her in her appeal for a state trial verdict. The case previously came up on appeal before the state intermediate appellate court, but the 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 the client, so she wants to appeal the case again. Would it be proper for the 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

An attorney worked for several years for a federal government agency in regulatory enforcement. The attorney was involved in several enforcement matters against Conglomerate Corporation. Big Firm has always represented Conglomerate in all its litigation and regulatory compliance matters. The 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's executives during the discovery phase of an enforcement proceeding, Big Firm's partners approached the attorney privately and asked if the attorney would be interested in leaving the government to work for Big Firm. The 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 the attorney, at the end of which they made him an offer that doubled his salary if he left the agency to accept a job at Big Firm. The attorney decided to postpone making a decision until 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, Big Firm eventually withdrew its offer. Is the 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 or substantially. Rule 1.11(d)(2)(ii)

An attorney agreed to represent a new client in a potential litigation matter, but the client had insufficient funds to pay the attorney's fees. Instead, the client asked the attorney to propose an amount that would be a reasonable fixed fee for the matter. The client then offered to sign over title to a small parcel of real estate worth about the same amount as the proposed fixed fee, and the attorney agreed. The value of the property, and the proposed fixed fee, were fair and reasonable, and the client agreed to these terms in writing. The attorney did not advise the client to seek the opinion of independent legal counsel for this transaction, and did not obtain signed, written consent from the client about the attorney's role in the transaction. Based on these facts, could the attorney be subject to discipline for violating the provisions Model Rule 1.8 that govern business transactions with clients?

Yes, because a lawyer must meet the written notice requirements of Model Rule 1.8 when the lawyer accepts an interest in the client's business or other nonmonetary property as payment of all or part of a fee. Rule 1.8(a) Cmt. 1 [1] A lawyer's legal skill and training, together with the relationship of trust and confidence between lawyer and client, create the possibility of overreaching when the lawyer participates in a business, property or financial transaction with a client, for example, a loan or sales transaction or a lawyer investment on behalf of a client. The requirements of paragraph (a) must be met even when the transaction is not closely related to the subject matter of the representation, as when a lawyer drafting a will for a client learns that the client needs money for unrelated expenses and offers to make a loan to the client. The Rule applies to lawyers engaged in the sale of goods or services related to the practice of law, for example, the sale of title insurance or investment services to existing clients of the lawyer's legal practice. See Rule 5.7. It also applies to lawyers purchasing property from estates they represent. It does not apply to ordinary fee arrangements between client and lawyer, which are governed by Rule 1.5, although *its requirements must be met when the lawyer accepts an interest in the client's business or other nonmonetary property as payment of all or part of a fee.* In addition, the Rule does not apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others, for example, banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities' services. In such transactions, the lawyer has no advantage in dealing with the client, and the restrictions in paragraph (a) are unnecessary and impracticable.

A client hires an attorney to represent her in business litigation. Another lawyer in the firm, unknown to the attorney, approaches the client with a proposal for an unrelated business transaction, the sale of a parcel of real estate adjacent to the lawyer's own land. The 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 the 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.

Miranda and her two sisters, Lisa and Nancy, all received injuries in a car accident last year. Because they did not have enough money to get separate attorneys, they decided to consent to using the same lawyer, Joseph. After months of trial prep, the defense counsel approached Joseph with a settlement offer. Miranda sustained severe injuries, but fortunately Lisa and Nancy only received a few bumps and bruises. Joseph believed that the settlement offer was a reasonable offer and that it would be in the client's best interest to accept it because of how all consuming and costly trial can be. Even so, Joseph also knew that Miranda would be a hard sell on accepting a settlement offer because she believed she could get a larger judgment if she presented her case in front of a jury. If Joseph obtains consent from Nancy and Lisa to accept the defendant's settlement offer, will he be subject to discipline for accepting the offer without first discussing with Miranda?

Yes, because an attorney must inform *and obtain written consent* from each client about all the material terms of the settlement because accepting any settlement offer on behalf of multiple clients. Rule 1.8(g)

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 conflicts 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. An 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. The 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 the 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.

An attorney made an agreement to borrow money from a client who had received a large inheritance. The attorney agreed to pay the client the same interest rate that banks in that area were charging for unsecured business loans, and she gave the client a detailed written disclosure of the terms and conditions of the loan, with phrasing that a nonlawyer could understand. The client gave written, signed consent to the essential terms of the loan, including the fact that the attorney was not representing the client in the transaction. During one of their conversations about the loan, the attorney also advised the client in writing that it would be prudent to obtain the advice of another lawyer about the transaction, and she offered to give the client time to find another lawyer, but the client did not want to do this. Upon consummation of the agreement, the client transferred the loan amount to the attorney, who made regular payments according to the terms of the agreement, eventually repaying the full amount with interest. Based on these facts, were the attorney's actions proper in this transaction?

Yes, because the attorney complied with the requirements of the Model Rules for this type of transaction with a client.

Two successful business partners hired an attorney to help with the dissolution of the partnership, as the two partners no longer want to work together. The 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 interests to use only one lawyer to dissolve the business. The matter was purely transactional at this point, and it did not involve any anticipated litigation before a tribunal. One partner had already mentioned to the attorney that he might need his legal services in setting up a new business, as well as handling some estate planning issues for him. The 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 start-up funds years before. The partner who mentioned hiring the attorney to do estate-planning work wanted the dissolution to include assigning his proceeds from the business to his heirs. The attorney proceeded with the dual representation and the dissolution appeared to proceed smoothly. Is the attorney subject to discipline for representing both partners?

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

An attorney worked in the legal department of Conglomerate Corporation for a few years, then left there to start his own firm. His experience at Conglomerate proved useful, as he regularly represented some of Conglomerate's newer industry rivals in their transactional and pre-litigation work - small startup businesses that did not have in-house counsel. Whenever a new client needed legal representation in a matter that could potentially be adverse to the legal interests of one of his other clients, the attorney would obtain informed consent, confirmed in writing to the potential conflict of interest. In such cases, the attorney would also ask new clients to sign a waiver of liability for all potential legal malpractice by the attorney. Attached to the waiver was a cover sheet explaining what the waiver entailed, the downsides for the client in signing a waiver, and recommending the client seek the advice of independent legal counsel in connection therewith. As with the consent to conflicts of interest, the clients normally gave informed consent, confirmed in writing, to the waiver of malpractice claims against the attorney. Could the attorney be subject to discipline, based on these facts?

Yes, because the attorney is making an agreement prospectively limiting the lawyer's liability to a client for malpractice, and the client does not have independent representation in making the agreement. Rule 1.8(h)

An attorney represented a client in a litigation matter, and while the matter was still pending, the attorney and the client also agreed to purchase an investment property together. The client had another lawyer who regularly represented the client in transactional matters, but not litigation. The litigation attorney and the client contributed equal amounts toward the purchase of the investment property, and each received an equal share. The attorney did not advise the client in writing of the desirability of obtaining the opinion of independent legal counsel in the transaction, but the client nevertheless asked his other lawyer, who handled the client's transactional matters, to review the terms and render an opinion. The other lawyer provided the client with a written disclosure of the terms and conditions of the agreement and recommended that the client proceed. Did the litigation attorney act properly in this transaction, purchasing an investment property with the client?

Yes, because the client had representation by another lawyer in the transaction

Three individuals plan to form a joint venture and ask an attorney to represent them in drafting the necessary documents and making the necessary filings with government agencies. They have already agreed that everyone 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 they 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 the 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 the attorney may still represent everyone at once. May the 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. Rule 1.7 Cmt 8 [8] Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer's ability to recommend or advocate all possible positions that each might take because of the lawyer's duty of loyalty to the others. The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

An attorney sued Giant Company on behalf of a client in a personal injury matter. During the protracted litigation that ensued, Conglomerate bought Giant Company. The 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 the client against Giant Company, will the attorney have the option to withdraw from one of the representations to avoid the conflict?

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

Three co-owners of a successful startup business hire a certain attorney to help with working out the financial reorganization of their enterprise. The attorney seeks to resolve potentially adverse interests by developing the parties' mutual interests. In assenting to represent all the parties as clients simultaneously, the 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 the attorney to represent three clients with potentially adverse interests in a negotiated transaction?

Yes, common representation is permissible where the clients' interests mostly align, even though there is some difference in interest among them, so the 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 an attorney to handle the real estate transaction. This 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 prolonged 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 the attorney over the prolonged, hitherto unsuccessful negotiations, and fires the attorney. The other sister wants the attorney to continue the representation. Regarding the sister who seeks to discharge the 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. Rule 1.7 Cmt 33 [33] Subject to the above limitations, each client in the common representation has the right to loyal and diligent representation and the protection of Rule 1.9 concerning the obligations to a former client. The client also has the right to discharge the lawyer as stated in Rule 1.16.

An attorney purchased "litigation cost protection" insurance at the outset of representing a plaintiff in a personal injury case. When the attorney recovered funds for the client through a settlement or favorable trial verdict, the attorney proposed to receive reimbursement for the insurance premium from the judgment or settlement funds. The attorney disclosed the cost of the insurance to the client as part of the representation agreement. Was it proper for the attorney to include in a client's fee agreement a provision allowing the attorney's purchase of litigation cost protection insurance and requiring reimbursement of the insurance premium from the client's funds in the event of a settlement or favorable trial verdict?

Yes, if the amount charged to the client is fair and reasonable, and the lawyer fully explains to the client what litigation cost protection insurance is, why the lawyer believes a litigation cost protection policy will serve the client's best interests, that the client should get the advice of independent legal counsel regarding the arrangement, that other lawyers may advance the client's costs without charging the client the cost of a litigation cost protection policy; and the client gives informed consent in writing, while the lawyer maintains independent professional judgment. N.C Formal Ethics Op. 2018-6

An 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 represented 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 the 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. The 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, the 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. The client has also bought properties at times that were adjacent to his existing landholdings. The client has always used other lawyers for these transactions in the past, and in each previous instance, the other party had separate counsel. The client now wants to hire the attorney to sell a parcel to a real estate developer. Buyer (the developer) is also a client of the attorney on unrelated matters, but the Buyer has hired another lawyer to handle this certain matter. The client and Buyer have had a good working relationship in the past and have consummated a few transactions that went smoothly. When the client meets with the attorney to review and sign a retainer for this representation, the 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. The client reads the form and signs it. As the negotiations for the sale to the developer proceed, a new conflict arises between the client's interests and the unrelated matters for which the attorney has represented the developer, as one will significantly affect the road traffic for the other. This was an unexpected development, though not unusual - such situations were familiar and routine for the attorney and the parties. Is the attorney's standardized "waiver of future conflicts," signed by the client, likely to be effective in this situation?

Yes, if the client agrees to consent to a specific type of conflict with which the client is already familiar, then the consent ordinarily will be effective regarding that type of conflict. Rule 1.7 Cmt 22 [22] Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph (b). The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. Thus, 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. 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. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b).

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 a certain attorney to work out the details of the joint venture and draft the necessary legal documents. The attorney would provide common representation to both as clients in the matter. As part of obtaining informed consent from the clients regarding potential conflicts, the attorney explains that all information would be available to the other client, even information that otherwise would have been confidential information in a normal representation with a single client. Then the attorney explains he will have to withdraw if one client insists that the attorney keep certain information from the other, if the information was relevant and material to the representation. 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 the attorney may eventually possess the secrets as part of his document review for the joint venture. Neither client clearly needs to know the trade secrets of the other, however, to proceed with the joint venture. Eventually, the 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 the 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 receiving adequate disclosures, that the lawyer will keep certain information confidential. Rule 1.7 Cmt 31 [31] As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit. See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process of obtaining each client's informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In limited circumstances, it may 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. For example, the lawyer may reasonably conclude that failure to disclose one client's trade secrets to another client will not adversely affect representation involving a joint venture between the clients and agree to keep that information confidential with the informed consent of both clients.

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 a certain 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 Supervisor, 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, the attorney understood that the complaints targeted the Business Manager and Shift Supervisor equally. Business Manager and Shift Supervisor both gave the attorney written informed consent to the potential conflicts of interest in having the attorney represent both. *Business Manager obtained tentative permission to have the business cover the legal fees for the 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 little contact with Business Manager and had no direct complaints about his treatment of her, and she 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 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 the attorney to continue representing either Shift Supervisor or Business Manager, but withdraw from representing the other?

Yes, the attorney can potentially 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. Rule 1.7 Cmt 21 [21] A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer's representation at any time. Whether revoking consent to the client's own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client revoked consent because of a material change in circumstances, the reasonable expectations of the other client and whether material detriment to the other clients or the lawyer would result.

An attorney regularly represented clients in transactional matters. While she was representing a certain client in negotiating and drafting a contract, the client asked the attorney to represent her in a lawsuit as well. The attorney felt nervous because she rarely did litigation work, so she asked the client to sign a waiver of potential malpractice claims that could arise from the litigation work. She orally advised the client to talk to another lawyer about the waiver before signing it, but the client felt that she already had legal representation, as this attorney was handling her transactional matters. The client readily agreed to the waiver. The attorney competently handled the litigation matter, and the case settled before trial with a favorable result for the client. Could the attorney be subject to discipline for obtaining a malpractice waiver from the client?

Yes, the attorney is making an agreement prospectively limiting the lawyer's liability to a client for malpractice, and the client does not have independent representation in making the agreement. Rule 1.8(h)

A plaintiff who had prevailed at trial needed representation for the appeal, because the defendant in the case appealed the verdict. Plaintiff's counsel did only trial work, not appellate work, and referred the client to an appellate attorney nearby. The trial lawyer even offered to accompany the plaintiff to the initial consultation with the appellate attorney to help facilitate the transition and to safeguard his client's interests in retaining new counsel. Instead, *the plaintiff fired the trial lawyer, terminating the representation, and then went alone to the consultation with the appellate attorney*. The appellate attorney asked the plaintiff to sign an agreement waiving potential malpractice claims against the appellate attorney, because the appellate attorney did not want to be responsible for the trial lawyer's mistakes. The appellate attorney did not inform the plaintiff fully about the risks or downsides of waiving malpractice future malpractice claims, nor did he advise the plaintiff of the desirability of seeking the advice of independent legal counsel in connection therewith. Could the attorney be subject to discipline, based on these facts?

Yes, the attorney made an agreement with an otherwise unrepresented client that prospectively limited his liability for malpractice.

Asylum Now is a nonprofit organization that advocates for refugees and immigrants from poor countries. The Board of Directors for Asylum Now wants to bring a test case in federal court to challenge the constitutionality of detaining refugees who enter the country under duress without a visa. Asylum Now has offered to pay an attorney to seek the release of a certain refugee currently in federal detention, and to use this case to challenge current federal laws and regulations that mandate such detentions. The refugee consents to the representation, as well as the payment of legal fees by Asylum Now, and agrees to have his case be the test case that might benefit others. During the representation, the attorney meets several times with the directors of Asylum Now to discuss how to frame their argument in the case in a way that would shape public policy in the right direction. Is it permissible for the attorney to undertake the representation, given this arrangement?

Yes, the attorney may accept payment by Asylum Now and may agree to make contentions that Asylum Now wishes to have tested by the litigation. Rule 1.8(f); RESTATEMENT § 134

An attorney was a judge for several years. Near the end of her tenure as 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 on her own trials. The attorney then left the bench and opened her own law practice. The attorney agrees to represent the client in a matter in the same courthouse where the attorney formerly served as judge. The 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 the attorney had no other involvement in the matter. The 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 the attorney to represent the 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.

Attorney represented husband 20 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 radical political cause. Recently, Husband's third wife approached attorney asking him to represent her in obtaining a divorce from her 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 him. Husband long ago provided written consent to 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 first divorce will be relevant to the pending third divorce. On the other hand, there is regular media coverage of the Husband's trysts and on-off sexual relationships with various actresses and female socialites in the area, and marital infidelity could trigger certain exception clauses in the prenuptial agreement. Can attorney use information about the husband's recent indiscretions in representing the third wife?

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

Mr. Burns, the chief executive officer of Conglomerate Corporation, now faces criminal charges of discussing prices with the president of a competing firm. If found guilty, both Mr. Burns and Conglomerate Corporation will be subject to civil and criminal penalties under state and federal antitrust laws. An attorney has been representing Conglomerate Corporation. She has conducted a thorough investigation of the matter, and she has personally concluded that no such pricing discussions occurred. Both Conglomerate Corporation and Mr. Burns plan to defend on that ground. Mr. Burns has asked the attorney to represent him, as well as Conglomerate Corporation, in the proceedings. The legal and factual defenses of Conglomerate Corporation and Mr. Burns seem completely consistent at the outset of the matter. Would the attorney need to obtain informed consent to a conflict of interest from both Mr. Burns and a separate corporate officer at Conglomerate Corporation before proceeding with this dual representation?

Yes, the likelihood of conflicting positions in such matters as plea bargaining requires the attorney to obtain the informed consent of both clients before proceeding with the representation. RESTATEMENT § 131

An attorney represented a client who was a stockbroker in a boundary dispute with the client's neighbor. Before the conclusion of the representation, the attorney also made some personal investments using the same client's brokerage services, receiving the same terms, services, and fee waivers that other customers of the brokerage firm received. The attorney did not advise the client to seek the opinion of independent legal counsel for this transaction, and did not obtain signed, written consent from the client about the attorney's role in the transaction. The terms of the brokerage services agreement were in writing, as usual. Based on these facts, were the attorney's actions proper in this transaction?

Yes, this is a standard commercial transaction between the attorney and the client for a service that the client normally would market to others.

Lucille Bluth hires attorney Wayne Jarvis to represent her and her family in a complex federal case involving the family business and charges of securities fraud and racketeering. Early in the representation, Lucille and the lawyer, Wayne, start dating and become sexually involved, to the consternation of the rest of the family. Lucille and Wayne rationalize the relationship by saying that they each have "needs" that their new romantic partner meets, and they have even discussed marriage as an eventuality. Is the lawyer subject to discipline for their relationship?

Yes, unless the sexual relationship predates the beginning of legal representation, the lawyer absolutely cannot represent a client with whom he has a relationship

Three individuals hire an attorney to represent them as co-defendants in a tort action. At the outset, the 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 the attorney proceeds with the representation. Could the attorney end up having a duty to withdraw from representation later in the litigation, if the clients gave written consent to the shared representation at the outset?

Yes, when undertaking representation of multiple clients in a single matter, the information must include the implications of the common representation, including potential effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved. Rule 1.7 Cmt 18 [18] Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. See Rule 1.0(e) (informed consent). The information required depends on the nature of the conflict and the nature of the risks involved. 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. See Comments [30] and [31] (effect of common representation on confidentiality).

Conglomerate Corporation hired an attorney to represent one of its employees, a delivery truck driver, who is the defendant in a personal injury lawsuit. The incident that caused the plaintiff's injury was potentially within the scope of the employee's duties, and under Conglomerate's ultimate supervision. Conglomerate's directors asked the attorney what the truck driver intends to testify about the accident and its surrounding circumstances. The employee consented to having Conglomerate pay his legal fees, but the attorney did not ask the driver specifically about sharing this type of information with Conglomerate during the representation. Would it be *improper* for the attorney to give this requested information to Conglomerate's directors?

Yes, without specific authorization from the employee-client, the attorney may not disclose to Conglomerate how the employee intends to testify. Rule 1.8(f); RESTATEMENT § 134

1.8 (g) A lawyer who represents two or more clients shall not ...

participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

1.9 (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless

the former client gives informed consent, confirmed in writing.

1.8 (c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless ...

the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.